JUDGMENT

YOGESHWAR DAYAL, J :—This appeal by special leave is directed against the judgment of the Division Bench of the High Court of Allahabad dated 21st August, 1979 (reported in 1979 Lab IC 1355) whereby the High Court allowed the writ petition filed by the four petitioners therein and issued a writ of mandamus directing respondents 1, 2 and 3 (Comptroller & Auditor General of India, New Delhi, The Accountant General, I. U.P. Allahabad and the Union of India) not to enforce the circular dated 25th Jan., 1973 as a rule regarding reservation of Scheduled Castes and Scheduled Tribes in relation to filling up of posts by promotion on the basis of seniority subject to fitness. The aforesaid respondents were further restrained from promoting respondents 4, 5 and 6 in the writ petition to the post of Accounts Officers on the basis of the impugned circular dated 25th January, 1973. We would continue to refer to, the parties as per the cause title of the writ petition in the High Court.

2. The writ petition came to be filed by the petitioner , M.L. Mehrotra and three others .The petitioners said to be working as Section Officers in the office of the Accountant General I, II and III, Allahabad and they prayed for restraining respondents 1, 2 and 3 from promoting Yamuna Prasad Kureel, respondent No. 4, Ram Raj Ram, respondent No. 5 and Ram Dihal, respondent No. 6, in the writ petition, who were working as Section Officers and belonged to the Scheduled Caste to the post of Accounts Officer.

3. The case of the writ petitioners was that they were senior to respondents 4, 5 and 6 and they cannot be promoted to the post of Accounts Officers through seniority quota before the writ petitioners. Their case was that the promotion to the post of Accounts Officers is regulated by the rules made by the President in exercise of the powers conferred by proviso to Article 309 and clause (5) of Article 148 of the Constitution after consultations with the Comptroller and Auditor General of India. These rules are known as "Indian Audit & Accounts Department (Administrative Officers, Assistant Accounts Officers and Assistant Audit Officers) Recruitment Rules, 1963" (hereinafter referred to as the Rules). In the counter-affidavit filed it was pleaded that the Assistant Accounts Officers and Assistant Audit Officers are now called Accounts Officers and Audit Officers. The aforesaid rules lay down the method of recruitment to the post of Administrative Officers Assistant Accounts Officers and Assistant Audit Officers in the Indian Audit and Accounts Department. The method of recruitment laid down in these rules in respect of these posts is by promotion. They do not contain any specific provisions for reservation for Scheduled Castes and Scheduled Tribes.

4. The appellants herein relied upon the administrative instructions contained in the circular letter dated 25th January, 1973 issued by the Comptroller and Auditor General of India for the purpose of reservation for Scheduled Castes and Scheduled Tribes for these promotion posts. The writ petitioners challenged the validity of these administrative instructions contained in the circular dated 25th January, 1973.

5. It was further pleaded that the lowest post in the Office of the Accountant General U.P. I, II and III is of group D employees who are selected directly on the basis of merit. There is a quota fixed for Scheduled Castes and Scheduled Tribes. Then these are posts of clerks, a fixed quota percentage of which is filled in directly through examination and quota is fixed for Scheduled Castes and Scheduled Tribes. The remaining posts of clerks are filled in by selection from class D employees by promotion on the basis of seniority. The next higher posts are the post of Auditors. A fixed percentage whereof is filled in directly through examination and a quota is fixed for Scheduled Castes and Scheduled Tribes. The remaining posts of Auditors are filled in by promotion from clerks on the basis of seniority