NAME OF THE COURT: The Supreme Court of India
PETITIONER: E.P Royappa
RESPONDENTS: State of Tamil Nadu and Anr.
DATE OF JUDGEMENT: 23/11/1973
BENCH: RAY, A.N. (CJ), PALEKAR, D.G, CHANDRACHUD, Y.V, BHAGWATI, P.N, KRISHNAIYER, V.R.
· The petitioner is a member of the Indian Administrative Service in the cadre of the State of Tamil Nadu. On 11 July, 1969 the post of Additional Chief Secretary was temproraily created in the grade of Chief, Secretary for one year. On 11 July, 1969 the petitioner was posted to act as Additional Chief Secretary.
· In November, 1969, when the post of Chief Secretary to the State fell vacant the petitioner, as the best suited, was selected for the post.
· On the recommendation of the State Government that the posts of Chief Secretary and First Member of the Board of Revenue should be deemed to be in the same category and should be inter-changeable selection posts the Central Government by notification dated January 14, 1970 provided that the pay of First Member, Board of Revenue was to be the same as that of the Chief Secretary. The post of First Member Board of Revenue was thus equated to that of the Chief Secretary in rank and status.
· By notification dated August 31, 1970 the Government of India enhanced the pay, rank and status of the Post of Chief Secretary to that of the Secretary to the Government of India and that post was raised above every other cadre post in the State including the post of First Member, Board of Revenue.
· On April 17. 1971 the State Government accorded sanction to the creation of a temporary post of Deputy Chairman in the State Planning Commission in the grade of Chief Secretary for a period of one year and appointed the petitioner to that post providing that he shall be entitled to the same rank and emoluments as admissible to the post of Chief Secretary. The petitioner did not join this post and went on leave.
· On the petitioner’s return from leave the post of Deputy Chairman was again created for a period of one year in the grade of the Chief Secretary and the petitioner was appointed to that post. Against this the petitioner made a representation that the continuance of the post of Deputy Chairman in the rank of Chief Secretary for a period of more than one year would be invalid under r. 4(2) of the Indian Administrative Service (Cadre) Rules, 1954.
· Next the State Government created a temporary post of officer on Special Duty for streamlining and rationalising the Sales Tax Act , “in the grade of Chief Secretary to the Government and appointed the petitioner to that post”. He did not join this post too and proceeded on leave. After the petitioner was transferred from the post of Deputy Chairman Planning Commission and appointed Officer on Special Duty for revision of Sales Tax laws the State Government abolished the post of Deputy Chairman sanctioned under the earlier order and sanctioned the creation of a new post of Deputy Chairman in the Grade of First Member. Board of Revenue” on a pay of Rs. 3000/- per month and appointed a First Member of the Board of Revenue to that post. Besides, on the transfer of the petitioner from the post of Chief Secretary a person who was admittedly junior to-the petitioner was promoted as Chief Secretary and was confirmed in that post.
· The petitioner filed a petition under Art. 32 of the Constitution challenging the validity of his transfer from the post of Chief Secretary, first to the post of Deputy Chairman State Planning Commission and then to the post of officer on Special Duty.
1. Whether the transfers of petitioner from his job posts to other job posts were contrary to the provisio to r.4(2) of the Indian Administrative Service (Cadre) Rules, 1954 and r.9[sub-r.(1)] of the Indian Administrative (Pay) Rules, 1954?
2. Whether it was violative of Article 14 and Article 16 of the Constitution of India?
3. Whether the respondents act in a malafide manner in transferring the petitioner from his post?
CONTENTIONS OF THE PETITIONER:
Petitioner’s main contentions were:
a) 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;
b) It was violative of Arts. 14 and 16 of the Constitution as the posts of Deputy Chairman, State Planning Commission and Officer on Special Duty were inferior in rank and status to that of Chief Secretary; and
c) That it was made in mala fide exercise of power, not on account of exigencies of administration or public service, but because the second respondent (Chief Minister of Tamil Nadu) was annoyed with the petitioner on account of various incidents referred to in the petition and wanted him out of the way.
CONTENTIONS OF THE RESPONDENTS:
Respondents’ main contentions were:
a) That the petitioner was appointed in an, officiating capacity to the post of Chief Secretary and reliance was placed on Fundamental Rule 9(19). Under that Rule a Government servant officiates in a post when he perform the duties of a post on which another person holds a lien or the Government may, if it thinks fit, appoint a Government servant to officiate in a vacant post on which no other Government servant holds a lien.
b) The respondents contended that no action has been taken by respondent number 2 under haste and with malafide intention, hence, the argument of petitioner is baseless.
1. Ray, CJ. speaking for himself and Palekar, J. said that the proviso, merely confers limited authority on the State Government to make temporary addition to the cadre for a period not exceeding the limit therein specified. The second proviso to r. 4(2) of the Cadre Rules does not confer any power on the State Government to alter the strength and composition of the Cadre. The meaning of the second proviso to r. 4(2) is that the State Government may add to the cadre for the period mentioned there one or more posts carrying duties and responsibilities of the like nature of a cadre post.
2. Again Ray, CJ on behalf of himself and Palekar, J contented that the real significance of Rule 9 of the Indian Administrative Service (Pay) Rules is that members of Cadre posts cannot be deployed to non-cadre posts unless posts are of a caliber which can be filled up by cadre men. The purpose of the declaration that the post is equivalent in status and responsibility to post specified in the schedule to the Indian Administrative Service (Pay) Rules is to ensure that members of the cadre are not taken to posts beneath their status and responsibility.
3. Bhagwati, J speaking for himself and Chandrachud and Krishna Iyer, JJ said that the making of a declaration setting out which is the cadre post to which a non-cadre post is equivalent is sine qua non of the exercise of the power under sub-r. (1) of r. 9 of the Indian Administrative Service (Pay) Rules, 1954. [381C-D]. The determination of equivalence is therefore a condition precedent before a member of the Indian Administrative Service can be appointed to a non-cadre post under sub-rule (1). The government must apply its mind to the nature and responsibilities of the functions and duties attached to the non-cadre post and determine the equivalence. Where it appears to the Court that the declaration of’ equivalence is made without application of mind to the nature and responsibilities of the functions and duties attached to the non-cadre post or that extraneous or irrelevant factors are taken into account in determining the equivalence or that the nature and responsibilities of the functions and duties of the two posts are’ so dissimilar that no reasonable man can possibly say that they are equivalent in status and responsibility, or that the decision of equivalence is mala fide or in colorable exercise of power the court can and certainly would set at naught the declaration of equivalence and afford protection to the civil servant.
4. Bhagwati, J observed that though enacted as a distinct and independent fundamental right because of its great importance as a principle ensuring equality of opportunity in public employment which is so vital to the building up of the new classless egalitarian society envisaged in the Constitution, Art. 16 is only an instance of the application of the concept of equality enshrined in Art. 14. In other words, Art. 14 is the genus while Art 16 is a species, Art. 16 gives effect to the doctrine of equality in all matters relating to public employment. The basic principle which, therefore, informs both Arts. 14 and 16 is equality and inhibition against discrimination.
5. Bhagwati, J observed the following golden words due to which the impugned case became a landmark judgement. A new approach for interpreting Article 14 was formulated by the effect of these words spoken by him. The words were as follows; Equality is a dynamic concept with many aspects and dimensions and it cannot be “cribbed cabined and confined” within the traditional and doctrinaire limits. From a positivistic point of view, equality is antithetic to arbitrariness. In fact equality and arbitrariness are sworn enemies; one belongs to the rule of law in a republic while the other, to the whim and caprice of an absolute monarch. Where an act is arbitrary it is implicit in it that it is unequal both according to political logic and constitutional law and is therefore violative of Art. 14, and if it affects any matter relating to public employment, it is also violative of Art. 16. Arts. 14 and 16 strike at arbitrariness in State action an ensure fairness and equality of treatment. They require that State action must be based on valent relevant principles applicable alike to all similarly situate and it must not be guided by any extraneous or irrelevant considerations because that would be denial of equality.
6. Bhagwati, J again observed for himself and Chandrachud and Krishna Iyer, JJ that Mala fide exercise of Power and arbitrariness are different lethal radiations emanating from the same vice: in fact the matter comprehends the former. Both are inhibited by Arts. 14 and 16. It is also necessary to point out that the ambit and reach of Arts. 14 and 16 are not limited to cases where the public servant affected has a right to a post. Even if a public servant is in an officiating position, he can complain of violation of Arts. 14 and 16 if he has been. arbitrarily or unfairly treated or subjected to mala fide exercise of power by the State machine. It is, therefore, no answer to the charge of infringement of Arts ‘ 14 and 16 to say that the petitioner had no right to the post of Chief Secretary but was merely officiating in that post.
7. Bhagwati, J said that we must make it clear, despite a very strenuous argument to the contrary, that we are not called upon to investigate into acts of maladministration by the political Government headed by the second respondent. It is not within our province to embark on a far flung inquiry into acts of commission and ommission charged against the second respondent in the administration of the affairs of Tamil Nadu. That is not the scope of the inquiry before us and we must decline to enter upon any such inquiry. It is one thing to say that the second respondent was guilty of misrule and another to say that he had malus enimus against the petitioner which was the operative cause of the displacement of the petitioner from the post of Chief Secretary. We are concerned only with the latter limited issue, not with the former popular issue.
1. Bhagwati, J for himself and Chandrachud and Krishna Iyer, JJ held that the promotion of petitioner as Chief Secretary was only in an acting or officiating capacity and not in a substantive capacity. The draft order does not say whether the promotion is in a substantive capacity or in an officiating capacity. It is the authenticated order which says for the first time clearly and definitely by using the words “to act” that the promotion is in and officiating capacity. The authenticated order correctly reflects the final decision of the State Government. There is, thus no inconsistency between the draft order and authenticated order from which any error can be spelt out in the authenticated order.
This view was further strengthen by the judgement given by Ray, CJ on behalf of himself and Palekar, J that the previous incumbent in the post of Chief Secretary held his lien on the post until the date of his actual retirement. 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. Therefore, the petitioner did not have any right to hold the post of Chief Secretary.
2. Bhagwati, J speaking for himself and Chandrachud and Krishna Iyer, JJ held that the State of Tamil Nadu could not add the posts of Deputy Chairman. State Planning Commission and Officer on Special Duty under the second proviso, as these posts did not exist in the Cadre as constituted by the Central Government. They were new categories of posts created by the State Government.
Ray, CJ held that 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 Cadre Rules.
3. Bhagwati, J held that the post of Deputy Chairman cannot be declared equivalent in status and responsibility to the post of Chief Secretary at one time and to the post of First Member Board of Revenue at another. This clearly shows that the Government did not apply its mind and objectively determine the equivalence of the post of Deputy Chairman, but, gave it a rank or grade according as who was going to be appointed to it. But the petitioner cannot now be permitted to challenge the validity of the appointment since in the letter dated June 7. 1972 addressed to the second respondent-he accepted the appointment without demur as he thought that the post of Deputy Chairman “was of the same rank and carried the same emoluments as the post of Chief Secretary”. Similarly in making the orders dated June 26, 1972 and. June 27, 1972 the State Government did not apply its mind and objectively determine the equivalence of the post of Officer on Special Duty, but gave it a rank or grade according as who was the officer going to be appointed to it. There was thus no compliance with the requirement of r. 9 sub r.(1). But the petitioner cannot get relief in a petition under Art. 32 since mere violation of r. 9 sub. r. (1) does not involve infringement of any fundamental right.
4. Bhagwati, J held that the contention that the transfer of the petitioner from the post of Chief Secretary first to the post of Deputy Chairman and then to the post of Officer on Special Duty coupled with the promotion and confirmation of a person junior to the petitioner in the post of Chief Secretary was arbitrary and violative of Arts. 14 and 16, though it may seem plausible, cannot be accepted, because, there is no adequate material to sustain it. So far as the post of Deputy Chairman is concerned the petitioner himself accepted that post as being of the same status and responsibility as the post of Chief Secretary. Even though it is not possible to accept the thesis that the post of officer on special duty was equal in status and responsibility to that of the Chief Secretary, equally, it is not possible to hold it established on the material on record that this post was inferior in status and responsibility to the post of Chief Secretary, though prima facie it does appear to be so. The challenge based on Arts. 14 and 16 must therefore, fail.
5. Bhagwati, J held that the burden of establishing mala fides is very heavy on the person who alleges it. The onus of establishing mala fides against the second respondent has not been discharged by the petitioner. The Court would be slow to draw dubious inferences from incomplete facts placed before it by a party, particularly when the imputations are grave and they are made against the holder of an office which has a high responsibility in the administration. The entire affidavit evidence establishes beyond any measure of doubt that the petitioner’s allegations imputing mala fides against the Chief Minister are baseless. The allegations of mala fides are not contemporaneous but after thoughts at a distance of one year. The petitioner’s allegations are in aid of suggesting vindictiveness and vengeance on the part of the Chief Minister. Facts and circumstances repel any such insinuation and innuendo.
6. In view of the above observations and findings the petition was rejected.
PRESENT STATUS OF JUDGEMENT
The verdict pass by the honourable justices in this case is still considered as a good judgement in law and thus it is still applicable. Not only the verdict but also the opinions of the justices in this case on Articles 14 and 16 of the Constitution of India hold a very a special and important place in the history of Indian jurisprudence.
Author Details: Devansh Garg (Vivekananda Institute of Professional Studies)
The views of the author are personal only. (if any)