LexUNION OF INDIA AND ANR. versus NARENDRA SINGH
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A UNION OF INDIA AND ANR. v. NARENDRA SINGH DECEMBER 13, 2007 B [C.K. THAKKER AND J.M. PANCHAL, JJ.] Service Law: C Promotion-Office of the Accountant General-Respondent- Accountant promoted as Senior Accountant (Functional), event hough he had not cleared Departmental Examination as required under the Statutory Rules-Cancellation of promotion-Challenge to-Held, not tenable-Department made mistake in promoting Respondent even- D though he was ineligible and unqualified-The mistake was corrected by following due process of law-However, as Respondent is holdit:zg the post of Senior Accountant (Functional) since last I 7 years and is on verge of retirement, Appellants directed to continue him as Senior Accountant (Functional) till retirement-But he would be deemed to E have retired as Accountant and his retiral benefits to be fixed accordingly-Indian Audit and Accounts Department (Senior Accountant) Recruitment Rules, I988-rr.3 &5-Fundamental Rules, I 9 22-r. 3 I -A-Constitution of India, 1950-Art. I 48. F Respondent, Accountant in the Office of the Accountant General, was promoted as Senior Accountant (Functional), eventhough he had not cleared the Departmental Examination for Accountants as required under the Indian Audit and Accounts Department (Senior Accountant) Recruitment Rules, 1988 and was therefore ineligible for promotion. G Realizing its mistake, the Department cancelled the promotion of Respondent after issuing notice under Rule 31A of the Fundamental Rules, 1922 to Respondent and considering his reply. Respondent filed petition before the Tribunal. As per direction issued by the Tribunal, the case of Respondent was re-considered and rejected by the Deputy H SM ' . > ,) UNION OF INDIA v. NARENDRA SINGH 505 Accountant General. Respondent again filed petition before the A Tribunal. The petition was allowed. That order was confirmed by the High Court. Hence the present appeal. Partly allowing the appeal, the Court HELD: 1. Rule 3 of the Indian Audit and Accounts Department B (Senior Accountant) Recruitment Rules, 1988 read with the Schedule thereof makes certain things clear. Firstly, the Rules are framed by the President oflndia in consultation with the Comptroller and Auditor General oflndia in exercise of power under Clause (5) of Article 148 of the Constitution. The Rules are thus statutory in nature. Secondly, the C Rules provide for mode of appointment to the post of Senior Accountant by promotion, failingwhich 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 D Accountant must have passed Departmental Examination for Accountants. [Para 15] [511-A, B, CJ 2. The contention of Respondent, that even if it is held that passing of Departmental Examination was necessary, the Authorities ought to E have relaxed the rule by exercising power under Rule 5, cannot be accepted. The Deputy Accountant General, while cancelling promotion of the Respondent and reverting him to his substantive post of Accountant, was right in keeping in view relevant considerations, such as, the power of relaxing the Rules should be exercised with respect to F 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 are eligible and qualified but they could not be appointed only because of non-availability G of sufficient vacancies. The reasons recorded by the Deputy Accountant- General were in conformity with the Statutory Rules. The Tribunal, therefore, should not have interfered with the well reasoned order passed by the Deputy Accountant-General. [Paras 17,20 and 21) [511-E; 512-D,E; 513-A-C] H 506 SUPREME COURT REPORTS [2007] 13 (Addi.) S.C.R. A Keshav Chandra Joshi and Ors. v. Union of India & Ors., [1992J Supp 1 SCC 272, referred to. 3.1. The mistake was of the Department and the respondent was promoted though he was not eligible and qualified. But, one cannot B countenance the submission of the respondent that the mistake cannot be corrected. Mistakes are mistakes and they can always be corrected by following due process oflaw. [Para 28J [515-A, BJ 3.2. The Statutory Rules
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