Debrajan Ray & Ors Vs. Comptroller
& Audltor General of India & Ors [1984] INSC 211 (13 November 1984)
PATHAK, R.S.
PATHAK, R.S.
ERADI, V. BALAKRISHNA (J)
CITATION: 1985 AIR 306 1985 SCR (2) 45 1984
SCC Supl. 530 1984 SCALE (2)757
ACT:
Administrative Law-Scheme framed by of office
of Accountant General, West Bengal by of office order No. TM 96 dated June 8 1966 for promoting Upper Division Clerks who had not passed Subordinate Accounts
Service Examination- Whether violative of Arts. 14 and 16 of the Constitution-
Held-No-Scheme upheld.
HEADNOTE:
At one time all holders of supervisory posts
in the office of the Accountant General, West Bengal were required to pass the
Subordinate Accounts Service Examination before crossings the age of 45 years.
In 1966, for improving the working of the office of the Civil Accountants
General, a scheme was framed by an office order No. TM 96 dated June 8, 1966.
The scheme provided that passing the Subordinate Accounts Service Examination
would not be a necessary qualification for holding supervisory posts where the
work involved was entirely of an accounting-cum-administrative nature and the
knowledge of rules and accounts of a very high standard was not required. To be
eligible for promotions the Upper Division Clerks and Selection Grade Clerks
should have put in not less than 20 years of service in the Upper Division
Clerical Cadre and should have exhausted all chances of appearing in the
Subordinate Accounts Service examination or by reason of being over 45 years of
age were no longer eligible to appear at the Subordinate Accounts Service
Examination. The appointments were temporary and the appointees were not
eligible for further promotion. A number of appointments were made under the
scheme. The appellants challenged the appointments on the ground that in
confining the zone of eligibility to Upper Division Clerks who had not passed
the Subordinate Accounts Service Examination the scheme brought about an
invidious discrimination which was violative of Arts. 14 and 16 of the
Constitution. A single Judge of the High Court quashed the scheme. An appeal
filed by the Comptroller and Auditor General of India was allowed by a Division
Bench of the High Court Hence this appeal by special leave. G Dismissing the
appeal,
HELD: The scheme was intended to provide a
separate avenue of promotion for those Upper Division Clerks who had put in 20
years of service or more in their cadre and who had exhausted all their chances
of appearing at the 46 Subordinate Accounts Service Examination for promotion
to supervisory posts, or who having crossed the age of 45 years, were no longer
eligible to appear at the Examination.
These indicia distinguished that category of
Upper Division Clerks from others. If the scheme had been thrown open to Upper
Division Clerks who still enjoyed the possibility of recruitment to the
Subordinate Accounts Service, the intent underlying the scheme would have been
defeated. The appellants, although senior in length of service to the
respondents promoted under the scheme, were still eligible to appear in the
Subordinate Account Service Examination and the opportunity of advancement in
their regular promotional channel was still available to them. Those promoted
under the scheme were not entitled to further promotion to any higher post. The
impugned scheme follows a clearly defined classification having a reasonable
nexus to the object of the classification. Those who fall outside the scheme
cannot complain of discrimination, for intelligible differential exist between
those included within the scheme and those outside it. The framing and
implementation of such a scheme falls within the scope of administrative
policy, and having regard to the object underlying the scheme as well as its
careful definition there is no basis for complaint by the appellants. [48 H; 49
A-F] State of Jammu and Kashmir v. Triloki Nath Khosa and ors., [1974]1 S.C.R.
771, not relevant.
CIVIL APPELLATE JURUDICTION : Civil Appeal
No. 1033 of 1979.
Appeal by Special leave from the Judgment and
order dated the 6th July, 1978 of the Calcutta High Court in Appeal from
original order No. 497 of 1970.
R.K. Garg. V. J. Francis and N.M. Popli for
the Appellant.
Harbans Lal, R.N. Poddar and C.V.S. Rao for
the Respondent.
The Judgment of the Court was delivered by
PATHAK, J. This appeal by special leave raises an interesting question
respecting the recruitment of Upper Division Clerks for appointment as
Accountants in the office of the Accountant General, West Bengal.
It appears that at one time all holders of
supervisory posts in the office of the Accountant General, West Bengal were
required to pass the Subordinate Accounts Service Examination. The examination
consisted of two parts. Every eligible employee was entitled to five chances to
pass the Part I examination, and having passed that he had to pass the Part I
examination before he crossed the age of 45 years. In 1966 the Comptroller and
Auditor General of India 47 considered it necessary to take measures for
improving the working of the offices of the Civil Accountants General because
it had been reported by the Directors of Inspection that the
accounting-cum-administrative work was suffering considerably and the quality
of local inspection was poor.
It was also felt that some accounting-cum-administrative
supervisory posts could be filled by clerks who had not been able to pass the
Subordinate Accounts Service but who had long years of experience and a good
record of service and possessed sufficient administrative ability. It was
expected that while this measure would afford an avenue of promotion to Upper
Division Clerks who had no hope of entering the regular channel of promotion
through the Subordinate Accounts Service examination, it would release more
Subordinate Accounts Service accountants for inspection work and other
important assignments requiring greater technical knowledge and application.
Accordingly, a scheme was framed by an office order No. TM 96 dated June 8,
1966 for filling up some of the posts of a purely accounting-cum- administrative
nature by Upper Division Clerks (including Selection Grade Clerks) who were not
members of the Subordinate Accounts Service. They were to be known as
Accountants. This was to be effected without reducing the total number of
existing posts for which the Subordinate Accounts Service men were eligible.
The scheme provided that in view of the acute shortage of Subordinate Accounts
Service personnel for intensive local audit of a large number of schemes and
programmes then in operation the offices would be recognized in such a way that
passing the Subordinate Accounts Service Examination would not be a necessary
qualification for holding supervisory posts where the work involved was
entirely of an accounting-cum- administrative nature and the knowledge of rules
and accounts of a very high standard was not required. It was stipulated that
Upper Division Clerks and Selection Grade Clerks who had not passed the
Subordinate Accounts Service Examination should be taken on the basis of their
experience, administrative ability and a good record. There was no reservation
of posts for those Clerks. The scheme only made them eligible for holding those
posts. To be eligible the Upper Division Clerks and Selection Grade Clerks
should have put in not less than 20 years of service in the Upper Division
Clerical Cadre and should have exhausted all chances of appearing in the
Subordinate Accounts Service Examination or by reason of being over 45 years of
age were no longer eligible to appear at the Subordinate Accounts Service
Examination. The appointments were temporary and their continuance would depend
upon the satisfactory performance of their duties assessed on the basis of six
monthly reports. It was made 48 clear that they would not be eligible for
promotion as Assistant Accounts officers. It seems that a fair number of such
appointments were made with effect from June 15, 1966 by the Accountant
General, West Bengal by his letter No.
ADMN/37 dated June 9 1 966.
The appellants who had originally been
appointed as Upper Division Clerks in the office of the Accountant General,
West Bengal and at the relevant time were permanent Selection Grade Clerks on
their reversion from temporary appointments as Clerks-in-charge in different
sections of the office of the Accountant General, West Bengal, filed a writ
petition challenging the appointments under the scheme alleging that they were
entitled to be considered for appointment to those posts. They contended that
in confining the zone of eligibility to Upper Division clerks who had not
passed the Subordinate Accounts Service Examination action the scheme brought
about an invidious discrimination which was violative of Arts.14 and 16 of the
Constitution. D By his judgment and order dated June 2, 1970 a learned Single
Judge of the Calcutta High Court allowed the writ petition and quashed the
scheme. An appeal by the Comptroller and Auditor General of India was allowed
by a Division Bench of the High Court by its judgment and order dated July 6,
1978. It set aside the judgment of the learned Single Judge and dismissed the
writ petition.
Before us, learned counsel for the appellant
raises substantially the same point which was pressed before the High Court in
the writ petition. The principle contention is that the scheme violates Arts.14
and 16 of the Constitution because in defining the conditions of eligibility
there is no reasonable basis for discriminating between in those who can no
longer appear at the Subordinate Accounts Service Examination and those who can
still do so.
It is evident that the scheme was intended to
provide a separate avenue of promotion for those Upper Division Clerks who had
put in 20 years of service or more in their cadre and who had exhausted all
their chances of appearing at the Subordinate Accounts Service Examination for
promotion to supervisory posts, or who having crossed the age of 45 years, were
no longer eligible to appear at that Examination. These indicia distinguished
that category of Upper Division Clerks from others. The entire purpose of the
scheme was to provide an avenue of promotion for those Upper Division Clerks 49
who because they were no longer eligible to appear at the Subordinate A
Accounts Service Examination would be compelled otherwise to stagnate in their
existing cadre. An incentive was thus provided to them. There was the hope that
efficiency and industry in their present posts would he rewarded promotion If
the scheme had been thrown open to Upper Division Clerks who still enjoyed the
possibility of recruitment to the Subordinate Accounts Service, the intent
underlying the scheme would have been defeated. The appellants, although senior
in length of service to the respondents promoted under the scheme, were still
eligible to appear in the Subordinate Accounts Service Examination and the
opportunity of advancement in their regular promotional channel was still
available to them. It may be observed that promotion under the scheme was
purely temporary and further continuance on the promotional post depend upon
the satisfactory performance of duties monitored every six months. They were
barred from promotion as Assistant Accounts officers, and therefore after
promotion to the supervisory posts of Accountants under the scheme they were
not entitled to further advancement or promotion to any higher post. On the
other hand, the appellants, in the event of their success at the Subordinate
Accounts Service Examination, were entitled to substantive appointment by
promotion to supervisory posts, and thereafter eligible for further promotion to
still higher posts. We are satisfied that in providing a separate channel of
promotion governed by its own conditions of eligibility the impugned scheme
follows a clearly defined classification having a reasonable nexus to the
object of the classification. Those who fall outside the scheme cannot complain
of discrimination, for intelligible differential exist between those included
within the scheme and those outside it. The framing and implementation such a
scheme falls within the scope of administrative policy, and having regard to
the object underlying the scheme as well as careful definition we see no basis
for complaint by the appellants.
Our attention was invited by learned counsel
for the appellants to State of Jammu and Kashmir v. Triloki Nath Khosa and
ors.(l) but learned counsel has been unable to show how that case is relevant
on the facts of the instant case.
The appeal fails and is dismissed but, in the
circumstances, there is no order as to costs.
H.S.K. Appeal dismissed.
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