E. P. ROYAPPA versus STATE OF TAMIL NADU & ANR.

J. We are in agreement with the final conclusion reached in the jwlp1ent delivered by the learned Chief Justice, but our .:approach and reasoninc are a little different and we are, therefore, delivering separate judgment expressing our views on the various .questions arising in tbe petition.

p. 372, margin G

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 w.as confirmed in the selection ifade of the Indian Administrative Service with effect from 22nd May, 1961. The petitioner was successively }X!Sted to act as Fifth Member, Board of :Revenue, Fourth Member, Board 9f Revenue, Third Member, Bo~d of Revenue, ~md &cond Member, Board of Revenue on 25th February, 1964, 5th Au&USt, 1965, 30tb March, 1966 and 5th Apru, 1969. On lltk July, 19o~ ttle State of Tamtl Nadu passed an order sanctioning the cr~ation of a temporary post of Additional Chief Secretary to the Government for a period of one year and directed that the posts of Chief Secretar_y to Government, Additional Chief Secretary to Government and First Member of tne Board ~of Revenue should be deemed to b~ in the same cate&ory and should be interchangeable selection posts, and by the same order promoted and posted the petitioner to act as Additional Chief Secretary to Government in the newly created post. Now, according to Sh. lilA of the Indian Administrative Service (Pay) Rules, 1954 the posts of Chief Secretary to Government an<1 First Member, Boan:f of Revenue carried respectively pay of Rs. 3,00W- and Rs. 2,750/-. But since the State Government had by the order dated 11th July, J 969 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· n was necessary that there should be same pay for all the three posts and the State Government, therefore, by a letter dated 7th August, J 969 requested the Central Government to amend Sch. IliA of tbe )ndian Administrative Service (Pay) Rules, 1954, so that all the three posts could be of the same ra;1k carrying the same pay. nnmdy. Rs. 3,000/-. The Central Government by its letter in reply dated ,26th September, 1969 pointed out to the State Government that the status of Chief Secretary to Government as the head of the Secretariat or~nisation in the State should remain unquestioned and it should not be a1lowed 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 addin~ the post of Additional Secretary to the cadre temporarily for one year in tbe pay of Rs. 2,750/- or in smaller sca1e, but not in the scale of Rs. 3,000/- as desired by the State Government. So far as the request of the State Government in regard to the post of First Member of the Board of Revenuo was concerned, the Centr~l Government agreed tMt there should be one non-secretariat· 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 Govern,ment accordingly issued a.notification dated · 14th January, 1970 in pursuance of r. 11 of the Indian. Administrative Service (~y) .Rules, 1954 amending Sch.' III. with effect from. 17th December, 1969. so as to pnwide that the pay, of F'.trSt Member, Board of Revenue sliall ·be Rs. 3,000, tJui.(is, ·the same as that of the Chief Secretary. The post of. Brst Member,. Board of Revpnue was .thus equated to tliat of the Chkf Secretary in l;'ank .and status, though the pos·t of Additional Otief Seyretary was not.

pp. 372–373, margin H

..

p. 373, margin H

In the meantime, on 13* November, 1969, the then Chief Secfetaiy Ramakrishnan, who was a IDI'ffil:ler .of the Indian Civil.Service, was "retiring on completion of 35 years service, and the question, _there,. fore,· arose as to · who should be appointed in .his place. _The. file. in this- connection' was pfaced before the ~ef Minister;. who_ is 1he second respondent before tis, 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 st<~:ting 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 Gove~nor 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 rc.spondent. The draft order stated int~r alia that the petitioner "is pro:... mated 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 th::: petitioner "is promoted and pos~d 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 Secre.tary. Whether such promotion was by way of substantive appointment · orhin an odfficiatil!gh cahpacity is a matfterhwhich. we woul_d have to dcci4~ w eri. we ea 1 Wit t c arguments o . t e parties. ·. · :

p. 374

On 1st April, 1970, the Government of India. proposed that in view ·of the fact that the ·responsibilities of Chief Sccretacy to State Government had multiplied · and become complex to such an· extent that they would no longer be. regarded as less onerous than those of Secretary to the Government of India: the . post of Chief Secretary to State. Government should -be equated to the post "of Secretary .to the <_:iovernment-of India in respect of pay and invited the comments, of· various State Governments -on this pro~osal. -The State of Tamil Nadu -conveyed its- assent to the -proposal· but suggested that since· the, posts ·of Chief Secretary and Frrst ·Member. Board ·of Revenue in the State _were equal in ·status and interchangeable; both these posts .should be ·upgra~ed ·to ·that-of Secretarjr· to the Go\remmerit of ]ndia. · The Government. of India did ,not accede to· the !equest of the State of Tamil Nadu in so far as the post of Fi~t Member, Board of ;Revenue was cooccmed, but in regard to the post of· ~f Secretary, amended Sch. Ill to the Indian Administrative Service (Pay) Rules, 1954 by a .ootihcation dated 31st August, 1970 raisin' the. pay of Chief Secretary from Rs. 3,000/- toRs. 3,500/- per month so as to bring him on par with Secretary to the Government of India. The rank and status of the post of Chief Secretar"y 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.

pp. 374–375, margin E

The general elections to the Parliament· and the State Legislature weco held in Tamil Nadu in the first week of March 1971. The rellults of the poll were declared on 11th March, 1971 and the DMK party under the leadership of the second respondent retained its majority in the State Legislature and formed the new Government with the second respondent as the Chief Minister. According to the petitioner, there were several matters in which he had the .W.fortune to incur ~ displeasure and wrath of the second respondent dllling the period prior to the elections as also at the time of tho elections whilst actin& in. disc~ of his duties as Chief Secretary, and the second respondent, . theJtefore, on being returned to power, decided to remove him from the post of Chief Secretary. With that end in \Tiew the second respondent announced at a ~ Conference held by him at mid·night on 6th Apri1., 1971 that the petitioner was transferred. as Deputy Chairman of the State Planninc Commission. There wrua no State Planning Commission in existence on that date though it appears that the proposal to set it up bad been under consideration of the Government for some time. The petitioner was also not given any inkling of the proposed appointmeat . and he came to learn about it for the first time on readin&r; the newspapers in the morning of 7th April, 1971. The formal order in this connection was issued by the Stato ~ernment on 7ti. April, 1971 and by this order the State Gov~t accorded sanction to tlae. creation of a temporary post of Deputy Chairman in the State Plaaning Commission in the grade of Otief Secretary .for period of one year with effect from the date of appointment and appointed the petitioner to that post providing that he shall be entitled to the same rank and emolumcmts as admissible to the post of Chief Secretary. The petitioner obviously felt that he was being denigrated and he, thecefore, did not join this post and went on lea-ve from 18th April, 1971 and the leave was renewed by him from time to time upto 5th June, 1972. The State Planning Commission was in the meantime constituted on 25th May, 19?1. and since the petitioner was on leave, u order dated 19th August, 1971 was issued by the Stato Government directing, in modification .of the earlier order dated 7th "April, 1971, that the post of Deputy Otairman should be deomed 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 yoar only, came to an end ort 13th April, 1972 and it was not thereafter.continued until 6th June, 1972 when it was again revived on return of the peti-

p. 375, margin B

tioner from leave .. The State Go-vernment passed an order dated 6th J2-Lmscrt64 31-l June, 1972 sanctioning on(;e a~ain the creation of a temporary post of Deputy Chairman on a pay of Rs. 3,500/- per. month for a period o£ one year and appointing the petition~ 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 matter we shall presei!tlY examine and it need not detain us. . The next event that happened.was-whether as a sequel to the reprcsenta· tion of the petitioner or not, we do not know-that the· State Govcm~ inent issued an order dated 26th June, 1972 sanctioning the creation of a temporary post of Officer on Special Duty "of the rank of .Mem~ . ber, 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 e!Icct that the temporary post of Officer on Special Duty shall be "in the. grade of Chief Secretary to Government" and appointing the petitioner to this post. The petitioner did not join this post too and proceeded on long leave which continues till to-day. We enquired of the learned Advocate General who appeared on behalf of the State of Tamil Nadu t\S 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 Boord of Revenue was discharging the functions of . this post in addition to his normal functions. It may be winted out here that after tho petitioner was transferred from the post of Deputy Chairman and appoint~ ed 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 Chairm!l.n "in the g~ade of First Member, Board of Revenu£" on a pay of Rs. 3,000/- per month and aopolnting Raja Ram; First Member. Board of Revenue to that post 'in addition to his appointment as First Member, Board of Revet\ue". One other fact may also be noticed-and that is a little irnportantthat nn transfer of the petitioner fro111 the. oo•;t of. Chief Secrctan', one Sabanayagam, who was admittedly junior to' the petiti.oncr, was promot~ as Chief Secretary and we are told that he has been confirm~ ed in that pos-t. The petitioner was obviously hurt by these mther disint!enuous moves artonted by the State Government at the instanc~ of the second respondent to remove him from the post of Chief Sccretarv and he, therefore, filed the present ·oetitioQ. under Art. 32 of the Constitution challengini! the validitv of his transfer from tho post of Chief Secretary, first to the post of Deoutv Chairman,· State- Planning Commission and then .to the post. of' Officer on Special Dutv, on th~ followin<l' crnunds. name1v. ( 1 ) it wa-; contrarv to the nroviso to r. 4(2) of the Indian Adffiinistrati:vo .. ~rvice (Cadre) Ruks,. 19541 3nd r. 9. sub-r. (1) of the Indian Administrative Service (Pav) Rule~. 1954; (2) it wn<; violative of Arts. 14 nnd 16 of the Cor.-tittttion the. posts of Deputy Chairman, State Planning Commission and Offi· cer on Special Duty were inferior in rank and status to that of the Chief Secretary; and ( 3) it was made in mala fide exercise of power, not on account of exigencies of administration or public service, but because the second respondent was annoyed with the petitioner on account of various· incidents rcfet;rcd to in the petition, and wanted him out of the way. We sl}.~ll elaborate these grounds as we proceed to discuss them.

pp. 375–377, margin H

But before we examine these . grounds we must first determine what was the nature of the appointment when the petitioner was pro· moted as Chief Secretary. Was he promoted in aj substantive capacity or in an officiating capacity ? The contention of the petitioner was that he was appointed substantively to the po.s.t of Chief Secretary and for this purpose he relied on the draft orcfer approved by the second respondent as well as the Governor which did not use any words. ~uggesting that his promotion was in an acting capacity and promoted and posted him as Chief Secretary without any qualifying or limitative . words. The petitioner of.course could not dispute that the words used in the authenticated order were "promoted and posted to act ll~> Chief Secretary", but his argument was, firstly, . that the words "to' act" qualified only "posted" and not "promoted" and in this con· text they meant nothing more than this, namely, that the petitioner was posted to function or work as Chief Secretary and not that he was promoted in an acting capacity, ~d secondly, that even if ti:te words "to act" had the effect of makmg promotion an acting one, the authenticated order did not correctly embody the real decision of. the State Government which was to be found in the draft .order and the draft. order must, therefore, prevail over the authenticated order. TI1e respondents sought to repel this contention by a two.fold argument.. The first argument was based on the tenus of the authenticated order · and it was said that that was the final order duly authenticated by · the then Chief Secretary and it was not open to the petitioner to go ?ehind that order and ~efer to the draft order for purpose of varying It., terms. The authenticated order, contended the .respondents, dearly &bowed that the promotion and posting of lhe petitioner as Chief ~ccretary was in an officiating capacity. The other argument urged In the alternative was that though Ramakrishnan retired on attaining the age of superannuation on the afternoon of 13th November, 1969, he was granted refused leave . for a period of four months after the date of his retirement under Fundamental Rule 86, cl. (a) and his service was, therefore, extended and he continued to retain his lien on the post of Chief Secretary until the expiration of such period of four months, i.e, up to 14th March, 1970 and the petitioner could not. therefore, possibly be appointed substantively to the post of Chief Secretary till that time. We think. on a consideration of these arguments, that the contention of the petitioner that he was promoted as Chief Secretary in a substantive capacity is not well founded.

p. 377

The authenticated order provided in terms clear and e;plicit that the petitioner was promoted and posted to act as Chief Secretary. 11l~ words "to act", according to plain grammar and language, governed not only "posted'' but also "promted", The petitioner was both "promoted and posted" as one single composite event, "to act" as Chief Secretary and that clearly meant that the promotion was in an acting capacity. But the argument of the petitioner was that the words "to act" were not to be found in the draft order which recorded the original decision of the State Government and they were introduced in the authenticated order by mistake and should therefore be ignored, or in other words, the authenticated order should be read without the words "to act" so as to be in conformity with the draft order. The respondents resisted this attempt to go behind the authenticated order and c.ontended that the authenticated order was the final order and it was not open to the petitioner to say that it did not correctly retlect the order as made by the State Government. We do not think this contention of the respondents is sound. It is now well ,settled law that when an order is authenticated, the only challenge that is excluded by the authentication is that it is not an, order made by the Governor. The validity of such an order can be questioned on other ground,s. [Vide King Emperor v. Shivnath Banerjee(l) and State of Bihar v. Sonabati( The authentication does not, therefore, _preclude the contention that the order though made by the Governor suffers from some other infirmity. The authenticated order is merely an expression of the actual order which precedes it and which is made by the appropriate authority entitled to act on behalf of the State Government. As pointed out by this Court in Srate of Bihar v. Srmabati(2- "the _Process of making an order precedes and is different from the expression of it". It should, therefore, be axiomatic that i! the authenticated order doe not correctly reflect the actual order made, or to put the same thing differently, the actual decision taken by the State Government, it mus~ be open to correction. The tonnal expression of the order cannot be given such sanctity that even if found to be mistaken, it must prevail over the actual order made and override it. That would not be consonant with reason or principle, It would be an artificial rule calculated to obstruct the cause of truth and justice. Here in the present case it is the citizen who contends that the authenticated order does not correctly reproduce the actual order made by the State Government. But there may conceivably be cases where the Government may also find that !here is a mistake in the authenticated order and it requires to be rectified. Take for example a case where the actual decision taken by the State Government is that a person should be appointed to a post in an officiating capacity but by mistake the appointment is described as substantive appointment in the authenticated order. Can it be suggested in such a case that the Government cannot rectiJly the mistake by amending ~he authenticated order so as to bring it in accord with the real decision ? We have, therefore, no doubt that it was1 competent to the petitioner to contend, by reference to the draft order which containe~ the original decision of the State Government. that the authenticated order did not correctly reflect Sl!ch decision and suffered from an error. But the question is whether such contention can succeed.

pp. 377–378, margin G

Now, if we loolc at the c4:aft ordedt is clear that it merely uses the words "promoted and posted as Chief Secretary". It is silent as to (1) 72 I.A. 241. (2) [1961] 1 S.C.R. 746 the nature of the promotion. It does not say whether the promotion is by way of substantive appointment or in au officiating ~pacity. It could be either, consistently with the words used. It is the authenticated order which says for the first time clearly and definitely by using the words "to act" that the promotion is in an officiating capacity. There is thus no inconsistency between the draft order and the authenticated order from which any eror can be spelt out in the authenticated order. The authenticated order in so far as it uses the words "to act", does no more than speak on a matter on which the draft order was; silent. It appears that before issuing the authenticated order the appropriate authority applied its mind to the question as to whether the promotion should be in a substantive capacity or in an officiating capacity and since Ramakrishnan was going on reflused leave for four months from 14th November, 1969 and was accordingly, as we shall presently point out, entitled to retain his lien on the post of Chief Secretary till that date, decided that the promotion should be an officiating one as indeed it could not be otherwise, and that is why the authenticated order was issued with the addition of the words "to act" after the expression "promoted . and posted". There is of-course no positive evidence to this effect, but it would appear to be a reasonable inference to make in view of the substitution of the words "retiring from service with effect from . the afternoon of 13th November, 1969" in the authenticated order. It is, therefore .•. clear that the authenticated order correctly reflected the final d~.Jston of the State Government and under it the promotion the pehttoner w·as in an acting or officiating capacity.

pp. 378–379, margin H

The alternative argument. of the respondents must also lead us tG the same ctmclusion. This argument has been dealt with in the judgment of the learned Chief Justice and we do not think we can usefully add anything to what has been stated there by the learned Chief Justice. We entirely agree with the reasoning and the conclusion of the learned Chief Justice on this point and hold that since Ramakrishnan proceeded on refuged leave for a period of four months from the date o~ his superannuation he continued to . retain his lien on the post of Chief Secretary until 14th March, 1970 during the period of refused leave granted to him, and the promotion of the petitioner under the order dated 13th November, 1969 could not therefore be otherwise than in an officiating capacity. The post of Chief Secretary became vacant on 14th March, 1970 but at no time thereafter the petitioner was confinned as Chief Secretary and he had, therefore, no right to hold the post of Chief Secretary at the date w~el? he was transferred as Deputy Chainnan, State Planning Commtsston. But that does not mean that he was not entitled to be considered for confirmation, and since he was not confirmed, but Subanayagam, who· was junior to him, wa promoted and confirmed, the question must inevitably arise whether what was done was in mala fid~ e~ercise ot power or in violation ot Arts. 14 and 16 of the ConstitutiOn.

p. 379, margin D

We now turn to the first ground of challenge which alleges contravention of the second proviso tor. 4(2) of the Indian Administrative Service (Cadre) Rules, 1954 and r. 9, sub-~. (1) of the Indian Admi- .nistrative Service (Pay) Rules, 1954. So far as the second proviso to r. 4(2) of the Indian Administrative Service (Cadre) Rules, 1954 is concerned, we do not think it has any application. That proviw merely confers limited authority on the State Government to make temporary addition to the cadre for a period not exceeding the limit therein specified. The strength and composition of the cadre can determined only by the Central Govemmeot under r. 4( 1) and the Central Government alone can review it trienially or at any otl1er iutermediatc time under r. 4(2). The State Government cannot add to the cadre a. different category of posit than that already existing the cadre, nor can it make any permanent addition to the number of posts of a particular category in the cadre, for to do so "!OUld mean, in the first case, alteration in the composition of the cadre, and in the second, alteration in the strength oJ the cadre, both which would be impermissible to the State Government. But the State Government can, by virtue of the relaxation granted by the second proviso, make temporary addition to the cadre provided the post added carries duties or responsibilities of a like nature to a cadre post. This would mean, as pointed out by the Government o( India in its decision recorded at 4.1 at page 741 of the All India Service~ Manual (Second Edition) : "The exercise of this power by the ·State Government with reference to a post involves an obje<;:tive a~ment of the nature of the duties and responsibilities attached to that post in comparison to those attached to a cadre post. Thus posts cannot be added temporarily to the cadre unless such posts already e:xisl the cadre". The State of Tamil Nadu could not, therefore, add the pos~s of Deputy Chairman, State Planning Commission and Officer on Special Duty under the second proviso, as these posts did not exist fn the cadre as constituted by the Central Government. They were new categories of posts ·'created by the State Government. The second proviso to r. 4(2) has, therefore, no application and the challenge based on it must fail.

pp. 379–380, margin H

The petitioner is, however, on firmer ground when he bases hi~ challenge under r. 9, sub-r. (1) of the Indian Administrative Service (Pay) Rules, 1954. Rule 9, in so far as material, provides as follows :

p. 380, margin E

"(1) No Meml;ler of the Service shall be appointed to a post other than a post specified in Schedule III, unless the State Government concerned in respect of posts under its control, or the Central Government in respect of posts under its control, as the case m~y be, make a declaration that the said post is equivalent il). status and responsibilitv to a post specified in the said Schedule.

p. 380, margin F

(2) The pay of a member of the Service on appointment to a post other than a rost specified in Schedule III shall be the same as he would have been entitled to, had he been appointed in the pQ5t to which the saia post is declared equivalent..

p. 380, margin G

( 3)

p. 380, margin H

( 4) Notwithstanding anything contained in this rule. the State Government concerned in respect of any posts under its control, or the Central Government in respect of any posts under its control, may for sufficient reasons to be recorded in writing, where equation is not possible, appoint any member of the Service to any such post without making a declaration that the said post is equivalent in status and

pp. 380–381, margin H

responsibility to a .post $J>ecified in/Schedule ill." Tliis rule is intended t~ provide a safeguard l>r the protection at a member of the Indian Administrative Service. Sub-r. ( 1) enact9 that no member of the Indian Administrative Service shall be appointed to a post other than a pos~ specified in Schedule Ill, or in other ~ds, to a non-cadre post unless the Government makes a declaration that sucb non-cadre post is "equivalent in status and responsibility'' to a post specified in the said Schedule, i.e., to a cadre post If the State GOvernment wants to appoint a member of the Indian Admini8tlative Service to a non-cadre post created by it, it cannot do so unlts.J it makes a declaration setting out which is t.he cadre post to which such non-cadre post is equivalent in status and responsibility. The making of such a declaration is a sine qua non of the exercise of power under sub-r. (1). It is! not an idle fonnality which can be dispensed with. at the sweet·will of the Government. It has a purpose behind it and that is to ensure that a member of the Indian Administrative Service is not pushed off so a non-cadre post which is inferior in status and responsibility to that occupied by him. So far as cadre posts are concerned, their hierarchy would be known, ·but a non-cadre post created . by the Government would be stranger in the hie.rarchy, and that is why sub-r. ( 1) requires that before appointing a member of tlie Indian Administrative Service to such non-cadre post, the Go~m­ ment must declare which is the cadre post to which such non...cadre post is equivalent in status and responsibility, so that the member of tile Indian Administrative. Senice who is appointed to such non...cadre post, would know what is the status and responsibility of his post in Lerms of cadre posts and whether he is placed in a superior, or ~ual post or he is brought down to an inferior post. If. it is the latter, he would be entitled to protect his tights by pleading violation of Art. 311 or Arts. 14 and 16 of the Constitution, whichever may be applicable. That would provide him effective insulation against unjust or unequal or unlawful treatment at the hands of the Government. The object of'this provi·s-ion olearlv ·i!\ to ensure that the public service!! are, in the discharge of their duties, not exposed to the demoralising and depraving effects of personal or political nepotism or victimisation or the vagaries of the political machine. The determination of eqW.. valence is, thereibre, made a condition precedent before a member Of. the Indian Administrative ServiCe can be appointed -'to a non-cadre poSt under sub-r. (1). It is a mandatory requirement which must be obeyed. The Government must aoply it mind to~ tbe nature and responsibilities ot the ·llnctions and duties attached to ·the non-cadre pOst and determine the equivalence. There the pay attached to the non-cadre post . is not material. As pointed out by the Government of India in li decision given by it in MHA letter No. ·32/52/56-AIS(U) dated 1Oth J ul v. 19 56' the basic criteril)Jl ·for the determination of equivalence is "the natute and responsibilities of duties attached to the post and not the PlY attached to the post". Once the declaration of equivalence is made on a proper applieation of mind to the nature .and responsibilities of the functions and duties attached to th~ non· cadre post, sul>-r. (2) says that the pay of the member of the Indian Administrative Service appointed to such non-cadre post shall be the same as he would have been entitled to~ had he been ap~ointed in the cadre post to which such non-cadre post is declared equ1valent. He is thus assured the pay of the equivalent cadre post and his pay is protected. Now this declaration of equivalen~e, though imperative, is not conclusiveJn the sense that it can never be questioned. It would be open to a member of the Indian Administrative Service to contend, nQtWithstanding the declaration of equivalence, that the non-cadre post to which he appointed is in truth and reality inflerior in status and responsibility to that occupied by him and his appoiatment to such .p.on·cadre post is in violation of Art. 311 or Arts. 14 and 16. The burden of est;ablishing this. would undoubtedly .be heavy :and th~ court would be slow to interfere with the declaration of equivalence made. by the Government. The Government would ordinarily be the best Judge to evaluate and compare the nature and responsibilities to the ru~ctions and duties attached t,o different posts with a view to .determmmg whether or not they are equivalent in status. and respomibility and when the Govrrnment has declared equivalence after proper application of mind to the relevant factors, the court would be ,uosr reluctant to venture into the uncharted and unfamiliar field of administration and examine the correctness of the declaration ot equivalence made by the Government. But where it appears to the court that the declaration of equivalence is made without application of mind to the nature and responsibilitjes of the functions and duties. attached to the non-cadre post or extraneous or irrelevant factors are taken into account in determining the eq~valence or . the nature and responsibilities of the functions and duties of the two posts ate so dis-s·imilar that no reasonable man can possibly say that they are equivalent in status or responsibility or the declaration of equivalence is mala fide or in colourable exercis~ of power or it is a cloak f.or displacing .a member of the Indian Administrative Service from a cadre post which he is occupying, the court can and certainly would set at naught the declaration of equivalence and affOrd .protection to the civil servant. The declaratio~ of equivalence mus-t, however, always be there if a member of the Indian Administrative Service is to be appointed to a non-cadre post. The only exception to this rule is to be found in sub-r. (4) and that applies: where the noncadre post is such that it is not possible to equate it with any cadre post. Where the Government finds that the equation is not possible, jt can appoint a member of the Indian Administrative Service to a non-cadre post but only for sufficient reasons to be recorded in writing, This again shows that the Government is required to apply its mind and make an objective assessment on the basis· of relevant factors for determining whether the non-cadre post to which a member o:fl the Indian Administrative Service is sought to be appointed can be equated to a cadre post, and if to what cadre post it can be so equated. This is the plain requirement of r. 9, sub-r. (I) and the que&tion i~ whether the appointment of the petitioner to the non-cadre posts of I?e_puty Chairman, St_ate Planning Commi~sion and Officer on Spe~ial Duty was in compliance with this tequirement.

pp. 381–383, margin A

Turning first to the appointment of the petitioner as Deputy Chair· man, State Planning Commission, it was made by the order dated 7th April, 1971. The Government by this order sanctioned the c,.aiion ot a temporary .post of Deputy Chairman "in th~ grade of Chief Secretary" and appointed the petitioner to this post, stating that , he would be entitled to the same rank and emoluments as admissible tu the Chief Secretary. Howsoever favourably to the State Government we may try to read this order, it is not. possible to discern in it any trace of a declaration that the State Government found, on an objec· tivc assessment of the nature and responsibility of the functions· and duties attached to the post of Deputy Chairman, that it was equivalent in status and responsibility to that of Chief Secretary. It is one thing to create a post of Deputy Chairman in the grade of Chief Secretary and another to determine, on an objective assessment of the nature and responsibilities of the functions and duties, that the post of Deputy Chairman is equivalent in status and responsibility to that of Chief Secretary. Here the State Government seems to have proceeded on the hypothesis that it can create a non-cadre post in the rank or grade of any cadre post it likes, irrespective of the nature and respon~ibilities of the functions and duties attached to such non~ cadre po~t and that would be sufficient compliance with the require~ ment of r. 9, sub-r. ( 1 )·, But that hypothesis is plainly incorrect. The State Government cannot artifically create equivalence by saying that a particular non~cadre post, whatever be the nature and responsibilities of the functions and duties attached to it, shall be in the rank or grade of any cadre post it likes. The State Government has to apply its mind and make an objective assessment of the nature and respon$ibilities of the functions and duties and determine which is the cadre post to which such non-cadre post can be regarded as equivalent in status and responsibility and then only it can make a declaration of equivalence. This exercise does not seem to have been gone through by the State Government when it made the order dated 7th ~ril, 1971 sanctioning the creation of the post of Deputy Chairman and appointing the petitioner to that post. This becomes abundantly dear if we look at the subsequent orders. As we have already pointed out above, the post of Deputy Chairman first created came to an ·end 6n 13th April, 1972. Thereafter there was no post of Deputy Chairman till 6th June, ·1972 when it was cre{lted once again by the order dateJ 6th June, 1972. Strangely enough this order, unlike the earlier order dated 7th April, 1971, did not even mention that the post of Deputy Chairman was in the grade or rank of Chief Secretary. It merely prescribed the pay which shal. attach to the post of Deputy Chairman. There admittedly no declaration in it eq uatin~ the post of Deputy Chairman to that of Chief Secretary. Then we come to the order dated 29th June, 1972. This order is most eloquent. Jt abolished tl1e post of Deputy Chairman created under the order dated 6th June, 1972 and sanctioned the creation of a fresh post of Deputy Chairman "in the grade of First Member. Board of Revenu<'" Qn a pay of Rs. 3,000/- per nJonth and appointed Raja Ram, First Member, Board of Revenue to that post. Now it was not the c~e of the respondents that when the post of Deputy Chairman was tioned again by this order, there was any change in the nature and responsibilities of the functions and duties attached to the post of Deputy Chairman. These remained the same, namely, what they were when the post of Deputy Chairman was first created under the order dated 7th April, 1971 and then again under the order dated 6th June, 1972. If that be so, how could the .post of Deputy Chairman be declared to be equivalent in status and responsibility to the post of Chief Secretary at one time and to the post of First Member, Board of Revenue at another. The nature and responsibilities or the functions and duties remaining the same, the equivalence, which is a matter of objective assessment, could not vary from time to time. This dearly shows that the Government did not apply its mind and objectively determine the equivalence of the post of Deputy Chairman but gave it a rank or grade according as who was going to be appointed to it. That is in fact what the State Government bas categorically and in so many terms admitted in paragraphs 25(b) and 28 of itfi affidavit in reply : "Since Thiru M. G. Raja Ram was drawin~ only a salary of Rs. 3,000/- per month there was no option but to down grade the post" :-"With the recent appointment of Thiru M. G. Raja Ram as Deputy Chairman of the Planning Commission the post has been equated to that of the First Member, Board of Revenue". But thi~ is precisely what is impermissible. The status and responsibility of a non-cadre post for the purpose of determining equivalence cannot depend on who is going to occupy it. It is really the other way round. The equivaleace in status and responsibility determined on an C?hjective assessment of the nature and responsibilities of the functions and duties attached to the post should decide which officer should occup• it. It may be pointed out that, even if the order dated 7th April, 1971 be construed most liberally in favour of the State Government, which, in our opinion, should not be done when there ts a contest between a public servant and the State Government it did not contain a declm·ation of equivalence in regard to ''responsibility". There can, therefore. be no doubt that the appointment of the petitioner to the post of Deputy Chairman was in contravention of r. 9(1). But ~ cannot grant relief to the petitioner on this ground, because, as admitted by him in his letter dated 7th June, 1972 addressed to the socond respondent, he accepted the appointment without d~mur as he though that the post of Deputy Chairman "was of the same rank and carried the same emolnments as the post of Chief Secretary'' and actually stated in a chat with newsmen on 7th April. 1971 that ''he was lookiu~ forwaro with confidence to dischar~e the duties of the Deputy Chiarman. Planning Commission. which is considered a cbat· len¢ng task'', and he cannot now be permitted to chaUenJ!e the validity of th~ appoiutmcnt.

pp. 383–384

So far ·as the question of validity of the appointment to the post of Officer on Special Duty is concerned, ·weJhink that this appointment also suffers from the s~me infirmity. The ord'!r dated 26th June. 1972 first created the DOSt of Officer on Special Duty .. of the rank of Member, Board of Revenue", but on the next day, when it was decided to appoint the petitioner to that post, th~ order dated 26th June 1972 was modified by the order dated 27th June, 1972 and the p~st of Officer on Special Duty \Yas crea+ed ''in the grade of Chief Secretary". These two orders dated 26t~ June, 197_2 ~d 27th June, 1972 being of the same na~re and m almost 1denhcal words as the order dated 7th April, _1971, what we have said abO\rein regard to tne order dated 7th April, 1971 must apply equally in relation to these two orders dated 26th June, 1972 and 27th June, 1972. It is clear for reasons we hav~ already discussed while dealing with the ord~r dated 7th April, 1971, that in making these two orders dated 26th June, 1972 and 27th June 1972, the State Gov-ernment proceeded on the wrong assumption that 1~ c~n create a non-cadre post in the rank or grade of any cadre post 1t hkes, regardless of the nature and responsibilities of the functions and dutie~ ~t­ lached to such non-cadre post. The State Government first created the post of Officer on Special Duty in the rank of Member, Board of Revenue and on the very next day, because it was decided that the petitioner should be appointed to that post, converted it into one in the grade of Chief Secretary. This shows clearly that the State Government did not apply its mind and determine on an objective appraisal of the nature and responsibilities of the functions and duties attached to the post. of Officer on Special Duty whether it was equivalent in status and responsibility to the post ot Member, Board of Revenue or to the post of Chief Secretary. The nature and responsibilities of the functions and duties attached to the post of Officer on Special Duty could not change in a day and indeed it was not the case of the respondents that they changed at any time. If that be so, how could the post of Officer on Special Duty be declared to be equivalent in status and responsibility to the post of Member, Board of Revenue on one day and to the post of Chief !)ec(ctary, on th~ very next day. Either it was equivalent to the post of· Member, Board of Revenue or equivalent to the post of Chief Secretary. But it could not be equivalent to one post at ,one time and to aAotber post at another time, when the nature and responsibilities _of· the functions and duties attached to it remained the same. This . establishes beyond doubt that, in making the orders dated 26th June, 1972 and 27th June, 1972, the State Government did not apply its mind and objectively determine the equivalen~ of the post of Officer · on Special Duty, but gave it a rank or grade according as who was the officer going to be appointed to it. That is in fact what the State: ·Government clearly and in so many words admitted in paragraph 28 of its affidavit in reply : "-although the post of Officer on Special Duty was first created in the rank of Member Board Qf Reven\le with the appointment of the petitioner to that post, the status of that post was equated to that of the Chief Secretary". ThiS' is also borne out by the fact that when the petitioner went on leave, a Member of the Board of Revenue was appointed to discharge the functions of the post of Officer on Special Duty and that post was once again brou3ht down to the rank of Member, Board of Revenue. The order dated · 27th June, l 972 in any event did not contain any declaration as to equival~ce in "responsibility". There was thus no compliance with the requ1rement of r. 9, sub-r. ( 1) and the appointment of the petiti~mer to th~ po~t of Officer on Special Duty was accordingly be liable to be held mvahd for contraventiOn of that sub-rule. But we cannot in tnis petitiOn under Art. 32 gtve wiet to tne petttioner by sll'Lkln& d?wn. his appointment to the post of ~fficer on .special Duty, as mere violation of r. 9, sub-r. (1) does not mvolve mfringement of any fundamental right. We, however, hope that the State Government wiU. not drive the petitioner to take appropriate proceedings for ob· taining the nece&sary relief. ·

pp. 384–386, margin H

Th\: lust two grounds of challenge may be ta~en up together for considcnnicm. Though we have formulated the th1rd ground of clwl· lenge as a di~tinct and separate ground, it is really in sub~tance and ,effect merely an aspect oi the second ground based on violation oi Arts. 14 and 16. A~. 16 embodies the fundamental guarantee that .there shall be equality of opportunity for all citizens in matters relat· ing to employment appointment to any office under the State. Though enacted as a distinct and independent fundamental right be· cau.se ?f its ~eat importance as a principle ensurirrg equality of oppor· tumty m pubJtc e~pJ?yment. which i.s so vi~l to the building up of the new classless egahtanan soctety envtsaged m the Constitution Art. 16 . is -;niy ~n instance of the appJ.ication elf .the concept of equ~ity en- -~hrmed mArt. 14. In other words, Art. 14 is the genus while Art. 16 ~s a spectes, ~rt. 16. giv~s effect to the doctrine oi equality in all matters re~atmg to public employment The basic principle which, ther_efore,_mf_o~s ·?oth Arts. 14 ~d 16 .is equality and inhibition agamst dtscnmmauon. Now, what the content and reach of .this great equalising principle? It is a founding faith, to usc the words or l:i~se, ~.,-"a way of life", and it must not be subjected to a nar.row pedanttc or leXIcographic approach. We cannot oountenance any :attempt to truncate its all-embracing scope and meaning, for to . do so wuuld be to vic!ate its activist magnitude. Equality is a dynamic concept with many a~pects and dimensions and it cannot be "cribbed. cabioed and confined" within traditional and doctrinaire limits. From a po's\tivistic point of view, equality is antithetic to arbitrariness. In fa(;t. equali')' and arbitrariness are sworn enemies; one belongs to the rule ctf law· in a republic while the other, -o the whim and caprk:e of an absolute monarch. Where an act is arbitrary it is implicit in it that it is unequ.ll both according to political logic and constitutional iaw and is therefore violative of Art. 14, and if it affects any matter relati.ng·to J.Ublic employment, it is also violative of Art. 1.6. Arts. 14 and .lb strike at arbitrariness in State action and ensure fatmess and equa· lity elf treatment. They require that S~te .action ~us_t be _based or. valent relevant principles applicable alike to ~1 similarly stt?ate . and it must not be guided by any extraneous or rrrelevant _con~1deratron~ bectause that would be denial of equality. ";'here . the ~pcratiVe reason for State action, as distinguished from mottve mducmg fr~m the ·antechamber of -the mind, is not le&i;tUp.ate and. relev~nt bu~ 1s extra· . neous and cl\ltside the area of penmss1ble constderat10ns, It would .amount to mala fide exercise of power and that is hit by Arts. 14 and . t6. Ma"' fide e~ercise of power and .arbitr.ariness are different lethal .Yadiations emanating from the same m fact the latter compre- :-hends the former. Both are inhibited by Arts. 14 and 16.

p. 386, margin B

It is aJso necessary to point out that the ambit and reach of Arts. 14 and 16 are not limited to cases where the public servant affected has a right to .a post. Even if a p~blic servant is in au officiating position, he can complain of violation of Arts. 14 and)6 if he has been arbitrarily or unfairly treated or subjected to mala fide exercise of' .poWer by the State maqune. It is, therefore, no answer tc; the charg~ of infringetMnt of Arts. 14 and 16 to ~y that the petitioner had no. right to the ~t of. Chief Secretary but was merely officiathig in that post. 'Ibat.IDlght have some relevance to Art. 311 but not to Arts. 14. and 16. We must, therefore, prcpeed to consider whether the transfer of the petitioner first to the post of Deputy Chairman a.qd then to the· post of Officer on Special Duty was arbitrary, hostile and is rna' a fide exercise of power. What was the operative reason for such tran,:;fer;. was it the exigencies of public adnnnistration cr extra administrative considerations having no relevance to the question of transfer 1 Was the transfer to the post of Deputy Chairman or Officer on Special Duty so irratiQn.al or unjust that it could not have been made by any reasc.n- . able;administration except for colaterial reasons? These are the ques~. tions ·which call for our ~nsideration.

p. 387

Now, two important considerations must weigh with us in determining our approach to these questions. First, the post of Chief· Secretary is a highly sensitive post. It is a post of great confidence-a lynchpin in the administration and smooth functioning of the administration requires that there should be complete rapport and· undC"rstanding between the Chief Secretary , and the Chief Minister .. The Chief Minister as the head of the Government is m ultitnate· charge of the administration and it is. he who is politically answerable to the . people for the achievements and failnres of the Government. lf, therefore, for any valid reason the Chief · Secretary forfeits the. confidence of the Chief Minister, the Chief Minister ma:y legitimately, in the larger interests of administration, shift the Chief Secretary to· another ·post, provided of-course thtlt does· not i11volve violation of a~y of his kgal or constituflional rights. There can be no question in· S\lCb a case as to who is . right and who is wrong. The displacement ot the Chief Secretary from his post in such a case would not. be arbitrary .and it would not attract the inhibition of Arts. 14 and 16. It may,. however, be pointed out that such an a9tion would not, we ·think:, ordinarily be taken except for the most compelling reasons, because, · if resorted to without proper jtistification, it would tend to affect •he '{>()lilical neutrality of the public l)ervice and lead to demoralisation· and frustration amongst the public servants.

p. 387, margin C

Secondly, with the vast multitudinous activities in which a moderR· State is engaged, there are bound to ~ some posts which require fOradequate discharge of their functions, high (Iegree of intelleet · and · · specialised experience. It' is ·atw11ys a difficult problem for the Govern~ men~ to. 1jnd · suitable- officers for such speeialised posts. There il.re not ·

p. 387, margin G

ordi11arilv · many offioers who answer· the requirements of such s"""'a-· 11' · . Ji$ed . po~ts and· the cb.oi~ with the Government is very limit.ed'Md tbis choice becomes all the more diffioult, because some of these posts, though · impertant and having onerous responsibilities, do not carrywide executive powers and officers may not, therefore, generally be witling to be transfeqed to those posts. Tbe Government has in the circumstances to make the best possible choice it can, keeping in view the larger interests of the administration. When, in exercise of this choice, the Government transfers an officer from one post to another, the officer may feel unhappy because the new posts does not give him the same amplitude of powers which he had while holding the old. pOilt. But that does not make the transfer arbitrary. So long the transfer is made on account of the exigencies of administration and· is not from a higher post to a lower post with discriminatory preference of a junior for the higher post, it would be valid and not to attack under Arts. 14 and 16.

pp. 387–388, margin G

Now, here the post of Chief Secretary was adinittedly a selection poit and after careful examination of the merits of the senior moiit ·c1even officers of the Tamil Nadu Cadre of the Indian Administrative Service, tho second respondent selected the petitioner for the post of Otief Secretary. The petitioner worked as Chief Secretary from 14th November, 1969 up to 6th April, 1911 and evidently during this period he acquitted himself creditably. It was not the case of either of the respondents that the petitioner was not found equal to the task -or that his work was not satisfactory. In fact the affidavit in reply filed on behalf of the first respondent clearly indicates that the petitioner discharged the duties of his office efficiently and to the satisfaction of every one concerned. Yet the petitioner was transferred first to the post of Deputy Chairman and then to the postof Offieer ·on Special Duty and in his place Sabanayagam, who was admittddty junior to him, was not only promoted but also confirmed. The result of confirmation of Sabanayagam as Chief Secretary was that the petitiol\er, though senior and proved competent, was permanently excluded from the post of Chief Secretary. This clearly shows, contended the petitioner, that his trarisfer first to the post of Deputy Chairman and then to the post of Officer on Special Duty was not on account of administrative reasons but solely to displace him from the key post of Chief Secretary. That perhaps might have been legally and constitutionally unobjectionable, if the post of Deputy Chairman and Officer on Special Duty . were of the same status and responsibility as the post of Chief Secretary, but the argument of the petitioner was that neither of these two posts could be regarded as of equal statw and· responsibility as. the post of Chief Secretary because the post of Ch:ef Secretary is always a unique and unrivalled post in the State administration. The transfer of the petitioner from the post of Chief S.:cretary first to the post of Deputy Chairman and then to the post of Officer on Special Duty coupled with the promotion and confirmation of Sabanayagam in the post of Chief Secretary was, therefore, clearly arbitrary and violative of Arts. 14 and 16. This contention, plausible though it may seem, cannot be accepted by us, because there is no adequate material placed before us to sustain it. Th.e premi~·~ on which this contention is founded is that the posts of Deputy Chairman and Offl,cer on Special Duty were not of the same status and respollSibility as the post of Chief Secretary, but we cannot say on the material on 1·ecord that the validity of the premise has been established by the peli~ioner. So far as the post of Deputy Chairman is concerned, the petitioner himself accepted that post as being of the same status and reiponsibility as the post of Chief Secretary and did ·not raise any objection against it and we need not, therefore, say anything more about it. The only question is as to the post of Officer otl Special Duty. We think that this post ~as not been satisfactorily established by the petitioner to be inferior in status and responsibility to the post.of Chief Secretary. This of~urse does not mean, and we are not prepared to go as far as the learned Chief Justice in asserting positively that that post was equal in status responsibility to the post of Chief Secretary. The fact that sales tax accounts for a very large · 'egment of the revenues of the State and it runs into about 120 crores of x:upees does not necessarily make the post of Officer ~n Special Duty equal in status and responsibility to that of the Olief Secretary. What has to. be seen for equivalence is the status and the nature and responsibility of the duties attached to the two posts. Merely giving the salary of one post to the other does not make for equivalence. We are, therefore, not prepared to accept the th.esis that the post of Officer on Special duty was equal in status and responsibility to the post of Chief.Secretary as claimed by the respondents. We entertain serious doubts. about it. But equally it is not possible for us to hold it established on the material on record that this post was inferior in status and ·responsibility to the post of Chi~f Secretary, though prima facie it does appear to be so. We cannot, therefore, say that the petitioner was arbitrarily or unfairly treated or that equality was denied to him when he was transferred from the post of Chief Secretary and in his place Sabanayagam, his junior, was promoted and confirmed. The challenge base.rl on Arts. 14 and 16 must therefore fail.

pp. 388–389, margin B

We may now turn to the ground of challenge based on mala fide exercise of power. The petitioner set out in the petition various incidents in the course of administration where he crossed the path of the second respondent and incurred his wrath by inconn~nient and uncompromising acts and notings and co_ntended that the second. respondent, therefore, nursed hostility and malus animus against the petitioner and it was for this reason and not on account of exigencies of administration that the petitioner was transferred from the post of Chief Secretary. The incidents referred to by the petitioner, if true. constituted gross acts of mal-administration and the charge levelled against the second respondent was that because the petitioner in the course of his duties obstructed and thwarted the second r~spondent in the'e acts of mal-administration, that the second respondent was annoyed with him and it was with a view to putting him out of the way and at the same time deflating him that the second respondent transferred him from the post of Chief Secretary. The transfer of the pctition.er was, therefore, in mala fide exercise of power and accordingly invalid .

p. 389, margin B

. Now, when we examine this contention·we must bear in mind two important ·considerations. In th~ first place, we must make it clear, deij)ite a, very strenuous argunient to the contrary, that we are not called upon to investigate into acts of maladministration by the political Government headed by the second respondent. It is not within O'\! province to embark on a far ftung inquiry into acts of commission and omission charged against the second respondent in the administration of the affairs of Tamil Nadu. That is not the scope of the inquiry before us and we must ~ecline to enter upon any such inquiry. It is one thing to say that the second respondent was guilty of misrule and another to say t_h.at he had malus eJ;imus against the petitioner which was the operative cause of the displacement of the petitioner from the ·post of Chief Secretary. We are concerned only with the lattedimited issue, not with the former popular issue. We cannot permit the petitioner to side track the issue and escape the burden of establishing hostility and malus enimus on the part of the second respondent by diverting our attention to incidents of suspicious exercise of executive power. That would be nothing short of drawing a red herring across the trail. The only question before us is whether the action taken by the respondents includes any component of mala fides whether hostility and malus enimus against the petitioner were the operational cause of the transfer of the petitioner from the post of Chief Secretary.

pp. 389–390, margin G

Secondly, we mm:t not also overlook that the burden of elitablishing mala fides in very heavy on the person who alleges it. The allegations of mala fides are often more easily made than proved, anc! the very seriousness of such allegations demands proof of a high order of credibility. Here the petitioner, who was himself once the Chief Secretary, has flung a series of charges of oblique conduct against the Chief Minister. That is in itself a rather extra-ordinary and unusual occ.urrence and if these charges are true, th~y are bound to shake the confidence of the people in the political custodians of power in the State, and therefore, the anxiety of the Court should be all the greater to insist on a high degree of proof. In this context it may be noted that top administrators are often requjred to do acts which affect others adversely but which are necessary in the execution of their duties. These acts may land themselves to misconstruction and suspicion as to the bona fide of their author when the full facts . and surroul\ding circumstances are not known. The Court would, therefor~. be slow to draw dubious inferances from incomplete facts placed before it by. a party, particularly when the imputations are grave and they are made against the holder of an office which has a high responsibility in the administration. Such is the judicial perspective in evaluating charges of unworthy conduct against ministers and other high authorities, not because of any special status which they are supposed to enjoy, nor because they are highly placed in social life or administrative set upth~se conSiderations are wholly irrelevant in judicial approach-but because otherwise, functioning effectively would become difficult in ·a democracy. It is from this stand point that we must assess that merits or the.allegations of mala fides made by the petitioner against the second respondent.

p. 390, margin C

Now extensive arguments were addressed before us by counsel on both sides and we were taken throug~ a mass ·of documents, papers and official notings on this part of the case but we are afraid it is not possible for us to say that the onus of establishing mala {Uks asainst the second respondent, heavy as it is, has been discharged by the peti- .tioner. The allegations of mala fides have been dealt with fully in the judgment of the learned Chief Justice and we do not think it will serve any useful purpose for us to discuss the merits of those alfegations once again in this judgment, as we are substantially in agreement with what the learned Chief Justice 'has said. But we cannot help men~ tioning that there are certain disturbing · features which cause us anxiety. We may take by way of example the imputation in regard to the Coom River Project. It seems that in or about the beginning of February 1970 the second respondent asked the Director of Vigilance to look into the affairs relating to Coom Improvement Project as he apprehended that there were certain mal·practices in the execution of that scheme. Whether this was done by the second respondent on his own initiative or at the instance of the petitioner is immaterial and we need not go into that controversy. The Director of Vigilance, as his subsequent letter dated 25th February, 1970 shows, informed the second respondent that without a discreet inquiry it . would oot be possible to allay or confirm the apprehensions with any degree ci credibility since the head ~ the concerned engineering department was personally involved in the execution of the scheme and he accordingly by that letter pointed out to the petitioner that he needed authorisation to embark on the inquiry and Government order in that behalf should therefore be obtained and communicated to him. The peti~ tioner made an endorsement on this letter on the very next day with a remark that the Public (Secret/Confidential) Department should deal with it immediately. The Public (Secret/Confidential) Department prepared a note at the foot of the letter and submitted it for circulation to the Minister for Works and the second respondent for orders whether the Director of Vigilance should be requested to mako a discreet inquiry and send his report. The endorsement made below the note shows that it was submitted for circulation on 3n1 March, 1970. It appears, however, that this note remained unattended until the middle of September 1970. On 12th September, 1970 the Minister for Works made an endorsement that the Director of Vigilance may make a discreet inquiry and this endorsement was. approved by tho second respondent on 20th September, 1970. The file containingj the note together with the endorsements of the Minister for works and the second respondent was thereafter placed before the petitioner along with a draft of the memorandum to be addressed by the petitioner to the Director of Vigilance. It is common ground that no memorariduni in terms of this draft was issued by the petitioner to the Director of Vigilance. The case of the petitioner was that he did not do so because the second respondent subsequently ordered that no inquiry need be made in this matter. This position was disputed by the second respondent who stated that to the best of his recollection he did not make any such order cancelling the inquiry. That is a matter of con~ trcversy between the parties and as pointed out above it does rtot fall within our province to investigate it. But the fact remains, and that cannot be disputed, that no inquiry thereafter took place in the affairs of the Coom Improvement Scheme. It is a little interesting to note that Sabanayagam addressed a letter dated 31st July, 1971 to the petitioner stating that though the Personal Assistatlt to the Chief Secretary ' had been reminded to send back the file relating to this matter, it had not been received and the petitioner should arrange to send it back, 13-L522 SCI/74 . i if it was with him. The petitioner immediately replied to this letter 8th August, 1971 pointing out that he distinctly. remembered that second respondent had subsequently ordered that no inquiry n~ej made in this matter and the file was not with him. It is significant that though the petitioner stated categorically that the second respondent had subsequently ordered that no inquiry need be made, Sabaaayagam did not write back challenging- the correctness of _this statement." The file pertaining to this matter was all throughout in the possession of Government and even after the petitioner pointed out that it was with him, curiously enough, it could not be traced until the filing the petition. In fact, the absence of the file could not have stood in way of ordering an inquiry. These and a few other circumstan.ces ~reate suspicion but suspicion cannot take the place of proof and, as pointed out above, proof needed here is high degree of proof. We cannot say that evidence generating judicial certitude in up-holding the plea of mala fides has been placed before us in the present cas~. must, therefore, reject this contention of the petitioner as well.

pp. 390–392, margin F

We accordingly dismiss the petition with no order as to costs. K.B.N. Petition dismissed.

p. 392, margin C

· - ~

p. 392, margin C