P.B. Mukharji, J.
1. This is an application by Anil Nath De for a writ of mandamus or certiorari in respect of an order of the Assistant Collector of Excise, dated the 16th April, 1956 and an order of the Collector of Central Excise, dated the 7th May, 1956.
2. The petitioner was a temporary Upper Division Clerk. He was transferred to Kalimpong in June 1949 in the normal course. Ha applied thereupon for leave on the ground of illness. The Assistant Collector of Central Excise, Kalimpong directed him to appear before the Staff Surgeon for medical examination. On examination the petitioner was found fit to carry out the duties and to join the duties on the 11th July 1949. But instead of joining his duties the petitioner applied on the 12th July, 1949 for an extension of leave for three more weeks. He was again medically examined by a Staff Surgeon on the 2nd December, 1949, when this time the Staff Surgeon found him unfit to resume his duties. It was however found on the scrutiny of the service book and the leave account of the petitioner that he had exhausted all the leave that was due to him and the extraordinary leave granted to him exceeded 90 days on the 11th October, 1949. He was, therefore, regarded as having ceased to be in the employment under rule 14(c) of the Revised Leave Rules 1933. He was discharged from service with effect from the 11th October, 1949. The petitioner was in the department for 5 years by that time.
3. On purely compassionate grounds the petitioner was offered an officiating temporary post of Upper Division Clerk in the scale of Es. 80-5-120 etc. plus other allowances. This appointment was made on the 10th January,1950. It is this appointment which came to a termination and against which the present petition was made. The petitioner assumed charge of his duties on the 31st January, 1950. His appointment as a temporary Upper Division Clerk was treated as a re-employment and his pay was accordingly fixed at the minimum of the time scale of Upper Division Clerk, that is Rs. 80/- per month. The petitioner passed his departmental examination of his grade in December, 1951. He could not however be declared 'quasi-permanent' under the rules because by the 1st July, 1953 he was already more than 28 years old. When the petitioner was reappointed on the 31st January, 1950 his age was 30 years 1 month. When he became qualified for declaration as 'quasi-permanent' he was already 33 years 6 months. The petitioner therefore remained a temporary hand and rule 14(c) of the Revised Leave Rules 1933 continued to be applicable to him.
4. The relevant chapter of the petitioner's complaint begins when he was ordered to be transferred to Cooch Behar. He submitted a representation supported by a medical certificate praying for the cancellation of the order of transfer again on the ground of ill health. This application could not be granted and the petitioner was relieved of his duties at Calcutta on the 11th August, 1955 to join at Cooch Behar. Instead of proceeding to Cooch Behar he submitted a petition on the 22nd August, 1955 for reconsideration of his case of transfer. He was thereupon directed to produce a medical certificate from the Staff Surgeon, Calcutta about his fitness or unfitness to serve in Cooch Behar. Thereupon the petitioner was asked to join his duties at Cooch Behar on the 9th September, 1955. The petitioner still refused. He did not resume his duties and he applied for leave. The petitioner had only 75 day's earned leave and 60 days' half-pay leave to his credit on 12-8-1955. As the petitioner was a temporary Government servant and he had not in fact returned to duty, no half-pay leave was admissible to him in terms of Rule 12 (a) of the Revised Leave Rules. The petitioner applied for earned leave for one month with effect from 21-0-1955 and thereafter asked for an extension of 61 days' leave with effect from 21-9-1955 to the Assistant Collector of Central Excise, Cooch Behar. He refused the said leave and Informed the petitioner that the leave had been refused. The petitioner was asked to resume duties immediately. Again, the petitioner falled to do so.
5. Thereafter on 1-2-1956 a charge-sheet was issued to the petitioner by the Assistant Collector of Central Excise, Cooch Behar, whereby the petitioner was asked to show cause for (i) disobedience to orders, and (ii) unauthorised absence. The charge-sheet gave the fullest particulars and evidence that the applicant had to meet. It also expressly said that the petitioner was called upon to show cause in writing within 7 days of the receipt of the charge-sheet why disciplinary action should not be taken against him on the above charges and that he should submit Ms explanation to theoffice. The notice to show cause also expressly informed him that he should also state in writing whether he wished to be heard in person or to produce any witness or witnesses in defence and, if so, a list of such witnesses along with their addresses to be furnished with his explanation. The petitioner did show cause, and his explanation is an annexure to the petition. He never claimed to be heard in person nor did he claim to produce any evidence. In fact, there was hardly anything of which evidence was necessary. The disobedience to orders was on the facts that the petitioner refused to resume duty and obey the order of transfer. That was admitted. The other charge was 'unauthorised absence' which also was admitted fact, What the petitioner was always trying was to avoid a transfer from Calcutta and whenever he was asked to join his duty at any station outside Calcutta, he was always ready with some excuse or other and granted himself leave without waiting for the Authorities to grant him leave and without determining whether any leave was due to him or not and, if so, on what account. Such an attitude or conduct would make any government or public service impossible.
6. The Assistant Collector after enquiry passed an order dated 17-4-1956. He found the petitioner guilty of both the charges. He ordered stoppage of one year's increment of the petitioner but was generous enough to order that the period of unauthorised absence from 11-8-1956 to the date of his rejoining was to be treated as a period of extraordinary leave, a generosity which I shall presently show overstepped the limits of law and the statutory rules relating to extra-ordinary leave. The order directed the petitioner to rejoin his duties within 10 days from the date of the receipt of the order.
7. The petitioner again disobeyed even this order. His excuse for disobeying this order is that he received a letter from the Deputy Head Quarters Assistant to the Collector of Central Excise which said:
'You have exhausted all kinds of leave, Including extraordinary leave for three months on 28-1-56, and under Rule 14(c) of the Revised Leave Rules, 1933 you are deemed to have resigned the post of an Upper Division Clerk in this Department with effect from 29-1-56. You are, therefore, no longer in employment in the Department. Formal order of termination of your service is being issued separately. As per your request, you may see the Collector on 20-1-56 at 11.00 hours.'
The petitioner complains that while the Assistant Collector of Central Excise, Cooch Behar, was asking him to rejoin within 10 days by his order dated 17-4-1956, the Deputy Head Quarters Assistant to the Collector of Central Excise, Calcutta was informing him that he had ceased to be in the employ under Rule 14(c) of the Revised Leave Rules, 1933. There is some justification for this complaint, but there is no merit behind it. The first answer to this complaint is that even then the letter of the Deputy Head Quarters Assistant to the Collector of Central Excise, Calcutta, definitely in-formed him that he should see the Collector on 20-4-1956 which he did not. He also definitely informed the petitioner that a formal order of termination of service was being issued, so that the formal order of termination had not been issued till then. Besides the letter of the Deputy Head Quarters Assistant of 18-4-1956 was only a reply to the petitioner's own letters dated 28-2-1956, 21-3-1956, 28-3-1956, and 5-4-1956 and; cannot be elevated into a formal order by anybody. In fact, there is nothing on record to show that the petitioner offered at any stage to rejoin his duties at Cooch Behar within 10 days' time allotted to him by the formal order passed on the employee and dated 17-4-1956.
8. Finally, on 7-5-1956 the formal order came. It is signed by the Collector of Central Excise, Calcutta, and is in these terms:
'On expiry of three months ex-leave on 28-1-56, Shri Anil Nath De, Upper Division Clerk is deemed to have resigned the post of Upper Division Clerk in the Central Excise Department and accordingly ceased to be in Government employ in this Department with effect from 29-1-56 under Rule 14(c) of Revised Leave Rules, 1933.'
On that the Deputy Head Quarters Assistant on 9-5-1956 makes a note that the vacancy has since been filled up.
9. To conclude the facts all that is necessary is to record that the petitioner attempted to make a representation for his reinstatement in service to the Central Board of Revenue but wanted to approach it directly without going through the Collector of Central Excise, Calcutta and thus rendering the representation abortive.
10. That, briefly, is a summary of relevant facts.
11. Mr. Hazra contends that the order in this case is an order of dismissal and violates the provisions of Article 311(2) of the Constitution. He complains that the petitioner had no reasnoable opportunity of showing cause against the action taken. I have come to the conclusion that neither in the facts of this case nor in law such objections can be sustained. I shall state my reasons very briefly.
12. Article 311 of the Constitution deals with dismissal, removal or reduction in rank I am of the opinion that in the present case it is neither dismissal nor removal nor reduction. The present case is one of due termination of service under the Rules and contract of Service in natural course of events and therefore Article 311 of the Constitution cannot be attracted to such a termination.
13. The Supreme Court in Parshotam Lal Dhingra v. The Union of India, reported in : (1958)ILLJ544SC (A) has explained the legal position on this point. The learned Chief Justice of the Supreme Court at p. 48 of the report Says:
'But if the servant has no right to the post as where he is appointed to a post, permanent or temporary, either on probation or on an officiating basis and whose temporary service has not ripened into a quasi permanent serviceas defined in the Temporary Service Rules, the termination of his employment does not deprive him of any right and cannot, therefore, by itself be a punishment.'
Here in the present case also the applicant's temporary service has not matured into a 'quasi-permanent' service as defined by the Temporary Service Rules.
14. Thereafter, the learned Chief Justice of India goes on to observe in his Lordship's judgment in the above case:
'To put it in another way if the Government has by contract, express or implied, or, under the Rules, the right to terminate the employment at any time, then such termination in the manner provided by the contract or the Rules is, prima facie and per se, not a punishment and does not attract the provisions of Article 311.'
15. I consider that these observations are a complete answer to Mr. Hazra's argument in this case. Here also the Rules of Service expressly stipulate for the termination of service for unauthorised absence from duty without any leave. Rule 14(c) of the Revised Leave Rules, 1933 provides:
'Where a Government servant who is not in permanent employ or quasi-permanent employ fails to resume duty on the expiry of the maximum period of extraordinary leave granted to him, or where such a Government servant, who is granted a lesser amount of extraordinary leave than the maximum amount admissible, remains absent from duty for any period which together with the extraordinary leave granted exceeds the limit up to which he could have been granted such leave under Sub-rule (b), he shall be deemed to have resigned his appointment and shall, accordingly, cease to be in Government employ.'
Now this is the rule and part of the contract of service of the petitioner with the Government. In order to get out of the rigour and operation of this Rule, Mr. Hazra tried to contend that this Rule was introduced in September 1953, subsequently to the appointment of the petitioner in service, and, therefore, was no part of the contract of the petitioner's service with the Government. I am unable to agree with this contention. The service in this case means that the Government servant accepts as part of his conditions of service these Rules as they from time to time are made and modified. In fact, Rule 2 of the Revised Leave Rules says expressly that these Rules shall apply with retrospective effect. A part of the obligations of a Government servant, as I understand under these Rules, is that he takes the risk of the amendments made in these Rules from time to time. So long these Rules or their amendments do not violate any provisions of the Constitution or of any relevant Statute, mutability of these Rules forms part of the Contract and conditions of service, and are to be deemed as engrafted therein as and when they or their amendments are made, unless expressly or by necessary implication, they say otherwise.
16. Then Mr. Hazra argued that there was no grant of extraordinary leave to the petitioner in this case and, therefore, Rule 14 (c)5 would not apply. His argument is that the extraordinary leave was only granted by the Assistant Collector's order dated 17-4-1956 and he had 10 days time thereunder to join. Therefore he contends that the order of the Collector of Central Excise dated 7-5-1956 saying that his extraordinary leave expired on 28-1-56 must be wrong. This argument has a good deal of plausibility about it. I have, however, come to the conclusion that it is essentially unsound and cannot be upheld. Here again I shall state my reasons briefly. The order of the Assistant Collector of Excise, Cooch Behar in directing the entire period of the petitioner's absence from duty from 11-8-1955 to the date of his rejoining as extraordinary leave, was in fact beyond and in excess of the rules. Extraordinary leave is granted under Rule 14 of the Revised Leave Rules. It can be granted to an officer only in special circumstances and the duration of such extraordinary leave under the rules cannot exceed 3 or 18 months on any one occasion, the longer period being only admissible in case of:
(i) pulmonary tuberculosis in a recognisedsanatorium, or
(ii) tuberculosis of any other part of the body by a qualified tuberculosis specialist or a civil surgeon, or
The order of the Assistant Collector, therefore, was clearly beyond the rules as the applicant not satisfying the above conditions could never have more than three months' extraordinary leave. Therefore, the Collector of Customs by his order of 7-5-1956 being the appellate authority over the Assistant Collector rightly gave the maximum extraordinary leave permissible, that is three months. Those three months expired on 28-1-1956 on the facts of this case.
17. Mr. Hazra realised the force of this! argument. He, therefore, contended that if that was the position, then the Collector of Customs was retrospectively granting extraordinary leave with which the petitioner could not possibly comply in order to come under rule 14(c) of the Revised Leave Rules. It is quite true that the Assistant Collector on 17-4-1956 by making the entire period of unauthorised absence from 11-8-1955 to the future date of joining ten days ahead was putting forward a prospective date with which the applicant could comply. But then as I have said this was illegal and not permissible under the rules. The Collector of Excise took the only permissible part of this as the maximum, three months of extraordinary leave. It is true that as the Collector was making the order on 7-5-1956 his order naturally became retrospective because he stated that the three months' extraordinary leave expired on 28-1-1956. But then the short answer to this is that by rule 14(d) it is expressly provided that periods of absence without leave may be commuted to extraordinary leave retrospectively. Rule 14(d) of the Revised Leave Rules, 1933 states as follows:
'The authority empowered to grant leavemay commute retrospectively periods of absence without leave into extraordinary leave.'
I am, therefore, of the opinion that the Collector of Excise's order of 7-5-1956 was justified under this rule. This inevitably brings into operation Rule 14(c) whereby the service must be deemed to be terminated and the Collector had no other option but to declare that fact by his order.
18. This disposes of the objections made on behalf of the applicant in this case. On the facts I find that the petitioner had ample opportunities to show cause against the two charges (1) of disobedience to orders and (2) of unauthorised absences. He was found guilty of both these charges. What thereafter happened by the order of 7-5-1956 by the Collector of Central Excise is only a declaration of the fact that the applicant had ceased to be in service under the Rules of Service. According to the decision of the Supreme Court which I have quoted it is not a case of dismissal, removal or reduction. I need only point out here that the applicant is not even in 'quasi-permanent service'. Under rule 3 of the Central Civil Service Temporary Service Rules, 1949 a Government servant can be deemed to be in quasi-permanent service only if there has been a declaration to that effect. No such declaration was issued ini this case for the reasons which I have already mentioned. In those circumstances the observations made by the learned Chief Justice of India in the case quoted above apply with all the vigour to the facts of the present case. In that view of the matter Article 311 of the Constitution does not at all apply to the facts of the present case and Rule 14(c) of the Revised Leave Rules 1933 being part of the Contract and Rules of Service providing for termination of service in due course under its very terms and contract cannot be regarded as ultra vires Article 311 of the Constitution as contended by Mr. Hazra.
19. Before I conclude it is necessary to state that the petitioner has not at all been vigilant. The order declaring that he had ceasedto be in the employment of the Government is dated 7-5-1956. The petitioner does not move for this Rule until 12-2-1957. He knew that the vacancy also had been filled up when he was served with that order of 7-5-1956 because it stated that the vacancy had been filled up. Administration, in my view, cannot be allowed to wait indefinitely in this manner because an aggrieved person does not choose to move the court with reasonable diligence for redress of his alleged grievance. Even if I were satisfied on the merits of this application, which I am not, to allow this application after this long delay would not only prejudice the administration but the new appointment which has since been made, and would therefore be unjust An effort was made by Mr. Hazra to explain the delay by showing that his client wrote a solicitor's letter. But then that solicitor's letter was not written until 14-8-1956. In fact even the letter from the Central Board of Revenue which directed the petitioner to come through the proper channel, namely, the Collector ofCentral Excise, Calcutta, was dated 5-7-1956 and no step was taken thereafter until 12th February of the following year. Finally, I am satisfied that this is an unmeritorious application. A Government servant who has consistently refused to obey orders of transfer and who has consistently absented himself from duty without being granted leave does not discharge the minimum obligations of a Government servant; and when even under the formal order of the Assistant Collector of Excise dated 17-4-1956 he did not even offer to rejoin within the time of 10 days given to him and does not move the Court until long after the vacancy has been filled up then he is not in my opinion a fit, proper and deserving case to be helped and aided with a constitutional writ of mandamus or certiorari from this Court.
20. I, therefore, dismiss this applicationand discharge the Rule. All interim ordersare vacated. I make no order as to costs.