Central Administrative Tribunal - Delhi
Shyam Lal Meena vs Municipal Corporation Of Delhi, Govt. ... on 7 September, 2017
1 OA 2601/14
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH
O.A.NO.2601 OF 2014
New Delhi, this the 7th day of September, 2017
CORAM:
HON'BLE SHRI SHEKHAR AGARWAL, ADMINISTRATIVE MEMBER
AND
HON'BLE SHRI RAJ VIR SHARMA, JUDICIAL MEMBER
......
Shyam Lal Meena,
Ex-Teacher (Primary),
SDMC Primary School,
Raj Nagar, Extn.-II,
Palam Colony, New Delhi,
Aged about 42 years,
S/o Sh.Sukhji Meena,
R/o RZF-1147-A,
Gali No.1, Lohia Marg,
F-Block, Raj Nagar-II, Delhi .......... Applicant
(By Advocate: Mr.Anil Singhal)
Vs.
1. Municipal Corporation of South Delhi,
Through its Commissioner,
Jawahar Lal Nehru Marg,
Civic Centre, New Delhi.
2. Director of Education,
Municipal Corporation of South Delhi,
Jawahar Lal Nehru Marg,
Civic Centre, New Delhi.
3. Assistant Director of Education,
Municipal Corporation of South Delhi,
Najafgarh Zone, New Delhi ........ Respondents
(By Advocate:Mr.R.K.Jain)
...
Page 1 of 8
2 OA 2601/14
ORDER
Per Raj Vir Sharma, Member(J):
We have carefully perused the records, and have heard Mr.Anil Singhal, the learned counsel appearing for the applicant, and Mr.R.K.Jain, the learned counsel appearing for the respondents.
2. Applicant-Shyam Lal Meena has filed this Original Application under Section 19 of the Administrative Tribunals Act, 1985, seeking quashing of the order dated 25.2.2014, by which his application for withdrawal of resignation has been rejected by the respondents. The applicant has also assailed the order dated 29.5.2014, by which his representation dated 3.3.2014 seeking reconsideration of the order dated 25.2.2014(ibid) has also been rejected by the respondents.
3. Brief facts of the case, which are not in dispute, are that while serving as a Teacher (Primary) in SDMC Primary School, Raj Nagar, Extension II, Palam Colony, New Delhi, the applicant, vide his application dated 4.11.2013, gave technical resignation from service, as he wanted to contest election to the office of M.L.A. in the State of Rajasthan. By another letter dated 4.11.2013, he requested the respondents to give effect to his resignation from 8.11.2013, and to allow him to rejoin the service in case he lost the election. By another letter dated 8.11.2013, the applicant intimated the respondents that he would not ask for rejoining the service in case he lost the election. The respondents, by office order dated 11.11.2013, accepted the applicant's resignation and relieved him of the duties on 11.11.2013 Page 2 of 8 3 OA 2601/14 (afternoon). As the applicant lost the election, he wanted to rejoin the service and requested the respondents to allow him to withdraw his resignation and to rejoin the service, vide his letter dated 16.12.2013. The respondents, vide order dated 25.2.2014, rejected the applicant's application dated 16.12.2013 seeking withdrawal of resignation. The applicant's representation dated 3.3.2014 to reconsider the order dated 25.2.2014 (ibid) and to allow him to rejoin the service has been rejected by the respondents, vide order dated 29.5.2014. Hence, the present O.A. has been filed by him.
4. The applicant has contended, inter alia, that he has fulfilled the requisite conditions for being permitted withdrawal of the resignation in terms of Rule 26(4) & (5) of the CCS (Pension) Rules,1972, which are made applicable to the employees and officers of the respondent-Municipal Corporation also. In the cases of similarly placed persons, the respondent- Municipal Corporation has acceded to their requests for withdrawal of resignation. Thus, the decision of the respondents rejecting his request for withdrawal of resignation is arbitrary and discriminatory. In support of his contentions, the applicant has relied on the decision of the Hon'ble High Court of Delhi, reported as 118(2005) DLT 665, Nirmal Verma Vs. MCD & Anr.
5. Per contra, the respondents have contended, inter alia, that as the applicant had given an undertaking that he would not ask for rejoining, if he lost the election, and on the basis of that undertaking, his resignation was accepted, the applicant is estopped from asking for withdrawal of resignation Page 3 of 8 4 OA 2601/14 and for rejoining the service, and that the decision in Nirmal Verma Vs. MCD & Anr(supra) is not applicable to his case.
6. Rule 26 of the CCS (Pension) Rules, 1972, which provides, inter alia, that resignation can be permitted to be withdrawn in the discretion of the competent authority, is reproduced below:
26. Forfeiture of service on resignation (1) Resignation from a service or a post, unless it is allowed to be withdrawn in the public interest by the appointing authority, entails forfeiture of past service.
(2) A resignation shall not entail forfeiture of past service if it has been submitted to take up, with proper permission, another appointment, whether temporary or permanent, under the Government where service qualifies.
(3) Interruption in service in a case falling under sub-rule (2), due to the two appointments being at different stations, not exceeding the joining time permissible under the rules of transfer, shall be covered by grant of leave of any kind due to the Government servant on the date of relief or by formal condonation to the extent to which the period is not covered by leave due to him.
(4) The appointing authority may permit a person to withdraw his resignation in the public interest on the following conditions, namely :
(i) 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;
(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 Page 4 of 8 5 OA 2601/14 permission to withdraw the resignation is not more than ninety days;
(iv) that the post, which was vacated by the Government servant on the acceptance of his resignation or any other comparable post, is available.
(5) Request for withdrawal of a resignation shall not be accepted by the appointing authority where a Government servant resigns his service or post with a view to taking up 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 or in or under a body controlled or financed 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.
(7) A resignation submitted for the purpose of Rule 37 shall not entail forfeiture of past service under the Government."
7. It is the claim of the applicant that he has fulfilled the requisite conditions for being permitted withdrawal of the resignation in terms of Sub- Rule (4) of Rule 26 of the CCS (Pension) Rules, 1972. Moreover, it is not the respondents' case that the applicant was ineligible for withdrawal of resignation or not fulfilling any of the conditions, as laid down in Rule 26(4) of the CCS (Pension) Rules, 1972. As disclosed in the counter reply, the request of the applicant was rejected by the respondents only on the basis of the undertaking given by the applicant that he would not ask for rejoining the service, in case he lost the election. The applicant had duly disclosed the purpose for which he tendered the resignation. The resignation did not involve any issue of integrity, efficiency or conduct. The applicant has not been accused of any improper conduct during the intervening period, i.e., from resignation becoming effective and seeking of its withdrawal. It is also not the case of the respondents that Page 5 of 8 6 OA 2601/14 between the date of resignation and the date when the applicant sought permission for withdrawal of resignation, the post of Teacher (Primary) was filled by them. The stand taken by the applicant that he was forced by the respondents to give the undertaking in question has not been disputed by the respondents. The assertion made by the applicant that the respondent- Municipal Corporation had, in the past, acceded to the requests made by similarly placed employees, has also not been disputed by the respondents.
8. In Nirmal Verma Vs. MCD & Anr.(supra), the petitioner was serving as a Head Mistress of M.C.Primary School, Dasghara-I, Delhi, of the respondent/MCD. She sought permission to contest election as Councillor of MCD. Vide letter dated 24th May, 2002, the petitioner tendered her technical resignation, since a person holding an office of profit was barred from contesting Municipal elections. The respondent accepted her resignation with immediate effect, vide oder No.D/AEO/Admn./114/2002. As fate would have it, the petitioner, who contested as a BJP candidate, lost the election. Soon thereafter the petitioner requested the respondent to permit her to withdraw the technical resignation so that she could join back her duties at the earliest. The respondent rejected the petitioner's request. Hence, the writ petition was filed by her before the Hon'ble High Court of Delhi. Referring to its earlier decision in Shobha Ram Vs. MCD [W.P.(C) No.4784/94] and the decisions taken by the respondent-Municipal Corporation in the cases of M.Durgesh Mohan Puria, Rajinider Singh and several others, the Hon'ble High Court of Delhi held thus: Page 6 of 8 7 OA 2601/14
"15. It would, thus, be seen that in the cases cited above and as also in Durgesh Mohanpuria's case, which is the latest case processed after the petitioner's case, the respondents have taken a consistent position that legally it is permissible for them to allow withdrawal of resignation after its acceptance and have followed the practice of restoration of service. In the petitioner's case also accordingly there is no ground made out for adopting a different yeardstick or contrary legal submission to defeat the petitioner's case. Petitioner had also within one month of the acceptance of her resignation and within a week of her losing the election requested for being permitted to withdraw the resignation in accordance with Rule 26(4) of CCS (Pension) Rules. It is not the case of respondents that petitioner was not having a good record or had been guilty of any misconduct or impropriety or it being a case of any doubt on the integrity etc. Denial of reinstatement in service to the petitioner and not treating the petitioner at par with others in the absence of any distinguishing feature, renders the respondents' action arbitrary and tantamount to denial of equality as guaranteed under Article 14 of the Constitution of India. Reference in this regard may be made to Sengara Singh and Ors. v. State of Punjab & Ors., reported at (1983) 4 SCC
225."
Accordingly, the writ petition was allowed and the orders passed by the respondent-Municipal Corporation were quashed by the Hon'ble High Court, with direction to the respondent-Municipal Corporation to process the petitioner's request on the same basis and the legal position as adopted by them in the cases cited in the judgment and to treat the intervening period as dies non.
9. After having given our thoughtful consideration to the facts and circumstances of the present case, in the light of the decision in Nirmal Verma Vs. MCD & Anr(supra), we have no hesitation in holding that the rejection of the applicant's request for being permitted to withdraw the Page 7 of 8 8 OA 2601/14 resignation and to rejoin the service is unsustainable and liable to be interfered with.
10. In view of the foregoing discussion, we quash the impugned orders dated 25.2.2014 and 29.5.2014 and direct the respondents to process and allow the applicant's request for withdrawal of resignation and rejoining the service, by passing necessary orders within three months from today. It is made clear that the intervening period be treated as dies non.
11. Resultantly, the O.A. is allowed to the extent indicated above. No costs.
(RAJ VIR SHARMA) (SHEKHAR AGARWAL) JUDICIAL MEMBER ADMINISTRATIVE MEMBER AN Page 8 of 8 9 OA 2601/14 Page 9 of 8