M GURURAJA RAO Vs. GOVERNMENT OF INDIA

JUDGEMENT

(1.) The petitioner is a class II officer working in the office; of the Accountant General in Karnataka In this writ petition he has prayed for the issue of a writ in the nature of mandamus to the Union Government the Comptroller and Auditor General of India and the Accountant General in Karnataka to consider his case for promotion to class I cadre without reference to Paras J10 and 112 of the Manual of Standing Orders (Administrative) (Vol. I) hereinafter referred to as the Standing Orders issued by the Comptroller and Auditor General of India. Inter-alia he has requested the Court to quash Paras 110 and 112 of the Standing Orders as being violative of Arts 14 and 16 of the Constitution of India. He has also prayed for the issue of a writ in the nature of mandamus to the Union Government to frame rules under Clause (5) of Art. 148 of the Constitution providing for promotion from Class II cadre to Class I cadre in the Indian Audit and Accounts Service on the basis of seniority.

(2.) Briefly stated the case of the petitioner is as follows. The petitioner has been holding a post of Class II officer on permanent basis with effect from 31-10-1962. In the gradation list maintained by the Accountant General in Karnataka his name is shown above the names of two persons by name K. S. Sarangapani and K. Sundaram. Notwithstanding the fact that the petitioner is senior to these two persons and that his record of service has been very clean all through the departmental committee at the State Level which is entrusted with the duty of recommending officials belinging to Class II cadre for being considered for promotion to Class I cadre had recommended the names of thosatwo persons.

(3.) It is contended that the recommendation made by the departmenlal committee at the State level suffered from arbitrariness and hence the entire proceedings leading to the recommendation made by the departmental committee at the State level were vitiated. It is further submitted that parag 110 and 112 of the; Standing Orders not having been promulgated under clause 5 of Art. 148 of the Constitution had no force of law and hence in the absence of any Cadre and Recruitment Rules governing the question of promotion of officials from Class II Cadre to Class I cadre it was impermissible for the Union Government to make appointments on the basis of the recommendations made by the departmental committee at the State level. In the statement of objections filed on behalf of the respondents the allegation made by the petitioner that there were no rules governing the question of promotion of officials from Class II cadre to Class I cadre is denied. It is pleaded that the said question is governed by the rules regulating recruitment to the Indian Audit and Accounts Service (hereinafter referred to as the Rules) promulgated by the Governor General in Cquncil on April 30 1938 and published in the Gazette of India Exy. dated May 4 1968. The attention of the Court is drawn to rule 21 of the Rules which provides that recruitment by promotion to Class I of the Indian Audit and Accounts Service should be made by Selection from among the gazetted subordinates and ministerial establishments of the service concerned after consultation with the Union Public Service Commission. It is also alleged that certain subsidiary instructions have been issued by the Union Government in order to implement effectively rule 21 of the Rules and that they are contained in the letter dated April 6 1362 addressed by the Secretary to Government of India Ministry of Finance to the Comptroller and Auditor General of India the reply of the Comptroller and Auditor General of India dated April 7 1962 and the letter dated Feb. 22 1962 addressed by the Comptroller and Auditor General of India to the several Accountants General working under him. It is contended that rule 21 of the Rules the instructions contained in the letters referred to above and the act of selection on the part of the departmental committee at the State level and at the Union level were in conformity with Arts. 14 and 16 of the Constitution of India and therefore the allegation that so far as the petitioner is concerned there has been denial of equal opportunity in the matter of employment was not well founded. It is also pleaded that the Departmental Committee on a consideration of the case of the petitioner was of the view that he was not so meritorious as to be considered fit for promotion From the summary of pleadings of the parties set out above two principal questions arise for consideration in this case: