ORIGINAL JURISDICTION : Writ Petition No. 284 of 1972. Under Art. 32 of the Constitution of India for the enforcement of fundamental rights.
A.K. Sen, S. J. Rana, U. N. R. Rao, V. Selvaraj and R. R. AgarWala for the. petitioner.
S. Govind Swwninadhan, M. C. Setalvad, Ratnavel Pandian, S. Mohan, A. V. Rangam, Habibulah Basha, N. S. Sivan, D. Raju and A. Subashini, for respondent no. 1.
S.V. Gupte, S. Ratnavel Pandian, S. Mohan, A. V. Rangam, D). Raju and A. Subhashini, for respondent no. 2. F. S. Nariman and M. N. Shroff, for intervener. The Judgment of,, A. N. RAY , C.J. and D. G. PALEKAR J. was delivered by RAY, C.J. A separate opinion of Y. V. CHANDRACHUD, P. N. BHAGWATI and V. R. KRISHNA IYER, JJ. was given by BHAGWATI, J.
RAY, C.J. The petitioner in this writ petition under Article 32 of the Constitution asks for a mandamus or any other appropriate writ, direction or order directing the respondents to withdraw and cancel the order dated 27 June, 1972. The petitioner further asks for direction to re-post the petitioner to the post of Chief Secretary in the State of Tamil Nadu. The respondents are the State of Tamil Nadu and the Chief Minister of Tamil Nadu.
The petitioner is a member of the Indian Administrative Service in the cadre of the State of Tamil Nadu. On 2 August, 1968 the petitioner was confirmed in the Selection Grade of the Indian Administrative Service with effect from 22 May, 1961. There were 8 Selection Grade posts in the State of Tamil Nadu. The petitioner was No. 4 in that list. The petitioner in the years 1964, 19;65, 1966, 1968 and 1969 was posted to act as Fifth Member, Board of Revenue; Fourth Member, Board of Revenue; Third Member, Board of Revenue; Second Member, Board of Revenue. On 5 April, 1969 the petitioner was posted to act as Second Member, Board of Revenue. On 11 July, 1969 the petitioner was posted to act as Additional Chief Secretary-
On 11 July, 1969 the post of Additional Chief Secretary was temproraily created in the grade of Chief, Secretary for one year. The State Government further directed that, the post of Chief Secretary to Government, Additional Chief Secretary to Government and the First Member, Board 'of Revenue were deemed to be in the same category and they were inter- changeable selection posts.
On 7 August, 1969 the State of Tamil Nadu wrote to the Central Government to amend Schedule III-A of the Indian Administrative Service (Pay) Rules, 1954 so that the posts of Chief Secretary to Government, Additional Chief Secretary to Government and First Member, Board of Revenue could be of the same cadre carrying the same pay. The Government of India by a letter dated 26 September, 1969 stated that the status of Chief Secretary as the head of the Secretariat Organisation in the State should remain unquestioned. The view of the Central Government was that the status of Chief Secretary should not be allowed to be diluted by the creation of the post of Additional Chief Secretary carrying emoluments as the Chief Secretary.The Central Govt. the same status and also stated that the post of Additional Chief Secretary was not a cadre post. The Central Government, however, expressed the view that the post of First Member, Board of Reventue in the State should 'carry pay its ad- missible to the Chief Secretary.
On 13 November, 1969 the petitioner was posted to act as Chief' Secretary to Government with effect from the afternoon of 13 November, 1969 vice C.A. Ramakrishnan whose date of superannuation was. 14 November, 1969 who has been granted refused level with effect from 14 November, 1969. On 7 April, 1971 the petitioner was appointed Deputy Chairman. of the State Planning Commission. That post was created temporarily for a period of one year in the grade of Chief Secretary to Government.The petitioner did not join the post. The petitioner went on leave from 13 April, 1971 to 5 June, 1972. When the petitioner was on leave Raja Ram, the First Member, Board of Revenue was by an order dated 18 August, 1971 asked to hold the additional charge of the post of Deputy Chairman for one year with effect from 13 August, 1971. On 6 June, 1972 the petitioner returned from leave. He was again. posted as Deputy Chairman, State. Planning Commission on a salary of Rs. 3500/- per month. The petitioner did not join that post. The. petitioner pointed out that the post of Deputy Chairman which was created for one year did not exist after 13,April, 1972. By an order dated 27 June, 1972 the Government of Tamil Nadu accorded sanction to the creation of a temporary post of Officer on Special Duty in the grade of Chief Secretary, to Government for a period of one year from the date of appointment or till the need for it ceased whichever was earlier. By the same order the petitioner was transferred and appointed as Officer on Special Duty in the post sanctioned' aforesaid. The petitioner did not join that post. The petitioner in the month of July, 1972 filed this petition.
The petitioners contentions were these. First, the petitioner is appointed to a post or transferred to a post which is not validly created. The post of Officer on Special Duty is said to be not a post carrying duties and responsibilities of a like nature to cadre posts within the meaning of Rule 4 of the Indian Administrative Service (Cadre) Rules,. 1954. Second, under rule 9 of the Indian Administrative Service (Pay) Rules, 1954 no member of the Service shall be appointed to a post other than a post specified in Schedule III unless the State Government concerned in respect of posts under its control or the Cen- tral Government in respect of posts under its control, as the case may be, make a declaration that the said Post is equivalent in status and responsibility to a post specified in the said Schedule. It is, therefore, said that the Petitioner who is a cadre post holder, viz., holding the post of Chief Secretary cannot be posted to a non-seheduled Post without a declaration that the nonscheduled post is equal in status and responsibilities to a scheduled post. Third, the petitioner is posted to an office which is inferior in status and office to that of the Chief Secretary. Therefore, the order is a hostile discrimination offending Articles 14 and 16. Fourth, the creation of the post as well as the; appointment and transfer of the petitioner to the post is malafide.
In this context it is to be ascertained as to whether the petitioner was appointed to the substantive post of Chief Secretary to the state ate of Tamil Nadu. The petitioner relied on draft order of the chief Minister dated 13 November, 1969 which. stated that the petitioner "is promoted and posted as Chief Secretary". The petitioner also relied on the following note of the Chief Minister at the time of the passing of the order. There were 1 1 senior I.C.S./I.A.S. Officers borne on the Tamil Nadu State Cadre. The petitioner's position was No. 10 in the list of Senior I.C.S./I.A.S. Officers borne on the Tamil Nadu State Cadre. Ramakrishnan, the then Chief Secretary was N o. 1 in the list. Kaiwar, Subramanyam, Mani, Govindan Nair, Vaidyanathan, Ramachandran, Raman, Raja Ram were :above the petitioner in the list. Ramakrishnan and Kaiwar were retiring from :service in the month of November, 1969. Subramanyam and Govindan Nair were acting as Secretaries to the Government of India. Vaidyanathan was away from the State for over 8 years and was working under the Central Government. Ramchandran and Raman also working under the Government of India since 1955 and 1959 respectively. Rajaram had left the State Cadre in 1960. In 1969 Rajaram was the Special Representative to the Government of Tamil Nadu. The choice was between Mani whose position was No. 4 and the petitioner. Mali's work was not satisfactory during the flood relief operations in 1967. There was adverse criticism on his work from the public and the press. The petitioner was commended by his superiors to be dynamic, efficient, vigorous. The petitioner was, therefore, described by the Chief Minister to be best suited for the post.
It thus appears that the Chief Minister's note as well as the draft order stated that the petitioner was promoted and posted as Chief Secretary. But the Gazette Notification dated 13 November, 1969 was that the petitioner was "promoted and posted to act as Chief Secretary to the Government vice C. A. Ramakrishnan, who has been granted refused leave with effect from 14 November, 1969". The gazette notification prevails over the draft order. The substantive appointment of the petitioner was in the selection grade of Rs. 1800-2000. The petitioner was appointed on 13 November, 1969 to act as Chief Secretary. It. was, a temporary appointment. He was not appointed substantively to the post of Chief Secretary. The fact that the petitioner was not appointed substantively to the post of Chief Secretary will appear from the note signed by the petitioner himself on 16 November, 1970. When Ramakrishnan went on refused leave for four months from 14 November, 1969 there was no substantive vacancy in the post of Chief Secretary. The petitioner in his note dated 16 November, 1970 stated that the post of Chief Secretary fell vacant- substantively from 14 March, 1970 and was available for confirmation of an officer. The petitioner signed the note as acting Chief Secretary. The note was put up as to whether there 'was any objection in confirming the petitioner as Chief Secretary. No ,order was passed on that note.
Under Fundamental Rule 56(f) a member of the Indian Civil Service shall retire after 35 years' service counted from the date of ,his arrival in India. Ramakrishnan completed, 35 year's service on 14 November, 1969. When the petitioner was posted on 14 November, 1969 to act as Chief Secretary, Ramakrishnan went on what is described as refused leave for four months. Under Fundamental Rule: 86 clause (c) the grant of refused leave extending beyond the date on which a Government servant must compulsorily retire or beyond the date upto which a Government servant has been permitted to remain in service, shall not be construed as an extension of service. Fundamental Rule 13(d) provides that a Government servant ceases to retain lien on a permanent-post while he is on refused leave granted after the date of compulsory retirement under Fundamental Rule 56 or corresponding other Rules. The effect of refused leave under the Fundamental Rules is that there is no extension of service by the period of that leave. Again, during the period of refused leave there. is no earning of pension. Counsel for the petitioner relied on Fundamental Rules 56(f) and 86(c) and contended that the post of Chief Secretary fell vacant as Ramakrishnan did not hold a lien on his post.
It was contended 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.
Ramakrishnan, who was on refused leave being a member of the Indian Civil Service, was entitled under Article 314 of the Constitution to conditions of service as respects remuneration, leave and pension to which members of the Civil Service were entitled immediately before the commencement of the Constitution. Fundamental Rule 13(d) as it stood prior to the commencement of the Constitution provided for the retention of lien on a permanent post while on heave without making any exception with regard to refused leave. Fundamental Rule 86 as it stood prior to the commencement of the Constitution did not contain any provision to the effect that the grant of refused, leave would not amount to extension of service. The Government of India, Finance Department Notification No. 520-CSR dated 31 May, 1922 contained the Government decision that the grant of leave under Fundamental Rule 86 automatically carried with it the extension required and no formal sanction to the extension was necessary. The effect of Fundamental Rules 86 and 13(d) as they stood prior to the commencement of the Constitution is that an Officer does not continue on duty but draws leave salary by virtue of a privilege granted to him. There is no formal extension of service. He retains lien on his post. The post cannot be substantively filled till he actually retires from service.
The Fundamental Rules of the Madras Government corrected upto 30 June, 1966 issued by the Finance Department, 2nd Ed. 1966 at pages 133-134 contain a note appended to Fundamental Rule 56 of Tamil Nadu State Government. In that note an exception in respect of Indian Civil Service Officers is created by providing that in the case of an Officer of the former Secretary of State Service the grant 3 56 of such leave shall be treated as sanctioning an extension of service upto the date on which the leave expires. Therefore, Ramakrishnan held lien on his post until 14 March, 1970.
The petitioner in the note for circulation dated 14/16 November, 1970 prepared by the Joint Secretary, Public Department, noted that the date of retirement of Ramakrishnan would take effect from the ,date of expiry of the refused leave, namely, 14 March, 1970. That is why the petitioner asked to be confirmed as Chief Secretary with effect from 14 March, 1970. The petitioner was, however, not confirmed in the post. Therefore, the petitioner was not substantively appointed to the post of Chief Secretary. The petitioner's substantive appointment was in the selection grade of Rs. 1800-2000. The petitioner ,during the period of refused leave of Ramakrishnan acted as Chief ,Secretary by way of a temporary arrangement. The petitioner did not have any riot to hold the' post of Chief Secretary.
It was contended that neither the post of Deputy Chairman, Planning Commission nor the post of Officer on Special Duty was a cadre post within the meaning of Rule 4 of the Indian Administrative Service (Cadre) Rules, 1954. The Additional Solicitor General as well as the Advocate General of the State did not contend that either of the posits was a cadre post within the meaning of the Indian Administrative Service (Cadre) Rules. The strength and composition of the cadre as contemplated by Rule 4 of the Indian Administrative Service (Cadre) Rules is to be determined by the Central Government in ,consultation with the State Government. The relevant provision is sub-rule (2) of Rule 4. It states that the Central Government shall at the interval of every three years reexamine the strength and composition of each such cadre in consultation with the State Government or the State Governments concerned and may make such alterations as it deems fit. There are two provisos in the sub-rule. The first proviso states that nothing shall be deemed to affect the power of the Central Government to alter the strength and composition of the cadre at any other time. The second proviso states that the State Government may add for a period not exceeding one year and with the approval of Central Government for a further period not exceeding two years, to a State or joint cadre one or more posts carrying duties and responsibilities of a like nature of cadre posts. It, therefore, follows that the strength and composition of the cadre shall be determined by regulations made by the Central Government in consultation with the State Government. The State Government alone cannot alter the strength and composition of the cadre., The aforementioned second proviso to Rule 4(2) of the Cadre Rules does not confer any power 'on the State Government to alter the strength and composition of, the cadre. If such power were conferred on the State examination of the strength and composition. at the interval of every three years by the Central Government in consultation with the State Government would be nullified. The meaning of the second proviso to rule 4(2) is that the State, Government may. add for a period mentioned there to the cadre one or more posts 35 7 carrying duties and responsibilities of the like nature of a cadre post. The posts so added do not become cadre; posts. These temporary posts do not increase the strength of the Cadre. The addition of the post of Deputy Chairman, Planning Commission or Officer on Special Duty to the Indian Administrative Service Cadre of Tamil Nadu State is not permissible because that would result in altering the strength and composition of the Cadre. The State has no such power within the second proviso to rule 4(2) of the Cadre Rules.
Counsel for the petitioner contended that the post of Deputy Chairman, Planning Commission as well as the post of Officer on Special Duty was not equivalent in status and responsibility to the post of Chief Secretary to Government within the meaning of Rule 9(1) of the Indian Administrative Service (Pay) Rules, 1954. The petitioner alleged that both the posts, were upgraded or downgraded depending upon the persons to occupy them and therefore the posts were. not equivalent in status and responsibility to the post of the Chief Secretary. When the petitioner was appointed to the post of Deputy Chairman, Planning Commission it was upgraded. When Rajaram was appointed to hold an additional charge of Deputy Chairman in addition to the post of First Member, Board of Revenue it was downgraded. When the petitioner was appointed to occupy the post the post was said to be equivalent to that of Chief Secretary. When Rajaram was appointed it was downgraded to the level of the First Member, Board of Revenue. The post of, Deputy, Chairman, Planning Commission was created for one year in the month of April, 1971. On 26 June, 1972 the State created a new post of Special Officer for Commercial Taxes which was stated to be of the rank of Member, Board of Revenue. On 27 June, 1972 the petitioner was appointed to that post in the grade of Chief Secretary for a period of one year or till the need of the post ceased whichever was earlier. The petitioner alleged that on 26 June, 1972 when the post of Special Officer for Commercial Taxes was created it was supposed to be, of the rank of a Member, Board of Revenue but on 27 June, 1972 the post was upgraded and regarded as of the grade of Chief Secretary. When the petitioner did not take charge as Deputy Chairman of the Planning Commission on 7 April, 1971, the Government directed Rajaram, the senior most officer in the State who was the First, Member, Board of Revenue to hold additional charge. Again when the petitioner did not join on 6 June, 1972 as Deputy Chairman of the Planning Commission, it was decided to post Rajaram in his place. Rajaram was drawing only a salary of Rs. 3000/- per month. The post of Deputy Chairman was to be filled either by the petitioner or by Rajaram. The post was not inferior. The Planning Commission is an advisory body to the Government like the Planning Commission at the Centre. The Chief Minister is the Chairman of the Planning Commission. The petitioner was drawing a salary of Rs. 3500/per month when he acted as Chief Secretary. Therefore, the post of Deputy Chairman, Planning Commission carried a pay of Rs. 3500/per month when the petitioner was appointed as Deputy Chairman of the Planning Commission. The upgrading' and the downgrading of the post of Deputy Chairman, Planning Commission alleged by. the Petitioner is not correct. The Post was not upgraded or downgraded. The incumbent of the post carried a higher or a lower salary according to the salary enjoyed by the incumbent at the time of the appointment.
Broadly stated, the petitioner's 'contentions about the two posts of Deputy Chairman, Planning Commission and the Officer on Special Duty were first that there was-no declaration in accordance with Rule 9 of the Indian Administrative Service (Pay) Rules that the posts were equivalent in status and responsibility to a post specified in the Schedule to the aforesaid Rules; , secondly, that the functions and responsibilities of the two posts were. such that no comparison could be made between those posts and the posts in the Schedule, Rule 9 speaks of a declaration that the post is equivalent in status and responsibility, to a post specified in Schedule III to those Rules. Sub-rule (4) of rule 9 states that where equation of posts is not possible the State Government or the Central Government may, for sufficient reasons to be recorded in writing appoint a member of a service to such a post without making a declaration. It is, therefore,. said on behalf of the petitioner that a declaration in writing is necessary where a post is declared to be equivalent in status and responsibility just as reasons are to be recorded in writing where it is not possible to have a post equivalent in status and responsibility. in other words it is said that in one case it is a declaration in positive terms that the post is equivalent in status and responsibility and in the other case the declaration is negative in content that though the post is not equivalent in status and responsibility yet a cadre officer of the Service is appointed to such a post. It is not in dispute that the posts of Deputy Chairman, Planning Commission and the Officer on Special Duty carried the same pay as that of the Chief Secretary. It cannot be said that equal pay will by itself alone be decisive of the equation of status and responsibility of the post. But pay scale will primarily show status and responsibilities of equal nature.
The Chairman of the.Planning Commission is the Chief Minister. The Planning Commission is a high powered Commission., The position of the Deputy Chairman is equal in status and responsibility to the duties of, the Chief Secretary. The real significance of aforementioned Rule 9 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.
It also appears that the State since the year 1970 had been contemplating the setting up of a Planning Commission. In the month of March, 1970 the Finance Department prepared a note that a Planning Commission was necessary in industrial project, power project and irrigation. A properly organised plan for a region is to be an adjustment of the continuing rate of growth of economic product and a plan of continuing investments. A plan of long term development is necessary. Such a plan would spell out the various resources which can be utilised and the manner in which the fuller life can be attained by the people. The Finance Department of the State in 1970 advocated en-
35 9 gagement of a group of qualified economists to work in collaboration with the Institute of Economic Growth, New Delhi. The State wanted to set up an Institute of Economic Planning, to work with the advice of the National Council of Applied Economic Research. A separate department of planning was suggested by the State. The reason was to have the advice of experts with knowledge in the specialised field.
The petitioner as the Chief Secretary on 23 March, 1970 did not accept the advice of the Finance Secretary of, the State. The was against the proposal to entrust formulation of plan to a body of experts. The petitioner advised utilising the services of senior officers of Government department and enlisting the services of experts in any particular sphere of activity or project, if found necessary. The Chief Minister on 25 December, 1970 recorded a note that a 10-year plan was necessary. The State Planning Commission was set up in the month, of April, 1971. The Planning Commission was to consist of Chairman, Deputy Chairman, Members, Secretary and Deputy Secretary. The Chief Minister was to be the Chairman. A full time officer in the grade of Chief Secretary was to be the Deputy Chairman. The Planning Commission was to achieve the declared objectives of the Government to promote a rapid rise in the standard of living of the people. The other objects were to see that the, ownership and control of the material resources of the community are so distributed as to sub-serve the common good. The character and content of the Planning Commission shows that the Chairman being the Chad Minister the Deputy Chairman was equal in status and responsibility to the post of the Chief Secretary. The State Government in the year 1969 sanctioned the constitution of a statistical cell for preparing scientifically processed data of production and the source of production of various commodities liable to sales tax. A scientific analysis was also made of the pattern of, trade and revenue accruing from different sections,of the trade. In the month of August, 1970 the Government examined the suggestion of the Commissioner, Commercial Taxes to constitute an expert committee to look into the various aspects of sales tax. In the month of October, 1970 the Chief, Minister indicated that a committee might to constituted for going into the working of the sales tax law and to suggest methods for simplification of the'- legislative measures. In the month of April, 1971 the Chief Minister reviewed the important aspects of administration of Commercial Taxes Department. The were persistent demands from one section of the trade for single point levy. There were also demands from the other section for changing the existing single point items to multi point levy (if sales tax. The idea of appointing a committee was still engaging the attention of the Government. A note was prepared by the Revenue Department with regard to constitution of a committee to undertake a comprehensive study of the sales tax structure in the State. Eventually the Government in the month of June, 1972 decided to appoint a senior Indian Administrative Service officer for "Streamlining and, relationalising" the structure of Tamil Nadu General Sales Tax Art and similar enactments relating to Commercial Taxes and Rules made thereunder.
-L522SupCI/74 The State General Sales Tax and other Commercial Taxes for long contributed the preponderant share towards the revenue receipts of the State. Sales Tax played a significant role in the context of development programme of the State. These taxes fetched Rs. 112 crores in 1971-72. The General Sales Tax Act was enacted in 1959. In order to meet the situations arising from changing patterns of trade and commerce, the interpretations of the Act by courts of law, the discovery of loop-holes in the statutory frame-work, the Sales Tax Act has been amended from time to time. The Chambers of Commerce represented Government for simplification and rationalisation of the tax. structure and statutory pre measures and practices' It is in this context that the State Government created the 'Post of Officer on Special Duty.
The Officer on Special Duty was entrusted to deal with these matters. First,-there is to be general review of the commercial Taxes Acts from the point of view of the rate of growth of revenue in relation to the rate of growth of income and the rate of growth of commerce and industry. Second, the Sales Tax Act, the Entertainment Tax Act, the Local Authorities Finance Act, the Motor Spirit Taxation Act, the Betting Tax Act being all State Acts and the Central Sales Act could be rationalised and simplified so as to facilitate easy administration and also to reduce hardship to the trading community. Third, the present classification of commodities taxed at single point and multi point is to be studied in order to find, out as to what extent there, is a case for transfer of commodities from multi point to single point and vice versa. Fourth, it is to be found out whether there is any need and justification for the continuance of the concessional rate of taxation under the General Sales Tax Act on components coming under single point levy, and, if so, whether there is a case for extending the same consession to all raw materials. Fifth, measures are to be found to improve the procedure of inspection, search and seizure in order to make them more effective and. at the same time to minimise the apprehension of harassment on the part of the trading community. Sixth, measures are to be taken to make the check post more effective and arrangements for the collation and interpretation of data collected at the check posts and the cross verification of such data with assessment records are also to be made. Seventh, measures to ensure regular and systematic flow of vital data such as tax yield from, various comes and changes in trade practices affecting tax yield to the Board of Revenue (Commercial Taxes) are to be devised and arrangements are to be made for their collation and. interpretation to facilitate-tax policy. These are some of the principal duties and responsibilities of the officer on Special Duty.. These duties indicate in no uncertain terms the the post of Officer on Special Duty is of enormous magnitude and importance in formulation and shaping of the revenue structure of the The duties and responsibilities of the Officer on Special Duty are beyond any measure of doubt equal in status and responsibility to those of the Chief Secretary.
It was conntended on behalf of the Petitioner that there should be a declaration in writing. The purpose of the declaration that the post is equivalent in status and responsibility to Cadre post specified in the Schedule to the Indian Admmistrative Service (;Pay) Rules is to ensure that members of the Cadre are not taken to posts beneath their status and responsibility. These measures are intended to preserve respectability and responsibility of the' Cadre, officers. The declaration is not one of mere form. It is of substance. A declaration in writing is desirable. The absence of a declaration will not be an impediment in ascertaining the, equivalent status and responsibility. Similarly the presence of a declaration may not be conclusive if the declaration is a mere cloak. The facts and circumstances will be looked into in order to find out whether there is in real substance equality in status and responsibility.
Fundamental Rule, 15 provides that no Government servant can be, transferred substantively to or appointed to officiate in a post carrying less pay than the pay of the permanent post on Which holds a lien or would hold a lien had his lien not been suspended under rule 14. The position of the petitioner was that he Was- holding a lien in the selection grade post. It was open to the Government to transfer him to a post or to appoint him to officiate in a post carrying pay not less than what he was entitled to in the selection grade of Rs. 1800-2000. However, the petitioner was appointed to the post of Deputy Chairman, Planning Commission on 6 April, 1971 carrying a salary of Rs. 3,500 per month. The petitioner went on leave from 13 April, '1 971 to 5 June 1972. On 6 June, 1972 when the petitioner returned from leave he was again posted as Deputy Chairman of the State Planning Commission. The post carried a salary of Rs. 3,500/- per month which is the same as that of the Chief Secretary. The petitioner made a representation on 17 June 1972 that the post of Deputy Chairman in the rank of Chief Secretary could not continue for a period of more than one year since April. 1971. The Government on 26 June, 1972 sanctioned the creation of a temporary post of Officer on Special Duty. On 27 June, 1972 the petitioner was promoted to the post of Officer on Special Duty. The post of Officer on Special Duty also carried the same salary as that of the Chief Secretary. Therefore, the) petitioner who was in the selection grade could be transferred to any of these two posts of Deputy Chairman, Planning Commission or Officer on Special Duty which were posts not lower in status and responsibility to the Cadre posts in Schedule III of the Indian Administrative Service (Pay) Rules, 1954 and Which carried the same salary as that of the Chief Secretary. The posts of the Deputy Chairman, Planning Commission and the Officer on Special Duty were created for cadre officers to discharge duties and responsibilities of a high order,. These posts were, not created all of a sudden with any oblique purpose. The Planning Commission bad been in contemplation for some time. Similarly, the post of Officer on Special Duty was created after,consideration and evaluation of serious problems of State Revenue. Each one of the posts carriedspecific functions any responsibilities. Comparisons between , duties and responsibilities of posts at the apex ,of different departments are not always possible. The status of the 3 62 post would also depend on the incumbent, because a brilliant officer can so augment the opportunities of public service in that post that others may covet it. The posts were created under the inherent executive powers of the State Government. These posts were not additions to posts specified in the Cadre Schedule of the Indian Administrative Service (Cadre) Rules, 1954. These were posts outside the cadre.
On an objective consideration we find that the two posts were created for discharging functions requiring very high calibre and specialized experience and must be counted as no less responsible than the topmost cadre posts. Finding suitable officers for such specialized jobs is always a difficult problem for the administration. The Cadres do not always overflow with superabundance of specialized experience. The choice, therefore, becomes limited. The Administration has also to take into account the willingness or otherwise of an officer to take up a new job which may not invest him with wide executive powers which he wields, while holding even less important posts. The choice in the present case fell on the petitioner when the post of the Deputy Chairman was created and then again when the post Special Officer was created. He was given the pay scale of the Chief Secretary, because that was the scale of pay he was drawing when he was appointed to these posts. The fact that on his refusal to join the posts, some body else was appointed on Rs. 3000/- does not devalue the job. The job remains the. same., The question for the administration is to choose the man for the job, and it is only to be expected that whosoever is chosen will take with him his pay unless Government thinks, of paying him more. When the petitioner was posted to the new posts he was permitted to draw his salary as the Chief Secretary and when Rajaram the First Member of the Board of Revenue was appointed, he took with him his salary as the First Member. When the petitioner was to occupy the post of Deputy. Chairman or Special Officer the post was graded to give him his old scale.of pay and when Rajaram was appointed to these posts, he was given his old scale as First Member. That the posts of Chief, Secre- tary. and First Member were interchangeable, though the former got a higher salary, was recognized by the State Government and also endorsed by the Central Government long back in January, 1970. There was, therefore no upgrading or downgrading of the post.
The petitioner had worked as Deputy Commissioner of Commercial Taxes and subsequently as Secretary to Government, Revenue Department dealing.with commercial Taxes also. The petitioner was also Commissioner, Both of Revenue in charge of commercial taxes. In view of the wide experience of the. petitioner in the field of commercial taxes the Government decided to ,post him as Officer on Special Duty. This was neither unjust nor unfair nor malafide. There was no reduction in rank. The petitioner's status as well as pay was in conformity with the Rules. The, petitioner could not claim that till retirement he must continue to act in the post of the Chief Secretary. The orders of transfer were passed in the administrative exigencies.
The members of Indian Administrative Service and particularly those who are in the high posts are described as the steel framework of the Administration. The smooth and sound administration of the country depends in the sense of security and stability of the officers. These officers should not be made to feel that their position or posts are precarious with the change of Government. Their service must be completely free from the fear or threat of arbitrary act of the author,. ties. Similarly, the members of the Service should keep themselves isolated from turmoils of political parties. It is this sense of disinterestedness and detached devotion to duty which has to be recognised and rewarded.
The posts of Deputy Chairman, Planning Commission and Officer on Special Duty are equal in status and responsibility. The services of cadre officers are utilised in different posts of equal status and responsibility because of. exigencies of administration and employing the best available talent in the suitable post. There is no hostile discrimination in transfer from one post to another when the posts are of equal status and responsibility. The petitioner alleged that the creation of the posts of Deputy Chairman, Planning Commission and Officer on Special Duty as well as the appointment of the petitioner to the posts was malafide. Broadly stated, the petitioner's allegations were that the Chief Minister acted malafide in removing the petitioner from the post of Chief Secretary The petitioner alleged that in the discharge of his duty lie was fearless and he suggested action against persons who were friendly to the Chief Minister. It is- said that the Chief Minister therefore wreaked his vengeance on the petitioner. One of the instances alleged by the petitioner which gave rise to the anger of the Chief Minister relates to irregularities in the, accounts of Tanjavur Cooperative Marketing Federation, V. S. Thiagaraja Mudaliar was the head of th e Federation. Mudaliar was a powerful and influential person. He was a close associate of the Chief Minister. The petitioner put up a note to the Chief Minister that the case should be handed over to the police and the persons responsible should be hauled up. The petitioner alleged that the Minister for Co-operation called the petitioner and asked him to modify the note. The modification suggested was to leave out any reference to Mudaliar and to omit the suggestion for handing over the matter to the police.' Another allegation concerning Mudaliar is that he was flouting orders of the Government and health authorities and allowing effluents from the distillery at Tirucharapalli without proper treatment into the river and thereby causing hazards. The petitioner wrote a note asking for deterrent action and launching prosecution against Mudaliar. The petitioner alleged that the Chief Minister expressed his annoyance.
The Minister for Co-operation denied that he asked the petitioner to modify any note. The Chief Minister denied that he ever asked for any modification in the note. The Chief Minister further alleges in the affidavit that there is no note written by the petitioner suggesting the launching of prosecution against Mudaliar. Both the Chief Minister and the Minister for Co-operation state in their affidavits that action has been taken and is being pursued against all the persons concerned relating to the affairs of the Federation. The petitioners' suggestion was accepted. There is no occasion for vindictiveness. The petitioner's allegation that the Chief Minister expressed annoyance at the petitioner's note against Mudaliar for causing hazards by discharge of effluent from the distillery is belied by the action taken by the Government. The petitioner in his note suggested a joint inspection and satisfactory arrangement for treatment of the effluent in accordance with the recommendation of the Water and Sewage Advisory Committee. The petitioner's proposal was accepted. The petitioner also recommended implementation of a plant scheme, on pain of cancellation of licence. Industrial alcohol is manufactured in the distillery. This product is required by the cordite factory of the Defence Department, and for pharmaceutical, medicinal and industrial products. The petitioner's recommendation to close the distillery would not only have created unemployment of a large section but also loss of important products. The way the affairs of the distillery were handled according to the suggestion and recommendation of the petitioner does not disclose any evidence of malafide on the part of the Government.
The third instance of malafide alleged by the petitioner was that the Chief Minister did not like the suggestion of the petitioner that Vaitialingam, the Private Secretary to the Chief Minister should be transferred. The Chief Minister is also alleged to have said that the Chief Secretary should be transferred but not the Private Secretary. The Chief Minister denied that he ever made any statement that the Chief Secretary should be transferred.
It is also alleged that the Chief Minister wanted to prefer Vaithialingam in the preparation of the seniority list of the Indian Administrative Service. The petitioner alleged that he declined to oblige. Therefore, it is said that the petitioner suffered by the malafides of the Chief Minister. There were disputes between direct recruits and' promotees in regard to fixation of seniority. The Chief Minister on the advice of the petitioner passed an order on 22nd Dec., 1969 that the Government could finace the seniority list after considering the representations of the members. The "petitioner thereafter submitted' a file to the Chief Minister that direct recruit Assistant Engineers of the Public Works Department also made requests for revision of seniority as between them and the promotee Engineers. The Chief Minister under these circumstances Cancelled his order dated 22 December, 1969. Subsequent to the cancellation of the order direct recruit Deputy Collectors filed writ petitions in the High Court claiming revision of seniority on the basis of Government order dated 22nd December, 1969. Those petitions are pending disposal in the High Court of Madras.
The petitioner also alleges, that the Chief Minister refused to allow Deputy Collectors in the select list to act in the Indian Administrative Service posts and many retired at the age of 55 without acting as 1,A.S, Officers. The petitioner alleges that the Chief Minister thought that Vaithialingam would thereby gain seniority in the inter se seniority list of Deputy Collectors because, the age of superannuation of I.A.S. Officers is 58. The respondents in their affidavits stated that the I.A.S Selection Committee could not meet for the years 1968, 1969 and 1970 for various reasons. The, petitioner in a note suggested that the inclusion of name in the Select List did not confer any right of promotion. The Chief Minister agreed with the petitioner.
These facts in relation to Vaithialingam indicate that the petitioner was not only a,party to all the decisions but also he was responsible for the decisions taken by the Government. There is no ground whatever for attributing bad faith or improper motive to the Government against the petitioner.
The petitioner alleged other instances which gave rise to the wrath of the Chief Minister against the petitioner. There was land acquisition at Manali for Madras Refineries. Large compensation was paid to the owner Ramkrishnan. The petitioner caused the suspension of the District Revenue Officer and other Officers for suppressing the note that the Law Department had strongly opposed the proposal to award large compensation. The affidavit evidence of the respondents is that the awards were passed by the land acquisition authorities. The Law Department was of the view that land acquisition officers. did not Department advised disciplinary action against the officers. The Law Department recommended that the awards should be get aside. The Chief Minister, the Minister of Law both directed that suitable action should be taken. The file was sent to the petitioner for further action. The petitioner asked for suspension of the Officers. The Government approved the suspension because of the clear instructions of the Government. Disciplinary proceedings are pending against these officers. It is obvious that the petitioner's allegations of malafide against the Chief Minister are totally repelled by the correct facts.
The petitioner alleged that the' Chief Minister expressed the view that the Government could not tolerate the Chief Secretary who (Wed to oppose the proposal relating to Anna Samadhi. it is follows. The D.M. K. Party decided to erect a Samadhi called Anna Samadhi. The Chief Minister wanted to appoint a committee for management and maintenance of the Samadhi. The Chief Minister wanted to issue an Ordinance' in that behalf. The petitioner opposed the promulgation of the Ordinance. The idea of the Ordinance was dropped. 'it is said that thereafter a private trust was created for administering the Samadhi. The trustees requested the Government to hand over the Samadhi to the trust. The petitioner opposed the posal on the ground that the portion of the land belonged to' the Municipal Corporation and the land together with the Samadhi cost the Government and the Corporation Rs. 40 lakhs. The petitioner's allegations are all baseless. The Public Works Department examined the proposal to hand over the Samadhi to the private trust. file was marked to the Chief Minister. The petitioner merely noted "Chief Minister may decide". The petitioner did not oppose the proposal. This fact also indicates that the Chief Minister did not bear any grudge against the petitioner.
The petitioner alleges that an extra-ordinary-procedure was followed 'a connection with the tender for the Veeranam Water. Supply Scheme to the city of Madras. One Satyanarayana submitted the tender. The amount involved was Rs. 20 crores. The Government agreed to pay an advance of Rs. 90 lakhs as loan to the contractor for buying machinery. The petitioner did not approve the proposal. The petitioner said that a considerable. time would be required to scrutinies the tender for such a large amount. The petitioner returned the file without scrutiny because the Minister for Works wanted it. This annoyed the Chief Minister. On the other hand Government alleges that eight firms submitted tenders for the Veeranam project. The tender of Satyanarayana Brothers was the lowest. They were, a local company with wide- experience in civil works and defence works. The Chief Secretary received the Me on 27 April 1970. Orders were to be issued urgently. The file was obtained by the Additional Chief Secretary from the Chief Secretary's office. It was then ordered by the Minister for Works after discussion with the Chief Minister that the lowest tender of Satyanarayana might be accepted. Orders were issued on 7 May 1970 accepting the tender of Satyanarayana Brothers. The petitioner's alleged note that he wanted time to scrutinise the file is not found in the file. An expert team recommended the acceptance of the. tender of Satyanarayana Brothers. It thus appears that the petitioner saw the file on 1 1 May 1970 after the tender had been accepted on 7 May 1970. The petitioner did not raise any objection to the procedure which was adopted. When the matter came for final orders on 13 July 1970 the petitioner did not record any objection. This is wet another instance which establishes that the petitioner made reckless allegations imputing mala fides to the Chief Minister. The other allegation of the petitioner concerns the Cooum River Project. The allegation is that the petitioner pressed for an investigation of the Cooum River Project. The Chief Minister issued orders for an enquiry. Later on the Chief Minister cancelled the order. The Chief Minister directed the Director of Vigilance to look into certain rumours about malpractices in the execution of the Cooum Improvement Scheme. The Director of Vigilance informed the petitioner and requested him to accord sanction to enable the Director to embark upon such an enquiry. The relevant section put up before the petitioner a draft letter authorising.the Director to embark on an enquiry. It is discovered that no action was taken by the petitioner. The letter of the Director dated 25 February 1970 addressed to the petitioner indicates that the Director asked for authorisation to make an enquiry. The Me indicates that the petitioner on 26 February 1970 submitted a note for Public (Secret Confidential) Department for perusal. The Public (Secret Confidential) Department received the file on 20 September 1970. There are minutes of the Chief Minister ordering the enquiry. The file was put up before the petitioner on 21 September 1970. The file was not received back.: On 31 July 1971. the Chief 3 6 7 Secretary asked the petitioner to send back the file. The petitioner on 8 August, 1971 said that the file was not with him These are indeed strange things. it is baseless to allege mala fides against the Chief Minister. The brunt of the petitioner's allegations against the Chief Minister centres on the mid-term Doll in the month of February, 1971. The petitioner's allegations are these. In or about the end of January, 1971, the D.M.K. Party of which Ramaswami Naicker is the leader took out an anti-religious procession at Salem. It is alleged that the procession hurt the feelings of devout Hindus. One Ramaswami, popularly known as "Cho" who is the Editor of a magazine called "Tughlak" took photographs of the procession. The D.M.K. Party obtained information that Cho was likely to publish the photographs. 'The D.M.K. Party thought that in view of the impending elections the publication of the photographs would affect their prospects at the election. The petitioner received a trunk call from the Law Minister who asked him to take action to prohibit publication of the photographs. The petitioner said that the Government had no power to prevent the publication.
The Chief Minister shouted on the telephone that the Deputy Superintendent of Police should be suspended and action should be taken against the magazine. The petitioner discussed the matter with the Inspector General of Police who said that it would be, most unfair to suspend the Deputy Superintendent of Police, Salem. The petitioner suggested that the matter might be dropped. The Chief Minister thereupon asked the Inspector General of Police to suspend the Circle Inspector of Police at Salem. The. Inspector General of Police suspended the Circle Inspector and registered a case against him. When the Chief Minister returned from his camp, he took the petitioner to task for registering a case against Naicker.
The Chief Minister in his affidavit states that he told the petitioner that action should be taken against the persons who had broken ;the law. He denies that he took the petitioner to task for registering a case against Naicker. He denies that he shouted at the petitioner and ordered the Inspector General of Police to suspend any police officer. The other allegations by the petitioner are these. On 28 February, 1971 the petitioner received a telephone message from the Deputy Inspector General of Police about various clashes involving looting, killing, burning of houses in the village. in Tireunelveli District on the previous night. The Inspector General of Police informed the petitioner that the Minister of Co-operation was at the back of the clashes. The District Collector was not helpful in take action against the Minister. The petitioner told the Collector that it was a serious dereliction of duty. The petitioner asked the Collector to proceed immediately to the spot to take stepS to maintain law and order. The petitioner also asked for a full report.
At 4 p.m. on 28 February, 1971 the Governor summoned the petitioner and the Inspector General of Police. The Governor summoned them to discuss about the deteriorating law and order situation in the city and the Districts. The Governor made special reference to the complaints received by him about violence and intimidation particularly from Tirupattur (Ramnad), Shivai Kundam, Udumalpet, Tiruvannamalai and Saidapet constituencies from where, the Chief Minister and other Cabinet Ministers were contesting the elections. The Inspector General of Police told the Governor that lorry loads of goondas armed with deadly weapons had arrived in the city of Madras. The goondas numbered about 1500. They were brought at the instance of the Chief Minister. The Governor was annoyed and shouted "how was it possible to transport 1500 goondas from nearly 300 miles by lorries without the knowledge of the police. I expect the police to do their duty. The law and order situation has deteriorated considerably through on the State. In the Tirupattur Constituency of Ramnad District there was no semblance of law and order. I had received telegrams and complaints. Unless the Collectors and the Superintendent of Police do their duty there would be no free and fair Elections". The Governor told the petitioner "Mr. Chief Secretary, throughout your career, you have the reputation of carrying out the duties without fear or favour and without bothering about the consequences. I am sure that I could rely upon you to take special steps to arrest the deteriorating law and order situation and ensure free and fair Elections. The petitioner assured the Governor that he would take strong action.
The Petitioner then discussed with the Inspector General of Police about the special steps to be taken to maintain law and order. The petitioner gave orders to the Inspector General of Police that the goondas should be arrested. The Inspector General of Police agreed to carry out the orders. Raid was carried out in the night.
The Chief Minister sent for the petitioner and shouted at him. "I am the Chief Minister. I am in charge of the Police Portfolio. How dare you order the arrest of persons ill my constituency without my prior permission ?" The petitioner said that he carried out his duty without favour and fear. The Chief Minister flared up and said "You had deployed Central Police every two feet at Thiagarayanagar, Mylapore, Saidapet and other places. I order you to withdraw immediately the Central Reserve Police". The petitioner said that he had asked for five battalions of Central Reserve Police for maintaining law and order situation. It was not possible to withdraw the Central Reserve Police. The Chief Minister shouted at the petitioner.
After the polling was over the police force posted in the city was moved to the other polling areas. Law aid order situation deteriorated considerably in the city. A lady M.L,A. belonging to the Congress Party was dragged from her car and molested. Goondas armed with sticks and weapons were at large. The Inspector General of- Police discussed the matter with the petitioner. The petitioner asked them to round up all bad elements. More than 2600 bad elements were rounded up. In the absence of the Chief Minister, two Ministers phoned the Commissioner of Police to release the D.M.K. ring leaders. The Commissioner of Police in accordance with the petitioner's instructions refused to release them unless proper bail was offered. The Commissioner of Police informed the petitioner that the Chief Minister himself had phoned him. The Inspector General of Police reported that the D.M.K. was pressing into service goondas. He apprehended trouble as some of the Ministers were indulging in dangerous activities. The petitioner ordered the inspector General of Police to intercept lorry-loads of goondas. The Chief Minister- and the Minister of Law., when they came to know about the instructions issued by the petitioner to the Inspector General of Police asked the petitioner to withdraw the instructions. The petitioner refused to do, so, On 4 March, 1971 a Code message was received from the Home Ministry that the Ministry had received disturbing reports about clashes between various political groups in parts of the city. Officers. were asked to be fully vigilant and take preventive measures. The petitioner discussed the matter with the Home Secretary, Inspector General of Police, Commissioner of Police. and other officers and issued instructions. The instructions were that the people should not be allowed to collect within three furlongs of the counting centres. Bad elements should be rounded up 24 hours before the counting began. The Collectors and the Commissioner of Police should form , Peace Committees and request the political parties not to take out victory processions or indulge in violence. Section 41 of the City Police Act and Section 30 of the District Police Act were to be promulgated to regulate crowds.
On 6 March, 1971 the Chief Minister rang up the petitioner and asked him to be present at the Cabinet meeting along with the Inspector General of Police, the Commissioner of Police and the Home Secretary. At the Cabinet meeting the petitioner was attacked and' abused by the Law Minister. The petitioner, the Inspector General' of Police and the Commissioner of Police were threatened with dire- consequences. The results were declared on 1 1 March. The D.M.K. maintained its majority.
After the elections a meeting of all the District Collectors was: fixed for 6 April, 1971 at Madras. The Chief Secretary as the Service Chief was responsible for conducting the proceedings. The Chief' Minister called a Press Conference around 12 mid night at which, be announced that the petitioner was appointed as Deputy Chairman, of the State Planning Commission and that he would be transferred forthwith.
It is in this background of long narration a of events at the time of' Election that the petitioner alleges that the Government and the Chief Minister acted malafide against the petitioner because of the stern attitude of the petitioner against the D.M.K. Party.
The Chief Secretary of the State in his affidavit states that there is no record of any one of the matters alleged by the petitioner with regard to law and order situation on the eve and at the time of the election save and except the instructions issued by the petitioner on 4 March, 1971 with regard to promulgation. of section 41 of the City police Act and section 30 of the District Police Act, rounding up of bad elements and probation offenders and prohibition of processions The order passed by the petitioner was reviewed at the State Cabinet Meeting on 6 March, 1971. There were two modifications. First, the prohibition against collection of people within three furious of the counting centre was, changed into safe distance, in place of three furlongs. The rounding up of rowdies and bad elements and probation offenders was restricted only to "listed rowdies". The Home Ministry Code message dated 4 March, 1971 about clashes between political groups was received but the Government did not attach special or particular importance to the message. The Secretary Ministry of Home Affairs sent a message on 16 March, 1971 commending the excellent arrangements made for ensuring free and fair elections. The Government, therefore, states that law and order was well maintained. The letter dated 16 March, 1971 was a circular letter sent to all the Chief Secretaries and therefore the Government states that no special credit can be claimed by the petitioner or ascribed to the petitioner's alleged instructions.