Service rule versus courts order

kabilan (Querist) 03 March 2015 This query is : Resolved
Dear sir,
I need clarification on the following.
The service rule, made under article 309 of Constitution of India, prescribe a mode of appointment of a person in a service. When a division bench of a high court defines the mode i.e., how an appointment is to be treated as Promotion or Transfer.

Which one is valid in law ?
Can the courts take the power of legislature to make rules?

Follow Query

Report Abuse

N.K.Assumi (Expert) 03 March 2015
Rule framed under Article 309 will prevail, but if the rule so frame under 309 are arbitary or unreasonaqble the same may be struck down by the court. As an illustrations, rules for qualifications of appointment of APP and Adl.PP, qualifications was laid down as B.A., B.Com., LL.B or any other equivalent degree was struck down by the High Court.

kabilan (Querist) 03 March 2015
Sir,
Thank you. But, Sir I wonder how prescription of certain qualification for appointment of APP can be arbitrary. Can I have the link for the judgement? Is there any reported judgement of Supreme Court upholding that courts should not tread upon legislature in the absence of arbitrariness? I may please be helped.

Anirudh (Expert) 03 March 2015
Dear Mr. Kabilan,

Your query is in an abstract form. This query is based on your understanding of the issue and according to you what is the legal query that it throws up. BUT THAT NEED NOT BE SO.

Therefore, (i) you have to indicate your fact situation, (ii) the detaied HC decision (or in the alternative the name of the HC, the case No., year, date of decision, name of the parties etc. so that one can access the same through website), and lastly (iii) your query.

This will enable one to really understand the fact, and to go through the decision of the HC, and to answer your specific query.

Guest (Expert) 03 March 2015
Your academic type of questions won't get you appropriate solution and would tend to raise more and more questions UNLESS you discuss your real problem with facts about your recruitment rules versus the court judgment, if any. Please note, everybody cannot presume what exactly you want to know.

So, please discuss the real problem, instead of continuing with asking supplementary academic questions.