JUDGMENT : R.N. Misra, J. - This is an application under Article 226 of the. Constitution for suitable writ to quash the order of termination passed on 28-5-1970 (Annexure-B). 2. We propose to indicate the facts of the case as revealed from the petition and the counter affidavits as also from the records of Government produced in the proceeding. The opposite party No. 3 joined in the office of the Revenue Divisional Commissioner, Central Division, on 28-8-1959 as a Diarist on temporary basis. In November, 1960, he was temporarily promoted as a Lower Division Assistant. In January 1962, the temporary service of opposite party No. 3 came to an end when on his own application he was relieved to join the Settlement Department as a Kanungo. In that Department, he got promoted as an Assistant Settlement Officer (Non-Gazetted). In 1966, the services of opposite party No. 3 were terminated whereupon he preferred an appeal to the State Government. The following order was passed by Government: I am directed to refer to your letters on the subject mentioned above and to say that after careful consideration of the appeal petition of Sri Bansidhar Panda (Opposite party No. 3), ex-Assistant Settlement Officer (Non-Gazetted), Government have been pleased to order that he should be reinstated in his post and should then be relieved to join the office of the Revenue Divisional Commissioner, Central Division, from which he went over to the Settlement Department. After the aforesaid order was made in June, 1967, the various Departments of Government concerned in the matter including the Revenue Divisional Commissioner, Central Division, pointed out difficulties in implementing the said order. The opposite party No. 3 came before this Court in a writ petition on 9-1- 1968 (O.J.C. 24 of 1968) impleading the Director of Land Records and Surveys, Member, Board of Revenue and the State of Orissa as opposite parties. During the pendency of the said application, on 24-12-1968, the Petitioner was appointed as a Lower Division Assistant after passing the examination provided under the Orissa Ministerial Service (Method of Recruitment and Conditions of Service of Clerks and Assistants in the District offices and offices of the Heads of Departments) Rules, 1963. During the pendency of the said application, on 24-12-1968, the Petitioner was appointed as a Lower Division Assistant after passing the examination provided under the Orissa Ministerial Service (Method of Recruitment and Conditions of Service of Clerks and Assistants in the District offices and offices of the Heads of Departments) Rules, 1963. On 12-12-1969, the writ application of opposite party No. 3 was allowed and a writ of mandamus was issued to the opposite parties 1 and 2 to implement the order of the State Government of June, 1967. In the return made to this Court on behalf of the opposite parties in the said writ application it was indicated that giving effect to the Government order would contravene the provisions of the aforesaid Rules of 1963, because the Petitioner did not have the requisite qualification and had not passed the prescribed examination. It was also indicated that the Petitioner had no lien in the post of Lower Division Assistant; in the Office of the Revenue Divisional Commissioner and as such he could not have been thrust into the establishment of the said office. The counter affidavit was filed on 3-8-1968. As we shall presently indicate, five months before that date, the Minister-in-Charge of the Revenue Department had already rescinded the Government Order of June, 1967. Yet, in paragraph 6 of the counter affidavit it was stated: In view of the above difficulties Government have been requested to reconsider the orders. After that the Government orders have not been received. The relevant file of Government shows that the Minister, Revenue, passed his order allowing the appeal of the opposite party No. 3 on 2-6-1967, and it was communicated on 10th of June, 1967, as already referred to. Thereafter, the difficulties in implementing the said order of Government were indicated and during the pendency of the writ petition (O.J.C. 24 of 1968) the matter was examined at length and with great care. On 3-3-1968, the Minister-in-charge of Revenue, passed the following order: I do not find anything wrong with the D.L.R. & S. (opposite party No. 1 of the earlier writ petition) when he raises some points regarding the order of the Government for clarification. That should never be construed to be his failing in his duty by not implementing the Government order. That should never be construed to be his failing in his duty by not implementing the Government order. In view of the difficulties pointed out by the D.L.R. & S. in the matter of implementation of the order, I am thinking of revising the order. So far As I remember, my previous order is to reinstate Shri Panda in his former post and place his services at the disposal of the Revenue Divisional Commissioner. Now some administrative difficulties are pointed out in implementation of the order. So my previous order is modified as follows: Shri Banshidhar Panda may be employed in the post of A.S.O. Though this order was passed in the relevant file, doubts were entertained as to the competency of such an order being made without leave of the Court when the writ application was pending. When the file was re-submitted to the Minister on 10th of April, 1968, he directed as follows: This file may be put up again after the Advocate General formally writes to the Department for issue of revised order. Several queries were made from the office of the Advocate General. The record, however does not contain any indication of what instructions were received. In the mean time, the writ application was disposed of in the manner already indicated. 3. After the writ from this Court was issued to the opposite parties of the said case, the stand adopted earlier was no more pursued. Though the difficulties in implementation of the Government Order of June, 1967, were still realised, effect was given to the decision of this Court and under orders of Government, opposite party No. 3 was allowed to join as Assistant Settlement Officer (Non-Gazetted) and immediately relieved to join in the Office of the Revenue Divisional Commissioner. On 28th of May, 1970, the Petitioner received the following order "Consequent upon the reversion of Shri Banshidhar Panda, Lower Division Assistant from Settlement the services of Shri Sarat Kumar Das, L.D. Asst. of this office are terminated with immediate effect". The Petitioner assails this order of termination. 4. The opposite parties 1 and 2, i.e., the State of Orissa and the Revenue Divisional Commissioner in a common affidavit of the Under Secretary to Government in Revenue Department have accepted the allegations of the Petitioner that the opposite party No. 3 was promoted as a temporary L.D. Assistant on 30-11-1960. The Petitioner assails this order of termination. 4. The opposite parties 1 and 2, i.e., the State of Orissa and the Revenue Divisional Commissioner in a common affidavit of the Under Secretary to Government in Revenue Department have accepted the allegations of the Petitioner that the opposite party No. 3 was promoted as a temporary L.D. Assistant on 30-11-1960. He applied for Kanungo training in the Settlement and his application was forwarded by the Revenue Divisional Commissioner and he was selected for training. After completion of the training he was relieved on 20th of January, 1962 to join in the Settlement Department. As the opposite party No. 3 had no title in the post in the office of the Revenue Divisional Commissioner, the Gradation List maintained of employees of the Office of the Commissioner after 20th of January, 1962, no more bore the name of the opposite party No. 3. In paragraph 7 of the counter affidavit, it has been stated that upon implementation of the Government order, the opposite party No. 3 was absorbed as L.D. Assistant in the Office of the Commissioner leading to the retrenchment of the Petitioner on account of non-availability of any more post in the said office. It is conceded in the counter affidavit that the opposite party No. 3 has not passed the recruitment examination contemplated under the Rules of 1963. Support for the impugned action was claimed from precedents in the department. The opposite party No. 3 in a separate counter affidavit while not disputing the basic facts contended that as he had served for three years in the establishment of the Revenue Divisional Commissioner; he had a better right than the Petitioner. Reliance was placed upon the Government order of June, 1967 and the decision of this Court allowing his application and it was contended that the present application was not maintainable. 5. On the contentions raised before us by the parties, the following questions arise for considerations: (1) Does the decision of this Court in O.J.C. 24 of 1968 operate as res Judicata? (2) Is the Government order of June, 1967, legal and can it be given effect to? 6. Admittedly, the Petitioner was not a party to the earlier proceeding. As such, he would not be bound by the decision in the said case. (2) Is the Government order of June, 1967, legal and can it be given effect to? 6. Admittedly, the Petitioner was not a party to the earlier proceeding. As such, he would not be bound by the decision in the said case. The question of res Judicata in almost similar circumstances was examined at great length in a recent decision of their Lordships of the Supreme Court in the case of Jagdeo Singh and Others Vs. Mihi Lal Ors.. As the facts of the reported decision show, the Appellant before their Lordships Court was a student of the Rajendra Medical College At Ranchi. The Appellant had obtained admission by representing that he had the necessary qualification prescribed for admission. It transpired, however, that the Appellant had not passed in Physics and, therefore, was not duly qualified. The Principal directed that the Appellant would not be allowed to continue his studies in the College and called upon him to make any representation he wanted by an appointed date. As no representation was made within the time indicated, after verification from the records of the University, the Principal struck off the Appellant's name from the College Roll. A writ petition was filed before the Patna High Court impleading the Principal of the College and the State Government in the Health Department. A Bench of the Patna High Court allowed the application and issued a writ of mandamus to the opposite parties. The Appellant continued studies, but ultimately was not allowed to take the examination of the University. In a contempt proceeding which followed, before the High Court, the Court directed the Principal to certify to the University as required under the Rules. But the University was not prepared to admit the Appellant to the examination. The Registrar of the University under directions of the Vice-Chancellor wrote back to the Principal that the High Court had not issued any directive to the University in the manner and, therefore, the Appellant could not appear at the examination. Ultimately-the University did not admit the Appellant to the examination and a fresh writ petition was filed. The question of res judicata was raised and the High Court negatived the plea. That decision was upheld by their Lordships. We would accordingly hold that the present proceeding is not hit by res judicata and the allegations made by the Petitioner are open to examination. 7. The question of res judicata was raised and the High Court negatived the plea. That decision was upheld by their Lordships. We would accordingly hold that the present proceeding is not hit by res judicata and the allegations made by the Petitioner are open to examination. 7. Admittedly, the opposite party No. 3 was a temporary employee of the establishment of the Revenue Divisional Commissioner when in January, 1962, he left it. He had, there fore, no title to the post. Rightly his name was no more borne in the Gradation List of employees of the Commissioner's Office. Rule 27 of the Orissa Service Code gives the meaning of "lien" as "title of a Government servant to hold substantively, either immediately or on the termination of a period or periods of absence, a permanent post including a tenure post to which he has been appointed substantively". Rule 66 provides: Unless in any case it be otherwise provided in these Rules, a Government servant on substantive appointment to any permanent post acquires a lien on that post and ceases to hold any lien previously acquired on any other post. The opposite party No. 3 had, therefore, no lien in the post of L.D. Assistant which he held upto 1962 in the Office of the Commissioner. The Orissa Ministerial Service Rules of 1963 framed under Article 309 of the Constitution came into force from April, 1963 and in terms of the said Rules, a Lower Division Assistant in the Office of the Revenue Divisional Commissioner was required to have at least passed Intermediate Examination and also he was to pass a competitive examination to be conducted by the Commissioner. Admittedly the opposite party No. 3 did not possess the requisite educational qualification, nor had be passed the prescribed examination. Once it is found that the opposite party No. 3 had no lien in the post of L.D. Assistant in the Office of the Commissioner, his subsequent appointment must be considered to be a new one and in that eventuality, the opposite party No. 3 could only be appointed in terms of the Rules of 1963. It has been the contention of learned Government Advocate for opposite parties 1 and 2 and of Mr. Misra for opposite party No. 3 that Government have power to condone the requirements of qualification, break in service and on equitable grounds direct transfers. It has been the contention of learned Government Advocate for opposite parties 1 and 2 and of Mr. Misra for opposite party No. 3 that Government have power to condone the requirements of qualification, break in service and on equitable grounds direct transfers. It is well settled in law that even if power inheres in Government to make rules, once rules are framed, Government are also bound by the rules. In a country Government by Rule of Law, there can be no scope for the contention that Governmental action can be above law and Government would not be bound by law. We have not been shown any provision in the statutory rules authorising Government to exercise such powers which would authorise the impugned order of June, 1967. 8. We have already indicated the sequence of events following the Government order of June, 1967. As a matter of fact, the Government had already recalled the earlier order upon realisation of the fact that implementing the said order was contrary to law. It is unfortunate that the exact position obtaining in the matter was not placed before this Court. On the other band, a counter affidavit was filed wherein it was indicated that orders of Government were awaited. The records show that the revised order was intended to be issued after Government's intention to revise the order was mentioned before this Court and leave was obtained to revise the same. For reasons not known to us, the matter did not move and for more than a year and 9 months after the order was made, no action was taken to bring to the notice of this Court the altered situation. Nor was it indicated to this Court that giving effect to the Government order would be contrary to the rules holding the field. In the circumstances, this Court rightly came to the conclusion that Government order was being flouted by its subordinates and, therefore, issued a writ of mandamus to gives effect to the Government order. After the writ was issued, there was a serious change in the stand. After all it had to be obeyed and, therefore, resistance was withdrawn and the changed situation was accepted. After the writ was issued, there was a serious change in the stand. After all it had to be obeyed and, therefore, resistance was withdrawn and the changed situation was accepted. We have no doubts in our mind that the opposite party No. 3 cannot be brought to the office of the Revenue Divisional Commissioner particularly to be given a suitable grade having regard to his ability, experience and seniority in his previous service in the cadre. As we indicated sometime back dealing with the case of a Government servant, the importance of an honest and efficient public service needs no emphasis. It is an essential prerequisite to a sound democratic system. It is of fundamental importance that for an honest and efficient public service to exist, there must be a sense of security and contentment on the part of the members thereof. After rules are made to cover the field, power cannot be exercised by Government as the employer in a manner contrary, to the provisions of the rules. 9. We are aware of the position that the Petitioner is a temporary employee and is liable to be removed from service upon termination by notice. His removal in this case is, however, on a stated ground namely to accommodate the opposite party No. 3. It is well settled that if exigencies of the service required termination of the Petitioner's employment, he would have no grievance to make being a temporary employee. But as we have already found, the opposite party No. 3 was not entitled to revert to the office and consequently to accommodate such a person, the Petitioner could not be asked to make room. Governmental action which is now impugned is the outcome of a writ issued from this Court. We have already indicated that the plea of res judicata is not available and we are free to examine the matter. On examination, it transpires that all the necessary materials had not been placed before this Court when the earlier case was disposed of and, therefore, the entire matter had not been examined. This Court rightly commented on the conduct of the opposite parties in the said case in not giving separate affidavits. On examination, it transpires that all the necessary materials had not been placed before this Court when the earlier case was disposed of and, therefore, the entire matter had not been examined. This Court rightly commented on the conduct of the opposite parties in the said case in not giving separate affidavits. In paragraph 2 of the judgment it was indicated: The application was filed against three opposite parties, viz., the Director of Land Records and Surveys (opposite party No. 1), the Member, Board of Revenue (Opposite party No. 2) and the State of Orissa (opposite party No. 3). A joint counter has been filed on behalf of the opposite parties by one Mr. N.R. Raghava Rao, Personal Assistant to the Director of Land Records and Surveys, in the Board of Revenue. This is a case where the stand of Government and that of opposite party No. 1 are directly contrary to each other, and separate affidavits should have been filed... If Government had filed their separate counter affidavit, the position known to them, i.e., the order of June, 1967, having, been revoked in the mean time would have been indicated to the Court. In paragraph 4 of the judgment of this Court, it was further stated: ...It is possible to understand that if Government had taken a view subsequently changing their opinion, the implementation of the order might have been deferred. But as stated in the counter affidavit, Government have passed no subsequent orders. What this Court was really looking for was already in existence, but for reasons best known to the opposite parties, it had been kept away from the Court. If Government were experiencing embarrassment for having made the order without leave of the Court, it was open to them to have obtained leave and made their order known to all concerned. It is difficult for us to see any rationale in the conduct of the parties before the Court. In the facts and circumstances of the case, it must be held that the earlier writ issued from this Court is not to be given effect to for the reasons indicated above. We would accordingly hold that the writ of mandamus issued from this Court pursuant to the decision in O.J.C. 24 of 1968 has to be re-called and action taken in compliance with the said writ has to be quashed. We would accordingly hold that the writ of mandamus issued from this Court pursuant to the decision in O.J.C. 24 of 1968 has to be re-called and action taken in compliance with the said writ has to be quashed. The order of 3rd of March, 1968, in our opinion, is the appropriate order, which must be allowed to work. It is open to Government to give effect to the said order by which the opposite party No. 3 is to continue as A.S.O. (Non-Gazetted). 10. The writ application is allowed. The order of termination of the Petitioner's service as directed on 28-5-1970, is quashed. We, however, leave the parties to bear their own costs. B.K. Ray, J. 11. I agree.