Case: Comptroller &amp; Auditor General Vs. Kamlesh Vadilal Mehta

of the Companies Act; and the usual practice of private companies relying on partnerships, largely to the exclusion of proprietary firms. 7. The aforesaid argument raises the question as to whether the sub-classification of partnership firms stands the test of reasonableness on the touchstone of Article 14. 8. It is not disputed that the Chartered Accountants having qualification are eligible for being considered for entrustment of audit work for public sector undertaking or the government concerns. Once it is accepted that these Chartered Accountants are qualified and eligible for the audit work and also are eligible for being brought on the panel of audit work for public sector undertakings and government concerns, there appears no valid reason why the impugned advertisement has created a sub-classification from the general class of eligible Chartered Accountants which relates to a smaller group of Chartered Accountants who form partnership concerns only. 9. The appellant insists that it is only a smaller group of Chartered Accountants firms that would be eligible for being brought on the panel for audit of public sector undertakings or government concerns. The audit work of public sector undertaking, no doubt, is to be done by the qualified and efficient Chartered Accountants. Once a person is qualified, experienced and efficient, it is difficult to understand how be could be discriminated against only for the reason that he has chosen to act alone in the professional career and has been able to form a partnership firm. The efficiency, as pointed out by the High Court, springs from the personal experience, proficiency and personal capacities. It is, therefore, not possible to link these characteristics and professional acumen to a person or persons in a firm alone. A single individual as an auditor in a proprietary concern can have such characteristics and professional acumen by himself and also through the assistance of experienced auditor who could be in his services as efficient as any partnership firm. It is often seen in many cases that some of the partners of the partnership firm are sleeping partners with no professional duties to discharge. A partnership concern is not a legal entity like company; it is a group of individual partners. In a partnership firm, it is the partner who will be assisted in carrying out the work but quite remains the eligible Chartered Accountant. It is the same situation as in a proprietary concern where a Chartered Accountant would be carrying on audit work all-in-one. Merely because some of the Chartered Accountants have formed a partnership firm, it cannot be assumed that they become more efficient for carrying out audit work than the individual Chartered Accountant who forms proprietary concern. It is, therefore, evident that the appellant himself erroneously assumed that the partnership firms are more efficient than the proprietary concern in the matter of audit of accounts of the public sector undertakings or of the government concerns. 10. A useful analogy may be drawn with the experiences of the legal profession. It could not be justifiably argued that the quality of the legal services rendered by a senior advocate is compromised by virtue of the fact that he is the sole and ultimate repository of knowledge and responsibility in a given matter. Nor could it reasonably be said that a client would be put to unnecessary risk by being compelled to sink or swim with the solitary lawyer. Personal experience and integrity are the essential attributes of every successful professional and they are the virtues that win the day for the client, whether it is a corporation seeking an audit of its accounts or an individual seeking a remedy in court. A clear line of command is also known to prevent a diffusion of responsibility. As such a Chartered Accountant cannot be discriminated against merely because he elected to invest his professional expertise in a proprietary concern, rather than to express it in the form of a partnership firm. 11. In any event it would not follow as a categorical imperative that a partnership is better placed for auditing government concerns simply because two minds are better than one. There could be several instances when a partnership firm, which is ostensibly an association of contributing individuals, is in actual fact found to consist of a solitary working partner who may for the purpose of securing tax benefits, or for other reasons, choose to form an alliance with sundry uninterested persons, or sleeping partners. In such a scenario it would be fallacious to attribute a greater capacity to partnership firms than to proprietary concerns simply on account of the nomenclature or numbers involved. 12. For the aforesaid reasons the classification between proprietary and partnership firms in arbitrary and unfair, and accordingly falls on the anvil of Article 14 of the Constitution. 13. It was also urged that the proprietary firms of Chartered Accountants have been allowed empanelment in certain States namely, in the States of Orissa, Jammu & Kashmir, Assam, Manipur, Meghalaya, Nagaland and Tripura out of necessity and exigency and it would be not in public interest to allot audit work of government concerns to partnership firms from outside the State and, therefore, there was no discrimination involved in empanelment of proprietary concern in such States. 14. We find this submission inconsistent with the earlier submission that the proprietary concern although qualified are not suitable for considerable task of auditing public sector enterprises. Either proprietary concerns are suitable and, therefore, eligible, or they are not. If the proprietary concern of Chartered Accountants are really inefficient, there appears on reason why they have been made eligible to audit the government and public sector undertakings in the aforesaid states. Further, if there was a paucity of partnership firm of Chartered Accountants in a given State, the services of partnership firm who were said to be efficient based on in other States could be taken. Under such circumstances, we are of the view that the impugned notification does not stand the test of Article 14 of the Constitution.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]11. In any event it would not follow as a categorical imperative that a partnership is better placed for auditing government concerns simply because two minds are better than one. There could be several instances when a partnership firm, which is ostensibly an association of contributing individuals, is in actual fact found to consist of a solitary working partner who may for the purpose of securing tax benefits, or for other reasons, choose to form an alliance with sundry uninterested persons, or sleeping partners. In such a scenario it would be fallacious to attribute a greater capacity to partnership firms than to proprietary concerns simply on account of the nomenclature or numbers involved12. For the aforesaid reasons the classification between proprietary and partnership firms in arbitrary and unfair, and accordingly falls on the anvil of Article 14 of the Constitution13. It was also urged that the proprietary firms of Chartered Accountants have been allowed empanelment in certain States namely, in the States of Orissa, Jammu & Kashmir, Assam, Manipur, Meghalaya, Nagaland and Tripura out of necessity and exigency and it would be not in public interest to allot audit work of government concerns to partnership firms from outside the State and, therefore, there was no discrimination involved in empanelment of proprietary concern in such States14. We find this submission inconsistent with the earlier submission that the proprietary concern although qualified are not suitable for considerable task of auditing public sector enterprises. Either proprietary concerns are suitable and, therefore, eligible, or they are not. If the proprietary concern of Chartered Accountants are really inefficient, there appears on reason why they have been made eligible to audit the government and public sector undertakings in the aforesaid states. Further, if there was a paucity of partnership firm of Chartered Accountants in a given State, the services of partnership firm who were said to be efficient based on in other States could be taken. Under such circumstances, we are of the view that the impugned notification does not stand the test of Article 14 of the ConstitutionThis argument has no substance. It must be borne in mind that there is difference between framing of a policy which is an administrative function and an exercise of statutory functions. The function of the Comptroller and Auditor General in respect of appointment of auditors for government corporations and public sector undertakings is statutorily assigned under the Companies Act and it cannot then be urged that the Comptroller and Auditor General is free to act untrammeled and unreasonably. Whenever the CAG appoints an auditor for audit of government corporations and public sector undertakings under the Companies Act, he exercises statutory powers under the Companies Act and such an exercise of power manifestly is a statutory function and not a matter of policy.