E.P. Royappa v. State of Tamil Nadu

A senior IAS officer, removed from the post of Chief Secretary of Tamil Nadu, asked the Supreme Court to undo his transfers. The Court dismissed his petition. Justice Bhagwati's separate opinion also explained equality under Articles 14 and 16 as the enemy of arbitrariness. The judgment has no numbered paragraphs, so the page cites the judge's opinion.

Quick Revision

Parties

E.P. Royappa — petitioner. A member of the Indian Administrative Service in the Tamil Nadu cadre, he acted as Chief Secretary and was then moved to other posts.

State of Tamil Nadu — first respondent. It made the orders of transfer and defended them.

Chief Minister of Tamil Nadu — second respondent. The petitioner said he acted with hostility and mala fides.

Intervener — appeared through counsel. The judgment does not name this party or state its position.

C.A. Ramakrishnan — not a party. He was the Chief Secretary, an Indian Civil Service officer, who retired in November 1969.

Sabanayagam — not a party. He was junior to the petitioner and was promoted and confirmed as Chief Secretary.

M.G. Raja Ram — not a party. He was the First Member, Board of Revenue, and was placed in charge of the Deputy Chairman's post.

Procedural History

1. The petitioner filed Writ Petition No. 284 of 1972 in the Supreme Court in July 1972. It was filed under Article 32 of the Constitution in the Court's original jurisdiction, for enforcement of fundamental rights.
2. He asked for a writ of mandamus (an order directing a public authority to act), or another suitable writ, direction or order. He wanted the respondents to withdraw and cancel the order of 27 June 1972. He also asked for a direction to re-post him as Chief Secretary.
3. The respondents were the State of Tamil Nadu and the Chief Minister of Tamil Nadu.
4. A Constitution Bench heard the petition. Counsel appeared for the petitioner, both respondents and an intervener.
5. The judgment of A.N. Ray, C.J. and D.G. Palekar, J. was delivered by Ray, C.J. Bhagwati, J. delivered a separate opinion for himself, Chandrachud and Krishna Iyer, JJ.
6. Both opinions dismissed the petition. The Court recorded: Petition dismissed.

Facts

The facts below are taken from both opinions, in date order.

1. 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 Tamil Nadu. He was No. 4 in that list.
2. He was posted to act as Fifth Member, Board of Revenue on 25 February 1964, as Fourth Member on 5 August 1965 and as Third Member on 30 March 1966. On 5 April 1969 he was posted to act as Second Member, Board of Revenue.
3. On 11 July 1969 the State created a temporary post of Additional Chief Secretary for one year in the grade of Chief Secretary. It directed that the posts of Chief Secretary, Additional Chief Secretary and First Member, Board of Revenue were in the same category and interchangeable selection posts.
4. The petitioner was posted to act as Additional Chief Secretary under that order.
5. Under Schedule III-A of the IAS (Pay) Rules, 1954, the Chief Secretary carried pay of Rs. 3,000 and the First Member, Board of Revenue Rs. 2,750.
6. On 7 August 1969 the State asked the Centre to amend Schedule III-A so that all three posts carried the same pay of Rs. 3,000.
7. By letter of 26 September 1969 the Centre said the Chief Secretary's status as head of the Secretariat should stay unquestioned. It said that status should not be diluted by an Additional Chief Secretary on the same emoluments. It said the post of Additional Chief Secretary was not a cadre post.
8. The Centre suggested that the State could add the post of Additional Secretary to the cadre temporarily for one year on pay of Rs. 2,750 or a smaller scale, but not on Rs. 3,000.
9. The Centre agreed that the First Member, Board of Revenue should carry the same pay as the Chief Secretary. By notification of 14 January 1970, issued under rule 11 of the IAS (Pay) Rules and effective from 17 December 1969, it set that pay at Rs. 3,000. The First Member's post was thus equated to the Chief Secretary's in rank and status, but the Additional Chief Secretary's post was not.
10. Chief Secretary C.A. Ramakrishnan, an Indian Civil Service officer, completed 35 years' service and was due to retire in November 1969. The file was put before the Chief Minister, with a list of eleven senior officers, on 30 October 1969.
11. The Chief Minister's note of 12 November 1969 said the Chief Secretary's post is a selection post. It said merit, not seniority alone, should decide. He compared the eleven officers. He recorded that the petitioner was the best suited for the post.
12. The field narrowed to Mani and the petitioner. The petitioner was No. 10 on the list and Ramakrishnan No. 1. Kaiwar was also retiring in November 1969. Subramanyam and Govindan Nair were Secretaries to the Government of India. Vaidyanathan, Ramchandran and Raman were serving at the Centre. Rajaram had left the cadre in 1960 and was Special Representative in 1969.
13. The note said Mani, the officer at No. 4, had worked unsatisfactorily in the 1967 flood relief operations and had drawn public and press criticism. The petitioner was described by his superiors as dynamic, efficient and vigorous.
14. The Governor approved the note on 12 November 1969. On 13 November 1969 a draft order was approved by the Chief Minister. It said the petitioner is promoted and posted as Chief Secretary in place of Ramakrishnan, retiring from service from the afternoon of 13 November 1969.
15. The final order, issued the same day in the Governor's name and authenticated by the Chief Secretary, read differently. Its paragraph 5 said the petitioner is "promoted and posted to act as Chief Secretary to Government" vice Ramakrishnan. It said Ramakrishnan had been granted refused leave from 14 November 1969.
16. Ramakrishnan was granted refused leave for four months from 14 November 1969 under Fundamental Rule 86(a). He completed 35 years' service on 14 November 1969 under Fundamental Rule 56(f).
17. On 1 April 1970 the Government of India proposed to equate the Chief Secretary's pay to that of a Secretary to the Government of India. Tamil Nadu agreed and asked that the First Member's post be upgraded too. The Centre refused that request.
18. By notification of 31 August 1970 the Centre raised the Chief Secretary's pay from Rs. 3,000 to Rs. 3,500. The post was thereby raised above every other cadre post in the State, including First Member, Board of Revenue.
19. On 16 November 1970 the petitioner signed, as acting Chief Secretary, a note that the post had fallen vacant substantively from 14 March 1970. It asked whether there was any objection to confirming him. No order was passed on that note.
20. Elections to Parliament and the State Legislature were held in the first week of March 1971. Results were declared on 11 March 1971. The DMK, under the second respondent, kept its majority and formed the Government.
21. The petitioner said he had earned the Chief Minister's displeasure on many matters before and during the elections while acting as Chief Secretary. He said the Chief Minister therefore decided to remove him.
22. At a press conference at mid-night on 6 April 1971 the Chief Minister announced that the petitioner was appointed Deputy Chairman of the State Planning Commission. The petitioner learned of it from the newspapers on 7 April 1971.
23. By order of 7 April 1971 the State created a temporary post of Deputy Chairman, State Planning Commission, in the grade of Chief Secretary for one year. It appointed the petitioner to it with the same rank and emoluments as the Chief Secretary. The Planning Commission was not yet in existence, though its creation had been under consideration for some time.
24. The petitioner did not join. He went on leave from 13 April 1971 (the leave was renewed) up to 5 June 1972.
25. The State Planning Commission was constituted on 25 May 1971. An order of 18 August 1971 (19 August in Bhagwati, J.'s opinion) deemed the Deputy Chairman's post sanctioned for a year from 13 April 1971 and placed Raja Ram, First Member, Board of Revenue, in charge of it until further orders. The post lapsed on 13 April 1972 and was not continued until 6 June 1972.
26. The petitioner returned from leave on 6 June 1972. By order of that date the post of Deputy Chairman was sanctioned again on pay of Rs. 3,500 per month for one year, and he was appointed. This order did not mention the grade of Chief Secretary. He did not join.
27. On 7 June 1972 he represented that continuing the Deputy Chairman's post in the rank of Chief Secretary for more than a year would be invalid under rule 4(2) of the IAS (Cadre) Rules, 1954, without Central approval. The judgment says he also pointed out that the post had ceased to exist after 13 April 1972.
28. By order of 26 June 1972 the State sanctioned a temporary post of Officer on Special Duty of the rank of Member, Board of Revenue for a year, to streamline and rationalise the Tamil Nadu General Sales Tax Act and similar enactments. The judgment elsewhere calls it a post of Special Officer for Commercial Taxes.
29. On 27 June 1972 the order was modified. The post became one in the grade of Chief Secretary to Government, for one year or until the need ceased, and the petitioner was appointed to it. He did not join and went on long leave.
30. On 29 June 1972 the State abolished the Deputy Chairman's post created on 6 June 1972. It created a new post in the grade of First Member, Board of Revenue on pay of Rs. 3,000 and appointed Raja Ram to it in addition to his own post.
31. When the petitioner went on leave, a Member of the Board of Revenue discharged the Officer on Special Duty's functions. The Advocate General said so in answer to the Court.
32. When the petitioner was moved from the Chief Secretary's post, Sabanayagam, admittedly junior to him, was promoted Chief Secretary. The Court was told he had been confirmed.
33. The petitioner filed the present petition in July 1972.

Issues Raised

The judgment sets out four contentions, which Ray, C.J. lists as four, and Bhagwati, J. regroups as three grounds plus a preliminary question.

1. Was the petitioner appointed substantively, or only in an acting capacity, to the post of Chief Secretary?
2. Was the petitioner transferred to a post not validly created, because the Deputy Chairman's and Officer on Special Duty's posts were not posts of a like nature to cadre posts under rule 4 of the IAS (Cadre) Rules, 1954?
3. Did the transfers breach rule 9(1) of the IAS (Pay) Rules, 1954, because no declaration was made that the two posts were equivalent in status and responsibility to a post in Schedule III?
4. Did the transfer to posts inferior in status and responsibility, together with the promotion and confirmation of a junior as Chief Secretary, amount to hostile discrimination and violate Articles 14 and 16?
5. Were the creation of the posts, and the appointment and transfer of the petitioner, made mala fide by the Chief Minister, out of hostility and not because of administrative exigencies?
6. Could the petitioner get relief under Article 32 for a violation of rule 9(1) that does not infringe a fundamental right?

Arguments Contended

The reported opinions record the contentions as follows.

For the petitioner (E.P. Royappa)

1. He was appointed substantively to the post of Chief Secretary. He relied on the draft order approved by the Chief Minister and the Governor, and on the Chief Minister's note. Neither said he was promoted in an acting capacity.
2. The words to act in the authenticated order (an order signed by an authorised officer to show it is genuine) qualified only posted, not promoted. They meant only that he was posted to function as Chief Secretary.
3. If to act did make the promotion an acting one, the authenticated order did not correctly record the State's real decision. That decision was in the draft order, which must prevail.
4. He relied on Fundamental Rules 56(f) and 86(c). He said Ramakrishnan held no lien (a right to hold a post) on his post after retirement, so the post fell vacant. The point was repeated for Fundamental Rule 9(19), which defines officiating (acting in a post without holding it substantively).
5. The post of Officer on Special Duty was not a post carrying duties and responsibilities of a like nature to cadre posts under rule 4 of the IAS (Cadre) Rules, 1954. The two posts were not validly created.
6. Under rule 9 of the IAS (Pay) Rules, 1954, no member of the Service may be appointed to a post outside Schedule III unless the Government declares that post equivalent in status and responsibility to a scheduled post. As a cadre post holder, he could not be posted to a non-scheduled post without that declaration.
7. A declaration in writing was needed, just as rule 9(4) requires written reasons where equation is not possible. He argued that one is a positive declaration and the other a negative one.
8. The posts were upgraded or downgraded according to who was to occupy them. When he was appointed, the Deputy Chairman's post was said to be equal to the Chief Secretary's. When Raja Ram was appointed, it was brought down to the First Member's level.
9. The Officer on Special Duty's post was created on 26 June 1972 as a Member's post and was upgraded on 27 June 1972 to the Chief Secretary's grade.
10. The functions of the two posts were such that no comparison could be made with posts in the Schedule.
11. The two posts were inferior in rank and status to that of Chief Secretary, and the Chief Secretary's post is always unique and unrivalled. So the transfers were hostile discrimination that offended Articles 14 and 16.
12. Although he had acquitted himself well, a junior officer was promoted and confirmed in his place. He was permanently excluded from the Chief Secretary's post.
13. The creation of the posts, and his appointment and transfer to them, were mala fide.
14. He described several incidents in which he incurred the Chief Minister's anger. They are listed under the Chief Justice's opinion in the Court's Reasoning.
15. The incidents, if true, were gross acts of maladministration. He said he obstructed them, and the Chief Minister moved him out to put him out of the way and to deflate him.

For the respondents (State of Tamil Nadu and the Chief Minister)

1. The authenticated order was the final order, authenticated by the then Chief Secretary. The petitioner could not go behind it or use the draft order to vary its terms.
2. The authenticated order clearly showed that the promotion and posting were in an officiating capacity.
3. In the alternative, Ramakrishnan was granted refused leave for four months under Fundamental Rule 86(a). His service was extended, and he kept his lien on the Chief Secretary's post until 14 March 1970. The petitioner could not be appointed substantively before then.
4. The Additional Solicitor General and the Advocate General did not contend that the Deputy Chairman's or Officer on Special Duty's posts were cadre posts under the IAS (Cadre) Rules.
5. The two posts carried the same pay as the Chief Secretary. The respondents claimed that the Officer on Special Duty's post was equal in status and responsibility to the Chief Secretary's (as recorded by Bhagwati, J.).
6. Affidavits denied the petitioner's allegations of mala fides. They came from the Chief Minister, the Minister for Co-operation, the Governor, the Minister of Labour, the Minister for Harijan Welfare, the Minister for Food and the Chief Secretary. They also came from the Inspector General of Police and the Inspector General of Prisons. The latter held the post of Commissioner of Police at the time of the elections.
7. The transfers were made because of administrative exigencies. The petitioner's wide experience in commercial taxes made him a suitable officer for the Special Duty post.

Court's Reasoning

Opinion of Ray, C.J. (for himself and Palekar, J.)

1. Noted: The petitioner relied on the Chief Minister's note and the draft order, which said he was promoted and posted as Chief Secretary. The note listed eleven senior officers and chose between Mani and the petitioner.
2. Held: The Gazette Notification of 13 November 1969 said he was promoted and posted to act as Chief Secretary. The gazette notification prevails over the draft order. He was appointed to act, on a temporary basis, and not substantively.
3. Why: His substantive appointment was in the Selection Grade of Rs. 1800-2000. His own note of 16 November 1970 showed he was not appointed substantively. When Ramakrishnan went on refused leave there was no substantive vacancy.
4. Noted: Under Fundamental Rule 56(f) an Indian Civil Service officer retires after 35 years' service from his arrival in India. Under Fundamental Rule 86(c), refused leave beyond the retirement date is not an extension of service. Under Fundamental Rule 13(d), a servant on refused leave after the date of compulsory retirement does not keep a lien (a right to hold a permanent post).
5. Noted: Fundamental Rule 9(19) says a servant officiates when he performs the duties of a post on which another person holds a lien. Government may also appoint a servant to officiate in a vacant post on which no one holds a lien.
6. Held: Ramakrishnan, as an Indian Civil Service member, was entitled under Article 314 to the pre-Constitution conditions of service on remuneration, leave and pension.
7. Why: Before the Constitution, Fundamental Rule 13(d) kept the lien during leave without exception for refused leave. Fundamental Rule 86 had no provision that refused leave is not an extension of service. The Finance Department Notification No. 520-CSR of 31 May 1922 said leave under Fundamental Rule 86 automatically carried the extension needed.
8. Held: An officer in that position does not stay on duty but draws leave salary under a privilege. There is no formal extension of service, and he keeps his lien. The post cannot be filled substantively until he actually retires.
9. Noted: A note to Fundamental Rule 56 in the Madras Government's Fundamental Rules (2nd edition, 1966, pages 133-134) treats the grant of such leave to an officer of the former Secretary of State Service as extending service to the date the leave expires.
10. Held: Ramakrishnan therefore kept his lien until 14 March 1970. The petitioner acted as Chief Secretary by way of a temporary arrangement. He had no right to hold the post.
11. Noted: In a note for circulation of 14/16 November 1970, put up by the Joint Secretary, Public Department, the retirement date was noted as 14 March 1970. That is why the petitioner asked to be confirmed from that date. He was not confirmed, so he was not substantively appointed.
12. Noted: The Additional Solicitor General and the Advocate General did not contend that the Deputy Chairman's or Officer on Special Duty's post was a cadre post under the IAS (Cadre) Rules.
13. Noted: Rule 4(2) says the Central Government will re-examine the strength and composition of each cadre every three years, in consultation with the State. The first proviso keeps the Centre's power to alter it at any other time.
14. Noted: The second proviso lets the State add one or more posts to a cadre. The posts must carry duties and responsibilities of a like nature to cadre posts. The period is up to one year and, with Central approval, a further period of up to two years.
15. Held: The State alone cannot alter the strength and composition of the cadre. The second proviso does not give it that power. Posts added under it do not become cadre posts, and they do not increase the cadre's strength.
16. Why: If the State had that power, the three-yearly examination by the Centre in consultation with the State would be nullified.
17. Held: The posts of Deputy Chairman and Officer on Special Duty could not be added to the Tamil Nadu cadre. The State had no such power under the second proviso.
18. Noted: The petitioner said the posts were upgraded and downgraded depending on who would hold them. The Deputy Chairman's post was said to be upgraded when he was appointed and downgraded when Raja Ram was given additional charge.
19. Noted: The Deputy Chairman's post was created for one year in April 1971. The post of Special Officer for Commercial Taxes was created on 26 June 1972 as a Member's post and was graded as Chief Secretary's on 27 June 1972 on his appointment.
20. Noted: When the petitioner did not take charge on 7 April 1971, Raja Ram, the senior most officer and First Member, was told to hold additional charge. When he did not join on 6 June 1972, the Government decided to post Raja Ram in his place. Raja Ram drew Rs. 3,000 per month.
21. Held: The posts were not upgraded or downgraded. The incumbent drew a higher or lower salary according to the salary he drew when appointed.
22. Noted: The post was not inferior, and each of the posts carried specific functions and responsibilities. The Planning Commission is an advisory body like the Planning Commission at the Centre, and the Chief Minister is its Chairman. The petitioner drew Rs. 3,500 per month as acting Chief Secretary, so the Deputy Chairman's post carried Rs. 3,500 when he was appointed.
23. Noted: The petitioner's contentions on the two posts were, first, that there was no declaration under rule 9 and, second, that the posts' functions were so different that no comparison with scheduled posts could be made.
24. Noted: Rule 9(4) says that where equation is not possible, the Government may, for sufficient reasons recorded in writing, appoint a member to such a post without a declaration. The petitioner said both a positive declaration and the negative recording of reasons must be in writing.
25. Noted: It was not disputed that both posts carried the same pay as the Chief Secretary.
26. Held: Equal pay is not by itself decisive of equal status and responsibility. But the pay scale primarily shows status and responsibilities of an equal nature.
27. Held: The Planning Commission is a high powered Commission. The Deputy Chairman's position is equal in status and responsibility to the duties of the Chief Secretary.
28. Held: The real significance of rule 9 is that members of cadre posts cannot be deployed to non-cadre posts unless the posts are of a calibre which cadre officers can fill.
29. Noted: Since 1970 the State had been considering a Planning Commission. In March 1970 the Finance Department prepared a note saying it was needed for industrial, power and irrigation projects. It advocated a group of economists working with the Institute of Economic Growth, New Delhi.
30. Noted: The State wanted an Institute of Economic Planning working with advice from the National Council of Applied Economic Research, and a separate planning department.
31. Noted: On 23 March 1970 the petitioner, as Chief Secretary, did not accept that advice. He advised using senior officers of Government departments and enlisting experts for particular projects if necessary.
32. Noted: On 25 December 1970 the Chief Minister recorded that a ten-year plan was necessary. The Commission was set up in April 1971, to consist of Chairman, Deputy Chairman, Members, Secretary and Deputy Secretary. The Chief Minister was Chairman. A full time officer in the grade of Chief Secretary was to be Deputy Chairman.
33. Noted: The Commission's objects included a rapid rise in people's standard of living and distribution of the community's material resources to serve the common good.
34. Held: Because the Chairman is the Chief Minister, the Deputy Chairman was equal in status and responsibility to the Chief Secretary.
35. Noted: In 1969 the State sanctioned a statistical cell on production data for commodities liable to sales tax. In August 1970 it considered an expert committee on sales tax, and in October 1970 the Chief Minister proposed a committee on simplifying sales tax law.
36. Noted: In April 1971 the Chief Minister reviewed commercial taxes. One section of trade wanted single point levy and another wanted multi point levy. A Revenue Department note proposed a committee to study the sales tax structure.
37. Noted: In June 1972 the Government decided to appoint a senior IAS officer to streamline and rationalise the Tamil Nadu General Sales Tax Act and similar enactments, with their rules.
38. Noted: Sales tax and other commercial taxes contributed the preponderant share of State revenue. They fetched Rs. 112 crores in 1971-72. The General Sales Tax Act was enacted in 1959 and had been amended from time to time. Chambers of Commerce had asked for simplification.
39. Noted: The Officer on Special Duty was to do seven things.
    • Review the commercial tax Acts for growth of revenue against growth of income, commerce and industry.
    • Rationalise and simplify the Sales Tax, Entertainment Tax, Local Authorities Finance, Motor Spirit Taxation and Betting Tax Acts and the Central Sales Tax Act.
    • Study the classification of commodities as single point or multi point.
    • Examine whether a concessional rate on components under single point levy should continue and be extended to all raw materials.
    • Improve inspection, search and seizure procedure and reduce harassment of traders.
    • Make check posts more effective and cross verify check post data with assessment records.
    • Ensure a regular flow of data on tax yield and trade practices to the Board of Revenue (Commercial Taxes).
40. Held: These duties show the post is of enormous magnitude and importance in shaping the State's revenue structure. Its duties and responsibilities are beyond any measure of doubt equal in status and responsibility to those of the Chief Secretary.
41. Noted: The petitioner said a declaration in writing was necessary.
42. Held: The purpose of the declaration is to ensure that cadre members are not taken to posts beneath their status and responsibility. It preserves the respectability and responsibility of cadre officers. It is a matter of substance, not mere form.
43. Held: A declaration in writing is desirable. Its absence does not prevent a finding of equal status and responsibility. A declaration may not be conclusive if it is a mere cloak. The facts and circumstances show whether the equality is real.
44. Noted: Fundamental Rule 15 says no Government servant can be transferred substantively to, or appointed to officiate in, a post carrying less pay than the permanent post on which he holds a lien. The petitioner held a lien in the Selection Grade post.
45. Held: The Government could transfer him to any post carrying pay of not less than his Selection Grade pay of Rs. 1800-2000. Both the Deputy Chairman's and the Officer on Special Duty's posts carried Rs. 3,500, the Chief Secretary's pay.
46. Noted: He was appointed Deputy Chairman on 6 April 1971 on Rs. 3,500 and went on leave from 13 April 1971 to 5 June 1972. On 17 June 1972 he represented that the post in the Chief Secretary's rank could not continue beyond one year. The Government sanctioned the Officer on Special Duty's post on 26 June 1972, and he was promoted to it on 27 June 1972.
47. Held: The petitioner, in the Selection Grade, could be transferred to either post. They were not lower in status and responsibility than the cadre posts in Schedule III of the IAS (Pay) Rules and carried the Chief Secretary's pay.
48. Held: The posts were not created suddenly with any oblique purpose. The Planning Commission had been under contemplation for some time. The Officer on Special Duty's post was created after evaluating serious problems of State revenue.
49. Held: Comparing duties and responsibilities of posts at the apex of different departments is not always possible. The status of a post may also depend on the incumbent, because a brilliant officer can so augment the opportunities of public service in it that others may covet it.
50. Held: The posts were created under the State Government's inherent executive powers. They were not additions to the posts in the Cadre Schedule. They were posts outside the cadre.
51. Held: On an objective consideration, the two posts were created for functions needing very high calibre and specialised experience. They must be counted as no less responsible than the topmost cadre posts.
52. Noted: Finding suitable officers for specialised jobs is always difficult. Cadres do not always overflow with specialised experience. The Administration must also consider whether an officer is willing to take a job without the wide executive powers he held before.
53. Held: The choice fell on the petitioner for both posts. He got the Chief Secretary's pay scale because that was the scale he was drawing. That someone else was appointed on Rs. 3,000 after he refused does not devalue the job.
54. Held: Whoever is chosen takes his pay with him unless the Government pays more. The posts of Chief Secretary and First Member were interchangeable, though the former got higher pay. The State recognised this and the Central Government endorsed it in January 1970. There was no upgrading or downgrading.
55. Held: The petitioner had worked as Deputy Commissioner of Commercial Taxes, Secretary to Government in the Revenue Department and Commissioner, Board of Revenue, handling commercial taxes. Posting him as Officer on Special Duty was neither unjust, unfair nor mala fide.
56. Held: There was no reduction in rank. His status and pay conformed to the Rules. He could not claim to continue to act as Chief Secretary until retirement. The transfers were made for administrative exigencies.
57. Noted: IAS members in high posts are described as "steel framework of the Administration". Sound administration depends on their sense of security and stability. They must not feel their posts are precarious with a change of Government, and their service must be free of fear of arbitrary action.
58. Noted: Members of the Service should keep themselves isolated from the turmoil of political parties. Disinterested and detached devotion to duty should be recognised and rewarded.
59. Held: The posts of Deputy Chairman and Officer on Special Duty are equal in status and responsibility. Cadre officers are used in different posts of equal status because of administrative exigencies and to employ the best talent. There is no hostile discrimination in transfers between posts of equal status and responsibility.
60. Noted: The petitioner said the creation of the posts and his appointment to them were mala fide. He said he was fearless and suggested action against persons friendly to the Chief Minister, and that the Chief Minister took revenge.
61. Noted: First instance — Tanjavur Cooperative Marketing Federation. The petitioner said V.S. Thiagaraja Mudaliar, head of the Federation and a powerful associate of the Chief Minister, was involved in irregularities. He said he put up a note that the case be handed to the police. He said the Minister for Co-operation asked him to modify it to leave out Mudaliar and the police referral.
62. Noted: The Minister for Co-operation denied asking him to modify any note. The Chief Minister denied ever asking for modification. He also denied that there was a note suggesting prosecution of Mudaliar. Both said action was being pursued against all persons concerned, and the petitioner's suggestion was accepted.
63. Noted: The petitioner also said Mudaliar was letting untreated effluents from his distillery at Tirucharapalli flow into the river. He said the Chief Minister was annoyed when he suggested prosecution.
64. Held: The distillery allegation was belied by the Government's action. The petitioner's proposal for a joint inspection and treatment arrangement, on the Water and Sewage Advisory Committee's recommendation, was accepted. He also recommended a plant scheme on pain of cancelling the licence.
65. Noted: The distillery makes industrial alcohol needed by the cordite factory of the Defence Department and for pharmaceutical, medicinal and industrial products. Closing it would have caused unemployment and loss of important products. The handling of the distillery showed no mala fides.
66. Noted: Third instance — the petitioner said the Chief Minister disliked his suggestion that Vaitialingam, the Chief Minister's Private Secretary, be transferred. He alleged the Chief Minister said the Chief Secretary should be transferred instead. The Chief Minister denied saying so.
67. Noted: The petitioner also said the Chief Minister wanted to favour Vaithialingam in the seniority list of the Indian Administrative Service and that he declined to oblige.
68. Noted: There were disputes between direct recruits and promotees on seniority. On 22 December 1969, on the petitioner's advice, the Chief Minister ordered that the Government could finalise the seniority list after considering representations.
69. Noted: The petitioner then submitted a file saying direct recruit Assistant Engineers of the Public Works Department also sought revision. The Chief Minister cancelled his order of 22 December 1969. Direct recruit Deputy Collectors then filed writ petitions in the Madras High Court on the basis of that order. Those petitions were pending.
70. Noted: The petitioner also alleged that the Chief Minister refused to let Deputy Collectors in the select list act in IAS posts. Many retired at 55 without acting. He said the Chief Minister thought Vaithialingam would thereby gain seniority, since IAS officers retire at 58.
71. Noted: The respondents said the IAS Selection Committee could not meet in 1968, 1969 and 1970 for various reasons. The petitioner noted that inclusion in the Select List conferred no right of promotion, and the Chief Minister agreed.
72. Held: These facts show the petitioner was a party to, and responsible for, all the decisions taken. There is no ground to attribute bad faith or improper motive to the Government against him.
73. Noted: The petitioner alleged land acquisition at Manali for Madras Refineries, where large compensation was paid to the owner Ramkrishnan. He said he suspended the District Revenue Officer and other officers for suppressing a note that the Law Department had strongly opposed large compensation.
74. Noted: The respondents' affidavits said the awards were passed by land acquisition authorities. The Law Department advised disciplinary action and recommended setting the awards aside. The Chief Minister and the Law Minister directed suitable action. The file went to the petitioner, who asked for suspension, and the Government approved. Disciplinary proceedings were pending.
75. Held: It is obvious that the correct facts totally repel the allegation of mala fides.
76. Noted: The petitioner said the Chief Minister said the Government could not tolerate a Chief Secretary who opposed the Anna Samadhi proposal. The DMK Party decided to erect it. The Chief Minister wanted a committee to manage it and an Ordinance, and the petitioner opposed the Ordinance. The idea was dropped, and a private trust was created to administer the Samadhi.
77. Noted: The trustees asked the Government to hand it over. The petitioner said he opposed this because part of the land belonged to the Municipal Corporation and the land with the Samadhi cost the Government and the Corporation Rs. 40 lakhs.
78. Held: The allegations were baseless. The Public Works Department examined the proposal and the file went to the Chief Minister. The petitioner merely noted Chief Minister may decide. He did not oppose the proposal. This shows the Chief Minister bore no grudge.
79. Noted: The petitioner said an extraordinary procedure was followed on the tender for the Veeranam Water Supply Scheme to Madras city. Satyanarayana submitted the tender, involving Rs. 20 crores, and the Government agreed to an advance loan of Rs. 90 lakhs for machinery. The petitioner said he returned the file without scrutiny because the Minister for Works wanted it, which annoyed the Chief Minister.
80. Noted: The Government said eight firms tendered. Satyanarayana Brothers' tender was the lowest, and they had wide experience in civil and defence works. The Chief Secretary received the file on 27 April 1970. The Additional Chief Secretary obtained it from the Chief Secretary's office. The Minister for Works, after discussing with the Chief Minister, ordered acceptance of the lowest tender. Orders were issued on 7 May 1970. An expert team recommended it.
81. Held: The petitioner's alleged note asking for time to scrutinise is not in the file. He saw the file on 11 May 1970, after acceptance on 7 May 1970, and raised no objection then. On 13 July 1970, when the matter came for final orders, he also recorded no objection. This shows reckless allegations of mala fides.
82. Noted: The Cooum River Project allegation was that he pressed for an investigation, and the Chief Minister ordered an enquiry and later cancelled it. The Chief Minister had asked the Director of Vigilance to look into rumours of malpractices. The Director asked the petitioner for sanction to begin an enquiry. A draft letter authorising it was put up to him. The Court noted that no action was taken by the petitioner.
83. Noted: The Director's letter was dated 25 February 1970. On 26 February 1970 the petitioner submitted a note to the Public (Secret Confidential) Department, which received the file on 20 September 1970. It contained the Chief Minister's minutes ordering an enquiry. The file was put up before the petitioner on 21 September 1970 and was not received back.
84. Noted: On 31 July 1971 the Chief Secretary asked the petitioner to send the file back. On 8 August 1971 the petitioner said it was not with him. The Court called these strange things.
85. Held: It is baseless to allege mala fides against the Chief Minister on this.
86. Noted: The brunt of the allegations centres on the mid-term poll of February 1971. At the end of January 1971 the DMK Party, whose leader is Ramaswami Naicker, took out an anti-religious procession at Salem that hurt the feelings of devout Hindus. Ramaswami, known as Cho, Editor of the magazine Tughlak, photographed it. The Party feared that publication would affect its election prospects.
87. Noted: The petitioner said the Law Minister telephoned him to prohibit publication. He said the Government had no power to prevent it. He said the Chief Minister shouted that the Deputy Superintendent of Police should be suspended and action taken against the magazine.
88. Noted: The Inspector General of Police said suspending the Deputy Superintendent of Police, Salem, would be most unfair. The petitioner suggested dropping it. The Chief Minister then asked the Inspector General to suspend the Circle Inspector at Salem. He did so and registered a case against him. The petitioner said the Chief Minister took him to task for registering a case against Naicker.
89. Noted: The Chief Minister said in his affidavit that he told the petitioner action should be taken against those who broke the law. He denied taking the petitioner to task, shouting at him or ordering any police officer's suspension.
90. Noted: The petitioner also alleged that on 28 February 1971 the Deputy Inspector General of Police reported clashes involving looting, killing and burning of houses in a village in Tirunelveli District. The Inspector General said the Minister of Co-operation was behind them. The petitioner told the Collector it was serious dereliction of duty and asked him to go to the spot and report.
91. Noted: At 4 p.m. on 28 February 1971 the Governor summoned the petitioner and the Inspector General about the deteriorating law and order. The petitioner said the Governor referred to complaints from constituencies where the Chief Minister and Cabinet Ministers were contesting. He said the Inspector General reported lorry loads of about 1500 armed goondas brought to Madras at the Chief Minister's instance.
92. Noted: The petitioner said the Governor shouted at the police and then told the petitioner he was known for carrying out duties without fear or favour and that he could be relied on to ensure free and fair elections. The petitioner assured strong action and ordered the Inspector General to arrest the goondas. A raid was carried out that night.
93. Noted: He said the Chief Minister then shouted at him: I am the Chief Minister. I am in charge of the Police Portfolio. How dare you order the arrest of persons in my constituency without my prior permission? He said the Chief Minister ordered him to withdraw the Central Reserve Police. The petitioner said he had asked for five battalions of that force and could not withdraw it.
94. Noted: He said that after polling, the police force in the city was moved to other areas and law and order deteriorated. A lady M.L.A. of the Congress Party was dragged from her car and molested. More than 2600 bad elements were rounded up. Two Ministers phoned the Commissioner of Police to release the DMK ring leaders, who refused unless proper bail was given. The Commissioner told him the Chief Minister himself had phoned.
95. Noted: He said that when the Chief Minister and the Minister of Law learned he had ordered the interception of lorry loads of goondas, they asked him to withdraw the instruction, and he refused.
96. Noted: On 4 March 1971 a Code message from the Home Ministry reported disturbing reports of clashes between political groups. The petitioner then instructed that people should not collect within three furlongs of the counting centres and that bad elements be rounded up 24 hours before counting. He also instructed that Collectors and the Commissioner form Peace Committees. Section 41 of the City Police Act and Section 30 of the District Police Act were to be promulgated to regulate crowds.
97. Noted: On 6 March 1971 the Chief Minister asked him to attend the Cabinet meeting with the Inspector General, the Commissioner and the Home Secretary. He said the Law Minister attacked and abused him there, and that he, the Inspector General and the Commissioner were threatened with dire consequences. The results were declared on 11 March, and the DMK kept its majority.
98. Noted: A meeting of all Collectors was fixed for 6 April 1971. The Chief Minister called a press conference at about 12 mid night and announced the petitioner's appointment as Deputy Chairman and that he would be transferred forthwith.
99. Noted: The petitioner said the Government acted mala fide because of his stern attitude towards the DMK Party.
100. Noted: The Chief Secretary's affidavit says there is no record of any of these law and order matters except the instructions of 4 March 1971. The Cabinet reviewed them on 6 March 1971 and made two modifications. The three furlong ban became safe distance, and the rounding up was confined to listed rowdies.
101. Noted: The Home Ministry's Code message of 4 March was received, but the Government did not attach special importance to it. On 16 March 1971 the Secretary, Ministry of Home Affairs sent a message commending the excellent arrangements for free and fair elections. It was a circular to all Chief Secretaries, so no special credit could be claimed by the petitioner.
102. Noted: The Chief Minister's affidavit says no goondas were brought into the city. He called the allegation of a raid on 1 March to round up goondas false. He denied that the petitioner told him of expected clashes in Saidapet, Mylapore and Thyagaroya Nagar and denied asking the Commissioner of Police to release DMK leaders.
103. Noted: The Governor's affidavit says he and the Inspector General met the petitioner on 28 February 1971 at 4 p.m. at his instance, about law and order arrangements. He told them of allegations of violence and intimidation, and the Inspector General said they would be investigated. He denied referring to complaints from the Chief Minister's and Ministers' constituencies. He also denied being told that 1500 goondas had been rounded up. He denied ever complimenting the petitioner on carrying out duties without favour or fear.
104. Noted: The Minister of Labour, the Minister for Harijan Welfare and the Minister for Food denied the petitioner's allegations about telephoning, the use of goondas and the tirade against him. The Inspector General said there was no deterioration and no organised violence. Of 160 complaints, 69 were against the DMK, 46 against Congress (O), 6 against other parties and 39 against the Police and other non-political bodies. The Inspector General of Prisons, who was Commissioner of Police at the time, called the allegations baseless.
105. Held: The most significant feature is that on 7 April 1971 the petitioner did not at any stage say the order was made mala fide, when he was appointed to act as Deputy Chairman and went on leave. The first letter alleging mala fides is dated 7 June 1972. The allegations are not contemporaneous but afterthoughts at a distance of one year.
106. Held: Even in that letter the only mala fide allegation is that he took strong steps at the 1971 elections against the views of the Chief Minister and Ministers. The respondents were unaware of the various allegations until the petition was filed in July 1972. So when the impugned order was made on 26/27 June 1972, it was not made out of improper motive, indecent haste or to get rid of him.
107. Held: The petitioner describes himself throughout as acting without fear or favour. But honest and fearless cadre officers are not rare, and fearless officers in cadre posts are not thrown out for their views on law and order.
108. Held: The petitioner attributes statements to the Chief Minister, the Governor and other Ministers as spoken words. He made no contemporaneous record. It is hard to believe he remembered long sequences of identical words. The allegations were made to give a semblance of truth and lend colour to a chronicle.
109. Held: The affidavit evidence shows the petitioner carried out normal duties with care at the election, as all officers are expected to. Civil servants advise Ministers on files and rules. Ministers should keep a balanced and impersonal attitude to such advice. The Government in practically all cases accepted his advice.
110. Held: There was no acrimony or disagreement on record between the Government and the petitioner, and nothing showing he advised one way and the Government acted the opposite way.
111. Held: The affidavit evidence shows law and order was kept under normal control. All State officers, including the police, did their duty. The petitioner did nothing extraordinary. As Chief Secretary it was his duty to see the situation did not go out of control. The Chief Minister and his party cannot be said to have committed violence or intimidation.
112. Held: The affidavit evidence establishes beyond any measure of doubt that the allegations of mala fides against the Chief Minister are baseless. They were made to suggest vindictiveness and vengeance. Facts and circumstances repel that insinuation and innuendo.
113. Held: For these reasons the contentions fail and the petition is dismissed. Each party will pay and bear its own costs.

Opinion of Bhagwati, J. (for himself, Chandrachud and Krishna Iyer, JJ.)

1. Noted: Bhagwati, J. agreed with the final conclusion of the Chief Justice. He said his approach and reasoning were a little different, so he delivered a separate judgment on the questions arising.
2. Noted: He repeated the petitioner's career and the facts of the successive posts. He also repeated the orders of 11 July 1969, 7 August 1969, 26 September 1969 and 14 January 1970. He recorded the petitioner's selection as Chief Secretary on the Chief Minister's note of 12 November 1969.
3. Noted: He recorded that paragraph 5 of the authenticated order was worded promoted and posted to act as Chief Secretary. He said whether the promotion was a substantive appointment or an officiating one would be decided when dealing with the parties' arguments.
4. Noted: The petitioner argued that to act qualified only posted, not promoted. The respondents argued that the authenticated order was final and that, in the alternative, Ramakrishnan kept his lien until 14 March 1970.
5. Held: The petitioner's contention that he was promoted substantively is not well founded.
6. Held: The authenticated order says in clear and explicit terms that he was promoted and posted to act as Chief Secretary. By plain grammar, to act governs both posted and promoted. They are one composite event, and the promotion was in an acting capacity.
7. Held: The respondents' contention that the authenticated order was final and could not be challenged is not sound. It is now well settled that when an order is authenticated, the only challenge excluded is that it is not an order made by the Governor. The validity of the order can be questioned on other grounds.
8. Why: The authenticated order is merely the expression of the actual order, which precedes it. As the Court said in State of Bihar v. Sonabati, the process of making an order precedes and is different from the expression of it.
9. Held: If the authenticated order does not correctly reflect the actual decision, it must be open to correction. The formal expression cannot be given such sanctity that, even if mistaken, it overrides the actual order. That would be an artificial rule calculated to obstruct truth and justice.
10. Held: The Government too might find a mistake in an authenticated order. Suppose it decided on an officiating appointment but the order described it as substantive. It would be able to rectify it. So it was competent to the petitioner to contend that the authenticated order did not correctly reflect the decision.
11. Held: That argument cannot succeed. The draft order merely says promoted and posted as Chief Secretary. It is silent on whether the promotion is substantive or officiating. It could be either, consistently with its words.
12. Held: The authenticated order first says clearly and definitely, by the words to act, that the promotion is officiating. There is no inconsistency between the two orders from which an error can be spelt out.
13. Held: It is a reasonable inference that the authority applied its mind to the question before issuing the authenticated order. Ramakrishnan was going on refused leave for four months and kept his lien until then, so the promotion could not be otherwise than officiating. The Judge noted there was no positive evidence, but the substitution of the words retiring from service with effect from the afternoon of 13th November, 1969 supports it.
14. Held: The authenticated order correctly reflected the State's final decision, and the promotion was in an acting or officiating capacity.
15. Held: The alternative argument leads to the same conclusion. Bhagwati, J. entirely agreed with the Chief Justice's reasoning on this. Since Ramakrishnan went on refused leave for four months from his superannuation, he kept his lien until 14 March 1970. The petitioner's promotion could not be otherwise than officiating.
16. Held: The post fell vacant on 14 March 1970, but the petitioner was never confirmed. So when he was transferred as Deputy Chairman he had no right to hold the post.
17. Noted: That does not mean he had no right to be considered for confirmation. Since a junior, Sabanayagam, was promoted and confirmed, the question must arise whether it was mala fide exercise of power or violation of Articles 14 and 16.
18. Held: The second proviso to rule 4(2) of the IAS (Cadre) Rules, 1954 has no application. It confers only limited authority on the State to make a temporary addition to the cadre for the specified period.
19. Why: The strength and composition of the cadre can be determined only by the Central Government under rule 4(1), and the Centre alone can review it every three years or at an intermediate time under rule 4(2). The State cannot add a different category of post or make a permanent addition to a category.
20. Noted: The State can add posts temporarily, provided the post added carries duties or responsibilities of a like nature to a cadre post. The Government of India's decision at 4.1, page 741 of the All India Services Manual (Second Edition), says the exercise of this power needs an objective assessment of the duties and responsibilities, so posts cannot be added temporarily unless they already exist in the cadre.
21. Held: Tamil Nadu could not add the posts of Deputy Chairman and Officer on Special Duty under the second proviso. They did not exist in the cadre as constituted by the Centre. They were new categories of posts created by the State. The challenge under rule 4(2) fails.
22. Held: The petitioner is on firmer ground under rule 9(1) of the IAS (Pay) Rules, 1954.
23. Noted: Rule 9(1) says no member of the Service shall be appointed to a post other than a post specified in Schedule III unless the State or Central Government makes a declaration that the post is equivalent in status and responsibility to a scheduled post.
24. Noted: Rule 9(2) says the pay of a member appointed to such a post is the same as he would have had in the post declared equivalent.
25. Noted: Rule 9(4) says the Government, for sufficient reasons recorded in writing, may appoint a member to a post where equation is not possible, without making a declaration.
26. Held: Rule 9 protects members of the IAS. To appoint a member to a non-cadre post, the Government must declare which cadre post it is equivalent to in status and responsibility.
27. Held: The making of a declaration is a sine qua non (an essential condition) of the power under sub-rule (1). It is not an idle formality that the Government can dispense with at will.
28. Why: Its purpose is to ensure the member is not pushed to a non-cadre post inferior in status and responsibility to the one he holds. Cadre posts have a known hierarchy, but a new non-cadre post is a stranger to the hierarchy. The declaration tells the member whether he is placed in a superior, equal or inferior post.
29. Noted: If he is brought down, he can protect his rights by pleading violation of Article 311 or Articles 14 and 16. That insulates him against unjust, unequal or unlawful treatment. The object is that public services should not be exposed to the demoralising effects of personal or political nepotism, victimisation or the whims of the political machine.
30. Held: The determination of equivalence is a condition precedent and a mandatory requirement. The Government must apply its mind to the nature and responsibilities of the functions and duties attached to the post.
31. Held: The pay attached to the non-cadre post is not material. The Government of India's decision in MHA letter No. 32/52/56-AIS(II) of 10 July 1956 says the basic criterion is the nature and responsibilities of the duties, not the pay.
32. Held: Once equivalence is declared after proper application of mind, sub-rule (2) assures the member the pay of the equivalent cadre post.
33. Held: The declaration, though imperative, is not conclusive. A member can contend that the post is in truth inferior and that his appointment violates Article 311 or Articles 14 and 16. The burden is heavy, and the Court would be slow to interfere because the Government is ordinarily the best judge. The Court would be most reluctant to enter the unfamiliar field of administration where there was a proper declaration.
34. Held: The Court can and would set aside the declaration of equivalence and protect the civil servant in five situations.
    • The declaration is made without application of mind to the nature and responsibilities of the functions and duties of the non-cadre post.
    • Extraneous or irrelevant factors are taken into account in determining equivalence.
    • The two posts' functions and duties are so dissimilar that no reasonable man can possibly say they are equivalent in status or responsibility.
    • The declaration is mala fide or a colourable exercise of power.
    • The declaration is a cloak for displacing a member from a cadre post he occupies.
35. Held: The declaration must always be there, except under sub-rule (4), where the non-cadre post cannot be equated with any cadre post. Then the Government may appoint the member only for sufficient reasons recorded in writing. This again shows that the Government must apply its mind and make an objective assessment on relevant factors.
36. Noted: The question was whether the petitioner's appointment to the two non-cadre posts complied with this requirement.
37. Held: The order of 7 April 1971 created the Deputy Chairman's post in the grade of Chief Secretary. It has no trace of a declaration of equivalence. It does not show that the State assessed the nature and responsibilities of the duties objectively. It does not show that the State found the post equivalent in status and responsibility to the Chief Secretary's.
38. Why: It is one thing to create a post in the grade of Chief Secretary. It is another to determine, on an objective assessment, that it is equivalent. The State seems to have assumed it could create a non-cadre post in the rank of any cadre post it likes, whatever its duties. That hypothesis is plainly incorrect.
39. Held: The State cannot artificially create equivalence. It must make an objective assessment and determine which cadre post the non-cadre post is equivalent to, and only then can it declare equivalence.
40. Noted: Later orders show this. The first Deputy Chairman's post ended on 13 April 1972. The order of 6 June 1972 did not even mention the grade or rank of Chief Secretary and only prescribed pay. There was admittedly no declaration equating the post to the Chief Secretary's.
41. Noted: The order of 29 June 1972 abolished the post and created a fresh Deputy Chairman's post in the grade of First Member, Board of Revenue on Rs. 3,000, and appointed Raja Ram. The respondents did not say that the nature and responsibilities of the duties had changed.
42. Held: The nature and responsibilities of the duties remaining the same, equivalence, a matter of objective assessment, could not vary from time to time. The post could not be equivalent to the Chief Secretary's at one time and to the First Member's at another.
43. Held: This clearly shows the Government did not apply its mind. It gave the post a rank or grade according to who was to be appointed.
44. Noted: The State's affidavit in paragraphs 25(b) and 28 admitted this. It said that since Raja Ram drew only Rs. 3,000 per month there was no option but to down grade the post. It said that with his appointment the post was equated to the First Member's.
45. Held: That is precisely what is impermissible. The status and responsibility of a non-cadre post cannot depend on who will occupy it. The equivalence found by objective assessment should decide which officer occupies it.
46. Held: Even if the order of 7 April 1971 is read most liberally in the State's favour, which should not be done in a contest between a public servant and the State, it contained no declaration of equivalence in regard to responsibility.
47. Held: The petitioner's appointment as Deputy Chairman contravened rule 9(1). But he cannot get relief on this ground. By his letter of 7 June 1972 to the second respondent he accepted the appointment without demur, thinking it was of the same rank and emoluments as the Chief Secretary's.
48. Noted: He also told newsmen on 7 April 1971 that he was looking forward with confidence to discharge the duties of the Deputy Chairman, which he called a challenging task. He cannot now challenge the validity of the appointment.
49. Held: The appointment as Officer on Special Duty suffers from the same infirmity. The order of 26 June 1972 created the post of the rank of Member, Board of Revenue. On 27 June 1972, when the petitioner was to be appointed, it was modified to the grade of Chief Secretary.
50. Held: Those two orders were in almost identical words to the order of 7 April 1971, so the same reasoning applies. The State assumed it could create a non-cadre post in the rank of any cadre post it liked, regardless of duties.
51. Held: The nature and responsibilities of the post's duties could not change in a day, and the respondents did not say they did. It could not be equivalent to a Member's post on one day and to the Chief Secretary's on the next. The State gave it a rank according to who was to be appointed.
52. Noted: The State admitted this in paragraph 28 of its affidavit: although first created in the Member's rank, with the petitioner's appointment the status was equated to the Chief Secretary's. When the petitioner went on leave, a Member was appointed to discharge its functions and the post was brought down again to the Member's rank.
53. Held: The order of 27 June 1972 also contained no declaration of equivalence in responsibility. There was no compliance with rule 9(1), and the appointment was liable to be held invalid for contravening it.
54. Held: But the Court cannot, in a petition under Article 32, grant relief by striking down the appointment. Mere violation of rule 9(1) does not involve infringement of any fundamental right.
55. Noted: The Judges hoped the State Government would not drive the petitioner to take appropriate proceedings to obtain the necessary relief.
56. Held: The third ground, mala fides, is in substance only an aspect of the second ground, based on violation of Articles 14 and 16. The two grounds are taken together.
57. Held: Article 16 embodies the guarantee of equality of opportunity for all citizens in matters of public employment. Though enacted as a distinct right because of its great importance, it is only an instance of the application of the concept of equality in Article 14. Article 14 is the genus (the wider class) and Article 16 is a species (one kind within it). The basic principle of both is equality and inhibition against discrimination.
58. Noted: What is the content and reach of this great equalising principle? It is a founding faith, in the words of Bose, J., a way of life. It must not be subjected to a narrow, pedantic or lexicographic approach.
59. Held: Equality is a dynamic concept with many aspects and dimensions. It cannot be "cribbed cabined and confined" within traditional and doctrinaire limits.
60. Held: 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 (government under law, not whim) in a republic, the other to the whim and caprice of an absolute monarch.
61. Held: Where an act is arbitrary, it is implicit that it is unequal under both political logic and constitutional law. So it violates Article 14, and if it affects public employment, Article 16.
62. Held: Articles 14 and 16 strike at arbitrariness in State action and ensure fairness and equality of treatment. State action must rest on valid, relevant principles that apply alike to all similarly situated. It must not be guided by extraneous or irrelevant considerations, because that would deny equality.
63. Held: Where the operative reason for State action, as distinguished from the motive inducing it from the antechamber of the mind, is not legitimate and relevant but is extraneous and outside the area of permissible considerations, it amounts to mala fide exercise of power. That is hit by Articles 14 and 16.
64. Held: Mala fide exercise of power and arbitrariness are different lethal radiations from the same vice. The former is comprehended in the latter. Both are inhibited by Articles 14 and 16.
65. Held: The reach of Articles 14 and 16 is not limited to cases where the public servant has a right to a post. Even an officiating public servant can complain if he is arbitrarily or unfairly treated or subjected to mala fide exercise of power.
66. Held: It is no answer to a charge of infringing Articles 14 and 16 to say the petitioner had no right to the Chief Secretary's post but was only officiating. That might be relevant to Article 311 but not to Articles 14 and 16.
67. Noted: The questions are whether the transfers were arbitrary and hostile and a mala fide exercise of power. What was the operative reason? Was it administrative exigency or extra-administrative considerations? Was the transfer so irrational or unjust that no reasonable administration could have made it except for collateral reasons?
68. Noted: Two considerations weigh in the approach. First, the Chief Secretary's post is highly sensitive and a post of great confidence, a lynchpin in the administration. Smooth functioning needs complete rapport between the Chief Secretary and the Chief Minister. The Chief Minister is in ultimate charge and politically answerable.
69. Held: If the Chief Minister loses confidence in the Chief Secretary, he may legitimately, in the larger interests of administration, shift him to another post, provided no legal or constitutional right is violated. There can be no question in such a case as to who is right and who is wrong. That displacement would not be arbitrary and would not attract Articles 14 and 16.
70. Noted: Such action would not ordinarily be taken except for the most compelling reasons. If used without justification, it would tend to affect the political neutrality of the public service and lead to demoralisation and frustration among public servants.
71. Noted: Secondly, a modern State has posts needing a high degree of intellect and specialised experience. Suitable officers are difficult to find and the choice is limited. Some such posts, though important and onerous, do not carry wide executive powers, so officers may not be willing to move to them.
72. Held: When the Government makes the best choice it can, in the larger interests of administration, and transfers an officer, he may feel unhappy because the new post does not give him the same amplitude of powers. That does not make the transfer arbitrary.
73. Held: A transfer is valid and cannot be attacked under Articles 14 and 16 if two conditions hold. It must be made on account of administrative exigencies. It must not move an officer to a lower post while a junior is preferred for the higher post.
74. Noted: The Chief Secretary's post is admittedly a selection post. After careful examination of the senior most eleven officers, the Chief Minister selected the petitioner. He worked as Chief Secretary from 14 November 1969 to 6 April 1971 and evidently acquitted himself creditably. The first respondent's affidavit indicates he discharged his duties efficiently and to everyone's satisfaction.
75. Noted: Yet he was transferred, and Sabanayagam, admittedly junior, was promoted and confirmed. The petitioner, though senior and proved competent, was permanently excluded from the Chief Secretary's post. He argued the transfers were to displace him from the key post.
76. Noted: He said that might have been unobjectionable if the new posts were of the same status and responsibility. But, he argued, neither was, because the Chief Secretary's post is unique and unrivalled. So the transfer, with the junior's promotion and confirmation, was arbitrary and violated Articles 14 and 16.
77. Held: This contention, plausible though it may seem, cannot be accepted because there is no adequate material to sustain it. The premise is that the two posts were not of the same status and responsibility. The Court cannot say the petitioner has established that premise.
78. Held: As to the Deputy Chairman's post, the petitioner himself accepted it as of the same status and responsibility and raised no objection. Nothing more needs to be said about it.
79. Held: The only question is the Officer on Special Duty's post. The petitioner has not satisfactorily established that it is inferior in status and responsibility to the Chief Secretary's.
80. Noted: Bhagwati, J. said the Court was not prepared to go as far as the Chief Justice in positively asserting that the post was equal in status and responsibility to the Chief Secretary's. The fact that sales tax accounts for about 120 crores of rupees does not make it equal. Equivalence turns on status and the nature and responsibility of duties. Merely giving one post's salary to another does not make for equivalence.
81. Held: The Court is not prepared to accept the thesis that the post was equal in status and responsibility, as the respondents claimed. It entertained serious doubts about it.
82. Held: Equally, it is not possible to hold it established on the material that the post was inferior in status and responsibility to the Chief Secretary's, though prima facie (on a first view) it does appear to be so.
83. Held: The Court cannot say the petitioner was arbitrarily or unfairly treated or that equality was denied to him when he was transferred and his junior was promoted and confirmed. The challenge under Articles 14 and 16 fails.
84. Noted: On mala fide exercise of power, the petitioner set out incidents in which he crossed the Chief Minister's path by inconvenient and uncompromising acts and notings. He said the Chief Minister nursed hostility and malus animus against him, and that was why he was transferred.
85. Noted: The incidents, if true, were gross acts of maladministration. The charge was that the petitioner thwarted the Chief Minister in them, and the Chief Minister moved him out of the way to deflate him.
86. Held: The Court is not called upon to investigate maladministration by the political Government headed by the second respondent. It is one thing to say the Chief Minister was guilty of misrule. It is another to say he had malus animus against the petitioner which was the operative cause of his displacement.
87. Held: The Court is concerned only with the latter limited issue. The petitioner cannot side track it and escape the burden of establishing hostility by diverting attention to incidents of suspicious exercise of executive power. That would be drawing a red herring across the trail.
88. Held: The burden of establishing mala fides is very heavy on the person who alleges it. Such allegations are more easily made than proved. Their seriousness demands proof of a high order of credibility.
89. Noted: The petitioner, himself once the Chief Secretary, has made a series of charges of oblique conduct against the Chief Minister. If true, they would shake confidence in the political custodians of power, so the Court must insist on a high degree of proof.
90. Noted: Top administrators often have to do acts that affect others adversely but are necessary for their duties. Such acts may be misconstrued as not bona fide when the full facts are unknown.
91. Held: 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 made against the holder of an office with high responsibility in the administration.
92. Noted: That is the judicial perspective in evaluating charges of unworthy conduct against Ministers and other high authorities. It is not because of any special status, which is wholly irrelevant, but because otherwise effective functioning would become difficult in a democracy.
93. Held: Extensive arguments were heard and a mass of documents and official notings was shown. But it is not possible to say that the petitioner has discharged the heavy onus of establishing mala fides against the second respondent.
94. Noted: The allegations were dealt with fully by the Chief Justice, and Bhagwati, J. substantially agreed. He would not discuss them again.
95. Noted: Bhagwati, J. mentioned certain disturbing features that cause anxiety. His example was the Coom River Project. Around the beginning of February 1970 the second respondent asked the Director of Vigilance to look into the Coom Improvement Project because he apprehended malpractices. Whether the Chief Minister acted on his own or at the petitioner's instance is immaterial.
96. Noted: By letter of 25 February 1970 the Director said that, without a discreet inquiry, the apprehensions could not be allayed or confirmed with credibility, since the head of the concerned engineering department was personally involved. He needed authorisation, and a Government order should be obtained.
97. Noted: The petitioner endorsed the letter the next day that the Public (Secret/Confidential) Department should deal with it immediately. That Department put up a note for circulation to the Minister for Works and the Chief Minister on 3 March 1970. The note remained unattended until mid-September 1970.
98. Noted: On 12 September 1970 the Minister for Works endorsed that the Director may make a discreet inquiry, and the Chief Minister approved on 20 September 1970. The file then went to the petitioner with a draft memorandum for the Director. It is common ground that the petitioner did not issue a memorandum in terms of the draft.
99. Noted: The petitioner said he did not do so because the Chief Minister subsequently ordered no inquiry. The Chief Minister said that to the best of his recollection he made no such order. That controversy is not for the Court to investigate. But it is undisputed that no inquiry took place.
100. Noted: Sabanayagam wrote to the petitioner on 31 July 1971 saying the file had not been received back. The petitioner replied on 8 August 1971 that he distinctly remembered the Chief Minister had ordered no inquiry and that the file was not with him. Sabanayagam did not write back challenging that statement.
101. Noted: The file was all along in the Government's possession and could not be traced until the petition was filed. The absence of the file could not have stood in the way of ordering an inquiry.
102. Held: These and a few other circumstances do create suspicion. But suspicion cannot take the place of proof, and a high degree of proof is needed. The Court cannot say that evidence generating judicial certitude upholding the plea of mala fides was placed before it. The contention is rejected.
103. Held: The petition is dismissed with no order as to costs.

Authorities

• King Emperor v. Shivnath Banerjee, 72 I.A. 241. Bhagwati, J. used it for the settled rule that authentication excludes only the challenge that the order was not made by the Governor. The validity of the order can be questioned on other grounds.
• State of Bihar v. Sonabati, [1961] 1 S.C.R. 746. Bhagwati, J. used it for the rule on authentication. He also quoted it for the process of making an order precedes and is different from the expression of it.
• Government of India decision at 4.1, page 741 of the All India Services Manual (Second Edition). Bhagwati, J. quoted it that adding a post temporarily to the cadre needs an objective assessment of duties, and that posts not already in the cadre cannot be added.
• Government of India decision in MHA letter No. 32/52/56-AIS(II) of 10 July 1956. Bhagwati, J. used it for the basic criterion for equivalence: the nature and responsibilities of the duties, not the pay.
• Finance Department Notification No. 520-CSR of 31 May 1922. Ray, C.J. used it to show that leave under Fundamental Rule 86 automatically carried the extension needed, with no formal sanction of extension.
• Madras Government Fundamental Rules (2nd edition, 1966, pages 133-134), note to Fundamental Rule 56. Ray, C.J. used it to show that the grant of such leave extended an Indian Civil Service officer's service to the date the leave expired.
• Also cited in footnotes: none; the two cases above appear in footnotes of Bhagwati, J.'s opinion.

Statutory provisions and rules

• Article 32 of the Constitution: the right to move the Supreme Court to enforce fundamental rights. The petition was filed under it. Mere violation of rule 9(1) is not an infringement of a fundamental right, so no relief under Article 32 (Bhagwati, J.).
• Article 14: equal protection and equality before the law. Bhagwati, J. read it as striking at arbitrariness in State action.
• Article 16: equality of opportunity in matters of public employment. Bhagwati, J. called it a species of the genus in Article 14.
• Article 311: protection of civil servants against dismissal, removal or reduction in rank. Bhagwati, J. said an officiating servant's lack of a right to a post may be relevant to Article 311 but not to Articles 14 and 16.
• Article 314: preserves the pre-Constitution conditions of service on remuneration, leave and pension for members of the Civil Service. Ray, C.J. applied it to Ramakrishnan.
• Fundamental Rule 9(19): a servant officiates when he performs the duties of a post on which another holds a lien, or when appointed to officiate in a vacant post where no one holds a lien.
• Fundamental Rule 13(d): a servant ceases to keep a lien while on refused leave granted after the date of compulsory retirement. As it stood before the Constitution, it had no exception for refused leave.
• Fundamental Rule 15: no servant can be transferred substantively to, or appointed to officiate in, a post carrying less pay than the permanent post on which he holds a lien, or would hold it had the lien not been suspended under rule 14.
• Fundamental Rule 56(f): an Indian Civil Service member retires after 35 years' service counted from arrival in India.
• Fundamental Rule 86(a) and (c): grant of refused leave; refused leave beyond the compulsory retirement date is not an extension of service.
• IAS (Cadre) Rules, 1954, rule 4(1) and (2) with its two provisos: the Centre determines and reviews the strength and composition of the cadre; the State may add posts temporarily as provided in the second proviso.
• IAS (Pay) Rules, 1954, rule 9(1), (2) and (4): the equivalence declaration; pay of the equivalent post; appointment without a declaration where equation is not possible, for reasons recorded in writing.
• IAS (Pay) Rules, 1954, rule 11 and Schedules III and III-A: the scheduled posts and their pay. The notification of 14 January 1970 was issued in pursuance of rule 11. The notification of 31 August 1970 amended Schedule III.
• Section 41 of the City Police Act and Section 30 of the District Police Act: provisions the petitioner instructed be promulgated on 4 March 1971 to regulate crowds. The judgment does not set out their text.

Judgement

1. Ray, C.J. (for himself and Palekar, J.): the petitioner's contentions fail and the petition is dismissed. Each party will pay and bear its own costs.
2. Bhagwati, J. (for himself, Chandrachud and Krishna Iyer, JJ.): the petition is dismissed with no order as to costs.
3. The Court did not grant the writ, the cancellation of the order of 27 June 1972 or the re-posting of the petitioner as Chief Secretary. The Court recorded: Petition dismissed.

Legal Principle / Ratio

In Bhagwati, J.'s opinion, a member of the IAS can be moved to a non-cadre post only on a real declaration of equivalence made on objective assessment, and breach of that rule alone gives no relief under Article 32. Ray, C.J. held a written declaration is desirable but its absence is no impediment. Articles 14 and 16 strike at arbitrary State action, and a person who alleges mala fides must prove them to a high degree.

The key statement in Bhagwati, J.'s opinion: "equality is antithetic to arbitrariness".

Other points of holding:

• An officiating promotion gives no right to the post. Even so, an officiating servant can complain under Articles 14 and 16 of arbitrary or mala fide treatment.
• Authentication of an order excludes only the challenge that the order was not made by the Governor.
• The second proviso to rule 4(2) of the Cadre Rules does not let the State alter the cadre's strength or composition.
• Bhagwati, J.: equivalence of posts depends on the nature and responsibilities of the duties, not on pay or on who will hold the post. Ray, C.J.: pay scale primarily shows status and responsibilities of an equal nature.

The Bench was divided in reasoning, not result, on whether the Officer on Special Duty's post was equal in status to the Chief Secretary's. The opinion of Ray, C.J. held it was. Bhagwati, J.'s opinion held only that inferiority was not established.

Subsequent Treatment

This section is built only from the later judgments saved in the supplementary files.

Navtej Singh Johar v. Union of India

Constitution Bench, 6 September 2018.

• Writ Petition (Criminal) No. 76 of 2016, with connected petitions. In the opinion of Dipak Misra, CJI (for himself and A.M. Khanwilkar, J.), Royappa is cited at para 235 of that opinion. The Court observed that equality is a dynamic concept that cannot be cribbed, cabined and confined within traditional limits. It said equality is antithetic to arbitrariness, and that equality and arbitrariness are sworn enemies.
• In the opinion of D.Y. Chandrachud, J., para 27 cites Royappa. It says the validity of State action was made subject to the test of arbitrariness. The Judge said that reducing Article 14 to a formal classification test may miss its value as a safeguard against arbitrariness in State action.

KS Puttaswamy v. Union of India

Justice K.S. Puttaswamy (Retd.) v. Union of India, nine-Judge Bench, 24 August 2017.

• Writ Petition (Civil) No. 494 of 2012, with connected matters. In the opinion of J. Chelameswar, J., a footnote to para 44 says arbitrariness was first explained at para 85 of Royappa. It is very simply the lack of any reasoning.

Joseph Shine v. Union of India

Constitution Bench, 27 September 2018.

• Writ Petition (Criminal) No. 194 of 2017. In the opinion of Dipak Misra, CJI (for himself and A.M. Khanwilkar, J.), para 19 records that Nariman, J. in Shayara Bano referred to Royappa among authorities on arbitrariness. The CJI concurred with that view at para 20.
• In the opinion of D.Y. Chandrachud, J., para 33 says the test of manifest arbitrariness is rooted in Indian jurisprudence. It reproduces para 85 of Royappa and says Bhagwati, J. described equality as a dynamic construct contrary to arbitrariness.

Other later cases (not summarized)

• Janhit Abhiyan v. Union of India (7 November 2022).
• M. Nagaraj v. Union of India; L. Chandra Kumar v. Union of India; National Legal Services Authority v. Union of India; Shakti Vahini v. Union of India; Shreya Singhal v. Union of India. These were found as citing Royappa through their quotations in the judgments of Navtej, Puttaswamy and Janhit Abhiyan, and they are not summarized.

Comparative Analysis

• All three later judgments take the passage in Royappa on equality as the origin of the arbitrariness idea. Navtej (in both the CJI's and Chandrachud, J.'s opinions) and Joseph Shine (Chandrachud, J.'s opinion) reproduce its words on equality and arbitrariness.
• Puttaswamy, in a footnote, states the rule briefly: an Article 14 challenge can be made on unreasonable classification or arbitrariness. Arbitrariness, first explained in Royappa, is very simply the lack of any reasoning.
• Joseph Shine links Royappa to Shayara Bano. It says that decision applied the test of manifest arbitrariness, which Joseph Shine finds rooted in Royappa.
• Royappa itself dismissed the petition on the facts. The later cases use only the passage on equality and arbitrariness, and none of them relies on its rulings on rule 9 or the mala fide allegations.

Critical Analysis

Analysis based on the judgment text.

• The two opinions agree on the result but differ on whether the Officer on Special Duty's post was equal to the Chief Secretary's. Ray, C.J. held it equal. Bhagwati, J. expressed serious doubts and said it appeared prima facie inferior.
• Bhagwati, J.'s opinion held that rule 9(1) was breached for both posts, yet gave no relief under Article 32. Ray, C.J. held that a written declaration is only desirable and that both posts were equivalent. Bhagwati, J. only hoped the State would not drive the petitioner to other proceedings, so the judgment leaves the petitioner's remedy open.
• Bhagwati, J. noted disturbing features in the Cooum project file and said suspicion cannot replace proof. The judgment shows how a heavy burden of proof on the petitioner decided the mala fide ground.

Significance

• The petitioner lost, but Bhagwati, J.'s opinion described Article 14 as a principle that extends beyond classification.
• The opinion held that officiating public servants can invoke Articles 14 and 16 against arbitrary or mala fide transfers.
• It held that a rule 9 declaration of equivalence is a mandatory, substantive safeguard for IAS officers. Pay alone does not decide equivalence.
• Later Constitution Bench judgments cite its passage on equality and arbitrariness.

Exam-Important Points

• Rule first: equality is antithetic to arbitrariness (Bhagwati, J.). Trap: the petition was dismissed, and the passage is from the separate opinion for three Judges, not from Ray, C.J.
• Article 16 is a species of Article 14. Both strike at arbitrary State action and mala fide exercise of power.
• An officiating officer can invoke Articles 14 and 16. Lack of a right to the post matters only for Article 311.
• Rule 9(1) of the IAS (Pay) Rules: a declaration of equivalence is a sine qua non. The declaration is not conclusive, but the burden on the challenger is heavy.
• Violation of rule 9(1) is no ground for relief under Article 32, as it infringes no fundamental right.
• Authentication of an order excludes only the challenge that it was not made by the Governor.
• Mala fides: the burden is very heavy and needs proof of a high order. Suspicion is not proof.
• Ray, C.J. and Bhagwati, J. differ on whether the Officer on Special Duty's post was equal to the Chief Secretary's.

Prepared from the full text of the judgment. Paragraph numbers follow the official Supreme Court judgment text; law reports may number the same paragraph differently.