Holding

Clause 5 of Article 148 confers only prospective rule‑making power; the 1974 Rules cannot have retrospective effect, the amendment of paragraph 143 by the 1956 correction slip is valid, and the respondents cannot claim seniority based on length of service.

Summary

The Accountant General of Tamil Nadu and the Comptroller and Auditor‑General appealed against judgments that had allowed seniority claims by several former Upper Division Clerks who argued that their length of service should be counted under paragraph 143 of the Manual of Standing Orders. The respondents relied on a 1956 correction slip that removed the length‑of‑service factor and on the Indian Audit and Accounts Department Service Rules, 1974, which were deemed to have retrospective effect from 27 July 1956. The Supreme Court held that clause 5 of Article 148 of the Constitution authorises only prospective rule‑making; therefore the 1974 Rules cannot operate retrospectively and the sub‑rule declaring them back‑dated is ultra‑vires. It also held that the power given to the CAG to issue instructions under Rule 10 does not breach the doctrine of excessive delegation, and that paragraph 143 is a departmental instruction that may be amended by the correction slip. Consequently, the respondents could not claim seniority based on length of service, the appeals were allowed and the writ petitions dismissed.

Issues considered

Whether clause 5 of Article 148 of the Constitution permits retrospective operation of rules such as the 1974 Service Rules.
Whether the power conferred on the Comptroller and Auditor‑General to issue instructions under Rule 10 violates the doctrine of excessive delegation.
Whether paragraph 143 of the Manual of Standing Orders is a statutory rule or a departmental instruction and can be amended by a correction slip.
Whether the respondents are entitled to seniority based on their length of service as Upper Division Clerks.

Legislation cited

Constitution of Indias. Article 148(5), s. Article 149, s. Article 151, s. Article 309, s. Article 313
Government of India Act, 1919
Government of India Act, 1935s. Section 252(1), s. Section 252(2)
Indian Audit and Accounts Department (Subordinate Accounts Service & Subordinate Railway Audit Service) Service Rules, 1974s. Rule 10, s. Rule 1(2), s. Rule 6, s. Rule 7(1), s. Rule 7(2), s. Rule 9

Subjects

seniorityretrospective ruleArticle 148excessive delegationComptroller and Auditor‑Generalservice rulesIndian Audit and Accounts Departmentconstitutional lawdepartmental instruction

Judgment

15 5

ACCOUNTANT GENERAL & ANR. Ere. ETC. A

v.
S. DORAISWAMY & ORS. ETC. ETC.
November 13, 1980
B
[V. R. KRISHNA IYER, R. S. PATHAK & 0. CHINNAPPA RLDDY, JJ.]

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 vires-
Power conferred on Co1nptroller & Auditor-Gelleral under Rul2 10-Whether
violates the doctrine against excessive delegation. D

Co1nptrpller & Auditor-General's Manual of Standing Orders para 143-
Wh.et!zer could be amended by departmental instructions.

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 Divi- E
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 Auditor-
General in 1938, Article 52 found expression as paragraph 143. By a correc-
tion 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 Subor-
dinate 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 Comp-
troller 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.
H
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

... '. ---~·---~.---·~~~----~"• 6 >1<:IM.-!VllM
156 SUPREME COURT REPORTS [1981] 2 S.C.R.

A the lndian Audit and Accounts Department (Subordinate Accounts Service
& Subordinate Railway Audit Service) Service Rules, 1974. They were deen1-
ed to have come into force on 27th July, 1956. These rules purported to
give statutory recognition to the amendment of paragraph 143 by the Comp-
troller 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
8 Central Civil Services as applicable to the Indian Audit and Accounts Depart-
ment 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 --~
c 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
D 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
E 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.

F 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
G 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
H 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 con- A
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 depart-
mental 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 c
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,
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 condi-
tions 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 F
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] G

CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 1584-1588 of
1973.
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.
(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
B
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. •
c 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 res-
D pondents entered service in the Office of the Accountant General,
Tamil Nadu as Upper Division Clerks. They appeared in the Sub-
ordinate Accounts Service Examination but it was o'nly after a num-
ber 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:t-
ment (Subordinate Accounts Service & Subordinate Railway Audit
Service) Service Rules, 1974 (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 Auditor-
H General. The validity of the Rules of 1974 and the amendment made
in paragraph 143 are assailed by the respondents in the instant
appeals.
••
ACCOUNTANT GENL. v. s. DORAISWAMY (Pathak J.) 159

The Rules of 1974 have been enacted by the President. They A
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 B
<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 c
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 :
D
"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 Auditor-
Gcneral as were i'n force at the relevant limo before such
day. E

(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.
F
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.
Provided further tha.t the seniority of a person who had
declined fhe appointment to !he Service but who is subse- G
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
160 SUPREME COURT REPORTS [1981] 2 S.C.R.

A 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
B 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 enact-
ment 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
c 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
D clause (5) of Art. 148 of the Constitution and after consulta-
tion 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
E 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 con-
nection with the affairs of the Union, and the Governor of a State i:n
G the case of services and posts in connection with the affairs of a State,
to make rules regulating the recruitment and the conditions of ser-
yice 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
B 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 A
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 B
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 c
State. It cannot be said, in the circumstances, that the persons serv-
ing 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 docu-
D
ment contained separate provisions for the appointment of the Audi-
tor-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 E
Province and the appointment td that office was to be made by the Gov-
ernor. 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 F
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 G
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 delet-
ing the draft articles enabling the State Legislatures td create their own
Auditors-in-Chief. He pointed out that since the Constituent Assem- H
bly had already adopted articles whereby the auditing and accounting
would become "one institution, so to say, under the authority of the
162 SUPREME COURT REPORTS [1981] 2 S.C.R.

A Comptroller and Auditor-Genera!", it was not necessary to have
separate pro¥ision for the States. Accordingly, he proposed the addi-
tion of a new article [now clause (2) of Art. 151] about the Comp-
troller 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
n 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
c said to be concerned with the affairs of the Union exclusively. Conse-
quently, 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 pro-
vision was necessary to entrnst the President with that power, and that
D 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 refe-
rence 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
F 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
G 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
H (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 rein- A
forced 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 . legisla-
tion was enacted. All that the clause says is that the rules framed B
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 c
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 D
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 statu-
tory rule and, therefore, the amendment attempted by the correction
slip has no legal effect on it. The High Court held that paragraph E
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. F
~ 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
G
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 H
staff of the High Commissioner for India, or members of
the staff of the Auditor of the accounts of the Secretary
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 remunera-
tion, 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 * • * • *"
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
D assumed that the benefit of sub-s. (2) can be extended to the res-
pondents, sub-s. (2) merely protects the conditions of service en-
joyed 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)
E 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, there-
F fore, 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 Ser-
G
vice 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
H 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 A
fixation of seniority under the Rules of 1974 and the position obtain-
ing 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
B
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 c
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 D
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
writ petitions must, therefore, be dismissed. E
Civil Appeals Nos. 1584-1588 of 1973 are allowed, the judg-
ment 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. F

N.V.K. Appeals allowed and
Petitions dismissed.