Article 162 & 309 of the constitution of india
Ziaur Rahman
(Querist) 15 June 2014
This query is : Resolved
Sirs, my question to the experts is that whether any executive order passed by the chief secretary of a state can override the rules passed under Article 309 of the Constitution of India? For example, if a public servant has been protected by certain service rules framed by the Governor under Article 309, can the same be bypassed by the order of the Chief Secretary or Home Secretary of the State by an executive order said to have been passed under Article 162 but having no legislation sanction and only referring that the Government is of opinion that hence forth such and such procedure would be adopted which are specifically forbidden in the Rule passed under Article 309? Doses any Executive Order of Chief Secretary or Home Secretary requires any sanction of Governor or legislatures without superseding the earlier Rules made under Article 309? Kindly opine
Sudhir Kumar, Advocate
(Expert) 15 June 2014
162. Extent of executive power of State.
Subject to the provisions of this Constitution, the executive power of a State shall extend to the matters with respect to which the Legislature of the State has power to make laws:
Provided that in any matter with respect to which the Legislature of a State and Parliament have power to make laws, the executive power of the State shall be subject to, and limited by, the executive power expressly conferred by this Constitution or by any law made by Parliament upon the Union or authorities thereof.
NOW ANALYSE THE ACRITLCE
Subject to the provisions of this Constitution,
THAT MEANS THE POWER CAN BE EXPERCISED SUBJECT TO THE PROVISIONS OF THE CONSTITUTION
the executive power of a State shall extend to the matters with respect to which the Legislature of the State has power to make laws:
THE POWER ON THE SUBJECTS ON WHICH STATE LEGISLATURE CAN MAKE LAWS. SO THE POWER EXTENDS TO THE SERVICE MATTERS
Provided that in any matter with respect to which the Legislature of a State and Parliament have power to make laws, the executive power of the State shall be subject to, and limited by, the executive power expressly conferred by this Constitution or by any law made by Parliament upon the Union or authorities thereof.
THE POWER SHALL BE EXERCISED SUBJECT TO LAW MADE BY THE LEGISLATURE
Sudhir Kumar, Advocate
(Expert) 15 June 2014
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 1[***] 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.
ANALYSE THE ARTICLE
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:
THE SERVICE CONDITIONS PERSE WILL BE REGULATERD BY THE ACT OF THE LEGISLATURE
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 1[***] 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
THE RULES OF SERVICE CONDITIONS (EXCEPT FOR ARMED FORCES, PARALIMITARY FORCES, PSU/LOCAL BODIES) ARE NOT AS A PRACTICE FRAMED BY LEGISLATURE AND ARE JUST PROMULGATED BY THE PRESIDENT AND GOVERNORS
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.
SO UNTIL OR UNLESS LEGISLATURE HAS MADE ANY LAW THESE RULES ARE STATUTORY AND CANNOT BE OVERRULED BY EXECUTIVE ORDER.
Sudhir Kumar, Advocate
(Expert) 15 June 2014
since you have not stated facts of the case no further views can be expressed.
R.K Nanda
(Expert) 15 June 2014
state full facts.
Dr J C Vashista
(Expert) 16 June 2014
Incomplete information and unspecified query.
Ziaur Rahman
(Querist) 16 June 2014
Much obliged. The problem as advised by some revd. members is that West Bengal Services(CCA) Rules framed under Article 309 of the Constitution specifically forbids the applicability of its provisions on the members of police forces up to the rank of Inspectors of Police, Judiciary and other 2/3 classes vide Rule 2 and says that their matters will be dealt with in accordance with their departmental regulation or rule book. But by an executive order of the Home Secretary the disciplinary proceedings or any other matters up to the rank of Inspectors are being dealt with by the disciplinary authorities under the WB CCA Rules and not under the Police Regulations of the State. The executive order of the Home Secretary says that until the matter is decided by the Government, the disciplinary matters will be continued to be dealt under CCA rules and not under departmental regulations book. My question is that how far this executive order has force of law when the CCA Rules farmed under A/309 have not been repealed. More over can an executive order alter the conditions of the service without the framing of law under Article 309 by simply saying that the Governor is pleased......and without having referring that the G.O is passed as per Article 309 of the Constitution of India? Thanks
Sudhir Kumar, Advocate
(Expert) 16 June 2014
Not clear reading.
Only following could be understood:-
1. WBCCA rules are not applicable to Police non-gaz persons.
2. No rules have been formulated to deal with their cases.
3. executive ordains to give these employees the benefit of WB CCA rules?
Is it correct.
Ziaur Rahman
(Querist) 16 June 2014
No. Police Regulations Bengal assented by the Governor u/a 309 is there to deal with their cases. In West Bengal the rank if Inspector is a Gazetted rank. But the CCA rules exempt them from any punishment or benefits. In such case when PRB is there to deal with their cases, how can the Inspectors be dealt on the strength of an executive order that until the matter is decided by the Government to bring them under CCA rules they will continue to be dealt with under CCA Rules and PRB rules will not be applicable upon them?
Ziaur Rahman
(Querist) 17 June 2014
PRB has its own regulations to deal with the issues in the similar manner as the CCA Rules.My contention is that when a certain act is forbidden under the assent of the Governor in CCA rules, can any executive order over rule that.....I personally believe "NO". But I need the opinion of experts.
Sudhir Kumar, Advocate
(Expert) 18 June 2014
please also consult CCA rules (Applicability clause) do they list police officers upto Insp in that.
Ziaur Rahman
(Querist) 18 June 2014
Thank you, my earlier posts covers the reply what you wanted to know. CCA Rules forbids its applicability on a few categories of Govt. employees which include the Inspectors of Police and all the ranks of police below them.
