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TMI Blog1980 (11) TMI 162X X X X Extracts X X X X X X X X Extracts X X X X ..... he basis that their length of service in the inferior post should be taken into account, and rested their claim on paragraph 143 of the Manual of Standing Orders issued by the Comptroller and Auditor-General as it stood before its amendment by a correction slip of 27th July, 1956. The correction slip removed the factor of weightage on the basis of length of service in the determination of seniority. The claim was rejected by the Comptroller and Auditor-General. A writ petition filed by them in the High Court of Madras was allowed by a learned Single Judge, and his judgment was affirmed by an appellate Bench, of the High Court. Against the judgment of the appellate Bench, the Accountant General, Tamil Nadu and the Comptroller and Auditor-General have appealed to this Court, and those appeals are pending as Civil Appeals Nos. 1584 to 1588 of 1973. During the pendency of those appeals the President enacted the Indian Audit and Accounts Department (Subordinate Accounts Service Subordinate Railway Audit Service) Service Rules, 1974 (referred to hereinafter as the Rules of 1974 ). The Rules of 1974 purport to give statutory recognition to the amendment of paragraph 143 by the Comptrol ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ions or orders as he may consider necessary or expedient for the purpose of giving, effect to the Rules. The respondents have raised two contentions. The first is that the Rules are invalid as clause (5) of Art. 148 to which alone, it is said, they must be ascribed, does not permit the retrospective enactment of rules made thereunder. The other contention is that the specific rules affecting the seniority of the respondents are in valid be cause in entrusting power to the Comptroller and Auditor-General to issue orders and instructions in his discretion the doctrine against excessive delegation of legislative power has been violated Taking the first contention first, it may be noted that the Rules of 1974 purport, according to the recital in the Notification dated 4th November, 1974 publishing them, to have been made by the President in exercise of the powers conferred by the proviso to Art. 309 and clause (5) of Art. 148 of the Constitution and after consultation with the Comptroller and Auditor-General of India . The respondents say that the only provision of the Constitution under which those Rules could be made is clause (5) of Art. 148, and we should ignore reference to th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... olding office in connection with the affairs of the Union exclusively. It may be pointed out that when the Constitutional Adviser prepared the Draft Constitution for consideration by the Constituent Assembly the document contained separate provisions for the appointment of the Auditor-General of the Federation and Auditors-General for the Provinces. The Auditor-General for the Federation was to be appointed by the President and his functions extended to the accounts of the Federation as well as of the Provinces. But it was open to a Provincial Legislature to provide by law for the appointment of an Auditor-General for the Province and the appointment to that office was to be made by the Governor. The Expert Committee on the financial provisions of the Union Constitution favoured the continuance of a single Auditor-General for the Government of India as well as for the Provincial Governments and hoped that the Provincial Governments would refrain from using their power of appointing separate Auditors-General of their own. When the matter came before the Drafting Committee, it decided that the persons performing the functions of the Auditor-General in a State should be designated Aud ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he enactment of rules having retrospective operation. It is settled law that unless a statute conferring the power to make rules provides for the making of rules with retrospective operation, the rules made pursuant to that power can have prospective operation only. An exception, however, is the proviso to Art. 309. In B. S. Vadera v. Union of India Ors. this Court held that the rules framed under the proviso to Art. 309 of the Constitution could have retrospective operation. The conclusion followed from the circumstance that the power conferred under the porviso to Art. 309 was intended to fill a hiatus that is to say, until Parliament or a State Legislature enacted a law on the subject matter of Art. 309. The rules framed under the proviso to Art. 309 were transient in character and were to do duty only until legislation was enacted. As interim substitutes for such legislation it was clearly intended that the rules should have the same range of operation as an Act of Parliament or of the State Legislature. The intent was reinforced by the declaration in the proviso to Art. 309 that any rules so made shall have effect subject to the provisions of any such Act . Those features a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ers of the staff of the High Commissioner for India, or members of the staff of the Auditor of the accounts of the Secretary of State in Council, shall continue to be, or shall become, members of the staff of the High Commissioner for India or, as the case may be, of the Auditor of Indian Home Accounts. (2) All such persons aforesaid shall hold their offices or posts subject to like conditions of service as to remuneration, pensions or otherwise, as therefore, or not less favourable conditions, and shall be entitled to reckon for purposes of pension any service which they would have been, entitled to reckon if this Act had not been passed. * * * * * Sub-s. (2) of s. 252 does not help the respondents. Firstly, the guarantee conferred by it covered those persons who held offices or posts on the staff of the Auditor of the accounts of the Secretary of State in Council and on the staff of the Indian Home Accounts immediately before the commencement of Part III of the Act. The respondents are clearly not such persons. Secondly, even if it be assumed that the benefit of sub-s. (2) can be extended to the respondents, sub-s. (2) merely protects the conditions of service enjoye ..... X X X X Extracts X X X X X X X X Extracts X X X X
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