Sukhdev Singh Chauhan vs Govt. of Punjab and others

D.V. Sehgal, J.—The Petitioner was in the ser vice of the Punjab Government as Librarian in the Education Depart ment since 10th May, 1968. He resigned from service on 31st August, 1985, to contest election from Sherpur constituency (Reserved) Dirtrict Sangrur, in the Punjab Assembly election held on 25th September, 1985. His resignation was accepted by Respondent No. 3 with effect from the same date vide order dated 2nd September, 1985. He was unsuccess ful in the election. He sought permission from Respondent No. 3 to withdraw his resignation vide letter dated 7th October, 1985, Annexure P. 1, which was forwarded by the District Education Officer, Sangure, to Respondent No. 3, vide letter dated 8th October, 1985, Annexure P-2. He however, received no response and consequently sent a notice u/s 80, Code of Civil Procedure, Annexure P-3, to the Respondents, and also sent a subsequent representation dated 16th Jan uary, 1986, Annexure P-4, but no decision was conveyed to him. He, therefore, filed the present writ petition in this Court seeking, inter alia, writ of mandamus for a direction to the Respondents to permit him to withdraw his resignation and to allow him to join service.

The petition has been opposed by the Respondents and a written statement has been filed on their behalf.

I have heard the learned Counsel for the parties. Rule 7.5 of the Punjab Civil Services Rules, Volume-I, inter alia provides as under:

(4) The appointing authority may permit a person to with draw his resignation in public interest on the following conditions, namely:

(i) that the resignation was tendered by the Government em ployee for some compelling reasons which did not involve any rejection on his integrity, efficiency or conduct and the request for withdrawal of the resignation has been made as a result of a mate rial change in the circumstances which originally compelled him to tender the resignation;

(ii) that during the period intervening between the date on which the resignation became effective and the date from which the request for withdrawal was made, the conduct of the person concerned was in no way improper;

(iii) that the period of absence from duty between the date on which the resignation became effective and the date on which the person is allowed to resume duty as a result of permission to withdraw the resignation is not more than ninety days;

(iv) that the aforementioned period of ninety days shall be observed in the manner that the employee concerned should put out in his application for withdrawal of resignation within two months of being relieved and the same should as far as possible be processed within a period of one month; and

(v) that the post, which was vacated by the Government em ployee on the acceptance of his resignation or any other compar able post, is available.

(5) Request for withdrawal of a resignation shall not be ac cepted by the appointing authority where a Government employee resigns his service or post with a view to taking up an appoint ment in or under a private commercial company or in or under a corporation or company wholly or substantially owned or control led by the Government or in or under a body controlled or financ ed by the Government.

(6) When an order is passed by the appointing authority allowing a person to withdraw his resignation and to resume duty, the order shall be deemed to include the condonation of interruption in service but the period of interruption shall not count as qualifying service.

The Petitioner has specifically averred in his petition that he was not actuated to resign because of any relection on his integrity, efficiency or conduct. He applied for withdrawal of the resignation within a period of less than two months of the date of his resignation becoming effective. During the period intervening the date of his resignation and the date when he applied for its withdrawal, his conduct was in no way improper, nor did he tender resignation to take an appointment in or under a private commercial company or in or under a corporation or company wholly or substantially owned or controlled by the Government of India or in a body controlled or financed by the Government. He thus asserts that he fulfilled all the conditions laid down in Sub-rule (4) of Rule 7.5 ibid. In spite of this, Respondent No 3 did not pass any order on his request for withdrawal of resignation. In the written statement the aforementioned averments of the Petitioner have not been denied. It has, however, been submitted that Respondent No. 3 passed a clear order on 2nd December, 1985, to the effect:

Approval for permission to withdraw resignation is not accepted.

The Petitioner specifically mentioned in para 19 of the petition the case of one Dhawa Ram Sub-Inspector, Cooperative Societies, who like the Petitioner resigned from service on 28th August, 1985. His resignation was accepted on 29th August, 1985, by the Registrar, Cooperative Societies, Punjab. He contested the elect ion to the Sangrur Parliamentry Constituency as a candidate of Communist Party of India (Marxist) and was defeated. He applied for permission to withdraw his resignation, which was allowed vide letter dated 11th November, 1985 Annexure P-5. This averment has not been specifically dealt with in the written statement. It has been simply denied for want of know ledge. It should, therefore be deemed to have been admitted.

The learned Counsel for the Petitioner on the basis of the letter Annexure P-5 in the case of Shri Dhawa Ram, Sub Inspector, Coopera tive Societies, contended that the Petitioner has been discriminated against. He was similarly situated as Dhawa Ram, Sub Inspector, in whose case resignation was allowed of the Petitioner a different treatment should be meted out. He asserts that he has not been allowed to with draw the resignation for the sole reason that he contested the election as a Congress-I candidate and after the election Government has been formed by the Shiromani Akali Dal and Congress-I party is in opposition.

6 I have considered the argument raised by the learned Counsel on both the sides. I find substance in this petition, which is to be allowed. When in the case of Shri Dhawa Ram, Sub-Inspector, Co operative Societies, after he unsuccessfully contested the election, during the same period as the Petitioner, he has been allowed to withdraw his resignation, no cogent reason has been put forward by the Respondent why the Petitioner has not been allowed to withdraw his resignation. It is undisputed that he does not incur any of the disqualifications enu merated in Sub-rule (4) of Rule 7.5, ibid. There is no speaking order passed by Respondent No. 3 setting out reasons for not accepting the request of the Petitioner to withdraw his resignation, which Respondents No. 3 has the power under Rule 7.5 to allow. A Division Bench of this Court in Ram Kumar Mann v. The State of Haryana and others C.W.P. No. 1154 of 1984. C.W.P. No. 1154 of 1984 decided on 10th August, 1984, held

Since Smt. Sumitra Devi, an employee placed in a situation similar to the one in which the Petitioner was placed, had been permitted to withdraw the resignation has been re-apointed, the Respondent State cannot be permitted to discriminate against the Petitioner. Respondent No. 3 is, therefore, directed to reinstate the Petitioner with the similar benefits as were granted to Smt. Sumitra Devi in the matter of pay, allowance and seniority etc. However, his appointment would take effect from the date his letter received in the office of the Respondent-Director i.e. May 24, 1982.

In view of the ratio in Ram Kumar Mann''s case (supra) I allow this petition and issuing a writ of mandamus direct the Respondents to permit the Petitioner to withdraw his resignation and allow him to resume duty. The Respondents should issue appropriate order in terms of Sub-rule (6) of Rule 7.5, so as to include the condonation of interruption in service of the Petitioner from the date of his resignation till the date of its withdrawal. The period of interruption shall, however, not count as qualifying service. He shall be entitled to all other consequential benefits on withdrawal of his resignation, which should take effect from the date Respondent No. 3 received letter dated 7th October, 1985, Annexure P-1 from the Petitioner. There shall, however, be no order as to costs.