JUDGMENT

R. S. SARKARIA, J.:—This appeal is directed against the judgement of the High Court of Assam and Nagaland declaring that the termination of the services of the respondent, being violative of Art. 311 (2) of the Constitution, was illegal.

2. The Respondent, A.K.Deb, joined service as a Lower Division Assistant in the Office of the Superintendent of Veterinary Department, Assam, on 1-4-1937. He was confirmed in that post on 28-8-1937. He was promoted as Upper Division Assistant and confirmed as such on 26-8-1943. He got further promotion as Head Assistant and was confirmed in that post with effect from 20-6-1946. Thereafter on 26-4-1947, he was appointed as Personal Assistant against a newly created temporary post in higher scale. He continued to work in that post till 18-8-1949 when he was reverted to the post of Head Assistant. On 8-11-1951, the Director of Veterinary Department drew up proceedings against the Respondent on certain charges. As a result, the Respondent was reverted to the post of Upper Division Assistant on 15-12-1952. The Respondent on 21-1-1953 filed an appeal against the order of his reversion to the State Government. The appeal was dismissed on 19-2-1954, and by order dated 28-8-1956, the Respondent was allowed to join as Head Assistant subject to the production of a medical certificate of fitness. It was further stated in the order that the Respondent would be entitled to such leave as admissible under the rules from the date he proceeded on leave until joining the post of Head Assistant. On 1-9-1956, the Respondent reported for duty and produced a medical certificate of fitness from the Civil Surgeon, Kamrup. Despite this, he was not assigned any duty. He continued to attend his office till 13-9-1956 when he was informed that the operation of the order D/28-8-1956 of the Government had been suspended. Subsequently, by a letter dated 30-10-1956, the Government informed him that the earlier order had been revised and he should join the post of Upper Division Assistant to which he had been reverted. Against this order of reversion, the Respondent unsuccessfully appealed to the State Government. The appeal simply drifted till on 20-2-1961, he was informed that the appeal did not lie.

3. In the meantime on 12-9-1956. The Director called for the explanation of the Respondent for the lattter s absence without leave since 5-9-1956. The Director drew up disciplinary proceedings against the Respondent for his disobedience of the Government s order requiring him to join his post and for remaining absent from duty without information. Another show cause notice was issued on 26-11-1957 as to why he be not dismissed from service. The Respondent submitted a written statement and prayed for a personal hearing. He also filed an appeal to the Governor on 20-5-1961. By a letter No. AGV 7/52/280 dated 15-2-1963 the Respondent was informed that he had ceased to be a Government servant under F.R. 18 of the Assam Fundamental and Subsidiary Rules with effect from 5-9-1961 on account of his continuous absence from duty for more than five years.

4. To challenge the order dated 30-10-1956, of his reversion to the post of Upper Division Assistant, and the order, dated 15-2-1963, by which it was held that he had ceased to be in Government service. The Respondent filed a writ petition under Art. 226 of the Constitution in the High Court. Later, he did not press his challenge to the order, ( dated his challenge to the order,) dated 30-10-1956, and confined it only to the order, dated February 15, 1963.

5. After observing that the termination of service under F.R. 18 means that the employee is blameworthy, and operates as punishment amounting to "dismissal" from service, the High Court concluded:

"that F.R. 18 which permits termination of the service of a permanent Government employee without observance of the requirement of Article 311 (2) of the Constitution on a ground other than ordinary or compulsory superannuation, must be hel