ition No 3832 of 1978 Under Article 32 of the Constitution of India 1100 J Ramamurthi for the Petitioner
VJ 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
The petitioner continued in the City Improvement Trust on deputation
Meanwhile the City Improvement Trust was merged with the Kerala State Housing Board respondent No3 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 No3779 of 1973 in the Kerala High Court
Earlier he had filed on Original Petition No31 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 No3779 of 1973 to be dismissed as not pressed
The main ground why he did not press the original petition No3779 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 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 19a 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
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 B5 3812766 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 19a 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
NVK Petition allowed


Summary:
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 301061 by the Department of Collegiate Education
His deputation period was extended for a further period of one year from 11163 and for a further period of two years with effect from 11164
In the last order extending the period of deputation it was made clear that no further extension beyond 311066 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 3966 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 No3
On 29372 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 21373 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 interested in continuing on deputation and that the period after 11166 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 19a 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