Allahabad High Court
Gangadhara Dasappa vs Union Of India And 3 Others on 3 December, 2021
Author: Suneet Kumar
Bench: Suneet Kumar
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Reserved Court No. - 51 Case :- WRIT - A No. - 6161 of 2021 Petitioner :- Gangadhara Dasappa Respondent :- Union Of India And 3 Others Counsel for Petitioner :- Saurabh Basu Counsel for Respondent :- A.S.G.I.,Rohan Gupta Connected with Case :- WRIT - A No. - 8420 of 2021 Petitioner :- Gangadhara Dasappa Respondent :- Union Of India And 3 Others Counsel for Petitioner :- Saurabh Basu Counsel for Respondent :- A.S.G.I.,Rohan Gupta Hon'ble Suneet Kumar,J.
1. Heard Sri Saurabh Basu, learned counsel for the petitioner and Shri Manish Goyal, learned Senior Counsel assisted by Shri Rohan Gupta, learned counsel appearing for the respondent.
2. It is urged by learned counsel for the parties that both the petitions can be decided together. For the sake of convenience, the facts set out in Writ-A No. 6161 of 2021, is being referred to for deciding the petitions.
3. Petitioner has been a meritorious student having Gold Medal in M.Sc. (Computer Science). He hails from Mysore Karnataka, had applied for Ph.D. with the respondent-Indian Institute of Information Technology, AllahabadI1. In the meantime, petitioner applied for the post of Junior Technical Superintendent. He got selected and was issued appointment letter dated 11 July 2018, in pay band-2, scale Rs.9300-34800 with grade pay at Rs.4200. As per terms of the appointment letter, petitioner was kept on probation for two years from the date of his joining.
4. It appears that petitioner was facing matrimonial dispute with his wife, he became depressed and could not concentrate on his work or pursue higher qualification, accordingly, petitioner tendered his resignation from the post of Junior Technical Superintendent on 21 May 2020. The resignation was accepted by the Competent Authority on 26 May 2020, however, the relieving date was extended to 31 August 2020 vide impugned order dated 27 May 2020, issued by the fourth respondent-Joint Registrar (Establishment). It appears that the relieving was further extended on the request of the petitioner until 18 September 2020, as he had some pending work. Petitioner, thereafter, withdrew his resignation vide communication/letter dated 8 December 2020.
5. In terms of the Department of Personal & Training2, Office Memorandum dated 10 June 2019, the application of the petitioner to withdraw the resignation came to be rejected by the third respondent-Competent Authority, which was communicated by the Joint Registrar (Establishment) vide order dated 29 January 2021.
6. The instant petition raises challenge to the communication dated 27 May 2020 and 29 January 2021.
7. The communication dated 27 May 2020 extends the relieving date, whereas, order dated 29 January 2021 assigned the reason for not permitting the petitioner to withdraw the resignation.
8. In the impugned order, reason assigned for not accepting withdrawal of the resignation by the petitioner is based on a legal opinion that since petitioner is not a confirmed employee or permanent government servant, therefore, he cannot be permitted to withdraw the resignation after the resignation was duly accepted and relieved from service. Relevant portion of the impugned order dated 29 January 2021 reads thus:
"Mr. Gangadhara D. was not a confirmed employee or a permanent government servant and therefore he cannot be permitted to withdraw the resignation. Once it is accepted by the Appointing Authority and he was duly relieved from the services."
This letter is being served to you as per direction of the Competent Authority."
9. Petitioner has placed reliance on the Office Memorandum dated 10 June 2019, issued by DOPT which provides guidelines/instructions that may be followed while considering the request for withdrawal of resignation of the government servant. Para 2(c) of the Office Memorandum provides that an employee can be permitted to withdraw resignation provided the period is not more than ninety days from 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 his duty as a result of permission to withdraw the resignation. The relevant portion of the Office Memorandum is extracted:
"Office Memorandum Subject: Withdrawal of resignation of Central Government servants appointed after 31.12.2003 covered under the National Pension System (NPS) reg.
2. The appointing authority may permit a person to withdraw his resignation in the public interest on the following conditions, namely:
(a) that the resignation was tendered by the Government Servant for some compelling reasons which did not involve any reflection on his integrity, efficiency, or conduct and the request for withdrawal of the resignation has been made as a result of a material change in the circumstances which originally compelled him to tender the resignation;
(b) 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;
(c) 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;
(d) ...... ...... ...... 3. ...... ...... ...... 4. ...... ...... ......
5. No withdrawal from NPS corpus shall be permissible within a period of 90 days from the date on which the resignation becomes effective i.e. the resignation is accepted by the competent authority and the Government servant is relieved of his duties. However, the aforesaid condition shall not be applicable in case of death of the government servant after the resignation becomes effective.
6. The provision for withdrawal of resignation shall not be applicable for temporary Government Servants."
(emphasis supplied)
10. On perusal of the above noted Memorandum, Para-2 mandates that the Appointing Authority may permit a person to withdraw his resignation in public interest on the conditions noted therein. The condition that is being relied upon by the learned counsel for the petitioner is provided in Para 2(c) which mandates that a person would be allowed to resume duty as a result of permission to withdraw the resignation is not more than ninety days from the date on which resignation became effective.
11. It is urged that petitioner was not relieved despite his resignation having been accepted on 26 May 2020, petitioner continued until 18 September 2020. In the intervening period, the deduction for pension was being made, petitioner completed his two year probation period and earned increment in the month of July, 2020. It is urged that petitioner continued on the post as an employee of the IIIT Allahabad. Thereafter, within ninety days from the date of relieving, petitioner submitted an application to withdraw the resignation as same was tendered under compelling circumstances. The settlement of matrimonial dispute in the circumstances was a material change, accordingly, petitioner submitted an application for withdrawal of his resignation. Earlier the matrimonial dispute compelled him to tender his resignation.
12. In the counter affidavit, the facts have not been disputed. The stand taken by the respondent-IIIT Allahabad, is that the petitioner being temporary employee on probation would not be covered by the Office Memorandum dated 10 June 2019. The Memorandum stipulates that the provision of withdrawal of resignation would not be applicable to temporary government servant. It is further stated that since petitioner has tendered unconditional resignation during the period of probation, having being not confirmed, petitioner is not entitled to withdraw the resignation in view of Para (6) of the Office Memorandum dated 10 June 2019. It is further submitted that the effective date is the date of acceptance and not the date of relieving. It is, further, urged that there is no automatic confirmation of probation without an order being passed after assessment of performance.
13. Rival submissions fall for consideration.
14. IIIT Allahabad came to be declared an Institution of Information Technology of national importance under the provisions of the Indian Institute of Information Technology Act, 20143. Section 4 provides that institute referred to in column (5) of the Schedule shall have perpetual succession and a common seal, with power, subject to the provisions of this Act, to acquire, hold and dispose of property, both movable and immovable, and to contract, and shall, by the said name, sue or be sued. IIT Allahabad is one of the institutes in Schedule 5. Section 13 provides for Constitution of Board of Governors of each Institute which shall be the principal executive body of the institute. Section 15 details the powers and functions of Board of Governors which include to create teaching and other academic posts, to determine, by Statutes, the number and emoluments of such posts and to define the duties and conditions of service of teachers and other academic staff.
15. The Board in exercise of power conferred under Section 33 read with Section 34 of IIIT Act with the approval of the Visitor notified the First Statute of IIIT. Statute 10 provides terms and conditions of service of permanent staff. Sub-clause 7 provides that an employee may resign from his or her service by giving the appointing authority three months notice. Sub-clause 7 of Statute 10 reads thus:
"An employee of the Institute may resign from his or her service by giving the appointing authority three months notice:
Provided that the appointing authority may for sufficient reasons, either reduce this period or call upon the employee concerned to continue till the end of the academic session in which the notice is received."
16. It is not being disputed by the respondents that petitioner came to be appointed as a permanent employee of the Institute on the post of Junior Technical Superintendent. The appointment of the petitioner was on probation for two years. The Statute does not provide for automatic confirmation of probation. Further, the respondent placed reliance on the Office Memorandum dated 11 March 2019, issued by DOPT, updating the circular 21 July 2014, pertaining to probation/confirmation. The circular provides that a person appointed on probation in order to assess his suitability for absorption in the service to which he has been appointed. The appointing authority may declare successful completion or extend the period of probation or terminate the services of a temporary employee on probation, on the basis of evaluation of performance. Probation is prescribed when there is direct recruitment
17. On perusal of the Office Memorandum and read with Sub-clause (2) of Statute 10, there is no automatic confirmation upon completion of probation period. A formal order of confirmation, after assessing the performance of the employee is to be issued by the competent authority. It is not being disputed by learned counsel for the petitioner that services of the petitioner came to be confirmed by the competent authority on completion of two year probation period. The case of the petitioner that on completion of probation period, it would tantamount to automatic confirmation is not borne out, either from the Statute or the Memorandum. The terms & conditions of appointment letter dated 11 July 2018, clearly provides that the petitioner shall be on probation for a period of two years from the date of joining and will be confirmed on satisfactory completion of probation. The period of probation can be extended if found necessary. The contention of the learned counsel for the petitioner that the services of the petitioner stood confirmed automatically on completion of the probation period lacks merit, accordingly, rejected.
18. The stand of the respondent that petitioner was a temporary employee, therefore, is not entitled to withdraw the resignation. In my opinion the submission lacks merit. It is not being disputed that petitioner came to be appointed on the regular establishment against a permanent post after following the due process of selection. Service condition of the petitioner is governed under Statute-10 which provides the terms and condition of service of permanent staff. Sub-clause (2) of Statute-10 provides that all appointment to post under the Institute would ordinarily be made on probation for a period of two years. In service jurisprudence, temporary service generally means service of a temporary servant appointed on a temporary post or officiating service in a permanent post under the establishment. A person appointed on direct recruitment is generally appointed on probation and it cannot be said that he is on temporary service. The appointment of a person to a permanent post may be substantive or on probation or on officiating/temporary basis. A substantive appointment to a permanent post confers normally on the person so appointed a substantive legal right to the post. An appointment to a permanent post on probation means that the person so appointed is taken on trial. The period of probation may be for a fixed period, or for any specified period. In the case of an appointment on probation, the person so appointed does not acquire any substantive right to the post even though the post itself be permanent, and it is implied terms of such appointment that it may be terminable at any time. The reason assigned in the impugned order that petitioner is ''not a confirmed employee or a permanent government servant', therefore, he cannot be permitted to withdraw his resignation is untenable. The Office Memorandum dated 10 June 2019 does not employ the expression ''probationer' but applies the expression ''temporary government servants'. In other words, a person on probation can withdraw the resignation. Case of the petitioner has to be considered as to whether falling within ambit of Para-2(c) of the Office Memorandum dated 10 June 2019.
19. In case of a government servant/functionary who cannot, under the conditions of his service/office, by his own unilateral act of tendering resignation, give up his service/office, normally the tender of resignation becomes effective and his service/office tenure gets terminated when it is accepted by the competent authority. An employee is entitled to withdraw his resignation before its acceptance by the competent authority. [Refer: Secretary Technical Education, U.P. v. Lalit Mohan Upadhyay]4
20. The Office Order dated 18 September 2020 notes therein, that resignation of the petitioner tendered vide e-mail dated 21 May 2020, was accepted by the competent authority on 26 May 2020. The petitioner pursuant thereof came to be relieved from a subsequent date i.e. with effect from 18 September 2020. The Office Order dated 18 September 2020 reads thus:
"OFFICE ORDER Mr. Gangadhara D., Junior Technical Superintendent has tendered his resignation due to his personal reasons vide e-mail dated May 21, 2020 which was accepted by the Competent Authority on dated May 26, 2020. Accordingly, he is being hereby relieved from the services of Indian institute of Information technology, Allahabad with effect from 18.09.2020 (A.N.)."
This issues with the approval of the Competent Authority."
21. It is urged by learned counsel for the petitioner that as per Para 2-(c) of Office Memorandum dated 10 June 2019, an employee is entitled to withdraw the resignation within ninety days from the date on which resignation became effective. In other words it is sought to be submitted that since the petitioner came to be relived on 18 September 2020, which would be the date on which resignation became effective. The petitioner had submitted an application to withdraw the resignation on 8 December 2020 i.e. within ninety days from the date of relieving.
22. The question that arises for determination is as to what would be the effective date of resignation mandated in Para-2(c) of the Office Memorandum dated 10 June 2019.
23. The Memorandum is applicable to the government servant/employee who came to be appointed after 31 December 2003. The petitioner admittedly came to be appointed, thereafter, on 11 July 2018. The Memorandum provides that the appointing authority may permit the person to withdraw his resignation in public interest on the conditions stipulated in Para-2. Para-2(c) mandates that a person withdraws the resignation where the period of absence from duty 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. In other words the period when the resignation became effective and the person is allowed to resume duty as a consequence of permission to withdraw the resignation is not more than ninety days.
24. In the facts of the instant case, permission to withdraw the resignation was not granted, and the date of withdrawal of the resignation is 8 December 2020 i.e. within ninety days from the date when the petitioner was relieved i.e. 18 September 2020. In case the date on which resignation became effective is taken as the date of reliving then in that event the application of the petitioner withdrawing his resignation would fall for consideration within the ambit of Para 2(c) of the Office Memorandum dated 10 June 2019. But in case the resignation became effective on the date of acceptance i.e. 26 May 2020, the date of withdrawal of resignation in that event is far beyond ninety days. The question of permission, and/or, resumption of duty does not arise.
25. On a plain reading of Para-2(c) along with the conditions stipulated in the earlier Office Memorandum dated 11 February 1988, governing resignation from service, relied upon by the learned counsel for the petitioner, would make things clear. Para-3 of the Office Memorandum dated 11 February 1988, reads thus:
"OFFICE MEMORANDUM Subject: Resignation from service - Procedure in respect of -
3- A resignation becomes effective when it is accepted and the Government servant is relieved of his duties. If a Government servant who had submitted a resignation, sends an intimation in writing to the appointing authority withdrawing his earlier letter of resignation before its acceptance by the appointing authority, the resignation will be deemed to have been automatically withdrawn and there is no question of accepting the resignation. In case, however, the resignation had been accepted by the appointing authority and the Government - servant is to be relieved from a future date, if any request for withdrawing the resignation is made by the Government servant before he is actually relieved of his duties, the normal principle should be to allow the request of the Government servant to withdraw the resignation. If, however, the request for withdrawal is to be refused, the grounds for the rejection of the request should be duly recorded by the appointing authority and suitably intimated to the Government servant concerned."
(emphasis supplied)
26. The above extracted part of the Memorandum is applicable to the government servants appointed prior to 31 December 2003. The resignation of a person that has been accepted by the appointing authority and the government servant is to be relieved from a future date, if any request for withdrawing the resignation is made by the government servant before he is actually relieved of his duties, the normal principle should be to allow the request of the government servant to withdraw the resignation. In otherwords the Memorandum of 1988 permits a person to withdraw the resignation before the person is relieved.
27. In contrast, the modified Office Memorandum dated 10 June 2019, which would apply to the petitioner, as is being urged by the learned counsel for the petitioner, does not stipulate withdrawal of the resignation made by the employee before he is actually relieved from his duties. The Memorandum confers power upon the Appointing Authority to permit a person to withdraw his resignation in public interest before ninety days from the date on which the resignation became effective. The effective date would be the date of acceptance and not the date of relieving. Once the resignation is accepted by the competent authority, the termination of service in consequence of resignation stands concluded. The relieving date can be postponed in view of Sub-clause (7) of Statute 10. The withdrawal of resignation has to be made by the person within ninety days from the date of acceptance and not later. Accordingly, the Office Memorandum dated 10 June 2019 would not help the petitioner in the given admitted facts.
28. The Supreme Court in Air Express Limited & Ors. v. Captain Gurdarshan Kaur Sandhu5 was of the opinion that mere delay in reliving someone form their duties does not impact the acceptance of their resignation.
29. Having regard to the admitted facts, inter se, parties, it is admitted that the petitioner came to appointed after 31 December 2003, in the year 2018, therefore, the provisions of, Memorandum of 10 June 2019 would apply and not the provisions of Office Memorandum dated 11 February 1988, which is applicable to the government servant appointed prior to 31 December 2003. On a careful reading of the provisions mandated in two Memorandums, it is explicit that the acceptance of resignation in so far as petitioner is concerned would be the date on which resignation became effective i.e. the date of acceptance and not the date on which the government servant was relived.
30. Accordingly, the writ petition (6161/2021) being devoid of merit is, accordingly, dismissed.
31. In writ petition (8420/2021) petitioner has raised challenge to the advertisement/notification dated 01.06.2021 advertising the post of Junior Technical Superintendent falling vacant consequent upon the resignation of the petitioner.
32. The writ petition fails being consequential outcome of the order passed in writ no. 6161/2021.
33. Accordingly, the writ petition is dismissed.
34. No Cost.
Order Date :- 3.12.2021 Mukesh Kr./K.K. Maurya