9911796707
TMI Blog1973 (11) TMI 80X X X X Extracts X X X X X X X X Extracts X X X X ..... ber of the Indian Administrative Service in the cadre of the State of Tamil Nadu. On 2 August, 1968 the petitioner 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, 19;65, 1966, 1968 and 1969 was posted to act as Fifth Member, Board of Revenue; Fourth Member, Board of Revenue; Third Member, Board of 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 Chief Secretary-On 11 July, 1969 the post of Additional Chief Secretary was temproraily created in the grade of Chief, Secretary for one year. The State Government further directed that, the post of 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 Admi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appointed as Officer on Special Duty in the post sanctioned' aforesaid. The petitioner did not join that post. The petitioner in the month of July, 1972 filed this petition. The petitioners contentions were these. First, the petitioner is appointed to a post or transferred to a post which is not validly created. The post of Officer on Special Duty is said to be not 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) Rules,. 1954. Second, under rule 9 of the Indian Administrative Service (Pay) Rules, 1954 no member 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 Cen- tral Government in respect of posts under its control, as the case may be, make a declaration that the said Post is equivalent in status and responsibility to a post specified in the said Schedule. It is, therefore, said that the Petitioner who is a cadre post holder, viz., holding the post of Chief Secretary cannot be posted to a non-seheduled Post without a declaration that the nonscheduled post is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 November, 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 the 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 post 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(f) a member of the Indian Civil Service shall retire after 35 years' servi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... SR 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. 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 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 Tamil Nadu State Government. In that note an exception in respect of Indian Civil Service Officers is created by providing that in the case of an Officer of the former Secretary of State Service the grant of such leave shall be treated as sanctioning an extension of service upto the date on which the leave expires. Therefore, Ramakrishnan held lien on his post until 14 March, 1970. The petitioner in the note for circulation dat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate 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 of, the cadre. If such power were conferred on the State examination of the strength and composition. at the interval of every three years by the Central Government in consultation with the State Government would be nullified. The meaning 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 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 Chairman, Planning Commission or Officer on Special Duty to the Indian Administrative 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. Counsel for the petitioner contended that the post of Deputy Chair ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng 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. 3500/per month when the petitioner was appointed as Deputy Chairman of the Planning Commission. The upgrading' and the downgrading of the post of Deputy Chairman, Planning Commission alleged by. the Petitioner is not correct. The Post was not upgraded or downgraded. The incumbent 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 petitioner's 'contentions about the two 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 Service (Pay) Rules that the posts were equivalent in status and responsibility to a post specified in the Schedule to the aforesaid Rules; , secondly, that the functions and responsibilities of the two posts were. such that no comparison could be made between those posts and the posts in the Schedule, Rule 9 speaks of a declaration that the post is equivalent in status and responsibility, to a post spec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... economists to work in collaboration with the Institute of Economic Growth, New Delhi. The State wanted to set up an Institute of Economic Planning, to work with the advice of the National Council of Applied Economic Research. A separate department of planning was suggested by the State. The reason was to have the advice of experts with knowledge in the specialised field. The petitioner as the Chief Secretary on 23 March, 1970 did not accept the advice of the Finance Secretary of, the State. The was against the proposal to entrust formulation of plan to a body of experts. The petitioner advised utilising the services of senior officers of Government department and enlisting the services of experts in any particular sphere of activity or project, if found necessary. The Chief Minister on 25 December, 1970 recorded a note that a 10-year plan was necessary. The State Planning Commission was set up in the month, of April, 1971. The Planning Commission was to consist of Chairman, Deputy Chairman, Members, Secretary and Deputy Secretary. The Chief Minister was to be the Chairman. A full time officer in the grade of Chief Secretary was to be the Deputy Chairman. The Planning Commission wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Sales Tax Act has been amended from time to time. The Chambers of Commerce represented Government for simplification and rationalisation of the tax. structure and statutory pre measures and practices' It is 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 of 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 being all State Acts and the Central Sales Act could be rationalised and simplified so as to facilitate easy administration and also to reduce hardship to the trading community. Third, the present classification of commodities taxed at single point and multi po ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of a declaration may not be conclusive if the declaration is a mere cloak. The facts and circumstances will be looked into in order to find out whether there is in real substance equality in status and responsibility. Fundamental Rule, 15 provides that no Government servant can be, transferred substantively to or appointed to officiate in a post carrying 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. However, the petitioner was appointed to the post 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, '1 971 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 post carried a salary of Rs. 3,500/- per month which is the same as that of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Administration has also to take into account the willingness or otherwise of an officer to take up a new job which may not invest him with wide executive powers which he wields, while holding even less important posts. The choice in the present case fell on the petitioner when the post of the Deputy Chairman was created and then again when the post Special Officer was created. He was given the pay scale of the Chief Secretary, because that was the scale of pay he was drawing when he was appointed to these posts. The fact 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 be 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 when Rajaram the First Member of the Board of Revenue was appointed, he took with him his salary as the First Member. When the petitioner was to occupy the post of Deputy. Chairman or Special Officer the post was graded to give ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n Special Duty as well as the appointment of the petitioner to the posts was malafide. Broadly stated, the petitioner's allegations were that the Chief Minister acted malafide in removing the petitioner from the post of Chief Secretary The petitioner alleged that in the discharge of his duty lie 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 th e Federation. Mudaliar was a powerful and influential person. He was a close associate of the Chief Minister. The petitioner put up a note to the Chief Minister that the case should be handed over to the police and the persons responsible should be hauled up. The petitioner alleged that the Minister for Co-operation called the petitioner and asked him to modify the note. The modification suggested was to leave out any reference to Mudaliar and to omit the suggestion for handing over th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eged to have said that the Chief Secretary should be transferred but not the Private Secretary. The Chief Minister denied that he ever made any statement that the Chief Secretary should be transferred. It is also alleged that the Chief Minister wanted to prefer Vaithialingam in the preparation of the seniority list of the Indian Administrative Service. The petitioner alleged that he declined to oblige. Therefore, it is said that the petitioner suffered by the malafides of the 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 Government could finace 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Chief 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 (Wed to oppose the proposal relating to Anna Samadhi. it is follows. The D.M. K. Party decided to erect a Samadhi called 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 petitioner opposed the promulgation of the Ordinance. The idea of the Ordinance was dropped. 'it is said that thereafter a private trust was created for administering the Samadhi. The trustees requested the Government to hand over the Samadhi to the trust. The petitioner opposed the posal on the ground that the portion of the land belonged to' the Municipal Corporation and the land together with the Samadhi cost the Government and the Corporation Rs. 40 lakhs. The petitioner's allegations are all baseless. The Public Works Department examined the proposal to hand over the Samadhi to the private trust. file was marked to the Chief Minister. The petitioner merely noted "Chief Minister may decide". The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on of the Cooum Improvement Scheme. The Director of Vigilance informed the petitioner and requested him to accord sanction to enable the Director to embark upon such an enquiry. The relevant section put up before the petitioner a draft letter authorising.the Director to embark on an enquiry. It is discovered that no action was taken by the petitioner. The letter of the Director dated 25 February 1970 addressed to the petitioner indicates that the Director asked for authorisation to make an enquiry. The Me indicates that the petitioner on 26 February 1970 submitted a note for Public (Secret Confidential) Department for perusal. The Public (Secret Confidential) Department received the file on 20 September 1970. There are minutes of the Chief Minister ordering 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 Secretary asked the petitioner to send back the file. The petitioner on 8 August, 1971 said that the file was not with him. These are indeed strange things. it is baseless to allege mala fides against the Chief Minister. The brunt of the petitioner's allegations against the Chief Minister centr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l in take action against the Minister. The petitioner told the Collector that it was a serious dereliction of duty. The petitioner asked the Collector to proceed immediately to the spot to take stepS to maintain law and order. The petitioner also asked for a full report. At 4 p.m. on 28 February, 1971 the Governor summoned the petitioner and the Inspector General of Police. The Governor summoned them to discuss about the deteriorating law and order situation in the city and the Districts. The Governor made special reference to the complaints received by him about violence and intimidation particularly from Tirupattur (Ramnad), Shivai Kundam, Udumalpet, Tiruvannamalai and Saidapet constituencies from where, the Chief Minister and other Cabinet Ministers were contesting the elections. The Inspector General of Police told the Governor that lorry loads of goondas armed with deadly weapons had arrived in the city of Madras. The goondas numbered about 1500. They were brought at the instance of the Chief Minister. The Governor was annoyed and shouted "how was it possible to transport 1500 goondas from nearly 300 miles by lorries without the knowledge of the police. I expect the police to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... D.M.K. ring leaders. The Commissioner of Police in accordance with the petitioner's instructions refused to release them unless proper bail was 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 goondas. He apprehended trouble as some of the Ministers were indulging in dangerous activities. The petitioner ordered the inspector General of Police to intercept lorry-loads of goondas. The Chief Minister- and the Minister of Law., when they came to know about the instructions issued by the petitioner to the Inspector General of Police asked 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. Officers. were 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 were ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of rowdies and bad elements and probation offenders was restricted only to "listed rowdies". The Home Ministry Code message dated 4 March, 1971 about clashes between political groups was received but the 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 excellent 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 special credit can be claimed by the petitioner or ascribed to the petitioner's alleged 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 Minister also denies that the petitioner at any time stated that the Inspector General of Police was expecting serious clashes in Saidapet, Mylapore and Thyagaroya Nagar. The Chief Minister denies that be asked the Commissioner of Police to r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the allegations of malafides is that when on 7 April, 1971 the petitioner 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 is 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 returned from leave after one year and he was appointed to the post of Deputy Chairman, Planning Commission. Even 'in that letter the only allegation about malafide is that the petitioner took 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. It, 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 June, 1972 it is manifest that the Government did not make the order out of any improper motive or any indecent haste or out of any ingenious inspiration to get rid of the petitioner. Another noticeable featur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n. 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 situation was kept under normal'control. All the officers of the State including the police service discharged, their duty in the best interest of administration 'as also 'in public 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 the affidavit evidence to have committed acts of violence or intimidation. The, entire affidavit evidence establishes beyond any measure of doubt that the petitioner's allegations imputing malafides against the Chief Minister are baseless. The petitioner's allegations were in aid of suggesting vindictiveness and vengeance on part of the Chief 'Minister Facts' and circumstances repel any such insinuation and innuendo. For these reasons the contentions of the petitioner. fail. The. petition is dismissed. Each party w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ad of the Secretariat organisation in the State should remain unquestioned and it 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 and suggested that the State Government may consider adding the post of Additional Secretary to the cadre temporarily for one year in the pay of Rs. 2,750/- or in smaller scale, 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 Revenue was concerned'. the Central Government agreed that there should be one non- Secretariat posting the State Cadre carrying, the same salary as that of the. Chief Secretary and stated that they were taking steps to provide that tic First Member,, Board of Revenue should. carry the same pay as possible to the Chief Secretary. The Central Government accordingly issued a notification dated 14th January, 1970 in persuance of r. 11 of the Indian' Administrative Service' (Pay) Rules, 1954 amending Schedule III with effect from 17th December, 1969 so as to provide that the pay of First Member, Board of Rev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tal Rule 86, cl. (a). The petitioner was accordingly promoted as Chief Secretary. Whether such promotion was byway of substantive appointment or in an officiating capacity is a matter which we would have to decide when we deal with the arguments of the parties. On 1st April, 1970, the Government of India proposed that in view of the fact that the responsibilities of Chief Secretary 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 Government of India in respect of Pay and invited the comments of various State Governments on this proposal. The State of Tamil Nadu conveyed its assent to the proposal but suggested that since the posts of Chief Secretary and First Member, Board of Revenue in the State were equal in status and interchangeable, both these posts should be upgraded to that-of Secretary to the Government of India. The Government of India did not accede to the request of the State of Tamil Nadu in so far as the post of First Member, Board of Revenue w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nig rated and he, therefore, did not join this post and went on leave from 18th April, 1971 and the leave was renewed by him from time to me upto 5th June, 1972 The State planning Commission was in the meantime constituted on 25th May, 1971 and since the petitioner was on leave, an order dated 19th August,' 1971 was issued by the State Government- directing, in modification of the earlier adder dated 7th April, 1971, that the post of Deputy Chairman should be deemed 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 Year only, came to an end on 13th April, 1972 and it was not thereafter continued' until 6th June, 1972 when it was again revived on return of the petitioner from leave. The State Government passed an order dated 6th June, 1972 sanctioning once again the creation of a temporary post of Deputy Chairman on a pay of Rs. 3,500/- per month for a period of one year and appointing, the, petitioner to that post on return leave. Against this order the petitioner made a repr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... am, who was admittedly junior to the petitioner, was promoted as Chief Secretary and we ate told that he has been confirmed in that post. The petitioner was obviously hurt by these rather ,disingenuous moves adopted by the State Government at the instance of the second respondent to remove him from the post of Chief Secretary and be, therefore, filed the present petition under Art. 32 of the Constitution challenging the validity of his transfer from the post of Chief Secretary, first to the post of Deputy Chairman, State Planning Commission and then to the post of Officer on Special Duty, on the following grounds. namely. (1) 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 (Pav) Rules, 1954; (2) it was violative of Arts. 14 and 16 of the Constitution as the posts of Deputy Chairman, State Planning Commission and Officer 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 pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en 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, ion 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 explicit that the petitioner was promoted and posted to act as Chief Secretary. The, words "to act", according to plain grammar and language, governed pot only "posted" but also "promoted". The petitioner was both 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 drift 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in accord with the real decision ? We have, therefore, no doubt that it was competent to the petitioner to contend, by reference to the draft order which contained the original decision of the State Government, that the authenticated order did not correctly reflect such decision and suffered from an error. But the question is whether such contention can succeed. Now, if we look at the draft order it is clear that it merely uses the words "promoted and posted as Chief Secretary". It is silent as to the nature of the promotion. It does not say whether the promotion is by way of substantive appointment or in an officiating capacity. 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 error 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r or in violation of Arts. 14 and 16 of the Constitution. We now turn to the first ground of challenge which alleges contravention of the second proviso to r. 4(2) of the Indian Administrative Service (Cadre) Rules, 1954 and r. 9, sub-s. (1) of the Indian Administrative 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 proviso 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 Government under r. 4(1) and the Central Government alone can review it trienially or at any other intermediate time under r. 4(2). The State Government cannot add to the cadre a different category of post 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 would mean, in the first case, alteration in the composition of the cadre, and in the second, alteration in the strength of the cadre, both of w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... said post is equivalent in status and responsibility to a post specified in Schedule III." This rule is intended to provide a safeguard for the protection of a member of the Indian Administrative Service. Sub-r. (1) enacts that no member of the Indian Administrative Service shall be appointed to a post other than a post specified in Schedule III, or in other words, to a non-cadre post unless the Government makes a declaration that such 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 Administrative Service to a non-cadre post created by it, it cannot do so unless it makes a declaration setting out which is the 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 formality 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 an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... such non-cadre post is declared equivalent. He is thus assured the pay of the equivalent cadre post and his pay is protected. Now this declaration of equivalence, though imperative, is not conclusive, in the sense that it can never be questioned. It would be open to A member of the Indian Administrative Service to contend, notwithstanding the declaration of equivalence, that the non-cadre post to which he is appointed is in truth and reality inferior in status and responsibility to that occupied by him and his appointment to such non-cadre post is in violation of Art. 311 or Arts. 14 and 16. The burden of establishing this would undoubtedly be heavy and the 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 functions and duties attached to different posts with a view to determining whether or not they are equivalent in status and responsibility and when the Government has declared equivalence after proper application of mind to the relevant factors, the court would be most reluctant to venture into the uncharted and unfamiliar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... emoluments as admissible, to 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 objective assessment of the nature and responsibility. of the functions and duties attached to the post of Deputy Chairman, that it was equivalent 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 proceeded 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 responsibilities of the functions and duties attached to such non-cadre post and that would be sufficient compliance with the requirement of r. 9, sub-r. (1). But that, hypothesis is plainly, incorrect. The State Government cannot artifically create equivalence by saying that a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of the functions and duties remaining the same, the equivalence, which is a matter of objective assessment, could not vary from time to time. This nearly shows that the Government did not apply its mind and objectively 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 whit the State Government has categorically and in so many terms admitted in paragraphs 25 (b) and 28 of its affidavit in reply : "Since Thiru M. G. Raja Ram was drawing 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 this 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 equivalence in status and responsibility determined on an objective assessment of the nature and responsibilities of the functions and duties attached to the post should decid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... adre 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 of 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 Secretary, on the very next day. Either it was equivalent to the post of Member, Board of Revenue or equivalent. to the post of Chief Secretary. But it could ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts great importance as a principle ensuring equality of opportunity in public employment which is so vital to the building up of the new classless egalitarian society envisaged in the Constitution, Art. 16 is only an instance of the application of the concept of equality enshrined in Art. 14. In other words, Art. 14 is the genus while Art 16 is a species, Art. 16 gives effect to the doctrine of equality in all matters relating to public employment. The basic principle which, therefore, informs both Arts. 14 and 16 is equality and inhibition against discrimination. Now, what is the content and reach of this great equalising principle? It is a founding faith, to use the words of Bose J., "a way of fife", and it must not be subjected to a narrow pedantic or lexicographic approach. We cannot countenance any ;attempt to truncate its all-embracing scope and meaning, for to do so Would be to violate its activist magnitude. 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 s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nable administration except for colaterial reasons ? These are the questions which call for our consideration. 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 confidences lynchpin in the administration and smooth functioning of the administration requires that there should be complete rapport and' understanding between the Chief Secretary and the Chief Minister. The 'Chief Minister as the head of the Government is in ultimate charge of the administration and it is he who is politically answerable to the people for the achievements and failures of the Government- confidence ofthe Chief Minister, the Chief Minister may legitimately, in the largerinterests of administration, shift the Chief Secretary to another post, provided of-course that does not involve violation of any of his legal or constitutional rights. There can be no question in such a case as to who is right and who is wrong. The displacement of 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,. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... clearly indicates that the petitioner discharged the duties of his office efficiently and to the satisfaction of every one concerned. Yet the petitioner was transferred first to the post of Deputy Chairman and then to the post of Officer on Special Duty and in his place Sabanayagam, who was admittedly junior to him, was not only promoted but also confirmed. The result of confirmation of Sabanayagam as Chief Secretary was that the petitioner, though senior and proved competent, was permanently excluded from the post of Chief Secretary. This clearly shows, contended the petitioner, that his transfer 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 constitutionary unobjectionable, if the post of Deputy Chairuian 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 status and responsibility as the post of Chief Secretary because the post of Chief Secret ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , 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 based 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 inconvenient and uncompromising acts and nothings and contended that the second. respondent, 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 maladministration and the charge levelled against the second respondent was that because the petitioner in the course of his duties obstructed and thwarted the second respondent in these acts of maladministration, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 top administrators arc often required 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 surrounding circumstances are not known. The Court would, therefor be slow to draw dubious inferences from incomplete 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 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 these. considerations are wholly irrelevant in judicial approach but because, otherwise, functioning effective y would become difficult in a democracy. It is from this stan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d his report. The endorsement made below the note shows that it was submitted for circulation on 3rd 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 the second respondent on 20th September, 1970. The file containing 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 memorandum 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 respondent 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- troversy between the parties and as pointed out above it does not fall with ..... X X X X Extracts X X X X X X X X Extracts X X X X
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