IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 26.10.2010 CORAM: THE HONOURABLE MR.M.Y.EQBAL, THE CHIEF JUSTICE AND THE HONOURABLE MR.JUSTICE ELIPE DHARMARAO Writ Appeal No.2060 of 2010 and M.P.No.1 of 2010 1.The Principal Secretary, Health and Family Welfare Department, Government of Tamil Nadu, Fort St.George, Chennai-9. 2.The Director of Medical Education, Kilpauk, Chennai-10. ... Appellants/ respondents Vs. Dr.N.Udayakumar ... Respondent/ Petitioner Writ Appeal preferred under Clause 15 of the Letters Patent, as against the order of the learned single Judge of this Court dated 3.4.2009, made in W.P.No.26234 of 2008. W.P.No.26234/08:- Writ Petition prayng to issue a writ of certiorarified mandamus to call for the records pertaining to the impugned order passed by the first respondent in his refernce No. 42762/B-2/08-1 dated 6-10-2008 quash the same and direct the respondents to forthith acept the resignatin of the petitoner as Assistnt Professor of pediatrics under the Tamilnadu Medical Service pursuant to his applicatin dated 11-07-2008. For appellants : Mr.G.Sankaran, Spl.G.P. (Edn.) For respondent : Mr.P.K.Rajagopal https://hcservices.ecourts.gov.in/hcservices/ JUDGMENT THE HONOURABLE THE CHIEF JUSTICE & ELIPE DHARMARAO, J. The option of the Government servant to resign his services and the power of the Government to either accept or reject the same, is the subject matter in this writ appeal. 2. The respondent is a Specialist in Paediatrics and now serving as Tutor/Assistant Professor of Paediatrics in the Institute of Child Health, Chennai. Having entered into service in the year 1994, as of now he has completed 16 years of service. According to the respondent, due to persistent family problems, he decided to resign his job and accordingly, he submitted an application on 25.4.2008 through proper channel, but since he did not give advance notice of three months expressly, he was required to file a fresh set of papers for the purpose of his resignation and accordingly, he made a fresh resignation application along with all necessary enclosures as per rules on 11.7.2008 to the authorities through proper channel. Along with the set of papers he filed, he submitted a certificate of non-contractual obligation, an undertaking that he will not request for appointment or reposting, forms of declaration that no disciplinary action was pending against him along with other forms expressly required for the purpose. According to the respondent, though his resignation should have been accepted as a matter of course, the first appellant herein, by the order dated 6.10.2008, refused to accept the resignation on the ground of dearth of hands. Aggrieved, the respondent herein has filed W.P.No.26234 of 2008 before this Court and since the learned single Judge has allowed the said writ petition, the respondents therein have come forward to prefer this appeal. 3. The learned Special Government Pleader (Education), appearing for the appellants would argue that the respondent is a M.D. in Paediatrics, which is a scarce category of service and considering this aspect and also considering the fact that there is dearth of hands, the Government has rejected the application of the respondent. The learned Special Government Pleader would further argue that the Government is well within its powers to reject the resignation application of an employee as has been provided for under Rule 41-A(c) of the Tamil Nadu State and Subordinate Service Rules (hereinafter referred to as the 'Rules'). According to the learned Special Government Pleader, the order under challenge passed by the learned single Judge runs counter to the power of the https://hcservices.ecourts.gov.in/hcservices/ Government under Rule 41-A(c) of the Rules. In support of his arguments, the learned Special Government Pleader would rely on the following two judgments delivered by two learned single Judges of this Court separately: 1. Dr.P.SURESHKUMAR vs. THE STATE OF TAMIL NADU, REPRESENTED BY ITS PRINCIPAL SECRETARY TO GOVERNMENT [W.P.No.726 of 2010, dated 8.6.2010] [MANU/TN/0707/2010] 2. An unreported judgment in Dr.K.MEENA vs. THE STATE OF TAMIL NADU, REPRESENTED BY SECRETARY TO GOVERNMENT [W.P.No.1591 of 2009, dated 16.8.2010]. We will deal with these judgments in due course. 4. On the contrary, on the part of the respondent, the learned counsel would submit that there is no contractual obligation of any kind on the part of the respondent. He would further argue that earlier the respondent submitted his application for resignation on 25.4.2008, which was rejected by the Government on 13.5.2008 on the ground that no three months notice was given and in the said rejection order, the Government has not mentioned the so-called reason of dearth of hands. The learned counsel for the respondent would further submit that the judgments relied on by the learned Special Government Pleader, appearing for the appellants, have no application to the case on hand. The learned counsel for the respondent would further contend that since the case of the respondent is not falling within the categories mentioned in Rule 41-A(d) of the Rules, the Government is not justified in rejecting the claim of the respondent. On such arguments and further justifying the order of the learned single Judge, he would pray to dismiss this appeal. 5. Since the issue on hand revolves around Rule 41-A of the Rules, we shall now extract hereunder the said Rule for better understanding and appreciation of the issue: "41-A: Acceptance of resignation: (a) A Government servant may resign his appointment by giving notice of not less than three months in writing direct to the appointing authority with a copy marked to his immediate superior officer. The period of three months notice shall be reckoned from the date of receipt of such notice by the appointing authority. (b) The Government servant may withdraw the notice of his resignation before its acceptance. Withdrawal of resignation will not be permitted after its acceptance by the appointing authority. (c) The appointing authority shall issue orders on the https://hcservices.ecourts.gov.in/hcservices/ notice of resignation before the date of expiry of notice, either accepting the resignation from a date not later than the date of expiry of the notice or rejecting the same, giving the reasons therefor. If no such order is passed, the resignation shall be deemed to have been accepted on the expiry of the period of notice. (d) Notice of resignation given by the Government servant shall be accepted by the appointing authority, subject to the condition:- (i) that no disciplinary proceeding is contemplated or pending against the Government servant concerned under sub-rule (b) of rule 17 of the Tamil Nadu Civil Services (Discipline and Appeal) Rules; (ii) that a report from the Director of Vigilance and Anti-corruption has been obtained to the effect that no enquiry is contemplated or pending against the Government servant concerned; (iii) that no dues are pending to be recovered by the Government from the Government servant concerned; (iv) that there is no contractual obligation of any kind including contractual obligation to serve the Government during the period in which the Government servant concerned seeks to resign. (e) Notwithstanding anything contained in clauses (i) and (ii) of sub-rule (d), where a Government servant, under suspension or against whom disciplinary or criminal action or vigilance enquiry is pending, seeks to resign the appointing authority shall examine the nature and gravity of the case and may accept the resignation, if the case is not such as would warrant rejection of the notice of resignation." 6. From a reading of this Rule, it is clear that a Government servant may resign his appointment by giving a three months notice in writing and he is at liberty to withdraw the same, before its acceptance and once the resignation has been accepted by the authorities, the employee is not entitled to withdraw the same. When once the employee issues the notice of resignation, the appointing authority shall issue orders before the date of expiry of notice, either accepting or rejecting the same, by giving reasons therefor. If no order is passed before the date of expiry of notice, it is deemed that the resignation of the employee has been accepted on the expiry of the period of notice. Under Rule 41-A(d), the conditions under which the resignation of the employee can be rejected by the Government have been stipulated and under Rule 41-A https://hcservices.ecourts.gov.in/hcservices/ (e), the Government reserved its right to permit its servant to resign his services, even if he is under suspension or disciplinary or criminal action or vigilance enquiry is pending against him, by considering the nature and gravity of the case if the same is not such as would warrant rejection of the notice of resignation. 7. Then, the subsidiary question that would arise for consideration is whether the Government is entitled to reject the resignation of its employee for any other reason it feels, except the ones mentioned in Rule 41-A(d). 8. For this, we have no hesitation to hold and answer that if it is the intention of the Legislature that the Government can reject the resignation of the employee for any reason whatsoever it feels, of course by offering reasons, as has been contemplated in Rule 41-A(c), there is no meaning in inducting Rule 41-A(d), which mandates that the 'notice of resignation given by the Government servant shall be accepted by the appointing authority', subject to the conditions specified thereunder. 9. The restrictions in Rule 41-A(d) have been imposed to have a check on the persons with unclean service track escaping the legal process of disciplinary proceedings etc., by tendering their resignation. However, even in those cases, the Government has reserved their power to accept their resignation, under Rule 41-A (e), 'if the case is not such as would warrant rejection of the notice of resignation', by taking into consideration the nature and gravity of the case. Therefore, on a conjoint and harmonious reading of all the sub-clauses of this Rule 41-A, it is clear that except for the cases falling within the categories of Rule 41-A(d), acceptance of resignation of the Government servant by the Appointing Authority is a Rule and for the cases falling under Rule 41-A(d), it is an exception, since a clause in the form of Rule 41-A (e) has been inserted into. 10. Had it been the intention of the Legislature to exclude the personnel of the scarce category of services from tendering their resignations, for any reason whatsoever, it should have been carried on to Rule 41-A(d). In the absence of any such provision, curtailing the personnel of the scarce category of services from tendering their resignations, who do not fall within any of the exception categories of Rule 41-A(d), the claim of the appellant/Government, in rejecting the request of the respondent, clinging on G.O.Ms.No.315, Health and Family Welfare (B1) Department, dated 31.8.2007 which has been issued for a specific purpose of banning issuance of No Objection Certificate for employment abroad to the Medical Officers working in certain https://hcservices.ecourts.gov.in/hcservices/ specialities, branding them as scarce categories of services, cannot be appreciated. It is not the case of the appellants also that the case of the respondent falls within the exceptions of Rule 41-A(d), which resulted in rejection of his request. 11. Viewing from the other angle, when an employee with unblemished record of service and not falling within any of the categories of Rule 41-A(d), offers his resignation, instead of pressurising that person who wants to quit his job, the Government should try to resolve the issue by finding out an amicable solution, like re-employing the retired persons, as provided for under Rule 45 of the T.N.State and Subordinate Service Rules and finding out a workable solution for this. Since one can't force someone to work who doesn't want to, so rejecting a resignation does nothing to solve the problem. In fact, it will have reverse and serious impact on the performance of the individual, which is quite dangerous for the society, more particularly in medical field. 12. In view of this, we are not able to agree with the decision arrived at by the learned single Judge in Dr.P.Sureshkumar's case (supra), relied upon by the learned Special Government Pleader (Education), upholding a similar contention of the Government therein by holding that nowhere in Rule 41-A, it is stated that the reasons that can be given by the Government are the only reasons which are found in Rule 41A(d). The other case relied on by the learned Special Government Pleader in Dr.K.Meena's case (supra) since arose completely under different set of facts - relating to rejection of the request of the petitioner therein for voluntary retirement and the date of service of such rejection on the petitioner was under dispute - has no relevance to the facts of the case on hand and hence, it, in no way, augment the case and cause of the appellants. Resultantly, this Writ Appeal fails and the same is dismissed. The appellants are directed to pass consequential orders, accepting the resignation of the respondent, within six weeks from the date of receipt of a copy of this judgment. No costs. Consequently, M.P.No.1 of 2010 is also dismissed. Sd/- Asst.Registrar. /true copy/ Sub Asst.Registrar. Rao https://hcservices.ecourts.gov.in/hcservices/ To 1.The Principal Secretary, Health and Family Welfare Department, Government of Tamil Nadu, Fort St.George, Chennai-9. 2.The Director of Medical Education, Kilpauk, Chennai-10. 1 cc to Mr.P.K. Rajagopal, Advocate, Sr. 77158 W.A.No.2060/2010 GV (CO) kk 9/11 https://hcservices.ecourts.gov.in/hcservices/