Allahabad High Court
Suresh Singh vs State Of U.P.& Ors. Thorugh Secy. Home ... on 19 September, 2019
Equivalent citations: AIRONLINE 2019 ALL 1893, (2019) 10 ADJ 272 (ALL)
Author: Anil Kumar
Bench: Anil Kumar, Saurabh Lavania
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH A.F.R. Court No. - 3 Case :- SERVICE BENCH No. - 470 of 2003 Petitioner :- Suresh Singh Respondent :- State Of U.P.& Ors. Thorugh Secy. Home Deptt. U.P. And 4 Ors Counsel for Petitioner :- Suresh Kumar,Rama Kant Dixit Counsel for Respondent :- C.S.C. Hon'ble Anil Kumar,J.
Hon'ble Saurabh Lavania,J.
(As per Saurabh Lavania,J.) Heard learned counsel for the petitioner and the learned State Counsel.
By means of the present writ petition, the petitioner has challenged the judgment and order dated 11.12.1997, passed by the State Public Services Tribunal, Lucknow (in short "Tribunal") in Claim Petition No. 626/V/1990 [Suresh Singh v. State of U.P. and others].
Facts, in brief as submitted by the learned counsel for the petitioner, of the present case are to the effect that the petitioner was appointed on the post of Constable in Provincial Armed Constabulary (in short "PAC") on 28.02.1981. Thereafter, the petitioner while was on duty fell ill, as such, he submitted medical certificate to opposite party No. 5-Commandant, 25th Battalion PAC, Raebareli, and the same was not accepted by the opposite party No. 5. The petitioner being aggrieved, annoyed and in frustrated mood, on account of act of opposite party no.5, submitted his resignation letter dated 25.11.1987. In fact, under coercion and duress, the resignation of the petitioner was obtained on 25.11.1987.
Vide order dated, 19.12.1987, the opposite party No. 5 accepted the resignation letter singed by the petitioner. After acceptance of the resignation letter, the leave without pay was sanctioned by the opposite party No. 5 in the following manner:-
"(1) 165 days - 30.01.1987 to 03.07.1987. (ii) 110 days - 30.08.1987 to 18.12.1987."
It is submitted by the learned counsel for the petitioner when the petitioner recovered from illness, his wife submitted a detailed representation in regard to reinstatement of the petitioner in service. The same was rejected by the competent authority vide order dated 25.07.1990 (Annexure No. 20 to the writ petition).
Aggrieved by the order dated 25.07.1990, the petitioner approached the Tribunal by means of the Claim Petition No. 626/V/1990 [Suresh Singh v. State of U.P. and others], which was dismissed vide order dated 11.12.1997 with the following finding:-
"I am, therefore, not prepared to believe the case of the petitioner that resignation letter dated 25.11.1987 was obtained by the opposite party No. 4 from the petitioner under duress and coercion. I, therefore, find no illegality in the order whereby the resignation of the petitioner was accepted by the competent authority.
The petitioner has not filed any application to show that he made any application to opposite party-4 for taking him back in service. In his claim petition he has re referred to the representation contained in Annexure -18 to the claim petition sent to the Chief Minister. In this representation sent by the wife of the petitioner, she had prayed to the Chief Minister that the petitioner may be taken back in service. The opposite parties have denied that any such representation was received by them. The petitioner has not filed any document to show that any such representation was received in the office of the Chief Minister. Even if it is presumed that the petitioner had moved any application before the Inspector General, PAC, for giving him re-employment, the petitioner had no right to get re-employment under the opposite parties and if his representation for taking him back in service has been rejected by the Inspector General of PAC vide his order dated 25.07.1990 contained in Annexure-19 to the claim petition, I do not find any illegality in it. I find that the order contained in Annexure-19 to the claim petition is an administrative order and there is no question of giving any reason for rejecting the representation of the petitioner seeking re-employment because the petitioner has no right to get re-employment under the Provincial Armed Constabulary. Even the learned counsel for the petitioner has not been able to show that the petitioner had any right to get re-employment and any such right of the petitioner has been infringed by the impugned order dated 25.07.1990.
The petitioner has no where mentioned in the claim petition as to where Chabbiley Khan was appointed and when he submitted his resignation and when he was re-employed. It is also not mentioned where the said Chabbiley Khan was posted when his resignation was accepted and where he was posted after re-employment. Thus, there is nothing on record to show that the case of the petitioner is similar to the said Chabbiley Khan. I, therefore, hold that the petitioner has failed to prove that the opposite party No. 3 has in any way discriminated against him when he rejected the representation of the petitioner vide his order dated 25.07.1990 (contained in Annexure-19 to the claim petition) for taking him back in service.
In view of the above considerations, I do not find any merit in the claim petition which is liable to be dismissed."
Learned counsel for the petitioner while challenging the impugned order dated 11.12.1997, passed by the Tribunal submitted that in the present case, the resignation of the petitioner was obtained by way of threat and coercion adopted by the opposite party No. 5, as such, the petitioner may be reinstated in service.
In addition to the aforesaid, the learned counsel for the petitioner placed reliance on the order dated 19.02.2018 passed by this Court in Writ-A No. 34378 of 2005 (Chhabiley Khan v. State of U.P. and others). The order dated 19.02.2018 reads as under:-
"Heard learned counsel for the petitioner and learned Standing Counsel.
This writ petition has been filed by the petitioner seeking direction in the nature of mandamus commanding the respondents to sanction the advance increments of pay in time scale by counting the period of resignation by exercising the power conferred under Regulation 416 of U.P. Police Regulation.
As per the writ petition, the petitioner was appointed on 26.10.1970 as constable in 30th Battalion P.A.C (Provincial Armed Constabulary), Gonda, District Gonda. Subsequently, he resigned from service on 30.7.1979 due to some family problems and his resignation was accepted by the competent authority vide order dated 18.8.1979. Subsequently, the petitioner was again enlisted as constable vide order dated 21.11.1986 and joined his duty on 15.12.1986.
Learned counsel for the petitioner states that the Commandant 25th Battalion P.A.C, Raebareli vide letter dated 11.10.1988 (annexure-4 to the writ petition) recommended to sanction the advance increments of pay to the extent to bring a re-enlisted constable to the stage he would reached on the time scale of constable in the U.P. Police in view of the paragraph 416 of the Police Regulation, but till date no decision has been taken by the concerned respondent.
Under the aforesaid circumstance, the Director General of Police, U.P. Lucknow is directed to consider the grievances of the petitioner and pass the appropriate order in the matter as per the recommendation made by the Commandant 25th Battalion P.A.C Raebareli for which the petitioner is also directed to make fresh representation within two weeks from today, annexing all the relevant documents and orders passed by the concerned authority. In case, the petitioner file representation, the same shall be decided by reasoned and speaking order by the respondent no.4 within a period of three months from the date of production of certified copy of this order.
The writ petition is, accordingly, disposed of."
Reliance placed by learned counsel for the petitioner on the judgment dated 19.02.2018 passed by this Court in Writ-A No. 34378 of 2005 (Chhabiley Khan v. State of U.P. and others) is concerned, the same is not applicable in the facts and circumstances of the present case, as such, the petitioner cannot derive any benefit from it, as in the said case, the petitioner-Chhabiley Khan was enlisted as constable after acceptance of resignation and the writ petition was filed for direction to state-respondents to sanction the advance increments of pay in time scale by continuing the period related to acceptance of resignation and re-enlistment of petitioner as constable.
The learned counsel for the petitioner also placed reliance on the judgment of the Division Bench of this Court passed in the case of Abdul Hamid Vs. District Inspector of Schools, [(2018) 4 UPLBEC 2839].
The aforesaid judgment is also not applicable in the said case, as the Deputy Inspector of Schools (DIOS) after passing the order dated 22.01.1981, holding resignation to be invalid passed another order dated 15.05.1998 holding that resignation to be invalid, passed another order dated 15.05.1998 holding that resignation is valid and the issue for consideration before the Court that whether DIOS is empowered to review its Order. This Court held that DIOS can not review its order and in view of the above, interfered in the order dated 15.05.1998.
Learned counsel for the State while reverting the contention raised by the learned counsel for the petitioner submitted that in the present case, the story set-up by the petitioner for submitting his resignation is wholly incorrect and wrong. The Tribunal after taking into consideration all the facts, dismissed the claim petition of the petitioner. While dismissing the claim petition, the Tribunal recorded findings on the issue of right to re-employment after acceptance of resignation and the story framed by the petitioner for submitting his resignation and held that once the petitioner's resignation has been accepted then he has no locus to withdraw the said resignation.
We have heard the learned counsel for the parties and gone through the record carefully.
Admittedly, the petitioner made a request for re-employment/withdrawal of resignation after acceptance of resignation. It is also admitted position that fact of acceptance of resignation was in the knowledge of the petitioner, as appears from the representation of the wife of the petitioner for re-employment of petitioner, which is on record as Annexure No. 19 to the writ petition, on which the order dated 25.07.1990 (challenged before the Tribunal) was passed, whereby the request for re-employment was rejected.
It is settled proposition of law that once the resignation of an employee/person is accepted then it becomes absolute and cannot be withdrawn.
The word 'Resignation' in relation to an office connotes the act of giving up or relinquishment of the office. To relinquish office means to cease to hold office or to lose hold of the office. Therefore, it means that the employees wants to sever his relation from the employer without any riders and then only it would amount to resignation.
Corpus Juris Secundum Vol. 77 page 311 defines the words 'resign' and 'resignation' as under:-
"RESIGN" To give up; to surrender by a formal act; to yield; to relinquish; to give up one's office or position; to withdrawn from. The word" resign" in its ordinary and usual sense, imports a voluntary act, and has been held not to include the act of one whose continuance in a position has been terminated by death or by induction into the armed forces under th Selective Service Act.
"RESIGNATION. It has been said that "resignation" is a term of legal art, having legal connotation which describe certain legal results. It is characteristically the voluntary surrender of a position by the one resigning, , made freely and not duress, and the word is defined generally as meaning the act of resigning or giving up, as a claim, possession, or position."
In Words and Phrases (permanent Edn.) Vol. 37 at page 473, the word 'Resign' denoting voluntarily act, relinquish to give up, surrender by formal out, yield, relinquish, give up ones' office or position, or withdraw from it. Further at age 436 the word resignation has been define as:-
"To constitute a ' resignation', it must be unconditional and with an intent to operate as such. There must be an intention to relinquish a portion of the term of office accompanied by an act of relinquishment. It is to give back, to give up in a formal manner, an office."
Black's Law Dictionary Sixth Edition Page 1310 defines the resignation as formal renouncement or relinquishment of an office. It must be made with intention of relinquishing the office accompanied by act of relinquishment. It is said that resignatio est juris proprii spontanea refutatio i.e. resignation is spontaneous relinquishment of one's own right thus the term of resignation implies voluntarily surrender of the position by a person resigning and acting freely not under duress and it becomes effective when the authority competent to make appointment accept it.
Moreover the resignation must be unambiguous and where an ambiguous letter of resignation is submitted, the authority should right to the employee to explain or clear the ambiguity instead of proceeding to accept the same. Further, the resignation becomes absolute when it is accepted by the appointing authority, date of communication of acceptance to him is not material.
Once the appointing authority accepts the resignation submitted by the Government servant, it becomes absolute and cannot be withdrawn thereafter. The date on which he was informed of the such acceptance is not material for the purpose till the resignation is accepted by the appropriate authority in consonance with the rules governing the acceptance, the public servant has locus poenitentiae but not thereafter.
Hon'ble Supreme Court while considering the meaning of the word "resigning office" in the case of Union of India etc. Vs Gopal Chandra Misra and others, AIR 1978 SC 694 held as under:-
"In the general juristic: sense, also the meaning of " resigning office" is not different. There also , as a rule, both, the intention to give up or relinquish the office and the concomitant act of its relinquishment, are necessary to constitute a complete and operative resignation (see, e.g. American Jurisprudence, 2nd Edition Volume 15A , page 80) although 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. Thus, resigning office necessarily involves relinquishment of the office , which implies cessation or termination of, or cutting as under from the office . Indeed the completion of the resignation and the vacation of the office , are the causal and effectual aspects of one and the same event."
Further in para 42 of the aforesaid judgment the Hon'ble Apex Court approving the principle of withdrawal before the relationship of the employer and the employee held as under:-
"The general principle that emerges from the foregoing conspectus is that in the absence of anything to the contrary in the provisions governing the terms and conditions of the office post, an intimation in writing sent to the; competent authority by the incumbent, of his intention or proposal to resign his office/post from a future specific date, can be withdrawn by him at any time before it becomes effective, i.e. before it effects termination of the tenure of the office/post or the employment."
In the case of P. Kasilingam V. P.S.G. College of Technology, AIR 1981 SC 789, Hon'ble Supreme Court has held that :-
"It may be conceded that it is open to a servant to make his resignation operative from a future date and to withdraw such resignation before its acceptance. The question as to when a Government servant's resignation becomes effect came up for consideration by this Court in Raj Kumar Vs. Union of India , (1968) 3 SCR 857; ( AIR 1969 SC, 180) . It was held that the services of a Government servant normally stand terminated form the date on which the letter of resignation is accepted by the appropriate authority, unless there is any law or statutory rule governing the conditions of services to the contrary. There is no reason why the same principle should not apply to the case."
In Moti Ram Vs. Param Dev (1993) 2 SCC 725, this Court observed as hereunder:-
"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 Vs. Gopal Chandra Misra (1978) 2SCC 301, 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 the conditions governing it."
In Union of India Vs. Wing Commender T Porthasarathy (2001) 1 SCC 158, the Apex Court has held that when a public servant has tendered resignation his service normally stands terminated from the date on which the letter of his request is accepted by the appropriate authority and the absence of any law or statutory rule governing the condition of his service contrary to the delay not be open to the public servant to withdraw his resignation after it is accepted by the appropriate authority.
In the case of Dr. Prabha Atri Vs. State of U.P. and other, (2003) 1 SCC 701, Hon'ble Supreme Court has observed that letter when constitutes resignation , such a letter , held must be unconditional and intending to operate as such. Where an employee, required to submit his explanation for a certain lapse on his part, while submitting his explanation added that if the explanation was found to be not acceptable he would have no option left but to tender his resignation with immediate effect, held, such a letter did not amount to resignation. At best it could amount to a threatened offer to resign. The words "with immediate effect" in the said letter , held , could not be given undue importance dehors the context tenor of the language used, the purport of the letter and the portion of the letter indicating the circumstances in which the letter was written. Moreover, stopping the domestic enquiry by the management consequent to acceptance of the alleged resignation, held , had not significance in ascertaining the true or real intention of the said letter.
The Supreme Court in (2005) 5 SCC 455, North Zone Cultural Center and another v. Vedpathi Dinesh Kumar has observed that the resignation becomes effective on acceptance even if not communicated. Non Communication of the acceptance does not make the resignation inoperative provided there is in fact on acceptance before the withdrawal when the relevant rules not postulating communication of acceptance as a condition precedent for coming into effect of resignation. Employee tendering resignation with immediate effect and employer accepting the same on the same day but communicating the acceptance to the employee after 13 days. During the intervening period, the employee withdrawing his resignation. Such delay of mere 13 days, held , not an undue delay so as to infer that resignation had not already been accepted. Even the continued attendance to duty and signing of attendance register by the said employee during the intervening period held, of no assistance to claim that the resignation had not taken effect. More so, when there was no responsible officer in the office during that time and taking the advantage of that situation the employee had marked his attendance, hence the High Court's decision holding that communication of the acceptance of resignation subsequent to withdrawal of the resignation by the employee had become redundant was held improper.
Recently, the Hon'ble Apex Court in judgment passed in the case of Air India Express Ltd. Vs. Gurdarshan Kaur Sandhu reported in 2019 SCC Online SC 1082, summarized the legal portion on the issue of withdrawal of resignation. The relevant paras are reproduced as under:-
"12. The circumstances under which an employee can withdraw the resignation tendered by him and what are the limitations to the exercise of such right, have been dealt by this Court in a number of decisions.
A] In Jai Ram v. Union of India; AIR 1954 SC 584, the concerned Government servant was to attain age of 55 years on 26.11.1946. He applied on 07.05.1945 for leave preparatory to retirement in terms of Fundamental Rule 86. The request was finally allowed and he was given 6 months' leave which was to expire on 25.05.1947. Ten days before such expiry i.e. on 16.05.1947, he sent an intimation that he would resume his duties which request was rejected. The submission that the age of retirement was 60 years was rejected by this Court. The submission that in terms of Rule 56(b)(i) of Chapter IX of the Fundamental Rules, if found efficient, he could have continued till he attained the age of 60 years, was rejected. It was observed that when a public servant himself expresses his inability to continue in service any longer and seeks permission for retirement, the required exercise in terms of said Rule 56(b)(i) to decide whether to continue him beyond the age of 55 years was rightly not undertaken and the age of retirement for him would be 55 years. In the context whether he could apply for resuming duties on 16.05.1947, it was observed by the Constitution Bench of this Court,:--
"It may be conceded that it is open to a servant, who has expressed a desire to retire from service and applied to his superior officer to give him the requisite permission, to change his mind subsequently and ask for cancellation of the permission thus obtained; but he can be allowed to do so long as he continues in service and not after it has terminated.
As we have said above, the plaintiff's service ceased on the 27th of November 1946; the leave, which was allowed to him subsequent to that date, was post-retirement leave which was granted under the special circumstances mentioned in F. R. 86. He could not be held to continue in service after the 26th of November 1946, and consequently it was no longer competent to him to apply for joining his duties on the 16th of May 1947, even though the post-retirement leave had not yet run out. In our opinion, the decision of the Letters Patent Bench of the High Court is right and this appeal should stand dismissed."
B] In Raj Kumar v. Union of India; (1968) 3 SCR 857, an officer belonging to the Indian Administrative Service tendered resignation and addressed a letter to the Chief Secretary to the Government of Rajasthan on 30.08.1964 that it may be forwarded to the Government of India with remarks of the State Government. The State Government recommended that the resignation be accepted and on 31.10.1964 the Government of India requested the Chief Secretary to the State Government "to intimate the date on which the appellant was relieved of his duties so that a formal notification could be issued in that behalf". Before the date could be intimated and formal notification could be issued, the officer withdrew his resignation by letter dated 27.11.1964. On 29.03.1965 an order accepting his resignation was issued. The challenge raised by the officer was rejected and the High Court held that the resignation became effective on the date the Government of India had accepted it. While dismissing the appeal, a Bench of three Judges of this Court observed:--
"The letters written by the appellant on August 21, 1964, and August 30, 1964, did not indicate that the resignation was not to become effective until acceptances thereof was intimated to the appellant. The appellant informed the authorities of the State of Rajasthan that his resignation may be forwarded for early acceptance. On the plain terms of the letters, the resignation was to become effective as soon as it was accepted by the appointing authority. No rule has been framed under Article 309 of the Constitution which enacts that for an order accepting the resignation to be effective, it must be communicated to the person submitting his resignation.
Our attention was invited to a judgment of this Court in State of Punjab v. Amar Singh Harika (AIR 1966 SCR 1313) in which it was held that an order of dismissal passed by an authority and kept on its file without communicating it to the officer concerned or otherwise publishing it did not take effect as from the date on which the order was actually written out by the said authority; such an order could only be effective after it was communicated to the Officer concerned or was otherwise published. The principle of that case has no application here. Termination of employment by order passed by the Government does not become effective until the order is intimated to the employee. But where 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. Undue delay in intimating to the public servant concerned the action taken on the letter of resignation may justify an inference that resignation has not been accepted. In the present case the resignation was accepted within a short time after it was received by the Government of India. Apparently the State of Rajasthan did not immediately implement the order, and relieve the appellant of his duties, but the appellant cannot profit by the delay in intimating acceptance or in relieving him of his duties."
C] In Union of India v. Gopal Chandra Mishra; (1978) 2 SCC 301, the issue for consideration was whether a High Court Judge, who had by letter in his own hand writing sent to the President intimated his intention to resign the office with effect from a future date would be competent to withdraw the resignation before the date had reached? The decisions in Jai Ram; AIR 1954 SC 584 and Raj Kumar; (1968 3 SCR 857), were considered and while dealing with the scope of clause(a) of the proviso to Article 217 of the Constitution, the Constitution Bench of this Court stated:--
"20. Here, in this case, we have to focus attention on clause (a) of the proviso. In order to terminate his tenure under this clause, the Judge must do three volitional things: Firstly, he should execute a "writing under his hand". Secondly, the writing should be "addressed to the President". Thirdly, by that writing he should "resign his office". If any of these things is not done, or the performance of any of them is not complete, clause (a) will not operate to cut short or terminate the tenure of his office.
22. It may be observed that the entire edifice of this reasoning is founded on the supposition that the "Judge" had completely performed everything which he was required to do under proviso (a) to Article 217(1). We have seen that to enable a Judge to terminate his term of office by his own unilateral act, he has to perform three things. In the instant case, there can be no dispute about the performance of the first two, namely: (i) he wrote a letter under his hand, (ii) addressed to the President. Thus, the first two pillars of the ratiocinative edifice raised by the High Court rest on sound foundations. But, is the same true about the third, which indisputably is the chief prop of that edifice? Is it a completed act of resignation within the contemplation of proviso (a)? This is the primary question that calls for an answer. If the answer to this question is found in the affirmative, the appeals must fail. If it be in the negative, the foundation for the reasoning of the High Court will fail and the appeals succeed.
13. The tenor and the effect of resignation were then considered in paragraph 28 and it was held that the letter in question was merely an intimation or notice to resign the office on a future date and it was open to withdraw the resignation before the arrival of the indicated future date. The observations were:--
"28. The substantive body of this letter (which has been extracted in full in a foregoing part of this judgment) is comprised of three sentences only. In the first sentence, it is stated: "I beg to resign my office as Judge, High Court of Judicature at Allahabad." Had this sentence stood alone, or been the only content of this letter, it would operate as a complete resignation in praesenti, involving immediate relinquishment of the office and termination of his tenure as Judge. But this is not so. The first sentence is immediately followed by two more, which read : "I will be on leave till July 31, 1977. My resignation shall be effective on August 1, 1977." The first sentence cannot be divorced from the context of the other two sentences and construed in isolation. It has to be read along with the succeeding two which qualify it. Construed as a whole according to its tenor, the letter dated May 7, 1977, is merely an intimation or notice of the writer's intention to resign his office as Judge, on a future date viz. August 1, 1977. For the sake of convenience, we might call this communication as a prospective or potential resignation, but before the arrival of the indicated future date it was certainly not a complete and operative resignation because, by itself, it did not and could not, sever the writer from the office of the Judge, or terminate his tenure as such.
14. The Court went on to state the principles as:--
"41. The general principle that emerges from the foregoing conspectus, is that in the absence of anything to the contrary in the provisions governing the terms and conditions of the office/post, an intimation in writing sent to the competent authority by the incumbent, of his intention or proposal to resign his office/post from a future specified date can be withdrawn by him at any time before it becomes effective, i.e. before it effects termination of the tenure of the office/post or the employment.
50. It will bear repetition that the general principle is that in the absence of a legal, contractual or constitutional bar, a "prospective" resignation can be withdrawn at any time before it becomes effective, and it becomes effective when it operates to terminate the employment or the office-tenure of the resignor. This general rule is equally applicable to government servants and constitutional functionaries. In the case of a government servant/or functionary/who cannot, under the conditions of his service/or office, by his own unilateral act of tendering resignation, give up his service/or office, normally, the tender of resignation becomes effective and his service/or office-tenure terminated, when it is accepted by the competent authority. In the case of a Judge of a High Court, who is a constitutional functionary and under proviso (a) to Article 217(1) has a unilateral right or privilege to resign his office, his resignation becomes effective and tenure terminated on the date from which he, of his own volition, chooses to quit office. If in terms of the writing under his hand addressed to the President, he resigns in praesenti, the resignation terminates his office-tenure forthwith, and cannot therefore, be withdrawn or revoked thereafter. But, if he by such writing, chooses to resign from a future date the act of resigning office is not complete because it does not terminate his tenure before such date and the Judge can at any time before the arrival of that prospective date on which it was intended to be effective, withdraw it, because the Constitution does not bar such withdrawal."
15. As regards the applicability of the rule in Jai Ram; AIR 1954 SC 584, it was stated:--
"49. In our opinion, none of the aforesaid reasons given by the High Court for getting out of the ratio of Jai Ram case is valid. Firstly, it was not a "casual" enunciation. It was necessary to dispose of effectually and completely the second point that had been canvassed on behalf of Jai Ram. Moreover, the same principle was reiterated pointedly in 1968 in Raj Kumar case. Secondly, a proposal to retire from service/office and a tender to resign office from a future date for the purpose of the point under discussion, stand on the same footing. Thirdly, the distinction between a case where the resignation is required to be accepted and the one where no acceptance is required, makes no difference to the applicability of the rule in Jai Ram case."
D] In Balram Gupta v. Union of India; 1987 Supp SCC 228, the concerned officer was an accountant in the Photo Division of the Ministry of Information and Broadcasting. While holding that the matter was covered by the decisions of this Court in Raj Kumar; (1968 3 SCR 857) and Gopal Chandra Misra; (1978) 2 SCC 301, this Court considered the relevant guidelines and observed:
"12. In this case the guidelines are that ordinarily permission should not be granted unless the officer concerned is in a position to show that there has been a material change in the circumstances in consideration of which the notice was originally given. In the facts of the instant case such indication has been given. The appellant has stated that on the persistent and personal requests of the staff members he had dropped the idea of seeking voluntary retirement. We do not see how this could not be a good and valid reason. It is true that he was resigning and in the notice for resignation he had not given any reason except to state that he sought voluntary retirement. We see nothing wrong in this. In the modern age we should not put embargo upon people's choice or freedom. If, however, the administration had made arrangements acting on his resignation or letter of retirement to make other employee available for his job, that would be another matter but the appellant's offer to retire and withdrawal of the same happened in such quick succession that it cannot be said that any administrative set-up or arrangement was affected. The administration has now taken a long time by its own attitude to communicate the matter. For this the respondent is to blame and not the appellant."
E) The principles laid down in Union of India v. Gopal Chandra Misra; (1978) 2 SCC 301 have since then been followed by this Court in P. Kasilingam v. P.S.G. College of Technology; (1981) 1 SCC 405, Punjab National Bank v. P.K. Mittal; 1989 Supp (2) SCC 175, Moti Ram v. Param Dev; (1993) 2 SCC 725, Power Finance Corpn. Ltd. v. Pramod Kumar Bhatia; (1997) 4 SCC 280, Nand Keshwar Prasad v. Indian Farmers Fertilizers Coop. Ltd.; (1998) 5 SCC 461, J.N. Srivastava v. Union of India; (1998) 9 SCC 559, Union of India v. Wing Commander T. Parthasarathy; (2001) 1 SCC 158, Shambhu Murari Sinha v. Proect & Development India Ltd.; (2002) 3 SCC 437, Bank of India v. O.P. Swarnakar; (2003) 2 SCC 721, Reserve Bank of India v. Cecil Denis Solomon; (2004) 9 SCC 461, Srikantha S.M. v. Bharath Earth Movers Ltd.1, Secy., Technical Education, U.P. v. Lalit Mohan Upadhyay; (2007) 4 SCC 492, New India Assurance Company Ltd. v. Raghuvir Singh Narang; (2010) 5 SCC 335 and Union of India v. Hitendra Kumar Soni; (2014) 13 SCC 204.
F) In Punjab National Bank v. P.K. Mittal9 a permanent officer in the bank sent a letter of resignation on 21.01.1986 in terms of Regulation 20 of PNB (Officers) Service Regulation, 1979, which was to become effective on 30.06.1986. By communication dated 07.02.1986, he was informed that his resignation was accepted with immediate effect. The resignation was withdrawn by the officer on 15.04.1986. The issue therefore arose in the context of said Regulation 20, whether the officer could withdraw the resignation. Regulation 20 was as under:
"20.(1) Subject to sub-regulation (3) of Regulation 16, the bank may terminate the services of any officer by giving him three months' notice in writing or by paying him three months' emoluments in lieu thereof. (2) No officer shall resign from the service of the bank otherwise than on the expiry of three months from the service on the bank of a notice in writing of such resignation:
Provided further that the competent authority may reduce the period of three months, or remit the requirement of notice.
16. The submission that Clause 2 of Regulation 20 and its proviso were intended only to safeguard the bank's interest and as such the bank could accept the resignation before the date when it was to come into effect was rejected by this Court in following terms:
7. Dr. Anand Prakash emphasises that as clause (2) and its proviso are intended only to safeguard the bank's interests they should be interpreted on the lines suggested by him. We are of the opinion that clause (2) of the regulation and its proviso are intended not only for the protection of the bank but also for the benefit of the employee. It is common knowledge that a person proposing to resign often wavers in this decision and even in a case where he has taken a firm decision to resign, he may not be ready to go out immediately. In most cases he would need a period of adjustment and hence like to defer the actual date of relief from duties for a few months for various personal reasons. Equally an employer may like to have time to make some alternative arrangement before relieving the resigning employee. Clause (2) is carefully worded keeping both these requirements in mind. It gives the employee a period of adjustment and rethinking. It also enables the bank to have some time to arrange its affairs, with the liberty, in an appropriate case, to accept the resignation of an employee even without the requisite notice if he so desires it. The proviso in our opinion should not be interpreted as enabling a bank to thrust a resignation on an employee with effect from a date different from the one on which he can make his resignation effective under the terms of the regulation. We, therefore, agree with the High Court that in the present case the resignation of the employee could have become effective only on or about 21-4-1986 or on 30-6-1986 and that the bank could not have "accepted" that resignation on any earlier date. The letter dated 7-2-1986 was, therefore, without jurisdiction.
8. The result of the above interpretation is that the employee continued to be in service till 21-4-1986 or 30-6-1986, on which date his services would have come normally to an end in terms of his letter dated 21-1-1986. But, by that time, he had exercised his right to withdraw the resignation. Since the withdrawal letter was written before the resignation became effective, the resignation stands withdrawn, with the result that the respondent continues to be in the service of the bank. It is true that there is no specific provision in the regulations permitting the employee to withdraw the resignation. It is, however, not necessary that there should be any such specific rule. Until the resignation becomes effective on the terms of the letter read with Regulation 20, it is open to the employee, on general principles, to withdraw his letter of resignation. That is why, in some cases of public services, this right of withdrawal is also made subject to the permission of the employer. There is no such clause here. It is not necessary to labour this point further as it is well settled by the earlier decisions of this Court in Raj Kumar v. Union of India, Union of India v. Gopal Chandra Misra and Balram Gupta v. Union of India.
17. It is thus well settled that normally, until the resignation becomes effective, it is open to an employee to withdraw his resignation. When would the resignation become effective may depend upon the governing service regulations and/or the terms and conditions of the office/post. As stated in paragraphs 41 and 50 in Gopal Chandra Misra; (1978) 2 SCC 301, "in the absence of anything to the contrary in the provisions governing the terms and conditions of the office/post" or "in the absence of a legal contractual or constitutional bar, a ''prospective resignation' can be withdrawn at any time before it becomes effective". Further, as laid down in Balram Gupta; 1987 Supp SCC 228, "If, however, the administration had made arrangements acting on his resignation or letter of retirement to make other employee available for his job, that would be another matter.""
Thus, considering the settled proposition of law on the issue of withdrawal of resignation, as stated hereinabove and admitted facts of the present case to the effect that the petitioner submitted his resignation from service on 25.11.1987, on personal grounds and the same was accepted by the opposite party No. 5 on 19.12.1987 and acceptance of resignation was in the knowledge of the petitioner and thereafter, for withdrawal of the resignation, the representation was submitted, on which order dated 25.07.1990 was passed, whereby the request of re-employment made in the representation was rejected, we are of the view that after acceptance of resignation, it was not open for the petitioner to withdraw the same subsequently. Hence, there is no illegality or infirmity in the impugned order dated 11.12.1997, passed by the Tribunal in Claim Petition No. 626/V/1990 [Suresh Singh v. State of U.P. and others], which is under challenge in the present writ petition.
Resultantly, the writ petition lacks merits. Hence, dismissed. No order as to costs.
Order Date :- 19.9.2019 Arun/-Court No. - 3
Case :- SERVICE BENCH No. - 470 of 2003 Petitioner :- Suresh Singh Respondent :- State Of U.P.& Ors. Thorugh Secy. Home Deptt. U.P. And 4 Ors Counsel for Petitioner :- Suresh Kumar,Rama Kant Dixit Counsel for Respondent :- C.S.C. Hon'ble Anil Kumar,J.
Hon'ble Saurabh Lavania,J.
C.M. Application No. 64323 of 2016 [Application for Recall] and C.M. Application No. 64324 of 2016 [Application for Condonation of Delay].
Heard on the applications in questions.
Finding reasons to be bonafide, both the applications are allowed.
Order dated 12.04.2016, dismissing the writ petition for want of prosecution, is recalled.
The writ petition is restored to its original number.
Order Date :- 19.9.2019 Arun/-