M.Srinivasa Prasad & Ors Vs. The Comptroller & Auditor General of India & Ors
[2007] Insc 337 (29 March 2007)
H.K. SEMA & V.S.SIRPURKAR
(with C.A.No.5504 of 2003) H.K.SEMA,J.
These two appeals raise a common question of facts and law and they are
being disposed of by this common judgment. For the sake of brevity, we are
taking facts from Civil Appeal No.5504 of 2003.
The undisputed facts are that the appellants are direct recruits to the post
of Section Officer (Commercial Audit) in the Audit and Accounts department.
Their services are governed by the recruitment Rules known as Indian Audit and
Accounts Department Section Officer (Commercial Audit) Recruitment Rules, 1988
framed by the President of India under Article 148(5) of the Constitution of
India.
The Rule inter alia provides the method of recruitment is by promotion
failing which by transfer/transfer on deputation and failing both, by direct
recruitment. The Rule also provides that the period of probation is two years.
Note to Rule 11 provides that during the period of probation they should
qualify in the Section Officer's Grade Examination (SOGE) for appointment as
regular Section Officers.
It is contended by learned counsel for the respondents that having accepted
the terms and conditions of appointment they are stopped from challenging the
same.
The appellants were appointed on various dates on certain terms and
conditions common to all. The terms and conditions inter alia read:-
1. The period of probation will be two years. This may however be increased
or decreased at the discretion of the appointing authority. His/her appointment
will be purely temporary and will be terminable at one months notice on either
side.
2. During the period of probation he/she will have to undergo a regular
course of training for such a period at such place and in such manner as may be
prescribed. He/she may also be assigned regular duties during the period of
training.
3. During training the Section Officers Grade Examination (SOGE) will be
conducted. He/She will have to qualify the SOGE (Both) Part I and II
Examination within the period of probation.
Those who fail to qualify the above exam are liable to be discharged from
service. Candidates who pass this examination will be posted as regular Section
Officer (Audit).
4. xxx xxx xxx xxx
5. xxx xxx xxx xxx
6. On satisfactory completion of probation he/she will be eligible for
confirmation in the office where he/she is posted on a regular basis as Section
Officer (Audit) subject to his/her being considered fit in all respect for
permanent retention in the service. His/her confirmation in the Section Officer
cadre will not however give him/her any special claim to seniority. The
seniority of direct recruits to the cadre vis-`-vis Departmental candidates
passing regular Section Officer (Audit) Grade Part II Examination will be fixed
in accordance with the seniority rules as at present viz that a directly
recruited Section Officer (Audit) shall rank immediately below the last Section
Officer (Audit) Grade Examination passed person officiating in the Section
Officer (Audit) cadre on the date on which he takes over charge as Section
Officer (Audit)".
The controversy arose when the seniority of the appellants as Section
Officer was reckoned w.e.f. the date they were qualified in the Section Officer
Grade Examination for appointment as regular Section Officers. Aggrieved
thereby they preferred O.A. They claimed that the initial appointment as
probation be reckoned towards the seniority for the purpose of promotion from Section
Officer to AAO.
It is clear that in the Recruitment Rules of 1988 the Rule is silent as to
how the seniority of the direct recruits be fixed.
The Comptroller and Auditor General's Manual of Standing Orders
(Administrative) Volume 1 was issued by an executive instruction.
Paragraph 5.6.6. provides that the seniority of the direct recruits to the
post of Section Officers on passing Part II of the Section Officers Grade
Examination shall be regulated by the following method:
(i) A directly recruited Section Officer shall rank immediately below the
last Section Officers Examination passed member of the staff officiating in the
Section Officers grade on the date on which he takes over charge as a regular
Section Officer. If an officiating Section Officer reverts at any time to his
previous post, the reversion not being on account of his proceeding on leave,
he shall lose his seniority vis.a.vis all those recruited directly, who are
appointed as Section Officer upto the date on which he again begins to officiate
continuously.
(ii) xxx xxx xxx xxx (iii) A direct recruit is appointed a Section Officer
on regular basis only on satisfactory completion of the period of probation
prescribed in the recruitment rules even though he passes the examination
before that period his seniority is also effective on his actual taking over
charge as a regular section officer".
Rule 12 of Indian Audit & Accounts Deptt.
Recruitment Rules, 1989 deals with the recruitment by promotion and it
provides, 'Section Officers (Audit) who have qualified Section Officers Grade
Examination and have three years of regular service in the grade'.
The seniority in Section Officers cadre is governed by paragraph 5.6 of the
executive instructions. It reads:- "5.6.1(i) Each Civil Audit Office and
Civil Accounts Office and each Railway Audit Office has its own Section
Officers cadre except where any such office is re-organized into two or more
independent offices and so long as the cadre is not separated for the offices
into which it has been reorganized.
(ii) The interse seniority of Section Officers (Commercial) is based on All
India basis under separate orders issued by the Comptroller and Auditor General
of India.
(iii) Similarly the seniority Section Officers (Defence Audit each) and Section
Officers (posts and Telecommunications Audit) each is fixed separately.
5.6.2 xxx xxx xxx xxx 5.6.3 xxx xxx xxx xxx 5.6.4 xxx xxx xxx xxx 5.6.5 xxx
xxx xxx xxx 5.6.6. The seniority of the direct recruits to the post of Section
Officers on passing Part II of the Section Officers Grade Examination shall be
regulated by the following principles:
(i) A directly recruited Section Officer shall rank immediately below the
last Section Officers Examination passed member of the staff officiating in the
Section Officers grade on the date on which he takes over charge as a regular
Section Officer. If an officiating Section Officer reverts at any time to his
previous post, the reversion not being on account of his proceeding on leave,
he shall lose his seniority vis.a.vis all those recruited directly, who are
appointed as Section officers up to the date on which he again begins to
officiate continuously.
Note : The terms last Section Officer's Grade Examination passed member of
the staff refers to one who has passed in an earlier examination and not in the
examination in which the direct recruit has come out successful.
(ii) As between direct recruits themselves.
(a) One who completely passes the Section officers' Grade Examination
earlier shall rank senior to those who pass the examination at a later date,
irrespective of the date of their recruitment of or of the date of passing Part
I of the Section officers Grade Examination.
(b) Amongst the persons who pass in the same Section Officers' Grade
Examination, relative seniority shall be determined according to the year of
recruitment i.e. those belonging to an earlier batch of recruitment shall be
senior to those belonging to a subsequent batch.
(c) Where the direct recruits belonging to the same batch of recruitment
pass the same Section Officers' Grade Examination, the Chartered Accountants as
a class will rank senior most, interse seniority among them being fixed with
reference to the date of passing the Chartered Accountants (final) examination,
the person passing in an earlier examination ranking senior to the one passing
in subsequent examination. The cost and works Accountants as a class will be
ranked below the Chartered Accountants, the interse seniority among them being
determined on the same lines as for Chartered Accountants.
When the date of passing the Chartered Accountants (final)/ICWA (final)
examination is the same, the relative seniority within the relevant class of
persons will be determined according to seniority in age. All other persons
will rank as a class below the Chartered Accountants and Cost and Works
Accountants, the interse seniority among them being fixed in accordance with
the rank secured at the time of selection for appointment. If for the purposes
of ranking, two or more of them have been bracketed, the older person shall be
the senior.
(iii) A direct recruit is appointed as a Section Officer on regular basis
only on satisfactory completion of the period of probation prescribed in the
Recruitment Rules even though he passes the examination before that period, his
seniority is also effective on his actually taking over charge as a regular
Section Officer.
(iv) Once the seniority of a directly recruited Section Officer is fixed in
an office he is for further advancement, governed by the same provisions as
laid down for other Section Officers."
Para 4.8 of the said Manual of Standing Orders Vol.1 provides:
"Recruitment to the grade of Assistant Audit Officer (AAO) in the IA
& AD is made by promotion from the grade of Section Officers who have
qualified in Section Officer Grade Examination and have three years of regular
service in the grade as on the crucial date on the basis of seniority subject
to fitness.
Note: The direct recruits will be selected on the basis of an entrance examination
conducted by Comptroller and Auditor General of India or any authority
specified by him. During the period of probation they should qualify in the
Section Officers Grade Examination (SOGE) for appointment as regular Section
Officers".
A fascicule reading of the Rules and the Manual two things clearly emerge:
(a) The passing of qualifying examination/departmental examination (SOGE)
prescribed for the purpose of determining the seniority and (b) A Section
Officer passing an examination first would have precedent over a person who
passes the examination later.
We have already noticed that the Rules are silent insofar as with regard to
the determination of seniority. In order to supplement the Rules, the standing
orders by executive instructions, as noticed above, have been brought out to
fill the gap unfilled by the statutory Rules.
It is vehemently contended by Mr. M.N.
Krishnamani, leaned senior counsel for the appellants that the general
principle is that the seniority be reckoned from the date of appointment. He
further contended that the executive instructions cannot supplement the rules.
He also contended that merely accepting the terms and conditions of appointment
would not debar the appellants from claiming seniority from the date of appointment.
We do not agree with these contentions. It is also contended by Mr. Krishnamani
that once the incumbent passed the departmental/qualifying examination his
seniority would relate back to the date of appointment. To support his
contention, Mr. Krishnamani learned senior counsel, referred to the decision of
this Court in the case of Mohan Lal vs. State of Himachal Pradesh, (1997) 4 SCC
416, where this Court pointed out in paragraph 8 as under:- "8. A reading
of this rule relating to conduct of examination would indicate that the
Government shall hold the examinations twice a year between 3rd week of April
and 1st week of November, or on such other dates as are notified by the Excise
and Taxation Commissioner. The examination so conducted by the Institute of
Public Administration, Shimla shall be in the manner prescribed in Paragraph
(ii) of Rule 4 of the Rules. It is, therefore, clear that the Government is
required to conduct the examinations twice a year and the candidates are
required to pass the examinations within two years from the date of joining the
post on probation. The Rule does not give four chances to every candidates.
They shall pass the departmental examination within two years. On successful
completion of probation and declaration thereof, his seniority would relate
back to the date of appointment".
(emphasis supplied) This Court has taken that view because in that case the
Rule itself provides namely Rule 11(3)(i) of the H.P. Excise and Taxation
Department (Inspectorate Staff, Class III) Service. Rule 11(3)(i) reads:-
11.(3) On the completion of the period of probation of a person and passing the
prescribed examination the appointment authority may (a) if his work and
conduct is found satisfactory- (i) confirm such person from the date of his
appointment if appointed against a permanent vacancy; or ..
The facts of that case have no application in the present case.
The sole controversy to be determined is that as to whether by an executive
instructions/standing orders to fill the gap not covered by the Rules and not
inconsistent with the Rules if framed can be validly made and enforceable? The
question posed is no more res integra. A Constitution Bench of this Court in
Sant Ram Sharma vs.
State of Rajasthan, AIR 1967 SC 1910, has considered the similar question
and held in paragraph 7 as under:- "We proceed to consider the next
contention of Mr. N.C. Chatterjee that in the absence of any statutory rules
governing promotions to selection grade posts the Government cannot issue administrative
instructions and such administrative instructions cannot impose any
restrictions not found in the Rules already framed. We are unable to accept
this argument as correct. It is true that there is no specific provisions in
the Rules laying down the principle of promotion of junior or senior grade
officers to selection grade posts. But that does not mean that till statutory
rules are framed in this behalf the Government cannot issue administrative
instructions regarding the principle to be followed in promotions of the
officers concerned to selection grade posts. It is true that Government cannot
amend or supersede statutory Rules by administrative instructions, but if the
rules are silent on any particular point Government can fill up the gaps and
supplement the rules and issue instructions not inconsistent with the rules
already framed."
(emphasis supplied) In Union of India vs. H.R. Patankar, 1984 (supp.) SCC
359, a similar view was taken by this Court. It was held that even if there are
no statutory rules in force for determining seniority in a Service or even if
there are statutory rules but they are silent on any particular subject, it is
competent to the Government by an executive order to make appropriate Seniority
Rules or to fill in the lacuna in the statutory rules by making an appropriate
seniority rule in regard to the subject on which the statutory rules are
silent.
We have already noticed that the statutory rules are silent about the
determination of inter se seniority. This was made clear by the Comptroller and
Auditory General's Manual of Standing Orders (Administrative). In view thereof,
these appeals are devoid of merits and are accordingly dismissed.
No costs.
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