Source: Delhi High Court 

Why in News? 

A bench of Justice C Hari Shankar and Justice Dr. Sudhir Kumar Jain laid down that an Official memorandum cannot supersede the Recruitment Rules under Article 309 of the Constitution of India, 1950 (COI).                  

• The Delhi High Court held this in the case of Union of India & Ors v. Jagdish Singh & Ors. 

What was the Background of Union of India & Ors v. Jagdish Singh & Ors. Case? 

• The Respondents in this case were promoted as Joint Commissioners of Income Tax (CIT), along with their juniors on 17th September 2010. 
• Officers' junior to the respondents who were promoted along with him have been promoted as Additional CIT. 
• As a response to the above the respondents filed a petition before the Central Administrative Tribunal (CAT) alleging that the promotion of the respondents’ juniors was violative of sub-Rules 3 and 4 of Rule 7 of Schedule II to the Indian Revenue Services Rules, 2015 (IRS Rules) read with Note 1 below the said Rule. 
• It was the case of the Respondent that the respondents were entitled to two years relaxation in being considered for promotion to the NFSG. 
• The Petitioner however contended that the grant of NFSG is only a placement on a higher scale and not a promotion. 
• The Learned Tribunal rejected the contention of the petitioners. 
  • The Tribunal relied on the judgment of the Supreme Court in the case of Union of India v. Ashok Kumar Aggarwal (2013) where it was held that an Official memorandum cannot supersede the Recruitment Rules under Article 309 of the Constitution of India, 1950 (COI). 
  • It was held that an OM, being an executive instruction, could only supplement the statutory Recruitment Rules, and could not supplant it. 
  • The Tribunal therefore held that respondents would be entitled to be promoted along with their juniors who were promoted w.e.f 1st January 2022.
• Thus, Union of India petitioned this Court under Article 226 of the COI.

What were the Court’s Observations?

• The Court held that the Tribunal was correct in holding that the Department of Personnel & Training (DOPT) Official Memorandum (OM) cannot supersede or hold contrary to the Rules under Article 309 of COI. 
• It is to be noted that the IRS Rules were promulgated under Article 309 of COI. 
• Therefore, the Court held that the conclusions laid down by the Tribunal are correct and the respondents are entitled to benefit of the IRS Rules. 
• Thus, the Court held that the Respondents are entitled to be promoted as Additional CIT along with other juniors. 
• Hence, the writ petition was dismissed. 

What is Article 309 of COI? 

• About: 
  • Article 309 of the COI provides for Recruitment and conditions of service of persons serving the Union or a State. 
  • Article 309, as part of the chapter on services under the Union and the States, reflects the framers' intent to establish a merit-based, efficient, and impartial civil service system. 
  • Article 309 grants the authority to the appropriate legislature (Parliament or State Legislature) to enact laws regulating the recruitment and conditions of service for public servants. 
  • This includes the power to prescribe the mode of appointment, the tenure of office, and the disciplinary matters concerning government employees. 
• Constituents of Article 309: 
  • This provision is subject to the provisions of the Constitution 
  • It provides that the Acts of the appropriate Legislature may regulate: 
    • Recruitment 
    • Conditions of Service of persons appointed to public services and posts in connection with affairs of the Union or of any State. 
• Proviso to Article 309: 
  • The following can 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: 
    • President or such other person as he may direct in case of services and posts in connection with the affairs of the Union. 
    • Governor of a State or such other person as he may direct in case of services and posts in connection with the affairs of the State.

What are the Landmark Judgments on Article 309 of COI and Office Memorandum?  

• Union of India v. Ashok Kumar Aggarwal (2013): 
  • The Court held that it is a settled proposition of law that an authority cannot issue orders/office memorandums/executive instructions that are in contravention of statutory rules. 
  • Instructions can be issued to supplement the statutory rules and not to supplant them. 
  • Thus, the Court held that an OM could not supersede Recruitment Rules promulgated under Article 309 of COI.