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3. Here it may be noted that in view of the objection taken by the accused in that case, the Government of Andhra Pradesh, issued G. O. Ms. No. 1152 Municipal Administration dated 24th Oct., 1981, redesignating the post of Court Inspector as Assistant Public Prosecutor with immediate effect under Sub-sections (4) and (5) of Section 137 of the Hyderabad Municipal Corporation Act, as subsequently amended. In the same G. O, a notification was issued, which was published in the Andhra Pradesh Gazette appointing the 2nd respondent as Assistant Public Prosecutor under Section 25 (1) of the Cr. P.C. 1973, for the purpose of cases tried in any Criminal Court situated within the municipal limits of Hyderabad and Secunderabad in respect of offences punishable under the provisions of the Hyderabad Municipal Corporation Act, 1955 and the rules and bye-laws made thereunder. On 2nd Nov., 1981 the Special Officer, Municipal Corporation of Hyderabad, has appointed the 2nd respondent as the Assistant Public Prosecutor of Municipal Corporation of Hyderabad to conduct all cases in respect of the offences punishable under the provisions of the Hyderabad Municipal Corporation Act, 1955 and the rules and bye-laws made thereunder in the Court of the VII Metropolitan Magistrate, Hyderabad. The petitioner, Sri K. Tirupati, an advocate, has filed this writ petition for a quo warranto under Article 226 of the Constitution questioning the appointment of the 2nd respondent as Assistant Public Prosecutor.

6. There is no dispute about the facts. The 2nd respondent was an employee of the Municipal Corporation of Hyderabad. He was working as a Lower Division Clerk. He is a Law graduate. He was promoted as a Court Inspector which post was subsequently redesignated as Assistant Public Prosecutor. He was appointed under Sub-sections (4) and (5) of Section 137 of the Hyderabad Municipal Corporation Act, which provides for appointment of officers and servants of the Corporation. Under Sub-sections (4) and (5) of that section, the Government of Andhra Pradesh, redesignated the post of Court Inspector as Assistant Public Prosecutor and issued a notification under Section 25 (1) of the Cr. P.C. 1973, appointing the 2nd respondent as Assistant Public Prosecutor to conduct cases arising under the Hyderabad Municipal Corporation Act and the rules and bye-laws made thereunder. Thus, he is an employee of the Municipal Corporation of Hyderabad and he is governed by the service conditions of the employees of the Municipal Corporation of Hyderabad, He was not appointed under the rules made by the Governor under the proviso to Article 309 of the Constitution-for appointment of Asstt. Public Prosecutors. His appointment is outside these rules. At the same time, he was appointed as Assistant Public Prosecutor by the Government under Section 25 of the Cr. P.C. The question is whether in these circumstances his appointment is invalid?

13. State of Haryana v. Shamsher Jang was relied upon to show that the Government is not competent to alter by means of administrative instruction the conditions of service prescribed by the rules made under Article 309 of the Con-stitution. To the same effect is S. L. Sach-dev V. Union of India AIR 1981 SC 411.

14. I do not see how (these decisions are relevant As stated by me already, no new post has been created. Only the existing post of a Court Inspector is redesignated as Assistant Public Prosecutor and it is a post borne on the cadre of Municipal Corporation. The Government is the sanctioning authority for that post and it has sanctioned it. No rules have been framed for the post under Section 139 read with 585 of the Hyderabad, Municipal Corporation Act. it cannot be disputed that even in the absence of rules a post can be created and recruitment could be made for that post by the State Government in the exercise of its executive power under Article 162 of the Constitution. See B. N. Nagarajan v. State of Mysore and Sant Ram v. State of Rajasthan .

15. Since the 2nd respondent is an employee of the Municipal Corporation of Hyderabad, the rules made by the Government under Article 309 of the Constitution for appointment of Assistant Public Prosecutors do not apply to him. Further, his appointment is limited only to conduct prosecutions for offences arising under the Hyderabad Municipal Corporation Act and it is covered by Section 25 of the Cr. P.C. 1973. He is a law graduate. In fact, he has been conducting prosecutions as a Court Inspector, Because an objection was taken by the accused that he was not appointed as As-istant Public Prosecutor by the Government under Section 25 of the Cr. P.C. the Government issued the notification redesignating the post as Assistant Public Prosecutor and appointing him as Assistant Public Prosecutor under Section 25 of the Cr. P.C. It is common knowledge that under some special enactments like Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act, 1960, Andhra Pradesh Weights and Measures Act, 1958 and the Railway Property (Unlawful Possession) Act, 1966, departmental officials, who are law graduates, are appointed as Assistant Public Prosecutors to conduct prosecutions in cases arising under these enactments. Because the Hyderabad Municipal Corporation has administrative control over the 2nd respondent, I do not think that, on that score, he is disabled from conducting prosecutions in cases arising under the Hyderabad Municipal Corporation Act or that he will not conduct the prosecution fairly and impartially.