The Constitution of India is the fountainhead from which all our laws derive their authority and force. This is next Article in the series on constitutional provisions in order to aid our readers in understanding them.
148. Comptroller and Auditor-General of India.—
(1) There shall be a Comptroller and Auditor-General of India who shall be appointed by the President by warrant under his hand and seal and shall only be removed from office in like manner and on the like grounds as a Judge of the Supreme Court.
(2) Every person appointed to be the Comptroller and Auditor-General of India shall, before he enters upon his office, make and subscribe before the President, or some person appointed in that behalf by him, an oath or affirmation according to the form set out for the purpose in the Third Schedule.
(3) The salary and other conditions of service of the Comptroller and Auditor-General shall be such as may be determined by Parliament by law and, until they are so determined, shall be as specified in the Second Schedule:
Provided that neither the salary of a Comptroller and Auditor-General nor his rights in respect of leave of absence, pension or age of retirement shall be varied to his disadvantage after his appointment.
(4) The Comptroller and Auditor-General shall not be eligible for further office either under the Government of India or under the Government of any State after he has ceased to hold his office.
(5) Subject to the provisions of this Constitution and of any law made by Parliament, the conditions of service of persons serving in the Indian Audit and Accounts Department and the administrative powers of the Comptroller and Auditor-General shall be such as may be prescribed by rules made by the President after consultation with the Comptroller and Auditor-General.
(6) The administrative expenses of the office of the Comptroller and Auditor-General, including all salaries, allowances and pensions payable to or in respect of persons serving in that office, shall be charged upon the Consolidated Fund of India.
There is nothing in the language of clause (5) to indicate that the rules framed therein were intended to serve until parliamentary legislation was enacted. All that the clause says is that the rules framed would be subject to the provisions of the Constitution and of any law made by Parliament. It is a settled law that unless a statute conferring the power to make rules provides for the making of rules with retrospective operation, the rules made pursuant to that power can have prospective operation only. Clause (5) of article 148 confers power on the President to frame rules operating prospectively only. Also, rules framed by the President have to be in conformity with the provisions of the Constitution and if they contravened any provision of the Constitution, they would be void to the extent of contravention.
Financial control of the administration is the bulwark of parliamentary democracy and for exercising financial control an independent audit agency is an essential pre‑requisite. The Constitution provides for a Comptroller and Auditor‑General of India being appointed by the President. To ensure the independence of this office from the executive government of the day, it has been provided that the Comptroller and Auditor‑ General shall not be removed from his office except on grounds of proved misbehaviour or incapacity, on an address passed by each of the two Houses of Parliament by two‑thirds majority of those present and voting and a majority of the total membership of each House being presented to the President in the same manner as applicable to the judges of the Supreme Court under article 124(4). Also, the Comptroller and Auditor‑General has been made ineligible for any other office under the Government of India or any State Government. His salary etc. is left to be determined by Parliament by law. The Comptroller and Auditor‑General (Duties, Powers and Conditions of Service) Act, 1971 as amended from time to time regulates the position. The salary, etc. of Comptroller and Auditor‑General have been equated with the judges of the Supreme Court. The service conditions of those serving in the Audit and Accounts Department and the administrative powers of the Comptroller and Auditor‑General are to be laid down by the President by rules framed after consultation with the Comptroller and Auditor‑General. The administrative expenses of the office of the Comptroller and Auditor‑General are to be charged upon the Consolidated Fund of India.
Source: Subhash C Kashyap, Constitutional
Law of India, Universal Law Publishing