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TMI Blog2007 (12) TMI 562X X X X Extracts X X X X X X X X Extracts X X X X ..... t was erroneous and he was not eligible to be promoted. The mistake was, therefore, sought to be corrected. A notice under Rule 31-A of the Fundamental Rules, 1922 was issued to the respondent informing him that he could not have been promoted as Senior Accountant as he had not passed Departmental Examination of Accountants as required by law. He was, hence, asked to show cause why the promotion given to him erroneously should not be cancelled. By a reply dated February 16, 1994, the respondent contended that he was eligible and qualified for getting promotion and accordingly he was promoted. He also asserted that he was performing his functions and discharging his duties efficiently and there was no occasion to revert him. According to him, there was no need to clear Departmental Examination for Accountants and the notice was required to be discharged. 4. After considering the reply submitted by the respondent, the Principal Accountant General, vide his order dated March 29, 1994, cancelled the promotion. The respondent challenged the cancellation of promotion by filing Original Application No. 275 of 1994 in the Tribunal. The Tribunal, on March 12, 1996, allowed the petition and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... were issued by the Tribunal, but they had not been complied with. The Comptroller and Auditor General of India ought to have relaxed the condition as to passing of examination. Moreover, the Tribunal has merely directed to consider the case of the respondent and there was no illegality in it. The High Court, therefore, rightly did not interfere with the said order. Finally, it was submitted that the respondent was promoted on January 1, 1990 and thus he has completed about seventeen years of service on the promoted post. He will be retiring within a few days i.e. after the office hours of December 31, 2007. Hence, even if this Court holds that his promotion was not strictly legal, the Court may not interfere with the said order and allow him to continue on that post for few days more. 11. Having heard learned Counsel for the parties, in our opinion, the appeal deserves to be partly allowed. So far as the promotion of the respondent is concerned, it is not in dispute that he was promoted as Senior Accountant (Functional) on January 1, 1990. It is not the allegation of the appellant that the respondent had obtained such promotion by concealing fact or by playing fraud. 12. At the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (5) of Article 148 of the Constitution. The Rules are thus statutory in nature. Secondly, the Rules provide for mode of appointment to the post of Senior Accountant by promotion, failing which by transfer on deputation. Thirdly, promotion is based on 'seniority' subject to rejection or unfit from among Accountants, generally known as 'negative test'. Fourthly, an Accountant must have three years regular service. Finally, such Accountant must have passed Departmental Examination for Accountants. 16. It is not the case of the respondent that he had passed the Departmental Examination for Accountants. It is, thus clear that the respondent was not qualified for promotion to the post of Senior Accountant under the Rules. 17. The respondent, however, urged that even if it is held that passing of Departmental Examination was necessary, the Authorities ought to have relaxed the rule by exercising power under Rule 5. A grievance was also made that the direction of the Tribunal in earlier case had not been complied with and the prayer of the respondent was rejected mechanically. 18. We are unable to agree with the submission of the learned Counsel. Rule 5 confers discretio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n observation to consider the case of the applicant for relaxation under the powers vested under rule 5 and the respondent were duty bound to consider it in accordance with the order of this Tribunal. 21. We are unable to persuade ourselves as to how the Authorities did not carry out the order in letter and spirit as contended by the learned Counsel for the respondent. We are also unable to agree with the Tribunal that the reasons recorded for rejection of the case of the respondent were not 'valid'. On the contrary, in our judgment, the Deputy Accountant General was right in keeping in view relevant considerations, such as, the power should be exercised with respect to any 'class or category of persons', normally there should not be any relaxation in Recruitment Rules unless the eligible and qualified candidates are not available; relaxation should not be exercised to perpetuate mistake; a large number of Accountants who are eligible and qualified but they could not be appointed only because of non-availability of sufficient vacancies. 22. In this connection, it may be profitable to refer to a decision of this Court in Keshav Chandra Joshi and Ors. v. Union of In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ity of vacancy. In case the said vacancy is not available, he shall be promoted immediately after the vacancy is made available. However, in case there are persons who are senior to the applicant and who have already qualified the examination of Senior Accountant, the case of the applicant shall be considered immediately after the promotion of such persons or such persons are promoted. (emphasis supplied) 27. Plain reading of the above direction leaves no room for doubt that the Tribunal 'concluded' that it was a 'fit case for according relaxation under Rule 5'. Moreover, the Tribunal directed the appellants to promote the respondent, if found suitable, within the stipulated period. The Tribunal further stated that if there is no vacancy, the respondent should be promoted after the vacancy is available. There is, therefore, no doubt that the question as to relaxation of rule was 'finally decided' and the directions were to be carried out by the Authorities on the basis of such conclusion. It, therefore, cannot be said that direction was limited to 'consideration' of the case of the respondent and to take an appropriate decision in accordance with ..... X X X X Extracts X X X X X X X X Extracts X X X X
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