After the council of ministers met on January 8 this year, the then Chief Secretary Sarada Muraleedharan popped a surprise on Kerala's agriculture principal secretary B Ashok. The CS asked him to go on deputation as the Local Self-Government Reforms Commission, a post unheard of.

A rattled Ashok sought a copy of the Cabinet agenda note. The CS said the proposal was not circulated but was "merely proposed". He refused to comply. Next day the CS issued an order appointing Ashok as the Local Self-Government Reforms Commission.

Four months later, on June 3, the Central Administrative Tribunal (CAT) set aside the order. Ashok had contested the order on four grounds. One, it was issued without prior government consultation. Two, the state government is not empowered to issue order of deputation to a non-cadre post.

Three, the government did nothing to make the post of the LSG Reforms Commission equivalent to the principal secretary post he held. Four, the posting constituted a mala fide exercise of power.

Ashok's first (proper procedures were not followed) and fourth (deliberate attempt to downgrade him) arguments did not convince the CAT. But the other two sailed through.

The CAT ruled that, forget securing consent, the state government had no right to appoint an IAS officer to a post mentioned in Rule 6(2)(ii) of All India Service (Cadre) Rules, 1954. The CAT also found that the post of the commission was created without any forethought.

Status of LSG commission
Ashok argued that the commission should be counted among the entities listed in Rule 6(2)(ii) and his consent was essential for such a deputation.

The posts to which officers can be deputed under Rule 6(2)(ii) are found in international organisations like UN, World Bank and IMF, autonomous bodies not controlled by the government like World Trade Organisation and International Court of Justice, and also commissions, regulatory authorities and organisations like universities with functional autonomy created under statutory provisions. Appointments under this rule can be made only by the Central government, and requires consent.

The state government, on the other hand, argued that the commission fell under another provision of All India Service (Cadre) Rules: Rule 6(2)(i).

The posts covered in this rule are controlled by the state: local bodies, autonomous institutions wholly or substantially funded or controlled by the State Government, or a registered trust or society or association or body of individuals wholly or substantially funded or controlled by the State Government. In these cases, the appointments are done by the state government, and does not require the consent of the cadre officer.

The CAT accepted Ashok’s contention. It noted that the commission did not answer to any of the posts listed in Rule 6(2)(i): local bodies, PSUs, trusts, or autonomous institutions fully or substantially funded by the state government.

The state government attempted to pass off the commission as an "autonomous institution controlled by the state". The CAT rebuffed the claim. "At the most, the reforms commission can only fall within the scope of an autonomous body not controlled by the government," it said. It likened the commission to organisations like universities with functional autonomy that are included in Rule 6(2)(ii).

Therefore, the CAT concluded that not only was it mandatory to take Ashok's consent but the decision to choose an officer for deputation to the LSG commission was not the state government's to make.

Deputation as a tool of humiliation
Ashok also argued that the formation of the commission was like placing the cart before the horse. He said the order deputing him as the commission came before any other order related to the fundamental formation of the commission.

The CAT order also found that there was no evidence to show that attempts were made by the government to achieve parity between the proposed commission and the principal secretary position Ashok held. Equivalence is a precondition for deputation.

"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 order said.

Since no information on the structure of the proposed commission was available, the CAT examined the blueprint of two commissions of "similar nature" that were sought to be constituted in 2012 and 2016. "The duties, functions and terms of appointment are nowhere near that of the status of an additional chief secretary," it was found.

Therefore, it was ruled that Ashok's deputation violated "the true spirit of Rule 12 of IAS (Pay) Rules." Nonetheless, on the question whether it was malice that prompted the government's move to choose Ashok as the LSG commission, the CAT gave the government the benefit of doubt. "The wisdom of that choice by itself may not indicate malice," it said.