@JUDGMENTTAG-ORDER
1. The challenge in this petition is to the order dated 12.09.2014 passed by the Madras Bench of Central Administrative Tribunal in O.A.No. 310/00302/2014.
2. The second respondent preferred an application to the Tribunal, questioning the legality of the order dated 6.1.2014 passed by the petitioner herein, seeking for quashing of the same and consequent direction to permit the second respondent to discharge duties as Faculty Head (READ) in the office and extend all benefits permissible after retaining her in the office.
3. The brief facts of the case are that the second respondent, who was the applicant, was appointed as Faculty Head in the petitioner institute during March 2011. She submitted an application, seeking resignation from the post of Faculty Head on 30.03.2013, which was rejected vide memo dated 03.05.2013 due to transition and acute shortage of faculty at the appellant institute. On 26.9.2013, the second respondent made an another request, stating the health reasons and suffering of her elder daughter by Dyslexia. It was stated that the notice period of one month be considered as leave on loss of pay/deducted from her terminal benefits. Vide communication dated 15.11.2013, the second respondent was informed that the competent authority has accepted her resignation and was permitted to relieve with effect from 01.10.2013 after completing No Dues Certificate formalities. The said communication was sent by speed post.
4. Thereafter, the second respondent sent an email, seeking permission for withdrawal of resignation, on 27.11.2013. The petitioner, vide communication dated 6.1.2014, rejected the request for withdrawal of resignation on the ground that the request for withdrawal of resignation has been examined with reference to Rule 26 of the Central Civil Services (Pension) Rules, 1972 and there was no change of condition prevalent at the time of tendering resignation. It was also informed that her resignation had already been accepted and she stood relieved with effect from 1.10.2013 as intimated vide earlier communication dated 15.11.2013. The communication dated 06.01.2014 was the bone of contention before the Tribunal.
5. The Tribunal, after having considered the submissions and examined the facts of the case, quashed the order dated 6.1.2014 and directed the petitioner herein to reconsider the withdrawal of resignation of the applicant and permit her to discharge duties as Faculty Head (READ) in accordance with law and as per rules. The petitioner, who was the respondent therein, has come up with this writ petition, questioning the legality and validity of the impugned order passed by the Tribunal.
6. Mr.G.Rajagopalan, learned Additional Solicitor General, appearing for the petitioner would submit that, once her letter of resignation dated 26.9.2013 was accepted vide communication dated 15.11.2013 and she stood relieved with effect from 1.10.2013 after completing the No Dues Certificate formalities, the subsequent letter for withdrawal of resignation could not have been entertained. It was further contended that Rule 26 of the CCS (Pension) Rules, 1972 prescribes for withdrawal of resignation only when there is material change in circumstance from the reason which originally compelled the employee to resign. In the case on hand, firstly, the reason stated by the second respondent for seeking resignation was her health and secondly, her daughter was suffering from the problem of Dyslexia, which requires constant monitoring and parental support. In the email as well as letter dated 27.11.2013, the reason stated was that her health has improved, but, with regard to the problem of her elder daughter about Dyslexia, there was no mentioning and as such, there was no change in circumstance as required under Rule 26(4) of CCS (Pension) Rules, 1972 for permitting the withdrawal of resignation.
7. It is further submitted that the Tribunal has directed to consider the letter dated 24.1.2014, wherein, the second respondent had improved reasons by explaining the improvement of her health as well as the constant monitoring of her daughter by other members of the family, which was filed after the impugned order dated 6.1.2014 and as such, her case could not have been taken into consideration while exercising power under Rule 26(4) of the CCS(Pension) Rules, 1972.
8. Per contra, Mr.L.Chandrakumar, learned counsel appearing for the second respondent (applicant therein) would submit that the second respondent had not received any communication dated 15.11.2013, wherein, it was stated that her letter of resignation had already been accepted and she stood relieved and as such, it cannot be presumed that before 27.11.2013, her resignation was accepted. It is further contended that having regard to the fact situation of the case, the letter dated 24.1.2014 be treated as a letter in continuation of the earlier letter dated 27.11.2013 for consideration under Rule 26(4) of the CCS(Pension) Rules, 1972. The learned counsel further submits that the order of the Tribunal is just and proper and it does not warrant any interference.
9. We have considered the submissions of the learned counsel for the parties, perused the pleadings and documents appended thereto.
10. There is no dispute that the second respondent had tendered her resignation earlier, which was not accepted. However, her last letter dated 26.9.2013 was duly considered and accepted by the competent authority as informed vide communication dated 15.11.2013. After No Dues Certificate formalities, she also stood relieved from 01.10.2013. It is also not in dispute that the email and the letter dated 27.11.2013 do not disclose any other reason, except the reason that her health has improved. The other reason stated in the resignation letter that her elder daughter was having problem of Dyslexia and she requires constant monitoring and parental support, was not stated to have improved on account of any change of circumstance. Thus, the impugned letter dated 6.1.2014 passed by the petitioner was just and proper. The subsequent letter dated 24.1.2014 could not be treated as in continuation of the earlier letter dated 27.11.2013 for the purpose of reconsideration of resignation, which stood accepted and the second respondent stood relieved from the office.
11. To appreciate the provisions of Rule 26(4) of the CCS (Pension) Rules, 1972, it is apt to extract the same as under :
26. Forfeiture of service on resignation.
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(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.
12. A reading of the provisions of Rule 26(4) (supra) makes it clear that sub rule 4 of Rule 26 is an enabling provision, which authorises the competent authority to consider withdrawal of resignation on certain conditions that the compelling reasons which did not involve any reflection on his integrity, efficiency or conduct, has been changed subsequently; secondly, the conduct of the person concerned was, in no way, improper from the date resignation became effective, till the date from which the request for withdrawal was made; thirdly, the period is not more than 90 days; and fourthly, the post which is to be vacated on account of acceptance of resignation, is still available. In that view of the matter, even if the resignation has been accepted, the competent authority is not without power to consider the subsequent letter for withdrawal of resignation. The time prescribed for making the application is 90 days from the date resignation became effective. In that event, if the relevant date is taken to be 01.10.2013, the letter of the second respondent ought to be considered within 90 days from that date, in the light of the provisions of Rule 26(4) of the CCS Pension Rules. Indisputably, the subsequent letter dated 24.01.2014 of the second respondent was beyond the period of 90 days from the date resignation became effective and as such, the said letter cannot be considered as in continuation of the earlier letter dated 27.11.2013.
13. Thus, the direction of the Tribunal to consider the letter dated 27.11.2013 of the applicant along with his letter dated 24.01.2014 is not justified and proper. The Tribunal fell into error in this aspect.
14. In normal circumstances, as per service rules, after the resignation of an employee had been accepted, he cannot withdraw his resignation. However, in the facts of the case, wherein, there is a statutory provision enabling the competent authority as well as the employee to make an application for re-consideration of the request for withdrawal of the resignation even after acceptance of the resignation, the petitioner was competent to consider the reasons and pass a fresh order on the withdrawal of the resignation, in terms of Rule 26(4); ibid, only.
15. As a sequel, the impugned order dated 12.09.2014 passed by the Tribunal is set aside and the writ petition is allowed. No costs. Connected Miscellaneous Petition is closed.
