Central Administrative Tribunal - Bangalore
Dr K Lakshmi vs South Eastern Railways on 8 March, 2023
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OA.No.170/00550/2020/CAT/BANGALORE
CENTRAL ADMINISTRATIVE TRIBUNAL
BANGALORE BENCH, BENGALURU
ORIGINAL APPLICATION NO.170/00550/2020
ORDER RESERVED ON 22.02.2023
DATE OF ORDER: 08.03.2023
CORAM:
HON'BLE MRS. JUSTICE S. SUJATHA, MEMBER (J)
HON'BLE MR. RAKESH KUMAR GUPTA, MEMBER (A)
Smt. Dr. K. Lakshmi,
W/o Ashwin D Gowda,
Aged 34 years,
R/at. No. 207, 8th Cross,
Bapuji Layout,
Vijayanagar,
Bengaluru 560 040 .... Applicant
(By Shri Vikram A. Huilgol, Senior Advocate a/w Shri Arvind V.
Chavan, Advocate)
Vs.
1. General Manager,
South Eastern Railways,
Union of India,
No. 11, Garden Reach Road,
Kolkata 700 043
2. Principal Finance Adviser,
South Eastern Railways,
Union of India,
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OA.No.170/00550/2020/CAT/BANGALORE
No. 11, Garden Reach Road,
Kolkata 700 043
3. Deputy Finance Adviser & CAO
South Eastern Railways,
Union of India,
No. 11, Garden Reach Road,
Kolkata 700 043
4. Director Finance/CCA
Railway Board,
Union of India,
Rail Bhavan,
New Delhi 110 001
5. Ministry of Railways,
Union of India,
North Block,
New Delhi 110 001
Rep. by its Secretary
6. Chairman &
Ex. Officio Principal Secretary,
Railway Board,
Union of India,
Ministry of Railways,
North Block,
New Delhi 110 001
7. Deputy Secretary (E)/Spl.
Railway Board,
Union of India,
Rail Bhavan,
New Delhi 110 001 ...Respondents
(By Shri H.R. Sreedhara, ACGSC)
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OA.No.170/00550/2020/CAT/BANGALORE
ORDER
PER: JUSTICE S. SUJATHA, MEMBER (J)
This application is filed by the applicant under Section 19 of the Administrative Tribunals Act, 1985 seeking the following reliefs:
"a. Quash/set aside the orders dated 20.06.2018, 04.06.2019, 22.10.2019 bearing Nos. No. ADMN/SE/GAZ/T&P/491, No. 2018/AC-II/20/SER (Lakshmi K), and No. E(O)III-2018/RN/43 passed by first, fourth and seventh respondents produced as Annexures-A6, A8 & A10 respectively.
b. Direct the respondents to reinstate the applicant as railway officer by permitting her to withdraw her resignation."
2. The facts in brief as narrated by the applicant are that she joined National Academy of Indian Railways, Vadodara on 16.12.2013, after passing civil services examination. On 09.06.2017, she joined as probationary officer Group 'A' post, South Eastern Railways, Kolkata as Assistant Financial Advisor (construction). On 12.02.2018, she submitted her resignation due 4 OA.No.170/00550/2020/CAT/BANGALORE to ill health of her mother and in-laws as she was not in a position to attend office. The said resignation was accepted on 19.06.2018 by the 1st respondent as per Rule 302 of the Indian Railways Establishment Code (Volume-1). Subsequently, on 13.11.2018, the applicant submitted an application to the respondents to permit her to withdraw the resignation and reinstate her in service. The aforesaid application was forwarded to the Railway Board on 28.11.2018 with a recommendation of General Manager, South Eastern Railways (Respondent No.1) to consider her request. Railway Board vide their letter dated 04.06.2019 rejected the same. The same was communicated by the South Eastern Railways to the applicant vide its letter dated 19.06.2019.The applicant thereafter made a detailed representation dated 31.07.2019 to consider her application for withdrawal of resignation and reinstatement in railway service. South Eastern Railway vide their letter dated 19.08.2019 again approached the Railway Board to consider the applicant's representation for reinstatement. The Railway Board vide letter dated 22.10.2019 had again rejected the request of the applicant. The above decision of the Railway Board was communicated to the applicant by the South Eastern Railway administration vide letter dated 25.10.2019. Being aggrieved by 5 OA.No.170/00550/2020/CAT/BANGALORE the said decision of the Railway Board, the applicant initially filed OA No. 1233/2019 before this Tribunal. The said OA came to be dismissed as withdrawn by the applicant with liberty to file a fresh OA. Hence this Original Application.
3. Learned senior counsel Shri Vikram A. Huilgol representing the applicant submitted that the General Manager had recommended for reinstatement of the applicant by allowing her to withdraw the resignation in terms of the letter dated 19.08.2019 but the Railway Board has erroneously forwarded the recommendation to the Department of Personnel & Training for its opinion. Department of Personnel & Training considering the matter has proceeded to give an opinion that the request of the applicant cannot be accepted to, as it is not a fit case for relaxing the permissible 90 days time limit laid down in Rule 41 (4)(iii) of Railway Services (Pension) Rules, 1993. Rule 41 is no longer valid in view of notification dated 22.12.2003 issued by the Finance Ministry and adopted by the Railway Board on 31.12.2003. Consequently, the order passed by the Railway Board based on the opinion of the Department of Personnel & Training is erroneous. Learned counsel argued that the applicant's service condition is 6 OA.No.170/00550/2020/CAT/BANGALORE governed by Rule 301 of Indian Railway Establishment Code (Volume-1) and her appointing authority is the Railway Board acting on behalf of the President, Union of India. Hence, the resignation should have been accepted under Rule 301 of the Indian Railway Establishment Code (Volume-1). Since the resignation of the applicant was not accepted under the relevant rules and procedures, the resignation tendered by the applicant has not become effective, as such, the applicant has all the rights to withdraw her resignation and get back to service. Railway Board ought to have considered the recommendation of the Respondent No. 1's request to relax the time limit of 90 days.
4. Learned counsel Shri H.R. Sreedhara representing the respondents submitted that Rule 41(4)(iii) of the Railway Services (Pension) Rules, 1993 is applicable to the case in hand. The said rule prescribes a limit of 90 days period, before which the request of withdrawal of resignation is to be made. The limit of 90 days was prescribed in Department of Personnel & Training's Office Memorandum dated 11.02.1988 (before introduction of NPS) and even in the Office Memorandum dated 04.12.2007 (after introduction of NPS). Department of Personnel & Training, the 7 OA.No.170/00550/2020/CAT/BANGALORE nodal department for all establishment matters, vide their Office Memorandum dated 10.06.2019 have clarified the procedure to be followed in respect of considering cases of withdrawal of resignation request, reiterating the earlier stand that the same shall be made before the expiry of 90 days period. This Office Memorandum has been made applicable for railway servants vide Railway Board's letter dated 13.01.2021. The request of reinstatement/withdrawal of resignation was referred by the Ministry of Railways to the Department of Personnel & Training, the nodal Ministry for their consideration. After following due procedure, it was decided by the Department of Personnel & Training that the request of the applicant cannot be acceded to, as it is not a fit case for relaxing the permissible 90 days limit. No jural relationship existed between the applicant and the respondents pursuant to the acceptance of the resignation.
5. We have carefully considered the rival submissions of the learned counsel appearing for the parties and perused the material on record.
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6. The factual aspects are not in dispute. Master Circular No. 21 dealing with resignation from railway service provides in Clause 12 as under:
"12. Subject to the above:
a. the resignations of Group "A" & "B" Railway servants, other than those holding Administrative posts, serving on Railways may be accepted by the G.M. The acceptance of resignations of all other Group "A" servants shall require the sanction of the President and hence, should be referred to the Railway Ministry.
b. The resignations of a Group "C" & "D" Railway servant may be accepted by the authority competent to fill the post held by him.
[Para 302 of IREC Vol.I]"
Para 4 of the "Terms and Conditions for Candidates Recruited to Various Railway Services" relating to probation reads thus:
"4. Termination of appointment during probation:
4.1 The appointment of Probationers can be terminated by three month's notice in writing on either side during the period of Probation in terms of Rule 301 (3) of the Indian Railway Estt Code Volume-I. Such notice is not however required in cases of dismissal or removal as a disciplinary measure after compliance with the provisions of Clause (2) of Article 311 of the Constitution and compulsory retirement due to mental or physical incapacity.9
OA.No.170/00550/2020/CAT/BANGALORE 4.2 If in the opinion of the Government the work or conduct of a probationer is unsatisfactory or shows that he is unlikely to become efficient, Govt. may discharge him forthwith. 4.3 Failure to pass the Departmental examinations may result in termination of services. Failure to pass the examination in Hindi of an approved standard within the period of Probation shall involve liability to termination of services. 4.4 The Government, however, reserve the right to terminate the services forthwith in terms of Rules 301, as amended from time to time."
In terms of Para 4.1, the appointment of probationers can be terminated in terms of Rule 301 (3) of the Indian Railway Establishment Code (Volume-1) after issuing three month's notice in writing on either side during the period of probation. Para 301 (3) and Para 302 of Indian Railway Establishment Code (Volume-1) reads thus:
"301. Termination of service and period of notice--
(1) xxx (2) xxx (3) Certain other railway servants.--The services of certain other railway servants specified below shall be liable to termination on notice on either side for the periods shown against each. Such notice is not, however, required in cases of dismissal or removal as a disciplinary measure after compliance with the provisions of clause (2) of Article 311 of the Constitution and compulsory retirement due to mental or physical incapacity.10
OA.No.170/00550/2020/CAT/BANGALORE
(a) Probationary officers and Group A & 3 month's notice Group B railway servants on Probation
(b) Gazetted railway servants on 1 month's notice probation in the Medical department.
(c) Group C and Group D railway 1 month's notice servants on probation
302. Resignation.--(1) In no circumstances shall the resignation of a railway servant whose conduct is under investigation be accepted without the sanction of the authority competent to dismiss him. In cases in which a railway servant has committed an offence for which the penalty is dismissal or removal from service, no suggestion should be made to him to tender his resignation.
(2) Subject to the provision of Sub-rule (1) the resignations of Group A & B railway servants, other than those holding administrative posts, serving on railways may be accepted by the General Manager. The resignation submitted by Group 'A' probationers of different services undergoing probationary training in various Centralized Training Institutes to join I.A.S., I.F.S. etc. may be accepted by the Heads of Centralized Training Institutes where their probationary training has been centralized. (Authority: Railway Board's letter No. E (Trg.) 2004(13)/2 dated 08.12.2004) Railway Ministry's decision.--When a Railway servant working on an important post resigns and it would take time to make alternative arrangements for filling the post, the resignation should not be accepted immediately, but only when alternative arrangements for filling the post have been made. (Railway Ministry's letters No. E(NG)64RE1/36 dated 26-10-66 and E(NG)65AG1/2 dated 30-6-66.) 11 OA.No.170/00550/2020/CAT/BANGALORE (3) Subject to the provisions of Sub-rule (1), the resignation of a Group C & D Railway servant may be accepted by the authority competent to fill the post held by him at the time of resignation."
7. On perusal of these provisions, it is clear that Rule 301 of Indian Railway Establishment Code (Volume-1) deals with the topic of "Termination of service and period of notice" whereas Rule 302 of Indian Railway Establishment Code (Volume-1) deals with the subject matter of "resignation". The additional reply statement filed on behalf of the respondents would indicate that the applicant on successful completion of centralized training from the National Academy of Indian Railway (NAIR), Vadodara joined South Eastern Railway on 08.06.2017 (Forenoon) in a permanent post as Assistant Financial Adviser against an existing vacancy. Since her joining in service, she remained on leave for a long period (Child Care Leave) due to which her confirmation test could not be held by the competent authority. The applicant applied for resignation from service on 12.02.2018 on account of personal reasons. The applicant's case is coming within the ambit of resignation from service which she opted on her own volition. Accordingly, General Manager, South Eastern Railway accepted her resignation on 19.06.2018 in adherence with due procedure in 12 OA.No.170/00550/2020/CAT/BANGALORE terms of Rule 302 of the Indian Railway Establishment Code (Volume-1). The applicant was in junior scale at the time of submission of her resignation request. Even applying Rule 301 as contended by the learned senior counsel, the resignation was accepted by the competent authority after three months. 90 days period was available to the applicant to withdraw the resignation submitted on 12.02.2018 before its acceptance by the competent authority on 19.06.2018. We find no illegality or irregularity in accepting the resignation submitted by the applicant by the General Manager, South Eastern Railway who is the competent authority. It is trite law that quoting a wrong provision would not make the order invalid. If the source of power is vested with the competent authority to accept the resignation, merely quoting a wrong provision would not nullify the same.
8. As per Rule 41(4)(iii) of Railway Services (Pension) Rules, 1993, 90 days is the time prescribed before which the request for withdrawal of resignation has to be made. This rule is applicable even in respect of employees appointed from 01.01.2004 as per the Office Memorandum dated 04.12.2007 issued by the Department of Personnel & Training. The applicant 13 OA.No.170/00550/2020/CAT/BANGALORE was duly relieved of her duties following acceptance of her resignation and, as such, no jural relationship of employee and employer existed between the applicant and the respondents to claim reinstatement. As per DoPT Circular No. 28034/25/87-Estt (A) dated 11.02.1988, the appointing authority may permit a person to withdraw his resignation in public interest on the following conditions, namely -
"(i) that the resignation was tendered by the govt. 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 railway servant is allowed to resume duty as a result of permission to withdraw resignation is not more than ninety days;
(iv) that the post, which was vacated by the govt. servant on the acceptance of his resignation or any other comparable post, is available"14
OA.No.170/00550/2020/CAT/BANGALORE However, para 6 of the said circular reads thus:
"6. Since the CCS (Pension) Rules, 1972 are applicable only to holders of permanent posts, the above provisions would apply only in the case of a permanent Government servant who had resigned his post. The cases of withdrawal of resignation of permanent Government servants which involve relaxation of any of the provisions of the above rules will need the concurrence of the Ministry of Personnel, Public Grievances and Pensions, as per Rule 88 of the CCS (Pension) Rules, 1972."
The same has been reiterated in OM dated 10.06.2019. The time limit of 90 days between the date on which the resignation became effective and the date on which the employee is allowed to resume duties after withdrawal of resignation is important. The request of the employee to withdraw the resignation after acceptance of the same and relieving her from duties could be considered only in exceptional cases, having regard to changed circumstances in the public interest. After assigning the convincing reasons for tendering resignation and the same being accepted by the competent authority after three months, no changed circumstances in the public interest has been pointed out by the applicant to withdraw the resignation to relax the period of 90 days as provided in Clause 2(c) of the Office Memorandum dated 10.06.2019. The 15 OA.No.170/00550/2020/CAT/BANGALORE time limit if exceeded only very marginally it would have been considered for relaxation but in the present case the resignation submitted on 12.02.2018 is sought to be withdrawn on 13.11.2018 after the acceptance of the same on 19.06.2018. In the OM dated 04.12.2007, guidelines issued by the Ministry of Personnel, Public Grievances and Pensions, Department of Personnel & Training regarding cases for withdrawal of resignation, it is stated as under:
"2. The purpose of the aforesaid provision is that once a person has been relieved of his appointment on acceptance of his resignation letter, his relation in that post with the Government gets terminated. An exceptional provision to consider a request for withdrawal of the resignation was made in view of the possibility that the circumstances under which the individual resigned from the post materially changed soon after his resignation, thus making the purpose of his resignation infructuous. The time limit of 90 days between the date on which the resignation became effective and the date on which he is allowed to resume duties after withdrawal of resignation is very sacrosanct to the scheme of acceptance of withdrawal of resignation by the Government. Of late, this Department has been receiving proposals from Ministries/Departments seeking relaxation in the above time limit by invoking rule 88 of the CCS (Pension) Rules. In most of such cases, it was found that not only had the individual not given his application for withdrawal soon after the acceptance of resignation but also did not have convincing reasons for the same. The Administrative Departments have also been forwarding such requests to this Department in a routine manner.16
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3. The matter has been reviewed in this Department and it has been decided that it is only in exceptional cases, which are properly justified from the point of public interest by the Administrative Department concerned, would this Department entertain any request to relax the above time limit of 90 days. Even in such exceptional cases, proposals will be considered only if the time limit is exceeded only very marginally. The Ministries/Departments are therefore advised to avoid sending such proposals to this Department for relaxation under rule 88 of the CCS (Pension) Rules, 1972 as far as possible."
9. The Board has examined the case of the applicant in the light of the aforesaid OM and has reiterated the same, the same cannot be faulted with. In the circumstances, no infirmity is found in the orders impugned. No case is made out by the applicant to interfere with the impugned orders.
10. In the result, OA stands dismissed. No order as to costs.
(RAKESH KUMAR GUPTA) (JUSTICE S. SUJATHA)
MEMBER (A) MEMBER (J)
/ksk/