relaxing the requirement of any rule
Under the proviso to Article 309 of the Constitution, the power to make rules regulating the recruitment and conditions of service of persons appointed to public services and posts in connection with the affairs of the Union vests in the President or such persons as he may direct. It is automatic that the authority which is competent to make rules is competent also to amend or interpret them. The Government of India Act, 1935, expressly recognized the principle that the highest Government authority has the inherent power to relax the provisions of any service rule in individual cases of hardship where some allowance or concession, not permissible under the strict terms of the rules, is justified. Sub-section (5) of Section 241 of the Government of India Act, 1935, accordingly provided :-
"No rules made, under this Section shall be construed to limit or abridge the power of the Governor-General or a Governor to deal with the case of any person serving His Majesty in a civil capacity in India in such manner as may appear to him to be just and equitable :
Provided that, where any such rule is applicable to the case of any person, the case shall not be dealt with in any manner less favourable to him than that provided by that rule…….."
2. The absence of a similar provision in the Constitution created some doubt as to whether such inherent power is not enjoyed by the President. In order, therefore, to remove any doubts and to make the position in this respect clear, the rule was promulgated in the Ministry of Home Affairs Notification No. 108/54-Ests.(A), dated the 20th November, 1954 (Decision No. 1 above), making express provisions on the lines of sub-section (5) of Section 241 of the Government of India Act, 1935.
3. This rule does not introduce a new principle or procedure which was not already in vogue, but merely serves to make explicit the position which was assumed to have prevailed heretofore. The power of the Central Government to relax a rule as and when considered necessary to deal with any particular case in a just equitable manner in intended, as in the past, to be invoked only in rare and exceptional cases. Such action should only be taken in accordance with the accepted procedure hitherto followed in dealing with such cases. Before an order of relaxation is passed in any case, the Ministry which made the rule proposed to be relaxed, and other Ministries, e.g. Ministry of Home Affairs and/or Ministry of Finance as may be appropriate with reference to the facts and circumstances and subject matter of each case, should be consulted and any existing rules of business or procedure of the Government of India Secretariat having a bearing on the subject, should be complied with.
4. In any case in which it is agreed by the Ministry or Ministries concerned that it is a fit case in which the power to relax any rule should be exercised by the Central Government, the reasons for such relaxation should be placed on record on the appropriate file, but these should not form part of the formal order itself to be issued by the Central Government in this behalf.
5. It should be noted that the order of the Central Government which may be issued dispensing with or relaxing the requirement of any rule in any particular case should be authenticated as an order of the President in accordance with the requirements of Article 77 of the Constitution.
[MHA OM No. 180/54-Ests.(A), dated 25.03.1955]