D. Ray v. Comptroller & Auditor General of India

45 r DEBRAJAN RAY & ORS. v. COMPTROLLER & AUDITOR GENERAL OF IN.PIA AND ORS. _November 13, 1984_ (R. S. PATIIAK AND V. BALAKRISHNA flRADI, JJ.] _Administrative_ La~Schemeframed _by office of Accountant General,_ _JVest_ _Bengal_ _by_ _Office Order No._ _T'ft.f_ _96 dated June 8, 1966_ _for promoting Upper Divi·_ _sion Clerks_ _who_ _had not passed Subordinate Accounts Service_ _Exiimination-_ _Whether violative of_ _Arts. 14 and 16 of ·the Constitution-Held-N<>-Scheme up-_ _held._ At one time all holders of supcrvisC'ry posts in the office of the Accountant General, West Bengal were required to pass 1he Subordinate Accounts Service Examination before crossing the age of 45 years. Jn 1966. for improving the working of the office of the Civil Accountants General. a scheme was framed by an Office Order, No. T?vl 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 inv0Ived was entirJy of an accounting..cum-administrative nature and the knowledge of rules and accounts of a very high standafd was ·not required. To be eligible for promotions the Upper Division Clerks and Se'ection Grade Clerks should have put in not Jess than 20 years of service in the Upper Division Clerical Cadre and should have exhrr.usted all chances of appearing in the Subordinate Accounts Service Examination or by reason of being over _45_ years of age were no longer eligiblo to appear at the Subordinate Accounts Service Examination. The appointments \\'ere temporary and the appointees were not eligible for further piomotion. A number of appointment'i were made under the scheme. The appellants challenged the appointments on the ground that in confining .J.he zone of eligibility to Upper Division Clerks who had not passed the Subordio'ate 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 lUgh 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 thh appeal by special leave. Dismissing the appeal7 A :B #### c 'D E F -, G JIELD : The scheme was intended to provide a separate avenue of pro· motion for those Upper Division Clerks who had put in 20 years of service or wore in their 1;adre and ·who bad exhausted all their chances of appearing at the H **B** #### / c ## **n·** E F G 46 SUPREME COURT REPORTS [1985] 2 S.C.R **Su'Jordinate Accounts Service Examination for promotion to supervisory p.** »t2, **or who having crossed the age of 45 years, were** **no** **]anger eligibJi:** **to arpea•** ~·t **the Examination. These indicia distinguished that category** **of** **Upper Divb1.; ..** **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** d~feated. **Tb.: appellants, although senior in length of sertice to the respondents promoted** **under the scheme, were still eligible to appear in the Subordinate Account Ser-** **vice** E~amination **and the opportunity of advancement in their regular promo-** **tional channel** **was** ~till **available to** **them. ·Those promoted under the scheme** **were not entitled to further promotion to anY higher post. The impugned scheme** **follow! a clearly defined classification ha .. ·iag a reasonable nexus to the object of** - **the classification. Those who fall oiitside the scheme cannot complain of discri-** **mination, for intel1igible differentia exist between those included within the** **sch:me and those outside it. The framing and** **implementation of such a scheme** **falh within the scope of** **administrative policy, and having regard** **to the object** **underlying the scheme as well as its careful definition** **there is no basi5** **for com·** plaint by the appellants. (48 H; 49 A·Fl ·· ' _**Stcfte**_ _**·of Jammu**_ _**and**_ _**Ka1hmir**_ **v."** _**'Trllokl Nath**_ _**Khosa**_ _**and Ors.,**_ **[197411** S.C.R~ **771,** **not relevant.** CIVIL APPELLATE JURISDICTIO~: Civil Appeal No. 1033 of 1979. , ·. Appeal by Specialleave from,theJudgment and Order dated the 6th' July, 1978 of the CaJCutta High Court' i~ Appeal from Original Order No. 497 of 1970. _RX. Garg,_ _V._ _J._ _Francis_ and _N.M._ _Popli_ for the Appellant. _Har bans Lal, R.N. Poddar_ and _C. V.S. Rao_ for the Respondent. Th.e Judgment of the Court was delivered _by PATHAK, J. This appeal by special leave rais,es an interesting ###### question respecting"the recruitment oJ 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 Examnation. 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 II examination before he crossed the age of 45 years. In. 1966 the Comptroller and. Auditor Gener11l of India **D.** RAY v. AUDITOR GENERAL _.(Pathak,_ **J.)** 47 . , .• ins'deced it necessary to take measures for improving the working ol tI,o o:Tices of the Civil Accountants General because it had been reported by the Directors of Inspect!on that the accounting-cum administrative work was suffering considerably and the quality of local inspection ·was poor. It was nlso felt that some accounting-cumadministrative 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 admtnstriitive 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 (induding 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 reotganised 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. **H** was stipulated that Uppef 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 thei' continuance would depend upon the satifactory performance of their duties assessed on' the basis of six monthly reports. It ~as made **A** **B** ##### **c·** **D** **F** **G** B #### c D # .. E F I . \ 48 SUPREME COURT REPORTS [1985] 2 s.c.R. clear that they would not be eligible for promotion as Aesista1•T Accounts Officers. It seems that a fair number cif such appointmentsJ were made with effect from June 15, 1966 by the Accountant General, West Bengal by his letter No. ADMN/37 dated June 9, 1966. 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 sectious of the office of tbe 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 the scheme brought about an invidious discrimination which was violative of Arts.14 and 16 of the Constitution. By '~ - his judgment and order dated June 2, 'J . 1970 . a learned Single ' ! Judge of the Calcutta High Court allowed the writ petition and quashed the scheme. An appeal by ihe 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 !hose 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 bar.I exhausted all their chances of appearing at' the Subordinate Accounts Service Examination for promotion to supervisory posts, or who ha•ing 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 wa! to provide an avenue of promotion for those Upper Division Clerks _I_ ##### • D. RAY _v._ AUDITOR GENERAL _(Pathak,_ J.) 49 who becaus they were no longer eligible to appear at the Subordinate 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 be rewarded promotion. If the scheme had been thrown open to Upper Division Clerks who still enjo}ed the possi· bility of recruitment to the Subordinate Accounts Service, the intent underlying the scheme would have been defeated. The appellants, although senior in length ~f 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 monitoned 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 appoint· ment 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 differentia exist between those included within the scheme and those outside it. The framing and implementa· tion such a scheme falls within the scope of administrative policy, and having regard to the object underlring 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._ _[111 ]_ 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._ (1) (1974) I S.!j.R. 771 A B ## c D E F G ###### ff