Article 309 of the Constitution of India: Powers, Scope, and Judicial Interpretation in Public Service Governance

Introduction

Article 309 of the Constitution of India, enshrined in Part XIV, plays a pivotal role in the governance of public services under the Union and the States. It empowers the appropriate Legislature to regulate the recruitment and conditions of service of persons appointed to public services and posts. The proviso to Article 309 further confers power upon the President or the Governor, as the case may be, to make rules in this regard until the Legislature enacts such laws. This article seeks to provide a comprehensive analysis of Article 309, examining its textual provisions, its interplay with other constitutional articles, the scope of powers it confers, and the significant judicial interpretations that have shaped its application in Indian administrative law. The analysis draws extensively upon the provided reference materials, including landmark judgments of the Supreme Court of India and various High Courts.

Understanding Article 309: Text and Scope

Article 309 of the Constitution of India reads as follows:

“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 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.” (State Of U.P. Through Principal Secretary, Home & Others v. Rajendra Singh & Another, Allahabad High Court, 2015; The Goa Judicial Officers' Association v. The State Of Goa & Others, Bombay High Court, 1995).

The Supreme Court in AURELIANO FERNANDES v. STATE OF GOA (2023) clarified that Article 309 itself does not provide for recruitment or conditions of service but confers this power on the appropriate legislature and the executive. The expression “conditions of service” is comprehensive, encompassing all conditions regulating the holding of a post from entry into service until retirement and even post-retirement matters like pension and pending disciplinary proceedings. This includes the right to dismiss such a person from service ((1970) 1 SCC 108, as cited in AURELIANO FERNANDES v. STATE OF GOA, 2023).

Legislative Power versus Rule-Making Power under Article 309

Article 309 delineates a two-tiered system for regulating public services. Primarily, the power rests with the "appropriate Legislature" (Parliament or State Legislature) to enact laws. The proviso to Article 309 grants a concurrent, albeit transitional, power to the President or the Governor (or their delegates) to make rules. These rules remain operative "until provision in that behalf is made by or under an Act of the appropriate Legislature under this article." Crucially, "any rules so made shall have effect subject to the provisions of any such Act." This establishes the supremacy of legislative enactments over rules framed under the proviso (Article 309, Constitution of India).

The rules framed under the proviso to Article 309 are legislative in character and have statutory force. They are binding on the government and the public servants alike. As held in Tapiyar Moyong And Ors. v. State Of Arunachal Pradesh And Ors. (Gauhati High Court, 2015), if rules have been made under Article 309, the Government can make appointments only in accordance with these rules, and government orders, notifications, or circulars cannot substitute for such statutory rules.

Interplay with Other Constitutional Provisions

The operation of Article 309 is explicitly "subject to the provisions of this Constitution." This makes its scope and application subservient to other constitutional mandates, particularly those concerning the pleasure doctrine, safeguards for civil servants, and fundamental rights.

Article 310: The Doctrine of Pleasure

Article 310 stipulates that public servants hold office during the pleasure of the President or the Governor, as the case may be. The Supreme Court in State Of Himachal Pradesh And Others (S) v. Raj Kumar And Others (S) (2022) clarified that Article 309 does not lay down any express provision derogating from the amplitude of the exercise of pleasure under Article 310(1). Thus, Article 309 is subject to Article 310(1), and any rule framed under Article 309 restricting the exercise of pleasure, unless it is an express constitutional provision itself, would be unconstitutional. This principle was also discussed in State Of U.P And Others v. Babu Ram Upadhya (1961) and Shyam Behari Tewari And Others v. Union Of India And Another Opposite Parties (Gauhati High Court, 1963), which affirmed that laws regulating conditions of service can be made without affecting the powers of the President or Governor under Article 310 read with Article 311.

Article 311: Safeguards for Civil Servants

Article 311 provides crucial safeguards to civil servants against arbitrary dismissal, removal, or reduction in rank. Any Act or Rule made under Article 309 that violates the rights guaranteed under Article 311 would be void (AURELIANO FERNANDES v. STATE OF GOA, 2023, citing (1964) 5 SCR 683). The rules framed under Article 309 must conform to the restrictions laid down in clauses (1) and (2) of Article 311 concerning the dismissing authority and the procedure for dismissal, removal, or reduction in rank (State Of Himachal Pradesh And Others (S) v. Raj Kumar And Others (S), 2022). The case of State Of U.P And Others v. Babu Ram Upadhya (1961), while dealing with Police Regulations, highlighted the mandatory nature of procedural safeguards, which are often intertwined with rules governing service conditions and disciplinary actions, implicitly linking to the framework of Article 309 and 311.

Fundamental Rights (Part III)

Rules framed under Article 309 must not contravene the fundamental rights guaranteed under Part III of the Constitution (AURELIANO FERNANDES v. STATE OF GOA, 2023). For instance, in T.R Kapur And Others v. State Of Haryana And Others (1986), the Supreme Court struck down a retrospective amendment to service rules (framed under Art. 309) that adversely affected vested rights to promotion, holding it to be violative of Articles 14 and 16(1) of the Constitution. Similarly, in K. Nagaraj And Others v. State Of Andhra Pradesh And Another (1985), while upholding the reduction of retirement age, the Court examined the challenge on grounds of arbitrariness under Article 14.

Article 235: Control over Subordinate Judiciary

In the context of the judicial services, Article 309 interacts with Article 235, which vests control over subordinate courts in the High Court. In B.S Yadav And Others v. State Of Haryana And Others (1981), the Supreme Court clarified that the Governor's power under the proviso to Article 309 to frame rules regulating recruitment and conditions of service (including seniority) of judicial officers is paramount. The High Court's control under Article 235 does not extend to making rules that regulate seniority, which is a condition of service governed by rules under Article 309.

Article 318: Public Service Commission Staff

The Kerala High Court in Thankappan Pillai And Another v. The State Of Kerala And Others (S) (1975) drew a distinction between Article 309 and Article 318. It opined that while Article 318 empowers the Governor to make regulations regarding the conditions of service of the staff of the Public Service Commission, matters relating to their recruitment would continue to be governed by Article 309, unless Article 318 regulations specifically adopt or refer to Article 309 rules for conditions of service.

Key Judicial Interpretations and Principles

The judiciary has played a significant role in interpreting the scope and limitations of Article 309. Several key principles have emerged from landmark decisions:

Statutory Force of Rules and Supremacy over Executive Instructions

Rules made under Article 309 are statutory in nature and have the force of law. They cannot be amended, superseded, or overridden by executive instructions, circulars, or administrative orders. This principle has been consistently upheld by the Supreme Court in cases like Mallikarjuna Rao And Others v. State Of Andhra Pradesh And Others (1990) and Ajaya Kumar Das v. State Of Orissa And Others (2011). In the latter case, the Court held that the Orissa Service Code, framed under Article 309, could not be tinkered with by administrative circulars, especially if it resulted in a reduction of pay for an employee on promotion. This was reiterated by High Courts in Tapiyar Moyong And Ors. v. State Of Arunachal Pradesh And Ors. (Gauhati High Court, 2015) and Mahendra Singh… v. State Of M.P And Others… (Madhya Pradesh High Court, 2015).

Retrospective Amendments and Vested Rights

While the power to frame rules under Article 309 includes the power to amend them, retrospective amendments that adversely affect the vested rights of employees are generally disfavored and may be struck down as unconstitutional. In T.R Kapur And Others v. State Of Haryana And Others (1986), the Supreme Court invalidated a retrospective amendment to service rules that altered promotion eligibility criteria to the detriment of existing employees, holding it to be violative of Articles 14 and 16 and also procedurally flawed for want of Central Government approval under the Punjab Reorganisation Act, 1966. The Court emphasized that rules affecting promotion are conditions of service and cannot be altered retrospectively to an employee's disadvantage without adhering to constitutional and statutory mandates.

Regulation of Various Service Conditions

The term "conditions of service" under Article 309 is construed broadly. It includes matters such as recruitment (G. Govindaraju, Junior Engineer Mysore P.W.D Bangalore And Others, v. State Of Mysore And Others, Karnataka High Court, 1962; A.K Bhatnagar And Others v. Union Of India And Others, 1990), promotion (P.U Joshi And Others v. Accountant General, Ahmedabad And Others, 2003; T.R Kapur And Others v. State Of Haryana And Others, 1986), seniority (B.S Yadav And Others v. State Of Haryana And Others, 1981; Direct Recruit Class Ii Engineering Officers' Association v. State Of Maharashtra And Others, 1990), pay (Ajaya Kumar Das v. State Of Orissa And Others, 2011), and retirement age (K. Nagaraj And Others v. State Of Andhra Pradesh And Another, 1985). In P.U Joshi, the Court recognized that restructuring of cadres and promotion mechanisms fall within administrative discretion, provided statutory rules (often made under Art. 309) are followed.

Requirement of Rules and Regularization

Appointments to public services must be made in accordance with the rules framed under Article 309 (Tapiyar Moyong And Ors. v. State Of Arunachal Pradesh And Ors., Gauhati High Court, 2015). Regularization of ad hoc or temporary employees cannot be done in contravention of these rules (Sanjay Kumar Singh And Others v. State Of U.P And Others, Allahabad High Court, 2000, citing B.N. Nagrajan v. State of Karnataka). However, rules themselves can be amended to provide for regularization, as seen in A.K Bhatnagar And Others v. Union Of India And Others (1990), where the Central Information Service Rules, 1959 (framed under Art. 309) were amended to regularize certain ad hoc employees.

Relaxation of Rules

Rules framed under Article 309 may themselves contain provisions for their relaxation in specific circumstances. The power to relax rules must be exercised by the competent authority strictly in accordance with the conditions stipulated for such relaxation, typically for reasons to be recorded in writing and in the public interest (ASHOK KUMAR v. M/O DEFENCE, CAT, 2021).

Scope of Judicial Review

While courts will enforce compliance with rules framed under Article 309 and ensure they are consistent with the Constitution, they generally refrain from interfering in policy matters that fall within the executive's domain. In K. Nagaraj And Others v. State Of Andhra Pradesh And Another (1985), the Supreme Court upheld the government's policy decision to reduce the age of retirement, stating that such policy determinations should remain within the executive's domain unless wholly unreasonable or lacking any rational basis. Similarly, in Mallikarjuna Rao And Others v. State Of Andhra Pradesh And Others (1990), the Court observed that it is not for High Courts or Administrative Tribunals to issue directions or advisory sermons to the executive in respect of spheres exclusively within the domain of the executive under the Constitution, such as the framing of rules under Article 309.

Specific Applications and Contexts

Defence Services

Article 309, along with Articles 310 and 311, applies to persons serving in connection with the affairs of the Union, which includes defence services (Union Of India And Others v. Major S.P Sharma And Others, Supreme Court Of India, 2014). However, the applicability and nature of rules, such as Army Instructions, vis-à-vis Article 309 have been subject to judicial scrutiny. For instance, Gaya Prasad Pandey And Anr.… v. The State Of Bihar And Ors.… (Patna High Court, 1972) discussed whether certain Army Instructions could be considered rules under Article 309, distinguishing them from specific rules like the Civilians in Defence Services (Classification, Control and Appeal) Rules, 1952, which were considered to be framed under constitutional powers.

Non-Applicability to Private Aided Institutions

Rules framed under Article 309 of the Constitution are generally not applicable to employees of private aided educational institutions. In S. Mohamood Basha Petitioner v. The Director Of Collegiate Education (Madras High Court, 2002), it was held that Rule 12A of the Tamil Nadu State and Subordinate Service Rules (framed under Art. 309) could not be applied to lecturers in aided colleges, as their service conditions and qualifications were governed by the specific Act regulating private colleges and the regulations made by the University thereunder.

Jurisdiction of Administrative Tribunals

Grievances of government servants relating to conditions of service, often governed by rules under Article 309, are typically adjudicated by Administrative Tribunals established under the Administrative Tribunals Act, 1985. The Karnataka High Court in B G JAGANNATH v. THE CHIEF SECRETARY (2019), citing L. Chandra Kumar v. Union of India, reiterated that grievances of government servants holding civil posts governed by rules under Article 309 should be agitated before the appropriate Tribunal.

Conclusion

Article 309 of the Constitution of India serves as the bedrock for the legal framework governing public employment under the Union and the States. It provides a flexible mechanism, through legislative enactments and executive rule-making, to regulate the myriad aspects of recruitment and conditions of service. The judiciary, through its interpretative role, has ensured that the powers conferred by Article 309 are exercised in consonance with other constitutional provisions, particularly the doctrine of pleasure (Article 310), safeguards for civil servants (Article 311), and fundamental rights. The consistent affirmation that rules framed under Article 309 have statutory force and cannot be arbitrarily overridden by executive fiats underscores the commitment to the rule of law in public administration. While granting considerable latitude to the government in policy matters, the courts have intervened to protect vested rights against unreasonable retrospective amendments and to ensure fairness and adherence to due process. Article 309 thus continues to be a dynamic provision, balancing administrative exigencies with the rights and legitimate expectations of public servants, thereby contributing to the stability and efficacy of public services in India.