The author of this article is Mr. Abhijeet Mukherji a practicing Advocate at High Court of Judicature at Allahabad, Prayagraj since 2011. Partner, Mukherji & Mukherji and he is also appointed as State Law Officer Brief Holder (Criminal).

Law, according to Kelson is a technique of social organization. He says, “law is characterized not as an end but as a means, as an apparatus of compulsion to which, as such there adheres no political or ethical value, law apparatus whose value derives from some end which transcends the law”
 As is already known that so far as legislations are concerned, the Act enacted by the parliament is the parent statute; the Statutes framed thereunder are pieces of subordinate or delegated legislation. Ordinances, Order, Bye-Law, Rule, Regulation, Notification, Custom or usages etc. are at the base. They are pieces of sub-delegated legislation. Thus, these legislative actions are at the lowest of the rung. Therefore, as of necessity, they cannot sail beyond the Statute or the Act.  
John Austin, the propounder of the analytical school of Jurisprudence defined law by stating that Law is the command of the sovereign. Assuming in our country, that if the sovereign is the State and its commands; its enforcement agencies. Then taking this premise, it is safe to submit that any law which is capable of taking shape of enforcement or rather comes in the realm of enforcement is a “law” under A. 13. This has been illustrated in A. 13 (3)(a) wherein the inclusive character of law under our Constitution is provided by using the word “includes” for law. Thus, it is stated that under this Article, unless the context otherwise requires, “law” includes any:

       I.        Ordinance
     II.        Order
   III.        Bye-Law
  IV.        Rule
    V.        Regulation
  VI.        Notification; and
 VII.        Custom or usages

Further, with regard to A. 13(3)(a) it may be pertinent to note that the word “having the force of law”  appearing in this article may be interpreted according to Holland’s definition of Law as “a rule of external human action enforced by the sovereign political authority”. From this definition it follows that such a law as provided in A. 13(3)(a) has following  three essential characteristics:
1.   Such a Law is a rule relating to the actions of human beings.
2.   Such a Law attempts to regulate the external actions of human beings.
3.   Such a Law is enforced by the State.
Thus we may infer that the Act of Parliament which delegates the power may in so many words lay down that ‘regulations’, ‘rules’, ‘orders’, ‘warrants’, ‘minutes’, ‘schemes’, ‘bye-laws’, or other instruments- for delegated legislation appears under all these different names- may be made or approved under defined conditions. On the other hand, the statute may merely authorise the minister to ‘prescribe’ or ‘approve’ certain requirements or to ‘appoint’ a day or ‘fix’ some standard, but give no directions about the particular method or form to be adopted in framing his decision; he may even be free to perform his prescribing, approving, appointing or fixing by an ad hoc decision- perhaps even informally in the course of correspondence- without any obligation to formulate it in general terms as a legislative regulation[1].  
l  The hierarchy of sub delegated laws in the realm of Services under Union or State:

As far as the service law in India and the hierarchy of this form of law in the relm are concerned, the law under A. 13 must be read with A. 309 which reads as under:

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 affairs of 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 Governor 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 concluding portion of the provisio is perhaps of paramount importance to the subject. As is provided, in the service life of any person in Union or Sate service, rules may be framed to “regulate” his or her service conditions but such rules will always be sub-servient to the parent Act, as stated before.

It goes without saying that Service conditions are controlled by the administration, not only by way of framing rules. There is a plethora of such regulating actions by the executive, the pecking order and respective differences of which is interesting to note.

l  The various Regulating Actions of the Executive as per their hierarchy:

Bye-laws are rules made in exercise of statutory power, by some authority subordinate to the legislature (eg. Municipal[2] and other local bodies, public utility corporations empowered by the State to make bye-laws) for the regulation, administration or management of some local area, property undertaking etc. which are binding on all persons who come within their scope.

Commonly, rule made by local authorities under statutory power are regarded as bye-laws. But any other statutory body[3] may be
Vested with the power to make bye-laws.

A bye-law does not have the status of a statute[4] but it has the force of administrative orders having statutory authority[5]. Bye-Laws and Rules do not stand under the same footing. What distinguishes a bye-law from a ‘rule’, however, is that a rule is made by some governmental authority other than the legislature and a rule made by a government department would never be called a ‘bye-law’, the latter term is used with reference to the subordinate legislation by a statutory body.  

Rules (and there variance with regulations:
Rule framed in the exercise of power under the Act is legislative in character and will have the force of as if state legislature had framed the rules[6]. Rules framed under A. 309 of the Constitution can be given retrospective effect[7]. Service rules framed under the statutory provision have the force of law[8].

I.             S. 3(51) of the General Clauses Act defines a rule as a -
“rule made in exercise of power conferred by enactment, and shall include regulation made as a rule under any enactment”.

A rule is of general application in the same way as a statute, differing only in the nature of the authority by which it is created.

“Rules made under an Act...are to be of the same effect as if contained in the Act and are to be judicially noticed, must be treated for all purposes of construction or obligation or otherwise, exactly as if they were in the Act. If there is a conflict between one of these rules and a section of the Act, it must be dealt with in the same spirit as a conflict between two sections of the Act should be dealt with. If reconciliation is impossible, the subordinate provision must give way, and probably the rule would be treated as subordinate to the section”[9].

In other words, when a rule, regulation or notification[10] made under statutory authority is validly made under the Act i.e. is intra vires the regulation making authority[11] which should be regarded as a part and parcel of the statute itself and should not be regarded as though it were contained in the Act itself[12].

In our Supreme Court decision in Ibrahim v. R.T.A.[13], there are certain observations which should be read in the above light:

a bye law must not be repugnant to the statute or the general law. But bye-laws and rules made under rule making power conferred by a statute do not stand on the same footing, as such rules are part and parcel of the statute itself[14].”

Rule-making power may be conferred not only by a statute but also by a statutory order[15].

II     Broadly speaking, there is little difference between a rule and a regulation, excepting that where a rule-making power is vested in a non-governmental body, e.g., a statutory corporation such as a University[16], the subordinate legislation is usually called a regulation.
Sometimes the power to make rules as well as regulations is vested in the same authority, e.g., the Central Government- by ss. 29-30 of the Mines Act, 1923, and if made in compliance with the formality prescribed by the Act, and if not inconsistent with the Act, both acquire the same status of “having effect as if enacted in this Act”[17] [s.31(4)]. In such a case, the apparent distinction between the two powers is that while the rules deal with major problems arising under the Act, the Regulations are to provide for minor and subsidiary matters.
It has also been held that regulation, made in exercise of a statutory power, amounts to a ‘rule’ within the meaning of s. 24 of the General Clauses Act.
While a rule or regulation are general in scope[18], it must be remembered that unlike rules which can be vested upon non-governmental bodies also, regulations are made only by statutory authorities and corporations like LIC[19]. As an illustration it may also be added that generally, for example in Mines and Minerals Act, rules deal with the major problem while the regulations deal with the minor problem in the Statute.    
Regulation has a statutory sanction and force if they play an essential and integral part in the sphere of operation[20]. Power to make regulation is confined to certain limits court will ignore them. That the regulation has legal status is of no avail[21].

Unlike Rules and Regulations, Orders are specific in nature and relate to enforcement of some rule previously made or some provisions of the statute itself to cases or classes of cases[22].

Though practically the difference is not always maintained; orders may further be classified into following three kinds:

                     I.        Administrative order[23]: When an order relates to individual
                   II.        Quasi-judicial order[24]:  When an order indicates as to how a subordinate should dispose of a case
                  III.        Legislative order[25]: When an order lays down a “rule” as to how the cases of the same nature are to be disposed of.

At this juncture it is worth mentioning that when a legislative order is passed order it, apart from being specific in application, considers the individual aspect in its applicability and the existing rights and liabilities of the named parties and particular persons.This is the distinction between such orders and rules. The rules, on the other hand, apart from being general in application, and is directed at the future ‘situations’[26]. 
An administrative order will survive unless it is qualified or ceases to operate for another reason[27]. Administrative order to create a post can be issued unless it is inconsistent with the rules[28].

It is an announcement or directive typically in the form of a printed leaflet intended to be sent to many persons or otherwise distributed[29]. Circular issued pursuant to policy decision must pass the test of A. 14, 15, 16, of the Constitution[30]. “Departmental orders” is another terminology given to Circulars[31].  Circulars are issued by the state government and they are capable of enforcement[32] as long as do not contravene the part three of the constitution[33].

As far as individual notice is concerned, it only affects the civil rights of a person and is essential for the purposes of natural justice so that the person may make his representation to the action proposed[34], except where there are exceptional circumstances which make it expedient to issue notice before taking of action[35].  Where giving of such notice is require by the relevant statute, either expressly[36] or impliedly[37], such condition is construed by the court as mandatory[38] and in default, the resultant order is invalidated, apart from the general principles of natural justice.
Notification[39] implies of formal announcement of a legally relevant fact. A notification published in official gazette means a notification published by the authority of law. It is on formal declaration andpublication of an order and shall have to be in accordance with the declared policies; e.g.- ss. 4,5,6 of the Land Acquisition Act 1986.

Like any other statutory instrument, a notification may be ultra vires, if it transgresses the powers conferred in this behalf by the statute[40] or the relevant statutory instrument[41], or unconstitutional, if it offends against constitutional provisions[42]. But, if intra vires, it has the force of law[43], and has to be read along with the statute[44].

A notification has no statutory force and cannot override rules statutorily made[45].  When a notification is issued in accordance with power conferred by the statute, it has statutory force and validity and therefore, the exemption under the notification is as it were contained in the Act itself as observed by the apex court in Orient Weaving Mills Pvt. Ltd. v. Union of India[46]. The principle is well-settled that when two views of a notification are possible, it should be construed in favour of the subject, as notification is a part of fiscal enactment.

It must, however, be borne in mind that absurd results of construction should be avoided per the rules of interpretation laid down by the Supreme Court in Collector of Central Excise v. Parley Exports Pvt. Ltd.[47]  It is not the duty of the court to import words in the notification and thereby to legislate or interpret in a manner which may render the scheme to an absurdity. Notification should be strictly construed but there is another equally valid principle that such notification should be given their due effect keeping in view the purpose underlying it[48]
In Ramesh Mehta v. Sanwal Chand Singhvi[49] , S.B. Sinha J. observed that the subordinate or deligated legislation must be read in a meaningful manner s as to give effect to the provisions of the statute. In selecting the true meaning of a word, regard must be had to the consequences leading thereto. If two constructions are possible to adopt, a meaning which would make the provision workable and in consonance with the statutory scheme should be preferred. 

Notification contrary to rule is invalid and inoperative[50]. Statutory notification cannot be superseded by non-statutory executive order[51].

Administrative/Executive Instructions:
An administrative instruction cannot possibly be a substitute for a notification[52]. A field is fully covered by the provisions of the Act and Rules. There is no provision in the Act empowering the Government to supplement the rules by executive instructions. If the Act had empowered the Government to issue administrative instructions to supplement the rules, the Government could fill the gaps in the rules by issuing administrative instructions provided the rules are silent on the same subject and the same is not inconsistent with the rules. In absence of such provision in the Act, the Government cannot supplement the rules by an executive order[53].

By means of an administrative instruction Government can fill up the gaps of rule provided the rule is silent on the subject and they are not inconsistent with the rule[54]. Administrative instructions not inconsistent with rules can be issued to cover a field not covered by the rules. Thus it may be said that their role is to supplementthe rules[55]. In absence of provisions in the rules administrative instructions may apply[56]. Notes or administrative instructions cannot supplement or supersede statutory rules. Thus, a writ shall not lie for enforcement of an administrative instruction[57]. However, it is pertinent to note that in absence of statutory rule, executive instruction or decision will operate[58]. 

Under A. 77(1) of the Constitution, executive instructions to supplement legislative power, is a law.

A noting in the office will not confer a right upon a person[59]. However it is important to note that an incorrect noting can cause serious repercussions to an administration. 

Government Resolution:
This means the resolutions moved by the ministers. Government resolution is a law under A. 13(3)(a) of the Constitution[60].

Hand Book:
Hand book of procedure[61] is published by the Government of India in the Ministry of Commerce and Industry. Such a hand book for returning officers cannot overrule the provisions of Statute, rules or order[62].

A scheme made under statutory power is another form of subordinate legislation. A scheme works out the ways and meansof implementing the object of a law, particularly, relating to welfare measures[63]e.g. the Coal Mines Provident Fund and Bonus Schemes Act (XLVI of 1948) and the s. 68 under the Motor Vehicles Act.

Though a ‘scheme’ is not mentioned in A. 13(3) 0f our Constitution nor defined in s. 3 of the General Clauses Act, it is a species of subordinate legislation and, as such, is referred to in s. 20 of the General Clauses Act. It is treated as a rule or regulation and interpreted in the same manner[64], subject to the rule of ultra vires[65].  It would also be invalid as vitiated by mala fides if it is made not according to the statutory requirements but under the influence of an extraneous authority e.g., the chief minister [66]
When a statute is declared unconstitutional, a scheme framed thereunder falls with it. But it has been held that when a State Act becomes void owing to repugnancy to a Central Law, schemes framed under the State Act prior to the moment when repugnancy took place, remain as regards past transactions[67].
Though a non-statutory scheme has no legislative scheme, it has been enforced on various grounds such as estoppel[68], beneficial object of the scheme[69], fundamental rights involved[70] etc.

Rules framed by the Court-
Superior courts in all countries posses the power to frame rules to regulate the proceedings before them, as ancillary to judicial powers.
In India such power is conferred by the Constitution itself. In case of the Supreme Court it is A. 145(1). As far as the High Courts are concerned there is no provision exactly corresponding to A. 145(1) however, rules of the High courts are framed under A. 225 and A. 227(1) of the Constitution.
The continuance of the rule-making power under the Constitution is, however subject to two limitations:
(a) The provisions of the Constitution,
(b) Legislation by the appropriate Legislature under Entries 78, 95 0f List I, 3 of List II[71], 46 of List III. 

These administrative instruments, hierarchical differences notwithstanding, serve the purpose of administration of Justice. Sometimes they become necessary concomitant to maintain Rule of Law in a Welfare State like India.
However, as Lord Denning rightly points out in his book The Changing Law[72]:
“...In order that right and not might is the basis of the society, the people must be under the Rule of Law and there are four requisites which the law must fulfil: (1) It must be certain so that people may act safely upon it;(2) It must be just so that they will approve it being enforced (3) It must be readily ascertainable, so that they may know what their rights and duties are; (4) it must be enforced by independent and upright judges in whom the people have confidence”.

[1]Committee on Ministers’ Powers Report, pp 16-17.
[2]AIR 1964 SC 264
[3] Kurse v. Johhnson (1898) 2 QB 91(96).
[4]AIR 1954 SC 493.
[5]AIR 1970 SC 245.
[6] (2001) 1 SCC 728.
[7](1998) 9 SCC 439.
[8](1999) 1 SCC 741; see also : (1999) 2 SCC 60.
[9]Wicks v. D.P.P., (1947) 1 ALL E.R. 205 (H.L.).
[10]AIR 1957 SC 790(791).
[11] (1953) SCR 290(298).
[12](1956) SCR 393(448); Willingdale v. Norris (1909) 1 KB 57.
[13]Op. Cit. at footnote no. 6.
[14] See: Craies on Statute Law at p. 299.
[15]AIR 1983 SC 743.
[16] E.g.- ss.22, 23 of The Mysore University Act, 1956; AIR 1965 SC 1932.
[17]AIR 1961 SC 838 (842, 845).
[18]Cf. Att. Gen. For Alberta v. Huggard Asssets, (1953) 2 ALLER 951.
[19]AIR 1976 Cal. 88.
[20](2000) 7 SCC 109.
[21](2001) 8 SCC 676.
[22]Op. Cit. at footnote no. 13.
[23] Eg.- An order of Detention of a person under r.30 of Defence of India Rules 1962.
[24] (1954) SCR 578.
[25]AIR 1960 Sc 475.
[26] Willapoint Oysters v. Ewing (1949)338 US 860; AIR 1960 SC 475; See also: Essential Commodities Act 1955( sugar control order 1956).
[27](2003) 9 SCC 336.
[28](1998) 6 SCC 66.
[29]S. 120(1) of the Trade and Merchandise Marks Act 1958.
[30](2002) 6 SCC 562.
[31]AIR 1994 SC 268 (para 362)
[32](2004)3SCC429; (2003) 8 SCC 203 ; (2004) 2 SCC 510.
[33](1955)1 SCR 568; (1951) SCR 525; (1951) SCR 229.
[34]AIR 1975 SC 266.
[35]AIR 1977 SC 965.
[36]AIR 1980 SC 1157
[37]AIR 1997 SC 2313.
[38]AIR 1976 SC 57.
[39]See: The Genereal Clauses Act , s. 20-21; AIR 1961 SC 683 (686) (notice to public).
[40] Cf. Gopi Chand v. Delhi Administration, A. 1959 S.C. 609.  
[41] Bhagwati Saran v. State of U.P., A. 1961 S.C. 928.
[42] Harnam Singh v. R.T.A., A.1954 S.C. 140; See also: AIR 1959 SC 626 (632).
[43] Kailash Nath v. State of U.P., A.  1957 S.C. 790 (791).
[44] State of Bombay v. Balsara, (1951) S.C.R. 682 (718-719).
[45] Union of India v. Arun kumar Roy AIR, 1986 SC 737.
[46]AIR1963SC98, See also: AIR1957SC790.
[47]AIR1989SC644, See also :AIR 1992 SC 152, AIR 1991 SC1028 , (1993) ILR Guj. 143
[48]AIR 1993 SC 1921
[49](2004) 5 SCC 409.
[50] (1998) 4 SCC 189.
[51](1999) 2 SCC 672.
[52](2003) 1 SCC 506.
[53](2001) 8 SCC 378.
[54](2000) 5 SCC 742.
[55](1998) 8 SCC 753.
[56](1999) 1 SCC 482.
[57](2004) 1 SCC 592.
[58](1999) 8 SCC  99.
[59] (2004) 2 SCC 65.
[60](1954) SCR 599(604).
[61] Hand book of procedure Vol. 1 2002-07.
[62] (2004) 2 SCC 759.
[63]AIR 1963 SC 976 (para 2,p.10)
[64](1929) 1 KB 619.
[65]Prescott v. Brimingham Corpn. (1954) 3 ALLER 698(CA).
[66]AIR 1964 SC 962.
[67]AIR 1959 SC 648(667-69).
[68](1994)1 SCC 274 (para 8).
[69]AIR 1990 SC 746.
[70] AIR 1989 SC 2138 (para 64).
[71]AIR 1961 Cal. 545 (533).
[72]The Changing Law, by Denning (under special arrangement with Sweet and Maxwel Ltd U.K. and Second Indian reprint of 2012 Universal Law Publishing Co.Pvt. Ltd. ISBN : 978-81-7534-434-1.)


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