Section 5 of The Comptroller and Auditor-Generals Duties Powers and Conditions of Service Act 1971

Section 5 of The Comptroller and Auditor-General’s (Duties, Powers and Conditions of Service) Act, 1971
Leave Entitlements and Authority

Original Text

5. Leave.—(1) A person who, immediately before the date of assuming office as the Comptroller and Auditor-General, was in the service of Government may be granted during his tenure of office but not thereafter, leave in accordance with the rules for the time being applicable to the Service to which he belonged before such date and he shall be entitled to carry forward the amount of leave standing at his credit on such date, notwithstanding anything contained in section 6.
(2) Any other person who is appointed as the Comptroller and Auditor-General may be granted leave in accordance with such rules as are for the time being applicable to a member of the Indian Administrative Service.
(3) The power to grant or refuse leave to the Comptroller and Auditor-General and to revoke or curtail leave granted to him, shall vest in the President.

Visual Summary

Govt. Service Background

Retains rules of previous service and carries forward accrued leave.

Non-Govt. Background

Leave is granted according to the rules applicable to the Indian Administrative Service (IAS).

Presidential Authority

The power to grant, refuse, revoke, or curtail leave vests solely in the President of India.

Summary

Section 5 defines the leave entitlements for the Comptroller and Auditor-General (CAG). It creates a distinction based on the appointee’s background: those appointed from government service retain their previous service rules and accumulated leave, while those appointed from other backgrounds follow the rules applicable to the Indian Administrative Service (IAS). Crucially, the section designates the President of India as the sole authority to approve or deny leave, ensuring the CAG’s administrative independence from government ministries.

Key Takeaways

Continuity of Service: CAGs appointed from government service do not lose their accumulated leave; they can carry it forward.
IAS Benchmark: For any CAG not from a government background, the leave rules are standardized to match the Indian Administrative Service.
Executive Discretion: The President holds the ultimate power to grant, refuse, or revoke leave, preventing interference from the Executive (Ministers).

Key Analysis

➤ Protection of Rights: Sub-section (1) acts as a safeguard for career civil servants. By allowing the carry-forward of leave, the Act ensures that accepting the constitutional post of CAG does not penalize an officer by wiping out their earned benefits.
➤ Standardization: Sub-section (2) provides clarity for “outsiders” (e.g., economists or experts). Instead of creating a new set of rules, the Act references the established IAS rules, ensuring the CAG is treated on par with the highest level of civil service.
➤ Constitutional Independence: Sub-section (3) is critical for independence. If a Minister or Department Head controlled the CAG’s leave, they could potentially pressure the CAG by denying leave. Vesting this power in the President removes this leverage.

Key Ingredients

Appointment as Comptroller and Auditor-General.
Determination of immediate prior status (Government Service vs. Other).
Application of relevant rules (Previous Service Rules or IAS Rules).
Presidential approval for grant or refusal of leave.

Related Provisions

Practical Illustrations

Example 1: The Career Civil ServantMr. Sharma, a senior IAS officer with 200 days of earned leave, is appointed as CAG. Under Section 5(1), he carries forward these 200 days. If he applies for leave, the rules of the IAS (his previous service) continue to apply to him.

Example 2: The External ExpertDr. Rao, a prominent economist from the private sector, is appointed as CAG. He has no prior government service. Under Section 5(2), his leave entitlements will be calculated exactly as if he were a member of the Indian Administrative Service.

Example 3: The AuthorityThe CAG wishes to take one month of medical leave. The application is not sent to the Ministry of Finance or Personnel; it is submitted directly to the President of India, who has the sole authority to grant it under Section 5(3).

Process Flowchart

Practice Questions

Q: Who has the authority to grant or refuse leave to the Comptroller and Auditor-General?

A. The Prime Minister
B. The Parliament
C. The President
D. The Chief Justice of India

View Correct Answer

Correct Answer: C. The President
Reasoning: Section 5(3) explicitly states that the power to grant or refuse leave vests in the President.

Q: Which rules apply to a CAG appointed from a non-government background regarding leave?

A. Supreme Court Judges Rules
B. Indian Administrative Service (IAS) Rules
C. Member of Parliament Rules
D. Central Civil Services Rules

View Correct Answer

Correct Answer: B. Indian Administrative Service (IAS) Rules
Reasoning: Section 5(2) specifies that “any other person” (non-govt) is granted leave in accordance with rules applicable to a member of the IAS.

Q: Can a CAG appointed from government service carry forward their accumulated leave?

A. No, all previous leave lapses
B. Yes, but only up to 30 days
C. Yes, they are entitled to carry forward the amount standing at their credit
D. Only if the President grants special permission

View Correct Answer

Correct Answer: C. Yes, they are entitled to carry forward the amount standing at their credit
Reasoning: Section 5(1) explicitly allows the carry forward of leave standing at their credit on the date of assuming office.

Frequently Asked Questions

Does the CAG lose their accumulated leave when they are appointed?

No, if the person was in government service immediately before becoming CAG, Section 5(1) allows them to carry forward all leave standing to their credit.

Can the Government (Executive) deny leave to the CAG?

No. The power to grant or refuse leave is vested solely in the President of India, not in any Ministry or Department, to ensure the CAG’s independence.

What rules apply if a private sector expert is appointed as CAG?

In such a case, Section 5(2) mandates that the leave rules applicable to a member of the Indian Administrative Service (IAS) will apply to the CAG.

Conclusion

Section 5 is a vital administrative provision that safeguards the rights of the Comptroller and Auditor-General while ensuring their independence. By preserving the accrued benefits of former civil servants and standardizing rules for others against the IAS benchmark, it ensures fair treatment, while vesting approval authority in the President insulates the office from political pressure.