Judgment

PATHAK, J.:- These appeals, by special leave, raise the question whether the respondents are entitled to claim fixation of their seniority in the Subordinate Accounts Service after taking into account their length of service as Upper Division Clerks. The respondents entered service in the Office of the Accountant General, Tamil Nadu as Upper Division Clerks. They appeared in the Subordinate Accounts Service Examination but it was only after a number of attempts that they succeeded in passing. They passed the examination held in November, 1969 and were promoted shortly thereafter. They claimed seniority on the basis that their length of service in the inferior post should be taken into account, and rested their claim on paragraph 143, of the Manual of Standing Orders issued by the Comptroller and Auditor General as it stood before its amendment by a correction slip of 27th July, 1956. The correction slip removed the factor of weightage on the basis of length of service in the determination of seniority. The claim was rejected by the Comptroller and Auditor General. A writ petition filed by them in the High Court of Madras was allowed by a learned single Judge, and his judgment was affirmed by an Appellate Bench of the High Court. Against the judgment of the Appellate Bench, the Accountant General, Tamil Nadu and the Comptroller and Auditor General have appealed to this Court, and those appeals are pending as Civil Appeals Nos. 1584 to 1588 of 1973. During the pendency of those appeals the President enacted the Indian Audit and Accounts Department (Subordinate Accounts Service & Subordinate Railway Audit Service) Service Rules, 1974, (referred to hereinafter as "the Rules of 1974"). The Rules of 1974, purport to give statutory recognition to the amendment of paragraph 143 by the Comptroller and Auditor General. The validity of the Rules of 1974 and the amendment made in paragraph 143 are assailed by the respondents in the instant appeals.

2. The Rules of 1974, have been enacted by the President. They are deemed to have come into force on 27th July, 1956, which has been defined, for the purposes of the Rules as the "appointed day". The Subordinate Accounts Service (the "Service") includes members appointed to it before the appointed day as well as persons recruited to it on or before that day. Rule 5 provides that recruitment shall be made by direct recruitment in accordance with the orders or directions issued by the Comptroller and Auditor General from time to time and also by promotion. Rule 6 provides :

"6. Appointments :-

Appointments to the Service shall be made from the list prepared in accordance with the orders and instructions issued by the Comptroller and Auditor General from time to time and applicable at the time of appointment to the service".

Rule 7 deals with seniority, and declares :

"7 Seniority :-

(1) The seniority inter se of the persons appointed to the service before the appointed day shall be regulated by the orders or instructions issued by the Comptroller and Auditor General as were in force at the relevant time before such day.

(2) The seniority inter se of the persons appointed to the service on or after the appointed day shall be in the order in which the appointments are, made to the service in accordance with Rule 6 :

Provided that a direct recruit shall on appointment to the service rank senior to all officiating persons in the service (excluding a direct recruit) passing in the same departmental examination or subsequent departmental examinations :

Provided further that the seniority of a person who had declined the appointment to the service but who is subsequently appointed to the service shall be determined with reference to the date on which he assumed charge of the post in the cadre."

3. By virtue of Rule 9, in matters not specifically provided for in the Rules, every person appointed to the service is governed by the rules, regulations, orders or instructions made or issued in respect of the Ce