The Constitution of India
Article 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.
Why this exists
After independence, India needed a functioning civil service immediately, but Parliament and state legislatures could not instantly pass detailed service laws for every department. Article 309 was designed as a practical bridge: it lets the executive (President/Governor) frame rules to keep administration running, while preserving the legislature's ultimate authority to make comprehensive service laws whenever it chooses.
How courts read it
Courts have consistently held that the proviso's rule-making power is transitional and subordinate to legislative law-making under the main part of Article 309. In cases like B.S. Vadera v. Union of India and State of Mysore v. Padmanabhachar, the Supreme Court clarified that executive rules made under the proviso remain valid only until superseded by legislation, and such rules cannot violate fundamental rights or other constitutional provisions. Courts have also examined the extent to which these rules can affect pension, promotion, and disciplinary matters, generally upholding executive rule-making as a necessary stopgap but subject to constitutional limits.
Common misconceptions
- Myth: Rules made by the President or Governor under Article 309 are permanent and can't be changed.
Fact: These rules are only temporary substitutes; they must give way once the legislature passes an actual law on the subject. - Myth: Article 309 lets the executive make any rule it wants for government employees, with no limits.
Fact: Such rules must still respect other constitutional provisions, including fundamental rights, and are subject to judicial review.