Recruitment Rules framed by the Government under the proviso to Article 309 of the Constitution of India are statutory Rules and must be adhered to. Statutory Rules cannot be bypassed by executive orders.

In this application under Article 226 of the Constitution the petitioner questions legality of Government Notification dated 26th March 1991 by which the respondent 3 was promoted and appointed to the post of Additi­onal Chief Engineer, PHFD on the grounds that respondent 3 is not qualified to be appointed as Additional Chief Engineer in terms of Rule 7 and Schedule VI of the Nagaland Engineering Service Rules, 1984 which came into force with effect from 30th September, 1985, that the said post of Additional Chief Engineer is reserved for a qualified degree holder or a qualified person having equivalent degree in the concerned Engineering Branch of a recognised University or a holder of a certificate of having passed Sections A and B of the Associate Membership Examination of the Institution of Engineers, and that the petitioner is the senior most Engineer in the concerned Department having requisite qualification to be promoted to the post of Additional Chief Engineer inasmuch as the said post is reserved for a degree holder as it is clearly set forth in Schedule VI of Rule 7.

2. Shri DK Mishra, learned Additional Advocate General appears on behalf of respondents 1 and 2 and Ms. C. Jajo learned counsel appears on behalf of respondent 3. Affidavits have been filed on behalf of the respondents.

3. At the outset in terms of para 2 of the Government affidavit, the learned Additional Advocate General prays that the question of maintain­ability of this petition be heard and decided first. Ms. C. Jajo also makes a similar prayer. I have heard the parties on the question of maintainability. The main contention of Mr. DfC Mishra and Ms. C Jajo in this regard is that the petitioner himself not being qualified to be promoted to the post of Additional Chief Engineer, he cannot seek remedy or question the legality of the order of promotion issued in favour of respondent 3. It is contended that none of the legal rights of the petitioner have been violated or infringed in giving promotion to respondent 3. In support of the contentions raised as stated above Mr. Mishra has referred me to AIR 1952 SC 12, AIR 1962 SC 1044, AIR 1964 SC 685 and also AIR 1980 AP 243 and contends in terms of the decisions rendered in the aforesaid cases that Article 226 confers a very wide power on the High Court to issue directions and writs of the nature mentioned therein for the enforcement of any of the rights conferred by Part III or for any other purpose. It is- therefore contended in terms of AIR 1962 SC 1044 (supra) that it is therefore clear that the persons other than those claiming fundamental rights can also approach the Court seeking a relief thereunder. The relief asked for must be one to enforce a legal right. The right that can be enforced under Article 226 also should ordinarily by the personal or individual right of the petitioner himself. In terms of AIR 1952 SC 12 (supra) it is submitted that the language of the Article shows that the issuance of Directions by the Court is founded only on its decision that a right of the aggrieved party under Part III of the Constitution has been infringed. In otherwords the submission of the learned counsel is that the existence of a right is the foundation of the exercise of jurisdiction of this Court under Article 226 of the Constitution. While referring to AIR 1980 AP 243 (supra), it is submitted that any one is not entitled to invoke the jurisdi­ction of this Court under Article 226 and as such the petition is not maintai­nable unless the petitioner satisfies the Court that he has valuable right and that right has been infringed.

4. While supporting the submission made by Mr. Mishra, Ms. Jajo appearing for respondent 3 refers me to AIR 1968 AP 328 and submits that the petitioner had no vested legal right on the date of filing this petition for being appointed as Additional Chief Engineer and therefore he has no right to invoke the jurisdiction under Article 226 of the Constitution. As against this Mr. BN Sarm

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