TMI Blog1973 (11) TMI 80X X X X Extracts X X X X X X X X Extracts X X X X ..... litical 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. - Writ Petition No. 284 of 1972 - - - Dated:- 23-11-1973 - RAY, A.N. (CJ), PALEKAR, D.G., CHANDRACHUD, Y.V., BHAGWATI, P.N. AND KRISHNAIYER, V.R., JJ. For the Petitioner : A.K. Sen, S. J. Ra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te 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 emoluments as the Chief Secretary.The Central Govt. the same status and 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 Reventue in the State should 'carry pay its ad- missible to the Chief Secretary. On 13 November, 1969 the petitioner was posted to act as Chief' Secretary to Government with effect from the afternoon of 13 November, 1969 vice C.A. Ramakrishnan whose date of superannuation was. 14 November, 1969 who has been granted refused level with effect 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 of 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 Reven ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ate of Tamil Nadu. The petitioner relied on draft order of the chief Minister dated 13 November, 1969 which. stated that the petitioner "is promoted and posted as Chief Secretary". The petitioner also relied on the following note of the Chief Minister at the time of the passing of the order. There were 1 1 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 Govindan 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 h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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) provides that a Government servant ceases to retain lien on a permanent-post while he is on refused leave granted after the date of compulsory retirement under Fundamental Rule 56 or corresponding other Rules. The effect of refused leave under the Fundamental Rules is that there is no extension of service by the period of that leave. Again, during the period of refused leave there. is no earning of pension. Counsel for the petitioner relied on Fundamental Rules 56(f) and 86(c) and contended that the post of Chief Secretary fell vacant as Ramakrishnan did not hold a lien on his post. It was contended that the petitioner was appointed in an, officiating capacity to the post of Chief 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 to officiate in a vacant post on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the post. Therefore, the petitioner was not substantively appointed to the post of Chief Secretary. The petitioner's substantive appointment was in the 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 riot to hold the' post of Chief Secretary. It was contended that neither the post of Deputy Chairman, Planning Commission nor the post of Officer on Special Duty 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 posits was a cadre post within the meaning of the Indian Administrative Service (Cadre) Rules. The strength and composition of the cadre as contemplated 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 reexamine the strength and composition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... py them and therefore 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 Chairman, 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 for one year 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 appointed to that post 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, 1972 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 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on in writing is necessary where a post is declared to be equivalent 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 status and responsibility and in the other case the declaration is negative in content that though the post is not equivalent in status and responsibility yet a cadre officer of the Service is appointed to such a post. It is not in dispute that the posts of Deputy Chairman, Planning Commission 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 responsibility of the post. But pay scale will primarily show status and responsibilities of equal nature. The Chairman of the.Planning Commission is the Chief Minister. The Planning Commission is a high powered Commission. The position of the Deputy Chairman is equal in status and responsibility to the duties of, the Chief Secretary. The real significance of aforementioned Rule 9 i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... being the Chad Minister the Deputy Chairman was equal in status and responsibility to the post of the Chief Secretary. The State Government in the year 1969 sanctioned the constitution of a statistical cell for preparing scientifically processed data of production and the source of production of various commodities liable to sales tax. A scientific analysis was also made of the pattern of, trade and revenue accruing from different sections,of the trade. In the month of August, 1970 the Government examined the suggestion of the Commissioner, Commercial Taxes to constitute an expert committee to look into the various aspects of sales tax. In the month of October, 1970 the Chief, Minister indicated that a committee might to constituted for going into the working of the sales tax law and to suggest methods for simplification of the'- legislative measures. In the month of April, 1971 the Chief Minister reviewed the important aspects of administration of Commercial Taxes Department. They were persistent demands from one section of the trade for single point levy. There were also demands from the other section for changing the existing single point items to multi point levy (if sales tax. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... point levy, and, if so, whether there is a case for extending the same consession to all raw materials. Fifth, measures are to be found to improve the procedure of inspection, search and seizure in order to make them more effective and. at the same time to minimise the apprehension 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 and the cross verification of such data with assessment records are also to be made. Seventh, measures to ensure regular and systematic flow of vital data such as tax yield from, various comes and changes in trade practices affecting tax yield to the Board of Revenue (Commercial Taxes) are to be devised and arrangements are to be made for their collation and. interpretation to facilitate-tax policy. These are some of the principal duties and responsibilities of the officer on Special Duty.. These duties indicate in no uncertain terms the the post of Officer on Special Duty is of enormous magnitude and importance in formulation and shaping of the revenue structure of the The duties and responsibi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... romoted to the post of Officer on Special Duty. The post of Officer on Special Duty also carried the same salary as that of the Chief Secretary. Therefore, the) petitioner who was in the selection grade could be transferred to any of these two posts of Deputy Chairman, Planning Commission or Officer on Special Duty which were posts not lower in status and responsibility to the Cadre posts in Schedule III of the Indian Administrative Service (Pay) Rules, 1954 and Which carried the same salary as that of the Chief Secretary. The posts of the Deputy Chairman, Planning Commission and the Officer on Special Duty were created for cadre officers to discharge duties and responsibilities of a high order,. These posts were, not created all of a sudden with any oblique purpose. The Planning Commission bad been in contemplation for some time. Similarly, the post of Officer on Special Duty was created after,consideration and evaluation of serious problems of State Revenue. Each one of the posts carriedspecific functions any responsibilities. Comparisons between , duties and responsibilities of posts at the apex ,of different departments are not always possible. The status of the post would also ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was, therefore no upgrading or downgrading of the post. The petitioner had worked as Deputy Commissioner of Commercial Taxes and subsequently as Secretary to Government, Revenue Department dealing.with commercial Taxes also. The petitioner was also Commissioner, Both of Revenue in charge of commercial taxes. In view of the wide experience of the. petitioner in the field of commercial taxes the Government decided to ,post him as Officer on Special Duty. This was neither unjust nor unfair nor malafide. There was no reduction in rank. The petitioner's status as well as pay was in conformity with the Rules. The, petitioner could not claim that till retirement he must continue to act in the post of the Chief Secretary. The orders of transfer were passed in the administrative exigencies. The members of Indian Administrative 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 stability of the officers. These officers should not be made to feel that their position or posts are precarious with the change of Government. Their service mus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n against Mudaliar. The petitioner alleged that the Chief Minister expressed his annoyance. The Minister for Co-operation denied that he 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 the launching of prosecution against Mudaliar. Both the Chief Minister and the Minister for Co-operation state in their affidavits that 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. The petitioner's allegation that the Chief Minister expressed annoyance at the petitioner's note against Mudaliar for causing hazards by discharge 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 recomm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... retired at the age of 55 without acting as 1,A.S, 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 I.A.S. Officers is 58. The respondents in their affidavits stated that the I.A.S Selection Committee could not meet for the years 1968, 1969 and 1970 for various reasons. The, petitioner in a note suggested that the inclusion of name in the Select List did not confer any right of promotion. The Chief Minister agreed with the petitioner. These facts in relation to Vaithialingam 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 whatever for attributing 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 Minister against the petitioner. There was land acquisition at Manali for Madras Refineries. Large compensation was paid to the owner Ramkrishnan. The petitioner caused the suspension of the District Revenue Officer and other ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The amount involved was Rs. 20 crores. The Government agreed to pay an advance of Rs. 90 lakhs as loan to the contractor for buying machinery. The petitioner did not approve the proposal. The petitioner said that a considerable. time would be required to scrutinies 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 Me on 27 April 1970. Orders were to be issued urgently. The file was obtained by the Additional Chief 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 ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wn as "Cho" who is the Editor of a magazine called "Tughlak" took photographs of the procession. The D.M.K. Party obtained information that Cho was likely to publish the photographs. 'The D.M.K. Party thought that in view of the impending elections the publication of the photographs would affect their prospects at the election. The petitioner received a trunk call from the Law Minister who asked him to take action to prohibit publication of the photographs. The petitioner said that the Government had no power to prevent the publication. The Chief Minister shouted on the telephone that the Deputy Superintendent of Police should be suspended and action should be taken against the magazine. The petitioner discussed the matter with the Inspector General of Police who said that it would be, most unfair to suspend the Deputy Superintendent of Police, Salem. The petitioner suggested that the matter might be dropped. The Chief Minister thereupon asked the Inspector General of Police to suspend the Circle Inspector of Police at Salem. The. Inspector General of Police suspended the Circle Inspector and registered a case against him. When the Chief Minister returned from his camp, he took t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ons". The Governor told the petitioner "Mr. Chief Secretary, throughout your career, you have the reputation of carrying out the duties without fear or favour and without bothering about the consequences. I am sure that I could rely upon you to take special steps to arrest the deteriorating law and order situation and ensure free and fair Elections. The petitioner assured the Governor that he would take strong action. The Petitioner then discussed with the Inspector General of Police about the special steps to be taken to maintain law and order. The petitioner gave orders to the Inspector General of Police that the goondas should be arrested. The Inspector General of Police agreed to carry out the orders. Raid was carried out in the night. The Chief Minister sent for the petitioner and shouted at him. "I am the Chief Minister. I am in charge of the Police Portfolio. How dare you order the arrest of persons ill my constituency without my prior permission ?" The petitioner said that he carried out his duty without favour and 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ence. Section 41 of the City Police Act and Section 30 of the District Police Act were to be promulgated 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 Inspector General of Police, the Commissioner of Police and the Home Secretary. At the Cabinet meeting the petitioner was attacked and' abused by the Law Minister. The petitioner, the Inspector General' of Police and the Commissioner of Police were threatened with dire- consequences. The results were declared on 1 1 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 Service Chief was responsible for conducting the proceedings. The Chief' Minister called a Press Conference around 12 mid night at which, be announced that the petitioner was appointed as Deputy Chairman, of the State Planning Commission and that he would be transferred forthwith. It is in this background of long narration a of events at the time of' Election that the petitioner alleges that the Government and the Chief Minister acted malafide against ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 intimidation 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 Governor 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 having telephoned the Commissioner of Police to release the arrested leaders. The Minister for Food denies that the D.M.K. employed goondas and he with other Ministers indulged in violence. He also denies that the Minister started 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 deterio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cadre officers are 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 Ministers certain statements having been made by them. The statements are quoted to be words of mouth of the Chief Minister or the Governor or the Ministers. The petitioner has nowhere made contemporaneous entry or record of such utterances. It is difficult to believe that the petitioner would remember identical words in long sequence and set them out with exactitude in the petition. These allegations are made in the petition for the purpose of giving semblance of truth and tending colour to chronicle. The affidavit evidence indicates that the'petitioner carried out normal duties and exercised care and caution at the time of the election. That is expected of all officers. It is also expected that officers will maintain a balanced and firm hand in regard to law and order situation as well as administration. Civil servants are expected to advise Ministers in the context of files and rules. The Gov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ions. arising in the petition, The petitioner is a member of the Indian Administrative Service in the cadre of the State of Tamil Nadu. On 2nd August', 1968, the petitioner was confirmed in the selection grade of the, Indian Administrative Service with effect from 22nd May, 1961. The petitioner was successively posted to act as Fifth Member, Board of Revenue, Fourth Member, Board of Revenue,Third Member, Board of Revenue, and Second Member, Board of Revenue on 25th February, 1964 5th August, 1965, 30th March. 1966 and 5th April, 1969. On 11th, July, 1909 the State of Tamil Nadu passed an order sanctioning the creation of a temporary post of Additional Chief Secretary to the Government for a period of one year and directed that the posts of Chief Secretary to Government, Additional Chief Secretary to Government and First ,Member of the Board of Revenue should be deemed to be in the same category and should be interchangeable selection posts, and by the same order promoted and Posted the petitioner to act as Additional Chief Secretary to Government in the newly created post Now, according.to Sh., 111A of the Indian Administrative Service (Pay) Rules, 954 the posts-,of, Chief Secret ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ishnan, who was a member of the Indian Civil Service, was retiring on completion of 35 years service, and the question, therefore, arose as to who should be appointed in his place. The file in this connection was placed before, the Chief Minister, who is the second respondent before us, 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 Me on 12th November , 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 proceeded to consider the merits of the' eleven officers whose names had been placed before him and selected the petitioner for the post stating 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 Governor on, the same day, namely, 12th November, 1969. On the next day, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... India.: The rank and status of the post of Chief Secretary was thus enhanced 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 were held in Tamil Nadu in the first week of March 1971. The results 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 with the second respondent as the Chief Minister. According to the petitioner, there were several matters in which he had the misfortune to incur the displeasure and wrath of the second respondent during the period prior to the elections as also at the time of the elections whilst acting in discharge( of his duties as- Chief Secretary, and the second respondent, therefore, on being returned to power, decided to remove him from the post of Chief Secretary. With that end in view the second respondent announced at a Press Conference held by him at mid-night on 6th April, 1971 that the petitioner was transferred, as Deputy Chairman of the State Planning Commission. There was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s, 1954. How far this contention was valid is a matter we shall presently examine and it need not detain us. The next event that happened was-whether as a sequel to the representation of the petitioner or not, we do not know-that the State Government issued an order dated 26th June, 1972 sanctioning the creation of a temporary post of Officer on Special Duty "of the rank of Member, Board of Revenue' for a period of me 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 effect that the temporary 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 as 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 answe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... retary. Was he, promoted in a substantive capacity or in an officiating capacity ? The contention of the petitioner was that he was appointed substantively to the post of Chief Secretary and for this purpose he relied on the draft order approved by the second respondent as well as the Governor which did not use any words suggesting 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 as Chief Secretary", but his argument was, firstly, that the words "to act" qualified only "posted" and not "promote ' and in this context 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, and secondly that even if the words "to act" had the effect of making promoted an acting on the, 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 orde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tention of the respondents is sound. It is now well 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 the Governor. The validity of such an order can be questioned on other grounds. [Vide King Emperor v. Shivnath Banerjee([1961] 1 S.C.R. 746) 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 State of Bihar v. Sonabati(2- "the process of making an order precedes and is different from the expression of it". It should, therefore, be axiomatic that if the authenticated order does, not correctly reflect the actual order made, or to put the same thing differently, the actual decision taken by the State Government, it must be open to correction. The formal expression of the order cannot be given such sanctity that even if found to be mistaken, it must prevai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tain 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 otherwise, 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 decision of the State Government and under it the promotion of the petitioner was in an acting or officiating capacity. The alternative argument of the respondents must also lead us to the same conclusion. 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 refused leave for a period o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Government of India in its decision recorded at 4.1 at page 741 of the All India Services Manual (Second Edition) : "The exercise of this power by the State Government with reference to a post involves an' objective assessment 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 exist in the cadre". The State of Tamil Nadu could not, therefore, 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 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 his, 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 Member of the Service shall be appointed to a post other than a post specified in Schedule III, unless the State Governm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... such non-cadre post, the Government must declare which is the cadre post to which such non-cadre post is equivalent in status and responsibility, so that the member of the Indian Administrative Service who is appointed to such non-cadre post, would know what is the status and responsibility of his post in terms of cadre posts and whether he is placed in a superior, or equal post or he is brought down to an inferior post. If it is the latter, he would be entitled to protect his rights 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 provision clearly is to ensure that the public services are' in the discharge of their duties, not exposed to the demoralising and depraving effects of personal or political nepotism or victimisation or the aries of the political machine. determination of equivalence Is'therefore, made a condition precedent before a member of the IndianAdministrative Service can be appointed to a non-cadre post undersub- r. (1). It is a mandatory requirement which must be obe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... adre post or extraneous or irrelevant factors are taken into account in determining the equivalence or 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 in status or responsibility or the declaration of equivalence is mala fide or in colourable exercise of power or it is a cloak for displacing a member of the Indian Administrative Service 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 declaration of equivalence must, 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-noncadre post is such that it is not possible to equate it with any cadre post 1 1 Where the Government finds that the equation is not possible, it 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 it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns 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 April, 1971 sanctioning the creation of the post of Deputy Chairman and appointing the petitioner to that post. This becomes abundantly cleat if we look at the subsequent orders. As we have already Pointed out above, the post of Deputy Chairman first created came to pay end on 13th April, 1972. Thereafter there was no post of Deputy Chair dated6th June. 1972. Strangely enough this order, unlike the earlier orderdated 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 shall attach to the post of Deputy Chairman. There was admittedly no deceleration in it equating 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. it is abolished the post of Deputy Chairman created under the order dated 6th, June, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a declaration 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 we cannot grant relief to the petitioner on this ground, because, as andmitted by him in his letter dated 7th June, 1972 addressed to the second respondent, he accepted the appointment without demur as he though that the post of Deputy Chairman "was of the, same rank and carried the same emoluments as tie post of Chief Secretary" and actually stated in a chat with newsmen on 7th April, 1971 that "he was looking forward with confidence to discharge the duties of the Deputy Chairman. Planning, Commission which is considered a challenging task", and he cannot now be permitted to challenge the validity of the appointment. So far as the question of validity of the appointment to the post of Officer on Special Duty is concerned, we,think that this appointment also suffers from the same infirmity. The order dated 26th June, 1972 first created the post of Officer on Special Duty "of the rank of Member, Board of Revenue", but on the next day, when it was decided to appoint the petitioner to th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... did not apply its mind and objectively determine the equivalence 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 of Revenue,, 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 brought down to the rank of Member, Board of Revenue. The-order dated 27th June, 1972 in any event did not contain any declaration as to equivalence in "responsibility". There *,as thus no compliance with the requirement of r. 9, sub-r. (1) and the appointment of the petitioner to the post of Officer on Special Duty was accordingly be, liable to be held invalid for contravention of that sub-rule. But we cannot in this petition un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cts any matter relating to public employment, it is also violative of Art. 16. Arts. 14 and 16 strike at arbitrariness in State action an( ensure fairness and equality of treatment. They require that State action must be based on valent relevant principles applicable alike to all similarly situate and it must not be guided by any extraneous or irrelevant considerations because that would be denial of equality. Where the operative reason for State action, as distinguished from motive inducing from the antechamber of the mind, is not legitimate and relevant but is extraneous and outside the area of permissible considerations, it would :amount to mala fide exercise of power and that is hit by Arts. 14 and 16. Mala fide exercise of Power and arbitrariness are different lethal radiations emanating from the same vice : in fact the matter comprehends the former. Both are inhibited by Arts. 14 and 16. It is also 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 public servant is in an officiating position, he can complain of violation of Arts. 14 and 16 if he has been. arbitrarily o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st the public servants. Secondly, with the vast multitudinous activities in which a modern State is engaged, there are bound to be some posts which require for adequate discharge of their functions, high degree of intellect and specialised experience. It is always a difficult problem for the Government to find suitable officers for such specialised posts. There are not ordinarily many officers who answer the requirements of such specialised posts and the choice with the Government is very limited ' and this choice becomes all the more difficult,- because some of these posts, though important and having onerous responsibilities, do not carry wide executive powers and officers may not, therefore, generally be willing to be transferred to those posts. The 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 post. But that does not make the transfer arbitrary. So long as th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hief 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. 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, but we cannot say on the material on record that the validity of the premise has been established by the petitioner. So far as the post 'of Deputy Chairman is concerned the petitioner himself accepted that post as being of the same status and responsibility as the post of Chief Secretary and did not raise objection against it and we need not, therefore, say anything more about it. The only question is as to the post of Officer on Special Duty. We think that this post has not been satisfactorily established by the petitioner to be inferior in' status and responsibility to the post of Chief Secretary. This of-course does not mean, and we are not prepared to go as far as the learned Chief Justice in asserting positively that post was equal in status and responsibility to th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d accordingly invalid. Now, when we examine this contention we must bear in mind two important considerations. In the first place, we must make it clear, despite a very strenuous argument to the contrary, that we are not called upon to investigate into acts of maladministration by the political Government headed by the second respondent. It is not within our province to embark on a far flung inquiry into acts of commission and ommission charged' against the second respondent in the administration of the affairs of Tamil Nadu. That is not the scope of the inquiry before us and we must decline to enter upon any such inquiry. It is one thing to say that the second respondent was guilty of misrule an another to say that he had malus enimus 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 latter limited issue, not with the former popular issue. We cannot permit the petitioner 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the case but we are afraid it is not possible for us to say that the onus of establishing mala fides against the second respondent, heavy as it is, has been discharged by the petitioner. The allegations of mala fides have been dealt with fully in the 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 allegations once again in this judgment, as we are substantially in agreement with what the learned Chief Justice has said. But we cannot help mentioning 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 malpractices 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, informe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... though the Personal Assistant to the Chief Secretary had been reminded to send back the file relating to this matter, it had not been received and the petitioner should arrange to send it back, 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 need 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, Sabanayagam 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 Me could not have stood in the way of ordering an inquiry. These and a few other circumstances do create suspicion brunt suspicion cannot take the place of proof and, as pointed out above, proof needed here is high degree of proof. We cannot say that evidenc ..... 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