Summary
In 1921 the Auditor-General, as the administrative head of the Indian Audit Department, inserted Article 1666A by a circular No. 1757-E/1129 dated 18th April 1921 giving weight to the length of service as Upper Division Clerks in the fixation of seniority in the Subordinate Accounts Service.
In the Audit Code prepared subsequently, Article 1666A appeared as Article 52. Thereafter, in the Manual of Standing Orders issued by the Auditor-General in 1938, Article 52 found expression as paragraph 143. By a correction slip dated 27th July, 1956, the Comptroller and Auditor-General removed the factor of weightage on the basis of length of service in the determination of seniority.The respondents in the appeals, who had entered service in the Office of the Accountant General, as Upper Division Clerks, appeared in the Subordinate Accounts Service Examination and passed the examination held in November 1969, and were promoted shortly thereafter. They claimed seniority on the basis that their length of service in the inferior post should be taken into account, and rested their claim on paragraph 143 of the Manual of Standing Orders as it stood prior to its amendment by the correction slip of 27th July 1956. The claim was rejected by the Comptroller and Auditor-General A writ petition filed by them in the High Court was allowed by a Single Judge and the judgment was affirmed by the Appellate Bench of the High Court.The Accountant-General and the Comptroller and Auditor- General appealed to this Court. During the pendency of the appeals, the President enacted 156the Indian Audit and Accounts Department (Subordinate Accounts Service & Subordinate Railway Audit Service) Service Rules, 1974. They were deemed to have come into force on 27th July, 1956. These rules purported to give statutory recognition to the amendment of paragraph 143 by the Comptroller and Auditor-General. Rule 6 provided for appointments to the service and Rule 7 dealt with seniority.Rule 9 provided that in matters not specifically provided for the rules, regulations, orders or instructions of the Central Civil Services as applicable to the Indian Audit and Accounts Department would be applicable. Rule 10 empowered the Comptroller and Auditor-General to issue general or special instructions for giving effect to the Rules.In the appeals, the respondents assailed the validity of the Rules of 1974 and the amendment made in paragraph 143, contending that the Rules are invalid as clause (5) of Article 148 does not permit the retrospective enactment of rules made thereunder, that the specific rules affecting the seniority of the respondents are invalid because in entrusting power to the Comptroller and Auditor-General to issue orders and instructions in his discretion the doctrine against excessive delegation of legislative power has been violated, and that paragraph 143 possesses the status of a statutory rule and, therefore, the amendment attempted by the correction slip has no legal effect upon it.In the connected writ petitions, the petitioners who had passed the Subordinate Accounts Service Examination were promoted to the Service after 1956 some before the enactment of the Rules of 1974 and some thereafter. It was contended on their behalf that the fixation of seniority having been made by Rule 7(2) to depend on the order in which appointments to the service were made under Rule 6 depends on an arbitrary power conferred on the Comptroller and Auditor-General to pass orders and instructions.On the question whether the respondents are entitled to claim fixation of their seniority in the Subordinate Accounts Service after taking into account their length of service as Upper Division Clerks.Allowing the appeals and dismissing the writ petitions,^HELD: 1. There is nothing in the language of clause (5) of Article 148, to indicate that the rules framed therein were intended to serve until Parliamentary legislation was enacted. All that the clause says is that the rules framed would be subject to the provisions of the Constitution and of any law made by Parliament. Clause (5) of Article 148 confers power on the President to frame rules operating prospectively only. The rules of 1974 cannot have retrospective operation. Sub-rule (2) of rule 1, which declares that they will be deemed to have come into force on 27th July, 1956 is therefore ultra vires. [163B-C]B.S. Vadera v. Union of India & Ors. [1968] 3 S.C.R.575 referred to.2. The Comptroller and Auditor-General is a high ranking constitutional authority, and can be expected to act according to the needs of the service and without arbitrariness. He is the constitutional head of one of the most important departments of the State, and is expected to know what the depart- 157ment requires and how best to fulfil those requirements. The power conferred on him under the Rules does not violate the principle against excessive delegation. [165C-D]3. Paragraph 143 in the Manual of Standing Orders remained throughout a departmental instruction and, therefore, could be amended by the departmental instruction contained in the correction slip issued by the Comptroller and Auditor-General in 1956. [164F]4. There is a clear dichotomy in the power conferred by Article 309, a division of power between the Parliament or President, as the case may be, on the one side and the State Legislature or Governor on the other. The division is marked by the circumstance that under Article 309 services and posts in connection with the affairs of the Union are dealt with by a separate authority from the services and posts in connection with the affairs of a State. That dichotomy is not possible in the power employed for appointing persons in the Indian Audit and Accounts Department and for prescribing their conditions of service. [160H-161A]5. The authority vested in the Comptroller and Auditor- General ranges over functions associated with the affairs of the States. It is a single office, and the Indian Audit and Accounts Department, which it heads, is a single department.They cannot be said to be concerned with the affairs of the Union exclusively. Consequently, the regulation of the recruitment and conditions of service of persons serving in the Indian Audit and Accounts Department cannot be regarded as a matter falling within the domain of the President within the terms of the proviso to Article 309. [162 C]B. Shiva Rao, "The Framing of India's Constitution: A Study" [1968] Chap. 12, pp. 414-417 referred to.6. It cannot be said that persons serving in the Indian Audit and Accounts Department are holding office in connection with the affairs of the Union exclusively. [161C]7. The power contained in clause (5) of Article 148 is not related to the power under the proviso to Article 309.The two powers are separate and distinct from each other and are not complementary to one another. The reference to the proviso under Article 309 in the recital of the Notification publishing the Rules of 1974 is meaningless and must be ignored. [162D-E]8. Having regard to the provision determining the fixation of seniority under the Rules of 1974 and the position obtaining thereafter, none of the petitioners in the writ petitions can claim the benefit of weightage on the basis of length of service. [165A]See the full content of this document
Extract
Accountant General & Anr. Etc. Etc. VS. S. Doraiswamy & Ors. Etc. Etc.
PETITIONER: ACCOUNTANT GENERAL & ANR. ETC. ETC.Vs.RESPONDENT: S. DORAISWAMY & ORS. ETC. ETC.DATE OF JUDGMENT13/11/1980BENCH: PATHAK, R.S.BENCH: PATHAK, R.S.KRISHNAIYER, V.R.REDDY, O. CHINNAPPA (J)CITATION: 1981 AIR 783 1981 SCR (2) 155 1981 SCC (4) 93CITATOR INFO : C&F 1989 SC1233 (4)ACT: Constitution of India 1950, Articles 148(5) and 309- Scope of.Comptroller and Auditor-General-Functions of-Head of Indian Audit and Accounts Department-persons serving in the department-Whether holding office exclusively in connection with the affairs of the Union-Regulation of their recruitment and conditions of service-Whether within the domain of the President under Article 309 Proviso Indian Audit & Accounts Department (Subordinate Accounts Service & Subordinate Railway Audit service) Service Rules 1974, Rules 1(2) and 10-Whether can have retrospective operation-Rule 1(2) whether ultra vires-Power conferred on Comptroller & Auditor-General under Rule 10- Whether violates the doctrine against excessive delegation.Comptroller & Auditor-General'...
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