Kochu Thomman, J.
1. This is a petition fur a writ of mandamus to direct respondents 1 and 2 to promote the petitioner to the post of Deputy Drugs Controller, Ayurveda in the Drugs Control Department and to restrain respondents 1 and 2 from appointing any other person either by deputation or otherwise to that post. In C.M.P. No. 17816 of 1982 this Court passed an interim order on 20th August, 1982 as follows:
Urgent notice and interim stay for a month. Hand over the order.
On 15th September, 1982 this Court made a further order in the following words:
Heard the counsel for the petitioner and the counsel for the 3rd counter-petitioner. It is submitted by the counsel for the 3rd counter-petitioner that before the stay order was issued by this Court, on 18th August, 1982 the 3rd counter-petitioner was actually appointed. It is submitted by the petitioner's counsel that the 3rd counter-petitioneralias not so far taken charge.
In the facts and circumstances of this case, the stay is vacated. But, it is made clear that the appointment will be provisional and subject to the result of the OP. Post O.P. for hearing on 30th September, 1982.
Hand over the order to the counsel for the 3rd counter-petitioner.
In the light of the subsequent order the 3rd respondent is now functioning as the Deputy Drugs Controller provisionally and on deputation from his parent department of Ayurveda College.
2. The petitioner was appointed as Drugs Inspector provisionally on 5th February, 1977 although his appointment had been advised by the Public Service Commission as early as 22nd December, 1976. His appointment was made provisional for the reason that O.P. No. 3180 of 1976 was at that time pending in this Court. Subsequently with effect from 14th February, 1977 the petitioner's appointment as Drugs Inspector was regularised by Ext. P1order dated 5th February, 1977, There are two wings in the Drugs Control Department. They are the Allopathy Wing and the Ayurveda Wing. The petitioner contends that he is fully qualified and has the requisite experience for promotion to the next higher post of Assistant Drugs Controller in the Ayurveda Wing to which he belongs, That the petitioner is fully qualified for promotion is not disputed by the respondents. But it is stated by the Government in their counter affidavit that the petitioner does not possess the requisite experience for promotion.
3. By Ext.P3 the post of Assistant Drugs Controller was upgraded as Deputy Drugs Controller on a higher scale of Rs. 975-1625. Ext.P3 refers to the post of Deputy Drugs Controller as upgraded and the lower post of Drugs Inspector which is on a scale of Rs. 570-1070.
4. After the upgradation of the post of Assistant Drugs Controller as Deputy Drugs Controller one Dr. Chakrapani Warrier was appointed to that post by deputation from the Ayurveda College where he was working as a professor. It was when Dr. Warrior was about to be reverted at his own request that the petitioner apprehended that the 3rd respondent was likely to be appointed to that post by bringing him on deputation from the Ayurveda College. It was then that the petitioner approached this Court. As I have stated earlier the 3rd respondent was appointed as Deputy Drugs Controller provisionally.
5. The contention of the petitioner is that there is no need to appoint any person provisionally by bringing him from outside when fully qualified persons are already available within the Department, The petitioner contends that he has the necessary qualification and experience for promotion to the next higher post of Deputy Drugs Controller. His contention is that he should either be appointed as Deputy Drugs Controller or that the post should be downgraded as that of Assistant Drugs Controller and the petitioner should be appointed to that post.
6. It is stated by the Government in their counter-affidavit that no rules have been so far trained in regard to the post of eitherAssistant Drug's Controller (Ayurveda) as it then existed or in regard to the upgraded post of Deputy Drugs Controller (Ayurveda). No special rules or executive orders have been made in that behalf. This is precisely the complaint of the petitioner. His counsel Sri C.K. Sivasankara panicker argues with ninth force that it should not open to the Government to appoint persons lo posts otherwise than by rules. Any such exercise of power would of necessity be arbitrary and unguided.
7. The Government ought to make rules to govern the posts they create. Sri Panicker is fully justified in his criticism against the manner in which appointments are made sates rules. While it is open to the Government lo create any post which they think is necessary in the interest of administration and make rules therefor, to appoint persons for rules or sans rules is an arbitrary and illegitimate exercise of power. The power exercised by the Government must be exercised in accordance with the rules, lest such power should be exorcised without the guidance of the law and in an unpredictable fashion. Neither Rule 9A(1) nor Rule 31(a)(i) of the Kerala State and Subordinate Services Rules contemplates appointment or' promotion when no rules have been tirade. That is not the object of those rules. As stated under Rule 31(a)(i) the object of a promotion under that rule is to make an immediate appointment owing lo an extreme urgency and recourse to rules would result in undue delay. That is a case where rules already exist, but on account of the urgency recourse to the rules cannot be had in the interest of administration. That is not the situation here. No one has a case that it is on account of the urgency that a person is brought fromoutside by promotion to the post. The only reason stated in the counter affidavit is that no person within the department including the petitioner has sufficient experience for promotion. To say that a person does not have sufficient experience, one has to have rules lo which reference can be made, for qualification and experience are relative. To consider that the petitioner lacks experience, a reference has to be made to some rule. There is no such rule.1 to which the petitioner's present experience can be referred for proper judgment. Recourse to Rule 31(a)(i) for such purposes is not only misguided, but arbitrary and unjustified.
8. It may be true that the petitioner in comparison to the 3rd respondent is less experienced. But whether that is by itself sufficient reason to exclude the petitioner from consideration for promotion to the post is a question which cannot be answered except by reference to some rule. In the absence of any such rule there is no justification, in my view, to hold against the petitioner his lack of experience.
9. It is imperative that rules are made in regard to the post immediately. There has been no justification for not making any rules so far, for the posts were created a long time ago. However, in view of the fact that the 3rd respondent, who would be qualified to hold the post, if his appointment by deputation was permissible, is now holding the post, in terms of the interim order of this Court, which I have extracted above, I am of the view that the 3rd respondent should be allowed to continue provisionally in the present post until such time as the Government have made special rules or rules by executive orders in regard to this post and a regular appointment is made on the basis of such rules. In the circumstances, I direct the 1st respondent -- The Slate of Kerala -- to make the rules as aforesaid within a period of five months from today and pass appropriate order appointing a suitable person to the post within one month thereafter. On the basis of this direction, the Original petition is allowed. No costs.