COMPTROLLER AND AUDITOR GENERAL OF INDIA AND ORS. versus MOHAN LAL MEHROTRA AND ORS.

Citation: [1991] SUPP. 1 S.C.R. 482 · Decided: 11-10-1991 · Supreme Court of India · Bench: K. JAGANNATHA SHETTY · Disposal: Appeal(s) allowed

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Judgment (excerpt)

A 
B 
c 
COMPTROLLER AND AUDITOR GENERAL OF 
INDIA AND ORS. 
v. 
MOHAN LAL MEHROTRA AND ORS. 
OCTOBER 11, 1991 
[YOGESHWAR DAYAL AND K JAGANNATHA SHETTY, JJ.] 
· Indian Audit & Accounts Departmellt (Accounts Officers, Assistant 
Accounts Officers, and Assistant Audit Officers) Recrnitment Rules, 1963--
Filling up of posts by promotion on basis of seniority subject to fitness -
Reservation of posts for Scheduled Castes and Scheduled TribeS-:Circular 
dated 25th January 1973-Va/idity of-Whether administrative instrnctions 
can be issued to supplement the statutory rnles. 
The respondents, Section Officers in the offices of the Accountant 
b General I, II and Ill, Allahabad, filed a writ petition before the High Court 
challenging the validity of administrative instructions contained in 
Circular No. 172-NGE· 11/56-72-1 dated ·25th January, 1973 issued by the 
first appellant, regarding the reservations for Scheduled Castes and 
Scheduled Tribes in relation to tilling up of posts by promotion on the 
basis of seniority subject to fitness, and praying that the first appellant 
E and two others be restrained from promoting three of the Section Officers, 
belonging to the Scheduled Castes to the post of Accounts Officer, 
_ contending that since the respondents were senior, those three Section 
Officers could not· be promoted to the post of Accounts Officers through 
seniority quota before the respondents. It was also contended that the 
F 
promotion to the post of Accounts Officers was regulated by Indian Audit 
& Accounts Department (Administrative Officers, Assistant Accounts 
Officers and Assistant Audit Officers) Recruitment Rules 1963 made by 
the President in exercise of the powers conferred by proviso to Article 309 
and clause (5) of Article 148 of the Constitution after consultations with 
the Comptroller and Auditor Gen~ral of India, which laid down that 
G recruitment to the post of Administrative Officers, Assistant Accounts 
Officers and ~sistant Audit Officers in the Indian Audit and Accounts 
Department was by promotion, that the rules did not contain any specific 
provisions for reservation for Scheduled Castes and Scheduled Tribes and 
that the administrative instructions contained in the circular could not be 
said to be rules made by the President after consultation with the first 
H 
482 
COMPTROLLER v. M.L MEl-JR'i>:rRA 
483 
appellant as contemplated by Article 148(5) of the Constitution. 
A 
Allowing the writ petition, the High Court held that there was no 
reservation for scheduled castes and scheduled tribes made under the 
rules, that the administrative instructions contained in. the circular in 
question did not make provision for the proposed reservation in 
pursuanee to the policy decision and that the statutory rules were not · B 
silent on the subject of promotion to the post of Assistant Accounts 
Officers, subsequently designated as Afcounts Officers and, therefore, it 
was not open to the Government to supplement the statutory rules to fill 
up the gaps, which could be done by only amending the statutory rules in 
compliance with the provisions of Article 148(5) of the Constitution. Hence C 
the appeal by the Department. 
· 
Allowing the appeal, this Court, 
HELD: 1.1 The High Court is not right in stating that there cannot 
be an administrative order directing reservation for Scheduled Castes and D 
....i· 
Scheduled Tribes as it would alter the statutory rules in force. The rules do 
not provide for any reservation. In fact, they are silent on the subject of 
reservation. The Government could direct the reservation by executive 
orders. No doubt, administrative orders cannot be issued in contravention 
of the statutory rules, but they could be issued to supplement the statutory E 
rules. In fact, similar circulars were issued by the Railway Board 
introducing reservations for Scheduled Castes and Scheduled Tribes in 
the Railway Services both for selection and non-selection categories of 
posts. They were issued to implement the policy of the Central 
Government. (491 D·F] 
Sa11tram Shanna v. State of Rajastha11 a11d Anr., (1968] 1 SCR 111 
andAkliil Bllartiya Sosllit Karamcllari Sangll (Railways) v. U11io11 of I11dic; & 
Ors., (1981) 1SCC246, referred to. 
1.2 It is true that the President has not issued the circular in 
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question but the first appellant bas issued it. There was, however, proper G 
consultation between the Government and the first appellant for issuing 
the circular.

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