# 15 5 ACCOUNTANT GENERAL & ANR. Ere. ETC v. S. DORAISWAMY & ORS. ETC. ETC

- **Citation:** [1981] 2 S.C.R. 155
- **Court:** Supreme Court of India
- **Decided:** 1980-11-13
- **Case number:** Civil Appeal Nos. 1584-1588 of 1973
- **Bench:** V. R. Krishna Iyer, R. S. Pathak, 0. Chinnappa Rlddy
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/15-5-accountant-general-anr-ere-etc-v-s-doraiswamy-ors-etc-etc-8197
- **Pages:** 11

## Headnote

B
Constitution of India 1950, Articles 148(5) and 309--Scope of.
Conlptroller and Auditor-General-FunctiPns of-Head of Indian
Audit
and Accounts Departme·nt-Persons serving in the tkpartn1ent-Whether hold-
,,...-
ing office exclusively in connection with the affairs. af the Union-Regulation
C
of their recruitn1ent and conditions of service-Whether within the
domain
of the President under Article 309 prpviso.
Indian Audit t"'
Accounts
Depart1nent (Subordinate
Accounts
ServicP.
& Subordinate Railway Audit S.ei!Vice) Service Rules 1974, Rules 1(2)
and
HJ-Whether can have retrospective operation-Rule 1(2) whether ultra viresPower conferred on Co1nptroller & Auditor-Gelleral under Rul2 10-Whether
violates the doctrine against excessive delegation.
Co1nptrpller & Auditor-General's Manual of Standing Orders para 143Wh.et!zer could be amended by departmental instructions.
D
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 DiviE
sion 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 AuditorGeneral 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. -
F
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
G
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-Genera].
A writ petition filed by them in the High Court was allowed 1.Jy a Single
Judge and the judgment ·was affirmed by the
Appellate Bench of the High
Court.
The Accountant-General and the Comptrolier and Auditor-General appealed
to this Court. During the pendency of the appeals,
the
President enacted
l l-1281 SCl/80
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1
IM
!VllM
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H
156
SUPREME COURT REPORTS
[1981] 2 S.C.R.
the lndian Audit and Accounts Department (Subordinate Accounts
Service
& Subordinate Railway Audit Service) Service Rules, 1974.
They were deen1ed 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
.1\uditor-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 iμvalid because in entrusting power to the
Con1ptroller and Auditor-General to issue orders and
instructions
in
his
discreti&n the doctrine against excessive delegation of legislative power
bas
been violated, and that paragraph 143 possesses the status of a stntutory role
and, therefore, the amendment attempted by the correction
slip has no l

## Text

15 5
ACCOUNTANT GENERAL & ANR. Ere. ETC.
A
v.
S. DORAISWAMY & ORS. ETC. ETC.
November 13, 1980
[V. R. KRISHNA IYER, R. S. PATHAK & 0. CHINNAPPA RLDDY, JJ.]
B
Constitution of India 1950, Articles 148(5) and 309--Scope of.
Conlptroller and Auditor-General-FunctiPns of-Head of Indian
Audit
and Accounts Departme·nt-Persons serving in the tkpartn1ent-Whether hold-
,,...-
ing office exclusively in connection with the affairs. af the Union-Regulation
C
of their recruitn1ent and conditions of service-Whether within the
domain
of the President under Article 309 prpviso.
Indian Audit t"'
Accounts
Depart1nent (Subordinate
Accounts
ServicP.
& Subordinate Railway Audit S.ei!Vice) Service Rules 1974, Rules 1(2)
and
HJ-Whether can have retrospective operation-Rule 1(2) whether ultra viresPower conferred on Co1nptroller & Auditor-Gelleral under Rul2 10-Whether
violates the doctrine against excessive delegation.
Co1nptrpller & Auditor-General's Manual of Standing Orders para 143Wh.et!zer could be amended by departmental instructions.
D
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 DiviE
sion 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 AuditorGeneral 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. -
F
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
G
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-Genera].
A writ petition filed by them in the High Court was allowed 1.Jy a Single
Judge and the judgment ·was affirmed by the
Appellate Bench of the High
Court.
The Accountant-General and the Comptrolier and Auditor-General appealed
to this Court. During the pendency of the appeals,
the
President enacted
l l-1281 SCl/80
H
'
---~·---~.
---·~~~----~"• 6
1
IM
!VllM
A
8
c
D
E
F
G
H
156
SUPREME COURT REPORTS
[1981] 2 S.C.R.
the lndian Audit and Accounts Department (Subordinate Accounts
Service
& Subordinate Railway Audit Service) Service Rules, 1974.
They were deen1ed 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
.1\uditor-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 iμvalid because in entrusting power to the
Con1ptroller and Auditor-General to issue orders and
instructions
in
his
discreti&n the doctrine against excessive delegation of legislative power
bas
been violated, and that paragraph 143 possesses the status of a stntutory role
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 Suber~
dinate 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 : !. There is nothing in the language of clause (5) of Article 148,
•
to indicate that the rules framed therein were intended to serve until Parlia-
-..;
mentary legislation was enacted. All that the clause says is that
th'e
rules
fran1ed 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 anJ 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-
•
..
ACCOUNTANT GENL. V. S. DORAISWAMY
157
ment requires and how best to fulfil those requirements. Tue power conA
ferred 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]
B
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 oth'er.
The
division is marked by the circumstance that under Article 309 services and
posts in connection \vith 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 c()nditions 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 cffice,
c
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
D
Union exclusively.
Consequently, the regulation of the recruitment and conditions of service of persons serving in the Indian Audit and Accounts Depart·
ment 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 lndia's Constitution: A
Study" [1968],
Chap. 12. pp. 414-417 referred to.
E
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. [161 CJ
· 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. [1620-EJ
8. Having regcird 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]
CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 1584-1588 of
1973.
F
G
Appeals by Special Leave from the Judgment and Order dated 6th
August, 1973 of the Madras High Court in Writ Appeal Nos. 13 to H
17 of 1973.
AND
158
SUPREME COURT REPORTS
[1981] 2 S.C.R.
A
Writ Petition Nos. 357 of 1979 and 4367 of 1978.
B
c
(Under Article 32 of the Constitution)
K. Parasaran, Soli. General, N. Nettar and Miss A. Subhashmi for
the Appellants in all appeals.
T. S. Krishnamurthy Iyer, H .. B. Dattar, A. K. Srivastava and
T. P. Sunderarajan for the Petitioners in WPs. Nos. 4367 of 1978 &
357 of 1979.
1'. S. Krish1wmurthy Iyer, Vineet Kumar and A. K. Srivastava for
the Respondents.
The Judgment of the Court was delivered by
PATHAK, J.-These appeals, by special leave, raise the question
whether the respondents arc entitled to claim fixation o( their
seniority in the
Subordinate
Accounts
Service after taking into
account their length of service as Upper Division Clerks. The resD
pondents entered service in the Office of the
Accountant General,
Tamil Nadu as Upper Division Clerks.
They appeared in the Subordinate Accounts Service Examination but it was o'nly after a number of attempts that they succeeded in passing. They passed the
examination held in November, 1969 and were
promoted shortly
thereafter.
They claimed seniority on the basis that their length of
E
service in the inferior post should be taken into acoount, and rested
their claim o'n paragraph 143 of the Manual of Standing Orders issued
by the Comptroller and Auditor-General as it stood before its
amendment by a correction slip of 27th July, 1956.
The correction
slip removed the factor of weightage. on the basis of length. of
service in the determination of seniority.
The claim was rejected by
F
the Comptroller and Auditor-General. A writ petition filed by them
in the High Court of Madras was allowed by a learned Single Judge,
and bis judgment was affirmed by an appellate Bench of the High j
Court.
Against the judgment of the appellate Bench, the Accoun·
·
!ant General, Tamil Nadu and the Comptroller and Auditor-General
have appeaJ.ed to this Court, and those appeals are pending as Civil
G
Appeals Nos. 1584 to 1588 of 1973.
During the pendency of those
appeals the President euacted the Indian Audit and Accounts Depat:tment (Subordinate Accounts Service & Subordinate
Railway Audit
Service) Service Rules, 197 4 (referred to hereinafter as "the Rule~
of 1974"). The Rules of 1974 purport to give statutory recognition
to the amendment of paragraph 143 by the Comptroller and AuditorH
General.
The validity of the Rules of 1974 and the amendment made
in paragraph 143 are assailed by the respondents in the instant
appeals.
••
•
•
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ACCOUNTANT GENL. v. s. DORAISWAMY (Pathak J.)
159
The Rules of 197 4 have been enacted by the President.
They
are deemed to have come into force on 27th July, 1956, which has
been defined, for the purposes of the Rules as the "appointed day".
The Subordinate Accounts Service (the "S.orvice") includes members
appointed to it before the appointed day as well as persons recruited
to it iu or before that day.
Rule 5 provides that recruitment shall
be made
by direct recruitment i'n accordance with the orders or
<lirections issued by the ComptroJler and Auditor-General from time
to time and also by promotion.
Rule 6 provid's :
"6. /1ppointJnents :-
Appointments to the Service shall be made from the list
prepared in accordance with the orders and instructions
issued by the Comptro1ler and Auditor-General from time
to time and applicable at the time
of appointment to the
Service."
Rule 7 deals with seniority, and doc:ares :
"7. Seniority :-
( 1) The seniority inter-se of the persons appointed to the
service before the appointed day shall be regulated by the
orders or instructions issued by the Comptroller and AuditorGcneral as were i'n force at the relevant limo before such
day.
(2) The seniority-inter-Se of the persons appointed
to
the Service on or after the appointed day shall be in the
order in which the appointments are made to the service in
accordance· with rule 6.
Provided that a direct recruit shall on appointment to the
Service rank senior to all o'fficiating persons in the service
(excluding a direct recruit) passing in the same departmental
examination or subsequent departmental examinations.
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Provided further tha.t the seniority of a person who had
declined fhe appointment to !he Service but who is subseG
quently appointed to the Service shall be determined with
reference to the date on which he assumed charge of the
post in the cadre."
By virtue of Rule 9, in matters not specifically provided for in the
Rules, every person appointed to the Service is governed by the rules,
H
regulations, orders or instructions made or issued in respect of the
Central Civil Services as applicable to the Indian Audit and Accounts
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160
SUPREME COURT REPORTS
[1981] 2 S.C.R.
Department.
Rule 10 empowers the Comptroller and Auditor-General
to issue, from time to time, such general or special instructions or
orders as he may consider necessary or expedient for the purpose of
giving effect to the Rules.
The respondents have raised two contentions.
The first is that
the Rules are invalid as clause (5) of Art. 148 to which alone, it is
said, they must be ascribed, docs not permit tbe retrospective enactment of rules made thereunder.
The other contention is
that the
specific rules affecti'ng the seniority of the respondents are invalid be>-
cause in entrusting power to the Comptroller and Auditor-Genera! to
issue orders and instructions in his discretion the doctrine against
excessive delegation of legislative power has been violated.
Taking the first conte_ntion first, it may be noted that the Rules of
1974 purport, according to the recital in the Notification dated 4th
November, 1974 publishing them, to have been made by the President
"in exercise of the powers conferred by the proviso to Art. 309 and
clause (5) of Art. 148 of the Constitution and after consultation
with
the
Comptroller
and
Auditor-General
of
India".
The respondents say that the only provision of the Constitution under
which those Rules could be made is clause (5) of Art. 148, and we
should ignore refereno~ to the proviso to Art. 309.
If that is done,
they urge, there will be no justification for holding that the
Rules
of 1974 can be given retrospective operation. Unlike the proviso fo
Art. 309, it is pointed out, clause (5) of Art. 148 does not permit
the enactment of retrospectively operating rules.
We think that the
respondents are right.
Article 309 provides for legislation by the appropriate Legislature
to 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, and the
p_roviso to Art. 309 declares
that until such legislation is enacted by the appropriate Legislature
the President is empowered in the case of services and posts in connection with the affairs of the Union, and the Governor of a State i:n
the case of services and posts in connection with the affairs of a State,
to make rules regulating the recruitment and the conditions of seryice of persons appointed to such services and posts.
There is
a
clear dichotomy in the power conferred by Art. 309, a division of
power between the Parliament or President, as the case may be, on
th<J one side and the State Legislature o'r Governor on the other. The
division is marked by the circumstance that under Art. 309 services
and posts in connection with the affairs
of the
Union
are
dealt with
by a
separate
authority
from
the
services
and
-
ACCOUNTANT GENL. v .. s. DORAISWAMY (Pathak J.)
161
posts in connection with !he affairs of
a
State.
That dichotomy
it s"ems, is not possible in the power employed for appointing per.;ons
in the Indian Audit and Accounts Department
and for prescribing
their conditions of service.
The Comptroller and Auditor-General
of India, ~vho is the head of that department, is a co'nstitutional
functionary holding
a special
position
under
the
Constitution.
Under Art. 149, he performs duties and exercises powers in relation
to the accounts of the Union and also of the States. Clause ( 1) of
Art. 151 requires him to submit a peport relating to the accounts
of the Union to the President, who causes them to be laid before each
House of Parliament.
Likewise, clause (2) of Art. 151 requires him
to submit a report relating to the accounts of a State to the Governor
of the State, who causes them to be laid before the Legislature of the
State. It cannot be said, in the circumstances, that the persons serving in the Indian Audit and Accounts Department are holding office
in connection with the affa~. of the Union exclusively. It may be
pointed out that whei1 the Constitutional Adviser prepared the Draft
Constitution for consideration by the Constitu~nt Assembly the document contained separate provisions for the appointment of the Auditor-General of the Federation and Auditors-General for the Provinces.
The Auditor-General for the Federation was to be appointed by the
President and his functions extended to the accounts of the Federation
as well as of the Provinces. But it was open to a Provincial Legislature
to provide by law for the appointment of an Auditor-General for the
Province and the appointment td that office was to be made by the Governor. The Expert Committee on the financial provisions of the Union
Constitution favoured the continuance of a single Auditor-General for
the Government of India as well as for the Provincial Governments and
hoped that the Provincial Governments would refrain from using their
power of appointing separate Auditors-General of their own.
When
the matter came refore the Drafting Committee, it decided that the
persons performing the functions of the Auditor-General in a State
should be designated Auditor-in-Chief in order to distinguish him from
the Auditor-General of India, and that the salaries and allo'wanc!"s of
the staff of these officers should be fixed by the Auditor-General
of India
and. the
Auditor-in-Chief in
consultation with the
President and the Governor respectively.
Thereafter, the Drafting
Committee reconsidered the desirability of permitting a multiplicity of
audit authorities, one for the Union and one for each State.
On 1st
August, 1949 Shri T. T. Krishnamachari moved an amendment deleting the draft articles enabling the State Legislatures td create their own
Auditors-in-Chief.
He pointed out that since the Constituent Assembly had already adopted articles whereby the auditing and accounting
would become "one institution, so to say, under the authority of the
A
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SUPREME COURT REPORTS
[1981] 2 S.C.R.
Comptroller and Auditor-Genera!", it was not necessary to have
separate pro¥ision for the States. Accordingly, he proposed the addition of a new article [now clause (2) of Art. 151] about the Comptroller and Auditor-General, requiring him to submit the reports of
the accounts of a State to the Governor for being laid before the State
Legislature.
These amendments were
adopted by the Constituent
Assembly. (1)
It is evident that the authority vested in the Comptroller
and Auditor General ranges over functions associated with the affairs
of the Union as well as 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 niatter falling with the domain of the
President within the terms of the proviso" to Art. 309.
A speci;il provision was necessary to entrnst the President with that power, and that
provision is clanse (5) of Art. 148. The power cont~ined in clause
( 5) of Art. 148 is not related to the power under the proviso to Art.
309. The two powers are separate and distinct from each other and
are not complementary to one another.
In our
opinion, the reference to the proviso under Art. 309 in the recital of the Notification
publishing the Rules of
1974 is meaningless
and must be
ignored.
The next question is whether clause (5) of Art. 148 permits
the enactment of rules having retrospective operatiOll..
It is settled
law that unless a statute conferring the
power
to
make rules
provides for the making of rules with retrospective
operation, the
rules made pursuant to that power can have prospective operation
only. An exception, however, is the proviso
to Art. 309. In
B. S. Vadera v. Union of India & Ors.(') this Court held that tho
rules framed under the proviso to Art. 309 of the Constitution could
have retrospec!ive operation.
The conclusion followed
from
the
circumstance that the power conferred under the porviso lo Art. 309
was intended to fill a hiatus that is to say, until Parliament or a
State Legislature enacted a Jaw on the subject matter of Ari. 309.
The rules framed under the proviso to Art. 309 wem transient in
character and were to do duty only until legislation was
enacted.
As interim substitutes for such legislation it was
clearly intended
that the rules should have the same range of operation as an Act
(1) B. Shiva Rao, "The Framin6 of India's Constitution : A Study" [1968],
Chap. 12, pp. 414-417.
(2) [1969] 3 S.C.R. 575.
,
-
ACCOUNTANT GENL. v. s. DORAISWAMY (Pathak J.)
163
-0f Parliament or of the State Legislature.
The intent was
reinforced by !he declaration in the proviso to Art. 309 that "any rules
so made shall have effect subject to the provisions of
any
such
Act".
Those features are absent in clause (5) of Art. 148.
There
is nothing in the language of that clause 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.
We are satisfied
that clause (5)
of
Art. 148 confers power on !he President to frame
rules
operating
.~ prospectively only.
Clearly then, the rules of 1974 cannot
have
retrospective operation, and therefore sub-rule (2) of rule 1, which
declares that they will be deemed to have come into force on 27th
July, 1956 mus! be held ultra vires.
lf the Rules of 1974 do not cover the case of the respondents
1hen admittedly the only question which remains in regard to them
is whether the amendment intended by the Comptroller and Auditor
General in 1956 to paragraph 143 of the Manual of Standing Orders
results in amending that paragraph. The amendment
is
in the
form of a correction slip which, it is not disputed, possesses
the
-status of an administratiw instruction.
The contention on behalf of
the respondents is that paragraph 143 possesses the statns of a statutory rule and, therefore, the amendment attempted by the correction
slip has no legal effect on it.
The High Court held that paragraph
143 was a statutory rule and it proceeded to hold so on the basis
-of affidavits filed before it.
But the ma!ter has been more carefully
researched since, and the relevant. material is now set out in
the
special leave petition, which has given rise to this appeal. It appears
that in 1921 the Auditor-General, as the administrative head of the
Indian Audit Department, inserted Art. 1666A by a circular No.
~ 1757-E/1129 dated 18th April, 1921 giving weight to the length of
service in the fixation of seniority.
In the Audit
Code
prepared
subsequently, Art. 1666A appeared as Art. 52.
Thereafter, in the
Manual of Standing Orders issued by the Auditor-General in 1938,
Art. 52 found expression as paragraph 143. The provision never
acquired statutory force under the Government of India Act, 1919.
Learned counsel for the respondents urges that it acquired statutory
force under snb-s. (2) of s. 252, Government of India Act, 1935.
Sub-ss. (1) and (2) of s. 252 provide :
"252. (1) All persons who immediately before the
commencement of Part III of this Act were members of the
staff of the High Commissioner for India, or members of
the staff of the Auditor of the accounts of the Secretary
A
B
c
D
E
F
G
H
164
SUPREME COURT REPORTS
(1981] 2 S.C.R.
A
of State in Council, shall continue to be, or shall become,
members of the staff of the High Commissioner for India
or, as the case may be, of the Auditor of Indian Home
Accounts.
(2) All such persons aforesaid shall hold their offices or
B
posts subject to like condilions of service as to remuneration, pensions or otherwise,
as therefore,
or not less
favourable conditions, and shall be entitled to reckon for
purposes of pension any service which they
would
ha\'e
been, entitled to reckon if this Act had not been passed .
c
D
E
F
G
H
*
•
*
•
*"
Sub-s. (2) of s. 252 does not help the respondents.
Firstly,
the guarantee conferred by it covered. those persons who held offices
or posts on the staff of the Auditor of the accounts of the Secretary
of State in Council and 011 the staff of the Indian Home Accounts
immediately before the commencement of Part III of the Act. The
respondents are clearly not such persons.
Secondly, even if it be
assumed that the benefit of sub-s. (2) can be extended to the respondents, sub-s. (2) merely protects the conditions of service
enjoyed by them as they existed before.
The sub-section does
not
eularge or improve on the quality of those conditions of
service.
If seniority was determined by a departmental inslruction, sub-s. (2)
did not give that provision the higher status of a statutory rule. It
remained what it always was, a departmental instruction.
We were
also referred to Art. 313 of the Constitution, but that provision also
does not result in converting a departmental instruction
into a
statutory rule.
Plainly, paragraph 143 in the Manual of Standing
Orders rnmained throughout a departmental instruclion and, therefore, could be amended by the departmental instruction contained in
the correction slip issued by the Comptroller and Auditor-Genera\
in 1956.
On that conclusion being reached,
the claim
of
the
respondents must fail.
The appeals have to be allowed.
In the connected writ petition No. 357
of
1979
there
are
15 petitioners.
The first ten passed the Subordinate Accounts Service Examination and were promoted to the service after 1956 and
before the enactment of the Rules of 1974. They will be governed
by the legal position enunciated in the
aforesaid
appeals.
The
eleventh, twelfth and thirteenth petitioners passed the
examination
immediately before the enactment of the Rules of 1974 but were
promoted after the Rules were enacted. The remaining petitioners
appeared at the examination and were promoted after the enactment
of the Rules. In the case of the last two categories the Rules of
ACCOUNTANT GENL. v. s. DORAISWAMY (Pathak J.)
165
1974 will apply. Having regard to the provision determining
the
fixation of seniority under the Rules of 1974 and the position obtaining thereafter, none of the petitioners can claim
the benefit of
weightage on the basis of length of service. But !hese petitioners
rely on the second of the two contentions concerning the
validity
of the Rules of 1974.
They assail
specifically
the
validity of
Rule 7 ( 2) which provides for fixation of seniorily. The argument
is that the fixation of seniority has been made by
Rule 7 (2)
to
depend on the order in which appointments to the service are made
under Rule 6, and that, it is pointed out, depends on an arbitrary
_/.. power conferred on the Comptroller and Auditor General to
pass
orders and instructions. We see no force in the contention.
The
Comptroller and Auditor General is a high ranking constilutional
authority, and can be expected to act according to the needs of tM
service and without arbitrariness.
He is the conslitutional head of
one of the most important departments of the State, and is expected
to know what the department requires and how best to fulfil those
requirements.
We are unable to hold that the power conferred on
him under the Rules violates the principle against excessive delegation.
The writ petition No. 4367 of 1978 must also be treated on the
basis that the petitioners are not, in the fixation of their seniority,
entilled to weightage with reference to their length of service. Both
A
B
c
D
writ petitions must, therefore, be dismissed.
E
Civil Appeals Nos. 1584-1588 of 1973 are allowed, the judgment and order of the Madras High Court is set aside and the writ
petition is, dismissed.
Wril Petition Nos. 357 of 1979 and 4367 of
1978 are also dismissed.
In the circumstances, there is no order as to costs.
N.V.K.
Appeals allowed and
Petitions dismissed.
F