To,

The Director General (Staff)

O/o the C&AG, New Delhi.
(Through Proper Channel)

Subject- Representation against Headquarters Office Circular No.6-Staff

(Appt.III)/2025 No.70-Staff (Appt.III)/165-2024 dated 29.01.2025.
Respected Sir,
With reference to aforesaid subject, it is stated and submitted that it has come to
my notice that the Headquarters Office has issued a Circular No.6-Staff-Staff
(Appt.III)/2025 No.70-Staff (Appt.III)/165-2024 dated 29.01.2025 (hereinafter
referred to as the impugned Circular) (Annexure-A) vide which it has issued a detailed
guidelines to implement the said decisions with effect from the date of 04.11.1992 i.e.
the date of promulgation of DoPT O.M. No.20011/5/90-Estt.D dated 04.11.1992 which
delinked seniority from confirmation. In order to implement the said judicial orders,
clause (i) and (iv) of Paragraph-2 of the said Circular directs as under -
i) Regular Service of all the directly recruited SOs/AAOs is to be reckoned from
date of their joining as SO/AAO in IA&AD after being selected by Staff
Selection Commission,
iv) The seniority of promoted officials in the SO/AAO cadre shall be determined
from the date of their promotion to the cadre. In cases where the promotion date
of an official falls within the validity period of offer of appointment of direct
recruitment for SOs/AAOs, directly recruited candidates shall be placed enblock
above the promoted official.
Aggrieved by the aforesaid orders, I have to submit as under-
2.0 First and foremost, it is stated and submitted that I was promoted to the post of
Assistant Audit Officer w.e.f. -----------------. Accordingly, my case is covered by the
Assistant Officers Recruitment Rules, 2020 and hence, my case should be dealt with
according to the provisions of that rules only in so far, as the said Rules have neither
been challenged nor been ever reserved/set aside by any court of law.
2.1 Reference to Section Officer or Assistant Audit Officer in this application means
the same and have been used interchangeably in the succeeding paragraphs as the post
of Section Officer was merged with the post of Assistant Audit Officer and was
redesignated as Assistant Audit Officer with effect from May, 2009.
3.0 As ascertained on perusal of the impugned Circular dated 29.01.2025 (supra)
along with the court cases referred therein, the Hon’ble CAT, Chandigarh allowed the
said relief to the applicant DRAAOs in the case of OA No.63/00125/2015 (hereinafter
referred to as Deepak Sharma case) mainly by relying on the OM No.20011/5/90-
Estt(D) dated 04.11.1992.

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3.1 Hon’ble High Court of Himachal Pradesh upheld the Deepak Sharma case while
relying on the aforesaid OM dated 04.11.1992 which was issued in compliance of the
orders of the Hon’ble Supreme Court in the case of Direct Recruits Class-II Engineering
Officers Association V/s State of Maharashtra [(990) 2 SCC 715]. While doing so,
Hon’ble High Court of Himachal Pradesh also noted that the said OM dated 04.11.1992
was an amending OM which modified the provisions of the following two OMs dealing
with the seniority of government servants-
i) OM No.9/11/55-RPS dated 22.12.1959 which laid down the general principles
for determining seniority of various categories of persons employed in central
services, and
ii) No. 22011/7/86-Estt(D) dated 03.07.1986 vide which it has laid down a
consolidated orders on seniority.
3.2 It is pertinent to mention that the Hon’ble CAT, Chandigarh and the Hon’ble
High Court of Himachal Pradesh have upheld the aforesaid OMs dated 22.12.1959,
03.07.1986 and 04.11.1992 and passed its orders relying on these OMs.
4.0 Before elucidating how the impugned Circular is bad in law, it is stated and
submitted that the aforesaid OM dated 04.11.1992 is not applicable to Assistant Audit
Officers, promoted or directly recruited, either under the Recruitment Rules of Section
Officers, 1988 (supra) or under the Assistant Audit Officers Recruitment Rules, 2016 for
the reasons mentioned hereunder-
4.1 Before proceeding further, I would like to highlight the following settled laws,
laid down by different Constitutional Courts in India from time to time, to interpret an
enactment-
i) In interpreting an enactment, all its parts must be construed together as forming
one whole and it is not in accordance with sound principles of construction to
consider one section, or group of sections, divorced from the rest of the statute.
ii) In construing a particular Section of an Act, one must look at the whole Act, and
it is necessary to consider the context in which such section occurs [Banshidhr
Mohanty V/s Gourgopal Das [(1982) 53 Cut LT 564].
iii) Words in statute are used precisely and exactly, not loosely or inexactly.
iv) The Legislature is deemed not to waste its words or to say anything in vain
[Govindrama V/s Jimi Bai [1988 JLJ 232, Kashi Singh Vs State of Bihar,
(1995) 2 BLJ 362 (Pat)].
v) An Act should be construed as to avoid redundancy or surplusage [Aidal Singh
Vs Karain Singh, AIR 1957 All ].
4.2 Out of all the three OMs referred to in Para 3.1 above, OM No.9/11/55-RPS
dated 22.12.1959 is the Parent OM of all these OMs and is prevailing as on date, which
deals with the seniority of Government servants employed in Central Services.
Remaining two OMs i.e. the one dated 03.07.1986 and 04.11.1992 merely modify
certain provisions of the aforesaid parent OM dated 22.12.1959. Hence, in order to
elaborate the applicability of the aforesaid OM dated 04.11.1992, which has been
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 ordered to be implemented by the Headquarters Office, New Delhi vide its impugned
Circular dated 29.01.2025, it is important to discuss-
i) the applicability of the Parent OM dated 22.12.1959,
ii) the extent upto which it has been amended by the two subsequent OMs dated
03.07.1986 and 04.11.1992, and
iii) impact of such amendments on the government servants of different class
covered under the parent OM dated 22.12.1959 ibid.
4.2.1 Applicability of the Parent OM dated 22.12.1959- Seniority scheme
OM No. 9/11/55-RPS dated 22.12.1959 lays down the general principles of determining
seniority of direct recruits and promoted officials depending upon their mode of
recruitment. Paragraph-3 of the said OM rescinds all the OMs pertaining to
determination of seniority existing as on date of issue of the OM and issued revised
general principles vide the Annexure of the said OM prospectively to be applied from
the date of issue of the OM.
4.2.1.1 General Principles of seniority
In order to better appreciate the facts, the general principles for fixation of seniority, as
provided in the aforesaid OM of 22.12.1959 are as under-
(i) Paragraph-1 of the General Principals states that these principles shall apply to
the determination of seniority in Central Civil Services and Civil Posts except
such services and posts for which separate principles have already been issued or
may be issued hereafter by Government.
Thus, the clause (i) states the applicability of the OM.

The OM is applicable to fixation of seniority in Central Civil Services and Civil Post.
However, by virtue of its exception clause enunciated into it, the OM is not applicable to
those Civil Services or Civil Posts in respect of which, separate principles for
determination of seniority has been issued either before the publication of the OM i.e.
prior to 22.12.1959 (under the powers delegated to the competent authorities vide erstwhile
OM No.30/44/48-Apptts., dated 22.06.1949 which has now been cancelled vide Paragraph-3
of the aforesaid OM dated 22.12.1959), or may be issued after publication of the OM i.e.
with effect from 22.12.1959.

Thus, the principles laid down in the OM dated 22.12.1959 are residual principles which are
applicable only when there are no separate rules for determination of seniority prescribed.

Thus, this applicability clause of the General Principles has saved the provisions of the
seniority laid down in the MSO by the CAG from application of the aforesaid OM
No.9/11/55-RPS dated 22.12.1959. Accordingly, the provisions for determining seniority
laid down in the CAG’s (MSO) has not been disturbed by the said OM dated
22.12.1959.

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 (ii) Paragraph-2 of the General Principles intends to regulate the seniority of those
officials who were appointed to the Central Civil Services of Civil Posts before
22.12.1959, i.e. the date of issuance of the OM. Hence, this principle is not
relevant to our case.
(iii) Paragraph-3 is subject to Paragraph-4. Hence, both the paragraphs have to be
read conjointly. However, Paragraph-4 starts with the non obstante clause
“Notwithstanding the provisions of para-3 above” which means that in case of
conflict between Paragraph-3 and Paragraph-4, the provisions of Paragraph-4
shall prevail.
(iv) Paragraph-3 of the OM dated 22.12.1959 as modified vide Notification
No.04.11.1992 (supra) lays down the general principal that seniority of a person
regularly 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 this confirmation.
This provision is general provision which is irrespective of the mode of recruitment. Thus,
it equally applies to a direct recruit as well as a promoted officers.

Now, the succeeding paragraphs of the OM dated 22.12.1959 prescribes specific principles
for determination of seniority of officials depending upon their mode of recruitment.
(v) Paragraph-4 lays down the principles for determination of seniority of direct
recruits among themselves. It states that in case of direct recruits, the relative
seniority of all direct recruits shall be determined by the order of merit in which
they are selected for such appointment on the recommendations of the UPSC or
other selecting authority, persons appointed as a result of subsequent selection.
The term ‘relative seniority’ implies the seniority of the direct recruits among
themselves.
It does not compare the seniority of direct recruits with those of promoted
officers.

Paragraph-4 was having a proviso also which has since been deleted vide the
OM dated 04.11.1992 (supra) and thus, the OM dated 22.12.1959 stands
modified to that extent.
(vi) Paragraph-5 lays down the principles for determination of seniority of
Promoted officials among themselves. It states as under-
a) The relative seniority of persons promoted to the various grades shall be
determined in the order of their selection for such promotion.
This principle applies to those posts where the promotion is being made from
only one feeder cadre. In case of multiple feeder cadres, separate principle
has been laid down.

It was having a proviso also which has since been deleted vide OM dated
04.11.1992 (supra).

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 In the case of promotion to the post of Assistant Audit Officer/ erstwhile
Section Officer, promotion was being done from more than one feeder
cadres, i.e LDC/Auditor/Sr.Auditor/Supervisor/Steno/PA/PS etc., this
principal is not applicable for fixation of seniority of the officials
promoted to the post of Assistant Audit Officer in IA&AD.
b) Where promotions to a grade are made from more than one grade, the
eligible persons shall be arranged in separate lists in the order of their relative
seniority in their respective grades. Hereafter, the Departmental Promotion
Committee shall select persons for promotion from each list upto the
prescribed quota and arrange all the candidates selected from different lists
in a consolidated order of merit which will determine the seniority of the
persons on promotion to the higher grade.
This principle applies for fixation of seniority of those promoted officials
who are promoted to a post from more than one feeder cadres and where
there is a fixed quota in respect of each feeder cadre for promotion to
the higher post.
In the case of promotion to the post of Assistant Audit Officers, though
feeder cadres are more than one, no specific quota has been prescribed for
selection of officials from each cadre for promotion to the higher post.
Accordingly, this principal is also not applicable to fixation of seniority of
promoted candidates.
The fact that wherever no separate quota has been prescribed, the instant
principle is not applicable is obvious from the facts that a Note below the
said principle [i.e. below clause (ii) of Paragraph-5] directs all those
Ministries/ Departments, where no separate quotas for promotion have
already been prescribed in the relevant recruitment rules, to prescribe
separate quota of each feeder cadre for promotion to the higher post.
Thus, in the absence of any prescribed quota for each feeder cadre in the
recruitment rules of Assistant Audit Officers, this principal does not
apply to fixation of seniority of promoted Assistant Audit Officers in
IA&AD.

(vii) Paragraph-4 and Paragraph-5 lays down the principles for fixation of relative
seniorities of Direct Recruits and Promoted Officials respectively and
exclusively. Once the relative seniority of direct recruits is determined in
accordance with Paragraph-4 and relative seniority of promoted officials is
determined in accordance with Paragraph-5, thereafter, inter-se-seniority of
direct recruits and promoted officials are determined accordance with
Paragraph-6.

Paragraph-6 states that the relative seniority of direct recruits and of

promotees shall be determined according to the rotation of vacancies between
direct recruits and Promotees which shall be based on the quotas of
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 vacancies reserved for direct recruitment and promotion respectively in the
Recruitment Rules.

Thus, for application of Paragraph-6, following ingredients should be fulfilled –

i) There should be separate quota of vacancies for direct recruitment;
ii) There should be separate quota of vacancies for recruitment by
promotion;
iii) These quota should have been prescribed in the Recruitment Rules

In the absence of any of the three aforesaid ingredients, paragraph-6 shall not apply.
As per Explanatory Memorandum pertaining to Paragraph-6 mentioned in the same
OM dated 22.12.1959, a roster should be maintained based on the reservation for direct
recruitment and promotion in the Recruitment Rules. Where the reservation of each
method is 50%, the roster will run as follows:-
(1) Promotion, (2) Direct recruitment, (3) Promotion, (4) Direct Recruitment and so on.
Appointment should be made in accordance with this roster and seniority determined
accordingly.
In the case of recruitment of Assistant Audit Officers, no separate quota for direct
recruitment and promotion have been reserved or prescribed in the Recruitment Rues.
Accordingly, no separate roster is being maintained by the Department. In the absence of
prescribed quota, inter-se-seniority of direct recruits and promoted candidates cannot be
determined under Paragraph-6 of the OM dated 22.12.1959.

The provisions of Paragraph-6 become more obvious by an illustration given under the
same Explanatory Memorandum of the aforesaid OM. It illustrates as under –

Illustration : Where 75% of the vacancies are reserved for promotion and 25% for
direct recruitment, each direct recruit shall be ranked in seniority below 3
promotees. Where the quotas are 50% each, every direct recruit shall be ranked
below a promotees. If for any reason, a Direct recruit or a promotee ceases to hold the
appointment in the grade, the seniority list shall not re-arranged merely for the purpose
of ensuring the promotion referred to above.

Thus, from the 50% Sample Roster shown in the Explanatory Memorandum read with
illustration given in the said Explanatory Memorandum as shown above, it is obvious
that even in those cases where separate quota for direct recruits and promoted officials
are reserved in the Recruitment Rules, while fixing their relative inter-se-seniority,
promoted candidate shall be place at first point of the roster, then direct recruit is
placed at second place and so on. Accordingly, while fixing inter-se-seniority of
direct recruits and promoted officials, direct recruits are being placed below the
promoted official in the roster. It indicates that in fixation of inter-se-seniority,
promoted official will be senior to the direct recruit.

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Thus, the assumption of the Department that the whole class of direct recruit shall be
placed senior to the promoted candidates en masse is incorrect and not sustainable
in law.

Though the said principle is not applicable to the cadre of Assistant Audit Officer for the
reasons well explained above, it is stated and submitted for the sake of clarification that
even if the said principle is applied, the inter-se-seniority of direct recruit and promoted
officials will get fixed in the following order –

(1) Promoted (2) Direct (3) Promoted (4) Direct and so on.

If the said principle is observed, it will open another pandora box of dispute regarding
fixation of inter-se-seniority of direct recruit and promoted Assistant Audit Officers.

Similar provisions are obvious from the explanations given in Paragraph-2.4.2 of the
OM No.22011/7/86-Estt(D) dated 03.07.1986 as well.

Thus, Paragraph-6 of the OM dated 22.12.1959 is also not applicable to the cadre of
Assistant Audit Officer in IA&AD.
4.2.1.2 In view of above submissions, it is stated that the OM dated 22.12.1959
read with OM dated 04.11.1992 are not applicable for fixation of inter-se-seniority of
Assistant Audit Officers of IA&AD for the reasons that –
i) the parent OM dated 22.12.1959 is not sacrosanct OM for fixation of seniority of
officials employed in Civil Services or Civil Posts;
ii) the OM dated 22.12.1959 itself has saved the seniority rules prescribed
separately by other competent authorities and thus, it has saved the CAG’s MSO
(Admin) Volume-I;
iii) the correctness of the provisions of fixation of Inter-se-seniority of direct recruits
and promoted Assistant Audit Officers prescribed under paragraph 5.6.6 of the
CAG’s MSO (Admin) Vol.I have already been upheld by the Hon’ble Supreme
Court of India in the case of M Srinivasa Prasad V/s Comptroller & Auditor
General of India [2007 (10) SCC 246] (hereinafter referred to as the M
Srinivasa Case);
iv) the correctness of the provisions of fixation of inter-se-seniority seniority, as
prescribed under Paragraph 5.6.6 of the CAG’s MSO (Admin) Vol.I has also
been upheld by the Hon’ble High Court of Delhi in the case of Comptroller &
Auditor General of India V/s B. Srikanth in CWP 984/2002 (Annexure-B)
(hereinafter referred to as the B. Srikanth case) which has also been confirmed
by the Hon’ble Supreme Court in the case of M. Srinivasa Prasad ibid;
v) Hon’ble High Court of Dehi in the case of B. Srikanth (Supra) held that passing
of an examination and successful completion of probation is the starting point
for regular service. No ANALOGY can be drawn from any other rules
which do not have similar provisions. In this respect, it is stated and submitted

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 that the OM dated 22.12.1959 read with the OM dated 04.11.1992 does not
provide for fixation of seniority in the cases where regular appointment is
linked to passing of an examination subsequent to initial appointment.
vi) Precedence of the two contradictory judgments –
a) The case law of B. Srikanth decision of a Double Bench of the High Court of Delhi
and the decision of Deepak Sharma is also a decision of a Double Bench of High
Court of Himachal Pradesh, Shimla.
b) Thus, both the decisions were pronounced by the bench of equal strength, albeit of
different High Courts. The decision in the case of B.Srikanth was pronounced on
12.07.2002 where the decision of the High Court of Himachal Pradesh was
pronounced on 06.11.2023.
c) Thus, the decision of double bench of the Hon’ble High Court of Delhi in the case of
B.Srikanth was pronounced much earlier than the decision of the Hon’ble High Court
of Himachal Pradesh in the case of Deepak Sharma.
d) In the case of two contradicting judgments of coordinate bench, it is the earlier one,
i.e. the judgment in the case of B. Srikanth which is binding and should be followed
unless the same is reversed by the court of higher bench, in view of the following
principles laid down by the judiciary from time to time-
(i) In the case of Mary Pushpam V/s Telvi Curusumary & Others [2024 LiveLaw (SC)
12], Hon’ble Supreme Court has held that the rule of ‘Judicial Discipline and
Propriety’ and the Doctrine of precedents has a merit of promoting certainty and
consistency in judicial decisions providing assurance to individuals as to the
consequences of their actions. The Constitution benches of this court have time
and again reiterated the rules emerging from Judicial Discipline. Accordingly,
when a decision of a coordinate Bench of same High court is brought to the
notice of the bench, it is to be respected and is binding subject to right of the
bench of such co-equal quorum to take a different view and refer the question to a
larger bench. It is the only course of action open to a bench of co-equal
strength, when faced with the previous decision taken by a bench with same
strength.
It also held that the doctrine of merger is a common law doctrine that is rooted in
the idea of maintenance of the decorum of hierarchy of courts and tribunals. The
doctrine is based on the simple reasoning that there cannot be, at the same time,
more than one operative order governing the same subject matter.
It will be open only for a Bench of coequal strength to express an opinion
doubting the correctness of the view taken by the earlier Bench of coequal
strength, whereupon the matter may be placed for hearing before a Bench
consisting of a quorum larger than the one which pronounced the decision laying
down the law the correctness of which is doubted.
(ii)In the case of Union Territory of Laddakh & Others V/s State of Jammu &
Kashmir National Conference & Another [ (2023) 12 SCR 68 : 2023 LiveLaw
(SC) 749], Hon’ble High Supreme Court of India followed the ratio laid down by
the learned Constitution Bench of the Supreme Court in the case of National
Insurance Co. Ltd. Vs/ Pranay Sethi [2017 (16) SCC 68] and held that when

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 faced with conflicting judgments by Benches of equal strength of this court, it is
earlier one which is to be followed by the High Courts.
(iii) In the case of State of Punjab & Another V/s Devans Modern Brewaries Ltd. &
Another [2004 (11) SCC 26], learned Constitution bench of the Hon’ble Supreme
Court of India held that it is well-settled that if a Bench of coordinate jurisdiction
whether on the basis of "different arguments" or otherwise, on a question of law, it
is appropriate that the matter be referred to a larger Bench for resolution of the
issue rather than to leave two conflicting judgments to operate, creating
confusion. It is not proper to sacrifice certainty of law. Judicial decorum, no less
than legal propriety forms the basis of judicial procedure and it must be respected at
all costs.
iv) the said OM dated 22.12.1959 as amended vide OM dated 04.11.1992 is
applicable only to those cases where no separate rules for fixation of seniority
exists;
v) Though the OM dated 04.11.1992 has amended the parent OM dated
22.12.1959, it has not amended the principles laid down in Paragraph-6 of
the OM dated 22.12.1959 which prescribes for fixation of inter-se-seniority of
direct recruits and promotees and hence, the principles for fixation of inter-se-
seniority of direct recruits and promotees have not been disturbed by the OM
dated 04.11.1992;
vi) While fixing of inter-se-seniority of direct recruits and promotees, it is not
correct to assume that the whole class of direct recruit shall be placed senior to
the promoted candidates en masse, rather it is the promoted candidates who
are taking the precedence over the direct recruits as illustrated in Explanatory
Memorandum of Paragraph-6 of the OM dated 12.12.1959 and Paragraph-2.4.2
of OM dated 03.07.1986;
vii) none of the circumstances prescribed in the said OM dated 22.12.1959 read with
OM dated 04.11.1992 for fixation of seniority exists in the case of recruitment of
Assistant Audit Officers;
viii) the conditions precedent for application of the principles laid down in the said
OM dated 22.12.1959 read with OM dated 04.11.1992 are not in existence in the
case of Assistant Audit Officer in IA&AD.
4.3 Applicability of Direct Recruit Class-II Engineering Officers Association
case [1990 (2) SCC 715]
4.3.1 Binding precedence of judgments
Before discussing the applicability of the Direct Recruit Engineers Case to the Assistant
Audit Officers, following points are important to bear in mind –
i) In the case of P.S. Sathappan V/s Andhra Bank Ltd. [(2004) 11 SCC 672],
Hon’ble Supreme Court has held that the judgment must be read as a whole and
the ratio therefrom is required to be culled out from reading the same in its
entirely and not only a part of it.

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ii) In the case of Som Mittal V/s Government of Karnataka [(2008) 3 SCC 574],
learned full bench of the Hon’ble Supreme Court of India has held that
judgments are not be construed as statutes. Nor words or phrases in judgments
to be interpreted like provisions of a statute. Some words used in a judgment
should be read and understood contextually and are not intended to be taken
literally. Many a time, a judge uses a phrase or expression with the intention of
emphasizing a point or accentuating a principle or even by way of a flourish of
writing style.
iii) In the case of ICICI Bank & Another V/s Municipal Corporation of Greater
Bombay & Others [2005 (6) SCC 404], Hon’ble Supreme Court of India has
held that normally the ratio of the case shall be deduced from the facts involved
in the case and the particular provision of law which the court has interpreted
and the decision shall be read with reference to and in the context of
particular statutory provisions involved in the matter.
iv) In the case of Union of India V/s Annam Ramalingam [(1985) 2 SCC 618],
learned full bench of the Hon’ble Supreme Court has held that in the absence of
a parity of situation or circumstances, the doctrine of parity of reasoning
cannot be invoked.
v) In the case of B. Srikanth (Supra), Hon’ble High Court of Delhi held that the
benefit of one rule meant for one purpose cannot be extended to another rule,
where objects and purport wherefor are different.
4.3.2 Distinguishing facts involved in the case of Assistant Audit Officers of IAAD
viz-z-viz Direct Recruit Engineers Case
OM dated 04.11.1992 has been issued to implement to the orders of the Hon’ble
Supreme Court in the case of Direct Recruit Class-II Engineering Officers Association
case [1990 (2) SCC 715] (hereinafter referred to as the Direct Recruit Class-II
Engineers Case).
Hon’ble Supreme Court in the case of Direct Recruit Class-II Engineering Case (Supra)
has held that once an incumbent is appointed to a post according to rule, his seniority
has to be counted from the date of his appointment and not according to the date of his
confirmation.
In this respect, it is stated and submitted that the aforesaid case law of Direct Recruit
Class-II Engineering Officers’ Association is based on the facts which are completely
different from the facts of the instant case in the following manner –
i) In the aforesaid case law, the aggrieved parties were the officials who were
recruited by promotion and not by the direct recruits.

 In that case, the Direct Recruits were being directly appointed against the
permanent seat while the departmental candidates were being appointed in
officiating capacity.

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  The confirmation of the departmental candidates was being done after
decades of their recruitment on the same post in officiating capacity. Their
confirmation was being done only after their confirmation to the post.
Accordingly, their seniority was reckoned after lapse of decades of their
appointment to the same post in officiating capacity.

 Meanwhile, since the direct recruits were being recruited directly on

permanent seat of the same post, their seniority was being reckoned
immediately with effect from the date of their recruitment.

 Thus, by the time the services of the departmental candidates were being
confirmed on the same post, multiple batches of direct recruits were
recruited and were made senior to those departmental candidates who were
recruited much earlier than the Direct Recruits.

 It is in this respect that the Hon’ble Supreme Court ordered to count the
seniority of such Departmental Candidates from the date since when they
were recruited on the same post in officiating capacity and not from the date
on which their services were confirmed.
But in the case of Assistant Audit Officers, no such circumstances are there.
Here, the seniority of the Direct Recruit as well as the promoted candidates are
fixed immediately with effect from the date on which they are appointed as
Regular Assistant Audit Officer. The Regular appointment to the post of
Assistant Audit Officer is not linked with the date of confirmation. It is linked
only with the date of their clearing SAS Examination.
Thus, the ratio of the Direct Recruit Class-II Engineering Officers’ Association
Case (Supra) is not applicable to the instant case.
ii) Not only this but also, in the case of Direct Recruit Class-II Engineering
Officers’ Association Case (Supra)-

 There was separate quota for Direct Recruitment and Promotion. But it
is not so in the case of Assistant Audit Officers. There is not any separate
quota for Direct Recruitment and Promotion. Rather, in the case of
Assistant Audit Officers, the mode of recruitment is primarily by
promotion, failing which by transfer/ deputation failing which by Direct
Recruitment. Thus, Direct Recruitment is the last known mode of
recruitment to the post of Assistant Audit Officer. It depends upon the
non-availability of Departmental candidates for
promotion/transfer/deputation to the post of Assistant Audit Officer.

 In the case of Direct Recruit Class-II Engineering Officers’ Association

Case (Supra), the promotional quota was distributed among all the feeder
cadres in a fixed ratio and the candidates from different feeder cadres
were being promoted in the same proportion. But in the instant case, no
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 such quota has been fixed for different feeder cadres for their promotion
to the post of Assistant Audit Officer.

 In the case of Direct Recruit Class-II Engineering Officers’ Association

Case (Supra), the superior post/ promotional post was not the Selection
Post. But in the instant case, the post of Assistant Audit Officer is a
Selection Post. Thus, ratio of a case law pertaining to non-selection post
may not be applied to the case pertaining to selection post.

 In the case of Direct Recruit Class-II Engineering Officers’ Association

Case (Supra), there was provision for rotation of quota for appointment
to the higher post i.e. the promotional post. But in the case of Assistant
Audit Officer, since there is no separate quota for direct recruitment and
promotion, the question of rotation of quota does not arise.

 In the case of Direct Recruit Class-II Engineering Officers’ Association

Case (Supra), there was Stop-gap arrangement of recruitment. But in the
case of Assistant Audit Officers, there is no provision of Stop-Gap
Recruitment.

 In the case of Direct Recruit Class-II Engineering Officers’ Association

Case (Supra), seniority of the departmental candidates were being
reckoned solely from the date of their confirmation. But in the case of
Assistant Audit Officers, the seniority of Direct Recruits depends upon
the date of their qualifying the SAS Examination.
Thus, in view of above distinguishing facts, the ratio of Direct Recruit Class-II
Engineering Officers’ Association Case (Supra) is not applicable to the instant
case.
iii) In the case of Direct Recruit Class-II Engineering Officers’ Association Case
(Supra), the principles laid down by the Hon’ble Supreme Court are not
applicable to the instant case for the following reasons-

Sl. Principle/ Facts of the instant case and its applicability

No condition
. precedent
1 Confirmation is This is condition precedent to apply the ratio of this
one of the judgement. In the case of Direct Recruit Engineers, the
inglorious confirmation of promoted officials was taking long time
uncertainties of and they were not required to fulfil any qualification for
government confirmation after serving long time. After spending long
service depending service in officiating capacity, there services were being
neither on confirmed without any additional requirements for
efficiency of the confirmation. It is in this peculiar facts of the case that the
incumbent nor Hon’ble observed the condition precedent before passing
on the the orders that in such cases, seniority of promoted officials
Page 12 of 28
 availability of should be counted from the date of their initial appointment
substantive which was very much right and but obvious in those
vacancies. circumstances.

But, in the case of Assistant Audit Officers, confirmation is

depending upon the efficiency of the incumbents. They are
required to qualify the SAS Examination for their
appointment to the post of Regular Assistant Audit Officer.
Thus, once the confirmation is depending upon the
efficiency of the officials, the ratio of Direct Recruit Class-
II Engineers will not apply.

2. The Principle for The learned Constitution Bench of the Hon’ble Supreme
deciding inter-se- Court of India in the case of Col. A.S. Iyer & Others Etc.
seniority has to Vs/ Balasubramanyam & Others [1980 AIR 452] laid down
conform to the that where recruitment is done from different sources, the
principles of test of equality is to be applied only after integration of
equality spelt out different cadres into a single cadre.
by Article 14 and
Article 16. In the instant case, recruitment to the post of Assistant
Audit Officer is done from different sources, i.e. from
LDC/CT, Auditors, Sr. /Auditors, Accountants, Sr.
Accountants, Supervisors, Steno, PA/PS etc. and Direct
Recruitment. All these cadres are integrated into the single
cadre only after their appointment to the post of Regular
Assistant Audit Officer. Thus, the test of equality between
the Direct Recruit and the Promoted officials is to be
applied only after their integration to the post of Regular
Assistant Audit Officer and not before that.

As the regular appointment to the post of Assistant Audit

Officer is done only after qualifying the SAS Examination,
the test of equality between the Direct Recruit and
Promoted Assistant Audit Officers has to be applied only
after they qualify the SAS Examination.

Those Regular Assistant Audit Officers who qualify the

SAS Examination in the same batch are equals among
themselves. Test of equality is to be applied on them
equally.

Those Assistant Audit Officers who qualify the SAS

Examination in different batches are unequal among
themselves.

In the case of State of Bombay V/s Balasara F.N. [1951

Page 13 of 28
AIR(SC) 318], the learned Constitution Bench of the
Hon’ble Supreme Court has held that the principle of
equality does not take away from the State the power of
classifying persons for legitimate purposes.

In the case of Babulal Amthalal Mehta V/s Collector of

Customs, Calcutta [1957 AIR(SC) 877], learned
Constitution Bench of the Hon’ble Supreme Court held that
while Article 14 forbids class legislation, it does not forbid
reasonable classification for the purposes of legislation, so
far, the classification is founded on an intelligible
differentia which distinguishes persons or other things that
are grouped together from others left out of the group and
the differentia has a rational relation to the object sought to
be achieved by the statute in question. Classification based
on an intelligible differentia does not offend Article 14.

In the case of State of Jammu and Kashmir V/s Triloki

Nath Khosa [1974 (1) SCC 19], the learned Constitution
bench of the Hon’ble Supreme Court of India has held
that–
 Classification on the basis of educational qualifications
made with a view to achieving administrative efficiency
cannot be said to rest on any fortuitous circumstances
and one has always to bear in mind the facts and
circumstances of the case in order to judge the validity
of a classification.
 Efficiency which comes in the trial of a higher mental
equipment can reasonably be attempted to be achieved
by restricting promotional opportunity to those
possessing higher educational qualifications.
 The courts should be concerned with the reasonableness
of the classification not with the precise accuracy of the
decision to classify nor with the question whether the
classification is scientific. Such tests have long since
been discarded.
 Educational qualifications have been recognized by this
Court as a safe criterion for determining the validity of
classification.
 The State which encounters diverse problems arising
from a variety of circumstances is entitled to lay down
conditions of efficiency and other qualifications for
securing the best service for being eligible for
promotion in its different departments.

In the case of Budhan Chaoudhary V/s State of Bihar [1955

Page 14 of 28
 AIR(SC) 191], learned Constitution Bench of the Hon’ble
Supreme Court held that-
 It is now well established that while Article 14 forbids
class legislation, it does not forbid reasonable
classification for the purposes of legislation.
 In order, however, to pass the test of permissible
classification, two conditions must be fulfilled, namely,
(i) that the classification must be founded on an
intelligible differentia which distinguishes persons
or things that are grouped together from others left
out of the group and
(ii) that that differentia must have a rational relation to
the object sought to be achieved by the statute in
question.

In view of above facts and provisions, it is stated and

submitted that the classification of Assistant Audit Officers
who have qualified the SAS Examination and those who
have not qualified the SAS Examination is reasonable
classification to achieve the objective of qualified and
expert Audit of various Departments of the Governments.

The classification is based on efficiencies of Assistant

Audit Officers who have passed the SAS Examination and
those who have not passed the SAS Examination.

Since the Regular Appointment of Assistant Audit Officer

is linked to the efficiency, the case law of Direct Recruit
Class-II Engineers Association is not applicable.

3 Seniority cannot In the case of inter-se-seniority of Assistant Audit Officers,

be determined on their seniority is not determined on the basis of their
the sole test of confirmation, rather it is determined on the basis of their
confirmation. qualification of SAS, i.e., one who qualifies the SAS is
placed senior to those who have not cleared the SAS.

In view above submissions, it is stated and submitted that the ratio laid down by
the Hon’ble Supreme Court in the case of Direct Recruit Engineers Case is no
applicable to fixation of inter-se-seniority of direct recruit and promoted
Assistant Audit Officers.

4.4 Constitutional validity of Paragraph 5.6.6 of CAG’s MSO (Admin) Vol.I.

In so far as the constitutional validity of the instructions laid down in Paragraph 5.6.6 of
the CAG’s MSO (Admin) Vol.I is concerned, it is stated and submitted that the in order
to test the constitutional validity of Paragraph-5.6.6 of the MSO, it is necessary to
Page 15 of 28
ascertain the classification of posts, criteria for their classification and the nexus of such
criteria with the objectives of the Department sought to be achieved. In this respect,
Paragraph 5.6.6 of the MSO does not violate Article 14 and Article-16 as discussed
hereinunder.
4.4.1 As discussed in Paragraph-3 above, in order to test whether Article-14 or
Article-16 is being violated in the matter of public appointment, following has to be
seen–
i) Whether the classification of the post is based on reasonable and intelligible
criteria;
ii) Whether the criteria of classification has nexus with the objectives of the
Department.

4.4.2 As discussed above, it is stated that the main objective of the Department
is to get the qualified and quality audit of the Government Departments done. For this,
the reasonable criteria prescribed for classification of officials in the Department is the
qualification of SAS. Those who qualify the SAS constitute a separate class and those
who do not qualify the SAS examination constitute a separate class. More so, as in the
case of State of Jammu & Kashmir V/s Triloki Khosa [1974 (1) SCC 19] (Supra),
classification of posts on the basis of education qualification and efficiency with a view
to achieve administrative efficiency has been held as a valid criteria for classification of
posts.
4.4.3 With the above classification in mind, the application of provisions laid
down in Paragraph-5.6.6 of the MSO qualifies the test of equality for both the classes in
the following way –
i) The provisions of the MSO do not violate any provisions of rights to equality, as
enunciated in Article 14 and Article 16 of the Constitution of India. Rather,
these provisions are in consonance with Article 14 and Article 16. In this
respect, Hon’ble Supreme Court has held in the case of Col.A.S. Iyer & Others
Etc. Vs/ Balasubramanyam & Others [1980 AIR 452] (Supra) that where
recruitment is done from different sources, the test of equality is to be applied
only after integration of different cadres into a single cadre.

In the instant case, all the feeder cadres to the post of Assistant Audit Officer as
well as the direct recruit Assistant Audit Officers merge and integrate to a single
cadre, only when they are appointed as Regular Assistant Audit Officers. Thus,
their integration takes place only after their regular appointment to the post of
Assistant Audit Officer. Accordingly, the appropriate stage for applying the test
of equality is the stage when all the officials, be it promotee or a direct recruit,
get appointment to the post of Regular Assistant Audit Officer.

ii) Relative Seniority of all the officials appointed in various feeder cadres before
they qualify the SAS Examination and get regular appointment to the post of
Assistant Audit Officer (be it LDC/CT, Auditor, Sr.Auditor, Supervisor or a
Direct Recruit Assistant Audit Officer) is fixed in accordance with the general
Page 16 of 28
 principles laid down under Paragraph-4 and Paragraph-5(i), as the case may
be, of the OM dated 22.12.1959 (supra) as amended vide OM dated
04.11.1992.

iii) Relative seniority of all the direct recruit and promoted Assistant Audit Officers
who qualify the SAS examination and get regular appointment to the post of
Assistant Audit Officer is determined among themselves in accordance with the
spirit of the general principles laid down in Paragraph-4 and Paragraph-5(ii),
as the case may be, of the OM dated 22.12.1959 (supra) as amended vide
OM dated 04.11.1992 among themselves.

iv) Thus, as explained at (iii) and (iv) above, in all cases, i.e. before qualifying the
SAS Examination and after qualifying the SAS Examination, relative seniority
of both the class of officials (classified on the basis of SAS Qualification) are
determined among themselves in the spirit of the general principles laid down
under Paragraph-4 and Paragraph-5, as the case may be, of the OM dated
22.12.1959 read with OM dated 04.11.1992.

v) Various provisions of Paragraph-5.6.6 of the MSO only ensure that these

principles are equally applied on the two different class of officials i.e. one who
have qualified the SAS and another who have not qualified the SAS.

vi) Once the relative seniority of the Direct Recruit and Promotee AAOs are
determined in accordance with the spirit of Paragraph-4 and Paragraph-5 of the
aforesaid OM dated 22.12.1959 read with OM dated 04.11.1992, the inter-se-
seniority of the direct recruit and promotee Assistant Audit Officers is required
to be fixed.

vii) But, as described above, Paragraph-6 of OM dated 22.12.1992 which lays down
the general principles for fixation of inter-se-seniority of direct recruit and
promoted officials, deals with different circumstances which do not exist in the
case of Assistant Audit Officer.

viii) Paragraph-6 provides for reservation of quota for appointment by direct

recruitment and by promotion and fixation of inter-se-seniority on the basis of
rotation of quota in the format and in the pattern as suggested in the
corresponding Explanatory Memorandum and illustration. But since there is no
such quota for direct recruitment and promotion to the post of Assistant Audit
Officer has been prescribed in the Recruitment Rules of the Assistant Audit
Officers, this paragraph does not apply to this cadre in the given circumstances.

ix) Accordingly, though the OM dated 22.1.1959 does not anticipate such
circumstances, Paragraph 5.6.6 of the MSO (Admin) Vol.I provides for fixation
of inter-se-seniority of such direct recruits and promoted AAOs. According to
these provisions of the MSO, all the direct recruits are assigned higher seniority
en masse with respect to the Promotee Assistant Audit Officer who qualify the
SAS in the same batch.
Page 17 of 28
x) Thus, the provisions of MSO ensure the right to equality of the direct recruits
and not violate it.

xi) Without prejudice to above, it is stated and submitted that due to existing
provisions for fixation of inter-se-seniority prescribed in the MSO (Admin) Vol.-
I, if any injustice is being done to someone, then it is the promoted AAOs, and
not the Direct recruit AAOs who are being assigned higher seniority with respect
to the promoted AAOs. In this regard, it is stated that in the spirit of paragraph-6
of the OM dated 22.12.1959, the inter-se-seniority of such promoted and direct
recruit AAOs who have qualified the SAS in the same batch and have been
appointed as Regular AAO, should have been fixed in the manner shown in
Paragraph-6 of the said OM as well as in the illustrations shown in the
corresponding Explanatory Memorandum of Paragraph-6 (supra) and also, as
explained in Paragraph 2.4.2 of the OM dated 03.07.1986 (supra). Thus, the
provisions of fixation of inter-se-seniority of direct recruit and promoted AAOs
is tilted towards the direct recruit AAOs which is violative of right to equality of
the promoted AAOs.

4.5 Merit-cum-Seniority selection (i.e. Selection-cum-seniority mode of

recruitment)–
It is further stated and submitted that appointment to the Regular Post of Assistant Audit
Officer is done on the basis of ‘Merit-cum-Seniority’ basis in which, meritorious
candidates are selected from all the feeder cadres and among the direct recruit
probationers on the basis of SAS Examination. Thereafter, the SAS-qualified officials
are appointed on regular basis to the post of Assistant Audit Officer in the order of their
seniority.
In the case of Ravikumar Dhansukhlal Maheta & Another V/s High Court of
Gujarat & Others [2024 LiveLaw (SC) 387], learned full bench of the Hon’ble
Supreme Court has held that –
i) where the promotion is on the basis of the principle of ‘Merit-cum-seniority’, a
greater emphasis is placed on merit, whereas when the promotion is on the basis
of the principle of ‘Seniority-cum-merit’, a greater emphasis is laid on seniority.
ii) One must be mindful that the terms ‘Merit-cum-Seniority’ or ‘Seniority-cum-
Merit’ are not statutorily defined by the legislature.
iii) These principles are judicial connotations that have been evolved over a period
of years through various decisions of this Court and the High Courts whilst
dealing with matters of promotion pertaining to different statutes and service
conditions.
iv) The principle of ‘Seniority-cum-Merit’ postulates that: -
a) Minimum requirement of merit and suitability which is necessary for the
higher post can be prescribed for the purpose of promotion.
b) Comparative Assessment amongst the candidates is not required.
c) Seniority of a candidate is not a determinative factor for promotion but has
a predominant role.
Page 18 of 28
 d) Upon fulfilling the minimum qualifications, promotions must be based on
inter-se seniority.

v) The principle of ‘Merit-cum-Seniority’ postulates that: -

a) Merit plays a predominant role in and seniority alone cannot be given
primacy.
b) Comparative Assessment of Merit is a crucial, though not a mandatory,
factor.
c) Only where merit is equal in all respects can inter-se seniority be
considered. Meaning that a junior candidate can be promoted over
the senior if the junior is more meritorious.

vi) wherever the expression ‘Merit-cum-Seniority’ or ‘Seniority-cum-Merit’ has

been supplemented by an elaborate promotion policy or statutory rules clearly
indicating the parameters on which promotions are to be made, the mode of
promotion assumes the character of a Hybrid or Dynamic Mode of Promotion.

vii) In such scenario, these principles serve as a beacon for the selection body which,
in exercise of its delegated legislative powers, can formulate policies and lay
down different criteria and conditions of assessment for the purposes of
promotion. It does so by providing the selection body with the tools for
formulating the promotion policy in the form of the aforementioned postulations
or criteria which are permissible under these principles. Thereafter, the
selection body can, as a conscious choice, decide the criteria it deems
necessary or most suitable for the purpose of promotion keeping in mind the
nature of the post, the requirements of service, etc.
For instance, where the promotion is based on ‘Merit-cum-Seniority’, the
selection body may opt for a comparative assessment of merit, more particularly,
in cases where the promotions are competitive in nature or it may say that
seniority should only be considered where merit is equal in all respect if the post
is of such nature that it requires significant knowledge and ability.
While the statutory rules or, in the absence of the same, the promotion policy
formulated must be followed, they must at the same time have some nexus or
bearing with the nature of the post and the requirements of service.
For instance, where the promotion is based on ‘Merit-cum-Seniority’ and the
nature of promotion allows for superseding a senior, the selection body
whilst formulating the promotion policy cannot simpliciter as a matter of choice
refuse to provide for assessment of comparative merit, as the promotion herein is
by its nature an accelerated form of promotion and as such comparative
assessment becomes crucial.
viii) It is the rules and the promotion policy, along with the intention of the legislature
or the selection board, as the case may be, that supplements the principles of
Merit-cum-seniority and the Seniority-cum-merit and delineates the actual
modality of how promotion is to take place. Through these rules and promotion

Page 19 of 28
 policy, the legislature or the selection body specifies the area and the parameters
or the weightage which is to be given to the aspect of “Merit” and “Seniority” on
the said spectrum.

ix) The suitability of each candidate should be tested on their own merit.

Thus, in the instant case, Recruitment Rules of Assistant Audit Officers/ erstwhile
Section Officer itself states that it is Selection Post. Appointment to the post of
Assistant Audit Officer is done by Selection-cum-seniority method (i.e. Merit-
cum-Seniority method as explained by the Hon’ble Supreme Court in the
aforesaid case law). For the purpose, SAS examination is held to select the
meritorious candidates from different cadres. All equally SAS qualified
candidates are compared and then, they are appointed as Regular Assistant Audit
Officer in the order of their relative seniority in their previous cadre in accordance
with the promotion policy formulated by the CAG to achieve the objective of the
Department. By following the said procedure, if a junior official in feeder cadre
or a non-SAS qualified direct recruit Assistant Audit Officer is found more
meritorious (on the basis of his qualifying the SAS Examination) than his senior
(for the reasons of his non-qualifying the SAS Examination) for appointment to
the Regular Post of Assistant Audit Officer, then the said junior (who qualified the
SAS examination) can be appointed to the said higher post superseding his senior
(who could not qualify the SAS examination) and there is no infirmity in the
provisions.

The selection criteria and the selection procedure so adopted cannot be held to be
ultra-virus as violative of Article 14 and Article-16 merely for the reasons that the
junior supersedes his senior for appointment at higher post despite the facts that
the said junior was more meritorious than his senior.

4.6 Regularisation of irregular appointments, Probation and Confirmation –

4.6.1 Column 11 of the Recruitment Rules, 1988 of the erstwhile Section

Officers or the Recruitment Rules of Assistant Audit Officers promulgated in the year
2009 or thereafter prescribes that mode of recruitment of the post is Promotion, failing
which by transfer/ deputation and failing both, by direct recruitment. Thus, the post of
Assistant Audit Officer is primarily a promotional post on which recruitment is to be
made preferably by promotion only. All the alternative options, i.e. Tranfer/Deputation
or Direct Recruitment are merely an alternative of promotion if the sufficient number of
suitable candidates are not available for promotion to the Assistant Audit Officer.

4.6.2 By plain reding of the aforesaid Recruitment Rules would suggest the
scheme for appointment to the post of Assistant Audit Officer.

4.6.2.1 For promotion, all the incumbent officials of feeder cadres are first
required to clear the SAS Examination. The officials of feeder cadres, on qualifying the
SAS Examination, are directly appointed as Regular Assistant Audit Officer. But in the
case of direct recruitment, this is not the case. A direct recruit is first appointed on
Page 20 of 28
probation (temporarily) to the post of Assistant Audit Officer with the condition that
he has to clear the SAS examination in order to get Regular appointment to the post of
Assistant Audit Officer.

4.6.2.2 The term Regular appointment and the Regularisation has been well
explained by the Hon’ble Supreme Court in the case of Secretary, State of Karnataka
& Others V/s Uma Devi & Others [AIR 2006 SC 1806] (hereinafter referred to as the
Uma Devi Case) in which, it held as under –

i) There is distinction between regularization and conferment of permanence

(i.e. Confirmation) in service jurisprudence.

ii) It was a mis-conception to consider that regularisation meant permanence.

iii) Ratification or regularisation is possible of an act which is within the power

and province of the authority, but there has been some non-compliance with
procedure or manner which does not go to the root of the appointment.

iv) Words "regular" or "regularization" do not connote permanence and cannot be

construed so as to convey an idea of the nature of tenure of appointments. They
are terms calculated to condone any procedural irregularities and are meant to
cure only such defects as are attributable to methodology followed in making
the appointments.

v) Only something that is irregular for want of compliance with one of the
elements in the process of selection which does not go to the root of the
process, can be regularized and that it alone can be regularized and granting
permanence of employment is a totally different concept and cannot be
equated with regularization.

4.6.3 Thus, the recruitment rules of Assistant Audit Officers envisages the
qualification of SAS as a necessary ingredient for appointment to the post of Assistant
Audit Officer. Since a promoted AAO has already qualified the SAS, he directly gets
the Regular appointment to the post of Assistant Audit Officer. On the other hand, since
a direct recruit is appointed to the post of Assistant Audit Officer without qualifying the
SAS, he is appointed on Probation with a condition that in order to get regular
appointment, he needs to clear the SAS examination.

In terms of the Uma Devi case (Supra), since the direct recruits were lacking the
necessary qualification (i.e. SAS) for appointment to the post of Assistant Audi Officer,
there appointment was irregular as long as they could not clear the SAS Examination.
This irregularity is removed the moment they clear the SAS Examination and it is only
then that the deficiency in their recruitment is removed and they are placed at par with
the Promoted Assistant Audit Officers. It is at this stage, i.e after their regular
appointment to the post of Assistant Audit Officer, when their integration with the
promoted Assistant Audit Officers takes place. Before such integration, they are
Page 21 of 28
completely different class and hence, subject to different terms of service. Any equality
of a less qualified (in terms of SAS) irregularly appointed direct recruit AAOs with that
of a more qualified (in terms of SAS) and regularly appointed promoted Assistant Audit
Officer will be the greatest inequality to the promoted Assistant Audit Officer as in the
case of the same Direct Recruit Class-II Engineers Case, the same Constitution bench
of the Hon’ble Supreme Court has held that to equate the two unequals as equal
would violate the equality clause. Equating two uneqals is the greatest inequality. As
discussed in the case of Col. A.S. Iyer & Others Etc. Vs/ Balasubramanyam &
Others [1980 AIR 452] (Supra), Hon’ble Supreme Court has held that where
recruitment is done from different sources, the test of equality is to be applied only
after integration of different cadres into a single cadre. Accordingly, since the
integration of the two cadres, i.e. direct recruit and the promoted Assistant Audit
Officers is taking place only after their regular appointment, any test of equality is to be
applied on the Regularly appointed Assistant Audit Officer and not before that.

4.6.4 In so far as the relation between probation and regular appointment is

concerned, it is stated that though, in some cases, promotee Assistant Audit Officers are
also kept under probation for two years, just like direct recruit probationers, it is only in
those cases where the Class of the Post (i.e. Class C to Class B) changes.

The nature of probation of a direct recruit and a promotee AAO are different. In
the case of promoted AAOs, they are kept under probation for two years merely to
ascertain their permanent appointment to the post. But in the case of direct recruit, they
are appointed on probation first, to ascertain suitability of their appointment to the post
of Assistant Audit Officer. They are appointed to the said post temporarily (On
probation) to ascertain whether they are eligible for regular appointment to the post of
Assistant Audit Officer or not, as they lack the basic criteria of SAS-qualification at the
time of their initial appointment. Thats why, when they qualify the SAS examination,
this irregularity in appointment gets removed and then, their appointment is
regularised by the Department. It is also important to mention that this regularisation
is not equivalent to confirmation of their service. After their regular appointment (on
removal of the said irregularity in initial appointment), their services are again reviewed
for confirmation, i.e. for conferment of permanence to the post of Assistant Audit
Officer.
Thus, regularisation of appointment is a peculiar process which has to be done in the
case of direct recruit AAOs only and not in the case of Promoted AAOs as the
appointment of promoted AAOs is already regular and is not hit by any irregularity ab
initio.
4.7 Date of regular appointment
As stated above, the promoted AAOs are directly appointed as Regular Assistant Audit
Officer with effect from the date when they take over the charge of the higher post.
Hence, there is no dispute in this regard.

Page 22 of 28
In so far as date of regular appointment of direct recruit Assistant Audit Officers are
concerned, the issued is squarely covered by the case of Comptroller & Auditor
General of India V/s B. Srikanth & Others [CWP 984/2002] of Hon’ble Delhi High
Court (Supra) in which the Hon’ble High Court has discussed the recruitment rules and
various provisions of the CAG’s MSO (Admin) Vol.I at length and held that-

i) in the given facts and circumstances of the case and in view of the recruitment
rules, the date of entry into service would be very much relevant.

ii) The test for determining seniority, in the opinion of the Court, having been laid
down in the rule, the same cannot relate back from the date of entry in the
service irrespective of the date of passing the examination inasmuch as in the
event the candidate passes the examination after a long time, it would be
preposterous to suggest that although becomes eligible to hold the said post and
be confirmed therein, he would be deemed to be eligible for the purpose of
promotion from a much anterior date.

iii) The word ‘regular service’ occurring in the statutory rules as also the Manual of
Standing Orders is significant. When such regular service would start being
dependent on the stability rules, their cannot be any doubt that the same
would commence only upon passing the examination and completion of the
period of probation.

iv) Passing of an examination and successful completion of probation is the starting

point for regular service. No analogy can be drawn from any other rules which
do not have similar provisions.

v) Benefit of one rule meant for one purpose cannot be extended to another rule,
where objects and purport wherefor are different.

vi) However, for financial and natural benefits, the entire period of service would be
treated to be qualified service and the employee may not be deprived of such
period.

vii) Inter-se-seniority of the direct recruits vis-à-vis the promotees much be

determined having regard to clause 3 of Para 5.6.6 of the Standing Orders in
terms of the said Rules a direct recruit would be deemed to be appointed as SO
on regular basis only upon satisfactory completion of the period of
probation prescribed in the recruitment rules and the seniority is to be
counted only from the date of his taking charge as regular SO.

viii) An employee, thus, becomes a regular only on fulfilment of the

abovementioned conditions.

Page 23 of 28
The above case has attained the finality. Accordingly, it is stated and submitted that once
a direct recruit clears the SAS Examination and gets regular appointment to the post of
Assistant Audit Officer, his regular appointment has to be counted from the date since
when he takes over charge as Regular Assistant Audit Officer after qualifying the SAS
Examination. The matter is no more res integra.
5.0 Impugned Circular dated 29.01.2025
In view of above, the impugned circular to revise the inter-se-seniority of the direct
recruit and promoted Assistant Audit Officer retrospectively with effect from
04.11.1992 in accordance with the provisions laid down in OM dated 04.11.1992 ibid is
bad in law for the following reasons –
i) The OM dated 22.12.1959 itself has saved other rules regarding fixation of
seniority prescribed by any other authority who are competent to prescribe such
rules. In its applicability clause, it states that the OM is not applicable to the
Departments/ Ministries who has prescribed or who have been authorised to
prescribe separate rules for fixation of seniority. In the instant case, CAG is
empowered to prescribed separate rules for fixation of seniority as upheld by the
Hon’ble Supreme Court of India in the case of M. Srinivasa (Supra).
Accordingly, the CAG has prescribed the rules for fixation of inter-se-seniority
vide paragraph 5.6.6 of MSO (Admin) Vol.I. Thus, by way of exclusion clause
of Paragraph-1 of the OM dated 22.12.1959, it is not applicable ot the Assistant
Audit Officers of IAAD.

ii) The impugned OM dated 04.11.1992 merely amended the provisions of

Paragraph-3, Proviso to Paragraph-4 and Proviso to Paragraph-5 of the OM
dated 22.12.1959 and it left all other paragraphs undisturbed.

iii) The impugned Circular has been issued under the impression that all the Direct
Recruit shall be placed senior to the promoted Assistant Audit Officers under
impression that there seniority shall be determined solely under Paragraph-4.
While doing so, the OM dated 22.12.1959 read with OM dated 04.11.1992 has
not been read as a whole, rather it has been read in a piecemeal manner.
Facts of the matter are that Paragraph-4 of the OM merely discusses about
relative seniority of the direct recruits among themselves.

Not only this but also, while doing so, it has ignored the crucial term ‘relative’
preceding the term ‘seniority’ which has led to misconstruction of the
provisions that all the direct recruits shall be placed en masse together in the
seniority list in the order of their seniority as shown by the recruiting agency.
By doing so, it has grossly ignored the principles of interpretation of an
enactments as described in Paragraph-4.1 above of this application.

Fixation of inter-se-seniority of the direct recruits and promoted officials are

not the subject matter of Paragraph-4, rather it is the subject matter of
Paragraph-6 of the OM dated 22.12.1959 which has never been disturbed by
any OM till date including he OM dated 04.11.1992. Still, the impugned
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 circular dated 29.01.2025 has directed to revise the inter-se-seniority in view of
OM dated 04.11.1992 retrospectively w.e.f. 04.11.1992 under the impression
that Paragraph-6 is directing to fix the inter-se-seniority in such a manner that all
the Direct Recruit shall be placed senior to Promoted Officials. It suggests that
before issuing the impugned Circular, no pain has been taken by the competent
authority to go through the OM dated 22.12.1959 along with the OM dated
04.11.1992 thoroughly. It has issued the OM merely by perusing the provisions
mentioned in the OM dated 04.11.1992 without reading it with the OM dated
22.12.1959 and without doing any comparative study of these two OMs and
without ascertaining the impact of those amendments, without ascertaining the
applicability of these OMs and corresponding amendments to the post of
Assistant Audit Officer.

This has led to issuance of an erroneous Circular dated 29.01.2025 which is

prone to hurt the interest of entitled promoted Assistant Audit Officers and is
prone to grant unentitled benefits to the disentitled direct recruit Assistant Audit
Officers.

This Circular is differentially treating the more entitled and meritorious class
with respect to the less entitled and less meritorious class.

This circular is violating the rights to equality as guaranteed to the promoted

Assistant Audit Officers Article-14 and Article-16. Those direct recruits who
were less efficient and were appointed irregularly to the post of Assistant Audit
Officers are being granted higher seniority than those promoted Assistant Audit
Officers who were more efficient to those direct recruits and were appointed in
regular capacity much earlier than those less-efficient direct recruits.

iv) Provisions regarding fixation of inter-se-seniority of the direct recruits and

promoted government servants have been prescribed in Paragraph-6 of the OM
dated 22.12.1959 ibid and hence, the OM dated 04.11.1992 has nothing to do
with fixation of inter-se-seniority of AAOs.

v) The pre-conditions prescribed for implementation of the principles laid down in

Paragraph-4, Paragraph-5 and Paragraph-6 are not in existent in respect of the
cadres of Assistant Audit Officer, i.e., no separate quota for direct recruitment
and promotion has been reserved in the recruitment rules of the Assistant Audit
Officers/ Section Officers and hence, the same cannot be applied to the AAO
cadre.

vi) However, relative seniority of the Direct Recruit and Promoted Officials who
have passed the SAS and those who have not passed the SAS are determined in
accordance with the principles and spirit of paragraphs 5 and Paragraph-6 of the
OM dated 22.12.1959 as described in Paragraph-4.4.3 (supra). Rather, in utter
disregard to the spirit of Paragraph-6 of the OM dated 22.12.1959, the inter-se-
seniority of Direct Recruit and Promoted AAOs who have qualified the SAS and
have been appointed regularly, is not fixed in the manner shown in the
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 Explanatory Memorandum pertaining to Paragraph-6 of the said OM which is an
injustice to the promoted regular Assistant Audit Officers.

vii) The Direct Recruit Class-II Engineerrs Case is also not applicable to the instant
case in view of different facts and circumstances of the case which has been
described at length in Paragraph-4.3 supra. Rather, the Direct Recruit
Engineers Case itself has stated that while determination of inter-se-seniority, the
principles of right to equality is to be taken care of.

viii) Principal of equality requires that the impugned posts should be classified
intelligently based on rational and to achieve the objectives of the Department.
In the instant case, the posts of Assistant Audit Officer have been classified on
the basis of SAS qualification. A direct recruit qualifies the SAS is appointed as
Regular Assistant Audit Officer and those direct recruits who are not SAS
qualified are not appointed as Regular Assistant Audit Officer. On the contrary,
promoted Assistant Audit Officers are directly appointed as Regular Assistant
Audit Officer. Thus, integration of both the cadres take place only after their
regular appointment. Hence, any test of equality is to be applied only after their
integration, i.e. after their regular appointment as AAO and not before that. Any
equality before their regular appointment will be the greatest inequality and will
violate the principles of equality. It has been held by the Supreme Court as
described above that qualification and efficiency is the reasonable criteria to
classify the post. Accordingly, in view of these facts, the provisions of MSO
withstand the exceptions carved out by the Direct Recruit Class-II Engineers
case and hence, do not violate it, rather they supplement it.

ix) Rather, in the case of B. Srikanth (Supra), Hon’ble High Court of Delhi has
confirmed vehemently held that in case of erstwhile Section Officers of the
Department recruited under the Recruitment Rules of 1989 and confirmed and
awarded seniority in accordance with the provisions of Paragraph 5.6.6 of the
MSO (Admin) Vol.I, their regular appointment shall be counted only after they
pass the SAS Examination and take over the charge as Regular Section Officer.
It also upheld that their seniority should be counted only with effect from the
date since when their services get regularised and they take over the charge as
Regular Section Officer.

x) Further, in the case of Rudrappa Ramappa Jainpur V/s State of Karnataka

[2004 (7) SCC 422], Hon’ble Supreme Court has held that no judgment can be
cited as a precedent, however similar the facts may be. Each case must rest on
its own facts and the mere similarity of the facts in one case, cannot be used to
determine a conclusion of fact in another.

The pleas raised in the instant application have not been considered by any of
the court in this matter so far, neither by the CAT, Chandigarh nor by the
Hon’ble High Court of Himachal Pradesh nor by the Hon’ble Supreme Court.
These facts have not been heard by any other courts also.

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xi) The decisions taken by the impugned Circular are sub-judice and are pending
for consideration before the Hon’ble High Court of Gujarat vide SCA
No.16636 of 2023 and hence, pending the decisions of the Hon’ble High Court
in the matter, the action taken is too haste which is detrimental to my interest.

xii) Judgment of one High Court is not binding on another High Court. In this
regard, it is stated and submitted that in the case of State of Gujarat V/s
Gordhandas Keshavji Gandhi & Others [AIR 1962 GUJ 128], Hon’ble
Hon’ble High Court of Gujarat has held that a decision of one High Court is not
binding on another High Court. Even a decision of Full Bench of one High
Court is not binding on a judge sitting singly in another High Court.

xiii) The Special Leave Petitions mentioned in the impugned Circular were filed
under Article 136 of the Constitution of India. Hon’ble Supreme Court of India
has not passed any judgment in the matter. It has dismissed the petition due to
lack of its inclination to hear the same without going into its merit. In this
regard, attention is drawn towards the case of Justice P. Venugopal V/s Union
of India [2003 (7) SCC 726] in which, the learned full bench of the Hon’ble
Supreme Court of India held that refusal of Special Leave to Appeal under
Article 136 does not by itself render the impugned decision a binding precedent.

Further, in the case of Union of India V/s Jaipal Singh [2004 (1) SCC 121],
Hon’ble Supreme Court of India held that an order rejecting a Special Leave
Petition at the threshold without detailed reasons therefor does not constitute any
declaration of law by the Supreme Court or constitute a binding precedent.

xiv) Before issuance of the Impugned Circular directing to revise my seniority

without giving me an opportunity to be heard is arbitrary in nature and violates
the principles of natural justice.
6.0 Hence, in view of above, it is stated and submitted that the impugned Circular is
bad in law. In order to implement an erroneous judgment, which is still pending
for its judicial scrutiny on merit, to all over India without listening all the
concerned officials is prejudicial to our interest. The provisions of Paragraph
5.6.6 of the MSO (Admin) Volume-I are saved by the impugned OM dated
04.11.1992 read with OM No.22.12.1959. The Direct Recruit Class-II
Engineers Case is not applicable for fixation of inter-se-seniority of Assistant
Audit Officers.
It is, therefore, requested to kindly reconsider the implementation of the impugned
Circular dated 29.01.2025 in view of above facts and prevent the miscarriage of justice
to us.
For this, I shall be ever grateful to you.
Yours faithfully,

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DATE : .02.2025 (-------------------)
PLACE : ------------- Assistant Audit Officer
O/o the -----------------------------.

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