JUDGMENT 1. In this writ petition filed under Article 226 of the Constitution of India the petitioner, Basant Kumar Pareekh, has challenged the validity of the order (Ex. 6) dated November 18, 1981, whereby the candidature of the petitioner for the Subordinate Accounts Service Examination Part II scheduled to be held on November 26, 1981, was rejected. In the writ petition, the petitioner has also challenged the validity of the order (Ex. R.1) dated May 21, 1981, issued by the Controller General of Defence Accounts (for short CGDA). 2. The Defence Accounts Department of the Government consists of gazetted as well as non-gazetted staff. The non-gazetted staff consists of members of the Subordinate Accounts Service designated as Section Officers (Accounts) and members of the Clerical Service designated as Selection Cadre Auditors, Auditors, Clerks, Typists, K.P. Os. and Stenographers. In paragraph 92 of the Revised Edition (1979) of the Office Manual of the Defence Accounts Department (hereinafter referred to as the Manual') it is laid down that normal method of appointment to the Subordinate Accounts Service, Section Officer (Accounts) grade will be by promotion, as vacancies occur, of Selection Grade Auditors/Auditors/Clerks/Typists K.P. Os/Stenographers, who have passed the Subordinate Accounts Service Examination (hereinafter referred to as the S.A.S. Examination') and who have been adjudged fit by the Local Promotion Committee. In the said paragraph it is father provided that other qualifications being equal, such individuals will ordinarily be selected for promotion in the order of their seniority and that the seniority of Section Officers (Accounts) will be fixed according to the dates of their passing the Subordinate Accounts Service Examination. Paragraph 97 of the Manual lays down that the passing of the S.A.S. Examination does not in itself establish a right to be promoted to the Section Officer's (Accounts) grade and that no one will be appointed to that grade unless vacancies exit and he is considered fully qualified by ability and experience to discharge the duties of Section Officer (Accounts) and has been adjudged fit for such promotion by the Local Promotion Committee. Paragraph 101 provides that permission to appear at the S.A.S. Examination will be granted by the CGDA to those who fulfil the prescribed conditions, and who are recommended by the Controllers to appear for the examination. Paragraph 101 provides that permission to appear at the S.A.S. Examination will be granted by the CGDA to those who fulfil the prescribed conditions, and who are recommended by the Controllers to appear for the examination. Paragraph 102 makes reference to the detailed rules relating to the examination for admission to the Subordinate Accounts Service contained in Annexure 'D' to Chapter II. Annexure 'D' to Chapter II of the Manual contains the rules relating to the examination for admission to the Subordinate Accounts Service of the Defence Department. Under the said rules, it is provided that the said examination will normally be held annually and will consist of two parts and that admission to the examination will be open to Selection Grade Auditors/Auditors/Clerks/ Typists/K.P. Os/Stenographers and that to be eligible for appearing in Part I of the S.A.S. Examination, an individual must have put in three years' service (including continuous temporary service) in the Department and that candidates appearing for Part I of the S.A.S. Examination are eligible for three normal chances and that only those who pass Part I, would be allowed to appear in part II of the S.A.S. Examination. Rule 9 of Schedule 'D' provides that the procedure to be followed in selecting suitable candidates for admission to the examination will be notified by the C.G.D.A. from time to time. In the purported exercise of his powers under rule 9 referred to above the CGDA has issued a Circular (Ex. R. 1) dated May 21, 1981. Para 3 of the said Circular prescribes the criteria to be followed for recommending candidates for admission to the S.A.S. Examination and it reads as under ;- "The case of each intending candidates (including those who are on deputation) will be carefully screened by a Board of Officers, comprising the Controller/JCDA, one IDAS Officer and one Accounts Officer. The candidature shall be recommended on the basis of the following criteria:- (i) The Confidential Reports of a candidate for the previous two years (viz. 1979 and 1980) should be free from any adverse remarks regarding his amenability to discipline, integrity and maintenance of cordial relations with fellow employees. (ii) He/She should not have been found wanting in keenness and willingness to undertake additional work and greater responsibility as evidenced by his/her record of last two years. (iii) He/She should not have been reprimanded for indifferent work. (ii) He/She should not have been found wanting in keenness and willingness to undertake additional work and greater responsibility as evidenced by his/her record of last two years. (iii) He/She should not have been reprimanded for indifferent work. (iv) Candidature of individuals against whom disciplinary cases are pending or contemplated should be considered with reference to the nature of the lapse of their part. Full facts of the disciplinary case pending against such individuals may be furnished." 3. By order dated February 3, 1975, the petitioner was appointed as an Auditor in the office of the Local Audit Officer (Army, jodhpur and he joined this post on February 7, 1975. After successfully completing the period of probation, the petitioner was confirmed on the post of Auditor. The petitioner qualified in Part I of the S.A.S. Examination in July, 1980. On June 15, 1981, the petitioner submitted his application for appearing in Part II of the S.A.S. Examination, which was scheduled to be held on November 26, 1981. By letter (Ex. 6) dated November 18. 1981, the petitioner was informed by the Regional Audit Officer, Jodhpur, Respondent No. 3 herein, that his candidature for the S.A.S. Examination Part II had been considered & rejected by the C.G.D.A., New Delhi. Being aggrieved by the aforesaid order rejecting his candidature, the petitioner has filed this writ petition in this Court. 4. In the writ petition, the petitioner has submitted that the criteria laid down in the Circular (Ex. R/1) dated May 21, 1981, issued by the CGDA for recommending the candidates for admission to the S.A.S. Examination, are arbitrary, illegal and are violative of the provisions of Article 14 of the Constitution. In this regard, the case of the petitioner is that promotion to the post of Section Officer (Accounts) in the Subordinate Accounts service, not automatic after qualifying in the S.A.S. Examination and that by qualifying in the said examination the incumbent only acquires the eligibility for being considered for promotion by the Local Promotion Committee and that the fitness and suitability of the incumbent for promotion to the post of Section Officer (Accounts) in the Subordinate Accounts Service is to be adjudged by the Local Promotion Committee. It is submitted that impugned criteria which have the effect of preventing the incumbents from acquiring the eligibility for being considered for promotion by the Local Promotion Committee, are illegal, arbitrary and violative of provisions of Article 14 of the Constitution. In the writ petition, the petitioner has also submitted the order (Ex. 6) dated November 18, 1981, whereby the candidature of the petitioner has been rejected, is arbitrary and illegal inasmuch as it does not assign any reason for not permitting the petitioner to appear in Part II of the S.A.S Examination. It has also, been alleged that other persons similary situated as petitioner, namely, Shri S.K. Sharma and Shri Charan Singh, have been permitted to appear in the examination and the petitioner has been denied the permission due to extraneous and irrelevent considerations. 5. A notice was issued on the aforesaid writ petition to the respondents requiring them to show cause as to why the writ petition should not be admitted. In response to the said notice, a reply has been filed on behalf (A' the respondents. In the said reply, it has been asserted that the Circular (Ex. R/1) dated May 21, 1981, was issued by the CGDA in the exercise of the powers conferred on him under Rule 9 of Schedule 'D' to Chapter 11 of the Manual and that the criteria laid down in Para 3 of the said circular are not arbitrary and have rational basis for promotion to the higher post inasmuch as a person whose service record is not good, is not entitled to be considered for promotion and an employee against. whom disciplinary proceedings for gross indiscipline are pending has no right whats over to be considered for the higher post. In the said reply, it has been denied that the order rejecting the candidature of the petitioner for the S.A.S. Examination Part II scheduled to be held on November 26. 1981, was rejected arbitrarily and it has been stated that since the petitioner was involved in a disciplinary case on account of his disregard to official superiors and their orders and scant regard for official discipline., He was not found suitable for admission to S.A.S. Examination Part II. 1981, was rejected arbitrarily and it has been stated that since the petitioner was involved in a disciplinary case on account of his disregard to official superiors and their orders and scant regard for official discipline., He was not found suitable for admission to S.A.S. Examination Part II. In the said reply, it has been pointed out that disciplinary proceedings were initiated against the petitioner on October 1, 1981, and a charge sheet was served on him, which was acknowledged by the petitioner on October 16, 1981 and that taking into consideration the aforesaid facts, the Board of Officers, who considered the intending candidates, did not recommend the candidature of the petitioner and the aforesaid recommendation of the Board of Officers was accepted by the C.G.D.A. In the reply aforesaid, it has been denied that Shri S.K. Sharma & Shri Charan Singh, are persons similarly situate as the petitioner and it has been stated that no disciplinary proceedings were pending against the aforesaid two persons and, therefore, their candidature for admission to the examination was recommended by the Board of Officers and the said recommendation was accepted by the CGDA. 6. The petitioner has filed a rejoinder to the aforesaid reply wherein it has been asserted that the disciplinary proceedings have been initiated against the petitioner mala fide at the instance of Shri A.V. Rao, who was Section Officer (Accounts) and that all the charges enumerated in the charge sheet were of in consequential nature and the punishment could not go beyond the minor punishment of censure and that on the basis of the aforesaid charge sheet, the rejection of the candidature of the petitioner was absolutely un-called for. 7. It appears that after the filing of the aforesaid rejoinder, the disciplinary proceedings initiated against the petitioner have terminated and the punishment of censure has been imposed on the petitioner in these proceedings. 8. Learned counsel for the parties requested that the writ petition may be finally disposed of at the stage of admission itself Arguments were, therefore, fully heard on the writ petition at the stage of admission. 9. Mr. 8. Learned counsel for the parties requested that the writ petition may be finally disposed of at the stage of admission itself Arguments were, therefore, fully heard on the writ petition at the stage of admission. 9. Mr. A.K. Mathur, learned counsel for the petitioner, has urged that the criteria that have been laid down by the CGDA in Para 3 of the Circular dated May 21, 1981, for the selection of candidates for admission to the S.A.S. Examination are ultra vires, the powers conferred on the C.G.D.A. under Rule 9 of Schedule 'D' to chapter II of the Manual in as much as the said criteria are inconsistent with the provision of Paragraph 92 of the Manual. The submission of Shri Mathur was that under paragraph 92 of the Manual, qualifying in the S.A.S. Examination only makes a person eligible for being promoted to the post of Section Officer (Accounts) in the Subordinate Accounts Service and that qualifying in the S.A.S. Examination does not automatically lead to his promotion to the post of Section Officer (Accounts) and that after a person has qualified in the S.A.S. Examination his fitness for promotion has to be adjudged by the Local Promotion Committee. Shri Mathur has submitted that the suitability and fitness of a candidate for promotion is to be adjudged on the basis of tee past record of service and that it is for the Local Promotion Committee to consider the past record of service for the purpose of adjudging the fitness of a candidate for promotion to the post of Section Officer (Accounts) and that under the impugned criteria laid down in Paragraph 3 of the circular (Ex. R/1) the said assessment of fitness of the candidate for promotion, instead of of being made by the Local Promotion Committee, as contemplated in paragraph 92 of the Manual, has to be done by the Board of Officers at the stage of recommendation of the candidature of the candidates for admission to the S.A.S. Examination. Shri Mathur has submitted that as a result of the aforesaid criteria laid down in para 3 of the circular, the Board of Officers would be exercising the functions which are required to be discharged by the Local Promotion Committee and that the impugned criteria are, therefore, inconsistent with the provisions contained in paragraph 92 of the manual. 10. Shri Mathur has submitted that as a result of the aforesaid criteria laid down in para 3 of the circular, the Board of Officers would be exercising the functions which are required to be discharged by the Local Promotion Committee and that the impugned criteria are, therefore, inconsistent with the provisions contained in paragraph 92 of the manual. 10. In my opinion, the aforesaid contention urged by Shri Mathur must be accepted. The circular (Ex. R/1) dated May 21, 1981, has been issued by the C.G.D.A. in the purported exercise of the power conferred on him under Rule 9 of Schedule 'D' to Chapter II of the Manual, which lays down that procedure to be followed in selecting suitable candidates for admission to the examination will be notified by the C.G.D.C. from time to time. The aforesaid power that has been conferred on the C.G.D.A undo, Rule 9 of Schedule 'D' cannot override the provisions contained in the Manual and has got to be exercised subject to the provisions contained in the Manual. In Paragraph 92 of the Manual, it is laid that the normal method of appointment to the Subordinate Accounts Service, Section Officer (Accounts) grade will be by promotion, as vacancies occur, of Selection Grade Auditors/Auditors/Clerks/Typists/KPOs./Stenographers, who have passed the S.A.S. Examination and who have been adjudged fit by the Local Promotion Committee. In Paragraph 97 of the Manual it has been further emphasised that the passing of the S.A.S. Examination does not in itself establish a right to be promoted the Section Officer's (Accounts) grade and that no one will be appointed to that grade unless vacancies exist and he is considered fully qualified by ability and experience to discharge the ditties of Section Officer (Accounts) and has been adjudged fit for such promotion by the Local Promotion Committee. The aforesaid provisions, contained in Paragraphs 92 and 97 of the manual, indicate that passing of the S.A.S. Examination is only a condition relating to eligibility which enables members of the Clerical, service namely, Selection Grade Auditors. Auditors Clerks, Typists, K.P. Os. The aforesaid provisions, contained in Paragraphs 92 and 97 of the manual, indicate that passing of the S.A.S. Examination is only a condition relating to eligibility which enables members of the Clerical, service namely, Selection Grade Auditors. Auditors Clerks, Typists, K.P. Os. and Stenographers, being considered for promotion to the post of Section Officer (Accounts) grade in the Subordinate Accounts Service and the passing of the S.A.S. Examination, by itself, does not entitle the person who has passed the said examination to be promoted to the post of Section Officer (Accounts) in the Subordinate Accounts Service and the question as to whether lie should be promoted or not has to be decided by the Local Promotion Commit tee after adjudging his fitness by taking into consideration his ability and past experience. In other words, it is the Local Promotion Committee, which has been entrusted with the task of assessing the fitness and suitability of the member of the Clerical Service, who is to be promoted to the post of Section Officer (Accounts) in the Subordinate Accounts Service. For the purpose of adjudging the fitness and suitability for promotion the Local Promotion Committee has necessarily to consider the service record of the person concerned. Under the impugned criteria laid down for C.G.D.A. in Para 3 of the circular (Ex. For the purpose of adjudging the fitness and suitability for promotion the Local Promotion Committee has necessarily to consider the service record of the person concerned. Under the impugned criteria laid down for C.G.D.A. in Para 3 of the circular (Ex. R 1) dated may 21, 1981, the Board of Officers has been empowered to screen the candidates for admission to the S.A.S. Examination and for the purpose of the aforesaid screening the Board of Officers are required to follow the following criteria:- (i) The Confidential Reports of a candidate for the previous two years should be free from any adverse remarks regarding his amenability to discipline, integrity and maintenance of cordial relations with fellow employees; (ii) He/She should not have been found wanting in keenness and willingness to undertake additional work and greater responsibility as evidenced by his/her record of last two years; (iii) He/She should not have been reprimanded for indifferent work and, (iv) Candidature of individuals against whom disciplinary cases are pending or contemplated should be considered with reference to the nature of the lapse of their partly Full facts of the disciplinary case pending against such individuals may be furnished." The aforesaid criteria postulate that the Board of Officers while recommending the candidates for admission to the S.A.S. Examination must take into consideration the past record of service of the candidates seeking admission to the S.A.S. Examination. It means that at the stage of recommendation of the candidates for admission to the S.A.S. Examination their fitness and suitability on the basis of past record would be considered by the Board of Office s and candidates who are adjudged unfit or unsuitable by the Board of Officers on the basis of their record of service judged in accordance with the criteria laid down in the Circular (Ex. R 1) well be denied the opportunity of appearing at the S. A. S. Examination as well as the opportunity of being considered by the Local Promotion Committee. In other words, the duty that has been entrusted to the Local Promotion Committee under Paragraphs 92 and 97 of the Manual, is to be discharged by the Board of Officers at the stage of recommending the candidates for admission to the S. A. S. Examination under the impugned criteria laid down in the Circular (Ex. R/1). In other words, the duty that has been entrusted to the Local Promotion Committee under Paragraphs 92 and 97 of the Manual, is to be discharged by the Board of Officers at the stage of recommending the candidates for admission to the S. A. S. Examination under the impugned criteria laid down in the Circular (Ex. R/1). It is not the case of the respondents that the Officers constituting the Board of Officers who are required to screen the candidate on the basis of the impugned criteria laid down in paragraph 3 of the circular (Ex. R/1) dated May 21, 1981, are also the members of the Local Promotion Committee. which is required to adjudge the fitness of the members of the Clerical Service for promotion to the post of Section Officer (Accounts) in the Subordinate Accounts Service under paragraphs 92 and 97 of the Manual. It must, therefore, be concluded that under the impugned criteria laid down in para 3 of the circular (Ex. R/1) dated May 21, 1981, the task of adjudging the fitness and suitability of the members of the Clerical Service for promotion to the post of Section Officer (Accounts) in the Subordinate Accounts Service has been conferred on the Board of Officers, which is a body different from the Local Promotion Committee and the impugned criteria contained in paragraph 3 of the circular are thus inconsistent with the provisions contained in paragraphs 92 and 97 of the Manual. 11. The impugned criteria laid down in paragraph 3 of the circular (Ex.R/1) suffer from another infirmity. Clause (iv) of the impugned criteria requires that while recommending the candidature the Board of Officers will take under consideration the nature of the lapse on the part of the candidates against whom a disciplinary case is pending or is contemplated. In other words, the candidature of a person may be rejected if a disciplinary case is pending or contemplated against him. It is well settled that the contemplation or the pendency of disciplinary proceedings against an employee by itself would not justify his non consideration for promotion to a higher post because till he is found guilty of the charges which have been levelled against him in the disciplinary proceedings, it cannot be said that he has committed the misconduct which is the subject matter of the disciplinary proceedings. In this regard reference may be made to the provisions of the Central Civil Services (Classification, Control and Appeal) Rules, 1965, which are applicable to the persons employed in the Defence Accounts Department. Under Rule 14 of the said rules the various penalties that can be imposed on a Government Servant have been prescribed. The said penalties range from dismissal from service to censure and withholding of promotion is also one of the penalties specified in Rule 14. This shows that the departmental proceedings which are initiated against a Government Servant, may result in imposition of any of those penalties. Denial of consideration for promotion to an employee against whom disciplinary proceedings are pending or are contemplated would, in substance, amount to imposing the punishment of withholding of promotion on him even though the charges winch are the subject matter of the disciplinary proceedings have yet to be established and ultimately the charges may not be established or if established, a lesser penalty than the penalty of withholding of promotion may be awarded in the disciplinary proceedings. Such a consequence has been avoided by the Manual. Paragraph 99 of the Manual provides that officiating promotion to the Section Officers (Accounts) Grade of those who have passed Part 11 of the S. A. S. Examination but against whom charge sheets are pending will be regulated in accordance with Ministry of Home Affairs O.M. No. 39/3/59-Exts. (A) dated 31.8.1960 as amended. This shows that the Manual postulates those persons against whom disciplinary proceedings are pending, should not be denied promotion to the post of Section Officers (Accounts) grade in subordinate Service. Clause (iv) of the impugned criteria laid down in paragraph 3 of the circular (Ex.R/1) dated May 21, 1981, in so far as it enables rejection of candidature of candidates against whom disciplinary proceedings are pending or are contemplated, is thus inconsistent with the provisions contained in paragraph 99 of the Manual. 12. Clause (iv) of the impugned criteria laid down in paragraph 3 of the circular (Ex.R/1) dated May 21, 1981, in so far as it enables rejection of candidature of candidates against whom disciplinary proceedings are pending or are contemplated, is thus inconsistent with the provisions contained in paragraph 99 of the Manual. 12. If the facts of the present case are examined, it would be noticed that the candidature of the petitioner was not recommended by the Board of Officers for the reason that the petitioner was "involved in disciplinary case-disobedience of reasonable orders of superior officials, lack of devotion to duty, not adhering to the required office procedure and work habits." It may be observed that the aforesaid consideration of the candidature of the petitioner by the Board of Officers took place on July 30/31, 1981. At that time, no formal disciplinary proceedings had been initiated against the petitioner and the said proceedings were initiated by memorandum dated October 1, 1981. In other words on the date the Board of Officers considered the candidature of the petitioner, disciplinary proceedings were contemplated against the petitioner. It is not disputed that the aforesaid disciplinary proceedings have now terminated and the punishment of censure has been imposed on the petitioner in those disciplinary proceedings. This would show that candidature of the petitioner was rejected on the basis of charges which did not justify the severe penalty of withholding the promotion but the effect of rejection of the petitioner's candidature for Part II of the S. A. S. Examination has resulted in denial of the right to acquire the eligibility for promotion to the post of Section Officer (Accounts) grade Subordinate Accounts Service and being considered for promotion to the said post by the Local Promotion Committee. In other words it has resulted in withholding of the promotion of the petitioner to the higher post of Section Officer (Accounts) in the Subordinate Accounts Service. 13. In other words it has resulted in withholding of the promotion of the petitioner to the higher post of Section Officer (Accounts) in the Subordinate Accounts Service. 13. The case of the petitioner thus illustrates the serious consequences following from the impugned criteria laid down in para 3 of the circular (Ex.7) dated May 21,1981, and demonstrates that the rejection of the candidature of a member of the Clerical Service for admission to the S.A.S. Examination on the ground that disciplinary proceedings are pending or are contemplated against him may result in the imposition of the punishment of withholding of promotion even though the charges, which are subject-matter of the disciplinary proceedings, are subsequently found to be of not such a magnitude as to warrant the said punishment. 14. In my opinion, therefore, the criteria that have been laid down in para 3 of the circular (Ex. R/1) dated May 21, 1981, issued by the C.G.D.A. cannot be upheld, and must be quashed and it must be held that the rejection of the candidature of the petitioner for admission to the S. A. S. Examination Part II, which was scheduled to be held on November 26, 1981, was illegal. Since the S. A. S. Examination Part II which was scheduled to be held on November 26, 1981, for which the petitioner had submitted his application, has already been held, no direction can be given for the petitioner being allowed to take the said examination. The respondents are, however, directed to allow the petitioner to appear in the next S. A. S. Part II Examination and if the petitioner qualities in the said examination and is ultimately found lit for promotion to the Subordinate Accounts Service Section Officer (Accounts) grade by the Local Promotion Committee, his seniority on the said post of Section Officer (Accounts) may be fixed on the basis that the petitioner had passed the Subordinate Accounts Service examination Part II held in November, 1981. There will be no order as to costs in this writ petition. *******