Smt. Shaheen Kauser Quazi vs State and Others

Ajay Rastogi, J.—Instant intra court appeal is directed against judgment dt.19/07/2001 passed by learned Single Bench whereby writ petition filed by Appellant (Petitioner) assailing order dt. 27/06/1998 (Ann.5) accepting resignation w.e.f. 24/12/1996 despite it being withdrawn vide her letter dt.06/06/1998, was dismissed.

The Appellant was appointed as Teacher Gr.III vide order dt.26/10/1991 (Ann.1) -pursuant to which she joined on 12/11/1991. It appears from the record that she got married in the year 1992 and her husband was serving in Central Reserve Police Force and remained posted at different stations and at one time, she made request for her transfer and posting at Ajmer where her husband was posted; however, when her request was not given any heed and she continued at Gangapur (Bhilwara), it compelled her to tender resignation on 24/12/1996 vide application addressed to the Principal, Senior Secondary School, Gangapur (Bhilwara). But, no action was taken on her application tendering resignation for sufficient long time. It appears that meanwhile when she was able to manage her affairs and responsibility, she reviewed her decision and submitted application (Ann.3) on 06/06/1998 seeking withdrawal of her resignation addressing it to the Principal of the School, pursuant to which she was informed by the Principal vide letter dt.25/06/1998 (Ann.4) that her application dt.24/12/1996 tendering resignation had been sent to the District Education Officer, Bhilwara vide registered post letter dt.26/12/1996; and further action can be sought by her only from District Education Officer. But, when District Education Officer was contacted, it was given out that vide order dt.24-27/06/1998 (Ann.5), after two years her resignation has been accepted w.e.f. 24/12/1996 - pursuant thereto, she stood relieved; and at this stage, she submitted her representation (Ann.6) to the Secretary, Department of Education and when no relief was granted, she approached by way of writ petition which was dismissed by learned Single Bench. Hence intra court appeal.

Main thrust of Counsel for the Appellant is that once application for withdrawal of resignation was submitted on 06/06/1998 much prior to acceptance of her resignation vide order dt.24-27/06/1998, the authority was not justified after two years in accepting her resignation which she tendered way back on 24/12/1996 (Ann.2) and such action of Respondents was wholly arbitrary and is in violation of Article 14 of the Constitution.

Respondents filed reply to writ petition wherein it has been averred that application seeking resignation was accepted w.e.f. 24/12/1996 vide order dt.24-27/06/1998 (Ann.5) and the Respondents were not aware of application seeking withdrawal of her resignation till acceptance whereof; as such once her resignation was accepted vide order impugned, she cannot be held to be justified in now making complaint in regard to withdrawal of her resignation which was never received in their office.

Government Counsel submits that when letter of withdrawal of her resignation which she failed to submit before appointing authority, such action of the authority could not be held arbitrary in accepting her resignation vide order impugned; and learned Single Judge has not committed any error in dismissing writ petition.

This Court has considered contentions advanced by Counsel for parties, and with their assistance, examined material on record. Facts having come on record remain uncontroverted that after the Appellant was appointed in the year 1991 as Teacher Gr.III, she tendered resignation on 24/12/1996 while addressing application to the Principal of School and application for withdrawal of her resignation submitted on 06/06/1998 was also addressed to the Principal, where she was posted and the Principal informed her vide letter dt.25/06/1998 (Ann.4) in response to her letter dt.06/06/1998 seeking withdrawal of resignation that her letter of resignation had been sent to the District Education Officer, Bhilwara through registered post letter No. 331/dt.26/12/1996. However, no action was taken from December, 1996 till resignation was accepted vide order impugned dt.24-27/06/1998 (Ann.5). Thus, it is clear from the letter dt. 25/06/1998 (Ann.4) that application (Ann.3) seeking withdrawal of her resignation was available with Respondents which was submitted by the Appellant on 06/06/1998.

Question arises that if application seeking withdrawal of resignation was received in the office of Respondents on 06/06/1998, was the authority justified in accepting application seeking resignation vide order dt.24-27/06/1998 (impugned) ?

This controversy is no more res integra in view of law settled by Apex Court in Balram Gupta Vs. Union of India (UOI) and Anr, where employee withdrew his voluntary retirement on account of persistent & personal requests from staff members, but prayer for withdrawal of retirement was not allowed on the ground that it had already been accepted by State Government and Rule 48A(4) of Central Civil Service (Pension) rules precluded Government servant from withdrawing his notice except with the specific approval of such authority. Apex Court deprecating the stand taken by the Government, held that it was not proper for the Government not to accede to the request of the employee. As held in Balram Gupta v. Union of India (supra), position of law on the subject is consistently settled that even if voluntary retirement notice is moved by an employee and gets accepted by the authority within the time fixed, before the date of retirement is reached, the employee has locus poenitentiae to withdraw the proposal for voluntary retirement.

It was again considered in Power Finance Corporation Ltd. Vs. Pramod Kumar Bhatia, where a workman applied for voluntary retirement pursuant to the Scheme framed by Corporation to relieve surplus staff. The Corporation vide an order dt.20/12/1994 accepted voluntary retirement of the workman w.e.f. 31/12/1994 subject to certain conditions. However, the Corporation withdrew the Scheme and it was held that order dt.20/12/1994 was conditional and unless the employee is relieved from the duty on fulfillment of those conditions, the order of voluntary retirement or resignation, did not become effective. In para 7, the Apex Court observed that it is now settled legal position that unless the employee is relieved of the duty, after acceptance of the offer of voluntary retirement or resignation jural relationship of the employee & the employer does not come to an end. It was further considered in J.N. Srivastava Vs. Union of India (UOI) and Another, wherein a notice of voluntary retirement was given by an employee on 03/10/1989 which was to come into effect from employee withdrew the notice vide his letter dt.11/12/1989; it was held that withdrawal was permissible though it was accepted by the Government, since it was to be made effective from 31/01/1990 and before that date, it was withdrawn.

Judgments (supra) were consistently referred to by Apex Court and in State Bank of Patiala Vs. Phoolpati, and observed ad infra:

A complete and effective act of resigning office is one which severs the link of the resignor with his office and terminates his tenure. This position was highlighted by a Constitution Bench of this Court in Union of India (UOI) and Others Vs. Gopal Chandra Misra and Others, and reiterated in Balram Gupta Vs. Union of India (UOI) and Anr, J.N. Srivastava v. Union of India 1998 (4) SCC 559 , Nand Keshwar Prasad Vs. Indian Farmers Fertilizers Cooperative Ltd. and Others, and Shambhu Murari Sinha Vs. Project and Development India Ltd. and Another,

Taking note of settled principles of law laid down by Apex Court (supra), in instant case, where application was indeed received in the office of Respondents on 06/06/1998, therefore, their action cannot be held to be justified in accepting application seeking resignation thereafter vide order dt.24-27/06/1998. In our considered opinion, action of Respondents was wholly unwarranted and violative of Article 14 of the Constitution of India.

Submission made by Respondent that application dt.06/06/1998 (Ann.3) was not addressed to the appointing authority is wholly without substance for the reason that once the application tendering resignation was addressed and submitted to the Principal and not to the appointing authority; as such application seeking withdrawal of resignation dt.06/06/1998 was also submitted by her, addressed to the Principal to whom she earlier tendered resignation on 24/12/1996. It clearly manifests from the record that only after her application dt.06/06/1998 seeking withdrawal of resignation was received, the matter was processed and placed before the District Education Officer who accepted resignation vide order impugned dt.24-27/06/1998 after two years with retrospective effect, which cannot be held to be legally sustainable.

Consequently, special appeal succeeds and is hereby allowed. Judgment dt.19/07/2001 of learned Single Judge is set aside. Writ petition stands allowed. Order dt.24-27/06/1998 (Ann.5) accepting resignation of Appellant w.e.f. 24/12/1996 is hereby quashed & set aside. Respondents are directed to reinstate the Appellant in service. However, the Appellant would be entitled for notional benefits flowing therefrom including fixation of pay and seniority etc. Since Appellant had not worked during intervening period, she would not be entitled to pecuniary benefits but the intervening period would be taken note of while computation of qualifying service for pension purposes. The Respondents shall ensure compliance of the order within two months. No order as to costs.