# DINESH CHANDRA SANGMA v. STATE OF ASSAM & ORS

- **Citation:** [1978] 1 S.C.R. 607
- **Court:** Supreme Court of India
- **Decided:** 1977-10-05
- **Bench:** P. K. Goswami, P. N. Shinghal, Jaswant Singh
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/dinesh-chandra-sangma-v-state-of-assam-ors-7301
- **Pages:** 8

## Headnote

Defence and Internal Security of- India Act, 1971, s. 37 and Defence
and
l11tertuU Secu1i1y of India Rules, rule 119(3) and (5), scope of-Whether Rule
119 is super-i111posed on Fundarnental Rules-Rule 56(c).
Voluntary reriren1ent [under FR 56(c)]-Consent of the Governtnent is not
necessary to give legal effect to the volu111ary retirement once the conditions i11
FR 56(c) are fulfilled.
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 Jitly
1975,
intimating the
Government that he ·'propose(d) to voluntarily retire from the service
with
effect from !nd August 1976" and requesting the later to treat that as a formal
notice under FR 56.
Consequent to the Notification dated July I, 1976, by the
Government permitting the appellant to retire with effect from 2-8-1976,
the
High Court allowed him to go on one n1onth's leave preparatory to retirement
, with effect from 2-7-1976, on which date he relinquished his charge of office.
But th~ 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
"imntediate!y after the expiry of his leave". The appellant did not join but
n1ade several representations to the High Court and the Government without
success. The High Court by a letter of 7th
December
1976
clirected
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 \Vhich 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 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,
A
B
c
D
E
HELD: (I) Article 310(2) of the Constitution is a special provision which
deals with a special situation \Vhere a contract is entered between the Govern·
F
ment 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) qi 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 ant!
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. [612-
~
G
(2) \Vhile the Government reserves its right to·compulsorily retire a Govern·
!llent servant under FR 56 (b) even against his own wish, there is a correspond~
1ng right of the Government servant under FR 56( c) to Voluntarily retire from
service 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). [610H61l·A]
(3) The conditions of service of a Government servant are regulated by
})
:statute or statutory nlles made under Art. 309 of the Constitution. FR 56 is one
of the statutory niles which binds the Governmc.nt and the Government servant.
The condition of 5Cf\'ice which is envisaged in Rule 56 (c) giving an option in
A
B
c
D
608
SUPREME COURT REPORTS
[1978] 1 s.c.R
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 equ

## Text

..
J
607
DINESH CHANDRA SANGMA
v.
STATE OF ASSAM & ORS.
October 5, 1977
[P. K. GOSWAMI, P. N. SHINGHAL AND JASWANT SINGH, JJ.J
Defence and Internal Security of- India Act, 1971, s. 37 and Defence
and
l11tertuU Secu1i1y of India Rules, rule 119(3) and (5), scope of-Whether Rule
119 is super-i111posed on Fundarnental Rules-Rule 56(c).
Voluntary reriren1ent [under FR 56(c)]-Consent of the Governtnent is not
necessary to give legal effect to the volu111ary retirement once the conditions i11
FR 56(c) are fulfilled.
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 Jitly
1975,
intimating the
Government that he ·'propose(d) to voluntarily retire from the service
with
effect from !nd August 1976" and requesting the later to treat that as a formal
notice under FR 56.
Consequent to the Notification dated July I, 1976, by the
Government permitting the appellant to retire with effect from 2-8-1976,
the
High Court allowed him to go on one n1onth's leave preparatory to retirement
, with effect from 2-7-1976, on which date he relinquished his charge of office.
But th~ 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
"imntediate!y after the expiry of his leave". The appellant did not join but
n1ade several representations to the High Court and the Government without
success. The High Court by a letter of 7th
December
1976
clirected
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 \Vhich 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 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,
A
B
c
D
E
HELD: (I) Article 310(2) of the Constitution is a special provision which
deals with a special situation \Vhere a contract is entered between the Govern·
F
ment 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) qi 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 ant!
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. [612-
~
G
(2) \Vhile the Government reserves its right to·compulsorily retire a Govern·
!llent servant under FR 56 (b) even against his own wish, there is a correspond~
1ng right of the Government servant under FR 56( c) to Voluntarily retire from
service 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). [610H61l·A]
(3) The conditions of service of a Government servant are regulated by
})
:statute or statutory nlles made under Art. 309 of the Constitution. FR 56 is one
of the statutory niles which binds the Governmc.nt and the Government servant.
The condition of 5Cf\'ice which is envisaged in Rule 56 (c) giving an option in
A
B
c
D
608
SUPREME COURT REPORTS
[1978] 1 s.c.R
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-613EFJ
Roshan Lal Tandon v. Unio11 of l11clia [1968] I 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 (I) 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
r~dundant 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
to "an express or implied term of his contract of employm,ent".
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 word:-.
"contract of employment" and necessarily excludes the two categories of employ~
ment, 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
govefned by a contract of employment.
Since FR 56 is a statutory condition
0t service which operates in law without reference to a contract of employment,
there is nothing inconsistent benveen Rule 119 and FR S6,
Explanation 2 to
H.ule 119 makes no mention of retirement under a statutory rule.
In the instant case the submission that Rule 119 is super·impose.d on FR 56
has no force.
The appellant has voluntarily retired by giving three
month:;'
notice not in accordance with an express or implied term of his contract of
E
employment but in pursuance of a statutory rule. (613·H, 614AB]
F
G
H
(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 as notified by him with effect from 2nd August
1976.
[614CJ
C1v1L 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. 449176.
A. K. Sen Wiren De and S. K. Nandy for the Appellant.
S. N. Choudhury for the Respondent.
The Judgment of the Court was delivered by
GosWAMI, J.-The appellant, Shri DiJlesh Chandra Sangma; wa,
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 of 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
..
..
...
D. c. SANO!l{A v. ASSAii{ (Goswami, J.)
609
formaJ!y intimated to the Government that he "propose ( d) to volwiA
tarily retire from the service" · and requested the Government to treat
that as a formal notice under F.R. 56.
The appellant also indicated
in hi6 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 tbi's State Govt.
Service with effect from 2nd August, 1976 (afternoon)". The High
B
('..Ourt 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 Government's end.
The Government sought to retrace its steps and passed
an order on 28th July, 1976, countermanding its earlier order of July
C
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
D
since, according to him, he volwitarily retired from service on and
from 2nd August, 1976, under rule 56(c) of the Fwidamental Rules.
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 recaJI 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 DISI Rules, 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
its order and thus to continue the appellant in service.
It is submitted by Mr. Niren De on behalf of the State that rule
J 19 of the Defence and Internal Security of India Rules, 1971 (briefly
the DISI 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
E
F
G
H
A
B
c
D
E
F
G
H
610
SUPREME COURT REPORTS
[1978] l S.C.R.
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 DIS! Rules there wou:d 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 circnmstances.
(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, 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 310 is limited by Article 311 (2).
It is clear that the services
of a permanent Government servant .cannot he 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 !he Government servant under F. R. 56(c)
•
I
,
D. c. SANGMA v. ASSAM (Goswami, J.)
6 11
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)
(b)
(c)
x
x
x
Without reasonable excuse abandons any such
employment or absents himself from work, or
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 119 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".
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 JJiade
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 Rule.s.
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 ?
·
A
B
c
D
F
G
H
A
B
c
D
E
F
G
H
612
SUPREME COURT REPORTS
[ 1978] 1 S.C.R.
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 provide8 that
"notwithstanding that a person holding a ch~l post under the Union
or a State holds office during the pleasure of the President or, aa 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 servic~
or of a tivil 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
any misconduct on his part, required to vacate that post."
The above
is a special provision which deals with a special situation where a contract is entered between the Government a:nd a person appointed under
the Constitution to bold a civil post.
But simply because there may
be, in a given case, a contractual employment, as envisaged under
Article 310(2) of the Constitution, the relationship of all other Government se1"Vants, 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
~nay 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 applie.;
to thr~e 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
Governmenrs 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 ( !) of rule 119. It
may be sufficient, here, to refer to the notification of the Central
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
cOOsidered necessary so as to extend the meaning of abandonment of
employment by including the persons who by the terms of their contract could tenninate 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 term for termination of employment by notice.
Such case.; 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
•
'
-
-+
•
•
D. c. SANGMA v. ASSAM (Gos:wami,.J.)
613
Constitution.
This Court observed in Roshan Lal Tandon v. Union
A
of India(') 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 mere agreement of the parties.
x
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 modem times is to withdraw the matter more and more
from the domain of contract into that of status".(2 )
B
c
D
E
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 envisaged in Explanation 2 to rule 119.
F
The field occupied by F. R. 56 is left untrammelled by Explanation
2 to rule 119.
The words "his contract of employment" in Explanation 2 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
G
or a rule.
Explanation 2 does not say an express or implied term or
employment, but refers to "an express or implied term of his contract or
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
"contr;tct of employment'' _and necessarily excludes the two categories
H
(I) [1968] (!) S.C.R. 185.
(2) Salmond and \Villian1s of Contract~, 2nd edition p.12.
A
B
c
D
614
SUPREME COURT REPORTS
[1978J I S.C.R.
of employment, namely, the one under the Central Government and lhc
other under the State Government.
Explanation 2 only takes in ib
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 be.tveen rule 119 and P.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
tn
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 Goverrnnent was necessary to give legal effect to the voluntary retirement of the appellant under P.R. 56 (c).
Since the conditions of P.R. 56(c) are fulfilled in the instant case, the appellant must
be held 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, 1970, revoking
the permission, are ineffectual in law and are therefore null and void.
Since the appellant voluntarily retired in acc-0rdance with P.R. 56(c).
the High Court's order of July 31, 1976, on the administrative side,
transferring him to Dhubri is invalid 'md 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.
•
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\
•