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PETITIONER: STATE OF TAMIL NADU & ORS.

       Vs.

RESPONDENT: M.N. SUNDARAJAN

DATE OF JUDGMENT19/08/1980

BENCH: SARKARIA, RANJIT SINGH BENCH: SARKARIA, RANJIT SINGH PATHAK, R.S.

CITATION:  1982 AIR 2084            1981 SCR  (1) 471  1980 SCC  (4) 592

ACT:      Civil Services-A  power to appoint whether includes the power to terminate the appointment by compulsory retirement.      Fundamental Rules,  R  56(d)-Compulsory  retirement  of Section Officer  in State  Secretariat-G.O.  providing  that Review Committee  be headed  by Chief Secretary-Departmental Secretary  heading   Committee-’Decision’  of   Committee  - Validity of,

HEADNOTE:      Before June  27, 1973,  a Section  Officer in the Tamil Nadu Secretariat  used to  be a  non-Gazetted  officer.  The Government by  order G.O.  Ms. No. 1616, Public (Services J) dated June 13, 1973 made the post of a Superintendent of the Secretariat a  Gazetted post and re-designated it as Section Officer, and by Government order No. 1782, Public (Services- J.), dated  June 27,  1973, provided  that  in  all  matters relating to  appointments, transfers,  postings  punishments and drawl  of pay,  they continued  to be  treated  as  non- gazetted Government servants until further orders      The respondent  was recruited  as a Clerk in the Indian Army in the year 1943 and after demobilization was appointed in  the   Revenue  Secretariat   of  the   State  Government (Appellant) from  March 1948.  He was  promoted  as  Section Officer in  April 1969  and he  continued in  the post  till March 2,  1976 when he was compulsorily retired from service under Fundamental Rule 56(d).      The respondent  challenged his compulsory retirement in the High Court contending that the procedure set out in G.O. No. 761  dated March  19, 1973,  envisaged that  the  Review Committee  that  had  to  consider  the  cases  of  Gazetted Government officers  in the  Secretariat should be headed by the Chief  Secretary and  not by  the Departmental Secretary and since  the Committee  which reviewed his case was headed by a  Departmental Secretary, the violation had vitiated the retirement order.  The High  Court accepted  this contention and quashed the retirement order      In the  appeal to this Court it was contended on behalf of the  appellant that  though under  G. O.  No. 1782 Public (Service-J) dated  June 27,  1973,  all  Superintendents  or Section officers  were given the status of Gazetted Officers in matters  like appointments,  transfer  and  posting  they

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continued to  be treated  as non-gazetted  officers and that the  constitution  of  the  Review  Committee  headed  by  a Departmental Secretary was valid. It was also contended that in the  aforesaid order,  the word  ’appointments’  includes compulsory ’retirements’, also.      On the  respondent’s behalf  it was  submitted that the word ’appointments’  in the order dated June 27, 1973 cannot be construed to include ’retirements’ from or ’terminations’ of service,  for if  that had been the intention there would not have been no difficulty in adding the word ’retirements’ or terminations’ along 472 with  the   words  ’appointments,  transfers,  postings  and punishments’ in  the Government  order  and  consequently  a restricted  interpretation   should  be   placed   on   this expression.      Allowing the appeal, ^      HELD: 1.  The order  of the High Court is set aside and the order  or the respondent’s compulsory retirement upheld. [475 H]      2.  Unless   a  contrary  intention  appears  from  the context, a  power to  appoint  should  include  a  power  to terminate   the   appointment   including   termination   by compulsory retirement  in  accordance  with  the  terms  and conditions of  service. This fundamental principle underlies Section 16 of the General Clauses Act. [474 H-475 A]      3. The power to terminate the appointment by compulsory retirement or  otherwise is a necessary adjunct of the power of appointment  and  is  exercised  as  an  incident  to  or consequences of  that power. Nothing in the Government Order No. 1782,  dated June  27, 1973, militates against this rule of construction. [475 B]      4. The  "decision’ of the Review Committee had no force proprio vigore.  The ’decisions’  were mere  recommendations which did  not, and could not, have a peremptory effect. The ultimate  power   to   accept   or   not   to   accept   the recommendations of  the Review  Committee  and  to  take  an effective and  definitive decision  vests in the Government. Even if  there was  some irregularity in the constitution of the Review  Committee, that  could not  by itself,  have the effect of vitiating the order of the respondent’s compulsory retirement. [475E-F]      In the  instant case  it was  not the  respondent alone (from the  category of  Section  Officers)  whose  case  was reviewed by  the Review  Committee in question. The cases of all the  Section officers  of the Secretariat, were reviewed by the same committee. The respondent had therefore not been singled out for a differential treatment. [475G]

JUDGMENT:      CIVIL APPELLATE  JURISDICTION: Civil Appeal No. 1743 of 1980.      Appeal by  Special Leave  from the  Judgment and  Order dated 24-4-1979 of the Madras High Court in W.P. No. 886/77.      K. Parasarans,  Solicitor General  and A.V.  Rangam for the Appellant.      V. Srinivasan,  Chandrasekaran and  A.T.M. Sampath  for the Respondent.      The Judgment of the Court was delivered by      SARKARIA, J.-Special leave to appeal granted.      The respondent  herein, M.  N. Sundarajan was recruited

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as a  Clerk in  the Indian  Army in  the year 1943. Sometime after the  regiment was demobilised, he was appointed in the Revenue Secretariat of the State Government from March, 1948 in a  vacancy reserved  for war  service candidates.  He was promoted as  Section Officer in April, 1969 and he continued in the  post till  March 2,  1976, when  he was compulsorily retired from  service by  the appellant-State in exercise of its power under Fundamental Rule 56(d). 473      The respondent  challenged the validity of the order of his compulsory  retirement by  a writ petition under Article 226 of  the Constitution in the High Court of Madras. One of the grounds  of challenge  was that as per procedure set out in G.O.  No. 761. dated March 19, 1973, the Review Committee has to consider the cases of Gazetted Government Officers in the Secretariat headed by the Chief Secretary and not by the Departmental  Secretary,  and  that,  therefore,  the  order passed by  the appellant-State based on the review made by a Committee which  had no jurisdiction, cannot be sustained in law.      Following a previous decision in W.P. 1547 of 1977 (The Jawahar Mills’  case), the  High Court  held that  since the Committee which  reviewed the  respondent’s case  was not  a Committee duly  constituted under  G.O. No. 761, dated March 19, 1973,  and had  not been  presided  over  by  the  Chief Secretary, there  was a violation of the procedure laid down by the  Government in  G.O. No.  761, dated  March 19, 1973, and, this  violation had  vitiated the impugned order passed by the  Government. In  the result,  the writ  petition  was allowed and  the impugned  order was  quashed.  Hence,  this appeal by special leave.      The main  contention of  the learned  Solicitor-General who has  appeared on  behalf of the appellant-State, is that the High  Court has  not correctly appreciated the import of the relevant  Government orders.  It is submitted that under Government order  No. 1782.  Public (Services-J), dated June 27, 1973, all Superintendents or Section officers were given the status  of Gazetted  officers with  effect from June 13, 1973,  "but,   in  all  matters  relating  to  appointments, transfers, postings,  punishments and  drawl of  pay,"  they continued to  be treated as non-Gazetted Government servants "until further  orders."  That  was  why  the  case  of  the respondent pursuant  to the  aforesaid Government  order  of June 27,  1973, for  compulsory retirement under Fundamental Rule 56(d),  was considered  by  the  appropriate  Committee constituted for  non-Gazetted  Government  servants  in  the Secretariat. In  the aforesaid  Government order, dated June 27, 1973,  the word ’appointments’, according to the learned Solicitor-General includes  compulsory ’retirements’,  also. In support  of  his  contention,  he  has  referred  to  the decisions of this Court in Manager Govt. Branch Press & Anr. v. D.  B. Belliappa,  and State  of Uttar Pradesh v. Chandra Mohan Nigam & Ors.      On the  other hand.  Shri Srinivasan, appearing for the respondent, submits that the word ’appointments’ in the G.O. No. 1782, dated June 474 27, 1973,  cannot be construed to include ’retirements’ from or  ’terminations’   of  service.   If  that  had  been  the intention, it  is argued,  there was no difficulty in adding the word  ’retirements’ or  ’terminations’  along  with  the words "appointments, transfers, postings and punishments" in that  Government  Order.  It  is  urged  that  a  restricted interpretation should be placed on this expression      Thus, the  short question  that falls  to be considered

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is: Was  the High  Court right  in quashing the order of the respondent’s  compulsory  retirement,  who  was  a  Gazetted Officer at  the material  time, merely on the ground that it was considered  by a  Review Committee  other than  the  one constituted for Gazetted Officers ?      For the  sake of perspective, it is necessary to recall that before  June 27,  1973, a  Section Officer in the Tamil Nadu Secretariat  used to be a non-Gazetted officer. In 1972 and earlier,  several representations were made by the Tamil Nadu  Secretariat   Associations   and   others   that   the Superintendents  of   the  Secretariat  should  be  accorded Gazetted status.  Ultimately, the  Government by order, G.O. Ms. No. 1616, Public (Services-J), dated June 13, 1973, made the post  of a  Superintendent of the Secretariat a Gazetted post  with   effect  from  the  date  of  that  order.  Such Superintendents were  re-designated as  Section Officers. In the aforesaid  G.O., it was stated that the amendment to the said Rule should be issued shortly. Since the framing of the Rules  involved  lot  of  administrative  complications  and unavoidable delay,  the Government  took a  policy  decision that in  regard to  various procedures concerning such newly designated Section Officers, the Rules under which they were functioning  earlier,   namely,  Rules  applicable  to  non- Gazetted Government  servants should  continue to apply till such time  as Service  Rules are  made with  a view to avoid administrative dislocation. This decision was the subject of Government order  No. 1782,  Public (Services-J), dated June 27, 1973. The net effect of this order was that although the Superintendents were  given  a  Gazetted  status  and  their designations were  changed into Section Officers with effect from  June   13,  1973:  but  in  all  matters  relating  lo appointments, transfers.  postings, punishments and drawl of pay, they continued to be treated as non-Gazetted Government servant until further orders.      The question  is, whether the expression "appointments" used in  this Government  order, dated  June 13,  1973, will include ’termination’  of service or ’compulsory retirement’ from  service,  also.  It  is  a  fundamental  principle  of interpretation that unless a contrary intention appears from the context,  a power  to appoint  should include a power to terminate the  appointment,  including  termination  of  the person 475 appointed by  his compulsorily retirement in accordance with the terms  and conditions  of his  service. This fundamental principle underlies  Section 16  of the General Clauses Act. In other  words, the  power to  terminate the appointment by compulsory retirement or otherwise is a necessary adjunct of the power  of appointment and is exercised as an incident to or consequences  of the  power.  There  is  nothing  in  the Government order  No.  1782,  dated  June  27,  1973,  which militates against this rule of construction.      The above  being the  true  construction  of  the  word ’appointments’ in the aforesaid Government order of June 27, 1973, notwithstanding the conferment of Gazetted status, the respondent continued  to be  governed, inter  alia,  in  the matter of  ’appointment’,  which  would  include  compulsory retirement or  termination of service also, by the Rules and Government orders applicable to non-Gazetted Officers of the Secretariat, and  therefore, the  Review Committee  presided over by  a Departmental  Secretary, set up for reviewing the cases of non Gazetted officers of the Secretariat, was fully competent  to  consider  the  case  of  the  respondent  and recommend his retirement.      Assuming  that  there  was  some  irregularity  in  the

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constitution of  the Review  Committee, which dealt with the case of  the respondent,  that could not affect the validity of the  impunged  orders.  The  "decisions"  of  the  Review Committee  had   no  force  proprio  vigore.  At  best,  the ’decisions’ were  mere recommendations  which did  not,  and could not,  have a  peremptory effect. The ultimate power to accept or  not to  accept the  recommendations of the Review Committee and  to take  an effective and definitive decision in the matter, vested in the Government. Thus, even if there was some  irregularity in  the constitution  of  the  Review Committee. the functions of which were purely advisory, that could not  by itself  have the effect of vitiating the order of the  respondent’s compulsory  retirement, passed  by  the Government in the exercise of the power vested in it.      Furthermore, it  was not the respondent alone (from the category of Section Officers) whose case was reviewed by the Review Committee  in question.  The cases of all the Section Officers of  the Secretariat,  were  reviewed  by  the  same Committee. It  could not,  therefore, be  contended that the respondent  had   been  singled   out  for   a  differential treatment. Article  14 of the Constitution was not attracted and the  respondent could  not have  any grievance  on  that score.      For the  foregoing reasons,  we allow  this appeal, set aside the  order of  the High Court, and uphold the order of the respondent’s  compulsory retirement.  The parties  shall pay and bear their own costs. N.V.K.    Appeal allowed. 476