Justice R.M. Sahai [1]
738. A question is raised whether an executive order made in terms of Article 16(4) is effective and enforceable by itself or whether it is necessary that the said “provision” is enacted into a law made by the appropriate legislature under Article 309 or is incorporated into and issued as a Rule by the President/Governor under the proviso to Article 309 for it to become enforceable? Mr. Ram Jethmalani submits that Article 16(4) is merely declaratory in nature, that it is an enabling provision and that it is not a source of power by itself.
He submits that unless made into a law by the appropriate legislature or issued as a rule in terms of the proviso to Article 309, the “provision” so made by the Executive does not become enforceable. At the same time, he submits that the impugned Memorandums must be deemed to be and must be treated as Rules made and issued under the proviso to Article 309 of the Constitution. We find it difficult to agree with Sri Jethmalani. Once we hold that a provision under Article 16(4) can be made by the executive, it must necessarily follow that such a provision is effective the moment it is made. A Constitution Bench of this Court in B. S. Yadav, AIR 1981 Supreme Court 561, (Y.C. Chandrachud, C.J., speaking for the Bench) has observed :
“Article 235 does not confer upon the High Court the power to make rules relating to conditions of service of judicial officers attached to district Courts and the Courts subordinate thereto. Whenever it was intended to confer on any authority the power to make any special provisions or rules, including rules relating to conditions of service, the Constitution has stated to in express terms. See, for example Articles 15(4), 16(4), 77(3), 87(2), 118, 145(1), 146(1) and (2), 148(5), 166(3), 176(2), 187(3), 208, 225, 227(2) and (3), 229(1) and (2), 234, 237 and 283(1) and (2).
739. Be that as it may, there is yet another reason, why we cannot agree that the impugned Memorandums are not effective and enforceable the moment they are issued. It is well settled by the decisions of this Court that the appropriate government is empowered to prescribe the conditions of service of its employees by an executive order in the absence of the rules made under the proviso to Article 309. It is further held by this Court that even where Rules under the proviso to Article 309 are made, the Government can issue orders/instructions with respect to matters upon which the Rules are silent. (See Sant Ram Sharma v. State of Rajasthan, 1968(1) SCR 111. This view has been reiterated in a recent decision of this Court in Comptroller and Auditor General v. Mohanlal Mehrotra, 1990(2) SCC 1 : (AIR 1991 Supreme Court 2288 at p. 2293), wherein it is held :
“The High Court is not right in stating that there cannot be an administrative order directing reservation for Scheduled Castes and Scheduled Tribes as it would alter the statutory rules in force. The rules do not provide for any reservation. In fact it is silent on the subject of reservation. The Government could direct the reservation by executive orders. The administrative orders cannot be issued in contravention of the statutory rules but it could be issued to supplement the statutory rules (See the observations in Santram Sharma v. State of Rajasthan, (1968) SCR III : AIR 1967 Supreme Court 1910). In fact similar circulars were issued by the Railway Board introducing reservations for scheduled castes and scheduled tribes in the Railway Services both for selection and non-selection categories of posts. They were issued to implement the policy of the Central Government and they have been upheld by this Court in Akhil Bhartiya Soshit Karamchari Sangh (Railways) v. Union of India, 1991(1) SCC 246 : AIR 1981 Supreme Court 298″.
740. It would, therefore, follow that until a law is made or rules are issued under Article 309 with respect to reservation in favour of backward classes, it would always be open to the Executive (Government) to provide for -reservation of appointments/posts in favour of Backward Classes by an executive order. We cannot also agree with Sri Jethmalani that the impugned Memorandums should be treated as Rules made under the proviso to Article 309. There is nothing in them suggesting even distantly that they were issued under the proviso to Article 309. They were never intended to be so, nor is that the stand of the Union Government before us. They are executive orders issued under Article 73 of the Constitution read with clause (4) of Article 16. The mere omission of a recital “in the name and by order of the President of India” does not affect the validity or enforceability of the orders, as held by this Court repeatedly.
[1] This article is an excerpt from the judgment of Indira Sawhney v Union of India 1993 (1) SCT 448