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PETITIONER: V. SRIDHARAN NAIR

       Vs.

RESPONDENT: STATE OF KERALA & ORS.

DATE OF JUDGMENT19/09/1986

BENCH: KHALID, V. (J) BENCH: KHALID, V. (J) OZA, G.L. (J)

CITATION:  1986 AIR 2201            1986 SCR  (3)1098  1986 SCC  (4) 357        JT 1986   470  1986 SCALE  (2)468

ACT:      Kerala  Civil   Service  (Classification,  Control  and Appeal) Rules  1960;-Rules 9(a)  and  24-Officer’s  lien  on post-When can be terminated.      CIVIL SERVICES      Lien-Termination  of-Procedure  laid  down  in  service Rules-Necessity for compliance.

HEADNOTE:      The  petitioner  a  Laboratory  Attendant  in  an  Arts College under  the Department  of Collegiate  Education  was deputed to  the City  Improvement Trust, for a period of two years. He  was relieved  of  his  duties  with  effect  from 30.10.61, by  the Department  of Collegiate  Education.  His deputation period  was extended  for a further period of one year from 1.11.63 and for a further period of two years with effect from  1.11.64. In the last order extending the period of deputation  it was  made clear  that no further extension beyond 31.10.66 would be allowed.      While the  petitioner was on deputation he was promoted as Upper  Division Clerk  in the  City Improvement Trust. He made  a   representation  on  3.9.66  requesting  the  State Government to  allow him to continue in the City Improvement Trust, terminating  his lien  in  the  Collegiate  Education Department. No  orders were  passed by  the  Directorate  of Collegiate  Education   or  by   the  Government   on   this representation.      While the  petitioner was  continuing on  deputation in the City  Improvement Trust,  the Trust  was merged with the State Housing Board, respondent No.3. On 29.3.72 orders were passed under Rule 24 of the Kerala Service Rules terminating the lien  of the  petitioner in the Department of Collegiate Education. 1099      A Show-cause  notice was  issued by  the Directorate of Collegiate Education  on 21.3.73  asking the  petitioner  to submit his  explanation against  the proposed removal of his lien  in   that  department.   The  petitioner  submitted  a representation stating  that he  was not  at  fault  in  not joining duty  in the  parent department,  and  that  he  was retained  in   foreign  service   anticipating  Government’s

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orders, and  that he  was not  interested in  continuing  on deputation, and that the period after 1.11.66 may be treated as an  extension of  the deputation  period. The explanation was not accepted and orders were passed terminating the lien of the petitioner.      The petitioner assailed the aforesaid order terminating his lien in a Writ Petition to this Court.      Allowing the Writ Petition, ^      HELD: 1. The Order terminating the petitioner’s lien in the instant  case is  passed on  the specious  plea that his explanation is  not satisfactory. The order should have been more articulate in its content. [1103C]      2.  Rule   19(a)   of   the   Kerala   Civil   Services (Classification, Control  and Appeal)  Rules  1960  mandates that an  officer’s lien  on a  post shall  not be terminated even with  his consent  if the  consequence is  to leave him without a  lien or  a suspended  lien upon a permanent post. Rule 24  speaks of  removal from the service when an officer has been  continuously absent  from duty  for five years, of special  circumstances  which  will  enable  the  department concerned to  save an  officer from  its vice,  and  of  the necessity to follow the procedure laid down in the Rules for removal of an officer from service. [1102B-C; F-H]      3. Without  specific orders,  the petitioner  could not abandon the  deputed foreign  service and  join  the  parent department. There  should be  a clear  finding of continuous absence from  duty by the Department to attract Rule 24. The department also has to satisfy the Court whether the special circumstances of  this case  would not rescue the petitioner from the rigour of Rule 24, and that the procedure laid down in the  Kerala Civil  Services (Classification,  Control and Appeal) Rules, 1960 is complied with. [1103B-C]

JUDGMENT:      ORIGINAL JURISDICTION: Writ Petition No. 3832 of 1978      (Under Article 32 of the Constitution of India) 1100      J. Ramamurthi for the Petitioner.      V.J. Francis for the Respondents.      The Judgment of the Court was delivered by      KHALID, J. The petitioner was a Laboratory Attendent in the  University   Intermediate  College   (now  called  Arts College), Trivandrum in the Collegiate Education Department. He  was  deputed  to  the  City  Improvement  Trust  as  per Government Order  dated 24-10-61.  The period  of deputation was two years from the date of the Order or from the date of his relief  from the  College. He was relieved of his duties with effect  from 30-10-61,  by the Department of Collegiate Education. His  deputation period was extended for a further period of  one year from 1-11-63 and for a further period of two years  with effect  from 1-11-64.  The  extended  period expired on  31-10-66. In the last order extending the period of deputation,  it was  made clear that no further extension would be allowed.      During the  deputation period  he was promoted as Upper Division Clerk in the City Improvement Trust. The Petitioner made  a  representation  on  3-9-66,  requesting  the  State Government to  allow him to continue in the City Improvement Trust, terminating  his lien  in  the  Collegiate  Education Department. No  orders were  passed by  the  Directorate  of Collegiate  Education   or  by   the  Government   on   this representation.

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    The petitioner continued in the City Improvement Trust, on deputation.  Meanwhile the  City  Improvement  Trust  was merged with  the Kerala State Housing Board, respondent No.3 herein. While so, on 29-3-72, orders were passed terminating the lien  of the  petitioner in the Department of Collegiate Education in  purported exercise  of the powers contained in Rule 24 of the Kerala Service Rules. A show cause notice was issued by the Director of Collegiate Education on 21-3-1973, asking the  petitioner to submit his explanation against the proposed removal  of  his  lien  in  that  departament.  The petitioner  submitted   a  representation  dated  26-3-1973, stating that  he was not at fault in not joining duty in the parent department  and  that  he  was  retained  in  foreign service anticipating  Government’s orders.  In view  of  the merger of the City Improvement Trust with the Kerala Housing Board, he was not interested in continuing on deputation. He further requested  that the  period after  1-11-1966, may be treated as an exten- 1101 sion of  the deputation  period.  The  explanation  was  not accepted and orders were finally passed terminating the lien of the petitioner. Hence this writ petition.      It is necessary to state a few facts to understand what happened after  the petitioner’s  deputation. The petitioner thought that  he was  secure in the deputed service and that he would  stand to  gain therein  if he continued there when compared to  his parent  department. He  had challenged  the order  passed   by  the  Director  of  Collegiate  Education terminating his  lien by filing Original Petition No.3779 of 1973 in  the Kerala  High Court.  Earlier he  had  filed  on Original Petition  No.31 of  1973 in  the  same  High  Court against the  State of  Kerala and  the Kerala  State Housing Board when  he was  reverted from the post of Upper Division Clerk to  that of Lower Division Clerk in the Housing Board, for not passing the Accounts Test. He succeeded in this writ petition. He  appears to  have been  unduly elated over this success and allowed the original petition No.3779 of 1973 to be dismissed  as not pressed. The main ground why he did not press the  original petition No.3779 of 1973 was that he had obtained a  favourable order in the other original petition. As ill-luck would have it, the matter was taken in appeal by the State Housing Board and the Division Bench of the Kerala High Court  reversed that Judgment. Thus, the petitioner was victim of  unfavourable circumstances  and  fluctuations  in fortunes.      Normally we  would have dismissed this writ petition on the  short  ground  that  the  petitioner  had  invoked  the jurisdiction of  the High  Court under  Article 226  of  the Constitution to  get the  order under challenge in this writ petition,  to   be  quashed,   and   after   invoking   this jurisdiction had  allowed the original petition, wherein the said challenge  was made,  to be  dismissed as  not pressed. But, as indicated above, the petitioner at that time did not anticipate what was in store for him in future.      It was as per a Government order that he was deputed on foreign service.  It is  true that  when the  deputation was extended, it was made clear that the deputation would expire on 31-10-1966,  finally. The  petitioner was  put on  notice that there  would not  be any  further extension.  There was some indifference  on his  part. But,  there was greater in- action on  the part  of respondent  also. The petitioner had made a  representation on  3-9-1966 to  the  respondents  on which  no  orders  were  passed  till  29-3-1972.  When  the petitioner realised  that his  prospects were  not bright in the Kerala State Housing Board as he anticipated

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1102 earlier, he  was left  with no  option but to press his case that the  order terminating  his lien  was bad in law. We do not think that the petitioner should be faulted for this in- action, when  we find  that the respondents also contributed in a large measure to the unhappy state of affairs.      Rule 19(a) in part I, Chapter III of the Kerala Service Rules reads as follows:           "An  officer’s   lien  on   a  post   may  in   no           circumstances be terminated even with his consent,           if the  result will be to leave him without a lien           or a suspended lien upon a permanent post." This rule  mandates that  an officer’s  lien on a post shall not be  terminated even  with his consent if the consequence is to  leave him  without a  lien or a suspended lien upon a permanent  post.  The  State  of  Kerala,  The  Director  of Collegiate Education  and the Kerala State Housing Board are parties to  this writ  petition. None  of these parties have filed  counter  affidavits.  We  do  not  know  the  service conditions of the petitioner in the Housing Board. We do not know whether  he occupies a permanent post there or not. Nor do we  know whether he has a lien or a suspended lien in the Housing Board.  Without being apprised of these details, the order of  termination of  lien cannot be allowed to stand as it would  work great  injustice against the petitioner. Rule 24 of  the Kerala  Service Rules  is the  next rule which is attracted in this case, which reads as follows:           "Unless the  Government, in  view of  the  special           circumstances of  the case,  otherwise  determine,           after five years’ continuous absence from duty, an           officer  shall   be  removed  from  service  after           following the  procedure laid  down in  the Kerala           Civil  Services   (Classification,   Control   and           Appeal) Rules, 1960." This rule speaks of removal from service when an officer has been continuously absent from duty for five years. This rule speaks of  the existence of special circumstances which will enable the  department concerned to save an officer from its vice. This  rule also  speaks of the necessity to follow the procedure  laid   down  in   the   Kerala   Civil   Services (Classification,  Control   and  Appeal)  Rules,  1960,  for removal of  an officer  from service.  The assumption on the part of the department in this case is that the petitioner’s continuance in the service of 1103 the Housing  Board constituted  absence from duty. We cannot subscribe  to   this  view  in  the  absence  of  compelling materials. It  was not  a case  of his  absenting from  duty after he  was asked  by the parent department to join it. At no time  was he asked to join duty in the parent department. Without specific  orders, the  petitioner could  not abandon the deputed  foreign service and join the parent department. There should  be a  clear finding of continuous absence from duty by  the department  to attract  Rule 24. The department also  has   to  satisfy   the  Court   whether  the  special circumstances of  this case  would not rescue the petitioner from the  rigour of  Rule 24.  It is also necessary for this Court to  be satisfied  that the  procedure laid down in the Kerala Civil  Services (Classification,  Control and Appeal) Rules, 1960,  is complied  with. The  order terminating  his lien is  passed on the specious plea that his explanation is not satisfactory. The order should have been more articulate in its content. To sustain the order would virtually mean to deny the petitioner his service in the parent department and throwing him to the mercies of the Housing Board.

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    In this  case, we are concerned more with consideration of  justice  than  with  mere  technicalities  of  law.  The Petitioner has filed this writ petition as early as in 1978. It would  be unfair and unjust to treat the period after 31- 10-1986, to  be one  of continuous absence from duty. For an effective adjudication  of the  claim of the petitioner, his position  in   the  deputed  foreign  service,  the  service conditions there,  his position there, etc., will have to be considered in  detail. That  has not  been done. Under these circumstances, we  hold that  the petitioner  is entitled to succeed. Accordingly,  we quash  the order  No. B.5-38127/66 dated 29th  May, 1973,  issued by the Director of Collegiate Education,  Trivandrum,   terminating  the   lien   of   the petitioner herein  and direct the second respondent to issue a  fresh   show  cause   notice,  give   the  petitioner  an opportunity to  make his explanation had also an opportunity of being  heard and  pass orders strictly in compliance with Rule 19(a)  and Rule  24 of  the Kerala Service Rules and in accordance with  law, if  the second  respondent still feels that his lien should be terminated. N.V.K.                                     Petition allowed.