K. Veeraswami, C.J:— It seems to us that the order of the learned Judge is correct. He struck down the amendment to rule 143 as illegal. The question in the appeal turns on seniority and that, again, will depend upon the validity of the amendment to rule 143 of the Manual of Standing Orders. Rule 143 as it stood before the amendment in 1956, read as follows:
“Subject to the conditions in Para. 139 and subject also to the right of the appointing authority to make any special promotion in accordance with Para. 144, clerks or divisional accountants eligible for appointment to the Subordinate Account Service shall ordinarily be selected for appointment to the Subordinate Accounts Service in the order of the dates of their passing the examination, but in order to allow for length of service and experience, every three complete years of the excess in length of service (either as a clerk in the Audit Office or a divisional accountant or an accounts clerk in a Divisional or Subdivisional Office of the Public Works Department) should be treated as compensating for one year's delay in passing the examination:
Provided that the relative seniority of those who complete the Subordinate Accounts Service Examination held in May 1950 and onwards, should be fixed treating every one and a half years of the excess in length of service as compensating for half-year's delay in passing the Subordinate Accounts Service Examination.”
The weightage contemplated by this rule was deleted with effect from 1956. The respondent, who was the petitioner, contended that the amendment to the rule was only made by the Auditor-General and not by the President and, therefore, it would not operate as a rule. That contention was accepted by the learned Judge.
2. Article 148(1) of the Constitution says that there shall be a Comptroller and Auditor-General of India who shall be appointed by the President in the manner mentioned therein. Sub-clause (5) of this article states that, subject to the provisions of the Constitution and of any law made by Parliament, the conditions of service of persons serving in the Indian Audit and Accounts Department and the administrative powers of the Comptroller and Auditor General shall be such as may be prescribed by rules made by the President after consultation with the Comptroller and Auditor-General. It is not disputed that the amendment to 143 was administratively made by the Comptroller and Auditor-General and it was not framed as a rule by the President in consultation with the Comptroller and Auditor-General. The amendment, therefore, cannot have the force of a rule framed by the President.
3. But then the contention before the learned Judge was that rule 143 itself was not statutory in character. At that time, it was admitted in the pleadings as to the statutory character of the rule and the learned Judge relied on it. Apart from that, we have ourselves examined the position and found that rule 143 was statutory in character. The rule existed even prior to 1919. Section 96-D of the Government of India Act, 1919, was somewhat similar to Arts. 148(1) and 148(5) of the Constitution. Sub-section (4) of S. 96 specifically declared that all rules or other provisions in operation at the time of passing of the Government of India Act, 1919, were made in accordance with the powers in that behalf and were confirmed. That means that rule 143, which was in operation at the relevant time, was declared as duly framed in accordance with the powers in that behalf and confirmed as a rule. The rule, therefore, became statutory. It follows, therefore, that the learned Judge was right in his view that the amendment of 1956 dispensing with the weightage, had no validity.
4. It is contended by Sri Dolia for one of the appellants that rules 139 and 140 control rule 143. We are unable to agree. The subject-matters of rules 139 and 140 are different. They do not deal with weightage. That was the view of the learned Judge, with which we agree.
5. It follows that the appeals fail and are dismissed. No costs.