Case: E.P. Royappa Vs. State of Tamil Nadu &amp; Another

1. 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.2. 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, 1965, 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.3. On 11 July, 1969 the post of Additional Chief Secretary was temporarily 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.4. On 7 August, 1969 the State of Tamil Nadu wrote to the Central Government to amend Schedule III-A of the Indian Administrative Service (Pay) Rules, 1954, so that the posts of Chief Secretary to Government, Additional Chief Secretary to Government and First Member, Board of Revenue could be of the same cadre carrying the same pay. The Government of India by a letter dated 26 September, 1969 stated that the status of Chief Secretary as the head of the Secretariat organisation in the State should remain unquestioned. The view of the Central Government was that the status of Chief Secretary should not be allowed to be diluted by the creation of the post of Additional Chief Secretary carrying the same status and emoluments as the Chief Secretary. The Central Government also stated that the post of Additional Chief Secretary was not a cadre post. The Central Government, however, expressed to view that the post of First Member, Board of Revenue in the State should carry pay as adminisible to the Chief Secretary.5. 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 grated refused leave with effect from 14 November, 1969.6. 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, 1972.7. By an order dated 27 June, 1972 the Government of Tamil Nadu accorded sanction to the creaton 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.petition.73. The petitioner is a member of the Indian Administrative Service in the cadre of the State of Tamil Nadu. On 2nd August, 1968, the petitioner was confirmed in the selection grade of the Indian Administrative Service with effect from 22nd May, 1961. The petitioner was successively posted to act as Fifth Member, Board of Revenue, Fourth Member, Board of Revenue, Third Member, Board of Revenue and Second Member, Board of Revenue on 25th February, 1964, 5th August, 1965, 30th March, 1966 and 5th April, 1969. On 11th July, 1969 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 posted the petitioner to act as Additional Chief Secretary to Government in the newly created post. Now, according to Sch. III A of the Indian Administrative Service (Pay) Rules, 1954 the posts of Chief Secretary to Government and 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 11th 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 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 same 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 Sate Government that the status of Chief Secretary to 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 n the pay Rs. 2,750/- or in smaller scale, but not in the scale of Rupees 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-secretaria post in the State Cadre carrying the same salary as that of the Chief Secretary and stated that they were taking steps to provide that the First Member, Board of Revenue should carry the same pay as admissible to the Chief Secretary. The Central Government accordingly issued a notification dated 14th January, 1976 in pursuance of Rule 11 of the Indian Administrative Service (Pay) Rule, 1954 amending Sch. 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.74. 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 file 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 as Chief Secretary. Whether such promotion was by way 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.75. On 1st April, 1970, the Government of India proposed that in view if the fact that the responsibilities of Chief Secretary to State Government had multiplied and become complex to such an extent that they could 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 Government 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 these posts should be upgraded to that of Secretary to the Government of India. The Government of India did not accede to the request of the State of Tamil Nadu in so far as the post of First Member, Board of Revenue was concerned, but in regard to the post of Chief Secretary, amended Sch. III to the Indian Administrative Service (Pay) Rules, 1954 by a notification dated 31st August, 1970 raising the pay of Chief secretary from Rupees 3,000/- to Rs. 3,500/- per month so as to bring him on part 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.76. 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 D.M.K. 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 midnight on 6th April, 1971 that the petitioner was transferred as Deputy Chairman of the State planning Commission. There was no 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 be came to learn about it for the first time on reading the newspapers in the morning on 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 the post providing that he 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 denigrated and he therefore, did not join this post and went on leave from 18th April, 1971 and the leave was renewed by him from time to time up to 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 order dated 7th April, 1971, that the post of Deputy Chairman should be deemed to have been sanctioned for a period of one year from 13th April, 1971 and that Raja Ram. who was First Member, Board of Revenue, should be placed in charge of that post until further orders. The post of Deputy Chairman having been created for a period of one year only, came to an end on 13th April, 1972 and it was not thereafter continued until 6th June, 1972 when it was again revived on return of the petitioner from leave. The State Government passed an order dated 6th June, 1972 sanctioning once again the creation of 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 from leave. Against this order the petitioner made a representation to the second respondent on 7th June, 1972 stating that without the approval of the Central Government, the continuance of the post of Deputy Chairman in the rank of Chief Secretary for a period of more than one year would be invalid under R. 4 (2) of the Indian Administrative Service (Cadre) Rules, 1954. How far this contention was valid is 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 Member Board of Revenue" for a period of one year for streamlining and rationalising the structure of Tamil Nadu General Sales Tax Act and similar-enactments relating to commercial taxes and rules. On the next day. i.e., 27th June, 1972 another order was issued by the State Government modifying the earlier order to the 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 today. 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 petitioner 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 Raj Ram, First Member, Board of Revenue to that post "in addition to his 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 are told that he has been confirmed in that post. The petitioner was obviously hurt be 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 he, 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 (Pay) rules, 1954 (2) it was violative of Arts, 14 and 16 of the Constitution as the posts of Deputy Chairman, State Planning Commission and Officer on Special Duty were inferior in rank and status to that of the Chief Secretary, and (3) it was made in mala fide exercise of power, not on account of exigencies of administration or public service, but because the second respondent was annoyed with the petitioner on account of various incident referred to in the petition and wanted him out of the way. We shall elaborate these grounds as we proceed to discuss them.

Reasoning:
10. It thus appears that the Chief Ministers Note as well as the draft order stated that the petitioner was promoted and posted as Chief Secretary. But the Gazettee 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 draftwho 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 leave 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-CER 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.15. The Fundamental Rules of the Madras Government corrected upto 30 June, 1966 issued by the Finance Department, 2nd Ed. 1966 at pages 133-134 contain a note appended to Fundamental Rule 56 of Tamil Nadu State Government. In that note an exception in respect of Indian Civil Service Officers is created by providing that in the case of an Officer of the former Secretary of State Service the grant of such leave shall be treated as sanctioning as extension of service upto the date on which the leave expires. Therefore, Ramakrishnan held lien on his post until 14 March, 1970.16. The petitioner in the note for circulation dated 14/16 November, 1970 prepared by the Joint Secretary, Finance 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 the post of Chief Secretary. The petitioners 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 right to hold the post of Chieftherefore, 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.18. 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 Rs. 4 (2) is that the State Government may add for a period mentioned there to the cadre one or more posts carrying duties and responsibilities of the like nature of a cadre posts. The posts so added do not become cadre posts. There temporary posts do not increase the strength of the Cadre. The addition of the post of Deputy Chairman, Planning Commission or Officer on Special Duty to the Indian Administrative Service Cadre of Tamil Nadu State is not permissible because that would result in altering the strength and composition of the Cadre. The State has no such power within the second proviso to Rule 4 (2) of the Cadrethe 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 an the downgrading of the post of Deputy Chairman, Planning Commission alleged by the petitioner is not correct. The post was not upgraded or downgraded. The incumbent of the post carried a higher or a lower salary according to the salary enjoyed by the incumbent at the time of the appointment.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, Board 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 mala fide. There was no reduction in rank. The petitioners status as well as pay was in conformity with the Rules.35. The petitioner could not claim that till retirement he must continue to act in the post of the Chief Secretary. The order of transfer were passed in the administrative exigencies.36. The member 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 on 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 authorities. 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 Minister for Co-operation denied that he asked the petitioner to modify any note. The Chief Minister denied that he ever asked for and modification in the note. The Chief Minister further alleges in the affidavits that there is no note written by the petitioner suggesting the launching of prosecution against Mudaliar. Both the Chief Minister and the Minister for Co-operation state in their affidavit 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.42. The petitioners allegation that the Chief Minister expressed annoyance at the petitioners 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 petitioners proposal was accepted. The petitioners 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 petitioners recommendation to close the distillery would not only have unemployment of a large section but created also lose 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 mala fide on the part of the Government.These facts in relation to Vaithialingam indicates that the petitioner was not only a party to all the decisions but also he was responsible for the decision taken by the Government. There is no ground whatever for attributing bad faith or improper motive to the Government against the petitioner.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 administration. Civil servants are expected to advise 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 law and order situation as well as 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 petitioner. There does not appear any instance of acrimony or dis agreement 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.70. The events alleged at the time of the elections are in aid of the petitioners contension that his dealing of the law and order situation was so firm that the Chief Minister and other members of his party became alienated. The petitioner suggested that the Chief Minister and the members of his party were responsible for introducing violence and intimidation. The further suggestion of the petitioner is that the petitioner exposed the activities of the D.M.K. Party, Complaints against the D.M.K. Party were like complaints against other political parties. The affidavit evidence indicates that the law and order 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 achive anything extraordinary. As the Chief Secretary it was the duty of the petitioner 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 petitioners allegations imputing mala fides against the Chief Minister are baseless. The petitioners allegations were in aid of suggesting vindictiveness and vengeance on part of the Chief Minister. Facts and circumstances repel any such insinuation andmost significant feature in the allegations of mala fides is that when on 7 April, 1971 the petitioner was appointed to act as Deputy Chairman, Planning and he went on leave he did not at any stage anywhere that the order was made mala fide. The first letter where the petitioner alleged mala fides is dated 7 June, 1972. The allegation of mala fides 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 mala fide 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 of mala fide 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 mala fides 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 intrepid 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 lending colour to chronicle.