The Governor has the power to make rules under Article 309 of the Constitution, and that the rules made under Article 309 are not subject to the rules made under an Act of the Legislature.

1. - This case has been referred by learned single Judge for decision by a full Bench as the case involved interpretation of Article 309 of the Constitution of India. The writ petition as a whole has been referred to the full Bench and as such apart from the legal question raised in the case, the entire writ petition has to be decided on merits.

2. The Government in exercise of powers conferred by sub-section (1) of Section 79 read with Section 26 of the Rajasthan Panchayat Samitis and "Lila Parishad Act, 1959 (hereinafter referred to as "the Act"), had framed Rajasthan Panchyat Samiti (Selection of Vikas Adhikaris) Rules, 1968 (hereinafter referred to as 'the Rules of 1968"). According to these rules Vikas Adhikaris were to be recruited from the members of -

(a) Rajasthan Animal Husbandry Service Group C. II.

(b) Rajasthan Agriculture Subordinate Service

(c) Non R.A.S.

3. The Governor in exercise of its powers conferred under Article 309 of the Constitution of India framed the Rajasthan Civil Services (Special Selection & Special Conditions of Service of Vikas Adhikaris) Rules, 1982 which came into force on October 18, 1982 (hereinafter referred to as 'the Rules of 1982"). Rule 18 of the Rules of 1982 provided that all rules and orders in relation to matter covered by these rules and in force immediately before the commencement of these rules are hereby repealed.

Provided that any order made or action taken under the rules and orders so repealed shall be deemed to have been made and taken under the provisions of these rules.

4. Thus, the effect of coning into force of these rules of 1982 is that the rules of 1968 have been repealed. The first Controversy thus which, calls for determination in this case is whether the Governor in exercise of its power under Article 309 of the Constitution can repeal the rules made by the State Government in exercise of powers conferred by sub-section (1) of Section 79 read with Section 26 of the Act. Article 309 of the Constitution of India reads as follows:-

"Art. 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 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 Government 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."
The Governor under the proviso to Article 309 of the Constitution is empowered to make rules regulating the recruitment, and the conditions of service of persons appointed to services and posts in connection with the affairs of a State. The main part of Article 309 of the Constitution lays down that subject to the provisions of this Constitution, the Legislature may itself 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 by appropriate Acts. Thus, the appropriate Legislatures are given the function to make Acts for regulate the recruitment and conditions of Public Services and posts and the proviso further empower, the Governor to make such rules but it is subject to the condition that 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. First point to be conside