The maintainability of a petition against a show cause notice proposing termination of services, when the final order of dismissal has been passed and not challenged, renders the petition not maintainable.

1. By means of this petition, the petitioner sought issuance of writ of certiorari to quash the show cause notice No. Esttt/33/BS/73/2001/798 dated 5.2.2001 by which it is tentatively proposed to terminate the services of the petitioner by way of dismissal witha further direction to the respondents to allow the petitioner to join duties and release the salary.

2. The case of the petitioner projected in the writ petition is that he was enrolled in Border Security Force as Constable with effect from 26.8.1997 and after basic training posted in 73 Battalion, B.S.F on 3.1.99. The petitioner had proceeded on five days earned leave with effect from 10.11.2000 due to domestic problem. The petitioner, however, did not join back for duty after the expiry of leave and over stayed, is stayed that he sent telegram on 15.11.2000 for extension of leave on account of his ailment. another telegram was also sent by him for further extension of leave on 30.12.2000 as the petitioner is stated to have remained under treatment. The petitioner, however, remained under treatment on account of his ailment from 10.11.2000 to 13.2.2001.

3. A show cause notice was issued by the respondents intimating the petitioner that because of his absence without leave for such a long period, his further retention in service is undesirable and proposed to terminate the services by way of dismissal and asking the petitioner to set his defence, if any, against the proposed action before 20.2.2001. It is also stated that this show cause notice was received by the petitioner on 1.3.2001 though posted on 24.2.2001, as is revealed from the postal summons. It is further submitted by the petitioner that the show cause notice is illegal and against rules which became the subject matter of challenge in this writ petition.

4. The stand taken by the repondents in their counter is that the petitioner without exhausting the statutory remedy provided under section 117 of the Border Security Force Act 1968 read with rule 22 of the Border Security force Rules, 1969, which provides that a person aggrieved by a finding or sentence of any security force court may put up one petition to the confirming authority before confirmation and one petition after confirmation to the central government, approached the court by way of writ petition, which is pre-mature. It is also stated that no procedural irregularity has been disclosed in the petition, which requires judicial review of the order of dismissal by the court. It is further stated that in short service career, the petititoner has been awarded with three punishments on accounts of unauthorised absence from duty.

5. In the present case, the petitioner proceeded on five days earned leave on domestic ground with a promise to return back in time withou extension of leave on any ground. The petitioner however, over stayed and despite various letters issued in requiring him to report for duty, remained without any positive response even apprehension roll issued to the Superintendent of Police, Jammu did not bear any fruitful results. The respondents left with no option but to issue show cause notice and accordingly issued show cause notice dated 04.1.2001 under registered cover requiring his reply/ explaination with regard to his over-stay/unauthorised absence from duty. However, another attempt was made by the respondents to secure explanation/reply from the petitioner to show cause notice issued but this opportunity was also not availed, which ultimately led to the passing of dismissal order on 20.2.2001. That the petitioner over-stayed. with effect from 16.11.2000. He, however, neither re-joined the duty nor any communication was received from his, despite registered letter dated 30.11.2000 addressed to him. A court of inquiry was held on completion of period of 30 days absence. An opportunity was also provided to either reply or to present himself by issuing a show cause