Dr. Padma Priya vs State of Tamil Nadu

K.N. Basha, J.—The petitioner has come forward with this Petition seeking the relief of issuance of a Writ of Certiorarified Mandamus,

calling for the records relating to the order in Proceeding Letter No. 55996/B1/08-4 dated 9.4.2009 of the Principal Secretary to Government,

Health and Family Welfare (B1) Department, Secretariat, Chennai-600 009, the 1st respondent herein and quash the same and to direct the 1st

respondent to accept the Resignation Application either dated 8.12.2008 or dated 13.3.2009 of the petitioner forthwith and relieve her

immediately.

The case of the petitioner is that the petitioner was selected by the Tamil Nadu Public Service Commission and appointed as Temporary Dental

Assistant Surgeon vide G.O.(3D) No. 45, Health Department, dated 3.10.1997 and posted as Assistant Surgeon (Dental) to work at the

Government Hospital, Illayangudi, Sivagangai District as per the proceedings dated 8.10.1997 of the 2nd respondent. The petitioner subsequently

reposted at Kuzhithurai and joined duty on 27.11.1997 F.N. ad subsequently, transferred to Tamil Nadu Government Dental College and Hospital

and worked there from June 2000 to April 2003. Thereafter posted as Assistant Surgeon (Dental) in Government Hospital, Nanguneri, Tirunelveli

District.

The further case of the petitioner is that her husband got employment at Abudhabi, U.A.E. During the month of December, 1997. The petitioner

was also selected for appointment in the Ministry of Health, Abudhabi, U.A.E. Therefore, the petitioner applied for ''No Objection Certificate'' to

take up employment in abroad and sanction of leave for employment abroad without pay and allowances. The Government issued necessary order

permitting the petitioner to take up employment at Abudhabi and granting leave for employment abroad without pay and allowances initially for a

period of one year vide G.O.(D) Health and Family Welfare Department, dated 5.9.2003. The petitioner was in abroad from 9.9.2003 to

9.9.2004. Subsequently, yet another order passed in G.O.(D) No. 1159, Health and Family Welfare (B1) Department dated 21.10.2004 granting

sanction of extension of leave for employment abroad without pay and allowances. By virtue of such order, the petitioner was in abroad from

10.9.2004 to 13.7.2006. By an order dated 26.9.2007, the leave was further extended with permission to take up employment in Abudhabi,

U.A.E. Without pay and allowances. Thereafter, the petitioner was in abroad from 14.7.2006 to 12.7.2008. In the order dated 26.9.2007, it is

stated that the petitioner should be relieved from the foreign employment on or before 12.7.2008 and further extension beyond the fifth year will

not be sanctioned on any account and failure to rejoin duty will entail disciplinary action. The petitioner through her representation dated 16.4.2008

expressed her willingness to join duty. A posting order was issued dated 6.5.2008 by the 2nd respondent, posting the petitioner as Assistant

Surgeon (Dental) to Government Hospital, Karyapatti, Virudhunagar District. The petitioner joined duty on 14.5.2008 and thereafter, the

petitioner was transferred and posted as Tutor in Dental Surgery (Oral Pathology) Tamil Nadu Government Dental College and Hospital, Chennai-

3, in the place of one Dr.Nalini Aswanth already resigned as per the proceedings dated 3.7.2008 of the 2nd respondent and the petitioner is

continuing in that post till date.

The petitioner further submits that in view of the employment of her husband in abroad and children are studying in Chennai, the in-laws and her

husband have decided that the petitioner and her children should go and join with her husband in the interest of the better prospects of children.

The petitioner and her husband taken necessary steps for school admissions to children, who are aged about 12 and 8 years respectively, at

Abudhabi, U.A.E. and they joined the school at Abudhabi in the month of April, 2009 and as on date, the children of the petitioner are studying in

a School at Abudhabi, U.A.E. In view of such circumstances, the petitioner has been constrained to submit her resignation letter to the authority

dated 8.12.2008 requesting to accept her resignation and relieve her. The resignation letter was forwarded to the Government in turn, directed the

2nd respondent to examine the same as per Rule 41(A) of General Rule and send proposal to the Government with all required particulars.

The 2nd respondent has sent the aforesaid particulars to the 1st respondent on 6.3.2009. The Government in its order dated 11.3.2009 has

rejected the application of the petitioner seeking for the relief of accepting her resignation on the ground that it cannot be accepted due to dearth of

hands of Medical Officers in Government Hospitals. Thereafter, the petitioner submitted a letter dated 11.3.2009, once again reiterating her

resignation for which, the 3rd respondent in his reply dated 12.3.2009 has directed the petitioner to report duty regularly as per Government

Order dated 11.3.2009. Thereafter, the petitioner who had given a Bond to serve at Rural area for five years or to return the bond amount of Rs.

25,000/- has returned the bond amount of Rs. 25,000/- on 26.8.2003, which was accepted by the Principal of Tamil Nadu Government Dental

College, Chennai-3 as per his letter dated 27.8.2003.

The petitioner once again sent her resignation letter dated 13.3.2009 with the relevant details as per Rule 41(A) of the General Rules to the

Government through the 2nd respondent on the ground of contesting in the ensuing Election, duly marking the advance copies to the authorities.

The 1st respondent in its letter dated 9.4.2009 once again rejected the application for resignation reiterating the earlier reasons stated that in view

of the acute shortage of teaching faculty in Government Medical and Dental institutions. The petitioner has given up her proposal to contest election

in view of the selection and announcement of candidates from all the parties were already over by that time. The petitioner categorically stated in

her affidavit that her only endeavor is to join with her husband and children in the interest of the children who got admission in Abudhabi, U.A.E. In

view of the above said circumstances, the petitioner has constrained to approach this Court, challenging the earlier rejection order of her

resignation dated 11.3.2009, which is merged with the later rejection order dated 9.4.2009.

Mr. Muthukannu, learned Counsel appearing for the petitioner vehemently contended that the petitioner had unblemished record of service and

she has worked wherever she was transferred as per the orders. He would further submit that the petitioner has also shown the genuineness of her

request to accept her resignation on the ground that her husband already employed at Abudhabi and in the interest of having the petitioner along

with her children, who also joined with her husband. The learned Counsel also submitted that even the husband of the petitioner made

arrangements and obtained admissions in the schools for their children at Abudhabi. It is further contended that there is absolutely no legal

impediment for accepting the resignation of the petitioner as the petitioner is entitled to make such application for resignation u/s 41(A) of the

General Rules of the Tamil Nadu State and Subordinate Services Rules. The learned Counsel would further contend that the petitioner as on date

has not been served with any charge memo or facing any enquiry or disciplinary proceedings and as such, there is no justification for rejecting the

application submitted by the petitioner for resignation. It is also contended by the learned Counsel that the only ground on which the two

applications for resignation submitted by the petitioner was rejected is that there was an acute shortage of teaching faculty in Government Medical

and Dental institutions and such ground is unacceptable and unsustainable in law as it is open to the concerned authorities to recruit sufficient faculty

members for the purpose of teaching the students in the Government Medical and Dental Institutions. Therefore, it is contended by the learned

Counsel appearing for the petitioner that the impugned order of rejection of the application for resignation of the petitioner is liable to be quashed.

Per contra, learned Special Government Pleader contended that there is no infirmity or illegality in the impugned order passed by the

respondents rejecting the resignation letter of the petitioner. It is further contended that the respondents require the service of the petitioner as there

is acute shortage of teaching faculty in Government Medical and Dental institutions and as such, the rejection order cannot be stated to be illegal.

I have carefully considered the rival submissions put forth on either side and also perused the materials available on record including the

impugned orders passed by the 1st respondent rejecting the applications of the petitioner seeking for the relief of accepting her resignation.

A perusal of the materials available on records makes it crystal clear that the petitioner had unblemished record of service. It is seen from the

orders that the petitioner has served in different places as she was periodically transferred from one college to another college. The undisputed fact

remains that till date the petitioner was not served with any charge memo or faced any enquiry and no disciplinary proceedings pending against her.

Before proceeding to consider the relief sought for by the petitioner, it is relevant to refer the provision under Tamil Nadu State and Subordinate

Services Rules, namely, 41-A, which is extracted hereunder:

41.A Acceptance of resignation: (a) A Government Servant may resign his appointment by giving notice of not less than three months in writing

direct to the appointing authority with a copy marked to his immediate superior officer. The period of three months notice shall be reckoned from

the date of receipt of such notice by the appointing authority.

(b) The Government servant may withdraw the notice of his resignation before its acceptance. Withdrawal of resignation will not be permitted after

its acceptance by the appointing authority.

(c) The appointing authority shall issue orders on the notice of resignation before the date of expiry of notice, either accepting the resignation from a

date not later than the date of expiry of the notice or rejecting the same, giving the reasons therefor. If no such order is passed, the resignation shall

be deemed to have been accepted on the expiry of the period of notice.

(d) Notice of resignation given by the Government servant shall be accepted by the appointing authority, subject to the condition:

i. That no disciplinary proceeding is contemplated or pending against the Government Servant concerned under Sub-rule (b) of Rule 17 of the

Tamil Nadu Civil Services (Discipline and Appeal) Rules;

ii. That a report from the Director of Vigilance and Anti-Corruption has been obtained to the effect that the enquiry is contemplated or pending

against the Government Servant concerned;

(iii) that no dues are pending to be recovered by the Government from the Government Servant concerned;

iv. That there is no contractual obligation of any kind including contractual obligation to serve the Government during the period in which the

Government servant concerned seeks to resign.

(e) Notwithstanding anything contained in Clause (i) and (ii) of sub-rule(d), where a Government Servant under suspension or against whom

disciplinary or criminal action or vigilance enquiry is pending, seeks to resign, the appointing authority shall examine the nature and gravity of the

case and may accept the resignation, if the case is not such as would warrant rejection of the notice of resignation.

A reading of the above said provision makes it clear that the Government servant is entitled to resign his post by giving notice not less than

three months to the appointing authority. It is not disputed by the respondents that there is any contravention of the provision to Rule 41-A in

respect of giving notice and respect of preferring application for resignation. Rule 41-A also stipulates certain conditions under which resignation of

the Government servant may be liable to be rejected. Those conditions are only in respect of contemplation of any disciplinary proceedings

pending against the Government servant or under the Sub-rule (i) and (ii) of Sub-rule (d) of Disciplinary and Appeal Rules, any report from the

Director of Vigilance and Anti Corruption has been obtained to the effect that the enquiry is contemplated or pending against the Government

servant or any dues are pending to be recovered from the Government servant and lastly, there is any contractual obligation of any kind contractual

obligation to serve the Government during the period in which the Government servant concerned seeks for resignation. It is not the case of the

respondents that the resignation letter of the petitioner was rejected on any one of the conditions enumerated under Rule 41A(d) of the Rules. The

fact remains that the application of the petitioner seeking for the relief of acceptance of the resignation was rejected by order dated 11.03.2009

and 09.04.2009 only on the ground of acute shortage of teaching faculty in the Government Medical and Dental Institutions. This Court is of the

considered view that such ground is not only unwarranted but also unsustainable in law as the same is contrary to the Rule 41 A as the said Rule

does not contemplate the rejection of the application for resignation on the ground of acute shortage of teaching faculty. This Court has no

hesitation to hold that by rejecting the application of the petitioner seeking for the relief of acceptance of resignation, the respondents infringed the

fundamental right of the petitioner. It is needless to state that no person is compelled to work against his/her wish and consent.

In view of the above said reasons, this Court is constrained to quash the impugned orders passed by the 1st respondent dated 11.3.2009 and

9.4.2009. Accordingly, the Writ Petition stands allowed. Consequently, connected Miscellaneous Petition is closed. No costs. The first

respondent is directed to accept the resignation of the petitioner submitted as per her applications dated 8.12.2008 and 13.3.2009 and to relieve

the petitioner from her duty as Tutor in Dental Surgery (Oral Pathology), Tamil Nadu Government Dental College and Hospital, Chennai-3 within

a period of 15 days from the date of receipt of a copy of this Order.