Mohd.Sidiq Nargal vs State

Petitioner was a ManagercumChemist in the Horticulture Department. He proceeded on one month's privilege leave from 23.3.77 allegedly to

attend to his ailing mother in Iran. Later, he extended the leave by four months, which was sanctioned but thereafter stayed away and it is not

known in what circumstances. He submitted his resignation on 4.1.83 and vide communication dt. 1.9.83 of respondent No. 2 (Director), he was

informed that the Govt. had not accepted his resignation. He eventually returned from Iran in 1985 and claims that he submitted his joining report

which was not accepted. He also discloses that he was appointed as Manager on adhoc basis in Horticulture Production and Marketing

Corporation and subsequently he joined SKUAST (SheriKashmir University of Agriculture, Sciences & Technology) where his services was

regularised from 28.9.89.

He also reveals that a corruption case was pending against him and that he was exonerated by GO No:83Home (Vig.) of 91 dt. 5.8.91.

According to him, he thereafter made a representation to the respondents on 30.3.92 requesting them to allow him to join the Horticulture

department and also withdrew his offer of resignation earlier submitted by him. Upon this, his case was recommended by respondent No.2 but

surprisingly, GO No.612Agri of 1992 dt. 11.12.92 was passed accepting his resignation retrospectively from 23.3.77. He also complains of some

promotions made during this period of some of his colleagues in the Horticulture department vide Go No. 346Agri of 1992 dt. 8.7.92 and prays

for quashment of the order whereby his resignation was accepted retrospectively and a direction to the respondents to treat him as an employee of

the Horticulture department.

In the reply filed, it is submitted that the petitioner had voluntarily resigned form his post from 23.3.77, which was not accepted immediately

because of the pendency of a criminal case against him which was settled later in 1992. Moreover, on his return to India, he had accepted

employment first in J&K Horticulture Production and Marketing Corporation and later in SKUAST where he is working as Assistant Professor.

Therefore, his link with the Horticulture department stood terminated otherwise and that he could not be treated in service of the Horticulture

department.

Petitioner's total case is that since he had withdrawn his resignation on 30.3.92 before it was accepted vides GO No. 612Agri of 1992 dt.

11.12.92, therefore, the resignation could not be treated to be effective and final and he was entitled to be treated in service of the Horticulture

department because the resignation of an employee from the post was complete only when accepted. He sought support from AIR 1978 SC

694para 93, AIR 1969 SC 584 and 1982 SLJ 422. His counsel, Mr. Dutta, additionally felt back upon Regulation 55A of Civil Service

Regulation which provides procedure for treating the absence of employees on a stint abroad. He also contented that the petitioner's resignation,

even if held valid, could take effect prospectively from 11.12.92 when it was accepted and not retrospectively form 23.3.77.

Consequently, all that falls for determination is whether resignation submitted by the petitioner was operative and final in the facts and

circumstances of the case.

The word 'resignation' as defined in various dictionaries, means the spontaneous relinquishment of one's right. In relation to an office, it connotes

the act of relinquishing such office or post. In other words, it means to ""cease to hold"" the post and implies to detach, untie or unfasten the binding

knot of link, which holds one to the office or the post.

The act of relinquishment may take different forms or assume a unilateral or a bilateral character depending upon the nature of the office or the

post and the conditions governing it. In any case, the relinquishment of an office or post implies cessation or termination of the bond with the office

or the post and severs the link of the resigner from his office or post to terminate its tenure.

It is a settled proposition that a prospective resignation takes effect from the date, which is fixed for its operation and it can be withdrawn before

that date at any time in the absence of a legal, contractual or a constitutional bar. It is also established that where a Govt. servants resigns from his

post, his service normally stands terminated from the date on which the letter of resignation is accepted by the appropriate Authority.

The moot point is whether a Govt. servant can withdraw his resignation before it is accepted. He can do so on change of his mind but only so

long as he continues in service. Illustratively, where such employee resigns from his post but continues to work on the post till his resignation is

accepted, he can in such a situation withdraw and revoke his resignation before it is accepted. But where the employee by a unilateral action after

putting in his papers, abandons the post and stays away for a number of years without any reason or explanation and feels free of the supervisory

administrative control and takes up employment or goes for a higher education on his own, he cannot be then allowed to turn around and take

advantage of a non action by the Authority concerned by not having accepted his resignation in Hack and white because he serves his links with

the employer and with the post of which he is resigning on his own volition by his unilateral act when eventually tatntamounts to the termination of

his tenure. In such a case, the resignation becomes a fait accompli and cannot await acceptance by the authority. Nor does such a situation leave

any scope for withdrawal of the resignation by the resigner. Therefore, it all depends upon the facts and circumstances of each case and it cannot

be universally held that an employee had an unfettered right to recall his resignation in all events and circumstances and in disregard of his own

conduct and actions.

l/c for petitioner has referred to Para 932 of the Supreme Court judgment reported in AIR 1978 SC 694, which shows that where the

resignation given by a Govt. servant is dependent for its effectiveness on the acceptance by the appropriate Authority, the Govt. servant concerned

had an unqualified right to withdraw the resignation until the same was accepted by the Authority (Union of India Vs. Gopal Chandra). According

to him since the Govt. had refused to accept the petitioner's resignation vide communication dt.1.9.83 on the ground of pending of corruption case

against him and had eventually accepted it on 11.12.92 and that too retrospectively, he was entitled to withdraw it before this date. He alternatively

contended that the petitioner had gone to Iran to prosecute some higher studies and that the Govt. had provided a procedure under regulation 55A

of CSR to provide for such an eventuality and to treat the period spent abroad as diesnon.

It appears to have gone perhaps unnoticed that para 93 of the judgment is the minority judgment of Fazal Ali, (J) and as such, can't taken to be

a law laid down and binding. Moreover, it does not lay down any contrary proposition. All it says is that where a resignation of an employee is

dependent for its effectiveness on the acceptance of the authority, the employee had a right to withdraw it until it was accepted. It cannot be said in

the present case that petitioner's resignation was depending for its operation on the acceptance by the Govt. under any rule or law. The rationale

behind the acceptance of a resignation of a Govt. employee is that the employee by his unilateral act cannot terminate his tenure, because he

remains subject to the disciplinary administrative control of the employer. That's why, the resignation of such employee requires to be accepted.

But this applies in a situation where the employee resigns and continues to remain in service to await acceptance. But where he abandons the post

and the service and takes a trip abroad to take employment or to prosecute higher studies, as the case may be, for years on, he cannot be credited

with any right to recall his resignation when he had himself on his own volition terminated his link with the employer absolutely. I find support for

this view from the principle enunciated in 'Jai Ram's case (AIR1954 SC, 584).

In the present case, petitioner had first proceeded on one month's leave and then extended it to four months and had admittedly gone away to

Iran and had submitted his letter of resignation on 4.1.1983 and had returned to India in 1985, taken the employment in Horticulture Marketing

Corporation and then in SKUAST as Assistant Professor and had resultantly terminated his services in the Horticulture department by his own

action and conduct. Therefore, as long as his resignation had severed his link with the past held by him in the Horticulture department, he could not

be now allowed to capitalize on the inaction by the Govt. of not formally accepting his resignation, before, he thought of withdrawing it. In other

words, he cannot be permitted to have best of the both worlds.

Mr. Dutta's submissions that the petitioner should be treated as a case of a deputation abroad for prosecuting higher studies under regulation

55A of CSR, seems to be an argument in despair. It is not anybody's case mat he was permitted to take any assignment or prosecute any studies,

abroad. Therefore, it is wholly irrelevant to seek shelter under the relevant regulation.

In the result, I hold that a Govt. employee can withdraw his resignation before it is accepted by the Competent Authority only where he

remains in service functioning on the post held by him awaiting acceptance of the resignation. But where he, acting on his own volition unilaterally

abandons the post and service after putting in his resignation and does not subject himself to the disciplinary administrative control of the appointing

authority and stays away from duty and engages himself in a different occupation, be that employment or any higher study, his service and tenure

stands terminated from to date he resigns and his resignation becomes operative forthwith irrespective of when it is accepted by the Competent

Authority. In such a case, subsequent acceptance of the resignation retrospectively would be in order.

On this parity of reasoning, I find no merit in this petition, which is dismissed. However, it is observed that the petitioner presently working as

Assistant Professor in SKUAST, shall be at liberty to seek transfer of his service to the Horticulture department. In that event, recommendations

made by respondent No.2 for his return to the department would deserve consideration by the State department and its concerned functionaries.