348
E. P. ROYAPPA
v.
STATE OF TAMIL NADU & ANR.
November 23, 1973
[A. N. RAY, C.J., D. G. PALEKAR, Y. V. CHANDRACHUD,
P. N. BHAO;ATI AND V. R. .KRISHNA IYER, JJ.]
Constitution of India, Art. 3Z-Fundamental Right-Indian Administrative
Sen'ice (Pay) Rules 1954 r. 9 sub-r. (I)-Declaration of equivalence-Mere
violation of rule does not involve infringement of fundamental right.
Constitution of India, Arts. 14, 16-Transfer of acting Chief Secretary to
uon-cadre posts in the same grade as that of CVzief Secretary-Appointment and
confirmation of ju11ior in tile post of Chief Secretary-Material or1 record must
show that non cadre posts are inferior in 3tatus and responsibility.
indian Administrative Service (Pay} Rules, 1954-Rule 9 sub-rule (1)
Making of declaration sine qua non of exercise of power under sub-rule.
indian Administrative Sen·ice (Cadre) Rules 1954-Rule 4(2)-Scope of
second proviso.
Mala fides-Onus-Grave impwations against lrolder of office with high res
ponsibility--Court would be slow to draw inferences from incomplete facts.
The petitioner was a member of the Indian Administrative Service in the
cadre
of the
State of Tamil Nadu. In November, 1969, when the post of Chief
Secretary to the State fell vacant the petitioner, as the best suited, was selected
for the post. The draft order in regard to the appointment approved by the
Chief Minister. the second respondent. stated that the petitioner "is promoted nnd
posted as Chief Secretary rice [R] retiring from service with effect from the after
noon of November 13, 1969". The final order in the name of the Governor, duly
authenticated, issued
on
the same day, stated that the petitioner "is promoted and
posted to act
as
Chief Secretary to Government vice [R] who has been granted
refused leave
......
" The petitioner was aceordingly promoted as Chief Secre-
tary. On the recommendation of the State Government that the posts of Chief
Secretary and First Member of the Board of Revenue should be deemed to be in
the same category and should be inter-changeable selection posts the Central
Government by notification dated January 14, 1970 provided that the pay of
First Member, Board of Revenue was to be the same as that of the Chief Secre
tary. The post of First Member Board of Revenue was thus equated to that of
the Chief Secretarv in rank and status. By notification dated August 31, 1970
the Government of India enhanced the pay, rank and status of the post of Chief
·Secretary to that of the Secretary to the Government of India and that post was
raised above every other cadre post in the State including the post of First Mem
ber, Board of Revenue.
On April 17, 1971 the State Government accorded sanction to the creation of
a temporary post
of Deputy Chairman in the
State Planning Commission in the
grade of Chief Secretary for a period of one year and appointed the petitioner to
that post providing that he shall
be entitled to the same rank and
emoluments as
admissible to the post of Chief Secretary. The petitioner did not join thi.'l poot
and went on leave. On the petitioner's return from leave the post of Deputy
Chairman was again created for a period of one year in the grade of the Chief
Secretary and the petitioner was appointed to that post. Against ~ tho peti·
tioner made a representalion that the continuance of the post of Deputy Chairman
in the rank
of Chief
Secretary for a period of more than one year would be invalid
under r.
4(2) of the Indian
Administrath•e Service (Cadre) Rules, 195-4. Next
the State Government created a temporary post of officer on Special Duty for
streamlining and rationalising the Sales Tax Act, "in the grade of Chief Secretary
to the Government and appointed the petitioner to that post". He did not join
this post
too and proceeded on leave. After the petitioner was transferred from
the pust
of Deputy Chairman Planning Commission and appointed
Officer on
Special Duty for revision of Sales Tax laws the State Government abolished tbe
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E. P. ROYAPPA v. TAMIL NADU (~ay, CJ.) 349
post of Deputy Chairman ~anctioned under the earlier order and sanctioned the
creation
of
a new post of Deputy Chairman "in the Grade of First Member, Board
of Revtnue" on a pay of Rs. 3000/-per month and appointed a First Me!Jlber of
the Board of Revenue to that post. Besides, on the transfer of the petitioner
from the post of Chief Secretary a person who was admittedly junior to the peti
tioner was promoted as Chief Secretary and was confirmed in that post.
The petition.:r filed a petition under Art. 32 of the Constitution challenging
the validity
of his transfer from the post of
Chief Secretary, first to the J;IOSt of
Deputy Chairman State Planning Commission and then to the post of officer on
Special Duty, on the following grounds : viz. (i) it was contrary to the proviso
to r. 4(2) of the Indian Administrative Service (Cadre) Rules, 1954 and r.
9[sub-r. (1)] of the Indian Administrative Service (Pay} Rules 1954; (ii) it Wa!
violative of Arts. 14 and 16 of the Constitution as the poots of Deputy Chairman,
State Planning Commission and Officer on Special Duty were inferior in rank and
status to that of Chief Secretary; and (iii) that it was made in malafide exercise of
power, not on account of exigencies· of administration or public service, but be
cause the second respondent was. annoyed with the petitioner on account of
various incidents referred to in the petition and wanted him out of the way.
Dismissing the petition,
HELD :
Per Chandrachud, Bhagwati and Krishna Iyer, JJ : (i) The promo
tion of lhe petitioner as Chief Secretary was ooly in an acting or officiating capa.
city and not in n. substantive capacity. The draft order does not say whether the
promotion is in a substantive capacity
or in an officiating capacity. It
is the
authenticated order which says
for
the· first time clearly and definitely by using
the words "to act" that the promotion is in.an'officiating capa~ity. The authen
ticated order, in so far as it uses the words "to act" does no more than speak on a
matter on which the draft order was silent. The authenticated order correctly
reflects the final decision of the State Government. There is, th~. no inCOn·
sistency between the draft. order and authenticated order from which any error
can be spelt out in the authenticated order. [378H·37·9E]
The rc ipOndents are not correct in contending that the authenticated order
was the final order
and it was not open to the petitioner to say that it did not
correctly
reflect the order as made by the State Government. It is now w~ll
settled law that when an order is authenticated the only challenge that is excluded
by the authentication is that it is not an order made by th~ Governor. The
validity of such an order can be questioned· on ot_her grounds. [378A·C]
KH!sr Emperor v. Shivnath Banerjee, 72 LA. 241 and State of Bihar v.
Sonabati, [19611 1 S.C.R. 746, referred to.
(ii) Tl:e second proviso
to r. 4(2) of the Indian Administrative
Service
(Cadre) Rules has no application. The proviso merely confers limited authority
on the State Government to make temporary addition to the cadre for IIi period
not exceeding the limit therein specified.
The
State of Tamil Nadu could not add
the posts of Deputy Chairman, State Planning Commission and Officer on Special
Duty under the second proviso, as these posts did not exist in the Cadre as cons
tituted by the Central Government. They were new categories of pQsts created
by the State Government. [380A-E]
(iii) The making of a declaration setting out which is the cadre post to whiclt
a non·cadre post is_ equivalent is sine qua non of the exercise of the power under
sub-r. (1) of r. 9 of the Indian Administrative Service (Pay} Rules, 1954.
[381C·Dl
The determination of equivalence is therefore a condition precedent before a
member
of the Indian Admir.istrative Service can be appointed to a
non·cadre
post under sub·rule (1). The government must apply its mind to the nature and
responsibilities of the functions and duties attached to the non-cadre post and
determine the equivalence. Where
it appears to the Court that .the declaration
of equivalence is made without application
of mind to the nature and
resp!)nsi
bilities of the functions and duties attached to the non-cadre post or that extra·
neous or irr~levant factors are taken into account in determining the equivalence
or that the nature and responsibilities of the functions and duties of the two posts
are so dissimilar that no reasonable man can possibly say that they are equivalent
350 SUPREME COURT REPORTS [ 1974] 2 S.C.R·
in status and responsibility, or that the decision of equivalence is mala fide or in A
colourable exercise of power or it is a mere cloak for displacing a member oi
the Indiun Administrative Service from a cadre post which be is occupying, the
court can and certainly would set at naught the declaration of equivalence and
afford protection to the civil servant. [3 82A-F]
The order dated April 7, 1971 sanctioning the creation of temporary post of
Deputy Chairman and appointing the petitioner to the post has not in it any trace
of a declaration that the State Government found, on an objective assessment of
the nature and responsibilities of the functions and duties attached to the post of B
Deputy Chairman, that it. is equivalent in status and responsibility to that of Chief
Secretary. Further, the post of Deputy Chairman cannot be declared equivalent
in status
and responsibility to the post of Chief Secretary at one time
aD(] to the
post of First Member Board of Revenue at another. The nature and responsi
bilities of the functions and duties remaining the same the equivalence which
is u matter of objective assessment, could not vary from time to time. 'fhis
clearly shows
that the Government did not apply its mind and objectively deter-
mine the equivalence
of the post of Deputy Chairman, but, gave it a rank or
grade according as who was going to be
appointed to it. But the petitioner can- C
not now be permitted to challenge the vahdity of the appointment since in the
letter dated June
7, 1972 addressed to the second respondent-he accepted the
appointment without demur as
he thought that the post of Deputy Chairman
"was
of the same rank and carried the same emoluments as the post of Chief Secretary".
f384A·Gl
Similarly in making the orders dated June 26, 1972 and June 27, 1972 the
State Government did not apply its mind and objectively determine the equiva-
lence
of the post of Officer on
Special Duty, but gave. it a rank or grade accord- D
ing M who was the officer going to be appointed to it. There was thus no com
pliance with the requirement of r. 9 sub r. (I). But the petitioner cannot get
relief in a petition under Art. 32 since mere violation of r. 9 sub. r. (1) does not
involve infringement of any fundamental right. [385F-386B]
(iii) The contention that the transfer of the petitioner from the post of Chief
Secretary first to the post of Deputy Chairman and then to the post of Officer on
Special Duty coupled with the promotion and confirmation of a person junior to
the petitioner in the post of Chief Secretary was arbitrary and violative of Arts. E
14 and 16, though it may seem plausible, cannot be accepted, because, there is
no adequate material to sustain it. The premise on which this contention is
founded is that the posts of DeputY, Chairman and officer on special duty were
not of the same status and responsibility as the post of Chief Secretary. It can·
not be said on the material on record that the validity of this premise has been
established
by the petitioner. So far as the post of Deputy
Chall'lllan is concern·
ed the J?etitioner himself accepted that post as being of the same status and res·
ponsibihty as the post of Chief Secretary. Even though it is not possible to
accept the thesis that
the post of officer on special duty was equal in status and F responsibility to that of the Chief Secretary, equally, it is not possible to hold it
established on the materiar on record that this post was inferior in status and res·
ponsibility to the post of Chief Secretary, though prima facie it does appear to
be ~o. The challenge based on Arts. 14 and 16 must. therefore, fail. [388C·
389El
(iv) (Concurring with Ray,
CJ.): The burden of
estabtishinj! mala fides is
very heavy
on the person who alleges it.
The onus of establishing mala fides
against the second respondent has not been discharged by the petitioner. The G
Court would be slow to draw dubious inferences from incoiJll)lete facts placed
before it by a party, particularly when
the imputations are grave and they are
made against the
holder of an office which has a high respons_ibility in the
administration.
f390D-Fl
Per Ray C.J. and Palekar. J;
(i) The petitioner WI;!S not appointed substantively to the post of Chief Secre
tary. The gazette notification prevails over the draft orde{. The previous incum·
!Dent in the post of Chief Secretary held his lien on the post until the date of his H
actual retirement. The effect of fundamental rules 86 and 13(d) as they stood
prior to the commencement of the Constitution, is that an officer does not con-
tinue on dutv' but ·draws leave salary by virtue of a • privilege granted to him.
fhere !s no formal utension of service. He retains lien on his post. The post
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P. ROYAPPA v. TAMIL NADU (Ray, C.J.) 351
cannot be sub3tantively filled till he actually retires from service. Th~refore,
the petitioner did not have any right to hold the post of Chief Secretary. [355A-G, -
G]
{ii) It is not the case of the State that the post of Deputy Chairman Planning
Commission and Officer on Special Duty are c~dre posts within the ·meaning of
r. 4 of the Indian Administrative Service (Cadre) Rules 1954. The second pro
viso to r. 4(2) of the Cadre Rules does not confer any power on the State Gov·
ernment to alter the strength and composition of the Cadre. The meaning of
the second proviso to r. 4(2) is that the State Government may add to the cadre
for the period mentioned there one or more posts carrying duties and responsi
bilities
of the like nature of a cadre post. The posts so added do not become
:adrl': po'ts. [356C·Gl
(iii) The real significance of Rule 9 of the Indian Administrative S-ervice
(Pay) Rules is that members of Cadre posts cannot be deployed to non-cadre
posts unless posts are of a calibre which can be filled up by cadre men. The
purpose
of the declaration that the post is equivalent in status and responsibility
to cadre post specified
in the schedule to the Indian Administrative
Service (Pay)
Rules
is to ensure that
~embers of the cadre are not taken to posts beneath their
status and responsibility. The declaration is not one of mere form.
It is of
substance. A declaration in writing is desirab1e. The absence of a declaration
will not be an impediment in ascertaining the equivalent status and responsibility. Similarly, the presence of a declaration may not be conclusive if the declaration
is a mere cloak. The facts and circumstances has to be looked into in order to
find out whether there is in real substance equality in status and responsibility.
(358B-F; 360H; 361C]
The posts
of Deputy
Chairman Planning Commission and the Officer on
Special Duty were created for cadre officers to discharge duties and responsibi·
lities of a high order and must be counted as no less responsible than the top
most cadre posts.
The.se posts were not created all of a sudden with any oblique
purpose.. When the petitioner
was, posted to the new posts he was permitted to
draw his salary as Chief Secretary and when a First Member Board of Revenue
was appointed he took with him his salary as First Member. When the petitio·
ner was to occupy the post of Deputy Chairman or Special Officer the post was
graded to give him his old scale of pay and when the First Member was appoint
ed to these posts he was given his old scale as First Member. That the posts of
Chief Secretary and First Member were interchangeable, though the former !lOt
a higher salary, was recognised by the State Government and also endorsed by
the Central Government in 1970. There was therefore no upgrading or down
gradina of the posts. f361G-362·G]
The petitioner who was in the selection grade could .thus be transferred to any
of these. two posts of Deputy Chairman Planning Commission or Officer on Spe·
cia! Duty whtch were posts not lower in status and responsibility to the cadro
posts in Schedule III of the Indian Administrative Service (Pay) Rules 19S4. and
which carried the same salary as that of the Chief Secretary. The services or
cadre officers are utilised in different posts of equal status and responsibility
because of exigencies
of administration and for employing the best available
talent·
on the suitable post. There is no hostile discrimination in transfers from oae
post' to another when the posts are of equal status· and responsibility. [3620·
%301 .
(iv) (Chandrachud, Bhagwati and Krishna lyer, JJ concurring) ;
The entire affidavit evidence establishes b!yond any measure of doubt that the
petiti.:>ner"s .a11egations imputing mala fides against the Chief Minister are base
less. :rJte allegations of mala fides ate not contemporaneous but after thoughts
a! a~ d!stance <?f one year. The petitioner's allegations are in aid of suggesting
vmdtcttveness and vengeance on the part of the Chief Mioister. Facts and cir·
cumst::mces repel any such insinuation and innuendo. [371H-372F]
ORIGINAL JURISDICTION ; Writ Petition No. 284 of 1972,
Under . Art. 3 2 of the Constitution of India for the enforcement of
fundamental rights. · · ·
A. K.' Sen, S.' i. R('na, U.N. R. Rao, V.'Selv.araj and R. R. Agar-
Wala for the petitioner. ·
352 SUPREME COURT REPORTS [ 1974] 2 s.c.R.
S. Govind Swaminadhan, M. C. Setalvad, Ratnavel Pandian, S.
Mohan, A. V. Rangam, Habibullah Ba.rha, N. •S. Sivam, D. Rtt;u and
A. Subashini, for respondent no. 1.
S. V. Gupte, S. Ratnavel Pandian, S. Mohan, A. V. Rangam, D.
Raju and A. Subhashini, for respondent no. 2.
F. S. Nariman and M. N. Shroff, for inrervener.
TAe Judgment of.. A. N. RA:Y, C.J._ and D. G. PALEKAR J. was deli
vered by RAY, C.J. A separate opinion of Y. V. CHANDRACHUb,
P. N. BHAGWA.TI and V. R. KRISHNA IYER, JJ. was given by BHAGWATI,
J.
RAY, C.J. The petitioner in this writ petition under Article 32 of
the Constitution asks for a mandamus or any other appropriate writ,
direction
or order directing the respondents to withdraw and cancel the
order dated 27 June,
1972. The petitioner further asks for direction
to
re·post the petitioner to the post of Chief Secretary in the State of
Tamil Nadu. The respondents are the State of Tamil Nadu and the
Chief Minister of Tamil Nad~J.
The petitioner is a member of the Indian Administrative Service
in the cadre of the State of Tamil Nadu. On 2 August, 1968 the peti
tioner was confirmed in the Selection Grade of the Indian Administrative
Service with effect from 22 May, 1961. There were 8 Selection Grade
posts in the State of Tamil Nadu. The petitioner was No. 4 in that
list. The petitioner
in the years 1964, 1965, 1966, 1968 and 1969 was
posted
to act as Fifth Member, Board of Revenue; Fourth Member,
Board of Revenue; Third Member, Board
<lf Revenue; Second Member,
Board of Revenue. On 5 April, 1969 the petitioner was posted to
act as Second Member, Board of Revenue. On 11 July. 1969 the
petitioner was posted to act as Additional Otief Secretary.
· On 11 July, 1969 the post of Additional Chief Secretary was tem
proraily created in the grade of Chief Secreatry for one year. 111e
State Government further directed that. the post o~ Chief Secretary to
Government, Additional Chief Secretary to Government and the First
Member, Board of Revenue were deemed to be in the same category
and they were inter-changeable selection posts.
On 7 August, 1969 the State of Tamil Nadu wrote to the Central
Government to amend Schedule III-A of the Indian Administrative
Service (Pay) Rules, 1954, so that the posts of Chief Secretary to
Government, Additional Chief Secretary to Government
and First Member, Board of Revenue could be of the
same cadre carrying the same pay. The Government of India by a
letter dated 26 September, 1969 stated that the status of Chief Secretary
as the head of the Secretariat organisation in the State should remain
unquestioned. The view
of the Central Government was that the status
of Chief
Secretary should not be allowed to be diluted by the creation
of the post of Additional Chief Secretary carrying the same status and
emoluments as the Chief Secretary. The Central Govt. also stated that
the post of Additional Chief Secretary was not a cadre post. The
Central Government, however, expressed the view that the post of
First Member, Board
of Revenue in the State should carry pay as ad
missible to the Chief Secretary.
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E. P. ROYAPPA v. TAMIL NADU (Ray, C.J.) 353
On 13 November, 1969 the petitioner was posted to act as Chief
Secretary to Government with effect from the afternoon of 13 Novem·
ber, 1969 vice C.A. Ramakrishnan whose date of superannuation was.
14 November, 1969 who has been granted refused level with offect from
14 November, 1969.
On 7 April, 1971 the petitioner was appointed .Deputy Chairman
of the State Planning Commission, That post was created temporarily
for a period o~ one year in the grade of Chief Secretary to Government.
The petitioner did not join the post. The petitioner went on leave
from 13 April, 1971 to 5 June, 1972. When· the petitioner was on
leave. Raja Ram, the First Member, Board of Revenue was by an order
dated
18 August, 1971 asked to hold the additional charge of the post
of Deputy Chairman
for, one year with effect from 13 August, 1971.
On 6 June, 1972 the petitioner returned from leav~. He was again
posted as Deputy Chairman,· State Planning Commission on a salary
of Rs. 3500/-per month. The petitioner did not join that post. The
petitioner
pointed out that the post of Deputy Chairman
which was
created for one year did not exist after 13 April, 1972.
By an order dated 27 June, 1972 the Government of Tamil Nadu
accorded sanction to the creation of a temporary post of Officer on
Special Duty in the· grade of Chief Secretary to Government for a period
of one
year from the date of appointment or till the need for it ceased
whichever was earlier. By the same order the petitioner was
trans·
ferred and appointed as Officer on Special Duty in the post sanctioned
afores;aid. The petitioner did not join that post, The petitioner in
the month of July, 1972 filed this petition.
The petitioners oontentions were these. ·First, the petitioner is.
appointed ~o a post or transferred to a post whicih is not validly created.
The post of Officer on Special Duty is said to be rtot a post carrying
duties and responsibilities of a like nature to cadre posts within the
meaning of Rule 4 of the Indian Administrative Service (Cadre) Rult!s,
1954. Second, under rule 9 of the Indian Administrative Service
(Pay) Rules, 1954 no member of the Service shall l;>e appointed ta
a post other than ~ po_st specified in Schedule III unless the Stale
Government concerned in respect of posts under its control ot the Cen
tral Government in respect of posts under its control, as the case
IJlay be, make a declaration that the s~id post is equivalent in status
and responsibility to a post specified in the said Schedule. It is, there·
fore. said that the petitioner who is a cadre post holder, viZ., holding
th.e post of Chief. Secretary cannot be posted to a non-scheduled post
wtthout a declaration that the non-scheduled post is equal in status and
responsibilities to a scheduled post. Third, the. petitioner is posted
to an office which is inferior in status and office to that of the Chief
Secretary. Therefore, the order is a hostile discrimination offending
Articies 14 and 16 .... Fourth, the creation of the post as well as the
appointment and transfer of the petitioner to the post is malafide.
In this context it is to be ascertained as to whether the petitioner
was appointed to the substantive post of Chief Secretary to the State
of Tamil Nadu. The petitioner relied on draft order of the Chief
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I ;J54 SUPREME COURT .llEPORTS [ 1974) 2 S.C.R.
~inister dated 13 November,_l969 which stated that the petitioner
1s. promoted and ~sf¢ as Chief Secretary". The petitioner also
rehe~ on the followmg note o~ the Chief Minister at the time of the
passmg of the order. There were
11 senior
I.C.S./I.A.S. Officers
borne on the Tamil Nadu State Cadre. The petitioner's position
was No. 10 in the list of Senior I.C.S./I.A.S, Officers borne on the
Tamil Nadu State Cadre. Ramakrishnan, the then Chief Secretary
was No. 1 in the list. ,Kaiwar, Subramanyam, Mani, Govindan Nair,
Vaidyanathan, Ramachandran, Raman, Raja Ram were ·above the
petitioner in the list. Ramakrishnan and Kaiwar were retiring from
service
in the month of November, 1969.
Subramanyam and Gavin
dan Nair were acting as Secretaries to the Government of India.
Vaidyanathan was away from the State for over 8 years and was
working under the Central Government. Ramchandran and Raman
also working under the Government
of India since 1955 and 1959
respectively. Rajaram had left
the
State Cadre in 1960. In 1969
Rajaram
was the
Special Representative to the Government of Tamil
Nadu. The choice
was between Mani whose position was No. 4 and
the petitioner. Mani's work was not satisfactory during the
flood
relief operations in 1967. There was adverse criticism on his work
from the public and the press. The petitioner
was commended by Jtis superiors to be dynamic, efficient, vigorous. The petitioner was,
therefore, described by the Chief Minister to be best suited for the
:post.
It thus appears that the Chief Minister's note as well as the draft
order stated that the petitioner
was promoted and posted as Chief
Secretary. But the Gazette
Notification dated 13 November, 1969
was that the petitioner was "promoted and posted to act as Chief
Secretary
to the Government vice C. A. Ramakrishnan, who has been
granted refused leave with
effect from 14 November, 1969". The
Gazette notification prevails over the draft order.
The substantive appointment of the petitioner
was in the selection
grade of Rs.
1800-2000. The petitioner was appointed on 13 ·Novem
ber, 1969 to act as Chief Secretary. It was a temporary appointment.
He was not appointed substantively to the post of Chief Secretary.
The fact that the petitioner was not appointed substantively to the
post of Chief Secretary
will appear from the note signed by
t1te
petitioner himself on 16 November, 1970. When Ramakrishnan went
on refused leave for four months from 14 November, 1969 there was
no substantive vacancy in the post of Chief Secretary. The petitioner
in his note dated 16 November, 1970 stated that the p05t of Chief
Secretary fell vacant substantively from 14 March, 1970 and was
available for confirmation of an officer. The petitioner signed the note
as acting Chief Secretary. The note
was put up as to whether there
was any objection
in
"confirming the petitioner as Chief Secretary. No
order
was passed on that note.
Under Fundamental Rule 56(£) a member of the Indian Civil
Service shall retire after 35 years' service counted from the date of
his arrival in India. Ramakrishnan completed 35 years' service
on 14
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E. P. R.OYAPPA v. TAMIL NAI>U (Ray, C.J.) 35S
November, 1969. When the petitioner was posted on 14 November,.
1969 to act as .Chief Secretary, Ramakrishnah went on what is des-.
cribed as refused leave fpi four monthS. Under Fundamental Rulo
86 clause (c) the grant of refused' leave exttnding beyond the date
on
which a
Government servant must compulsorily retire or beyond
the date upto which a Government servant has been permitted to
remain in service, shall not be construed as an extension of service.
Fundamental Rule 13(d) provide• that a Government servant ceases.
to ·retain lien on a permanent poet while he is on refused leave gran·
ted after the date of compulsory retirement under Fundamental Rule·
56 or correapondifli other Rules. The effect of refused leave under
the Fundamental Rules iJ that there is no extension of service by the
~rlod 'of that leave~ Apln, during the period of refused leave there
is no earqina of ~na.ion. · CoWllel for the petitioner relied on Funda
mental Rules 56(f) and 86(c) and contended that the post of Chief
Secretary fell vacant as Ramakrishnan di~ not hold a lien on his post.
It was contended! that the petitioner was appointed in an officiating
capacity to the J)Oit· of Olief Secretary and reliance was placed on
Fundamental Rule 9(19). Under that Rule a Government servant
officiates/in a post
when he perform the duties of a post on which
another person holds a lien or the Government may, if it
thinks fit,.
appoint a Government servant fo officiate in a vacant post on which
no other Government servant holda a lien.
Rarnakrishnan, who was on refu$ed leave being a member of ·the
Indian Civil Service, was entitled under Article 314 of the Constitu
tion to conditions of &ervice as respects remuneration, leave and
pension to which membert of the avu Service \were entitled immediate
ly before the commencement of the Constitution. Fundamental Rule
U(d) as it stood prior to the commencement o~ ·the Constitution
provided for the retention of lien on a permanent post while on leave
without making any exception with regard to refused leave. Funda
mental Rule 86 as it stood prior to the commencemen~ of the Constitu
tion did not cOntain any [provision to the effecf that the grant of refused
leave would not amount to extension of service. The Government
ot .India. Finance Department Notification No. 520-CSR dated 31
May, 1922 contained the Government decision that the grant of leave
under Fundamental Rule 86 automatically carried with it the extension
required and no formal sanction to the extension was necessary. nie
effect of Fundamental·Rules 86 and 13(d) as they stood prior to the
commencement of the Constitution is that an Officer does not continue
on duty but draws leave salary by virtue of a privilege granted to him.
There is no formal extension of service. He retains lien on his post.
The post cannot be substantively filled till he actually retires from
service.
The Fundamental Rules of the Madras Government corrected
upto 30 June, 1966 issued by the Finance Department, 2nd Ed. 1966
at. pages 133-134 contain a note appended to Fundamental Rule 56
of Tarilil Nadu State Government. In that note an exception in res
~t of Indian Civil Service Officers is created by providing that in
th~ ·case of an Officer of the former Secretary of State Service the grant
356 SUPREME COURT R:EttORTS [ 1974 ] 2 s.c.R.
oJ such leave shall be treated as sanctioning an extension of service
upto the date
on which the leave expires.
· Therefore, Ramakrisbnan
held lien on his p0~ untU 14 Mirch, 1970.
The petitioner in the note for circulation dated
14/16
November,
1970 prepared by the Joint Secretary, Public Department, noted that
the date of retirement of Ramakri9hnan would take effect from the
date of expiry ofthe refused leave, namely, 14 March, 1970. That ia
why the"petitioner asked to be confirmed as Chief Secretary with effect
from 14 March, 1970. The petitioner was, however, not confirmed
in the post. Therefore, the petitioner was not substantively appointed
to the post of Chief Secretary. The petitioner's substantive appoint
ment wa
51 in tlie selection grade of Rs. 1800-2000. The petitioner
during the period of refused leave of Ramakrishnan acted as Chief
Secretary by way of a temporary arrangement. The petitioner did not
have any right to hold the post of Chief Secretary.
It was contended that neither the post of Deputy Chairman, Plan
ning Commission nor the post of Officer on SpeciarDuty was a cadre
post within the meaning of Rule 4 of the Indian Administrative Service
(Cadre) Rules, 1954. The Additional SoliCitor General as well as
the Advocate General of
the
State did not contend that either of the
posts was a cadre post within the meaning of the Indian Administrative
Service (Cadre) Rules. The strength and: composition of the cadre
as contemplat:.ed by Rule 4 of the Indian Administrative ·Service
(Cadre) Rules is to be determined by the Central Government in
consultation with the State Government. The relevant provision is
sub-rule
(2) of Rule 4. It states that the Central Government shall
at
the interval of every three years re-examine
the strength and com·
position of each such c_adre in consultation with the State Government
or the State Governments concerned and may make such alterations
as it deems fit. There are two provisos in the sub-rule. The first
proviso states that nothing shall be deemed to affect the power of the
Central Government to alter the strength and composition of the cadre
at any other time. The second proviso states that the State Govern
ment may add for a period not exceeding one year and with the approval
of Central Government for a further period not exceeding two years,
to a State or joint cadre one or more posts carrying duties and respon
sibilitits of a like nature of cadre po9.1:s. It. therefore, follow3 that
the strength and composition of the cadre shall be determined by re
gulations made by the Central Government in consultation with the
State Government. The State Government alone cannot alter the
strength and composition
of the cadre.
The aforementioned second proviso to Rule
4(2) of the
Cadre
Rules does not confer any power on the State Government to alter
the strength and composition oft the cadre. If s.uch power were
conferred d:t the State examination of the strength and composition.
at the interval of every three years by the Central Government in
consultation with the St.ate Govemment would be nullified. The mean
ing of the second proviso to rule 4 ( 2)
is that the State Government
may add for a period mentioned there to the cadre one or more posts
A
B
c
D
B
Jl'
G
H
B
D
E
F
G
H
E. P. ROYAPPA v. TAMIL NADU (Ray, CJ.) 357
carrying duties .and responsibilities of the like nature of a cadre post.
The posts so added do not become cadre posts. These temporary
posts do not increase the strength of the Cadre. The addition of the
post of Deputy OJ.airman, Planning Commission or Officer on Special
Duty to the Indian A4ministrative Service Cadre of Tamil Nadu State
is not permissible because that would result in altering the strength
and composition of the Cadre. The State has no such power within
the second proviso
to rule 4(2) of the Cadre Rules.
·
Cow1sel for the petitioner contended that the pos:t of Deputy
Chairman, Planning Commission as well as the post o:fi Officer on
Special Duty was not equivalent in: status. and responsibility to the post
of Chief Secretary to Government within the meaning of Rule 9(1)
of the Indian Administrative Service (Pay) Rules, 1954. The peti
tioner alleged
that both the
post51 were upgraded or downgraded de
pending upon the persons to occupy them and tlierefore the posts
were not equivalent
in status and responsibility( to the post of the
Chief
Secretary. When the petitioner was appointed to the post of
Deputy Chainnan, .Planning Commission it was upgraded. When
Rajaram was appointed to hold an additional charge of Deputy
Chairman
in addition to the post of First Member, Board of Revenue
it was downgraded. When the petitioner was appointed to occupy
the
pOst the post was said to be equivalent to that of Chief Secretary.
When Rajaram was appointed it was downgraded to the level of the
First Member, Board
of Revenue. The post
of Deputy Chairman,
Planning Commission was created fp~ one ~ear in the month of April.
1971.
On 26 June, 1972 the
State created a new post; of Special
Officer for COmmercial Taxes which was stated to be of the rank of
Member, Board
of Revenue. On 27 June, 1972 the petitioner was appoiQted to that pQst in the grade of Chief Secretary for a period of
one year or till the need of the post ceased whichever was earlier.
The petitioner alleged that on 26 June, 1"972 when the post of Special
Officer for Commercial Taxes was created it was supposed to be of
the rank of a Member, Board of Revenue but on 27 J~ne, 1972 the
post was upgraded and regarded as of the grade
of Chief Secretary.
When . the
~titi~n~r did not tak_e charge as Deputy Chairman of
the Plannmg Comnuss1on on 7 Apnl, 1971, the Government directed
Rajaram, the senior most officer in the State who was the First, Member
Board of Revenue
to hold additional charge. Again when· the
peti:
tioner did not join-on 6 June, 1972 ·as Deputy Chairman of the Plan
ning Commission, it was decided to post Rajaram in his place.
Rajaram was draw~g only a salary of Rs. 3000/-per month. The
post of Deputy Chairman was to be filled either by the petitioner or
. by Rajaram. The post was not inferior_ The Planning Commission
is an advisory body to .th~ Govemment like the P1annin~ Commission
at the .c~ntre. The ~i~f Minister is ~e Chairman of the Planning
CommiSSIOn. The petitiOner was drawmg a· salary of Rs. 3500/
per month when he acted as Chief Secretary. Therefore, the post of
Deputy Chairman, Planning Commission carried .a pay of Rs. 35001-
per month when the petitioner was apoointed as Deputy Chairman of
the Planning Co.mm.ission. The upgrading· and 'the downgrading of the
,-,•
358 SUPREME COURT REPORTS [ 1974] 2 s.c.tt.
post of Deputy Chairman, Planning Commission alleged by the peti
tioner is not correct. The post was not upgraded or downgraded. The
jncumbent of the post carried a higher or a lower salary according to
the salary enjoyed by the incumbent at the time of the appointment.
Broadly stated, the QCtitioner's_ contentions about the tw
0 posts
of Deputy Chairman, Planning Commission and the Officer on Special
Duty were first that there was no declaration in accordance with Rule
9 of the Indian Administrative SerViee (Pay) Rules thai' the posts
were equivalent in status and responsibility to a post specified in the
Schedule
to the aforesaid Rules; and, secondly, that the functions and
responsibilities of the two
pbs.ts were such that no comparison could
be made between those posts and the pests in the Schedule.
Rule
9 speaks of a declaration that the post is equivalent in
iitatus
and responsibility to a. post specifi.ed in Schedule III to those Rules.
Sub·rule ( 4) of rule 9 states that where equation-.Qf posts is not possi
ble the State Government or the Central Government may, for sufficient
reasons
to be recorded in writing appoint a member of a service to
such a post without making a declaration. It is,
thererore, said on
behalf of the petitioner that a declaration in writing is necessary where
a post is declared to be ... 1uivalent in status and responsibility just as
reasons are to be recorded in writing where it is not possible to have
a post equivalent in status and responsibility. In other words it is
said that in one case it is a declaration in positive terms that the post
is equivalent in S!tatus and_ responsibility and in the othetl case the
declaration is negative
in content that though the post is not equivalent
in
stafus and responsibility yet a cadre officer ofl the Service is appoint
ed to such a post. It is not in dispute that the. posts. of Deputy Chair
man, Planning CommiSJSion and the Officer on Special Duty carried
the same pay as
that of the Chief
Secretary. It cannot be said that
equal pay will by itself alone be decisive -of the equation of status
and responsibili~ of the pgst. But·pay scale Will primarily show status
~ responsiliiHties of equal nature.
The Chairman of the Planning Commission is the Chief Minister.
The Planning Commission is a high powered Commission. The posi
tion of the Depu tv Chairman is equal in status and responsibility to
the duties oft the Chief Secretary. The real significance of aforemen
tioned Rule 9 is that Members of Cadre posts cannot be deployed to
non-cadre posts unless posts are of a calibre which can be filled up by
Cadre men.
It also appears that the State since the year 1970 had been contem
plating the setting up of a Planning Commission. In the month 0£
March. 1970 the Finance Department prepared a note that a Planning
Commission was necessary in industrial project, power project and
irrigation. A properly organised plan for a region is to be an adjust·
ment
of the continuing rate of growth of economic product and a plan
of continuing investments. A plan of long term development is
n.eces·
sary. Such a plan would spell out the various resources which can be
utilised and the manner in which the fuller life can be attained by the
people. The Finance Department of the State in 1970 advocated en-
c
F
G
H
··.,......
E. P. ROYAPPA v. TAMIL NADU (Ray, CJ.)
359
,
01cnt
of ll group oE qmt\ificd economists to ":ork in collaboratiort
A
~7ft
the Institute of Economtc Growth, New Dclha. The ,')tate wanted
1
~
1
set up an Institute ~C Econom_ic Planning,_ to work with the advice
f til· National Councrl of Appltcd Ecoaomac Research. A separate
de ar~ment of planning was suggested by the State. The reason was
10
~ave the advice of experts with knowledge in the specialised ficlo.
The petitioner as the Chief Secretary on 23 March, 1970 did nO'l
~'
.; acc~pt the advice of the Fmance Secretary of the State. He was
ngainst the propos~! to e~~r~st formulat!on of pia~ to a body of experts.
The pctition~r advtscd utthsmg the servtccs of scmor officers of Govern-
ment d~partmcnt and enlisting the services of experts in any particular
J spherc·of activity or project, if foul)d necessary. The Ch1cf Minister
f on 2.5 De-cember, 1970 recorded a note that a !()..year plan was neccs-
C s:uy. The State Plannin~ Commissi_o~ was set up in . the mon_th of
April, 1971. The Plawung CommiSSion was to cons1st of Chatrman,
Deputy Chairman, Members, Secretary ::md Deputy Secretary. The
Chid Minister was to be the Chairman. A full time officer in the
gr.tde of Chief S.:crctary was to be the Deputy Chairman. The Plan
ning Commission was to achieve the d~clarcd objectives of the Govcrn-
0 m~ot to promote a rapid ri~e in the standard of living of the people.
The other objects were to .~ee thnt the ownership and control of the
material resources of the community are so distributed as to sub-serve
th~ common good. The character and content of the Plannin~ Com
ntt>~ion ~tows that the Chairman being the ChicO Minister the Deputy
! .. ~ E
C'n.11rman was equal in status and responsibility to the post of the
Chd Secretary.
Tile Swte Gowrnm.:nt in the year 1969 sanction~d the constitution
;: of a. slathtical cell for preparin~ scientific;dly processed data of pro-
\
':.
duct10n and
the source ofi production of various cornmoUitics liable
to ~b tax. A scicntiJic attulysis was also maJc of the pattern of
traiL: and revenue accruing from different sections of the tratlc. In
rhr~ month or August. 1 970 the Government e~amined the suggl'sti0n
~; ~
0
.
the Commissioner,
Commercial Tuxes to con.,titut.: an expc'rt com-
l
• ·
fllll~e
to look into the various a~pccts of saks tax. Tn the month
~ Octo~cr , 1970 the Chi cr. Minister indicated that a committee might
·. \U~~ ~s~~~thteddf orf goit.lg i
1
~to tl_ae w0rl.:in!!
1
of_ t
1
hc. sales ta:o: law a[nd hto ·
I
'.·· mo
1
~ ~ or ~mp 1ficntton of the eg1s auvc measures. n t e
of ~
1
?f. Apr~. I 971 thl! Chief Minister reviewed the important a'pccts
C ,i1
~ ~~~~ ~traltun Hf Contml!rciH! Ta~es D.:partmcnt. There wer.:: p.:r-
ihern CJUands !rom one section o( the trade !or single point \.:\')".
! · ing ~~ '~>tl: al_so ~etn(lnd s from the ~,ther section r<1r changing th~ exist-.
=4'Jl0il f e pomt ttems to multi pomt levy ofl sales tax. The td.:a <If
rnt
11
t ~ ',\!: a committee was still eng~ging the attention ot the Govcrn-
1() c~n t' n_ote· was prepared by the Re\'enue D<:partment with regard
':
() the ,~
1
! tiUlton of a committee to unt.lertakc a comprehensive study of
ll!oo~
1
sf talt mucture in tho State. Eventu:rlly the Government in the
Strvice
0
June, 1972 deckled to appoint a senior Int.lian Administrative
T:unil N~~cer. for '"Streamlining and relationalis ing" ·the struct~re of
11
C'c'lllrner .. ~ General Sales Ta:o: Act and similar enactments rdaung to
-t~~~upc~~~ Taltes ant.l Rules made thereunder, · · ,
......
--...
•
360 SUPREME COURT REPORTS ( 1974] 2 S.C.R·
The State General Sales Tax and other Commercial Taxes for long
eontributed the preponderant share towards the revenue receipts of
the State. Sales Tax played a significant role in the context of deve
lopment programme of the State. These taxes fetched Rs. 112 crores
in
1971-72. The General
Sales Tax Act was enacted in 1959. In
order to meet the situations arising from changing patterns of trade
and commerce, the interpretations of the Act by courts of law, the
discovery
of loop-holes in the statutory frame-work, the
S3les Tax Act
has been amended from time to time. The Chambers of Commerce
represented to the Government for simplification and rationalisation
of the
lax structure and statutory _pr<Y-edures and practices. It iSl in
this context that the State Government created the post of Officer on
Special Duty.
The Officer on Special Duty was entrusted to deal with these
matters. First,, there
is to be general review of the commercial Taxes
Acts from the point of view of the rate of growth of revenue in relation
to
the rate
of growth oil income and the rate of growth of commerce
and industry. Second, the Sales Tax Act, the Entertainment Tax Act,
the Local Authorities Finance Act,
the Motor
Spirit Taxation Act, the
Betting
Tax Act
bein~ all State Acts and the Central Sales Act could
be. rationalised and s1mptified
so as to facilitate easy administration
and also to reduce hardship to the trading community. Third, the pr~nt classificarion of commodities taxed at single point and multi
point
is to be studied in order· to find out as
·to what extent there is a
case for transfer
of
commodities from multi point to single point and
vice v~rsa. Fourth, it is to be fo'und out whether there is anv need and
justification for the continuance
of the concessional rate
of tax:ation
under the General SaleS! Tax Act on components coming under single
point levy, and, if so, whether there is a case for extending the same
concession to all raw materials. Fifth, measures are to be found to
improve the procedure
of inspection, search and
sdzure in order to
make them more effective and at the same time to minimise the appre
hemion of harassment on the part of the trading community. Sixth,
measures are to be taken to make the check post more effective and
arrangements for the collation and interpretation of data collected
at the check posts an~ the cross verification of such data with assess
ment records are als:o to be made. Seventh, measures to ensure ~gular
and systematic flow of vital data such as tax yield from various com
modities and changes in trade practices affecting tax. yield to the Board
of Revenue (Commercial Ta:tes) are to be devised and arrangements
are
to
·be made for their collation and interpretation to facilitak tax
policy.
These are some
of the principal duties and responsibilities of the
Officer on Special Dully. These duties indicate in no uncertain terms
that the post of Officer on Special Duty -is of enormous magnitude and
importance in formulation and shaping of the revenue structure of the
State. The duties and responsibilities of the Officer on Special Duty
A ,
B
c
D
E
F
G
art.' beyond llny measure of doubt equal in status and responsibility to
those of the Chief Secretary. · H
It was contended on behalf of the petitioner that there should be
s declaration in writing. The purpose of the declaration that the post is
A
B
c
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E. P. ROYAPPA v. TAMIL NADU (Ray, C.J.) 361
equivalent in status and r~ponsibility to Cadre post · specified in· the
Schedule to the Indian Administrative· Service (.Pay) Rules is to
Cl!liU!C that members of the Cadre are not taken to posts beneath their
stl&tus and responsibility. These ·measures are intended to preserve
respectability and responsibility of the Cadre officers. The declara
tion is not one of mere form. It is of substance. A declaration in
writin~ is desirable. The absence of a d~laration will not be an
impediment in ascertaining the equivalent status and r~sponsibility.
Similarly· the presence of a declaration may not be conclusive if the
declaration is a mere . cloak: The facts and circumstances will be
looked jr .::o in order to find out whether there·is in real substance equa
lity in w:us and responsibility.
•
Fundamental ·Rule 15 provides that no Government servant can
bt. transferred substantively to or appointed to officiate in a post carry
ina less pay than the pay of the permanent post on which holds a lien
or would hold a lien had his lien not been suspended under rule 14.
The position of the petitioner was that he was holding a lien in the
selection grade post. It was open to the Government to transfer him to
a post or to appoint him to officiate in a post carrying pay not less than
what
he was entitled to
in the selection grade of Rs. 1800-2000. How
. ever, the ;petitioner was appointed to the p9st of Deputy Chairman,
Planning Commission on 6 April, 1971 carrying a salary of Rs. 3,500
per month. The petitioner went on leave from 13 April, 1971 to 5 June
1972. On 6 June, 1972 when the petitioner returned from leave he was
again posted as Deputy Chairman of the State Planning Commission.
The pcist carried a salary of Rs. 3,500/-per month· which is the same
as that of the Chief Secretary. The petitioner made a representation on
17 June 19n that the post of Deptity Chairman in the rank of Cllicf
Secretary could. not continue for a period of more than one year since
April, 1971. The Government on 26 June, 1972 sanctioned the creation
of a temporary post of Officer on Special Duty. On 27 June, 1972 the
petiticmet Wl.lS promoted to the post of Officer on S~ial Duty. The
post of Officer on Speci.al Duty also carried the same salary as that of
the Chief Secretary. · Therefore, the~ petitioner who was in tlfe selection
trade could be transferred to. any of these two posts of Deputy Chair·
man, Plannin~ Conunission or ~r Ol'l Special Duty which were posts
not
lower in status and responsibility to the Cadre posts in Schedule
lli of the Indian
Ac!ministrative Seryice (Pay) Rules, 1954 and which
. carried the same salary as that .. of the Chief Secretary. ·
The posts of tho Deputy Chairman, Plannins Commission and . the
Officer on Special Duty were created for cadre officers to discharge
duties·
and
responsibiliti.es of a high order. These posts were not
created all of· a sudden with anv obliaue . purpose. The Planning
~ion had been, in contemplation lo~ some. time. Similarly, the
po<>t of: Officer on Special Duty was created after consideraVon and
evaluation of serious problems of State J{even'Ue. Each one of the
posts. carried specific functions and respoilBibilities. · Comparisons
~tween· functlons, duties and responsibilities of posts ·at the apex
ol different departments are not always posSible. The· status of tho
362 SUPREME COURT REPORTS [ 1974] 2 S.C.R.
post would also depend on the incumbent. because a brilliant officer
can Sl? augment the opportunities of public service in that post that
others may covet it. lhe _posts were created under the inherent execu
tive powers
of the State Government. These posts were not
additions
to posts specified in the Cadre Schedule of the Indian Atministrative
Service. (Cadre) Rules,
1954. These were posts outside
ihe cadre.
On an objective consideration we find that the two posts were
created for discharging functions
requiring
very high calibre and
specialized experience and must be counted as no less responsible than
the topmost cadre posts. Finding suitable officers for such speciali-
zed jobs
is
always . a difficult problem for the administration. The
Cadres do not always overflow with superabundance of specialized
experience. The choice, therefore, ·becomes limi~. The Admini
stration has also to take into account the willingness or otherwise of
an ofticer to take up a new jQb which may not invest hi1n with wide
c;lecuti.ve powers which he wields, while. holding even less intportant
pos,ts. The choice in the present case fell on the petitioner when
the post of the Deputy Chairman was created ~ then again wberi the
post Special Officer was created. He was given the pay scale of
the Chief Secretary,. betause that was the scale of pay he was drawing
when he was appointed to these posts. The f~ that on his refusal
to join the posts, some body else was appointed on Rs. 3000/-does
not·devalue the job. The job remains the same. The question for the
administration
is
to choose the man for the job, and it is only to ~
expected that whosoever is chosen will take with him his pay unless
Government thinks of paying him more. When the petitioner was
posted.
to the new posts he was permitted to draw his salary as the Chief Secretary and whein Rajaram the Frrst Member of the Board
of Revenue was appoin~, he took with him his salary as the Frrst
Member. When the petitioner was to occupy the post of Deputy.
Cliairman or Special Officer the post was graded to give him his old
scale of pay and when Rajaram was appointed to these Pf'Sts, he W!lS
~ven his olct scale. as First Member. That the posts of Chief Secre
tacy· and First Member were interchangeable, though the former. got
a higher salary, was recognized by the State Government and, also
~dor:sed by the Central Government long back in January, 1970 .
. TI1.ere was, therefore no upgrading or downgrading of the post.
The petitioner had worked as Deputy Commissioner. of Commercial
Taxes and subsequentlx as Secretary to Government, Revenue Depart
ment dealing. with Commercial Taxes also. 'IJle petif:ioner was also
Commissioner, Bo~d ~f Reven~ in charge of conuitercial ·taxes.
In view of thf! wide experience of the petitionex: in the field of commer·
cial taxes the Government decided to ·post him as Officer on· Special
Duty. This was neither unjust nor unfair nor mala:fide .. There was
no reduction in rank. The petitioner's status as wen as pay was in
conformity with the Rules .
A
B
c
o·
E.
F
G
. The petitioner coUld not claim that till retirement he must· coli.-11
tinue,to· act in the post of the Chief Secretary. The orders of 1ransfer
were passed in the administrative exigencies.
A
B
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E. P. ROYAPPA v. TAMIL NADU (Ray, C.J.) 363
The members of Indian Admj.nistrative Service and particularly
those
who are in the high posts are described as the steel framework
of the Administration. The smooth
and sound administration of the
country depends in the sense of security and stabiilty of the officers.
These
offic~rs should not be made to feel that their position or posts
are precarious
with
t}le change of Government. Their service must be
completely free from the fear or threat of arbitrary act of the author~
ties. Similarly, .. the members of. the Service should keep themselves
isolated from turmoils of political·parties. It is this sense of disin·
terestedness and detached devotion tQ duty which has to be recognised
and. rewarded. -
The
posts·
of Deputy Chairman, Planning Commission and Officer
on Special Duty. are equal in status and responsibility. The services
of oadre officers are utilised in different posts of equal status and res·
ponsibility because of exigencies of administration and employing the
best available talent in th~ suitable post. There i~ no hostile discri·
mination in transfer from one post to another when the posts are of
equal status and
responsibility.
The petitioner alleged that the creation of the posts of Deputy Chairman,· Planning Commission and· Officer on Special Duty as well
as the appointment of the petitioner to the posts was malafi.de. Broad
ly stated, the petitioner's allegations were that the Chief 'Minister
acted malafide in removing ·the petitioner (rom the post of Chief
Secretary The petitioner
alleged that in the discharge of his duty he
was fearless and he suggested action against persons who were friendly
to the
Chief Minister. It is said that the Chief Minister therefore
wreaked his vengeance on the petitioner.
One of the instances alleged by the petitioner which gave rise to
the anger of the Chief Minister relates to irregularities in the accounts
of Tanjavur Cooperative Marketing Federation. V. S. Thiagaraja
Mudaliar
was the head of the Federation. Mudaliar was a powerful and influential person. He was a close . associate of the Chief· Minis"
ter. The petitioner put up a note to the Chief Minister that th~ case
should be handed over to the police and the persons responsible ~hould
be hauled up. The petitioner alleged that the Minister for Co·opel·a
tion called the petitioner and asked him to modify the note. Ttie
modification suggested was to leave out any reference to Mudaliar and
to omit the s~ggestion for handing over the matter to the police. ·
Another allegation concerning· Mudaliar. is that he was flouting
orders of the Goverriment and health authorities and al,lowing effl
uents · from the distillery at Tirucharapalli without proper treatment
into
the river
and· thereby causing hazards. The ~titioner wrote a
note · asking for deterrent action and · launching prosecution again~t
Mudaliar. The petitioner alleged that the Chief Minister expressed
his annoyance.
The Minister for Co-operation denied that lie asked the· petitioner
to modify .any note. The. Chief Minister denied that he ever asked
for any modification in the note. The Chief Minister further alleges
in the affidavit that there is no note written by the petitioner suggesting
364
SUPREME COURT REPORTS [ 1974] 2 S.C.R.
the launching of prosecution against Mudaliar, Both the Chief Mials·
ter and the Minister for Co-operation state in their affidavits th~t
action has· been taken and is being pursued against all the persons
concerned relating
to the affairs
of the Federation. The petitioners'.
suggestion was accepted. There
is no occasion for vindictiveness.
ThL: petitioner's allegation that the Chief Minister expressed annoy
ance
at the petitioner's note against Mudaliar for causing hazards by disch~ge of effluent from the distillery is belied by the action taken
by the Government. The petitioner in his note suggested a joint
inspection and satisfactory arrangement for treatment of the effluent
in accordance with the recommendation of the Water and Sewage
Advisory Committee. The petitioner's proposal was accepted. The
petitioner also recommended implementation of a plant scheme
.on
pain of cancellation of licence. Industrial alcohol is manufactured in
the distillery. This product is required by the cordite factory of the
Defence Department, and
for pharmaceutical, medicinal and
indus·
trial products. The petitioner's recommendation to close the distillery
would not only have created unemployment
of a large section but
also loss of important products. The way the affairs
of the distillery
were handled according
to the suggestion and recommendation of the
petitioner does not disclose any evidence of malafide
on the part of
the Government.
The third instance
of malafide alleged by the petitioner was that
the Chief Minister did not like
the suggestion of the petitioner that
Vai[hialingam, the Private Secretary to the Chief Minister should
be
transferred. The Chief Minister is also alleged to have said that the
Chief Secretary should
be transferred but not the
Private Secretary.
The Chief Minister denied that he ever made any stat~ment that the
Chief Secretary should be transferred.
It is also alleged that the Chief Minister wanted to prefer
Vaithia·
lingam in the preparation of the seniority list of the Indian Adminis·
trative Service. The petitioner alleged that he declined to oblige.
Therefore, it is said that the petitioner suffered
by the mafafidcs of th~ Chief Minister. There were disputes between direct recruits and
promotees in regard to fixation of seniority. The Chief Minister on
the advice of the petitioner passed an order on 22nd Dec., 1969 that
the Gov~rnment could finalise the seniority list after considering the
representations
of the members. The petitioner thereafter submitted
a
file to the Chief Minister that direct recruit Assistant Engineers of
the Public Works Department also made requests for revision
of
seniority as between them and the promotee Engineers. The Chief
Minister under these circumstances cancelled his order dated
22
December, 1969. Subsequent to the cancellation of the order direct
recruit Deputy
Collectors filed writ petitions in the High Court claim
ing revision
of seniority on the basis of Government order dated 22nd
December, 1969. Those petitions are pending disposal in the High
Court
of
MaCiras.
The petitioner also alleges that the Chief Minister refused to allow:
Deputy Collectors
in the select
li.&t to act· in the Indian Administrative·
Service posts and many retired at the age of 55 without acting as IA.S.
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ROYAPPA V. TAMIL NADU (Ray, C.J.) 365
Officers. The petitioner alleges that the Chief Minister thought that
Vaithialingam would thereby gain seniority in the inter se seniority list
of Deputy Collectors because the age of superannuation of. J.A.S.
Officers is 58. The respondents in their affidavits stated that the
I.A.S Select~on Committee could not meet for the years 1968, 1969
and 1970 for various reasons. The petitklner in a note suggested that
·the inclusion of name in the Select List did not confer any ri~ht of
promotion. The Chief. Minister agreed with the petitioner.
These facts in relation to Vaitbialingam indicate that the petitioner
was not only a party to all the decisions but also he was responsible
for the
decisions taken by the Government. There is no ground
what
ever for· attribut~ng bad faith or improper motive to the Government
against the petitioner.
The petitioner alleged other instances which gave rise to the wrath
of the Chief Minis~r against the petitioner. There was land acquisi
tion at Manali for Madras Refineries. Large compensation was paid
to the owner Ramkrishnan. The petitioner caused th~ suspension of
the District Revenue Officer and other Officers for suppressin~ the note
1hat the Law Department had strongly opposed the proposal to award
Jaree compensation. The affidavit evidence of the respondents is that
the~ awards were passed by the land acquisition authorltiC$. The Law
Department was of the view that land a~uisition officers did not
Department Ddvised disciplinary action agrunst the offieers. The Law
Department recommended that the awards should be set aside. The
Chief Minister, the Mlnister of Law both directed that suitable action
should be taken. The file was sent to the petitioner for further action.
The petitioner asked for suspens1on of the Officers. The Government
approved the suspension because of the clear inst:uctions . of the
Government. Disciplinary proceedings are pending . against these
officers. lt is obvious that the petitioner's allegations of malafide
against the Chie~ Minister are totally repelled by the correct facts.
The petitioner alleged that the Chief Minister expressed the view
that the Government could not tolerate the Chief Secretary who dared
to oppose the proposal relating to Anna Samadhi. It is alleged as
follows. The D.M.K. Party decided to erect a Samadhi c8lled Anna
Samadhi. The Chief Minister wanted· to appoint a committee for
management and maintenance of the Samadhi. The Chief Minister
wanted to issue an Ordinance in that behalf. The oetitioner opposed
the promulgation of the Ordinance. The idea of the Ordinance was
dropped. It is said that thereafter a private trust was created tor
administering the Samadhi. The trustees requested the Government to
hand over the Samadhi to th~ trust. The petitioner opposed the pro
posa 1 on the &round that the portion of the land belonged to the
Municipal Corporation and the land together with the Samadbi COBt
t.b.e Government and the Corporation over Rs. 40 lakhs. The peti
tioner's allegations are all baseless. The Public Works Department
examined the proposal to hand over the Samadhi to the private trust.
The file was marked to the Chief Minister. 'The petitioner merely
366 SUPREME COURT REPORTS [ 1974) 2 S.C.R·
noted "Chief Minister may decide". The petitioner did not oppose the
propo mi. This fact also indicates that the Chief Minister did not bear
any grudge against the petitioner.
The petitioner alleges that an extra-ordinary procedure was follow
ed in connection with the tender for the Veeranam Water Supply
Scheme to the city of Madras. One Satyanarayana submitted the
tender. The amount involved was
Rs. 20 crores. The Government agreed to oav an advance of Rs. 90 lakhs as loan to the contractor
for buying niachinery. The petitioner did not approve the proposal.
The petitioner said that a considerable time would be required to
scrutinis~ the tender for such a large amount. The petitioner returned
the
file without scrutiny because the
Minister for Works wanted it.
This annoyed the Chief Minister. On the other hand Government
alleges that eight firms submitted tenders for
the Veeranam project.
The tender
of
Satyanarayana Brothers was the lowest. They were a
local company with wide experience
in civil works and defence works.
The Chief
Secretary received· the file on 27 April 1970. Orders were
to
be
issued urgently. The file was obtained by the Additional Olief
Secretary from the Chief Secretary's office. It was then ordered by
the Minister for Works after discussion with the Chief Minister that
the lowest tender of Satyanarayana might be accepted. Orders were
issued
on 7 May
1970 accepting the tender of Satyanarayana Brothers.
The petitioner's alleged note that he wanted time to scrutinise the file
is not found in the file. An expert team recommended the acceptance
of the tender of Satyanarayana Brothers.
It thus
appears that the
petitioner saw the file on n May 1970 after the tender had been ac
cepted on 7 May 1970. The petitioner did not raise any objection to
the procedure which was adopted. When the matter came for final
orders on 13 July 1970 the petitioner did not record any objection.
This is yet another instanee which establishes that the petitioner made
reckless all~gations imputing mala fides to the Chief Minister.
The. other a11egat\on of the petitioner concerns the Cooum River
Project.
The allegation is that the petitioner pressed for an
investiga
tion of the Cooum River Pro_joct. The Chief Minister issued orders
for· an enquiry. Later on the Chief Minister cancelled the order. The
Chief Minister directed the
Director of Vigilance to look into certain
rumours
~bout mal-practices in the execution of the Cooum Improve
ment Scheme. The Director of Vigilance informed the petitioner and
requested him
to accord sanction to enable the Director to embark
upon
~uch an enquiry. The relevant section put up before the peti·
tioner a draft letter authorising the Director to embark on an enquiry.
It is discovered that no action was taken by the petitioner. The Jetter
of the Director dated 25 February 1970 addressed to tbe petitioner
indicates that the Director asked for. authoris:~tion to make an enquirv.
The
file indicates that the petitioner on
26 Februarv 1970 sulunitted
a note for Public (Secret Confidential) Deoartment for perusal. The
Public (Secret Confidential) Deoartment received the file on 20 Sep
tember t 970. There are minutes of the Chief Muiister orderin~ the
enQuiry. The file was put up before the petitioner on 21 September
1970. The file was not received back. On 31 July 1971 the Chief
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Secretary .asked the petitioner to send back the. fit~. The petitio~r
on 8 August, 1971 said that the file was not w1th h1m These. are lll·
deed strange things. It is baseless to allege mala fides agamst the
Chief Minist~:r.
The br~nt of the petitioner's allegations against the Chief Minister
c-entres on the mid-term poll in the month of February, 1971. The
petitioner's allegations are these. In or about the end of January, 1971,
the D.M.K. Party" of which Ramaswami Naicker is the leader took
out an anti·religioua procession at ~em. ·It is alleged that .the proces-
sion hurt the fe_ elings of devout Hindus. One Rauiaswam1, ~~~X
known as "Cho" who is the Editor of a magazine called ' '
took phCitographs of the procesSion. Th~ D. M. K. . Party obtaintd
information thnl Cho was likely to publish the photograpbJ. The
D . M. K . Party thought that in view of the impending elections the
publication of the photographs would affect their prospects a~ . the
election. The petitioner received a trunk call from the Law Mm1ster
who asked him to take action to prohibit publication of the photo
graphs-. The petitioner said that the Government had no power to
prevent tht> pu~1ication.
The Chief Minister shouted on the telephone that the Deputy
Superin·endent of Police should be'suspended and action should be
taken against the magazine. The petitioner discussed the matter with
th~ Inspeeto1 General of Police who said that it would be most unfair
to suspend· the Deputy Superintendent of Police, Salem: The petiti.o~~er
suggested that the matter might be dropped. The Chief Minister:
thereupon asked the Inspector General of Police to suspend the Orcle
Inspector of Polic-e at Salem. The Inspector General of Police BUS·
pended the Circle Inspector and registered a case against him. When
the Chief Minister returned from his camp, he took the petitioner to
task for registering a case against Naicker~
The Chief Minister in his affidavit states that. he told the petitioner
th1t action should be taken agaitist the persons who had broken the
law.
-He denies that he took the petitioner to task for registering a
case against Naicker. He denies that he shouted at the petitioner
end
ordered the Inspector General of Police to suspend any police officer.
The other allegations by the petitioner are-these. On 28 February,"
1971 the petitioner received a telephone message from tlie Deputy
Inspector General of Police about various dashes involving looting,
G . killi~g, bu~ning of houses·in the village in Tireunelveli District on the
prevtous mght. The Inspector General of Police informed the peti
tioner that the Minister of Co-operation was at the back of the clashes.
T~c. District Colle~t?r was not helpful in taking action against the
Min1ster. The pehttoner told the Collector that it was a serious.dere
li~tion of duty. The petitioner asked the Collector to proceed imme
diately to the spot to take steos to maintain law and order. The peti-
1( tioner also asked for a full 'report.
. At 4 p.m. on 28 February, 1971 the Governor summoned the peti·
ttoner and the Inspector General of Police. The Gover.nor summoned
them to di§cuss about the deteriorating law and order situation in the
368 SUPREME COURT REPORTS [ 197-4] 2 S.C.R.
city and the Districts. The Governor made special reftrence to the
complaints 'received by him about violence and intimidatilfn partic\llarly
from Tirupattur (Ramnad>, Shivai Kundam, Udumalpet, Tifuvaana
maloi and Said:~pet constituencies from wher~ the Chief Minister and
other Cabinet Ministers were contesting the elections. The Inspector
Generul of Police told the Governor that lorry loads of goondas amed
with deadly weapons had arrived in the city of Madras. The goondas
numbered about 1500. They were brought at .the instance of th~:
Chief Minister. The Goventor was annoyed and shouted "how was it
possible to transport 1500 goondas froll nearly 300 miles by lorries
without the knowledge of the police. I expect the police to do their
duty. The law and order situation has deteriorated considerably
tlmmghout the State. In the Tirupattur Constituency of Ramuad
District there
was no semblance of law and order. I. had received
telegrams and complaints.
Unless the Collectors and the Superin•en
dent of Police do their duty there would be no free and fair Elections··.
The Governor told the petitioner "Mr. Chief Secretary, throu&hout,
your career, you have· the reputation of carryini out the duties with
L)Ut fea; or favour and without bothering about the consequences. 1
am sure that I could rely upon you to take special steps to arrest 'ilie
deteriorating law and ord~r situarion and ensure free and fair Elec·
tion.~". The petitioner assured the Governor that he would take strong
uction.
The petitioner then discussed
with the Inspector General of
Police
about the special steps to be tak'en to maintain law and order. The
petitioner gaye orders to the Inspector General of Police that t.1e
goondas should be arrested. The Inspector General of Police aifeed
to carry out the orders. Raid was carried out in the night.
The Chief Minister sent for the petitioner and shouted at
him. ''l
am the Chief Minister. I am in charge of the Police Portfolio. How
dare you order the arrest of persons in my constituency without my
prior permission?" The petitioner said that he carried out his duty
without favour ;Jnd fear. The Chief .Minister flared up and said "You
had deployed Central Police every two feet at Thiagarayanagar,
Mylapore, Saidapet and other places. I order you to withdraw im·
mediately !he Central Reserve Police". The petitioner said that he had
;tsked for fiv.: battalions of Central Reserve Police for maintaining law
and order situation. It was not possible to withdraw tbe Central
Reservu Polic~. The Chief Minister shouted at the petitioner.
After the polling was over the police force posted in the city was
. 1ttoved tC' other polling areas. Law and order sit~ation deteriorated
coosidcmbly in the city. A lady M.L.A. belong~ng to the Congr~ss
Party wns dragged from her car and molested. Gooodas armed ~th
"ticks and w.;:apr>ns were at large. The Inspector General of. Pollee
discussed the matter with the petitioner. The petitioner asked them
to round up all bad elements. More than 2600 bad elements were
rounded up. In the absence of the Chief Minister, two Minist~rs
phoned the Commissioner of Police to release the D .M .K. nng
leaders. The Commissioner of Police in accordance with .the peti
tioner's instructions refused to release them unless proper bail was
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offered. The Commissioner of Police informed the petitioner that the·
Chief Minister himself had phoned him. The Inspector General of
Police reported that the D . M. K. was pressing into service &oondas.
He apprehended trouble as some of the Ministers were indulging in dan
gerous activities. The petitioner ordered
the. Inspector General of
Police
to intercept lorry-loads of· goondas. The Chief Minister ~d the·
Minister of Law, when they came to know about the instructions.
issued by the petitioner to the Inspector General of Police ll.\lked the
petitioner to withdraw the instructions. The petitioner refused to do
so.
On 4 March, 1971 a Code message was received from the Home
Ministry that the Ministry had received disturbing reports about
clashes between various political groups in parts
of the city.
Offic.ers.
w<!re asked to be fully vigilant and take preventive measures. The
petitioner discussed the matter with the Home Secretary, Inspector
General of Police, Commissioner of . Police and other officers and
issued instructions. The instructions we..:e that the people should not
be allowed to collect within three furlongs of the counting centres.
Bad elements should
be rounded up 24 hours before the counting
began. The Collectors
• and the Commissioner of Police shoul~ form
Peace Committees and request the political parties not to take out
victory processions or indulge in violence. Section 41 of the City
Police Act and Section 30 of the District Police Act were to be pro•·
mulgated to regulate crowds.
On 6 March, 1971 the Chief Minister rang up the petitioner and
asked him to be present at the Cabinet meeting along with the Inspcc·
tor General of Police, the Commissioner of Police and the Ho::ne
Secretary. At the Cabinet meeting the petitioner - was attacked . atJd.
abused by the Law Minister. The petitioner, the Inspector General'
of Police nnd the Commissioner oe Police were threatened with dire·
consequences. The results were declared on 11 March. The D.M.K ..
maintained its majority.
After the elections a meeting
of all the District Collectors
was
fixed for 6 April, 1971, at Madras. The Chief Secretary as the Ser
vice Chief was responsible for conducting the proceedings. The Chief
Minister called a Press Conference around
12 mid night at
which·
he announced that the petitioner was appointed as Deputy Chairman
of the State Planning Commission and that he would be transfe1red'
forthwith. •
It is in this background of long narration of events at the time of
Election that the petitioner alleges that the Government and the Chief'
Minister acted malaiide against the petitioner because of the stem~
nttitude of the petitioner against the D.M.K. Party.
The Chief Secretary
of the
State in his· affidavit states that there is·
no record of any one of the matters alleged by the petitioner with·
regard to law and order situation on the eve and at the time of the
election'
save and except the
instructions issued by the petitioner on'
4 March, 1971 with regard to promtilgation of section 41 of th~ City·
Police Act. and section 30 of the District Police Act; rounding up of:
370 SUPREME COURT REPORTS [ 1974] 2 s.c.R.
bad elements and probation offenders and prohibition of processions.
The order passed by the petitioner was reviewed at the State Cabinet
Meeting on 6 March, 1971. There were two modifications. First,
the prohibition against collection of people within three furlongs of
the counting centre
was_ changed into safe distance, in place of three
furlongs.
The rounding up of rowdies and bad elcm~n!$ and probation
ofienders was restricted only to "listed rowdies". The Home Minis
try Code message dated 4 March, 1971 about clashes between poli·
tical groups was received but th~ Government did not attach special
or particular importance to the message. The Secretary Ministry of
Home Affairs sent a message
on 16 March, 1971 commending the excelle!Jt arrangements made for ensuring free and fair elections. The
Government, therefore, states that law and order was well maintained.
The letter dated 16 March, 1971 was a circular letter sent to all the
Chief Secretaries
and therefore the Government states that no speciaf
credit
can be claimed by the petitioner or ascribed to the petitioner's
aUeged instructions.
There is an affidavit by the Chief Minister that
no
goondas were
brought by him into the city and the allegation about raid on 1 March
to round up the goondas is described by the Chief Minister to be false.
The Chief MiD.ister also denies that the petitioner at any time stated
that the Inspector General of Police was expecting serious clashes in
Saidapct, Mylapore and Thyagaroya Nagar. The Chief Minister
denies that he asked the Commissioner
of Police to release the D.M.K.
leaders.
The Governor of Tamil Nadu in his affidavit states that the petition
er and the Inspector General of
Police met him on 28 Fc.bruary, 1971
at 4 p.m. at his instance to discuss the arrangements made or being
made for the effective maintenance of law and order. The Governor
'brought
to the notice of the petitioner and the
Inspector General of
Police that certain allegations had been made in regard to incidents
of violence
and intimidation. The Inspector General of
Police told.
·the Governor that the reports would be investigated. The Governor
denies that
he made a reference to complaints of violence or intimida
tion from the constituencies of Chief Minister and Cabinet Ministers. The Governor also denies that the Inspector General of Police had
informed him that 1500 goondas had been rounded up. The Gover
nor denies that he ever paid compliments to the petitioner about his
reputation
or carrying out his duties without favour or fear.
The Minister of Labour in his affidavit denies that he phoned up
the Commissioner of Police. The Minister for Harijan Welfare to
the Government
of
Tamil Nadu denies havin,g telephoned the Com·
missioner of Police to release the arrested leaders. The Minister for
Food denies that the D.M.K. employed goondas and he with other
Ministers indul~d in violence. He also denies that the Minister start
.ed a tirade against the petitioner, the Inspector General of Police and
the Commissioner of Police.
The Inspector General of Police states that there was no
dtteriora·
·tion in th.e law and order situation. He states that out of 160 com
·plaints received throughout the State 69 were against D.M.K. 46
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against the Congress (0) and 6 against the other parties and the re
maining
39 are against the
Police and other non-political bodies. The
~nspector General of Police denies that there was any organised vio
lence. Kuppuswamy, the Inspector General of Prisons who held the
pOit of Commissioner of Police at the time of the elec~on states that
the allegations made
by the petitioner about tirade against the
petition·
er and the Inspector General of Police and the Commissioner of Police
are baseless. ·
The petitioner made allegations of malafides to suggest that the
petitioner
was an honest officer and the Chief
Minister and the other
Ministers
did not want such an honest officer and therefore they got
rid
of him. The most significant feature in the allegations of mala
fides is that when on 7 April, 1971 the
petitloner was appointed to
act
as Deputy Chairman, Planning and he went on leave he. did not
at any stage state anywhere that the order
was
.made malafide. The
first letter where the petitioner alleged malafides js dated 7 June,
1972. The allegations of malafides .are not contemporaneous but after
thoughts at a distance of one year. That was when the petitioner re
turned from leave after one year and he was appointed to the post
of Deputy Chairman, Planning ~ommission. Even in that Jetter
the only allegation about malafide is that the petitioner too!C strong
steps about maintenance
of law and order at the time of the elections
in
1971 against the views of
the Chief Minister and the Ministers. Xt,
therefore, follows that until the petition was filed in the month of July,
1972 the respondents were not aware of various allegations of malafide
made in the petition. Therefore, when the impugned order was made
on 26/27 Iune, 1972 it is manifest that the Government did not make
the order out of any itnproper motive or any indecent haste or out of
nny ingenious inspiration to get rid of the petitioner. Another notice
able feature in the allegations of malafides is that the petitioner all
throughout describes himself as a person who acted without any fear
or favour and enjoyed the reputation of being a strict and honest offt
ccr, and, therefore, the Government contrived to remove the petitioner
from the post of Chief Secretary. Honest and fearless cadre officers
arc not unknown and rare as the petitioner suggests. Nor are intre
pid officers in cadre posts thrown out of office because of expression
of views about law and order situation. In the petition the petitioner
has ascribed to the Chief Minister, the Governor and a few other Minis
ters certain statements having been made by them. The statefllcnts
are quoted to be words of mouth of the. Chief Minister or the Gover
nor or the Ministers. Th~ petitioner has nowhere made contempo·
raneous entry or record of such utterances. It is difficult to believe
that t11c petitioner would remember identical words in long scqucnct'
and set them out· with exactitude in the petition. These allegations
arc made in the petition for the purpose of giving semblance of truth
and. lending colour to thronicle.
The affidavit evidence indicates that the petitioner carried otit nor
mal duties and exercised care· and caution a~ the time of the election.
That
is expected of all officers. It is also expected that officers
wilt
maintain a balanced and firm hand in regard to law and order situa
tion
as well as administration. Civil servants are expected to advise
. 372 SUPREME COURT REPORTS [ 1974] 2 S.C,R .
Ministers in the context of files and rules. The Government and
Ministers are also expected to maintain a balanced and impersonal
attitude in regard to advice given by civil servants.
In the present
case,
it appears that the petitioner gave advice in course of duty. The
Government practically in all
Cl!Ses accepted the advice of the peti
tioner. There does not appear any instance of acrimony or disagree
ment between the Government and the petitioner. There are no
.records to suggest that the petitioner advised one way and the Goven.
ment acted in an opposite manner.
The events alleged at the time of the elections are in aid of the
_petitioner's contention that his dealing of the law and order situation
was so firm that
the-Chief Minister and other members of his ·party
became alienated. The petitioner suggested that the Chief Minister
and the members of his party were responsible for introducing violence
and intimidation. The further suggestion of the petitioner
is that
the petitioner exposed the activities
of the D.M.K. Party.
·Complaints
against the D.M.K. Party were like complaints against other political
parties. The affidavit evidence indicates that the law and order situa
tion was kept under normal control. All the officers of the State in
cludini the police service discharged their duty in the best interest of
administration as also in pub1ic interest. The petitioner did not
.achieve anything extraordinary. As the Chief Secretary it
was the
duty of the petitioner
to see that situation nowhere went out of control.
The Chief Minister and the members of his party cannot be said on
1he affidavit evidence to have
committed acts of violence or intimida
tion. The entire affidavit evidence establishes beyond any measur~
of doubt that the petitioner's allegations imputing malaftdes against
the Chief Minister are baseless. The petitioner's allegations
were in aid of suggesting vindictiveness and vengeance on part of the Chief
Min~ster Facts and circumstances repel any such insinuation and
innuendo.
For these reasons the contentions of the
petitioner fail. The pct1·
:tion is dismissed Each party will pay and bear its own costs.
JUDGMENT
BHAGWATI, J. We are in agreement with the final conclusion reach-
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ed in the jwlp1ent delivered by the learned Chief Justice, but our
.:approach and reasoninc are a little different and we are, therefore,
delivering separate judgment expressing our views on the various H
.questions arising in tbe petition.
The petitioner is a member of the Indian Administrative Service
E. P. ROYAPPA V. TAMIL NADU (Bhagwati, /.) 373
A in the cadre of the State of Tamil Nadu. On 2nd August, 1968, the -
petitioner w.as confirmed in the selection ifade of the Indian Adminis
trative Service with effect from 22nd May, 1961. The petitioner was
successively }X!Sted to act as Fifth Member, Board of :Revenue, Fourth
Member, Board 9f Revenue, Third Member, Bo~d of Revenue,
~md &cond Member, Board of Revenue on 25th February, 1964, 5th
Au&USt, 1965, 30tb March, 1966 and 5th Apru, 1969. On lltk July,
.1 19o~ ttle State of Tamtl Nadu passed an order sanctioning the cr~ation
of a temporary post of Additional Chief Secretary to the Government
for a period
of one year and
directed that the posts of Chief Secretar_y
to Government, Additional Chief Secretary to Government and First
Member of tne Board ~of Revenue should be deemed to b~ in the same
cate&ory and should be interchangeable selection posts, and by the
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same order promoted and posted the petitioner to act as Additional Chief Secretary to Government in the newly created post. Now, ac
cording to Sh. lilA of the Indian Administrative Service (Pay) Rules,
1954 the posts
of Chief
Secretary to Government an<1 First Member,
Boan:f of Revenue carried respectively pay of Rs. 3,00W-and Rs.
2,750/-. But since the State Government had by the order dated
11th July, J 969 directed that the posts of Chief Secretary to Govern-
D ment. Additional Chief Secretary to Government and First Member,
Board of Revenue should be in the same category and interchangeable·
n was necessary that there should be same pay for all the three posts
and the State Government, therefore, by a letter dated 7th August,
J 969 requested the Central Government to amend Sch. IliA of tbe
)ndian Administrative Service (Pay) Rules, 1954, so that all the
three posts could be of the same ra;1k carrying the same pay. nnmdy.
E Rs. 3,000/-. The Central Government by its letter in reply dated
,26th September, 1969 pointed out to the State Government that the
status
of Chief
Secretary to Government as the head of the Secretariat
or~nisation in the State should remain unquestioned and it should not
be a1lowed to be diluted by the creation of the post of Additional Chief
Secretary carrying the same status and emoluments. as the Chief Secre
tary and suggested that the State Government may consider addin~
F the post of Additional Secretary to the cadre temporarily for one year
in tbe pay of Rs. 2,750/-or in smaller sca1e, but not in the scale of
Rs. 3,000/-as desired by the State Government. So far as the request
of the State Government in regard to the post of First Member of the
Board of Revenuo was concerned, the Centr~l Government agreed
tMt there should be one non-secretariat· post in the State Cadre
carrying the same salary as that of the Chief Secretary and stated that
G they were taking steps to provide that the First Member, Board of
Revenue should carry the same pay as admissible to the Chief Secre
tary.
The.
Central Govern,ment accordingly issued a.notification dated ·
14th January,
1970
in pursuance of r. 11 of the Indian. Administrative
Service
(~y)
.Rules, 1954 amending Sch.' III. with effect from. 17th
December, 1969. so as to pnwide that the pay, of F'.trSt Member, Board
of Revenue sliall ·be Rs. 3,000, tJui.(is, ·the same as that of the Chief
H Secretary. The post of. Brst Member,. Board of Revpnue was .thus
equated to tliat of the Chkf Secretary in l;'ank .and status, though the
pos·t of Additional Otief Seyretary was not.
..
. SUPREME COURT REPORTS [ 1974] 2 S.C.R •
In the meantime, on 13* November, 1969, the then Chief Secfe-A ,
taiy Ramakrishnan, who was a IDI'ffil:ler .of the Indian Civil.Service,
was "retiring
on
completion of 35 years service, and the question, _there,.
fore,· arose as to· who should be appointed in .his place. _The. file. in
this-connection' was pfaced before the ~ef Minister;. who_ is 1he
second respondent before tis, and a list of eleven senior-most members
of the Indian Civil Service
and the Indian
Administrative Service was
submitted
to him for
his consideration on 30th October, ·1969. The
second respondent made an elaborate note on the file on 12th Novem
ber, 1969 pointing out
that the post of Chief
Secretary is a selection
post
and in making
·selection merit should be· considered and not
seniority alone and the person best fitted to discharge the onerous duties
of the post should be selected. . The second respondent then proceed
ed to consider the merits of the eleven officers whose names had been
placed before him and selected the petitioner for the post st<~:ting that
"among the present set of senior officers-E.P. Royappa is the
best suited for· the post" and "he may, therefore,-be promoted as
Chief Secretary". This note was approved by .the Gove~nor on the
same day, namely, 12th November, 1969. On the next day, that is,
13th November,
1969 the draft order in
regard to the appointment
of the petitioner was prepared and it was approved by the second rc.s
pondent. The draft order stated int~r alia that the petitioner "is pro:...
mated and posted as Chief Secretary vice Thiru Ramakrishnan, I.C.S. ·
retiring from service with effect from the afternoon of 13th November.
1969". The final order in the name of the Governor duly authenticated ·
by. the Chief Secretary was issued on the same day but it was differently
B
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worded in one material respect. .Paragraph 5 of that order ·provided
that th::: petitioner "is promoted and pos~d to act as Chief Secretary to E
Government
vice Thiru Ramakrishnan,
I.C.S. who has been granted
refused leave with effect from 14th November 1969." The reference
here was to the fact that Ramakrishnan .has been granted refused leave
•
"
'-'--
..
,
-I
~
for four months from 14th November, 1969 under Fundamental Rule
86, cl: (a). The petitioner was accordingly promoted as Chief Secre.- r
tary. Whether such promotion was by way of substantive appointment · ~'
orhin an odffic
1
iatil!gh cahpacity is a matfterhwhich. we woul_d have to dcci4~ ,j: . . t
w eri. we ea Wit t c arguments o . t e parties. ·. · :
. ~ '. :'i • . . . .
On 1st April, 1970, the Government of India. proposed that in
view ·of the fact that the ·responsibilities of Chief Sccretacy to State
Government had multiplied · and become complex to such an· extent
that
they would no longer
be. regarded as less onerous than those of
Secretary to the Government of India: the . post of Chief Secretary
to State. Government should -be equated to the post "of Secretary .to
the <_:iovernment-of India in respect of pay and invited the comments,
of· various State Governments -on this pro~osal. -The State of Tamil ·
Nadu-conveyed its-assent to the -proposal· but suggested that since·
the, posts ·of Chief Secretary and Frrst ·Member. Board ·of Revenue
in the State _were equal in ·status and interchangeable; both these
posts .should
be
·upgra~ed ·to ·that-of Secretarjr· to the .. Goemmerit
of ]ndia. · The Government. of India did ,not accede to· the !equest
of the State of Tamil Nadu in so far as the post of Fi~t Member,
,G •
H
E. P, P.OYAPPA V. TAM[L NADU (Bhagwati, ].)
A Board of ;Revenue was cooccmed, but in regard to the post of· ~f
Secretary, amended Sch. Ill to the Indian Administrative Service
(Pay) Rules, 1954 by a .ootihcation dated 31st August, 1970 raisin'
the. pay of Chief Secretary from Rs. 3,000/-toRs. 3,500/-per month
so as to bring him on par with Secretary to the Government of India.
The rank and status of the post of Chief Secretar"y was thus enhanced
B
and that post
was raised above every other cadre post in the
State
including the post of First Member, Board of Revenue.
The general elections
to the
Parliament· and the State Legislature
weco held in Tamil Nadu in the first week of March 1971. The
rellults of the poll were declared on 11th March, 1971 and the DMK
party under the leadership of the second respondent retained its
majority in the State Legislature and formed the new Government
C with the second respondent as the Chief Minister. According to
the petitioner, there were several matters in which he had the
.W.fortune to incur ~ displeasure and wrath of the second res
pondent dllling the period prior to the elections as also at the time
of tho elections whilst actin& in. disc~ of his duties as Chief
Secretary, and the second respondent, . theJtefore, on being returned
to power, decided
to
remove him from the post of Chief Secretary.
D With that end in \Tiew the second respondent announced at a ~
Conference held by him at mid·night on 6th Apri1., 1971 that the
petitioner was transferred. as Deputy Chairman of the State Planninc
Commission. There wrua no State Planning Commission in existence
on that date though
it appears that the proposal to set it
up bad
been under consideration of the Government for some time. The
petitioner was also not given any inkling of the proposed appointmeat .
E and he came to learn about it for the first time on readin&r; the news
papers in the morning of 7th April, 1971. The formal order in this
connection
was issued by the
Stato ~ernment on 7ti. April, 1971
and by this order the State Gov~t accorded sanction to tlae.
creation of a temporary post of Deputy Chairman in the State Plaa
ning Commission in the grade of Otief Secretary .for !!-period of one
f year with effect from the date of appointment and appointed the peti
tioner
to that post providing that he shall be entitled to the same
rank
and emolumcmts as admissible to the post of Chief Secretary. The
petitioner obviously felt
that he was
being denigrated and he, thece
fore, did not join this post and went on lea-ve from 18th April, 1971 ·
and the leave was renewed by him from time to time upto 5th June,
1972. The State Planning Commission was in the meantime con-
G stituted on 25th May,
19?1. and since the petitioner was on leave,
u
order dated 19th August, 1971 was issued by the Stato Government
directing, in modification .of the earlier order dated 7th "April, 1971,
that the post of Deputy Otairman should be deomed to have been
sanctioned for a period of one year from 13th April, 1971 and that
Raja· Ram, who was First Member, Board of Revenue, should · be
placed -in charge of that post until further orders. The post of Deputy
Chairman having been created for a period of one yoar only, came
H to an end ort 13th April, 1972 and it was not thereafter.continued
until 6th
June, 1972 when it was again revived on return
of the peti
tioner from leave .. The State Go-vernment passed an order dated 6th
J2-Lmscrt64
31-l
SUPREME COURT REPORTS [ 1974] 2 S.C.R.
II
June, 1972 sanctioning on(;e a~ain the creation of a temporary post
of Deputy Chairman on a pay of Rs. 3,500/-per. month for a period
o£ one year and appointing the petition~ to that post on return from
leave. Against this order the petitioner made a representation to the
second respondent
on 7th
June, 1972 stating that, without the approval
of the ·Central Government, the continuancE of the post of Deputy
Chairman in the rank of Chief Secretary for a period of more than
one year would be invalid under r. 4(2) of the Indian Administrative
Service (Cadre) Rules, 1954. How far this contention was valid is 3.
matter we shall presei!tlY examine and it need not detain us. . The
next event that happened.was-whether as a sequel to the reprcsenta·
tion of the petitioner or not, we do not know-that the· State Govcm~
inent issued an order dated 26th June, 1972 sanctioning the creation
A
n
of a temporary post of Officer on Special Duty "of the rank of .Mem~ c
. ber, Board of Revenue" for a period of one year for streamlining and . ·
rationalising the structure of Tamil Nadu General Sales Tax Act and
similar enactments relating to commercial taxes and rules. On the next
day, i.e., 27th June, 1972 another order was issued by the State
Government modifying the earlier . order to the e!Icct that the tempo
rary post of Officer on Special Duty shall be "in the. grade of Chief
Secretary to Government" and appointing the petitioner to this post.
The petitioner did not join this post too and proceeded on long leave
which continues till to-day. We enquired of the learned Advocate
General who appeared on behalf of the State of Tamil Nadu t\S to what
arrangement had been made to fill the post of Officer on Special Duty
in 'the absence of the petitioner who had gone on leave and in answer
to our inquiry, we were informed by him that a Member of the Boord
of Revenue was discharging the functions of . this post in addition to
his normal functions. It may be winted out here that after tho peti
tioner was transferred from the post of Deputy Chairman and appoint~
ed Officer on Special Duty, an order dated 29th June, 1972 was passed
by the . State Government abolishing the post of Deputy Chairman
sanctioned under the earlier order dated 6th June, 1972, sanctioning
the creation of a new post of Deputy Chairm!l.n "in the g~ade of First
Member,
Board of
Revenu£" on a pay of Rs. 3,000/-per month and
aopolnting Raja Ram; First Member. Board of Revenue to that post
4
'in addition to his appointment as First Member, Board of Revet\ue".
One other fact may also be noticed-and that is a little irnportant-
that nn transfer of the petitioner fro111 the. oo•;t of. Chief Secrctan',
one Sabanayagam, who was admittedly junior to' the petiti.oncr, was
promot~ as Chief Secretary and we are told that he has been confirm~
ed in that pos-t. The petitioner was obviously hurt by these mther
disint!enuous moves artonted by the State Government at the instanc~
of the second respondent to remove him from the post of Chief Scc
retarv
and he, therefore, filed the present
·oetitioQ. under Art. 32 of
the Constitution challengini! the validitv of his transfer from tho post
of Chief Secretary, first to the post of Deoutv Chairman,· State- Plann
ing Commission and then .to the post. of' Officer on Special Dutv, on
th~ followin<l' crnunds. name1v. ( 1 ) it wa-; contrarv to the nroviso to
r. 4(2) of the Indian Adffiinistrati:vo .. ~rvice (Cadre) Ruks,. 19541
3nd r. 9. sub-r. (1) of the Indian Administrative Service (Pav) Rule~.
1954; (2) it wn<; violative of Arts. 14 nnd 16 of the Cor.-tittttion ::1.s
lJ
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E, P. ROYAPPA V, TAl\IIL NADU (Bhagwati, J.) 377
the. posts of Deputy Chairman, State Planning Commission and Offi·
cer on Special Duty were inferior in rank and status to that of the
Chief Secretary; and ( 3) it was made in mala fide exercise of power,
not on account of exigencies of administration or public service, but
because the second respondent was annoyed with the petitioner on
account of various· incidents rcfet;rcd to in the petition, and wanted him
out of the way. We sl}.~ll elaborate these grounds as we proceed to
discuss them.
But before we examine these . grounds we must first determine
what was the nature of the appointment when the petitioner was pro·
moted as Chief Secretary. Was he promoted in aj substantive capacity
or in an officiating capacity ? The contention of the petitioner was
that he was appointed substantively to the po. s.t of Chief Secretary and
for this purpose
he relied on the draft orcfer approved by the second
respondent as well as the Governor which did
not use any
words.
~uggesting that his promotion was in an acting capacity and promoted
and posted him as Chief Secretary without any qualifying or limitative
. words. The petitioner of.course could not dispute that the words
used in the authenticated order were "promoted and posted to act
ll~> Chief Secretary", but his argument was, firstly, . that the words
"to' act" qualified only "posted" and not "promoted" and in this con·
text they meant nothing more than this, namely, that the petitioner
was posted to function or work as Chief Secretary and not that he
was promoted
in an acting capacity,
~d secondly, that even if ti:te
words "to act" had the effect of makmg promotion an acting one,
the authenticated order did not correctly embody the real decision of.
the State Government which was to be found in the draft .order and
the draft. order must, therefore, prevail over the authenticated order.
TI1e respondents sought to repel this contention by a two.fold argument..
The first argument was based on the tenus of the authenticated order ·
and it was said that that was the final order duly authenticated by ·
the then Chief Secretary and it was not open to the petitioner to go
?ehind that order and ~efer to the draft order for purpose of varying
It., terms. The authenticated order, contended the .respondents, dearly ·
&bowed that the promotion and posting of lhe petitioner as Chief
~ccretary was in an officiating capacity. The other argument urged
In the alternative was that though Ramakrishnan retired on attaining
the age
of superannuation on the afternoon of 13th November, 1969,
he was granted refused leave .
for a period of four months
after the
date
of his retirement under Fundamental Rule 86, cl. (a) and his
service was, therefore, extended and he continued to retain his
lien
on the post of Chief Secretary until the expiration of such period of
four months,
i.e, up to 14th March, 1970
and the petitioner could
not. therefore, possibly be appointed substantively to the post of
Chief Secretary till that time. We think. on a consideration of these
arguments, that the contention
of the petitioner that he was promoted
as Chief Secretary in a substantive capacity
is not well founded.
. . ·- .
The authenticated order provided in terms clear and e;plicit that
the petitioner was promoted and posted to act as Chief Secretary. 11l~
words "to act", according to plain grammar and language, governed
not only "posted'' but also "promted", The petitioner was both
378
SUPREME COURT REPORTS [ 1974] 2 s.c.R.
"promoted and posted" as one single composite event, "to act" as
Chief Secretary and that clearly meant that the promotion was in an
acting capacity. But the argument of the petitioner was that the
words "to act" were not to be found in the draft order which recorded
the original decision of the State Government and they were introduced
in the authenticated order by mistake and should therefore be ignored,
or in other words, the authenticated order should be read without the
words "to act" so as to be in conformity with the draft order. The
respondents resisted this attempt to go behind the authenticated order
and c.ontended
that the authenticated order was the final order and
it was not open to the petitioner to say that it did not correctly
retlect
the order as made by the State Government. We do not think this
contention
of the respondents is sound. It
is now well ,settled law
that when
an order is authenticated, the only challenge that is
ex
cluded by the authentication is that it is not an, order made by the
Governor. The validity of such an order can be questioned on other
ground,s. [Vide King Emperor v. Shivnath Banerjee(l) and State of
Bihar v. Sonabati(
2
)
]. The authentication does not, therefore,
_pre
clude the contention that the order though made by the Governor
suffers from some other infirmity.
The authenticated order is merely
an
expression of the actual order which precedes it and which is made
by the appropriate authority entitled to act on behalf of the State
Government. As pointed out by this Court in Srate of Bihar v.
Srmabati(2-"the _Process of making an order precedes and is different
from the expression
of
it". It should, therefore, be axiomatic that i!
the authenticated order doe5, not correctly reflect the actual order
made,
or to put the same thing differently, the actual decision taken
by the
State Government, it mus~ be open to correction. The tonnal
expression of the order cannot be given such sanctity that even if
found to be mistaken, it must prevail over the actual order made and
override it. That would not be consonant with reason or principle,
It would be an artificial rule calculated to obstruct the cause of truth
and justice. Here in the present case it is the citizen who contends
that the authenticated order does not correctly reproduce the actual
order made
by the
State Government. But there may conceivably
be cases where the Government may also find that !here is a mistake
in the authenticated order and
it requires to be rectified. Take for
example a case where the actual
decision taken by the State Govern
ment is that a person should be appointed to a post in an officiating
capacity but by mistake the appointment is described as substantive
appointment in
the authenticated order. Can it be suggested in such
a case
that the Government cannot
rectiJly the mistake by amending
~he authenticated order so as to bring it in accord with the real deci
sion
? We have, therefore, no doubt that it
was1 competent to the
petitioner
to contend, by reference to the draft order which
containe~
the original decision of the State Government. that the authenticated
order did not correctly reflect Sl!ch decision and suffered from an error.
But the question is whether such contention can succeed.
Now,
if we loolc at the
c4:aft ordedt is clear that it merely uses
the words "promoted and posted as Chief Secretary". It is silent as to
(1) 72 I.A. 241. (2) [1961] 1 S.C.R. 746
A
B
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A
B
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E. P. ROYAPP,A V. TAMIL NADU (Bhagwati, /,) 379
the nature of the promotion. It does not say whether the promotion
is by way of substantive appointment or
in au officiating
~pacity. It
could be either, consistently with the words used. It is the
authenticated order which says for the first time clearly and
definitely
by using the words
"to act" that the promotion is in an
officiating capacity. There is thus no inconsistency between the draft
order and the authenticated order from which any eror can
be spelt
out in the authenticated order. The authenticated order in so far
as
it uses the words "to act", does no more than speak on a matter on
which the draft order was; silent. It appears that before issuing the
authenticated order the appropriate authority applied its mind to the
question as to whether the promotion should
be in a substantive
capacity
or in an officiating capacity and since Ramakrishnan was
going
on reflused leave for four months from 14th November, 1969 and
was accordingly,
as we shall presently point out, entitled to retain
his lien on the post of Chief Secretary till that date, decided that the
promotion should be an officiating one as indeed it could not be other
wise, and that
is why the authenticated order was issued with
the
addition of the words "to act" after the expression "promoted . and
posted". There is of-course no positive evidence to this effect, but it
would appear to be a reasonable inference to make in view of the
substitution of the words "retiring from service with effect from . the
afternoon of 13th November, 1969" in the authenticated order. It is,
therefore .•. clear that the authenticated order correctly reflected the
final d~.Jston of the State Government and under it the promotion
0
{
the pehttoner w·as in an acting or officiating capacity.
The alternative argument. of the respondents must also lead us tG
the same ctmclusion. This argument has been dealt with in the judgment
of the learned Chief Justice and
we do not think we can usefully add
anything to what has been stated there by the learned Chief Justice.
We entirely agree with the reasoning and the conclusion of the
learned Chief Justice on this point and hold
that since Ramakrishnan
proceeded on
refuged leave for a period of four months
from the date o~ his superannuation he continued to . retain
his lien on the post of Chief Secretary until 14th March, 1970
during the period of refused leave granted to him, and the promotion
of the petitioner under the order dated 13th November, 1969 could
not
therefore be otherwise than in an
officiating capacity. The post of
Chief Secretary became vacant on 14th March, 1970 but at no time
thereafter the petitioner was confinned as Chief Secretary and he
had, therefore, no right to hold the post of Chief Secretary at the date
w~el? he was transferred as Deputy Chainnan, State Planning Com
mtsston. But that does not mean that he was not entitled to be con
sidered for confirmation, and since he was not confirmed, but Subana
yagam, who· was junior to him, wa
51 promoted and confirmed, the
question must inevitably arise whether what was done was
in mala
fid~
e~ercise ot power or in violation ot Arts. 14 and 16 of the Constitu
tiOn.
We now turn to the first ground of challenge which alleges con
travention of the second proviso tor. 4(2) of the Indian Administrative
Service (Cadre) Rules,
1954 and r. 9,
sub-~. (1) of the Indian Admi-
380 SUPREME COURT REPORTS [ 1974] 2 S.C.R·
.nistrative Service (Pay) Rules, 1954. So far as the second proviso
to r. 4(2) of the Indian Administrative Service (Cadre) Rules, 1954
is concerned, we do not think it has any application. That proviw
merely confers limited authority on the State Government to make
temporary addition to the cadre for a period not exceeding the limit
therein specified.
The strength and composition of the cadre can
be
determined only by the Central Govemmeot under r. 4( 1) and the
Central Government alone can review it trienially or at any otl1er
iutermediatc time under r. 4(2). The State Government cannot add
to the cadre a. different category of posit than that already existing ·in
the cadre, nor can it make any permanent addition to the number
of posts of a particular category in the cadre, for to do so "!OUld
mean, in the first case, alteration in the composition of the cadre,
and in the second, alteration in the strength oJ the cadre, both o~
which would be impermissible to the State Government. But the
State Government can, by virtue of the relaxation granted by the
second proviso, make temporary addition to the cadre provided the
post added carries duties or responsibilities of a like nature to a cadre
post. This would mean, as pointed out by the Government o( India
in its decision recorded at 4.1 at page 741 of the All India Service~
Manual (Second Edition) : "The exercise of this power by the ·State
Government with reference to a post involves an obje<;:tive a~ment
of the nature of the duties and responsibilities attached to that post
in comparison
to those attached to a cadre post. Thus posts
cannot
be added temporarily to the cadre unless such posts already e:xisl in
the cadre". The State of Tamil Nadu could not, therefore, add the
pos~s of Deputy Chairman, State Planning Commission and Officer on
Special Duty under the second proviso, as these posts did not exist
fn the cadre as constituted by the Central Government. They were
new categories of posts ·'created by the State Government. The second
proviso
to r. 4(2) has, therefore, no application and the
challenge
based on it must fail.
The petitioner is, however, on firmer ground when he bases hi~
challenge under r. 9, sub-r. (1) of the Indian Administrative Service
(Pay) Rules, 1954. Rule 9, in so far as material, provides as follows :
"(1) No Meml;ler of the Service shall be appointed to
a post other than a post specified in Schedule III, unless
the State Government concerned in respect
of posts under
its control,
or the Central
Government in respect of posts
under its control, as the case m~y be, make a declaration
that the said post is equivalent il). status and responsibilitv
to a post specified in the said Schedule.
(2) The pay of a member of the Service on appointment
to a post other than a rost specified in Schedule III shall be
the same as he would have been entitled to, had he been
appointed
in the
pQ5t to which the saia post is declared
equivalent..
( 3)
:XXX XXX :XXX
( 4) Notwithstanding anything contained in this rule.
the State Government concerned in respect of any posts
c
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E. P. ROY/1-PPA V, TAMIL NADU (Bhagwati, J.) 381
A under its control, or the Central Government in respect of
any posts under its control, may for sufficient reasons to be
recorded in writing, where equation is not possible, appoint
any member of the Service to any such post without making
a declaration that the said post is equivalent in status and
responsibility to a .post $J>ecified in/Schedule ill."
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Tliis rule is intended t~ provide a safeguard l>r the protection at a
member of the Indian Administrative Service. Sub-r. ( 1) enact9 that
no member of the Indian Administrative Service shall be appointed
to a post other than a pos~ specified in Schedule Ill, or in other ~ds,
to a non-cadre post unless the Government makes a declaration that
sucb non-cadre post is "equivalent in status and responsibility'' to a
post specified in the said Schedule, i.e., to a cadre post If the State
GOvernment wants to appoint a member of the Indian Admini8tlative
Service to a non-cadre post created by it, it cannot do so unlts.J it
makes a declaration setting out which is t.he cadre post to which such
non-cadre post is equivalent in status and responsibility. The making
of such a declaration is a sine qua non of the exercise of power under
sub-r. (1). It is! not an idle fonnality which can be dispensed with. at
the sweet·will of the Government. It has a purpose behind it and
that is to ensure that a member of the Indian Administrative Service
is not pushed off so a non-cadre post which is inferior in status and
responsibility to that occupied by him. So far as cadre posts are
concerned, their hierarchy would be known, ·but a non-cadre post
created . by the Government would be stranger in the hie.rarchy, and
that is why sub-r. ( 1) requires that before appointing a member of
tlie Indian Administrative Service to such non-cadre post, the Go~m
ment must declare which is the cadre post to which such non...cadre
post is equivalent in status and responsibility, so that the member of
tile Indian Administrative. Senice who is appointed to such non...cadre
post, would know what is the status and responsibility of his post in
Lerms of cadre posts and whether he is placed in a superior, or ~ual
post or he is brought down to an inferior post. If. it is the latter, he
would be entitled to protect his tights by pleading violation of Art.
311 or Arts. 14 and 16 of the Constitution, whichever may be appli
cable. That would provide him effective insulation against unjust or
unequal or unlawful treatment at the hands of the Government. The
object of'this provi·s-ion olearlv ·i! to ensure that the public service!!
are, in the discharge of their duties, not exposed to the demoralising
and depraving effects of personal or political nepotism or victimisation
or the vagaries of the political machine. The determination of eqW..
valence is, thereibre, made a condition precedent before a member Of.
the Indian Administrative ServiCe can be appointed -'to a non-cadre
poSt under sub-r. (1). It is a mandatory requirement which must be
obeyed. The Government must aoply it
51 mind to~ tbe nature and
responsibilities ot the ·llnctions and duties attached to ·the non-cadre
pOst and determine the equivalence. There the pay attached to the
non-cadre post . is not material. As pointed out by the Government
of India in li decision given by it in MHA letter No. ·32/52/56-AIS(U)
dated 1Oth J ul v. 19 56' the basic criteril)Jl ·for the determination of
equivalence is "the natute and responsibilities of duties attached to the
post
and not the
PlY attached to the post". Once the declaration of
.382 SUPREME COURT REPORTS [ 197~ ] 2 s.c.R.
equivalence is made on a proper applieation of mind to the nature
.and responsibilities
of the functions and duties attached to
th~ non·
cadre post, sul>-r. (2) says that the pay of the member of the Indian
Administrative Service appointed to such non-cadre post shall be
the same as he would have been entitled to~ had he been ap~ointed
in the cadre post to which such non-cadre post is declared equ1valent.
He is thus assured the pay of the equivalent cadre post and his pay
is protected. Now this declaration
of
equivalen~e, though imperative,
is not conclusiveJn the sense that it can never be questioned. It would
be open to a member of the Indian Administrative Service to contend,
nQtWithstanding the declaration of equivalence, that the non-cadre
post
to which he
iS1 appointed is in truth and reality inflerior in status and
responsibility to that occupied by him and his appoiatment to such
.p.on·cadre post is in violation of Art. 311 or Arts. 14 and 16. The
burden of est;ablishing this. would undoubtedly .be heavy :and th~
court would be slow to interfere with the declaration of equivalence
made. by the Government. The Government would ordinarily be the
best Judge to evaluate and compare the nature and responsibilities
to the ru~ctions and duties attached t,o different posts with a view to
.determmmg whether or not they are equivalent in status. and respomi
bility and when the Govrrnment has declared equivalence after proper
application of mind to the relevant factors, the court would
be
,uosr
reluctant to venture into the uncharted and unfamiliar field of admi
nistration and examine the correctness
of the declaration ot equiva
lence made by the Government. But where it appears
to the court
that the declaration of equivalence is made without application of
mind to the nature and responsibilitjes
of the functions and
duties.
attached to the non-cadre post or extraneous or irrelevant factors
are taken into account in determining the eq~valence or . the
nature and responsibilities of the functions and duties of the
two posts ate
so dis-s·imilar that no reasonable man can possibly
say that they are equivalent in status
or responsibility or the
declaration
of equivalence is mala fide or in colourable exercis~ of power or
it is a cloak f.or displacing .a member of the Indian Administrative Ser
vice from a cadre post which he is occupying, the court can and
certainly would set at naught the declaration of equivalence and affOrd
.protection to the civil servant. The declaratio~ of equivalence mus-t,
however, always be there if a member of the Indian Administrative
Service is to be appointed
to a non-cadre post. The only exception
to this rule is to
be found in sub-r. (4)
and that applies: where the non
cadre post is such that it is not possible to equate it with any cadre
post. Where the Government finds that the
equation is not
possible,
jt can appoint a member of the Indian Administrative Service to a
non-cadre post but only for sufficient reasons to be recorded in writing,
This again shows that the Government is required to apply its mind
and make an objective assessment on the basis· of relevant factors for
determining whether the non-cadre
post to which a member
o:fl the
Indian Administrative Service is sought to be appointed can be equated
to a cadre post, and
if
SQ, to what cadre post it can be so equated.
This
is the plain requirement of r. 9, sub-r. (I) and the
que&tion i~
whether the appointment of the petitioner to the non-cadre posts of
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I?e_puty Chairman, St_ate Planning Commi~sion and Officer on Spe~ial
Duty was in compliance with this tequirement.
Turning first
to the appointment of the petitioner as Deputy
Chair·
man, State Planning Commission, it was made by the order dated
7th April, 1971. The Government by this order sanctioned the c,.a
iion ot a temporary .post of Deputy Chairman "in th~ grade of Chief
Secretary" and appointed the petitioner to this post, stating that , he
would be entitled to the same rank and emoluments as admissible tu
the Chief Secretary. Howsoever favourably to the State Government
we may try to
read this order, it is not. possible to discern in it any
trace of
a declaration that the
State Government found, on an objec·
tivc assessment of the nature and responsibility of the functions· and
duties attached to the post of Deputy Chairman, that it was equiva
lent in status and responsibility to that of Chief Secretary. It is one
thing to create a post of Deputy Chairman in the grade of Chief
Secretary and another to determine, on an objective assessment of the
nature and responsibilities
of the functions and duties, that the post
of Deputy Chairman is equivalent in status
and responsibility to that
of Chief
Secretary. Here the State Government seems to have pro
.· ceeded on the hypothesis that it can create a non-cadre post in the
rank or grade of any cadre post it likes, irrespective of the nature
and respon~ibilities of the functions and duties attached to such non~
cadre po~t and that would be sufficient compliance with the require~
ment of r. 9, sub-r. ( 1 )·, But that hypothesis is plainly incorrect.
The State Government cannot artifically create equivalence by saying
that
a particular
non~cadre post, whatever be the nature and respon
sibilities
of the functions and duties attached to it, shall be in the
rank or grade of any cadre post it likes. The
State Government has
to apply its mind and make an objective assessment of the nature and
respon$ibilities
of the functions
and duties and determine which is the
cadre post to which such non-cadre post can be regarded as equivalent
in status and responsibility and then only it can make a declaration
of equivalence. This exercise does not seem to have been gone
through by the State Government when it made the order dated 7th
~ril, 1971 sanctioning the creation of the post of Deputy Chairman
and appointing the petitioner to that post. This becomes abundantly
dear if we look at the subsequent orders. As we have already pointed
out above, the post of Deputy Chairman first created came to an ·end
6n 13th April, 1972. Thereafter there was no post of Deputy Chair
man till 6th June, ·1972 when it was cre{lted once again by the order
dateJ 6th June, 1972. Strangely enough this order, unlike the earlier
order
dated 7th April, 1971, did not even mention that the post of
Deputy Chairman was in the grade or rank of Chief Secretary. It
merely prescribed the
pay which shal. attach to the post of Deputy .
Chairman. There W!l.S admittedly no declaration in it eq uatin~ the
post of Deputy Chairman to that of Chief Secretary. Then we come
to the order dated 29th June, 1972. This order is most eloquent.
Jt abolished tl1e post of Deputy Chairman created under the order
dated 6th June, 1972 and sanctioned the creation of a fresh post of
Deputy Chairman "in the grade of First Member. Board of Revenu<'"
Qn a pay of Rs. 3,000/-per nJonth and appointed Raja Ram, First
J84 SUPREME COURT REPORTS [ 1974 J 2 s.c.R.
Member, Board of Revenue to that post. Now it was not the c~e
of the respondents that when the post of Deputy Chairman was SaJI.C
tioned again by this order, there was any change in the nature and
responsibilities of the functions and duties attached to the post of
Deputy Chairman. These remained the same, namely, what they
were when the post of Deputy Chairman was first created under the
order dated 7th April, 1971 and then again under the order dated
6th June, 1972. If that be so, how could the .post of Deputy Chairman
be declared to be equivalent in status and responsibility to the post
of Chief Secretary at one time and to the post of First Member, Board
of Revenue at another. The nature and responsibilities or the func
tions and duties remaining the same, the equivalence, which is a matter
of objective assessment, could not vary from time to time. This
dearly shows that the Government did not apply its mind and objec
tively determine the equivalence of the post of Deputy Chairman but
gave it a rank or grade according as who was going to be appointed
to it. That is in fact what the State Government bas categorically
and in so many terms admitted in paragraphs 25(b) and 28 of itfi
affidavit in reply : "Since Thiru M. G. Raja Ram was drawin~ only
a salary
of Rs.
3,000/-per month there was no option but to down
grade the post" :-"With the recent appointment of Thiru M. G. Raja
Ram as Deputy Chairman of the Planning Commission the post has
been equated to that of the First Member, Board of Revenue". But
thi~ is precisely what is impermissible. The status and responsibility
of a non-cadre post for the purpose of determining equivalence cannot
depend on who is going to occupy it. It is really the other way round.
The equivaleace in status and responsibility determined on an C?hjec
tive assessment of the nature and responsibilities of the functions and
duties attached to the post should decide which officer should occup•
it. It may be pointed out that, even if the order dated 7th April,
1971 be construed most liberally in favour of the State Government,
which, in our opinion, should not be done when there ts a contest
between
a public servant and the State Government it did not contain a declm·ation of equivalence in regard to ''responsibility". There can,
therefore. be no doubt that the appointment of the petitioner to the
post of Deputy Chairman was in contravention of r. 9(1). But ~
cannot grant relief to the petitioner on this ground, because, as ad
mitted by him in his letter dated 7th June, 1972 addressed to the
socond respondent, he accepted the appointment without d~mur as
he though that the post of Deputy Chairman "was of the same rank
and carried the same emolnments as the post of Chief Secretary'' and
actually stated in a chat with newsmen on 7th April. 1971 that ''he
was lookiu~ forwaro with confidence to dischar~e the duties of the
Deputy Chiarman. Planning Commission. which is considered a cbat·
len¢ng task'', and he cannot now be permitted to chaUenJ!e the validity
of th~ appoiutmcnt.
So far ·as the question of validity of the appointment to the post
of Officer on Special Duty is concerned, ·weJhink that this appoint
ment also suffers from the s~me infirmity. The ord'!r dated 26th
June. 1972 first created the DOSt of Officer on Special Duty .. of
the rank of Member, Board of Revenue", but on the next day, when
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it was decided to appoint the petitioner to that post, th~ order dated
26th June 1972 was modified by the order dated 27th June, 1972
and the p~st of Officer on Special Duty \Yas crea+ed ''in the grade of
Chief Secretary". These two orders dated 26t~ June, 197_2 ~d
27th June, 1972 being of the same na~re and m almost 1denhcal
words as
the order dated 7th April, _1971, what we have said
abOe
in regard to tne order dated 7th April, 1971 must apply equally in
relation
to these two orders dated 26th June, 1972 and 27th June,
1972.
It is clear for reasons we
hav~ already discussed while deal
ing with the ord~r dated 7th April, 1971, that in making these two
orders dated
26th June, 1972 and 27th June 1972, the State
Gov-
ernment proceeded on the wrong assumption that 1~ c~n create a
non-cadre post in the rank or grade
of any cadre post 1t hkes, regardless of the nature and responsibilities of the functions and dutie~ ~t
lached to such non-cadre post. The State Government first created
the post of Officer on Special Duty in the rank of Member, Board
of Revenue and on the very next day, because it was decided that
the petitioner should be appointed to that post, converted it into one
in the grade of Chief Secretary. This shows clearly that the State
Government did not apply its mind and determine on an objective
appraisal of the nature and responsibilities of the functions and
duties attached to the
post. of Officer on Special Duty whether it
was equivalent in status and responsibility to the post ot Member, Board of Revenue or to the post of Chief Secretary. The nature
and responsibilities of the functions and duties attached to the post
of Officer on Special Duty could not change in a day and indeed it
was not the case of the respondents that they changed at any time.
If that be so, how could the post of Officer on Special Duty be
declared to be equivalent in status and responsibility to the post of
Member, Board of Revenue on one day and to the post of Chief !)ec(c
tary, on th~ very next day. Either it was equivalent to the post of·
Member, Board of Revenue or equivalent to the post of Chief Secre
tary. But it could not be equivalent to one post at ,one time and to
aAotber post at another time, when the nature and responsibilities _of·
the functions and duties attached to it remained the same. This .
establishes beyond doubt that, in making the orders dated 26th June,
1972 and 27th June, 1972, the State Government did not apply its
mind
and objectively determine the
equivalen~ of the post of Officer ·
on Special Duty, but gave it a rank or grade according as who was the
officer going to be appointed to it. That is in fact what the State:
·Government clearly and in so many words admitted in paragraph 28
of its affidavit in reply : "-although the post of Officer on Special
Duty was first created in the rank of Member Board Qf Reven\le
with the appointment of the petitioner to that post, the status of that
post was equated to that of the Chief Secretary". ThiS' is also borne
out by the fact that when the petitioner went on leave, a Member of ·
the Board of Revenue was appointed to discharge the functions of the
post of Officer on Special Duty and that post was once again brou3ht
down to the rank of Member, Board of Revenue. The order dated ·
27th June, l 972 in any event did not contain any declaration as to
· equival~ce in "responsibility". There was thus no compliance with
the requ1rement of r. 9, sub-r. ( 1) and the appointment of the peti-
386 SUPREME COURT REPORTS [ 1974] 2 s.c.R.
ti~mer to th~ po~t of Officer on Special Duty was accordingly be liable
to be held mvahd for contraventiOn of that sub-rule. But we cannot
in tnis petitiOn under Art. 32 gtve wiet to tne petttioner by sll'Lkln&
d?wn. his appointment to the post of ~fficer on .special Duty, as mere
violation of r. 9, sub-r. (1) does not mvolve mfringement of any
fundamental right. We, however, hope that the State Government
wiU. not drive the petitioner to take appropriate proceedings for ob·
taining the nece&sary relief. ·
Th\: lust
two
grounds of challenge may be ta~en up together for
considcnnicm. Though we have formulated the th1rd ground of clwl·
lenge
as
a di~tinct and separate ground, it is really in sub~tance and
,effect merely an aspect oi the second ground based on violation oi
Arts. 14 and 16. A~. 16 embodies the fundamental guarantee that
.there shall be equality of opportunity for all citizens in matters relat·
ing to employment C!I' appointment to any office under the State.
Though enacted as a distinct and independent fundamental right be·
cau.se ?f its ~eat importance as a principle ensurirrg equality of oppor·
tumty m pubJtc e~pJ?yment. which i.s so vi~l to the building up of the
new classless egahtanan soctety envtsaged m the Constitution Art. 16
. is -;niy ~n instance of the appJ.ication elf .the concept of equ~ity en
-~hrmed mArt. 14. In other words, Art. 14 is the genus while Art. 16
~s a spectes, ~rt. 16. giv~s effect to the doctrine oi equality in all
matters re~atmg to public employment The basic principle which,
ther_efore,_mf_o~s ·?oth Arts. 14 ~d 16 .is equality and inhibition
agamst dtscnmmauon. Now, what JS the content and reach of .this
great equalising principle?
It is a founding faith, to usc the words or l:i~se, ~.,-"a way of life", and it must not be subjected to a nar.row
pedanttc or leXIcographic approach. We cannot oountenance any
:attempt
to truncate its
all-embracing scope and meaning, for to . do
so wuuld be to vic!ate its activist magnitude. Equality is a dynamic
concept with many a~pects and dimensions and it cannot be "cribbed.
cabioed
and confined"
within traditional and doctrinaire limits. From
a po's ivistic point of view, equality is antithetic to arbitrariness. In
fa(;t. equali')' and arbitrariness are sworn enemies; one belongs to the
rule ctf law· in a republic while the other, -o the whim and caprk:e of
an absolute monarch. Where an act is arbitrary it is implicit in it that
it is unequ.ll both according to political logic and constitutional iaw
and is therefore violative of Art. 14, and if it affects any matter relat
i.ng·to J.Ublic employment, it is also violative of Art. 1.6. Arts. 14 and
.lb strike at arbitrariness in State action and ensure fatmess and equa·
lity elf treatment. They require that S~te .action ~us_t be _based or.
valent relevant principles applicable alike to ~1 similarly stt?ate . and
it must not be guided by any extraneous or rrrelevant _con~1deratron~
bectause that would be denial of equality. ";'here . the ~pcratiVe reason
for State action, as distinguished from mottve mducmg fr~m the
·antechamber of -the mind, is not le&i;tUp.ate and. relev~nt bu~ 1s extra·
. neous and cl\ltside the area of penmss1ble constderat10ns, It would
.amount to mala fide exercise of power and that is hit by Arts. 14 and
. t6. Ma"' fide e~ercise of power and .arbitr.ariness are different lethal
.Yadiations emanating from the same VlCe : m fact the latter compre
:-hends the former. Both are inhibited by Arts. 14 and 16.
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It is aJso necessary to point out that the ambit and reach of Arts.
14 and 16 are not limited to cases where the public servant affected
has a right to .a post. Even if a p~blic servant is in au officiating posi
tion, he can complain of violation of Arts. 14 and)6 if he has been
arbitrarily or unfairly treated or subjected to mala fide exercise of'
.poWer by the State maqune. It is, therefore, no answer tc; the charg~
of infringetMnt of Arts. 14 and 16 to ~y that the petitioner had no.
right to the ~t of. Chief Secretary but was merely officiathig in that
post. 'Ibat.IDlght have some relevance to Art. 311 but not to Arts. 14.
and 16. We must, therefore, prcpeed to consider whether the transfer
of the petitioner first to the post of Deputy Chairman a.qd then to the·
post of Officer on Special Duty was arbitrary, hostile and is rna' a fide
exercise of power. What was the operative reason for such tran,:;fer;.
was it the exigencies of public adnnnistration cr extra administrative
considerations
having no relevance to the question of transfer
1 Was the
transfer
to the post of Deputy Chairman or Officer on
Special Duty so
irratiQn.al or unjust that it could not have been made by any reasc.n-
. able;administration except for colaterial reasons? These are the ques~.
tions ·which call for our ~nsideration.
Now, two important considerations must weigh with us in deter
mining our approach to these questions. First, the post of Chief·
Secretary is a highly sensitive post. It is a post of great confidence-a
lynchpin in the administration and smooth functioning of the
administration requires that there should be complete rapport and·
undC"rstanding between the Chief Secretary, and the Chief Minister ..
The Chief Minister as the head of the Government is m ultitnate·
charge of the administration and it is. he who is politically answerable
to
the
. people for the achievements and failnres of the Government.
lf, therefore, for any valid reason the Chief· Secretary forfeits the.
confidence of the Chief Minister, the Chief Minister ma:y legitimately,
in the larger interests of administration, shift the Chief Secretary to·
another ·post, provided of-course thtlt does· not i11volve violation of
a~y of his kgal or constituflional rights. There can be no question in·
S\lCb a case as to who is . right and who is wrong. The displacement ot ·
the Chief Secretary from his post in such a case would not. be arbitrary
.and it would not attract the inhibition of Arts. 14 and 16. It may,.
however, be pointed out that such an a9tion would not, we ·think:,
ordinarily be taken except for the most compelling reasons, because, ·
if resorted to without proper jtistification, it would tend to affect •he ·.
G
'{>()lilical neutrality of the public l)ervice and lead to demoralisation·
and frustration amongst the public servants.
Secondly, with the vast multitudinous activities in which a moderR·
State is engaged, there are bound to ~ some posts which require fOr
adequate discharge of their functions, high (Iegree of intelleet · and ·
·
specialised
experience. It' is ·atw11ys a difficult problem for the Govern~
men~ to. 1jnd · suitable-officers for such speeialised posts. There il.re not ·
ordi11arilv · many offioers who answer· the requirements of such s"""'a-·
11' · . Ji$ed . po~ts and· the cb.oi~ with the Government is very limit.ed'Md
tbis choice becomes all the more diffioult, because some of these posts,
though · impertant and having onerous responsibilities, do not carry-
SUPREME COURT RgPOR.TS [ 197~] 2 S.C.'I·
wide executive powers and officers may not, therefore, generally be
witling to be transfeqed to those posts. Tbe Government has in the
circumstances to make the best possible choice it can, keeping in view
the larger interests of the administration. When, in exercise of this
choice, the Government transfers an officer from one post to another,
the officer may feel unhappy because the new posts does not give him
the same amplitude of powers which he had while holding the old.
pOilt. But that does not make the transfer arbitrary. So long a:> the
transfer is made on account of the exigencies of administration and· is
not from a higher post to a lower post with discriminatory preference
of a junior for the higher post, it would be valid and not ope11 to
attack under Arts. 14 and 16.
Now, here the post of Chief Secretary was adinittedly a selection
poit and after careful examination of the merits of the senior moiit
·c1even officers of the Tamil Nadu Cadre of the Indian Administrative
Service, tho second respondent selected the petitioner for the post of
Otief Secretary. The petitioner worked as Chief Secretary from 14th
November,
1969 up to 6th April, 1911 and evidently during this period he acquitted himself creditably. It was not the case of either
of the respondents that the petitioner was not found equal to the task
-or that his work was not satisfactory. In fact the affidavit in reply
filed on behalf of the first respondent clearly indicates that the peti
tioner discharged the duties of his office efficiently and to the satis
faction of every one concerned. Yet the petitioner was transferred
first to the post of Deputy Chairman and then to the postof Offieer
·on Special Duty and in his place Sabanayagam, who was admittddty
junior to him, was not only promoted but also confirmed. The result
of confirmation of Sabanayagam as Chief Secretary was that the peti
tiol\er, though senior and proved competent, was permanently ex
cluded from the post of Chief Secretary. This clearly shows, contended
the petitioner, that his trarisfer first to the post of Deputy Chairman
and then to the post of Officer on Special Duty was not on account of
administrative reasons
but solely to displace him from the key post
of Chief Secretary.
That perhaps might have been legally
and consti
tutionally unobjectionable, if the post of Deputy Chairman and
Officer on Special Duty . were of the same status and responsibility as
the post of Chief Secretary, but the argument of the petitioner was
that neither of these two posts could be regarded as of equal statw
and· responsibility as. the post of Chief Secretary because the post of
Ch:ef Secretary is always a unique and unrivalled post in the State
administration. The transfer of the petitioner from the post of Chief
S.:cretary first to the post of Deputy Chairman and then to the post of
Officer on Special Duty coupled with the promotion and confirmation
of Sabanayagam in the post of Chief Secretary was, therefore, clearly
arbitrary and violative of Arts. 14 and 16. This contention, plausible
though it may seem, cannot
be accepted by us, because there is no
adequate material placed before us to sustain it. Th.e
premi~·~ on which
this contention is founded is that the posts
of Deputy Chairman
and
Offl,cer on Special Duty were not of the same status and respollSibility
as the post of Chief Secretary, but we cannot say on the material on
1·ecord that the validity of the premise has been established by the
peli~ioner. So far as the post of Deputy Chairman is concerned, the
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~89
petitioner himself accepted that post as being of the same status and
reiponsibility as the post of Chief Secretary and did ·not raise any
objection against it and we need not, therefore, say anything more
about
it. The only question is as to the post of Officer otl
Special
Duty. We think that this post ~as not been satisfactorily established by
the petitioner to be inferior in status and responsibility to the post. of
Chief Secretary. This of~urse does not mean, and we are not pre
pared to go as far as
the learned Chief Justice in asserting positively
that that post was equal in status
an<:J. responsibility to the post of
Chief Secretary. The fact that sales tax accounts for a very large ·
'egment of the revenues of the State and it runs into about 120
crores of x:upees does not necessarily make the post of Officer ~n
Special Duty equal in status and responsibility to that of the Olief
Secretary. What has to. be seen for equivalence is the status and the
nature and responsibility of the duties attached to the two posts.
Merely giving the salary of
one post to the other does not make for
equivalence.
We are, therefore, not prepared to accept the
th.esis that
the post of Officer on Special duty was equal in status and responsi
bility to the post of Chief.Secretary as claimed by the respondents. We
entertain serious doubts. about it. But equally it is not possible for us
to hold
it established on the material on record that this post was
inferior
in status and
·responsibility to the post of Chi~f Secretary,
though prima facie it does appear to be so. We cannot, therefore, say
that the petitioner was arbitrarily or unfairly treated or that equality
was denied
to him when he was transferred from
the post of Chief
Secretary and in his place Sabanayagam, his junior, was promoted and
confirmed.
The challenge
base.rl on Arts. 14 and 16 must therefore
fail.
We may now turn to the ground of challenge based on mala fide
exercise of power. The petitioner set out in the petition various
incidents in the course
of administration where he crossed the path of the second respondent and incurred his wrath by inconn~nient and
uncompromising acts and notings and co_ntended that the second. res
pondent, therefore, nursed hostility and malus animus against the
petitioner and it was for this reason and not on account of exigencies
of administration that the petitioner was transferred from the post of
Chief Secretary. The incidents referred to by the petitioner, if true.
constituted gross acts of mal-administration and the charge levelled
against the second respondent was
that because the petitioner in the
course of his duties obstructed
and thwarted the second
r~spondent in
the'e acts of mal-administration, that the second respondent was an
noyed with him
and it was with a view to putting him out of the way and at the same time deflating him that the second respondent trans
ferred him from the post of Chief Secretary. The transfer of the pcti
tion.er was, therefore, in
mala fide
exercise of power and accordingly
invalid .
. Now, when we examine this contention·we must bear in mind two
important ·considerations. In th~ first place, we must make it clear,
deij)ite a, very strenuous argunient to the contrary, that we are not
called upon to investigate into acts of maladministration by the politi
cal Government headed by the second respondent.
It is not within
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390 SUPREME COURT ltEPORTS [ 1974] 2 s.c.R.
province to embark on a far ftung inquiry into acts of commission and A
omission charged against the second respondent in the administra-
tion of the affairs
of Tamil Nadu. That is not the
scope of the inquiry
before
us and we must
~ecline to enter upon any such inquiry. It is
one thing to say that the second respondent
was guilty of misrule and
another
to say t_h.at he had
malus eJ;imus against the petitioner which
was the operative cause of the displacement of the petitioner from the
·post of Chief Secretary. We are concerned only with the lattedimited R
issue, not with the former popular issue. We cannot permit the peti
tioner
to side track the issue and escape the burden of establishing
hostility and
malus enimus on the part of the second respondent by
diverting our attention to incidents of suspicious exercise of executive
power.
That would be nothing short of drawing a red herring across
the trail. The only question before us
is whether the action taken by
the respondents includes any component of mala
fides whether hosti-C
lity and malus enimus against the petitioner were the operational
cause of the transfer of the petitioner from the post of Chief Secretary.
Secondly, we mm:t not also overlook that the burden of elitablish
ing mala fides in very heavy on the person who alleges it. The allega
tions of mala fides are often more easily made than proved, anc! the
very seriousness
of such allegations demands proof of a high order of
I)
credibility. Here the petitioner, who was himself once the Chief
Secretary, has flung a series of charges of oblique conduct against the
Chief Minister. That is
in itself a rather extra-ordinary
and unusual
occ.urrence and if these charges are true, th~y are bound to shake the
confidence of the people
in the political custodians of power in the State, and therefore, the anxiety of the Court should be all the greater
to insist on a high degree of proof. In this context it may be noted that E
top administrators are often requjred to do acts which affect others
adversely
but which are necessary in the execution of their duties.
These acts may land themselves to misconstruction and suspicion
as
to the
bona fide of their author when the full facts . and surroul\ding
circumstances are not known. The Court would, therefor~. be slow to
draw dubious inferances from incomplete facts placed before it by. a
party, particularly when the imputations are grave and they are made F
against the holder of
an office which has a high responsibility in the
administration. Such is the judicial perspective in evaluating
charges
of unworthy conduct against ministers and other high authorities, not
because
of any
special status which they are supposed to enjoy, nor
because they are highly placed in social life or administrative set
up-th~se conSiderations are wholly irrelevant in judicial approach-but
because otherwise, functioning effectively would become difficult in ·a G.
democracy. It is from this stand point that we must assess that merits
or the.allegations of
mala
fides made by the petitioner against the
second respondent.
Now extensive arguments were addressed before us by counsel
on
both sides and we were taken
throug~ a mass ·of documents, papers
and official notings on this part of the case but we are afraid it is not ll
possible for us to say that the onus of establishing mala {Uks asainst
the second respondent, heavy as it is, has been discharged by the peti
.tioner. The allegations
of mala
fides have been dealt with fully in the
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E. P. ROYAPPA V· TAMIL NADU (Bhagwati, J.) 391
judgment of the learned Chief Justice and we do not think it will
serve any useful purpose
for us to discuss the merits of
those alfega
tions once again
in this judgment, as we are substantially in agreement
with what the learned Chief Justice
'has said. But we cannot help men~
tioning that there are certain disturbing · features which cause us
anxiety. We may take by way of example the imputation in regard to '
the Coom River Project. It seems that in or about the beginning of
February 1970 the second respondent asked the Director of Vigilance
to look into
the
affairs relating to Coom Improvement Project as he
apprehended that there were certain mal·practices in the execution of
that scheme. Whether this was done by the second respondent on his
own initiative or at the instance of the petitioner is immaterial and
we need not go into that controversy. The Director of Vigilance, as his ·
subsequent letter dated 25th February, 1970 shows, informed the
second respondent that without a discreet inquiry it . would oot be
possible to allay or confirm the apprehensions with ·· any degree ci
credibility since the head ~ the concerned engineering department ~
was personally involved in the execution of the scheme and he accord
ingly by that letter pointed
out to the petitioner that he needed
autho
risation to embark on the inquiry and Government order in that be
half should therefore be obtained and communicated to him. The peti~
tioner made an endorsement on this letter on the very next day with
a remark that the Public (Secret/Confidential) Department should
deal with
it immediately. The Public (Secret/Confidential) Depart
ment prepared a note at the foot of the letter and submitted it for
cir
culation to the Minister for Works and the second respondent for
orders whether the Director of Vigilance should be requested to mako
a discreet inquiry and send his report. The endorsement made below
the note shows that it was submitted for circulation on 3n1 March,
1970. It appears, however, that this note remained unattended until
the middle of September 1970. On 12th September, 1970 the Minister
for Works made
an endorsement that the Director of Vigilance may
make a discreet
inquiry and this endorsement was. approved by tho
second respondent on 20th September, 1970. The file containingj the
note together with the endorsements of the Minister for works and
the second respondent was thereafter placed before the petitioner along
with a draft of the memorandum to be addressed by the petitioner to
the Director of Vigilance. It is common ground that no memorariduni
in terms of this draft was issued by the petitioner to the Director of
Vigilance. The case of the petitioner was that he did not do so because
the second respondent subsequently ordered that no inquiry need be
made in this matter. This position was disputed by the second res-''
pondent who stated that to the best of his recollection he did not
make any such order cancelling the inquiry. That is a matter of con~
trcversy between the parties and as pointed out above it does rtot fall
within our province to investigate it. But the fact remains, and that
cannot be disputed, that no inquiry thereafter took place in the affairs
of the Coom Improvement Scheme. It is a little interesting to note that
Sabanayagam addressed a letter dated
31st July, 1971 to the peti-
,
tioner stating that though the Personal Assistatlt to the Chief Secretary '
had been reminded to send back the file relating to this matter, it had I
not been received and the petitioner should arrange to send it back, ,
13-L522 SCI/74 . i I
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392 SUPREME COURT REPORTS ( 1974] 2 S.C.R.
if it was with him. The petitioner immediately replied to this letter on
8th August, 1971 pointing out that he distinctly. remembered that the
second respondent had subsequently ordered
that no
inquiry n~ej be
made in this matter and the file was not with him. It is significant that
though the petitioner stated categorically that the second respondent
had subsequently ordered that no inquiry need be made, Sabaaayagam
did not write back challenging-the correctness of _this statement." The
file pertaining to this matter was all throughout in the possession of the
Government and even
after the petitioner pointed out that it
was not
with him, curiously enough, it could not be traced until the filing of
the petition. In fact, the absence of the file could not have stood in the
way
of ordering an inquiry. These and a few other
circumstan.ces do
~reate suspicion but suspicion cannot take the place of proof and, as
pointed out above, proof needed here is high degree of proof. We can
not say that evidence generating judicial certitude in up-holding the
plea of
mala
fides has been placed before us in the present cas~. We
must, therefore, reject this contention of the petitioner as well.
We accordingly dismiss the petition with no order as to costs.
K.B.N. Petition dismissed.
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The Supreme Court's decision in E. P. Royappa v. State of Tamil Nadu & Anr. (1974) is a seminal judgment in Indian constitutional law, profoundly reshaping the landscape of fundamental rights. This comprehensive Royappa case analysis delves into the court's groundbreaking interpretation of equality, which introduced the now-famous Article 14 arbitrariness doctrine. This case remains a cornerstone of administrative law and is meticulously documented for study on CaseOn, establishing a vital precedent for challenging arbitrary state action.
The petitioner, Mr. E. P. Royappa, was a senior member of the Indian Administrative Service (IAS) in the Tamil Nadu cadre. In 1969, he was selected for and appointed to act as the Chief Secretary of the State. However, in April 1971, he was transferred to a newly created temporary post of 'Deputy Chairman' of the State Planning Commission. When he returned from leave in 1972, he was again transferred to another newly created temporary post, 'Officer on Special Duty'.
Aggrieved by these transfers, Mr. Royappa argued that these new posts were inferior in status and responsibility compared to the Chief Secretary's post. He contended that his transfer was not for administrative reasons but was a malicious act orchestrated by the Chief Minister. To add to his grievance, an officer junior to him was promoted and confirmed in the post of Chief Secretary. Mr. Royappa filed a writ petition before the Supreme Court, challenging the validity of his transfers.
The Court was tasked with deciding on three primary issues:
The Court conducted a thorough review of the various incidents cited by the petitioner to prove the Chief Minister's animosity. It concluded that the burden of establishing mala fides is "very heavy on the person who alleges it." The judges found the allegations to be insufficient, describing them as "afterthoughts" and stated that a court would be slow to draw "dubious inferences from incomplete facts," especially when the imputations are grave and made against the holder of a high office. The charge of mala fides was, therefore, not established.
The Court acknowledged that the government had not followed the proper procedure under Rule 9 of the IAS (Pay) Rules. It noted that the equivalence of a post cannot be determined by the person occupying it; rather, it must be based on an objective assessment of the nature and responsibilities of the functions and duties. However, the majority held that a mere violation of a service rule does not automatically constitute an infringement of a fundamental right, which is a prerequisite for a petition under Article 32.
This case is most celebrated for the concurring opinion of Justice P. N. Bhagwati, which laid the foundation for a new, dynamic interpretation of equality. He moved beyond the traditional 'reasonable classification' test, which allowed the state to treat different groups differently if there was a rational basis for it.
Justice Bhagwati famously articulated:
"Equality is a dynamic concept with many aspects and dimensions and it cannot be ‘cribbed, cabined and confined’ within traditional and doctrinaire limits. From a positivistic point of view, equality is antithetic to arbitrariness. In fact, equality and arbitrariness are sworn enemies; one belongs to the rule of law in a republic while the other, to the whim and caprice of an absolute monarch."
This reasoning established that any state action that is arbitrary, irrational, or unreasonable is inherently unequal and, therefore, violates Article 14. Arbitrariness, not just hostile discrimination, became a ground to challenge state action. For legal professionals short on time, dissecting such nuanced arguments is made easier with CaseOn.in's 2-minute audio briefs, which offer a quick yet comprehensive summary of critical rulings like this one.
Despite the procedural lapses and the groundbreaking observations on equality, the Supreme Court ultimately dismissed the petition. The Court held that Mr. Royappa's appointment as Chief Secretary was an 'acting' one, not substantive, so he did not have an absolute right to the post. Furthermore, he failed to provide sufficient evidence to prove that the new posts were definitively inferior in status and responsibility or that the transfers were motivated by malice. Therefore, a clear violation of his fundamental rights under Articles 14 and 16 could not be established.
The Supreme Court, in a unanimous decision but with two separate opinions, dismissed E.P. Royappa's writ petition. The majority opinion, delivered by Chief Justice A.N. Ray, focused on the high burden of proof for mala fides and the petitioner's failure to meet it. It held that the petitioner did not have a substantive right to the post of Chief Secretary. The landmark concurring opinion by Justice P.N. Bhagwati, while agreeing with the dismissal, introduced the revolutionary doctrine that arbitrariness is antithetical to equality. It asserted that any arbitrary state action, whether in legislation or administration, would be a violation of Article 14. The petition failed because the violation of a service rule, without conclusive proof of demotion or bad faith, was not sufficient to establish an infringement of fundamental rights.
Disclaimer: This article is intended for informational and educational purposes only. It does not constitute legal advice. For specific legal issues, it is recommended to consult with a qualified legal professional.
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