JUDGMENT 1. - This case has been referred by 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 "Lila Parishad Act, 1959 (hereinafter referred to as "the Act"), had framed Rajasthan Panchyat Samiti (Selection of Vikas Adhikaris) Rules, 1968 (hereinafter referred to as 'the Rules of 1968"). 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. 3. 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 18, 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in relation to matter covered by these rules and in force immediately before the commencement of these rules are hereby repealed. Provided that any order made or action taken under the rules and orders so repealed shall be deemed to have been made and taken under the provisions of these rules. 4. Thus, the effect of coning into force of these rules of 1982 is that the rules of 1968 have been repealed. The first Controversy thus which, calls for determination in this case is whether the Governor in exercise of its 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 26 of the Act. The first Controversy thus which, calls for determination in this case is whether the Governor in exercise of its 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 26 of the Act. Article 309 of the Constitution of India reads as follows:- "Art. 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 Government of a State or such person as he may direct in the case of services and posts in 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 State. 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 regulate the recruitment and conditions of Public Services and posts and the proviso further empower, the Governor to make such rules but it is subject to the condition that 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 flamed by the State Government or other authority get source and power to make rules under the command of the Legislature itself given in Act. Such rules, therefore, read with the source of power contained in the Act shall have force of law and well be considered as provisions made under an Act of the appropriate legislature. 5. Mr. Advocate General laid emphasis on the words "under this Article" used in proviso to Article 309 of the Constitution to show that even rules under an Act of the appropriate Legislature should be made under Article 309 of the Constitution. The words "under this Article", refer to provisions made by or under an Act of the appropriate Legislature and which can only relate to the Acts of the appropriate Legislature made under the first part part of Article 309 of the Constitution. That being so, it would not be necessary to make a mention in the Act made by the appropriate Legislature that it was empowering an authority under Article 309. First part of Article 309 of the Constitution in general terms only makes a mention that Acts of the appropriate Legislature may regulate the recruitment and conditions of service, which is of course subject to the provisions of the Constitution. The source of power to the appropriate Legislature for making Acts to regulate the recruitment and conditions of service does not emanate from Article 309 and as such there is no question of making a mention in any Act providing for regulating the recruitment and conditions of service that the same were made in exercise of powers conferred under Article 309 of the Constitution. Similarly it would not be necessary for any rules framed by the State Government or other subordinate legislative authority to make a mention of Article 309 of the Constitution when the source of power to make rules is given under an Act of Lite Legislature. Similarly it would not be necessary for any rules framed by the State Government or other subordinate legislative authority to make a mention of Article 309 of the Constitution when the source of power to make rules is given under an Act of Lite Legislature. It is only in case where the Governor is making rules regulating the recruitment and conditions of service he assumes powers under Article 309 of the Constitution and in such rules framed by the Governor, mention of Article 309 could be necessary. Thus, the rules of 1968 will be considered as are Act of appropriate Legislature, under this Article 309 of the Constitution as they come within the scope of first part of Article 309. 6. The power given to the Governor to frame rules under proviso to Article 309 in clearly circumscribed with the condition that until provision in that behalf is made by or under an Act of the appropriate Legislature. The words used here are both above and "under an Act". That makes the distinction clear that either provision in that behalf can be made by an Act itself or under an Act which means some sort of subordinate Legislation empowered under the Act it self. It is a matter of common knowledge that framing of rules governing recruitment and conditions of service is generally left with the State Government or other authority which is considered competent in the wisdom of the Legislature. Such power is conferred by some provision in the Act itself. The rules of 1968 thus, made will be rules made under an Act. 7. Learned Advocate Genera) contended that the power of the Governor under the proviso to Article 309, is coextensive with the power under the main part of Article 309. The Governor in these circumstances was competent to make the rules of 1982 and repeal the rules of 19ti8. It was further contended that there is no material difference between the Governor and the Government as the Government functions by the orders of the Ministers and the Governor also acts with the aid and advice of the Ministers. It is contended that rules of 1968 were also ultimately signed and approved by the Governor while the Rules of 1982 have also been made by the Governor in the valid exercise of his power under Article 309 of the Constitution. It is contended that rules of 1968 were also ultimately signed and approved by the Governor while the Rules of 1982 have also been made by the Governor in the valid exercise of his power under Article 309 of the Constitution. Reliance is placed on N. Layman Rao and ors. v. State of Karnataka. In the above case the age of retirement of the teachers of primary Schools was in question and the teachers had taken the stand that their terms of service were continued by Mysore Compulsory Primary Education Act, 1969 and, therefore, their age of retirement could not be altered by rules made by the Governor under Article 309. The 1969 Act provided in Section 14 transfer of Primary Schools managed by the Municipal Councils and Panchayats in the Madras area and Bellary District before the appointed day. The Supreme Court considered the crucial words in Section 14 (b) of the 1969 Act on which the teachers relied as "All Primary School Teachers...... shall, until other provision is made, receive the salary and allowances and be subject to the condition of service to which they were entitled immediately before the appointed day". It was held by the Supreme Court that the provisions contained in Section 14 (b) of the 1969 Act is a temporary and transitional provision which continued until other provision is made. The Legislature did not say until other provision is made because the Legislature is always free to legislate. The words "until other provision is made" mean provision which call be made by the legislature or by the Governor or the executive. The words "until other provision is made" do not exclusively limit to legislate. If the legislature has occupied the field the Governor has co-equal power. The power of the Governor is co-extensive with the legislative power. It was put then held that Section 14 (b) of the 1969 Act was not a law regulating recruitment aid conditions of service under Article 309 of the Constitution. It was further observed - Assuming it is, Article 309 of the Constitution does not preclude the legislature from making provision for prescribing conditions of recruitment and conditions of service by Rules. The proviso to Article 309 contemplates that Rules regulating conditions of service may be made under an enactment. It was further observed - Assuming it is, Article 309 of the Constitution does not preclude the legislature from making provision for prescribing conditions of recruitment and conditions of service by Rules. The proviso to Article 309 contemplates that Rules regulating conditions of service may be made under an enactment. Just as it is open to the appropriate legislator to provide for rules to be framed for regulating recruitment and conditions of service under Article 309, it is equally open to the legislature to provide that in certain conditions the Governor acting under the proviso may make appropriate rules. The power under the proviso is co-extensive with the power under tic main part." The Supreme Court thus found the impugned legislation as constitutionally valid. The above authority only lays down that the power of the Governor under proviso to Article 309 is co-extensive with the legislative power of the appropriate legislature under the main part of Article 309 so far as law regulating recruitment and conditions of service are concerned Co-extensive means both have equal power, but it does not mean that if rules are made under the Act, the same can be repealed by the Governor in exercise of his power under proviso to Article 309 of the Constitution. In a case where the Rules made under the Act may be silent or do no cover any point, the Governor can certainly in exercise of his rule making powers lay down provisions, but power of repealing a rule made under an Act cannot be exercised by the Governor who may have an equal or co-extensive power. The power to repeal a law can be exercised by the same authority is empowered under a competent law to do so. Even under Section 23 of the Rajasthan General Clauses Act, 1955 the power to add, to amend, vary or rescind any orders, rules, regulations, schemes. forms, bye-laws or notifications has to be exercised in the like manner. The Governor is a constitutional functionary and has been given different kinds of powers under the Constitution. Even under Section 23 of the Rajasthan General Clauses Act, 1955 the power to add, to amend, vary or rescind any orders, rules, regulations, schemes. forms, bye-laws or notifications has to be exercised in the like manner. The Governor is a constitutional functionary and has been given different kinds of powers under the Constitution. The powers conferred on the Governor to make rules under proviso to Article 309 is not the same as the powers of the State Government to make rules in exercise of powers conferred by sub-section (1) of Section 79 read with Section 26 of the Act and the rules made under the aforesaid power can only be repealed by the same authority and in the like manner in which the said rules are made. It is well settled that where an authority is given power to act in a particular manner, then such power has to be exercised in the manner alone and not otherwise. 8. It is undisputed in the present case that persons belonging to Rajasthan Agriculture Subordinate Services to which the petitioner belongs were entitled to be recruited for Vikas Adhikaris under the rules of 1968, while under the rules of 1982 now promulgated by the Governor members of Rajasthan Agriculture Subordinate Services are not eligible for being recruited as Vikas Adhikaris. Thus the rules of 1982 made by the Governor not only include numbers of many more services as eligible for Vikas Adhikaris but also exclude the members of Rajasthan Agriculture Subordinate Services who were eligible under the 1968 Rules. The Rules of 1982 have thus not been made in respect of an unoccupied field or regarding matters for which the Rules of 1968 were silent. On the contrary, the Rules of 1982 are inconsistent and in derogation of the provisions contained in 1968 Rules. Both the Rules as such cannot go together and one will have to yield to another. Rules of 1968 have been validly made by the inconsistent in exercise of powers conferred under the Act and the same held good unless repealed by a valid law Rules of 1982 as such framed by the Governor under Article 309, being inconsistent with the provisions of Rules of 1968 cannot repeal the rules of 1963 and will have to be declared as ultra vires and unconstitutional of the provisions of Article 309 of the Constitution. 9. 9. In (2) State of Uttar Pradesh and ors. v. Babu Rarer Upadhayaya, AIR 1961 SC 751 it was held as under : "Rules made under a statute must be treated for all purposes of construction or obligation exactly as if they were in the Act and are to be of the same effect as if contained in the Act, and are to be judicially noticed for all purposes of construction or obligation." Shri S.K. Mal Lodha J, in (3) 1979 WLS 466 held that Rule 320-A of the Rajasthan Prisons Rules 1951 was beyond the competence of the Governor under Article 309 of the Constitution, for rule 320-A could not be added after the existing rule 320 of the Rules under Section 59 of the Act as the rules under the Act could only be framed by the State Government. A Bench of Mysore high Court in (4) K. Hanumantha Rao and ors. v. State of Mysore by its Chief Secretary, Bangalore and ors. 1971 Labour & Industrial Cases 1414 has held as under:- The substance of the matter is that according to Article 309, the power to regulate recruitment and conditions of service in the case of public services and posts is that of the appropriate legislature. Until the Legislature exercises the said power which is referred to in the proviso by the expression until provision in that behalf is made by or under an Act of the appropriate Legislature, the Governor, in the case of State Services, is empowered to make rules for the same purpose. By referring to the exercise of Legislative power as a provision made by or under an Act, the proviso to Act 309 undoubtedly contemplates not merely a direct provision contained in the Statute itself but also a provision made under the Statute, which undoubtedly refers to some subsidiary legislation authorised by the Statute Hence the rules competently made under a Statute should be regarded as actual exercise of legislative power under a valid delegation made by the Legislature by making provision therefor in one or store of its sections. The constitutional doctrine involved is the one commonly referred to as the doctrine of occupied field. By conferring power on the appropriate Legislature to regulate the recruitment and conditions of service what Article 309 dots is to place within the Legislative competence of the appropriate Legislature a specific topic of Legislation. The constitutional doctrine involved is the one commonly referred to as the doctrine of occupied field. By conferring power on the appropriate Legislature to regulate the recruitment and conditions of service what Article 309 dots is to place within the Legislative competence of the appropriate Legislature a specific topic of Legislation. The initial power is actually that of the Legislature itself. If and so long as that field of legislation is not occupied by an Act of the appropriate Legislature or a set of rules competently made under the power conferred by the Act, the rules made by the Governor may occupy the said field. If the field is already occupied by the Legislature, then the Governor's rules cannot enter that field. If the Governor's rules occupy the field in the first instance in the absence of any Act or rules made under the Act, the proviso states that the rules shall yield place to any provision made by or under an Act of the appropriate Legislature. By stating that rules made by the Governor shall have effect subject to the provisions of the Act, the proviso indicates that the Governor's rules must yield place to the Statute. If on the same detail, there is a rule made by the Governor followed by a rule subsequently made under the Act of the appropriate Legislature and there is conflict between the two the former is rendered ineffective. That is a case of implied repeal. If an implied repeal can be brought about either by Statute itself or rule competently made under the Statute, then it follows logically that an express repeal of a rule or rules made by the Governor can be brought about by the Statute itself or rules competently made under the Statute " 10. There is no force in the contention of Mr. Joshi, learned counsel for the petitioner that the Rules of 1932 are also violative of Article 14 of the Constitution. The argument in this regard by Mr. There is no force in the contention of Mr. Joshi, learned counsel for the petitioner that the Rules of 1932 are also violative of Article 14 of the Constitution. The argument in this regard by Mr. joshi is based on the ground that only persons belonging to Rajasthan Animal Husbandry Service Group C II and Rajasthan Agriculture Subordinate Service were competent to be recruited as Vikas Adhikris under the Rules of 1968, while under the 1982 Rules members of 12 services have been held eligible for recruitment to the post of Vikas Adhikaris, it is contended that in Panchayat Samitis the Agriculture Graduates and Vaterinary Graduates alone are suitable and competent for the post of Vikas Adhikaris. There is no force in such an argument. The Government is the best judge to find that as to members of which service are suitable for appointment as Vikas Adhikaris. It cannot be said that the 12 categories of service now made eligible under the 1982 Rules have no rational nexus with the object to be achieved, and there can be no ground of discrimination on this basis that only Agriculture or Veterinary Graduates alone should be held competent far appointment as Vikas Adhikaris. 11. Learned counsel for the petitioner has also pointed out various defects in the advertisement, dated October 22, 1982, published in Rajasthan Patrika. dated November 5, 1982. In this regard it is contended that by the advertisement persons who were not eligible under the Rules of 1982 have been allowed to apply for the posts of Vikas Adhikaris. Learned Advocate General in this regard clearly submitted that no person can be appointed in disregard of cotes of eligibility laid down in the Rules and merely inviting of applications does not confer any right on a person to be selected for the post of Vikas Adltikari. No appointment has been made so far in view of the stay order granted by this Court. The Government is bound to follow the Rules and make appointment in accordance with the conditions of eligibility contained in the rules. Learned Advocate General has also candidly acceded that no appointments shall be made in violation of the rules. The petitioner can still raise a grievance against any individual case whose appointment is made in violation of the Rules. 12. Learned Advocate General has also candidly acceded that no appointments shall be made in violation of the rules. The petitioner can still raise a grievance against any individual case whose appointment is made in violation of the Rules. 12. However, in the view taken by me above, the Rajasthan Civil Services (Special Selection & Special Conditions of Service of Vikas Adhikaris) Rules. 1932 made by the Governor in exercise of powers under Article 309 of the Constitution are struck down and declared ultra vires. 13. In the result, the writ petition is allowed in the manner indicated above. Parties are directed to bear their own costs. 14. G.M. Lodha J. - 14. I have had the advantage and benefit of having read the judgments of brother judges, Sri Kasliwal and Dr. Sidhu. JJ., on the various facets of the legal debate III this writ petition which has been referred to a larger bench by orders of tile Chief justice. 15. At the very out set, I must mention that the kingpin of the controversy about the validity of the Rajasthan Civil Services (Special Selection and Special Conditions of Service of Vikas Adhikaris) Rules, 1982 (hereinafter referred to as the Rules, 1982) made by the Government of the State of Rajasthan is based on interpretation of the provision to Article 309 of the Constitution of India. 16. First part of Article 309 mandates the regulations and condition of service inducing the recruitment to public services and posts in connection with the Union or of any State by Acts or appropriate legislature. Proviso to Article 309 empowers the Governor or such person as he may direct in the case of services and posts in 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. The life and validity including the existence of such rules come to an end as soon as the provisions in that behalf are made by or under the Act of the appropriate Legislature. I am stopping here and dissecting the proviso to Article 309 by first dividing it into three parties, two of which - I have mentioned above. The life and validity including the existence of such rules come to an end as soon as the provisions in that behalf are made by or under the Act of the appropriate Legislature. I am stopping here and dissecting the proviso to Article 309 by first dividing it into three parties, two of which - I have mentioned above. It is pertinent to notice here that the Constituent Assembly in exercising, the Constituent authority used the words, "until provision in that behalf is made by or under an Act of the appropriate legislature". Further dissecting this part the crucial words relevant for the present controversy for adjudication, are "by or under an Act". 17. There cannot he any room for doubt that, "under an Act" not only includes but postulates subordinate legislation in the form of rules regulations by an agency to which the legislature delegates the rule making power or authority by an agency Under an Act", postulates subordinate legislation or and delegates legislation. If the Constituent Assembly would have stopped, here probably we would not have been required to do any exercise of interpretation as the meaning, implications and interpretation of "under an Act" would have always meant 'subordinate legislation' or 'delegated legislation' and, which, in terms would have meant rules framed by the Government under an Act. As is obvious from the reading of the Draft Article 282, even Draft Article contains these two riders on the exercise of the powers of the 'Governor' as would be obvious from the Constituent Assembly debate (vol. 9 P. 1082, dated the 7th Sept 1949, when Dr. B.R. Ambedkar, our founding father. moved Article 282 of the Constitution for consideration. 18. The constituent Assembly did not stop there but, further clarifying the effect and impact of those rule, and, therefore, it hastened to add, that the rules were made for confined subject to he provisions of any such Act. The crucial question, therefore, which has assumed the controversy is whether the phrase of any such Act' used in the proviso to Article 309 is limited to the various sections, sub-sections or clauses of the Act only or it would mean the provisions made by the subordinate legislative authority or delegated legisla, live authority in the form of rule; 'under an Act'. In other words, whether the provisions of any such Act' can be interpreted to m:an, the provisions 'under an Act'. 19. Kasliwal J., has interpreted the phrase, "provisions of any such Act to mean and include, the rules made under an Act' by the rule making authority having delegated powers but, Sidhu J., has disagreed on this crucial aspect of the case and opined that it is confined to the legislative Act and an Act only, and would not extend to the rules made by subordinate legislation process. 20. Seemingly, the interpretation put by Dr. Sidhu J., appears to be plausible as per the plain meaning of the words, "of any such Act" and, if that is accepted then, it would mean that only Acts of appropriate legislature would prevail over the 'Governors' and rule making power. 21. I have, therefore, spent many anxious moments to understand and appreciate significance of use of different phraseology by the Constituent Assembly while referring to "Acts". 22. In the first part of Article 309, the words used are, "Acts of the appropriate Legislature". In the proviso the words and phrase used is. "in that behalf is made by or under an Act of the appropriate legislature" and lastly in tine proviso in the third sequence the words used is "to the provisions of any such Act". Since the rule making power has been given to the Legislative authority to make provisions 'by or under an Act of the appropriate legislature', it is undoubted that Governor' can direct to make rules but, that is subject to the provisions which may be made by or under an Act. 23. To illustrate, Rajasthan Panchayat Samiti and Zila Parished (Revised Pay Scale) Rules, 1968 have been made under Section 31 and sub-section (1) of Section 79 of the Rajasthan Panchayai Samitis and Zila Parishads Act, 1959) Rajasthan Act (37 of 1939) by the State Government. Similarly, Rajasthan Panchayat Samitis & Zila Parishad Service Rules have been made by the Government of Rajasthan under Section 79 (1) of the Rajasthan Panchayat Samitis and "Lila Parishads Act, 1959. Rajasthan Panchayat Samitis & Zila Par ishads (Servant & Pensioners' Conduct) Rules, 1969 have been made under sub-section (1) of Section 79 of the same Act. 24. Similarly, Rajasthan Panchayat Samitis & Zila Parishad Service Rules have been made by the Government of Rajasthan under Section 79 (1) of the Rajasthan Panchayat Samitis and "Lila Parishads Act, 1959. Rajasthan Panchayat Samitis & Zila Par ishads (Servant & Pensioners' Conduct) Rules, 1969 have been made under sub-section (1) of Section 79 of the same Act. 24. Section 79 (1) of the Rajasthan Panchayat Samitis & Zila Parishads Act, 1959 empowers the State Government to make rules by notification for carrying out the purpose of this Act. The service conditions, therefore have to be laid down by the rules which are framed 'under the Act' though not by the Act, itself. 25. The limitations and fetters on the powers of 'Governor' or 'President' as the case may be, to frame the rules, is thus two-fold. Firstly, they will always be effective and valid unless they are repugnant to the provisions of any such Act; their life would be only till the provisions of those subjects is made by or under an Act'. Thus viewed, the two fold restrictions or the the test for testing the validity of exercise of 'Governors' powers for making such rules is concerned, it is to be understood to mean that, firstly 'Governor' cannot make any provisions for service conditions contrary to the provisions of the Act. Secondly, the 'Governor' is not competent to either continue existence of such rules or, try to make any such rules after the provision in that behalf is made by or under an Act' which postulates delegated legislation and subordinate legislation by the delegated authorities which is bound to be other than the legislature. Therefore, there is no doubt that the Rajasthan Panchayat Samitis (Selection, of Vikas Adhikaris) Rules, 1968 (hereinafter referred to be as the Rules of 1968) are rules made by the State Government under the Act. 26. Dr. Therefore, there is no doubt that the Rajasthan Panchayat Samitis (Selection, of Vikas Adhikaris) Rules, 1968 (hereinafter referred to be as the Rules of 1968) are rules made by the State Government under the Act. 26. Dr. Sidhu J., is of the view that "Vikas Adhikaris" is not on the cadre of the Panchayat Simitis and the posts of Vikas Adhikaris are not encadred posts and therefore the rules made in 1968 cannot be treated as the rules made 'under the Act.' The rule making power conferred under an Act in terms of the provisions and proviso to Article 389 relates to the posts and services which are in connection with the' affairs of the State' and, undoubtedly, the posts of Vikas Adhikaris as defined in clause (14) of Section 2 of the Rajasthan Panchayat Simitis & Lila Parsihads Act, 1959 (hereinafter referred to be as the Act, 1959) means the officer appointed with the designation by the State Government or by such other authority as may be authorised by the State Government in that behalf The entire scheme of the Act of 1959 would show that the post of Vikas Adhikari is the key post in the scheme of the Panchayat Samitis and Sections 26, 27 and 30 of the Act, 1959 make it explicit. According to Section 26, each Panchayat Samiti is required to have a Vikas Adhikari and those persons should be none-else but the persons holding the posts under the State Government. These officers would be on deputation to the Panchayat Samitis and they are liable to be transferred in consultation with the Pradhan Section 27 shows that the Pradhan of the Panchayat Samiti acts through Vikas Adhikari. Vikas Adhikari not only makes participation in the plans schemes but also executes them and participates in all the deliberations of the meeting of the Panchayat Samiti. The Vikas Adhikari can disburse moneys out of the Panchayat Samiti and execute its contract and sign all letters and documents for and on behalf of the Panchayat Samiti. Vikas Adhikari, in addition to the above, further is empowered to help the Panchayats in organising essential voluntary organisations for development work and in drawing up their plans with a view to ensure that the plans aid programmes are being executed with efficiency. Vikas Adhikari, in addition to the above, further is empowered to help the Panchayats in organising essential voluntary organisations for development work and in drawing up their plans with a view to ensure that the plans aid programmes are being executed with efficiency. The Vikas Adhikari exercises supervision and control over the acts of all office is and servants of the Panchayat Samiti. The Vikas Adhikari can further exercise such other powers and perform such other functions as ate conferred on him by or under this Act or as may be delegated to him under Section 84. 27. Under Section 30 of the Act, 1959, the Vikas Adhikari, in the absence of Pradhan is empowered to act in emergency for the welfare of the public. A further probe into the scheme of the Act would show that all the executive actions done in the name of the Panchayat Samiti but the correspondence and orders are signed by the Vikas Adhikari. His status in the Samiti is just like that of the Secretary in the State Government. The Vikas Adhikari therefore, functions for the purpose of the Act and, that being so, he being an Officer holding a post in connection with the affairs of the state', as contemplated by proviso to Act. 309 and, therefore, the procedure for his appointment though on deputation is required to be laid down under Section 26 which enjoins upon the State Government to appoint a Vikas Adhikari. 28. Clause (b) of sub-section (2) of Section 26 of the Act, 1959 in terms requires that teams and conditions should he prescribed and, therefore, cumulative effect of Section 26 of the Act as a whole and sub-section (1) and clauses (a) & (b) of sub- Section (2) of Section 26 of the Act in particular would show that the Act, itself, contemplates prescribing of terms and conditions and laying down of the rules for appointment and functioning of Vikas Adhikaris. The term, appointment' used in Section 26 of the Act, 1959 presupposes some methods and procedure for recruitment and appointment for Vikas Adhikaris even for deputation and, therefore, unless the same is prescribed by the Rules, it could not have been left to the discussion of the State Government. The term, appointment' used in Section 26 of the Act, 1959 presupposes some methods and procedure for recruitment and appointment for Vikas Adhikaris even for deputation and, therefore, unless the same is prescribed by the Rules, it could not have been left to the discussion of the State Government. It is precisely on account of this, that the State Government has exercised its powers under Section 26 and since Section 79(1) of the Act, 1959 empowers the State Government to make rules for carrying out the purpose of this Act, the source of rule making authority is mentioned as Section 27 and 79(1) of the Act, 1959. 29. With due respect to the views expressed to the contrary by Dr. Sidhu J., I have not been able to persuade myself to agree with the proposition that, Rules under Section 79 of the Act, 1959 can be made only for laying down the services conditions or, sources of recruitment or selections of the employees of the Panchayat Samitis which forms the cadre of Panchayat Samitis. To me, it appears that, whether the post of Vikas Adhikari is ex-cadre being on deputation and, not an encadred being outside the Panchavat Samiti, simpliciter, is not relevant because all said and done, the Vikas Adhikari being the key functionary and the bedrock of the bureaucracy in the Panchayat Samiti is to be delegated by the State Government for the purpose of the Act and not for any other purpose. More and more, I consider the question of ex-cadre and encadre of the Panchayat services. I am convinced that it might have more importance in other respects but, it has got no relevance for the purpose of deciding whether the rules can be framed under Section 79(1) read with Section 26 of the Act, 1959) for laying down the procedure of selection and other services conditions of the Vikas Adhidari who remains on deputation tin the Panchayat Samiti. The institution of Vikas Adhikari office has conic to state in the function of the Panchayat Samiti in the present scheme of the Act and, if I may say so, the entire functioning depends upon, on the one hand, on the efficiency and other qualities of the Pradhan and the members of the Panchayat Samiti and, on the other hand, on the efficiency, merit and functioning of the Vikas Adhikari. 30. 30. With due respect, therefore, I am of the view that the Rules framed in 1968 are the rules for the Vikas Adhikari's selections and appointments and, they are precisely under the Act of 1968 being directly related to Section 26 and 79 of the Act, 1959, and the view of Dr. Sidhu J. that these rules mention these sections by a sheer mistake or its cause of description or to put it more mildly inexactitude of terminology, cannot be accepted. 31. Now, the Rules of 1968 prescribing the various posts of source, the procedure regarding appointments and selections of the Vikas Adhikari being under the Act of 1968 would certainly be the rules 'under an Act' as contemplated by proviso to Article 309. The proviso contemplates that the rules regulating the recruitment to posts in connection with the affairs of the 'State' can be made under an Act' and undoubtedly, that is precisely the case here. 32. The 1982 Rules laying down the selection and special conditions of service of Vikas Adhikaris have been made by the Governor under the powers conferred under the proviso to Article 309 of the Constitution of India. The tenure of these Vikas Adhikaries have been mentioned and the source of the selection have also been mentioned Now, therefore, these Rules of 1982 hiving been made under Article 309 of the Constitution, by the Governor presupposes that the Vikas Adhikari holds the post in connection with the affairs of a 'State'. It should not be forgotten that so far as the Vikas Achikaris are concerned in the entire services of the Rajasthan these posts are only in Panchayat Samitis and in no other departments of the Government or Local bodies or Corporations. The term Vikas Adhikari owes its origin in the Vikas, i.e., the Development' and Panchayayat Raj institution in Rajasthan which are known in English as Community development relates to Panchayat Samitis, only. Therefore, when Article 309 of the Constitution postulates making of the rules regarding their recruitment by the 'Governor' it legally and logically means that the Governor's rules would be valid or would hold good only unless the provision in that behalf is not made by or under on Act'. Therefore, when Article 309 of the Constitution postulates making of the rules regarding their recruitment by the 'Governor' it legally and logically means that the Governor's rules would be valid or would hold good only unless the provision in that behalf is not made by or under on Act'. Conversely the moment provision is made under an Act' or by an Act' which in terms includes the rules frame I under the Act also, the Governor's powers would be taken away. To put it ill very simple and plain words, once the Rules are framed under an Act' to prescribe the procedure of the recruitment of Vikas Adhikaris, the Governor's powers to prescribe the procedure for recruitment to Vikas Adhikaris would cease to exist. 33. In my considered opinion, on a plain reading of Article 309 and more specially its proviso the concept of co-existence of the powers of Governor and the rule making authority under an Act being co-existence become untenant and I have got no hesitation in holding that they are not co-extensive nor they can co-existence either the legislature by direct legislation or the rule making authority under an Act by sub-ordinate legislation framed these rules or prescribed these provision, the Governor has to keep its hands-off. 34. I therefore, have got no has Station in agreeing with the final conclusion drawn by Kasliwal J . with the additional reasons, mentioned above and, without repetition of of the detailed reasons which he has given. 35. The second important feature of this case on which the discussion centres round and which has been made pivot of debate is whether the 'Governor' and the Government' means the same instrumentality or institution or function arise in the constitutional law and, particularly. Article 309 of the Constitution. 36. Before proceeding to discuss with the important aspect of the debate, I must say that the reading of the proviso to Article 309 would show that it is not the 'President' or, the Governor' which has been given powers to make the rules under the proviso but it can also be exercised by any such persons to whom he may direct. If the Governor' says that Board of Revenue would frame the rules of Tehsildar service under proviso to Article 309, the Board of Revenue would be competent to do so Similarly if the Governor' says that the S.D.O. would frame the rules for Patwaris then the S.D.O. would be competent to frame the rules under Article 309 proviso. That being so, it would not be proper approach to inter-mix the two constitutional functionaries which have been given the legislative power under Article 309. Again, under an Act, the power can again be given to any functionaries to frame the rules and as is well known, the power to frame the various rules are not limited or under the domain of the State Government alone. To illustrate, under the Co-operative Societies Act, the various rules framed by the Registrar and the bye-laws are framed by the co-operative societies. There are several such provisions of delegation under the several Acts by which the Rules laying down the service conclusions or in relation to recruitment's of various posts, are made by the functionaries other than the State Government. Under the Universities Act, for example, the Syndicate or Senate is empowered to decide and frame the service conditions and so forth and so on. Thus, it would be fallacious to equate the powers of the 'Governor' as contemplated by the proviso to Article 309 of the Constitution with the powers to any other functionaries under an Act and, in my considered opinion, the equation sought to be made cannot be sustained. 37. Again, it may be mentioned that, though the 'State Government'' and the 'Governor', in in my respects are supposed to function under a sort of the team of the' State'. But, their functions and activities in many of the fields are well defined in the Constitution. To illustrate under Article 163, the Councils of the Ministers advised the 'Governor' but though, the Councils of the Ministers or the Ministers act as Government in the rules of business yet, the 'Governor' maintains his different entity. 38. Part VI of the Constitution expressly provides the various provisions about the Governor'. The executive power of' the State' vests in the Governor'. The Governor' can grant pardons under Article 161. The 'Governor' appoints the Chief Minister under Article 164. The other Ministers are appointed on the advice of Chief Minister. 39. 38. Part VI of the Constitution expressly provides the various provisions about the Governor'. The executive power of' the State' vests in the Governor'. The Governor' can grant pardons under Article 161. The 'Governor' appoints the Chief Minister under Article 164. The other Ministers are appointed on the advice of Chief Minister. 39. The conduct of the business by the Government is expressly made in the name of the Governor' and the Governor also makes the rules of the business. However, from the above, it is clear that the Constitution has kept distinction between the 'Governor' and 'Government', though many constitutional functions and actions are to be clone in the name of the 'Governor'. 40. It would be fallacious and doing serious violence to the Constitution if the functions of the 'Governor' and the Government are treated as the same. In my considered opinion, with due respect to the view expressed, on the basis of the General Clauses Act, in order to appreciate the difference between the high constitutional functionaries and their constitutional complication. the provisions of General Clauses Act cannot be pressed into service. It would create complete confusion if the Constitutional field various differences of the functions and of the Governor and the Government, are tried to be understood by resort to General Clauses Act, for erasing their separate identities. 41. Article 367 of the Constitution expressly mandates that for interpretation of the Constitution normally the words and phrases as used in the Constitution should be interpreted in the context in which they have been used, the General Clauses Act, 1897 would apply subject to any adoption and modification which may be made. Article 367 of the Constitution reads as under : "367. Interpretation.-(1) Unless the context otherwise requires, the General Clauses Act, 1897, shall, subject to any adaptions and modifications that may be made therein under Article 372 apply for the interpretation of this Constitution as it applies for the interpretation of an Act of the Legislature of the Dominion of India. (2) Any reference in this Constitution to Acts or laws of, or made by, Parliament, or to Acts or laws of, or made, by, the Legislature of a State, shall be construed as including a reference to an Ordinance made by the President, of, to an Ordinance made by a Governor, as the case may be. (2) Any reference in this Constitution to Acts or laws of, or made by, Parliament, or to Acts or laws of, or made, by, the Legislature of a State, shall be construed as including a reference to an Ordinance made by the President, of, to an Ordinance made by a Governor, as the case may be. (3) For the purposes of this Constitution 'Foreign State' means any State other than India : provided that, subject to the provisions of any law made by Parliament the President may by order declare any State not to be a foreign State for such purposes as may be specified in the order." 42. Since I am of the opinion that the terminology of 'Governor' and the 'State Government' used and continued for the purposes of framing the rules providing service condition of the State employees visualises different situations and conditions and contingencies and they are not co-extensive and, therefore it is not necessary to further analyze, what is the implication of Article 367 in the present case. All that can be sai is that it postulates the normal interpretation to be done in the context, in which a particular tern phrase, words or jurisdiction of an authority, has been provided in the Constitution. Obviously, Article 309 empowers the Governor to exercise the powers of the legislature and subordinate legislature or delegated legislature either by himself or through any person to whom he delegates those powers to lay down ant make the rules regulating the recruitment and conditions of service of the person in service of the 'State' and this power has been given with the rider, condition expressly limitations that the moment legislature steps in and exercise; such powers in the same field of legislation either itself or through the delegated legislature in the form of subordinate legislation then the Governor would become functus officio in that field of service rule. That being so, the context in which the word. 'Governor' has been used under Article 309 excludes the application of General Clauses Act for its interpretation. In the context of the scheme of Article 309, the State Government. under an Act may be delegated powers to make rules but, that would not be co-extensive with the power of the Governor. The State Government while acting as subordinate, the legislature would be diametrically different and divergent to the Governor as contemplated by this proviso. In the context of the scheme of Article 309, the State Government. under an Act may be delegated powers to make rules but, that would not be co-extensive with the power of the Governor. The State Government while acting as subordinate, the legislature would be diametrically different and divergent to the Governor as contemplated by this proviso. 43. I am, therefore, of the opinion that by virtue of Article 367 of the Constitution, General Clauses Act cannot be pressed into service for holding that the proviso to Article 309 contemplates the existence of coextensive powers in Governor and State Government. The Governor and Legislate or the 'State Government' has delegated Legislature are different. Even Bill of Legislature cannot become law in the form of an Act unless the Bill is approved by the Governor but that would not mean that Governor and Legislature are same or intermingled or interchangeable and similar is the case of Governor in contradistinction to the State Government in the context of rule making power under the proviso to Article 309 of the Constitution 44. Now coming to the definition of the Governor' and the 'Government' as given in the Rajasthan General Clauses Act. Section 32 is the definition clause. Under Clause (33) of Section 32 of the Rajasthan General Clauses Act 1955, it has been provided. "Government" or 'the Government' shall include both the Central Government and any State Government". Under Clause (34-A) of Section 32, 'Governor' means as respects the period on or after the 1st day of November, 1956, the Governor of Rajasthan. Again, clause (75) of Section 32 provides, "State Government" shall mean, in relation to any thing done or to be done (i) on or from the commencement of the Constitution until the first day of' November, 1956, the Rajpramukh; and (iii) on and from the first day of November, 1956, the Governor. 45. The above definitions in the Rajasthan General Clauses Act are meaning to interpret the various laws of the 'State' legislature also, the laws enacted by the Central Act as adapted to Section 4 of the Rajasthan General Clauses Act. 46. In my considered opinion, the above provisions of Rajasthan General Clauses Act cannot be helpful in interpreting the different functions as in the Constitution. 46. In my considered opinion, the above provisions of Rajasthan General Clauses Act cannot be helpful in interpreting the different functions as in the Constitution. It may be mentioned that even the serve phrase of 'Governor' used in the Constitution in the different context would have had different implications, The Constitution itself, permits some actions or functions of the Governor which are discretionary and other one which are to be done on the advice of the State Government and without any option left to the Governor. Similarly, there are many autonomous bodies where as the Governor ex-office acts e.g. Chancellor of the University or so in other enactments. It would be difficult to accept that the 'Governor' and the Government' are interchangeable in all contexts. In fact, if it would be so simple then there would have been no occasion for the constitution to carve out the different functions Governor'. The 'Government', itself functions in the name of the 'Governor' of the State, and many notifications and acts which in fact, ate functions of she State Government but they are expressed to be talon in the name of the 'Governor'. Such an intermixing or interchanging is absolutely foreign to the Constitutional law and, therefore, for the purpose of Article 309, also, I have not bran able to persuade myself to hold that the rules made by the Governor' under the proviso to Act 309. by himself and the rules made by the State Government as subordinate legislation under an Act spring from the same fountain and have got the same source under the Constitution. I am therefore, unable to subscribe to this view that the 'Governor' and 'State Government' are interchangeable and there is no difference between the two in the constitutional scheme of the Act for the functioning of the State Government, for Article 309 of the Constitution. 47. In view of the above discussion, I would conclude by mentioning that I have added the above note in order to amplify and explain the reasons of my agreement with the views and decisions of Kasliwal, J. and respectful disagreement with Dr. Sidhu J., 48. I, therefore, agree with the final order proposed by Kasliwal J.,The following judgment is delivered by Hon'ble Mr. Justice K. S. Sindu: 49. Sidhu J., 48. I, therefore, agree with the final order proposed by Kasliwal J.,The following judgment is delivered by Hon'ble Mr. Justice K. S. Sindu: 49. I regret, I have not been able to persuade myself to agree with the judgment just delivered by my learned brothers Kasliwal and G.M. Lodha JJ. I am therefore expressing my dissent as follows : 50. The petitioner. Rajmal Mehta is holding the post of Assistant Agriculture Officer under the Deputy Director of Agriculture (Extension) Udaipur and is, as such, a member of the Rajasthan Subordinate Agriculture Service. In the purported exercise of its power, under section 79 (1), read with section 21 of the Rajasthan Panchayat Samitis and Zila Parishads Act. 1959 (hereinafter called the Act) the State Government made rules, vide notification, crated, July 15, 1968, laying down the procedure for election of officers for appointment as Vikas Adhikaris on deputation to the Panchayat Samitis. The said rules are called the Rajasthan Panchayat Samitis (Selection of Vikas Adhikaris) Rues, 1968 and will hereinafter be referred to merely as the 1968 Rules. Rule 4 of the 1968 Rules which gives and enumerates the sources from which selection for appointment as Vikas Adhikaris may be made includes the members of the the Rajasthan Agriculture Subordinate Service as one of such sources. The claim of the petitioner is that he is eligible for selection for appointment as a Vikas Adhikari in accordance with the provisions of rule 4 of the 1968 Rules. 51. In 1982, the Governor of Rajasthan made rules, in the purported exercise of the powers conferred by the proviso to Article 309 of the of India, laying down the procedure for special selection and conditions of service of officers for appointment as Vikas Adhikaris on deputation to to one of the Panchayat Samitis in Rajasthan These rules are called the Rajasthan Civil Services (Special Selection and Special Conditions of Service of Vikas Adhikaris) Rules, 1982, and will here in after be referred to merely as the 1982 Rules. If the 1982 Rules are valid and applicable, they have repealed the 1168 Rules, and thus deprived the petitioner of his eligibility for appointment as a Vikas Adhikari on deputation to one of the Panchayat Samitis in Rajasthan. The petitioner is admittedly not eligible for such appointment under the 1982 Rules. If the 1982 Rules are valid and applicable, they have repealed the 1168 Rules, and thus deprived the petitioner of his eligibility for appointment as a Vikas Adhikari on deputation to one of the Panchayat Samitis in Rajasthan. The petitioner is admittedly not eligible for such appointment under the 1982 Rules. He has filed the present Petitioner under Article 226 of the Constitution challenging the validity of the 1982 Rules The main argument raised on behalf the petitioner is that the State Government of Rajasthan which made the 1968 Rules in exercise of its powers under section 79(1) read with section 26 of the Act, is an authority which is separate and distinct from the Governor of Rajasthan who made inc 1982 Rules in exercise of the powers conferred by the proviso to Article 309 of the Constitution, and that, therefore it was not within the competence of the Governor, acting in exercise of the powers under the proviso to Article 309, to appeal the 1968 Rules made by the State Government in exercise of the powers conferred on it by section 79(1) read with section 26 of the Act. Reliance in support of this argument i, placed by learned counsel for the petitioner on a Single Bench decision of this Court reported in (3) Saveed Khan v. State of Rajasthan, 1979 Weekly Law Notes 466. 52. In order to appreciate the pros and cons of this argument, I may notice here some of the salient provisions of the Act having a bearing on the issue. As the preamble of the Act would itself show, the Legislature enacted it to provide for the constitution of Panchayat Samitis and Zila Parishads in the State of Rajasthan. Chapter 1, carrying the heading Preliminary" contain, inter alta, the usual definition section. The expression "Vikas Adhikari", as defined therein, means the officer appointed with that designation by the State Government or by such authority as may be authorised by the State Government in that behalf. Chapter II deals, inter alia, with the constitution, composition, powers and functions of Panchayat Samitis. Section 26 which occurs in this chapter provides for the appointment of Vikas Adhikaris, Extension Officers and Accounts clerks. It is noteworthy that the Legislature considered it necessary to state in this section that Vikas Adhikaris etc. Chapter II deals, inter alia, with the constitution, composition, powers and functions of Panchayat Samitis. Section 26 which occurs in this chapter provides for the appointment of Vikas Adhikaris, Extension Officers and Accounts clerks. It is noteworthy that the Legislature considered it necessary to state in this section that Vikas Adhikaris etc. for whose appointment provision is made therein must be persons who are already borne on the cadre of one of the State Services or are holding posts under the State Government. The section further lays down in clear term; that such persons shall be regarded as being on deputation to the Panchayat Samitis on such terms and conditions as may be prescribed. Section 31 which deals with appointment of staff of Panchayat Samitis specifically excludes Vikas Adhikaris etc. dealt with by section 26 from the purview of staff of Panchayat Samitis. Section 60 which occurs in Chapter III headed Zila Parishads" deals with appointment of staff of Zila Paushads. It lays down that provisions of section 31 shall apply mutatis mutandis in relation to the staff of Zila Parishads. Section 31 makes provision for appointment to posts in Class IV services fixed under sub-section 1 by the State Government or created under sub-section 2 by the Panchayat Samitis with the prior approval of the State Government The Vikas Adhikari is empowered to make appointments to such class IV services as mentioned above. Section 31 also provides for appointments to posts, other than Class IV posts, fixed or created under sub-section 1 or sub-section 2 as the case in a be, and such appointments can be made by the Panchayat Samiti in the prescribed manner from out of persons selected for the Rajasthan Panchayat Samiti and Zila Parishad Service constituted under section 86. Section 86 lays down inter alia that the Rajasthan Panchayat Samiti and Zila Parishad Service (here in after called the Service) shall consist of (i) village level workers (ii) Gram Sevikas, (iii) primary school teachers. (iv) ministerial establishment except accounts clerks. (v) fieldman, (vi) stockmen and (vii) vaccinators. It further lays down that recruitment to the Service shall be made district-wise in accordance with the rules made in that behalf by the State Government, 53. (iv) ministerial establishment except accounts clerks. (v) fieldman, (vi) stockmen and (vii) vaccinators. It further lays down that recruitment to the Service shall be made district-wise in accordance with the rules made in that behalf by the State Government, 53. It will thus be seen that the post of a Vikas Adhikari is not one of the posts included in the seven category of posts included by the Act in the Act in the Service. The State Government has also not encadred the post of a Vikas Adhikari in the Service. The Act of course vests the State Government with power to appoint a Vikas Adhikari on deputation but it must restrict its field of selection, for making such appointments on deputation from among persons already holding posts under the State Government or who are already borne on the cadre of the State services of Rajasthan. No provision is made, either in Section 26 or in section 86 of the Act, authorising the State Government to make rules prescribing the procedure for selection of officers for appointment on deputation as Vikas Adhikaris from among persons already holding posts under the State Government or who are already borne on the cadre of the State services of Rajasthan. Section 79 which, along with section 26, is mentioned in the 1968 Rules as the section under which the said rules purport to have been framed authorises the State Government to make rules for carrying out the purposes of this Act'. According to the preamble of the Act, the Legislature enacted it to provide for the constitution of Panchayat Samitis and Zila Parishads in the State of Rajasthan". As already explained the post of it Vikas Adhikari is no, a post encadred in the Rajasthan Panchayat Samiti and Zila Parishad Service. The Act of course makes provision for appointment on deputation of Vikas Adhikaris and such appointments can be made by selecting officers from among persons holding posts under the State Government of Rajasthan or encadred in a State service of Rajasthan. The Act does not provide any guidance as to how such selection is to he made by the State Government. This means the State Government is free to make such selection in the exercise of it, executive power. Of course. The Act does not provide any guidance as to how such selection is to he made by the State Government. This means the State Government is free to make such selection in the exercise of it, executive power. Of course. the absence of any provision in the Act regulating such selection could be no bar to the State Government making administrative rules regulating such selections. The administrative rules made in that behalf cannot however, be equated with statutory rules framed under the Act. Even assuming that such administrative rules framed by the State Government have the force of law, they are certainly not rules made under the Act. 54. In (5) Hukum Chand Mills Ltd. v. The State of Madhya Pradesh, AIR 1964 S.C. 1329 , their Lordships of the Supreme Court held that if the authority concerned had the requisite power to make certain rules recitation of wrong source of power in the notification containing such rules did not vitiate those rules. In that view of the matter, the 1968 Rules can be treated as having been made in exercise of the powers vesting in the State Government under the proviso to Article 309 of the Constitution. It may be mentioned in this context that the expression "State Government" as defined in Section 32(75) of the Rajasthan General Clauses Act, 1955, means the Governor of Rajasthan. Thus, the two expressions, i.e., the Governor of Rajasthan and the State Government of Rajasthan, mean one and the same thing and may therefore be used interchangeably in the context of the 1968 Rules, and for that matter, the 1982 Rules as well. 55. I may now proceed to examine the effect of the 1968 Rules on the 198? Rules and vice versa in he light of Article 309 of the Constitution. This Article reads : X X X X X X On a plain reading of this Article, it will be seen that so far as recruitment end conditions of service of persons appointed to public services and posts in connection with the affairs of any State are concerned, power is vested in the State Legislature to pass any Act regulation such recruitment and conditions of service. The founding fathers added a proviso to this Article to enable the Executive (which means lite Governor or the State Government of Rajasthan in the instant case; to make rules regulating such recruitment and conditions of service. Until provision in that behalf is made by or under an Act". The rules so made, according to the proviso, shall have effect subject to the provisions of such Act". Now, it has already been explained above that the 1968 Rules are not and cannot be treated as the rules framed under the Act. Even assuming for the sake of argument that they are the rules framed under the Act, they cannot affect the validity of the 1982 Rues in any manner, for the to Article 309 lays down in terms that the rules framed thereunder shall have effect subject to the provisions of the Act. The 1982 Rules shall therefore prevail subject to the provisions of the Act. The words subject to the provisions of such Act" as used in the proviso to Article 309 cannot be enlarged so as to mean "subject to the provisions of such Act and the rules made thereunder". It is trite law that the Constitution must be construed without adding to it any word which is not there; and, if so construed, Article 309 Rules of one and only one construction which is that the rules made thereunder shall have full effect subject to the provisions of an Act passed by the Legislature. Making the rules under Article 309 subject to an Act of the Legislature does not ipso facto mean that such rules would also be subject to the rules made by a delegate of the Legislature in exercise of the powers conferred upon him by the Legislature under the provisions of the Act passed by it. The rules made by a delegate of the Legislature cannot possibly be equated with an Act passed by the Legislature. The Act passed by a Legislature and the rules framed under such Act are, qualitatively speaking. two entirely different things. It bears repetition that the words "subject to the provision of such Act" occurring in the proviso to Article 309 have only one effect, and the same is that the rules under Article 309 are subject only to Act passed by the Legislature, and not to any rules made under such Act. two entirely different things. It bears repetition that the words "subject to the provision of such Act" occurring in the proviso to Article 309 have only one effect, and the same is that the rules under Article 309 are subject only to Act passed by the Legislature, and not to any rules made under such Act. To my mind, the Constituent Assembly which empowered the Legislature to make "provision by or under an Act" for the purpose of regulating recruitment and conditions of service of civil servants made a deliberate departure while dealing with the effect of such regulation "by or under an Act" on such regulation by rules made under Article 309 Rules under Article 309, so the Constituent Assembly has ordained, shall have effect subject to the provisions of any such Act, and in stopping short at the word "Act". the founding fathers deliberately excluded any subjection of the rules under Article 309 to the rules under an Act of the Legislature. 56. This construction of the provisions of Article 309 finds support from some important observations of the Supreme Court made in (6) B. S. Vadera v. Union of India., AIR 1969 SC 118 . It will be much better if the said observations are reproduced here in extenso. This is what their Lordships said in the context of the cited case : It is also significant to note that the proviso to Article 309, clearly lays down that "any rules so made shall have effect, subject to the provisions of any such Act". The clear and unambiguous expressions, used in the Constitution must be given their full and unrestricted meaning unless hedged-in by any limitations. The rules, which have to be subject to the provisions of the Constitution, shall have effect, 'subject to the provisions of any such Act " That is, if the appropriate Legislature has passed an Act, under Article 309, the rules, framed under the Proviso. will have effect, subject to that Act; but, in the absence of any Act, of the appropriate Legislature, on the matter, in our opinion, the rules, made by the President, or by such person as he may direct, are to have full effect, both prospectively and retrospectively. Apart from the limitations, pointed out above, there is none other, imposed by the proviso to Article 309, regarding the ambit of the operation of such rules. Apart from the limitations, pointed out above, there is none other, imposed by the proviso to Article 309, regarding the ambit of the operation of such rules. In other words, the rules, unless they can be impeached on grounds such as breach of Part I I I or any other Constitutional provision, must be enforced, if made by the appropriate authority. 57. It may therefore be safely concluded that except to the extent of their repugnance, if any, to the provisions of the Act, the 1982 Rules made under Article 309 of the Constitution shall have full effect, and that apart from the limitation of the Act, there is no other limitation imposed by the proviso to Article 309 regarding the ambit of the operation of the 1982 Rules. The 1968 Rules cannot therefore limit the operation of the 1982 Rules which shall have full effect notwithstanding anything to the contrary in the 1968 Rules. 58. As for the Single Bench decision of this court reported in (3) Syeed Khan v. State of Rajasthan, 1979 WLN 466 , drawing a distinction between the State Government and the Governor as respects the power to frame rules in exercise of powers under Article 309 of the Constitution or under an Act passed by the Legislature, it has already been explained that the so-called distinction is without any difference and that the expression "State Government" and "Governor" can be used interchangeably in such a context. The contrary view expressed in Syeed Khan's case (ibid) is not, it is respectfully submitted, a correct view. 59. For all these reasons, I hold that the 1982 Rules are valid and operative and therefore the petitioner is not eligible for selection for his appointment on deputation as a Vikas Adhikari. I also do not find any merit in the argument that the 1982 Rules are violative of the petitioners fundamental right of equality before the law and equal protection of the laws guaranteed by Article 14 of the Constitution. The Governor or the State Government is the best judge as to the qualifications to be prescribed for eligibility for appointment on deputation as Vikas Adhikaris. There is no arbitrariness about the 1982 Rules. 60. In conclusion, this writ petition fails and is dismissed leaving the parties to bear their own costs. *******