{"id":174955,"date":"1986-09-19T00:00:00","date_gmt":"1986-09-18T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/v-sridharan-nair-vs-state-of-kerala-ors-on-19-september-1986"},"modified":"2017-10-19T01:37:18","modified_gmt":"2017-10-18T20:07:18","slug":"v-sridharan-nair-vs-state-of-kerala-ors-on-19-september-1986","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/v-sridharan-nair-vs-state-of-kerala-ors-on-19-september-1986","title":{"rendered":"V. Sridharan Nair vs State Of Kerala & Ors on 19 September, 1986"},"content":{"rendered":"
Supreme Court of India<\/div>\n
V. Sridharan Nair vs State Of Kerala & Ors on 19 September, 1986<\/div>\n
Equivalent citations: 1986 AIR 2201, \t\t 1986 SCR (3)1098<\/div>\n
Author: V Khalid<\/div>\n
Bench: Khalid, V. (J)<\/div>\n
           PETITIONER:\nV. SRIDHARAN NAIR\n\n\tVs.\n\nRESPONDENT:\nSTATE OF KERALA & ORS.\n\nDATE OF JUDGMENT19\/09\/1986\n\nBENCH:\nKHALID, V. (J)\nBENCH:\nKHALID, V. (J)\nOZA, G.L. (J)\n\nCITATION:\n 1986 AIR 2201\t\t  1986 SCR  (3)1098\n 1986 SCC  (4) 357\t  JT 1986   470\n 1986 SCALE  (2)468\n\n\nACT:\n     Kerala  Civil   Service  (Classification,\tControl\t and\nAppeal) Rules  1960;-Rules 9(a)\t and  24-Officer's  lien  on\npost-When can be terminated.\n     CIVIL SERVICES\n     Lien-Termination  of-Procedure  laid  down\t in  service\nRules-Necessity for compliance.\n\n\n\nHEADNOTE:\n     The  petitioner  a\t Laboratory  Attendant\tin  an\tArts\nCollege under  the Department  of Collegiate  Education\t was\ndeputed to  the City  Improvement Trust, for a period of two\nyears. He  was relieved\t of  his  duties  with\teffect\tfrom\n30.10.61, by  the Department  of Collegiate  Education.\t His\ndeputation period  was extended\t for a further period of one\nyear from 1.11.63 and for a further period of two years with\neffect from  1.11.64. In the last order extending the period\nof deputation  it was  made clear  that no further extension\nbeyond 31.10.66 would be allowed.\n     While the\tpetitioner was on deputation he was promoted\nas Upper  Division Clerk  in the  City Improvement Trust. He\nmade  a\t  representation  on  3.9.66  requesting  the  State\nGovernment to  allow him to continue in the City Improvement\nTrust, terminating  his lien  in  the  Collegiate  Education\nDepartment. No\torders were  passed by\tthe  Directorate  of\nCollegiate  Education\tor  by\t the  Government   on\tthis\nrepresentation.\n     While the\tpetitioner was\tcontinuing on  deputation in\nthe City  Improvement Trust,  the Trust\t was merged with the\nState Housing Board, respondent No.3. On 29.3.72 orders were\npassed under Rule 24 of the Kerala Service Rules terminating\nthe lien  of the  petitioner in the Department of Collegiate\nEducation.\n1099\n     A Show-cause  notice was  issued by  the Directorate of\nCollegiate Education  on 21.3.73  asking the  petitioner  to\nsubmit his  explanation against\t the proposed removal of his\nlien  in   that\t department.   The  petitioner\tsubmitted  a\nrepresentation stating\tthat he\t was not  at  fault  in\t not\njoining duty  in the  parent department,  and  that  he\t was\nretained  in   foreign\tservice\t  anticipating\tGovernment's\norders, and  that he  was not  interested in  continuing  on\ndeputation, and that the period after 1.11.66 may be treated\nas an  extension of  the deputation  period. The explanation\nwas not accepted and orders were passed terminating the lien\nof the petitioner.\n     The petitioner assailed the aforesaid order terminating\nhis lien in a Writ Petition to this Court.\n     Allowing the Writ Petition,\n^\n     HELD: 1. The Order terminating the petitioner's lien in\nthe instant  case is  passed on\t the specious  plea that his\nexplanation is\tnot satisfactory. The order should have been\nmore articulate in its content. [1103C]\n     2.\t Rule\t19(a)\tof   the   Kerala   Civil   Services\n(Classification, Control  and Appeal)  Rules  1960  mandates\nthat an\t officer's lien\t on a  post shall  not be terminated\neven with  his consent\tif the\tconsequence is\tto leave him\nwithout a  lien or  a suspended\t lien upon a permanent post.\nRule 24\t speaks of  removal from the service when an officer\nhas been  continuously absent  from duty  for five years, of\nspecial\t circumstances\twhich  will  enable  the  department\nconcerned to  save an  officer from  its vice,\tand  of\t the\nnecessity to follow the procedure laid down in the Rules for\nremoval of an officer from service. [1102B-C; F-H]\n     3. Without\t specific orders,  the petitioner  could not\nabandon the  deputed foreign  service and  join\t the  parent\ndepartment. There  should be  a clear  finding of continuous\nabsence from  duty by the Department to attract Rule 24. The\ndepartment also has to satisfy the Court whether the special\ncircumstances of  this case  would not rescue the petitioner\nfrom the rigour of Rule 24, and that the procedure laid down\nin the\tKerala Civil  Services (Classification,\t Control and\nAppeal) Rules, 1960 is complied with. [1103B-C]\n\n\n\nJUDGMENT:\n<\/pre>\n
     ORIGINAL JURISDICTION: Writ Petition No. 3832 of 1978
\n     (Under Article 32 of the Constitution of India)
\n1100<\/span>
\n     J. Ramamurthi for the Petitioner.\n<\/p>\n
     V.J. Francis for the Respondents.\n<\/p>\n
     The Judgment of the Court was delivered by
\n     KHALID, J. The petitioner was a Laboratory Attendent in
\nthe  University\t  Intermediate\tCollege\t  (now\tcalled\tArts
\nCollege), Trivandrum in the Collegiate Education Department.
\nHe  was\t deputed  to  the  City\t Improvement  Trust  as\t per
\nGovernment Order  dated 24-10-61.  The period  of deputation
\nwas two years from the date of the Order or from the date of
\nhis relief  from the  College. He was relieved of his duties
\nwith effect  from 30-10-61,  by the Department of Collegiate
\nEducation. His\tdeputation period was extended for a further
\nperiod of  one year from 1-11-63 and for a further period of
\ntwo years  with effect\tfrom 1-11-64.  The  extended  period
\nexpired on  31-10-66. In the last order extending the period
\nof deputation,\tit was\tmade clear that no further extension
\nwould be allowed.\n<\/p>\n
     During the\t deputation period  he was promoted as Upper
\nDivision Clerk in the City Improvement Trust. The Petitioner
\nmade  a\t representation\t on  3-9-66,  requesting  the  State
\nGovernment to  allow him to continue in the City Improvement
\nTrust, terminating  his lien  in  the  Collegiate  Education
\nDepartment. No\torders were  passed by\tthe  Directorate  of
\nCollegiate  Education\tor  by\t the  Government   on\tthis
\nrepresentation.\n<\/p>\n
     The petitioner continued in the City Improvement Trust,
\non deputation.\tMeanwhile the  City  Improvement  Trust\t was
\nmerged with  the Kerala State Housing Board, respondent No.3
\nherein. While so, on 29-3-72, orders were passed terminating
\nthe lien  of the  petitioner in the Department of Collegiate
\nEducation in  purported exercise  of the powers contained in
\nRule 24 of the Kerala Service Rules. A show cause notice was
\nissued by the Director of Collegiate Education on 21-3-1973,
\nasking the  petitioner to submit his explanation against the
\nproposed removal  of  his  lien\t in  that  departament.\t The
\npetitioner  submitted\ta  representation  dated  26-3-1973,
\nstating that  he was not at fault in not joining duty in the
\nparent department  and\tthat  he  was  retained\t in  foreign
\nservice anticipating  Government’s orders.  In view  of\t the
\nmerger of the City Improvement Trust with the Kerala Housing
\nBoard, he was not interested in continuing on deputation. He
\nfurther requested  that the  period after  1-11-1966, may be
\ntreated as an exten-\n<\/p>\n
1101<\/span><\/p>\n
sion of\t the deputation\t period.  The  explanation  was\t not
\naccepted and orders were finally passed terminating the lien
\nof the petitioner. Hence this writ petition.\n<\/p>\n
     It is necessary to state a few facts to understand what
\nhappened after\tthe petitioner’s  deputation. The petitioner
\nthought that  he was  secure in the deputed service and that
\nhe would  stand to  gain therein  if he continued there when
\ncompared to  his parent\t department. He\t had challenged\t the
\norder  passed\tby  the\t Director  of  Collegiate  Education
\nterminating his\t lien by filing Original Petition No.3779 of
\n1973 in\t the Kerala  High Court.  Earlier he  had  filed  on
\nOriginal Petition  No.31 of  1973 in  the  same\t High  Court
\nagainst the  State of  Kerala and  the Kerala  State Housing
\nBoard when  he was  reverted from the post of Upper Division
\nClerk to  that of Lower Division Clerk in the Housing Board,
\nfor not passing the Accounts Test. He succeeded in this writ
\npetition. He  appears to  have been  unduly elated over this
\nsuccess and allowed the original petition No.3779 of 1973 to
\nbe dismissed  as not pressed. The main ground why he did not
\npress the  original petition No.3779 of 1973 was that he had
\nobtained a  favourable order in the other original petition.
\nAs ill-luck would have it, the matter was taken in appeal by
\nthe State Housing Board and the Division Bench of the Kerala
\nHigh Court  reversed that Judgment. Thus, the petitioner was
\nvictim of  unfavourable circumstances  and  fluctuations  in
\nfortunes.\n<\/p>\n
     Normally we  would have dismissed this writ petition on
\nthe  short  ground  that  the  petitioner  had\tinvoked\t the
\njurisdiction of\t the High  Court under\tArticle 226  of\t the
\nConstitution to\t get the  order under challenge in this writ
\npetition,  to\tbe  quashed,   and   after   invoking\tthis
\njurisdiction had  allowed the original petition, wherein the
\nsaid challenge\twas made,  to be  dismissed as\tnot pressed.
\nBut, as indicated above, the petitioner at that time did not
\nanticipate what was in store for him in future.\n<\/p>\n
     It was as per a Government order that he was deputed on
\nforeign service.  It is\t true that  when the  deputation was
\nextended, it was made clear that the deputation would expire
\non 31-10-1966,\tfinally. The  petitioner was  put on  notice
\nthat there  would not  be any  further extension.  There was
\nsome indifference  on his  part. But,  there was greater in-
\naction on  the part  of respondent  also. The petitioner had
\nmade a\trepresentation on  3-9-1966 to\tthe  respondents  on
\nwhich  no  orders  were\t passed\t till  29-3-1972.  When\t the
\npetitioner realised  that his  prospects were  not bright in
\nthe Kerala State Housing Board as he anticipated
\n1102<\/span>
\nearlier, he  was left  with no\toption but to press his case
\nthat the  order terminating  his lien  was bad in law. We do
\nnot think that the petitioner should be faulted for this in-
\naction, when  we find  that the respondents also contributed
\nin a large measure to the unhappy state of affairs.\n<\/p>\n
     Rule 19(a) in part I, Chapter III of the Kerala Service
\nRules reads as follows:\n<\/p>\n
\t  “An  officer’s   lien\t on   a\t post\tmay  in\t  no
\n\t  circumstances be terminated even with his consent,
\n\t  if the  result will be to leave him without a lien
\n\t  or a suspended lien upon a permanent post.”\n<\/p><\/blockquote>\n
This rule  mandates that  an officer’s\tlien on a post shall
\nnot be\tterminated even\t with his consent if the consequence
\nis to  leave him  without a  lien or a suspended lien upon a
\npermanent  post.  The  State  of  Kerala,  The\tDirector  of
\nCollegiate Education  and the Kerala State Housing Board are
\nparties to  this writ  petition. None  of these parties have
\nfiled  counter\taffidavits.  We\t do  not  know\tthe  service
\nconditions of the petitioner in the Housing Board. We do not
\nknow whether  he occupies a permanent post there or not. Nor
\ndo we  know whether he has a lien or a suspended lien in the
\nHousing Board.\tWithout being apprised of these details, the
\norder of  termination of  lien cannot be allowed to stand as
\nit would  work great  injustice against the petitioner. Rule
\n24 of  the Kerala  Service Rules  is the  next rule which is
\nattracted in this case, which reads as follows:\n<\/p>\n
\t  “Unless the  Government, in  view of\tthe  special
\n\t  circumstances of  the case,  otherwise  determine,
\n\t  after five years’ continuous absence from duty, an
\n\t  officer  shall   be  removed\tfrom  service  after
\n\t  following the\t procedure laid\t down in  the Kerala
\n\t  Civil\t Services   (Classification,   Control\t and
\n\t  Appeal) Rules, 1960.”\n<\/p><\/blockquote>\n
This rule speaks of removal from service when an officer has
\nbeen continuously absent from duty for five years. This rule
\nspeaks of  the existence of special circumstances which will
\nenable the  department concerned to save an officer from its
\nvice. This  rule also  speaks of the necessity to follow the
\nprocedure  laid\t  down\tin   the   Kerala   Civil   Services
\n(Classification,  Control   and\t Appeal)  Rules,  1960,\t for
\nremoval of  an officer\tfrom service.  The assumption on the
\npart of the department in this case is that the petitioner’s
\ncontinuance in the service of
\n1103<\/span>
\nthe Housing  Board constituted\tabsence from duty. We cannot
\nsubscribe  to\tthis  view  in\tthe  absence  of  compelling
\nmaterials. It  was not\ta case\tof his\tabsenting from\tduty
\nafter he  was asked  by the parent department to join it. At
\nno time\t was he asked to join duty in the parent department.
\nWithout specific  orders, the  petitioner could\t not abandon
\nthe deputed  foreign service and join the parent department.
\nThere should  be a  clear finding of continuous absence from
\nduty by\t the department\t to attract  Rule 24. The department
\nalso  has   to\tsatisfy\t  the  Court   whether\tthe  special
\ncircumstances of  this case  would not rescue the petitioner
\nfrom the  rigour of  Rule 24.  It is also necessary for this
\nCourt to  be satisfied\tthat the  procedure laid down in the
\nKerala Civil  Services (Classification,\t Control and Appeal)
\nRules, 1960,  is complied  with. The  order terminating\t his
\nlien is\t passed on the specious plea that his explanation is
\nnot satisfactory. The order should have been more articulate
\nin its content. To sustain the order would virtually mean to
\ndeny the petitioner his service in the parent department and
\nthrowing him to the mercies of the Housing Board.\n<\/p>\n
     In this  case, we are concerned more with consideration
\nof  justice  than  with\t mere  technicalities  of  law.\t The
\nPetitioner has filed this writ petition as early as in 1978.
\nIt would  be unfair and unjust to treat the period after 31-
\n10-1986, to  be one  of continuous absence from duty. For an
\neffective adjudication\tof the\tclaim of the petitioner, his
\nposition  in   the  deputed  foreign  service,\tthe  service
\nconditions there,  his position there, etc., will have to be
\nconsidered in  detail. That  has not  been done. Under these
\ncircumstances, we  hold that  the petitioner  is entitled to
\nsucceed. Accordingly,  we quash\t the order  No. B.5-38127\/66
\ndated 29th  May, 1973,\tissued by the Director of Collegiate
\nEducation,  Trivandrum,\t  terminating  the   lien   of\t the
\npetitioner herein  and direct the second respondent to issue
\na  fresh   show\t cause\t notice,  give\t the  petitioner  an
\nopportunity to\tmake his explanation had also an opportunity
\nof being  heard and  pass orders strictly in compliance with
\nRule 19(a)  and Rule  24 of  the Kerala Service Rules and in
\naccordance with\t law, if  the second  respondent still feels
\nthat his lien should be terminated.\n<\/p>\n
N.V.K.\t\t\t\t\t   Petition allowed.\n\n\n\n<\/pre>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India V. Sridharan Nair vs State Of Kerala & Ors on 19 September, 1986 Equivalent citations: 1986 AIR 2201, 1986 SCR (3)1098 Author: V Khalid Bench: Khalid, V. (J) PETITIONER: V. SRIDHARAN NAIR Vs. RESPONDENT: STATE OF KERALA & ORS. DATE OF JUDGMENT19\/09\/1986 BENCH: KHALID, V. (J) BENCH: KHALID, V. (J) OZA, […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-174955","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nV. 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