Judgment Case ID: 4319

Judgment:
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 17 of 1973. AND 158 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. Subhashini 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. 4367 of 1978 & 357 of 1979. T.S. Krishnamurthy 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 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. The respondents 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 only 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 service in the inferior post should be taken into account	 and rested their claim on 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 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 his judgment was affirmed by an appellate Bench	 of the High Court. Against the judgment of the appellate Bench	 the Accountant General	 Tamil Nadu and the Comptroller and Auditor General have appealed to this Court	 and those appeals are pending as Civil Appeals Nos. 1584 to 1588 of 1973. During the pendency of those appeals the President enacted the Indian Audit and Accounts Department (Subordinate Accounts Service & Subordinate Railway Audit Service) Service Rules	 1974 (referred to hereinafter as "the Rules of 1974"). The Rules of 1974 purport to give statutory recognition to the amendment of paragraph 143 by the Comptroller and Auditor General. The validity of the Rules of 1974 and the amendment made in paragraph 143 are assailed by the respondents in the instant appeals. 159 The Rules of 1974 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 "Service") includes members appointed to it before the appointed day as well as persons recruited to it in or before that day. Rule 5 provides that recruitment shall be made by direct recruitment in accordance with	 the orders or directions issued by the Comptroller and Auditor General from time to time and also by promotion. Rule 6 provides: "6. Appointments: Appointments to the Service shall be made from the list prepared in accordance with the orders and instructions issued by the Comptroller and Auditor General from time to time and applicable at the time of appointment to the Service. " Rule 7 deals with seniority	 and declares: "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 General as were in force at the relevant time 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 officiating persons in the service (excluding a direct recruit) passing in the same departmental examination or subsequent departmental examinations. Provided further that the seniority of a person who had declined the appointment to the Service but who is subsequently 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	 regulations	 orders or instructions made or issued in respect of the Central Civil Services as applicable to the Indian Audit and Accounts 160 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 article 148 to which alone	 it is said	 they must be ascribed	 does not permit the retrospective enactment of rules made thereunder. The other contention is that the specific rules affecting the seniority of the respondents are in valid be cause in entrusting power to the Comptroller and Auditor General to issue orders and instructions in his discretion the doctrine against excessive delegation of legislative power has been violated Taking the first contention 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 article 309 and clause (5) of article 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 article 148	 and we should ignore reference to the proviso to article 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 to article 309	 it is pointed out	 clause (5) of article 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 proviso to article 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 in the case of services and posts in connection with the affairs of a State	 to make rules regulating the recruitment and the conditions of service of persons appointed to such services and posts. There is a clear dichotomy in the power conferred by article 309	 a division of power between the Parliament or President	 as the case may be	 on the one side and the State Legislature or Governor on the other. The division is marked by the circumstance that under Art 309	 services and posts in connection with the affairs of the Union are dealt with by a separate authority from the services and 161 posts in connection with the affairs of a State. That dichotomy it seems	 is not possible in the power employed for appointing persons in the Indian Audit and Accounts Department and for prescribing their conditions of service. The Comptroller and Auditor General of India	 who is the head of that department	 is a constitutional functionary holding a special position under the Constitution. Under article 149	 he performs duties and exercises powers in relation to the accounts of the Union and also of the States. Clause (1) of article 151 requires him to submit a report 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 article 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 affairs of the Union exclusively. It may be pointed out that when the Constitutional Adviser prepared the Draft Constitution for consideration by the Constituent 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 to 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 before 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 allowances 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 to 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 162 Comptroller and Auditor General"	 it was not necessary to have separate provision for the States. Accordingly	 he proposed the addition of a new article now clause (2) of article 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. 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 matter falling with the domain of the President within the terms of the proviso to article 309. A special provision was necessary to entrust the President with that power	 and that provision is clause (5) of Art	 148. 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. In our opinion	 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. The next question is whether clause (5) of article 148 permits the enactment of rules having retrospective operation. 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 article 309. In B. section Vadera vs Union of India & Ors. this Court held that the rules framed under the proviso to article 309 of the Constitution could have retrospective operation. The conclusion followed from the circumstance that the power conferred under the porviso to article 309 was intended to fill a hiatus that is to say	 until Parliament or a State Legislature enacted a law on the subject matter of article 309. The rules framed under the proviso to article 309 were 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 163 of Parliament or of the State Legislature. The intent was reinforced by the declaration in the proviso to article 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 article 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 article 148 confers power on the 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 must be held ultra vires. If the Rules of 1974 do not cover the case of the respondents then 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 administrative instruction. The contention on behalf of the respondents is that paragraph 143 possesses the status 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 matter 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 article 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 article 52. Thereafter	 in the Manual of Standing Orders issued by the Auditor General in 1938	 article 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 sub section (2) of section 252. Government of India Act	 1935. Sub sections (1) and (2) of section 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 164 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 posts subject to like conditions 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 have been	 entitled to reckon if this Act had not been passed. * * * * *" Sub section (2) of section 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 on 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 section (2) can be extended to the respondents	 sub section (2) merely protects the conditions of service enjoyed by them as they existed before. The sub section does not enlarge or improve on the quality of those conditions of service. If seniority was determined by a departmental instruction	 sub section (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 article 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 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. 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 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 weigtage on the basis of length of service. But these 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 seniority. 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 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 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	 entitled to weightage with reference to their length of service. Both writ petitions must	 therefore	 be dismissed. 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. Writ 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.

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