Ishwar Chand Gupta vs State of Haryana

S.S. Sudhalkar, J.—The petitioner was earlier serving in the Army. In the year 1976, he was discharged on compassionate grounds and was thereafter appointed as a Clerk with the respondents, as an Ex-serviceman. He was promoted as Sub Divisional Clerk.

On 10.1.2000, the petitioner submitted an application for voluntary retirement in order to contest the assembly elections. The election was held on 22.2.2000. The petitioner lost in that elections. On 30.3.2000, the petitioner made a request for withdrawal of the request for voluntary retirement. On 30.3.2000, the application was accepted and the petitioner was allowed to join his duty and he, therefore, rejoined. The petitioner thereafter applied for adjustment of his period of absence as leave of the kind due and to refund Rs. 17,176/- deposited by him in lieu of three months'' notice pay. The application was accepted and the period of absence was adjusted as ''leave of the kind due'' and the refund was made vide order dated 1.6.2000. Meanwhile, the incumbent holding the post of General Manager, Irrigation, Haryana was transferred and the new incumbent joined his place. On 15.9.2000, the new officer issued a show cause notice to the petitioner as to why his services should not be dispensed with. The petitioner replied to the same. However, by the impugned order dated 10.5.2001, copy annexure P/10, the petitioner''s services were dispensed with. In the impugned order, it has been mentioned that the Government instructions do not provide that an employee who leaves the service in order to contest election, should be taken back/re-appointed to his original post and has relied on the judgment of this Court in the case of Kartar Singh v. State of Haryana, Civil Writ Petition No. 6580 of 1994, decided on 24.2.1998. This judgment is also reported in 1998(2) S.C.T. 724.

Learned counsel for the petitioner has relied on the decision of Division Bench of this Court in Letters Patent Appeal in the case of Kasturi Lal Sugar v. D.A.V. College of Education and Ors. reported as 1998(2) SCT 106 (P&H)(DB) : 1998(2) RSJ 269. It has been held therein that the appellant had a right to withdraw the resignation before the expiry of three months period, stipulated in the notice. It was further held that the intention or proposal was to resign from a future specified date and the request could be withdrawn before it could actually become effective. It was held that the learned Single Judge was not right in holding that the respondent could have withdrawn the resignation only before its acceptance.

Here in the present case, the petitioner had voluntarily retired for participation in the elections. Learned counsel for the petitioner has argued that the retirement was not accepted and therefore, the petitioner could re-join again. The application seeking voluntary retirement is dated 10.1.2000. However, copy of the order dated 17.2.2001, copy annexure P/11 shows that he was permitted to retire voluntarily from Government service w.e.f. 23.1.2000. It appears from the application of the petitioner dated 26.5.2000, Annexure P/4 that the petitioner has asked for the refund of his advance pay. It is mentioned therein that he had deposited advance pay worth Rs. 17,176/- to take voluntary retirement on attaining the age of 55 years. This shows that the petitioner had an intention to retire before the statutory notice period. The period, of course, could not have been before the date of election, which the petitioner contested.

This being the position, the petitioner stood retired before the date of election. Even his contesting the election would show that the petitioner had accepted the retirement before the date of election. In view of this position, the judgment in the case of Kasturi Lal Sagar (supra) does not come to the rescue of the petitioner. The retirement had already become effective before the date of election and, therefore, the question of withdrawal after the election cannot arise.

The case of Kartar Singh (supra) is regarding the compelling or overwhelming reason for submitting the resignation and for withdrawing the same. It has been held by the Full Bench in that case as under :-" 15. After hearing the learned counsel for the parties, we are of the view that the contention of the learned counsel for the petitioner is devoid of any merit. The only reason which has been given by the petitioner for submitting resignation was that he wanted to contest the election to the Haryana Legislative Assembly. This cannot be said to be a compelling or overwhelming reason to submit his resignation. After the same is accepted the incumbent has to show that the resignation may be allowed to be withdrawn as he had submitted his resignation under some compelling circumstances. According to the learned counsel for the petitioner, the compelling circumstances have to be for withdrawing the resignation after the same has been accepted. We do not agree with the learned counsel. According to our considered view, the petitioner who alleges himself to be belonging to a poor family i.e. being a member of Scheduled Caste and is wholly and solely dependent on his service, would not have, as a reasonable and prudent person, thought of resigning his service only for the purpose of contesting the election. At least this ground could not be accepted to be covered under the expression "overwhelming/compelling reasons". As observed above, the compelling/overwhelming reasons are to be seen at the time the incumbent puts in his resignation.

In view of the above reasons, this writ petition is devoid of merits and is dismissed.

Petition dismissed