- (1.) This case has been referred by the 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 Zila Parisad Act, 1959 (hereinafter referred to as "the Act"), had framed Rajasthan Panchayat Samiti (Selection of Vikas Adhikaris) Rules. 1968 (hereinafter referred to as "the Rules of 1963"). 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. 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 13, 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in relation to matters covered by these rules and in force immediately before the commencement of these rules are herby repealed: Provided that any order made or action taken under the rules and orders so repealed shall be deemed to have bee'n made and itaken under the provisions of these rules.
(3.) Thus, the effect of coming into force of these rules of 1982 is that the rules pf 1968 have been repealed. The first controversy which thus calls for determination in this case is whether the Governor in exercise of his 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 2.6 of the Act. Article 309 of the Constitution of India reads as follows: "Article 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 Governor of a State or such person as he may direct in the case of services and posts m 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 Stats. 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 regulating the recruitments and conditions of Public Services and posts and the proviso further empowers the Governor to make such rules but subject to the condition only 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 considered is whether the rules of 1968 can be considered as Acts of the appropriate Legislature as contemplated in first part of Article 309 of the Constitution. The Legislature may provide provisions for regulating the recruitment and conditions of service in the Act itself or it may empower the State Government or some other authority to frame rules in this regard. Such rules framed by the State Government or other authority get source and power to make rules under the command of the Legislature itself given in the Act. Such rules, therefore, read with the source of power contained in the Act shall have force of law and will be considered as provisions made under an Act of the appropriate Legislature.;