APPUKUTTAN NAIR Vs. UNION OF INDIA

JUDGEMENT

(1.) THE Petitioners in these two writ petitions are two employees of the establishment attached to the office of the Accountant General, Kerala. Both of them are holding substantively the posts of Section Officers. The Petitioner in O.P. No. 3400 of 1979 is temporarily on deputation to the Lotteries Department of the State Government, but his substantive lein is in post of Section Officer in the Indian Audit and Accounts Department in the office of the Accountant General, Trivandrum. The challenge in both these writ Petitions is primarily against the constitutionality of the circular, dated 25th February 1973. Ext. P -2 issued by the Comptroller and Auditor General, New Delhi, wherein inter alia it has been directed that while effecting promotions in the Audit and Accounts Department from Class III posts to Class TI posts a reservation to the extent 15 per cent for Scheduled Castes and 7 1/2 percent for Scheduled Tribes will have to be made with reference to the number of posts of Accounts Officers to be filled up each year by promotion to be effected on the basis of seniority subject to fitness. The Petitioner in O.P. No. 3388 of 1979 has prayed for the issuance of direction to Respondents Nos. 1 to 3 namely Union of India. The Comptroller and Auditor General of India, New Delhi and the Accountant General of Kerala, Tiivandrum, respectively to make promotions to the cadre of Accounts Officers without reference to the instructions contained in the circular Ext P -2 and to refrain from giving any preference to the Respondents Nos. 4 to 6 who belong to Scheduled Castes, in the matter of promotion to the cadre of Accounts Officers on the basis of the provision for reservation contained in Ext. P -2.In O.P. No. (sic) of 1979 the Petitioner, be ides seeking to quash the circular Ext. P -2, has prayed that the promotions already granted to Respondents Nos. 4 to 11 therein should be declared illegal and void. Respondents Nos. 4 to 10 were promoted on the basis of the reservation provided for in Ext. P -2 all of them being persons belonging to Scheduled Castes. Respondent No. 11 was promoted on the basis of his having been selected by the Departmental Promotion Committee to the quota reserved for promotion on the basis of selection with reference to merit and ability.

(2.) THE main contention advanced on behalf of the Petitioners in support of the challenge raised by them against circular Ext. P -2 is that the offending provision contained in Ext. P -2 has really the effect of modifying the statutory rules framed by the President of India under the proviso to Article 309 of the Constitution. Ext. P -1 is a copy of the aforementioned rules, which are called 'the Indian Audit and Accounts Department (Administrative Officers) Assistant Accounts Officers and Assistant Audit Officers, Recruitment Rules, 1963'. It is contended by the Petitioners that under clauses 5, 10 and 11 of Ext. P -1 all the personnel in the category of Section Officers had been conferred entitlement to promotion to the immediate higher category of Accountants on the basis of their seniority subject to fitness and that a substantial inroad has been made in to this right by the provision for reservation of 22 1/2 percent of the vacancies in favour of Scheduled Castes and Scheduled Tribes candidates made as per the circular Ext. P -2, which is only an executive order. Counsel for the Petitioners strongly urged before us that it was not open to the Auditor General of India to modify the statutory rule by issuing an executive order especially when the power to make rules was vested with the President of India under Article 148(5) of the Constitution.

(3.) COUNSEL appearing for the private party -Respondents in both the writ Petitions also strongly supported the aforesaid contentions put forward by the Central Government Pleader. In addition, it was pointed out by the counsel for such Respondents in O.P. No. 3400 of 1979 that the Respondents Nos. 4 to 10 therein had been promoted under various orders passed during the period from 27th July 1976 to 8th June 1978 and the challenge raised by the writ Petitioner against those promotions in this writ petition, which was presented to this Court on 9th October 1979 is most highly belated and it has to be rejected on that said preliminary ground itself. It was further submitted by the counsel appearing for the Respondents that the promotion given to Respondent No. 11 was not based on the circular Ext. P -2 but was founded on his having been selected by the Departmental Promotion Committee in the quota of 50 percent reserved for selection on the basis of merit and ability and hence there is absolutely no valid ground on which the Petitioner, who was not found suitable by the Departmental Promotion Committee for inclusion even in the preliminary select list, can challenge the said promotion.