सं Samvidhan

The Constitution of India

Article 309

Recruitment and conditions of service of persons serving the Union or a State

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v. Padmanabhachar, the Supreme Court clarified that executive rules made under the proviso remain valid only until superseded by legislation, and such rules cannot violate fundamental rights or other constitutional provisions.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.