U. Gopalan and Others vs The Accountant-General

G. Ramanujam, J.—As all the above writ petitions raise practically the same issues, they are disposed of together.

All the petitioners bad joined the office of the Accountant-General, Madras as Upper Division Clerks. Later they had passed the Subordinate

Account Service examination after undergoing the requisite training in public works division. Then they were promoted and posted as S. A. S.

Accountants.

By an office order dated 18th July, 1972 the petitioners and others were posted as S. A. S. Divisional Accountants in the various Public Works

Divisions of the State and Central Governments. The validity of the said order has been questioned in these writ petitions.

It has been contended by the petitioners. (1) that though the said office order purports to be a posting order, in effect and in substance it

amounts to an order of reduction in rank; and (2) that the said office order is illegal as it is benefit of legal authority and it also amounts to a

colourable exercise of power. The question is how far the petitioners have substantiated the said contentions,

According to the petitioners, the service conditions of the members of the Subordinate Accounts Service cadre are regulated by Chapter V of

the Manual of Standing Orders (Administrative) (hereinafter referred to as M.S.O.) issued by the Comptroller and Auditor-General of India.

Chapter VII of the Manual of Standing Orders regulates the service conditions of the Divisional Accountants who constitute a separate cadre.

Manual of Standing Orders prescribes separate qualifications, the source and conditions of recruitment and the practical training required for the

members of these two cadres. Subordinate Accounts Service is a higher cadre carrying higher scales of pay than Divisional Accounts Cadre.

While the scale of pay applicable to Subordinate Accounts Service is Rs. 270, 575, the scale of pay applicable to Divisional Accountants is Rs.

180 - 440. According to the Manual of Standing Orders Divisional Accountants become eligible for appointment to the Subordinate Accounts

Service only after passing the Subordinate Account Service examination and completing the necessary training. In fixing the seniority in the

Subordinate Accounts Service cadre the service as Divisional Accountants is equated to that of Upper Division Clerks only. Posts in the

Subordinate Accounts Service cadre can be created only by the Comptroller and Auditor-General of India but the posts of Divisional Accountants

can be created by the Accountant-General. It is said that in view of the above position the posting of the petitioners who are of Subordinate

Accounts Service cadre as Divisional Accountants not only amounts to a demotion but also is with-out any legal authority as there is no provision

whatever in the M. S. O. for a Subordinate Accounts Service Officer being posted as a Divisional Accountant.

In the common counter-affidavit filed by the respondent in all the writ petitions it has been stated that the petitioners have been posted to the

upgraded divisions created by the Comptroller and Auditor-General of India, the competent authority under the M. S. O., that in the said

upgraded posts of Divisional Accountants the petitioners will be receiving the salary only as Subordinate Accounts Service accountants and will

continue to be governed by the conditions of service as are applicable to Subordinate Accounts Service accountants, that Subordinate Accounts

Service personnel are posted to up-graded divisions by rotation normally for a period of two years after which they are withdrawn to the head

office, and that in fact there are about 38 persons working as Divisional Accountants (against 46 upgraded posts of Divisional Accountants) in

different places and in different divisions. It is also stated in the counter-affidavit that the system has been in vogue from 1948, that the same is not

a recent innovation, that all the petitioners have joined service after 1948 and, that therefore, they were well aware of the said system which has

been in vogue from 1948. Thus the stand taken by the respondent is that by the impugned posting order there is no reduction in rank or in

emoluments as alleged by the petitioners and that it is quite in accordance with the provisions in the M.S.O.

It is not in dispute that the divisions to which the petitioners have been posted as Divisional Accountants are upgraded public works divisions,

that the petitioners will continue to draw the pay in the Subordinate Accounts Service scale and that the service as a Divisional Accountant will

count for increment in the Subordinate Accounts Service scale. It is also not disputed that the petitioners continue to be members of the

Subordinate Accounts Service cadre even after the posting. Though it is conceded by the petitioners that their pay scales remain the same, they

state that the total emoluments received by them as Divisional Accountants are in some cases less than what they would receive as Subordinate

Accounts Service accountants. It is true, in some instances the allowances payable to some of the petitioners as Divisional Accountants are less

than what they would have been getting otherwise. The quantum of the various allowances is normally determined with reference to the place of

work etc. The pecuniary loss in total emoluments in some of the cases appears to be due to the regulations relating to house rent allowance and

city compensatory allowance applicable to the particular place of duty. Merely because there is a drop in the various allowances received by the

petitioners with reference to their place of duty it cannot be taken advantage of by them to say that there has been a reduction in their pay. In view

of the fact that the petitioners continue to receive the pay on the scale applicable to the Subordinate Accounts Service cadre, it cannot be said that

the petitioners have suffered reduction in their pay.

The other grievance of the petitioners that there have been reduction in rank in that they has been demoted to a lower cadre of Divisional

Accountants has now to be considered. It is true, normally Divisional Accountants who are functioning in the ordinary Public Works Divisions are

lower in rank than S. A. S. personnel, as there is a clear cut distinction under the M. S. O. between S. A. S. cadre and the Divisional Accountants

cadre. But in these cases the divisions to which the petitioners have been posted are not ordinary divisions but are those which have been

upgraded by a specific order of the Comptroller and Auditor-General in exercise of the powers under the M. S. O. The power of the Comptroller

and Auditor-General of India to upgrade Divisional Accountants'' Posts in certain public work divisions as S.A.S. posts has not been and in cannot

be disputed in this case. Once certain posts are upgraded as S. A. S. posts, then the petitioners'' transfer or posting to such upgraded posts in the

S. A. S. cadre, can be made under Fundamental Rule 15 read with serial No. 6-A of appendix 4 of the Fundamental Rules. Fundamental Rule 15

is as follows:

15 (a) The Governor-General in Council may transfer a Government servant from one post to another, provided that except:

(1) on account of inefficiency or misbehaviour, or (2) on his written request;

a Government servant shall not be transferred substantively to, or except in a case covered by Rule 49, appointed to official, in a post carrying less

pay than the pay of the permanent post on which he holds a lien, or would hold a lien had his lien not been suspended under Rule 14.

The power of transfer contemplated by Fundamental Rule 15 has been given to all heads of departments under the said serial No. 6-A of

Appendix 4. Under Serial No. 38 of Appendix 4 the Accountants General are the heads of departments. Therefore the power of the Accountant -

General to transfer the petitioners from one post to another equivalent post cannot be questioned.

The learned Counsel for the petitioners would contend that the posts of Divisional Accountants to which the petitioners have been transferred,

though upgraded, cannot be treated as equivalent posts and there is no declaration of equivalence by the Comptroller and Auditor-General. But as

already stated, the Comptroller and Auditor-General has earlier upgraded the posts of Divisional Accountants in certain Public Works Divisions as

S. A. S. cadre posts and it is only thereafter the petitioners who belong to the S. A. S. cadre have been posted as Divisional Accountants in those

upgraded divisions.

The learned Counsel for the petitioners would contend that even after such upgrading the work of such upgraded Divisional Accountants is

different from the normal work assigned to an S. A. S. Officer. According to him the work of an S. A. S. Officer is supervision and auditing, while

the work of a Divisional Accountant is only to maintain accounts etc., without any supervision or audit work, and because of the difference in the

nature of their work, Divisional Accountants'' posts even after upgrading cannot be treated as equivalent posts. But I am not inclined to agree with

the learned Counsel for the petitioners that merely because the nature of work done by the S. A. S. personnel posted as Divisional Accountants in

the upgraded Public Works Divisions is somewhat different they should be treated as having been posted to a different and a lower cadre. In K.

Gopaul Vs. Union of India (UOI) and Others, , an officer functioning as a head of the Department in his capacity as the Inspector-General of

Registration was transferred to the post of Accommodation Controller which has not been designated as the post of the Head of Department. The

Supreme Court held that it does not involve any reduction in rank. The following observations of the Supreme Court are very pertinent:

We cannot accept the submission that the mere fact that the post of Accommodation Controller to which the appellant has been transferred, has

not been designated as the post of a Head of the Department necessarily involves any reduction in rank. In fact, it is well known that in

Government service, there may be senior posts, the holders of which are not declared as Heads of Department, while persons holding

comparatively junior posts may be declared as such. The rank in Government service does not depend on the mere circumstance that the

Government servant in the discharge of his duties, is given certain powers.

Therefore on the analogy of the above decision it has to be held that though the powers exercised and the nature of work done by the petitioners

as Divisional Accountants in the upgraded public works divisions, are somewhat different from the actual work done by other S.A.S. personnel, so

long as the petitioners are borne in the cadre of S.A.S. with the same pay scale, they cannot make a grievance that they are asked to do a

somewhat different kind of work.

The learned Counsel for the petitioners then contend that the M. S. O. specifically provides for the creation of selection grade Divisional

Accountants for undertaking more important and responsible work in heavier public works divisions and that procedure should have been adopted

by upgrading some of the posts of Divisional Accountants, instead of posting S.A.S. personnel as Divisional Accountants. This contention can have

no force especially in the context of the position explained in the counter-affidavit of the respondent that the work involved in the upgraded

divisions is still more onerous and responsible which the selection-grade Divisional Accountants cannot undertake or manage, and that therefore

the necessity to create the posts of S. A. S. accountants for taking charge of those upgraded divisions arose. It is not, therefore, possible to say

that the creation of new posts in the S. A. S. cadre to man the upgraded public works divisions cannot (can?) be said to be contrary to the

provisions of the M. S. O.

The learned Counsel for the petitioners relied on the decision of the Supreme Court in E.P. Royappa Vs. State of Tamil Nadu and Another, ,

in support of his stand that the upgraded post of Divisional Accountants has not been declared to be equivalent with the posts of S. A. S.

personnel and unless there is such a declaration it is not open to the respondent to treat the upgraded posts of Divisional Accountants as equivalent

to S. A. S. cadre posts. In that case the Supreme Court pointed out the necessity for a declaration in writing after ascertaining the equality of status

and responsibility of the post occupied by the Government servant and the post to which he has been transferred. But that decision was rendered

with reference to Rule 4 (a) of the Indian Administrative Service (Cadre) Rules, 1954, which permits the State Government to add for a period

mentioned therein, to the cadre one or more posts carrying duties and responsibilities of a like nature of a cadre post. It is in the light of the said

provision the Supreme Court pointed out the necessity for a declaration that the post created is an equivalent cadre post with a view to preserve

respectability and responsibility of the I. A. S. cadre officers who may be posted to such posts created. In my view, this decision cannot be of any

assistance to the petitioners in this case. Hence all the contentions raised by the petitioners are not tenable.

The writ petitions, therefore, fail and they are dismissed but without costs.