Ramesh Chauhan Vs State of Hp and Ors.

Hon’ble Mr.Justice Jiya Lal Bhardwaj, Judge. Whether approved for reporting?¹ Yes For the petitioner: Mr.Ajay Kumar Dhiman, Ms.Sakshi Bhardwaj and Ms.Neha Negi, Advocates. For the respondents: Mr.Vishwa Deep Sharma, Additional Advocate General.

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Jiya Lal Bhardwaj, Judge (Oral)

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The petitioner by way of present petition, has

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prayed for the following substantive reliefs:-

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“ a) A writ in the nature of certiorari may be issued and thereby quash the impugned order dated 24-2-2014 Annexure P-2 and order of transfer dated 23-4-2014 Annexure P-4.

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b) A writ in the nature of mandamus may be issued and thereby directing the respondent no 3 to allow the petitioner to work at IGMC Shimla till the final outcome of this writ petition.”

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The facts, which emerge from the pleadings, are that the petitioner was appointed as Radiographer with the

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respondent-Department in the year 1980 and joined his

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1 Whether the reporters of Local Papers may be allowed to see the judgment?

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duties on 22.10.1980. Thereafter, he was promoted to the post of Senior Radiographer and was serving in the IGMC Shimla. The petitioner was transferred vide order dated 23.03.2013 from IGMC, Shimla to CHC Amb (Matri), District Una, H.P. Feeling aggrieved by the said transfer order, he had preferred CWP No.1770 of 2013, titled , Ramesh Chauhan vs. State of H.P. and others before this Court and this Court vide judgment dated 24.05.2013, quashed the transfer order dated 23.03.2013. However, later on, the petitioner was again transferred vide office order dated 27.12.2013 from IGMC, Shimla to Zonal Hospital, Dharamshala, District Kangra, H.P. The petitioner again feeling aggrieved by the transfer order, preferred CWP No.10026 of 2013, which was disposed of on 06.01.2014 by

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granting liberty to him to approach the respondents/competent authority by making a representation, who will decide the same by a speaking and reasoned order. However, the petitioner neither filed any representation nor turned up for the personal hearing and was relieved, in compliance with the transfer order dated 27.12.2013.

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The petitioner again approached this Court by preferring CWP No.1656/2014 against the transfer order dated 27.12.2013 and his relieving, however, his petition was dismissed as withdrawn with liberty to comply with the order passed by this Court in CWP No.10026/2013. The petitioner instead of joining at the transferred place, had applied for voluntary retirement on 24.01.2014 from Government service and had specifically mentioned the date as 30.04.2014. As per request made by the petitioner, respondent No.2 had passed an office order on 24.02.2014 (Annexure P-2) retiring him from Government service on 23.04.2014 afternoon under Rule 3(2) of Himachal Pradesh Civil Services (Premature Retirement) Rules, 1976, subject to the condition that outstanding amount, if any, shall be recovered from the official concerned first, before the date of his retirement.

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The petitioner before the date of his retirement fixed as 23.04.2014,moved an application on 22.04.2014 (Annexure P-3) for withdrawal of his resignation. But respondent No.3 had passed an office order on 23.04.2014 (Annexure P-4) relieving the petitioner from his duties on premature retirement on his request, under Rule 3(2) of the Himachal Pradesh Civil Services (Premature Retirement)

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Rules, 1976 in compliance with the earlier order dated 24.02.2014 passed by respondent No.2. The petitioner feeling aggrieved by his premature retirement had issued legal notice dated 06.07.2014 (Annexure P-5), averring therein that neither any action has been taken on the withdrawal application of resignation made by the petitioner, which was received vide Diary No.3201 dated 22.04.2014 in the office of respondent No.2,nor any intimation has been given to him. Respondent No.2 after receipt of the legal notice had passed an order on 26.07.2014, noticing that the request made by the petitioner was diarized vide Diary No.3201 dated 22.04.2014, which was put up on file on the same day for perusal and further necessary directions/orders of the higher authorities. However, after going through the complete contents of file as also the detailed correspondence and record available, the request for withdrawal was ordered to be filed by the then Director, Health Services, H.P. with the remarks that he has joined his duties at Zonal Hospital, Dharamshala and does not want to re-consider his decision for voluntary retirement, hence, no further decision was thereafter taken on such request and as per office order dated 24.02.2014 issued with regard to his retirement.

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The petitioner feeling aggrieved by the order dated 24.02.2014 (Annexure P-2) passed by respondent No.2 and order dated 23.04.2014 (Annexure P-4) passed by respondent No.3 has approached this Court by way of present writ petition, praying therein for quashing the same on the grounds that once the petitioner had made an application for withdrawal of his resignation on 22.04.2014 before the date fixed for his retirement on 23.04.2014, the impugned order passed by respondent No.3 to relieve him of his duties on 23.04.2014 is with legal malice and has been passed, just to harass him. It has further been averred that the impugned order of relieving the petitioner of his duties is also violative of Articles 14, 16 and 309 of the Constitution of India. It has also been averred that the impugned orders are against the Service Rules and as such, the same are liable to be quashed. 6. The respondents filed reply to the petition and have not disputed the facts mentioned in the writ petition. It has been averred that in the application for withdrawal of resignation, the petitioner had sought retirement on account of harassment of some persons working in the IGMC, whereas in the earlier application for seeking pre-mature retirement (Annexure P-1), he had given personal reasons of family

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circumstances. It is further averred in the reply that the averments advanced by the petitioner for not allowing him for withdrawal of his application for retirement are not at all sustainable in the eyes of law. The petitioner was relieved of his duties pursuant to his premature retirement application and, the petitioner had submitted his leave case w.e.f. 25.01.2014 to 22.04.2014 on medical grounds to the office of respondent No.3, vide his undated application for getting the aforesaid period of his absence regularized. After verification, the respondents have settled the leave case and released all dues and admissible benefits in favour of the petitioner.

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I have heard the learned counsel for the parties and also perused the record carefully. 8. Before proceeding further, it would be relevant to quote the averments made by the petitioner in the application (Annexure P-1) for premature retirement from Government Service, which reads as under:-

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“ To

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The Director of Health Services Himachal Pradesh Shimla-171009. Through Proper Channel. Sub:- Application for Pre-mature retirement from Govt. Service. Sir, With due respect 1 am to say that presently I am working as Sr. Radiographer in Department of Radiology IGMC Shimla. Due to my family

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circumstances I want to take premature retirement from my services. Hence this notice for three months for the aforesaid retirement may kindly be considered. 1 have joined my service as Radiographer in the Department of Health and Family Welfare w.e.f 22.10.1980 and served the department for complete 33 years. My date of retirement is 30.09.2015. I, therefore, request your goodself to kindly consider my application and intimate the same in due course of time i.e. 30.4.2014.

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Yours faithfully, Sd/(Ramesh Chand Chauhan) Sr. Radiographer Deptt. Of Radiology IGMC Shimla.

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SHIMLA:

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Copy in advance is forwarded to the Director Health Services Shimla -171009 for information and kind consideration please.

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Sd/(Ramesh Chand Chauhan)”

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A perusal of the application clearly reveals that the petitioner had made a request to consider his retirement w.e.f. 30.04.2014. It is not in dispute that respondent No.2 had considered the application of the petitioner and had passed the order dated 24.02.2014 (Annexure P-2), specifically making clear therein that the petitioner shall be retired from Government service on 23.04.2014 A/N. The said office order dated 24.02.2014 is reproduced as under:-

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“Health and Family Welfare Department Himachal Pradesh.

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No.Swa-Ni(1)Kh(2)11/91____Dated Shimla-171009, the

OFFICE ORDER

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Sh. Ramesh Chauhan, Sr. Radiographer will retire from the Government service on 23.4.2014 A/N on his own request, under Rule 3 (2) of Himachal Pradesh Civil Services (Premature Retirement) Rules, 1976 and as amended from time to time, subject to the conditions that outstanding amount, if any, shall be recovered from the official concerned first.

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Director Heath Services, Himachal Pradesh. SEAL Dated 24.02.2014”

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It is also not in dispute that the petitioner before the cut-off date fixed by the respondents in the office order dated 24.02.2014 as 23.04.2014 had made an application for withdrawal of resignation on 22.04.2014, which application was duly received in the office of respondent No.2 vide Diary No.3201 dated 22.04.2014. Once the petitioner had specifically mentioned that his date of retirement would be 30.04.2014, which otherwise was not considered by respondent No.2, while passing order dated 24.02.2014 (Annexure P-2) retiring him on 23.04.2014 and prior thereto, he had made an application for withdrawal of his resignation, the respondents could not have relieved him from service on 23.04.2014, as per office order dated 23.04.2014, passed by respondent No.3.

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It is settled law that the prospective resignation is to take effect from the date mentioned in the application. In the present case, though the petitioner had mentioned the

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date in the application for pre-mature retirement from Govt. service as 30.04.2014, but respondent No.2 as per office order dated 24.02.2014 had fixed the date to retire him from Government service on 23.04.2014 afternoon and the petitioner one day prior to that date had moved the application for withdrawal of his resignation and thus, the respondents could not have retired the petitioner on 23.04.2014, which is totally illegal and against law. In this regard, a reference can be made to the judgment of the Constitution Bench of the Hon’ble Supreme Court in Union of India and others vs. Gopal Chandra Misra and others (1978) 2 SCC 301 . The relevant paras of the judgment are reproduced as under:-

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“33. Thus considered, it is clear that merely by writing the letter to the President on May 7, 1977, proposing to resign with effect from August 1, 1977, the Judge had not done all which he was required to do to determine his tenure, of his own volition, under Proviso (a) to Article 217(1). He had not, as yet, resigned his office on May 7, 1977, itself, he had not done everything which was necessary to complete the requirement of the expression "resign his office". He had not-relinquished his office and thus delinked himself from it. He had not-as the learned Judges of the High Court have erroneously assumed-crossed the Rubicon-Ribicon was still afar, 85 days away in the hazy future. At any time, before that dead line (August 1, 1977) was reached, the Judge could change his mind and choose riot to resign, and withdraw the communication dated May 7, 1977.

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We have already seen that there is nothing in the Constitution or any other law which prohibits the withdrawal of the communication to resign from a future date, addressed by a, Judge to the President, before it becomes operative. Could he then be debarred from doing so on the ground of public policy?

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In this connection, Shri Jagdish Swarup contended that. but for the words "President and VicePresident", the language of Proviso (a,) to Article 217(1) is identical with that of Proviso (a) to Article 56 (1) of the Constitution which gives an identical right to, the President to resign his office by writing under his hand, addressed to the Vice- President. If this Court involves a principle-proceeded the argument---whereby it permits a Judge who, is a Constitutional functionary of the same class as the President or the VicePresident, whereby he can withdraw his resignation, it will lead to startling results. The Constitutional functionaries would misuse such implied power of withdrawal of resignation. The President may hold the Parliament to ransom and make a farce of Parliamentary sovereignty and the functioning of the Constitution. On these premises, it was urged that public policy demands that no such interpretation should be put on these Constitutional provisions which would lead to abuse of power by the Constitutional functionaries.

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36. The contention appears to be misconceived.

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The argument assumes that a tender of prospective resignation is always motivated by sinister considerations and, therefore, to permit its withdrawal is never in the public interest. We are unable to concede this as a rule of universal application. Any number of cases are conceivable where a prospective resignation is tendered with the best of motives. A Judge renowned for his conscientiousness and forensic skill may send an intimation under his hand to the President proposing to, resign from a future date, 2 months away, covering this interregnum by two months' leave due to him, in the belief, founded on his doctor's advice, that he is stricken with a malady which will progressively render him deaf in two. months' time. The motive behind the, tender is that the Judge feels that he will no longer be able to discharge his official duties to the entire satisfaction of

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his conscience. But before the date on which the prospective resignation is to take effect, a surgical operation completely and permanently cures him of the disease and restores his full hearing power, and the Judge immediately thereupon, sends a communication withdrawing the tender of his resignation. Will not such withdrawal be in the interest of the public and justice to the Judge ? Con- versely, will not refusal of such withdrawal deprive the public of the benefit of his forensic talents in exposition of law and at the same time work hardship and injustice to the Judge?

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It must be remembered that the doctrine of public policy is only a branch of the common law, and its principles have been crystallized and its scope well delineated by judicial precedents. It is sometimes described as "a very unruly horse". Public policy, as Burroughs, J. put it in Fauntleroy's case, "is a restive horse and when you get astride of it, there is no knowing where it will carry you". Public policy can, there fore, be a very unsafe, questionable and unreliable ground for judicial decision and Courts cannot, but be very cautious to mount this treacle, rows horse even if they must. This doctrine, as pointed out by this Court in Gherulal Parekh's case (ibid), can be applied only in a case where clear and undeniable, harm to the public is made out. To quote the words of Subba Rao, J. (as he then was) :

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"Though theoretically it may be permissible to, evolve a new head (of public policy) under exceptional circumstances of a changing world, it is advisable in the, interest of stability of society not to make any attempt to discover new heads in these days".

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There are no circumstances, whatever, which would show that the withdrawal of the resignation by the appellant would cause harm to the public or even to an individual. The contention, therefore, is repelled.

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Shri Jagdish Swarup's argument that a right to withdraw such a resignation will have wide and unhealthy repercussions on the other Constitutional functionaries, particularly the President, and encourage them to abuse this right, appears to be a false alarm. We are here considering the case of

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withdrawal of a 'prospective resignation' by a Judge of a High Court and not of any other Constitutional functionary. it may not be correct to say that whatever principle we evolve with reference to the interpretation of Article 217(1), Proviso (a), will automatically govern the withdrawal of such a prospective resignation by the President of India because the provisions of Article 56 relating to a resignation by the President are not, in all respects, identical with those of Article 217. There is no provision in Article 217 corresponding to clause (2) or clause (1) (c) of Article 56, and in this case in accordance with the well-settled practice of the court, we refrain from expressing any opinion with regard to the interpretation and effect of these distinctive provisions in Article 56.

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We are also unable to agree with the High Court that the mere sending of the letter, dated May 7, 1977 by the Judge to the President and its receipt by the latter, constituted a complete juristic act. By itself, it did not operate to terminate the office tenure of the Judge, and as such, did not bring into existence any legal effect. For the same reason, the principle underlying Section 19 of the Transfer of Property Act is not attracted.

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xxxx xxx xx

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B. K. Mukherjee, J. (as he then was), speaking for the Court, negatived the first contention on the ground that since the plaintiff had himself sought permission for retirement at the age of 55 years, it was a useless formality to asks him to show cause as to why his services should not be terminated. While disposing of the second contention, which had lost its force in view of the Courts decision on the first point, the Court made these crucial observations:

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"It may be conceded that it is open to a servant, who has expressed a desire to retire from service and applied to his superior officer to give him the requisite permission, to change his mind subsequently and ask for cancellation of the permission thus obtained; but, be can be allowed to do so as long as he continues in service and not after it has terminated."

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The rule enunciated above was reiterated by this Court in Raj Kumar v. Union of India, in these words:

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"When a public servant has invited by his letter of resignation determination of his employment, his services normally stand, terminated from the date on which the letter of resignation is accepted by the appropriate authority, and in the absence of any law or rule governing the conditions of his service to the contrary, it will not be open to the public servant to withdraw his resignation after it is accepted by the appropriate authority. Till the resignation is accepted by the appropriate authority in consonance with the rules governing the acceptance, the public servant concerned has locus poenitentiae but not thereafter."

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Again, the Hon’ble Supreme Court in Balram Gupta vs. Union of India and another, 1987 (Supp) SCC 228, has reiterated the same principles and the relevant paras of the judgment reads as under:-

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“9. Learned counsel appearing for the appellant contended before us that this rule was bad as violative of the Fundamental Rights of citizens. Challenge to the rule was however not made before the High Court on this ground. He, however, contended that if the rule be read as consistent with the constitutional requirements of reasonableness which is well accepted rule of construction, then the Government could not withhold approval to the withdrawal of resignation without any rhyme or reason. The counter-affidavit filed in this proceeding by Shri Majgaonkar, who is the respondent No. 2 in this appeal reveals very little as to why the sanction was withheld. It is stated in paragraph 5 of the said affidavit that it was not in the knowledge of the respondent as to what prompted the appellant to request the withdrawal. What is important in this connection to be borne in mind is not what prompted the desire for withdrawal but what is important is what prompted the government from withholding the withdrawal. In this respect the government affidavit

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certainly lacks candour. In appropriate cases where the Government desires that public servant who seeks voluntarily to resign should not be allowed to continue, it is open to the Government to state those reasons. There may be hundred and one situations where a situation or opportunity like this may be used by the Government to ease out a disgruntled or reluctant or troublesome employee. It was further stated that there were guidelines which were laid down by the O.M. No. 24(57)-E-V-32 dated December 24, 1952 for considering and deciding in the matter of accepting or refusing the withdrawals of notices of voluntary retirement. What part of the guidelines was violated by the appellant was not indicated or spelled out in the said affidavit. We would advert to certain guidelines and examine if these were violated later. It is only stated that the application for withdrawal was considered in the light of the said guide- lines and the request was turned down appropriately. It was further stated that the notice of termination of service or of retirement is a unilateral act whereby the officer communicates his intention to dissolve the contract of service and unlike resignation it operates without the consent of the other party. It is, therefore, submitted that once notice was given it became operative immediately, if it was received by the Government and automatically brought about the dissolution of contract after the expiry of the notice period. We are unable to accept this submission and this position. The dissolution would be brought about only on the date indicated i.e., March 31, 1981, upto 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.

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10. This question arose in the case of one Shri Satish Chandra, then a Judge in the High Court of Allahabad in Union of India v. Shri Gopal Chandra Misra and others, [1978] 3 S.C.R. 12. There the second respondent Shri Satish Chandra wrote to the President of India, on May 7, 1977, intimating his resignation from the office of Judge of the Allahabad High Court, with effect from August 1, 1977. On July 15, 1977, he again wrote to the President, revoking his earlier communication, and

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commenced deciding matters in Court from July 16, 1977. On August 1, 1977 the first respondent Shri Misra, an advocate of the said High Court filed a writ petition under Article 226 of the Constitution contending that the resignation of Shri Satish Chandra having been duly communicated to the President of India in accordance with Article 217(1) Proviso (a) of the Constitution was final and irrevocable, and that the continuance of said Shri Satish Chandra as a Judge of the High Court there- after, was an usurpation of public office. The High Court allowed the petition holding that Shri Satish Chandra was not competent to revoke his resignation letter. On appeal this Court held that the resigning office necessarily involved relinquishment of the office which implied cessation or termination of, or cutting as under from the office. A complete and effective act of resigning office is one which severs the link of the resigner with his office and terminates its tenure. In the context of Article 217(1) this assumes the character of a decisive test, because the expression "resign his office" occurs in a proviso which excepts or qualifies the substantive clause fixing the office tenure of a judge upto the age of 62 years. It was further reiterated that in the absence of a legal, contractual or constitutional bar, an intimation in writing sent to the appropriate authority by an incumbent, of his intention or proposal to resign his office/post from a future specified date, can be withdrawn by him at any time before it becomes effective i.e., before it effects termination of the tenure of the office/post, or employment. This general rule equally applies to Government servants and constitutional functionaries, this Court reiterated. The other peculiar essence of Article 217 which was discussed need not detain us in the facts of this case. On the principle of general law the offer to relinquishment could have been withdrawn by the appellant before the date it became effective if sub-rule (4) of Rule 48-A was not there.

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11. In Air India etc. v. NergeshMeerza&Ors. etc., [1982] 1 S.C.R. 438, there the Court struck down certain provisions of Air India Employees Service Regulations. We are not concerned with the actual controversy. But the Court reiterated that there should not be arbitrariness and hostile discrimination in Government's approach to its employees. On behalf of the respondent it was submitted that a Government servant was not

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entitled to demand as of right, permission to withdraw the letter of voluntary retirement, it could only be given as a matter of grace. Our attention was also drawn to the observations of this Court in Raj Kumar v. Union of India, [1968] 3 S.C.R. 857. There the Court reiterated that till the resignation was accepted by the appropriate authority in consonance with the rules governing the acceptance, the public servant concerned has locus poenitentiae but not thereafter. Undue delay in intimating to the public servant concerned the action taken on the letter of resignation may justify an inference that resignation had not been accepted. But in the facts of the instant case the resignation from the Government servant was to take effect at a subsequent date prospectively and the withdrawal was long before that date. Therefore, the appellant, in our opinion, had locus. As mentioned hereinbefore the main question was whether the sub-rule (4) of Rule 48-A was valid and if so whether the power exercised under the subrule (4) of Rule 48-A was proper. In the view we have taken it is not necessary, in our opinion, to decide whether subrule (4) of Rule 48-A was valid or not. It may be a salutary requirement that a Government servant cannot with- draw a letter of resignation or of voluntary retirement at his sweet will and put the Government into difficulties by writing letters of resignation or retirement and withdrawing the same immediately without rhyme or reasons. Therefore, for the purpose of appeal we do not propose to consider the question whether sub-rule (4) of Rule 48-A of the Pension Rules is valid or not. If properly exercised the power of the government may be a salutary rule. Approval, however, is not ipse dixit of the approving authority. The approving authority who has the statutory authority must act reasonably and rationally. The only reason put forward here is that the appellant had not indicated his reasons for withdrawal. This, in our opinion, was sufficiently indicated that he was prevailed upon by his friends and the appellant had a second look at the matter. This is not an unreasonable reason. The guidelines indicated are as follows:

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(2) A question has been raised whether a Government servant who has given to the appropriate authority notice of retirement under the para 2(2) above has any right subsequently (but during the currency of the notice) to withdraw

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the same and return to duty. The question has been considered carefully and the conclusion reached is that the Government servant has no such right. There would, however, be no objection to permission being given to such a Government servant, on consideration of the circumstances of his case to withdraw the notice given by him, but ordinarily such permission should not be granted unless he is in a position to show that there has been a material change in the circumstances in consideration of which the notice was originally given.

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Where the notice of retirement has been served by Government on the Government servant, it may be withdrawn if so desired for adequate reasons, provided the Government servant concerned is agreeable."

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The same view has again been reiterated by the

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Hon’ble Supreme Court in Shambhu Murari Sinha vs. Project & Development India Limited and another, (2002) 3 SCC 437 . The relevant paras of the judgment are reproduced hereunder:-

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“9. A Constitution Bench of this Court in Union of India & Others versus Gopal Chandra Misra & Others [(1978) 2 SCC 301] in paragraph 50 held that the general principle 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 or the officetenure of the resignor.' SSC p.317 (emphasis ours) As stated above in the present case in the VRS, there was no indication regarding effective date of voluntary resignation and there is also no condition that once it was accepted it could not be withdrawn.

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10. In Balram Gupta versus Union of India &Anr. [(1987) Supp. SCC 228] the principle laid down in Gopal Chandra Misra (supra) was summarised as follows(SCC pp.233-34 Para 10):-

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"A complete and effective act of resigning office is one which severs the link of the resignor with his office and terminates his tenure."

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11. In Balram Gupta's case, the appellant-employee offered to voluntary retire from service w.e.f. 31-3-1981 and accordingly sent a letter within the notice period. However, he changed his mind and sent a letter on 31.1.1981 seeking to withdraw his notice of voluntary retirement but the request was disallowed by the concerned authority on the ground that the withdrawal of notice could only be with the specific approval of the authority. This Court held that the dissolution of the contract of employment would be brought about only on the date indicated i.e. 31.3.1981 and upto that date the appellant continued as Government employee. He is at liberty to withdraw his notice of voluntary retirement and for this purpose, prior approval is not required.

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12. The decision in J.N. Srivastava versus Union of India [(1998) 9 SCC 559] is also to the same effect. This Court held as follows(SCC p.560, Para 3):-

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"It is now well settled 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 locus poenitentiae to withdraw the proposal for voluntary retirement. The said view has been taken by a Bench of this Court in the case of Balram Gupta versus Union of India."

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13. In Nand Keshwar Prasad versus Indian Farmers Fertilizers Cooperative Ltd. &Ors. [(1998) 5 SCC 461], in paragraph 11, this Court reiterated that it is open to the employee concerned to withdraw letter of resignation before the date indicated in the notice of voluntary retirement. It was also observed therein(SCCpp.464-65):

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"it appears to us that the law is well settled by this Court in a number of decisions that unless controlled by condition of service or the statutory provisions, the retirement mentioned in the letter of resignation must take effect from the date mentioned therein and such date cannot be advanced by accepting the resignation from an earlier date when the employee concerned did not intend to retire from such earlier date."

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14. In Raj Kumar versus Union of India [(1968) 3 SCR 857] the normal rule has been stated as follows(SCRp.860 F-G):-

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"When a public servant invited by a letter of his resignation determination of his employment, his service normally stands terminated from the date on which the letter of resignation is accepted by the appropriate authority and in the absence of any law or rule governing the conditions of his service to the contrary it will not be open to the public servant to withdraw his resignation after it is accepted by the appropriate authority in consonance with the rules governing the acceptance, the public servant concerned has locus poenitentiae but not thereafter."

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15. The above cases may not have direct application to the facts of the present case, however, the principles laid down therein deserve notice.

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16. In Power Finance Corporation Ltd. versus Pramod Kumar Bhatia [(1997) 4 SCC 280] this Court went a step further and observed thus(SCCp.282, Para 7):-

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"7. It is now settled legal position that unless the employee is relieved of the duty, after acceptance of the offer of voluntary retirement or resignation, jural relationship of the employee and the employer does not come to an end."

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17. It was pointed out in that case that the acceptance of voluntary retirement was not unconditional and before the conditions could be complied with, the employee could withdraw from the scheme. On those facts, the above observations were made. It is not necessary to consider whether in all cases, actual relief becomes the crucial date. However, the ratio of decision in Balram Gupta's case coupled with the observations of the Constitution Bench in Gopal Chandra Misra's case (underlined above) could usefully applied to the present case.

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18. Coming to the case in hand the letter of acceptance was a conditional one inasmuch as though option of the appellant for the voluntary retirement under the scheme was accepted but it was stated that the 'release memo along with detailed particulars would follow'. Before the appellant was actually released from the service, he withdrew his option for voluntary retirement by sending two letters dated 7-8-1997 and 24-09-1997, but there was

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no response from the respondent. By office memorandum dated 25-09-1997, the appellant was released from the service and that too from the next day. It is not disputed that the appellant was paid his salaries etc. till his date of actual release i.e. 26-09-1997, and, therefore, the jural relationship of employee and employer between the appellant and the respondents did not come to an end on the date of acceptance of the voluntary retirement and said relationship continued till 26-09-1997. The appellant admittedly sent two letters withdrawing his voluntary retirement before his actual date of release from service. Therefore, in view of the settled position of the law and the terms of the letter of acceptance, the appellant had locus poenitentiae to withdraw his proposal for voluntary retirement before the relationship of employer and employee came to an end.

¶125

19. We, therefore, hold that the respondent could not have refused to accept the resignation of the appellant as it was sent before the jural relationship of employee and employer came to an end. Consequently, the impugned judgment is liable to be set aside, which we hereby do. The appellant shall be entitled to rejoin his duty and he shall be paid all his salaries and other benefits during the period he was out from the service. The learned counsel for the respondent has stated that by this time the appellant might have retired from service on attaining the age of superannuation, if that be so, he shall be paid full salary and allowances for the entire period he was out of service till the date of his retirement and thereafter, he shall be entitled to get all retiral benefits counting the above period as if he was in service.

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20. We, therefore, allow the appeal by setting aside the impugned judgment. We leave the parties to bear their own costs.”

¶127

The similar preposition had again come up before the Hon’ble Supreme Court in Air India Express Limited

¶128

and others vs. Captain Gurdarshan Kaur Sandhu (2019)

¶129

17 SCC 129 and the Hon’ble Court has held that an employee can withdraw the resignation before the cut-off date

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mentioned in the application. The relevant paras of the judgment are reproduced as under:-

¶133

“12. It is thus well settled that normally, until the resignation becomes effective, it is open to an employee to withdraw his resignation. When would the resignation become effective may depend upon the governing service regulations and/or the terms and conditions of the office/post. As stated in paragraphs 41 and 50 in Gopal Chandra Misra, “in the absence of anything to the contrary in the provisions governing the terms and conditions of the office/post” or “in the absence of a legal contractual or constitutional bar, a ‘prospective resignation’ can be withdrawn at any time before it becomes effective”. Further, as laid down in Balram Gupta, “If, however, the administration had made arrangements acting on his resignation or letter of retirement to make other employee available for his job, that would be another matter.”

¶134

In the light of the aforementioned principles the issue whether the respondent could have withdrawn her letter of resignation depends upon answers to the following questions:

¶135

A) Whether the stipulation of the notice period in the CAR is intended to safeguard the interest of the employee? and

¶136

B) Whether the provisions of the CAR and the governing principles stipulated therein are in the nature of special provisions coming within the exception stipulated in paragraphs 41 and 50 of the decision in Gopal Chandra Misra and para 12 of the decision in Balram Gupta thereby disabling the respondent from withdrawing her resignation?

¶137

The CAR acknowledges that it takes considerable period to train a pilot to operate an aircraft and that as a part of the training, the new incumbent will be required to pass technical and performance examinations and will have to undergo simulator and flying training and to undertake skill test to satisfy the requirements. Even after imparting of such training, said person would function only as a co-pilot till he reaches the level of expertise

¶138

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required of a pilot. The CAR states that the resignation without minimum notice of six months could result in last minute cancellation of flights and harassment to passengers. As the pilots are highly skilled personnel, a decision was taken that any act on part of the pilots including resignation from the airlines without minimum notice period of six months be treated as an act against public interest. The CAR, therefore, provides:-

¶141

14.1. During the notice period neither the pilot shall refuse to undertake flight duties nor shall the employer deprive the pilot of his legitimate rights and privileges.

¶142

14.2. In case the air transport undertaking resorts to reduction in the salaries/perks, the pilot will be free to make a request for his release before the expiry of the notice period.

¶143

14.3. On the expiry of the notice period an appropriate NOC shall be issued by the air transport undertaking.

¶144

14.4. The notice period of six months could however be reduced if the NOC was provided to the pilot and his resignation was accepted earlier than six months.

¶145

In terms of the provisions of the CAR, the terms and conditions of appointment in the instant case specifically stated that the respondent would give six months’ notice in case she desired to leave the services of the appellant.

¶146

The underlying principle and the basic idea behind stipulation of the mandatory notice period is public interest. It is not the interest of the employee which is intended to be safeguarded but the public interest which is to be sub-served. It seeks to ensure that there would not be any last minute cancellation of flights causing enormous inconvenience to the travellers. It is for this reason that the concerned pilot is required to serve till the expiry of the notice period. The notice period may stand curtailed if NOC is given to the concerned pilot and the resignation is accepted even before the expiring of the notice period. It may, in a given case, be possible that the trained manpower to replace the pilot, who had tendered resignation, could be made available before the expiry of such notice period, in which case the employer is given a choice under Clause 3.7 of the CAR. Even in such

¶147

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eventuality, the guiding idea or parameter is public interest.

¶150

The stipulation of notice period is, therefore, only to sub-serve public interest and is designed to enable the air transport undertaking or employer to find a suitable replacement or a substitute. By very nature of the job profile a replacement for a pilot does not come so easily and therefore, the period of six months. The CAR acknowledges the fact that it would require considerable expenses and efforts to train the concerned replacement before he could be a worthy substitute. The notice period enables the air transport undertaking or the employer to gear itself up in that direction and obliges it to find a substitute or a replacement. The obligation to find a suitable replacement begins immediately on receipt of letter of resignation. In the present case, steps were taken by the appellant to discharge such obligation and replacement in Captain Jiban Mahapatra was found. The normal principle that an employee can at any time before the resignation becomes effective, withdraw his resignation will therefore be subject to the core principles of the CAR. In our view, the instant matter would, therefore, be within the exception stipulated in paragraphs 41 and 50 of the decision in Gopal Chandra Misra and para 12 of the decision in Balram Gupta, and the respondent could not have withdrawn the resignation.

¶151

The letter of resignation may now be considered to complete the discussion. Said resignation letter dated 3.7.2017 had three relevant statements:-

¶152

I am tendering my resignation letter.

¶153

Please consider this as my six months’ notice period.

¶154

If any time I am forced to stay away from home for longer periods during this time, it will be legal for me to leave the company without completing the notice period, as these are the least of the reasons I have mentioned.

¶155

The first sentence shows that the intimation was unequivocal that the respondent was tendering resignation. The following sentence referred to the notice period of six months, being the requirement under the CAR and the terms and conditions of the appointment.

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The third sentence clearly suggested that in case the respondent was forced to stay away from home for longer periods during the notice period, it would be open to her to leave the company without completing the notice period. The notice period was thus only in terms of the requirements of the CAR.”

¶159

Learned Additional Advocate General, on the other hand, has placed reliance upon the judgment of the Hon’ble Supreme Court in North Zone Cultural Centre and another vs. Vedpathi Dinesh Kumar, (2003) 5 SCC 455, to contend that once the resignation of the petitioner was accepted, there is no illegality having been committed by the respondents, while relieving the petitioner on 23.04.2014. However, in case the judgment is read in its entirety, the Hon’ble Supreme Court has only come to the conclusion that once the service stands terminated from the date on which the letter of resignation is accepted by the appropriate authority, it will not be open to the public servant to withdraw his resignation, after it is accepted by the appropriate authority and the noncommunication of the acceptance does not entitle the employee to withdraw the same. In the present case, the resignation of the petitioner was not accepted on the date of passing the order on 24.02.2014, but the same was to be accepted on future date fixed as 23.04.2014 and the petitioner before the said date had moved the application for

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withdrawal of resignation on 22.04.2014 and thus, the ratio laid down is not attracted in the facts of the present case. The relevant paras of the judgment are reproduced as under:-

¶163

“15. In our opinion, both these grounds are unsustainable in law. This Court in Raj Kumar's case (supra) held (AIR p.182, Para 5):

¶164

"When a public servant has invited by his letter of resignation the determination of his employment, his service normally stands terminated from the date on which the letter of resignation is accepted by the appropriate authority and, in the absence of any law or statutory rule governing the conditions of his service, to the contrary, it will not be open to the public servant to withdraw his resignation after it is accepted by the appropriate authority. Undue delay, in intimating to the public servant concerned the action taken on the letter of resignation, may justify an inference that the resignation had not been accepted."

¶165

16. Therefore, it is clear that non-communication of the acceptance does not make the resignation inoperative provided there is in fact an acceptance before the withdrawal.”

¶166

As already held above, in the present case, the petitioner had given a particular date for acceptance of his resignation and respondent No.2, while acting on the same, had passed the order on 24.02.2014 to retire the petitioner from Government service on 23.04.2014. However, the petitioner before the said date, had moved an application for withdrawal of his resignation, which fact has not been disputed by the respondents even while passing the

¶167

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impugned order dated 26.07.2014 and also in reply to the petition. The relationship between the petitioner and the respondents had not ceased on the date of making an application on 22.04.2014 and further the resignation which though was accepted on 24.02.2014, but the same was to be made effective w.e.f. 23.04.2014. Therefore, on 22.04.2014, the jural relationship of an employee and employer between the petitioner and the respondents did not come to an end. Thus, the action on the part of the respondents in relieving the petitioner from his duties on 23.04.2014 and retiring him is violative of Articles 14 and 16 of the Constitution of India.

¶170

Learned Additional Advocate General has vehemently argued that once the petitioner has withdrawn his retiral benefits, the relief claimed by him cannot be granted to him. The said submission cannot be accepted for the reason that once the resignation was to be made effective from 23.04.2014 and the petitioner had given an application before one day i.e. on 22.04.2014 for withdrawal of his resignation, the respondents have committed illegality while relieving the petitioner on 23.04.2014, mis-construing the office order dated 24.02.2014. It seems that respondent No.3 who had passed the office order dated 23.04.2014 was not aware of the

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fact that the petitioner has already moved an application seeking withdrawal of his resignation, since it does not find mention in the order dated 23.04.2014, passed by him and he has acted on the basis of earlier order dated 24.02.2014 passed by respondent No.2, which had made the date for his retirement as 23.04.2014. Since the respondents have not disputed the fact that the petitioner had moved the application for withdrawn of his resignation on 22.04.2014 i.e. one day prior to his retirement as date mentioned in the office order dated 24.02.2014 passed by respondent No.4,the impugned action of the respondents to retire the petitioner on 23.04.2014 is patently illegal and against law and thus, the impugned action and the orders are not sustainable in law and are quashed and set aside.

¶174

Consequently, the present petition is allowed and the impugned orders are quashed and set aside and the respondents are directed to reinstate the petitioner in service and grant him all consequential service benefits including salary till the date of his retirement on attaining the age of superannuation. Since the respondents have released the retiral benefits to the petitioner, the difference of the amount be worked out within three months from today and the same

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be released in favour of the petitioner and further, his pension be also revised. In case the benefits are not released within three months from today, the petitioner shall be paid interest on the arrears @6% per annum from today till its payment to him.

¶178

The writ petition is disposed of in the aforesaid terms, so also the pending applications, if any.

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14^th May, 2026 ( Jiya Lal Bhardwaj ) (naveen) Judge

Ramesh Chauhan v. State of Hp and Ors.

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Ramesh Chauhan v. State of Hp and Ors.

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