# STATE OF TAMIL NADU & ORS v. M. N. SUNDARAJAN

- **Citation:** [1981] 1 S.C.R. 471
- **Court:** Supreme Court of India
- **Decided:** 1980-08-19
- **Case number:** Civil Appeal No. 1743 of 1980
- **Bench:** R. S. Sarkaria, R. S. Pathak
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/state-of-tamil-nadu-ors-v-m-n-sundarajan-8127
- **Pages:** 5

## Headnote

. 471
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
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
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
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 headed by a Departmental Secretary was valid.
It was also contended that in the
aforesaid Order, the word 'appointments' includes compulsory 'retirements', also.
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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
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472
SUPREME COURT REPORTS
[19811 1 S.C.R.
with the words 'appointments, transfers, postings and p~nishments' 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 of
the respondent's compulsory retirement upheld.
[475 HJ
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
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 t

## Text

STATE OF TAMIL NADU & ORS.
v.
M. N. SUNDARAJAN
August 19, 1980
(R. S. SARKARIA AND R. S. PATHAK, JJ.J
. 471
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
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
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
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 headed by a Departmental Secretary was valid.
It was also contended that in the
aforesaid Order, the word 'appointments' includes compulsory 'retirements', also.
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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
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472
SUPREME COURT REPORTS
[19811 1 S.C.R.
with the words 'appointments, transfers, postings and p~nishments' 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 of
the respondent's compulsory retirement upheld.
[475 HJ
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
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. [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
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.
K. Parasaran, Solicitor General and A. V. Rangam for the Appellant.
V. Srinivasan, Chandrasekaran and A. T. M. Sampath for the R<'spondent.
The Judgment of the Court was delivered by
SARKARTA, J.-Special leave to appeal granted.
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 compulsorily 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 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.0. No. 761, d.ated March 19, 1973,
the Review Commrttee 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, :ind,
this violation had vitiated the impugned order passed by the Governmenc 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-I), 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 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
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(1); and State of Uttar Pradesh v. Chandra
Mohan Nigam & Ors.(2).
On the other hand. Shri Srinivasan, appearing for the respondent,.
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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.
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SUPREME COURT REPORTS
[198ll 1 S.C.R.
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 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 ?
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.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
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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 re/(JJfing to
appointments, transfers, postings, punishments and drawal of pay, they
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
J
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TAMIL NADU v. M. N. SUNDARAJAN (Sarkaria, J.)
4 7,5
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 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
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 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 nonGazetted 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 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
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-of the High Court, and uphold the order of the respondent's compulsory
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retirement. The parties shall pay and bear their own costs.
-N.V.K.
Appeal allowed.