UNION OF INDIA AND ANR.versusAMRIK SINGH AND ORS.

                    UNION OF INDIA AND ANR.
                                   v.
                      AMRIK SINGH AND ORS.

                          OCTOBER 14, 1993

          (A. M. AHMADI AND N. VENKATACHALA, JJ.)                           B

      Indian Audit and Accounts Department (Administrative Officers, Ac-
counts dfficers and Audit Officers) Recruitment Rules, 1964:

       Comptroller and Auditor GeneraHssue of Administrative instructions . C
by--lnstrnctions relating to promotion of Section Officers in Indian Audit and
Accounts Department-Provision in instrnctions not covered by Rules-;n-
strnctions held not inconsistent with mies-Comptroller and Auditor General
held competent to issue instrnctions.

     Constitution of India, 1950: Article 148(5). Comptroller and Auditor D
General--l'ower to issue administrative instrnctions.

       The Indian Audit & Accounts Department (Administrative Oftlcers,
Accounts Officers and Audit Officers) Recruitment Rules, 1964 were made
by the President of India under the proviso to Article 309 and clouse (!) E
of Article 148 of the Constitution after consulting the Comptroller &
Autf.itor General of India. The rules contained provisions which provided
for certain matters relating to recruitment for the posts of Administrative
Officers, Assistant Accounts Officers and Assistant Audit Officers in the
Indian Audit and Accounts Department. Subsequently, instructions dated
March 21, 1978 were issued by the Comptroller & Auditor General 'or F
India, which they also contained a provision relating to promotion of
Section Officers in the Indian Audit and Accounts Department. The In·
structions required completion of five years of service by 1st April, 1978
by a person as a Section Officer to make him eligible for empanelment and
consequent promotion as Accounts Officer. However, ·In the case of G
Scheduled Caste/Scheduled Tribes Section Officers, the ellglblllty period ·
for empanelment was four years or service on the crucial date.

      Respondent-I, a member or the Scheduled Caste and a Section
Officer was not eligible for empanelment for promotion as Accounts
Officer In the subsequent year In that he had not completed four years of   H
                                   261
    262··                SUPREME COURT REPORTS (1993) SUPP. 3 S.C.R.

A   service as on 1st April, 1978. Respondent Nos. 2 and 3, who had completed
    five years of service as Section Officers before 1st April, 1978 were am-
    p&nelled and promoted as Accounts Officers. Respon~ent·l questioned
    their promotion by filing a Writ Petition in the High Court of Punjab and
    Haryana contending that (i) the instructions issued by the Comptroller
B   and Auditor General being inconsistent with the matters for which
    provisions were made in the Rules, could not have come in the way of his
    promotion as Accounts Officer though he had not put in the required
    service for eligibility for empanelment under the Instructions and (ii) the
    instructions were not issued by the Comptroller and Auditor General with
                               I   )• ~, t.
                                        '   c •

    the requisite competence. A single Judge of the High Court allowed the
C   Writ Petition holding that the impugned provision in the Instructions was
    inconsistent with the provisions contained in the Rules and the Instruc-
    tions issued by the Comptroller and Auditor General of India were without
    competence. Consequently, he issued a direction to the appellants to
    consider the case of Respondent-I for promotion to the post of Accounts
D   Officer from the date on which his claim for promotion was ignored.

          The order of the single Judge was appealed against by the Union of
    India and Accountant General, Punjab before a Division Bench of the High
    Court which was dismissed. Against the judgment of the Division Bench
E   of the High Court, appeal was filed in this Court.

         Allowing the appeal of the Union of India and setting aside the
    orders of the High Court, this Court,

           HELD : 1~ The provision in the Instructions provides for an essential
F   matter relating to service conditions of persons in the Indian Audit and
    Accounts Department in respect of which no provision is made in the
    Rules. There is no provision found in the Rules, which stipulates the
    criteria that makes a Section Officer eligible for promotion to the posts of
    Assistant Accounts Officers. Therefore, it is impossible to say that the
G   provision relating to the matter of number of years of service as Section
    Officer which makes a Section Officer eligible for empanelment and
    promotion as Accounts Officer, is that which goes against or is inconsis·
    tent with any of the provisions in the Rules, inasmuch as none of the
    provisions therein relates to such matter. Hence, the provision in the
H   Instruction'! is, in no manner, inconsistent with any of the provisions in
                 U.0.1. v. A. SINGH [VENKATACHALA, J.]                   263

the Rules and consequently the provision in the Instructions is not void.       A
                                                        [266-H, 267-C-D]
       2. The Comptroller and Auditor General of India has the necessary
competence to issue Departmental Instructions on matters of conditions
of service of persons serving in his Department as its Head, even after
Rules are made by the President on conditions of service of such persons        B
in exercise of his powers under Article 148(5) of the Constitution. It is no
doubt true that the administrative Instructions so issued on matters
relating to conditions of service of persons in the Department cannot
prevail over the Rules issued by the President if the same comes in conflict
with any provision made in the Rules on such matter. The provision in the       C
Instructions under consideration does not come in conflict with, nor is it
inconsistent with, provisions in the Rules, for the matters dealt with in
them are altogether different. Hence, the provision in the Instructions
under consideration has been made with the required competence by the
Comptroller and Auditor General of India. [267-F, G, 268-A, B]
                                                                                D
     Accountant General and another v. S. Doraiswamy and Anr., A.I.R.
(1981) S.C. 783, relied on.

        CIVIL APPELLATI;: JURISDICTION : Civil Appeal No. 1445 of
1988.
                                                                                E
     from the Judgment and order dated 13.11.1984 of the Punjab &
Haryana High Court in L.P.A. No. 787 of 1984.

        K. Lahiri, S.N. Terdol and P. Parmeswaran for the Appellants.

        H.S. Parihar for the Respondents.                                       F

        The Judgment of the Court was delivered by

     VENKATACHALA, J. Two short questions which require to be
answered by us in deciding this appeal are, these :
                                                                                G
          1. Is the provision in the Instructions dated March 21, 1978 issued
          by the Comptroller & Auditor General of India, prescribing the
          minimum period of service as Section Officer to make him eligible
          for promotion as Accounts Officer inconsistent with any of the
          provisions in the Indian Audit ·& Accounts Department (Ad·            H
    264                   SUPREME COURT REPORTS (1993) SUPP. 3 S.C.R.

A            ministrative Officers, Accounts Officers and Audit Officers)
             Recruitment Rules, 1964, and hence void?

            2. Was the Comptroller and Auditor General of India competent
            to issue administrative instructions dated March 21, 1978?

B          The Indian Audit & Accounts Department (Administrative Officers,
    Accounts Officers and Audit Officers) Recruitment Rules, 1964, to be
    referred to as 'the Rules', were made by the President of India under the
    proviso to Article 309 and clause (5) of Article 148 of the Constitution after
    consulting the Comptroller & Auditor General of India. The Rules con-
C   tained provisions which provided for certain matters relating to recruitment
    for the posts of Administrative Officers, Assistant Accounts Officers and
    Assistant Audit Officers in the Indian Audit and Accounts Department.
    Subsequently, when Instructions dated March 21, 1978 were issued by the
    Comptroller & Auditor General of India, they also contained a provision
    relating to promotion of Section Officers in the Indian Audit and Accounts
D   Department, which read :

            "Section Officers with completed five years service in the grade as
            on 1st April last are considered eligible for empanelment for
            promotion as Accounts Officer in the subsequent year. In the case
            of Scheduled Caste/Scheduled Tribe Section Officers, the eligible
E           period for empanelment is four years of service on the crucial date,
            but they cannot be promoted until completion of five years service
            as Section Officers." .

           Respondent-1, a member of the Scheduled Caste, was a Section
F   Officer in the Office of the Accountant General, Punjab and hence a
    member of the Subordinate Accounts Service. As on 1st April, 1978, he
    was not eligible for empanelment for promotion as Accounts Officer in the
    subsequent year in that he had not completed four years of service as
    Section Officer required to make him eligible for empanelment and con-
G   sequential promotion as Accounts Officer, Class-II, under the above
    provision of the Instructions. However, respondents 2 and 3, who had
    completed five years of service as Section Officers before 1st April, 1978
    and became eligible for empanelment for promotion as Accounts Officers
    under the said provision of the Instructions, were empanelled for promo-
    tion as Accounts Officers and promoted as Accounts Officers as provided
H   for therein. Respop.de~t-1 questioned the empanelment and promotion of
                U.0.1. v. A. SINGH [VENKATACHAl.A, J.)                  265

respondents-2 and 3 as Accounts Officers from that of Section Officers by A
filing a Writ Petition, C.W.P. No. 2485 or 1978 in the High Court of Punjab
& Haryana. The ground urged in support of the Petition was that the
Instructions which required completion of four yP-ars of service by 1st
April, 1978 by a person as a Section Officer to make him eligible for
empanelment and consequent promotion as Accounts Officer being incon- B
sistent with the matters for which provisions were made in the Rules, could
not have come in the way of his promotion as Accounts Officer though he
had not put in the required service for eligibility for empanelment under
the Instructions. Another ground urged was that the aforesaid Instructions
could not have come in the way of his promotion, in that, they were not
issued by the Comptroller and Auditor General with the requisite com- C
petence. A learned single Judge of the High Court allowed the Writ
Petition by his Order dated July 26, 1984 finding inter alia that the im-
pUgn.ed provision in the Instructioas relied upon by the respondents was
inconsistent with the provisions contained in the Rules and the Instructions
issued by the Comptroller and Auditor General of India were without D
competence. Consequently, he issued a direction to the Union of India and
the Accountant General, Punjab to consider the case of respondent-1
(petitioner in the Writ Petition) for promotion to the post of Accounts
Officer from the date on which his claim for promotion was ignored.

       That order of the learned single Judge was appealed against by the      E
Union of India and Accountant General, Punjab, before a Division Bench
of the same High Court in a Letters Patent Appeal, which was dismissed
by its Judgment dated November 13, 1984. The present appeal by Special
Leave is directed against that judgment of the Divison Bench of the High
Court. It is how, the need has arisen for us to render our decision on the     F
questions adverted to at the outset. Therefore, we shall deal with and
decide those questions.

      Question-I:

      Here, we have to first examine the provisions in the Rules to find out   G
as to what are all the matters provided for therein as regards recruitment
to the posts of Administrative Officers, Assistant Accounts Officers and
Assistant Audit Officers in the Indian Audit and Accounts Department.
Rule 2 of the Rules declares that the Rcles apply to the posts of the
Administrative Officers, Assistant Accounts Officers and Assistant Audit       H
    266                   SUPREME COURT REPORTS (1993) SUPP. 3 S.C.R..

A   Officers in -the Indian Audit and Accounts Department. Rule 3 thereof
    states the clas!;ification of the posts mentioned in rule 2, the scales uf pay
    attached to su~h posts, the method of recruitment and other matters
    relating thereto shall be as specified in columns 2 to 13 of the Schedule
    given ~hereunder.
B        Column 2 of the Schedule, relating to the matter "No. of posts"
  mentions the number of posts and vests in the Comptroller and Auditor
  General of India the power to increase and decrease the number of such
  posts. Column 3 of the Schedule, relating to the matter "Classification",
  refers to the service concerned in the Rules as "Central Services Class-II
C Gazetted (Non-Ministerial}". Column 4 of the Schedule relating to the
  matter "Scale of pay'', refers to scale of pay of the posts of Administrative
  Officers and monthly 'special pay' carried by the post along with the scale
  of pay. Column S of the Schedule, relating to the matter "Whether Selection
  post or Non-seleetion post", states that 50 per cent are 'non-selection'
  posts. Column 6 of the Schedule, relating to the matter "Age limit for direct
D recruits" states as "Not applicable". Column 7 relating to the ~tter "Educa-
  tional and other qualification required for direct recruits", states "Not
  applicable". Column 8, relating to the matter "Whether age and educational
  qualifications prescribed for the direct recruits will apply in the case of
  promoters, states "Not applicable" in respect of the promotees. Column 9,
E relating to the matter "Period of probation, if any", states "Not applicable".
  Column 10, relating to the matter "Method of recruitment to the post
  whether by direct recruitment or by promotion or by transfer and percent-
  age of the vacancies. to be filled up by various methods" states "By promo-
  tion". Column 11, which relates to "recruitment by promotion, transfer,
  grades from which promotion/transfer to be made", states that "Promotions
F : Subordinate Accounts Service/Subordinate Railway Audit Service
  Cadres". Column 12, relating tO the matter "If a D.P.C. existc; what is its
  composition", states "Class-II DPC". Column 13, relating to the matter
  "Circumstances in which the UPSC is to be consulted in making recruit-
  ment", states"~ required under the UPSC (Consultation) Regulations".

G         As seen from the above provisions, it becomes obvious that provi-
    sions are not made therein in respect of all matters relating to recruitment
    to posts of Administrative Officers/Assistant Accounts Officers/ Assistant
    Audit Officers in the Indian Audit and Accounts Department. In any event,
    there is no provision found in the Rules, which stipulates the criteria that
H   makes a Section Officers eligible for promotion in the Indian Audit and
                 u.o.r. v. A SINGH [VENKATACHALA,J.)
Accounts Department to the posts of Assistant Accounts Officers of that           A
Department.

       Then, if the matter for which provision is made in the aforesaid
Instructions dated March 21, 1978 is seen, it relates to the matter or criteria
that makes a Section Officer of the Indian Audit and Accounts Department
eligible for empanelment for promotion as Assistant Accounts Officer in           B
that Department, after such Section Officer puts in the requisite number
of years of service as holder of that post. Therefore, it is impossible for us
to say that the provision relating to the matter of number of years service
as Section Officer which makes a Section Officers eligible for empanelment
and promotion as Accounts Officer, is that which goes against or is               C
inconsistent with any of the provisions in the Rules, inasmuch as none of
the provisions therein relates to such matter. Hence, the provision in the
above Instructions dated March 21, 1978 is, in no manner inconsistent with
any of the provisions in the Rules and conseque11tly the provision in the
Instructions is not void. This is our answer to Question-1.
                                                                                  D
      Question-2 :

      This question relates to competence of the Comptroller and Auditor
General of India to issue Instructions dated March 21, 1978. As has been
held by us in dealing with Question-1, the matter for which provision under E
consideration is made in the Instructions of March 21, 1978, is not a matter
covered by any provision in the Rules. If so. was it not competent for the
Comptroller and Auditor General of India to make such provision is the
point which now needs our examination. As is held by this Court in The
Accountant General and another v. S. Doraiswamy and others, A.l.R. {1981) F
S.C. 783, the Comptroller and Auditor General of India has the necessary
competence to issue Departmental Instructions on matters of conditions of
service of persons serving in his Department as its head, even after Rules
are made by the President on conditions of service of such persons in
exercise of his powers under Article 148{5) of the Constitution. It is no
doubt true that the administrative Instructions so issued on matters relating G
to conditions of service of persons in the Department cannot prevail over
the Rules issued by the President under clause (5) of Article 148 of the
Constitution, if the same comes in conflict with any provision made in the
Rules on such matter. As already pointed out by us in dealing with
Question-1, the provision in the Instructions under consideration does not H
    268                  SUPREME COURT REPORTS (1993) SUPP. 3 S.C.R.
                                                                               '

A   come in conflict with, nor is it inconsistent with, provisions in the Rules,
    for the matters dealt with in them are altogether different. On the other
    hand, the aforesaid provision in the Instructions provides for an essential
    matter relating to service conditions of persons in the Indian Audit and
    Accounts Department in respect of which no provisions made in the Rules.
    Hence, we hold that the provision in Instructions under consideration has
B   been made with the required competence by the Comptroller & Auditor
    General of India and that is our answer to Question-2.

           We are, therefore, of the view that the order of the learned single
    Judge of the High Court made in the Writ Petition and the Judgment made
C   by the Division Bench of'the High Court in Letters Patent Appeal are liable
    to be interfered with and set aside and the Writ Petition of Respondent-!
    is liable to be dismissed.

           In the result, we allow this Appeal, set aside the Orders of the
    learned single Judge and Division Bench of the High Court in the Writ
D   Petition and the Letters Patent Appeal respectively, and dismiss the Writ
    Petition of Respondent-1 filed in the High Court. However, in the facts
    and circumstances of the case, we make no order as to costs.

    T.N.A.                                                     ·Appeal allowed.