http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 5  

PETITIONER: DEBRAJAN RAY & ORS.

       Vs.

RESPONDENT: COMPTROLLER & AUDlTOR GENERAL OF INDIA AND ORS.

DATE OF JUDGMENT13/11/1984

BENCH: PATHAK, R.S. BENCH: PATHAK, R.S. ERADI, V. BALAKRISHNA (J)

CITATION:  1985 AIR  306            1985 SCR  (2)  45  1984 SCC  Supl.  530     1984 SCALE  (2)757

ACT:      Administrative  Law-Scheme   framed  by  of  office  of Accountant General, West Bengal by of office order No. TM 96 dated June  8   1966 for promoting Upper Division Clerks who had not  passed Subordinate  Accounts  Service  Examination- Whether violative  of Arts.  14 and  16 of the Constitution- Held-No-Scheme upheld.

HEADNOTE:      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 Examination before crossings the  age of  45 years.  In 1966, for improving the working of  the office  of the  Civil Accountants General, a scheme was framed by an office order No. TM 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 involved was  entirely of  an  accounting-cum-administrative nature and  the knowledge  of rules  and accounts  of a very high  standard   was  not   required.  To  be  eligible  for promotions 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 the  appointees were  not  eligible  for further promotion.  A number of appointments were made under the scheme.  The appellants  challenged the  appointments on the ground  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.  A single  Judge of  the High 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 this appeal by special leave. G      Dismissing the appeal, ^      HELD: The  scheme was  intended to  provide a  separate

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 5  

avenue of  promotion for those Upper Division Clerks who had put in  20 years  of service  or more in their cadre and who had exhausted all their chances of appearing at the 46 Subordinate Accounts  Service Examination  for promotion  to supervisory posts,  or who  having crossed  the  age  of  45 years, were no longer eligible to appear at the Examination. These indicia  distinguished that category of Upper Division 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  defeated.  The appellants, although  senior in  length of  service  to  the respondents promoted  under the  scheme, were still eligible to appear  in the  Subordinate Account  Service  Examination and  the   opportunity  of   advancement  in  their  regular promotional channel  was  still  available  to  them.  Those promoted under  the scheme  were  not  entitled  to  further promotion to  any higher post. 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 differential exist  between those included within the scheme and those outside it. The framing and implementation of such a scheme  falls within  the scope  of administrative policy, and having  regard to  the object  underlying the  scheme as well as  its  careful  definition  there  is  no  basis  for complaint by the appellants. [48 H; 49 A-F]      State of  Jammu and  Kashmir v.  Triloki Nath Khosa and ors., [1974]1 S.C.R. 771, not relevant.

JUDGMENT:      CIVIL APPELLATE  JURUDICTION : Civil Appeal No. 1033 of 1979.      Appeal by  Special leave  from the  Judgment and  order dated the  6th July,  1978 of  the Calcutta  High  Court  in Appeal from original order No. 497 of 1970.      R.K. Garg.  V.  J.  Francis  and  N.M.  Popli  for  the Appellant.      Harbans  Lal,  R.N.  Poddar  and  C.V.S.  Rao  for  the Respondent.      The Judgment of the Court was delivered by      PATHAK, J.  This appeal  by  special  leave  raises  an interesting question  respecting the  recruitment  of  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 Examination. 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  I examination  before he  crossed the  age  of  45 years. In 1966 the Comptroller and Auditor General of India 47 considered it  necessary to  take measures for improving the working   of the  offices of  the Civil  Accountants General because it  had been reported by the Directors of Inspection that the  accounting-cum-administrative work  was  suffering considerably and  the quality  of local inspection was poor. It was  also felt  that  some  accounting-cum-administrative supervisory posts could be filled by clerks who had not been able to  pass the  Subordinate Accounts  Service but who had

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 5  

long years  of experience  and a  good record of service and possessed sufficient administrative 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  (including 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 recognized  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. It was stipulated that  Upper 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 their  continuance would depend upon the satisfactory performance  of their  duties assessed  on  the basis of six monthly reports. It was made 48 clear that  they would  not be  eligible  for  promotion  as Assistant Accounts  officers. It seems that a fair number of such appointments  were made  with effect from June 15, 1966 by the  Accountant General,  West Bengal  by his  letter No. ADMN/37 dated June 9 1 966.      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 sections  of the office  of the  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 action the scheme  brought about  an invidious discrimination which was violative of Arts.14 and 16 of the Constitution. D      By his  judgment and order dated June 2, 1970 a learned Single Judge  of the  Calcutta High  Court allowed  the writ petition  and   quashed  the   scheme.  An   appeal  by  the Comptroller and  Auditor General  of India  was allowed by a

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 5  

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 in those 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  had exhausted all their chances of appearing at the Subordinate Accounts  Service Examination  for promotion  to supervisory posts,  or who  having 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 was to provide an avenue of promotion for those Upper Division Clerks 49 who because  they were  no longer  eligible to appear at the Subordinate  A   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 he rewarded promotion  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  defeated.  The appellants, although  senior in  length of  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 monitored 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 appointment  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  differential exist between  those included  within the  scheme and  those outside it.  The framing  and implementation  such a  scheme falls within  the scope of administrative policy, and having regard to  the object  underlying  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.(l) but  learned counsel  has been  unable to show how  that case  is relevant on the facts of the instant

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 5  

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] 1 S.B.R.771 50