Dr. Ajay Kumar Pathak vs State of Chhattisgarh and Others

Hon''ble Shri Satish K. Agnihotri, J.

(Writ Petition under Article 226/227 of the Constitution of India)

Challenge in this petition is to the order dated 09.11.2009 (Annexure P-1), whereby, the application of the petitioner for voluntary retirement dated 31.10.2009 (Annexure P-2) was passed for voluntary retirement, w.e.f. afternoon of 31.01.2011, without considering the application dated 09.11.2009 (Annexure P-3) seeking withdrawal of the application dated 31.10.2009 (Annexure P-2). The facts, in brief, relevant for adjudication, in narrow compass, is that the petitioner, who was working as Joint Controller, Weights & Measurement, in the State of Chhattisgarh, made an application under the provisions of Rule 42(1)(a) of the Chhattisgarh Civil Services (Pension) Rules, 1976 (for short "the Rules, 1976") on 30.10.2009 for voluntary retirement w.e.f. afternoon 31.01.2010. Thereafter, the petitioner filed an application on 09.11.2009 (Annexure P-3), seeking withdrawal of the earlier application dated 31.10.2009, for voluntary retirement, which was to come into effect w.e.f. 31.01.2010, but despite that the impugned order granting permission for voluntary retirement w.e.f. 31.01.2010 was passed.

Learned counsel appearing for the petitioner submits that when it was clearly mentioned that the petitioner may be retired after completion of three months of notice period w.e.f. 31.01.2010, thus any, application seeking withdrawal of application for retirement before the intended date of retirement, ought to have been accepted. The petitioner was entitled to withdraw the application for voluntary retirement before 31.01.2010. He relies on a decision of the Supreme Court in Balram Gupta v. Union of India & Another1.

Learned State counsel, relying on provisions of subrule (2) of Rule 42 of the Rules, 1976, wherein, it is prescribed that a government servant, who has elected to retire in clause (a) of sub-rule (1) shall be precluded from withdrawing his election subsequently except with the specific approval of such authority on consideration of the circumstances of the case to withdraw the notice given by him, further in the proviso that the request for withdrawal shall be prior to the intended date of his retirement, submits that the impugned order is just and proper warranting no interference.

A constitution Bench of the Supreme Court, in Union of India & Others v. Gopal Chandra Mishra & Others2, defined resignation as under:

`Resignation'' in the dictionary sense, means the spontaneous relinquishment of one''s own right. This is conveyed by the maxim: Resionatio est juies propii spontanea refutatio (See Earl Jowitt''s Dictionary of English Law). In relation to an office, it connotes the act of giving up or relinquishing the office. To "relinquish an office" means to "cease to hold" the office, or to "loose hold of" the office (cf. Shorter Oxford Dictionary); and to "loose hold of office", implies to "detach", "unfasten", "undo or untie the binding knot or link" which holds one to the office and the obligations and privileges that go with it.

In the general juristic sense, also, the meaning of "resigning office" is not different. There also, as a rule, both, the intention to give up or relinquish the office and the concomitant act of its relinquishment, are necessary to constitute a complete and operative resignation (see, e.g. American Jurisprudence, Second Edn., Vol. 15A, page 80), although the act of relinquishment may take different forms or assume a unilateral or bilateral character, depending on the nature of the office and the conditions governing it. Thus, resigning office necessarily involves relinquishment of the office, which implies cessation or termination of, or cutting asunder from the office. Indeed, the completion of the resignation and the vacation of the office, are the casual and effectual aspects of one and the same event.

In Moti Ram v. Param Devi & another3, the Supreme Court observed as under:

As pointed out by this Court, `resignation'' means the spontaneous relinquishment of one''s own right and in relation to an offence, it connotes the act of giving up or relinquishing the office. It has been held that in the general juristic sense, in order to constitute a complete and operative resignation there must be the intention to give up or relinquish the office and the concomitant act of its relinquishment. It has also been observed that the act of relinquishment may take different forms or assume a unilateral or bilateral character, depending on the nature of the office and the conditions governing it. [See: Union of India V. Gopal Chandra Mishra]. If the act of relinquishment is of unilateral character, it comes into effect when such act indicating the intention to relinquish the office is communicated to the competent authority. The authority to whom the act of relinquishment is communicated is not required to take any action and the relinquishment takes effect from the date of such communication where the resignation is intended to operate in praesenti. A resignation may also be prospective to be operative from a future date and in that event it would take effect from the date indicated therein and not from the date of communication. In cases where the act of relinquishment is of a bilateral character, the communication of the intention to relinquish, by itself, would not be sufficient to result in relinquishment of the office and some action is required to be taken on such communication of the intention to relinquish, e.g., acceptance of the said request to relinquish the office, and in such a case the relinquishment does not become effective or operative till such action is taken. As to whether the act of relinquishment of an office is unilateral or bilateral in character would depend upon the nature of the office and the conditions governing it.

Further, in Nand Keshwar Prasad v. Indian Farmers Fertilizers Cooperative Ltd. & Others4, the Supreme Court observed as under:

After giving our careful consideration to the facts and circumstances of the case, it appears to us that the law is well settled by this Court in a number of decisions that unless controlled by condition of service or the statutory provisions, the retirement mentioned in the letter of resignation must take effect from the date mentioned therein and such date cannot be advanced by accepting the resignation from an earlier date when the employee concerned did not intend to retire from such earlier date. It has also been held by this Court it is open to the employee concerned to withdraw letter of resignation before the same becomes effective.

In Balram Gupta1 wherein the fact was that Mr. Gupta made an application for retirement voluntary w.e.f. afternoon on 31.03.1981. He made an application on 24.12.1980 seeking retirement voluntary w.e.f. 31.03.1981, which was accepted on 20.01.1981. Mr. Gupta, made an application for withdrawal of his letter for resignation on 31.01.1981 after the order accepting the application dated 24.12.1980 was passed. The Supreme Court, was considering the identical provision i.e. sub-rule (4) of Rule 48-A of Central Civil Services (Pension) Rules, 1972 (for short "the Rules, 1972"), which is pari materia to sub-rule (2) of Rule 42 of the Rules, 1976.

The Supreme Court, observed that before intended date, the petitioner continued to be a government employee and there cannot be unilateral termination of the same prior thereto. Thus, he was at liberty, independently without subrule (4) of Rule 48-A of the Rules, 1972, as a government servant, to withdraw his notice of voluntary retirement and it stands at par with the letter of resignation, and held :

9...The dissolution would be brought about only on the date indicated, i.e., 31st March, 1981; up to that the appellant was and is a Government employee. There is no unilateral termination of the same prior thereto. He is at liberty, and entitled independently without sub-rule (4) of Rule 48-A of the Pension Rules, as a Government servant, to withdraw his notice of voluntary retirement. In this respect it stands at par with letter of resignation.

Sub-rule (4) of Rule 48-A of the Rules, 1972 reads as under :

Sub-rule (4) of Rule 48-A prevents withdrawal of resignation letter except with the approval of the authority. The said sub-rule (4) provides as follows :

(4) A Government servant, who has elected to retire under this rule and has given the necessary notice to that effect to the appointing authority, shall be precluded from withdrawing his notice except with the specific approval of such authority

Rule 42(2) of the Rules, 1976 reads as under:

42(2). A Government servant who has elected to retire under clause (a) of sub-rule (1) and has given the necessary intimation to that effect to the appointing authority, shall be precluded from withdrawing his election subsequently except with the specific approval of such authority on consideration of the circumstances of the case to withdraw the notice given by him.

Provided that the request for withdrawal shall be prior to the intended date of his retirement.

In view of foregoing, the order dated 09.11.2009, for voluntary retirement w.e.f. 31.01.2010 is quashed, as the application for voluntary retirement was withdrawn on 09.11.2009. As a result, the writ petition is allowed and the petitioner is entitled to all consequential benefits. No order asto costs.