I. THE TEXT OF ARTICLE 309
Article 309 of the Constitution reads:
“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 services 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.”
This provision contains two distinct sources of power. The main body of the Article vests the rule-making power in the appropriate legislature. The proviso vests a separate and independent rule-making power in the President (for Union services) and the Governor (for State services). These two sources are not sequential, they operate concurrently, subject to a hierarchy which the Article itself establishes.
II. THE SCHEME OF ARTICLE 309: MAIN BODY AND PROVISO
The main body of Article 309 confers power on “Acts of the appropriate Legislature” to regulate two things and two things only: (i) recruitment, and (ii) conditions of service.
The phrase “appropriate Legislature” means Parliament in relation to services under the Union and All India Services, and the State Legislature in relation to services under a State. This is a power to legislate, it produces Acts of Parliament or State Legislatures.
The proviso operates independently. It confers power on the President (or persons directed by him) in respect of Union services, and the Governor (or persons directed by him) in respect of State services, to make rules. This power under the proviso is expressly made operative “until provision in that behalf is made by or under an Act of the appropriate Legislature.” Once the legislature makes such provision, the rules under the proviso give way to the legislative Act but only to the extent of the occupation of the field.
The Supreme Court has held that the power under the proviso to Article 309 is in the nature of legislative power, not executive power. It is derived directly from the Constitution, not from any statute, and not from any mandate of the legislature. The source is the Constitution itself. This characterisation carries important consequences, examined below.
B.N. Nagarajan v. State of Mysore, AIR 1966 SC 1942, established that the Central Government can regulate service conditions of Central Government employees even in the absence of rules framed under Article 309, drawing on its executive power.
The Court held that the executive power of the Union is co-extensive with its legislative power under the Constitution. But it also made clear that where rules exist under the proviso, those rules being legislative in character prevail over executive instructions.
III. THE LEGISLATIVE CHARACTER OF RULES MADE UNDER THE PROVISO
The Supreme Court has definitively characterised rules made under the proviso to Article 309 as legislative in nature. This characterisation produces the following established legal consequences:
First, a rule framed under the proviso cannot be questioned on the ground of mala fides or absence of hearing before the rule is made. Because the power is legislative, principles of natural justice do not apply to the rule-making process itself. The same principle applies to rules made under ordinary delegated legislation. Rules under the proviso are at least equivalent, and in many respects superior, in their legal character.
Second, because of their legislative character, such rules bind the State itself equally with the citizens. The State cannot act inconsistently with its own rules under Article 309 simply because the rules were made by the executive arm of the same State.
Third, such rules prevail over executive instructions. Administrative instructions — whether issued by Government circulars, office memoranda, or departmental orders — cannot supersede, modify, or override rules made under the proviso. No superimposition of conditions on such rules is permissible through administrative instructions. This principle is well settled.
Fourth, such rules can be given retrospective operation. Since the power under the proviso is of a plenary legislative nature, which ordinarily includes the power to legislate retrospectively, rules under the proviso can have retrospective effect. However, the Supreme Court has consistently held that retrospective operation will be struck down if there is no reasonable nexus between the rule and the extent of its retrospectivity, or if it prejudicially affects constitutionally protected rights.
Fifth, because the power is constitutional and legislative, it cannot be excluded by agreement. The powers of the Government under Article 309 cannot be fettered by any contract. An employee who enters service on the basis of a contract cannot thereafter rely on the terms of that contract if those terms are inconsistent with the applicable rules.
IV. THE “OCCUPIED FIELD” PRINCIPLE
The proviso expressly states that rules made thereunder shall have effect “subject to the provisions of any such Act” meaning an Act made by the appropriate legislature under the main body of Article 309.
Once the legislature occupies the field by enacting a statute, rules under the proviso must yield to the statute but only to the extent of the occupation. If a statutory Act covers certain aspects of service conditions but leaves others to be governed by rules, the rules continue to operate for those unoccupied aspects.
The critical question in many cases is: what constitutes “occupation of the field”? The Supreme Court has required that there be an actual, operative legislative provision covering the same ground. A statute that merely confers power to make rules without actually making those rules does not by itself occupy the field in a manner that displaces rules already in existence under the proviso.
Where a statute is enacted that covers the same service as a rule made under the proviso, the question whether the statute prevails depends on whether both operate on the same subject matter. If the statute and the rules cover different aspects, there is no conflict, and both can co-exist.
The principle of generalia specialibus non derogant also applies in this area. Special rules framed under a statute governing a particular service will prevail over general rules covering Government servants in general, even when the latter are framed under Article 309 of the Constitution. However, general rules can prevail over special rules if the legislative intention was to bring about uniformity across services.
V. SCOPE OF THE POWER: “RECRUITMENT” AND “CONDITIONS OF SERVICE”
Article 309 confines both the legislative power and the rule-making power under the proviso to two subjects: recruitment and conditions of service. An instrument which does not relate to either recruitment or any condition of service cannot be considered a rule made in exercise of power under Article 309.
“Conditions of service” is a broad expression. It covers pay, allowances, promotion, seniority, transfer, leave, disciplinary rules, retirement, and pension. However, the Supreme Court has held that not every matter touching an employee constitutes a “condition of service.” The connection must be direct and integral to the employment relationship.
The Supreme Court held in one case that a notification providing that certain persons who had been invalidly retired should be deemed to have been validly retired on superannuation was in effect the exercise of a validating power and was neither a rule regulating recruitment nor a condition of service within Article 309. It was therefore not a valid exercise of power under the proviso.
This limitation is important in practice. Departmental orders that do not relate to recruitment or conditions of service cannot claim the protection of Article 309 rules. They remain executive instructions.
VI. THE CONSTRAINT: “SUBJECT TO THE PROVISIONS OF THIS CONSTITUTION”
The opening words of Article 309 — “Subject to the provisions of this Constitution” — make it clear that both legislative Acts made under the main body and rules made under the proviso must conform to the Constitution. Rules framed under the proviso will be void if they transgress fundamental rights. They will equally be void if they are inconsistent with the procedural safeguards in Article 311, which protects civil servants from dismissal, removal, or reduction in rank without following the prescribed procedure.
Several rules framed under the proviso have been struck down by the Supreme Court as unconstitutional for being inconsistent with Article 311. The test applied is whether the legislature was competent to validly enact such a provision — and since the power under the proviso is legislative, this is the correct test to apply to determine its constitutionality.
The rules under the proviso must also conform to Articles 14 and 16. A rule that introduces discrimination in public employment without intelligible differentia and a rational nexus to the object of the rule will be void.
VII. THE FORM OF RULES UNDER THE PROVISO
No particular form is prescribed for rules made under the proviso. The Full Bench of the Bombay High Court laid down — and the Supreme Court has subsequently recognised — that whether a circular, resolution, or government order constitutes a statutory rule under the proviso or merely an executive instruction must be determined by examining four factors: (a) subject-matter, (b) general applicability, (c) form and formalities, if any, and (d) publication.
The absence of an express reference to Article 309 as the source of power does not by itself mean that an instrument is not a rule under the proviso. Conversely, a mere reference to Article 309 does not elevate an instrument to the status of a statutory rule.
On publication, the requirement is that there must be some form of promulgation or publication that makes the rules known to those likely to be affected. There is no requirement that publication must be in the Official Gazette. Non-publication in the Gazette does not by itself exclude the operation of Article 309. However, some public notification in a form accessible to those affected is essential. A circular that was not made available to the concerned persons cannot operate as a statutory rule.
VIII. DELEGATED RULE-MAKING UNDER ARTICLE 309
The proviso authorises the President and Governor to direct “such person as he may direct” to exercise the rule-making power. This constitutes a valid delegation of the rule-making power. Rules made by such designated authorities carry the same legal force as rules made by the President or Governor directly.
The power to make rules is exercisable “from time to time” — meaning it is not exhausted by one exercise. Rules can be made, amended, and re-made as circumstances require. The amendment of rules made under Article 309 does not require fresh constitutional authority — the original grant of power under the proviso is sufficient.
However, a rule cannot be altered by an authority lower in rank than the original rule-making authority. The instrument of change must be of the same character as the instrument being changed. A statutory rule can only be changed by a statutory rule, and an administrative instruction can only be changed by an administrative instruction.
IX. THE RELATIONSHIP BETWEEN ARTICLE 309 RULES AND STATUTORY RULES MADE UNDER OTHER LEGISLATION
This is an area where the legal position is not entirely settled. One view — taken by a learned Single Judge of the Karnataka High Court — is that in the case of repugnancy between rules framed under Article 309 and those under ordinary statutory power, the former will prevail, given that the Article 309 rule has direct constitutional origin. However, the Supreme Court in a 1994 ruling appears to have proceeded on the assumption that no such inherent superiority exists, and the question must be resolved on the basis of the specific legislative intent and whether one set of rules is special and the other general.
The more reliable principle is that of the occupied field. If a statute occupies the field, it prevails. If it does not, the rules under Article 309 continue to operate. The hierarchy is not simply constitutional versus statutory — it is determined by the extent of occupation of the subject matter.
X. THE POSITION WHERE NO RULES EXIST
Where no rules have been framed under Article 309, the Government is not left without authority. The Supreme Court in Ram Jawaya Kapur v. State of Punjab, AIR 1955 SC 549, held that the executive Government is not required to wait for legislation or rules before functioning — the executive power extends to every matter on which Parliament or the State Legislature could legislate, as long as it does not conflict with any existing law or constitutional provision.
This was applied in service law in B.N. Nagarajan to hold that in the absence of rules under Article 309, the Government could regulate service conditions through executive instructions. Recruitment made through executive instructions in the absence of rules is not therefore void — as long as the instructions do not conflict with existing statutory provisions or constitutional guarantees.
However, once rules are framed under Article 309, executive instructions cannot operate in the field covered by those rules. The rules occupy that field and executive instructions are subordinate to them.
XI. THE HIERARCHY OF SOURCES: A STRUCTURED MAP
The following hierarchy emerges from the settled legal position:
First level — The Constitution itself (Articles 309, 310, 311, 14, 16, 19, 21, 311). All other sources must conform to this level.
Second level — Parliamentary Acts and State Legislative Acts made under the main body of Article 309. These override rules made under the proviso to the extent of their coverage.
Third level — Rules made under the proviso to Article 309 by the President or Governor (or persons directed by them). These are legislative in character, bind the State, prevail over executive instructions, and cannot be overridden by administrative action.
Fourth level — Statutory rules and regulations made under other Central or State Acts (for example, rules made under the All India Services Act, 1951; rules made under various Department-specific statutes). Where these cover the same field as Article 309 rules, the principle of special versus general rules, and the occupied field doctrine, determines which prevails.
Fifth level — Executive instructions, office memoranda, circulars, and administrative orders. These cannot override rules at the third or fourth level. They can, however, fill gaps where no rules exist, and they bind the government as a matter of fair and good administration — particularly where employees have acted on them and rights have accrued.
Sixth level — Draft rules which have been administratively implemented. The Supreme Court has recognised that where the Government has a clear intention to enforce draft rules and has proceeded to implement them, they acquire an operational force — though their legal status is inferior to rules formally framed and published.
XII. APPLICABILITY: TO WHOM DOES ARTICLE 309 APPLY?
Article 309 applies to persons appointed to “public services and posts in connection with the affairs of the Union or of any State.” The following categories are covered:
— Members of the All India Services (IAS, IPS, IFS)
— Members of Central Civil Services
— Members of State Civil Services
— Persons holding civil posts under the Union or a State
The following categories are outside the scope of Article 309:
— Members of the Defence Services. Rules under Article 309 do not apply to defence personnel.
— Employees of statutory corporations and Government companies (who are not Government servants, though they may be State within the meaning of Article 12).
— Persons employed in private-sector establishments, even if those establishments are substantially funded by the State, unless those persons hold civil posts under the Union or State.
The Supreme Court has consistently held that statutory provisions governing recruitment and recruitment rules under statute or Article 309 are inviolable. The constitutional scheme of Articles 14, 16 and 309 must be strictly complied with. Regularisation of appointments made in violation of these provisions has been firmly rejected.
XIII. ARTICLE 313: THE TRANSITIONAL PROVISION
Article 313 provides that until provision is made under the Constitution, all laws in force immediately before the commencement of the Constitution applicable to any public service or post which continues to exist shall continue in force so far as consistent with the provisions of the Constitution.
By reason of Article 313, service rules framed under the Government of India Acts of 1910 and 1935 continued in force after the Constitution came into effect. They were treated as rules made under Article 309, subject to constitutional conformity. Many of the Central Civil Services Rules and Fundamental Rules that were in operation in 1950 derived their continued validity from Article 313 and were subsequently treated as rules under the proviso to Article 309.
XIV. RECURRING ISSUES IN PRACTICE AND LITIGATION
Amendment mid-process: Where recruitment rules are amended after an advertisement has been issued but before selection is complete, the question is whether the process must continue under the old rules or must conform to the amended rules. The Supreme Court has held that where neither the advertisement was issued nor the selection process was started prior to the amendment, the amended rules apply. Where the process was underway, the position turns on the specific terms of the amendment and any savings clause.
Retrospective amendment and accrued rights: Recruitment rules framed under Article 309 may alter terms and conditions of service retrospectively only if they expressly say so. In the absence of specific indication, retrospectivity cannot be read into the rules. Even where retrospectivity is permissible, an amendment cannot prejudicially affect accrued constitutional rights.
Conflict between Central and State rules: Where a Central Government employee works in a State and there is a conflict between State service rules and Central Government rules, the Central rules prevail for matters concerning conditions of service of Central Government servants. For persons holding dual jurisdiction, the question is determined by which Government ultimately controls the conditions of the post in question.
Power to relax rules: Where a rule made under Article 309 contains a power of relaxation — allowing the rule-making authority to relax the rule in specified circumstances — such relaxation is itself a statutory act. The relaxation power must be exercised by the authority specified in the rule, and its exercise is subject to judicial review on grounds of arbitrariness and non-application of mind.
Chapter 1 of 100 — Legal Sandook Service Law Masterclass
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