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The High Court took the view (1) that there is no reser- vation for Scheduled Castes and Scheduled Tribes made under the rules; (2) that the administrative instructions con- tained in the circular No.172-NGE-ll/56-72-1 dated 25th January, 1973 issued from the office of Comptroller and Auditor General of India, New Delhi, inter alia, to all the Accountants General and the offices subordinate to them, on its own did not make a provision for the proposed reserva- tion in pursuance to the policy decision. (3) It also took the view that the statutory rules were not silent on the subject of promotion to the post of Assistant Accounts Officer (now called Accounts Officers). This being so, it was not open to the Government to supplement the statutory rules to fill up the gaps. This could be done by only amend- ing the statutory rules in compliance with the provisions of Article 148(5) of the Constitution. The High Court drew support from a Division Bench of the Madras High Court in Accountant General, Tamil Nadu & Others v. Doraswami & Oth- ers, 1974 Labour Industrial Cases 384 and the decision of the Orissa High Court in the Original Jurisdiction cases No. 357 and 359 of 1977, P. Parbhakar Rao v. Union of India decided on 31st of July, 1978. The High Court took the view that the administrative Instructions contained in the circu- lar letter dated 25th January, 1973 cannot help respondents and no reservations for Scheduled Castes and not Scheduled Tribes can be made on that basis. The High Court accordingly allowed the writ petition as stated earlier. Before the High Court the counsel for the writ petition- ers also submitted that the administrative instructions contained in the circular dated 25th January, 1973 could not be said to be the rules made by the President after consultations with the Comptroller and Auditor General of India as contemplated by Article 148(5) of the Constitution and referred to the language of the circular letter dated 25th January, 1973. A supplementary counter-affidavit of Shri P.P. Dhir, Accountant General-l had also been filed where it was stated that the language used in the circular in substance, are the orders of the President. The High Court took the view that no other mate- rial has been referred to in the counter affidavit filed, which will show that the instructions contained in the circular dated 25th January, 1973 were based on the decision of the President of India. However, the High Court held that they considered it unnecessary to go into this question any further since they had already held that the administrative instructions contained in the circular were of no avail to the respondents in the writ petition as they could not alter the statutory rules in force.

Yours sincerely, sd/-
(S. Krishnan)"

Thereafter, the Assistant Comptroller & Auditor General (P) also met the said Deputy Secretary of the Department of Personnel and also sent a draft of instructions proposed to be issued to the offices under the Comptroller and Auditor General of India to Deputy Secretary, Department of Person- nel vide a D.O.letter No.20-NGE-II/56-72-I dated 5th Janu- ary, 1973 by Shri R. Hariharan, Assistant Comptroller and Auditor General, Office of Comptroller and Auditor General of India, New Delhi. Alongwith this letter a draft of in- structions proposed to be issued to the offices under the Comptroller and Auditor General was forwarded. The Deputy Secretary, Department of Personnel, Shri S. Krishnan vide their communication dated 22nd January, 1973 informed Shri R. Hariharan, aforesaid, that the draft of instructions proposed to be issued were in order and it was requested that a copy of the instructions when issued may be sent to their department. It was in pursuance of these consultations that the impugned circular dated 25th January, 1973 was issued from the office of the Comptroller and Auditor General of India, New Delhi. For facility of under- standing the relevant part of the circular dated 25th Janu- ary, 1973 issued from the office of the Comptroller and Auditor General of India, New Delhi is reproduced hereunder:

The Director of Audit, Defence Services and offices subordinate to him. The Assistant Comptroller and Auditor General (P).

(For G.E.I, G.E.II, &OE & A.Sections) Subject:- Reservation for Scheduled Castes and Scheduled Tribes in posts filled by promotion - promotions on the basis of sen- iority subject to fitness.

Sir, I am to invite a reference to para 3(c) of this office circular letter No. 1989- NGE.II/89-68, dated 3.10.1968 according to which there is no reservation for Scheduled Castes & Scheduled Tribes in appointments made by promotion on the basis of seniority subject to fitness although cases involving supersession of Scheduled Castes and Scheduled Tribe Officers in Class II appointments are required to be submitted for prior approval of the Comptroller and Auditor General of India and the cases involving supersession of Scheduled Caste and Scheduled Tribe officers in Class III & Class IV appointments have to be report- ed within a month to the Comptroller and Auditor General of India for information.

The High Court has also touched upon the validity of the impugned circular and stated that they were not issued by the President after consultation with the Comptroller & Auditor General. In the present case, the President has not issued the circular, but Comptroller and Auditor General has issued it. There was however, proper consultation between the Government and the Comptroller & Auditor General for issuing the circular. The infirmity pointed out that it was not issued in the name of the President, therefore, relates only about the form and not with regard to the substance. The circular of course, ought to have been issued in the name of the President as required under Article 148(5) of the Constitution, as it affects the service conditions of persons in the Audit and Accounts Department. But since the Government has approved the circu- lar and the circular was in accordance with the declared policy of reservation, we do not want to restrain the Comp- troller & Auditor General from enforcing it.