Kashmir Singh vs State of Punjab and Others

Tejinder Singh Dhindsa, J.—The petitioner, who was serving as a Social Studies Master in the Department of Education, Punjab, has filed

the instant writ petition impugning the order dated 7.9.2012 at Annexure P11 whereby his claim for withdrawal of resignation prior to its

acceptance has been declined. Further prayer has been raised for issuance of directions to the respondents to re-instate him in service with effect

from the date of offer of resignation made by him and for the grant of all consequential benefits. Brief facts that would require notice are that the

petitioner was initially appointed as an Elementary Teacher in the respondent-Department on 9.12.1992. He was promoted as Social Studies

Master in the year 2004. On 9.1.2012, the petitioner submitted a letter of resignation for contesting the Punjab Vidhan Sabha Elections which

were going to be held on 30.1.2012. However, prior to any decision having been taken on his resignation letter dated 9.1.2012, the petitioner

withdrew his resignation in terms of submitting communication dated 23.1.2012, Annexure P2, and stated that he would join back duties w.e.f.

1.2.2012. Having evoked no response, the petitioner submitted another letter dated 31.1.2012, Annexure P3, for withdrawal of his resignation. As

the petitioner was not being permitted to join back on duty, he submitted a number of representations stating therein that he had already withdrawn

his resignation and, accordingly, he be permitted to join back on duty. Vide letter dated 20.3.2012, the District Education Officer (Secondary

Education), Gurdaspur informed the Principal of the School where the petitioner had been serving i.e. Government Senior Secondary School,

Dhariwal Raina, District Gurdaspur that the request of the petitioner had been duly forwarded to the Director, Education Department, Secondary

Education Punjab on 6.2.2012 and as and when any information is received, the same shall be conveyed. However, on 7.4.2012, the petitioner

received an order dated 27.2.2012 whereby his resignation was stated to have been accepted. The petitioner immediately submitted a

representation dated 9.4.2012 stating therein that the order dated 27.2.2012 had been passed without taking into account the fact that he had

already withdrawn his offer of resignation.

As no action was being taken on his representation dated 9.4.2012, the petitioner approached this Court by filing Civil Writ Petition No. 7521

of 2012 impugning the order dated 27.2.2012 whereby his resignation had been accepted. Such writ petition was disposed of on 25.4.2012 with

a direction to respondent No. 1 to consider the representation dated 9.4.2012 of the petitioner and to pass a speaking order thereupon within a

period of two months. It is in purported compliance of the directions passed by this Court that the impugned order dated 7.9.2012 at Annexure

P11 has been passed by the Secretary to Government Punjab, Department of School Education taking a view that since the petitioner has

tendered his resignation to contest the Punjab Vidhan Sabha Elections to be held during January 2012, the same cannot be construed to be

compelling reasons and as such, he cannot be permitted to withdraw his resignation.

Learned counsel for the parties have been heard at length and pleadings on record have been perused.

It is by now well settled that an offer of resignation will not be complete till the same is accepted by the competent authority. As such, an

employee is entitled to withdraw his resignation before acceptance of the same. Reference in this regard may be made to the judgments of the

Hon''ble Supreme Court in The Secretary, Technical Education, U.P. and Others Vs. Lalit Mohan Upadhyay and Another, Union of India and

Another Vs. Wing Commander T. Parthasarathy, and North Zone Cultural center and Another Vs. Vedpathi Dinesh Kumar,

The facts in the present case are not in dispute. The petitioner had submitted his offer of resignation vide letter dated 9.1.2012, Annexure P1.

He withdrew his resignation vide letter dated 23.1.2012, Annexure P2. The petitioner re-iterated his withdrawal of resignation vide letter dated

31.1.2012, Annexure P3. The categoric averments in this regard made in paras 4 and 5 in the writ petition have been admitted in the joint written

statement filed by the District Education Officer (Secondary Education), Gurdaspur on behalf of respondents 1 to 4. The resignation was accepted

only in terms of order dated 27.2.2012 although conveyed to the petitioner on 7.4.2012. Clearly, acceptance of the resignation of the petitioner on

27.2.2012 after the same already stood withdrawn by the petitioner vide letter dated 23.1.2012, Annexure P2 and 31.1.2012, Annexure P3,

cannot sustain.

A perusal of the impugned order dated 7.9.2012, Annexure P11, whereby his representation dated 9.4.2012 has been rejected would make it

apparent that such decision has been based solely upon a Division Bench judgment rendered by this Court in '' Rajinder Bhushan Vs. The State of

Punjab and Others, . In the case of Rajinder Bhushan (supra), the petitioner therein while working as Chief Agricultural Officer had undoubtedly

submitted his resignation for contesting the Assembly Elections from Sunam Constituency. One of the contentions raised on his behalf was that his

request for withdrawal of resignation had been delivered in the office of the competent authority before the same had been accepted and as such,

since the resignation itself stood withdrawn, there was no occasion for the competent authority to have accepted the same. The Division Bench to

ascertain the factual position had summoned the original record from the office of Director of Agriculture and had recorded a finding of fact that

there was no substance in the plea of the petitioner that his resignation was accepted after the receipt of letter seeking to withdraw the same.

Relevant observations of the Division Bench are contained in para 4 of the judgment and read in the following terms:

In order to resolve the first point, we have seen the original record from the office of the Director of Agriculture relating to acceptance of

resignation. The record has been shown to the learned counsel for the petitioner as well. According to the record, the resignation letter was put up

to the Director or February 26, 1992, with the recommendation of the Deputy Director and on the same day, namely, February 26, 1992, the

Director accepted the resignation and marked the file down to the Deputy Director and so on. It follows that resignation of the petitioner was

accepted on February 26, 1992. We, therefore, find no substance in the plea that resignation was accepted after the receipt of letter seeking to

withdraw the resignation.

Clearly, the judgment of Rajinder Bhushan (supra) is distinguishable on facts and would have no applicability to the facts of the present case.

The impugned order dated 7.9.2012, Annexure P11, suffers from a total non-application of mind. The factual issue as regards the petitioner

having withdrawn his offer of resignation in terms of letter dated 23.1.2012, Annexure P2, and the same position having been re-iterated vide letter

dated 31.1.2012, Annexure P3, prior to acceptance of resignation on 27.2.2012 has not even been touched upon, much less dealt with.

For the reasons recorded above, the present writ petition is allowed. The impugned order dated 7.9.2012, Annexure P11, is quashed. The

petitioner is directed to be re-instated in service with effect from the date he offered to resign i.e. 9.1.2012.

Under the normal circumstances, the principle of ''No work No pay'' would have been invoked by this Court to deny the benefit of arrears of

salary for the period 9.1.2012 till the date of his actual re-in-statement. However, in the light of the peculiar facts of the present case, the petitioner

is also held entitled to the arrears of salary for such period. I take this view for the reason that the petitioner had almost immediately withdrawn his

resignation vide letter dated 23.1.2012. Thereafter, he kept on submitting repeated representations for being permitted to join back on duty. His

resignation stood accepted after withdrawal of the same, vide order dated 27.2.2012 and conveyed to him only on 7.4.2012. The petitioner was,

accordingly, constrained to file Civil Writ Petition No. 7521 of 2012 and the same was disposed of on 25.4.2012 directing the respondents to

take a final decision on his representation dated 9.4.2012 within a period of two months. As no orders were being passed, the petitioner even filed

COCP No. 2250 of 2012 and it was only during the pendency of the contempt proceedings that the impugned order dated 7.9.2012 came to be

passed and conveyed to the petitioner. As such, the present petition is the third round of litigation that has been thrust upon the petitioner. In an

over view of the matter, no fault can be attributed to the petitioner in having not worked against the post. Rather, the petitioner since January, 2012

has been repeatedly calling upon the respondent-authorities to permit him to join on the post in question.

Accordingly, the petitioner upon re-instatement is held entitled to all consequential benefits in the nature of arrears of salary, continuity in

service, seniority etc. Petition allowed in the aforesaid terms.