The interpretation of R.3 of the Kerala State Civil Services (Safeguarding of National Security) Rules, 1961, and the authority of the State Government to decide on compulsory retirement based on suspicion of subversive activities.

1. The petitioner in this case was employed as an acting Lower Division Clerk in the High School for Girls, Kayamkulam. While he was thus employed the Government received information from the Deputy Inspector General of Police, C.I.D. and Railways that the petitioner was engaged in subversive activities. The Government therefore directed the Director of Public Instruction, who is the competent authority under R.2 (c) of the Kerala State Civil Services (Safeguarding of National Security) Rules, 1961, to take action against the petitioner persuant to R.4 (a) of the Rules. Accordingly the Director of Public Instruction issued Ext. P1 notice to the petitioner. The reason for taking the proceeding against the petitioner was mentioned in the annexure to that notice. The petitioner was asked to submit his explanation within 14 days of the receipt of the notice why he should not be proceeded against. He was also asked whether he wished for a personal hearing before the orders were passed. After this notice the petitioner was allowed to proceed on leave from 5-1-1963 onwards as provided for in R.5 of the above Rules. The petitioner submitted an explanation to the Governor on 7-1-1963, a copy of which is marked Ext. P2. The Director of Public Instruction gave the petitioner a personal hearing on 28-1-1963. Thereafter the Director of Public Instruction forwarded the representation of the petitioner to the Government with all the concerned papers with his recommendation. The Government passed Ext. P6 order compulsorily retiring the petitioner from service.

2. In Ext. P6 order it is stated that the Governor has examined the question and he was satisfied that in the interest of the security of the State it is not expedient to give the petitioner any opportunity of showing cause against the action proposed to be taken in regard to the petitioner. It is further stated that the explanation of the petitioner was duly considered by the Governor and that he was of opinion that the petitioner was reasonably suspected to be engaged in subversive activities and that his retention in public service was on that account prejudicial to the national security.

3. In the counter-affidavit filed on behalf of the respondents it is stated that the Government alone examined the question and came to the conclusion that it was not expedient to give the petitioner any opportunity of showing cause against the action proposed to be taken against him and that the retention of the petitioner in service was prejudicial to national security, and therefore he was compulsorily retired from service. It is stated in Para.2 of the counter-affidavit:

"The Government examined the case carefully and arrived at the conclusion that the petitioner was reasonably suspected to be engaged in subversive activities and that his retention in public service was on that account prejudicial to national security."

Mr. Easwara Iyer, appearing for the petitioner, submitted that under R.3 of the above rules it was only the Governor in his individual capacity who should have formed the opinion that the retention of the petitioner in service was prejudicial to national security, and not the Government, that there is a distinction between a case where the Governor functions as the head of the executive and a case where he acts as the constitutional head of the State, and that R.3 gave the power of compulsorily retiring a person on the ground that he was suspected of being engaged in subversive activities to the Governor as the Constitutional head of the State and not as the head of the executive and therefore the Governor in his discretion, and not the Government, should have been satisfied that the retention of the petitioner in service was detrimental to national security. He also submitted that under the proviso (c) to Art.311(2) the Governor in his discretion should have ordered that it was not expedient to give an opportunity to the petitioner to show cause against the disciplinary