Executive instructions can supplement statutory rules in determining seniority, and the passing of qualifying examination is crucial for establishing seniority.

Headnote:
Seniority - Section Officer - Indian Audit and Accounts Department Section Officer (Commercial Audit) Recruitment Rules, 1988, Comptroller and Auditor Generals Manual of Standing Orders (Administrative) Volume 1 - Rule 11, Rule 12, Paragraph 5.6.6 - The judgment discusses the determination of seniority of direct recruits to the post of Section Officers, the passing of qualifying examination for determining seniority, and the role of executive instructions in supplementing statutory rules.
Fact of the Case:

The appellants, direct recruits to the post of Section Officer, challenged the reckoning of their seniority from the date they qualified in the Section Officer Grade Examination for appointment as regular Section Officers. The controversy arose when their seniority was reckoned from the date of qualification in the examination, affecting their promotion prospects.
Finding of the Court:

The court found that the statutory rules were silent on the determination of seniority, and executive instructions were issued to fill the gap. It held that the passing of qualifying examination and the precedence of a Section Officer passing an examination first were crucial in determining seniority.
Issues: The main issue was whether executive instructions could supplement statutory rules in determining seniority and whether the passing of qualifying examination should relate back to the date of appointment for seniority purposes.
Ratio Decidendi: The court held that executive instructions could fill the gaps in statutory rules and that the passing of qualifying examination was essential for determining seniority. It relied on precedents to support the validity of executive instructions in determining seniority.
Final Decision: The appeals were dismissed as the court found them devoid of merits, upholding the determination of seniority based on the passing of qualifying examination and the precedence of Section Officers passing the examination first.

JUDGMENT

H.K. SEMA, J.

1. These two appeals raise a common question of facts and law and they are being disposed of by this common judgment. For the sake of brevity, we are taking facts from Civil Appeal No.5504 of 2003.

2. The undisputed facts are that the appellants are direct recruits to the post of Section Officer" (Commercial Audit) in the Audit and Accounts department. Their services are governed by the recruitment Rules known as Indian Audit and Accounts Department Section Officer (Commercial Audit) Recruitment Rules, 1988 framed by the President of India under Article 148(5) of the Constitution of India.

3. The Rule inter alia provides the method of recruitment is by promotion failing which by transfer/transfer on deputation and failing both, by direct recruitment. The Rule also provides that the period of probation is two years. Note to Rule 11 provides that during the period of probation they should qualify in the Section Officers Grade Examination (SOGE) for appointment as regular Section Officers.

4. It is contended by learned counsel for the respondents that having accepted the terms and conditions of appointment they are stopped from challenging the same.

5. The appellants were appointed on various dates on certain terms and conditions common to all. The terms and conditions inter alia read:-

1. The period of probation will be two years. This may however be increased or decreased at the discretion of the appointing authority. His/her appointment will be purely temporary and will be terminable at one months notice on either side.

2. During the period of probation he/she will have to undergo a regular course of training for such a period at such place and in such manner as may be prescribed. He/ she may also be assigned regular duties during the period of training.

3. During training the Section Officers Grade Examination (SOGE) will be conducted. He/She will have to qualify the SOGE (Both) Part I and II Examination within the period of probation. Those who fail to qualify the above exam are liable to be discharged from service. Candidates who pass this examination will be posted as regular Section Officer (Audit).

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6. On satisfactory completion of probation he/ she will be eligible for confirmation in the office where he/she is posted on a regular basis as Section Officer (Audit) subject to his/her being considered fit in all respect for permanent retention in the service. His/ her confirmation in the Section Officer cadre will not however give him/her any special claim to seniority. The seniority of direct recruits to the cadre vis-a-vis Departmental candidates passing regular Section Officer (Audit) Grade Part II Examination will be fixed in accordance with the seniority rules as at present viz that a directly recruited Section Officer (Audit) shall rank immediately below the last Section Officer (Audit) Grade Examination passed person officiating in the Section Officer (Audit) cadre on the date on which he takes over charge as Section Officer (Audit)".

6. The controversy arose when the seniority of the appellants as Section Officer was reckoned w.e.f. the date they were qualified in the Section Officer Grade Examination for appointment as regular Section Officers. Aggrieved thereby they preferred OA They claimed that the initial appointment as probation be reckoned towards the seniority for the purpose of promotion from Section Officer to AAO.

7. It is clear that in the Recruitment Rules of 1988 the Rule is silent as to how the seniority of the direct recruits be fixed.

8. The Comptroller and Auditor Generals Manual of Standing Orders (Administrative) Volume 1 was issued by an executive instruction.

9. Paragraph 5.6.6 provides that the seniority of the direct recruits to the post of Section Officers on passing Part II of the Section Officers Grade Examination shall be regulated by the following method:

(i) A directly recruited Section Officer shall rank immediately below the last Section Offi

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