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.”
142. The rule-making function under the proviso to Article 309 is transitional. The President with respect to the posts in connection with the affairs of the Union, and the Governor in connection with the affairs of State shall have the power to make rules under the proviso only until a statute is enacted in this connection. Any rule that is made by the President or the Governor shall be “Subject to the provisions of any such Act” made by the appropriate legislature. The exercise of power by the President and the Governor under Article 309 does not in any way restrict the power that is otherwise available under Article 309. The exercise of rule making power by the President under Article 309 does not substitute the legislative power granted.
143.In Tulsiram Patel (supra), a Constitution Bench of this Court held that the appropriate legislature, to enact laws under Article 309, would depend upon the provisions of the Constitution with respect to legislative competence and the division of powers. This Court further held that the rules framed by the President or the Governor under Article 309 must conform with a statute enacted in exercise of power under Entry 70 of List I and Entry 41 of List II:
“51. Which would be the appropriate Legislature to enact laws or the appropriate authority to frame rules would depend upon the provisions of the Constitution with respect to legislative competence
92
