IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No 433 of 1980 For Approval and Signature: Hon'ble MR.JUSTICE S.K.KESHOTE ============================================================ 1. Whether Reporters of Local Papers may be allowed to see the judgements? 2. To be referred to the Reporter or not? 3. Whether Their Lordships wish to see the fair copy of the judgement? 4. Whether this case involves a substantial question of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? 5. Whether it is to be circulated to the Civil Judge? -------------------------------------------------------------- V R DHANANAI Versus STATE OF GUJARAT -------------------------------------------------------------- Appearance: MR JF SHAH for Petitioner None present for Respondents -------------------------------------------------------------- CORAM : MR.JUSTICE S.K.KESHOTE Date of decision: 18/11/97 C.A.V. JUDGEMENT 1. The petitioner, a Medical Officer, of Health Department of Government of Gujarat, filed this Special Civil Application and prayer has been made for declaration that the petitioner had lawfully withdrawn his resignation dated 17th November, 1978. Further prayer has been made for declaration that the petitioner is in continuous service as if the letter of resignation dated 17th November, 1978 was never tendered and the order dated 18th April, 1979 appointing the petitioner as the new entrant is illegal. Further prayer has been made for declaring the order dated 28-1-1980, terminating the petitioner's services as illegal and void. 2. The facts of the case, in brief, are that the petitioner was temporarily appointed to the Gazetted post of Medical Officer in the Gujarat Public Health Service Class-II vide order dated 15th December, 1970. Thereafter, the petitioner was selected for this post by the Gujarat Public Service Commission and he was given the regular appointment under the order dated 18th January, 1972. 3. On 17th November, 1978, the petitioner submitted a letter of resignation from the services to the Director of Health and Medical Services. No communication has been received by the petitioner for the acceptance of the said resignation. On account of the change in his family circumstances, the petitioner withdrew his letter of resignation by a letter dated 24th January, 1979 addressed to the Hon'ble Minister for Health. The petitioner has approached to the authorities and ultimately, the petitioner was appointed on temporary basis as Medical Officer as a fresh entrant under the order dated 18th April, 1979. After the aforesaid order, the petitioner protested against his appointment as a fresh entrant and reference has been made to his representation dated 26th April, 1979. Then he sent another representation which was followed by subsequent reminders. In those representations, the petitioner had made a request for condonation of break in his service, but that request of the petitioner has been turned down by the respondents vide letter dated 7th January, 1980, a copy of which is submitted on record of this Sp. C.A. as annexure `I'. The petitioner made further representation. However, under the order dated 28th January, 1980, the services of the petitioner were terminated. Hence, this Special Civil Application. 4. This Court has granted the interim relief in favour of the petitioner and the petitioner is continuing in service. This petition has been contested by the respondents by filing reply to the Sp. C.A.. 5. The learned counsel for the petitioner contended that the action of the respondents not to condone the break in service of the petitioner is wholly arbitrary and unjustified. It is a case where the petitioner's resignation was not accepted, and as such, he has all the right to withdraw the same before its acceptance. It has next been contended that a hostile discrimination has been made by the respondents in the matter of condonation of break in service. Reference in this respect has been made by the petitioner to the cases of two Doctors namely, Shri R.T. Goswami and Shri D.M. Pancholi. In the cases of these persons, the break in their service after resignation and reappointment has been condoned. In support of his contention, the counsel for the petitioner has placed reliance on the decision of the Hon'ble Supreme Court in the case of Rajkumar vs. Union of India reported in AIR 1969 SC 180 and on the decision of this Court in Sp. C.A. No.155/72 decided on 8th March, 1972 and another decision of this Court in the case of Hukumat Rai vs. State reported in 1982 (1) GLR 641. 6. In the special civil application, the petitioner has not given any details of this ground now raised by the counsel for the petitioner of discrimination nor he has amended the special civil application incorporating this ground. The ground of discrimination has been taken on the fact that two doctors namely, Dr. Pancholi and Dr. Goswami though they have also submitted their resignation but in their cases they were permitted to withdraw their resignation and further the break in their services is ordered to be counted. So far as Dr. Pancholi is concerned, it appears that the reference to his case has been made by the petitioner somewhere prior to filing of the reply to the special civil application by the respondents. In reply, the respondents have explained his case but so far as Dr. Goswami his concerned, his case is raised during the course of arguments of this special civil application. However, the respondents have given a detailed explanation to the case of Dr. Goswami. Lastly, the learned counsel for the petitioner contended that the order dated 28th January, 1980 under which his services were terminated is wholly arbitrary and unjustified. 7. Nobody is present on behalf of the respondents. However, the respondents filed reply to the Sp. C.A. and then filed a further additional reply to explain the cases of two Doctors on the basis of which the plea of discrimination is raised by the petitioner. 8. I have given my thoughtful consideration to the submissions made by the learned counsel for the petitioner and pleadings of the parties. 9. Under annexure `G', the order dated 18th April, 1979, the petitioner has been given the appointment on deputation to Jilla Panchayat, Amreli, until further orders on the terms and conditions as enclosed to the said order. As per the condition No.1, this appointment was purely on temporary basis for a period not exceeding one year or till the candidate selected by the G.P.S.C. is made available, whichever is earlier. So the appointment of the petitioner was purely a temporary appointment for one year or till the candidate selected by the G.P.S.C. is made available, whichever is earlier. The services of the petitioner came to be terminated under the order dated 28th January, 1980 on the ground that the candidate selected by the G.P.S.C. has been made available. 10. The petitioner tendered his resignation vide his letter dated 17th November, 1978 and informed the Director of Health and Medical Services that he wanted to resign voluntarily from Government services w.e.f. 18th November, 1978 after office hours. As the petitioner wanted to relieve himself from services immediately, he deposited an amount of Rs.1379-70 in the Amreli Branch of the State Bank of India and enclosed challan thereof with the resignation letter. The prayer has also been made by the petitioner for acceptance of his resignation letter forthwith. Admittedly, the petitioner handed over the charge of his post on 18th November, 1978. On 24th January, 1979, the petitioner made a request for withdrawal of his resignation and this application has admittedly been addressed to the Hon'ble Minister for Health with a copy thereto to the Director of Health and Medical Services. The request of the petitioner for withdrawal of his letter of resignation was not accepted by the Government, but the Government has given out that in case the petitioner if so desires, may be given a temporary appointment. The letter of the Government dated 16th April, 1979 is on the record filed by the respondents along with their reply affidavit. In this letter it has clearly been mentioned that the petitioner's request for withdrawal of his resignation has not been accepted. 11. Under the order dated 18th April, 1979, the petitioner was given purely urgent temporary appointment. The petitioner in the special civil application has come up with a case that he has accepted this appointment order dated 18th April, 1979 under protest, but I do not find any material on record in support of this plea. On the contrary, in his letter dated 18th April, 1979, the petitioner has stated that he is accepting the appointment as per the order of Government and the petitioner has unconditionally accepted the order under which he was given purely temporary and adhoc appointment. Otherwise also, this plea is totally incorrect as in the petitioner's own application dated 18th April, 1979, that was the first opportunity where the petitioner should have raised the protest no such protest has been made. The fact is that the petitioner has accepted the conditional appointment. The plea of the petitioner that he has accepted the appointment under protest is otherwise also not acceptable on other grounds. In case the temporary and adhoc appointment was not acceptable to the petitioner then he should not have accepted it, but the very fact that he has accepted the same goes to show that he had no objection thereto. The request of the petitioner for grant of permission to him for withdrawal of his resignation has specifically been turned down by the Government and it has been given out that if he so desire he may be given a temporary and adhoc appointment. In the presence of these facts now the say of the petitioner that he has accepted the appointment order of 18th April, 1979, under protest is without any basis whatsoever as well as a manufactured plea. The representation dated 26th April, 1979 is on record of this special civil application as annexure `G'. This representation was submitted by the petitioner after more than eight days of the order dated 18-4-1979 of the respondent of appointment and about five days after the date he joined the post in pursuance of the said order, which is nothing but only an after thought act of his. Moreover, the substance of the representation dated 26th April, 1979 is that after accepting this appointment the petitioner has prayed for regularisation of his break in service by sanctioning the leave due. So the petitioner has prayed by this application-cum-representation for the condonation of his break in service. The condonation of break in service would have arisen only when the petitioner is permitted by the respondents to withdraw his resignation. It is not the case here. The petitioner, as stated earlier, and it is also clear from the Government letter dated 16th April, 1979, his request for withdrawal of his resignation was turned down but he was only given the offer for fresh temporary and adhoc appointment. By this application-cum-representation, the petitioner has made an attempt to create some confusion and got an order or relief indirectly, which has specifically been rejected by the respondents. In case this application would have been accepted by the respondents then the petitioner could have stated that now he is in continuous service. This conduct of the petitioner deserves to be deprecated. The attempt of the petitioner to get his resignation withdrawn by this application is unjustified, unreasonable and unfair. Be that as it may, now I may first deal with the contention of the counsel for the petitioner that the action of the respondents not to allow the petitioner to withdrew his resignation is illegal. 12. The facts relevant on this question on which there is no dispute are that the petitioner wanted to get out of Government services forthwith i.e. on 17th November, 1979 itself. He submitted his resignation along with a cheque of Rs.1379-70. This amount is deposited in lieu of notice pay. From the very next day, he admittedly stopped to come on his duty. He has not waited for acceptance or deemed acceptance of his resignation by the respondents. So whatever had to be done on his part he had completed and got himself relieved from the services. The learned counsel for the petitioner contended that as per the terms of appointment order dated 15th December, 1970, the petitioner has to give three months' notice in case where he desires to leave the service and as the three months' notice was not given, the resignation which has been submitted by him was not valid and legal. I fail to find any justification in this contention of the learned counsel for the petitioner. That defence could have been open to the respondents and not to the petitioner. This condition was for the benefit of the respondents and the petitioner cannot take the benefit of this condition. The matter would have been different where the respondents have declined to accept the resignation on the condition that three months' notice has not been given. The condition which has been incorporated in the appointment order for the benefit of the respondents certainly could have been waived by them and they have all the right to waive the same. The petitioner cannot take benefits of his own acts or omission. 13. Another contention of the learned counsel in this respect is that the resignation of the petitioner has not been accepted, and as such, he has all the right to withdraw the same. The right of withdrawal of resignation would have come to an end only after the acceptance of resignation but so long as the resignation has not been accepted, the petitioner has all the right to withdraw the resignation, and as such, the respondents have committed serious illegality in not permitting the petitioner to withdraw his resignation. In support of his contention, the counsel for the petitioner placed reliance on the decision of the Hon'ble Supreme Court in the case of Raj kumar vs. Union of India (supra). Another decision has been referred of this Court given in special civil application No.155/72. This Court has decided that special civil application on 8-3-1972 and the decision of the Hon'ble Supreme Court is of the year 1969. This Court has decided aforesaid special civil application relying on the decision of the Hon'ble Supreme Court aforesaid. The Hon'ble Supreme Court in the case of Raj kumar vs. Union of India (supra) has enunciated the law on the subject in the following terms: "Termination of employment by order passed by the Government does not become effective until the order is intimated to the employee. But where a public servant has invited by his letter of resignation determination of his employment, his services normally stand terminated from the date on which letter of resignation is accepted by the appropriate authority and in the conditions of his service to the contrary, it will not be open to the public servant to withdrew his resignation after it is accepted by the appropriate authority. Till the resignation is accepted by the rules governing the acceptance, the public servant concerned has locus paenitenties but not thereafter." It is not in dispute that specifically the order of acceptance of resignation of the petitioner was not passed by the respondents but those two decisions on which the learned counsel for the petitioner has placed reliance are of little help to the petitioner in this case. The Bombay Civil Services Rules, 1959 were amended by the Bombay Civil Services (Gujarat Third Amendment), 1974. The notification of the amendment of the Rules, 1959 was published on 10th October, 1974 in the Gazette. Under this amendment, Rule 33-A has been inserted which deals with the question of resignation of employees/ officers from the Government services. 14. Rule 33-A of the Rules, 1959, provides that a Government servant may at any time resign from the services of the State by giving a notice of one month in writing to the appointing authority. For the temporary servant who has put in service of less than one year, the period of notice is provided to be of one week. This Rule further provides that nothing contained therein shall effect the provisions of any special contract of service or bond entered into by the Government servant with the Government, or the provisions of any special rules, if any, applicable to him, in respect of the period of notice to be given for resignation from service or payment of any sum by the Government servant, to the Government for premature resignation by him. 15. Sub-rule (2) of Rule 33-A of the Rules aforesaid provides that the resignation tendered by a Government servant shall be effective from the date on which it is accepted by the appointing authority, but if it is not accepted before the expiry of the period of notice for resignation to be given by such servant under sub-rule (1) it shall be deemed to have become effective on the date of expiry of such period, unless the Government servant is informed, before such date, that his resignation has been rejected and of the reasons of such rejection. This rule further provides that on what counts, the resignation of a Government servant normally should be rejected. 16. Sub-rule (4) of Rule 33-A of Rules, 1959, lays down that where a Government servant remains absent from duty before his resignation has become effective or if his resignation has been rejected without prior grant of leave for such absence, it shall be lawful for the competent authority to treat his absence as leave without pay and to take disciplinary action against him for unauthorised absence from duty. 17. Sub-rule (5) of Rule 33-A of Rules, 1959 is also relevant. This sub-rule says that any notice of resignation from service shall not be permitted to be withdrawn after the resignation has become effective, except of exceptional ground or in public interest. 18. Another contention raised by the learned counsel for the petitioner is that as per the terms of appointment as contained in the order dated 15th December, 1970, three months' notice is required to be given, and as such, it was not a valid resignation and there is no question of any acceptance thereof. Reliance in this respect has been placed on sub-clause (b) of sub-rule (1) of Rule-33A of the Rules, 1959. This contention raised by the petitioner is nothing but only a dishonest plea. Sub-clause (b) of sub-rule (1) of Rule 33-A no doubt carved out an exception to the sub-rule (1) clause (a) in respect of notice period but the question is whether the petitioner can take the benefit of this provision. It is clear that three months' notice condition was for the respondents and it is settled law that even a statutory provision can be waived by a party which has nothing to do with the public policy or otherwise affect the public at large. The proviso as contained in clause (b) of sub-rule (1) of Rule 33-A is not of that character or nature and certainly the respondents have all the discretion to waive the requirement of giving the three months' notice or notice pay. The petitioner otherwise also cannot be permitted to take the benefit of his own wrong or omission. The petitioner wanted to relieve himself from services immediately and that's why he deposited one month's salary with the respondent. As observed earlier, on this count a grievance from the side of the respondents may have some merits or justification but not by the petitioner. In fact the petitioner had played fraud upon the Government by depositing only one month's salary in lieu of notice and he now wanted to take the benefit of his own fraud in his favour. At the most in such a case, the respondents could have further asked from the petitioner two months' salary but it will not give any benefit to the petitioner nor it can be read for the benefit of the petitioner. If such a reading is given and theory of waiver is not made applicable in the present case then certainly dishonest persons will take the benefits of their own creations, wrongs and omissions. 19. The contention of the learned counsel for the petitioner that the resignation was not accepted, and as such, the petitioner has all the right to withdraw the same is completely answered by this legal fiction created under the Rules framed under Article 309 of the Constitution. Rule 33-A is a statutory provision and sub-rule (2) thereof creates a legal fiction that in case the resignation is not accepted before the expiry of the period of notice for resignation to be given by such servant under sub-rule (1) it shall be deemed to have become effective on the date of the expiry of such period, unless the Government servant is informed, before such date, that his resignation has been rejected and of the reasons for such rejection. 20. The petitioner submitted his resignation on 17th November, 1978 and one month period expired on 16th December, 1978. It is not the case of the petitioner that his resignation has been rejected during this period. So the resignation submitted by the petitioner dated 17th November, 1978 became effective by the legal fiction as created under Rule 33-A of the Rules, 1959 with effect from 16th December, 1978. The decisions of the Hon'ble Supreme Court as well as of this Court are clearly distinguishable as those decisions have been given earlier to the insertion of Rule 33-A in the Rules, 1959. After acceptance of the resignation the petitioner has no right whatsoever to make a request for withdrawal thereof. This right is completely taken away under the statutory provisions of sub-rule (5) of Rule 33-A of the Rules, 1959. However, power has been given to the respondent-Government to permit the withdrawal of notice of resignation after it has become effective, but that power is only available on exceptional ground or in public interest. The petitioner has made an application for withdrawal of his notice of resignation after the resignation has become effective under Rule 33-A of Rules, 1959 and in the given facts of the case it cannot be said that he is able to make out some exceptional ground or withdrawal of resignation would have been in the public interest. The petitioner has tendered his resignation from the government service for starting a private dispensary at Jetpur Dist. Rajkot. He started to run his dispensary. However, it appears that after lapse of 2 months, he experienced that it was uneconomic to run a private dispensary and therefore he submitted an application on 24th January, 1979 for permitting him to withdraw his resignation and to reinstate him in service by condoning the break that has occurred. The fact that the petitioner failed in his project of private dispensary may not be taken to be exceptional circumstances or a fact in the public interest for taking back the petitioner in service. From the facts which have come on the record, it is a case where the petitioner has been extended some benefit may be at the instance of the then Hon'ble Minister for Health for withdrawal of his resignation. The Hon'ble Minister was not at all the person concerned to whom the application should have been submitted. The very fact that the petitioner submitted his application to the then Hon'ble Minister for Health gives out that he may have some chances of favour from his side but after considering the application of the petitioner, the Government has not found it to be a case of exceptional ground or in the public interest to permit him to withdraw his resignation. After that decision though no further favour is required to be given but the very fact that the petitioner has been offered fresh temporary appointment is a strong circumstance to draw an inference therefrom that this appointment may be as a result of favour extended to him by the then Hon'ble Minister for Health. There is yet another circumstance which support my this view. As per the