Delhi High Court
Mandeep Singh vs Union Of India And Ors on 18 December, 2020
Equivalent citations: AIRONLINE 2020 DEL 1693
Author: Rajiv Sahai Endlaw
Bench: Rajiv Sahai Endlaw, Asha Menon
`* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 18th December, 2020
+ W.P. (C) 8937/2020
MANDEEP SINGH ..... Petitioner
Through: Mr. Ankur Chhibber, Adv.
Versus
UNION OF INDIA & ORS. ..... Respondents
Through: Mr. Ruchir Mishra & Mr. Mukesh
Kumar Tiwari, Advs.
CORAM:
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
HON'BLE MS. JUSTICE ASHA MENON
[VIA VIDEO CONFERENCING]
JUSTICE RAJIV SAHAI ENDLAW
1. The petitioner, an Ex-Deputy Commandant of the respondents Border
Security Force (BSF), who had joined the respondents BSF on 25th January,
2010, as directly recruited Assistant Commandant, pursuant to the offer
dated 18th December, 2009 of appointment by respondents BSF, has filed
this petition, (i) impugning the order dated 3rd April, 2018 whereby the
respondents BSF approved the resignation of the petitioner from the post of
Deputy Commandant, BSF, with effect from 30th April, 2018; (ii) impugning
the orders dated 15th January, 2019 and 14th August, 2019 whereby the
respondents BSF rejected the applications filed by the petitioner, after the
acceptance of his resignation on 3rd April, 2018, for rejoining the
respondents BSF as a Deputy Commandant; (iii) seeking mandamus,
directing the respondents BSF to consider the case of the petitioner for
reinstatement and accept the withdrawal of resignation tendered by the
petitioner, as the same was compliant of Rule 26(4)(iii) of the CCS (Pension)
W.P.(C) No.8937/2020 Page 1 of 21
Rules, 1972 (CCS (Pension) Rules); (iv) seeking mandamus, directing the
respondents BSF to allow the petitioner to rejoin the service and continue his
duty in the same capacity as prior to the resignation, that is, as Deputy
Commandant in the respondents BSF.
2. The petition came up first before us on 17th December, 2020, when it
was the contention of the counsel for the petitioner that since the question
entailed in this petition is the same as is being considered by us in W.P.(C)
No.3369/2020 titled Dinesh Yadav Vs. Union of India and in other
connected petitions and which are listed next on 11th January, 2021, notice of
this petition be issued and this petition be also taken up on 11 th January,
2021.
3. The counsel for the respondents BSF also appeared yesterday and also
appears today, on advance notice.
4. However, having gone through the file and having prima facie not
found the petitioner to be, in the facts of his case, entitled to the reliefs as
claimed, even if the question of law may be the same, we asked the counsel
for the petitioner to make his arguments.
5. On the request of the counsel for the petitioner, the matter was
adjourned to today.
6. The case set up by the petitioner in the petition is, that (i) the
petitioner, after joining the respondents BSF on 25th January, 2010 as an
Assistant Commandant (DE), when posted at 182 Bn, Samba, Jammu,
underwent the YO‟s Leg-1 (Commando) Course, from 31st October, 2011 to
24th December, 2011 and YO‟s Leg-2 (Platoon Weapon) Course, from 23rd
W.P.(C) No.8937/2020 Page 2 of 21
April, 2012 to 16th June, 2012 and after completion of his National Security
Guard (NSG) Commando Course on 26th April, 2014, from 3rd August, 2014,
was deputed to the NSG and while on which deputation, he was promoted as
Deputy Commandant; (ii) the petitioner, on 3rd December, 2017, while still
on deputation with NSG, was posted at Hqrs. NSG, Mehram, Palam, New
Delhi; (iii) while the petitioner was posted at New Delhi, "his mother was
suffering from Parkinson disease since 2008 and was undergoing treatment
at PGI Chandigarh and various other hospitals. On the other hand, the wife
of the Petitioner was posted at Amritsar as Judicial Magistrate staying
alongwith her 2 year old child. Therefore, in the best interest of his parents
and family the Petitioner vide his application dated 03.12.2017 addressed to
the President of India tendered his resignation from the post of Deputy
Commandant, BSF requesting that his resignation be accepted on
compassionate ground and he may be relieved from service on or before
28.02.2018"; (iv) the petitioner, vide his letter dated 11th December, 2017,
also requested the respondents BSF for premature repatriation from NSG to
the respondents BSF, on the same ground as mentioned in the application
dated 3rd December, 2017 to the President of India, with effect from 31st
December, 2017; (v) the respondents BSF, on 31st December, 2017
repatriated the petitioner from NSG to BSF; (vi) the respondents BSF, vide
order dated 3rd April, 2018 informed the petitioner that the resignation
tendered by the petitioner to the President of India had been accepted and in
view of the same, the name of the petitioner would be struck off from service
with effect from 30th April, 2018; (vii) accordingly, the petitioner on 30 th
April, 2018 relinquished the charge of Deputy Commandant, 182 Bn; (viii)
"that after the petitioner resolved all his domestic problems which he was
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facing during the time of his service, he gave a second thought to his
decision and vide his letter dated 23.07.2018 he requested the Respondents
that he shall be allowed to rejoin the service after voluntary retirement as all
his domestic problems have been sorted out based on which the Petitioner
had tendered his resignation"; (ix) as per Rule 26(4)(iii) of the CCS
(Pension) Rules, a person is allowed to resume duty as a result of permission
to withdraw the resignation if the period of absence from the duty between
the date on which the resignation became effective and the date on which the
person is allowed to resume duty, is not more than 90 days; (x) the petitioner
sent his application / request dated 23rd July, 2018 for rejoining, within the
period of 90 days, in terms of the said Rule, as he had been relieved from
service with effect from 30th April, 2018 and the respondents received the
application for withdrawal of resignation on 28th July, 2018, that is, within
90 days; (xi) the respondents BSF, vide their letter dated 7th August, 2018
informed the petitioner that his request for the withdrawal of resignation
from the post of Deputy Commandant, BSF was to be addressed to the
President of India and not to the Director General, BSF, as had been done in
the letter dated 23rd July, 2018 and asked the petitioner to forward a fresh
application; (x) the petitioner, as per the letter dated 7th August, 2018 of the
respondents BSF, rectified the mistake and vide his letter dated 17th August,
2018 submitted a request to rejoin the service after voluntary retirement,
addressed to the President of India; (xi) the respondents BSF, vide e-mail
dated 31st August, 2018 informed the petitioner that the application dated
17th August, 2018 submitted by him was defective and to contact the
respondents BSF; vide subsequent e-mail dated 3rd September, 2018, the
petitioner was informed that the letter dated 17th August, 2018 sent by him
W.P.(C) No.8937/2020 Page 4 of 21
was not for withdrawal of resignation as had been submitted by the petitioner
but for the withdrawal of voluntary retirement and which was not the case
and asked the petitioner to submit a fresh application to the President of
India for the withdrawal of resignation; yet subsequently a letter dated 7th
September, 2018 also, was sent by the respondents BSF in this regard; (xii)
the petitioner, under the cover of his e-mail dated 14th September, 2018
enclosed an application to the President of India for the withdrawal of
resignation; (xiii) the respondents BSF on the same date informed the
petitioner that the e-mail of the petitioner could not be placed before the
President of India and asked the petitioner to send an application for the
withdrawal of resignation to the President of India through „dak‟; (xiv) the
petitioner, vide his e-mail dated 15th September, 2018 informed the
respondents BSF that he was out of the country and will send the same
through „dak‟ by Monday and the same was also being sent through „dak‟
from abroad; (xv) on 10th November, 2018, police verification was
conducted qua the petitioner; (xvi) the respondents BSF, vide letter dated
15th January, 2019 informed the petitioner that his application dated 23 rd
July, 2018 addressed to the President of India was examined by the
headquarters as well as by the Ministry of Home Affairs (MHA) in detail and
because of the non-fulfilment of conditions stipulated in Rule 26(4)(iii) of
CCS (Pension) Rules, his application for the withdrawal of resignation had
been rejected by the MHA; (xvii) the petitioner vide his letter dated 30th
January, 2019, addressed to the Joint Secretary, MHA and the Director
General, BSF, requested the respondents BSF to again consider his
application, on the basis of the performance of the petitioner when in service
of the respondents BSF; (xviii) the respondents in response to the letter dated
W.P.(C) No.8937/2020 Page 5 of 21
30th January, 2019 of the petitioner informed the petitioner vide letter dated
14th August, 2019 that his request for withdrawal of resignation had been
examined and owing to non-fulfilment of conditions stipulated in Rule
26(4)(iii) of CCS (Pension) Rules, his request for withdrawal of resignation
could not be acceded to; (xix) the respondents BSF vide letter dated 18 th
November, 2019 asked the petitioner to give a fresh consent / willingness to
join the respondents BSF; (xx) the petitioner vide his response dated 19 th
November, 2019 forwarded his consent to the respondents BSF; and, (xxi)
nothing further was heard from the respondents BSF.
7. Contending that the Policy with respect to withdrawal of resignation is
contained in Department of Personnel & Training (DoPT) Office
Memorandum (OM) dated 10th June, 2019 and that the petitioner satisfies all
the criteria / conditions laid down therein, this petition has been filed.
8. Today, the counsel for the petitioner has argued, that (i) though, earlier
the policy with respect to withdrawal of resignation was contained in the
CCS (Pension) Rules but since coming into force of the new pension scheme
from 1st January, 2004, the CCS (Pension) Rules had no application, and the
DoPT vide its OM dated 10th June, 2019 has promulgated the Policy for
withdrawal of resignation of Government servants of Central Civil
Services/Posts appointed after 31st December, 2003 covered under the
National Pension System (NPS), though the Policy contained in the said OM
is the same as earlier contained in Rule 26(4)(iii) of CCS (Pension) Rules;
(ii) as per the said policy, the appointing authority may permit a person to
withdraw his resignation if the four conditions as stated therein are satisfied;
(iii) the request of the petitioner for the withdrawal of his resignation has
W.P.(C) No.8937/2020 Page 6 of 21
been rejected only referring to Rule 26(4)(iii) of the CCS (Pension) Rules,
i.e., of being barred by 90 days; (iv) the name of the petitioner was struck off
from the rolls of respondents BSF on 30th April, 2018 and the petitioner vide
letter dated 23rd July, 2018 applied to rejoin and which was well within 90
days; (v) thus, the reason given for the rejection of the request is not correct
and the petition is entitled to be allowed on this short ground alone; (vi) the
petitioner thus, satisfies all the four conditions for being permitted to
withdraw the resignation and his request has been illegally declined relying
on Rule 26(4)(iii) of the CCS (Pension) Rules, though not applicable to the
petitioner appointed on 25th January, 2010, pursuant to the offer of
appointment by respondents BSF dated 18th December, 2009; and, (vii)
reliance is placed on Balram Gupta v. Union of India 1987 Supp SCC 228,
Union of India v. Wing Commander T. Parthasarathy (2001) 1 SCC 158,
order / judgment dated 10th September, 2014 of a Co-ordinate Bench of this
Court in W.P.(C) No.7671/2013 titled Ravi Tomar Vs. Union of India,
Nirmal Verma Vs. MCD 2005 SCC OnLine Del 381 and Deepak Vs. Union
of India 2016 SCC OnLine Del 3817.
9. Per contra, the counsel for the respondents BSF appearing on advance
notice has argued, that (i) no personnel has a right to withdraw the
resignation and it is the decision of the Government of India, whether to
allow any personnel to withdraw his resignation or not; (ii) both Rule 26(4)
of the CCS (Pension) Rules and the Policy contained in OM dated 10th June,
2019 entail a question of public interest and it is only when the Government
of India thinks that the resignation submitted should be permitted to be
withdrawn in public interest, that the resignation can be permitted to be
W.P.(C) No.8937/2020 Page 7 of 21
withdrawn; (iii) the counsel for the petitioner is misconstruing Rule 26(4)(iii)
of the CCS (Pension) Rules and the OM dated 10th June, 2019 - the same
permit the withdrawal of resignation provided, the period between the date
of absenting on the acceptance of resignation and the date of joining on
acceptance of the withdrawal of resignation is not more than 90 days; the
counsel for the petitioner is wrongly construing the period of 90 days as the
period within which an application for withdrawal of resignation is to be
filed; (iv) the petitioner in the application dated 17th August, 2018, written to
the President of India, did not withdraw the resignation but was making a
request for being permitted to join after voluntary retirement; and, (v) the
said request of the petitioner has already been rejected.
10. The counsel for the petitioner, inspite of his contentions aforesaid, has
been unable to change our prima facie view as expressed yesterday to the
counsel for the petitioner.
11. Since it is the case of the petitioner that the petitioner is governed by
the OM dated 10th June, 2019, we chose to reproduce herein below the
relevant part of the OM dated 10th June, 2019 herein below:
"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;
W.P.(C) No.8937/2020 Page 8 of 21
(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) that the post, which was vacated by the Government
servant on the acceptance of his resignation or any other
comparable post, is available.
...
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.
...
7. Above guidelines / instructions will be applicable only for the
Government servants appointed on Central Civil Service/Posts
after 31.12.2003 who are covered under the National Pension
System (NPS) and for whom CCS (Pension) Rules, 1972 is not
applicable. Further, there guidelines/instructions will be applicable
till the time the statutory rules regarding withdrawal of resignation
for such Government servants are notified."
12. We find that though, Rule 19 of the Border Security Force Rules, 1969
(BSF Rules) deals with the resignation by an officer of the respondents BSF
before the attainment of the age of retirement, there is no provision in the
BSF Rules, and none has been cited, regarding the withdrawal of resignation.
However we accept the contention of the counsel for the petitioner, not
disputed by the counsel for the respondents BSF, that with respect to recruits
W.P.(C) No.8937/2020 Page 9 of 21
till 31st December, 2003, the matter of withdrawal of resignation is governed
by Rule 26(4) of the CCS (Pension) Rules and with respect to the recruits
from 1st January, 2004, the said matter is governed by the DoPT OM
aforesaid. However, since the service in Central Armed Police Forces
(CAPFs) including BSF, is materially different from the civil services, we
strongly recommend to the respondents BSF and the CAPFs in general to
consider enacting their own Rule with respect to withdrawal of resignation,
appropriate / apposite to their own requirements. We may mention that
neither in the CCS (Pension) Rules nor in the DOPT OM aforesaid is there
any requirement of the personnel seeking withdrawal of resignation having
the requisite medical fitness and which is of paramount importance in forces.
All that can thus be said is that the CCS Pension Rules and the DoPT OM
aforesaid are not suitable for application to personnel of CAPFs in the matter
of the withdrawal of resignation. However, since the counsel for the
respondents BSF has not controverted that the same are applicable, we
proceed to adjudicate within the framework thereof.
13. The essential conditions to be satisfied for being permitted to
withdraw resignation are, (i) that such withdrawal should be in public
interest; (ii) the resignation should have been tendered for some compelling
reason and the request for withdrawal should have been made as a result of a
material change in the circumstance which compelled the personnel to tender
the resignation; (iii) the conduct of the personnel in the intervening period
should not be improper; (iv) the period of absence from duty should not be
of more than 90 days and the post is still available.
W.P.(C) No.8937/2020 Page 10 of 21
14. Though, the counsel for the petitioner has sung praises of the
petitioner and the yeoman service he rendered to the respondents BSF and to
the country, including by being selected for the NSG Commando Course and
being deputed to NSG, but it is not for the personnel of the force to blow his
own trumpet and it is for the force with which the said personnel was
employed and the Government of India, to find the human resource in the
personnel to be such, as for whom, the door needs to be again opened.
Obviously, in the present case neither did the respondents BSF feel that the
resources spent on the training of the petitioner is reason enough to let the
petitioner in, after he had voluntarily left nor was the Government of India of
the said opinion. The petition is also bereft of any pleadings, of the public
interest which will be served, by letting the petitioner withdraw his
resignation. Once the said condition is not satisfied, the need for seeing
whether the other conditions are satisfied by the petitioner or not would not
arise. We may otherwise also add that the reigns of the country cannot be
entrusted to a personnel, who in the past has chosen his own interest over
that of the public or the country. The conduct of the petitioner, though still
having substantial period of deputation with NSG left and which duties as
NSG commando according to the counsel for the petitioner also are of
paramount importance to the country, of having paid scant regard to the
same in the face of difficulties of his wife and small child and his mother, do
not indeed show the petitioner to have put the service before self.
15. The personnel tendering resignation also tend to forget that we are a
country of scarcities including scarcities of employment opportunities. Here,
advertisements inviting application for a few hundred posts elicit
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applications from lakhs. Though, we are a country of scarcities, we are rich
in human resource. Holding competition amongst all the applicants
demonstrates a difference of barely a shade between the one last selected and
the next in line. Tendering of resignation from employment with the
government by one, creates vacancy, for which hundreds if not lakhs await
an opportunity.
16. We, during the hearing yesterday as well as today, in view of the
conditions aforesaid of Rule 26(4) of the CCS (Pension) Rules and/or the
DoPT OM, enquired from the counsel for the petitioner, whether not, as
disclosed by the first condition, the provision of withdrawal of resignation is
meant for those who owing to an extreme provocation take a decision to
leave the secure employment, i.e. employment for which lakhs of citizens
strive. We further enquired from the counsel for the petitioner, how the
averments in the petition as quoted by us hereinabove while recording the
pleadings in the petition, satisfy the condition of "compelling reasons" for
tendering the resignation. We also enquired, how the compelling reason of
the ailment of the mother of the petitioner and of the child of the petitioner
being only two years old, resolved themselves between the date the
petitioner tendered his resignation, i.e., 3rd December, 2017 and the date, that
is, 23rd July, 2018 on which the petitioner first applied for withdrawal.
17. The counsel for the petitioner, not controverting that there are no
specific pleadings in this regard, has today drawn our attention to the letter
dated 23rd July, 2020, where also the petitioner is found to have merely
stated that he submitted his resignation "due to my domestic problems" and
merely pleaded "my domestic problems has been sort out". The counsel for
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the petitioner then drew our attention to a letter dated 18th June, 2020 sent by
the petitioner to the Home Minister of India, where the petitioner stated (i)
that his mother had been suffering from Parkinson disease; (ii) during the
time he was with NSG, the condition of his mother deteriorated; (iii) that his
wife was a Judicial Magistrate and his brother was living in Australia and
there was nobody except him to lookafter the health of the mother; (iv) that
his two and a half years old son and the deteriorated condition of his mother
forced him to take a decision to tender the resignation; (v) that after his
resignation he put all his strength to look after his mother as well as his two
and a half years old child and within two and a half months sorted out the
problems relating to the treatment of his mother; (vi) that his brother who
lives in Australia, took the mother with him and therefore, the petitioner
could join back the service.
18. What has been stated in the aforesaid letter is much after the rejections
dated 15th January, 2019 and 14th August, 2019 of the applications for the
withdrawal of resignation dated 23rd July, 2018 and 30th January, 2019
respectively. The possibility of the said letters having been written under
legal advice, after a decision to file the petition in the Court had been taken,
cannot be ruled out. Moreover again, the pleas are vague.
19. Rather, when we asked the counsel for the petitioner that if the brother
of the petitioner had taken the mother to Australia, what was the need for the
petitioner to go to Australia, it was first denied that the petitioner went to
Australia. However, on attention being drawn to the e-mail dated 15th
September, 2018 of the petitioner stating that he could not send the letter of
withdrawal of resignation to the President of India by „dak‟ owing to being
W.P.(C) No.8937/2020 Page 13 of 21
out of the country, it is stated that the petitioner went to drop his mother to
Australia. However, as per the language of the letter aforesaid of 18th June,
2020, it is the brother who took the mother. The two and a half years old
child, to lookafter whom and to be with whom the petitioner claims to have
resigned, in two and a half months would barely be that much older and still
not independent. Similarly, the nature of Parkinson disease is such, qua
which there would be no major change in barely two and a half months. It
also defies logic that if the option of the brother of the petitioner in Australia,
taking the mother of the petitioner with him to Australia was available, why
was it not exercised or considered before the petitioner resigned. We are
afraid, the facts pleaded by the petitioner do not satisfy the requirement of
„reasons compelling enough‟ to tender resignation from a secure
employment or a material change, as required by the aforesaid DoPT OM.
20. In our view, tendering and acceptance of resignation from secure
employment has an element of finality and irrevocability thereto. The
provision for withdrawal of resignation has been made, to take care of
resignations submitted under a grave and sudden provocation, which
compels the government employee to forego the security of employment and
which grave and sudden provocation was at that moment wrongly assessed
of having a permanency, and which did not turn out to be so.
21. On the contrary, the entire conduct of the petitioner shows that the
decision of the petitioner was a well thought out one. The petitioner
submitted the letter of resignation on 3rd December, 2017, when posted at
Delhi which is envisaged as a preferred posting and not when posted in a
hard area. The petitioner did not in the letter dated 3rd December, 2017, seek
W.P.(C) No.8937/2020 Page 14 of 21
discharge immediately but on or before 28th February, 2018. The petitioner,
after nearly 10 days, on 11th December, 2017, in anticipation of his
resignation being accepted, sought repatriation from NSG to respondents
BSF. The petitioner was not discharged on 28 th February, 2018 as had been
sought by him and waited patiently till the acceptance letter dated 3 rd April,
2018. A period of four months elapsed between the letter of resignation and
discharge and the petitioner during the said time did not change his mind. It
is thus, not a case of the resignation being owed to any gravity or suddenness
but of a well planned out resignation.
22. Not only so, the petitioner though, wrote a letter dated 23rd July, 2018
delivered on 28th July, 2018, that is, barely a couple of days prior to the
expiry of 90 days, purportedly withdrawing the resignation but addressed it
not to the President of India to whom the letter of resignation was addressed
but to the Director General, BSF. Not only so, though the petitioner sought
to withdraw his letter dated 3rd December, 2017, but the letter dated 23rd
July, 2018 was on the subject of "joining after voluntarily retirement". The
petitioner, who had written to the President of India knowing fully well that
the resignation had to be addressed to the President of India and who, being
an ex Deputy Commandant, BSF is expected to know the difference between
resignation and voluntary retirement, had in December, 2017 tendered
resignation and not sought voluntary retirement but labeled the letter dated
23rd July, 2018 as "joining after voluntary retirement". We have enquired
from the counsel for the petitioner, why should all this not be seen as having
been done by design, so as to not be asked to immediately rejoin service and
to buy time. There is neither any explanation for the aforesaid in the petition
W.P.(C) No.8937/2020 Page 15 of 21
nor during the hearing. Moreover, if the petitioner indeed expected any
action on his letter dated 23rd July, 2018, he would not have, after submitting
the same, proceeded to go abroad as he, as per his own documents did.
Moreover, the said dates also belie what was argued, that the petitioner had
gone to Australia to leave his mother. That means that till the letter dated
23rd July, 2018 was written, the mother was still in India. The petitioner, in
the letter dated 23rd July, 2018 did not say that the date of his rejoining
should be after he returned from abroad.
23. All the aforesaid facts do not make us believe the case set up by the
petitioner, even of the disease of his mother or of his small child and no
documents in support whereof, in any case have been submitted.
24. The petitioner appears to be using the employment of respondents
BSF as a hop-on and hop-off service wherefrom he can hop-off whenever he
desires and hope back on whenever he wishes.
25. That brings us to the Rule / Policy, so far as the aspect of 90 days is
concerned. Undoubtedly a literal interpretation thereof is that the period of
absence from duty should not be more than 90 days. It is because such a
short period is stipulated, that we are of the opinion that the withdrawal of
resignation is permitted, when found to have been submitted in a huff and we
therefore, have used the expression „grave and sudden provocation‟. Else,
normally no material change in circumstances can be expected within a short
time envisaged. It cannot also be forgotten that the short time envisaged also
takes into its ambit the decision making time in the grant of permission to
withdraw resignation. A personnel of the force who has served the force for
any duration is bound to know that the decision-making process also takes
W.P.(C) No.8937/2020 Page 16 of 21
time. Thus, the withdrawal of resignation envisaged is nearly immediate, so
that even after the time taken in decision-making, the period of absence is
not more than 90 days.
26. However, at the same time, the literal interpretation in its application
has to permit some play. Thus, in a case where withdrawal of resignation is
made, leaving enough and a reasonable amount of time for a decision to be
taken thereon but nevertheless there is a delay in taking decision, owing to
the said delay, the Rule cannot be permitted to be defeated. However the said
play in consideration / interpretation of the provision / policy cannot extend
to cases where it is found that the withdrawal of resignation is submitted
leaving no time for the authorities concerned to take a decision thereon.
27. The period of 90 days of the petitioner here, was expiring on 29th July,
2018, after taking into consideration 31 days of May, 2018 and 30 days of
June, 2018. The respondents BSF received the letter dated 23rd July, 2018 of
withdrawal of resignation of the petitioner only on 28th July, 2018 i.e. on the
penultimate day of the 90 days. The petitioner having been a member of the
force for eight years before his resignation, knew very well that in one day
no decision could be taken. Not only so, the petitioner as aforesaid left
lacunas in the letter, knowing fully well that in the normal course he will be
called upon to rectify the same. As aforesaid, the petitioner also proceeded to
go abroad, rather than waiting to be called back. The petitioner is thus found
to have acted in a manner so as to have as much absence as he desired, while
taking advantage of the technicalities. Anybody bona fide wanting to rejoin
would have remained in a state of readiness to rejoin immediately on the
very next day of being communicated the acceptance of the withdrawal of
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resignation. The petitioner on the contrary, has been taking his own sweet
time to take advantage of the Rule / Policy and which cannot be permitted.
28. The counsel for the petitioner has also laid much emphasis on the
letter dated 18th November, 2019 of the Commandant (Pers) S. Ganesh
informing the petitioner that his case in pursuance to the application dated
23rd July, 2018 was being processed for approval of the competent authority
and MHA and asking the petitioner to give fresh consent / willingness. On
the basis thereof, it was contended that the case of the petitioner is still
actively being considered.
29. We have however, enquired the sanctity of the said communication of
Commandant (Pers) S. Ganesh of the respondents BSF. The application of
the petitioner dated 23rd July, 2018 with reference whereto the letter is
written, had already been rejected vide letter dated 15th January, 2019. We
have enquired from the counsel for the respondents BSF, whether any
enquiries have been made from Commandant (Pers.) S. Ganesh, of the basis
of sending the communication. The counsel for the respondents BSF states
that since he is appearing on advance notice, he has no instructions.
However, we cannot act on the basis of a letter of a Commandant level
officer, after the President of India has already conveyed his decision.
30. Vide letters dated 15th January, 2019 and 14th August, 2019, the
petitioner had already been informed of the withdrawal of his resignation
having not been acceded to. Commandant (Pers) S. Ganesh has no authority
to thereafter seek fresh willingness of the petitioner.
W.P.(C) No.8937/2020 Page 18 of 21
31. That brings us to the judgments referred to by the counsel for the
petitioner. Deepak supra was a case of a Constable, who while still
undergoing training pursuant to recruitment, under an impulse of depression
occasioned by domestic responsibilities and illness of his parents, submitted
his resignation but realized his mistake immediately on meeting his family
and applied for the withdrawal of the same within about 15 days. It was in
these facts that the petition was allowed. Nirmal Verma supra was the case
of a Headmistress in a Municipal Corporation of Delhi (MCD) school who
submitted the resignation to contest the MCD election and withdrew the
same on losing the election. The withdrawal of resignation in that case was
sought to be rejected on the ground of the petitioner, despite being a
government servant, having indulged in politics. The decision of the Court
thus, was on the said aspect and not qua Rule 26(4) of CCS (Pension) Rules
supra, which was mentioned only as entitling the withdrawal of resignation.
In Ravi Tomar supra, the order directing the acceptance of the application
for withdrawal of resignation had been passed in the peculiar facts of the
case, where the respondents had chosen not to spell out the clear reasons for
not exercising the discretion in favour of the petitioner while accepting
similar applications of other officers.
32. The other two judgments of the Supreme Court, that is, Balram Gupta
supra and Wing Commander T. Parthasarathy supra, have been cited on the
aspect of fickle mind but that is not the question here. Rather in Balram
Gupta supra, it was held that ordinarily permission to withdraw resignation
should not be granted unless the person concerned is in a position to show
that there has been a material change in circumstances in consideration of
W.P.(C) No.8937/2020 Page 19 of 21
which notice was originally given. The petitioner is not a person of fickle
mind but a person who treats service to the country as a hop-on / hop-off
service.
33. The counsel for the petitioner has also contended that once the law
permits the withdrawal of resignation, the same should be allowed.
34. In this respect, the counsel for the respondents BSF is correct that Rule
26(4) of the CCS (Pension) Rules as well as the Policy do not confer any
right. The word used is „may‟. The discretion is still with the government
and unless the discretion exercised is found to have been exercised in
violation of the Rule / Policy or in a mala fide manner, no ground for
interference is made out.
35. We also find that the Supreme Court recently in Union of India Vs.
Subrata Das MANU/SC/0109/2019 was concerned with requests for
withdrawal of earlier requests for Premature Separation from Service of the
personnel of Indian Air Force, governed by the Human Resource Policy
dated 5th August, 2011. It was held (i) entry into and departure from the
service of Air Force is in terms of the Air Force Act, 1950 and Rules framed
thereunder and is not a matter which lies at the sweet will of the member of
the Air Force; (ii) the organizational efficiency of the armed forces of the
Union is of paramount importance; (iii) in interpreting the provisions of the
Policy including the withdrawal of a request for premature separation, it is
necessary to emphasize that an officer who is granted premature separation
takes away an existing vacancy which could have been provided to another
officer of the Air Force; (iv) permitting an absolute right to withdraw from
the approved premature separation may, it is apprehended, lead to the use of
W.P.(C) No.8937/2020 Page 20 of 21
premature separation from service as a tool to escape transfers to sensitive
appointments; (v) the right to withdraw a request for premature separation
from an armed force is not absolute or unconditional and is not a matter of
right; a withdrawal can be permitted only by way of exception and on
extreme compassionate grounds; and, (vi) administrative judgment of the
authorities of the Air Force is not to be lightly interfered with.
36. The aforesaid judgment of recent origin reaffirms our view
hereinabove.
37. There is no merit in the petition.
38. Dismissed.
RAJIV SAHAI ENDLAW, J.
ASHA MENON, J. DECEMBER 18, 2020 „gsr‟..
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