V. SRIDHARAN NAIRversusSTATE OF KERALA & ORS.

A


                                         '
                           V. SRIDHARAN NAIR
                                        v.
                       STATE OF KERALA & ORS.
B
                            SEPTEMBER 19, 1986

                     [V. KHALID AND G.L. OZA, JJ.]

          Kera/a Civil Service (Classification, Control and Appeal) Rules
C   1960;-Rules 9(a) and 24-0fficer's lien on post-When can be
    terminated.

          CIVIL SERVICES

         Lien-Termination of-Procedure laid down in service _Rules-
D
    Necessity for compliance.

          The petitioner a Laboratory Attendant in an Arts College under
    the Department of Collegiate Edncation was deputed to the City
                              a
    Improvement Trust, for period of two years. He was relieved of his
    duties with effect from 30. 10.61, by the Department of Collegiate
E   Edncation. His deputation period was extended for a further period of one
    year from I. II .63 and for a further period of two years with effect
    from J. ll.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.
F         While the petitioner was on deputation be was promoted as Upper
    Division Clerk in the City Improvement Trust. He made a representa·
    tion 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 Pl!SS<d by the Directorate of
    Collegiate Education or by the Government on this representation.
G
          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.
H
                                      1098
                 V. S. NAIR v. STA1E OF KERALA & ORS.                     1099

                                                                          A
       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 orders, and that he was not B
interested in continuing on deputation, and that the period after 1.11.66
may be treated as .an extension of the deputation period. The explana-
tion 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.
                                                                                  c

      Allowing the Writ Petition,

      HELD: 1. The Order terminating the petitioner's lien in the in-
stant case is passed on the specious plea that his explanation is not satisfac-   D
tory. 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 1%0 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 up<in a permanent post. Rule 24                E
speaks of removal from the service when an officer has been continu-
ously 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-Hl
                                                                         F
       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 contiit~ous 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
frcim the rigour of Rule 24, and that the procedure laid down in the G
Kerala Civil Services (Classification, Control aud Appeal) Rules, 1960
is complied with. [I 103B-C]

      ORIGINAL JURISDICTION: Writ Petition No. 3832 of 1978

       (Under Article 32 of the Constitution of India)                            H
    llllO                  SUPREME COURT REPbRTS          [1986] 3 S.C.R.

A           J. Ramamurthi for the Petitioner.

            V .J. Francis for the Respondents.

            The Judgment of the Court was delivered by
B
         KHALID, J. The petitioner was a Laboratory Attendent in the
    University lntermediate College (now called Arts College), Trivan-
    drum 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
c   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 perio_? of deputation, it was made clear that no , ~
    further extension would be allowed.                                     / ,.
D                                                                         ,
           During the deputation period he was promoted as Upper Div
    sioi;i Clerk in the City Improvement Trust. The Petitioner macl.
    representation on 3-9-66, requesting the State Government to all;v.
    him to continue in the City Improvement Trust, terminating his lien in -
E
    the Collegiate Education Department. No orders were passed by the
    Directorate of Collegiate Education or by the Government on this
    representation.

        The petitioner co_ntinued in the City Improvement Trust, on de-
  putation. Meanwhile the City Improvement Trust was merged with the
F 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 11otice 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 sub-
G
  mitted 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
H requested that the period after 1-11-1966, may be treated as an exten-
         V. S. NAIR v. STATE OF KERALA & ORS. [KHALID, J.]          1101
                                                                           A
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      B
secure in the deputed service and that he would stand to gain therein if
he coniinued there when compared to his parent depai:tment. 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           c
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       D
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.
                                                                           E
      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 g"et 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 pot pressed. But, as indicated      F
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
ciear that the deputation wo11ld expire on 31-10-1966, finally. The G
11etitioner was put on notice that there would not be any further exten-
sion. 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 H
    1102                  SUPREME COURT REPORTS             [1986] 3 S.C.R.

A   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.

B         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 terminat!id even with his consent, if the result will
                be to leave him without a lien or a suspended lien upon
                a permanent post."
c
    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
D   Housing Board are parties to this writ petition. NoneI
                                                             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
E   allowed to stand as it would work great in justice 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 circumst-
                ances of the case, otherwise determine, after five years'
F               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
G    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 depait-
.H ment in this case is that the petitioner's continuance in the service of
                   V. S. NAIR v. STATE OF KERALA & ORS. [KHALID, J.[           1103

    -~·   the Housing Board constituted absence from duty. We cannot sub-              A
          scribe 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, tfie petitioner could not
          abandon the deputed foreign service and join the parent department.
                                                                                       B
          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
          Cou'rt 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     c
          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.

                 In this case; we are concem_ed more with consideration of justice     D
          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 posi-
          tion there, etc., will have to be considered in detail. That has not been    E
          done. Under these circumstances, we hold that the petitioner is en-
          titled to succeed. Accordingly, we quash the order No. B.5-38127/66
          dated 29th May, 1973, issued by the Director of Coliegiate Education,
•
    ·+    Trivandrum, terminating the lien of the petitioner herein and direct
          the second respondent to issue a fresh show cause notice, give the
                                                                                       F
          petitioner an opportunity to make his explanation had also an
          opportunity of being heard ano pass orders strictly in compliance with
          Rule 19{a) and Rule 24 of the Kerala Service Rules and in acco'rdance
          with law, if the second respondent still feels that his lien should be
          terminated.

          N.V.K.                                                  Petition allowed. G