Central Administrative Tribunal - Delhi
Platoon No. 6 vs Uoi & Ors on 9 May, 2013
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH OA No.3362/2011 New Delhi this the 9th day of May, 2013 HONBLE MR. G. GEORGE PARACKEN, MEMBER (J) HONBLE MRS. MANJULIKA GAUTAM, MEMBER (A) Mahesh Kumar Constable No. 2010. Platoon No. 6 Company B Secretariat Security Force, New Delhi. .Applicant (By Advocate: Sh. M.K. Bhardwaj) V E R S U S 1. UOI & Ors. Through, Secretary Ministry of Home Affairs, North Block, New Delhi. 2. The Director General, Secretariat Security Force, Ministry of Home Affairs, North Block, New Delhi. 3. The Chief Security Officer, Ministry of Home Affairs, North Block, New Delhi. 4. Under Secretary Govt. of India Ministry of Home Affairs, Jaisalmer House 26, Man Singh Road, New Delhi. . Respondents (By Advocate: Shri Hilal Haider) ORDER (ORAL) MR. G. GEORGE PARACKEN, MEMBER(J):
The applicant in this OA is aggrieved by the impugned letter No.A.38016/10/2011-SSO dated 01.08.2011 rejecting his request made vide his letter dated 18.05.2011 to allow him to withdraw his resignation letter dated 28.4.2011 in spite of the fact that he apprised the competent authority of the circumstances under which he was compelled to do so.
2. The case of the applicant is that he submitted his resignation from government service vide his letter dated 28.04.2011 in which he has stated that he intends to contest election for the position of Counsellor in Municipal Corporation, Gurgaon. Respondents readily accepted his resignation with effect from 29.04.2011 vide Office Order of the same date. However, he lost the election and, thereafter, made a representation dated 18.05.2011 to permit him to withdraw his aforesaid resignation letter dated 28.04.2011 and to cancel the acceptance of his resignation letter. However, the respondents, vide impugned order dated 01.08.2011, stated that his request for withdrawal of resignation has been considered in the light of the Rule 26(4) of CCS (Pension) Rules, 1972 but it has not been acceded to.
3. The contention of the applicants counsel is that under Rule 26(4) of CCS (Pension) Rules, 1972, there is no bar on the respondents in accepting his request for withdrawal of resignation. He has also drawn our attention to the aforesaid rule position which is reproduced as under:-
26.(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 become effective and the date from which the request for withdrawal was made, the conduct of the person concerned was in no way improper;
(iii) that the period of absence from duty between the date on which the resignation became effective and the date on which the person is allowed to resume duty as a result of permission to withdraw the resignation is not more than ninety days;
(iv) that the post, which was vacated by the Government servant on the acceptance of his resignation or any other comparable post, is available.
4. He has further stated that the resignation was tendered for compelling reason i.e. to contest in the election in the Municipal Corporation, Gurgaon and that it did not involve any reflection on his integrity, efficiency or conduct. Further, he has submitted that the request for withdrawal of resignation was made as a result of material change in the circumstances which resulted in submission of resignation in as much as he did not succeed in the election. He has also stated that there is no case during the intervening period i.e. from the date on which his resignation became effective and application for withdrawal has been made. His conduct during the said period was proper and unblemished. He has further submitted that he fulfilled all the conditions of the aforesaid rule and he submitted his request for withdrawal of resignation within the stipulated period of 90 days of the date of acceptance of his resignation and the post he vacated is still available.
5. In support of the aforesaid submissions, learned counsel for applicant has also relied upon the judgment of Honble High Court of Delhi in Writ Petition No.3303/2003 Nirmal Verma Versus MCD & Another decided on 18.03.2005. The petitioner therein was working as a Head Mistress of M.C. Primary School, Dasghara-I, Delhi and she sought permission to contest the election as Councillor of MCD. As she lost the election, she requested for withdrawing her resignation. However, the respondents did not allow her request. She filed the aforesaid writ petition before the Honble High Court and it observed as under:-
11. Having noted the factual matrix and the respective contentions and merits thereof, the position which emerges may be summarized as under:-
Respondents had declined the request on the ground of Rule 5 of CCS (Conduct) Rules. The bar under Rule 5 is on participation of Government Servant in politics. A sine qua non is the person bring a Government Servant. In the present case, petitioner had specifically sought permission to contest the election and for this purpose had tendered her resignation whether participated in politics., she was not a Government Servant. The rejection of the request impugned order on account of Rule 5 of CCS (Conduct) Rules, is thus not sustainable was not attracted.
12. The validity of the impugned order has to be judged on the ground taken by the respondents in the impugned order. It cannot be sought to be justified on grounds, which were not taken while rejecting the application. Reference may usefully be made to the judgment of the Supreme Court in Mohinder Singh Gil Vs. The Chief Election Commissioner reported at AIR 1978 Supreme Court 851. The Court observed, when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit and otherwise. Accordingly, the respondents, who did not reject the withdrawal of resignation under Rule 26(4) of CCS (Pension) Rules, cannot now seek to support the same thereunder.
13. This apart there is considerable merit in the petitioners contention that the respondents have dealt with petitioners case in a hostile and discriminatory manner, contrary to the practice and decisions taken by them in the cases of Rajinder Singh, Durgesh Mohan Puria and several others. The decision making process in the case of Durgesh Mohan Puria, where withdrawal of resignation was permitted, reveals that the criteria and the legal stand taken by the respondents was contrary to the stand taken in the present case.
Initially while processing the request of Ms. Durgesh Mohan Puria, the Headquarters (MCD), Administration noted that a case of similar nature namely of the petitioner Smt. Nirmal Verma, had been rejected and a writ petition had been field in this Court. It was suggested that expert legal advice may be obtained in the matter. The Chief Legal Officer considered and examined the case regarding withdrawal of resignation of Smt. Durgesh Mohan Puria. The Chief Legal Officer concluded that the earlier stand, namely, resignation having been accepted and acted upon, could not be withdrawan, was not correct. The request had also been rejected resorting to Rule 5 of the CCS Conduct Rules, which prohibited taking part in political activities. The Chief Law Officer opined that the view that once resignation was accepted and given effect to, it cannot be withdrawn appeared to be not legally correct. Further the appointing authority may permit a person to withdraw his resignation by virtue of Rule 26(4) of CCS (Pension) Rules. The case of Ms. Durgesh Mohan Puria has been reinstated in service.
14. Ms. Durgesh Mohan Puria had also cited the following four cases in her request that where the technical resignations, furnished to contest elections had been permitted to be withdrawan subsequently upon the candidates losing in elections.
The cited incidents were:
(i) Shri Charan Singh Kandera resigned in 1983 and the resignation was accepted on 10.1.1983. At his request he was allowed to join duties vide orders dated 11.2.1983.
(ii) Mr. H.K. Chhillar, IGT, Directorate of Education resigned on 23.4.1991 to contest the elections. He lost the election and requested for withdrawal of his resignation and restoration of service on 16.7.1991. This was accepted on 8.9.1991 and he was reinstated in service.
(iii) Shri Rajinder Singh, Asstt. Teacher contested election from Bawana Assembly Constituency in 1993 as a Janta Dal candidate, after resigning from service. He lost the elections and requested for being taken back on duty which was acceded to.
(iv) Shri Pratap Singh, Assistant of CSS Cadre of Ministry of Home Affairs also sought voluntary retirement w.e.f. 5.11.98 to contest Assembly Elections. His services were also restored on the request made by him on losing in elections.
15. It would, thus, be seen that in the cases cited above and as also in Durgesh Mohan Puria case which is the latest case processed after the petitioners 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 resignation of service. In the petitioners case also accordingly there is no ground made out for adopting a different yardstick on contrary legal submission to defeat the petitioners case. Petitioner had also within a 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. Vs. State of Punjab & Ors. Reported at (1983) 4 SCC 225.
The impugned orders are accordingly not sustainable. Writ of certiorari is issued quashing orders dated 31.5.2002, Annexure P-1 and order dated 10.3.2003 Annexure P-2. As noted earlier petitioners resignation had been accepted on 4.3.2002 and she had sought withdrawal of the same on 1.4.2002. Upon failing to get any administrative relief in representation, petitioner filed writ petition in May, 2003.
In view of the foregoing discussion, the petitioners request for withdrawal of resignation is liable to be processed and allowed on the same basis and the legal position as adopted by respondents in the cases noted earlier. The intervening period is also liable to be treated as dies non as per their precedent. Respondents to process the petitioners case and pass necessary orders within one month from today.
6. The respondents have filed their reply. They have stated that the applicant has submitted his resignation from service for contesting the election and he withdraw it as he lost the election. Therefore, no public interest is involved in the matter to accept his request for withdrawal of his resignation. They have also stated that the views of the Nodal Department i.e. Department of Personnel & Training were also obtained in the matter and it was decided to reject his request to permit to withdraw his resignation in terms of Rules 26(4) of CCS (Pension) Rules, 1972.
7. We have heard learned counsel for the parties.
8. Admittedly, the applicants request for withdrawal of his resignation was rejected in terms of Rule 26 (4) of CCS (Pension) Rules 1972. After considering the factual circumstances of the case in the light of the aforesaid rule, we are convinced that the applicants case is squarely covered by the same. We are also of the considered view that the judgment of the Honble High Court of Delhi in the case of Nirmal Verma (supra) squarely covers the case of the applicant as the factual matrix of that case is identical to that of the applicant herein.
9. In the above facts and circumstances, this OA is allowed and the impugned letter dated 01.08.2011 is quashed and set aside. Consequently, the Respondents are directed to accept the letter dated 18.05.2011 requesting them to permit him to withdraw his resignation letter dated 28.04.2011 forthwith and allow him to join his duty. Respondents shall also pass appropriate order in compliance of the aforesaid directions under intimation to the applicant. No costs.
(Manjulika Gautam) (G.George Paracken) Member (A) Member (J) /jk/