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Power of the Governor under the proviso to Article 309 - Main points and insights:
The power conferred on the Governor by the proviso to Article 309 is of a legislative character, similar to the power exercised by the legislature, and is not merely executive ["A. B. Krishna VS State of Karnataka - Supreme Court"], ["Kirba Lomi VS State of A. P. - Gauhati"], ["OMVIR SHARMA VS STATE OF U. P. - Allahabad"], ["Y. Markandeyudu VS Government Of A. P. represented by its Secretary to Government, Finance and Planning Department, Hyderabad - Andhra Pradesh"], ["Soloman Raju and Suryanarayana VS Accountant General, A. P. - Andhra Pradesh"].
The power allows the Governor to make rules regulating service conditions when no principal legislation exists; however, once a law or principal enactment is in place, the Governor cannot amend or repeal it solely under the proviso ["Rajmal Mehta VS State of Rajasthan - Rajasthan"], ["STATE OF UTTAR PRADESH VS SHAKUNTALA SHUKLA, S. I. , POLICE - Allahabad"], ["Om Prakash Tiwari VS State Of U. P. - Allahabad"].
Rules made under this power are of a legislative nature, capable of being amended or repealed by the legislature, and can be challenged only if they violate the Constitution ["Meghalaya Government Press Industrial Employees Association VS State of Meghalaya - Gauhati"], ["Y. Markandeyudu VS Government Of A. P. represented by its Secretary to Government, Finance and Planning Department, Hyderabad - Andhra Pradesh"].
The power to make rules includes the authority to amend rules retrospectively, but such amendments must adhere to constitutional limits; rules cannot be made to give retrospective effect if principal legislation already exists ["Om Prakash Tiwari VS State Of U. P. - Allahabad"], ["Govindappa Tirkappa Hirakeri VS Inspector General of Registration - Karnataka"].
The power is distinct from ordinary rule-making; it is a plenary legislative power that can be exercised during the legislature's recess, substituting for legislative authority temporarily ["Kirba Lomi VS State of A. P. - Gauhati"], ["OMVIR SHARMA VS STATE OF U. P. - Allahabad"].
The exercise of this power is subject to constitutional provisions; rules made can be struck down if they violate constitutional principles, but generally, they are protected unless challenged on grounds like mala fides or extraneous considerations ["Meghalaya Government Press Industrial Employees Association VS State of Meghalaya - Gauhati"].
The power is not equivalent to sovereign legislative authority but is of a legislative nature, enabling the Governor to enact rules in the absence of the legislature ["K. Vishwanatham VS State Of A. P. - Andhra Pradesh"], ["Y. Markandeyudu VS Government Of A. P. represented by its Secretary to Government, Finance and Planning Department, Hyderabad - Andhra Pradesh"].
Analysis and Conclusion:
The initial rule made by the Governor under the proviso to Article 309 can be later changed or revoked by the Governor exercising the same legislative power, as the power is inherently legislative and not purely executive ["A. B. Krishna VS State of Karnataka - Supreme Court"], ["Kirba Lomi VS State of A. P. - Gauhati"].
When the Governor changes or amends rules under the proviso to Article 309, he is exercising a legislative function, and such changes are valid unless challenged on constitutional grounds, such as violating principles of fairness or exceeding constitutional limits ["Meghalaya Government Press Industrial Employees Association VS State of Meghalaya - Gauhati"], ["G. GOVINDARAJU, JUNIOR ENGINEER MYSORE P. W. D VS STATE OF MYSORE - Karnataka"].
The distinction between making initial rules and later amendments is recognized, with amendments being valid if they follow constitutional procedures and do not conflict with existing laws ["OMVIR SHARMA VS STATE OF U. P. - Allahabad"], ["Om Prakash Tiwari VS State Of U. P. - Allahabad"].
Overall, the Governor's power under the proviso to Article 309 is of a legislative nature, allowing him to make, amend, or revoke rules related to service conditions, provided constitutional principles are maintained ["Rajmal Mehta VS State of Rajasthan - Rajasthan"], ["Soloman Raju and Suryanarayana VS Accountant General, A. P. - Andhra Pradesh"].

References:- ["A. B. Krishna VS State of Karnataka - Supreme Court"]- ["Rajmal Mehta VS State of Rajasthan - Rajasthan"]- ["Kirba Lomi VS State of A. P. - Gauhati"]- ["Meghalaya Government Press Industrial Employees Association VS State of Meghalaya - Gauhati"]- ["K. Vishwanatham VS State Of A. P. - Andhra Pradesh"]- ["Y. Markandeyudu VS Government Of A. P. represented by its Secretary to Government, Finance and Planning Department, Hyderabad - Andhra Pradesh"]- ["G. GOVINDARAJU, JUNIOR ENGINEER MYSORE P. W. D VS STATE OF MYSORE - Karnataka"]- ["OMVIR SHARMA VS STATE OF U. P. - Allahabad"]- ["Om Prakash Tiwari VS State Of U. P. - Allahabad"]- ["STATE OF UTTAR PRADESH VS SHAKUNTALA SHUKLA, S. I. , POLICE - Allahabad"]- ["Soloman Raju and Suryanarayana VS Accountant General, A. P. - Andhra Pradesh"]

Can Governor Amend Rules Under Article 309 Proviso?

In the realm of Indian constitutional law, the power of the Governor to frame rules regulating recruitment and conditions of service for civil servants under the proviso to Article 309 is a critical aspect. But what happens when the Governor, having exercised this power once, seeks to amend or change those very rules later? This question often arises in service matters: Governor has made a rule under proviso to Article 309, later he changes the same under power of proviso to Article 309.

This blog post delves into the legal validity of such amendments, drawing from Supreme Court precedents and constitutional principles. While this provides general insights, it is not legal advice—consult a qualified lawyer for specific cases.

Nature of Power Under the Proviso to Article 309

The proviso to Article 309 empowers the Governor (or President, as applicable) to make rules until the legislature enacts a law on the subject. This power is distinctly legislative in character, not executive. Courts have consistently held that it resembles plenary legislative authority within constitutional bounds. B. S. Yadav: Pritpal Singh VS State Of Haryana: State Of Punjab - 1980 0 Supreme(SC) 471 Surjit Singh VS State Of Punjab - 1983 0 Supreme(SC) 146

For instance, the Supreme Court in B.S. Vadera v. Union of India (AIR 1969 SC 118) clarified that rules under this proviso are transitional, filling a legislative vacuum temporarily. B. S. Yadav: Pritpal Singh VS State Of Haryana: State Of Punjab - 1980 0 Supreme(SC) 471 Once framed, they operate like subordinate legislation but carry legislative weight. B. S. YADAV VS State Of Haryana - 1980 Supreme(SC) 468 As noted, the power which the Constitution has conferred on the Governor by the proviso to Article 309 is a legislative and not an executive power. B. S. YADAV VS State Of Haryana - 1980 Supreme(SC) 468

This legislative nature distinguishes it from routine executive actions under Article 166, allowing for broader scope, including retrospective amendments. R. S. Jadhav & others VS State of Maharashtra & others - 1990 Supreme(Bom) 198

Validity of Subsequent Changes or Amendments

A key principle is that the same authority—here, the Governor—retains the power to amend, alter, or repeal rules made under the proviso. This is inherent in legislative power. If the Governor initially frames rules, subsequent modifications under the same proviso are typically valid, provided they stay within constitutional limits. B. S. Yadav: Pritpal Singh VS State Of Haryana: State Of Punjab - 1980 0 Supreme(SC) 471 Surjit Singh VS State Of Punjab - 1983 0 Supreme(SC) 146

Judicial support is robust. In one case, the amendment made to the Fundamental rules in the exercise of power conferred by Article 309, by which the proviso to Rule 2 was deleted retrospectively, was a valid exercise of legislative power. Kirbalomi VS State of Arunachal Pradesh - 2012 Supreme(Gau) 411 R. S. Jadhav & others VS State of Maharashtra & others - 1990 Supreme(Bom) 198 This underscores that amendments can even operate retrospectively, as the power to legislate is of a plenary nature within the field demarcated by the Constitution and it includes the power to legislate retrospectively. R. S. Jadhav & others VS State of Maharashtra & others - 1990 Supreme(Bom) 198

Another precedent affirms: rules under Article 309 can be as much amended, as they can be made, under the proviso to Article 309. R. S. Jadhav & others VS State of Maharashtra & others - 1990 Supreme(Bom) 198 Thus, the Governor's later changes are not ultra vires but a legitimate exercise, distinguishing it from semi-executive orders. R. S. Jadhav & others VS State of Maharashtra & others - 1990 Supreme(Bom) 198

Constitutional and Statutory Limits

While permissible, amendments are not absolute. They must:- Conform to other constitutional provisions, like Articles 14 and 16 (equality).- Not conflict with existing statutory laws enacted by the legislature.- Be published accessibly, often in the gazette. B. S. Yadav: Pritpal Singh VS State Of Haryana: State Of Punjab - 1980 0 Supreme(SC) 471

Rules yield to comprehensive legislation. The rules and amendments made under the proviso to Article 309 can be altered or repealed by the Legislature but until that is done, the exercise of the power cannot be challenged as lacking in authority. R. S. Jadhav & others VS State of Maharashtra & others - 1990 Supreme(Bom) 198 Additionally, non-publication alone does not invalidate them if they qualify under Article 309. R. S. Jadhav & others VS State of Maharashtra & others - 1990 Supreme(Bom) 198

In service disputes, like recruitment rules, Cabinet approval under Article 166(3) may be needed for major changes, but this operates in a different field from Article 309. Kirbalomi VS State of Arunachal Pradesh - 2012 Supreme(Gau) 411 State of U. P. VS Z. U. Ansari - 2016 7 Supreme 356

Insights from Key Judicial Precedents

Several cases illustrate application:

Retrospective Amendments: Deleting a rule proviso retrospectively was upheld as valid legislative action by the Governor. Kirbalomi VS State of Arunachal Pradesh - 2012 Supreme(Gau) 411 R. S. Jadhav & others VS State of Maharashtra & others - 1990 Supreme(Bom) 198
Recruitment Rules: In Arunachal Pradesh, 1990 rules lacking Cabinet support were repealed and replaced by 2008 rules under constitutional scheme, deemed legal. Kirbalomi VS State of Arunachal Pradesh - 2012 Supreme(Gau) 411
Judicial Independence: Power under Article 309 cannot erode judicial independence but is subject to safeguards against abuse. B. S. YADAV VS State Of Haryana - 1980 Supreme(SC) 468
Delegation Limits: Powers under Article 309 differ from business allocation rules under Article 166(3); delegation must be specific. State of U. P. VS Z. U. Ansari - 2016 7 Supreme 356 Brajendra Singh Yambem VS Union of India - 2016 6 Supreme 508
Pension and Discipline: Even post-retirement actions under related rules require proper sanction, but Article 309 framing remains distinct. Brajendra Singh Yambem VS Union of India - 2016 6 Supreme 508

These rulings reinforce that Governor-led changes are valid if procedurally sound and non-discriminatory. RAMA SHANKER PANDEY VS STATE OF U. P. - 2014 Supreme(All) 1908 The competence of Governor to frame Rule under proviso to Article 309 is sufficient enough to apply the rules. RAMA SHANKER PANDEY VS STATE OF U. P. - 2014 Supreme(All) 1908

Exceptions and Practical Considerations

Watch for these pitfalls:- Overriding Legislature: Cannot contradict enacted laws. B. S. Yadav: Pritpal Singh VS State Of Haryana: State Of Punjab - 1980 0 Supreme(SC) 471- Fundamental Rights Violation: Must respect equality and non-arbitrariness.- Procedural Lapses: Lack of publication or notice can invite challenges. B. S. Yadav: Pritpal Singh VS State Of Haryana: State Of Punjab - 1980 0 Supreme(SC) 471- Bias or Malafide: Selection processes tainted by bias may be quashed. Madhu Bahuguna VS Uttarakhand Public Service Commission - 2020 Supreme(UK) 10

In practice, transparency is key. Rules of Business under Article 166 may allocate functions, but core Article 309 power remains with the Governor. State of U. P. VS Z. U. Ansari - 2016 7 Supreme 356

Recommendations for Authorities and Stakeholders

Ensure Compliance: Before amending, review against statutes and Constitution.
Transparent Process: Publish in official gazette and notify affected parties.
Periodic Review: Align rules with evolving laws to avoid litigation.
Seek Advice: Involve legal experts for complex changes.

Conclusion and Key Takeaways

Generally, a Governor may validly amend rules framed under the proviso to Article 309 using the same power, as it is legislative and transitional. This flexibility aids efficient governance until legislative intervention, but subject to strict constitutional checks. B. S. Yadav: Pritpal Singh VS State Of Haryana: State Of Punjab - 1980 0 Supreme(SC) 471 Surjit Singh VS State Of Punjab - 1983 0 Supreme(SC) 146

Key Takeaways:- Power is legislative, enabling amendments (even retrospective). R. S. Jadhav & others VS State of Maharashtra & others - 1990 Supreme(Bom) 198- Same authority (Governor) can change rules. Surjit Singh VS State Of Punjab - 1983 0 Supreme(SC) 146- Must not conflict with laws or rights. B. S. Yadav: Pritpal Singh VS State Of Haryana: State Of Punjab - 1980 0 Supreme(SC) 471- Judicial precedents support validity with safeguards.

Stay informed on service law updates. For tailored guidance, consult a constitutional law specialist.

References: Insights drawn from cited documents including B. S. Yadav: Pritpal Singh VS State Of Haryana: State Of Punjab - 1980 0 Supreme(SC) 471, Surjit Singh VS State Of Punjab - 1983 0 Supreme(SC) 146, Kirbalomi VS State of Arunachal Pradesh - 2012 Supreme(Gau) 411, B. S. YADAV VS State Of Haryana - 1980 Supreme(SC) 468, R. S. Jadhav & others VS State of Maharashtra & others - 1990 Supreme(Bom) 198, State of U. P. VS Z. U. Ansari - 2016 7 Supreme 356, Brajendra Singh Yambem VS Union of India - 2016 6 Supreme 508, RAMA SHANKER PANDEY VS STATE OF U. P. - 2014 Supreme(All) 1908, Madhu Bahuguna VS Uttarakhand Public Service Commission - 2020 Supreme(UK) 10.

#Article309, #GovernorPowers, #ConstitutionalLaw

Kirbalomi VS State of Arunachal Pradesh - 2012 Supreme(Gau) 411

the power, it is the Governor, who has, under the proviso to Article 309, the scope to exercise the power. ... Therefore, the amendment made to the Fundamental rules in the exercise of power conferred by Article 309, by which the proviso to Rule 2 was deleted retrospectively, was a valid exercise of legislative power. ... Governor, under the #H....

B. S. YADAV VS State Of Haryana - 1980 Supreme(SC) 468

According to the learned counsel, the power which the Constitution has conferred on the Governor by the proviso to Article 309 is a legislative and not an executive power; and since the Governor exercises a legislative power while making rules under the proviso to Article 309, the principle of the independence ... The power of the Governor under the pr....

K. Vishwanatham VS State Of A. P. - 1967 Supreme(AP) 166

Srivastava and Dwivedi JJ. , however in their separate judgments assumed that the powers of the Governor under the proviso to Article 309 being identical with that of the Governor under the proviso to Article 309 being identical with that of the legislation under the main Article the Governor can make ... ... ( 12 ) IT appears to us that the power conferred on the Governor or hi....

Y. Markandeyudu VS Government Of A. P. represented by its Secretary to Government, Finance and Planning Department, Hyderabad - 2002 Supreme(AP) 268

The power conferred upon the Governor by proviso to Article 309 of the Constitution of India is different from the rule making power that may be given under an enactment. The rules made in exercise of the rule making power given under an enactment constitute delegated or subordinate legislation. ... The power under Article 309 of the Constitution of India cannot....

G. GOVINDARAJU, JUNIOR ENGINEER MYSORE P. W. D VS STATE OF MYSORE - 1962 Supreme(Kar) 118

the proviso to Article 309 the power to make a rule validating what was in its inception invalid. ... No such expressions equating a rule made by the Governor with an Act or Law made by a State Legislature are found either in Article 309 or in any other Article conferring the power of the Governor to make rules in respect of specified topics. .....

R. S. Jadhav & others VS State of Maharashtra & others - 1990 Supreme(Bom) 198

Therefore, the amendment made to the Fundamental Rules in the exercise of power conferred by Article 309, by which the proviso to Rule 2 was deleted retrospectively, was a valid exercise of legislative power. ... All of them have the bottom line of being by order and in the name of the Governor of Maharashtra. The aged-exemptees contend that the entire material is legislation, being the product of an exercise of power vested in the ....

Madhu Bahuguna VS Uttarakhand Public Service Commission - 2020 Supreme(UK) 10

The power of the Governor under the proviso to Article 309 to make appropriate rules is of the same kind. The heading of Chapter IV of Part VI of the Constitution, in which Article 213 occurs, is significant: "Legislative Power of the Governor". Under Article 213, he substitutes for the legislature because the legislature is in recess.

State of U. P. VS Z. U. Ansari - 2016 7 Supreme 356

The power of the Governor under the proviso to Article 309 to make appropriate rules is of the same kind. Under Article 213, he substitutes for the legislature because the legislature is in recess. The heading of Chapter IV of Part VI of the Constitution, in which Article 213 occurs, is significant: 'Legislative Power of the Governor".

Brajendra Singh Yambem VS Union of India - 2016 6 Supreme 508

The power of the Governor under the proviso to Article 309 to make appropriate rules is of the same kind. Under Article 213, he substitutes for the legislature because the legislature is in recess. The heading of Chapter IV of Part VI of the Constitution, in which Article 213 occurs, is significant: 'Legislative Power of the Governor".

RAMA SHANKER PANDEY VS STATE OF U. P. - 2014 Supreme(All) 1908

The applicability of Rules can be judged on two scores. Non framing of any earlier rules under Article 309 is not decisive. Firstly, if the rule under proviso to Article 309 may be framed by the Governor and secondly the Rule under proviso to Article 309 have been made by the Governor. The competence of Governor to frame Rule under proviso to Article 309 is sufficient enough to apply the 1991 Rules.