LexDINESH CHANDRA SANGMA versus STATE OF ASSAM & ORS.
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.. 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 Govern- ment 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 Govern- ment _when the Government servant exercises his right under FR 57(c). [610H- 61l·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 D
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