Holding

Rule 17 does not bar a civil servant from filing a defamation suit when the act complained of is not an official act, so prior government sanction is not required.

Summary

The case concerned a senior IAS officer, Badrinath, who delivered a speech criticizing the Red Fort time‑capsule and later sought to sue the Chief Secretary for defamation. He applied for permission under Rule 17 of the All India Services (Conduct) Rules, 1968, which bars civil servants from suing for vindication of an official act without prior government sanction. The Tamil Nadu Government refused the permission, citing public interest, and the High Court dismissed Badrinath's writ petition. On appeal, the Supreme Court examined whether the speech constituted an official act within the meaning of Rule 17 and whether the government’s refusal was justified. It held that the speech was made in a private capacity, not an official act, and therefore Rule 17 did not apply; consequently, Badrinath could institute the defamation suit without prior sanction. The Division Bench judgment was set aside and the appeal was allowed.

Issues considered

Whether Rule 17 of the All India Services (Conduct) Rules, 1968 applies to a defamation suit arising from a speech made by a civil servant in his private capacity.
Whether the Tamil Nadu Government's refusal to grant permission under Rule 17 was justified on grounds of public interest.
Whether the speech delivered by the respondent constitutes an official act within the meaning of Rule 17.
Whether a concession made by the Advocate General regarding the nature of the act is binding on the court.

Legislation cited

All India Services Act, 1951s. Section 3
All India Services (Conduct) Rules, 1968s. Rule 17
Code of Civil Procedure, 1908s. Section 80
Constitution of Indias. Article 226
Limitation Act, 1963s. Section 75

Subjects

defamationcivil service conduct rulesRule 17official act vs private actgovernment sanctionpublic interestfreedom of speechlimitation periodcivil procedure

Judgment

A
GOVERNMENT OF TAMIL NADU & ORS. ;..
v.
BADRINATH & ORS.

OCTOBER 15, 1987

B [A.P. SEN AND M.N. VENKATACHALIAH, JJ.]

All India Services (Conduct) Rules, 1968-r.17-The rule applies
to acts done in exercise of official duties only-No member of the
.,,
Service is prohibited from vindicating his private character for any act
done by him in his private capacity.
c Respondent No. I who was functioning at the relevant time as the
commissioner of Archives and Historical Research, Tamil Nadu,
delivered a speech at a functi'ln held by the History Association of the
-1
Presidency College, Madras criticising the time capsule buried in the
precincts of the Red Fort at Delhi which led to a furore both in Parlia-
D ment as well as in the national press. The Government, feeling greatly
embarrassed by the controversy, started a disciplinary inquiry against
him on the view that being a civil servant it was not desirable that he
should have participated in a public discussion on the time-capsule but
later on dropped the same. However, just a day before that, a signed
news-item appeared in a newspaper about the controversy regarding
)"·
E the time-capsule stating that a Government spokesman had charged
respondent no. I as trying to 'sabotage the civil services from within'.
Having failed in his efforts to ascertain from the Government the
identity of its spokesman who had made this offending utterance against
him or to induce it to issue a contradiction through the Press, respon-
dent no. I addressed a letter to the correspondent of the newspaper
F asking .him to disclose the name of the Government spokesman. The
correspondent, in his reply, stated that the Government spokesman was ,h
respondent no. 2, the Chief Secretary to the Government, who, during
a telephonic conversation with him, had made the offending utterance.
Respondent No. I made a representation to the Government with re-
gard to his grievance in this behalf but, finding that there was no
G response, applied for sanction of the Government under r. 17 of the All
India Services (Conduct) Rules, 1968 seeking permission to institute a
suit against respondent no. 2 for damages for defamation. The Govern-
ment refused to grant the permission and respondent no. I moved the }.
High Court under Art. 226 of the Constitution against the order of
refusal. The writ petition was dismissed by a Single Judge, who inter
H alia in his judgment referred to a concession made by the Advocate
490
GOVT. OFT. NADU v. BADRINATH 491

).. General appearing for the appellants that the act complained of was an
A
official act and, therefore, the intended suit was to vindicate an official
act which was the subject matter of a defamatory criticism. Respondent
No. 1 preferred au appeal under cl. 15 of the Letters Patent and a
Division Bench allowed the appeal holding that the refusal of the State
Government to grant the requisite permission under r. 17 could not be
justified on the ground of public interest. B

y Allowing the appeals,

... HELD: According to its plain terms, r. 17 of the All India
Services (Conduct) Rules, 1968 is in the nature of a restraint on a
member of the All India Services from bringing a suit for damages for
defamation for an act done in the exercise of his official duties as a c
~- public servant or from going to the press in vindication of his official act
or character. Explanation to r. 17 seeks to restrict the scope and effect
of the restraint placed by r. 17. No member of the Service is prohibited
from vindicating his private character or any act done by him in his
private capacity. Proviso thereto however casts on him a duty to report D
to the Government regarding such action. [497B-C)

In the instant case, respondent no. I made a speech incidentally at
a time when he was holding the post of the commissioner of Archives &
Historical Research, at a function organised by the History Association
...\.. of the Presidency College, Madras. He was invited to make a speech on E
the occasion presumably for his attainments, in the field. But the speech
delivered by him on the occasion could not be treated to be an official
act of his and therefore the suit brought by him against respondent
no. 2, the then Chief Secretary of Tamil Nadu could not be treated to be
a suit for the vindication of his official act. It is common knowledge that
persons of erudition and eminence are often times asked to grace such F
occasions or make a speech and when they do so, undoubtedly they give
--{ expression to their personal views on various subjects. By no stretch of
imagination can it be said that while doing so they act in the discharge
of their official duties merely because they happen to hold public
office. l499A-D]
G
During the course of his judgment, the learned Single Judge
adverts to paragraph 17 of the writ petition where respondent no. I has
--f. averred that his intended suit was to vindicate his printe character and
not to vindicate any official act. The case of respondent no. 1 therefore
thronghout has been that r. 17 of the Rules was not attracted to the suit
and indeed he spcifically aver that he was entitled to file a suit even H
492 SUPREME COURT REPORTS [1988] 1 S.C.R.

A without the permission of the Government under r. 17. However, he
goes on to say that if a suit were to be filed it might land him into
trouble in that disciplinary proceedings might be taken against him for
having instituted a suit without previous permission of the Government.
On the llSSumption that such sanction was necessary under r. 17, he
moved the High Court for grant of an appropriate writ under Art. 226
B of the Constitution, apparently by way of ex abundanti cautela. The
learned Single Judge did not deal with the scope and ambit of r. 17 in
view of the concession made by the learned Advocate General. We have
no manner of doubt that the appellants are not bound by the concession
made by the learned Advocate General before the learned Single Judge
that the act complained of was an official act. It is unfortunate that the
C State Government was not properly advised at the earlier stages of the
proceedings in insisting upon the view that such permission was re-
q:uired 1.1nder r. 17 and that it was j1.1stified in refusing to grant the
permission prayed for. The concession made by the learned Advo-
cate General being on a matter of law is not binding. [4980-G l

D CIVIL APPELLATE JURISDICTION: Civil Appeal Nos.
1639-40 of 1987.

From the Judgment and Order dated 20.12.1984 of the Madras
High Court in W.P. No. 349 of 1979.

E A.K. Sen and A.V. Rangam for the Appellants.

S. Rangarajan, Ms. Asha Rani. San jay Parikh and Sanjiv Madan
for the Respondents.

The Judgment of the Court was delivered by
F
SEN, J. These appeals by special leave are directed against a
judgment of a Division Bench of the Madras High Court dated
December 20, 1984 reversing the judgment and ol'der of a learned
Single Judge dated March 27, 1979 and allowing the writ petition filed
by respondent no. 1 herein Thiru Chaturvedi Badrinath, a senior
G member of the Indian Administrative Service, and directing the
issuance of a writ of mandamus ordaining the State Government of
Tamil Nadu from granting the requisite permission of the Government
under r. 17 of the All India Services (Conduct) Rules, 1968 for the
institution of a suit for damages for defamation by him against respon-
dent no. 2 Thiru V. Karthikeyan, the then Chief Secretary to the State
H Government of Tamil Nadu by a defamatory statement that he,
GOVT. OFT. NADU v. BADRINATH [SEN, J.] 493

J. allegedly, made to a correspondent of the Indian Express against him. A

The facts. At the relevant time, respondent no. 1 Thiru Bad-
rinath was the Commissioner of Archives & Historical Research,
Tamil Nadu. On September 7, 1973 he delivered a speech ata function
held by the History Association of the Presidency College, Madras
criticising the time caps11le buried in the precincts of the Red Fort at B
Delhi and said that it was full of distortions of historical facts describ-
.'r ing it as 'neither history nor fiction'. This led to a furore both in
Parliament as well as in the national press. The Government feeling
greatly embarrassed by the controversy created about the a\lthenticity
of the time cap~llle, started disciplinary inquiry against respondent
no. 1 under rr. 6 and 7 of the All India Services (Conduct) Rllles on the
view that being a civil serv&nt It was not desirable that he should have c
f--
participated in a public discussion on the time capsule. However, the
State Government by a G.0. dated August 25, 1977 dropped the
disciplinary proceedings. l\lst a day before i.e. on August 24, 1977 a
signed news item appeared in all the editions of the Indian Express
about the controversy regarding the time capsule stating that a D
Government spokesman charged respondent no. 1 as trying to 'sabot-
age the civil services from within'. Taking umbrage at the offending
utterance, respondent no. 1 addressed a letter dated August 25, 1977
expressing his anguish that such a statement was made by a Govern-
ment spokesman, and desired to know as to who that Government
-" spokesman was; and whether he indeed uttered the words and if so, E
whether that reflected the views of the Government. On the same day,
respondent no. 2 in his capacity as the Chief Secretary replied that he

- had no i11fonnation to comnnmicate to him on the subject. On
December 5, 1977 respondent no. 1 addressed another letter to
respondent no. 2 in the form of a representation complaining of the
defamatory attack on him, demanding that the Government should F
----\ issue a contradiction through the press. The Government did not
accede to the demand. In the meanwhile, respondent no. 1 apparently
addressed a letter to a certain Shastri Ramachandran, the press cor-
respondent of the Indian Express, asking him to disclose the name of
the Government spokesman. The correspondent by his letter dated
December 14, 1977 informed that the Government spokesman was G
respondent no. 2 who during a telephonic conversation with him had
made the ofending utterance. There were certain other utterances
~ attributed to respondent no. 2 with which we are not concerned. Upon
this, respondent no. 1 by his letter dated December 19, 1977 sought
permission to meet the Chief Minister and personally place before him
his grievance set out in his aforesaid representation. The grievance of H
494 SUPREME COURT REPORTS (1988] l S.C.R.

respondent no. 1 is thllt the letter was never replied to.
A
Eventually, on December 28, 1977 respondent no. 1 applied for
sanction of the Government under r. 17 of the Rules seeking permis-
sion to institute a suit against respondent no. 2 for damages for defa-
mation. This was sought on the ground that in an interview with Thim
B Shastri Ramachandran, the corresondent of the Indian Express,
respondent no. 2 had charged him with trying to sabotage the civil
services from within and that the charge was per se defamatory and
was made with intent to bring disrepute to his career as a scholar and
historian and caused irreparable damage to his reputation as a civil
servant. By the impugned G.O. dated February 7, 1978 the Govern-
c ment refused to grant the permission applied for to respondent no. !.
Against the refusal respondent no. 1 moved the High Court under Art. ..!..
226 of the Constitution for the issuance of a writ of mandamus and I
other appropriate writs, directions and orders. A learned Single Judge \
(V. Ramaswami, J.) by his judgment and order dated January 23, 1979
dismissed the writ petition on the ground that respondent no. 1 was not
D entitled to grant of the requisite permission under r. 17 of the Rules as
a matter of course and it could not be said that the refusal of the
Government to grant such permission was arbitrary, capricious or on
irrelevant consideration. On the contrary, he held that the Govern-
ment refusal was based on proper grounds inasmuch as the Govern-
ment had taken into account all the relevant considerations including
E public interest and the interest of maintenance of discipline in the civil
service. The learned Single Judge further observed that public interest
was certainly a proper ground on which the Government could refuse
the permission, if they were of the view that grant of such permission
would expose another officer to unnecessary harassment through
-
vexatious proceedings or encourage feud among civil servants and that
f had to be prevented. Aggrieved, respondent no. 2 preferred an appeal
under cl. 15 of the Letters Patent. A Division Bench (M.M.
Chandurkar, CJ and Sathiadev, J.) by its judgment and order dated -~·
December 20, 1984 allowed the appeal holding that the refusal of the
State Government to grant the requisite permission under r. 17 of the
Rules could not be justified on the ground of public interest. The
G entire judgment of the Division Bench proceeds on the wrongful
hypothesis that the obtaining of prior permission of the Government
under r. 17 was a condition precedent for the maintainability of a suit
for damages. It also manifestly erred in its view that the speech
delivered by respondent no. 1 at the function was in his official capa-
city as the Commissioner of Archives & Historical Research and there-
H fore the intended suit fell within the ambit of r. 17 of the Rules in-
GOVT. OF T. NADU v. BADRINATH [SEN, J.] 495

asmuch as it was a suit for the vindication of an official act. We are
A
afraid, it is difficult to sustain the judgment of the Division Bench.

In exercise of the powers conferred by sub-s. ( 1) of s. 3 of the All
India Services Act, 1951, the Central Government after consultation '
with the Government of the States concerned framed the All India
Services (Conduct) Rules. The Rules are a complete code in itself, B
obviously designed to frame a Code of Conduct for the members of the
Service to ensure absolute integrity and devotion to duty and responsi-
: bility, in order that there is a fearless and impartial civil service in
existence in the country. They form the bullwork of the executive
power of the Union and the States and also form the instrumentality
through which such powers have to be exercised. The key provision is c
the one contained in r. 3 which is spinal importance and reads:-

"3. General-(1) Every member of the Service shall at all
times maintain absolute integrity and devotion to duty and
shall do nothing which is unbecoming of a member of the D
Service.

(2) Every member of the Service shall take all possi-
ble steps to ensure integrity of, and devotion to duty by, all
Government servants for the time being under his control
and authority. E

-
(3) (i) No member of the Service shall, in the per-
formance of his official duties, or in the exercise of
powers conferred on him, act otherwise than in his
own best judgment to be true and correct except
when he is acting under the direction of his official F
superior.

(ii) The direction of the official superior shall
ordinarily be in writing. Where the issue of oral direc-
tion becomes unavoidable, the official superior shall
confirm it in writing immediately thereafter. G

(iii) A member of the Service who has received
oral direction from his official superior shall seek con-
firmation of the same in writing as early as possible
and in such case,it shall be the duty of the official
superior to confirm the direction in writing. H
496 SUPREME COURT REPORTS [1988] 1 S.C.R.

A
Explanation:-Nothing in clause (i) of sub-rule (3) shall be ~
construed as empowering a Government servant to evade
his responsibilities by seeking instructions from or approval
of, a superior officer or authority when such instructions
are not necessary under the scheme of distribution of
powers and responsibilities."
B
After laying down a rigorous code by framing r. 3 to ensure that -f
members of such service discharge their duties and functions with
absolute integrity and do nothing which is unbecoming of a member of
the Service, the Central Government has provided by rr. 4 to 20 the ·.
various constraints under which the members of the Service must func-
c tion. These rules necessarily form part of their conditions of service
under sub-s. (1) of s. 3 of the All India Services Act. Rule 4 places a _J.
restraint on the use of position or influence to secure directly or indi- - \
rectly employment of near relations in a private organisation, r. 5 on
taking part in politics and contesting elections, r. 6 on having connec-
tion with the mass media, the press or the radio, r. 7 on engaging in
11> criticism of Government, r. 8 on giving evidence before any commit-
tee, person or other authority except with the previous sanction of the
Government, and where such sanction has been accorded, on giving
evidence criticising the policy or any action of the Government, r. 9 on
unauthorised communication of information, r. 10 on asking for or
accepting contributions to or raising of public subscription, r. 11 on )..
E accepting gifts, r. llA on giving or taking of dowry, r. 12 on taking
part in public demonstration, r. 13 on private trade or employment,
r. 14 on investment, lending and borrowing, r. 15 on insolvency and
habitual indebtedness, r. 16 on acquisition of property, movable or
immovable, r. 17 on having recourse to any Court or the press for the
.-
vindication of an official act or character, r. 18 on convassing for
F others, r. 19 on taking a second spouse and r. 20 on consumption of ,
intoxicating drinks and drugs. ,.....__
A close analysis of these Rules clearly brings out that the provi-
sion contained in r. 17 is nothing but a restraint on a member of the
Service. Rule 17 of the Rules read with the Explanation thereto pro-
G vides as follows;
"17. Vindication of acts and character of members of the
Service-No member of the Service shall, except with the -+-.
previous sanction of the Government have recourse to any
court or to the press for the vindication of official act which
has been the subject matter of adverse criticism or attack of
H - a defamatory character.
GOVT. OFT. NADU v. BADRINATH [SEN, J.] 497

Explanation-Nothing in this rule shall be deemed to
A
prohibit a member of the Service from vindicating his pri-
vate character or any act done by him in his private capa-
city. Provided that he shall submit a report to the Govern-
ment regarding such action."

According to its plain terms, r. 17 is in the nature of a restraint on a B
member of the All India Services from bringing a suit for damages for
defamation for an act done in the exercise of his official duties as a
public servant or from going to the press in vindication of his official
: act or character. Explanation to r. 17 seeks to restrict the scope and
effect of the restraint placed by r. 17. No member of the Service is
prohibited from vindicating his private character for any act done by
him in his private capacity. Proviso thereto however casts on him a c
~ duty to report to the Government regarding such action.

Analysing the provision of r. 17 Sri Asoke Sen, learned counsel
for the appellants contends that to attract r. 17 three conditions must
be fulfilled, namely: (1) The intending plaintiff must be a member of D
the Service. (2) The suit must be for the vindication of his official act
or character. (3) The official act must be the subject of a defamatory
statement. According to the learned counsel, though two of the condi-
lions are fulfilled, namely: ( 1) that respondent no. 1 was a member of
the Service and (2) the subject matter viz. the statement made by
"""' respondent no. 2 and alleged to be of a defamatory character was E
made by him in his official capacity as the Chief Secretary, there was

- non-ful~ilment of the third condition. He rightly urges that the speech
delivered by respondent no. 1 criticising the authenticity of the time
capsule was merely an expression of opinion on his private capacity. In
substance, the contention is that r. 17 read with the Explanation
thereto clearly places such private acts outside the purview of the F
~. restraint plac~d by r. 17.

The contention to the contrary by respondent no. 1 Thim
Badrinath was that it was not open to the appellants to say that r. 17
was not attracted and he drew our attention to the concession made by
the learned Advocate General as reflected in the judgment of the G
learned Single Judge:
·~ "The learned Advocate General also stated that the act
complained of was an official act and, therefore, the in-
tended suit was to vindicate an official act which was the
subject matter of a defamatory criticism. Therefore, we H
498 SUPREME COURT REPORTS [ 1988) 1 S.C.R.

have to proceed on the basis that the criticism which is
A complained of as defamatory related to an official act of the
petitioner."

In view of this concession, he contends that it is now not open to the
appellants to say that r. 17 was not attracted.
B
In dealing with these contentions, it is rather pertinent to
observe that the learned Single Judge did not record a finding that
r. 17 of the Rules was not attracted in the facts and circumstances of
the case. After setting out the provision contained in r. 17, he observes
that the requirement of r. 17 are that (i) the act which has been the
subject matter of adverse criticism should be an official act and (ii) the
C criticism of the attack must be defamatory in character. We are en-
tirely in agreement with the view expressed by the learned Single
Judge. No construction other than the one reached by him is possible.
During the course of his judgment, the learned Single Judge
adverts to paragraph 17 of the writ petition where respondent no. 1 has
D averred that his intended suit was to vindicate his private character and
not to vindicate any official act. The case of respondent no. 1 therefore
throughout has been that r. 17 of the Rules was not attracted to the suit
and indeed he goes on to aver that he was entitled to file a suit even
without the permission of the Government under r. 17. However, he
goes on to say that if a suit were to be filed it might land him into
E trouble in that disciplinary proceedings might be taken against him for
having instituted a suit without previous permission of the Govern-
ment. On the assumption that such sanction was necessary under r. 17,
he moved the High Court for grant of an appropriate writ under Art.
226 of the Constitution, apparently by way of ex abundanti caute/a.
-
The learned Single Judge did not deal with the scope and ambit of r. 17
F in view of the concession made by the learned Advocate General.

We have no manner of doubt that the appellants are not bound
by the concession made by the learned Advocate General before the
learned Single Judge. It is unfortunate that the State Government was
not properly advised at the earlier stages of the proceedings in insisting
G upon the view that such permission was required under r. 17 and that it
was justified in refusing to grant the permission prayed for. The con-
cession made by the learned Advocate General being on a matter of ..\..
law is not binding. That apart, Sri Ashoke Sen, learned counsel for the
appellants has very fairly accepted the point of view put forth by
respondent no. 1 in the writ petition that no such permission was
H required.
GOVT. OF T. NADU v. BADRINATH !SEN, J.I 499

In the premises, the decision of the Division Bench appealed A
from suffers from a serious infirmity. In the instant case, respondent
no. 1 Thim Badrinath made a speech incidentally at a time when he
was holding the post of the Commissioner of Archives & Historical
Research, at a function organised by the History Association of the
Presidency College, Madras. He was invited to make a speech on the
occasion presumably for his attainments in the fi,eld. But the speech B
deliverecj by him on the occasion could not be treated to be an official
act of his and therefore the suit brought by him against respondent
no. 2 Thim V. Karthikeyan, the then Chief Secretary of Tamil Nadu
... could not be treated to be a suit for the vindication of his official act. It
is common knowledge that persons of erudition and eminence are
often times asked to grace such occasions or make a speech and when
they do so, undoubtedly they give expression to their personal views c
on various subjects. By no stretch of imagination can it be said that
while doing so they act in the discharge of their official duties merely
because they happen to hold public office.

At the end of the day, we wish to mention that Thim Badrinath D
stated before us that he had filed the suit in the High Court for
damages for defamation against respondent no. 2 Thim V. Karthi-
keyan without waiting for the priot permission of the State Govern-
ment under r. 17 of the Rules and that the suit was filed before the
expiry of the period of limitation of one year as provided for by Art. 75
of the Limitation Act, 1963. He further stated that the Registry of the E
High Court however returned the plaint with the endorsement that the
same be presented after the decision in the writ petition. He drew our
attention to the averment in paragraph 22 of his affidavit-in-reply to
the effect:

"I respectfully submit that, at the time I had filed W.P. F
No. 979/1978 against GO dated the 7th February, 1978, I
had formally presented to the Registry of the Madras High
Court a civil suit for defamation against the Chief Secret-
ary. I was advised to do this in order to prevent the time
limit for such suits from expiring, should the decision in the
writ petition be that, the defamatory attack on me by Shri G
Karthikeyan being of a personal kind I was covered by the
proviso in Rule 17 and would not, therefore, require
government sanction under Rule 17. Quite correctly, after
a note being made of the date on which the suit was pre-
sented, it was returned to me, saying that it would have to
wait for a decision in the writ petition. Following the judg- H
500 SUPREME COURT REPORTS [1988] 1 S.C.R.

A ment in the1 writ appeal, setting aside the decision in W.P. >,
979/1978, I have been waiting for government sanction."

It also transpires that the suit was filed by respondent no. I without
serving a notice as required under s. 80 of the Code of Civil Procedure,
B
1908. We refrain from expressing any opinion as to whether the return
of the plaint for representation after the decision of the writ petition
would save the running of the time. The questions whether the suit is
barred by limitation or not, or whether the same was competent with-
out a notice under s. 80 of the Code, are question to be determined by
,
the High Court in the suit. "'
c Accordingly, the appeals must succeed and are allowed. The I

~
judgment and order passed by the Division Bench of the High Court
are set aside and that of the learned Single Judge dismissing the writ
petition restored. The High Court will now proceed with the suit
brought by respondent no. 1 in accordance with law. The rights and
contentions of the parties are left open.
D
There shall be no order as to costs.

H.L.C. Appeals allowed.

f-

...