Central Administrative Tribunal - Ernakulam
Dr B Ashok Ias vs Department Of Personnel And Training on 3 June, 2025
1
CENTRAL ADMINISTRATIVE TRIBUNAL,
ERNAKULAM BENCH,
ERNAKULAM
Original Application No. 180/00019/2025
Tuesday, this the 3rd day of June, 2025
CORAM:
Hon'ble Mr. Justice Sunil Thomas, Member (J)
Hon'ble Ms. V. Rama Mathew, Member (A)
Dr. B. Ashok, IAS, S/o. B. Balasundaram,
Aged 51 years, residing at D22, Pilla Veedu Nagar,
Kesavadasapuram, Thiruvananthapuram-
695004, working as Principal Secretary to
Government (Agriculture) and Agricultural Production
Commissioner, Government Secretariat, Government of Kerala,
Thiruvananthapuram - 695001,
(and now under orders of Deputation as Local
Self Government Reforms Commission). ..... Applicant
(By Advocate : Ms. Girija K. Gopal)
Versus
1. Union of India, represented by the Secretary to Government,
Department of Personnel and Training, Public Grievances
and Pensions, Government of India, North Block,
New Delhi - 110001.
2. State of Kerala, represented by its Chief Secretary,
Government Secretariat, Thiruvananthapuram-695001.
3. Local Self Government Department,
Represented by its Principal Secretary to Government,
Government Secretariat, Thiruvananthapuram-695001.
2025.06.03
SEBASTIAN
16:26:00
ANTONY
+05'30'
2
4. Additional Chief Secretary to Government,
General Administration (AIS) Department,
Government of Kerala, Government Secretariat,
Thiruvananthapuram - 695001.
5. Chairman, The Committee for screening the applications/
proposals for deputation to Autonomous Bodies not controlled
by the Government such as Commissions, Regulatory Authorities
and Universities under Rule 6(2)(ii) of IAS Cadre Rules, 1954
with amendments, represented by the Cabinet Secretary,
Government of India, New Delhi - 110001. ..... Respondents
[By Advocates : Mr. Asok M. Cheriyan,
Additional Advocate General instructed by Mr.
Bijoy Chandran, Senior Government Pleader (R2-
4) and Mr. S.R.K. Prathap, ACGSC (R1&5)]
This Original Application having been heard on 10.03.2025, the
Tribunal on 03.06.2025 delivered the following:
ORDER
Per: Justice Sunil Thomas, Judicial Member -
The applicant is a 1998 batch IAS officer allotted to Kerala cadre, with effect from 1.1.1998. He has been serving in the State of Kerala in various capacities. Since 1.1.2023, he was the Principal Secretary to Government (Agriculture) and also the Agricultural Production Commissioner in, one above Super Time Scale (ASTS Pay Band : Rs. 1,82,200-2,24,100/-). He was also holding the full additional charge of Vice Chancellor, Kerala Agricultural University and various other 2025.06.03 SEBASTIAN 16:26:00 ANTONY +05'30' 3 government bodies. He claims to have an unblemished and meritorious service of 26 years in the Indian Administrative Service. On 8.1.2025, he was informed by the Chief Secretary to Government of Kerala that the Council of Minsters had decided to form a Commission to reform the Local Self Government Bodies, upon a proposal moved outside its scheduled agenda and had thereupon decided to appoint the applicant as the Local Self Government Reforms Commission, on deputation basis, for a period of one year. The applicant sought a copy of the agenda note from the Chief Secretary. He was informed that proposal was not circulated but was merely proposed in the cabinet meeting. No agenda note was available. Since the decision was to appoint the applicant as the Local Self Government Reforms Commission on deputation, the applicant claims that he expressed his disinclination to take up the post. On 9.1.2025, Annexure A1 order placing the applicant at the disposal of the Local Self Government, to be appointed as the Local Self Government Reforms Commission was issued. It stated that the post will be equal to the cadre of post of Principal Secretary in the above Super Time Scale of IAS in the pay scale of level 15 in pay matrix between pay range Rs. 1,82,200-2,24,100/-. Annexure A1 was issued in accordance 2025.06.03 SEBASTIAN 16:26:00 ANTONY +05'30' 4 with a Government order regarding deputation governed by GO(P) No. 546/80/GAD dated 1.12.1980 referred to in Annexure A1. The said GO was produced as Annexure A2. Annexure A3 representation dated 12.1.2025 was submitted by the applicant, inter alia, contending that deputation was without his consent and was in violation of various statutory Rules and guidelines.
2. Since no reply was received, the present Original Application was filed challenging Annexure A1. Pending the Original Application, Annexure A8 reply to Annexure A3, of the Chief Secretary dated 16.1.2025 was issued, declining the relief sought in the representation. Annexure A9 Government order dated 16.1.2025 was also issued posting the Principal Secretary, Revenue and Disaster Management Department in full additional charge of the post of Agricultural Production Commissioner and Principal Secretary of Agricultural Department.
3. On 17.1.2025, after hearing both sides an interim order was passed by this Tribunal directing that status quo shall be maintained till the reply statement was filed. It was also directed that the applicant will continue to hold the post of Principal Secretary, Agriculture and Commissioner of 2025.06.03 SEBASTIAN 16:26:00 ANTONY +05'30' 5 the Agricultural Production. Interim order has been extended thereafter from time to time.
4. Consequent to Annexures A8 and A9, the OA was amended challenging Annexures A8 and A9 also. Annexures A1, A8 and A9 are challenged in this OA, inter alia, on the ground that Annexure A1 was issued without even seeking the consent of the applicant and was explicitly in violation of All India Service Cadre Rules, 1954, consolidated Deputation Guidelines for All India Services and All India Service (Pay) Rules, 2015. It was also contended that the order was in violation of the interim order of this Tribunal in OA No. 367 of 2023 and thus amounting to forced deputation. It was also contended that the respondents have inter-changeably used Annexure A1 as one ordering deputation and at times treating it as an order of transfer and further that Annexure A1 was issued in a haste without complying with Rules 20 (1) and 38 of Rules of Business of Government of Kerala. Accordingly, the applicant has sought the following reliefs:
"i. Call for the records leading to Annexure A1 GO (Rt) No. 114/2025/GAD dated 9.1.2025 issued by the 2 nd respondent and to set aside the same as being illegal and arbitrary.
ii. Declare that Annexure A1 GO (Rt) No. 114/2025/GAD dated 9.1.2025 issued by the 2 nd respondent is without jurisdiction and is 2025.06.03 SEBASTIAN 16:26:00 ANTONY +05'30' 6 wholly illegal.
iii. Declare that equivalence of the post of Local Self Government Reforms Commission to which applicant is sought to be deputed with that of the cadre post of Principal Secretary to Government in above Super Time Scale of IAS in the pay scale of level 15 in the Pay Matrix Table (Pay Range Rs. 182200-224100) is highly illegal and in contravention of Rule 12(1) of IAS (Pay Rules), 2016.
iv. Declare that deputation of All India Service Officers shall be done by the 2nd respondent strictly in adherence to IAS (Cadre) Rules, Consolidated Deputation Guidelines for All India Services issued by the Government of India, IAS (Pay Rules), 2016 and the judicial pronouncements on deputation only.
v. Declare that the applicant is entitled to be retained in the cadre postings in his eligible cadre as Principal Secretary to Government of Kerala and Agricultural Production Commissioner in the Department of Agriculture, and to consequentially direct the 2 nd respondent not to relieve the applicant from his cadre postings.
(va) To set aside Annexures A8 and A9 as being arbitrary and illegal."
5. The respondents appeared and filed a detailed reply statement traversing the various contentions set up in the Original Application. A rejoinder was filed by the applicant answering it, annexing A10 to A37.
6. The defence stated in the reply statement by the respondents is not separately narrated to avoid repetition of discussion of facts and will be dealt with when each of the contention of the applicant is analyzed.
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7. Heard Ms. K. Girija Gopal, the learned counsel for the applicant and Mr. Asok M. Cheriyan, the learned Additional Advocate General, instructed by Shri Bijoy Chandran, learned Senior Government Pleader and Shri S.R.K. Pratap, learned ACGSC. Examined the records.
8. The basic facts are not in dispute. The applicant who is a Kerala Cadre senior IAS Officer was promoted to the above super time scale in level 15 of pay matrix in pay range of Rs. 1,82,000-2,24,100/- and posted as Principal Secretary, Agricultural Department by Annexure R2(h). He continued to hold all the additional charges which he was holding at that time. By Annexure R2(i) dated 24.01.2023, he was placed in full additional charge of Agricultural Production Commissioner. Later by Annexure R2(j) dated 07.02.2023, the applicant, who was the Principal Secretary of Agricultural Department was transferred and posted as Agricultural Production Commissioner and given the full additional charge of Principal Secretary, Agricultural Department. Admittedly, he continued to hold the additional charge of Vice Chancellor of Kerala Agricultural University and several other governmental institutions/organisations. It was in the meanwhile, the Cabinet in its meeting dated 08.01.2025 decided to form Local Self Government 2025.06.03 SEBASTIAN 16:26:00 ANTONY +05'30' 8 Reforms Commission. The decision was taken as an out of agenda item and it was resolved to appoint the applicant as the Local Self Government Reforms Commission on deputation basis for one year. The applicant was orally informed on the same day by the Chief Secretary. Applicant claims that he forthwith conveyed his disinclination to take up the post due to various reasons which he had described later in the representation and in the OA. By Annexure A1 order dated 09.01.2025, the service of the applicant who was Agricultural Production Commissioner and Principal Secretary, Agriculture was placed at the disposal of Local self- Government Department for being appointed as Local Self Government Reforms Commission. The post of Local Self Government Reforms Commission was declared equivalent in status and responsibility to the cadre post of Principal Secretary to Government in above super time scale of IAS in the pay scale of level 15 in Pay matrix table (Pay range Rs 1,82,200-2,24,100/-) as per Rule 12 of IAS Pay Rules 2016.
9. By Annexure R2(e) dated 10.01.2025, Local Self Government Reforms Commission was constituted, inter alia, to revise the existing Laws, Regulations, guidelines etc. in the Local Self Government Department of the State on the basis of ease of doing business and to 2025.06.03 SEBASTIAN 16:26:00 ANTONY +05'30' 9 revise the same comprehensively and to submit recommendations so as to take developmental issues forward and ensure environmental protection. The terms of reference of the Commission were referred to in Annexure R2(e). The applicant submitted Annexure A3 representation dated 12.01.2025, inter alia, raising objections against Annexure A1 on the ground that it was issued without obtaining his consent and that it was issued in violation of IAS (Cadre) Rules, consolidated guidelines and the various Supreme Court judgements. It was declined by Annexure A8 communication of the Chief Secretary dated 16.01.2025, on the premise that his service was placed at the disposal of Local Self Government Department under Rule 6(2)(i) of IAS (Cadre) Rules 1951. It was stated there in, that the consent of the applicant was required only if deputation was under Rule 6(2)(ii). By Annexure R2(c) which corresponds to Annexure A9 dated 16.01.2025 Mrs. Tinku Biswal was put in full additional charge of Agricultural Production Commission and Principal Secretary of Agriculture Department. It was at this juncture that the applicant approached this Tribunal assailing Annexure A1, A8 and A9.
10. Annexure A1 is challenged on the ground that it is illegal, issued without jurisdiction and the decision taken therein leading to Annexure 2025.06.03 SEBASTIAN 16:26:00 ANTONY +05'30' 10 A1 was in violation of various Rules and Regulations. The four broad grounds on which entire challenge of the applicant was sustained can be summarised as follows: -
1. The executive decision leading to Annexure A1 and Annexure R2(d) was taken in violation of Rules of Business of the Government.
2. The State Government was not empowered to issue order of deputation to Local Self Government Commission under Rule 6(2)(i) of All India Service (Cadre) Rules 1954.
3. Annexure A1 was issued in contravention of Rule 12(1) of Indian Administrative Service (Pay) Rules.
4. The decision leading to Annexure A1 was a mala fide exercise of power, constituting malice in law.
11. The rival contentions of both sides on the above broad grounds are analysed and discussed point wise as follows :-
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12. Point No. 1 - Whether the executive decision leading to Annexure A1 and Annexure R2(d) was taken in violation of Rules of Business of the Government?
13. The prime contention of the learned Counsel for the applicant was that the decision of the Cabinet leading to Annexure A1 was taken in violation of relevant Rules under Part 1 of Rules of Business of Government of Kerala framed under Article 166 of the Constitution of India. The said Article of the Constitution mandates that the Rules framed thereunder, shall be for the more convenient transaction of business of Government of the concerned State. According to the learned Counsel for the applicant, strict adherence to the above Rules of Business produced as Annexure A10 was mandated in all decision making process, to ensure that the decisions of the Government are properly documented and are legally valid and sustainable. It was contended that while Rules of Business contain provisions for matters like allocation and disposal of business, Annexure A11 Kerala Secretariat Office Manual was the guideline for procedures and operation of Secretarial Department of Kerala Government.
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14. Answering the above contentions, the respondents pleaded in the reply statement that the decision to constitute Local Self Government Reforms Commission and to utilize the service of the applicant was taken after proper and elaborate consideration by the Council of Ministers. Respondent had adhered to the Rules of Business, Kerala Secretariat Manual and other procedures involved and the office manual, as far as possible. The Kerala Secretariat Office Manual, inter alia, relate to the disposal of cases by the Council of Ministers. Paragraph 190 of it deals with procedure relating to disposal of cases by Council of Ministers. Rule 190(1) empowered the Chief Minister to require any case to be placed before the Council, considering its importance. Second Schedule of Annexure A10 related to causes to be brought before the Council. Item 27 of it refers to cases required by the Chief Minister to be brought before the Council. The decisions leading to the issuance of Annexure A1 and Annexure R2(d) were issued in compliance with the decision of the Council of Ministers, which included the Ministers for Local Self Government Department, Agriculture and Finance Department. The impugned orders were issued after fully complying with the provisions stipulated under Rules of Business of the Government of Kerala and in 2025.06.03 SEBASTIAN 16:26:00 ANTONY +05'30' 13 compliance of mandatory procedures under the Secretariat Office Manual and allied instructions/procedures in that regard. A co-joint reading of Rules 14, 15, 17 and 19 of the said Rules and Item 27 of the Second Schedule thereunder and also the relevant provisions of the Secretariat Manual indicates that the procedure adopted in the present case was proper.
15. Vehemently, assailing Annexures A1 and R1(d), it was contented by the learned Counsel for the applicant that the impugned decisions were taken in a haste, without following the procedure prescribed in Annexures A10 and A11. The applicant had sought the copy of the agenda note prepared for the meeting of the Council of Ministers dated 08.01.2025 which led to Annexure A1, consequent proceedings and the entire Cabinet note file, by submitting Annexure A12 application under RTI Act. A copy of the Cabinet note dated 08.01.2025, marked as Annexure A15 was given to the applicant. It was informed that no agenda note was circulated.
16. According to the learned counsel for the applicant, decision taken without complying with the mandatory provisions of Rules of Business 2025.06.03 SEBASTIAN 16:26:00 ANTONY +05'30' 14 was non est and cannot be sustained. To substantiate this, the learned counsel for the applicant took us extensively through the various provisions of Rules of Business. It was pointed out that Rule 8 of Rules of Business of Government of Kerala stipulates that subject to the orders of Chief Minister under Rule 14 all cases referred to in Second Schedule shall be brought before the Council in accordance with the provisions of the Rules contained in Part II. However, proviso to the said Rule provides that no case in regard to which Finance Department is required to be consulted under Rule 10 shall, save in exceptional circumstances, under the directions of the Chief Minister, be discussed by the Council, unless the Finance Minister has had an opportunity to consider it. Rule 9 thereof provides that without prejudice to the provisions of Rule 7, the Minister in Charge of a Department shall be primarily responsible for the disposal of the business pertaining to that Department. Rule 10 stipulates that no Department shall, without previous consultation with the Finance Department, authorise any orders (other than orders pursuant to any general delegation made by the Finance Department), which, either immediately or by their repercussions, will affect the finances of the State of which, in particular, either relates to the number of gradings or cadre of 2025.06.03 SEBASTIAN 16:26:00 ANTONY +05'30' 15 posts or the emoluments or other conditions of service of posts also. Rule 38 which prescribes, which all matters shall be regarded as matters affecting the Finances of State for the purpose of Rule 10 of the Business Rules. It, inter alia, includes, at Sub Rule (a), the incurring of expenditure within the scope of expenditure authorized by Annual Appropriation Act, under (f) proposals for declaring any expenditure to be expenditure urged on the revenues of State or for increasing the amount of any such expenditure and at Sub Rule (1), proposals to add any posts or abolish any posts from the public service or to vary the emoluments to any posts.
17. Rules 13 to 20 of the Rules of Business of the Government of Kerala which prescribe the procedure of the Council was also heavily relied on by the learned counsel. Rule 14 requires that all cases referred to in the 2nd schedule shall be submitted to the Chief Minister after consideration by the Minister-in-charge', with a view to obtaining his orders for circulation of the case under Rule 15 or for bringing it up for consideration in a meeting of the Council.
18. While Rules 15 and 16 of Rules of Business of Government of Kerala deal with the Procedure to be adopted in the case of circulation, 2025.06.03 SEBASTIAN 16:26:00 ANTONY +05'30' 16 Rule 17 provides that when it is decided to bring the case before the Council, the department concerned should, unless otherwise directed by the Chief Minister, prepare a Memorandum indicating precisely the salient facts of the case and points for decision and copies thereof circulated to the Council by the Secretary. Rule 18 requires that in a case which involves or concerns more than one Department, the Ministers. by previous discussions, shall arrive at an agreement and if such agreement is reached, the Memorandum referred to in Rule 16 and 17 shall contain the joint recommendation of the Ministers and if no agreement is reached, the points of differences and recommendations of each of the ministers concerned should be stated in the memorandum. While Rule 19(2) requires that after the agenda showing the cases to be discussed at the meeting of the Council has been approved by the Chief Minister, copies thereof together with copies of such agenda as have not been circulated under Rule 17 shall be sent by the Secretary of the Council to the Chief Minister and other Ministers so as to reach them 'two clear days before the date of such meeting. Rule 19(3) also mandates that except with the permission of the Chief Minister, no case shall be placed on agenda for meeting unless papers relating thereto have been circulated as required by 2025.06.03 SEBASTIAN 16:26:00 ANTONY +05'30' 17 Rule 17. While Rule 19(7) requires that the decision of the Council relating to each case shall be separately recorded and placed with the records of the case after their approval by the Chief Minister, Rule 20 stipulates that the Minister in charge shall take action to give effect to the decision taken by the Council after discussion at the meeting.
19. Item 16 of 2nd Schedule takes in any proposal which affects the Finances of the State which has not the consent of the Finance Minister. Item 23 refers to proposals for creation of any public office, the minimum of the scale of the pay of which is Rs.12, 600/- per mensum including posts in Public Corporations which are to be created with the approval of the Government. Item 24 deals with proposals involving any important alteration in the conditions of service of the members of any All India Service or the State Service or in the method of recruitment to the service or posts to which appointment is made by the Government. Item 25 relates to proposals for appointment of the Commissions of Inquiry under the Commission of Inquiry Act as well. Item 29 thereof is as regards proposals for new service where the estimated expenditure exceeds Rs.3 lakhs per annum, recurring or Rs. 10 lakhs, non recurring.
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20. According to the learned counsel, the subject matter of Annexure A1 falls within the scope of items referred above in Second Schedule. Hence, any such decision on such subject warranted consultation and decisions with the Ministries of Finance, Agriculture and Local Self Government in accordance with the Rules of Business. The decision resulting in Annexure A1 arrived at by the Council of Ministers was bad in law for more than one reason, including (a) that, it was presented as an "out of Agenda" item, for which there was no provision either under the Rules of Business of the Government of Kerala or the Kerala Secretariat Office Manual, (b) that, despite the fact that matters like proposals for creation of the public office of LSG Reforms Commission, alteration of conditions of service of the applicant who is an All India Service Officer in a non-cadre post of Reforms Commission, proposal for appointment of a Commission under the Commissions of Inquiry Act, or otherwise and proposal for new service where the estimated expenditure exceeds Rs.3 lakhs per annum recurring or Rs.10 lakhs per annum non-recurring are cases referred to in the Second Schedule of Part I Rules of Business of the Government of Kerala, and required consultations with Finance Department, which was not done.
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21. Rule 13 of Annexure A10 prescribes that the Chief Secretary or such other officer as the Council of Ministers may appoint shall be the Secretary of the Council. Rule 14 provides that all cases referred to in Second Schedule shall be submitted to the Chief Minister after consideration by the Minister-in-charge with a view to obtaining his orders as per the circulation of the case under Rule 15 or for bringing it up for consideration at a meeting of the Council. In this regard, it is essential to refer to Rules 17, 18 and 19(1) to (3) which read as follows:-
"17. When it has been decided to bring a case before the Council the Department to which the case belongs shall intimate the fact to the Secretary to the Council specifying the subject for discussion and unless the Chief Minister otherwise directs, prepare a Memorandum indicating with sufficient precision the salient facts of the case and the points for decision. Such memorandum and such other papers as are necessary to enable the case of shall be random other papers shall at the same time be sent to the Governor.
18. In cases which concern more Ministers than one, the Ministers shall attempt previous discussion to arrive at an agreement. If an agreement is reached, the Memorandum referred to in rule 16 or 17 shall contain the joint recommendations of the Ministers; and if no agreement is reached, the Memorandum shall state the points of difference and the recommendations of each of the Ministers concerned. If for any reason the discussion does not materialise one of the Ministers concerned may bring the fact to the notice of the Chief Minister who may order that the matter be placed before the Council.
19.(1) The Council shall meet at such place and time as the Chief Minister may direct.
2025.06.03 SEBASTIAN 16:26:00 ANTONY +05'30' 20 (2) After an agenda showing the cases to be discussed at a meeting of the Council has been approved by the Chief Minister, copies thereof, together with copies of such memoranda as have not been circulated under rule 17, shall be sent by the Secretary to the Council, to the Chief Minister, and other Ministers so as to reach them two clear days before the date of such meeting. The Chief Minister may, in the case of emergency, curtailed the said period of two days. Copies of the Agenda and the Memoranda shall at the same time be sent to the Governor.
(3) Except with the permission of the Chief Minister, no case shall be placed on the agenda of a meeting unless papers relating thereto have been circulated as required by rule 17. "
It was contended that the impugned decision making process falls foul of the requirement of not only Rule 17 of Business Rules which stipulates that a memorandum indicating with sufficient precision the salient features of the case and the points for discussion along with such other papers as are necessary to enable the case to be disposed of shall be circulated to the Ministers, but also with the requirement of Rule 19(2) by sending the agenda along with copies of memoranda, if not circulated under Rule 17. to all the Ministers so as to reach them two clear days before the date of such meeting. Sub rule 3 of Rule 19 stipulates that except with the permission of the Chief Minister, no case shall be placed on the agenda unless papers relating to it have been circulated as required under Rule 17(2). According to the learned counsel, this would make it clear that circulating such details was not an empty formality that can be 2025.06.03 SEBASTIAN 16:26:00 ANTONY +05'30' 21 dispensed with, and a time frame of two clear days before the date of council meeting is stipulated at Rule19(2). It has been carefully stipulated to ensure that sufficient time is given to read and deliberate on papers, to seek clarifications if required and to arrive at an informed decision. Viewed from that angle, the very initiation of the impugned decision- making process is highly arbitrary and illegal in as much as the note for item No. 2612 was not prepared for Council of Ministers for it's meeting dated 8.1.2025 leading to Annexure R2(d) G.O(Ms)No 7/2025/LSGD dated 10.1.2025. The said item was taken up as an "out of Agenda"; the exercise of which power is not traceable to any source permissible under law. When the procedure for preparation of an agenda and placing it before the Council of Ministers along with the note is clearly and mandatorily set out in the Rules of Business of the Government of Kerala, respondents 2 to 4 cannot give a go by to the same, it was contended. Relying on the above provisions, the learned Counsel for the applicant contended that no matter could be taken up as an out of agenda item, and at any rate without circulation of papers as prescribed under Rule 17.
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22. The files would show that neither the Minister in Charge of Local Self Government Department nor the Finance Minister and the Finance Department has had the opportunity to consider the same before being placed in the Council as mandated by the Rules, it was contended.
23. The learned counsel further contented that the decisions impugned involved and concerned not only Department of Finance but also Department of Local Self Government and Agriculture. In view of Rule 18, the decision to constitute LSG Commission and to place the applicant who was working as a Principal Secretary to Government (Agriculture) and Agricultural Production Commissioner without placing the proposal before the Ministers concerned and obtaining their recommendations was totally illegal. In this case no such circulation was effected and to that extent the decision is illegal.
24. It was further contented that Annexures A14 and A15 show that the instructions contained in Kerala Secretariat Office Manual was also not complied with. The Cabinet note leading to impugned decisions does not conform to any procedural requirement relating to disposal of cases by the Council of Ministers as prescribed under paragraph 190 of Kerala 2025.06.03 SEBASTIAN 16:26:00 ANTONY +05'30' 23 Secretariat Office Manual. The Cabinet note was also not prepared in the format as prescribed under 190(viii) of Kerala Secretariat Office Manual.
25. According to the learned counsel for the applicant, when Rule 19(3) prescribes that except with the permission of Chief Minister no case shall be placed on agenda of a meeting unless papers relating thereto have been circulated, it has to be understood as a mandatory provision which makes it obligatory on the circulation of papers and any decision taken in breach of a mandatory Rule has to be treated as vitiated and non est. To supplement the above contentions, the learned Counsel for the applicant specifically relied on a catena of decisions. To contend that mandatory provision are liable to be complied, the learned Counsel for the applicant relied on the decision of the Hon'ble Supreme Court in Haridwar Singh v. Bagun Sumbrui and Others (AIR 1972 SC 1242). In the said case the right to take benefits from forest land was put in auction. The bid of the appellant, being the highest was accepted by the DFO, though it was less than the reserve price. The file was forwarded for confirmation of acceptance by Finance Department. While the Finance Ministry was examining the question whether a tender quoting lesser amount than the reserve price can be accepted, the sixth respondent, a stranger, offered to 2025.06.03 SEBASTIAN 16:26:00 ANTONY +05'30' 24 take the bid for a higher rate. Minister accepted the proposal in favour of the 6th respondent and cancelled the settlement with the appellant. It was challenged by the appellant on the premise that there was a concluded contract in his favour, which could not be cancelled by the Government. It was, inter alia, contended that the action of the Forest Department in favour of the sixth respondent was contrary to Rule 10(1) of the Rules of Business framed under Article 166(3) of the Constitution of India which prescribed that no Department shall, without previous consultation with the Finance Department, authorize any orders involving any grant of forest land. It was contended that the settlement of contract in favour of the 6th respondent by a private treaty was in violation of Rules of Executive Business. Rule 10(1) of the concerned Rules of Business provided that no department shall, without previous consultation with the Finance Department, authorise any orders (other than orders pursuant to the general or special delegation made by the Finance Department). Referring to the several tests propounded for answering the question whether a provision in the Statute or a Rule was mandatory or directory, the Supreme Court held that where a prescription relates to the performance of a public duty and to invalidate acts done in neglect of 2025.06.03 SEBASTIAN 16:26:00 ANTONY +05'30' 25 them would work serious general inconvenience or injustice to persons who have no control over those entrusted with the duty, such prescription was generally understood as mere instruction for guidance of those upon whom the duty was imposed. It was held that the negative or prohibitive language of Rule 10(1) was a strong indication of the intent to make the Rule, mandatory. Rule 10(2) provided that on Finance Department's various objections, Department originating the file shall not take any further action, and only Cabinet can taken any decision. Accordingly, it was held that the settlement in favour of 6 th respondent was bad in law.
26. In the above decision, reference was made to the earlier decision of the Supreme Court in Dattatreya Moreshwar Pangarkar v. State of Bombay (AIR 1952 SC 181), which was heavily relied on by the learned Additional Advocate General \to canvass the contra view in favour of the respondents herein. In Moreshwar's case (supra), preventive detention of the petitioner was under challenge. The detention order passed by the ADM was confirmed by the Government on the advice of the Advisory Board. One limb of attack was that no valid order of confirmation was made in proper legal form and only a mere communication by the Government to the District Magistrate cannot be considered as an order 2025.06.03 SEBASTIAN 16:26:00 ANTONY +05'30' 26 under the Preventive Detention Act. It was contended by the petitioner that Article 166 of the Constitution, mandated that all executive action of the Government must be expressed and authenticated in the manner prescribed. Per contra, the Attorney General contended that the omission to authenticate an exclusive decision in the form prescribed in Article 166 does not by itself make the decision illegal, since such provisions are merely directory and not mandatory. Accepting this contention, it was held that generally speaking, provisions of a Statute creating public duties are directory and those conferring private rights are imperative. When the provisions of a Statute relate to the performance of a public duty and the case is such that to hold null and void acts done in neglect of that duty would work serious general inconvenience or injustice to persons who have no control over those entrusted with the duty and at the same time would not promote the main object of the legislature, it has been the practice of the Courts to hold such provisions to be directory only, and the neglect of them, not affecting the validity of acts done.
27. Evidently, both the above decisions did not lay down an absolute Rule that where a negative covenant is imposed, it should be treated as mandatory. The interpretation of Supreme Court, was subject to the 2025.06.03 SEBASTIAN 16:26:00 ANTONY +05'30' 27 caveat that when the prescription relates to the performance of the public duty and to invalidate acts done in neglect of them would work serious inconvenience or injustice to parties, who have no control over those parties, such prescription should be understood as mere instruction for guidance. Otherwise, power of the authority is to be conferred with the direction that certain regulation of formalities shall be complied with. It seems neither unjust nor incorrect to extract a rigorous observant of it as essential to the acquisition of right or authority. However, Moreshwar's case (supra) will not help either side, since it essentially dealt with form of Government order issued under Article 166(1) and (2) and did not deal with the sanctity of Rules of Business framed under Article 166(3) of the Constitution.
28. The learned Counsel further relied on the decision of the Hon'ble Supreme Court in State of UP v. Neeraj Awasthi and Others [(2006) 1 SCC 667] to contend that the Rules prescribed under Article 166 and the procedure contemplated therein is liable to be scrupulously followed by the State Government. In that, a direction issued by the State Government to the UP Agricultural Produce Market Board cancelling the regularization of employees under a scheme was assailed. It was held by 2025.06.03 SEBASTIAN 16:26:00 ANTONY +05'30' 28 the Supreme Court that the Government could issue directions, on questions of policy, provided such a decision of the State Government is taken in terms of the Constitutional Scheme upon compliance with the requirement of Article 162 read with Article 166 of the Constitution. The direction purportedly issued by an officer of the State in the instant case was not shown to have been issued pursuant to any decision taken by the competent authority, in terms of Rules of Executive Business of the State framed under Article 166 of the Constitution. Supreme Court placed reliance on the decision in Punit Rai v. Dinesh Choudhary [(2003) 8 SCC 204] in which the impugned circular was found to be not issued, pursuant to any decision taken by Cabinet or any authority authorized in terms of Article 166(3) of the Constitution of India.
29. The decision is not of an authority on the question whether if the Cabinet itself does not scrupulously follow the procedure, the decision is assailable or justiciable by a third party. In Bhalla K.K v. State of M.P. and Others [(2006) 3 SCC 581] it was held that the directions of Chief Minister to the Jabalpur Development Authority regarding the allotment of lands being dehors the provisions of the Act was void and had no effect. It was held as under:
2025.06.03 SEBASTIAN 16:26:00 ANTONY +05'30' 29 "64. The purported policy decision adopted by the State as regards allotment of land to the newspaper industries or other societies was not a decision taken by the appropriate Ministry. If a direction was to be issued by the State to the JDA, it was necessary to be done on proper application of mind by the cabinet, the concerned Minister or by an authority who is empowered in that behalf in terms of the Rules of the Executive Business framed under Article 166 of the Constitution of India. Such a direction could not have been issued at the instance of the Chief Minister or at the instance of any other officer alone unless it is shown that they had such authority in terms of the Rules of the Executive Business of the State. We have not been shown that the Chief Minister was the appropriate authority to take a decision in this behalf."
30. In Vijay Narayan Thatte and Others v. State of Maharashtra and Others [(2009) 9 SCC 92], the question that came up before the Hon'ble Supreme Court was whether a notification issued under Section 6 of the Land Acquisition Act, 1894 subsequent to an earlier notification under Section 4 was valid or not. It was held by the Hon'ble Supreme Court that the second notification was clearly barred by Clause 2 of proviso of Section 6 of the Act which provided that "no declaration in respect of particular land covered by notification under Section 4 ......... shall be made after the expiry of one year from the date of the publication of the notification". Noticing that the aforesaid proviso was couched in a negative language, it was held that it was well settled that when a statute is couched in negative language it is ordinarily regarded as peremptory and mandatory in nature. This decision was relied on to contend that in 2025.06.03 SEBASTIAN 16:26:00 ANTONY +05'30' 30 the nature of negative wordings employed in Rule 19(3) of Rule of Business that no case shall be placed on agenda unless papers are circulated, it must be read as a peremptory one and mandatory in nature and that no decision could have been taken thereon by the Council without compliance of Rule 19(3). Any decision to the contrary was invalid, it was contended.
31. In Pancham Chand and Others v. State of Himachal Pradesh and Others [(2008) 7 SCC 117], the question that came up before the Hon'ble Supreme Court was whether a direction given by the Chief Minister of a State to the Regional Transport Authority, a statutory body to grant permit to a stage carriage was valid or not. Supreme Court held;
"19. ....................Constitution of India does not envisage function of the Government through the Chief Minister alone. The duties and functions of the Council of Ministers are ordinarily governed by the provisions contained in Rule of Business framed under Article 166 of the Constitution of India. All Governmental Orders must comply with the requirements of a Statute as also the Constitutional provisions. Our Constitution envisages rule of law and not rule of men. It recognizes that how so ever high one may be, he is under Law and Constitution. All the Constitutional functionaries must, therefore function, within the Constitutional limits.
20. Apart from the fact that nothing has been placed on record to show that a Chief Minister in his capacity even as a member of the Cabinet, he had even otherwise absolutely no business to interfere with the functioning of the Regional Transport Authority.............."
2025.06.03 SEBASTIAN 16:26:00 ANTONY +05'30' 31 The above observations of the Hon'ble Supreme Court was relied on by the learned Counsel for the applicant to support the contention that the Rules of Business framed under Article 166 are mandatory and have to be scrupulously followed.
32. The scope of Rules of Business constituted and framed under Article 166 was the subject matter of detailed consideration by the Supreme Court in M.R.F. Ltd. and Others v. Manohar Parrikar and Others [(2010) 11 SCC 374]. In that case, the State Government of Goa had issued a notification dated 30.09.1991 granting rebate of 25% in tariff in respect of certain category of Industrial Consumers for a period of five years. Since there was no much response to it, the notification was rescinded on 31.03.1995 by the State Government, in purported exercise of power conferred on it under the Electricity Act by issuing a notification dated 31.03.1995. Though such notification was issued several industrial units continued to approach the State Government and claimed the benefit of the said rebate for the period between the date of supply of electricity and 31.03.1995. While this question was pending consideration, the Power Minister gave a reply on the floor of the Legislative Assembly that the Government was committed to honour the concession granted by the 2025.06.03 SEBASTIAN 16:26:00 ANTONY +05'30' 32 notification dated 30.09.1991 to eligible industrial units who applied on or after 01.10.1991 till the date of withdrawal. The Under Secretary to the Government issued a clarification dated 01.09.1995 on the lines of reply given by the Power Minister in the Legislative Assembly. Later, on 15.05.1996, the State Government issued another notification to amend the notification dated 30.09.1991 which had rescinded the notification dated 31.03.1995. Yet another notification was issued on 01.08.1996, restoring the facility of giving 25% rebate.
33. Manohar Parrikar, who was then a member of the Legislative Assembly Goa, challenged the said notifications in a public interest litigation, before the High Court, questioning the legality, validity and propriety of the two notifications issued by the Government of Goa, dated 15.05.1996 and 01.08.1996. A series of other litigations were also filed. Before the High Court, the writ petitioner, had raised several issues, inter alia, contending that the said two notifications were not issued in compliance with the requirements of Article 154 read with Article 166 of the Constitution of India and the Business Rules of Government of Goa framed by the Governor thereunder and that they were issued only at the instance of Minister of Power at the relevant point of time and hence the 2025.06.03 SEBASTIAN 16:26:00 ANTONY +05'30' 33 notifications could not be termed as decisions of the State Government. The Writ Petition was contested by the 2 nd respondent who was the Power Minister, during the relevant point of time, inter alia, contending that there was no illegality in the said notifications which were issued following the prescribed procedure in the normal course of business of the Government with a view to promote industrial growth. It was also contended that, even if the said notifications were held to be contrary to the provisions of Article 166 of the Constitution, the said Rules were only directory and failure to comply with them did not vitiate the notifications. It was further contended that, in any event, if it was realised by the State Government that these notifications were issued contrary to the provisions of Article 166, nothing prevented the State Government from withdrawing them, and the fact that no such action was taken by the State Government for almost two years itself indicated that the State Government was satisfied with the correctness of the notifications. While so, petitioner became the Chief Minister of the State. The respondent raised a preliminary objection that once the notifications impugned have been authenticated as per Business Rules, they remained beyond the pale of challenge and hence the Writ Petitions were not maintainable. There 2025.06.03 SEBASTIAN 16:26:00 ANTONY +05'30' 34 cannot be a situation wherein the respondent No.1 who at the relevant time of hearing was the Chief Minister, would be contesting against the action of the State Government itself, it was contended.
34. The High Court allowed the Writ Petition in part by holding that the notifications impugned could not be termed as notifications issued by the State Government, on account of Non-Compliance of the Rules of Business framed under Article 166(3) of the Constitution of India and therefore non-est and void-ab-initio and that the consequential actions based on these two notifications were null and void. Primarily, the High Court considered the fact that the notifications were issued by the Power Minister without the matter being placed before the Council of Ministers and ratified by it.
35. Before the Supreme Court, two basic issues, inter alia, which were considered, were whether the Business Rules framed under Article 166(3) were directory in nature or were mandatory and whether the finding that notifications being not part of the Government decisions in the eye of law in as much as the matter was neither placed before the State Cabinet in terms of Business Rules nor was the mandatory concurrence of the 2025.06.03 SEBASTIAN 16:26:00 ANTONY +05'30' 35 Finance Department under Business Rules obtained. The High Court held that the notifications cannot be termed as State Government's decision for want of non-compliance of mandatory Business Rules and the decisions and actions taken on the notification were therefore non-est.
36. The question of the sanctity of the Business Rules framed by the Governor of Goa under Article 166(3) of the Constitution of India was discussed elaborately with reference to all earlier judicial precedents. It was noted that Rule 7(2) of the Business Rules of Goa provided that no proposal which required previous concurrence of the Finance Department under the said Rule, but to which the Finance Department has not concurred, may not be proceeded with, unless the Council of Ministers has taken a decision to that effect. Further, a combined reading of provisions of Rule 7 and Rule 6 of Business Rules of Government of Goa lead to an irresistible conclusion that any proposal which was likely to be converted into a decision of the State Government involving expenditure or abandonment of revenue, for which there was no provision made in the Appropriation Act or an issue which involved concession or otherwise has a financial implication on the State, was required to be processed only after the concurrence of the Finance Department and cannot be finalised 2025.06.03 SEBASTIAN 16:26:00 ANTONY +05'30' 36 merely at the level of Minister-in-charge. Evaluating it and noting that the concurrence of the Finance Department was not obtained nor was a matter placed before the Council of Ministers and decision taken wherein by the Chief Minister and the Council of Ministers, it was held that the High Court has rightly rejected the arguments of the appellants based on the Full Bench decision of the High Court. The High Court has observed the Rules of Business are framed in such a manner that the mandatory provisions of Article 154, Article 163 and Article 166 of the Constitution are fulfilled. Therefore, if it was held that non-compliance of these rules does not vitiate the decisions taken by an individual Minister concerned alone, the result would be disastrous. It was held that in a democratic set up, the decision of the State Government must reflect the collective wisdom of the Council of Ministers or at least that the Chief Minister who heads the Council. It was further held that the individual decision by the Minister alone, acted upon by issuance of a notification will not render them as the decisions of the State Government, even if the State Government choose to remain silent for a sufficient period of time or the Secretary concerned to the State Government did not take any action under Rule 46 of Business Rules. It was held;
2025.06.03 SEBASTIAN 16:26:00 ANTONY +05'30' 37 "if every decision of an individual Minister taken in breach of Rules are treated to be those of the State Government within the meaning of Article 154 of the Constitution, the result would be chaotic. The Chief Minister would remain a mere figurehead and every Minister would be free to act on its own by keeping the Business Rules at bay. Further it will be impossible to discharge the Constitutional responsibility of the Chief Minister on advising the Governor under Article 163. "
Consequently, the Supreme Court declined to accept the contention of the appellant that the Rules of Business were only directory.
37. Supreme Court held that in law, the proposal for the decision leading to the notification dated 15.05.1996 should have been placed before the Council of Minsters or the Chief Minister and since the same has not been done, it was in violation of the Business Rules and hence the decision was non est. Even for the sake of argument, if it was assumed that the notification impugned was clarificatory in nature, the same violated Rule 19 of Business Rules and there was nothing on record to show that the department concerned attempted to seek ratification of decision taken by the Chief Minister before the notification dated 15.05.1996 was issued. Rules of Business framed under Article 166 (3) of the Constitution are for the convenient transaction of business of the Government and for allocation of business among the Ministers. Any decision taken by the State Government should reflect the collective 2025.06.03 SEBASTIAN 16:26:00 ANTONY +05'30' 38 responsibility of Council of Ministers and their participation in such decision-making process. The Chief Minister as the head of the Council is answerable not only to the Legislature but also to the Governor of the State. The Rules framed under Article 166 (3) of the Constitution are aimed to fulfil the Constitutional mandate embodied in Chapter 2 Part III of the Constitution. Therefore, the decision of State Government must be the requirement of these Rules also.
38. Supreme Court relied on the decision reported in Haridwar Singh v. Bagun Sumbrui (supra) wherein it was held that where a prescription relates to the performance of the public duty and invalidate acts done in neglect of them, as it would cause serious general inconvenience or injustice to persons who have no control over those entrusted with the duty, such prescription was generally understood as mere instructions for the guidance for the those upon whom the duty was imposed. The Hon'ble Supreme Court held that those observations apply equally in the present case and in the light of this view the Business Rules framed under the provisions of Article 166(3) of the Constitution are mandatory in nature and must be strictly adhered to. Any decision by the Government in breach of these rules will be a nullity in the eye of law.
2025.06.03 SEBASTIAN 16:26:00 ANTONY +05'30' 39
39. The decision in M.R.F Ltd.'s case (supra) was heavily relied on by the learned Counsel for the applicant to contend that the Rules of Business of Government of Kerala and that of Government of Goa were identical and the principles laid down by the Hon'ble Supreme Court in M.R.F. Ltd's case (supra) should equally apply to the present case.
40. The crux of the contention set up by the learned Counsel for the applicant was that Annexure A1 decision involved considerable financial implication and the matter ought to have obtained the concurrence of the Finance Ministry. Since the applicant was posted under the Ministry of Agriculture, consultation with the Ministry of Agriculture was mandatory. Since his proposed deputation was to Local Self Government Department, consultation with that Ministry was also mandatory. None of the said ministries was consulted. Further, the matter was taken up as an out of agenda item. The learned Counsel contended that there was absolutely no provision for matter being taken up out of agenda. Further, the agenda notes were not circulated in advance as mandatorily stipulated under Rule 19(3) of Business Rules. The said rule permitted any matter to be taken up with permission of the Chief Minister, but subject to the rider that concerned papers should be circulated in advance among the council 2025.06.03 SEBASTIAN 16:26:00 ANTONY +05'30' 40 of Ministers. There is nothing on record to show that agenda notes as contemplated under Rule 19(3) were circulated.
41. However, a Cabinet note was circulated among the Council of Ministers for consideration. It is also on record that the decision was taken by the Council of Ministers in which all the concerned Minsiters were present. The matter was placed before the Council, considered, pondered upon and the decision taken. Crucial question that arises is whether such a decision taken by the Cabinet is justiciable at the instance of a third party affected by that decision. The crucial question thus narrows down to whether the decision taken by the Council of Ministers in which all the concerned Ministers were present is justiciable at the instance of an individual, who is affected by the decision, on ground of non-compliance of any or few provisions of Rules of Business.
42. The significance of M.R.F. Ltd's case (supra) was that it reiterated the primacy of Council of Ministers and the decisions taken by it. The basis of the conclusion was that the Power Minister, without placing the matter before the Council of Ministers or getting the ratification from the Chief Minister and in contravention of Rules of Business, had issued 2025.06.03 SEBASTIAN 16:26:00 ANTONY +05'30' 41 notification which had considerable financial implications. Consultation with the concerned ministries were also not undertaken. It was on this underlying principle of primacy of Council of Ministers and that it should regulate the Rule of Governance, the Hon'ble Supreme Court held that the governmental decision should be in accordance with Rules of Business, which were mandatory in nature.
43. A close analysis of Haridwar Singh's case (supra), Neeraj Awasthi's case (supra), Punit Rai's case (supra), Bhalla K.K's case (supra), Pancham Chand's case (supra) & M.R.F. Ltd's case (supra) decisions show that in all the above cases the directions/decisions of individual minister/ministry/Chief Minister, without the approval of Council of Ministers, that too, when Rules prescribed consultation/approval of Council of Ministers, were held to be bad as violative of mandatory provisions. It was in that context, the Rules of Business were held to be mandatory. On the other hand, those decisions are not authorities on the converse situation, namely, whether a unanimous decision of Council of Ministers can be held to be invalid on ground of non-consultation with concerned Ministers/Ministries. None of the above decision is an authority on the above proposition nor do they 2025.06.03 SEBASTIAN 16:26:00 ANTONY +05'30' 42 answer the above question. Rules of Business are Rules of Procedure to facilitate, coherent decision making process, ensuring transparency in the process. They should only facilitate decision making process and should not be treated as spokes in the decision making process. In that background, we feel that it will be too dangerous a proposition to hold a decision of Council of Ministers as bad for non-compliance of procedural formalities, unless it is established to be in breach of law or the Constitution. Any such inviolable sanctity to procedures, which are hand made for proper governance, even at the cost of collective decisions, divorced from the facts of each situation may result in disastrous consequences.
44. Regarding the question whether Rules of Business are inflexible, we get a clue from the subsequent decision of the Hon'ble Supreme Court in Lalaram and Others v. Jaipur Development Authority [(2016) 11 SCC 31]. All the relevant judicial precents including the M.R.F. Ltd's case were considered by the Supreme Court in detail. Ultimately the Hon'ble Supreme Court concluded as follows :-
"104. It is no longer res integra that the enjoinment of clauses (1) and (2) of Art. 166, is not mandatory so much so, that any non-compliance therewith, ipso facto would render the executive action / decision, if otherwise validly taken in terms of the Rules of Business framed under 2025.06.03 SEBASTIAN 16:26:00 ANTONY +05'30' 43 Art. 166(3), invalid. Any decision however, to be construed as an executive decision as contemplated under Art. 166, would essentially has to be in accordance with the Rules of Business. The Rules depending upon the scheme thereof, may or may not, accord an inbuilt flexibility in its provisions in the matter of compliance. It is possible that the provisions of the Rules enbloc may not be relentlessly rigid, obligatory or peremptory proscribing even a minimal departure ensuing in incurable vitiations. Contingent on the varying imperatives, some provisions may warrant compulsory exaction of compliance therewith e.g. negative / prohibitive expression / clauses, matters involving revenue or finance, prior approval /concurrence of the Finance Department, consultation / approval / concurrence of the Finance and Revenue departments in connection therewith and issues not admitting of any laxity so as to upset, dislodge or mutilate the prescribed essentiality of collective participation, involvement and contribution of the Council of Ministers, headed by the Chief Minister in aid of the Governor in transacting the affairs of the State to effectuate the imperatives of federal democratic governance as contemplated by the Constitution.
105. As noticed hereinabove, it is affirmatively acknowledged as well that where provisions of a statute relate to the performance of a public duty and where the invalidation of acts done in neglect of these have the potential of resulting in serious general inconvenience or injustice to persons who have no control over those entrusted with the duty and at the same time would not promote the main object of the legislature, such prescriptions are generally understood as mere instructions for the guidance of those on whom the duty is imposed and are regarded as directory. It has been the practice to hold such provisions to be directory only, neglect of those, though punishable, would not however affect the validity of the acts done. At the same time where however, a power or authority is conferred with a direction that certain regulation or formality shall be complied with, it would neither be unjust nor incorrect to exact a rigorous observance of it as essential to the acquisition of the right of authority.
106. Obviously, thus the mandatory nature of any provision of any Rule of Business would be conditioned by the construction and the purpose thereof to be adjudged in the context of the scheme as a whole.
The interpretation of the Rules, necessarily, would be guided by the framework thereof and the contents and purport of its provisions, and the status and tenability of an order be judged in the conspectus of the attendant facts and circumstances. No straight jacket formula can, thus 2025.06.03 SEBASTIAN 16:26:00 ANTONY +05'30' 44 be ordained, divorced from the Rules applicable and the factual setting accompanying the order / decision under scrutiny."
(emphasis supplied)
45. Reference to the above decision of the Supreme Court answers the question posed by us. Though we find that the Rules of Business have not been strictly complied with, a decision was consciously taken by the Council of Ministers. Such conscious and informed decision taken by the Council of Ministers should not be set at naught so lightly, on premise that there have been technical/procedural violations. Though Supreme Court in the decisions referred above has held that Rules of Business are mandatory, those decisions have to be understood in the context of peculiar facts of the case.
46. Having held so, we are inclined to answer the above issue affirming that Annexure A1 is not justiciable on the ground that Rules of Business were not strictly followed.
47. Point No. 2 : Whether the State Government is empowered to issue order of deputation of the applicant to Local Self Government Reforms Commission under Rule 6(2)(i) of All India Service (Cadre) Rules, 1954?.
2025.06.03 SEBASTIAN 16:26:00 ANTONY +05'30' 45
48. The learned Counsel for the applicant contended that Annexure A1 was issued by the respondents in clear violation of mandate under Rule 6 of Annexure A4 IAS (Cadre) Rules, 1954 regarding the All India Service officers and Annexure A5, the consolidated deputation guidelines. Rule 6(2) of Annexure A4 reads as follows:
"6(2) A cadre officer may also be deputed for service under -
(i) a company, association or body of individuals, whether incorporated or not, which is wholly or substantially owned or controlled by a State Government, a Municipal Corporation or a Local Body, by the State Government on whose cadre he is borne;
and
(ii) an international organisation, an autonomous body not controlled by the Government, or a private body, by the Central Government in consultation with the State Government on whose cadre he is borne:
Provided that no cadre officer shall be deputed to any organisation or body of the type referred to in item (ii), except with his consent:
Provided further that no cadre officer shall be deputed under sub rule (1) or sub-rule (2) to a post 8 other than a post under the Central Government or under a company, association or body of individuals whether incorporated or not, which is wholly or substantially owned or controlled by the Central Government, carrying a prescribed pay which is less than, or a pay scale, the maximum of which is less than, the basic pay he would have drawn in the cadre post but for his deputation. "
2025.06.03 SEBASTIAN 16:26:00 ANTONY +05'30' 46
49. Clauses 2 and 3 are the corresponding provisions under Annexure A5, the consolidated guidelines. Rule 6(2)(i) as well as Rule 6(2)(ii) of the consolidated guidelines reads as follows :
"Rule 6(2)(i) "A Cadre officer may also be deputed for service under a company, association or body of individuals, whether incorporated or not, which is wholly or substantially owned or controlled by a State Government, a Municipal Corporation or a Local Body, by the State Government on whose cadre she/he is borne."
Deputation within the State Government on whose Cadre the officer is borne.
Posts that are to be covered:
i. A Municipal Corporation or a Local Body of the State ii. State Government PSUs iii. Training/Research/Educational Institutions wholly or substantially funded or controlled by the State Government iv. Autonomous Institutions wholly or substantially funded or controlled by the State Government v. A registered Trust or Society or Association or Body of Individuals wholly or substantially funded or controlled by the State Government Procedure to be followed for appointment:
Appointment by the State Government Tenure to be Applicable:
As decided by the State Government Note: Service in any of these posts shall count towards Cooling Off provided that the posts mentioned in (iv) and (v) shall count towards Cooling Off only if they are located within the State.
2025.06.03 SEBASTIAN 16:26:00 ANTONY +05'30' 47 Rule 6(2)(ii) "A Cadre officer may also be deputed for service under an international organization, an autonomous body not controlled by the Government, or a private body, by the Central Government in consultation with the State Government on whose Cadre she/he is borne."
3.1 Deputation under Rule 6(2)(ii) to International Organizations Posts that are to be covered:
i. United Nations Organizations or Organisations under the UN ii. International financial institutions like World Bank, IMF;
Regional Banks, like ADB, etc. iii. Multilateral organizations of which India is a member, like IAEA, WTO, Commonwealth Organization, International Court of Justice, etc.; Bodies of Regional Cooperation, like SAARC, EU, etc. iv. Bilateral Bodies set up under the Vienna Convention, i.e. Embassies and Bodies set up under them, like USAID, DFlD, NORAD, etc. v. International NGOs or Funding Organizations, from which India receives technical/financial assistance, like International Red Cross Society, Action Aid, Aga Khan Foundation, Ford Foundation, etc. vi. International organisations, which are private bodies Procedure to be followed for appointment:
With the approval of the Committee under the Chairmanship of the Cabinet Secretary comprising Secretary (P) and Finance Secretary (with PM's approval for JS and above);
Provided that for appointment to posts listed at (iv), the Foreign Secretary or the MEA Secretary concerned shall also be a member of the Committee.
2025.06.03 SEBASTIAN 16:26:00 ANTONY +05'30' 48 Provided further that for appointments to posts listed at
(v), the concurrence of MHA and MEA shall be taken.
Tenure to be applicable:
Maximum of 5 years at a stretch 3.2 Deputation under Rule 6(2)(ii) to an autonomous body, trust, society, etc. not controlled by the Government, or a private body Posts that are to be covered:
i. Non-profit organisations or Foundations of repute working in the fields of research, social work, social development, infrastructure etc. ii. Organisations registered under the Societies Registration Act iii. Organisations registered under the Charitable Trusts Act iv. Organisations registered under the Cooperatives Act v. Apex bodies of Industries and Commerce Provided that such autonomous or private bodies fulfil all four of the following criteria:
a) Structure of the Organisation - Organisations covered under Rule 6(2)(ii) may include Commissions, Regulatory Authorities and organisations like Universities, with functional autonomy created under Constitutional and statutory provisions..."
(emphasis supplied)
50. Admittedly, consent of the applicant was not sought before appointing him as LSG Commission. According to the applicant, by the nature of appointment, LSG Reforms Commission falls within the 2025.06.03 SEBASTIAN 16:26:00 ANTONY +05'30' 49 authorities prescribed in Rule 6(2)(ii) and his consent was sine quo non for such deputation. On the other hand, according to the respondents, the service of the applicant was given to LSG Department for being appointed as the Commission, invoking Rule 6(2)(i) of the said Rules and hence no consent was required. A perusal of the above provisions show that the State Government is empowered to invoke 6(2)(i) of Annexure A4 whereas, Rule 6(2)(ii) can be invoked only by the Central Government. That is the essential distinction between both the Rules. Further, State Government may invoke provision under Rule 6(2)(i) even without consent of the concerned officer. On the other hand, Rule 6(2)(ii) can be invoked by the Central Government only with the consent of the concerned officer and in accordance with the provisions contained therein. It was contended that the State Government has no power to depute an officer like the applicant to Local Self Government Reforms Commission, which is neither a Statutory Commission or any Commission under the Commission of Enquiry Act, nor one which falls under any of the authorities mentioned in Rule 6(2)(i). If at all any such power is to be exercised, it could only be under Rule 6(2)(ii), that too, by the Central Government, with the consent of the applicant. It was 2025.06.03 SEBASTIAN 16:26:00 ANTONY +05'30' 50 contended that Local Self Government Reforms Commission, by the very nature of its constitution, is an autonomous body not controlled by the Government. An officer can be deputed to such an authority only by the Central Government, under Rule 6(2)(ii), with the consent of the officer. Proposal for deputing a cadre officer to such a Commission under Rule 6(2)(ii) has to be approved by a Committee chaired by the Cabinet Secretary, it was pointed out.
51. On the other hand, in the reply statement the specific stand taken by the Government was that the applicant was deputed to Local Self Government Reforms Commission by invoking of Rule 6(2)(i) of the IAS Cadre Rules. Hence no prior consent was required and hence it was also not sought. The deputation of the applicant was not one under Rule 6(2)(ii), it was contended. His consent was required, only if the provision under Rule 6(2)(ii) was invoked.
52. To ascertain about the nature of the structure of the Commission, it is essential to refer to Annexure R2, the GO constituting the Commission. The Commission was constituted to revise the existing laws, regulations and guidelines in the Local Self Government Department and to submit 2025.06.03 SEBASTIAN 16:26:00 ANTONY +05'30' 51 recommendations and suggestions for its improvement. By Annexure R2, the Institute of Management in Government was authorized to arrange staff and facilities. The Local Self Government Department was directed to depute officers and the Finance Department was directed to allocate funds in the existing head of account. The Commission was also authorized to submit interim reports. By the very nature of its constitution and the functioning, it is evident that it was expected to be an independent, non-statutory recommendatory authority with functional independence and not to function as or under any other Government Department.
53. In the nature of the above structure, it is essential to verify whether it falls within any of the authorities mentioned in Rule 6(2)(i). Rule 6(2)(i) of the IAS (Cadre) Rules, 1954 refers to deputation of the service of an officer to a company, association or body of the individuals "whether incorporated or not, which is wholly or substantially owned or controlled by a State Government" a Municipal Corporation or a Local Body. Evidently, the Commission is not one falling within the ambit of any of the categories mentioned as company, association, municipal corporation or a local body. Though the Rule also refer to a "body of 2025.06.03 SEBASTIAN 16:26:00 ANTONY +05'30' 52 individuals, whether incorporated or not, which is wholly or substantially owned or controlled by the State Government", the respondents did not specify as to which among the above categories, the Commission falls. Evidently, it cannot fall within a "body of individuals" "whether incorporated or not, which is wholly or substantially owned or controlled by a State Government".
54. The corresponding guidelines under Annexure A5 specifically details the various categories of authorities which are referred to in Rule 6(2)(i). The posts that are covered by Annexure A5 are Municipal Corporation or a local body of the State, State Government PSUs, Training/Research/ Educational Institutions wholly or substantially funded or controlled by the State Government, autonomous institutions wholly or substantially funded or controlled by the State Government, a registered Trust or Society or Association or body of individuals wholly or substantially funded or controlled by the State Government. Evidently, the Local Self Government Reforms Commission does not fall within any of the categories mentioned as 1, 2, 3 & 5. The attempt of the respondents is to make it appear that it falls within the post "autonomous Institutions wholly or substantially funded or controlled by the State Government".
2025.06.03 SEBASTIAN 16:26:00 ANTONY +05'30' 53 Evidently, the Commission is not an autonomous institution which is wholly or substantially funded or controlled by the State Government. Clearly by no stretch of imagination, the Commission can be brought within any of the institutions mentioned in section 6(2)(i). On the other hand, Rule 6(2)(ii) refers to deputation to, inter alia, various Institutions as well as "an autonomous body not controlled by the Government". At the most, the Reforms Commission can only fall within the scope of an autonomous body not controlled by the Government.
55. This is more distinctly clear from the nature of posts covered by Rule 6(2)(ii) as specified in Annexure A5. Clause 3.2 of Annexure A5 specifically refers to the post that are covered under Rule 6(2)(ii). Various institutions are mentioned therein. Clause A of the proviso therein states that autonomous or private bodies fulfil or any of the criteria therein which refers to organizations covered under Rule 6(2)(ii) to include Commissions, Regulatory Authorities and organizations like Universities. This explanation clearly establish that LSG Reforms Commission fall within Rule 6(2)(ii) as explained in Annexure A5 and not under Rule 6(2)(i).
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56. The learned Additional Adv. General contented that the argument now advanced based on Annexure A4 Rules that he could be deputed only under Rule 6(2)(ii) of Annexure A4 Rules was raised in an earlier litigation initiated by the applicant and rejected by the Hon'ble High Court by Annexure R2(a) judgment. It was categorically held that applicant cannot be heard to say that such deputation will not come within the purview of Rule 6(2)(i) enabling the State Government to order deputation and for such a deputation, no consent of the officer was liable to be obtained. It was further contended that the applicant suppressed the above finding in the present OA.
57. Annexure R2(a) is the judgment of the Hon'ble High Court in OP (CAT) No.120/2015 and OP (CAT) No.121/2015. It arose from an Original Application filed by the applicant herein as O.A No.539/2013 challenging the disciplinary proceedings initiated against him with respect to a complaint lodged by a third party regarding certain acts done by the applicant while officiating as the Vice Chancellor of the Kerala Veterinary and Animal Sciences University. The contention set up by the applicant was that, he being the Vice Chancellor, was appointed by the Chancellor in terms of Section 12(5) of the Kerala Veterinary and Animal 2025.06.03 SEBASTIAN 16:26:00 ANTONY +05'30' 55 Sciences University Act, 2010 and hence the Government was not the authority competent to initiate disciplinary proceedings against him.
58. The basic contention raised therein was that the Government was not competent to initiate disciplinary proceedings against him. The various facets of his appointment were also projected. It was, inter alia, contended that he being the Vice Chancellor, could be removed only by the Chancellor and there was no requirement of borrowing or lending in connection with the appointment of a Vice Chancellor in terms of the Act and hence no instance of deputation was involved. As a corollary, it was contended that Rule 6(2)(ii) of Cadre Rules could be invoked only by the Central Government and not by the State Government, it being an appointment to an institution which was a university, not controlled or owned by the State Government.
59. The issue was considered elaborately by the Division Bench. After evaluation of entire facts at para 26 of the judgment, it was held that an University stands included in the term "autonomous body" mentioned in Rule 6(2)(ii), and deputation to such institution was possible only to the extent as specified, which in no way did not stand contrary to the mandate 2025.06.03 SEBASTIAN 16:26:00 ANTONY +05'30' 56 of Rule 6(2)(ii). The contention of the applicant to the contrary was only to be repelled, it was held.
60. A close perusal of Annexure R2(a) clearly shows that the contention advanced by the respondents based on Annexure R2(a) and that the issue stands concluded and that it cannot now be agitated and further that the applicant is taking double stand in two different situations is not at all acceptable. In fact, the stand of the applicant vis a vis Rules 6(2)(i) and 6(2)(ii) appears to be consistent. The stand now taken that Rule 6(2)(ii) is applicable is in relation to a totally distinct organization, which is a Commission which stands on a different footing. Hence there is no contradiction in the stand. The core issue involved in that was fundamentally different from the issue now raised. The issue in so far as whether it applies to a Commission was not the subject matter of Annexure R2(a) judgment.
61. In the light of the finding that LSG Reforms Commission falls within the authorities mentioned in Rule 6(2)(ii) and not within the authorities mentioned in Rule 6(2)(1), Annexure A1 issued by the State 2025.06.03 SEBASTIAN 16:26:00 ANTONY +05'30' 57 Government, that too, without seeking consent of applicant is bad and is accordingly not sustainable.
62. Point No. 3 - Whether the deputation of the applicant by Annexure A1 is in violation of Rule 12(1) of the Indian Administrative Service (Pay) Rules, 1954?
63. The learned Counsel for the applicant assailed Annexure A1 on the premise that it was in violation of Rule 12 (1) of Annexure A6 Indian Administrative Service (Pay) Rules, 2016. It was contended that no previous objective assessment was made regarding the functions and responsibilities of the post of Local Self Government Reforms Commission, to declare it equivalent to that of the post of Principal Secretary to the Government. It was contended that Annexure A1 was issued totally contrary to the Indian Administrative Service (Cadre) Rules and Indian Administrative Service (Pay) Rules and violated the judgments of the Hon'ble Supreme Court that the status and responsibilities of a non-cadre posts for the purpose of determination of equivalence cannot depend on who was to occupy it. It was contended that no objective assessment was made to determine the functions and 2025.06.03 SEBASTIAN 16:26:00 ANTONY +05'30' 58 responsibilities of the post of the Local Self Government Reforms Commission to declare it equivalent to that of Principal Secretary to Government. Not even the staffing pattern of the post Commission by listing of each functional area by position including the condition that it should be headed either by a Principal Secretary or Secretary or any other staff was not formalised by way of an authenticated order. In the instant case, the deputation order indicating the formation of Commission precedes any order yet to be issued regarding the fundamental formation of the Commission, it was contended. As on date, no post has been created in the Commission including that of an Officer of the rank of Principal Secretary. It was also contended that the equivalence made in GO dated 09.01.2025 by the 2 nd respondent appeared to be hollow in as much it was only for a fulfilment of a technical or legal requirement, and in fact, the post did not have adequate work and responsibility and status commensurate with the post of Principal Secretary.
64. It was stated that the working of applicant on deputation to Local Self Government Department by shifting from his present posting as Principal Secretary and Agricultural Production Commission necessitates his subordination to the present Secretary and Principal Secretary in 2025.06.03 SEBASTIAN 16:26:00 ANTONY +05'30' 59 charge of the Local Self Government Department. It was further stated that the present Special Secretary of Local Self Government Department is twelve years junior to the applicant and the Principal Secretary is at the petitioner's grade itself. As per the Order of Precedence notified by the 2 nd respondent this would entail a definite precedence of the Special Secretary ranked at 27 above the Commission, whereas the applicant as Principal Secretary occupies position of 25. This will be reversed functionally in the proposed deputation. Hence, there is a considerable and demonstrable role reversal and upturning of the seniority principles involved in the deputation, it was contended.
65. Answering this contention, the learned Additional Advocate General contended that under the Indian Administrative Service (Cadre) Rules, 1954, 25% of the Senior Duty Post (31) are earmarked as State Deputation Reserve. As per the Cadre Review notification of 2013, the number of Senior duty post stands revised as 126 from earlier 116 and State Deputation Reserve enhanced to 31 from the earlier 29. State deputation is included in the State Deputation Reserve which is purely within the Cadre. The State deputation is purely technical and this does not mean that the officer posted on State deputation is more out of the 2025.06.03 SEBASTIAN 16:26:00 ANTONY +05'30' 60 Cadre. It was further submitted that out of 31 permissible as SDR under the IAS Fixation of Cadre Strength Regulations 1955, presently only 28 including the applicant are fulfilled. Clearly, the officer posted on State deputation is purely within the cadre. Hence, the contention of the applicant that it was moved out of the cadre is not tenable. It was contended that the declaration of equivalence of the post of Local Self Government Reforms Commission to that of Principal Secretary to Government is purely technical and is to meet the legal requirement of Rule 12 of IAS (Pay) Rules 2016 enabling the applicant to draw his pay and allowances in Principal Secretary Grade of IAS. The contention of the applicant that the declaration of the equivalence of the post was without application of mind is not true to the facts, it was contended.
66. Rule 12 of IAS (Pay) Rules 2016 is as follows:
"12. Pay of members of service appointed to post not included in Schedule II.
(1) No member of the Service shall be appointed to a post other than a post specified in Schedule II, unless the State Government concerned in respect of posts under its control, or the Central 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 II. "
2025.06.03 SEBASTIAN 16:26:00 ANTONY +05'30' 61
67. To substantiate the contention that the requirement of declaration of equivalence as contemplated under Rule 12(1) is not a mere formality and not merely to satisfy the legal requirement and that it should be based on an objective evaluation of the entire facts, the learned Counsel for the applicant relied on the decision of the five Judges Bench of the Supreme Court in E.P. Royappa v. State of Tamil Nadu (AIR 1974 SC 555). In that case, the applicant who was a senior IAS Officer of Tamil Nadu Cadre was posted to act as Chief Secretary to the Government with effect from 13.11.1969. Later, he was appointed as the Deputy Chairman of State Planning Commission. That post was created temporarily for a period of one year in the grade of Chief Secretary to Government. The applicant refused to join it and went on leave. After he returned, he was again posted as Deputy Chairman of the State Planning Commission which he declined. By an order dated 27.06.1972, 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 the Government for a period of one year from the date of appointment or till the need of it ceased, whichever was earlier. By the same order the petitioner was 2025.06.03 SEBASTIAN 16:26:00 ANTONY +05'30' 62 transferred and appointed as Officer on Special Duty which was challenged before the Hon'ble Supreme Court.
68. It was contended by the petitioner therein that the post of Officer on Special Duty was not a post carrying duties and responsibilities of a like nature to cadre post within the meaning of Rule 4 of the Indian Administrative Service (Cadre) Rules, 1954. Under Rule 9 of 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 Central 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 was contended that the petitioner who was a cadre post holder cannot be posted to a non- scheduled post without a declaration that the non-scheduled post was equal in status and responsibilities to a scheduled post. Admittedly, the said Rule 9 corresponds to the present said Rule 12 of IAS (Pay) Rules, 2016. After a detailed consideration of the entire issues, the Supreme Court held that the equal pay by itself alone will not be decisive of the equation of status and responsibility of the post, but pay scale will 2025.06.03 SEBASTIAN 16:26:00 ANTONY +05'30' 63 primarily show status and responsibility of equal nature. It was held that real significance of Rule 9 was that members of cadre post cannot be deployed to non-cadre posts unless posts are of a calibre which can be filled up by a cadre person. It was also held that a declaration in writing regarding the equivalence was desirable. However, the absence of the declaration will not be an impediment in ascertaining the equivalence of 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, it was held.
69. With reference to Rule 9, it was held by the Supreme Court as under:
"This rule is intended to provide a safeguard for the protection of a member of the Indian Administrative Service. Sub-rule (1) enacts that no member of the Indian Administrative Service shall be appointed to a post other than a post specified in Schedule III, or in other words, to a non cadre posts unless the Government makes a declaration that such non cadre post is "equivalent in status and responsibility" to a post specified in the said Schedule, i.e., to a cadre post. If the State Government wants to appoint a member of the Indian Administrative Service to a non cadre post created by it, it cannot do so unless it makes a declaration setting out which is the cadre post to which such non cadre post is equivalent in status and responsibility. The making of such a declaration is a sine qua non of the exercise of power under sub-rule (1). It is not an idle formality which can be dispensed with at the sweet will of the Government. It has a purpose behind it and that is to ensure that a member of the Indian Administrative Service is not pushed off to 2025.06.03 SEBASTIAN 16:26:00 ANTONY +05'30' 64 a non cadre post which is inferior in status and responsibility to that occupied by him. So far as cadre posts are concerned, their hierarchy would be known, but a non cadre post created by the Government would be stranger in the hierarchy, and that is why sub-rule (1) requires that before appointing a member of the Indian, Administrative Service to such non cadre post. The Government must declare which is the cadre to which such non cadre post is equivalent in status and responsibility so that the member of the Indian Administrative Service who is appointed to such non cadre post, would know what is the status and responsibility of his post in terms of cadre posts and whether he is placed in a superior or equal post or he is brought down to an inferior post. If it is the latter, he would be entitled to protect his rights be pleading violation on Art. 311 or Arts. 14 and 16 of the Constitution, whichever may be applicable. That would provide him effective insulation against unjust or unequal or unlawful treatment at the hands of the Government. The object of this provision clearly is to ensure that the public services are, in the discharge of their duties, not exposed to the demoralising and depraving effects of personal or political nepotism or victimisation or the vagaries of the political machine. The determination of equivalence is, therefore, made a condition precedent before of a member of the Indian Administrative Service can be appointed to a non-cadre post under sub-rule (1). It is mandatory requirement which must be obeyed. 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."
(emphasis supplied)
70. Thereafter, the Supreme Court proceeded to hold as follows:
"Once the declaration of equivalence is made on a proper application of mind to the nature and responsibilities of the functions and duties attached to the non cadre post, sub-r. (2) says that the pay of the member of the Indian Administrative Service appointed to such non cadre post shall be the same as he would have been entitled to, had he been appointed in the cadre post to which such non cadre post is declared equivalent. He is thus assured the pay of the equivalent cadre post and his pay is protected. Now this declaration of equivalence, though imperative is not conclusive in the sense that it can never be questioned. It would be open to a member of the Indian Administrative Service to contend, notwithstanding the declaration of equivalence, that the non cadre posť to which he is appointed is in truth and reality inferior in status and responsibility to that occupied by him and his appointment to such non cadre post is in violation of Art. 311 or Arts.
2025.06.03 SEBASTIAN 16:26:00 ANTONY +05'30' 65 14 and 16. The burden of establishing this would undoubtedly be very heavy and the Court would be slow to interfere with the declaration of equivalence made by the Government. The Government would ordinarily be the best judge to evaluate and compare the nature and responsibilities of the functions and duties attached to different posts with a view to determining whether or not they are equivalent in status and responsibility and when the Government has declared equivalence after proper application of mind to the relevant factors, the Court would be most reluctant to venture into the uncharted and unfamiliar field of administration and examine the correctness of the declaration of equivalence made by the Government. 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 and 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. The declaration of equivalence must, however, always be there if a member of the Indian Administrative Service it to be appointed to a non cadre post. The only exception to this rule is to be found in sub-rule (4) and that applies where the non cadre post is such that it is not possible to equate it with any cadre post. Where the Government finds that the equation is not possible, it can appoint a member of the Indian Administrative Service to a non cadre post but only for sufficient reasons to be recorded in writing. This again shows that the Government is required to apply its mind and make an objective assessment on the basis of relevant factors for determining whether the non cadre post to which a member of the Indian Administrative Service is sought to be appointed can be equated to a cadre post, and if so, to what cadre post it can be so equated. This is the plain requirement of Rule 9, sub-rule. (1) and the question is 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."
71. Ultimately, the Supreme Court on facts held that the declaration of equivalence was not based on an objective assessment of nature and 2025.06.03 SEBASTIAN 16:26:00 ANTONY +05'30' 66 responsibility of the functions and duties attached to the post of Deputy Chairman and the status and responsibility of the Chief Secretary. It was held that it was one thing to create a post of Deputy Chairman in the cadre of Chief Secretary and another to determine on an objective assessment of the nature and responsibilities of functions and duties that the post of Deputy Chairman was equivalent in status and responsibility. The Supreme Court held that the State Government proceeded on the hypothesis that it can create a non-cadre post in the rank or grade of any cadre posts it likes, irrespective of the nature and responsibilities of functions and duties attached to such cadre posts and that would be sufficient compliance with the requirement of Rule 9 Sub-rule (1). That hypothesis was plainly incorrect. The State Government cannot artificially create equivalence by saying that a particular non cadre post whatever may be the nature and responsibilities functions and duties attached to it shall be in the rank of grade of any cadre post it likes. The State Government has to apply its mind and make an objective assessment of the nature of responsibilities of the functions and duties and determine the cadre post to which such non cadre post can be 2025.06.03 SEBASTIAN 16:26:00 ANTONY +05'30' 67 regarded as equivalent in status and responsibility and then only it can make a declaration of equivalence.
72. The same issue came up before the Supreme Court in Vice Chancellor, Lalit Narain Mithila University v. Dayanand Jha (AIR 1986 SC 1200). In that the question arose regarding the power of the Vice Chancellor to transfer a teacher of one Department to "any other equivalent post" in any other Department. In that case, transfer of a teacher from the post of Principal of a constituent College to the post of Reader of another constituent College was under challenge. Hon'ble Supreme Court held that though the post of Principal and Reader carry the same pay scale, the post of Principal undoubtedly has higher duties and responsibilities. Hence, it was held that it cannot be treated as an equivalent post and consequently the transfer was bad.
73. The same view was reiterated by the Supreme Court in P.K. Chinnasamy v. Government of Tamil Nadu and Others [(1987) 4 SCC 601]. In that also an identical issue came before the Supreme Court. On facts it was held that the State Government cannot equate one ex cadre post to one grade at one time and another grade at another time. Identical 2025.06.03 SEBASTIAN 16:26:00 ANTONY +05'30' 68 view was expressed by the Central Administrative Tribunal, Hyderabad Bench in Shafiquzzaman v. A.P. Warehousing Corporation, Hyderabad (O.A. No.307/2007).
74. The facts of the case at hand has to be analysed in the background of the legal propositions affirmed consistently by the Supreme Court and other courts. Annexure A14 includes the Cabinet note placed before the Cabinet dated 08.01.2025. It proposed constitution of Local Self Department Reforms Commission and suggested that a person not below the rank of Principal Secretary of All India Service shall be deputed. The proposal in the note was that the applicant may be transferred and posted as the Commission. Annexure A14 at page 5 shows that the proposal in the Cabinet note was approved by the Council of Ministers on 8.1.2025. In the Cabinet note there was no proposal for declaration of equivalence of the post, much less even a proposal to undertake an exercise of equivalence. Consequently, the Cabinet decision also did not grant approval for declaring the post as equivalent. Annexure A14(3) is the impugned order dated 09.01.2025 by which the applicant was appointed as Local Self Government Reforms Commission. By the same order, the post of Local Self Reforms Commission was declared as equivalent in 2025.06.03 SEBASTIAN 16:26:00 ANTONY +05'30' 69 status and responsibility of the cadre post of Principal Secretary to the Government in the above super time scale. Evidently, it was after the decision was taken by the Council of Ministers to appoint the applicant as the Commission, the declaration was made regarding equivalence. Whether any evaluation/assessment of the duties and responsibilities of the Commission with that of the nature and responsibility of the work exercised by the applicant was undertaken, and if so, the level at which such an evaluation was done, and the authority which took the decision to treat the post as equivalent is not discernible on record. The respondents have not produced any material to establish that it was objectively assessed and a proper decision was taken. However, the materials on record clearly indicates that the declaration of equivalence followed the decision to transfer the applicant on deputation. In other words, after deciding to transfer the applicant and post as the LSG Commission, the decision to declare the post of Commission as equivalent to the post of Additional Chief Secretary was taken. This is directly contrary to the decision discussed supra.
75. In this regard, Annexures A18 and A19 are also relevant. Annexure A18 is an earlier Government Order dated 22.10.2012 constituting a 2025.06.03 SEBASTIAN 16:26:00 ANTONY +05'30' 70 Local Self Government Commission with the intention of guiding the institutionalisation process of decentralisation. A senior political leader having experience and expertise in the matter relating to decentralisation was proposed as the Chair Person. The Principal Secretary of the Local Self Government was proposed as its member Secretary. The follow up action was to be taken by another committee consisting of a Chief Secretary/Additional Chief Secretary as its Chairperson. It seems that the said proposal was not pursued thereafter.
76. By Annexure A19 order dated 29.07.2016, a new Local Self Government Commission to guide decentralisation process of Local Self Governments in Kerala was constituted with one C.P. Vinod as the Chairman. The Principal Secretary, Local Self Government was the member Secretary of that Commission. The honorarium payable to the Chairman was fixed by Annexure A21 Government Order dated 21.11.2016 as Rs. 75,000/- per month and Rs. 10,000/- as rent for accommodation. Annexures A18 and A19 clearly show the duties, functions and status of the Chairpersons so appointed were nowhere near that of an Additional Chief Secretary. The Chairperson of Annexure A19 was only paid a fixed honorarium of Rs. 75,000/- only. The applicant is 2025.06.03 SEBASTIAN 16:26:00 ANTONY +05'30' 71 now sought to be appointed to another Commission of almost similar nature. The duties, functions and terms of appointment evidenced by Annexures A18 and A19 are nowhere near that of the status of an Additional Chief Secretary. Evidently, there is not even a rough equivalence of these two posts.
77. Having considered these facts, we are satisfied that the declaration of equivalence was made after the decision was taken to post the applicant as LSG Commission. It was not preceded by an objective evaluation of the nature of responsibilities of both offices and there is nothing on record to show that it was done in full compliance with the true spirit of Rule 12 of IAS (Pay) Rules. The equivalence sought to be made out by Annexure A1 appears to be mere artificial. Annexure A1 is bad on that ground.
78. Point No. 4 - Whether the decision leading to Annexure A1 is a malafide exercise of power constituting malice in law?
79. The next limb of contention of the learned Counsel for the applicant was that the Annexure A1 was issued with the sole object of pushing the applicant to an insignificant post. It was contended by the 2025.06.03 SEBASTIAN 16:26:00 ANTONY +05'30' 72 learned counsel that various factors leading to Annexure A1 establish that the decision was actuated by malice in law, and thus vitiated.
80. On the other hand, the learned Additional Advocate General contended that the allegation of malafides in issuing Annexure A1 is absolutely without any basis. No personal malice is attributed to any person and no such person is arrayed as a respondent in the Original Application. It was also contended that it was not for the applicant to decide how the Commission was to be formed, how the person to man the Commission should be identified and what should be the object of the Commission.
81. It was contended by the learned Counsel for the applicant that several factors indicate that the hasty decision was taken to shift applicant to an insignificant post. It was stated that the matter was taken up an out of agenda item, though the Rule did not permit such a procedure. It was contended that several Ministries/Departments who were concerned and were obliged by law to be consulted were not taken into confidence. The financial implications involved was not evaluated. Even before Commission was constituted, the applicant was identified and decided to 2025.06.03 SEBASTIAN 16:26:00 ANTONY +05'30' 73 be deputed. According to the counsel, it was a conscious decision taken to remove the applicant from the Secretariat. It was pointed out by the learned Counsel that the Cabinet note was placed before the Cabinet on 08.01.2025 which resolved to depute the applicant. Annexure A1 was issued on 09.01.2025 itself. Though applicant submitted representation objecting to his transfer, it was rejected by Annexure A8 order on 16.01.2025. On the very same day, by Annexure A9 order signed and issued by the competent authority at 8.05 P.M, as evident from Annexure A9 itself, the charge was ordered to be handed over to another officer who was at that point of time in New Delhi. These factors cumulatively indicate that undue haste was shown to displace the applicant, it was contended. This was supplemented by the fact that the consent of the applicant was also not sought.
82. According to the learned Counsel a reverse process of decision making leading to issuance of Annexure A1 was adopted in the case of the applicant. Initially the applicant was identified as the person to man the Commission. Cabinet note was put up and after issuing the order, the Commission was constituted. Much later, by a communication of the Institute of Management in Government it was informed that basic 2025.06.03 SEBASTIAN 16:26:00 ANTONY +05'30' 74 infrastructure was furnished. The officers, the staff pattern and the duties and responsibilities of persons who are to man the Commission have also not identified, it was contended.
83. According to the learned Counsel for the applicant the applicant was not an expert on the subject and had expressed his apprehension that he would not be the appropriate person to man the Commission. In the above circumstance, his choice was tainted and not bonafide.
84. Yet another contention advanced by the learned Counsel for the applicant was that the respondents were not consistent regarding the question whether the applicant was in fact sent under deputation or was transferred. They had taken inconsistent stand at various stages and in various documents. The learned Counsel relied on the decisions reported in Bhagwati Prasad G Butt v. State of Gujarat and Others [(1977) 1 GLR 562], Prem Praveen v. Union of India, Delhi High Court [Civil Appeal No. 957 of 1971], V. Jaganatha Rao and Others v. State of Andhra Pradesh (AIR 2002 SC 77) and Rohith Jain and Others v. Union of India, Delhi High Court [WP(C) 8895 of 2010], to contend that the terms deputation and transfer, cannot be used inter changeably as 2025.06.03 SEBASTIAN 16:26:00 ANTONY +05'30' 75 both were entirely different concepts. The learned counsel also relied on the decision of the Supreme Court in Ms. Sarita Singh v. M/s. Shree Infosoft Private Limited, (2022 INSC 45) which elaborated the concept of deputation and held that deputation is tripartite in nature and there cannot be a deputation without the consent of person deputed.
85. To buttress the contention that the faulty or wrong procedure adopted in effecting an administrative action may lead to malice in law and hence liable to be interfered, the learned Counsel relied on the decisions reported in the case of Ravi Yaswanth Bhoir v. District Collector, Raigad [(2012) 4 SCC 407], Y.R Patel, IPS v. Union of India, [(2006) 1 SLJ 154 of CAT, Bengaluru], Lipton India Limited v. State of Karnataka, (AIR 1977 SC 1911) and B. Varadha Rao v. State of Karnataka, [(1986) 4 SCC 131].
86. It is true that the Annexure A1 was issued pursuant to a decision taken as an out of agenda item. This issue was discussed in detail while considering other issues and it has been held that on that ground alone the Annexure A1 cannot be impeached. However, it is pertinent to note that pursuant to the Cabinet decision, orders have to be issued within 24 hours 2025.06.03 SEBASTIAN 16:26:00 ANTONY +05'30' 76 as disclosed in the reply statement. Necessarily Annexure A1 was issued on the next date. Swift action or even a speedy action taken pursuant to Cabinet decisions by itself need not indicate malice. It is also pertinent to note that the question of consent has been considered in detail while considering issue under Rule 6(2). Regarding the contention of the applicant that he was not the proper and the apt person to be appointed as the Commission, we do not find much merit. The choice of an individual is exclusively that of the executive. It is pertinent to note that on the first occasion a politician was considered to man the Commission. Next time an expert on that subject was selected. On the third occasion, probably the Cabinet in its wisdom thought that a bureaucrat with its rich administrative experience may be person who can man the Commission. The wisdom of that choice by itself may not indicate malice.
87. An evaluation of the above facts does not clearly establish that applicant could establish that the decision process resulting in Annexure A1 was tainted by malice in law.
88. An appreciation of all the above contentions of both sides on the broad grounds discussed above, Annexure A1 cannot be sustained on the 2025.06.03 SEBASTIAN 16:26:00 ANTONY +05'30' 77 ground that it was issued by invoking Rule 6(2)(i) of IAS Cadre Rules, 1954. We have held in answer to point No. 2 that the LSG Commission can only fall within Rule 6(2)(ii). The power can be exercised only by the Central Government with the consent of the applicant. Since the power was purportedly exercised under rule 6(2)(i), that too by the State Government, Annexure A1 is legally not sustainable. Further Annexure A1 was not in accordance with Rule 12(1) of Indian Administrative Service (Pay) Rules. Hence, on both points Nos. 2 and 3 Annexure A1 is not sustainable. It is set aside. Since annexure A9 is consequential to Annexure A1, Annexure A9 becomes redundant.
89. Accordingly, OA is allowed. Annexure A1 is set aside. No costs.
(V. RAMA MATHEW) (JUSTICE SUNIL THOMAS)
ADMINISTRATIVE MEMBER JUDICIAL MEMBER
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Original Application No. 180/00019/2025 APPLICANT'S ANNEXURES Annexure A1 - True copy of GO(Rt.) No. 114/2025/GAD issued by the 2nd respondent dt. 9.1.25.
Annexure A2 - True copy of GO(P) NO. 546.80/GAD dated 1.12.1980 issued by the General Administration (SPL.A) Department of the Government of Kerala. Annexure A3 - True copy of representation dated 12.1.2025 submitted by the applicant to the 2nd respondent.
Annexure A4 - True copy of the relevant pages of All India Services (Cadre) Rules, 1954.
Annexure A5 - True copy of the relevant pages of consolidated deputation guidelines for All India Services updated as on 17.11.2022 issued by the Department of Personnel, Public Grievances and Pensions, Government of India. Annexure A6 - True copy of the Indian Administrative Services (Pay) Rules, 2016.
Annexure A7 - True copy of table prepared by the applicant summarizing the number of additional charges held by officers of the rank of Secretary and above in the cadre and ex-cadre posts available in the Civil List published by the 2nd respondent.
Annexure A8 - True copy of letter No. AIS-A1/A11/2025-GAD dated 16.1.2025 issued by the Chief Secretary.
Annexure A9 - True copy of GO(Rt.) No. 185/2025/GAD dated 16.1.2025 issued by the Additional Secretary, General Administration Department.
2025.06.03 SEBASTIAN 16:26:00 ANTONY +05'30' 80 Annexure A10 - True copy of part I of the Rules of Business of the Government of Kerala.
Annexure A11 - True copy of relevant provisions of the Kerala Secretariat Office Manual.
Annexure A12 - True copy of query dated 24.1.2025 submitted by him under the Right to Information Act to the Public Information Officer, GAD(SC) Department. Annexure A13 - True copy of GO(Ms) No. 7/2025/LSGD dated 10.1.2025 and consequent proceedings including the relevant cabinet note file.
Annexure A14 - True copy of the reply to Annexure A12 received by the applicant (along with English translation of Malayalam documents thereto).
Annexure A15 - True copy of GO(Ms) No. 7/2025/LSGD dated 10.1.2025 and consequent proceedings including the relevant cabinet note file (along with English translation of Malayalam documents thereto). Annexure A16 - True copy of note for Council of Ministers based on Chief Minster's orders dated 24.12.2023 in respect of file No. PPM CELL-6/2023/AGRI prepared by the Agriculture (PPM CELL), Department.
Annexure A17 - True copy of the relevant pages of Part II of Rules of Business of the Government of Kerala which contains the Distribution of Business in the Agriculture Department.
Annexure A18 - True copy of GO(MS) No. 273/12/LSGD dated 22.10.2012 issued by Local Self Government (RD Department) constituting the Local Government Commission.
2025.06.03 SEBASTIAN 16:26:00 ANTONY +05'30' 81 Annexure A19 - True copy of GO(MS) No. 94/2016/LSGD dated 29.7.2016 issued by Local Self Government (RD) Department.
Annexure A20 - True copy of GO(MS) No. 148/2016/LSGD dated 21.10.2016 issued by Local Self Government (RD) Department.
Annexure A21 - True copy of GO(MS) No. 172/2016/LSGD dated 21.11.2016 issued by the Local Self Government (RD) Department.
Annexure A22 - True copy of GO(MS) No. 27/2017/LSGD dated 30.1.2017 issued by the Local Self Government (RD) Department.
Annexure A23 - True copy of details of Local Government Commission as downloaded from the official website of the Local Self Government Department, Kerala. Annexure A24 - True copy of OM No. 14017/27/75-Estt.D(Pt.) dated 7.3.1984 issued by the Department of Personnel and Administrative Reforms.
Annexure A25 - True copy of the communication bearing No. DO No. 33/2023-EO(MM.II) dated 15.12.2022 issued by the Department of Personnel and Training.
Annexure A26 - True copy of the order dated 19.1.2016 passed by the Hon'ble Supreme Court in SLP(C) No. 71/2016 filed against judgment in OP 120/2015 passed by the High Court of Kerala.
Annexure A27 - True copy of GO(Rt) No. 2754/2016/GAD dated 30.4.2016 issued by Chief Secretary to Government of Kerala.
2025.06.03 SEBASTIAN 16:26:00 ANTONY +05'30' 82 Annexure A28 - True copy of the order GO (Rt) No. 613/2023/GAD dated 7.2.2023 issued by the General Administration Department.
Annexure A29 - True copy of the note for Council of Ministers for deciding the subject of appointment of Vice Chancellor to the newly established Kerala Veterinary and Animal Sciences University, signed by the Secretary concerned on 27.11.2010.
Annexure A30 - True copy of the note for circulation to Governor in the matter of appointment of Vice Chancellor to the newly formed Kerala Veterinary and Animal Sciences University, signed on 3.12.2010 by the Under Secretary to the Agriculture (AH) Department. Annexure A31 - True copy of GO(Rt) No. 9095/2010/GAD dated 10.12.2010 issued by General Administration (Special A) Department, Government of Kerala.
Annexure A32 - True copy of the GO(Rt) No. 2202/10/AD dated 10.12.2010 issued by the Agriculture (AHF) Department.
Annexure A33 - True copy of notification No. GS3-2588/2010 dated 29.12.2010 issued by the Hon'ble Chancellor. Annexure A34 - True copy of DIR-2 form dated 21.03.2019, whereby the applicant has expressed his consent to act as Director of the Kerala State Electricity Board, before assuming legal responsibility.
Annexure A35 - True copy of DIR-2 form dated 28.6.2021 whereby the applicant has expressed his consent to act as Director of the Kerala Electricity Board, before assuming legal responsibility.
2025.06.03 SEBASTIAN 16:26:00 ANTONY +05'30' 83 Annexure A36- True copy of DIR-2 form dated 9.8.2021 whereby the applicant has expressed his consent to act as Director of the Kerala State Electricity Board, before assuming legal responsibility.
Annexure A37 - True copy of the Demands for Grant and Detailed Budget Estimates 2025-26 Volume iii which contains the estimates of the amount required in the year ending 31st March, 2026 to defray the charges in respect of Rural Development.
RESPONDENTS' ANNEXURES Annexure R2(a)- Copy of the judgment dated 21.8.2015 in OP(CAT) 120 & 121 of 2015.
Annexure R2(b)- Copy of the reply/letter dated 16.1.2025 furnished by the 2nd respondent to the applicant.
Annexure R2(c)- Copy of the GO(Rt) No. 185/2025/GAD dated 16.1.2025.
Annexure R2(d)- Copy of the GO(Ms) No. 7/2025/LSGD dated 10.1.2025.
Annexure R2(e)- Copy of the English translation of Annexure R2(d) Government order dated 10.1.2025.
Annexure R2(f)- Copy of document regarding creation of Head of Account for Local Self Government Reforms Commission.
Annexure R2(g)- Copy of GO(Rt) No. 2965/2022/GAD dated 14.7.2022.
Annexure R2(h)- Copy of GO(Rt) No. 5582/2022/GAD dated 24.12.2022.
2025.06.03 SEBASTIAN 16:26:00 ANTONY +05'30' 84 Annexure R2(i)- Copy of GO(Rt) No. 332/2023/GAD dated 24.1.2023. Annexure R2(j)- Copy of GO(Rt) No. 613/2023/GAD dated 7.2.2023. Annexure R2(k)- Copy of GO(Rt) No. 2642/2021/GAD dated 17.7.2021.
Annexure R2(l)- Copy of GO(Rt) No. 6608/2012/GAD dated 3.8.2012. Annexure R2(m)-Copy of letter No. 4428/A2/2025/IMG dated 22.1.2025 received from Secretary, Institute of Management in Government.
Annexure R2(n)- Copy of English translation of Annexure R2(m) letter. Annexure R2(o)- Copy of note dated 3.9.2024 submitted by the applicant.
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