V. Dutta Gyani, J.— This appeal arises out of a common judgment and order dated 7.9.96 passed by a learned Single Judge of this Court in Civil Rule Nos. 545 8 h of 1995, 144 of 1996, 444 of 1996 and 1563 of 1996 (1997 (1) GLJ 151), thereby allowing the last petition and dismissing the others. 2. The dispute relates to promotion and appointment to the post of Drugs Controller of the State and the controversy as raised by the writ petitioner in Civil Rule No. 1563 of 1996 (which has been allowed by the learned Single Judge) relates to Rule 11 of the Assam Drug Control Organisation Service Rules, 1994 (for short Assam Rules, 1994) vis-a-vis Rule 44,49 A and 50 of the Drug and Cosmetic Rules, 1945 (for short Central Rules). Rule 11 of Assam Rules, 1994 has been declared ultra vires the Constitution, violative of Article 14 and 16 of the Constitution. 3. It would not be out of place to note the factual matrix of the case. The Association of Inspectors of Drugs Assam represented through its President had filed a writ petition (Civil Rule No.545 8 of 1995) on 18.12.95 praying for a writ or direction to the State to fill up the post of Drugs Controller as per the Assam Rules, 1994 from amongst the persons working in the Drugs Control Organisation and further seeking to restrain the State Govt. from giving any further extension of service to the then incumbent whose extended term after retirement on 31.1.95 was to expire on 31.1.96. This petition has been dismissed as infructuous by the learned Single Judge in view of the interim restraint order dated 20.12.95. 4. Civil Rule No. 144 of 1996 was filed by the above Association on 9.1.96. It was followed by yet another petition Civil Rule No.444 of 1996 filed on 1.2.96, challenging the notification dated 26.10.95, allowing Shri P.J. Gogoi, Drugs Analyst to function as Govt. Analyst for the State of Assam seeking a further direction restraining Shri Gogoi from functioning as Govt. Analyst. 5.. Shri Deb Roy was holding the pest of Drugs Controller and he was to retire on 31.1.95. However, the State Govt. granted him an extension of service for one year upto 31.1.96. Analyst for the State of Assam seeking a further direction restraining Shri Gogoi from functioning as Govt. Analyst. 5.. Shri Deb Roy was holding the pest of Drugs Controller and he was to retire on 31.1.95. However, the State Govt. granted him an extension of service for one year upto 31.1.96. As there was a move to grant further extension to Shri Deb Roy after completion of his extended term, the President of the Association of Inspectors of Drugs filed Civil Rule No. 144 of 1996 with a prayer that there should be no further extension in respect of the incumbent holding the post of Drugs Controller after expiry of his extended term. Initially mere was an interim order dated 17.1.96 that there should be no extension without the leave of the Court. The State Govt. filed an application for permission to further extend the term of Shri Deb Roy and this Court by order dated 30.1.96 allowed the State Govt. to give extension to Shri Deb Roy for a period of two months. However, Shri Deb Roy did not accept the said extension for two months and resigned with effect from 20.2.96. By order dated 20.2.96 the State Govt. permitted the Director of Health Services to hold additional charge of the post of Drugs Controller. Shri Gogoi submitted a representation to the State Govt. on 15.12.95 stating that as he had been appointed as a Govt. Analyst by order dated 26.10.95 he was now eligible for consideration for promotion to the post of Drugs Controller and the Govt. should take steps for his promotion to the post of said Drugs Controller. It was at this stage the Association of Inspectors of Drugs instituted Civil Rule No.444 of 1996 challenging the order dated 26.10.95 on the ground, inter alia, that Shri Gogoi is not eligible under Rule 44 of the Central Rules for appointment to the post of Govt. Analyst. 6. During pendency of this Civil Rule No.444 of 1996 Shri Gogoi filed Civil Rule 1563 of 1996 challenging the validity of the Assam Service Rules, inter alia, on the ground that the said rules do not provide avenues of promotion to the post, of Drugs Controller from Govt. Analyst and Govt. Analyst. 6. During pendency of this Civil Rule No.444 of 1996 Shri Gogoi filed Civil Rule 1563 of 1996 challenging the validity of the Assam Service Rules, inter alia, on the ground that the said rules do not provide avenues of promotion to the post, of Drugs Controller from Govt. Analyst and Govt. Analyst being an eligible class in view of the provisions contained in the Drugs and Cosmetics Act, 1940 for being considered for promotion to the post of Drugs Controller, the Assam Rules are liable to be struck down on ground of violation of Article 14 and 16 of the Constitution. 7. While entertaining the said Civil Rule No. 1563 of 1996 this Court passed an interim order on 28.3.96 directing that no promotion to the post of Drugs Controller shall be made under the Assam Service Rules. Thereafter Civil Rule No. 1563 of 1996 being allowed by judgment and order dated 7.9.96. no regular promotion to the post of Drugs Controller has been made and the Director of Health Services continues to hold additional charge of the said post since 20.2.96. Learned counsel appearing for the appellant at the very outset challenged the maintainability of the petition on the point of locus standi of Shri Gogoi to institute Civil Rule No. 1563 of 1996. A bare reading of the order dated 26.10.95 would go to show that Shri Gogoi is a Drugs Analyst allowed to discharge the function of the Govt. Analyst. Shri Gogoi is not holding the post of Govt. Analyst on substantive basis. Shri Gogoi is also not eligible for appointment as Govt. Analyst inasmuch as he does not have the requisite 3 years experience of testing of drugs as required under "Rule 44. 8. Let us have look at the pleaded case of Shri Gogoi. The foundation of his claim and case is based on his appointment as a Govt. Analyst vide notification dated5.4.93 and 26.10.95, Annexures 6 and7 as filed by him. 8. Let us have look at the pleaded case of Shri Gogoi. The foundation of his claim and case is based on his appointment as a Govt. Analyst vide notification dated5.4.93 and 26.10.95, Annexures 6 and7 as filed by him. They are reproduced hereunder for ready reference : "Orders by the Governor of Assam Health & Family Welfare (A) Department NOTIFICATION Dated 26.10.95 No.HLA.321/93/17 : The Governor of Assam in exercise of powers conferred by sub-section (i) of section 20 of the Drugs and Cosmetics Act, 1940 (Central Act 23 of 1940) Governor of Assam is pleased to allow Shri PJ Gogoi, Drugs Analyst Stale Drugs Testing Laboratory, Khanapara, Guwahati - 22 function as Govt. Analyst for the whole of the State of Assam in respect of all classes of Drugs other than those Drugs specific in Rule 3 A of the Drugs and Cosemtics Rules, 1945. Sd/- H. Sonowal, Commissioner & Secretary Health & FW Department. Government of Assam Health & Famuly Welfare (A) Department Order of the Governor NOTIFICATION Dated, Dispur, the 17th August, 1988. No.HLA. 1049/87/50 : In exercise of the powers conferred by sub-section (i) of section 20 of the Drugs & Cosmetics Act, 1940 (Central Act 23 of 1940), the Governor of Assam is pleased to appoint Shri VJ Thomas on contract basis for a period of one year with effect from 17.8.88 on Rs.4000/- PM (lump sum) as Govt. Anafystfor the whole State of Assam in respect of all classes of Drugs & Cosmetics other than those Drugs specified in Rule 3 A of the Drugs & Cosmetics Rules, 1045. Sd/- L. Rynjah, Secretary to the Govt. of Assam, Health & FW (A) Department." 9. The writ petitioner in Civil Rule No. 1563 of 1996 basing his claim on the above notification dated 26.10.95 appointing him as Govt. Analyst and the Central Rules particularly Rule 44 and Rule 50A of the Central Rules has not only contended that he has locus standi to maintain the petition, but also claim entitlement to the post of Drugs Controller. According to him Rule 11 (1) of the Assam Rules, 1994 is ultra vires the Constitution inasmuch as it violates Articles 14 and 16 of the Constitution. Adverting to the notification dated 26.10.95 it would be pertinent to note that the definition of Govt. According to him Rule 11 (1) of the Assam Rules, 1994 is ultra vires the Constitution inasmuch as it violates Articles 14 and 16 of the Constitution. Adverting to the notification dated 26.10.95 it would be pertinent to note that the definition of Govt. Analyst as contained in section 3 (c) of the Act is given as hereunder : "(c) 'Govt Analyst' means - (i) in relation to (Ayurvedic, Siddha or Unani) drugs, a Govt. Analyst appointed by the Central Govt. or a State Govt. under section 33F; and (ii) in relation to any other drug or cosmetic, a Govt. Analyst appointed by the Central Govt. or a State Govt. under section 20." 10. The preliminary objection raised by the learned counsel for the appellant relates to the writ petitioner's locus standi to challenge the vires of Assam Rules as according to him the writ petitioner cannot be said to be a Govt. Analyst duly so appointed under section 20 read with section 3 (c) of the Act. It was argued by Mr. Gogoi, learned counsel for the appellant that a bare reading of the order dated 26.10.95 would go to show that the writ petitioner, is a Drugs Analyst allowed to discharge the function of the Govt. Analyst, he is not holding the post of Govt. Analyst on substantive basis. It was also submitted that he is not even eligible to be appointed as a Govt. Analyst for want of necessary experience. 11. Keeping aside for a while the question of writ petitioner's eligibility for appointment as a Govt. Analyst and considering the notification dated 26.10.95 as it is, does it indicate that the writ petitioner is a Govt. Analyst duly so appointed under the law ? 12. There can be no doubt that the Govt. has the power to create a cadre and the Governor of a State is competent to make rules to regulate the recruitment and conditions of service of persons appointed to public services and posts in connection with the affairs of the State. The power conferred by the proviso to Article 309 is legislative in character. Having regard to the language of the proviso to Article 309. even after the field is occupied by any provisions made by or under an Act. the rules made by the Governor in respect of matters not covered by such provisions made before or after, shall be effective. Having regard to the language of the proviso to Article 309. even after the field is occupied by any provisions made by or under an Act. the rules made by the Governor in respect of matters not covered by such provisions made before or after, shall be effective. 13. The notification dated 26.10.95. Annexure 7 as filed by the writ petitioner reads that the Governor of Assam is pleased to allow Shri P.J. Gogoi, Drugs Analyst State Drugs Testing Laboratory, Khanapara, Guwahati-781 022 to function as Govt. Analyst for the whole of the State of Assam. It is significant to note that the notification does not even mention the word appointed, the submission made by the learned counsel for the appellant cannot be lightly brushed aside. 14. Proceeding on a hypothetical assumption that the writ petitione is eligible for appointment as Govt. Analyst, the question that looms large is, has he been so appointed ? Reading the notification dated 26.10.95, Annexure 7 and section 20 of the Act, together it can not be said that he is a Govt. Analyst within the meaning of section 3 (c) of the Act. Both the above sections use the term 'appoint' and there is no such appointment made by the State Govt, the writ petitioner is merely allowed to function as a Govt. Analyst. His entitlement as claimed and advanced, for being appointed to the post of Drugs Controller stands on quick sand and must therefore necessarily fall. 15. Appointment means an act of appointing designation specifically the designation, designation by virtue of a vested power of a person to enjoy an estate office or right. Appointment means duration designation the selection of a person for an office (see Wharton's Law Lexicon). Appointment obviously refers to appointment to an office. The term appointment therefore implies the conception of tenure, duration, emoluments and duties and obligation fixed by law. 16. Black's Law Dictionary (Sixth Edition) gives the following meaning of the terms 'appoint' and 'appointment'. "Appoint. To designate, choose, select, assign, ordain, prescribe, constitute, or nominate. To allot or set apart. T0 assign authority to a particular use, task, position or office. Appointment. The designation of a person, by the person or persons having authority therefore, to discharge the duties of some office or trust." 17. Have a look at the notification, does it even say that the writ petitioner is appointed Govt. To allot or set apart. T0 assign authority to a particular use, task, position or office. Appointment. The designation of a person, by the person or persons having authority therefore, to discharge the duties of some office or trust." 17. Have a look at the notification, does it even say that the writ petitioner is appointed Govt. Analyst ? He is merely allowed to function as Govt. Analyst. Does it confer any legal right to seek further promotion as Drugs Controller ? 18. The writ petitioner may be highly qualified experienced and even assuming eligible for promotion, but in absence of appointment as a Govt. Analyst taking together all the certificates and testimonials as filed by him they can, be no substitute for a notification of appointment as Govt. Analyst. The notification, Annexure 7 merely allows him to function is Govt. Analyst and does not appoint him as such, it is no notification of appointment, there is an inherent infirmity and there being no valid notification of appointment in the eye of law no consequential rights, stricto sensu would arise. It is this crucial aspect of the matter, which has escaped notice of the learned Single Judge. 19. Prem Singh & others vs. Haryana State Electricity Board, (1996) 4 SCC 319 was brought to our notice, it was a case where a large number of appointment of candidates far in excess of the number of posts advertised were made and candidates selected and appointed had questioned the locus standi of the writ petitioners as all of them except one had taken part in the process of selection without any objection. They had also pointed out that the said one writ petitioner was also not eligible to be considered for the post on the last date was receiving application. The Supreme Court no doubt rejected the contention with respect to locus standi, but while so rejecting the Supreme Court also pointed out that the candidates could not have anticipated when they appeared in the interview that the Selection Committee would recommend candidates and the Board would appoint far in excess of the advertised posts and the petitioner who was not eligible had just grievanced that owing to appointments made far in excess of the posts advertised he was deprived of consideration for appointment against the post which would have become vacant after he acquired eligibility. In the case at hand, we are concerned with one and only one post of Drugs Controller and not any appointment far in excess of the sanctioned vacant available post. It is a case of only one post and on petitioner's own showing his eligibility for consideration entirely depends of his being appointed as a Govt. Analyst. As already discussed above, the notification dated 26.10.95 does not appoint him to the post of Govt. Analyst, it merely allows him to function as such, it is in this view of the matter that he has no locus standi to maintain the case i.e. Civil Rule No. 1563 of 1996. The petition was, therefore, liable to be dismissed on this short ground alone. The learned Single Judge, without considering the nature and legal impact of the notification dated 26.10.95, on an erroneous assumption of both fact and law that in view of the above notification dated 26.10.95, the writ petitioner respondent was appointed as a Govt. Analyst within the meaning of section 3 (c) and section 20 of the Act. By no stress of imagination can he be said to have been duly so appointed, the writ petition ought to have been dismissed. The Writ Appeal No.563 of 1996 therefore, deserves to be allowed, it is accordingly allowed and the impugned judgment of the learned Single Judge allowing Civil Rule No. 1563 of 1995 and questioning the vires of Assam Rules is set aside. Instead writ petitions, namely. Civil Rule Nos.5458 of 1995, 144 of 1996 and 444 of 1996 are allowed! In view of the above conclusions, it is not necessary to go into the question of requisite experience as a condition of eligibility, the scope of service rules framed under Article 309 of the Constitution, the alleged repugnancy as sought to be made out by the writ petitioner respondents are not necessarily required to go into as Writ Appeal No.563 of 1996 stands allowed on the above ground.