[GPF Rules] Rule Framed Under Article 309 Can't Be Replaced By Executive Order Issued Under Article 162: Allahabad High Court

The Allahabad High Court has observed that any rule framed under Article 309 of the Constitution of India can only be replaced by an Act of an appropriate legislature and the same cannot be replaced by an executive order issued under Article 162 of the Constitution of India.

The Bench of Justice Vivek Chaudhary observed thus as it set aside a government's order of 1986 withdrawing the benefit of bonus required to be paid under Rule 12 of the General Provident Fund (U.P.), Rules, 1985.

The Case in brief

Essentially, the Court was hearing the writ plea of one Anurag Mehrotra challenging an order of November 2019 by which his representation regarding grant of bonus under the Incentive Bonus Scheme as per Rule 12(1) of General Provident Fund (U.P.), Rules, 1985 was rejected. 

On the other hand, the State Government argued that vide its Order issued in July 1986, it had provided that w.e.f. 01.04.1988 no incentive bonus shall be separately payable.

Against this backdrop, the petitioner submitted that the G.P.F. Rules of 1985 were framed in the exercise of power under Article 309 and therefore, it was argued, any change in the same can be made only by exercising power under Article 309 of the Constitution of India and not by executive order (as was done by the State).

Court's order

At the outset, the Court perused Article 309 of the Constitution of India to note that it provides that the Governor of a State or such person as he may direct in case of services and posts in connection with the affairs of the State can frame rules regulating the recruitment and the conditions of service of persons appointed and the same shall be effective until provision in that behalf is made by or under an Act of an appropriate legislature.

Therefore, the Court, after referring to several rulings of the Apex Court, concluded thus:

"Any rule framed under Article 309 can only be replaced by an Act of an appropriate legislature. It cannot be replaced by executive order under Article 162 of the Constitution of India...The State Government cannot issue executive instructions with regard to the field already occupied by the G.P.F. Rules of 1985 issued under Article 309 of the Constitution of India. It also cannot modify the said rules by an executive order"

Further, the Court observed that the G.P.F. Rules of 1985 provide for a 1% bonus and that there is no power left in the State Government to withdraw or repeal the said bonus in the exercise of its executive power.

"The same can only be withdrawn or modified in the exercise of power under Article 309 of the Constitution of India," the Court reiterated.

Lastly, concluding that the Government's Order of July 986 is not issued in exercise of power under Article 309 but is issued in exercise of its executive power, the Court set the same aside to the extent it withdrew the benefit of bonus required to be paid under Rule 12 of the G.P.F. Rules, 1985.

Case title - Anurag Mehrotra v. State Of U.P.Thru Addl.Chief Secy.Finance Deptt. Lko & Ors. 
Case citation: 2022 LiveLaw (AB) 12

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