K. Ramaswamy, J. - (1.) Special leave granted.
(2.) In response to the advertisement No. 33 dated August 19, 1989 the appellant had applied for recruitment to the post of Examiner of Personnel in the Department of Civil Aviation. He was unsuccessful in the selection. He later on challenged paras 3(i) and 3(ii) of the advertisement on the ground that the qualifications prescribed are discriminatory and were tailor made. He also contends that in 1969, for the said post the qualifications prescribed were 1st Class British or Indian Navigator or a British Flight Navigator licence with not less than 100 hours of air experience. The method of recruitment was direct recruitment and the age prescribed was 45 years relaxable to Government Servants. He claims that he is having the First Class licence with 100 hours of air navigation experience. With a view to deprive him of the chance, the offending rules have been amended in 1978 substituting 300 hours of instructional flying and experience of not less than 2500 hours as Flight Navigator with category A and endorsement to fly VIPs and VVIPs on all routes in I.A.F. air crafts or should hold or have held an Indian Flight Navigator Licence. According to him this rule was made with a view to deprive him of his chance. The Delhi High Court dismissed the writ petition summarily. To appreciate the contention, it is necessary to read the rules. As per the 1969 rules which are statutory made under proviso to Art. 309 of the Constitution, the method of recruitment with qualification prescribed thereafter are thus: "Essential (i) First Class British or Indian Navigators' Licence with not less than 100 hours air experience Desirable (i) Degree in Mathematics or in Engineering. (ii) Experience of Geodetic Surveying. In 1978 clause A was amended and in its place Clauses A(i) and (ii) were brought on the rules which read thus: "A(i) Experience of a minimum of 300 hours of instructional flying as qualified Navigation Instructor. (ii) Experience of not less than 2500 hours as Flight Navigator with category "A" and endorsement to fly VIPs/ VVIPs on all routes in I.A.F. aircrafts." OR "B(i) Should hold or have held an Indian Flight Navigators' Licence. (ii) Experience of 2000 hours as Flight Navigator on international routes. Desirable (i) Degree in Science with Physics and Mathematics as subject of recognised University or equivalent. (ii) Experience as Navigator Instructor in a recognised Institution or in an Air Corporation. (iii) Commercial Pilot's licence. Method of recruitment is direct recruitment through the Union Public Service Commission. When the candidates in required number did not apply for, the rules have been further amended in 1989 with the following modified qualifications: Essential 1. 10 + 2 with Physics, Chemistry and Mathematics. 2(i) should have held a senior Commercial Pilot's Licence. (ii) should have flying experience of not less than 2500 hours on multiengine aircraft of which not less than 250 hours should be as Pilot-in-command. OR (i) should hold or should have held an Indian Flight Navigator's licence. (ii) should have not less than 500 hours experience as Flight Navigator. Desirable 1. Degree in Science with Physics and Mathematics of a recognised University or its equivalent. 2. Experience as Navigation Instructor in a recognised institute/ Flying Club or in an Airline. Method of recruitment- by direct recruitment failing which by transfer or deputation (including short term contract). Age:50 years.
(3.) It is not in dispute that these rules have been made by the President exercising the power under Proviso to Art. 309 of the Constitution which read thus: "309. Recruitment and conditions of service of persons serving the Union or a State - Subject to the provisions of this Constitution, Acts of the appropriate Legislature may regulate the recruitment, and conditions of service of persons appointed, to public services and posts in connection with the affairs of the Union or of any State: Provided that it shall be competent for the President or such person as he may direct in the case of services and posts in connection with the affairs of the Union, and for the Governor of a State or such person as he may direct in the case of services and posts in connection with the affairs of the State to make rules regulating the recruitment, and the conditions of service of persons appointed, to such service and posts until provision in that behalf is made by or under an Act of the appropriate Legislature under this Article, and any rules so made shall have effect subject to the provisions of any such Act." It would thus be clear that the rules made by the President or authorised person under proviso to Art. 309 are subject to any law made by the Parliament and the power includes rules regulating the recruitment and the conditions of service or post. They are statutory and legislative in character. The statutory rules thus made are subject to the law that may be made by the Parliament.;