@JUDGMENTTAG-ORDER
Dr. Lakshmanan, CJ.
(1). This special appeal was filed by the widow and children of late Gopi Kishan who was working as Sub Inspector of Police against the order dated 16.3.98 in S.B. Civil Writ Petition No. 1301/92 (filed by Gopi Kishan). The said Gopi Kishan joined the service of the Government of Rajasthan as Constable on 15.8.61. He was promoted as Head Constable in the year 1967 and as Assistant Inspector of Police in 1977 and, thereafter, to the post of Sub Inspector of Police on 17.08.81. The said Gopi Kishan on account of certain family circumstances served a notice for voluntary retirement under Rule 244(1) of the Rajasthan Service Rules, 1958 dated 18.9.91 (Annex. 1). The Deputy Inspector General of Police, Ajmer Range, Ajmer passed an order on 1.11.91 (Annex.3). In view of the voluntary retirement with effect from 31.12.91 (Annex.3). In view of the voluntary retirement Gopi Kishan was transferred from Ajmer to Nagaur. Subsequently, the said Gopi Kishan had decided to withdraw the notice and serve the State Government for the remaining period of his service upto the date of superannuation. He, therefore, submitted a representation dated 13.12.91 withdrawing his notice of voluntary retirement (Annex.4). But the Deputy Inspector General of police, Ajmer Range, Ajmer however, did not permit the said Gopi Kishan to withdraw his voluntary retirement notice vide his order dated 30.12.91 (Annex.5). Gopi Kishan was, therefore, retired on 31.12.91 in compliance of the order dated 30.12.91. Gopi Kishan made a further representation on 15.1.92 to the Inspector General of Police requesting him to take him back in service but there was no response. Gopi Kishan earlier filed writ petition No. 1069/92 but he was allowed to withdraw the writ petition with permission to file fresh writ vide order dated 19.2.92. Since his request to continue in service was not complied with, Gopi Kishan filed the present writ petition praying, (1) striking down words "with the approval of appointing authority in Rule 244 (1) (f) of the Rajasthan Service Rules as unconstitutional; (2) to quash the order passed by the Deputy Inspector General of Police dated 30.12.91; (3) directing the respondents to take the petitioner back in service and to treat the petitioner as continuing in service and any other consequential benefits.
(2). A reply was filed by the respondents. According to the respondents, the Deputy Inspector General of police has rightly not permitted Gopi Kishan to withdraw his voluntary retirement notice and, accordingly, he was retired voluntarily on 31.12.91 in compliance of the order dated 30.12.91. It is submitted that the words "with the approval of the appointing authority" neither conferred any arbitrary power upon the appointing authority nor the same offends Articles 14 and 16 of the Constitution of India as alleged and that such condition/requirement is imposed with a view to keep administrative control as well as to check genuineness of the request made by the concerned in that regard and not in any manner otherwise as alleged by the petitioner. It was submitted that the reasons given by the Deputy Inspector General of Police in his order dated 30.12.91 are valid and it does not suffer from any vice or infirmity and the same was passed by the competent authority.
(3). The writ petition was dismissed by a learned Single Judge of this Court. The learned Judge was of the opinion that since the resignation had already been accepted prior to the application for withdrawal, the application has been rightly turned down by the impugned order dated 30th December, 1991 and that there is no illegality or infirmity in the impugned order dated 30th December, 1991 contained in Annex. 5 to the writ petition and hence no relief can be granted to the petitioner. The learned Judge in coming to the said conclusion has referred to 2 decisions of the Supreme Court, reported in Gopal Chand Mishra vs. Union of India (1) and Bal Ram Gupta vs. Union of India (2) to the effect that the resignation can be withdrawn prior to the date of acceptance.
(4). Dissatisfied with the above order the legal representatives of the deceased Gopi Kishan filed the above special appeal. We have heard Mr. J.L. Purohit and Mr. B.S. Bhati for the respective parties.
(5). Mr. Purohit submitted that the case of the writ petitioner is fully covered by judgment in Balram Gupta vs. Union of India & Anr. Case (3) and, as per the principles laid down in this case, the retirement of Gopi Kishan writ petitioner was to take effect at a subsequent date and withdrawal was long before that date. He has also cited Shambhu Murari Sinha vs. Project & Development India & Antoher (4) in support of his contention.
(6). Per contra, Mr. Bhati, learned counsel appearing for the State placed strong reliance on the judgment of the Division Bench in District & Sessions Judge, Balotra vs. Kishan Lal and Another (5) rendered by the then Hon''le Chief Justice Mr. Shivaraj V. Paul and Hon''nle Mr. Justice Bhagwati Prasad.
(7). In this case, the application was made under Rule 244 (1). Under Rule 244 (1) (a) a government servant had been given a right to withdraw the notice given in clause (a) with the approval of the appointing authority provided that the request for such withdrawal is made before the expiry of the notice. In the instant case, the writ petitioner Gopi Kishan served a notice under Rule 244(1) on 18.09.91 (Annex.l). The Superintendent of Police, Ajmer forwarded the notice of retirement to the Deputy Inspector General fo Police, Ajmer Range, Ajmer on 18.9.91 (Annex.2). The Deputy Inspector General of Police, Ajmer passed an order on 1.11.91 giving his approval to the voluntary retirment of the petitioner with effect from 31.12.91 (Annex.3). The writ petitioner again served a notice on 13.12.91 withdrawing his notice of voluntary retirement. (Annex.4). The Deputy Inspector General of Police did not permit the petitioner to withdraw his voluntary retirement vide his letter dated 30.12.91 (Annex.5).
(8). We have perused Annex.l to Annex.6. It is clearly mentioned in Annex. 1 that the notice dated.18.9.91 will be effective from 31.12.91 and, vide Annex. 3, the Deputy Inspector General of Police, Ajmer Range, Ajmer has accepted the notice of the petitioner on 1.11.91 with effect from 31.12.91. Before the expiry of the said date, the petitioner by his representation dated 13.12.91 made two request: (1) to extend the period by further 7 months, i.e. from 31.12.91 to 31.7.92, and (2) if it cannot be granted, it should be treated as withdrawn. This request was rejected by the Deputy Inspector General of Police on 30.12.91. Annex. 5 was passed by the Deputy Inspector General of Police, Ajmer rejecting the prayer for extension or withdrawal. It records that he has asked for extending the date of retirement from 31.12.91 to 31.7.92. In the alternative, the petitioner has requested that if it is not possible, he may be permitted to withdraw his request for voluntary retirement. The Deputy Inspector General of Police rejected the same as according to him there is no reason to reconsider and the petitioner should retire by 31.12.91.
(9). The learned Judge in rejecting the petitioner''s writ petition has followed 2 judgments of the Supreme Court viz.,
(10). It was argued before the Suprme Court that under instructions issued by the Government of India resignation of an officer from service becomes effective after it is accepted and the officer is relieved of his duties and not till then. But, the circular letter has no statutory force. It is not a rule made under Art. 309 of the Constitution as the circular contains merely instructions set out by the Ministry of Home Affairs about the procedure to be followed in respect of resignation from service. The attention of the Supreme Court was not invited to any statutory rule or regulation retating to resignation, especially as to the date on which the resignation becomes effective.
(11). In the above case, the letters written by the appellant on 21st August, 1964 and 30th August, 1964 did not indicate that the resignation was not to become effective until acceptance thereof was intimated to the appellant. The appellant informed the authorities of the State of Rajasthan that his resignation may be forwarded for early acceptance. On the plain terms of the letter, the resignation was to become effective as soon as it was accepted by the appointing authority. No rule has been framed under Article 309 of the Constitution which enacts that for an order accepting the resignation to be effective it must be communicated to the person submitting his resignation.
(12). The above case, in our opinion, will have no direct bearing on the facts and circumstances of the case and is distingushable on facts and on taw. In the above Supreme Court case, the appellant informed the authorities of the State of Rajasthan that his resignation may be forwarded to the Government of India with the remarks of the State Government. The State Government reconmended that the resignation be accepted. On October 31,1964 the Government of India accepted the resignation and requested the Chief Secretary to the Government of Rajasthan to intimate the date on which the appellant was relieved of his duties so that a formal notification could be issued in that behalf. After some time, the appellant changed his mind and by letter dated November 27, 1964 he requested the Chief Secretary to the Government of Rajasthan to recommend acceptance of the withdrawal of his resignation from the Indian Administrative Service. He also addressed a separate letter to the Secretary to the Government of India, Ministry of Home Affairs, intimating that he was withdrawing his resignation from the Indian Administrative Service. On March 29, 1965 an order accepting the resignation of the appellant was issued and the appellant was directed to hand over charge to the Addl. Collector, Kola. The appellant moved a petition in the High Court of Punjab at Delhi to quash the order accepting the resignation of the appellant. The High Court rejected the petition holding that the resignation became effective on the date on which it was accepted by the Government of India and the subsequent withdrawal was ineffective, even if the acceptance of the resignation was not intimated to the appellant.
(13). In the appeal before the Hon''ble Supreme Court the counsel for the appellant contended that so long as the acceptance of resignation was not communicated to him the appellant could withdraw the resignation submitted by him. He invited the attention of the Hon''ble Supreme Court to circular-memorandum issued by the Government of India setting out the procedure to be followed in dealing with the resignation from service. The Supreme Court, on the plain terms of the letters, held that the resignation was to become effective as soon as it was accepted by the appointing authority, and that, no rule has been framed under Article 309 of the Constitution about when the resignation becomes effective.
(14). In the case on hand, the appellant submitted his application for voluntary retirement under Rule 244(1) of the Raj as than Service Rules on 18.9.91 stating that his resignation will be effective from 31.12.91. The Deputy Inspector General of Police has also accepted the notice of the appellant-petitioner on 1.11.91 with effect from 31.12.91; and, before the expiry of the said date, the petitioner by his representation dated 13.12.91 withdrew his letter of voluntary retirement. This apart, as seen earlier, in the above Supreme Court case, no rule has been framed under Article 309 of the Constitution about when the resignation becomes effective. Rule 244 of the Rajasthan Service Rules which deals with the optional retirement on completion of 20 years qualifying service states that a Government servant may, after giving at least 3 months'' previous notice in writing to the Appointing Authority, retire from service on the date on which he completes 20 years of qualifying service or attains the age of 45 years whichever is earlier or any date thereafter to be specified in the notice. Rule 244(1), sub-clause (b), says that a Government servant who has given notice for seeking retirement under clause (a) of this sub-rule, may presume acceptance of the notice of retirement and the retirement shall be effective in terms of the notice authomatically unless an order in writing to the contrary has been issued by the competent authority and served upon the Government servant before the expiry of the period of notice.
(15). Rule 244(1) (f) reads as follows:
"(f) A Government servant may, with the approval of Appointing Authority, withdraw the notice given under clause (a) of the sub-rule provided the request for such withdrawal is made before the expiry of the notice."
As a matter of fact, in the instant case, the petitioner has withdrawn his notice before the expiry of 3 months i.e. 31.12.91 under Annex. 4 dated 13.12.91. Therefore, the dismissal of the writ petition following the judgment in the case reported in
(16). The next judgment relied on by me learned Judge is the judgment of the Hon''ble Supreme Court, reported in Union of India vs. Gopal Chandra Misra & Others (supra). In that case, the Supreme Court was considering the case of a High Court Judge who sent a letter in his own hand to the President of India intimating to resign his office with effect from a future date was competent to withdraw the same before the date is reached. The Allahabad High Court allowed the writ petition and issued a direction restraining Shri Satish Chandra From functioning as a Judge of the High Court. On May 07, 1977, he sent a letter to the President of India submitting his resignation to be effective on 1.8.1977. On July 15, 1977, he wrote to the President of India revoking and cancelling his intention expressed by him to resign on 1.8.1977. By a separate letter, he cut short his leave and resumed duty as a Judge of the said Court and commenced sitting in the Court from July 18,1977. An Advocate of the High Court filed a writ petition under Article 226 of the Constitution of India contending that the resignation dated May 7, 1977 having been duly communicated to the President of India in accordance with the provisions of Article 217 of the Constitution was final and irrevocable and, as a result, the Judge ceased to be a Judge of the High Court with effect from May 7, 1977 or, at any rate with effect from August 1, 1977. The petition came up for final hearing before a Bench of five Judges of that Court which by majority of three against two, issued direction as prayed for. Against the judgment, two appeals were filed on the certificate granted by the High Court.
(17). A preliminary objection was raised by the counsel for the writ petitioner that the Union of India has no locus standi to prefer appeal against the order of the High Court as, according to him, the Union of India was joined merely as a proforma-party in the writ petition inasmuch as no relief was claimed against it. The Hon''ble Supreme Court rejected the said contention and heard arguments of the Addl. Solicitor-General on behalf of the Union of India. He submitted that no objection to the locus standi of the Union of India to contest the writ petition was raised, at any stage, before the High Court. The Supreme Court held that the Union of India is vitally interested in the case. The learned Attorney General, on behalf of the Union of India, contended that under the resignation dated May 07, 1977 it was proposed by the Judge to sever his link with his office with effect from August 1, 1977 and he could not be said to have resigned from his office within the meaning of proviso (a) to Article 217 of the Constitution on May 7, 1977 or, at any time before the arrival of the prospective date indicated by him and that the letter dated May 7, 1977 is merely intimation of an intention to resign from a future date; and, that in the absence of any provision prohibiting withdrawal, an intimation to resign from a future date can be withdrawn at any time before it operates to terminate the employment or the connection of the resignor with his office. The counsel for the respondent in the Supreme Court reiterated the same arguments which found acceptance with the High Court (majority).
(18). The Hon''ble Supreme Court held that the letter dated May 7,1977 addressed by the appellant to the President of India, both in point of law and substance, amounts but to a proposal or notice of intention to resign at a future date (1.8.1977) and not being an absolutely complete resignation operative with immediate effect could be and, in fact, had been validitly withdrawn by the appellant through his letter dated July 15, 1977 conveyed to the President. Accordingly, the appeal filed by the Union of India was allowed and the Supreme Court set aside the majority-judgment of the High Court and dismissed the writ petition filed by the Advocate.
(19). It is thus clear from the above verdict that the general principle regarding resignation is that in the absence of a legal, contractual or constitutional bar, a prospective resignation can be withdrawn at any time before it becomes effective and it becomes effective when it operates to terminate the employment of the office tenure of the resignor. If a government servant chooses to resign from a future date the act of resigning the office is not complete because it does not terminate his tenure before such date and, therefore, the government servant, at any time, before the arrival of that prospective date on which it was intended to be effective, withdraw it.
(20). In the instant case, as already seen, 31.12.91 was referred to as the intended date for the voluntary resignation to become effective. The resignor-petitioner had, before that prospective date, withdrawn it by his letter under Annex. 4. The judgment in
(21). We shall now consider the judgments cited by learned counsel for the appellants,-
(22). In Balram Gupta vs. Union of India & Another (supra) the appellant after completing more than 20 years government service offerd by his letter dated 24.12.80 to voluntarily retire from service with effect from March 31,1981 by treating the notice period with effect from January 1, 1981. The Government allowed the appellant to do so. However, in the meantime, the appellant, at the request of the staff-members, had to change his mind and, accordingly, by his letter dated 31.1.1981 sought to withdraw his notice of voluntary retirement; but, the authority disallowed the appellant''s request under Rule 48-A(4) of the Central Civil Services (Pension) Rules which precludes a government servant from withdrawing his notice except with the specific approval of such authority. Allowing the appeal, the Hon''ble Supreme Court held that there was not valid reason for withholding the permission by the respondent. Their Lordships of the Supreme Court observed as follows:
"There was no valid reason for withholding the permission by the respondent. Therefore, the appellant is entitled to be put back to his job with all the consequential benefits being treated as in the job from March 31,1981.
In the facts of the instant case the retirement from the government service was to take effect at a subsequent date prospectively and that withdrawal was long before that date. Therefore, the appellant had locus poenitentiae. The dissolution of the contract of employment would be brought about only on the date indicated i.e. March 31, 1981; up to that the appellant was and is a government employee. There is no unilateral termination of the same prior thereto. He is at liberty, and entitled independently without sub-rule (4) of Rule 48-A of the Pension Rules, as a government servant, to withdraw his notice of voluntary retirement. In this respect it stands at Par with letter of resignation."
The Supreme Court also follwed
(23). In the present context, J.N. Srivastava vs. Union of India & Another (6), can also be looked into beneficially wherein a short question was involved whether the appellant was entitled to withdraw the voluntary retirement notice of three months submitted by him on 3.10.89 which was to come into effect on 31.1.90. The proposal was accepted by the authority on 2.11.89; but, thereafter, before 31.1.90 was reached the appellant withdrew his letter of retirement. The said request was not accepted by the respondents and the appellant, therefore, went to the tribunal but the Tribunal gave him no relief and took the view that voluntary retirement had come into force on 31.1.90 as the appellant had given up the charge of the post as per his memo relinquishing the charge and consequently he was estopped from withdrawing his voluntary retirement notice. The Supreme Court was of the view that the said reasoning of the Tribunal cannot be sustained on the facts of the case and held that even if the voluntary retirement notice is moved by an employee and gets accepted by the authority within the time fixed before the date of retirement is reached the employee has focus poenitentiae to withdraw the proposal for voluntary retirement. The Supreme Court also applied the ratio laid down in Balram Gupta''s case (supra). Accordingly, the Supreme Court allowed the appeal and set aside the order of the Tribunal as well as the order of the authority; and, directed the respondents to treat the appellant to have validly withdrawn his proposal to retire voluntarily. The net result of the order was that the appellant will have to be treated to be in service till the date of his superannuation.
(24). In Shambhu Marari Sinha vs. Project & Development India & Another (7) though the option of voluntary retirement exercised by the appellant by his letter dated 18.10.95 was accepted by the management on 30.7.97 the appellant was not relieved from service and he was allowed to continue in service till 26.9.97 which, for all practical purposes, would be the effective date as it was on this date that the appellant had already withdrawn his letter of voluntary retirement under his letter dated 7.8.97. The question before the Supreme Court was whether it was open for a person having exercised the option for voluntary retirement to withdraw the offer after its acceptance but before it is made effective. The Supreme Court, following the decision in Balram Gupta''s case (supra) held that the resignation inspite of its acceptance can be withdrawn before the effect date. The Supreme Court allowed the appeal and set aside the High Court judgment with the direction that the appellant will be allowed to continue in service with all consequential benefits.
(25). The learned counsel for the respondents placed reliance on an unreported judgment of this Court, rendered by the men Chief Justice Shri Shivaraj V. Patil and Justice Shri Bhagwati Prasad in D.B. Civil Special Appeal No. 825 of 1998 (supra) on 10.2.2000. The said writ petition was filed by one Kishan Lal (respondent No.l),who contested acceptance of his resignation. He submitted his resignation and expressed that the same should be effective from 16.8.88. On 24.6.88, the competent authority drew the proceedings by virtue of which the resignation tendered was accepted. It was ordered that he will be relieved with effect from 16.8.88 (A.N.). The communication to this effect was sent to the respondent. On 2.7.88, the respondent received this communication. Since 16th August was declared a holiday, therefore, on 17.8.88 the respondent was relieved. After receiving the communication of acceptance of the resignation, respondent No. 1 on 11.7.88, addressed letter (Annex.3) requesting for extension of the relieving date with effect from 31.12.88 instead of 16.8.88. The said communication was rejected by Annex.4. Consequently, the respondent No.l was relieved on 17.8.88. Thereupon, respondent No.l sent another request on 10.9.88 (Annex.7) seeking permission to withdraw his resignation. The learned Single Judge came to the conclusion that the employee had a right to withdraw the resignation even if it was accepted prior to the date of effectivity. The District & Sessions Judge, Balotra filed appeal contesting the decision of the learned Single Judge. It was argued on behalf of the appellant that respondent No.l gave an unequivocal resignation vide Annex.2 and in Annex. 3 he has prayed that the notice regarding resignation be extended upto 31.12.88 and he has not expressed the intention to withdraw the resignation. It was further argued that the wish of the respondent No. 1 was to get the notice -date of 16.8.88 extended upto 31.12.88 which does not in any way tentamounts to withdrawal of the resignation. The Division Bench after considering the rival submissions held as under:
"The law on the point of withdrawal of resignation is clear and unambiguous. An employee has a right to withdraw his resignation before the same comes into effect. In the instant case, the employee has given his withdrawal on 10.9.1988. This date was three weeks latter than his relieving i.e. 17.8.1988. Obviously, it cannot be said that the resignation was withdrawn before it became effective.
Another fact which deserves notice is Annex.2. By this letter, the respondent employee had asked for the correction of the date of notice. There was no whisper in this notice that the employee had any intent of withdrawing his resignation. What is permissible in law is the withdrawal. The employee has only desired that the notice period be extended. In the circumstances, he confined to be an unwilling employee. In this background, it cannot be said that the authority accepting the resignation has committed any illegality. An unwilling employee has to be dealt with appropriately. In view of the State Government decision, such course has been adopted by the authorities.
Consequently, the appeal deserves to be allowed. The judgment of the learned Single Judge is set aside, with the result the writ petition filed by the respondent/petitioner before the learned Single Judge is dismissed."
(26). The above case has no application to the facts and circumstances of the present case and is distinguishable on facts and law. The learned counsel for the respondents submitted that under Annex.5 the appellant has requested for extension of the date of retirement from 31.12.91 to 31.7.92 and, therefore, the appellant had no intention to withdraw the letter of resignation by voluntary retirement. We are sorry that the learned counsel for the respondents is not correct. We have already referred to the contents of Ex.-A/5 in detail. Ex.-A/5 mentions two things. The first prayer is for extension of the date of retirement from 31.12.91 to 31.7.92. In the alternative, the appellant has requested that if it is not possible he may be permitted to withdraw his resignation for voluntary retirement. In the above Division Bench judgment (D.B. Civil Special Appeal No. 825/98) (supra) the only request made by respondent No. 1 was for extension of the notice-date. There was no prayer for withdrawal of the resignation; but, in this case, under Ex.-A/5, the appellant has made two prayers-one for extension and the other for withdrawal of the request for voluntary retirement if extension is not granted. Under such circumstances, the above judgment will be of no assistance to the respondents herein.
(27). For the foregoing reasons, we hold that the retirement of late Gopi Kishan with effect from 31.12.91 was bad in law since withdrawal of the resignation was long before that date and the dissolution of the contract of employment would be brought about only on the date indicated in the letter of resignation, therefore, late Gopi Kishan was entitled to be continued in government employment till the date of his superannuation and also entitled to all the monetary benefits.
(28). In the result, the appeal stands allowed and the judgment of the learned Single Judge is set aside. The appeal is preferred by the legal representatives of late writ-petitioner Gopi Kishan. The respondents will have to make good to the appellants all monetary benefits by treating Gopi Kishan to have continuously worked till the date of his actual death which entitles him to get all the arrears of salary and other emoluments including pensionary benefits etc. on re-fixation. However, this will be subject to adjustment of the amounts already paid to the appellants in the meantime upto the date of actual death of late Gopi Kishan. In our opinion the said Gopi Kishan should be allowed back-salary as he was already ready and willing to work but the respondents did not allow him to work. The respondents are, therefore, directed to make available all the requisite monetary benefits to the legal representatives of the deceased government servant within three months of the receipt of copy of this judgment at their end.
