IMPORTANT POINT
Comptroller and Auditor General s notification to invite applications exclusively from Partnership firm of Chartered Accountants for Government Audit ignoring earlier policy of giving chance to proprietary Chartered Accountant is arbitrary, unfair and discriminatory and accordingly does not stand the test of reasonable classification of Article 14 of the Constitution.

JUDGMENT

Khare, CJI.-The respondent herein, is a sole proprietor of a Chartered Accountant firm in Ahmedabad, Gujarat. One of the statutory functions assigned to the appellant herein is to get the accounts of public sector undertakings and governments concerns audited by the Chartered Accountants. The audit work of the government and public sector undertakings is assigned to only those Chartered Accountant firms which are enrolled on the panel maintained by the appellant. In May, 1981, the appellant through an advertisement invited applications from the firms of the Chartered Accountants for the purpose of empanelment for audit of government companies. The aforesaid advertisement stipulated that excepting the States of Orissa, Jammu & Kashmir, Assam, Manipur, Meghalaya, Nagaland and Tripura, only the partnership firm of the Chartered Accountants were eligible for enrollment on the panel and the proprietary firms of the Chartered Accountants were made ineligible either to apply or to be empanelled for being assigned audit work of the government companies. However, in several States the proprietary firm based on those States was made eligible for being brought on the panel for audit work of government companies and concerns. It would be appropriate at this stage to extract the relevant clause 3 and sub-clause (d) of clause 4 to the advertisement, which runs as under :

"3. Particular reference is invited to Instructions 1 to 4 for filling up the form and the Footnote to Co. 1. Proprietary Firms based in the States listed therein only need apply".

4(d). The proforma should be signed by a partner on behalf of the firm .......... proprietary firms of F.C.As with registered offices in the following States only are being considered for audits in those States : Orissa, Jammu & Kashmir, Assam, Manipur, Meghalaya, Nagaland, Tripura" (emphasis supplied)

The respondent herein submitted an application for enrolment on the panel, but the same was rejected on account of the fact that his firm was not a partnership firm, but a proprietary concern. Aggrieved, the respondent filed a writ petition under Article 226 of the Constitution challenging the exclusion of the proprietary concerns from their empanelment as being discriminatory, arbitrary and violative of Article 14 of the Constitution. One of the reliefs prayed for runs as under:

"10. that the petitioner, therefore, prays that the Honorable Court may be pleased to issue in appropriate writ, order or direction declaring and setting aside the policy of the respondent which excludes the proprietary firm of F.C. As with registered office in the States other than the States of Orissa, Jammu & Kashmir, Assam, Manipur, Meghalaya, Nagaland and Tripura as mentioned in the advertisement at Annexure-B as unconstitutional, illegal, null and void and restraining the respondent permanently from adopting the said policy and not considering the firm of the petitioner for the purpose of empanelment as per Annexure-B."

2. The said writ petition came up for hearing before a Learned Single Judge of the High Court of Gujarat, who, by a judgment and order on 26.4.82 allowed the writ petition. The Learned Single Judge was of the view that the policy followed by the appellant was unreasonable and that such sub-classification had no real nexus with the objects sought to be achieved. The learned Single Judge while holding that the exclusion of proprietary concern from being enrolled on the panel is discriminatory issued following direction:

"....Hence, it would be just and proper to direct the respondent to include the name of the petitioner in the panel as stated above. It is also made clear that even in future as and when the respondent issues public notices inviting applications for empanelment in connection with entrustment of audit work of government companies, the respondent is enjoined to see that it does not insist in continuing the artificial sub-classification of chartered accountants who are carrying on profe