Civil Appeal No 4090 of 1991
From the Order dated 721991 of the Central Administrative Tribunal Bangalore in Original Application No 11 of 1991
KK Venugopal BRL Iyengar EC Vidyasagar DN Nanjunda Reddy LR Singh and Shahid Rizvi for the Appellant
G Ramaswamy Attorney General PP Muthanna for the State of Karnataka Subramanian M Verrappa Kh
Nobin Singh and section Walia for the Respondents
The Judgment of the Court was delivered by GN RAY J
This appeal is directed against the decision of the Central Administrative Tribunal Bangalore dated February 7 1991 passed in Original Application No 11 of 1991
The appellant Shri M Sankaranarayanan made an application before the Central Administrative Tribunal Bangalore for quashing the order dated January 4 1991 transferring and posting him as Secretary High Power Committee for development of Hyderabad Karnataka area Bangalore hereinafter referred to as High Power Committee as contained in Annexure A 4 to the application made before the Central Administrative Tribunal and for a direction to allow the applicant Shri Sankaranarayanan to continue as the Chief Secretary Government of Karnataka
The aforesaid order of transferring and posting the appellant as Secretary High Power Committee was challenged mainly on two grounds namely that such order was not passed bona fide for the exigencies of the administration but the same was passed mala fide by the Chief Minister of Karnataka who became displeased with the appellant on account of his unfavourable attitude and resistance to some of the proposals of the Chief Minister in the matter of posting of senior officers of the State to different key posts
It was also contended that his transfer order is vitiated because of the non compliance of the procedural formalities for a valid transfer of the appellant to the said post of Secretary High Power Committee inasmuch as there was no declaration under Rule 9 1 of IAS Pay Rules 1954 that the post of Secretary High Power Committee was equivalent to the post of Chief Secretary and in the absence of such declaration the transfer of the appellant from the post of Chief Secretary to the Secretary High Power Committee was illegal and void
To appreciate the relevant contentions made by the appellant and the respondents before the Central Administrative Tribunal and also before this Court at the hearing of the appeal the backdrop of the events resulting in the impugned order of transfer and posting of the appellant and consequential challenge of such order by the appellant requires to be indicated in short
The appellant Shri Sankaranarayanan was appointed to the Indian Administrative Service Karnataka Cadre in 1957 and on May 51990 he was holding the post of Additional Chief Secretary to the Government of Karnataka
By Notification dated May 5 1990 he was appointed as Chief Secretary to the Karnataka Government until further orders
In the State of Karnataka there was originally one post of Chief Secretary to the Government
By an Order dated October 17 1980 and ex cadre post of Additional Chief Secretary was created with a declaration under Rule 91 of IAS Pay Rules that the status and responsibilities of the said post were equivalent to the cadre post of Chief Secretary
The post of Additional Chief Secretary was thereafter en cadred by Notification dated January A 1987 with the same pay as of the post of Chief Secretary
The post of Secretary High Power Committee was created by the State Government of Karnataka in 1989 with the designation Chairman Hyderabad Karnataka Development Board by order dated September 27 1989
The said post was declared equivalent to the status and responsibilities to the cadre post of Additional Chief Secretary under Rule 9 of IAS Pay Rules
The posts of Chief Secretary Secretary High Power Committee and Additional Chief Secretary carry equal pay
On January 3 1991 the Cabinet Government of Karnataka took a decision to the effect that a change of the Chief Secretary should be effected
Pursuant to such cabinet decision the Chief Minister on January 4 1991 had taken the following three decisions and passed consequential orders namely i declaring that the post of Secretary High Power Committee was equivalent in status and responsibilities to the post of Chief Secretary of the Government ii transferring the appellant Shri Sankaranarayanan to the post of Secretary High Power Committee with immediate effect and iii appointing the 4th respondent Shri NK Prabhakar Rao who was holding the post of Chief Secretary to the Government
It may be noted in this connection that Shri Prabhakar Rao is senior to Shri Sankaranarayanan as a member of the Indian Administrative Service
The Notification giving effect to the above orders of transfer was issued on January 4 1991 but the authenticated Government order declaring the equivalent of two posts under Rule 9 of IAS Pay Rules was issued on the next day namely January 5 1991
The appellant Shri Sankaranarayanan contended in his application before the Central Administrative Tribunal that the appellant was in the office of Chief Secretary when Shri Veerendra Patil was the Chief Minister of Karnataka
There was an intensive anti corruption drive against the senior bureaucrats including the 4th respondent through the instrumentality of Lok Ayukta
One such Officer was Shri J Alexender IAS who was suspended while he was holding the post of the Chairman and Managing Director of the Mangalore Chemicals and Fertilisers Ltd but when Shri Alexender obtained a stay order from the Central Administrative Tribunal the appellant in the best interest of administration suggested that Shri Alexender should not be given the post of Secretary of the Department of Industry and Commerce but he should be given a posting in a Less sensitive post hut such suggestion of the appellant was not accepted by the third respondent namely the present Chief Minister of Government of Karnataka Shri section Bangarappa
Similarly when a proposal to replace Shri Sangameswar IAS from the post of Managing Director of the Mysore Sales International Ltd and post one Shri Madhu in Place of Shri Sangameswar came up for consideration the appellant pointed out to the Chief Minister about the propriety in making such a change particularly when Shri Sangameswar was keen in defending the cases filed against the Government in the Supreme Court and his other actions were also appreciated by his superiors and Shri Madhu had indicated his reluctance to accept the post in his letter to the Government in view of the fact some of his relatives happened to be excise contractors
But the third respondent did not like his suggestion and directed the posting of Shri Madhu as Managing Director Mysore Sales International Ltd The third respondent also did not like to pass orders on the files containing the irregularities committed by the fourth respondent while holding high offices in the State during the period between 1983 and 1989
These files contained 41st report of the Public Undertaking Committee recommending enquiry into tile imprudent decisions taken by the 4th respondent as Chairman and Managing Director of the New Government Electric Factory Bangalore
Accordingly at the instance of the then Minister of Industries and Commerce an enquiry had been undertaken through Lok Ayukta
The Report submitted after the enquiry indicated prima facie case against the 4th respondent warranting further departmental actions
The former Chief Minister made enquiries about these matters and the appellant also furnished further necessary information to the then Chief Minister who referred the matter to the Personnel Department of Administrative Reforms
The Secretary Department of Personnel and Administrative Reforms suggested for initiation of departmental action against the fourth respondent
The fourth respondent made a suggestion to the Government seeking permission for voluntary retirement
But after the Ministry headed by the then Chief Minister Shri Veerendra Patil was dismissed and the President s rule was imposed in the State the fourth respondent withdrew his letter seeking voluntary retirement
The appellant put up all the files before the third respondent for appropriate orders in view of the fact that the previous Chief Minister did not take any final decision regarding the proposal to initiate disciplinary action against the fourth respondent
But the third respondent keep the files without passing any orders
It was contended by the appellant that since the appellant was not prepared to lies and to compromise with the desires of the Chief Minister the Chief Minister namely the respondent No 3 became displeased with him and opposed some of his suggestions relating to the posting of senior bureaucratic officers
The appellant has contended that he was sought to be transferred with undue haste from the post of Chief Secretary to the post of Secretary High Power Committee although such post was inferior to the post of Chief Secretary and no declaration under Rule 9 1 of IAS Pay Rules for the equivalence of the said post had been made
The respondents namely the State of Karnataka and the Chief Minister of Karnataka and also the said respondent No 4 denied the allegations relating to the malice of facts and contended that the allegations relating to the malice of facts were mischievous malicious scandalous and vexatious and such allegations were deliberately made to malign the respondents
The respondents also contended that the post of Secretary High Power Committee was equivalent to the post of Additional Chief Secretary and such declaration had been made long back and the post of Additional Chief Secretary and the post of Chief Secretary were also equivalent and inter changeable
In any event before giving effect to the order of transfer of the appellant further declaration was made by the Chief Minister that the post of Secretary High Power Committee was equivalent to the post of Chief Secretary so that in any event the appellant had no occasion to feel stifled
Accordingly there was no occasion to contend that the declaration required as under Rule 9 1 of IAS Pay Rules had not been made and the order of transfer was accordingly vitiated for non compliance with the statutory rules
The Central Administrative Tribunal after considering the facts and circumstances of the case and hearing the submissions made on behalf of the respective parties inter alia came to the finding that the freedom to choose a person as the Chief Secretary to the liking of the Chief Minister and the Cabinet on whom there is absolute confidence is undisputed prerogative and such decision becomes unassailable when it is made in bona fide manner following the statutory formalities applicable to such selection and appointment
Referring to the decision of this Court made in the case of EP Royappa vs State of Tamil Nadu  and referring to various observations made in the said decision at length the Central Administrative Tribunal came to the finding that the appellant had no subsisting right to remain as Chief Secretary and it was the prerogative of the Chief Minister and the Cabinet to take a decision to appoint a person to the post of Chief A Secretary in place of the appellant to whom the Cabinet and the Chief Minister had confidence
It was held by the Central Administrative Tribunal that the appellant had failed to establish that he had been transferred with the ulterior motive of placing the appellant in a lower post and thereby permanently preventing him from continuing in the position and status of Chief Secretary
The Administrative Tribunal inter alia held that it is an admitted position that there was a difference of opinion between the appellant and the Chief Minister and such difference had been developing ever since the new Chief Minister had assumed Office
The Tribunal had also noted that the appellant was also not promoted and posted as Chief Secretary permanently but he was appointed to the post of Chief Secretary until further orders and he continued in that capacity only for eight months without being regularised or confirmed in that post
The Central Administrative Tribunal also held that there had been only casual collateral challenge by the appellant against the appointment of fourth respondent as the Chief Secretary raising some allegations which could at best be grouped in the category of vague and indefinite allegations
The Central Administrative Tribunal held inter alia that the applicant had not laid down any firm foundation to hold that the appointment of the 4th respondent as Chief Secretary was bad and unsustainable
It has been held by the Central Administrative Tribunal that the fourth respondent had already assumed the office of the Chief Secretary and except in making some vague allegations his appointment as Chief Secretary was not challenged on the score of violation of rules governing the matter
As such the Central Administrative Tribunal held that there was no occasion to go into the legality of the posting of fourth respondent as the Chief Secretary of the State
So far as the other contention made by the appellant namely that the transfer order is vitiated in view of the fact that the appellant was sought to be reverted to a lower post in violation of the procedure in Rule 9 l of IAS Pay Rules and Rule 4 of IAS Cadre Rules in concerned it has been contended by the appellant that a Notification issued on January 5 1991 declaring the post of Secretary High Power Committee as equivalent to the post of Chief Secretary was of no consequence and could not cure the initial defect inasmuch as prior to such Notification issued on January 5 1991 declaring equivalence of the said posts the impugned order of transfer was sought to be effected and the respondent No 4 was allowed to join the post of Chief Secretary pursuant to the order of transfer of the appellant
The Central Administrative Tribunal referred to four documents being Annexures 7 8 9  10 to the application made by the appellant and also the affidavits filed by the parties and accepted the contention of the respondents that the post of the Secretary was declared equivalent to the post of Additional Chief Secretary and the post of Additional Chief Secretary was also declared equivalent to the post of Chief Secretary and such declarations had been made ever since 1980 and the appellant was fully aware of the said position
The Central Administrative Tribunal also accepted the contention of the respondents that in order to avoid any embarrassment and complication the State Government had also made a declaration on January 4 1991 prior to the transfer of the appellant that the post of the Secretary High Power Committee was equivalent to the post of Chief Secretary but the formal authenticated order declaring the said equivalence was issued next day ie January 5 1991
There was no delay in issuing the declaration and even assuming that there was a delay of one day in making the formal declaration of equivalence such delay had not nullified and invalidated the decision of the Government
Referring to the various decisions of this Court including the decision made in the case of Babulal vs Ms Hazari Lal Kishori Lal and others 19821 2 SCC p525 the Central Administrative Tribunal indicated that a deviation from the strict procedure prescribed by law would not vitiate an action taken by the Government or public authority in the interest of public unless it could be shown that such an act had resulted in gross injustice to the affected party
The Central Administrative Tribunal held that the appellant could not establish that impugned order had caused any serious injury to him
The Central Administrative Tribunal further held that the appellant had submitted that because of the delay in issuing the declaration strictly in accordance with the Rule 91 of IAS Pay Rules the appellant was in dark as to the nature and duties of the post of Secretary High Power Committee to which he had been transferred under the impugned order
The Central Administrative Tribunal held that the form and procedure in Rule 91 of IAS Pay Rules do not make it obligatory to approach the issue in a judicial or quasi judicial manner and the violation if any of Rule 91 was only a mere technicality and it did not cause any legal injury or injustice to the appellant
Such violation even if any was not so serious that it required a judicial scrutiny by the Central Administrative Tribunal in the facts and circumstances of the case
The Central Administrative Tribunal also held that after going through the files leading to the declaration under Rule 91 since placed before the Tribunal the Tribunal was satisfied that the Government had considered the question in detail and sufficiently in advance and had taken a decision to issue the declaration of equivalence on January 4 1991 and it was a valid decision satisfying the requirement of Rule 9 1 of IAS Pay Rules 1954
Referring to the allegations of mala fides the Central Administrative Tribunal came to the finding that the facts were narrated in paragraphs 1 to w of paragraph 6 of the application of the appellant
The Tribunal categorically came to the finding that there was no firm foundation to find on facts that the impugned order was vitiated by any mala fide
In that view of the matter the Central Administrative Tribunal dismissed the application made by the appellant
As aforesaid the said decision is under challenge in this appeal
Mr Venugopal the learned counsel for the appellant has strenuously contended that declaration of equivalence under Rule 9 1 of IAS Pay Rules 1954 is an essential statutory requirement and without such declaration of equivalence no member in the cadre of IAS can be transferred to a non cadre post
He has contended that the declaration of equivalence of the posts of Chief Secretary and Additional Chief Secretary made in 1980 has been highlighted beyond proportion before the Central Administrative Tribunal by the respondents and the Administrative Tribunal was also influenced because of such declaration of equivalence made in 1980
But such declaration of equivalence is of no consequence and the legal requirement of declaration of equivalence was still there and noncompliance with the requirement of declaration of equivalence has rendered the impugned order of transfer illegal and void
Mr Venugopal has contended that previously there was only one post of Chief Secretary in the administrative hierarchy in the State of Karnataka
It was felt necessary that a post of Additional Chief Secretary should be created and the recommendation to that effect was made when the post of Additional Chief Secretary was not encadred
A declaration of equivalence was also made by the State Government so that a cadre officer belonging to the Indian Administrative Service may be transferred to the non cadred post of Additional Chief Secretary but later on the post of Additional Chief Secretary was encadred on the basis of triennial review
After such encadrement of the post of Additional Chief Secretary the declaration of equivalence which was made earlier lost its force
Mr Venugopal has submitted that the question of equivalence comes in when one post is outside the cadre post of Indian Administrative Service
Mr Venugopal has contended that equivalence is referable only to an ex cadre post and ex hypothesi dedaration of equivalence cannot come inter se posts within the cadre
Accordingly all the previous exercises made in declaration of equivalence when the post of Additional Chief Secretary was not a cadre post are of little consequence
Mr Venugopal has also contended that the posts of Additional Chief Secretary and Chief Secretary are not equivalent in reality
The post of Chief Secretary is the highest post in the administrative set up in the State
Mr Venugopal has referred to the Office Memorandum dated September 2 1988 at page No 127 of Volume Il A of the Paper Book of this appeal for the purpose of showing that the post of Chief Secretary is superior post because Additional Chief Secretary is to report to the Chief Secretary
He also made reference to the Karnataka Government Transfer of Business Rules 1977 and contended that reference to various provisions of the Rules would indicate that the post of Chief Secretary is the highest post and the reports of different Secretaries including Additional Chief Secretary are required to be routed through Chief Secretary but no Report of the Chief Secretary is ever required to be routed through Additional Chief Secretary or any other Officer
He has submitted that a mere dedaration that the post of Additional Chief Secretary is equivalent to the post of Chief Secretary will not make both the said posts equivalent
Mr Venugopal has also contended that as a matter of fact the respondents felt difficulty in transferring the appellant lo the post of Secretary High Power Committee because the said post was declared equivalent to the post of Additional Chief Secretary and not to the post of Chief Secretary
Precisely for the said reason after the impugned order of transfer an attempt was made to publish a declaration on January 5 1991 to the effect that the post of Chief Secretary is equivalent to the post of Secretary High Power Committee
Mr Venugopal has contended that the post of Secretary High Power Committee cannot be equivalent to the post of Chief Secretary of the State which is highest post and in any event the post facto declaration of equivalence on January 5 1991 cannot cure the initial defect of not declaring equivalence of the post in question prior to the order of transfer made on January 4 1991
Mr Venugopal has submitted that the appellant may not have an absolute right to remain in the post of Chief Secretary and for good administrative reasons the Cabinet and the Chief Minister may have a prerogative to select a person of their confidence to the post of Chief Secretary but the appellant having been appointed as Chief Secretary can only be removed from the said post for good administrative reasons but not for any oblique purpose
The appellant could have been transferred from the post of Chief Secretary to a suitable post which was equivalent to the post of Chief Secretary only in accordance with law and a declaration of equivalence under Rule 9 1 of IAS Pay Rules was an essential sine qua non for transferring an incumbent holding the post of chief Secretary to any other ex cadre post
Mr Venugopal has contended that declaration of equivalence of a cadre post with a non cadre post is a statutory requirement under Rule 91 of IAS Pay Rules
Such statutory requirement must be strictly complied with
So long the declaration of equivalence made by the competent authority is not published in accordance with the procedure under Rule 91 no equivalence takes place and in the absence of equivalence no cadre officer can be posted to a non cadre post
Admittedly the impugned order of transfer of the appellant was made on January 4 1991 and the respondent No 4 purported to assume the office of the Chief Secretary on January 4 1991
But the declaration of equivalence was made on 511991 ie after the impugned order of transfer
Hence the impugned order of transfer of the appellant is illegal on the face of it and subsequent declaration of equivalence cannot cure the invalidity of the order of transfer
On this score alone the impugned order is liable to be quashed
Mr Venugopal has further contended that the Central Administrative Tribunal failed to appreciate that in reality the posts of Chief Secretary and Additional Chief Secretary were not inter changeable and declaration of equivalence made earlier had lost its force after the encadrement of the post of Additional Chief Secretary
Mr Venugopal has also submitted that it is not always possible and practicable to precisely establish mala fide in fact but the Court should draw reasonable inference from the pleadings whether there was any foundation of mala fide action
Mr Venugopal has contended that the appellant has given instances how he gradually incurred displeasure of the present Chief Minister when his suggestions for posting senior bureaucratic officers of the State G in key and sensitive positions contrary to the desire of the Chief Minister were not liked by the Chief Minister
Mr Venugopal has contended that the respondent No 4 was found prima facie guilty of various administrative lapses of serious nature over the years
During the regime of the previous Chief Minister of the State Shri Veerendra Patil enquiries had been conducted at a high level and recommendations were made for initiating departmental proceedings
Unfortunately before any formal order could be passed by the then Chief Minister Shri Veerendra Patil the Ministry was dissolved and the President s rule was imposed
Thereafter the present Chief Minister came to head the Cabinet of the State
The appellant as a Chief Secretary of the State was duty bound to place all the relevant files for appropriate directions of the Chief Minister so far as the respondent No 4 is concerned
When the appellant placed all the relevant files it was only reasonably expected that the present Chief Minister would pass formal orders for initiating departmental proceedings against the respondent No 4 but for inexplicable reasons the present Chief Minister held back the files without passing any order
Even in the matter of posting of Shri Alexander Sri Sangmeswar and Sri Madhu the appellant indicated cogent reasons relating to the posting desired by the Chief Minister and normally reasonings indicated by the appellant were not expected to be over ruled by the Chief Minister in the interest of purity in administration
But unfortunately such suggestions had been overruled by the Chief Minister
Mr Venugopal has contended that in the backdrop of the events disclosed in various subparagraphs namely paragraphs 61 to 6q of the petition made before the Tribunal it should have come to the finding that a case of malice in fact had been established prima facie and the respondents were under an obligation to dispel the reasonable inferences to be drawn by the Tribunal about the existence of malice in facts
Unfortunately the Tribunal has not considered the question in the proper perspective
Mr Venugopal has submitted that since the posting of respondent No 4 as Chief Secretary was not directly challenged by the appellant and infraction of any statutory provisions could not be established by the appellant so far as the posting of respondent No 4 is concerned the Tribunal has proceeded on the footing that such posting therefore is not required to be interfered with and consequently the challenge to the transfer and posting of the appellant cannot also be sustained
Mr Venugopal has contended that such approach to say the least is unsatisfactory and requires a re thinking
Mr Venugopal has contended that when the former Chief Secretary went on leave prior to his retirement the appellant s case was considered and in view of his excellent track record over the past 33 years as a member of the Indian Administrative Service in the Karnataka cadre the appellant was found to be most suitable candidate to hold the post of Chief Secretary and he was made the Chief Secretary
Simply because the appellant was appointed as the Chief Secretary until further orders such appointment and posting do not necessarily mean that he was holding the said post only as a stop gap measure
Mr Venugopal has contended that it is nobody s case that the Government of Karnataka did not intend to appoint and post the appellant as Chief Secretary of the State and such posting was made only by way of a stop gap measure until suitable person could be selected and later on the respondent No 4 was posted as Chief Secretary on appropriate consideration of the cases of all the eligible officers of the State
Mr Venugopal has contended that the order of transfer of the appellant and also the order of posting of respondent No 4 had taken place simultaneously in undue haste even without making declaration of equivalence
It only indicates that there had not been any bona fide and proper exercise to find out the most suitable person for the post of Chief Secretary in the normal way
He has submitted that although no specific pleading was made by the appellant before the Tribunal that in order to find a berth for the respondent No 4 the appellant was moved out against the interest of the administration and the respondent No 4 was appointed as Chief Secretary of the State there is sufficient material to indicate that the Chief Minister was bent upon to move out the appellant from the post of Chief Secretary who had always resisted improper suggestions of the Chief Minister in the better interest of the administration and to give effect to such improper decision not on the score of administrative exigencies or for public interest the impugned order of transfer was made
On the face of the adverse materials on record and the recommendations made by the appropriate Committee to initiate disciplinary proceedings against the respondent No 4 there could not have been any administrative exigency to place the respondent No 4 incharge of the highest Administrative office in the State
Mr Venugopal has submitted that mala fide in fact needs to be considered from the totality of the facts and circumstances by drawing reasonable inferences
There cannot be a straight jacket formula to which every case of malice of fact can fit in
Mr Attorney General appearing with the Advocate General of the State of Karnataka for the respondents Nos 1 and 3 namely the State of Karnataka and the Chief Minister of Karnataka has submitted that the post of Chairman Karnataka Hyderabad Development Board was created on September 1 1989 and the respondent No 4 who was holding a very high and responsible office at the relevant time
The respondent No 4 is a very senior member of the Indian Administrative Service in the Karnataka cadre and admittedly senior to the appellant as a member of the Indian Administrative Service
The said respondent No 4 was appointed to the post of Chairman Karnataka Hyderabad Development Board
The said post was declared as equivalent to the post of Additional Chief Secretary on September 271989 when the said post was created
Later on on October 11 1989 the said post of Chairman was re designated as Secretary High Power Committee and ex officio Additional Chief Secretary to the Government of Karnataka
Mr Attorney General has contended that simply because adverse comments were made on the functioning of the respondent No 4 when he was holding the post of Chairman of some other organisation or the Secretary High Power Committee there was no compelling necessity of by passing a very senior officer in the Indian Administrative Service cadre in the State
Since the Cabinet and the Chief Minister had taken a decision to relieve the appellant from the post of Chief Secretary there had been a necessity to find out a competent senior officer in the Indian Administrative Service Cadre in the State
As no departmental proceedings had been pending against him the Cabinet and the Chief Minister had taken a decision that Mr Rao respondent No 4 being the senior most person in the Indian Administrative Service cadre in the State having a long experience in different administrative set up and conversant with the problems of the State should be posted as Chief Secretary
Such decision is not ex facie perverse and unjustified
He has contended that even if it is assumed that instead of respondent No 4 some other officer would have been selected for the post of Chief Secretary such selection being a prerogative of the Cabinet and the Chief Minister the appellant cannot question the correctness and propriety of the same
The Central Administrative Tribunal is justified in its finding that there has not been any direct challenge to the appointment of the respondent No 4 to the post of Chief Secretary and the appellant could not establish that any statutory rule has been violated in giving appointment to the respondent No4 to the post of Chief Secretary
Mr Attorney General has also contended that the law is well settled after the decision of this Court in EP Royappa supra that it is the prerogative of the State Cabinet and the Chief Minister to select a person of their confidence to man the key post G of Chief Secretary in the State
The only exercise which is required to be made by Court of law or a Tribunal is to find out whether in removing the holder of the post of Chief Secretary any mala fide action has been taken
The Tribunal according to the learned Attorney General is justified in holding that except making some vague allegations no firm foundation has been laid by the appellant to warrant a finding that the impugned order of transfer Or the appellant is actuated by a malice in fact or malice in law
A Mr Attorney General has submitted that the Tribunal has indicated that the Chief Secretary had not been pulling on well with the Chief Minister of the State and there had been differences of opinion on a number of matters from before
If on such account the Government and the Chief Minister felt that a man of their confidence should be posted as the Chief Secretary of the State so that there was a good rapport between the Chief Secretary and the Chief Minister and the Cabinet no exception can be made and such decision being squarely within the prerogative of the Chief Minister and the Cabinet as indicated by this Court in no uncertain terms in Royappa s decision the Central Administrative Tribunal was justified in declining to interfere against the impugned orders
Mr Attorney General has contended that allegations of mala fide action on the part of the Chief Minister or the Cabinet must be substantiated by cogent materials and not by vague insinuations
In the pleadings the appellant has only indicated several instances showing how he assessed the facts in giving suggestions in the matter of posting of different top bureaucratic officers including respondent No 4 and how his suggestions had not been ultimately accepted by the Chief Minister
Such facts by no stretch of imagination establish a case of mala fide action of the State Government in transferring the appellant from the post of Chief Secretary
Mr Attorney General has contended that in order to overcome the decision of the Tribunal on the pleadings made before the Tribunals the appellant has attempted to introduce a new case in paragraph 20 of the special leave petition by setting up the appointment of respondent No 4 as both proof and result of the 4 Chief Minister s mala fides
To make it a triable issue ground k  has been taken in the special leave petition
But introduction of a new case for the first time before this Court by way of embellishment cannot be permitted
He has contended that the said new case is far from truth and is an after thought deserving outright rejection
Mr Attorney General has also contended that by virtue of holding a particular administrative position an incumbent of the post may have the privilege to have the reports of other senior bureaucratic officers routed through him under the prevalent rules of business
Such facts alone do not establish that such post is superior to other post
If there has been a declaration of equivalence under Rule 91 of IAS Pay Rules the post must be held to be equivalent irrespective of the fact that because of the rules of business one of the two equivalent posts enjoys some advantage or privilege
Mr Attorney General has contended that the declaration in 1980 was made under Rule 91 of IAS Pay Rules to the effect that the post of Additional Chief Secretary which was then an ex cadre post was equivalent to the post of Chief Secretary
Although subsequently the post of Additional Chief Secretary was encadred the declaration of equivalence has not lost its force as sought to be contended by Mr Venugopal
Mr Attorney General has contended that even assuming that after the encadrement there was no further scope of declaring equivalence the fact remains that there had been appreciation and understanding of the State Government about the importance of the two posts and factual assessment of equivalence of the two posts
He has contended that in any event such question has become academic in the instant case because pursuant to the Cabinet decision an exercise was made on January 4 1991 to declare the post of Secretary High Power Committee as equivalent to the post of Chief Secretary itself so that there may not be any occasion for the appellant to feel stifled
Such decision had taken place prior to the impugned order of transfer but the publication could not be made on the same day namely January 4 1991 but such publication of equivalence under Rule 9 1 was made on the very next day namely on January 5 1991
Mr Attorney General has contended that publication on the next day docs not invalidate the factum of declaration made on January 4 1991
Such publication being a requirement of statute has been complied with and the publication has been made in order to give effect to the decision of declaring equivalence already taken
Mr Attorney General has contended that it has been specifically stated by the Chief Minister in his affidavit in opposition that declaration of equivalence was made on January 4 1991 prior to the impugned order
Mr Attorney General has also submitted that even if it is assumed that the publication of declaration of equivalence was made on January 5 1991 but the impugned order of transfer was made on January 4 1991 and by that process there has been violation of Rule 91 of IAS Pay Rules such violation is a mere technical violation for which no interference by this Court is called for
He has submitted that Central Administrative Tribunal was justified in coming to the finding that no real injury was caused to the appellant for such technical violation even if any and as such no interference was called for by the Tribunal against the impugned order of transfer
Mr Attorney General has contended that interference under Article 136 of the Constitution is not a matter of course
Such interference is required to be made if it conforms both to equity and law
In the facts and circumstances of the case the appellant has not been able to make out any case for such interference within the discretionary remedy of this Court and the appeal should therefore be dismissed
Mr Attorney General has also submitted that the appellant is guilty of suppression of material facts
After the impugned order of transfer in view of some statements made by the appellant to the Press against Chief Minister a decision was taken to initiate disciplinary proceeding against the appellant and he was placed under suspension
Such suspension was challenged by the appellant before the Central Administrative Tribunal Bangalore in Application No 78 of 1991 and an interim order of stay of the order of suspension was passed in the said proceeding but subsequent to the filing of the instant special leave petition before this Court the interim order of stay was vacated by the Administrative Tribunal
In the aforesaid facts the factum of suspension was required to be disclosed by the appellant
Mr Attorney General has contended that for suppression of material facts this Court should refuse to interfere in this appeal and should dismiss the same
He has also contended that in view of order of suspension the appellant in any event cannot be permitted to hold or continue to hold the post of Chief Secretary
After considering the respective contentions of the learned counsels appearing for the parties it appears to us that the appellant has not been able to lay any firm foundation warranting a finding that the impugned order Of transfer was passed mala fide andor for an oblique purpose in order to punish the appellant andor to humiliate him
The pleadings of the appellant before the Central Administrative Tribunal only indicate that some of his suggestions in the matter of posting of senior bureaucratic officers of the State had not been accepted by the present Chief Minister of the State
Such facts alone do not constitute any foundation for a finding that because the appellant was not agreeable to oblige the Chief Minister by accepting all his suggestions and putting up notes to that effect he had incurred the displeasure of the Chief Minister and the impugned orders had been passed not on administrative exigencies but only to malign the appellant and to humiliate him
It may not always be possible to demonstrate malice in fact with full and G elaborate particulars and it may be permissible in an appropriate case to draw reasonable inference of mala fide from the facts pleaded and established
But such inference must be based on factual matrix and such factual matrix cannot remain in the realm of insinuation surmise or conjecture
In the instance case we are unable to find that there are sufficient materials from which a reasonable inference of malice in fact for passing the impugned order of transfer can be drawn
It is an admitted position that the Chief Secretary and the Chief Minister had differences of opinion on a number of sensitive matters
If on that score the Cabinet and the Chief Minister had taken a decision to relieve the appellant from the post of Chief Secretary and post a very senior officer of their confidence to the post of Chief Secretary it cannot be held that such decision is per se illegal or beyond the administrative authority
The position in this regard has been well explained in Royappa s case by this Court
So far as the other contention of the appellant namely invalidity of the impugned order of transfer for want of declaration of equivalence under Rule 91 of IAS Pay Rules is concerned it may be indicated that there had already been a declaration when the re designated post of Secretary High Power Committee was established that the said post was equivalent to the post of Additional Chief Secretary
It is the positive stand of the State Government that the posts of Chief Secretary and the Additional Chief Secretary are equivalent
But in the instant case it is also not necessary to decide the question in detail as to whether in reality both the said posts are not equivalent as sought to be contended by Mr Venugopal
It appears to us that prior to the impugned orders a decision to declare the post of Secretary High Power Committee equivalent to the post of Chief Secretary of the State had been taken
Since the impugned order of transfer was implemented with immediate effect the formal publication could not be made on the very same day but was made on January 5 1991 namely on the very next day
It appears from the records that the decision to declare equivalence was taken prior to the impugned order of transfer and the formal publication by way of statutory requirement was made in order to give effect to the decision to declare equivalence already taken
In such circumstances we do not think that the formal declaration made on January S 1991 invalidates the impugned order of transfer
The Tribunal is justified in holding that infraction even if any in making publication formally on January S 1991 is only a technical violation for which no interference is called for
In the result we do not find any reason to interfere with the impugned decision of the Central Administrative Tribunal and the appeal therefore fails and is dismissed but without any order as to costs


Summary:
On 1911984 the Association petitioner No 1 in WP C No 499 of 1991 requested the Union Government Respondent to remove the disparity prevailing in different states of promotional avenues from State Civil Services to All India Administrative Service
A Committee of Senior Secretaries constituted by the Union Government recommended an equitable principle of comparable seniority from different States for promotion to the Indian Administrative Service
The IAS Regulation of Seniority Rules 1987 came into force with effect from 6111987 repealing the old Rules
In a Circular dated 991986 issued by the respondent Union Government directed the State Governments to give weightage over and above four years the assignment of year of allotment as per the existing rules namely four years for the first 12 years State service with additional weightage one year for every two to the years completed service subject to a maximum of five years
Union Government amended and published the New Seniority Rules 1987 after considering the suggestions from the State Governments
The First Amendment Rules was published in the Gazette of India on 321989 which was given prospective operation from 321989
The appellants in CI No 4794 of 1992 questioned Rule 33 ii proviso of the First Amendment Rules in an application before the CAT
at Patna
They contended that though they were found to be entitled to the total weightage of 9 years since the juniors were given 1983 as the year of allotment by operation of proviso to Rule 33ii of the First Amendment Rules were given 1983 as the year of allotment and thereby the appellants were denied the 3 years weightage
The Tribunal upheld the Rules and dismissed the application against which appeal CA No 4794 of 1992 was filed in this Court
The appellants in CA No 4788 of 1992 some members of the Association petitioner No 1 of the WP C No 499 of 1991 filed an application before the Central Administrative Tribunal at Lucknow contending that they were promoted in 1980 onwards and they were discriminated in fixation of their seniority
The Tribunal held that the prospective operation of the 1987 Rules discriminated the Senior State Civil Service Officers but refused to direct the Union Government to amend the Rules but retrospective effect
However it requested the Government of India to reconsider the matter and to give retrospective operation to the First Amendment Rules
This decision was questioned hl an appeal CA No 4788 of 1992
In WPCNo of 499 of 1991 Petitioner No 1 An Association representing the officers of the UP State Civil Service and petitioners 2 17 its members filed the writ petition under Article 32 of the Constitution to quash the order of the respondent Union Government dated 12121990 and for a direction to extend the benefit flowing from the First Amendment Rules to its members promoted prior to January 1988
It was contended that the First Amendment Rules operated with effect from 1992 whereas the promotee Officers were promoted between 1988 to 1991 and that they would get only partial benefit
As these cases raised common questions of law they were heard together
Dismissing WPCNo
4991991 and CA No 4794 of 1992 and allowing CA No 4788 of 1992 this Court HELD 101
The entry into the service is from different streams and predominantly by direct recruitment and promotion
The direct recruit gets his year of allotment from the succeeding year of his recruitment
The direct recruit officers appointed earlier to 1988 also would be adversely affected in their seniority
403 D 102
Rule 331 manifests the Central Govt s intention that the year of allotment of a direct recruit officer shall be the year following the year in which the competitive examination was held
If any such officer was permitted to join probationary training with direct recruit officers of a subsequent year of allotment then he shall be assigned that subsequent year as the year of allotment
400 G H 103
In determining the seniority of a promotee officer in assigning year of allotment the service rendered in the State Civil Service upto 12 years as Dy
Collector or equivalent posts weightage of 4 years shall be given
In addition heshe shall also be given further benefit of one year weightage of every completed 3 years of service
beyond the period of 12 years subject to a maximum weightage of 5 years
In its calculations fractions are to be ignored
The weightage shall be computed from the year G of appointment of the officer to the service
402 E 104
The offending proviso limits the operation of Rule 33 ii a and b that such an officer shall not be assigned an year of allotment earlier than the year of allotment assigned to the officer senior to him in that select list or appointed on the basis of an earlier select list
1402 F 105
The proviso aims that the State Civil Service senior officer  though had varied length of services but because of late promotion to Indian Administrative Service would receive and forego proportionate weightage of past service for a short period till the rules fully become operational
406 B 106
The first amendment rules doubtless provided the remedy to remove existing discriminatory results by giving graded weightage to a maximum of 9 years and would track back the year of allotment anterior to the date of inclusion in the select list under the Recruitment Rules read with Promotion Regulations
406 C 107
The Proviso intended to protect the seniority of the officers promotedappointed earlier than the appellants and its effect would be that till rule 3 3 ii fully becomes operational graded weightage was given to the promotees
In other words it prevented to get seniority earlier to the date of hisher appointment to the Indian Administrative Service
Equally it in tended not to let endless chain reaction occur to unsettle the settled interests in seniority
These compulsive circumstances denied the benefits of full 9 years weightage to officers promoted during 1987 to 1992
The discrimination though is discernible but inevitable to ensure just results
In other words the proviso prevented unequals to become equals
406 D E 108
The new Seniority Rules were to be operative from November 6 1987 and the First Amendment Rules from February 3 1989 with the result that in assigning the year of allotment full weightage of 9 years  eligible service was given to the promotee State Civil Service Officers
However the senior officer to himher appointed from the State Civil Service earlier in the same select list or one above him in the previous select list shall remain senior to him
Thereby the proviso averted the effect of pushing an officer who gained entry into IAS service by application of rule of weightage in Rule 33 ii of the Rules down in seniority
402 H 403 A B 109
By dint of merit ability and suitability junior officer could steal a march over the senior officers in the State Civil Service and get entry into the Indian Administrative Service earlier to the senior officers and thus becomes a member of the Indian Administrative Service
Thereby he becomes senior in service
The senior State Civil Service officer who was superseded and subsequently became qualified tor inclusion in the select list after the new Seniority Rules or the First Amendment Rules came into force indisputably would be junior in IAS cadre to his erstwhile junior officers in State Civil Service
If he gets the benefit of the free play of the First Amendment Rules it would have the inevitable effect of depriving the promoted erstwhile junior officer of the benefit of early promotion and he would be pushed down and would again become junior to him in the Indian Administrative Service
405 G H 406 A B 110
A junior officer who superseded a senior State Civil Officer became entitled to carry his year of allotment and became senior to him in the cadre of IAS But for the proviso the operation of Rule 33ii the senior officer would have been saddled with the disability to be pushed down in seniority which would have nullified and frustrated the hard earned earlier promotion and consequential effect on seniority earned by dint of merit and ability
403 E 201
No statute shall be construed so as to have retrospective operation unless its language is such as plainly to require such a construction
The legislature as its policy give effect to the statute or statutory rule from a specified time or from the date of its publication in the State Gazette
1404 A 202
Court would issue no mandamus to the legislature to make law much less retrospectively
It is the settled cannons of construction that every word E phrase or sentence in the statute and all the provisions read together shall be given full force and effect and no provision shall be rendered surplusage or nugatory
404 B 204
The mere fact that the result of a statute may be unjust does not entitle the court to refuse to give effect to it
However if two reasonable interpretations are possible the Court would adopt that construction which is just reasonable or sensible
Courts cannot substitute the words or phrases or supply casus omissus
The court could in an appropriate case iron out the creases to remove ambiguity to give full force and effect to the legislative intention
But the intention must be gathered by putting up fair construction of all the provisions reading together
This endeavour would be to avoid absurdity or unintended unjust results by applying the doctrine or purposive construction
1404 C D 205
Where the intention of statutory amendment is clear and expressive words cannot be interpolated
In the first place they are not in the ease needed
If they should be added the statute would more than likely fail to carry out the legislative intent
The words are the skin of the language which the legislature intended to convey
405 B 206
Where the meaning of the statute is clear and sensible either with or without omitting the words or adding one interpolation is improper since the primary purpose of the legislative intent is what the statute says to be so
If the language is plain clear and explicit it must be given effect and the question of interpretation does not arise
405 C 207
If found ambiguous or unintended the court can at best iron out the creases
Any wrong order or defective legislation cannot be righted merely because it is wrong
At best the court can quash it if it violates the fundamental rights or is ultra vires of the power or manifestly illegal vitiated by fundamental laws or gross miscarriage of justice
405 D 208
The Legislature intended that the First Amendment Rules would operate prospectively from February 3 1989 the date of their publication in the Gazette of India
Its policy is explicit and unambiguous Rule 33ii intended to remedy the imbalances while at the same time the proviso intended to operate prospectively to avert injustice to the officers recruitedpromoted earlier than the officer promoted later to that date
The proviso carved out an exception to ward off injustice to the officers that became members of IAS earlier to those dates
405 E Smt
Hire Devi  Ors
vs District Board Shahjahanpur  Nalinakhaya Bysck vs Shyam Sunder Haldar  Ors  at 545 and Commissioner of Sales Tax UP vs Auriya Chamber of Commerce Allahabad 119861 2 SCR 430 at 438 referred to 301
The application of the First Amendment Rules has the inevitable and insiduous effect of doing injustice to the direct recruit promotee officer or officers promoted earlier to Feb 3 1989 and the proviso avoided such unjust results
Giving retrospective effect or directing to apply the rule to all the seniors irrespective of the date of promotion to IAS cadre would land in or lead to inequitous or unjust results which itself is unfair arbitrary and unjust
offending article 14 of the Constitution
To avoid such unconstitutional consequences the proviso to Rule 33ii of the First Amendment Rules was made
407 C 302
But for the proviso the operation of Rule 33ii would be inconsistent with Sec 31A of the Act
Equally though the doctrine Reading down  is a settled principle of law its application to the facts of the case would lead to injustice to the officers promoted earlier to the appellants
A writ of mandamus commanding the respondents to give full benefit of weightage of Rule 33iiab of the First Amendment Rules would amount to direct the executive to disobey the proviso which is now held to be intra vires of the Constitutions
407 D 303
The proviso to Rule 33ii of the First Amendment Rules is consistent with section 31A of the Act and it is not ultra vires of the power the Central Govt
nor it offends articles 14 and 161 of the Constitution
409 A 304
There is a distinction between right and interest
No one has a vested right to promotion or seniority but an officer has an interest to seniority acquired by working out the rule
Of course it could be taken away only by operation of valid law
408 E 305
Law itself may protect the legitimate interest in seniority while granting relief to persons similarly circumstanced like the one under sec
31A of the Act read with proviso to Rule 33 ii  iii of the First Amendment Rules
It was neither void nor ultra vires offending articles 14 and 161 of the Constitution
410 C State of Jammu  Kashmir vs TN Khosa  at 779 J Kumar vs Union of India  at 463 and Union of India vs PK Roy 11968 2 SCR 186 at 201 202 distinguished
DS Nakara vs Union of India
  B Prabhakar Rao vs State of AP 1985 2 Supp
SCR 379 and AK Bhatnagar vs Union of India 1991 1 SCC 544 referred to
Consultation is a process which requires meeting of minds between the parties involved in the process of consultation on the material facts and points involved to evolve a correct or at least satisfactory solution
There should be meeting of minds between the proposer and the persons to be consulted on the subject of consultation
There must be definite facts which constitute foundation and source for final decision
415 E 402
The object of the consultation is to render consultation meaningful to serve the intended purpose
Prior consultation in that behalf is mandatory
415 E 403
When the offending action effects fundamental rights or to effectuate built in insulation as fair procedure consultation is mandatory and non consultation renders the action ultra vires or invalid or 404
When the opinion or advice binds the proposer consultation is mandatory and its infraction renders the action or order illegal
1415 F 405
When the opinion or advice or view does not bind the person or authority any action or decision taken contrary to the advice is not illegal nor becomes void
415 G 406
When the object of the consultation is only to apprise of the proposed action and when the opinion or advice is not binding on the authorities or person and is not bound to be accepted the prior consultation is only directory
The authority proposing to take action should make known the general scheme or outlines of the actions proposed to be taken be put to notice of the authority or the persons to be consulted have the views or objections taken them into consideration and there after the authority or person would be entitled or hashave authority to pass appropriate orders or take decision thereon
In such circumstances it amounts to an action after consultation
415 H 416 A B 407
No hard and fast rule could be laid no useful purpose would be served by formulating words or definitions nor would it be appropriate or lay down the manner in which consultation must take place
It is for the Court to determine in each case in the light of its facts and cir cumstances whether the action is after consultation was in fact consulted or was it a sufficient consultation
416 C 408
Where any action is legislative in character the consultation envisages like one under Sec
3 1 of the Act that the Central Govt
is to intimate to the State Governments concerned of the proposed action in general outlines and on receiving the objections or suggestions the Central Govt
or Legislature is free to evolve its policy decision make appropriate legislation with necessary additions or modification or omit the proposed one in draft bill or rules
The revised draft bill or rules amendments or additions in the altered or modified from need not again be communicated to all the concerned State Governments nor have prior fresh consultation
Rules or Regulations being legislative in character would tacitly receive the approval of the State Governments through the people s representatives when laid on the floor of each House of Parliament
The Act or the Rule made at the final shape is not rendered void or ultra vires or invalid for non consultation
416 D F 409 The proposal for amending the new Seniority Rules in the draft was only for inviting discussion and suggestions on the scope and ambit of the proposed law and the effect of the operation of the First Amendment Rules
Keeping the operational effect in view the proposed amendment could be modified or deleted or altered
416 G 410 The Central Govt
is not bound to accept all or every proposal or counter proposal
Consultation with the Ministry of Law would be sufficient
Thereby the Central Govt
is not precluded to revise the draft rules in the light of the consultation and advice
416 H 411 The general consultation had by the Central Govt
with the State Govts
and Union Territories was sufficient and it was not necessary to have prior consultation again to bring the proviso on statutes as part of the First Amendment Rules
417 B 412 By operation of sub sec
2 of Sec 3 the rules were laid on the floor of each House of the Parliament
There were no suggestions or alterations made by either House of Parliaments
Thus the First Amendment Rules stood approved by the Parliament
417 C 413 The failure to consult all the State Governments or Union Territories on the proviso to Rule 33 ii or iii of the First Amendment Rules does not render the proviso ultra vires invalid or void
417 D Union of India vs Sankalchand Himatlal Sheth  Anr   R Pushpam vs State of Madras AIR 1953 Madras 392 State of UP vs Manmohan Lal Srivastava  at 542 UR Bhatt vs Union of India AIR 1962 SC 1344 Ram Gopal Chaturvedi vs State of Madhya Pradesh   N Raghavendra Rao vs Dy
Commissioner South Kanara Mangalore   Mohd Sujat Ali  Ors
vs Union of India  at 469 471 Chandramouleshwar Prasad vs Patna High Court  Ors  at 674 675 Narain Sankaran Mooss vs State of Kerala  Anr   Naraindas Indurkhya vs State of MP  Ors  Hindustan Zinc Ltd vs AP Electricity Board Ors   Rollo  Anr
vs Minister of Town  Country Planning 1948 1 All Eng
Reports 13 Electher  Ors
vs Minister of Town  Country Planning 1947 2 All
Reports 496 Sinfield  Ors
vs London Transport Executive Law Reports 1970 Chancery Divn Derham  Anr
vs Church Commissioners for England 1954 Appeal Cases 245 and Port Louis Corporation vs Attorney General of Mauritius 1965 Appeal Cases 1111 referred to
Union of India  Ors
vs Dr section Krishna Murthy  Ors1989 4 SCC 689 distinguished