9911796707
TMI Blog1992 (11) TMI 292X X X X Extracts X X X X X X X X Extracts X X X X ..... er of transferring and posting the appellant as Secretary, High Power Committee was challenged mainly on two grounds, namely, that such order was not passed bona fide for the exigencies of the administration but the same was passed mala fide by the Chief Minister of Karnataka who became displeased with the appellant on account of his unfavourable attitude and resistance to some of the proposals of the Chief Minister in the matter of posting of senior officers of the State to different key posts. It was also contended that his transfer order is vitiated because of the non-compliance of the procedural formalities for a valid transfer of the appellant to the said post of Secretary, High Power Committee inasmuch as there was no declaration under Rule 9(1) of IAS (Pay) Rules, 1954 that the post of Secretary, High Power Committee, was equivalent to the post of Chief Secretary and in the absence of such declaration the transfer of the appellant from the post of Chief Secretary to the Secretary, High Power Committee, was illegal and void. 2. To appreciate the relevant contentions made by the appellant and the respondents before the Central Administrative Tribunal and also before this Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Service. The Notification giving effect to the above orders of transfer was issued on January 4, 1991 but the authenticated Government order declaring the equivalent of two posts under Rule 9 of IAS (Pay) Rules, was issued on the next day, namely, January 5, 1991. 4. The appellant, Shri Sankaranarayanan, contended in his application before the Central Administrative Tribunal that the appellant was in the office of Chief Secretary when Shri Veerendra Patil was the Chief Minister of Karnataka. There was an intensive anti-corruption drive against the senior bureaucrats including the 4th respondent through the instrumentality of Lok Ayukta. One such Officer was Shri J. Alexender, IAS, who was suspended while he was holding the post of the Chairman and Managing Director of the Mangalore Chemicals and Fertilisers Ltd. but when Shri Alexender obtained a stay order from the Central Administrative Tribunal, the appellant, in the best interest of administration suggested that Shri Alexender should not be given the post of Secretary of the Department of Industry and Commerce but he should be given a posting in a less sensitive post but such suggestion of the appellant was not accepted by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s in view of the fact that the previous Chief Minister did not take any final decision regarding the proposal to initiate disciplinary action against the fourth respondent. But the third respondent keep the files without passing any orders. It was contended by the appellant that since the appellant was not prepared to lies and to compromise with the desires of the Chief Minister, the Chief Minister, namely, the respondent No. 3, became displeased with him and opposed some of his suggestions relating to the posting of senior bureaucratic officers. The appellant has contended that he was sought to be transferred with undue haste from the post of Chief Secretary to the post of Secretary, High Power Committee, although such post was inferior to the post of Chief Secretary and no declaration under Rule 9(1) of IAS (Pay) Rules for the equivalence of the said post had been made. 5. The respondents, namely, the State of Karnataka and the Chief Minister of Karnataka and also the said respondent No. 4 denied the allegations relating to the malice of facts and contended that the allegations relating to the malice of facts were mischievous, malicious, scandalous and vexatious and such alleg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uch difference had been developing ever since the new Chief Minister had assumed Office. The Tribunal had also noted that the appellant was also not promoted and posted as Chief Secretary permanently but he was appointed to the post of Chief Secretary until further orders and he continued in that capacity only for eight months without being regularised or confirmed in that post. The Central Administrative Tribunal also held that there had been only casual collateral challenge by the appellant against the appointment of fourth respondent as the Chief Secretary raising some allegations which could at best be grouped in the category of vague and indefinite allegations. The Central Administrative Tribunal held inter alia that the applicant had not laid down any firm foundation to hold that the appointment of the 4th respondent as Chief Secretary was bad and unsustainable. It has been held by the Central Administrative Tribunal that the fourth respondent had already assumed the office of the Chief Secretary and except in making some vague allegations, his appointment as Chief Secretary was not challenged on the score of violation of rules governing the matter. As such, the Central Admin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... trict procedure prescribed by law would not vitiate an action taken by the Government or public authority in the interest of public unless it could be shown that such an act had resulted in gross injustice to the affected party. The Central Administrative Tribunal held that the appellant could not establish that impugned order had caused any serious injury to him. The Central Administrative Tribunal further held that the appellant had submitted that because of the delay in issuing the declaration strictly in accordance with the Rule 9(1) of IAS (Pay) Rules, the appellant was in dark as to the nature and duties of the post of Secretary, High Power Committee, to which he had been transferred under the impugned order. The Central Administrative Tribunal held that the form and procedure in Rule 9(1) of IAS (Pay) Rules do not make it obligatory to approach the issue in a judicial or quasi judicial manner and the violation, if any, of Rule 9(1) was only a mere technicality and it did not cause any legal injury or injustice to the appellant. Such violation, even if any, was not so serious that it required a judicial scrutiny by the Central Administrative Tribunal in the facts and circumst ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nsferred to the non-carded post of Additional Chief Secretary but later on, the post of Additional Chief Secretary was en-carded on the basis of triennial review. After such en-cadrement of the post of Additional Chief Secretary, the declaration of equivalence which was made earlier lost its force. Mr. Venugopal has submitted that the question of equivalence comes in when one post is outside the cadre post of Indian Administrative Service. Mr. Venugopal has contended that equivalence is referable only to an ex-cadre post and ex-hypothesi declaration of equivalence cannot come inter se posts within the cadre. Accordingly, all the previous exercises made in declaration of equivalence when the post of Additional Chief Secretary was not a cadre post are of little consequence. Mr. Venugopal has also contended that the posts of Additional Chief Secretary and Chief Secretary are not equivalent in reality. The post of Chief Secretary is the highest post in the administrative set up in the State. Mr. Venugopal has referred to the Office Memorandum dated September 2, 1988 at page No. 127 of Volume II-A of the Paper Book of this appeal, for the purpose of showing that the post of Chief Secret ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ncumbent holding the post of Chief Secretary to any other ex-cadre post. Mr. Venugopal has contended that declaration of equivalence of a cadre post with a non-cadre post is a statutory requirement under Rule 9(1) of IAS (Pay) Rules. Such statutory requirement must be strictly complied with. So long the declaration of equivalence made by the competent authority is not published in accordance with the procedure under Rule 9(1), no equivalence takes place and in the absence of equivalence, no cadre officer can be posted to a non-cadre post. Admittedly, the impugned order of transfer of the appellant was made on January 4, 1991 and the respondent No. 4 purported to assume the office of the Chief Secretary on January 4, 1991. But the declaration of equivalence was made on 5.1.1991 i.e. after the impugned order of transfer. Hence, the impugned order of transfer of the appellant is illegal on the face of it and subsequent declaration of equivalence cannot cure the invalidity of the order of transfer. On this score alone the impugned order is liable to be quashed. Mr. Venugopal has further contended that the Central Administrative Tribunal failed to appreciate that in reality the posts of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 6(1) to 6(q) of the petition made before the Tribunal it should have come to the finding that a case of malice in fact had been established prima facie and the respondents were under an obligation to dispel the reasonable inferences to be drawn by the Tribunal about the existence of malice in facts. Unfortunately, the Tribunal has not considered the question in the proper perspective. Mr. Venugopal has submitted that since the posting of respondent No. 4 as Chief Secretary was not directly challenged by the appellant and infraction of any statutory provisions could not be established by the appellant so far as the posting of respondent No. 4 is concerned, the Tribunal has proceeded on the footing that such posting, therefore, is not required to be interfered with and consequently the challenge to the transfer and posting of the appellant cannot also be sustained. Mr. Venugopal has contended that such approach, to say the least, is unsatisfactory and requires a re-thinking. Mr. Venugopal has also contended that when the former Chief Secretary went on leave prior to his retirement, the appellant's case was considered and in view of his excellent track record over the past 33 ye ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... straight jacket formula to which every case of malice of fact can fit in. 9. Mr. Attorney General appearing with the Advocate General of the State of Karnataka for the respondents Nos. 1 and 3, namely, the State of Karnataka and the Chief Minister of Karnataka, has submitted that the post of Chairman, Karnataka-Hyderabad Development Board was created on September 1, 1989 and the respondent No. 4 who was holding a very high and responsible office at the relevant time. The respondent No. 4 is a very senior member of the Indian Administrative Service in the Karnataka cadre and admittedly senior to the appellant as a member of the Indian Administrative Service. The said respondent No. 4 was appointed to the post of Chairman, Karnataka-Hyderabad Development Board. The said post was declared as equivalent to the post of Additional Chief Secretary on September 27, 1989 when the said post was created. Later on, on October 11, 1989, the said post of Chairman was re-designated as Secretary, High Power Committee and ex-officio Additional Chief Secretary to the Government of Karnataka. Mr. Attorney General has contended that simply because adverse comments were made on the functioning of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ribunal has indicated that the Chief Secretary had not been pulling on well with the Chief Minister of the State, and there had been differences of opinion on a number of matters from before. If on such account, the Government and the Chief Minister felt that a man of their confidence should be posted as the Chief Secretary of the State so that there was a good rapport between the Chief Secretary and the Chief Minister and the Cabinet, no exception can be made and such decision being squarely within the prerogative of the Chief Minister and the Cabinet as indicated by this Court in no uncertain terms in Royappa's decision, the Central Administrative Tribunal was justified in declining to interfere against the impugned orders. Mr. Attorney General has contended that allegations of mala fide action on the part of the Chief Minister or the Cabinet must be substantiated by cogent materials and not by vague insinuations. In the pleadings, the appellant has only indicated several instances showing how he assessed the facts in giving suggestions in the matter of posting of different top bureaucratic officers including respondent No. 4 and how his suggestions had not been ultimately ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecretary, High Power Committee, as equivalent to the post of Chief Secretary itself so that there may not be any occasion for the appellant to feel stifled. Such decision had taken place prior to the impugned order of transfer but the publication could not be made on the same day, namely, January 4, 1991 but such publication of equivalence under Rule 9(1) was made on the very next day, namely, on January 5, 1991. Mr. Attorney General has contended that publication on the next day does not invalidate the factum of declaration made on January 4, 1991. Such publication being a requirement of statute has been complied with and the publication has been made in order to give effect to the decision of declaring equivalence already taken. 11. Mr. Attorney General has contended that it has been specifically stated by the Chief Minister in his affidavit in opposition that declaration of equivalence was made on January 4, 1991 prior to the impugned order. Mr. Attorney General, has also submitted that even if it is assumed that the publication of declaration of equivalence was made on January 5, 1991 but the impugned order of transfer was made on January 4, 1991, and by that process there h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Tribunal only indicate that some of his suggestions in the matter of posting of senior bureaucratic officers of the State had not been accepted by the present Chief Minister of the State. Such facts alone do not constitute any foundation for a finding that because the appellant was not agreeable to oblige the Chief Minister by accepting all his suggestions and putting up notes to that effect, he had incurred the displeasure of the Chief Minister and the impugned orders had been passed not on administrative exigencies but only to malign the appellant and to humiliate him. It may not always be possible to demonstrate malice in fact with full and elaborate particulars and it may be permissible in an appropriate case to draw reasonable inference of mala fide from the facts pleaded and established. But such inference must be based on factual matrix and such factual matrix cannot remain in the realm of insinuation, surmise or conjecture. In the instance case, we are unable to find that there are sufficient materials from which a reasonable inference of malice in fact for passing the impugned order of transfer can be drawn. It is an admitted position that the Chief Secretary and the Chief ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
