Jharkhand High Court
Rajendra Prasad vs The Comptroller And Auditor General Of ... on 28 April, 2026
Author: Sujit Narayan Prasad
Bench: Sujit Narayan Prasad, Sanjay Prasad
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(S) No. 6976 of 2017
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Rajendra Prasad ... ... Petitioner
Versus
The Comptroller and Auditor General of India and Ors.
... ... Respondents
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CORAM: HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD HON'BLE MR. JUSTICE SANJAY PRASAD
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For the Petitioner : Mr. Mukesh Kumar Mehta, Advocate For the Respondents : Mr. Sudarshan Srivastava, Advocate
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th 08/Dated: 28 April. 2026 I.A. No. 4947 of 2025:
1. The instant interlocutory application has been filed for deletion of respondent No.1 from the arrays of the respondents in the cause title of this case.
2. Mr. Sudarshan Srivastava, learned counsel for the respondent pressing the instant interlocutory application has submitted that the present application has been filed to delete the respondent No.1 and/or replace the designation of the respondent no.1 with the following designation:
"Deputy Comptroller & Auditor General (HR) Office of the Comptroller & Auditor General of India. Pocket-9, Deendayal Upadhyay Marg.
New Delhi-110124."
3. It has been stated that the Comptroller & Auditor General (CAG) of India, established under Article 148 of the Constitution of India is an autonomous constitutional body and is the supreme audit authority, ensuring transparency, accountability and good governance in financial administration by audit of the receipts and expenditures of the Union and State Governments, including Public Sector Undertakings (PSUs), to Page | 1 ensure efficient use of public funds. It submits reports to the President and Governors, reviewed by Parliament and State Legislatures, primarily by the Public Accounts Committee (PAC).
4. It has been stated that the Comptroller & Auditor General of India has no direct role to play in service/establishment matters and particularly, in respect of the reliefs prayed for in the writ petition.
5. It has also been stated that the Deputy Comptroller & Auditor General (HR), i.e., [DAI (HR)], is the overall in-charge of Human Resource Management and Coordination within the Indian Audit & Accounts Department and excises functional oversight on service-related matters, including appointments, promotions, disciplinary actions, and entitlements.
6. It is, on the basis of the aforesaid reasons, the instant interlocutory application has been filed for deletion of the respondent no.1, i.e., Comptroller & Auditor General of India, from the arrays of the respondent.
7. The consideration which requires herein is based upon the statement made in the instant interlocutory application regarding the authority of the Comptroller & Auditor General of India. The reference of Article 148 of the Constitution of India has been taken.
8. The Article 148 of the Constitution of India is under Chapter-V by which it has been mandated that there shall be a Comptroller and Auditor- General of India who shall be appointed by the President by warrant under his hand and seal and shall only be removed from office in like manner Page | 2 and on the like grounds as a Judge of the Supreme Court. However, sub- provisions under the aforesaid article are there.
9. Article 149 also needs to be referred herein which incorporates duties and powers of the Comptroller and Auditor-General by which it has been mandated that Comptroller and Auditor-General shall perform such duties and exercise such powers in relation to the accounts of the Union and of the States and of any other authority or body as may be prescribed by or under any law made by Parliament and, until provision in that behalf is so made, shall perform such duties and exercise such powers in relation to the accounts of the Union and of the States as were conferred on or exercisable by the Auditor-General of India immediately before the commencement of this Constitution in relation to the accounts of the Dominion of India and of the Provinces respectively.
10. For ready reference, Articles 148 and 149 are being referred as under:
"148. Comptroller and Auditor-General of India.--(1) There shall be a Comptroller and Auditor-General of India who shall be appointed by the President by warrant under his hand and seal and shall only be removed from office in like manner and on the like grounds as a Judge of the Supreme Court.
(2) Every person appointed to be the Comptroller and Auditor-General of India shall, before he enters upon his office, make and subscribe before the President, or some person appointed in that behalf by him, an oath or affirmation according to the form set out for the purpose in the Third Schedule.
(3) The salary and other conditions of service of the Comptroller and Auditor-General shall be such as may be determined by Parliament by law and, until they are so determined, shall be as specified in the Second Schedule:
Provided that neither the salary of a Comptroller and Auditor-General nor his rights in respect of leave of absence, pension or age of retirement shall be varied to his disadvantage after his appointment. (4) The Comptroller and Auditor-General shall not be eligible for further office either under the Government of India or under the Government of any State after he has ceased to hold his office. (5) Subject to the provisions of this Constitution and of any law made by Parliament, the conditions of service of persons serving in the Indian Audit and Accounts Department and the administrative powers of the Comptroller and Auditor-General shall be such as may be prescribed by Page | 3 rules made by the President after consultation with the Comptroller and Auditor-General.
(6) The administrative expenses of the office of the Comptroller and Auditor-General, including all salaries, allowances and pensions payable to or in respect of persons serving in that office, shall be charged upon the Consolidated Fund of India."
149. Duties and powers of the Comptroller and Auditor-General.--The Comptroller and Auditor-General shall perform such duties and exercise such powers in relation to the accounts of the Union and of the States and of any other authority or body as may be prescribed by or under any law made by Parliament and, until provision in that behalf is so made, shall perform such duties and exercise such powers in relation to the accounts of the Union and of the States as were conferred on or exercisable by the Auditor-General of India immediately before the commencement of this Constitution in relation to the accounts of the Dominion of India and of the Provinces respectively.
11.Thus, it is evident that Chapter V of the Constitution of India deals with the Comptroller and Auditor General of India. The relevant Constitutional provision is Article 148, which deals with the posts of Comptroller and Auditor General, who is appointed by the President by warrant under his hand and seal and shall be removable from office in like manner and on the like grounds as a Judge of the Supreme Court. Article 149 deals with the duties and powers of the Comptroller and Auditor General. Even though, Article 148 to 151 of the Chapter V deals with the powers, duties and functions of Comptroller and Auditor General of India, none of the Constitutional provisions exempt him from being answerable in a Court of Law. It is also pertinent to note that no specific power is provided under Articles 148 or 149 enabling the Comptroller and Auditor General to delegate his powers.
12.At this juncture it needs to refer herein the import of Article 361 of the Constitution of India which provides for protection to President, Governors and Rajapramukhs. It provides that President or Governors of States shall not be answerable to any Court for the exercise and performance of powers and duties of his office or any other act done or Page | 4 purported to be done by him in exercise of performance of his powers and duties. Identical protection is also extended to them in relation to criminal proceedings, against arrest or imprisonment or any civil proceedings. However, conspicuously, no such corresponding provision is available in the case of Comptroller and Auditor General.
13. Herein, the primary ground urged by the learned counsel for the respondent is that, since the Comptroller and Auditor-General, being a constitutional functionary, has been constituted to act as a watch-dog over public expenditure, there is no necessity to array the CAG as a respondent in the present proceeding.
14. There is no dispute as to the object and intent of the Constituent Assembly, which, in its deliberations, considered how issues of public expenditure ought to be dealt with and who should exercise oversight thereupon. In the course of such discussions, it was resolved that there must be an autonomous body to act as a watch-dog over public expenditure, and accordingly, the post of Comptroller and Auditor-General of India was constituted under the mandate of Article 148 of the Constitution.
15. The office of the Comptroller and Auditor-General of India, no doubt, is the constitutional functionary giving autonomy. The autonomy for the purpose to act in all independence and not to be swayed either by the Central Government or the State Government.
16. The primary duty of the Comptroller and Auditor-General and its establishment is while acting as a watch-dog to conduct periodical audit and for the aforesaid purpose, different posts have been created who are coming under the direct administrative control of the Comptroller and Page | 5 Auditor-General. In each and every State there is office of the Principal Accountant General and the Audit General for the purpose to act as a watch-dog of the State expenditure vis-à-vis Central expenditure. The audit report is decided to be conducted as per the audit manual formulated by the Comptroller and Auditor-General and after completion of the audit report, the same is required to be placed before the Public Accounts Committee which consists of the people representatives which is for its discussion on the floor of Assembly or the Parliament, as the case may be.
17. Further, it requires to refer herein that in order to strengthen the system Comptroller and Auditor General's (Duties, Powers and Conditions of Service) Act, 1971 has been passed by the Parliament which was an Act determining the conditions of service of CAG and to prescribe his duties and functions and ancillary matters. Section 21 of the Act 1971 deals with delegation of powers. It provides that any power exercisable by the Comptroller and Auditor General under the provisions of this Act, or any other law may be exercised by such officer of his department as may be authorised by him in this behalf by general or special order. Section 22 deals with the power to make rules.
18. In order to strengthen the system, the Act, 1971 has been made out, then, it will not be proper for the High Court to mould in any way the conferment the power as under the statutory provision of the Act, 1971.
19. Evidently, Section 21 of the Act permits delegation of powers by the Comptroller and Auditor General. But even in the cases if the Deputy Comptroller and Auditor General exercise his delegated powers that does Page | 6 not automatically exclude the CAG from the party, as the principal who has delegated his powers.
20. Further it requires to refer herein the Rule 29(II) of CCS (CCA) Rules, 1965 specifically deals with the revisional powers of Comptroller and Auditor General, for ready reference the same is being quoted as under:
"29. Revision (1) Notwithstanding anything contained in these rules-
(i) the President; or
(ii) the Comptroller and Auditor-General, in the case of a
Government servant serving in the Indian Audit and Accounts Department; or
(iii) the Member (Personnel) Postal Services Board in the case of a Government servant serving in or under the Postal Services Board and Adviser (Human Resources Development), Department of Telecommunications in the case of a Government servant serving in or under the Telecommunications Board; or
(iv) the Head of a Department directly under the Central Government, in the case of a Government servant serving in a department or office (not being the Secretariat or the Posts and Telegraphs Board), under the control of such Head of a Department; or
(v) the appellate authority, within six months of the date of the order proposed to be revised or
(vi) any other authority specified in this behalf by the President by a general or special order, and within such time as may be prescribed in such general or special order;
may at any time, either on his or its own motion or otherwise call for the records of any inquiry and revise any order made under these rules or under the rules repealed by rule 34 from which an appeal is allowed, but from which no appeal has been preferred or from which no appeal is allowed, after consultation with the Commission where such consultation is necessary, and may-
(a) confirm, modify or set aside the order; or
(b) confirm, reduce, enhance or set aside the penalty imposed by the
order, or impose any penalty where no penalty has been imposed; or Page | 7
(c) remit the case to the authority which made the order to or any other authority directing such authority to make such further enquiry as it may consider proper in the circumstances of the case; or
(d) pass such other orders as it may deem fit:
Provided that no order imposing or enhancing any penalty shall be made by any revising authority unless the Government servant concerned has been given a reasonable opportunity of making a representation against the penalty proposed and where it is proposed to impose any of the penalties specified in clauses (v) to (ix) of rule 11 or to enhance the penalty imposed by the order sought to be revised to any of the penalties specified in those clauses, and if an inquiry under rule 14 has not already been held in the case no such penalty shall be imposed except after an inquiry in the manner laid down in rule 14 subject to the provisions of rule 19, and except after consultation with the Commission where such consultation is necessary :
Provided further that no power of revision shall be exercised by the Comptroller and Auditor-General, Member (Personnel), Postal Services Board, Adviser (Human Resources Department), Department of Telecommunications or the Head of Department, as the case may be, unless-
(i) the authority which made the order in appeal, or
(ii) the authority to which an appeal would lie, where no appeal has been preferred, is subordinate to him.
(2) No proceeding for revision shall be commenced until after-
(i) the expiry of the period of limitation for an appeal, or
(ii) the disposal of the appeal, where any such appeal has been preferred.
(3) An application for revision shall be dealt with in the same manner as if it were an appeal under these rules. Government of India's Instructions (1) Procedure to be followed while proposing enhancement of the penalty already imposed on a Government servant :-
Instances have been brought to the notice of this Ministry in which when orders of punishment passed by the subordinate authorities were reviewed under Rule 29 (1) of the CCS (CCA) Rules, 1965, and a provisional conclusion reached that the penalty already imposed was not adequate, the authorities concerned set aside/cancelled the order of punishment already passed by the subordinate authorities and simultaneously served show-cause notices for the imposition of higher penalties. Thereafter, the replies of the Government servants to show-
Page | 8 cause notices were considered and the Union Public Service Commission also consulted, wherever necessary, before the imposition of enhanced penalties.
It is clarified that in case of the kind mentioned in the preceding paragraph, it is not appropriate to set aside/cancel the penalty already imposed on the Government servants, more so when the revising authority is the President, as strictly speaking cancellation of the penalty, if done in the name of the President amounts to modification by the President of the earlier order of the subordinate authority, for which prior consultation with the Union Public Service Commission is necessary under Regulation 5 (1) (c) of the UPSC (Exemption from Consultation) Regulations, 1958. The correct procedure in such cases will, therefore, be to take action in accordance with the first proviso to Rule 29 (1) of the CCS (CCA) Rules, 1965, without cancelling/setting aside the order of the subordinate authority. It is only at the final stage when orders are issued modifying the original penalty, that it would be necessary to set aside the original order of penalty. (G.I. MHA OM No. 39/2/68-Ests.(A) dated the 14th May, 1968).
21. Rule 29 generally deals with the revisional powers of various Constitutional authorities. Rule 29(II) and 2nd proviso specifically refer to the revisional power of the Comptroller and Auditor General. Evidently, even under the CCS (CCA) Rules, the power to revision against administrative orders lies with the CAG. This clearly indicates that the said Rules specifically confer power on CAG in exercising revisional functions in relation to service condition of the employees.
22. Further admitted fact herein is that the applicant after being punished has preferred appeal before the authority and being aggrieved with the order passed by the appellate authority, he has preferred revision before the revisional authority.
23. Herein, admittedly, the revisional authority is the Comptroller and Auditor-General who has passed the order as would be evident from annexure-4 appended to the writ petition.
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24. Thus, the question to be considered by this Court while exercising jurisdiction under Article 226 of the Constitution of India, is that if the order has been passed by the Comptroller and Auditor-General in the capacity of revisional authority, how can it be said that he is not a necessary party to the present proceeding.
25. Moreover, it is to be noted that no contention regarding the arraignment of the Comptroller and Auditor-General as respondent no.1 was raised before the learned Tribunal, even though the CAG stood arrayed as respondent no.1, as is evident from the very first page of the impugned order passed by the Tribunal.
26. The writ petitioner since has preferred the writ petition, as such, he has impleaded all the respondents who were respondents before the Tribunal as party to the present proceeding.
27. It needs to refer herein that "necessary party" is a person who ought to have been joined as a party and in whose absence no effective decree could be passed at all by the court. If a "necessary party" is not impleaded, the suit itself is liable to be dismissed. If a person is not found to be a proper or necessary party, the court has no jurisdiction to implead him, against the wishes of the plaintiff. In the context of the aforesaid paragraph-15 of the judgment passed by Hon'ble Supreme Court in Mumbai International Airport Private Limited vs. Regency Convention Centre and Hotels Private Limited and Ors., (2010) 7 SCC 417 is being referred as under:
"15. A "necessary party" is a person who ought to have been joined as a party and in whose absence no effective decree could be passed at all by the court. If a "necessary party" is not impleaded, the suit itself is liable to be dismissed."
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28. The same view has been reiterated by the Hon'ble Apex Court in the case of Poonam v. State of U.P., [(2016) 2 SCC 779], wherein the Hon'ble has dealt with the issue of 'necessary party'. The relevant paragraph of the said judgment is quoted as under:
"14. First, it is necessary to understand about the concept of necessary and proper party. A four-Judge Bench in Udit Narain Singh Malpaharia v. Board of Revenue [Udit Narain Singh Malpaharia v. Board of Revenue, AIR 1963 SC 786] has observed thus: (AIR p. 788, para 7) "7. ... it would be convenient at the outset to ascertain who are necessary or proper parties in a proceeding. The law on the subject is well settled: it is enough if we state the principle. A necessary party is one without whom no order can be made effectively; a proper party is one in whose absence an effective order can be made but whose presence is necessary for a complete and final decision on the question involved in the proceeding."
29. A "necessary party" is a person who ought to have been joined as a party and in whose absence no effective decree could be passed at all by the court. If a "necessary party" is not impleaded, the suit itself is liable to be dismissed. A "proper party" is a party who, though not a necessary party, is a person whose presence would enable the court to completely, effectively and adequately adjudicate upon all matters in dispute in the suit, though he need not be a person in favour of or against whom the decree is to be made. If a person is not found to be a proper or necessary party, the court has no jurisdiction to implead him, against the wishes of the plaintiff.
30. Consequently, a person who is not a party has no right to be impleaded against the wishes of the plaintiff. But this general rule is subject to the provisions of Order 1 Rule 10(2) of the Code of Civil Procedure ("the Page | 11 Code", for short), which provides for impleadment of proper or necessary parties. The said sub-rule is extracted below:
"10. (2) Court may strike out or add parties.--The court may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the court to be just, order that the name of any party improperly joined, whether as plaintiff or defendant, be struck out, and that the name of any person who ought to have been joined, whether as plaintiff or defendant, or whose presence before the court may be necessary in order to enable the court effectually and completely to adjudicate upon and settle all the questions involved in the suit, be added."
31. The said provision makes it clear that a court may, at any stage of the proceedings (including suits for specific performance), either upon or even without any application, and on such terms as may appear to it to be just, direct that any of the following persons may be added as a party: (a) any person who ought to have been joined as plaintiff or defendant, but not added; or (b) any person whose presence before the court may be necessary in order to enable the court to effectively and completely adjudicate upon and settle the questions involved in the suit. In short, the court is given the discretion to add as a party, any person who is found to be a necessary party or proper party.
32. It needs to refer herein that the writ of certiorari is to be issued in a case of interference with the decision so taken by the Comptroller and Auditor- General who is the revisional authority. At this juncture we also deem it fit and proper to deal with the issue of merger reason being that the moment the order passed by the original authority is being upheld by the higher forum, i.e., the appellate or the revisional authority, then, the order Page | 12 passed by the original authority will be merged with the order passed by the revisional authority or higher forum.
33. Thus, the principle of merger is well settled that the moment the order passed by the lower forum is being affirmed by the higher forum, the order passed by the lower forum will lose its existence due to its merger with the order passed by the higher forum.
34. It needs to refer herein that the Hon'ble Apex Court in the case of Kunhayammed & Ors. Vrs. State of Kerala and Anr. (2000) 6 SCC 359, has appreciated the principle of merger wherefrom, it is evident that the Hon'ble Apex Court has delved upon the issue on doctrine of merger and after taking aid of the judgment rendered in U.J.S. Chopra Vrs. State of Bombay, AIR 1955 SC 633, wherein it has been held which is being reproduced as under:
"A judgment pronounced by the High Court in the exercise of its appellate or revisional jurisdiction after issue of a notice and a full hearing in the presence of both the parties... would replace the judgment of the lower court, thus constituting the judgment of the High Court the only final judgment to be executed in accordance with law by the court below.'' Further reference of the judgment has been made rendered in the case of S.S. Rathore Vrs. State of M.P., (1989) 4 SCC 582, wherein, a larger Bench of the Hon'ble Apex Court (Seven Judges) has been pleased to hold that the distinction made between courts and tribunals as regards the applicability of doctrine of merger is without any legal justification; where a statutory remedy was provided against an adverse order in a service dispute and that remedy was availed, the limitation for filing a suit challenging the adverse order would commence not from the date of the original adverse order but on the date when the order of the higher authority disposing of the statutory remedy was passed.
44. To sum up, our conclusions are:
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(i) Where an appeal or revision is provided against an order passed by a court, tribunal or any other authority before superior forum and such superior forum modifies, reverses or affirms the decision put in issue before it, the decision by the subordinate forum merges in the decision by the superior forum and it is the latter which subsists, remains operative and is capable of enforcement in the eye of law.
(ii) The jurisdiction conferred by Article 136 of the Constitution is divisible into two stages. The first stage is upto the disposal of prayer for special leave to file an appeal. The second stage commences if and when the leave to appeal is granted and the special leave petition is converted into an appeal.
(iii) The doctrine of merger is not a doctrine of universal or unlimited application. It will depend on the nature of jurisdiction exercised by the superior forum and the content or subject-matter of challenge laid or capable of being laid shall be determinative of the applicability of merger. The superior jurisdiction should be capable of reversing, modifying or affirming the order put in issue before it. Under Article 136 of the Constitution the Supreme Court may reverse, modify or affirm the judgment-decree or order appealed against while exercising its appellate jurisdiction and not while exercising the discretionary jurisdiction disposing of petition for special leave to appeal. The doctrine of merger can therefore be applied to the former and not to the latter.
(iv) An order refusing special leave to appeal may be a non-speaking order or a speaking one. In either case it does not attract the doctrine of merger. An order refusing special leave to appeal does not stand substituted in place of the order under challenge. All that it means is that the Court was not inclined to exercise its discretion so as to allow the appeal being filed.
(v) If the order refusing leave to appeal is a speaking order, i.e., gives reasons for refusing the grant of leave, then the order has two implications. Firstly, the statement of law contained in the order is a declaration of law by the Supreme Court within the meaning of Article 141 of the Constitution. Secondly, other than the declaration of law, whatever is stated in the order are the findings recorded by the Supreme Court which would bind the parties thereto and also the court, tribunal or authority in any proceedings subsequent thereto by way of judicial discipline, the Supreme Court being the Apex Court of the country. But, this does not amount to saying that the order of the court, tribunal or Page | 14 authority below has stood merged in the order of the Supreme Court rejecting the special leave petition or that the order of the Supreme Court is the only order binding as res judicata in subsequent proceedings between the parties.
(vi) Once leave to appeal has been granted and appellate jurisdiction of Supreme Court has been invoked the order passed in appeal would attract the doctrine of merger; the order may be of reversal, modification or merely affirmation.
(vii) On an appeal having been preferred or a petition seeking leave to appeal having been converted into an appeal before the Supreme Court the jurisdiction of High Court to entertain a review petition is lost thereafter as provided by sub-rule (1) of Rule 1 of Order 47 CPC."
35. Adverting to fact the case herein it is not in dispute that the Comptroller and Auditor-General is not a revisional authority rather admitting the fact that he has been conferred with the power to act as a revisional authority and the present application has been filed by making prayer for deletion of the CAG as respondent no.1 on the ground that since CAG is a constitutional functionary having autonomy under the constitutional set- up of our country, therefore, it is not required herein to array as party respondent.
36. But on the basis of the discussion made hereinabove particularly taking into consideration that CAG is revisional authority herein this Court is of the considered view that the autonomy of the establishment is one thing to run the establishment but having exercising the power of appellate or revisional authority cannot be diluted on the garb of the establishment being autonomy as per the constitutional set-up.
37. Law is well settled that if the decision has been taken by the authority under the conferment of power under the discipline and appeal rules, then, Page | 15 such authority will be said to be necessary party and will be a necessary party.
38. This Court, therefore, is of the view, as is being contended in the instant interlocutory application that the Comptroller and Auditor-General of India is not a necessary party, as such, he may be deleted from the arrays of the respondent, is having no substance.
39. Accordingly, the instant interlocutory application stands dismissed. W.P.(S) No. 6976 of 2017:
40. Heard the learned counsel for the parties.
41. Argument concluded.
42. Judgment reserved.
(Sujit Narayan Prasad, J.) (Sanjay Prasad, J.) 28st April, 2026 Saurabh/-
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