Ujay Kumar vs State Of Chhattisgarh

Aggrieved by the order dated 11.06.2021, the present writ petition has been filed. Vide the said impugned order, the respondents have rejected the

resignation letter of the petitioner resigning from the post of Lecturer (LB) T Cadre.

Before narrating the facts of the case, it would be relevant at this juncture to reproduce the contents of the impugned order dated 11.06.2021:

Brief facts of the case is that, the petitioner was appointed on the post of Lecturer (P) and got selected vide order dated 03.02.2018. The petitioner

is presently working as Lecturer (LB) at Govt. Higher Secondary School, Jilibandh, Block Khadgawan, District Korea. The petitioner joined his

services on 15.02.2018 and since then he has been continuously rendering his services under the respondents. The services of the petitioner has been

totally unblemished. The petitioner also has completed his probation period and his services subsequently got absorbed with the State Govt. vide order

dated 29.06.2020.

Subsequently, it seems that there was another advertisement which was issued for appointment to the post of Lecturer (P) again in English subject

by way of a direct recruitment. The petitioner after due permission from the authorities applied for the same and participated in the said selection

process. He also got selected and an order of appointment was also issued vide order dated 22.02.2021 and the petitioner has been granted

appointment at Govt. Higher Secondary School, Chilhati, Block Chowki, District Rajnandgaon. Immediately the petitioner tendered his resignation to

the respondent No.2 through proper channel i.e. through the Principal-respondent No.6 on 19.03.2021 requesting the respondents to accept his

resignation as technical resignation so that he can join at the place where he has been issued with a fresh order of appointment.

Since the respondents did not take a decision on the resignation letter, the petitioner filed a writ petition i.e. WPS No.2912 of 2021, however, when

the matter came up for hearing the State counsel informed that the respondents, pending the writ petition, had already taken a decision on 11.06.2021

whereby the resignation letter has been rejected, this led to the withdrawal of the writ petition with liberty to file fresh one challenging the order dated

11.06.2021 and the present writ petition has been filed challenging the impugned order dated 11.06.2021.

The counsel for the petitioner submits that the petitioner has a right to resign from his service and that he cannot be forced to continue in service by

the respondents. It is further contention of the petitioner that the grounds on which the resignation letter has been rejected is also not one which would

be acceptable under the service rules for the reason that it is not for the respondents to decide whether the petitioner should work and whether the

petitioner can go and join at a different place at the same level by way of a fresh appointment or whether the authorities can refuse permitting to

petitioner to join at the new place for the reasons assigned in the impugned order.

On the other hand learned counsel for the State submits that the authorities concerned have taken into consideration the reason for resignation and

found that since the petitioner was moving laterally in the department, there was no reason why the petitioner should resign when he was enjoying

same benefits at the present place of posting, and therefore the impugned order does not warrant any interference.

From the given facts and circumstances, what is admitted is the fact that the petitioner was working as Lecturer (P) and was posted under the

respondent No.6. He applied for appointment as Lecturer (P) in subsequent recruitment process and got appointed under the respondent No.8. The

petitioner immediately submitted his resignation to the respondent No.2 through respondent No.6 which finally stood decided vide impugned order

dated 11.06.2021, an order passed by the respondent No.3.

From the plain perusal of the contents of the impugned order, there does not seem to be any ground or pending departmental enquiry or the

petitioner facing any criminal trial for an act arising out of his employment by which the respondents could have refused to grant resignation. This

further gets fortified from Annexure P/10, a letter issued by the respondent No.6 in this regard.

At this juncture it would be relevant to take note of the recent decision of Supreme Court in case of Sanjay Jain Vs. National Aviation Company

of India Ltd., 2019(14)SCC 492 wherein the Supreme Court relying upon the various authorities dealing with the term “Resignation†in paragraphs

13 to 15 has held as under:

“13. In State of U.P. vs. Achal Singh (supra) the Court observed that it would depend upon phraseology used in the particular provision whether a

prayer for resignation/voluntary retirement require acceptance. Following observations have been made:

In our opinion, whether voluntary retirement is automatic or an order is required to be passed would depend upon the phraseology used in a

particular rule under which retirement is to be ordered or voluntary retirement is sought. The factual position of each and every case has to be seen

along with applicable rules while applying a dictum of the Court interpreting any other rule it should be Pari Materia. Rule 56(2) deals with the

satisfaction of the Government to require a Government servant to retire in the public interest. For the purpose, the Government may consider any

material relating to Government servant and may requisition any report from the Vigilance establishment.

In the State of Haryana (supra), This Court also observed that

9.......some rules are couched in language, which results in an automatic retirement of the employee upon the expiry of the period specified in the

employee’s notice. On the other hand, certain rules in some other departments are couched in the language which makes it clear that even upon

expiry of the period specified in the notice, the retirement is not automatic and an express order granting permission is required and has to be

communicated. The relationship of master and servant in the latter type of rules continues after the period specified in the notice till such acceptance

is communicated and the refusal of permission could also be communicated after three months and the employee continues to be in service. It is the

aforesaid later observations made by this Court, which are squarely applicable to the rule in question as applicable in the State of Uttar Pradesh.â€​

In Dinesh Chandra Sangma v. State of Assam (1977) 4 SCC 441, the provisions of rule 119 of DISI rules came up for consideration. It observed;

15...... It is a cardinal rule of construction that no word should be considered redundant or surplus in interpreting the provisions of a

statute or of a rule Explanation 2 does not say an express or implied term of employment but refers to ""an express or implied term of his contract of

employment"". If the language in Explanation 2 were different, namely, an express or implied term of employment, instead of ""contract of employment"",

the position would have been different. Explanation 2 in Rule 119 albeit a penal rule takes care to use the words contract of employment"" and

necessarily excludes the two categories of employment, namely, the one under the Central Government and the other under the State Government.

Explanation 2 only takes in its sweep the third category of employment where the relationship between the employer and the employee is one

governed by a contract of employment. Since FR 56 is a statutory condition of service which operates in law, without reference to a contract of

employment, there is nothing inconsistent between Rule 119 and FR 56.

The appellant has voluntarily retired by giving three months' notice not in accordance with an express or implied term of his contract of

employment, but in pursuance of a statutory rule. Explanation 2 to Rule 119 makes no mention of retirement under a statutory rule and hence the same

is clearly out of the way. The submission that rule 119 is superimposed on F.R.56 has no force in this case.

The High Court committed an error of law holding that consent of the Government was necessary to give legal effect to the voluntary retirement

of the appellant under F.R.56(c). Since the conditions of FR 56(c) are fulfilled, in the instant case, the appellant must be held to have lawfully retired

as notified by him with effect from 02.08.1976.

In view of the aforesaid enunciation of law and on consideration of the provisions contained in Standing order 18 in the facts and circumstances of

the case, we are of the opinion that appellant has rightly terminated the relationship by serving the requisite notice for resignation. To resign is a right

of an employee who cannot be forced to serve in case he is not willing until and unless there is some stipulation in the rules or in the terms of

appointment or disciplinary proceedings is pending or contemplated which is sought to be avoided by resigning from the services. Thus, we are of the

opinion that the High Court has erred in law in holding otherwise.â€​

Similar view in the past had already been taken in case of Moti Ram Vs. Param Dev, 1993(2)SCC 725 wherein paragraph 16 it has been held as

under:

“16. As pointed out by this Court, 'resignation' means the spontaneous relinquishment of one's own right and in relation to an office, it connotes the

act of giving up or relinquishing the office. It has been held that in the general juristic sense, in order to constitute a complete and operative resignation

there must be the intention to give up or relinquish the office and the concomitant act of its relinquishment. It has also been observed that the act of

relinquishment may take different forms or assume a unilateral or bilateral character, depending on the nature of the office and the conditions

governing it. Union of India v. Shri Gopal Chandra Misra & Ors., [1978] 3 SCR 12 at p. 21). If the act of relinquishment is of unilateral character, it

comes into effect when such act indicating the intention to relinquish the office is communicated to the competent authority. The authority to whom

the act of relinquishment is communicated is not required to take any action and the relinquishment takes effect from the date of such communication

where the resignation is intended to operate in praesenti. A resignation may also be prospective to be operative from a future date and in that event, it

would take effect from the date indicated therein and not from the date of communication. In cases where the act of relinquishment is of a bilateral

character, the communication of the intention to relinquish, by itself, would not be sufficient to result in relinquishment of the office and some action is

required to be taken on such communication of the intention to relinquish, e.g., acceptance of the said request to relinquish the office, and in such a

case the relinquishment does not become effective or operative till such action is taken. As to whether the act of relinquishment of an office is

unilateral or bilateral in character would depend upon the nature of the office and conditions governing it.

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A contract of employment, however, stands on a different footing wherein the act of relinquishment is of bilateral character and resignation of an

employee is effective only on acceptance of the same by the employer. Insofar as Government employees are concerned, there are specific

provisions in the service rules which require acceptance of the resignation before it becomes effective. In Raj Kumar v. Union of India, [1968] 3 SCR

857, it has been held

5...... ""But when a public servant has invited by his letter of resignation determination of his employment, his services normally stand terminated from

the date on which the letter of resignation is accepted by the appropriate authority, and in the absence of any law or rule governing the conditions of

his service to the contrary, it will not be open to the public servant to withdraw his resignation after it is accepted by the appropriate authority. Till the

resignation is accepted by the appropriate authority in consonance with the rules governing the acceptance, the public servant concerned has locus

poenitentiae but not thereafter"".

Given the aforesaid factual matrix of the case and the legal pronouncement referred to in the preceding paragraphs under the service regulations

governing the field, the resignation seems to be that of unilateral character and is not one which can be termed to be a bilateral character. It is always

the right of an employee to decide when to resign from his/her service, if he is not comfort at one place or if he gets better opportunity or better place

of posting by way of another recruitment which he has applied in accordance with law and the rules governing the field. That right which stands

conferred upon an employee cannot be taken away by the employer only for the reason that in the opinion of the employer it may not be beneficial for

the petitioner as compared to what he is presently getting or as compared to what is presently the post that he is holding.

For all the aforesaid reasons and legal pronouncements the impugned order dated 11.06.2021 would not be sustainable and the same deserves to

be and is hereby set aside and the matter stands remitted back to the respondent No.3 to take appropriate decision at the earliest preferably within a

period of 15 days from the date the order is produced before the respondent No.3. The respondent No.3 is expected to take a decision taking into

consideration the observations and judgments referred to in this order.