JUDGMENT
Milap Chandra Jain, J.
1. This special appeal has been filed against the order of the learned Single Judge dated July 24, 1985. It runs as under:
In thid Rule the petitioner has challenged the rule making power in respect of the Comptroller and Auditor General’s (Duties, Powers and Conditions of Service) Act, 1971. By order dated 5th January, 1978, the State Government was pleased to amend its Financial Rules, namely, Public Works Financial and Accounts Rules, but in doing so they exceed the limit of their powr and sought to insert rr. 3A, 3B and 3C by which they sought to amend the Act of the Parliament. Under Articles 148, 149 and 150 read with item No. 77 of Schedule VII it is clear, the power Is vested in the Central Government and not in the State Government. It, therefore, tries to amend matters beyond the competence of the State when there is already an Act by the Parliament. The amendment, therefore, in so far it is repugnant to the Act of Parliament, and Ex. 4, cannot be sustained and must be set aside which I hereby do.
The rule is made absolute and there will be no order as to costs.
2. The petitioner’s case is that in the year 1973, he was taken as Divisional Accountant by the Accountant General, Rajasthan, Jaipur. At the time of the filoing of the writ petition in the year 1978, he was posted as Divisional Accountant in the office of the Senior Accounts Officer, C.A.D., Rajasthan Canal Project, Hanumangarh under the Administrative Control of the Accountant General. He is only competent to transfer Divisional Accountants from one place to another place as provided under para 314 of Chapter VII of the Comptroller and Auditor General’s Manual of Standing Orders Valume I. His conditions of service are governed by the rules prescribed by the President after consultation with the Comptoller and Auditor General of India as provided under Article 148(5) of the Constitution of India. The Government of Rajasthan has issued order No. F.2 (I) FD/Ex. IH/75/10 dated January 5,1978 (Annex. 3) making amendments in the Rules 3,13,15,16 and 17 of the “Public Works Financial and Accounts Rules (hereinafter referred to as “the Rules”). They are ultra vires of Articles 149 and 150 of the Constitution of India. The State Government has no authority to prescribe a separate accounting procedure. As a result of these amendments, the postings of Civil Accountants are being arranged by the Chief Accounts Officer, Rajasthan, Jaipur and letter No. F.4(2)/CAD/78 dated March 21,1978 (Annex. 4) has been issued by the Government
3. He has made the following prayers in his writ petition:
(i) the impugned amendments at item No. 3,13,15,16, and 17 as contained in Ex. 3 and the impugned order Ex/4 be quashed and set aside, the amendments at ite s No. 3,13,15,16 and 17. be declared to be ultravires of Article 148(54) and 150 of the constitution of India and so also the order Ex. 4 and the State Government and the Chief Account Officer be restrained from posting any Civil Accountant on the post of Divisional Accountants and the petitioner and his other like colleagues be allowed to continue as Divisional Accountants as if these amendments had not been made and the order Ex. 4 had not been passed.
(ii) Any other appropriate relief to which the petitioner may be found entitled be granted.
(iii) The writ petition be allowed with costs.
4. The Union of India (respondent No. 1), Comptroller and Auditor General of India (respondent No. 2) and Accountant General, Rajasthan Jaipur (respondent No. 5) have filed their joint reply to the writ petition admitting most of the averments made therein. It has further Been averred that the petitioner is a Divisional Accountant, he is under the Administrative control of the Accountant General who is alone competent to transfer him from one place to another, the Chief Accounts Officer, Rajasthan, Jaipur is noi competent to interfere with the work of the Accountant General, Article 149, Constitution of India casts a duty upon the Comptroller and Auditor General of India in relation to the accounts of the Union and the State, the orders Annexures 3 and 4 have been passed without jurisdiction and the State of Rajasthan cannot interfere with the statutory functions conferred on the Comptroller and Auditor General of India through Accountant General. It has further been averred that the Comptorller and Auditor General Duties, Powers and Conditions of Service) Act, 1971 (hereinafter called “the Act”) has been passed, under the executive powers, the State of Rajasthan has already framed Rules,- Rule 97 of the Rules clearly provides that the Divisional Accountants will assist the Divisional Officers in the discharge of their responsibility and the Accountant General will post the Divisional Accountants in each Divisional Office, by amending Note (1) given below Rule 97 of the Rules the State Government has empowered itself with the power to fill the vacancies of Divisional Accountants by posting Divil Accountants which cannot be done under the said Act. By inserting Rule 3 A by order dated January 5, 1978 (Anx. 3), the power of prescribing accounting procedure for major projects has wrongly been issued by the State of Rajasthan. Under Section 22(1) of the Act, power to make rules relating to maintenance of accounts vests with the Central Government after consultation with the Comptroller and Auditor General of India. Under Article 150, Constitution of India, the accounts of the Union and of the States shall be kept in such form as the President may, after consultation with the Comptroller and Auditor General of India, prescribe.
5. The State of Rajasthan (respondent No. ) and the Chief Accounts Officer, Rajasthan, Jaipur (respondent No. 4)have admitted in their joint reply that the petitioner is serving in the Indian Audit and Account Department as an emergency Divisional Accountant and Annexures 3 and 4 have been issued by them. It has been averred that the amendment in the Rules made by the notification Annexure 3 are in keeping with the provisions of Articles 149 and 150 of the Constitution of India and they are not ultra vires. The order Annexure 4 is not without jurisdiction. The Parliament has enacted the Act defining powers and duties of the Comptroller and Auditor General of India. The subject matter of present controversy mainly centres round the question as to whether the State of Rajasthan is competent to amend the rules empowering itself to post Civil Accountants on the posts of Divisional Accountants. It does not relate to the form of keeping accounts and it relates to the substantive powers of the State of Rajasthan. Such a power vests under Entry 35 of the State List of Seventh Schedule of the Constitution.
6. Despite personal service of the notice of the appeal, the petitioner-respondent Niranjan Singh did not put his appearance. It appears that he has retired and he has now no interest in the matter.
7. It has been contended by Mr. R.C. Maheshwari, Advocate that the learned single Judge has seriously erred in holding that the amendments made by the State Government in the Public Works Financial and Account Rules byorder dated 4.1.1978 (Annex. 3), namely, insertion of Rules 3A, 3B & 3C, were beyond its competence and are inconsistent with the Act. He further contended that Rules 3A, 3B and 3C are not inconsistent with the Act and so far as the writ petition is concerned, validity of order dated March 21, 1978(Annex. 4) was only required to be examined. He further contended that by insertionof Rules 3A, 3B and 3C, the Act has not been amended but to make the Manual of Public Works Financial and Account Rules self contained, Section 10 to 23 of the Act have been substituted in its. Appendix-I in place of “Extracts from Government of India (Audit and Accounts) Order, 1936, issued as an order of His Majesty-in-Council under Sub-section (2) and (3) of the Section 166 of the Government of India Act”.
8. In reply, it has been contended by the learned Standing Counsel for the respondents No. 2,3 and 4 that the order dated January 5, 1978 (Annex. 3) is ultra vires so far as it is inconsistent with the provisions of the Act and Manual of Standing Orders (Administration) issued by the Comptroller and Auditor General of India.
9. The learned single Judge has observed in the impugned order that by order dated January 5, 1978 (Annex. 3), the State Government was pleased to ament its Financial Rules, namely, Public Works Financial and Account Rules, in doing so they exceeded the limit of their power, they had inserted Rules 3 A, 3B and 3C and by this, the Act of the Parliament has been amended. It is not correct to say that Rule 3A, 3B and 3C have amended the Act. It is clear from a perusal of the order No. F. 2(1) FD/EX IH/75/10 dated January 5,1978 (Annex. 3) that its Item No. 2 relates to Appendix-I of Public works Financial and Account Rules. prior to the amendment, Appendix-I has the following heading:”Extract from Government of India (Audit and Accounts) Order, 1936, issued as an order of His Majesty-in- Council under Sub-sections (2) and (3) of Section 166 of the Act”. It dealt with the duties and powers of the Comptroller and Auditor General. Section 66 of the Act runs as under:
26. Removal of Dobuts- For the removal of doubts, It Is hereby declared that on the commencement of this Act, the Government of India (Audit and Accounts) Order, 1947, shall cease to be In force except as respects anything done or any action taken thereunder.
On coming into force of the Act, the said Government of India (Audit and Account) order 1936 ceasedto be in force. As such the relevant provisions of the Act i.e., Sections 10 to 23 have been substituted in the said Appendix-I. It cannot, therefore, be said that by Item No. 2 of sais notification dated January 5,1978 (Annex. 3) the said Act of 1971 had been amended.
10. By Item No. 3 of the said notification (Annex. 3) Rules 3A, 3B and 3C have been added after Rule 3 and before Rule 4 in the Public Works Financial and Account Rules. Rules 3A, 3B and 3C run as under:
3A: Government may be an order prescribe separate accounting procedure for any major projects. The rules in this volume shall apply mutatis mutandis to all such project also.
3B: The power to interpret the rules in this volume shall rest with the Government in Finance Department.
3C: The powers delegated to various functiona ries in the engineering departments are contained in appendix XIII. Where these powers have been restricted or ehnanced in respect of any item for major projects by an order of the Government, the same shall continue to apply for such items.
11. During the arguements, Shri R.C. Maheshwari, Advocate put before us photostat copy of the letter No. F 2(l)FC/EX.III/75/10/1327 dated September 19,1977 addressed to the Accountant General, Rajasthan, Jaipur and written by the Deputy Secretary to the Government in the in the Department of Finance, sending proposals for the amendment in the Public Works Financial and Account Rules. Its para 13, deals with the insertion of new Rules i.e. 3A, 3B and 3C. Letter No. WM/OPN/5(2)/72-73-75-76/4026 dated November 26,1977 of the Accountant General, Rajasthan, Jaipur was also placed before us which was received in reply to the aforesaid letter dated 19.9.1977. In this reply, it has been suggested that words “in consultation with the Central Government” lmay be inserted after “major projects” in Rule 3A. No comment was offered for Rule 3B implying that he had no objection for its insertion. While offering comments for Rule 3C, he has referred Appendix XII which relates to the procedure to be followed for settlement of items under transfer between P.W. officers by cheque/bank drafts. It is clear from the Rule 3 C that it relates to Appendix XIII and not to Appendix XII. Apendix XIII deals with the delegation of powers to various functionaries in the engineering departments.
12. The petitioner-respondent Niranjan Singh has challenged the order dated March 21, 1978 (Annex. 4) issued in pursuance of the Note added by notification dated January 5,1978 (Annex. 3) in para 97 of the Public Works Financial and Account Rules. By item No. 17 of the notification (Annex 4), the following Note has been added below Rule 97 of the Rules:
When a regular Divisional Accountant is not available,theAG. shall intimate the vacancies to the C.A.O. Rajasthan who shall post Civil Accountants in such vacancies. The Civil Accountants posted by C.A.O. shall act as Divisional Accountants till a regular Divisional Accountant is available. The A.G. may, however, appoint a clerk in the Division to officiate as Divisional Accountant for a period not exceeding three months only for leave vacancies.
This note is applicable when a regular Divisional Accountant is not available. As soon as he is available, the civil accountant so posted has to be withdrawn. Such a posting does not offend the provisions of Article 148(5) of the constitution nor the rules framed thereunder. It is only a stop-gap arrangment.
13. There is yet another aspect of the matter. The Treasury Rules of Rajasthan Government were issued under Article 283(2), Constitution of India, They also deal with the accounting procedure. Para 1 of the General Financial & Account Rules, runs as under:
1. The rules, contained in this volume, which are essentially executive orders of the Governor describe the procedure which should be followed by different authorities subordinate to the Rajasthan Government in the securing and spending of the funds necessay for the discharge of the functions entrusted to them,. In the matter of receipt, custody & disburse-merit of Government moneys, these rules are supplementary to Trdasury Rules vide Appendix I and should be applied in conjunction with them. Departmental authorities should follow these rules, supplemented or modified by the special rules and instructions. If any, contained in their departmental regulations and other special orders applicable to them.
14. Paras No. 1 & 2 of the Rules vis., Public Works Financial & Account Rules of Government of Rajasthan, run as under:
1. The rules contained In this volume describe the financial transactions of the Public Works Department, the procedure followed in connection with the initiation and execution of works, maintenance of the stdck of stores, materials and tools and plant, the initial accounts maintained in the department and the account submitted to the Accountant General. They are supplementary to the general rules contained in the General Financial and Account Rules and Treasury Rules, which are applicable to the Public Works Department, unless there bew something repugnant in the subject or context or except to the extent that that are modified by the rules in this volume.
2-As explained in paragraph (1) G.F. and A.R. this volume contains the Subsidiary and Financial rules of the Government and also the rules made by the Comptroller and Auditor General containing his directions issued under the Constitution and under the rules made by the president under paragraph 11 (3) of the Government of India (Audit and Accounts) mOrder, 1936, as adopted (see Appendix I of this Volume) prescribing the methods or principles in accordance with which accounts are to be kept in the department and rendered to the Acclountant General on prescribed datas & also the forms in which the accounts are to be maintained & rendered to the Accountant General. No rule of the Comptroller and Auditor General included in this volume should be amended without the concurrence of the Accountant General.
15. It is thus clear that the rules contained in the Public Works financial & Account Rules are supplementary to the Treasury Rules and General Financial & Account Rules. Rules 92 and 93 of these Rules specifically deal with the system of Accounts relating to Public Works Department. Appendix I contained extracts from Government of India, Audit & Accounts Order, 1936. According to the above quoted Rule 2, these Rules can well be amended except the rules of the Comptroller &m Auditor General included in volume of Public Works Financial & Account Rules. Rule 3 of the Rules also provides that the Rules may be supplemented by orders and detailed instlructions which may be issued by the Administrative Department in consultation where necessary with the Finance Department but they should not be inconstistent with the provisions of the Rules. Newly added Rule 3A provides for prescribing separate accounting procedure for any major project. It is also provided therein that all the provisions of the Rules shall apply mutatis mutandis to all such projects also. Article 150, Constitution of India provides that the accounts of the Union and of the State shall be kept in such form as the President may on the advice of the Comptroller & Auditor General of India, prescribe. Form is the outline or structure of a document apart from its substance. Section 22 of the Act empowers the Central Government to frame rules relating to the maintenance or accounts. Accounting procedure (Rule 3A) and maintenance of accounts (Section 22) are not similar matters. It cannot, therefore, be said that Rule 3A is hit by any provision of the Constitution of India or the Act.
16. For the similarl reasons, Items No. 13, 15, 16 & 17 of the notification Annex. 3 are quite valid. No other item of Annex. 3 has been challenged. Thus, the special appeal deserves to be allowed.
17. In the result, the special appeal is allowed with costs. The order of the learned single Judge dated July 24, 1985 is set aside. The writ petition is dismissed with costs.