L.MOHAPATRA, J & B.K. MISRA, J. O.J.C. NO.12217 OF 2001 (Dt.01.12.2011) MANOJ KUMAR PATI .……..Petitioner. .Vrs. STATE BANK OF INDIA & ORS. ………Opp.Parties. For Petitioner - M/s. R.K.Mohanty, D.K.Mohanty, P.K.Rath, A.P.Bose, S.N.Biswal, P.K.Satapathy. For Opp.Parties - M/s. S.P.Mishra & P.V.Balkrishna L. MOHAPATRA, J. The petitioner, who was working as Head Assistant in the State Bank of India, Tulasipur Branch, Cuttack, has filed this writ application challenging the communication made to him in Annexure-1 dated 24.8.2000 intimating therein that his representation for promotion to officers cadre has been declined and he has been permanently debarred from promotion to higher cadre. 2. Case of the petitioner is that he was initially appointed as Clerk-cum-Cashier on 5.2.1982 and his post was subsequently re-designated as Clerk with effect from 12.4.1985. In 1988, he was promoted to the post of Head Assistant and was posted in Tulasipur Branch. He appeared in the departmental examinations in terms of the Bank’s guidelines and came out successful. Thereafter, he was promoted to the officer’s grade i.e. Junior Management Grade Scale-I on 28.8.1998 with effect from 1.8.1997. Because of several domestic problems, the petitioner was constrained to request the bank that he was prepared to forego promotion and the said representation of the petitioner is dated 7.10.1998 annexed to the writ application as Annexure-3. Without accepting the said representation, the petitioner was posted as Assistant Manager (Cash) at Chhanagiri Branch and was relieved under Annexures-4 and 5. Even after giving promotion to the petitioner and posting him at Chhanagiri Branch in the officers cadre, a decision appears to have been taken on 11.1.1999 to accept the request of the petitioner in Annexure-3 to forgo promotion subject to the condition that the petitioner shall be permanently debarred from getting out of cadre promotion and he should not be permitted to officiate out side the cadre permanently. Before the said decision was communicated to the petitioner, another representation was filed by him on 20.1.1999 praying for withdrawal of the representation in Annexure-3 foregoing promotion and permit him to continue in the promotional post. In the mean time the petitioner was reverted to the post of Head Clerk on 7.4.1999 on the basis of his representation dated 7.10.1998. Thereafter he made another representation to continue in the promotional post. The said representation was rejected in Annexure-1. 3. A counter affidavit has been filed by the Bank but most of the averments made in the writ application are not disputed. It is the stand of the Bank that while working as Head Assistant in Tulasipur Branch, the petitioner by order dated 9.10.1998 was posted as Assistant Manager(Cash) in Junior Management Grade Scale-I at Chhanagiri Branch. The petitioner joined in the promotional post on 18.1.1999 and submitted another representation on 20.1.1999 requesting the Bank to treat his earlier representation dated 7.10.1998 foregoing his promotion to the officers cadre as withdrawn and to permit him to continue as an officer of the Bank. On 11.1.1999, a decision was taken to revert the petitioner to lower cadre on the basis of his representation dated 7.10.1998 and, accordingly by letter dated 16.1.1999 the Zonal Office of the Bank was advised to act accordingly. Therefore, the petitioner was relived from Chhanagiri Branch on 7.4.1999 to continue as Head Assistant at Tulasipur Branch from where he had been promoted to the officer cadre. While accepting his representation dated 7.10.1998 praying for foregoing promotion, it was made clear to the petitioner that he would be debarred from further promotion as per the Bank’s Policy and, accordingly, communication in Annexure-1 was made. Further stand of the Bank is that it acted upon the representation of the petitioner dated 7.10.1998 on the said condition and, therefore, the petitioner cannot have any grievance now in challenging the communication made to him in Annexure-1. 4. There are certain facts, which are not in dispute. Such facts are as follows:- “1. While the petitioner was working as Head Assistant at Tulasipur Branch, Cuttack in the year 1988, he appeared in the departmental examinations and succeeded. 2. By order dated 9.10.1998, the petitioner was given promotion to the post of Assistant Manager (Cash) in the Junior Manager Grade Scale-I, Chhanagiri Branch. 3. On 7.10.1998, the petitioner had submitted a representation requesting to forego his promotion in view of the domestic problems. 4. The petitioner joined in the promotional post at Chhanagiri Branch on 18.1.1999. 5. The petitioner submitted a representation on 20.1.1999 requesting the Bank to treat his earlier representation dated 7.10.1998 as withdrawn but he was relieved from the promotional post in April 1999. His further representation to continue in the promotional post was rejected in Annexure-1”. 5. As is evident from the aforesaid admitted facts before the order of promotion was issued on 9.10.1998, the petitioner had already submitted a representation on 7.10.1998 to forego his promotion. This representation was not acted upon and order of promotion was issued. The representation dated 7.10.1998 remained unattended till the petitioner joined on promotion at Chhanagiri Branch in the officer cadre on 18.1.1999. On 20.1.1999, the petitioner by way of representation requested for withdrawal of earlier representation dated 7.10.1998 and in the letter dated 24.8.2000 under Annexure-1, the petitioner was communicated that his further representation dated 5.3.1999 to continue him in the officer cadre has been turned down and he has been debarred from getting further promotion permanently. 2 6. Learned counsel appearing for the petitioner submitted that the representation dated 7.10.1998 submitted by the petitioner foregoing his promotion had not been accepted till the petitioner joined in the promotional post on 18.1.1999 and, immediately after joining in the promotional post, on 20.1.1999 the petitioner requested for withdrawal of his earlier representation dated 7.10.1998. According to the learned counsel for the petitioner, the representation dated 20.1.1999 had been submitted by the petitioner for withdrawal of his earlier representation dated 7.10.1998, much before the same was accepted by the bank and, therefore no action could be taken on the basis of the representation dated 7.10.1998 and revert the petitioner to the lower post of Head Assistant and at the same time debar him from further promotion permanently. Shri S.P. Mishra, learned Senior Counsel appearing for the Bank referring to para-6 of the writ application submitted that the decision to accept the request of the petitioner made in the representation dated 7.10.1998 had been taken on 11.1.1999 and the petitioner was aware of the same. The petitioner’s representation for foregoing promotion had been accepted prior to his joining in the promotional post on 18.1.1999. When it was found that in stead of making such representation, the petitioner has joined the promotional post on 18.1.1999, he was reverted. Thereafter, the petitioner submitted a representation again on 5.3.1999 to give him promotion which was declined in the impugned order in Annexure-1. 7. From the facts not in dispute, it is clear that after the petitioner cleared the departmental examinations in the year 1998, he was promoted to the post of Junior Management Grade Scale-I on 28.8.1998 with effect from 1.8.1997. Though such promotion was given, he had not been given any posting. On 7.10.1998 he submitted a representation requesting to forego his promotion to Junior Management Grade Scale-1. The said representation was not acted upon and it appears from the writ application as well as the counter affidavit filed by the Bank that on 11.1.1999 the Bank proposed to accept the said representation dated 7.10.1998 subject to acceptance of two conditions i.e. the petitioner will be permanently debarred from getting out of the cadre promotion and he should not be permitted to officiate out side his cadre permanently. There is nothing on record to show that the said proposal had been communicated to the petitioner before he joined in the promotional post on 18.1.1999. The petitioner submitted a representation again on 20.1.1999 for withdrawal of his earlier representation dated 7.10.1998. Though it is the stand of the Bank that on 11.1.1999 the Bank had already proposed to accept the petitioner’s request made in the representation dated 7.10.1998, no official communication had been made to the petitioner till he joined in the promotional post on 18.1.1999 and again he made a representation for withdrawal of his earlier representation dated 7.10.1998 by letter dated 20.1.1999. The petitioner having submitted representation for withdrawal of earlier representation dated 7.10.1998, much prior to its acceptance and communication to the petitioner, the question of reverting him from the promotional post on the basis of a representation dated 7.10.1998 does not arise. Merely because the petitioner was aware of the proposed decision of the Bank dated 11.1.1999 cannot be a ground to reject his representation dated 20.1.1999 withdrawing the earlier representation dated 7.10.1990. Once it is held that the said proposed action had not been communicated to the petitioner before 20.1.1999 when he submitted the second representation withdrawing the earlier representation dated 7.10.1998, the Bank could not have acted upon such proposal before it was communicated to the petitioner officially. 3 8. In this connection, some decisions were placed by Shri S.P. Mishra, learned Senior Counsel appearing for the bank, but we find that only one out of the said decisions is relevant for the purpose of this case. In the case of Union of India Vrs. Gopal Chandra Misra and others reported in AIR 1978 Supreme Court 694, it was decided 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 or the office-tenure of the resignor. This general rule is equally applicable to Government servants and constitutional functionaries. In the case of a Government servant/or functionary who cannot, under the conditions of his service/or office, by his own unilateral act of tendering resignation, give up his service/or office, normally, the tender of resignation becomes effective and his service/or office-tenure terminated, when it is accepted by the competent authority. The decision therefore clearly shows that so long as the unilateral act of an employee seeking for resignation has not been accepted, his service do not stand terminated. In the present case, though on record the Bank might have taken a decision to accept the representation dated 7.10.1998, it was never communicated to the petitioner and the petitioner was permitted to join the promotional post on 18.1.1999 and continued there till he was reverted on the basis of representation dated 7.10.1998 in April 1999. 9. We are, therefore of the view that the order directing reversion of the petitioner to the post of Head Assistant could not have been passed in view of the representation dated 20.10.1999 filed by the petitioner withdrawing his earlier representation dated 7.1.1998 on which the Bank had not acted upon till the petitioner joined in the promotional post. 10. Apart from the above, it also appears that the petitioner was not only allowed to join in the promotional post but also continued in the post for some months before he was reverted to the post of Head Assistant and had been paid salary in the promotional post as stated by the learned counsel for the petitioner. If that be so, promotion of the petitioner to the officer cadre having been accepted by the Bank authorities by permitting him to join in the promotional post and paying him salary for the period he worked in the promotional post, order of reversion cannot be passed without due process of law as the same amounts to punishment. 11. We therefore, for the reasons stated above, allow the writ application and set aside the order in Annexure-1 and direct the Bank to permit the petitioner to continue in the promotional post from the date he was reverted to the post of Head Assistant. However, the petitioner having not worked in the promotional post from the date of his reversion, he shall not be entitled to salary in the promotional post till he again joins in the cadre of Junior Management Grade Scale-I, but the interregnum period shall be counted for other service benefits. The opposite parties are directed to pass necessary orders in this regard promoting the petitioner to the aforesaid officer grade within a period of three months from the date of communication of this order. Writ petition allowed. 4