Case: State of Tamil Nadu and Others Vs. M.N. Sundarajan

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 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 Rulerespondent 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 ina previous decision in W.P. 1547 of 1977 (The Jawahar Mills case), the High Court held that since the Committee which reviewed the respondents 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.

Reasoning:
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 furtherquestion 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 app ears from the context, a power to appoint should include a power to terminate the appointment, including termination of the person 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 ofabove 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 histhat 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 respondents compulsory retirement, passed by the Government in the exercise of the power vested in it.Furthermore, it w as 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.