Indian Kanoon - Search engine for Indian Law

So far as the other contention made by the appellant, namely, that the transfer order is vitiated in view of the fact that the appellant was sought to be reverted to a lower post in violation of the procedure in Rule 9 (l) of IAS (Pay) Rules and Rule 4 of IAS (Cadre) Rules in concerned, it has been contended by the appellant that a Notification issued on January 5, 1991 declaring the post of Secretary, High Power Committee, as equivalent to the post of Chief Secretary, was of no consequence and could not cure the initial defect inasmuch as prior to such Notification issued on January 5, 1991 declaring equivalence of the said posts, the impugned order of transfer was sought to be effected and the respondent No. 4 was allowed to join the post of Chief Secretary pursuant to the order of transfer of the appellant. The Central Administrative Tribunal referred to four documents being Annexures 7, 8, 9 & 10 to the application made by the appellant and also the affidavits filed by the parties and accepted the contention of the respondents that the post of the Secretary was declared equivalent to the post of Additional Chief Secretary and the post of Additional Chief Secretary was also declared equivalent to the post of (Chief Secretary, and such declarations had been made ever since 1980 and the appellant was fully aware of the said position. The Central Administrative Tribunal also accepted the contention of the respondents that in order to avoid any embarrassment and complication, the State Government had also made a declaration on January 4, 1991 prior to the transfer of the appellant that the post of the Secretary, High Power Committee, was equivalent to the post of Chief Secretary but the formal authenticated order declaring the said equivalence was issued next day i.e. January 5, 1991. There was no delay in issuing the declaration and even assuming that there was a delay of one day in making the formal declaration of equivalence, such delay had not nullified and invalidated the decision of the Government. Referring to the various decisions of this Court including the decision made in the case of Babulal v. M/s Hazari Lal Kishori Lal and others, [19821 2 SCC p.525, the Central Administrative Tribunal indicated that a deviation from the strict procedure prescribed by law would not vitiate an action taken by the Government or public authority in the interest of public unless it could be shown that such an act had resulted in gross injustice to the affected party. The Central Administrative Tribunal held that the appellant could not establish that impugned order had caused any serious injury to him. The Central Administrative Tribunal further held that the appellant had submitted that because of the delay in issuing the declaration strictly in accordance with the Rule 9(1) of IAS (Pay) Rules, the appellant was in dark as to the nature and duties of the post of Secretary, High Power Committee, to which he had been transferred under the impugned order. The Central Administrative Tribunal held that the form and procedure in Rule 9(1) of IAS (Pay) Rules do not make it obligatory to approach the issue in a judicial or quasi judicial manner and the violation, if any, of Rule 9(1) was only a mere technicality and it did not cause any legal injury or injustice to the appellant. Such violation, even if any, was not so serious that it required a judicial scrutiny by the Central Administrative Tribunal in the facts and circumstances of the case. The Central Administrative Tribunal also held that after going through the files leading to the declaration under Rule 9(1) since placed before the Tribunal, the Tribunal was satisfied that the Government had considered the question in detail and sufficiently in advance and had taken a decision to issue the declaration of equivalence on January 4, 1991 and it was a valid decision satisfying the requirement of Rule 9 (1) of IAS (Pay) Rules, 1954. Referring to the allegations of mala fides, the Central Administrative Tribunal came to the finding that the facts were narrated in paragraphs (1) to (w) of paragraph 6 of the application of the appellant. The Tribunal categorically came to the finding that there was no firm foundation to find on facts that the impugned order was vitiated by any mala fide. In that view of the matter, the Central Administrative Tribunal dismissed the application made by the appellant. As aforesaid, the said decision is under challenge in this appeal.

Mr. Venugopal the learned counsel for the appellant has strenuously contended that declaration of equivalence under Rule 9 (1) of IAS (Pay) Rules, 1954 is an essential statutory requirement and without such declaration of equivalence no member in the cadre of IAS can be transferred to a non-cadre post. He has contended that the declaration of equivalence of the posts of Chief Secretary and Additional Chief Secretary made in 1980 has been highlighted beyond proportion before the Central Administrative Tribunal by the respondents and the Administrative Tribunal was also influenced because of such declaration of equivalence made in 1980. But such declaration of equivalence is of no consequence and the legal requirement of declaration of equivalence was still there and noncompliance with the requirement of declaration of equivalence has rendered the impugned order of transfer illegal and void. Mr. Venugopal has contended that previously there was only one post of Chief Secretary in the administrative hierarchy in the State of Karnataka. It was felt necessary that a post of Additional Chief Secretary should be created and the recommendation to that effect was made when the post of Additional Chief Secretary was not encadred. A declaration of equivalence was also made by the State Government so that a cadre officer belonging to the Indian Administrative Service may be transferred to the non-cadred post of Additional Chief Secretary but later on, the post of Additional Chief Secretary was encadred on the basis of triennial review. After such encadrement of the post of Additional Chief Secretary, the declaration of equivalence which was made earlier lost its force. Mr. Venugopal has submitted that the question of equivalence comes in when one post is outside the cadre post of Indian Administrative Service. Mr. Venugopal has contended that equivalence is referable only to an ex-cadre post and ex-hypothesi dedaration of equivalence cannot come inter se posts within the cadre. Accordingly, all the previous exercises made in declaration of equivalence when the post of Additional Chief Secretary was not a cadre post are of little consequence. Mr. Venugopal has also contended that the posts of Additional Chief Secretary and Chief Secretary are not equivalent in reality. The post of Chief Secretary is the highest post in the administrative set up in the State. Mr. Venugopal has referred to the Office Memorandum dated September 2, 1988 at page No. 127 of Volume Il-A of the Paper Book of this appeal, for the purpose of showing that the post of Chief Secretary is superior post because Additional Chief Secretary is to report to the Chief Secretary. He also made reference to the Karnataka Government (Transfer of Business) Rules, 1977 and contended that reference to various provisions of the Rules would indicate that the post of Chief Secretary is the highest post and the reports of different Secretaries including Additional Chief Secretary are required to be routed through Chief Secretary but no Report of the Chief Secretary is ever required to be routed through Additional Chief Secretary or any other Officer. He has submitted that a mere dedaration that the post of Additional Chief Secretary is equivalent to the post of Chief Secretary will not make both the said posts equivalent. Mr. Venugopal has also contended that as a matter of fact, the respondents felt difficulty in transferring the appellant lo the post of Secretary, High Power Committee, because the said post was declared equivalent to the post of Additional Chief Secretary and not to the post of Chief Secretary. Precisely for the said reason, after the impugned order of transfer, an attempt was made to publish a declaration on January 5, 1991 to the effect that the post of Chief Secretary is equivalent to the post of Secretary, High Power Committee. Mr. Venugopal has contended that the post of Secretary, High Power Committee, cannot be equivalent to the post of Chief Secretary of the State which is highest post and in any event the post facto declaration of equivalence on January 5, 1991 cannot cure the initial defect of not declaring equivalence of the post in question prior to the order of transfer made on January 4, 1991. Mr. Venugopal has submitted that the appellant may not have an absolute right to remain in the post of Chief Secretary and for good administrative reasons the Cabinet and the Chief Minister may have a prerogative to select a person of their confidence to the post of Chief Secretary but the appellant having been appointed as Chief Secretary can only be removed from the said post for good administrative reasons but not for any oblique purpose. The appellant could have been transferred from the post of Chief Secretary to a suitable post which was equivalent to the post of Chief Secretary only in accordance with law and a declaration of equivalence under Rule 9 (1) of IAS (Pay) Rules was an essential sine qua non for transferring an incumbent holding the post of chief Secretary to any other ex-cadre post. Mr. Venugopal has contended that declaration of equivalence of a cadre post with a non-cadre post is a statutory requirement under Rule 9(1) of IAS (Pay) Rules. Such statutory requirement must be strictly complied with. So long the declaration of equivalence made by the competent authority is not published in accordance with the procedure under Rule 9(1), no equivalence takes place and in the absence of equivalence, no cadre officer can be posted to a non-cadre post. Admittedly, the impugned order of transfer of the appellant was made on January 4, 1991 and the respondent No. 4 purported to assume the office of the Chief Secretary on January 4, 1991. But the declaration of equivalence was made on 5.1.1991 i.e. after the impugned order of transfer. Hence, the impugned order of transfer of the appellant is illegal on the face of it and subsequent declaration of equivalence cannot cure the invalidity of the order of transfer. On this score alone the impugned order is liable to be quashed. Mr. Venugopal has further contended that the Central Administrative Tribunal failed to appreciate that in reality the posts of Chief Secretary and Additional Chief Secretary were not inter-changeable and declaration of equivalence made earlier had lost its force after the encadrement of the post of Additional Chief Secretary.

Mr. Attorney General has also contended that by virtue of holding a particular administrative position, an incumbent of the post may have the privilege to have the reports of other senior bureaucratic officers routed through him under the prevalent rules of business. Such facts alone do not establish that such post is superior to other post. If there has been a declaration of equivalence under Rule 9(1) of IAS (Pay) Rules, the post must be held to be equivalent irrespective of the fact that because of the rules of business one of the two equivalent posts enjoys some advantage or privilege. Mr. Attorney General has contended that the declaration in 1980 was made under Rule 9(1) of IAS (Pay) Rules to the effect that the post of Additional Chief Secretary which was then an ex-cadre post was equivalent to the post of Chief Secretary. Although, subsequently the post of Additional Chief Secretary was encadred, the declaration of equivalence has not lost its force as sought to be contended by Mr. Venugopal. Mr. Attorney General has contended that even assuming that after the encadrement there was no further scope of declaring equivalence, the fact remains that there had been appreciation and understanding of the State Government about the importance of the two posts and factual assessment of equivalence of the two posts. He has contended that in any event, such question has become academic in the instant case because pursuant to the Cabinet decision, an exercise was made on January 4, 1991 to declare the post of Secretary, High Power Committee, as equivalent to the post of Chief Secretary itself so that there may not be any occasion for the appellant to feel stifled. Such decision had taken place prior to the impugned order of transfer but the publication could not be made on the same day, namely, January 4, 1991 but such publication of equivalence under Rule 9 (1) was made on the very next day, namely, on January 5, 1991. Mr. Attorney General has contended that publication on the next day docs not invalidate the factum of declaration made on January 4, 1991. Such publication being a requirement of statute has been complied with and the publication has been made in order to give effect to the decision of declaring equivalence already taken.

So far as the other contention of the appellant, namely, invalidity of the impugned order of transfer for want of declaration of equivalence under Rule 9(1) of IAS (Pay) Rules is concerned, it may be indicated that there had already been a declaration when the re-designated post of Secretary, High Power Committee, was established that the said post was equivalent to the post of Additional Chief Secretary. It is the positive stand of the State Government that the posts of Chief Secretary and the Additional Chief Secretary are equivalent. But in the instant case, it is also not necessary to decide the question in detail as to whether in reality both the said posts are not equivalent as sought to be contended by Mr. Venugopal. It appears to us that prior to the impugned orders, a decision to declare the post of Secretary, High Power Committee, equivalent to the post of Chief Secretary of the State had been taken. Since the impugned order of transfer was implemented with immediate effect, the formal publication could not be made on the very same day but was made on January 5, 1991, namely, on the very next day. It appears from the records that the decision to declare equivalence was taken prior to the impugned order of transfer and the formal publication by way of statutory requirement was made in order to give effect to the decision to declare equivalence already taken. In such circumstances, we do not think that the formal declaration made on January S, 1991 invalidates the impugned order of transfer. The Tribunal is justified in holding that infraction, even if any, in making publication formally on January S, 1991, is only a technical violation for which no interference is called for. In the result, we do not find any reason to interfere with the impugned decision of the Central Administrative Tribunal and the appeal, therefore, fails and is dismissed but without any order as to costs.