STATE OF TAMIL NADU & ORS.versusM. N. SUNDARAJAN

                                                                            . 471




                   STATE OF TAMIL NADU & ORS.
                                        v.
                           M. N. SUNDARAJAN
                               August 19, 1980
                 (R. S. SARKARIA AND R. S. PATHAK, JJ.J
    Civil Services-A power to appoint whether includes the power to termiMte
the appointment by compulsory retirement.
     Fundamental Rules, F.R. 56(d)-Compulsory retirement of Section Officer           ·c
in State Secretariat-G. 0. providing that Review Committee be headed by Chief
Secretary-Departmental Secretary heading Committee-'Decision' of Committee
-Validity of. .
     Before June 27, 1973, a Section Officer in the Tamil Nadu Secretariat used
to be a non-Gazetted Officer. The Government by Order G. 0. 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 ill all matters relating to appointments, transfers, postings punishments and
drawal 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         F
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. 0. No. 1782 Public (Service-I) dated June 27, 1973, all        G
  Superintendents or Section Officers were given the status of Gazetted Officers
  in matters like appointments, transfer and posting they continued to be treated
  as non-gazetted officers and that the constitution of the Review Committee head-
  ed 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'          ffi,
in the order dated Ju~e 27, 1973 cannot be construed to include 'retirements'
from or 'terminations' of service, for if that. had been the intention there would
have been no difficulty in adding the word 'retirements' or 'terminations' along
       472                          SUPREME COURT REPORTS             [19811 1 S.C.R.

        with the words 'appointments, transfers, postings and p~nishments' in the Gov-
        ernment 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 of
        the respondent's compulsory retirement upheld. [475 HJ
B           2. Unless a contrary intention appears from the context, a power to appoimt
        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 compulso1y retirement or
        otherwise is a necessary adjunct of the power of appointment ~nd is exercised
c       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 re-
D       commendations 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. [475 E-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 questi•)n.
         The cases of .all the Section Officers of the Secretariat, were reviewed hy the
E        same committee. The respondent had therefore not been singled out for a
         differential treatment. [475 G]
                 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.

F                K. Parasaran, Solicitor General and A. V. Rangam for the Appel-
         lant.
             V. Srinivasan, Chandrasekaran and A. T. M. Sampath for the R<'s-
         pondent.
                 The Judgment of the Court was delivered by
                 SARKARTA, J.-Special leave to appeal granted.
G
              The respondent herein, M. N. Sundarajan was recruited 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
        sr-rvice candidates. He was promoted as Section Officer in April. 1969
    H · and he continued in the post till March 2, 1976, when he was compul-
        sorily retired from service by the appellant-State in exercise of its power
        under Fundamental Rule 56(d).
          TAMIL NADU V. M. N. SUNDARAJAN (Sarkaria,   J.)          473

     The respondent challenged the validity of the order of his compul-    A
sory 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.0. No. 761, d.ated March 19, 1973,
the Review Commrttee has to consider the cases of Gazetted Govern-
ment 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 re-
viewed the respondent's case was not a Committee duly constituted          c
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, :ind,
this violation had vitiated the impugned order passed by the Govern-
menc In the result, the writ petition was allowed and the impugned
                                                                           D
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-I), dated June 27, 1973, all Superintendents or Section          E
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 drawal 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       F
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       G
referred to the decisions of this Court in Manager Govt. Branch Press
& Anr. v. D. B. Belliappa( 1); and State of Uttar Pradesh v. Chandra
Mohan Nigam & Ors.(2).
    On the other hand. Shri Srinivasan, appearing for the respondent,.
submits that the word 'appointments' in: the G.O. No. 1782. dated June     U
    (I) [1979] 2 S.C.R. 458.
    (~)    [1978] 1 S.C.R. 521.
       474                       SUPREME COURT REPORTS          [198ll 1 S.C.R.

A.     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.
B...
             Thus, the short question that falls to be considered is : Wa~ 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 ?
c          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
D    status. Ultimately, the Government by Order, G.0. 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
E. 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

F
     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
                                                                                    J
                                                                                    l...-
     Officers with effect from June 13, 1973 ; but in all matters re/(JJfing to
     appointments, transfers, postings, punishments and drawal of pay, they
G    continued to be treated as non-Gazetted Government servants 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
H      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
           TAMIL NADU v. M. N. SUNDARAJAN (Sarkaria, J.)                4 7,5


 appointed by his compulsorily retirement in accordance with the terms          A
 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 neces_sary 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                B
 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              c
 include compulsory retirement or termi!nation 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.                       D
      Assuming that there was some irregularity in the 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,              E
 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         F
 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,
                                                                                G
 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        H
 retirement. The parties shall pay and bear their own costs.
-N.V.K.                                                   Appeal allowed.