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PETITIONER: DINESH CHANDRA SANGMA

       Vs.

RESPONDENT: STATE OF ASSAM & ORS.

DATE OF JUDGMENT05/10/1977

BENCH: GOSWAMI, P.K. BENCH: GOSWAMI, P.K. SHINGAL, P.N. SINGH, JASWANT

CITATION:  1978 AIR   17            1978 SCR  (1) 607  1977 SCC  (4) 441  CITATOR INFO :  E          1978 SC1109  (7)

ACT: Defence and Internal Security of India Act, 1971, s. 37  and Defence  and Internal Security of India Rules,  rule  119(3) and  (5),  scope  of-Whether Rule 119  is  super-imposed  on Fundamental Rules-Rule 56(c). Voluntary   retirement   under  FR  56(c)-Consent   of   the Government  is  not necessary to give legal  effect  to  the voluntary  retirement  once the conditions in FR  56(c)  are fulfilled.

HEADNOTE: The appellant, a District & Sessions Judge, served a  notice on  the  Government  under  FR  56(c),  as  amended  by  the Government of Assam under Art. 309 of the Constitution by  a Notification dated 22nd July 1975, intimating the Government that  he "propose(d) to voluntarily retire from the  service with  effect from 2nd August 1976" and requesting the  later to treat that as a formal notice under FR 56.  Consequent to the  Notification  dated  July 1, 1976,  by  the  Government permitting  the  appellant to retire with effect  from  2-8- 1976, the High Court allowed him to go on one month’s  leave preparatory  to  retirement with effect  from  2-7-1976,  on which  date he relinquished his charge of office.   But  the Government by its order dated 28th July, 1976  countermanded its  earlier order dated 1-7-1976 permitting him  to  retire and  the High Court, therefore, posted him to Dhubri by  its order   dated  31st  July  1976  and  asked  him   to   join "immediately after the expiry of his leave".  The  appellant did  not join but made several representations to  the  High Court and the Government without success.  The High Court by a letter of 7th December 1976 directed the appellant to join his post within 10 days on pain of disciplinary action.  The appellant,  therefore, filed a petition u/Art. 226, on  28th of  July  1976  in  the High  Court  of  Gauhati  which  was dismissed.  The High Court held that FR 56(c) "is subject to compliance  with clause (3) of Rule 119 of DISI  Rules  1971 and that since the Government revoked the earlier permission granted  by it to the appellant to retire from service,  the appellant  could not voluntarily retire and his  refusal  to

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join  the service amounted to abandonment of service  within the  meaning  of Rule 119(3) r/w Explanation 2 of  the  DISI Rules. Allowing the appeal the Court, HELD  : (1) Article 310(2) of the Constitution is a  special provision  which  deals  with a special  situation  where  a contract  is  entered between the Government  and  a  person appointed under the Constitution to hold a civil post.  But, simply because there may be, in a given case, a  contractual employment   as   envisaged  under  Art.   310(2)   of   the Constitution,  the  relationship  of  all  other  Government servants,  as a class, and the Government cannot be said  to be contractual. ,Except in the case of a person who has been appointed  under  a written contract, employment  under  the Government  is a matter of status and not of  contract  even though  it  may  be  said to have  started  initially  by  a contract  in  the  sense that the offer  of  appointment  is accepted by the employee. [612C-D] (2)While the Government reserves its right to compulsorily retire a Government servant under FR 56(b) even against  his own  wish, there is a corresponding right of the  Government servant  under FR 56(c) to voluntarily retire from  set-vice by  giving the Government three months’ notice  in  writing. There  is  no  question of acceptance  of  the  request  for voluntarily retirement by the Government when the Government servant exercises his right under FR 57(c). [610H61 1 A] (3)The  conditions of service of a Government servant  are regulated by statute or statutory rules made under Art.  309 of  the Constitution.  FR 56 is one of the  statutory  rules which binds the Government and the Government servant.   The condition  of  service  which is envisaged in  Rule  56  (c) giving an option in’ 608 absolute terms to a Government servant to voluntarily retire with three months’ previous notice after he reaches 50 years of  age  or  has  completed  25  years  of  service  cannot, therefore,  be  equated  with a contract  of  employment  as envisaged in Explanation 2 to Rule 119. [612H-613EF] Roshan  Lal  Tandon v. Union of India [1968] 1  S.C.R.  185, applied (4)The rubric of Rule 119 of the DISI Rules is  "essential services" and this rule occupies a place in Part XII of  the DISI  Rules  with the title "Essential Supplies  and  work". Sub-rule  (1) of Rule 119 applies to three broad  categories of  employment,  namely, (i) employment  under  the  Central Government; (ii) employment under the State Government;  and (iii)   employment  declared  by  the  Central   and   State Governments  as essential.  Explanation 2 to Rule-  119  was considered  necessary  because  of  the  third  category  of employment. [612DE] (5)It  is  a cardinal rule of construction  that  no  word should  be considered redundant or surplus  in  interpreting the provisions of a statute or of a rule Explanation 2  does not say an express or implied term of employment but  refers "an express or implied term of his contract of  employment". If the language in Explanation 2 were different, namely,  an express or implied term of employment, instead of  "contract of  employment",  the position would  have  been  different. Explanation 2 in Rule 119 albeit a penal rule takes care  to use  the  words  contract  of  employment"  and  necessarily excludes  the two categories of employment, namely, the  one under the Central Government and the other tinder the  State Government.  Explanation 2 only takes in its sweep the third category  of employment where the relationship  between  the employer  and the employee is one governed by a contract  of

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employment.  Since FR 56 is a statutory condition of service which  operates  in law without reference to a  contract  of employment.  there is nothing inconsistent between Rule  119 and  FR 56.  Explanation 2 to Rule 119 makes no  mention  of retirement under a statutory rule. In  the instant case the submission that Rule 119 is  super- imposed   on  FR  56  has  no  force.   The  appellant   has voluntarily  retired by giving three months’ notice  not  in accordance  with an express or implied term of his  contract of employment but in pursuance of a statutory rule.  [613-H, 614AB] (6)The  High  Court committed an error of law  in  holding that  consent of the Government was necessary to give  legal effect to the voluntary retirement.  Since the conditions of FR  56(c) are fulfilled, in the instant case, the  appellant has voluntarily retired is notified by him with effect  from 2nd August 1976. [614C]

JUDGMENT: CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1199 of 1977 Appeal  by Special Leave from the Judgment and  Order  dated 4-3-77 of the Gauhati High Court in C. R. No. 449/76. A.   K. Sen Niren De and S. K. Nandy for the Appellant. S.   V. Choudhury for the Respondent. The Judgment of the Court was delivered by GOSWAMI, J.-The appellant, Shri Dinesh Chandra Sangma was  a District  and  Sessions Judge at Dibrugarh in the  State  of Assam.   He  attained the age of 50 years  on  February  29, 1976.   After  serving  for about  twenty  years  under  the Government,  on account (if certain ’domestic troubles’,  he did not want to continue in service after his attainment  of 50 years of age.  The appellant, therefore, served a  notice on the Government under Fundamental Rule 56(c) as amended by the Governor of Assam under Article 309 of the  Constitution by a notification dated 22nd July, 1975.  By this notice the appellant 609 formally intimated to the Government that he "propose(d)  to voluntarily  retire  from  the service"  and  requested  the Government  to treat that as a formal notice under F.R.  56. The appellant also indicated in his letter that although  he served  the  requisite three months’ notice he  proposed  to make  over charge by the afternoon of 2nd August, 1976.   On July  1,  1976, the Governor of Assam by a  notification  of that date was "pleased to allow Shri D. C. Sangma to  retire from this State Govt.  Service with effect from 2nd  August, 1976  (afternoon)  ".  The  High  Court  also  allowed   the appellant  to  go  on  one  month’s  leave  preparatory   to retirement with effect from 2nd July, 1976, on which date he relinquished his charge of office. Meanwhile there were some quick developments at the  Govern- ment’s end.  The Government sought to retrace its steps  and passed  an  order  on 28th July,  1976,  countermanding  its earlier order of July, 1., 1976, allowing him to retire from service  with effect from 2nd August, 1976.  Accordingly  on 31st  July,  1976, the High Court, also, squaring  with  the Government’s  order  of  28th July,  1976,  transferred  the appellant  from  Dibrugarh to Dhubri and asked him  to  join there "immediately after the expiry of his leave". The appellant did not join at Dhubri as ordered by the  High Court since’, according to him, he voluntarily retired  from service  on and from 2nd August, 1976, under rule  56(c)  of the/ Fundamental Rules.

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The appellant made several representations to the High Court and to the Government without success.  While the Government by a letter dated 4th December, 1976, declined to recall the order  of  revocation,  the High Court by a  letter  of  7th December,  1976, directed the appellant to join his post  at Dhubri within ten days on pain of disciplinary action.   The appellant was thus obliged to approach the High Court on the judicial  side under Article 226 of the Constitution  for  a writ of certiorari to quash the order of Government of  28th July, 1976, and the High Court’s order dated 31st July, 1976 passed on the administrative side. The High Court dismissed the appellant’s application holding that F.R. 56(c) "is subject to compliance with clause (3) of Rule  119  of  DIST Rule-,,  1971".   Since  the  Government revoked  the  earlier  permission  granted  by  it  to   the appellant  to retire from service, the appellant,  according to  the  High Court, could not voluntarily  retire  and  his refusal  to join service amounted to abandonment of  service within the meaning of rule 119(3) read with Explanation 2 of the Defence and Internal Security of India Rules.  It is  in this  view that the High Court held that the Government  was competent  to  revoke it,., order and thus to  continue  the appellant in service. It is submitted by Mr. Niren De on behalf of the State  that rule  119  of  the Defence and Internal  Security  of  India Rules, 1971 (briefly the DIST Rules) is super-imposed on  F. R.  56(c).   It is, therefore, impermissible in  law  for  a Government  servant to voluntarily retire under F. R.  56(c) without   written  permission  from  the  Government,   says counsel.   Mr. De further submits that since  the  effective date of retirement was 2nd August, 1976, it was open to  the Government 610 to  revoke the permission earlier accorded to the  appellant to retire voluntarily from service on his attainment of  the age  of  50  years by giving three  months’  notice  to  the Government.   He concedes that but for rule 119 of the  DISI Rules  there  would be no necessity for  any  permission  or consent of the Government in that behalf. Before we proceed further we may read F. R. 56 as amended               "F.R.56(a)  The date of compulsory  retirement               of a Government               servant  is the date on which he  attains  the               age  of  55  years.  He  may  be  retained  in               service  after this age with sanction  of  the               State Government on public grounds which  must               be recorded in writing, and proposals for  the               retention  of a Government servant in  service               after  this age should not be made  except  in               very special circumstances.               (b)   Notwithstanding  anything  contained  in               these rules the appropriate authority may,  if               he ’is of the opinion that it is in the public               interest  to  do so, retire Govt.  servant  by               giving  him  notice  of not  less  than  three               months  in  writing or three months’  pay  and               allowances  in lieu of such notice,  after  he               has  attained  fifty  years  of  age  or   has               completed  25 years of service,  whichever  is               earlier.               (c)   Any Govt. servant may, by giving  notice               of  not less than three months in  writing  to               the appropriate authority, retire from service               after  he has attained the age of fifty  years               or   has  completed  25  years   of   service,

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             whichever is earlier". It  is  clear  from the above that under  F.  R.  56(b)  the Government  may  retire a Government servant in  the  public interest  by giving him three months: notice in  writing  or three  months pay and allowance,; in lieu thereof  after  he has  attained  the age of fifty years or  has  completed  25 years of service, whichever is earlier. As is well known Government servants hold office during the pleasure  of the President or the Governor, as the case  may be,  under Article 310 of. the Constitution.   However,  the pleasure doctrine under Article 3 1 0 is limited by  Article 3  1 1 (2).  It is- clear that the services of  a  permanent Government servant cannot be terminated except in accordance with  the  rules made under Article 309 subject  to  Article 311(2) of the Constitution and the Fundamental Rights. it is also  well-settled that even a temporary Government  servant or  a probationer cannot be dismissed or removed or  reduced in rank except in accordance with Article 311(2).  The above doctrine  of  pleasure is invoked by the Government  in  the public  interest after a Government servant attains the  age of  50 years or has completed 25 years of service.  This  is constitutionally  permissible as compulsory  termination  of service  under  F.R.  56(b) does not amount  to  removal  or dismissal.  by  way  of punishment.   While  the  Government reserves  its  right  to compulsorily  retire  a  Government servant,  even  against his wish, there is  a  corresponding right of the Government servant under F. R. 56(c) 611 to voluntarily retire from service by giving the  Government three  months’ notice in writing.  There is no  question  of acceptance  of the request for voluntary retirement  by  the Government  when the Government servant exercises his  right ’under  F.  R. 56(c).  Mr. Niren De is  therefore  right  in conceding this position. We  have,  therefore, next to turn to rule 119 of  the  DISI Rules  which is the sheet-anchor of the  respondents.   Rule 119, so far as material, reads as follows :-               "(3)  Any person engaged in any employment  or               class of               employment to which this rule applies, who-               (a)                  x                       x               x               (b)   Without  reasonable excuse abandons  any               such employment or absents himself from  work,               or               (c)   x x x               shall be deemed to have contravened this  rule               ".               "Explanation   2.   A  person   abandons   his               employment within the meaning of cl. (b), who,               notwithstanding  that  it  is  an  express  or               implied  term of this contract  of  employment               that he may terminate his employment on giving               notice to his employer of his intention to  do               so,  so terminates his employment without  the               previous consent of his employer               Clause (5) of rule 1 19 may be read               "If  any person contravenes any provisions  of               this  rule  or of any order  made  under  this               rule,   he   shall  be   punishable,   without               prejudice  to  any action which may  be  taken               against  him under any other law for the  time               being  in force, with imprisonment for a  term               which may extend to one year, or with fine  or               with both".

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Mr. Niren De drew our attention to section 37 of the Defence and  Internal  Security of India Act, 1971,  which  provides that "the provisions of this Act or any rule made thereunder or  any  order made under any such rule  shall  have  effect notwithstanding anything inconsistent therewith contained in any  enactment  other  than this Act or  in  any  instrument having  effect  by virtue of any enactment other  than  this Act".   Before  section 37 can be invoked it must  be  shown that there is something inconsistent between F. R. 56(c) and rule  119 of DISI Rules.  The important question is  whether Explanation  2  to  rule 119, which is relied  upon  by  the respondents,  is at all attracted to the instant  case.   In other  words,  briefly  put, does a  Government  servant  in voluntarily  retiring  under  F.  R.  56(c)  terminate   his employment  on the basis of express or implied term  of  his contract of employment ? 612 Mr.  Niren  De  submits that  Article  310(2)  supports  his submission  that  the relationship  between  the  Government servant and the Government is contractual.  Sub-article  (2) of  Article 310 provides that notwithstanding that a  person holding a civil post under the Union or a State holds office during the pleasure of the President or, as the case may be, of  the  Governor of the State, any contract under  which  a person, not being a member of defence service or of an  all- India  service  or  of a. civil service of the  Union  or  a State,  is appointed under this Constitution to hold such  a post may, if the President or the Governor, as the case  may be, deems it necessary in order to secure the services of  a person  having  special  qualifications,  provide  for   the payment to him of compensation, if before the expiration  of an  agreed  period  that post is abolished  or  he  is,  for reasons  not connected with ,in.), misconduct on  his  part, required  to  vacate  that post." ’The above  is  a  special provision which deals with a special situation where I  con- tract  is  entered  between  the  Government  and  a  person appointed under the Constitution to hold a civil post.   But simply  because  there tie, in a given case,  a  contractual employment,  as  envisaged  under  Article  310(2)  of   the Constitution,  the  relationship  of  all  other  Government servants, as a class, and the Government, cannot be said  to be contractual.  It is well-settled that except in the  case of a person who has been appointed under a written contract, employment  under the Government is a matter of  status  and not of contract even though it may be said to have  started. ’initially,  by  a contract in the sense that the  offer  of appointment is accepted by the employee. The  rubric  of  rule  119  of  DISI  Rules  is   "essential services".  Indeed this rule occupies a place in Part XII of the DISI Rules with the title "Essential Supplies and Work". Sub-rule  (1) of rule 119 applies to three broad  categories of  employment,  namely, (1) employment  under  the  Central Government,  (2) employment under the State Governments  and (3)   employments   declared  by  the  Central   and   State Governments  as essential.  The third category  may  include even  private  employments  which  may  be  declared  to  be essential for the purpose of securing the objects  specified in  sub-rule (1) of. rule 119.  It may be sufficient,  here, to refer to the notification of the Control Government  S.O. 206(E)  dated March 25, 1974 whereby "any  employment  under the  Hindustan  Construction Company Limited in  the  Haldia Dock  Project"  was declared by the  Central  Government  an essential  employment  for the purpose of rule 119.   It  is because of the above mentioned third category of  employment that Explanation 2 was considered necessary so as to  extend

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the  meaning of abandonment of employment by  including  the persons  who by the terms of their contract could  terminate their employment by notice.  It goes without saying that  in many  employments, whether of private limited  companies  or public  companies,  contracts  of  employment  are  executed containing  a terms or termination of employment by  notice. Such  cases  of contractual employment  are  different  from those  of Government employees whose employment is a  matter of  status and not of ordinary contract.  The conditions  of service of a Government servant are regulated by statute  or statutory rules made under Article 309 of the 613 Constitution.      This Court observed in Roshan Lal  Tandon v. Union India(1) as follows :               "It  is  true that the  origin  of  Government               service is Contractual.  There is an offer and               acceptance  in every case, But once  appointed               to  his post or office the Government  servant               acquires   a   status  and  his   rights   and               obligations   are  no  longer  determined   by               consent  of  both parties, but by  statute  or               statutory  rules  which  may  be  framed   and               altered  unilaterally by the  Government.   In               other   words,   the  legal  position   of   a               Government servant is more one of status  than               of  contract.  The hallmark of status  is  the               attachment  to a legal relationship of  rights               and  duties imposed by the public law and  not               by more agreement of the parties.               x                       x                    x               x               it  is obvious that the  relationship  between               the Government and its servant is not like  an               ordinary contract of service between a  master               and   servant.   The  legal  relationship   is               something  entirely  different,  something  in               the, nature of status.  It is much more than a               purely  contractual  relationship  voluntarily               entered into between the parties.  The  duties               of  status  are fixed by the law  and  in  the               enforcement  of  these duties society  has  an               interest". As  Salmond and Williams put it "In such contracts as  those of  service the tendency in modern times is to withdraw  the matter  more and more from the domain of contract into  that of status"(2) F.R.  56  is  one of the statutory  rules  which  binds  the Government as well as the Government servant.  The condition of service which is envisaged in rule 56(c) giving an option in  absolute  terms to a Government servant  to  voluntarily retire  with three months’ previous notice after he  reaches 50 years of age or has completed 25 years of service  cannot therefore be equated with a contract of employment as  envi- saged in Explanation 2 to rule 119. The  field  occupied  by F. R. 56 is  left  untrammelled  by Explanation  to  rule  1 19.  The  words  "his  contract  of employment" in Explanation    are clinching on the point. It  is a cardinal rule of construction that no words  should be  considered  redundant  or surplus  in  interpreting  the provisions  of a statute or a rule.  Explanation 2 does  not say an express or implied term of employment, but refers  to "an express or implied term of his contract of, employment". If the language in Explanation 2 were different, namely,  an express or implied term of employment, instead of "con tract of  employment",  the position would  have  been  different,

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Explanation 2 in rule. 119, albeit, a penal rule, takes care to  use the words "contract of employment"  and  necessarily excludes the two categories (1)  [1968] (1) S.C.R. 185. (2)  Salmond and Williams of Contracts, 2nd edition p. 12. 614 of employment, namely, the one under the Central  Government and  the  other under the State Government.   Explanation  2 only  takes  in its sweep the third category  of  employment where the relationship between the employer and the employee is  one governed by a contract of employment Since F. R.  56 is a statutory condition of service, which operates in  law, without  reference  to a contract of  employment,  there  is nothing inconsistent between rule 119 and F.R. 56. The  appellant  has  voluntarily retired  by  three  months’ notice,  not  in accordance with an express or implied  term of  his  contract  of  employment, but  in  pursuance  of  a statutory rule.  Explanation 2 to rule 119 makes no  mention of  retirement under a statutory rule and hence the same  is clearly  out  of the way.  The submission that rule  119  is super-imposed on F.R. 56 has no force in this case. The  High  Court committed an error on law in  holding  that consent of the Government was necessary to give legal effect to  the voluntary retirement of the appellant under F.R.  56 (c).   Since the conditions of F.R. 56(c) are  fulfilled  in the  instant  case,  the  appellant must  be  hold  to  have lawfully  retired  as notified by him with effect  from  2nd August, 1976. In  this view of the matter the permission accorded  by  the Government  to retire and its subsequent order of  July  28, 1976,  revoking the permission, are ineffectual in  law  and are   therefore   null  and  void.   Since   the   appellant voluntarily retired in accordance with F.R. 56(c), the  High Court’s order of July 31, 1976, on the administrative  side, transferring him to Dhubri is invalid and is hereby quashed. In  the result the judgment and order of the High  Court  of March  4,  1977,  are set aside and  the  Writ  Petition  is allowed.  The appeal is allowed with costs in this Court  as well as in the High Court. S.R.                          Appeal allowed. 615