Interpretation of rule 10(5) of Kerala Civil Services (Classification Control and Appeal) Rules, 1960 regarding the conditions necessary for action and the operation of the fiction of pushing back the date of suspension to the original date of retirement.

Gopalan Nambiyar, C.J.

1. We regret our inability to share the view of the learned Judge, who allowed the writ petition, set aside Ext. P-9 order, and directed a writ of mandamus to the respondents in the writ petition to fix the petitioners salary and pension and allowances, treating the petitioners date of retirement as 21st November 1969. The writ petitioner (1st respondent before us) was compulsorily retired on 9th December 1966. The order of compulsory retirement was set aside by Ext. P-1 judgment of this court on 13th October 1969. By Ext. P-2 order dated 21st November 1969 the 1st respondent was reinstated in service. On the same date, an order was passed placing him under suspension. The said order has not been produced, but is available in the files. It was decided by the disciplinary authority to order an enquiry against the petitioner on the same facts and charges in respect of which the original order of compulsory retirement had been made. As a result of the fresh enquiry, by Ext. P-5 order dated 4th July 1970 the 1st respondent was ordered to be compulsorily retired with effect from 21st November 1969. Under rule 34 of the Kerala Civil Services (Classification, Control and Appeal) Rules, 1960 the Government, in exercise of its power of reviewing, confirming, modifying or setting aside the order, issued a show cause notice (Ext. P-7) to the 1st respondent why the order of suspension should not be related back to the date of the original order of compulsory retirement, namely, 9th December 1966. The 1st respondent showed cause (Ext. P-8): and the proposal was given effect to by Ext. P-9 order. The writ petition was to quash the said order and for consequential relief by way of mandamus to fix the petitioners salary and allowances.

2. The facts are not in controversy; nor is there any controversy that the question has to be decided on the scope and ambit of rule 10 clause (5) of the Kerala Civil Services (Classification Control and Appeal) Rules, 1960. The said rule reads as follows:

"10 (5).Where a penalty of dismissal, removal or compulsory retirement from service imposed upon a Government servant is set aside or declared or rendered void in consequence of or by a decision of a court of law and the disciplinary authority, on a consideration of the circumstances of the case, decides to hold a further inquiry against him on the allegations on which the penalty of dismissal, removal or compulsory retirement was originally imposed, the Government servant shall be deemed to have been placed under suspension by the appointing Authority from the date from which he was originally dismissed, removed or compulsorily retired, as the case may be, and shall continue to remain under suspension until further orders."t

As we read the rule, the conditions necessary for action under the rule related to the facts of the present case are:

(1) that a penalty of compulsory retirement from service must have been imposed upon a Government servant,

(2) that it should have been set aside or declared or rendered void in consequence of a decision, of a court, and

(3) that the disciplinary authority on a consideration of the circumstances of the case has decided to hold a further enquiry on the allegations on which the penalty of compulsory retirement was originally imposed.

If the above three conditions are satisfied the Government servant shall be deemed to have been placed under suspension from the date from which he was originally retired. Once the three conditions are satisfied, the fiction operates to push back the date of suspension to the date of original retirement; and we are unable to see how the supervening judgment quashing the original retirement or a fresh order of retirement can prevent the consequence of pushing back the fresh suspension to the original date of retirement. When we are bidden by statute to deal with a state of affairs as existing, which does not or cannot in fact exist, decisions have sufficiently made it clea