# E. P. ROYAPPA v. STATE OF TAMIL NADU & ANR - **Citation:** [1974] 2 S.C.R. 348 - **Court:** Supreme Court of India - **Decided:** 1973-11-23 - **Case number:** Writ Petition No. 284 of 1972 - **Bench:** A. N. Ray, D. G. Palekar, Y. V. Chandrachud, P. N. Bhao;Ati, V. R. .Krishna Iyer - **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/e-p-royappa-v-state-of-tamil-nadu-anr-6141 - **Pages:** 45 ## Headnote Constitution of India, Art. 3Z-Fundamental Right-Indian Administrative Sen'ice (Pay) Rules 1954 r. 9 sub-r. (I)-Declaration of equivalence-Mere violation of rule does not involve infringement of fundamental right. Constitution of India, Arts. 14, 16-Transfer of acting Chief Secretary to uon-cadre posts in the same grade as that of CVzief Secretary-Appointment and confirmation of ju11ior in tile post of Chief Secretary-Material or1 record must show that non cadre posts are inferior in 3tatus and responsibility. indian Administrative Service (Pay} Rules, 1954-Rule 9 sub-rule (1)- Making of declaration sine qua non of exercise of power under sub-rule. indian Administrative Sen·ice (Cadre) Rules 1954-Rule 4(2)-Scope of second proviso. Mala fides-Onus-Grave impwations against lrolder of office with high responsibility--Court would be slow to draw inferences from incomplete facts. The petitioner was a member of the Indian Administrative Service in the cadre of the State of Tamil Nadu. In November, 1969, when the post of Chief Secretary to the State fell vacant the petitioner, as the best suited, was selected for the post. The draft order in regard to the appointment approved by the Chief Minister. the second respondent. stated that the petitioner "is promoted nnd posted as Chief Secretary rice [R] retiring from service with effect from the afternoon of November 13, 1969". The final order in the name of the Governor, duly authenticated, issued on the same day, stated that the petitioner "is promoted and posted to act as Chief Secretary to Government vice [R] who has been granted refused leave ...... " The petitioner was aceordingly promoted as Chief Secretary. On the recommendation of the State Government that the posts of Chief Secretary and First Member of the Board of Revenue should be deemed to be in the same category and should be inter-changeable selection posts the Central Government by notification dated January 14, 1970 provided that the pay of First Member, Board of Revenue was to be the same as that of the Chief Secretary. The post of First Member Board of Revenue was thus equated to that of the Chief Secretarv in rank and status. By notification dated August 31, 1970 the Government of India enhanced the pay, rank and status of the post of Chief ·Secretary to that of the Secretary to the Government of India and that post was raised above every other cadre post in the State including the post of First Member, Board of Revenue. On April 17, 1971 the State Government accorded sanction to the creation of a temporary post of Deputy Chairman in the State Planning Commission in the grade of Chief Secretary for a period of one year and appointed the petitioner to that post providing that he shall be entitled to the same rank and emoluments as admissible to the post of Chief Secretary. The petitioner did not join thi.'l poot and went on leave. On the petitioner's return from leave the post of Deputy Chairman was again created for a period of one year in the grade of the Chief Secretary and the petitioner was appointed to that post. Against ~ tho peti· tioner made a representalion that the continuance of the post of Deputy Chairman in the rank of Chief Secretary for a period of more than one year would be invalid under r. 4(2) of the Indian Administrath•e Service (Cadre) Rules, 195-4. Next the State Government created a temporary post of officer on Special Duty for streamlining and rationalising the Sales Tax Act, "in the grade of Chief Secretary to the Government and appointed the petitioner to that post". He did not join this post too and proceeded on leave. After the petitioner was transferred from the pust of Deputy Chairman Planning Commission and appointed Officer on Special Duty for revision of Sales Tax laws the State Government abolished tbe B c D E F G H A B c D E F G H E. P. ROYAPPA v. TAMIL NADU (~ay, CJ.) 349 post of Deputy Chairman ~anctioned under the earlier order and sanctioned the creation of a new post of Deputy ## Text _Characters 0–39,895 of 155,165. This is a partial read: ask again with offset=39895 for what follows._ 348 E. P. ROYAPPA v. STATE OF TAMIL NADU & ANR. November 23, 1973 [A. N. RAY, C.J., D. G. PALEKAR, Y. V. CHANDRACHUD, P. N. BHAO;ATI AND V. R. .KRISHNA IYER, JJ.] Constitution of India, Art. 3Z-Fundamental Right-Indian Administrative Sen'ice (Pay) Rules 1954 r. 9 sub-r. (I)-Declaration of equivalence-Mere violation of rule does not involve infringement of fundamental right. Constitution of India, Arts. 14, 16-Transfer of acting Chief Secretary to uon-cadre posts in the same grade as that of CVzief Secretary-Appointment and confirmation of ju11ior in tile post of Chief Secretary-Material or1 record must show that non cadre posts are inferior in 3tatus and responsibility. indian Administrative Service (Pay} Rules, 1954-Rule 9 sub-rule (1)- Making of declaration sine qua non of exercise of power under sub-rule. indian Administrative Sen·ice (Cadre) Rules 1954-Rule 4(2)-Scope of second proviso. Mala fides-Onus-Grave impwations against lrolder of office with high responsibility--Court would be slow to draw inferences from incomplete facts. The petitioner was a member of the Indian Administrative Service in the cadre of the State of Tamil Nadu. In November, 1969, when the post of Chief Secretary to the State fell vacant the petitioner, as the best suited, was selected for the post. The draft order in regard to the appointment approved by the Chief Minister. the second respondent. stated that the petitioner "is promoted nnd posted as Chief Secretary rice [R] retiring from service with effect from the afternoon of November 13, 1969". The final order in the name of the Governor, duly authenticated, issued on the same day, stated that the petitioner "is promoted and posted to act as Chief Secretary to Government vice [R] who has been granted refused leave ...... " The petitioner was aceordingly promoted as Chief Secretary. On the recommendation of the State Government that the posts of Chief Secretary and First Member of the Board of Revenue should be deemed to be in the same category and should be inter-changeable selection posts the Central Government by notification dated January 14, 1970 provided that the pay of First Member, Board of Revenue was to be the same as that of the Chief Secretary. The post of First Member Board of Revenue was thus equated to that of the Chief Secretarv in rank and status. By notification dated August 31, 1970 the Government of India enhanced the pay, rank and status of the post of Chief ·Secretary to that of the Secretary to the Government of India and that post was raised above every other cadre post in the State including the post of First Member, Board of Revenue. On April 17, 1971 the State Government accorded sanction to the creation of a temporary post of Deputy Chairman in the State Planning Commission in the grade of Chief Secretary for a period of one year and appointed the petitioner to that post providing that he shall be entitled to the same rank and emoluments as admissible to the post of Chief Secretary. The petitioner did not join thi.'l poot and went on leave. On the petitioner's return from leave the post of Deputy Chairman was again created for a period of one year in the grade of the Chief Secretary and the petitioner was appointed to that post. Against ~ tho peti· tioner made a representalion that the continuance of the post of Deputy Chairman in the rank of Chief Secretary for a period of more than one year would be invalid under r. 4(2) of the Indian Administrath•e Service (Cadre) Rules, 195-4. Next the State Government created a temporary post of officer on Special Duty for streamlining and rationalising the Sales Tax Act, "in the grade of Chief Secretary to the Government and appointed the petitioner to that post". He did not join this post too and proceeded on leave. After the petitioner was transferred from the pust of Deputy Chairman Planning Commission and appointed Officer on Special Duty for revision of Sales Tax laws the State Government abolished tbe B c D E F G H A B c D E F G H E. P. ROYAPPA v. TAMIL NADU (~ay, CJ.) 349 post of Deputy Chairman ~anctioned under the earlier order and sanctioned the creation of a new post of Deputy Chairman "in the Grade of First Member, Board of Revtnue" on a pay of Rs. 3000/- per month and appointed a First Me!Jlber of the Board of Revenue to that post. Besides, on the transfer of the petitioner from the post of Chief Secretary a person who was admittedly junior to the petitioner was promoted as Chief Secretary and was confirmed in that post. The petition.:r filed a petition under Art. 32 of the Constitution challenging the validity of his transfer from the post of Chief Secretary, first to the J;IOSt of Deputy Chairman State Planning Commission and then to the post of officer on Special Duty, on the following grounds : viz. (i) it was contrary to the proviso to r. 4(2) of the Indian Administrative Service (Cadre) Rules, 1954 and r. 9[sub-r. (1)] of the Indian Administrative Service (Pay} Rules 1954; (ii) it Wa! violative of Arts. 14 and 16 of the Constitution as the poots of Deputy Chairman, State Planning Commission and Officer on Special Duty were inferior in rank and status to that of Chief Secretary; and (iii) that it was made in malafide exercise of power, not on account of exigencies· of administration or public service, but because the second respondent was. annoyed with the petitioner on account of various incidents referred to in the petition and wanted him out of the way. Dismissing the petition, HELD : Per Chandrachud, Bhagwati and Krishna Iyer, JJ : (i) The promotion of lhe petitioner as Chief Secretary was ooly in an acting or officiating capa. city and not in n. substantive capacity. The draft order does not say whether the promotion is in a substantive capacity or in an officiating capacity. It is the authenticated order which says for the · first time clearly and definitely by using the words "to act" that the promotion is in.an'officiating capa~ity. The authenticated order, in so far as it uses the words "to act" does no more than speak on a matter on which the draft order was silent. The authenticated order correctly reflects the final decision of the State Government. There is, th~. no inCOn· sistency between the draft. order and authenticated order from which any error can be spelt out in the authenticated order. [378H·37·9E] The rc ipOndents are not correct in contending that the authenticated order was the final order and it was not open to the petitioner to say that it did not correctly reflect the order as made by the State Government. It is now w~ll settled law that when an order is authenticated the only challenge that is excluded by the authentication is that it is not an order made by th~ Governor. The validity of such an order can be questioned· on ot_her grounds. [378A·C] KH!sr Emperor v. Shivnath Banerjee, 72 LA. 241 and State of Bihar v. Sonabati, [19611 1 S.C.R. 746, referred to. (ii) Tl:e second proviso to r. 4(2) of the Indian Administrative Service (Cadre) Rules has no application. The proviso merely confers limited authority on the State Government to make temporary addition to the cadre for IIi period not exceeding the limit therein specified. The State of Tamil Nadu could not add the posts of Deputy Chairman, State Planning Commission and Officer on Special Duty under the second proviso, as these posts did not exist in the Cadre as constituted by the Central Government. They were new categories of pQsts created by the State Government. [380A-E] (iii) The making of a declaration setting out which is the cadre post to whiclt a non·cadre post is_ equivalent is sine qua non of the exercise of the power under sub-r. (1) of r. 9 of the Indian Administrative Service (Pay} Rules, 1954. [381C·Dl The determination of equivalence is therefore a condition precedent before a member of the Indian Admir.istrative Service can be appointed to a non·cadre post under sub·rule (1). 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. Where it appears to the Court that .the declaration of equivalence is made without application of mind to the nature and resp!)nsibilities of the functions and duties attached to the non-cadre post or that extra· neous or irr~levant factors are taken into account in determining the equivalence or that 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 350 SUPREME COURT REPORTS [ 1974] 2 S.C.R· in status and responsibility, or that the decision of equivalence is mala fide or in A colourable exercise of power or it is a mere cloak for displacing a member oi the Indiun Administrative Service from a cadre post which be is occupying, the court can and certainly would set at naught the declaration of equivalence and afford protection to the civil servant. [3 82A-F] The order dated April 7, 1971 sanctioning the creation of temporary post of Deputy Chairman and appointing the petitioner to the post has not in it any trace of a declaration that the State Government found, on an objective assessment of the nature and responsibilities of the functions and duties attached to the post of B Deputy Chairman, that it. is equivalent in status and responsibility to that of Chief Secretary. Further, the post of Deputy Chairman cannot be declared equivalent in status and responsibility to the post of Chief Secretary at one time aD(] to the post of First Member Board of Revenue at another. The nature and responsibilities of the functions and duties remaining the same the equivalence which is u matter of objective assessment, could not vary from time to time. 'fhis clearly shows that the Government did not apply its mind and objectively determine the equivalence of the post of Deputy Chairman, but, gave it a rank or grade according as who was going to be appointed to it. But the petitioner canC not now be permitted to challenge the vahdity of the appointment since in the letter dated June 7, 1972 addressed to the second respondent-he accepted the appointment without demur as he thought that the post of Deputy Chairman "was of the same rank and carried the same emoluments as the post of Chief Secretary". f384A·Gl Similarly in making the orders dated June 26, 1972 and June 27, 1972 the State Government did not apply its mind and objectively determine the equivalence of the post of Officer on Special Duty, but gave. it a rank or grade accordD ing M who was the officer going to be appointed to it. There was thus no compliance with the requirement of r. 9 sub r. (I). But the petitioner cannot get relief in a petition under Art. 32 since mere violation of r. 9 sub. r. (1) does not involve infringement of any fundamental right. [385F-386B] (iii) The contention that the transfer of the petitioner from the post of Chief Secretary first to the post of Deputy Chairman and then to the post of Officer on Special Duty coupled with the promotion and confirmation of a person junior to the petitioner in the post of Chief Secretary was arbitrary and violative of Arts. E 14 and 16, though it may seem plausible, cannot be accepted, because, there is no adequate material to sustain it. The premise on which this contention is founded is that the posts of DeputY, Chairman and officer on special duty were not of the same status and responsibility as the post of Chief Secretary. It can· not be said on the material on record that the validity of this premise has been established by the petitioner. So far as the post of Deputy Chall'lllan is concern· ed the J?etitioner himself accepted that post as being of the same status and res· ponsibihty as the post of Chief Secretary. Even though it is not possible to accept the thesis that the post of officer on special duty was equal in status and F responsibility to that of the Chief Secretary, equally, it is not possible to hold it established on the materiar on record that this post was inferior in status and res· ponsibility to the post of Chief Secretary, though prima facie it does appear to be ~o. The challenge based on Arts. 14 and 16 must. therefore, fail. [388C· 389El (iv) (Concurring with Ray, CJ.): The burden of estabtishinj! mala fides is very heavy on the person who alleges it. The onus of establishing mala fides against the second respondent has not been discharged by the petitioner. The G Court would be slow to draw dubious inferences from incoiJll)lete facts placed before it by a party, particularly when the imputations are grave and they are made against the holder of an office which has a high respons_ibility in the administration. f390D-Fl Per Ray C.J. and Palekar. J; (i) The petitioner WI;!S not appointed substantively to the post of Chief Secretary. The gazette notification prevails over the draft orde{. The previous incum· !Dent in the post of Chief Secretary held his lien on the post until the date of his H actual retirement. The effect of fundamental rules 86 and 13(d) as they stood prior to the commencement of the Constitution, is that an officer does not continue on dutv' but ·draws leave salary by virtue of a • privilege granted to him. fhere !s no formal utension of service. He retains lien on his post. The post - A B ·C D 'F G B F. P. ROYAPPA v. TAMIL NADU (Ray, C.J.) 351 cannot be sub3tantively filled till he actually retires from service. Th~refore, the petitioner did not have any right to hold the post of Chief Secretary. [355A-G, - G] {ii) It is not the case of the State that the post of Deputy Chairman Planning Commission and Officer on Special Duty are c~dre posts within the ·meaning of r. 4 of the Indian Administrative Service (Cadre) Rules 1954. The second proviso to r. 4(2) of the Cadre Rules does not confer any power on the State Gov· ernment to alter the strength and composition of the Cadre. The meaning of the second proviso to r. 4(2) is that the State Government may add to the cadre for the period mentioned there one or more posts carrying duties and responsibilities of the like nature of a cadre post. The posts so added do not become :adrl': po'ts. [356C·Gl (iii) The real significance of Rule 9 of the Indian Administrative S-ervice (Pay) Rules is that members of Cadre posts cannot be deployed to non-cadre posts unless posts are of a calibre which can be filled up by cadre men. The purpose of the declaration that the post is equivalent in status and responsibility to cadre post specified in the schedule to the Indian Administrative Service (Pay) Rules is to ensure that ~embers of the cadre are not taken to posts beneath their status and responsibility. The declaration is not one of mere form. It is of substance. A declaration in writing is desirab1e. The absence of a declaration will not be an impediment in ascertaining the equivalent status and responsibility. Similarly, the presence of a declaration may not be conclusive if the declaration is a mere cloak. The facts and circumstances has to be looked into in order to find out whether there is in real substance equality in status and responsibility. (358B-F; 360H; 361C] The posts of Deputy Chairman Planning Commission and the Officer on Special Duty were created for cadre officers to discharge duties and responsibi· lities of a high order and must be counted as no less responsible than the top most cadre posts. The.se posts were not created all of a sudden with any oblique purpose.. When the petitioner was, posted to the new posts he was permitted to draw his salary as Chief Secretary and when a First Member Board of Revenue was appointed he took with him his salary as First Member. When the petitio· ner was to occupy the post of Deputy Chairman or Special Officer the post was graded to give him his old scale of pay and when the First Member was appointed to these posts he was given his old scale as First Member. That the posts of Chief Secretary and First Member were interchangeable, though the former !lOt a higher salary, was recognised by the State Government and also endorsed by the Central Government in 1970. There was therefore no upgrading or downgradina of the posts. f361G-362·G] The petitioner who was in the selection grade could .thus be transferred to any of these. two posts of Deputy Chairman Planning Commission or Officer on Spe· cia! Duty whtch were posts not lower in status and responsibility to the cadro posts in Schedule III of the Indian Administrative Service (Pay) Rules 19S4. and which carried the same salary as that of the Chief Secretary. The services or cadre officers are utilised in different posts of equal status and responsibility because of exigencies of administration and for employing the best available talent· on the suitable post. There is no hostile discrimination in transfers from oae post' to another when the posts are of equal status· and responsibility. [3620· %301 . (iv) (Chandrachud, Bhagwati and Krishna lyer, JJ concurring) ; The entire affidavit evidence establishes b!yond any measure of doubt that the petiti.:>ner"s .a11egations imputing mala fides against the Chief Minister are baseless. :rJte allegations of mala fides ate not contemporaneous but after thoughts a! a~ d!stance e appointed ta a post other than ~ po_st specified in Schedule III unless the Stale Government concerned in respect of posts under its control ot the Central Government in respect of posts under its control, as the case IJlay be, make a declaration that the s~id post is equivalent in status and responsibility to a post specified in the said Schedule. It is, there· fore. said that the petitioner who is a cadre post holder, viZ., holding th.e post of Chief. Secretary cannot be posted to a non-scheduled post wtthout a declaration that the non-scheduled post is equal in status and responsibilities to a scheduled post. Third, the. petitioner is posted to an office which is inferior in status and office to that of the Chief Secretary. Therefore, the order is a hostile discrimination offending Articies 14 and 16 .... Fourth, the creation of the post as well as the appointment and transfer of the petitioner to the post is malafide. In this context it is to be ascertained as to whether the petitioner was appointed to the substantive post of Chief Secretary to the State of Tamil Nadu. The petitioner relied on draft order of the Chief I I I ;J54 SUPREME COURT .llEPORTS [ 1974) 2 S.C.R. ~inister dated 13 November,_l969 which stated that the petitioner 1s. promoted and ~sf¢ as Chief Secretary". The petitioner also rehe~ on the followmg note o~ the Chief Minister at the time of the passmg of the order. There were 11 senior I.C.S./I.A.S. Officers borne on the Tamil Nadu State Cadre. The petitioner's position was No. 10 in the list of Senior I.C.S./I.A.S, Officers borne on the Tamil Nadu State Cadre. Ramakrishnan, the then Chief Secretary was No. 1 in the list. ,Kaiwar, Subramanyam, Mani, Govindan Nair, Vaidyanathan, Ramachandran, Raman, Raja Ram were ·above the petitioner in the list. Ramakrishnan and Kaiwar were retiring from service in the month of November, 1969. Subramanyam and Gavindan Nair were acting as Secretaries to the Government of India. Vaidyanathan was away from the State for over 8 years and was working under the Central Government. Ramchandran and Raman also working under the Government of India since 1955 and 1959 respectively. Rajaram had left the State Cadre in 1960. In 1969 Rajaram was the Special Representative to the Government of Tamil Nadu. The choice was between Mani whose position was No. 4 and the petitioner. Mani's work was not satisfactory during the flood relief operations in 1967. There was adverse criticism on his work from the public and the press. The petitioner was commended by Jtis superiors to be dynamic, efficient, vigorous. The petitioner was, therefore, described by the Chief Minister to be best suited for the :post. It thus appears that the Chief Minister's note as well as the draft order stated that the petitioner was promoted and posted as Chief Secretary. But the Gazette Notification dated 13 November, 1969 was that the petitioner was "promoted and posted to act as Chief Secretary to the Government vice C. A. Ramakrishnan, who has been granted refused leave with effect from 14 November, 1969". The Gazette notification prevails over the draft order. The substantive appointment of the petitioner was in the selection grade of Rs. 1800-2000. The petitioner was appointed on 13 ·November, 1969 to act as Chief Secretary. It was a temporary appointment. He was not appointed substantively to the post of Chief Secretary. The fact that the petitioner was not appointed substantively to the post of Chief Secretary will appear from the note signed by t1te petitioner himself on 16 November, 1970. When Ramakrishnan went on refused leave for four months from 14 November, 1969 there was no substantive vacancy in the post of Chief Secretary. The petitioner in his note dated 16 November, 1970 stated that the p05t of Chief Secretary fell vacant substantively from 14 March, 1970 and was available for confirmation of an officer. The petitioner signed the note as acting Chief Secretary. The note was put up as to whether there was any objection in "confirming the petitioner as Chief Secretary. No order was passed on that note. Under Fundamental Rule 56(£) a member of the Indian Civil Service shall retire after 35 years' service counted from the date of his arrival in India. Ramakrishnan completed 35 years' service on 14 A B c D E F G H A B c D I F G H E. P. R.OYAPPA v. TAMIL NAI>U (Ray, C.J.) 35S November, 1969. When the petitioner was posted on 14 November,. 1969 to act as .Chief Secretary, Ramakrishnah went on what is des-. cribed as refused leave fpi four monthS. Under Fundamental Rulo 86 clause (c) the grant of refused' leave exttnding beyond the date on which a Government servant must compulsorily retire or beyond the date upto which a Government servant has been permitted to remain in service, shall not be construed as an extension of service. Fundamental Rule 13(d) provide• that a Government servant ceases. to ·retain lien on a permanent poet while he is on refused leave gran· ted after the date of compulsory retirement under Fundamental Rule· 56 or correapondifli other Rules. The effect of refused leave under the Fundamental Rules iJ that there is no extension of service by the ~rlod 'of that leave~ Apln, during the period of refused leave there is no earqina of ~na.ion. · CoWllel for the petitioner relied on Fundamental Rules 56(f) and 86(c) and contended that the post of Chief Secretary fell vacant as Ramakrishnan di~ not hold a lien on his post. It was contended! that the petitioner was appointed in an officiating capacity to the J)Oit· of Olief Secretary and reliance was placed on Fundamental Rule 9(19). Under that Rule a Government servant officiates/in a post when he perform the duties of a post on which another person holds a lien or the Government may, if it thinks fit,. appoint a Government servant fo officiate in a vacant post on which no other Government servant holda a lien. Rarnakrishnan, who was on refu$ed leave being a member of ·the Indian Civil Service, was entitled under Article 314 of the Constitution to conditions of &ervice as respects remuneration, leave and pension to which membert of the avu Service \were entitled immediately before the commencement of the Constitution. Fundamental Rule U(d) as it stood prior to the commencement o~ ·the Constitution provided for the retention of lien on a permanent post while on leave without making any exception with regard to refused leave. Fundamental Rule 86 as it stood prior to the commencemen~ of the Constitution did not cOntain any [provision to the effecf that the grant of refused leave would not amount to extension of service. The Government ot .India. Finance Department Notification No. 520-CSR dated 31 May, 1922 contained the Government decision that the grant of leave under Fundamental Rule 86 automatically carried with it the extension required and no formal sanction to the extension was necessary. nie effect of Fundamental·Rules 86 and 13(d) as they stood prior to the commencement of the Constitution is that an Officer does not continue on duty but draws leave salary by virtue of a privilege granted to him. There is no formal extension of service. He retains lien on his post. The post cannot be substantively filled till he actually retires from service. The Fundamental Rules of the Madras Government corrected upto 30 June, 1966 issued by the Finance Department, 2nd Ed. 1966 at. pages 133-134 contain a note appended to Fundamental Rule 56 of Tarilil Nadu State Government. In that note an exception in res- ~t of Indian Civil Service Officers is created by providing that in th~ ·case of an Officer of the former Secretary of State Service the grant 356 SUPREME COURT R:EttORTS [ 1974 ] 2 s.c.R. oJ such leave shall be treated as sanctioning an extension of service upto the date on which the leave expires. · Therefore, Ramakrisbnan held lien on his p0~ untU 14 Mirch, 1970. The petitioner in the note for circulation dated 14/16 November, 1970 prepared by the Joint Secretary, Public Department, noted that the date of retirement of Ramakri9hnan would take effect from the date of expiry ofthe refused leave, namely, 14 March, 1970. That ia why the"petitioner asked to be confirmed as Chief Secretary with effect from 14 March, 1970. The petitioner was, however, not confirmed in the post. Therefore, the petitioner was not substantively appointed to the post of Chief Secretary. The petitioner's substantive appointment wa51 in tlie selection grade of Rs. 1800-2000. The petitioner during the period of refused leave of Ramakrishnan acted as Chief Secretary by way of a temporary arrangement. The petitioner did not have any right to hold the post of Chief Secretary. It was contended that neither the post of Deputy Chairman, Planning Commission nor the post of Officer on SpeciarDuty was a cadre post within the meaning of Rule 4 of the Indian Administrative Service (Cadre) Rules, 1954. The Additional SoliCitor General as well as the Advocate General of the State did not contend that either of the posts was a cadre post within the meaning of the Indian Administrative Service (Cadre) Rules. The strength and: composition of the cadre as contemplat:.ed by Rule 4 of the Indian Administrative ·Service (Cadre) Rules is to be determined by the Central Government in consultation with the State Government. The relevant provision is sub-rule (2) of Rule 4. It states that the Central Government shall at the interval of every three years re-examine the strength and com· position of each such c_adre in consultation with the State Government or the State Governments concerned and may make such alterations as it deems fit. There are two provisos in the sub-rule. The first proviso states that nothing shall be deemed to affect the power of the Central Government to alter the strength and composition of the cadre at any other time. The second proviso states that the State Government may add for a period not exceeding one year and with the approval of Central Government for a further period not exceeding two years, to a State or joint cadre one or more posts carrying duties and responsibilitits of a like nature of cadre po9.1:s. It. therefore, follow3 that the strength and composition of the cadre shall be determined by regulations made by the Central Government in consultation with the State Government. The State Government alone cannot alter the strength and composition of the cadre. The aforementioned second proviso to Rule 4(2) of the Cadre Rules does not confer any power on the State Government to alter the strength and composition oft the cadre. If s.uch power were conferred d:t the State examination of the strength and composition. at the interval of every three years by the Central Government in consultation with the St.ate Govemment would be nullified. The meaning of the second proviso to rule 4 ( 2) is that the State Government may add for a period mentioned there to the cadre one or more posts A B c D B Jl' G H B D E F G H E. P. ROYAPPA v. TAMIL NADU (Ray, CJ.) 357 carrying duties .and responsibilities of the like nature of a cadre post. The posts so added do not become cadre posts. These temporary posts do not increase the strength of the Cadre. The addition of the post of Deputy OJ.airman, Planning Commission or Officer on Special Duty to the Indian A4ministrative Service Cadre of Tamil Nadu State is not permissible because that would result in altering the strength and composition of the Cadre. The State has no such power within the second proviso to rule 4(2) of the Cadre Rules. · Cow1sel for the petitioner contended that the pos:t of Deputy Chairman, Planning Commission as well as the post o:fi Officer on Special Duty was not equivalent in: status. and responsibility to the post of Chief Secretary to Government within the meaning of Rule 9(1) of the Indian Administrative Service (Pay) Rules, 1954. The petitioner alleged that both the post51 were upgraded or downgraded depending upon the persons to occupy them and tlierefore the posts were not equivalent in status and responsibility( to the post of the Chief Secretary. When the petitioner was appointed to the post of Deputy Chainnan, .Planning Commission it was upgraded. When Rajaram was appointed to hold an additional charge of Deputy Chairman in addition to the post of First Member, Board of Revenue it was downgraded. When the petitioner was appointed to occupy the pOst the post was said to be equivalent to that of Chief Secretary. When Rajaram was appointed it was downgraded to the level of the First Member, Board of Revenue. The post of Deputy Chairman, Planning Commission was created fp~ one ~ear in the month of April. 1971. On 26 June, 1972 the State created a new post; of Special Officer for COmmercial Taxes which was stated to be of the rank of Member, Board of Revenue. On 27 June, 1972 the petitioner was appoiQted to that pQst in the grade of Chief Secretary for a period of one year or till the need of the post ceased whichever was earlier. The petitioner alleged that on 26 June, 1"972 when the post of Special Officer for Commercial Taxes was created it was supposed to be of the rank of a Member, Board of Revenue but on 27 J~ne, 1972 the post was upgraded and regarded as of the grade of Chief Secretary. When . the ~titi~n~r did not tak_e charge as Deputy Chairman of the Plannmg Comnuss1on on 7 Apnl, 1971, the Government directed Rajaram, the senior most officer in the State who was the First, Member Board of Revenue to hold additional charge. Again when· the peti: tioner did not join- on 6 June, 1972 ·as Deputy Chairman of the Planning Commission, it was decided to post Rajaram in his place. Rajaram was draw~g only a salary of Rs. 3000/- per month. The post of Deputy Chairman was to be filled either by the petitioner or . by Rajaram. The post was not inferior_ The Planning Commission is an advisory body to .th~ Govemment like the P1annin~ Commission at the .c~ntre. The ~i~f Minister is ~e Chairman of the Planning CommiSSIOn. The petitiOner was drawmg a· salary of Rs. 3500/- per month when he acted as Chief Secretary. Therefore, the post of Deputy Chairman, Planning Commission carried .a pay of Rs. 35001per month when the petitioner was apoointed as Deputy Chairman of the Planning Co.mm.ission. The upgrading· and 'the downgrading of the , - ,• 358 SUPREME COURT REPORTS [ 1974] 2 s.c.tt. post of Deputy Chairman, Planning Commission alleged by the petitioner is not correct. The post was not upgraded or downgraded. The jncumbent of the post carried a higher or a lower salary according to the salary enjoyed by the incumbent at the time of the appointment. Broadly stated, the QCtitioner's_ contentions about the tw0 posts of Deputy Chairman, Planning Commission and the Officer on Special Duty were first that there was no declaration in accordance with Rule 9 of the Indian Administrative SerViee (Pay) Rules thai' the posts were equivalent in status and responsibility to a post specified in the Schedule to the aforesaid Rules; and, secondly, that the functions and responsibilities of the two pbs.ts were such that no comparison could be made between those posts and the pests in the Schedule. Rule 9 speaks of a declaration that the post is equivalent in iitatus and responsibility to a. post specifi.ed in Schedule III to those Rules. Sub·rule ( 4) of rule 9 states that where equation-.Qf posts is not possible the State Government or the Central Government may, for sufficient reasons to be recorded in writing appoint a member of a service to such a post without making a declaration. It is, thererore, said on behalf of the petitioner that a declaration in writing is necessary where a post is declared to be ... 1uivalent in status and responsibility just as reasons are to be recorded in writing where it is not possible to have a post equivalent in status and responsibility. In other words it is said that in one case it is a declaration in positive terms that the post is equivalent in S!tatus and_ responsibility and in the othetl case the declaration is negative in content that though the post is not equivalent in stafus and responsibility yet a cadre officer ofl the Service is appointed to such a post. It is not in dispute that the. posts. of Deputy Chairman, Planning CommiSJSion and the Officer on Special Duty carried the same pay as that of the Chief Secretary. It cannot be said that equal pay will by itself alone be decisive -of the equation of status and responsibili~ of the pgst. But·pay scale Will primarily show status ~ responsiliiHties of equal nature. The Chairman of the Planning Commission is the Chief Minister. The Planning Commission is a high powered Commission. The position of the Depu tv Chairman is equal in status and responsibility to the duties oft the Chief Secretary.