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PETITIONER: E.   P. ROYAPPA

       Vs.

RESPONDENT: STATE OF TAMIL NADU & ANR.

DATE OF JUDGMENT23/11/1973

BENCH: RAY, A.N. (CJ) BENCH: RAY, A.N. (CJ) PALEKAR, D.G. CHANDRACHUD, Y.V. BHAGWATI, P.N. KRISHNAIYER, V.R.

CITATION:  1974 AIR  555            1974 SCR  (2) 348  1974 SCC  (4)   3

ACT: Constitution  of  India,  Art.  32-Fundamental  Right-Indian Administrative  Service  (Pay) Rules 1954 r. 9  sub-r.  (1)- Declaration  of equivalence-Mere violation of rule does  not involve infringement of fundamental right. Constitution of India, Arts. 14, 16-Transfer of acting Chief Secretary  to non-cadre posts in the same grade as  that  of chief  Secretary-Appointment and confirmation of  junior  in the  post  of Chief Secretary-Material on record  must  show that   non   cadre  posts  are  inferior   in   status   and responsibility. Indian Administrative Service (Pay) Rules, 1954-Rule 9  sub- rule  (1)Making of declaration sine qua non of  exercise  of power’ under sub-rule. Indian Administrative Service (Cadre) Rules 1954-Rule  4(2)- Scope of second proviso. Mala  fides-Onus-Grave imputations against holder of  office with  high  responsibility-court  would  be  slow  to   draw inferences from incomplete facts.

HEADNOTE: The  petitioner  was a member of the  Indian  Administrative Service  in  the  cadre  of the  State  of  Tamil  Nadu.  in November,  1969,  when the post of Chief  Secretary  to  the State  fell vacant the petitioner, as the best  suited,  was selected  for  the post.  The draft order in regard  to  the appointment  approved  by  the Chief  Minister.  the  second respondent.  stated  that the petitioner  "is  promoted  and posted  as  Chief Secretary vice [R] retiring  from  service with  effect from the afternoon of November 13. 1969".   The final   order   in   the  name,  of   the   Governor,   duly authenticated,  issued  on  the same day,  stated  that  the petitioner "is promoted and posted to act as Chief Secretary to  Government  vice  [R]  who  has  been  granted   refused leave......  "  The petitioner was accordingly  promoted  as Chief  Secretary.   On  the  recommendation  of  the   State Government  that  the  posts of Chief  Secretary  and  First Member of the Board of Revenue should be deemed to be in the same category and should be inter-changeable selection posts

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the  Central  Government by notification dated  January  14, 1970 provided that the pay of First Member, Board of Revenue was to be the same as that of the Chief Secretary.  The post of First Member Board of Revenue was thus equated to that of the  Chief  Secretary in rank and status.   By  notification dated  August 31, 1970 the Government of India enhanced  the pay, rank and status of the Post of Chief Secretary to  that of  the Secretary to the Government of India and  that  post was  raised  above  every  other cadre  post  in  the  State including the post of First Member, Board of Revenue. On April 17. 1971 the State Government accorded sanction  to the  creation of a temporary post of Deputy Chairman in  the State  Planning Commission in the grade of  Chief  Secretary for  a  period of one year and appointed the  petitioner  to that  post providing that he shall be entitled to  the  same rank  and  emoluments  as admissible to the  post  of  Chief Secretary.   The petitioner did not join this post and  went on leave.  On the petitioner’s return from leave the post of Deputy  Chairman was again created for a period of one  year in  the grade of the Chief Secretary and the petitioner  was appointed to that post.  Against this the petitioner made  a representation  that the continuance of the post  of  Deputy Chairman in the rank of Chief Secretary for a period of more than  one year would be invalid under r. 4(2) of the  Indian Administrative Service (Cadre) Rules, 1954.  Next the  State Government  created a temporary post of officer  on  Special Duty  for streamlining and rationalising the Sales Tax  Act, "in  the  grade  of Chief Secretary to  the  Government  and appointed  the  petitioner to that post".  He did  not  join this post too and proceeded on leave.  After the  petitioner was  transferred from the post of Deputy  Chairman  Planning Commission  and  appointed  Officer  on  Special  Duty   for revision  of Sales Tax laws the State  Government  abolished the 349 post  of Deputy Chairman sanctioned under the earlier  order and sanctioned the creation of a new post of Deputy Chairman in the Grade of First Member.  Board of Revenue" on a pay of Rs.  3000/-  per month and appointed a First Member  of  the Board of Revenue to that post.  Besides, on the transfer  of the petitioner from the post of Chief Secretary a person who was  admittedly  junior to-the petitioner  was  promoted  as Chief Secretary and was confirmed in that post. The  petitioner  filed  a  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 : viz. (i) it  was  contrary to the proviso to r. 4(2)  of  the  Indian Administrative  Service  (Cadre) Rules, 1954 and  r.  9[sub- r.(1)]  of  the Indian Administrative  Service  (Pay)  Rules 1954;  (ii)  it  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 Chief Secretary; and (iii)  that  it was made in mala  fide exercise of power, not on account  of exigencies of administration or public service, but  because the  second  respondent was annoyed with the  petitioner  on account.  of various incidents referred to in  the  petition and wanted him out of the way. Dismissing the petition, HELD : Per Chandrachud, Bhagwati and Krishna Iyer, JJ :  (i) The promotion of lie petitioner as Chief Secretary was  only in   an  acting  or  officiating  capacity  and  not  in   a substantive capacity.  The draft order does not say  whether

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the  promotion  is  in  a  substantive  capacity  or  in  an officiating  capacity.  It is the authenticated order  which says for the first time clearly and definitely by using  the words  "to  act" that the promotion is  in  and  officiating capacity.  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.   The  authenticated   order correctly   reflects  the  final  decision  of   the   State Government.   There  is, thus no inconsistency  between  the draft order and authenticated order from which any error can be spelt out in the authenticated order. [378H-379E] The  respondents  are  not correct in  contending  that  the authenticated order was the final order and it was not  open to  the Petitioner to say that it did not correctly  reflect the  order as made by the State Government.  It is now  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.’ [378A-C] King Emperor v. Shivnath Banerjee, 72 I.,A. 241 and State of Bihar v. Sonabati, [1961] 1 S.C.R. 746, referred to. (ii)The   second   proviso  to  r.  4(2)  of   the   Indian Administrative  Service  (Cadre) Rules has  no  application. The  proviso, merely confers limited authority on the  State Government  to  make temporary addition to the cadre  for  a period not exceeding the limit therein specified.  The State of  Tamil Nadu could not add the posts of  Deputy  Chairman. State Planning Commission and Officer on Special Duty  under the  second  proviso, as these posts did not  exist  in  the Cadre  as constituted by the Central Government.  They  were new  categories  of posts created by the  State  Government. [380A-E] (iii)The  making of a declaration setting out which  is the  cadre post to which a non-cadre post is  equivalent  is sine  qua non of the exercise of the power under sub-r.  (1) of  r. 9 of the Indian Administrative Service  (Pay)  Rules, 1954. [381C-D] The  determination of equivalence is therefore  a  condition precedent  before  a  member of  the  Indian  Administrative Service can be appointed to a non-cadre post under  sub-rule (1).   The government must apply its mind to the nature  and responsibilities of the functions and duties attached to the non-cadre  post  and determine the  equivalence.   Where  it appears to the Court that the declaration of’ equivalence is made without application of mind to the nature and responsi- bilities  of the functions and duties attached to  the  non- cadre  post  or that extraneous or  irrelevant  factors  are taken  into account in determining the equivalence  or  that the nature and responsibilities of the functions and  duties of  the two posts are’ so dissimilar that no reasonable  man can possibly say that they are equivalent 350 in  status  and  responsibility, or  that  the  decision  of equivalence  is mala fide or in colorable exercise of  power or  it is a mere cloak or 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. [382A-F] The  order dated April 7, 1971 sanctioning the  creation  of temporary  post  of  Deputy  Chairman  and  appointing   the petitioner  to  the  post  has not in  it  any  trace  of  a declaration that the State Government found, on an objective assessment  of  the  nature  and  responsibilities  of   the functions  and  duties  attached  to  the  post  of   Deputy

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Chairman, that it is equivalent in status and responsibility to  that  of Chief Secretary.  Further, the post  of  Deputy Chairman  cannot  be  declared  equivalent  in  status   and responsibility  to the post of Chief Secretary at  one  time and to the post of First Member Board of Revenue at another. The nature and responsibilities 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  clearly  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.  But the  petitioner cannot  now  be permitted to challenge the validity  of  the appointment since in the letter dated June 7. 1972 addressed to the second respondent-he accepted the appointment without demur as he thought that the post of Deputy Chairman "was of the same rank and carried the same emoluments as the post of Chief Secretary". [384A-G] Similarly  in  making the orders dated June  26,  1972  and. June  27, 1972 the State Government did not apply  its  mind and  objectively  determine the equivalence of the  post  of Officer on Special Duty, but gave it a rank or grade accord- ing  as  who was the officer going to be  appointed  to  it. There  was thus no compliance with the requirement of  r.  9 sub  r.(1).  But  the  petitioner cannot  get  relief  in  a petition under Art. 32 since mere violation of r. 9 sub.  r. (1) does not Involve infringement of any fundamental  right. [385F-386B] (iii)The contention that the transfer of the petitioner from the post of Chief Secretary first to the post of Deputy Chairman  and  then to the post of Officer on  Special  Duty coupled  with  the promotion and confirmation  of  a  person junior to the petitioner in the post of Chief Secretary  was arbitrary  and violative of Arts. 14 and 16, though  it  may seem  plausible,  cannot be accepted, because, there  is  no adequate material to sustain it.  The premise on which  this contention  is founded is that the posts of Deputy  Chairman and officer on special duty were not of the same status  and responsibility as the post of Chief Secretary.  It cannot be said  on  the material on record that the validity  of  this premise  has been established by the petitioner.  So far  as the  post  of Deputy Chairman is  concerned  the  petitioner himself accepted that post as. being of the same status  and responsibility as the post of Chief Secretary.  Even  though it  is  not possible to accept the thesis that the  post  of officer   on   special  duty  was  equal   in   status   and responsibility to that of the Chief Secretary,. equally,  it is  not possible to hold it established on the  material  on record  that  this  post was inferior  in  status  and  res- ponsibility  to  the post of Chief Secretary,  though  prima facie it does appear to be so.  The challenge based on Arts. 14 and 16 must. therefore, fail. [388C-389E] (iv)(Concurring with Ray, C.J.): The burden of establishing mala fides is very heavy on the person who alleges it.   The onus   of  establishing  mala  fides  against   the   second respondent  has not been discharged by the petitioner.   The Court  would  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. [390D-F] Per Ray C.J. and Palekar.  J: (i)The  petitioner was not appointed substantively to  the post of Chief Secretary.  The gazette notification  prevails over the draft order, The previous incumbent in the post  of

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Chief Secretary held his lien on the post until the date  of his  actual retirement.  The effect of fundamental rules  86 and  13(d)  as they stood prior to the commencement  of  the Constitution  is that an officer does ’not continue on  duty but draws leave salary by virtue of a I privilege granted to him.   There is no formal extension of service.  He  retains lien on his post.  The post 351 cannot be substantively filled till he actually retires from service.   Therefore, the petitioner did not have any  right to hold the post of Chief Secretary. [355A-C, G] (ii) It is not the case of the State that the post of Deputy Chairman Planning Commission and Officer on Special Duty are cadre  posts  within  the  meaning of r.  4  of  the  Indian Administrative  Service  (Cadre ) Rules  1954.   The  second proviso  to r. 4(2) of the Cadre Rules does not  confer  any power  on  the State Government to alter  the  strength  and composition of the Cadre.  The meaning of the second proviso to r. 4(2) is that the State Government may add to the cadre for  the period mentioned there one or more  posts  carrying duties  and responsibilities of the like nature of  a  cadre post.  The posts so added do not become posts   [356C-G] (iii)The  real  significance of Rule 9  of  the  Indian Administrative Service (Pay) Rules is that members of  Cadre posts cannot be deployed to non-cadre posts unless posts are of  a  caliber  which can be filled up by  cadre  men.   The purpose  of the declaration that the post is  equivalent  in status and responsibility to post specified in the  schedule to  the  Indian  Administrative Service (Pay)  Rules  is  to ensure  that  members of the cadre are not  taken  to  posts beneath their status and responsibility.  The declaration is not one of mere form.  It is of substance.  A declaration in writing is desirable.  The absence of a declaration will not be  an impediment in ascertaining the equivalent status  and responsibility.   Similarly, the presence of  a  declaration may  not be conclusive if the declaration is a  mere  cloak. The  facts and circumstances has to be looked into in  order to  find out whether there is in real substance equality  in status and responsibility. [358B-F; 36OH; 361C] The  posts  of Deputy Chairman Planning Commission  and  the Officer  on Special Duty were created for cadre officers  to discharge  duties and responsibilities of a high  order  and must  be  counted as no less responsible than the  top  most cadre  posts.  These posts were not created all of a  sudden with any oblique purpose.  When the petitioner was posted to the  new posts he was permitted to draw his salary as  Chief Secretary  and  when  a First Member Board  of  Revenue  was appointed he took with him his salary as First Member.  When the petitioner was to occupy the post of Deputy Chairman  or Special  Officer  the post was graded to give  him  his  old scale  of  pay and when the First Member  was  appointed  to these  posts  he was given his old scale  as  First  Member. That  the  posts of Chief Secretary and  First  Member  were interchangeable, though the former got a higher salary,  was recognised by the State Government and also endorsed by  the Central   Government  in  1970.   There  was  therefore   no upgrading or down grading of the posts [361G-362-G] The petitioner who was in the selection grade could thus  be transferred  to  any of these two posts of  Deputy  Chairman Planning  Commission or Officer on 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 services of cadre officers  are utilised   in   different   posts  of   equal   status   and

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responsibility  because of exigencies of administration  and for  employing  the best available talent  on  the  suitable post.  There is no hostile discrimination in transfers  from one  post to another when the posts are of equal status  and responsibility. [362G-363D] (iv)(Chandrachud, Bhagwati and Krishna Iyer, JJ concurring) The entire affidavit evidence establishes beyond any measure of  doubt  that the petitioner’s allegations  imputing  mala fides   against  the  Chief  Minister  are  baseless.    The allegations of mala fides are not contemporaneous but  after thoughts  at  a  distance of  one  year.   The  petitioner’s allegations  are  in aid of  suggesting  vindictiveness  and vengeance on the part of the Chief Minister.  Facts and cir- cumstances  repel any such insinuation and innuendo.  [371H- 372F]

JUDGMENT: ORIGINAL JURISDICTION : Writ Petition No. 284 of 1972. Under  Art.  32  of  the  Constitution  of  India  for   the enforcement of fundamental rights. A.K. Sen, S. J. Rana, U. N. R. Rao, V. Selvaraj and R. R. AgarWala for the. petitioner. 352 S. Govind Swwninadhan, M. C. Setalvad, Ratnavel Pandian,  S. Mohan, A. V. Rangam, Habibulah Basha, N.  S. Sivan, D.  Raju and A.    Subashini, for respondent no. 1. S.V. Gupte, S. Ratnavel Pandian, S. Mohan, A. V. Rangam, D). Raju and A. Subhashini, for respondent no. 2. F. S. Nariman and M. N. Shroff, for intervener. The Judgment of,, A. N. RAY , C.J. and D. G. PALEKAR J.  was delivered  by  RAY,  C.J.  A  separate  opinion  of  Y.   V. CHANDRACHUD, P.     N. BHAGWATI and V. R. KRISHNA IYER,  JJ. was given by BHAGWATI, J. RAY, C.J. The petitioner in this writ petition under Article 32  of  the Constitution asks for a mandamus  or  any  other appropriate   writ,   direction  or  order   directing   the respondents to withdraw and cancel the order dated 27  June, 1972.  The petitioner further asks for direction to  re-post the  petitioner to the post of Chief Secretary in the  State of Tamil Nadu.  The respondents are the State of Tamil  Nadu and the Chief Minister of Tamil Nadu. The  petitioner  is a member 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

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Administrative  Service (Pay) Rules, 1954 so that the  posts of Chief Secretary to Government, Additional Chief Secretary to Government and First Member, Board of Revenue could be of the  same  cadre carrying the same pay.  The  Government  of India  by a letter dated 26 September, 1969 stated that  the status  of  Chief Secretary as the head of  the  Secretariat Organisation  in the State should remain unquestioned.   The view of the Central Government was that the status of  Chief Secretary  should  not  be  allowed to  be  diluted  by  the creation of the post of Additional Chief Secretary  carrying 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. 353 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 Revenue was by an order dated  18 August, 1971 asked to hold the additional charge of the post of Deputy Chairman for one year with effect from 13  August, 1971.   On 6 June, 1972 the petitioner returned from  leave. He  was again. posted as Deputy Chairman,  State.   Planning Commission  on  a  salary  of Rs.  3500/-  per  month.   The petitioner did not join that post.  The. petitioner  pointed out  that the post of Deputy Chairman which was created  for one year did not exist after 13,April, 1972. By an order dated 27 June, 1972 the Government of Tamil Nadu accorded  sanction  to the creation of a temporary  post  of Officer on Special Duty in the grade of Chief Secretary,  to Government  for  a  period  of one year  from  the  date  of appointment  or  till the need for it ceased  whichever  was earlier.   By the same order the petitioner was  transferred and  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

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equal  in status and responsibilities to a  scheduled  post. Third,  the  petitioner  is posted to  an  office  which  is inferior  in  status  and  office  to  that  of  the   Chief Secretary.  Therefore, the order is a hostile discrimination offending  Articles 14 and 16.  Fourth, the creation of  the post  as  well  as  the; appointment  and  transfer  of  the petitioner to the post is malafide. In  this context it is to be ascertained as to  whether  the petitioner  was appointed to the substantive post  of  Chief Secretary  to the state  ate of Tamil Nadu.  The  petitioner relied on draft order of the chief 354 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 N o. 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  had left the State Cadre in 1960.  In 1969  Rajaram was  the Special Representative to the Government  of  Tamil Nadu.  The choice was between Mani whose position was No.  4 and the petitioner.  Mali’s work was not satisfactory during the  flood  relief operations in 1967.   There  was  adverse criticism  on his work from the public and the  press.   The petitioner  was  commended by his superiors to  be  dynamic, efficient,   vigorous.   The  petitioner   was,   therefore, described  by the Chief Minister to be best suited  for  the post. It  thus appears that the Chief Minister’s note as  well  as the draft order stated that the petitioner was promoted  and posted  as  Chief Secretary.  But the  Gazette  Notification dated  13  November,  1969  was  that  the  petitioner   was "promoted  and  posted  to act as  Chief  Secretary  to  the Government  vice  C. A. Ramakrishnan, who has  been  granted refused  leave  with effect from 14  November,  1969".   The gazette notification prevails over the draft order. The  substantive  appointment of the petitioner was  in  the selection  grade  of  Rs.  1800-2000.   The  petitioner  was appointed  on 13 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.

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Under  Fundamental Rule 56(f) a member of the Indian  Civil Service  shall retire after 35 years’ service  counted  from the date of ,his arrival in India.  Ramakrishnan  completed, 35 year’s service on 14 355 November,  1969.   When  the petitioner  was  posted  on  14 November, 1969 to act as Chief Secretary, Ramakrishnan  went on  what  is  described as refused leave  for  four  months. Under  Fundamental Rule: 86 clause (c) the grant of  refused leave  extending  beyond  the date  on  which  a  Government servant  must  compulsorily retire or beyond the  date  upto which  a Government servant has been permitted to remain  in service, shall not be construed as an extension of  service. Fundamental  Rule 13(d) 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 which no other Government servant holds a lien. Ramakrishnan, who was on refused leave being a member of the Indian Civil Service, was entitled under Article 314 of  the Constitution   to   conditions  of   service   as   respects remuneration,  leave  and pension to which  members  of  the Civil   Service   were  entitled  immediately   before   the commencement of the Constitution.  Fundamental Rule 13(d) as it  stood  prior  to the commencement  of  the  Constitution provided for the retention of lien on a permanent post while on heave without making any exception with regard to refused leave.   Fundamental  Rule  86  as it  stood  prior  to  the commencement  of  the  Constitution  did  not  contain   any provision  to  the effect that the grant of  refused,  leave would not amount to extension of service.  The Government of India, Finance Department Notification No. 520-CSR dated  31 May,  1922 contained the Government decision that the  grant of  leave  under Fundamental Rule 86  automatically  carried with it the extension required and no formal sanction to the extension was necessary.  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 3 56 of  such leave shall be treated as sanctioning an  extension

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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  dated  14/16 November,  1970  prepared  by the  Joint  Secretary,  Public Department,   noted   that  the  date   of   retirement   of Ramakrishnan  would take effect from the ,date of expiry  of the refused leave, namely, 14 March, 1970.  That is why  the petitioner  asked  to be confirmed as Chief  Secretary  with effect  from 14 March, 1970.  The petitioner  was,  however, not  confirmed in the post.  Therefore, the  petitioner  was not substantively appointed to the post of Chief  Secretary. The   petitioner’s  substantive  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 of  each  such cadre in consultation with the State Government or the State Governments  concerned and may make such alterations  as  it deems  fit.   There are two provisos in the  sub-rule.   The first proviso states that nothing shall be deemed to  affect the  power of the Central Government to alter  the  strength and composition of the cadre at any other time.  The  second proviso  states  that  the State Government may  add  for  a period  not  exceeding  one year and with  the  approval  of Central  Government for a further period not  exceeding  two years, to a State or joint cadre one or more posts  carrying duties and responsibilities of a like nature of cadre posts. It, therefore, follows that the strength and composition  of the  cadre  shall be determined by regulations made  by  the Central   Government   in  consultation   with   the   State Government.   The  State Government alone cannot  alter  the strength and composition of the cadre., The aforementioned second proviso to Rule 4(2) of the  Cadre Rules does not confer any power ’on the State Government  to alter  the strength and composition 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 35 7 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

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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 Chairman, Planning Commission as well as the post of Officer on   Special   Duty  was  not  equivalent  in   status   and responsibility to the post of Chief Secretary to  Government within the meaning of Rule 9(1) of the Indian Administrative Service (Pay) Rules, 1954.  The petitioner alleged that both the  posts, were upgraded or downgraded depending  upon  the persons  to  occupy 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  27 June, 1972 the post  was  upgraded  and regarded as of the grade of Chief Secretary. When  the petitioner did not take charge as Deputy  Chairman of the Planning Commission on 7 April, 1971, the  Government directed  Rajaram, the senior most officer in the State  who was  the First, Member, Board of Revenue to hold  additional charge.   Again when the petitioner did not join on 6  June, 1972  as Deputy Chairman of the Planning Commission, it  was decided  to post Rajaram in his place.  Rajaram was  drawing only  a salary of Rs. 3000/- per month.  The post of  Deputy Chairman  was  to be filled either by the petitioner  or  by Rajaram.    The  post  was  not  inferior.    The   Planning Commission  is an advisory body to the Government  like  the Planning  Commission at the Centre.  The Chief  Minister  is the Chairman of the Planning Commission.  The petitioner was drawing  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 358 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

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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  specified  in Schedule III to those Rules.  Sub-rule (4) of rule 9  states that  where  equation  of posts is not  possible  the  State Government  or  the Central Government may,  for  sufficient reasons  to  be recorded in writing appoint a  member  of  a service to such a post without making a declaration.  It is, therefore,.  said  on  behalf  of  the  petitioner  that   a declaration 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 is  that Members of Cadre posts cannot be deployed  to  non- cadre  posts  unless  posts are of a caliber  which  can  be filled up by Cadre men. It also appears that the State since the year 1970 had  been contemplating  the setting up of a Planning Commission.   In the  month of March, 1970 the Finance Department prepared  a note that a Planning Commission was necessary in  industrial project, power project and irrigation.  A properly organised plan  for a region is to be an adjustment of the  continuing rate of growth of economic product and a plan of  continuing investments.  A plan of long term development is  necessary. Such a plan would spell out the various resources which  can be  utilised and the manner in which the fuller life can  be attained by the people.  The Finance Department of the State in 1970 advocated en- 35 9 gagement  of  a  group of qualified 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

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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  was  to  achieve  the declared  objectives  of the Government to promote  a  rapid rise  in  the standard of living of the people.   The  other objects  were to see that the, ownership and control of  the material resources of the community are so distributed as to sub-serve the common good.  The character and content of the Planning  Commission shows that the Chairman 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.  The 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.  The idea of appointing a committee was still  engaging the attention of the Government.  A note was prepared by the Revenue   Department  with  regard  to  constitution  of   a committee  to undertake a comprehensive study of  the  sales tax  structure in the State.  Eventually the  Government  in the  month of June, 1972 decided to appoint a senior  Indian Administrative   Service  officer  for  "Streamlining   and, relationalising"  the structure of Tamil Nadu General  Sales Tax Art and similar enactments relating to Commercial  Taxes and Rules made thereunder. -L522SupCI/74 360 The  State General Sales Tax and other Commercial Taxes  for long contributed the preponderant share towards the  revenue receipts of the State.  Sales Tax played a significant  role in the context of development programme of the State.  These taxes fetched Rs. 112 crores in 1971-72.  The General  Sales Tax  Act  was  enacted  in  1959.   In  order  to  meet  the situations  arising  from  changing patterns  of  trade  and commerce,  the interpretations of the Act by courts of  law, the discovery of loop-holes in the statutory frame-work, the 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

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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  point  is to be studied in order to find, out  as  to what  extent  there, is a case for transfer  of  commodities from multi point to single point and vice versa. Fourth, it is   to  be  found  out  whether  there  is  any  need   and justification  for the continuance of the concessional  rate of  taxation under the General Sales Tax Act  on  components coming under single point levy, and, if so, whether there is a case  for  extending  the same  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 responsibilities  of the Officer on Special Duty are  beyond any  measure of doubt equal in status and responsibility  to those of the Chief Secretary. It  was  conntended on behalf of the Petitioner  that  there should  be  a declaration in writing.  The  purpose  of  the declaration that the post is 361 equivalent  in  status  and  responsibility  to  Cadre  post specified  in  the  Schedule  to  the  Indian  Admmistrative Service (;Pay) Rules is to ensure that members of the  Cadre are   not   taken  to  posts  beneath   their   status   and responsibility.   These  measures are intended  to  preserve respectability  and responsibility of the’ Cadre,  officers. The  declaration  is  not  one  of  mere  form.   It  is  of substance.   A  declaration in writing  is  desirable.   The absence  of  a  declaration will not  be  an  impediment  in ascertaining  the,  equivalent  status  and  responsibility. Similarly   the  presence  of  a  declaration  may  not   be conclusive  if the declaration is a mere cloak.   The  facts and  circumstances 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

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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  the Chief Secretary.  The petitioner made a representation on 17 June  1972 that the post of Deputy Chairman in the  rank  of Chief Secretary could not continue for a period of more than one year since April. 1971.  The Government on 26 June, 1972 sanctioned  the creation of a temporary post of  Officer  on Special Duty.  On 27 June, 1972 the petitioner was  promoted 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 3 62 post would also depend on the incumbent, because a brilliant officer  can so augment the opportunities of public  service in  that  post  that others may covet it.   The  posts  were created  under  the inherent executive powers of  the  State Government.   These  posts  were  not  additions  to   posts specified in the Cadre Schedule of the Indian Administrative Service  (Cadre) Rules, 1954.  These were posts outside  the cadre. On  an  objective consideration we find that the  two  posts were  created for discharging functions requiring very  high calibre and specialized experience and must be counted as no less  responsible  than the topmost  cadre  posts.   Finding suitable  officers  for such specialized jobs  is  always  a difficult problem for the administration.  The Cadres do not always   overflow   with   superabundance   of   specialized experience.   The choice, therefore, becomes  limited.   The 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

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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 him his old scale.of  pay  and when Rajaram was appointed to these posts, he was given  his old scale as First Member.  That the posts of Chief,  Secre- tary.  and  First Member were  interchangeable,  though  the former  got  a higher salary, was recognized  by  the  State Government and also endorsed by the Central Government  long back in January, 1970.  There 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. 363 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 must be completely free from the fear or threat of arbitrary act  of  the author,. ties.  Similarly, the members  of  the Service  should  keep themselves isolated from  turmoils  of political  parties.  It is this sense  of  disinterestedness and detached devotion to duty which has to be recognised and rewarded. The  posts  of  Deputy  Chairman,  Planning  Commission  and Officer   on   Special  Duty  are  equal   in   status   and responsibility.  The services of cadre officers are utilised in  different  posts  of  equal  status  and  responsibility because  of. exigencies of administration and employing  the best  available  talent in the suitable post.  There  is  no hostile discrimination in transfer from one post to another when the posts are of equal status and responsibility. The  petitioner  alleged that the creation of the  posts  of Deputy Chairman, Planning Commission and Officer on  Special Duty  as  well as the appointment of the petitioner  to  the posts  was  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

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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 the matter to the police.’ Another  allegation  concerning  Mudaliar  is  that  he  was flouting orders of the Government and health authorities and allowing  effluents  from the distillery  at  Tirucharapalli without proper treatment into the river and thereby  causing hazards.   The petitioner wrote a note asking for  deterrent action  and  launching prosecution  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 364 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    recommended implementation of a plant scheme, on pain of cancellation of licence.    Industrial  alcohol  is  manufactured   in   the distillery.  This product is required by the cordite factory of the Defence Department, and for pharmaceutical, medicinal and industrial products.  The petitioner’s recommendation to close   the   distillery  would  not   only   have   created unemployment  of a large section but also loss of  important products.   The  way  the affairs  of  the  distillery  were handled  according to the suggestion and  recommendation  of the petitioner does not disclose any evidence of malafide on the part of the Government. The third instance of malafide alleged by the petitioner was that  the Chief Minister did not like the suggestion of  the petitioner  that Vaitialingam, the Private Secretary to  the Chief Minister should be transferred.  The Chief Minister is also alleged to have said that the Chief Secretary should be transferred  but  not  the  Private  Secretary.   The  Chief Minister  denied  that he ever made any 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

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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  in the High Court claiming revision of  seniority on the basis of Government order dated 22nd December,  1969. Those  petitions are pending disposal in the High  Court  of Madras. The petitioner also alleges, that the Chief Minister refused to allow Deputy Collectors in the select list to act in  the Indian Administrative Service posts and many retired at  the age of 55 without acting as 1,A.S, 365 Officers.   The petitioner alleges that the  Chief  Minister thought  that Vaithialingam would thereby gain seniority  in the  inter se seniority list of Deputy  Collectors  because, the  age  of superannuation of 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 Officers for suppressing the note that the Law  Department had strongly opposed the proposal  to  award large   compensation.    The  affidavit  evidence   of   the respondents  is  that  the awards were passed  by  the  land acquisition authorities.  The Law Department was of the view that  land acquisition officers. did not Department  advised disciplinary   action   against  the  officers.    The   Law Department recommended that the awards should be get  aside. The  Chief Minister, the Minister of Law both directed  that suitable  action should be taken.  The file was sent to  the petitioner  for  further action.  The petitioner  asked  for suspension  of  the Officers.  The Government  approved  the suspension   because  of  the  clear  instructions  of   the Government.   Disciplinary proceedings are  pending  against these  officers.   It  is  obvious  that  the   petitioner’s allegations  of  malafide  against the  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’

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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 366 noted  "Chief Minister may decide".  The petitioner did  not oppose  the  proposal.  This fact also  indicates  that  the Chief   Minister  did  not  bear  any  grudge  against   the petitioner. The petitioner alleges that an extra-ordinary-procedure  was followed  ’a  connection with the tender  for  the  Veeranam Water.    Supply  Scheme  to  the  city  of   Madras.    One Satyanarayana submitted the tender.  The amount involved was Rs.  20 crores.  The Government agreed to 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 acceptance  of  the. tender of Satyanarayana Brothers.  It thus appears that  the petitioner saw the file on 1 1 May 1970 after the tender had been  accepted on 7 May 1970.  The petitioner did not  raise any objection to the procedure which was adopted.  When  the matter came for final orders on 13 July 1970 the  petitioner did not record any objection.  This is wet another  instance which   establishes  that  the petitioner  made   reckless allegations imputing mala fides to the Chief Minister. The  other allegation of the petitioner concerns  the  Cooum River  Project.   The  allegation  is  that  the  petitioner pressed  for  an investigation of the Cooum  River  Project. The  Chief Minister issued orders for an enquiry.  Later  on the Chief Minister cancelled the order.  The Chief  Minister directed  the  Director of Vigilance to  look  into  certain rumours  about  malpractices in the execution 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

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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 3 6 7 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  centres  on  the mid-term Doll  in  the  month  of February, 1971.  The petitioner’s allegations are these.  In or about the end of January, 1971, the D.M.K. Party of which Ramaswami  Naicker is the leader took out an  anti-religious procession at Salem.  It is alleged that the procession hurt the  feelings  of devout Hindus.  One  Ramaswami,  popularly known  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 the petitioner to task  for registering a case against Naicker. The Chief Minister in his affidavit states that he told  the petitioner  that action should be taken against the  persons who  had  broken  ;the  law.  He denies  that  he  took  the petitioner  to task for registering a case against  Naicker. He denies that he shouted at the petitioner and ordered  the Inspector General of Police to suspend any police officer. The  other allegations by the petitioner are these.   On  28 February,  1971 the petitioner received a telephone  message from  the Deputy Inspector General of Police  about  various clashes involving looting, killing, burning of houses in the village.  in  Tireunelveli District on the  previous  night. The Inspector General of Police informed the petitioner that the Minister of Co-operation was at the back of the clashes. The  District  Collector  was not  helpful  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

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Governor  summoned them to discuss about  the  deteriorating law and order situation in the 368 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 do their duty.  The law and order situation has deteriorated considerably  through  on  the State.   In  the  Tirupattur Constituency  of Ramnad District there was no  semblance  of law  and  order.  I had received telegrams  and  complaints. Unless  the Collectors and the Superintendent of  Police  do their duty there would be no free and fair Elections".   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  you  to withdraw  immediately  the  Central  Reserve  Police".   The petitioner  said  that he had asked for five  battalions  of Central  Reserve  Police  for  maintaining  law  and   order situation.   It  was not possible to  withdraw  the  Central Reserve   Police.   The  Chief  Minister  shouted   at   the petitioner. After  the polling was over the police force posted  in  the city  was moved to the other polling areas.  Law  aid  order situation  deteriorated  considerably in the city.   A  lady M.L,A. belonging to the Congress Party was dragged from  her car  and  molested.  Goondas armed with sticks  and  weapons were  at large.  The Inspector General of- Police  discussed the  matter with the petitioner.  The petitioner asked  them to  round up all bad elements.  More than 2600 bad  elements were rounded up.  In the absence of the Chief Minister,  two Ministers  phoned the Commissioner of Police to release  the D.M.K.   ring  leaders.   The  Commissioner  of  Police   in accordance  with  the petitioner’s instructions  refused  to release them unless proper bail was 369 offered.  The Commissioner of Police informed the petitioner

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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 that the people  should not  be  allowed  to collect within three  furlongs  of  the counting  centres.   Bad elements should be  rounded  up  24 hours  before  the counting began.  The Collectors  and  the Commissioner  of Police should form , Peace  Committees  and request  the  political  parties not  to  take  out  victory processions or indulge in violence.  Section 41 of the  City Police Act and Section 30 of the District Police Act were to be 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 the  petitioner  because  of  the  stern  attitude  of   the petitioner against the D.M.K. Party. The  Chief  Secretary of the State in his  affidavit  states that there is no record of any one of the matters alleged by the petitioner with regard to law and order  situation  on the eve and at the time of the election save and except  the instructions issued by the petitioner on 4 March, 1971  with regard to promulgation. of section 41 of the City police Act and section 30 of the District Police Act, rounding up of 370 bad  elements  and probation offenders  and  prohibition  of processions The order passed by the petitioner was  reviewed at  the State Cabinet Meeting on 6 March, 1971.  There  were two   modifications.    First,   the   prohibition   against collection  of people within three furious of  the  counting centre  was, changed into safe distance, in place  of  three furlongs.   The rounding up of rowdies and bad elements  and probation offenders was restricted only to "listed rowdies". The  Home  Ministry Code message dated 4 March,  1971  about

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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  release  the D.M.K. leaders. The Governor of Tamil Nadu in his affidavit states that  the petitioner and the Inspector General of Police met him on 28 February,  1971  at 4 p.m. at his instance  to  discuss  the arrangements   made   or  being  made  for   the   effective maintenance of law and order.  The, Governor brought to  the notice of the petitioner and the Inspector General of Police that  certain  allegations  had  been  made  in  regard   to incidents  of  violence  and  intimidation.   The  Inspector General  of Police told the Governor that the reports  would be  investigated.   The  Governor  denies  that  he  made  a reference to complaints of violence or 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 deterioration  in  the law and order situation.   He  states that out of 160 complaints received throughout the State  69 were against D.M.K. 46 371 against the Congress (0) and 6 against the other parties and the  remaining  39  are against the Police  and  other  non- political  bodies.  The Inspector General of  Police  denies that  there  was any organised  violence.   Kuppuswamy,  the Inspector   General  of  Prisons  who  held  the   post   of Commissioner  of Police at the time of the  election  states that  the  allegations made by the petitioner  about  tirade against  the petitioner and the Inspector General of  Police and the Commissioner of Police are baseless. The petitioner made allegations of malafides to suggest that the petitioner was an honest officer and the Chief  Minister and the, other Ministers did not want such an honest officer and  therefore  they got rid of him.  The  most  significant feature  in the allegations of malafides is that when  on  7

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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  feature  in the  allegations  of malafides is that  the  petitioner  all throughout  describes himself as a person who acted  without any  fear  or favour and enjoyed the reputation of  being  a strict  and honest officer, and, therefore,  the  Government contrived  to remove the petitioner from the post of Chief Secretary.   Honest  and  fearless 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 372 Ministers in the context of files and rules.  The Government and  Ministers are also expected to maintain a balanced  and impersonal  attitude  in  regard to advice  given  by  civil servants.   In  the  present  ,case,  it  appears  that  the petitioner  gave advice in course of duty.  The  Government practically  in all cases accepted the advice of the  peti- tioner.   There does not appear any instance of acrimony  or disagreement  between  the Government  and  the  petitioner. There are no records to suggest that the petitioner  advised one way and the Government acted in an opposite manner. The  events alleged at the time of the elections are in  aid of  the petitioner’s contention that his dealing of the  law and order situation was so firm that the Chief Minister  and other members of his party became alienated.  The petitioner suggested  that  the Chief Minister and the members  of  his party   were  responsible  for  introducing   violence   and intimidation.   The further suggestion of the petitioner  is that  the  petitioner exposed the activities of  the  D.M.K.

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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 will pay  and  bear its own costs.                           JUDGMENT BHAGWATI,  J. We are in agreement with the final  conclusion reached  in  the  judgment delivered by  the  learned  Chief Justice,  but  our  approach  and  reasoning  are  a  little different   and  we  are,  therefore,  delivering   separate judgment  expressing  our views on  the  various  questions. arising in the petition, The  petitioner  is a member of  the  Indian  Administrative Service 373 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 Secretary to Government anti First Member, Board of  Revenue carried  respectively pay of,Rs. 3,000/- and  Rs.  2,750/-. But since, the State Government had by the order dated 11 th July,  1969  directed that the posts of Chief  Secretary  to Government, Additional Chief Secretary to  Government  and First  Member,  Board  of  Revenue should  be  in  the  same category  and  interchangeable it was  necessary-that  there should  be  same pay for all the three posts and  the  State Government,  therefore, by a letter dated 7th  August,  1969 requested the Central Government to amend Sch.  IIIA of  the Indian  Administrative Service (Pay) Rules, ’1954,  so  that all the three posts could- be of the game rank carrying  the same pay, namely, Rs. 3,000/. The Central Government by  its letter  in reply dated 26th September, 1969 pointed out  to’ the  State Government that the status of Chief Secretary  to

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Government  as the head 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 Revenue shall be Rs. 3,000, that is the same as that of  the Chief   Secretary.   The  post of  First  Member,  Board  of Revenue was, thus equated to that of’the Chief Secretary in rank  and  status,  though  the  post  of  Additional  Chief Secretary was not. 374 In  the  meantime,  on 13th November,1969,  the  then  Chief Secretary Ramakrishnan, 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,  that  is,  13th November, 1969 the draft order in regard to the  appointment of  the petitioner was prepared and it was approved  by  the second respondent.  The draft order stated inter- alia  that the  petitioner "is promoted and posted as  Chief  Secretary vice  Thiru Ramakrishnan, I.C.S. retiring from service  with effect from the afternoon of 13th November, 1969" The  final order in the name of the Governor duly authenticated by  the Chief  Secretary  was  issued on the same  day  but  it  was differently worded in one material respect.  Paragraph 5  of that  order  provided that the petitioner "is  promoted  and posted  to act as Chief Secretary to Government  vice  Thiru Ramakrishnan, I.C.S. who has been granted refused leave with effect  from 14th November 1969." The reference here was  to the  fact that Ramakrishnan has been granted  refused  leave for  four months from 14th November, 1969 under  Fundamental Rule  86, cl. (a).  The petitioner was accordingly  promoted

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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, 375 Board  of Revenue was concerned,. but in regard to the  post of  Chief  Secretary,  amended  Sch.   III  to  the   Indian Administrative  Service (Pay) Rides, 1954 by a  notification dated  31st August, 1970 raising the pay of Chief  Secretary from Rs. 3,000/- to Rs. 3,500/- per month so as to bring him on par with Secretary to the Government of India.: The  rank and status of the post of Chief 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  State  Planning   Commission   in existence  on that date though it appears that the  proposal to set it up had been under consideration of the  Government for  Some  time.   The petitioner was  also  not  given  any inkling  of  the proposed appointment and he came  to  learn about it for the first time on reading the newspapers in the morning  of  7th  April 1971.  The  formal  order  in  this. connection was issued by the State Government on 7th  April, 1971  and  by  this  order  the  State  Government  accorded sanction  to  the  creation of a temporary  post  of  Deputy Chairman  in the State Planning Commission in the  grade  of Chief  Secretary for a period of one year with  effect  from the date of appointment and appointed the petitioner to that post  providing that be-shall be entitled to the  same  rank and   emoluments  as-  admissible  to  the  post  of   Chief Secretary’  The petitioner obviously felt that he was  being denig rated  and he, therefore, did not join this post  and went  on  leave  from 18th April, 1971  and  the  leave  was

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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 -L522SCI/64 376 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  representation  to   the   second respondent  on  7th  June, 1972 stating  that,  without  the approval  of the Central Government, the continuance of  the post of Deputy Chairman in the rank of Chief Secretary for a period of more than one year would be, invalid under r. 4(2) of  the Indian Administrative Service (Cadre)  Rules,  1954. How  far  this  contention was valid is 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 answer to our inquiry, we were informed  by him  that a Member of the Board of Revenue was  discharging the  functions  of  this  post in  addition  to  his  normal functions.  It may be pointed out here that after the  peti- tioner was transferred from the post of Deputy Chairman  and appointed Officer on Special Duty, an order dated 29th June, 1972 was passed by the State Government abolishing the  post of Deputy Chairman sanctioned under the earlier order  dated 6th  June, 1972, sanctioning the creation of a new  post  of Deputy  Chairman  "in the grade of First  Member,  Board  of Revenue"  on a pay of Rs. 3,000/- per month  and  appointing Raja  Ram, First Member, Board of Revenue to that  post  "in addition  to  Ms  appointment  as  First  Member,  Board  of Revenue".  One other fact may also be, noticed-and that is a little important that on transfer of the petitioner from the post of Chief Secretary. one Sabanayagam, who was admittedly junior  to the petitioner, was promoted as  Chief  Secretary and  we  ate told that he has been confirmed in  that  post.

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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 3 7 7 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 petitioner on  account  of various incidents referred to in the petition and wanted him out  of  the way.  We shall elaborate these  grounds  as  we proceed to discuss them. But before we examine these grounds we must first  determine what  was the nature of the appointment when the  petitioner was  promoted  as Chief Secretary.  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 order.  The respondents  sought  to repel  this  contention by a two-fold argument.   The  first argument  was based on the terms of the authenticated  order and  it  was  said  that  that  was  the  final  order  duly authenticated  by  the then Chief Secretary and it  was  not open to the petitioner to go behind that order and refer  to the  draft  order for purpose ;of varying  its  terms.   The authenticated  order,  contended  the  respondents,  clearly showed that the promotion and posting of ’the petitioner  as Chief  Secretary was in an officiating capacity.  The  other argument   urged   in  the  alternative  was   that   though Ramakrishnan retired on attaining the age of  superannuation on  the  afternoon of 13th November, 1969,  he  was  granted refused leave for a period of four months after the date  of his  retirement under Fundamental Rule 86, cl. (a)  and  his service was, therefore, extended and he continued to  retain his lien on the post of Chief Secretary until the expiration of  such period of four months, i.e. up to 14th March,  1970 and  the  petitioner  could  not,  therefore,  possibly   be

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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 3 78 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 with the draft order.  The respondents resisted this attempt to go behind the authenticated order and contended that  the authenticated order was the final order and it was not, open to  the petitioner to say that it did not correctly  reflect the order as made by the State Government.  We do not  think this contention of the respondents is sound.  It is now well settled  law that when an order is authenticated,  the  only challenge that is 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(1) 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  prevail  over  the- actual  order  made  and override it.   That  would  not  be consonant  with  reason  or  principle.   It  would  be   an artificial  rule calculated to obstruct the cause  of  truth and justice.  Here in the present case it is the citizen who contends  that  the authenticated order does  not  correctly reproduce  the  actual order made by the  State  Government. But there may conceivably be cases where the Government  may also find that there is a mistake in the authenticated order and  it requires to be rectified.  Take for example  a  case where  the actual decision taken by the State Government  is that  a  person  should  be  appointed  to  a  post  in   an officiating  capacity  but by mistake  the.  appointment  is described  as substantive appointment in  the  authenticated order.’  Can  it  be  suggested in  such  a  case  that  the Government  cannot  rectify  the  mistake  by  amending  the authenticated  order  so as to bring it 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

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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 (1)   72  I.A.  241.                                     (2) [1961] 1 S.C.R. 746 3 79 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 appropriate authority applied its mind to the question as to whether the promotion should be in a substantive capacity or in an officiating capacity and since Ramakrishnan was  going on  refused leave for four months from 14th  November,  1969 and  was  accordingly,  as we  shall  presently  point  out, entitled  to retain his lien on the post of Chief  Secretary till  that  date, decided that the promotion  should  be  an officiating  one  as indeed it could not be  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 of four months  from the  date of his superannuation he continued to  retain  his lien  on the post of Chief Secretary until 14th March,  1970 during  the period of refused leave granted to him, and  the promotion  of  the  petitioner under the  order  dated  13th November,  1969 could not therefore be otherwise than in  an officiating  capacity.  The post of Chief  Secretary  became vacant  on  14th March, 1970 but at no time  thereafter  the petitioner  was  confirmed as Chief Secretary and  he  had, therefore,  no right to hold the post of Chief Secretary  At the  date when he was transferred as Deputy Chairman,  State Planning Commission.  But that does not mean that he was not entitled to be considered for confirmation, and since he was not confirmed,, but Subanayagam, who was junior to him, was, promoted  and confirmed, the question must inevitably  arise whether what was done was in mala fide exercise of power  or in violation of Arts. 14 and 16 of the Constitution. We  now turn to the first ground of challenge which  alleges

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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 Admi- 380 nistrative Service (Pay) Rules, 1954.  So far as the  second proviso  to  r. 4(2) of the  Indian  Administrative  Service (Cadre) Rules, 1954 is concerned, we do not think it has any application.  That 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 which would be impermissible to  the  State Government.  But the State Government can, by virtue of  the relaxation  granted  by the second proviso,  make  temporary addition to the cadre provided the post added carries duties or resposibilities of a like, nature to a cadre post.   This would mean, as pointed out by 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               Government  concerned,  in  respect  of  posts               under  its control, or the Central  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.               (2)The  pay of a member of the  Service  on               appointment  to  a  post  other  than  a  post               specified in Schedule III shall be the same as               he would: have- been entitled to, had he  been               appointed  in the post to which the  said-post               is declared equivalent.               (3)       xxx           xxx          xxx               (4)Notwithstanding  anything  contained  in               this  rule, the State Government concerned  in               respect of any posts.

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             381               under  its control, or the Central  Government               in respect of any posts under its control, may               for  sufficient  reasons  to  be  recorded  in               writing,  where  equation  is  not   possible,               appoint any  member of the, Service  to  any               such  post without making a  declaration  that               the  said  post is equivalent  in  status  and               responsibility to a post 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 and  responsibility  to  that occupied by him.  So far as cadre post are concerned,  their hierarchy  would be known, but a non-cadre post  created  by the Government would be stranger in the hierarchy, and  that is  why sub-r. (1) requires that before appointing a  member of the Indian Administrative Service to 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 obeyed. The  Government  must  apply  its mind  to  the  nature  and responsibilities of the functions and duties attached to the non-cadre post and determine the equivalence.  There the pay attached to the non-cadre post is not material.  As  pointed out by the Government of India in a decision given by it in’ MHA  letter No. 32/52/56-AIS(II) dated 10th July.  1956  the basic criterion for the determination of equivalence is "the nature and responsibities of duties attached to the post and not the pay attached to the post".  Once the declaration of

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382 equivalence  is made on a proper application of mind to  the nature  and  responsibilities of the  functions  and  duties attached to the non-cadre post, sub-r. (2) says that the pay of the member of the Indian Administrative Service appointed to  such.non-cadre post shall be the same as he  would  have been entitled to, had he been appointed in the cadre post to which  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  responsi- bility  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 field of administration and examine the  correctness of the declaration of equivalence made  by the Government.  But where it appears to the court that  the declaration  of equivalence is made without  application  of mind to the nature and responsibilities of the functions and duties,  attached  to the non-cadre 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 its mind  and make  an objective assessment IL, basis of relevant  factors for determining whether the non-cadre post to which a member of  the  Indian  Administrative  Service  is  sought  to  be appointed  can  be equated to a cadre post, and if  so  what cad   dre.  post it can be so equated. This  is-  the  plain requirement  of r. 9 sub-r. (1) and the question is  whether the appointment of the petitioner to the non-cadre posts of 383 Deputy  Chairman, State Planning Commission and  Officer  on Special Duty was in compliance with this requirement.

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Turning first to the appointment of the petitioner as Deputy Chairman,  State  Planning Commission, it was  made  by  the order  dated 7th April, 1971.  The Government by this  order sanctioned  the  creation  of a  temporary  post  of  Deputy Chairman  "in. the grade of Chief Secretary"  and  appointed the  petitioner  to  this post, stating. that  he  would  be entitled  to the same rank and emoluments as admissible,  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  pro- ceeded on the hypothesis that it can create a non-cadre post in   the  rank  or  grade  of  any  cadre  post  it   likes, irrespective  of  the  nature and  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  particular  non-cadre  post, whatever  be  the  nature  and  respon-  sibilities  of  the functions and duties attached to it, shall be in the rank or grade of any cadre post it likes.  The State Government  has to  apply its mind and make an objective assessment  of  the nature and responsibilities of the functions and duties  and determine  which is the cadre post to which  such  non-cadre post   &an   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, 1972 and sanctioned the creation of a fresh  post  of  Deputy Chairman I "in the  grade  of  First Member,  Board  of, Revenue" on a pay, of  Rs.  3,000/-  per month and appointed.Raja Ram, First 384 Member,  Board of Revenue to that post.  Now it was not  the case  of  the  respondents  that when  the  post  of  Deputy Chairman  was sancagain by this order, there was any  change in  the  nature and ,responsibilities of the  functions  and duties  attached  to  the post of  Deputy  Chairman.   These remained  the same, namely, what they were when the post  of Deputy  Chatirman was first created under the  order  (fated

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7th  April,  1971 and then again under the order  dated  6th June,  1972.  If that be so, how could the post’  of  Deputy Chairman  be  declared  to  be  equivalent  in  status   and responsibility  to the post of Chief Secretary at  one  time and  to  the  post  of First Member,  Board  of  Revenue  at another.   The nature and responsibilities 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 decide which officer should occupy it. It may be pointed out that, even if the order dated 7th April, 1971 be construed  most liberally in favour of the State  Government which,  in our opinion, should not be done when there  is  a contest  between a public servant and the State  Government. it did not contain 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 385 it was decided to appoint the petitioner to that post,  the, order dated 26th June, 1972 was modified by the order  dated 27th June, 1972 and the post of Officer on Special Duty  was created  "in  the  grade of Chief  Secretary".   These  two orders  dated 26th June, 1972 and 27th June, 1972  being  of the  nature and in almost identical words as the order dated 7th  April,_ 1471, what we have said above in regard to  the order  dated 7th April, 1971 must apply equally in  relation to  these  two orders dated 26th June, 1972 and  27th  June, 1972.   It is clear, for reasons we have  already  discussed while dealing with the order dated 7th April, 1971, that  in making these two orders dated 26th June, 1972 and 27th  June

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1972, the State Government proceeded on the wrong assumption that it can create a non-cadre post in the rank or grade, of any  cadre  post  it likes, regardless  of  the  nature  and responsibilities  of  the functions and duties  attached  to such non-cadre post.  The State Government first created the post of Officer on Special Duty in the rank of Member, Board of Revenue and on the very next day, because it was. decided that  the  petitioner  should be  appointed  to  that  post, converted it into one in the grade of Chief Secretary.  This shows  clearly that the State Government did not  apply  its mind  and determine on an objective appraisal of the  nature and responsibilities of the functions and duties attached to the  post,  of  Officer  on  Special  Duty  whether  it  was equivalent  in  status  and responsibility to  the  post  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 not be equivalent to one post at one time and to another post at another time, when  the nature and responsibilities of’ the functions  and duties  attached to it remained the same.  This  establishes beyond  doubt  that, in making the orders dated  26th  June, 1972 and 27th June, 1972, the State Government did not apply its  mind and objectively determine the 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 peti- 386 tioner   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 under Art. 32  give  relief  to the petitioner by  striking down  his appointment to the post of Officer on Special Duty, as  mere violation of r. 9, sub-r. (1) does not involve  infringement of any fundamental right.  We, however, hope that the  State Government will not drive the petitioner to take appropriate proceedings for obtaining the necessary relief. The  last two grounds of challenge may be taken up  together for  consideration.   Though we have  formulated  the  third ground  of challlenge as a distinct and separate ground,  it is  really in substance and effect merely an aspect of  the second  ground  based on violation of 14 and  16.   Art.  16 embodies  the fundamental guarantee that Arts. 14 as  there shall be equality of opportunity for all citizens in matters

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relating  to employment or appointment to any  office  under the  State.   Though enacted as a distinct  and  independent fundamental  right  because  of its 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 sworn enemies; one belongs to the rule of  law  in  a republic while the other,  to  the  whim  and caprice of an absolute monarch.  Where an act is  arbitrary it  is implicit in it that it is unequal both  according  to political  logic  and constitutional law  and  is  therefore violative of Art. 14, and if it affects 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 16 387 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 or  unfairly treated or subjected to mala fide exercise  of. power by the State machine.  It is, therefore, no answer  to the  charge of infringement of Arts ’ 14 and 16 to say  that the  petitioner had no right to the post of Chief  Secretary but  was merely officiating in that post.  That  might  have some  relevance to Art. 311 but not to Arts. 14 and’16.   We must, therefore, proceed to consider whether the transfer of the petitioner first to the post of Deputy Chairman and then to  the  post  of Officer on  Special  Duty  was  arbitrary, hostile  and is mala fide exercise of power.  What  was  the operative  reason for such transfer;. was it the  exigencies of    public   administration   or   extra    administrative considerations  having  no  relevance  to  the  question  of transfer  ? Was the transfer to the post of Deputy  Chairman

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or  Officer on Special Duty so irrational or unjust that  It could  not have been made by any  reasonable  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,.  however,  be pointed  out  that  such  an action  would  not,  we  think, ordinarily be taken except for the most compelling  reasons, because,  if  resorted to without proper  justification,  it would tend to affect the political neutrality of the  public service atid lead to demoralisation and frustration  amongst 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 388 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 the transfer  is  made  on account of the exigencies of administration and is not  from a higher post to a lower post with discriminatory preference ,of a, junior for the higher post, it would be valid and not open to attack under Arts. 14 and 16. Now,  here  the  post of Chief Secretary  was  admittedly  a selection  post and after careful examination of the  merits of  the senior most eleven officers of the Tamil Nadu  Cadre of the Indian Administrative ’Service, the second respondent selected  the  petitioner for the post of  Chief  Secretary. The petitioner worked as Chief Secretary from 14th November, 1969 up to 6th April, 1971 and. evidently during this period he  acquitted  himself creditably.  It was not the  case  of either ’of the respondents that the petitioner was not found equal  to the task ,or that his work was  not  satisfactory.

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In fact the affidavit in reply filed on behalf of the  first respondent 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 Secretary is always a unique  and  unrivalled post  in  the  State administration.  The  transfer  of  the petitioner  from  the post of Chief Secretary first  to  the post  of Deputy Chairman and then to the post of Officer  on Special Duty coupled with the promotion and confirmation ,of Sabanayagam  in the post of Chief Secretary was,  therefore, clearly  arbitrary and violative of Arts. 14 and  16.   This contention,  plausible though  it  may  seem,  cannot   be accepted by us, because there is no adequate material placed before  us  to  Sustain  it.   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 389 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 the post of  Chief  Secretary. The fact that sales tax accounts for a very large segment of the revenues of the State and it runs into about 120  crores of  rupees does not necessarily make the post of Officer  on Special  Duty equal in status and responsibility to that  of the Chief Secretary.  What has to be seen for equivalence is the status and the nature  and responsibility of the duties, attached to the two posts.  Merely giving the salary of  one post  to the other does not make for equivalence.   We  are, therefore,  not prepared to accept the thesis that the  post of Officer on Special duty was equal in status and responsi- bility  to  the post of Chief.Secretary as  claimed  by  the respondents.   We  entertain serious doubts about  it.   But equally it is not possible for us to hold it established  on the material on record that this post was inferior in status and  responsibility to the post of Chief  Secretary,  though

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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,  that  the second  respondent  was annoyed with him and it was  with  a view  to  putting him out of the way and at  the  same  time deflating  him ’that the second respondent  transferred  him from the post of Chief Secretary.  The transfer of the peti- tioner  was, therefore, in mala fide exercise of  power  and accordingly invalid. Now,  when we examine this contention we must bear  in  mind two  important considerations.  In 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 390 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.   That would  be nothing short of drawing a red herring across  the trail.   The only question before us is whether  the  action taken  by  the respondents includes any  component  of  mala fides  whether  hostility  and  malus  enimus  against   the petitioner were the operational cause of the transfer of the petitioner from the post of Chief Secretary. Secondly,  we  must  not also overlook that  the  burden  of establishing  mala  fides in very heavy on  the  person  who alleges  it.  the allegations of mala fides are  often  more easily  made than proved, and the very seriousness  of  such allegations  demands proof of a high order  of  credibility. Here  the  petitioner,  who  was  himself  once  the   Chief Secretary, has flung a series of charges of oblique  conduct against  the  Chief Minister.  That is in  itself  a  rather extra-ordinary  and unusual occurrence and if these  charges are  true,  they are bound to shake the  confidence  of  the

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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 stand  point  that  we  must  assess  that  merits  of   the allegations of mala fides made by the petitioner against the second respondent. Now extensive arguments were addressed before us by  counsel on both sides and we were taken through a mass of documents, papers and official nothings on this part of 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 391 judgment  of the learned Chief Justice and we do- not  think it  will  serve  any useful purpose for us  to  discuss  the merits of those 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, informed the second  respondent  that without a discreet inquiry it would not be possible to allay or confirm the apprehensions with any degree of  credibility since  the head of the concerned engineering department  was personally  involved in the execution of the scheme  and  he accordingly  by  that letter pointed out to  the  petitioner that  he needed authorisation to embark on the  inquiry  and Government  order  in  that  be,half  should  therefore   be obtained  and communicated to him.  The petitioner  made  an endorsement  on  this  letter on the very next  day  with  a remark  that  the  Public  (Secret/Confidential)  Department should    deal    with   it   immediately.     The    Public (Secret/Confidential) Department prepared a note at the foot of  the  letter  and submitted it  for  circulation  to  the Minister  for  Works and the second  respondent  for  orders whether  the  Director of Vigilance should be  requested  to make    a  discreet  inquiry  and  send  his  report.    The

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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 within our province to investigate  it.   But the  fact  remains,  and that cannot be  disputed,  that  no inquiry  thereafter  took place in the affairs of  the  Coom Improvement Scheme.  It is a little interesting to note that Sabanayagam addressed a letter dated 31st July, 1971 to the petitioner stating that 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, 13-L522 SCI/74 392 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 evidence generating  judicial certitude  in  up-holding the plea of mala  fides  has  been placed  before us in the present case.  We must,  therefore, reject this contention of the petitioner as well. We  accordingly  dismiss the petition with no  order  as  to costs.  K.B.N.   Petition dismissed. 39 3