Central Administrative Tribunal - Lucknow
Sher Singh Parmar vs Pensions And Pensioners Welfare on 5 November, 2024
CAT,Lucknow Bench OA No. 332/00080 of 2022 Sher Singh Parmar Vs. U.O.I. &Ors.
CENTRAL ADMINISTRATIVE TRIBUNAL
LUCKNOW BENCH LUCKNOW
Original Application No.00080 of 2022
Order reserved on: 23.10.2024
Order pronounced on: 05.11.2024
Hon'ble Mr. Justice Anil Kumar Ojha, Member-Judicial
Hon'ble Mr. Pankaj Kumar, Member-Administrative
Sher Singh Parmar, S/o Late Shri Hari Singh Parmar, aged about 56
years, education-post graduate, occupation-retired, religion-Hindu,
address-c/o Mr. Prashant Shukla, 7, Tilak Marg, Dalibagh, Lucknow
(U.P.) PIN-226001
.....Applicant
By Advocate: Shri Rahul Mishra
VERSUS
1. Union of India through Secretary to the Government of India,
Department of Pensions and Pensioners Welfare, Ministry of
Personnel, Public Grievances and Pensions, Lok Nayak Bhawan,
Khan Market, New Delhi - 110003.
2. Revenue Secretary, Government of India, Ministry of Finance,
Department of Revenue, North Block, New Delhi 110001.
3. Additional Commissioner (P&V) Central Excise, Pune-I
Commissionerate, Pune (Maharashtra).
4. The Chairman, Central Board of Indirect Taxes, Excise & Customs
Room No.243E, 2ndFloor, North Block, New Delhi-110001.
5. Principal Commissioner, GST, Central Excise, Pune (Maharashtra).
6. Secretary to the Government of India, Department of Expenditure,
Ministry of Finance, North Block, New Delhi.
.....Respondents
By Advocate: Smt. Prayagmati Gupta
ORDER
Per Hon'ble Mr. Pankaj Kumar, Member-Administrative In this case relating to resignation, the applicant has sought the following reliefs:
Page 1 of 10
CAT,Lucknow Bench OA No. 332/00080 of 2022 Sher Singh Parmar Vs. U.O.I. &Ors.
"1. To reinstate the applicant in the post of Superintendent, Central Excise and Customs from the date of the acceptance of the resignation/retirement letter, treating the applicant to be in service since the applicant had almost completed 12 years of service and was already due for promotion to the rank of Superintendent as per the ACP (Assured Career Progression) Scheme according to which the employee must automatically be promoted to the next rank after completion of ten years of service in the present post. Full arrears in terms of pay and associated benefits and appropriate amount of interest thereon corresponding to the ranks that the applicant would have held as per the ACP (Assured Career Progression) Scheme since the date of resignation, i.e., Superintendent in year 2001. The department must also be directed to calculate these arrears manually in detail for each year so as to ensure no mistake is made in calculations. No income tax/surcharge be charged/levied on this arrears amount since government has already utilized this amount all these years in terms of non-payment of salary and associated dues to the applicant.
2. To give the applicant a promotion from the date of completion of ten years of service and acceptance of the resignation, namely Superintendent, based on ACP (Assured Career Progression) Scheme, with subsequent corresponding ACP (Assured Career Progression) promotions until the date of reinstatement by the Hon'ble Tribunal.
3. To give the present applicant a promotion as on date, namely Commissioner, based on ACP (Assured Career Progression) Scheme, from the date of acceptance of the resignation until the date of reinstatement by the Hon'ble Tribunal, Commissioner rank's salary and associated benefits, consequent benefits such as regular pension of Commissioner's rank and disability pension as the applicant has 100% disability that was caused due to Abdominal TB as has already been amplified in preceding Paras. Salary and pension be fixed at a rate for Last Rank held as per ACP (Assured Career Progression) which is Superintendent's rank+ next three higher ranks. That is Superintendent + Assistant Commissioner + Deputy Commissioner + Commissioner = Commissioner's Pension.
4. To pay disability monetary benefit/allowances to the applicant with effect from the date on which the applicant was diagnosed as having advanced stage Abdominal TB that amounts to 100% disability.
5. To repay the applicant the excess illegal amount of Rupees 26,643 effected by them, along with an interest thereon with effect from 30-6- 2001.
6. To pay the applicant with retrospective effect the inspector's salary for one full year along with interest thereon for period during which the applicant had to proceed on EOL (Extraordinary Leave without Pay) for one year without pay for treatment of his 100% disability of advanced stage tuberculosis (Tuberculosis Peritonitis) that was caused during and by service conditions under which the applicant had worked in Konkan.
7. Any other appropriate relief to the applicant that the Hon'ble Tribunal may deem fit."
2. The facts of the case are that the applicant, having joined as Inspector Customs & Excise on 17.10.1989 under the respondents, tendered his application for voluntary retirement on 29.11.1999 which Page 2 of 10 CAT,Lucknow Bench OA No. 332/00080 of 2022 Sher Singh Parmar Vs. U.O.I. &Ors. was rejected by the respondents vide order dated 31.05.2000 for not having completed 20 years of qualifying service. The applicant tendered his resignation on 01.01.2001 and again on 19.03.2001 with no favourable response. Finally, he tendered resignation on 18.04.2001 which came to be accepted by the respondents on 02.07.2001 under rule 26(2) of the Central Civil Services (Pension) Rules, 1972 (Pension Rules, hereafter). Aggrieved, the applicant has preferred this OA. 3.1 The applicant's contention is that as his resignation tendered on 18.04.2001 was conditional, it should not have been accepted by the respondents under rule 26(2) which cannot be applied in the case of his conditional resignation. The conditions posed by the applicant were that in future if Government of India comes up with a scheme to grant pension to those officials who resign after having put in more than 10 years of service, or a voluntary retirement scheme (VRS), he shall be entitled to claim such pension or VRS.
3.2 The applicant states that after recovering from his deteriorating health, he applied for withdrawal of resignation on 12.03.2003 which was rejected on 03.09.2003 on the ground that the lapse of time between the acceptance of resignation and its withdrawal was more than 90 days as per rule 26(4)(iii) of the Pension Rules. The applicant requested for treatment of intervening period as study leave on 29.08.2003, 16.09.2003, 18.09.2003 and 30.11.2005, but the Commissioner, Pune rejected the applicant's request on 05.05.2005. Subsequently, the Central Board of Excise and Customs, vide letter dated 20.07.2006 informed the Commissioner of Excise that the decision taken by the Commissionerate does not require any review.
3.3 In the OA, the applicant stated that the lack of legal knowledge and financial resources required to pursue litigation deterred him and he could not approach this Tribunal for justice. However, in the written Page 3 of 10 CAT,Lucknow Bench OA No. 332/00080 of 2022 Sher Singh Parmar Vs. U.O.I. &Ors. submissions filed vide affidavit dated 25.10.2024, the applicant states that since 2001 he has written continuously to the Department and the Union Finance Ministry to intervene and help him rejoin the department. He approached this Tribunal only after the department had finally communicated to him vide their letter dated 23.10.2019 that the matter of rejoining/pension had attained finality.
4. The respondents, on the other hand, state that the applicant's resignation was accepted vide order dated 02.07.2001 with effect from 01.07.2001 under rule 26(1) and the Government of India's decision (2) under rule 26 of the Pension Rules as per the request made by the applicant vide letters dated 01.01.2001, 19.03.2001 and 18.04.2001 for resigning voluntarily from the post of Inspector. The applicant gave letter for withdrawal of resignation on 12.03.2003 after expiry of time period stipulated in rule 26(4)(iii) of the Pension Rules.
5. We have heard both the parties.
6.0 Acceptance of conditional resignation 6.1 The applicant's main contention is that his resignation should not have been accepted by the respondents as it was conditional. In his resignation dated 18.04.2001, the applicant stated as follows:
"Sub: My voluntary resignation from the post of Inspector of Central Excise & Customs.
Ref: My letters dated 01.01.2001 and 19.03.2001. With due respect, I have to state in continuation of my above referred letters that I may kindly be relieved of the post of Inspector of Central Excise and Customs in the forenoon of 02.05.2001, since I have already submitted my application for voluntary resignation more than 3 months back itself as required under the CCS Conduct Rules.
My application dated 19.03.2001 requesting for an extension of my voluntary resignation to 15.07.2001 may kindly be treated as cancelled. I am quitting the aforesaid post with an understanding that as and when Govt. of India if in future comes up with a scheme to grant pension to those Govt. officials who resign after having put in more Page 4 of 10 CAT,Lucknow Bench OA No. 332/00080 of 2022 Sher Singh Parmar Vs. U.O.I. &Ors.
than a period of 10 years of service, I shall be entitled to claim my such pension.
Also, if Govt. of India comes up with a Voluntary Retirement Scheme (VRS) package for those govt. officials who have put in more than 10 years of service, I will be entitled to claim VRS package benefits with retrospective effect, i.e., from the date of my voluntary resignation/ retirement (though I am told verbally by A.O. Pune-I that officially speaking as per present CCS Conduct Rules, my present application cannot be treated as one for voluntary retirement, since the stipulated minimum eligible period of service is 20 years).
Accordingly, I may kindly be given all my legitimate dues due to me from the Department of Customs & Central Excise, Govt. of India, i.e., GPF, uniform allowance etc...."
(emphasis supplied) It is seen from the above that the applicant submitted a request for resignation, but made it conditional on an arrangement which may come up in future and applied with retrospective effect. It is noted that the applicant made the resignation voluntarily with conditions which could, or could not, have come to fruition at a future date but with retrospective effect. It is trite that in a contract the consideration must be lawful. It follows, therefore, that the conditions put forth by the applicant, having no basis as per the rules prevalent at that time but assuming that such conditions would become lawfully feasible at a future date, were at his own risk. A resignation conditional on non-existent law, rules or guidelines is not a conditional resignation, in our view. 6.2 The applicant's resignation was accepted by the respondents vide their order dated 02.07.2001 in the following terms:
"Resignation tendered by Shri Sher Singh Parmar, Inspector, PRO, Central Excise, Pune-I Commissionerate is hereby accepted with effect from 01.07.2001 (FN) under the provisions laid down under Government of India's decision (2) under Rule 26 of CCS Pension Rules."
(emphasis supplied) A perusal of Government of India decision (2) below rule 26 of the Pension Rules reveals the following:
"(2) Procedure to be followed in accepting resignation from service.-
Instructions issued from time to time on resignation have now been consolidated for facility of reference and guidance of all the Ministries/Departments of the Government of India. Page 5 of 10 CAT,Lucknow Bench OA No. 332/00080 of 2022 Sher Singh Parmar Vs. U.O.I. &Ors.
1. Format of resignation. - Resignation is an intimation in writing sent to the competent authority by the incumbent of a post, of his intention or proposal to resign the office/post either immediately or from a future specified date. A resignation has to be clear and unconditional.
2. Circumstances under which resignation should be accepted. - It is not in the interest of Government to retain an unwilling Government servant in service. The general rule, therefore, is that a resignation of a Government servant form service should be accepted, except in the circumstances indicated below :-
(i) Where the Government servant concerned is engaged on work of importance and it would take time to make alternative arrangements for filling the post, the resignation should not be accepted straightaway but only when alternative arrangements for filling the post have been made.
(ii) Where a Government servant, who is under suspension, submits a resignation, the competent authority should examine, with reference to the merit of the disciplinary case pending against the Government servant, whether it would be in the public interest to accept the resignation.
Normally, as Government servants are placed under suspension only in cases of grave delinquency, it would not be correct to accept a resignation from a Government servant under suspension. Exceptions to this rule would be where the alleged offences do not involve moral turpitude or where the quantum of evidence against the accused Government servant is not strong enough to justify the assumption that if the departmental proceedings were continued, he would be removed or dismissed from service, or where the departmental proceedings are likely to be so protracted that it would be cheaper to the public exchequer to accept the resignation. In those cases where acceptance of resignation is considered necessary in the public interest, the resignation may be accepted with the prior approval of the Head of the Department in respect of Groups `C' and `D' posts and that of the Minister-in-charge in respect of holders of Groups `A', and `B' posts. In so far as officers of Groups 'A','B','C' and 'D' cadres of the Indian Audit and Accounts Department are concerned, the resignation may be accepted by the Heads of Departments as designated by the Comptroller and Auditor-General of India. Concurrence of the Central Vigilance Commission should be obtained before submission of the case to the Minister-in-charge/Comptroller and Auditor-General, if the Central Vigilance Commission had advised initiation of departmental action against the Government servant concerned or such action has been initiated on the advice of the Central Vigilance Commission.
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 servants before he is actually relieved of his duties, the normal principal 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.
Page 6 of 10 CAT,Lucknow Bench OA No. 332/00080 of 2022 Sher Singh Parmar Vs. U.O.I. &Ors.
4. ..."
(emphasis supplied) Here we notice inter alia two requirements for acceptance of resignation. One is that it must be unconditional. The other is that it being not in the interest of the Government to retain an unwilling Government servant, the resignation should be accepted as a general principle. These two requirements can come into conflict with each other sometimes. The conflict arises when a conditional resignation is tendered by a person who is unwilling to continue in service. If the condition put forth by the person resigning is as per the rules, it creates a legal obligation for the authority accepting the resignation to fulfil it. If the condition is such that its fulfilment would depend on the rules that might come about at a future date with retrospective effect, i.e., the condition is hypothetical, the accepting authority cannot be held under any obligation to fulfil such condition unless rules allow so. As we have held in paragraph 6.1 above, such recognition based on non-existent or hypothetical law, rules or guidelines cannot be termed as a conditional resignation. An unwilling Government servant can become a liability in discharge of its functions by the administration. If the resignation from an unwilling person is conditional on hypothetical considerations, the competent authority is not barred from accepting such resignation at its discretion, in our view. 6.3 In the case at hand, it is noted that the applicant submitted application initially for voluntary retirement which was rejected by the respondents as not feasible under rules for the reason that the applicant had not completed 20 years of qualifying service required under rule 48- A of the Pension Rules. The applicant, then, tendered his resignation which was accepted by the respondents. It is evident that the applicant was unwilling to continue in Government service. We are unable to find fault with the respondents in accepting the resignation with hypothetical Page 7 of 10 CAT,Lucknow Bench OA No. 332/00080 of 2022 Sher Singh Parmar Vs. U.O.I. &Ors. conditions not based on existing applicable law, rules or guidelines made by the applicant.
7.0 Withdrawal of resignation 7.1 The applicant's other grievance is that his request for withdrawal of resignation and rejoining was not accepted. Rule 26 of the pension Rules deals inter aliawith withdrawal of resignation. Parts of this rule relevant for our examination are extracted 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 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) ...."
(emphasis supplied) Page 8 of 10 CAT,Lucknow Bench OA No. 332/00080 of 2022 Sher Singh Parmar Vs. U.O.I. &Ors. It is seen from the above that a person who has resigned from the service can withdraw his resignation on certain conditions one of which is that the period between the date in 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. 7.2 It is not in dispute that the resignation tendered by the applicant was accepted by the respondents with effect from 01.07.2001. It is also not in dispute that the applicant requested for withdrawal of his resignation vide application dated 12.03.2003, i.e., more than 20 months after the resignation became effective. By this time, the withdrawal of resignation had become time barred in terms of rule 26(4)(iii). Therefore, we do not find any infirmity in rejection of the applicant's request for withdrawal of his resignation by the respondents vide their order dated 03.09.2003 as subsequently confirmed by order dated 20.07.2006. 8.0 Delay 8.1 One other aspect of the case at hand which bothers us is the delay. The applicant's grievance is that his resignation was conditional and should not have been accepted. The respondents accepted the applicant's resignation vide order dated 02.07.2001. The other grievance of the applicant is that his request for withdrawal of resignation was rejected. It is noted that the request for withdrawal of resignation dated 12.03.2003 was rejected by the respondents vide order dated 03.09.2003, and subsequent requests were also rejected vide orders dated 05.05.2005 and 20.07.2006. The applicant has approached this Tribunal after about 21 years of acceptance of his resignation and after about 16 years of rejection of his request for its withdrawal. In the OA, the applicant mentioned lack of legal knowledge and resources as the reasons for the delay. Later, in the rejoinder affidavit and written submissions, the applicant referred to several representations he had Page 9 of 10 CAT,Lucknow Bench OA No. 332/00080 of 2022 Sher Singh Parmar Vs. U.O.I. &Ors. made to the respondents and their rejection vide order dated 23.10.2019 stating that the cause of action arose then.
8.2 It is not the applicant's case that the respondents gave any assurance to him for a favourable consideration of his case in response to his representations. Given this position, we are not convinced by the reasons adduced by the applicant for the delay. We find that the present OA is hit by delay as well.
9.1 In view of the facts and circumstances above, the OA is dismissed.
9.2 Pending MAs, if any, are also disposed of.
9.3 The Parties shall bear their own costs.
(Pankaj Kumar) (Justice Anil Kumar Ojha)
Member (A) Member (J)
Vidya Ben Digitally signed by
Vidya Ben Waghela
Waghela Date: 2024.11.05
11:54:55 +05'30'
Page 10 of 10