Article 309 of the Constitution

Article 309 of the Constitution of India is the provision that authorises the regulation of recruitment and conditions of service for persons appointed to public services and posts under the Union or a State. Its main clause gives that power to Parliament and to the state legislatures. Its proviso gives the President, a Governor, or any person either of them directs, power to make rules on the same subjects until the legislature makes provision by or under an Act under the article. It sits in Chapter I of Part XIV of the Constitution, the Part headed “Services under the Union and the States”.

The proviso is where the practical weight lies. The Fundamental Rules, the CCS (Conduct) Rules, 1964, the CCS (Classification, Control and Appeal) Rules, 1965, the CCS (Leave) Rules, 1972, the CCS (Revised Pay) Rules, 2016 and the CCS (Pension) Rules, 2021 are all presidential rules made under it. So is Department of Personnel and Training notification S.O. 3964(E) dated 9 August 2018, which decides whether a post is Group A, Group B or Group C. A central government employee whose pay, leave, conduct, discipline and pension are all fixed by notification and not by statute is living under Article 309.

The article has been amended once since 26 January 1950. Section 29 and the Schedule of the Constitution (Seventh Amendment) Act, 1956 omitted the words “or Rajpramukh” from the proviso with effect from 1 November 1956, when the office of Rajpramukh disappeared with the reorganisation of the states. The main clause stands exactly as enacted.

Three limits run through the decided cases. The power is subject to the pleasure doctrine in Article 310, so no rule and no Act under Article 309 can abridge that pleasure. A rule made under it must satisfy Articles 14 and 16, and rules have been struck down for failing them. And the executive’s share of the power stops on any subject the legislature has occupied, which is the doctrine that decided a Supreme Court appeal as recently as 13 January 2026.

Text of Article 309

Article 309 carries the marginal note “Recruitment and conditions of service of persons serving the Union or a State” and has two operative parts. The main clause reads:

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 proviso reads:

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.

Both texts are quoted from the Ministry of Law and Justice edition of the Constitution as on 1 May 2024, at page 173. The two commas inside the phrase “the recruitment, and conditions of service of persons appointed, to public services and posts” are in the printed text and are usually dropped in quotation.

Two details of wording carry consequences. The proviso ends with “until provision in that behalf is made by or under an Act of the appropriate Legislature under this article”, and those last three words are the ones secondary accounts lose: the Act that displaces a rule has to be an Act referable to Article 309, not any Act that happens to touch the subject. The closing words “and any rules so made shall have effect subject to the provisions of any such Act” are the textual hook the Supreme Court used to uphold retrospective rule-making in 1968.

The single amendment is recorded in footnote 2 on the same page, which reads that the words “or Rajpramukh” were omitted by section 29 and the Schedule of the Constitution (Seventh Amendment) Act, 1956, with effect from 1 November 1956. The pre-amendment wording is independently fixed by a judgment delivered before the amendment: E. Thillai Natarajan v. C. P. Fernandes, decided by the Bombay High Court on 3 July 1956, describes the article then in force as conferring power on “the President and the Governor or Rajpramukh of a State”.

The opening words “Subject to the provisions of this Constitution” are not decorative. In the decided cases the subjection is read principally against Article 310, and in one leading case against Article 233 on the appointment of district judges.

Section 241 of the Government of India Act 1935

Before 26 January 1950 the same ground was held by section 241 of the Government of India Act 1935, and the change the Constitution made was one of priority. Section 241(2) provided that the conditions of service of persons serving His Majesty in a civil capacity in India “shall, subject to the provisions of this section, be such as may be prescribed”, in the case of federal servants “by rules made by the Governor-General or by some person or persons authorised by the Governor-General to make rules for the purpose”. Section 241(4) then added, by way of a non obstante saving, that “Acts of the appropriate Legislature in India may regulate the conditions of service of persons serving His Majesty in a civil capacity in India, and any rules made under this section shall have effect subject to the provisions of any such Act”.

The 1935 Act therefore made executive rule-making the primary provision and the legislature’s power the saving. Article 309 inverts the order: the legislature’s power is the main clause, and executive rule-making is a proviso that runs only “until” the legislature acts. The Bombay High Court put the point in E. Thillai Natarajan on 3 July 1956, holding that “to this extent the scheme is radically different from the scheme of the Government of India Act that the power is conferred upon the Legislature and not upon the executive to make these rules”.

The Supreme Court drew the comparison in State of Uttar Pradesh v. Babu Ram Upadhya, AIR 1961 SC 751, decided on 25 November 1960, holding at (1961) 2 SCR 693 that “by the Constitution, the Act of 1935 was repealed, and, with certain changes in phraseology, cls. (1) and (2) of Art. 310 took the place of sub-ss. (1) and (4) of s. 240 respectively, and Art. 309 took the place of s. 241(2)”. The same judgment records at SCR 697 that the Constitution “practically incorporated the provisions of ss. 240 and 241 of the Act of 1935 in Arts. 309 and 310”.

The two courts map the provisions differently, and both readings are defensible. Babu Ram equates Article 309 with section 241(2), the executive rule-making sub-section, which matches the proviso. The Bombay High Court treats the main clause as the counterpart of section 241(4), the legislative saving. The safer statement is that the proviso answers to section 241(2) and the main clause to section 241(4), with the hierarchy between them reversed.

The pleasure doctrine that Article 310 now carries has a longer history in the same statutes. Babu Ram records at SCR 693 that tenure at pleasure was introduced for the first time by section 96-B of the Government of India Act 1915 as amended by the Act of 1919, and became section 240(1) of the 1935 Act. The 1935 Act had no provision corresponding to Article 313, the transitional clause that keeps pre-Constitution service law alive.

The proviso as the operative source of central service rules

Every code that fixes the working life of a central civil servant is a rule made by the President under the proviso to Article 309, and several are made under that proviso read with clause (5) of Article 148 after consultation with the Comptroller and Auditor-General in relation to the Indian Audit and Accounts Department. That second limb is why the Comptroller and Auditor-General appears by name as an authority inside Rule 10, Rule 12(4)(a) and Rule 29(1) of the CCS (CCA) Rules 1965.

Source: the notifications named, as cited in the corresponding articles on this site.

The consequence a reader feels is procedural. Because these are rules and not statutes, each can be amended by a further notification in the Gazette, with no Bill, no vote and no assent. The pay matrix that replaced grade pay arrived that way on 25 July 2016. The rule that puts a post at Level 6 in Group B, not Group C, was changed that way on 9 August 2018, superseding S.O. 3578(E) dated 9 November 2017. A Central Pay Commission report, however detailed, changes nothing until the corresponding notification appears.

The proviso operates by its own terms “until” an Act under the article makes provision, and the central civil services are governed today by presidential rules made under it. That is why the enabling recital of almost every service notification a central employee will ever read begins with the same formula about powers conferred by the proviso to Article 309.

The hierarchy of Act, rule and executive instruction

Three instruments can lay down norms on recruitment and promotion, and they rank in a fixed order. The Supreme Court stated it in Union of India v. Somasundaram Viswanath, (1989) 1 SCC 175, at paragraph 6, a passage the Court reproduced again in State of Odisha v. Sreepati Ranjan Dash, 2026 INSC 505, decided on 18 May 2026:

It is well-settled that the norms regarding recruitment and promotion of officers belonging to the Civil Services can be laid down either by a law made by the appropriate legislature or by rules made under the proviso to Article 309 of the Constitution of India or by means of executive instructions issued under Article 73 of the Constitution of India in the case of Civil Services under the Union of India and under Article 162 of the Constitution of India in the case of Civil Services under the State Governments. If there is a conflict between the executive instructions and the rules made under the proviso to Article 309 of the Constitution of India, the rules made under proviso to Article 309 of the Constitution of India prevail, and if there is a conflict between the rules made under the proviso to Article 309 of the Constitution of India and the law made by the appropriate legislature the law made by the appropriate legislature prevails.

The third tier explains a great deal of how the central government actually administers its establishment. Much of what a Department of Personnel and Training Office Memorandum says has no statutory rule behind it at all, and is executive instruction issued under Article 73. The Annual Performance Appraisal Report system for central civil servants is the clearest example on this site: the central civil service report rests on a sequence of Office Memoranda issued by the Department of Personnel and Training instead of on a notified rule, while the parallel appraisal machinery for the All India Services is statutory under the All India Services (Performance Appraisal Report) Rules, 2007.

The limit on the third tier was fixed in Sant Ram Sharma v. State of Rajasthan, AIR 1967 SC 1910, decided on 7 August 1967 by five judges. The Court held at (1968) 1 SCR 112 that “while Government cannot amend or supersede statutory rules by administrative instructions, if rules are silent on any particular point, Government can fill up the gaps and supplement the rules and issue instructions not inconsistent with the rules already framed”. Sant Ram Sharma was a state matter and the executive power in issue was the state power under Article 162, the Court holding at SCR 119 that “there is nothing in the terms of Art. 309 which abridges the power of the executive to act under Art. 162 without a law”. Somasundaram Viswanath supplies the Union limb under Article 73.

The width of conditions of service

The expression “conditions of service” in Article 309 has been read broadly, and the breadth is what brings pay, promotion and retirement inside the article at all. Rules defining qualifications and suitability for promotion are conditions of service, and so is “any rule which affects the right of a person to be considered for promotion”, on T. R. Kapur v. State of Haryana, (1987) 1 SCR 584 at 599. The same page draws the line: a mere chance of promotion, as distinct from the right to be considered for it, falls outside.

P. U. Joshi v. Accountant General, Ahmedabad, (2003) 2 SCC 632, decided on 19 December 2002, extends the list to the structural decisions an establishment makes. The constitution, pattern, nomenclature and categories of posts and cadres, their creation and abolition, the prescription of qualifications, and avenues of promotion are all held there to be conditions of service, and all held to pertain “to the field of Policy and within the exclusive discretion and jurisdiction of the State”, subject to the limitations the Constitution imposes.

The age of superannuation is a condition of service on N. Lakshmana Rao v. State of Karnataka, AIR 1975 SC 1646, decided on 29 April 1975, where the Court held at (1975) SCR 333 that “Article 309 confers legislative power to provide conditions of service” and that “the Legislature can regulate conditions of service by law which can impair conditions or terms of service”. The same passage records that prescribing an age of superannuation does not amount to action under Article 311, which is why compulsory retirement on attaining the prescribed age needs no inquiry. The instrument in issue was the Karnataka State Civil Service (Age of Compulsory Retirement) Rules, 1974.

Disciplinary procedure is a condition of service too, and Babu Ram Upadhya is the case that shows it: the Uttar Pradesh Police Regulations were treated there as conditions of service preserved through the 1935 Act scheme and continued by Article 313.

Retrospective rules and accrued rights

Rules made under the proviso to Article 309 may be given retrospective effect, and the authority is B. S. Vadera v. Union of India, AIR 1969 SC 118, decided on 27 March 1968 by five judges. The reasoning runs off the closing words of the proviso. The reported holding at (1968) 3 SCR 583 is that if full effect is given to the words “and any rules so made shall have effect subject to the provisions of any such Act”, then in the absence of any such Act “the power to make rules with retrospective effect cannot be denied to the Railway Board”. The instrument was the Indian Railway Establishment Code, issued by the President under the proviso, whose Rule 157 gave the Railway Board full powers to make rules of general application to non-gazetted railway servants; the Board’s scheme was upheld with effect from 1 December 1954.

The limit is the accrued right. T. R. Kapur, decided on 17 December 1986, states at (1987) 1 SCR 599 that the rules defining qualifications for promotion “can be changed retrospectively”, but that this is:

subject to a well-recognised principle that the benefits acquired under the existing rules cannot be taken away by an amendment with retrospective effect, that is to say, there is no power to make such a rule under the proviso to Art. 309 which affects or impairs vested rights. Therefore, unless it is specifically provided in the rules, the employees who are already promoted before the amendment of the rules, cannot be reverted and their promotions cannot be recalled.

The sentence reads as a general proposition and is usually quoted as one, but the decision turned on a statutory fetter. The Court held that the proviso to section 82(6) of the Punjab Reorganisation Act, 1966 was “in the nature of a fetter on the power of the Governor under the proviso to Art. 309” not to alter the conditions of service of servants affected by the reorganisation to their disadvantage without the previous approval of the Central Government. The Haryana notification of 22 June 1984, which amended the Punjab Service of Engineers, Class I rules of 1964 retrospectively from 10 July 1964, was struck down as contrary to section 82(6).

The converse proposition is in P. U. Joshi, and it is the one most employees underestimate:

There is no right in any employee of the State to claim that rules governing conditions of his service should be forever the same as the one when he entered service for all purposes and except for ensuring or safeguarding rights or benefits already earned, acquired or accrued at a particular point of time, a Government servant has no right to challenge the authority of the State to amend, alter and bring into force new rules relating to even an existing service.

Taken together, the two cases give the working test. What has already been earned is protected; the framework going forward is not.

Articles 14 and 16 as limits on a rule

A rule made under Article 309 is open to challenge on the equality guarantees, and rules have been struck down on them. Roshan Lal Tandon v. Union of India, AIR 1967 SC 1889, decided on 14 August 1967 by five judges, held that the impugned part of a Railway Board notification of October 1965 “violated the guarantee under Articles 14 and 16 of the Constitution”, because once direct recruits and promotees had been absorbed into a single cadre they formed one class and could not be discriminated against for further promotion. T. R. Kapur applies the same test to retrospective promotion-qualification rules, which “must necessary satisfy the tests of Arts. 14 and 16(1) of the Constitution”.

Roshan Lal Tandon also settles what kind of legal relationship a government servant has, and the answer governs how a rule change reaches them. The Court held at (1968) 1 SCR 195 that the servant “had no vested contractual right in regard to the terms of his service”, that “the legal position of a Government servant is more one of status than of contract”, and that once appointed “his rights and obligations are no longer determined by consent of parties, but by statute or statutory rules which may be framed and altered unilaterally by the Government”. No central employee consents to a revision of the CCS (Revised Pay) Rules or to a change in the MACP benchmark, and none is asked to.

Whether such rules are “subordinate legislation” is a question the courts have not treated as settled. A. B. Krishna v. State of Karnataka, (1998) 3 SCC 495, says that “rules made in exercise of the rule-making power given under an Act constitute delegated or subordinate legislation, but the rules under Article 309 cannot be treated to fall in that category”, the distinction being that the Article 309 power is conferred by the Constitution itself and not by a statute. The safe formulation, and the one this article uses, is that rules under Article 309 are statutory rules with the force of law which the courts have distinguished from rules made under an enactment.

The opening words and the pleasure in Article 310

Article 309 opens “Subject to the provisions of this Constitution”, and the provision it is most often read against is Article 310. Article 310(1) provides that every person who is a member of a defence service, a civil service of the Union or an all-India service, or who holds any post connected with defence or any civil post under the Union, holds office during the pleasure of the President, and that every member of a state civil service or holder of a state civil post holds office during the pleasure of the Governor. Article 310 carries the same Seventh Amendment footnote as Article 309, the words “or, as the case may be, the Rajpramukh” having been omitted with effect from 1 November 1956.

Babu Ram Upadhya states the relationship in terms: “[T]he Constitution has not made ’the tenure at pleasure’ subject to any law made by the appropriate Legislature. On the other hand, as we have pointed out, Art. 309 is expressly made subject to ’the tenure at pleasure’ in Art. 310.” The Court rejected the argument that a power to abridge the pleasure could be located in entry 70 of List I or entry 41 of List II, because Article 245 makes the legislative power itself subject to the provisions of the Constitution and so subject to Article 310. The consequence is that neither a rule under the proviso nor an Act under the main clause can take away the pleasure, though Article 311 can and does regulate how it is exercised. The doctrine of pleasure is therefore the ceiling on Article 309, not a competitor to it. That proposition survives, and Union of India v. Tulsiram Patel, (1985) 3 SCC 398, restates it: a provision in an Act or rule under Article 309 that restricts the pleasure, not being an express provision of the Constitution, is unconstitutional. A different proposition in Babu Ram Upadhya, that the Governor’s pleasure could not be delegated to a subordinate officer, did not survive: Moti Ram Deka v. General Manager, N.E.F. Railway, AIR 1964 SC 600, read it down, and Shamsher Singh v. State of Punjab, AIR 1974 SC 2192, stated, on the question of delegation, that the majority view in Babu Ram Upadhya “is no longer good law”. A rule under Article 309 can therefore name the authority that exercises the pleasure and the procedure it follows.

The opening words also bite against other specific articles. In Chandra Mohan v. State of Uttar Pradesh, AIR 1966 SC 1987, decided on 8 August 1966 by five judges, the Uttar Pradesh Higher Judicial Service Rules had been made by the Governor under Article 309. The Court held that the rules contravened the constitutional mandates of Article 233(1) and (2) on the appointment of district judges, so that the rules and the appointments made under them were illegal, adding at (1967) 1 SCR 86 that even if the Governor could provide under Article 309 for consultation with bodies other than the High Court, “he cannot avoid consultation with the High Court directly or indirectly”, and that under the rules in issue the consultation was “an empty formality and travesty of the constitutional provision”.

Article 311 and the safeguard a rule cannot dilute

Article 311 sits two provisions after Article 309 and does the opposite work: where Article 309 confers a power, Article 311 withholds one. Article 311(1) bars the dismissal or removal of a member of a civil service of the Union, an all-India service or a state civil service, or of a holder of a civil post under the Union or a State, by an authority subordinate to the authority that appointed them. Article 311(2) bars dismissal, removal or reduction in rank except after an inquiry in which the person has been informed of the charges and given a reasonable opportunity of being heard on them, subject to the provisos.

The practical relationship is that the Article 309 rules are the machinery through which the Article 311 guarantee is worked out. Rule 12(4)(a) of the CCS (CCA) Rules 1965 carries the Article 311(1) requirement, Rule 14 carries the Article 311(2) inquiry, Rule 15(6) carries the first proviso and Rule 19 carries the three exceptions in the second proviso. The asymmetry matters when the two are in tension: a rule made under Article 309 can be amended by the President with a notification, and the safeguard in Article 311 cannot. A departmental inquiry conducted in breach of the rules may or may not breach the Constitution, and Rule 27(2) of the CCS (CCA) Rules requires the appellate authority to ask that question separately.

Article 312 and the All India Services

Article 312 is a different jurisdiction and not a variant of Article 309. Article 312(1) provides that where the Council of States has declared by a resolution supported by not less than two-thirds of the members present and voting that it is necessary or expedient in the national interest, Parliament may by law provide for the creation of one or more all-India services common to the Union and the States, and, subject to the other provisions of the Chapter, regulate the recruitment and conditions of service of persons appointed to any such service. Article 312(2) deems the Indian Administrative Service and the Indian Police Service, as they existed at the commencement of the Constitution, to be services created by Parliament under the article. The words “Chapter VI of Part VI or Part XI” were substituted and clauses (3) and (4) inserted by section 45 of the Constitution (Forty-second Amendment) Act, 1976, with effect from 3 January 1977.

Parliament exercised the power by enacting the All India Services Act, 1951, whose section 3 empowers the Central Government to make rules regulating the recruitment and conditions of service of persons appointed to an All India Service. The All India Services (Conduct) Rules 1968, the All India Services (Discipline and Appeal) Rules 1969 and the Indian Administrative Service (Cadre) Rules 1954 are framed under that Act, not under Article 309. This is the reason an IAS or IPS officer is not governed by the CCS rules that bind a Central Secretariat Service officer sitting in the same building, and it is the structural point behind the exclusion of All India Services members in Rule 3 of the CCS (CCA) Rules 1965.

Article 312 is itself expressed to be “subject to the other provisions of this Chapter”, and Chapter I of Part XIV is where Articles 309, 310 and 311 sit, so the Article 311 safeguards apply to an All India Services officer as they do to a central civil servant.

Article 313 and pre-Constitution service law

Article 313 is the transitional provision that kept the pre-1950 service law alive, and it reads: “Until other provision is made in this behalf under this Constitution, all the laws in force immediately before the commencement of this Constitution and applicable to any public service or any post which continues to exist after the commencement of this Constitution, as an all-India service or as service or post under the Union or a State shall continue in force so far as consistent with the provisions of this Constitution.”

The article does real work rather than merely tidying up. Babu Ram Upadhya applied it at (1961) 2 SCR 693 to hold that the Uttar Pradesh Police Act and the Police Regulations made under it, preserved by section 243 of the 1935 Act, “continue to be in force after the Constitution so far as they are consistent with the provisions of the Constitution”. The 1935 Act contained no provision corresponding to Article 313, a point the Bombay High Court noted in E. Thillai Natarajan. One limit on the reach of Part XIV is still printed and rarely noticed. Article 308 defines “State” for the Part as not including the State of Jammu and Kashmir, in a form substituted by section 29 and the Schedule of the Constitution (Seventh Amendment) Act, 1956 with effect from 1 November 1956, and the Ministry of Law edition as on 1 May 2024 still carries it unamended. That is what the text says; Jammu and Kashmir has not been a State since the reorganisation of 2019, so the clause has no present subject.

The same chapter also carries Article 312A, inserted by section 2 of the Constitution (Twenty-eighth Amendment) Act, 1972 with effect from 29 August 1972, which lets Parliament vary or revoke the conditions of service of Secretary of State appointees, prospectively or retrospectively; Article 314 was omitted by section 3 of the same Amendment Act on the same date.

The occupied field and the end of the proviso power

The proviso to Article 309 is transitional by its own words, and the executive power it confers ends where the legislature has acted. A. B. Krishna v. State of Karnataka, (1998) 3 SCC 495, states the principle:

As a matter of fact, under the scheme of Article 309 of the Constitution, once a legislature intervenes to enact a law regulating the conditions of service, the power of the Executive, including the President or the Governor, as the case may be, is totally displaced on the principle of ‘doctrine of occupied field’. If, however, any matter is not touched by that enactment, it will be competent for the Executive to either issue executive instructions or to make a rule under Article 309 in respect of that matter.

The same passage adds that where the legislature has made a law and the field is occupied, “rules can be made under the law so made by the legislature and not under Article 309”, and that “on the principle of ‘occupied field’, the rules under Article 309 cannot supersede the rules made by the legislature”.

The principle is live, not historical. In State of Haryana v. Krishan Kumar, 2026 INSC 63, decided on 13 January 2026, the Supreme Court applied A. B. Krishna to strike down qualifications for the post of Drug Inspector prescribed by the Haryana Food and Drugs Administration Department, Subordinate Office (Group-B) Service Rules, 2018, notified on 13 November 2018 under the proviso to Article 309. The Court concluded at paragraph 56 that the powers exercised by Haryana and Karnataka to prescribe qualifications “over and above the provisions of the Drug Rules, is completely alien, in particular when the subject was already occupied by the Central Government and the rules have been framed by it”. The Drugs and Cosmetics Act and the Drugs Rules 1945 held the field, and a state rule under Article 309 could not add to them.

Delegation to such person as the President may direct

The power under the proviso may be exercised by someone other than the President or the Governor, and the authority for that is the text itself: the proviso reads “the President or such person as he may direct” for Union services and “the Governor of a State or such person as he may direct” for state services. Delegation is built into the provision and does not depend on a separate enabling clause.

B. S. Vadera shows the structure in operation across two levels. The President made the Indian Railway Establishment Code under the proviso; Rule 157 of that Code gave the Railway Board full powers to make rules of general application to non-gazetted railway servants under its control; and the Board made the scheme that the Supreme Court upheld with retrospective effect. Roshan Lal Tandon concerns the same body, the instrument there being a Railway Board notification of October 1965. This is why a railway servant finds the operative rule in a Railway Board instrument and a central civil servant finds it in a Department of Personnel and Training or Department of Expenditure notification, while both trace back to the same proviso.

Consultation with the Union Public Service Commission

Article 320(3) requires the Union Public Service Commission or the state commission to be consulted on the matters set out in its sub-clauses, of which sub-clause (c) covers disciplinary matters affecting a person serving under the Government. The requirement is directory and not mandatory. State of Uttar Pradesh v. Manbodhan Lal Srivastava, AIR 1957 SC 912, decided on 20 September 1957, held that “the provisions of Art. 320(3)(c) of the Constitution of India are not mandatory and that they do not confer any rights on a public servant so that the absence of consultation or any irregularity in consultation does not afford him a cause of action in a court of law”.

The reasoning rests on the proviso to Article 320(3), which lets the President, as respects the all-India services and other Union services and posts, and a Governor as respects state services and posts, “make regulations specifying the matters in which either generally, or in any particular class of case or in any particular circumstances, it shall not be necessary for a Public Service Commission to be consulted”. The Court reasoned at (1958) SCR 552 that if Article 320 were mandatory “the Constitution would not have left it to the discretion of the Head of the Executive Government to undo those provisions by making regulations to the contrary”. It attached a condition that is routinely omitted when the case is cited: this “does not amount to saying that it is open to the Executive Government completely to ignore the existence of the Commission or to pick and choose cases in which it may or may not be consulted”, and “once, relevant regulations have been made, they are meant to be followed in letter and in spirit”. Article 320(5) requires such regulations to be laid before each House for not less than fourteen days.

Seventh Schedule entries behind the power

Legislation on services rests on two entries, one in each of the Union and State Lists, and on none in the Concurrent List. Entry 70 of List I is printed in the Ministry of Law edition as on 1 May 2024 as “Union Public Service; All-India Services; Union Public Service Commission”, in the singular, though the plural form is what is usually quoted. Entry 41 of List II is “State public services; State Public Service Commission”. Pensions have their own entries: entry 71 of List I covers “Union pensions, that is to say, pensions payable by the Government of India or out of the Consolidated Fund of India”, and entry 42 of List II the state equivalent.

There is no Concurrent List entry on public services or public service commissions, so the subject is divided cleanly between the Union and the states with no concurrent field and no question of repugnancy under Article 254.

Both entries have been argued in the Article 309 cases. Babu Ram Upadhya rejected a submission built on entry 70 of List I and entry 41 of List II, holding that neither could support a law abridging the Article 310 pleasure. Sant Ram Sharma rests the state executive power to issue instructions on entry 41 of List II, holding at (1968) 1 SCR 119 that “the State Government has executive power in respect of State Public Services mentioned in Entry 41, List II of Schedule VII of the Constitution”.

Article 309 in the states

The proviso is symmetrical: what the President does for Union services, the Governor of a State, or a person the Governor directs, does for state services. State service rules therefore carry the same enabling formula, and the resulting instruments look structurally identical to the central ones even where their content differs.

Concrete examples appear in the reported cases. The Haryana Food and Drugs Administration Department, Subordinate Office (Group-B) Service Rules, 2018 were notified on 13 November 2018 by the Governor of Haryana under the proviso, and the qualifications they prescribed for a Drug Inspector were held bad in Krishan Kumar on 13 January 2026. The Punjab Service of Engineers, Class I, Public Works Department (Irrigation Branch) Rules, 1964 were amended by a Haryana notification of 22 June 1984 with retrospective effect from 10 July 1964, and that amendment was the subject of T. R. Kapur. Three Mysore rule sets framed under Article 309 are named with their promulgation dates in B. N. Nagarajan v. State of Karnataka, (1979) 3 SCR 937: the Mysore Government Servants (Probation) Rules, 1957 promulgated on 6 February 1958, the Mysore Government Servants (Seniority) Rules, 1957 promulgated on 7 February 1958, and the Mysore Public Works Engineering Department Services (Recruitment) Rules, 1960 promulgated on 2 December 1960.

The practical reading for a state employee is that a central pay revision does not reach them through Article 309. A state revises the pay of its own employees under the proviso, through its own finance department and usually its own pay commission or pay revision committee, on its own timing, which is why an 8th Central Pay Commission pay chart will not apply to a state employee even after it is notified.

Pay commissions and the route to legal force

A Central Pay Commission has no statutory basis. No Act requires one, fixes its composition or compels a fresh commission every ten years. Each is constituted by an executive Resolution of the Department of Expenditure under the executive power of the Union in Article 73, and its report is advisory to the Union Cabinet, which may accept, modify or reject what it recommends.

Article 309 is the gate the recommendations have to pass through. The 7th Central Pay Commission submitted its report on 19 November 2015, and nothing in it bound anyone until the CCS (Revised Pay) Rules, 2016 were notified on 25 July 2016 under the proviso to Article 309, with effect from 1 January 2016. Parallel notifications carried the same structure into the other services: the three All India Service pay rules of 2016, made under section 3(1) of the All India Services Act, 1951 and notified as G.S.R. 870(E) on 8 September 2016 for the Indian Administrative Service, G.S.R. 910(E) on 23 September 2016 for the Indian Police Service and G.S.R. 924(E) on 28 September 2016 for the Indian Forest Service, and the Railway Services (Revised Pay) Rules, 2016 for railway servants. The interval between a report and a notification is the interval during which a figure has no legal existence, which is the single most common source of error in commentary on a pending pay commission.

The same route governs the components. Dearness allowance rates, house rent allowance slabs and pay fixation on promotion all reach an employee as an Office Memorandum or a rule amendment traceable to the proviso, never as a Commission paragraph.

Supreme Court restatements in 2026

Two judgments in 2026 restate the position, and both are worth naming because Article 309 is otherwise litigated through the rules made under it, seldom as a bare constitutional provision.

State of Haryana v. Krishan Kumar, 2026 INSC 63, decided on 13 January 2026 in Civil Appeals Nos. 1725-1731 of 2023 and 1732-1738 of 2023 and connected matters, applies the doctrine of occupied field to state rules made under the proviso, holding at paragraph 56 that a state cannot prescribe qualifications for a Drug Inspector over and above the Drugs Rules 1945 where the Central Government has occupied the subject. State of Odisha v. Sreepati Ranjan Dash, 2026 INSC 505, decided on 18 May 2026 in Civil Appeals Nos. 13121 and 13122 of 2025, restates the three-tier hierarchy by reproducing Somasundaram Viswanath in full at paragraph 25.

Part IV of the Finance Act, 2025 operates on rules made under the proviso instead of replacing them. That Part, passed by the Lok Sabha on 25 March 2025, validates with effect from 1 June 1972 the rules made under Article 309 for the CCS (Pension) Rules, 1972, the CCS (Pension) Rules, 2021 and the CCS (Extraordinary Pension) Rules, 2023, together with the instructions issued under them, and validates the principle that the central government may distinguish among pensioners, including on the basis of the date of retirement, where the distinction comes from an accepted Pay Commission recommendation. That is a validating Act operating on rules made under the proviso, and not an Act regulating recruitment and conditions of service under the main clause; the two should not be conflated.

The validation is under challenge, on the last court record available. Writ Petition (Civil) No. 525 of 2025, All India S-30 Pensioners Association v. Union of India, Diary No. 27458 of 2025, was filed in the Supreme Court on 19 May 2025 with an interlocutory application seeking interim relief, and seeks a declaration that the validation inserted by the Finance Act, 2025 is unconstitutional, along with a mandamus to comply with the Delhi High Court judgment of 20 March 2024 in W.P.(C) No. 6002 of 2016. The Court’s office report of 22 May 2025 records an earlier connected matter, SLP(C) Nos. 23558-23559 of 2024 in Diary No. 29124 of 2024, Union of India v. All India S-30 Pensioners Association, as dismissed on 4 October 2024.

Related Articles

• Article 311 of the Constitution
• Article 312 of the Constitution
• Article 313 of the Constitution
• Article 320 of the Constitution
• Doctrine of pleasure
• Conditions of service
• Government of India Act 1935
• All India Services Act, 1951
• CCS (Classification, Control and Appeal) Rules, 1965
• CCS (Conduct) Rules, 1964
• CCS (Leave) Rules, 1972
• CCS (Pension) Rules, 2021
• CCS (Revised Pay) Rules, 2016
• Fundamental Rules
• Recruitment rules
• Central government employees in India
• All India Services
• Central Secretariat Service
• Union Public Service Commission
• Department of Personnel and Training
• Central Administrative Tribunal
• Central Vigilance Commission
• Central Pay Commission
• 7th Central Pay Commission
• 8th Central Pay Commission
• 6th Central Pay Commission
• Pay matrix
• Pay fixation
• Grade pay
• Dearness allowance
• House rent allowance
• Departmental inquiry
• Suspension
• Major and minor penalty proceedings
• Charge sheet and articles of charge
• Appeal, review and revision under the CCS (CCA) Rules
• Departmental Promotion Committee
• Promotion
• Seniority
• Probation in central government service
• Confirmation in service
• Annual Performance Appraisal Report
• MACP benchmark
• Retirement age in central government
• Superannuation
• Compulsory retirement
• Voluntary retirement
• Family pension
• Old Pension Scheme
• National Pension System
• Unified Pension Scheme

External references

• Ministry of Law and Justice, The Constitution of India as on 1 May 2024: https://cdnbbsr.s3waas.gov.in/s380537a945c7aaa788ccfcdf1b99b5d8f/uploads/2024/07/20240716890312078.pdf
• Supreme Court of India case records: https://www.sci.gov.in/
• Department of Personnel and Training, establishment rules and Office Memoranda: https://dopt.gov.in/
• Department of Expenditure, pay rules and Pay Commission material: https://doe.gov.in/
• Department of Pension and Pensioners’ Welfare: https://doppw.gov.in/
• Union Public Service Commission: https://upsc.gov.in/
• The Gazette of India: https://egazette.gov.in/

References

1. Constitution of India, Article 309 (recruitment and conditions of service of persons serving the Union or a State), main clause and proviso, with footnote 2 recording the omission of the words “or Rajpramukh” by section 29 and the Schedule of the Constitution (Seventh Amendment) Act, 1956, with effect from 1 November 1956, as printed in the Ministry of Law and Justice edition of the Constitution as on 1 May 2024, page 173.
2. Constitution of India, Article 310 (tenure during the pleasure of the President or the Governor), Article 311 (dismissal, removal or reduction in rank), Article 312 and Article 312A (all-India services and Secretary of State appointees), Article 313 (transitional provisions), Article 320(3), its proviso and Article 320(5) (functions of the Public Service Commissions), and Article 73 (extent of the executive power of the Union), in Part XIV and Part V of the Constitution.
3. Constitution of India, Seventh Schedule, List I entries 70 and 71 and List II entries 41 and 42, as printed in the Ministry of Law and Justice edition as on 1 May 2024, pages 315 and 321.
4. Government of India Act 1935, section 240 (tenure at pleasure) and section 241 (conditions of service), sub-sections 241(2) and 241(4), as reproduced in E. Thillai Natarajan v. C. P. Fernandes, Bombay High Court, decided 3 July 1956.
5. State of Uttar Pradesh v. Babu Ram Upadhya, AIR 1961 SC 751, (1961) 2 SCR 679, decided 25 November 1960 (Article 309 is subject to the pleasure in Article 310; the 1935 Act comparison; Article 313 and the Uttar Pradesh Police Regulations).
6. B. S. Vadera v. Union of India, AIR 1969 SC 118, (1968) 3 SCR 575, decided 27 March 1968 (retrospective rules under the proviso to Article 309; the Indian Railway Establishment Code and Rule 157).
7. Sant Ram Sharma v. State of Rajasthan, AIR 1967 SC 1910, (1968) 1 SCR 111, decided 7 August 1967 (executive instructions may fill gaps but not supersede statutory rules; state executive power under Article 162 and entry 41 of List II).
8. Roshan Lal Tandon v. Union of India, AIR 1967 SC 1889, (1968) 1 SCR 185, decided 14 August 1967 (status and not contract; a rule violating Articles 14 and 16).
9. Chandra Mohan v. State of Uttar Pradesh, AIR 1966 SC 1987, (1967) 1 SCR 77, decided 8 August 1966 (Article 309 rules contravening Article 233).
10. T. R. Kapur v. State of Haryana, AIR 1987 SC 415, (1987) 1 SCR 584, decided 17 December 1986 (accrued rights; the fetter in section 82(6) of the Punjab Reorganisation Act, 1966), and P. U. Joshi v. Accountant General, Ahmedabad, (2003) 2 SCC 632, decided 19 December 2002 (no right to unchanged rules).
11. State of Uttar Pradesh v. Manbodhan Lal Srivastava, AIR 1957 SC 912, (1958) SCR 533, decided 20 September 1957 (Article 320(3)(c) is not mandatory).
12. N. Lakshmana Rao v. State of Karnataka, AIR 1975 SC 1646, (1976) 2 SCC 502, decided 29 April 1975 (age of superannuation as a condition of service), and B. N. Nagarajan v. State of Karnataka, (1979) 3 SCR 937 (Mysore rules framed under Article 309).
13. Union of India v. Somasundaram Viswanath, (1989) 1 SCC 175, paragraph 6, and A. B. Krishna v. State of Karnataka, (1998) 3 SCC 495, both as reproduced in the 2026 Supreme Court judgments at references 14 and 15.
14. State of Haryana v. Krishan Kumar, 2026 INSC 63, decided 13 January 2026, Civil Appeals Nos. 1725-1731 of 2023 and 1732-1738 of 2023 and connected matters (doctrine of occupied field applied to rules under the proviso to Article 309).
15. State of Odisha v. Sreepati Ranjan Dash, 2026 INSC 505, decided 18 May 2026, Civil Appeals Nos. 13121 and 13122 of 2025, paragraph 25 (the three-tier hierarchy of Act, rule and executive instruction).
16. Part IV of the Finance Act, 2025 (validation of the rules made under Article 309 for the CCS (Pension) Rules 1972, 2021 and the CCS (Extraordinary Pension) Rules 2023), and Supreme Court Office Report of Fresh Case dated 22 May 2025 in Writ Petition (Civil) No. 525 of 2025, Diary No. 27458 of 2025, All India S-30 Pensioners Association v. Union of India.