Azim-ud-Din & Ors. vs Accountant General & Ors.

Consequent upon the integration of the State Audit and Accounts with the centre with effect from 151958, the employees of the erstwhile office

of the Accountant General were absorbed at various levels of the Central audit and accounts service in accordance with the recommendations of a

committee called 'Assessment Committee' consisting of the representatives of the Centre and the State. At the relevant time there were seventy

four SuperintendentsCumSenior Accountants including the petitioners in the office of the Accountant General Jammu and Kashmir. The Committee

classified them as under:

a) Persons absorbed permanently in the S. A. S. cadre.

b) Persons absorbed permanently in posts lower than S. A. S. and officiating in SAS posts under the following three divisions:

i. Permanent in lower posts and officiating in SAS.

ii. Permanent in lower post and officiating in SAS confirmation in which will depend on passing SAS examination.

iii. Permanent in lower post and allowed to officiate in SAS Confirmation in which will depend on passing or being exempted from such tests as the

comptroller and Auditor General may prescribe.

c) Persons not taken in the SAS but absorbed in lower posts.

d) Persons who were not categorised for the time being.

2) The petitioners were placed in class b (iii). They where appointed permanently as Upper Division Clerks and allowed to officiate as SAS

Accountants, their confirmation being dependent on their passing or being exempted from such test as the Comptroller and Auditor General might

prescribe. The Comptroller and Auditor General prescribed the modified test for them. The petitioners passed the prescribed test; petitioners 1&2

in July 1972; Petitioner No. 3 in April 1969; petitioner No. 4 in March 1953 and within the time allowed by the Comptroller and Auditor General

as India. They claimed seniority among SAS Accountants on the basis of their length of service beginning from the date of officiation, viz 151958.

Respondents 1 to 3 rejected the claim of the petitioners and held their seniority had to be fixed in accordance with their length of service beginning

from the date on which they had passed their prescribed test. By means of this petition under Art. 226 of the Constitution, the petitioners have

prayed for writ of mandamus directing the respondents 1 to 3 fix their seniority in the cadre SAS Accountants on the basis of their length of service

beginning from 151958, the data of their officiation and to allow them consequential benefits of pay and rank accordingly.

Chapter V of the Manual of standing orders (Administrative) of the Audits and Accounts Department provides for the organisation of the

subordinate accounts and matters relating there to. The controversy in this case higges round the provisions of Rule 184 (2) which governs the

seniority of the members of the Subordinate Accounts Service. Rule 184 (2) interalia says :

The seniority of a person appointed to officiate in the Subordinate accounts service shall ordinarily be based on the date on which he first begins

to officiate after passing the SAS Examination.

Before dealing with this Rule it will be necessary to consider Rule 180 of Chapter V of the Manual. That rule provides as under ;

No persons who has not passed the departmental examination prescribed in Section II of this Chapter is eligible for appointment to the

Subordinate Accounts Service.

Provided that the Comptroller and Auditor General may, on his own initiative himself waive this requirement in special cases.

On the language of this rule, the condition precedent for a person to be appointed to the Subordinate Accounts servidc is that he must have

passed the departmental examination prescribed in Section II of Chapter V of the Manual. The Comptroller and Auditor General has, however,

been invested with power to waive this condition in special cases. He can waive the condition in ways more than one. He may say that the person

concerned need not pass the test at all or that he need pass the test only after his appointment to the service. In either case the person concerned is

relieved of his obligation to pass the qualifying test contemplated by this rule and the effect would be that he shall be deemed to have passed such

test it necessarily follows that this officiation in the SAS after such waiver would be easily comparable with like officiation by a person after passing

the test.

Let me now revert to rule 184 (2) supra. The expression ordinarily 'used in this rule is meaningful. It amply suggests that in extra ordinary cases,

the seniority of a person appointed to officiate is SAS shall be based on the date on which he first begins to officiate irrespective of the fact

whether he had or had not passed the SAS Examination. Obviously because the proviso to rule 180 (supra) would otherwise become meaningless.

The proviso contemplates special case which would be governed by their own facts and, circumstances in this matter. In the present case the

petitioners had not admitted passed the SAS Examination when they were appointed to offiiciate as SAS accountants. The Comptroller and

Auditor General must therefore be deemed to have waived the requirement prescribed by Rule 180 concerning prieor passing of the SAS

examination for entry into the Subordinate Accounts servide. Applying the principle stated above, it necessarily follows that their officiatiation in the

SAS service after such waiver is comparable with such officiation after passing the qualifying test. It is true that the condition of their appointment

was that their confirmation would depend upon their passing the test. But that it not the same thing as saying that their entry into the service was

dependent upon their passing the test. The effect of the condition simply was that they were likely to be reverted if they did not pass the test. The

provision for the test was a condition subsequent and not a condition precedent as comtemplated by rule 180. This condition did not change the

basic character of their appointment to the service which was as good as if they had been appointed after passing the test. The prescribed modified

test ceased to be a test for appointment and simple become a test for their continued appointment as SAS Accountants. That is where the

distinction lies. In this view, rule 184 (2) requires that the petitioners length of service in the SAS cadre must be reckoned from the date they were

appointed as officiating SAS accountants irrespective of the fact that the prescribed test was actually passed by them after their appointment to the

service and their seniority must be determined accordingly. The argument to the contrary of the learned counsel for the respondent must fail.

Even, on this finding, argued learned counsel for respondents 1 to 3. the petitioners are not entitled to any relief. His ground of objection is two

fold. Firstly, that the petition is extremely belated. Secondly, that the relief in the present from cannot be granted. He urged that in effect and

substance the petitioners seek to challenged the seniority list which ..was prepared in the year 1961. The petition was filed in the year 1973 i. e 12

years after the list was notified and as such the petition is belated. He further urged that they have asked for mandamus without also asking for a

relief to quash the seniority list. The preyar for mandamus cannot be granted without the petitioners asking for a prayer to guash the seniority list of

1961. In my opinion, both these objections must fail.

The law is well settled that the grant of relief under Art. 226 of the Constitution is in the discretion of the court and that the court may refuse to

exercise such discretion in the case of a person who is guilty of unreasonable delay, and in making the petition the delay is not satisfactorily

explained. This is a rule of convenience and not a rule of law. The courts have recognised this rule as a self imposed limitation. The rule is based

upon the principle of the delay, which may create equitable rights of others, may form a rational ground for refusing relief. In the present case, there

is no material on record to show that the refixing of the seniority would deprive any person of his promotion or any other service benefit that he

might have received on the ground that he was previously declared senior to the petitioners. That apart, the petitioners could not be expected to

agitate the question of seniority so long as they had not passed the test prescribed by the Comptroller and Auditor General of India. For, they

could not reasonably exclude the possibility that they might not qualify in the test and may have to go back to their substantive rank. They could

seriously think agitating the matter only when they had passed the examination. So viewed, the petition cannot be treated to have been filed after an

abnormal or extra ordinary deley. The first ground of objection falls.

The notification (Rn) to the counter affidavit shows that certain principles Cade of SAS accountents. The material provision is contained in

paragraphs 7 and 8 of Notification which read as under :

The persons who were assessed a permanent Divisional Accountant and officiating SAS Accountants have been regarded as senior to those

assessed as permanent selection grade clerks and officiating S. A. S. Accountant. Similarly the later have been regarded as senior to those

assessed as permanent U. D. Cs and officiating S. A. S. Accountants.

Those who have been assessed as officiating S.'A. S. Accountants, subject to the condition of passing the full or modified S. A. S. Examination

or get permanent exemption there from, have been regarded as junior to those who have been assessed as officiating S. A. S. Accountants without

any condition.

The principles incorporated in these provisions are to rally extraneous to the rules governing the seniority contained in rule 184 of the manual

which envisages that the seniority shall be determined on the basis of the length of service. The seniority list of 1961 is therefore based upon

considerations which have no relevance. The list, in so far as it affects the petitioners, is a stillborn list and the petitioners need not have specifically

asked for quashing it. The statute required the authorities to determine the seniority list in accordance with the principles incorporated therein,

which they have not followed. The petitioners can leqitimately ask for mandsmus diecting the respondents 1 to 3 to formulate the list in accordance

with the directions in the staute. The relief for mandamus in its present form is perfectly in order. The second ground also fails.

In the result this petition succeeds and is allowed. The respondents 1 to 3 are directed to adjust the seniority of the petitioners on the basis of their

first officiation as SAS Accountants and allow them to consequential benefits of rank and pay accordingly. There shall be no order as to costs.