Equality is a dynamic concept with many aspects and dimensions and it cannot be "cribbed cabined and confined" within traditional and doctrinaire limits. From a positivistic point of view, equality is antithetic to arbitrariness.
[Case Brief] E. P. Royappa V/s State of Tamil Nadu and Another
Case name: E. P. Royappa V/s State of Tamil Nadu and Another
Case number: WRIT PETITION No. 284 of 1972, (1974) 4 SCC 3
Court: Supreme Court of India
Bench: A.N. Ray,
V.R. Krishna Iyer,
Decided on: 23 November 1973
Relevant Act/Sections: Constitution of India, Indian Administrative Service (Pay) Rules, 1964, sch. III-A, rr. 9, 9(1) and 9(4), Indian Administrative Service (Cadre) Rules, 1964, rr. 4 and 4(2), Fundamental Rule of Indian Civil Service, rr. 56(f), 86(c), 13(d), 14, 56, 9(19), 86 and 86(a), Tamil Nadu General Sales Tax Act, General Sales Tax Act, 1959
• BRIEF FACTS AND PROCEDURAL HISTORY:
1. 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.
2. The petitioner in the years 1964, 1965, 1966, 1968 and 1969 was posted to act as Fifth Member, Board of Revenue; Fourth Member, Board of Revenue; Third Member, Board of Revenue; Second Member, Board of Revenue. On 5 April, 1969 the petitioner was posted to act as Second Member, Board of Revenue. On 11 July, 1969 the petitioner was posted to act as Additional Chief Secretary.
3. On 11 July, 1969 the post of Additional Chief Secretary was temporally 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 interchangeable selection posts.
4. On 7 August, 1969 the State of Tamil Nadu wrote to the Central Government to amend Schedule III-A of the Indian Administrative Service (Pay) Rules, 1954 so that the posts of Chief Secretary to Government, Additional Chief Secretary to Government and First Member, Board of Revenue could be of the same cadre carrying the same pay.
5. 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.
6. 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.
7. On 07 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 05 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 06 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.
8. 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.
9. The petitioner did not join that post. The petitioner in the month of July, 1972 filed this petition.
• ISSUE BEFORE THE COURT:
1. Whether the petitioner was appointed to the substantive post of Chief Secretary to the state of Tamil Nadu? Whether such promotion to chief secretary was byway of substantive appointment or in an officiating capacity?
2. Whether what was done was in mala fide exercise of power or in violation of Arts. 14 and 16 of the Constitution?
3. Whether the appointment of the petitioner to the non-cadre posts of Deputy Chairman, State Planning Commission and Officer on Special Duty was in compliance with this requirement?
4. Whether the transfer of the petitioner first to the post of Deputy Chairman and then to the post of Officer on Special Duty was arbitrary, hostile and is mala fide exercise of power?
• RATIO OF THE COURT
• The petitioner’s contentions were these.
1. First, the petitioner is appointed to a post or transferred to a post which is not validly created.
2. Second, the Petitioner who is a cadre post holder, viz., holding the post of Chief Secretary cannot be posted to a non-scheduled Post without a declaration that the nonscheduled post is equal in status and responsibilities to a scheduled post.
3. 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 Arts. 14 and 16.
4. Fourth, the creation of the post as well as the; appointment and transfer of the petitioner to the post is malafide.
1. 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 performs 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.
2. The court held that 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.
3. Therefore, the court settled that 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.
4. On an objective consideration the court found 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.
5. The court settled that 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.
6. The court also observed that it would appear to be a reasonable inference to make in view of the substitution of the words "retiring from service with effect from the afternoon of 13th November, 1969 in the authenticated order. It is, therefore, clear that the authenticated order correctly reflected the final decision of the State Government and under it the promotion of the petitioner was in an acting or officiating capacity.
7. Justice Bhagwati rightly observed that The Government must apply its mind to the nature and responsibilities of the functions and duties attached to the non-cadre post and determine the equivalence. There the pay attached to the non-cadre post is not material.
8. But where it appears to the court that the declaration of equivalence is made without application of mind to the nature and responsibilities of the functions and duties, attached to the non-cadre post or extraneous or irrelevant factors are taken into account in determining the equivalence or the nature and responsibilities of the functions and duties of the two posts are so dissimilar that no reasonable man can possibly say that they are equivalent in status or responsibility or the declaration of equivalence is mala fide or in colourable exercise of power or it is a cloak for displacing a member of the Indian Administrative Service from a cadre post which he is occupying, the court can and certainly would set at naught the declaration of equivalence and afford protection to the civil servant.
9. So long as the transfer is made on account of the exigencies of administration and is not from a higher post to a lower post with discriminatory preference, of a, junior for the higher post, it would be valid and not open to attack under Arts. 14 and 16.
10. The court also observed that the incidents referred to by the petitioner, if true, constituted gross acts of maladministration and the charge levelled against the second respondent was that because the petitioner in the course of his duties obstructed and thwarted the second respondent in these acts of maladministration.
• LAW LAID DOWN
1. The court had formulated that another ground of challenge as a distinct and separate ground, it is really in substance and effect merely an aspect of the second ground based on violation of 14 and 16? For this they laid down-
2. The court held that the equality is a dynamic concept with many aspects and dimensions and it cannot be "cribbed cabined and confined" within traditional and doctrinaire limits. From a positivistic point of view, equality is antithetic to arbitrariness.
3. In fact equality and arbitrariness are sworn enemies; one belongs to the rule of law in a republic while the other, to the whim and caprice of an absolute monarch. Where an act is arbitrary it is implicit in it that it is unequal both according to political logic and Constitutional law and is therefore violative of Art. 14, and if it affects any matter relating to public employment, it is also violative of Art. 16.
4. Arts. 14 and 16 strike at arbitrariness in State action an (ensure fairness and equality of treatment. They require that State action must be based on valent relevant principles applicable alike to all similarly situate and it must not be guided by any extraneous or irrelevant considerations because that would be denial of equality.
5. The court also stated that where the operative reason for State action, as distinguished from motive inducing from the antechamber of the mind, is not legitimate and relevant but is extraneous and outside the area of permissible considerations, it would amount to mala fide exercise of power and that is hit by Arts. 14 and 16. Mala fide exercise of Power and arbitrariness are different lethal radiations emanating from the same vice in fact the matter comprehends the former. Both are inhibited by Arts. 14 and 16.
6. The court also stated It is also necessary to point out that the ambit and reach of Arts. 14 and 16 are not limited to cases where the public servant affected has a right to a post. Even if a public servant is in an officiating position, he can complain of violation of Arts. 14 and 16 if he has been. arbitrarily or unfairly treated or subjected to mala fide exercise of. power by the State machine. It is, therefore, no answer to the charge of infringement of Arts ' 14 and 16 to say that the petitioner had no right to the post of Chief Secretary but was merely officiating in that post.
• DECISION HELD BY COURT:
1. The transfer of the petitioner was, therefore, in mala fide exercise of power and accordingly invalid.
2. The transfer of the petitioner from the post of Chief Secretary first to the post of Deputy Chairman and then to the post of Officer on Special Duty coupled with the promotion and confirmation, of Sabanayagam in the post of Chief Secretary was, therefore, clearly arbitrary and violative of Arts. 14 and 16.
3. Petition dismissed.