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Showing contexts for: mso in Deepak Sharma vs Comptroller And Auditor General Of ... on 7 September, 2016Matching Fragments
3. Applicant no.1 after his joining on the post of AAO w.e.f. 07.03.2008, availed his first attempt for appearing in Part-I of the SOGE Exam in March/April, 2009 since the said exam was being conducted by the respondent department once a year. Thereafter, in the year 2010, the office of respondent no.1 issued a Circular dated 07.06.2010 (Annexure A-7), revamping the SOGE Examination procedure by renaming it as Subordinate Audit/Accounts Services (SAS Examination) which would be held once in a year in the month of November and the exam would be a computer based test (Online Exam). Further, the candidates were allowed maximum of 6 chances to pass all the papers of Part-I and Part-II of the said examination. Consequently the first online examination was held in November/December, 2010. Subsequently the office of respondent no.1 issued another circular dated 05.04.2011 (Annexure A-8) relaxing the provisions contained in para 9.2.6 of CAG MSO (Admn.) Vol.I by allowing eligible officials with two years continuous service in one or more capacity as specified in the said letter to appear in the Subordinate Audit/Accounts Service 2011 exam and again in 2012 vide circular dated 17.02.2012 (Colly with A-8) on account of the deficit in the AAO Cadre in the field offices, instead of minimum of three years of continuous service as prescribed earlier. Thereafter the second online examination was held in August, 2011. Respondent no.1 issued another circular dated 24.11.2011 (Annexure A-9) whereby it was decided to conduct the Subordinate Audit/Accounts Service (SAS) Exam twice in a year i.e. Main and Supplementary Exam and it was further clarified that directly recruited AAOs were required to pass this SAS Examination within six chances taking together both the Main and Supplementary SAS Exam within the probation period. All the directly recruited AAOs who were yet to qualify SAS Exam despite exceeding their maximum probation period of four years were allowed to avail the remaining attempts of the said exam within the overall limit of six chances. Applicant no.1 cleared the Subordinate Audit/Accounts Service (SAS) Examination within the prescribed six attempts i.e. First Attempt in March/April, 2009, Second attempt in November/December, 2010, Third Attempt in August, 2011 and Fourth Attempt in March, 2012. Similarly all the other applicants also cleared the Subordinate Audit/Accounts Service (SAS) Examination within the allowed attempts.
Deputation:- .
In these rules, for promotion to the post of Audit Officer, it is specified that Assistant Audit Officer with 6 years of Combined Regular Service as Assistant Audit Officer or Section Officer is eligible for promotion. However, it is nowhere provided that 6 years of combined regular service as AAO or SO would be after successful completion of the probation period. Recruitment Rules of 1989 have been promulgated by the President of India in exercise of powers under Article 148 (5) of the Constitution of India and thus, the CAG, respondent no.1, does not have the power to issue any instructions as mentioned in para 5.6.2 and 5.6.6 of MSO (Administrative) Vol.I which are not inconsonance with the Recruitment Rules of 1989. Besides, the seniority of govt. servants is determined in accordance with the general principles of seniority which have been enunciated by the Honble Apex Court in its Constitution Bench judgment titled Direct Recruits Class-II Engineering Officers Association Vs. State of Maharshtra decided on 02.05.1990 reported as JT 1990 (2) SC 264 whereby in para 47 (A) of the said judgment, the Honble Court has categorically held that once an incumbent is appointed to a post accordingly to Rules, his seniority has to be counted from the date of his appointment and not according to the date of his confirmation. Consequently, the Govt. of India, Ministry of Personnel (DOPT) issued OM dated 04.11.1992 (Annexure A-5), clarifying that in modification of OM dated 22.12.1959 and OM dated 03.07.1986, it has been decided that seniority of a person regular appointed to a post according to rule would be determined by the order of merit indicated at the time of initial appointment and not according to the date of his confirmation. However, the office of respondent no.1, i.e. CAG, issued Manual of Standing Orders (Administrative) Vol.I that includes para 5.6.2 and 5.6.6 (Annexure A-4). The respondents are emphasizing and implementing the above mentioned provisions as incorporated in their MSO to the effect that directly appointed Section Officer (Audit) shall rank immediately below the Section Officer (Audit) Grade Examination passed persons officiating in the Section Officer (Audit) Cadre on the date on which he/she takes over charge as a regular Section Officer (Audit), meaning thereby the date on which the directly recruited candidate who clears his probation as well as passes the SOGE Examination will be the date of his confirmation on regular basis as a Section Officer (Audit)/Assistant Audit Officer and not the date of his initial joining the department on regular basis on the post of Assistant Audit Officer. This is violative of the directions issued by DOPT as well as against the law laid down by the Honble Apex Court in catena of judgments. The judgments of the Apex Court in the cases of K. Madhavan and Anr. V. Union of India and Ors., (1987) 4 SCC 566, L. Chandra Kishore Singh V. State of Manipur and Ors., (1999) 8 SCC 287 and Keshav Chandra Joshi and Ors. Vs. Union of India and Ors., AIR 1991 SC 284 have been cited to press the claim of the applicants.
8. In the grounds for relief it has, interalia, been stated as follows:-
1. The provisions of para 5.6.2 and 5.6.6 of CAG MSO (Administrative) Vol.I (Third Edition) are liable to be declared unconstitutional and ultra vires and liable to be struck down to the extent assailed in the interest of justice.
2. The seniority and regular service in all other cadres namely Divisional Accountant, Auditor, Senior Auditor etc. is reckoned from the date of initial regular appointment to the post and not according to the date of confirmation as is being done in the cadre of Assistant Audit Officers, thus, said discrimination and exception to the cadre of Assistant Audit Officers is highly discriminatory, arbitrary and illegal. On this ground also the provisions of para 5.6.2 and 5.6.6 of CAG MSO (Administrative) Vol.I (Third Edition) are liable to be declared unconstitutional and ultra vires and liable to be struck down to the extent assailed in the interest of justice.
3. In the recruitment rules of 1989 for the post of Audit Officers, it is nowhere provided that 6 years regular service of Assistant Audit Officer would be after the successful completion of probation period and moreover the said rules of 1989 and Amendment Rules 2005 have been promulgated by the President of India in exercise of power under Article 148 (5) of the Constitution of India and Respondent no.1 CAG did not have the power and authority to issue instructions through MSO which are not in consonance with the statutory recruitment rules. Thus on this score as well, the provisions of para 5.6.2 and 5.6.6 of CAG MSO (Administrative) Vol.I (Third Edition) are liable to be declared unconstitutional and ultra vires and liable to be struck down to the extent assailed in the interest of justice.