1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR. ORDER S.B. CIVIL WRIT PETITION NO. 5181/95. (Banwari Lal Vs. State of Raj. & ors.) Date of Order : 20 th April, 2010. P R E S E N T HON'BLE MR. JUSTICE RAGHUVENDRA S. RATHORE Mr Deepak Asopa with Mr Pankaj Sharma, for the petitioner. Mr. M.F. Baig, Dy. Govt. Counsel, for respondents. BY THE COURT: This writ petition is directed against the order dated 31.7.95 whereby the resignation letter of the petitioner had been accepted. Therefore, the petitioner has prayed that the impugned order be quashed and set aside and he may be allowed to work on the post with all consequential benefits as if the impugned had not been passed. The petitioner has also prayed that the respondents be directed to supply copy of the documents viz. letters dated 31.1.95, 1.2.95 and 5.2.95. 2. Broadly speaking, the facts of the case are that the petitioner was appointed on the post of Ward Boy (Class-IV) by District Ayurveda Officer, Alwar for a period of three months or till the surplus hands were available from the Social Welfare Department, whichever is earlier. The petitioner was allowed to work even after the said period as no surplus hand was available and had continued in service for more than three years. 2 Thereafter, the petitioner was in the year 1985 transferred to the Government Ayurveda Hospital Class-A at Khairthal, Distt. Alwar where he continued to work till 31.1.95. Then the petitioner wrote a letter to respondent No.3, informing him that he wishes to contest the Elections for the post of Sarpanch and had sought permission for the same. Later on, the petitioner submitted a resignation letter on 1.2.95 stating that in case he succeeds in the election, then the same be accepted and in case he losses the election, then the resignation may be treated to have been withdrawn. Ultimately, the petitioner lost the election for the post of Sarpanch and he had joined his duties on 5.2.95. Every day, the petitioner presented himself for duty and was continuously sending letter, under postal certificate, to the authorities concerned as he was not allowed to sign the attendance register. He approached the office of respondent No.2 for taking him on duty but no satisfactory answer was given. On 13.7.95, the petitioner had requested the respondent No.3 to provide him the certified copies of the documents. When no response was given by the respondents, the petitioner sent a notice for demand of justice through his counsel (Annex.2). The petitioner had then received the order dated 31.7.95, issued by respondent No.2, informing that the respondent No.2 had on 25.4.95, as per Rule 244 (1) of the Rules of 1951, accepted the resignation of the petitioner w.e.f., 1.2.95 (Annex.3). Hence, the present writ petition has been filed before this Court with the aforesaid reliefs. 3 3. The learned counsel for the petitioner has contended that the resignation tendered by the petitioner was a conditional one, on his winning the election and in case of loosing the same, he was to join duties. Therefore, when he had lost the election then as per terms and conditions of the resignation letter, he was entitled to join back his services on 5.2.95 and the respondents have committed grave error in not allowing him to do so. Further, he has submitted that the resignation was accepted with retrospective effect from 1.2.95 which was wholly improper. It is also submitted that the impugned order of accepting resignation is said to have been passed under the provisions of Rule 244(1) of the Rajasthan Service Rules, which relates to case of voluntary retirement and by no stretch of imagination, it was applicable to the case of resignation. Therefore, it has been submitted that the action of the respondents in issuing the impugned order was wholly illegal and arbitrary and without application of mind which deserves to be quashed and set aside. 4. On the other hand, the learned Government Counsel has tried to support the impugned order dated 31.7.95 on the ground that the resignation tendered by the petitioner was a unilateral one for which no acceptance is needed and the same is deemed to be accepted automatically. He has also submitted that the resignation tendered by the petitioner was itself illegal and improper because the same incorporated the condition that in the eventuality of his winning the election, the same should be 4 deemed to have been accepted. 5. On having considered the facts and circumstances of the case and the submissions made by the learned counsel for the rival parties, I am of the opinion that the contention raised by the counsel for the petitioner has force. 6. Admittedly, the resignation tendered by the petitioner was with a stipulation of his winning the election and if he lost the same then he would resume his duties on 5.2.95 by submitting a joining report. However, he was not allowed to join and subsequently, the respondents had passed the impugned order of accepting the resignation w.e.f., 1.2.95. Furthermore, it has been mentioned in the impugned order that the resignation was being accepted in exercise of powers under Rule 244(1) of RSR. The said Rule reads as under:- “244(1) Optional Retirement on Completion of 20 years qualifying service,- (a) A Government servant may, after giving at least 3 month's previous notice in writing to the Appointing Authority, retire from service on the date on which he completes 20 years of qualifying service or attains the age of 45 years whichever is earlier or any date thereafter to be specified in the notice.” In other words, a Government Servant who exercises option of retirement, is to give three months previous notice to the Appointing Authority. For the purpose of such retirement, the Government Servant is to complete 20 years of qualifying service or attained the age of 45 years, whichever is earlier. In 5 the instant case, the petitioner has not fulfilled any of the two conditions. Therefore, the impugned order passed by the respondents cannot be said to be in consequence of the powers envisaged under Rule 244(1) of the RSR. As a matter of fact, the letter of resignation given by the petitioner was not a one for retirement and obviously so because the petitioner did not fulfill the qualifying service for the purpose of seeking retirement as envisaged under Rule 244(1) of RSR. Apart from it, the respondents had issued the impugned order on 31.7.95 mentioning that the letter of resignation was accepted on 25.4.95 with retrospective effect from 1.2.95. This was again improper on the part of the respondents to have done so. 7. So far as the submission made by the learned counsel for the respondents that the resignation submitted by the petitioner was voluntary and the same should have been deemed to have been automatically come into force without any need of passing specific order of acceptance, it would be suffice to say that the respondents themselves had not considered the same to be so. On the contrary, they had issued a specific order on 31.7.95 purporting to be in exercise of powers under Rule 244(1) accepting the resignation with retrospective effect. In case the letter of resignation submitted by the petitioner was contrary to the rules or not acceptable to the respondents then they should have passed an order of rejecting the resignation but not in the nature of impugned order, in exercise of powers under Rule 244(1) which empowers the respondents to consider 6 the option of retirement of a Government Servant after having completed the qualifying service. Similarly, if the letter of resignation issued by the petitioner was to come into effect automatically without there being any specific order of acceptance then also, the respondents were not required to pass the impugned order on 31.7.95 (Annex.3). 8. For the aforesaid reasons, I am of the considered opinion that the respondents have committed gross illegality in passing the impugned order on 31.7.95 which could not have been done in exercise of powers under Rule 244(1) of RSR because the said rule is only in respect of optional retirement tendered by a Government Servant after fulfilling the qualifying service and not in respect of acceptance of resignation letter tendered by such person. A bare reading of the impugned order further goes to show that it was passed without application of mind and the same suffers from another illegality that the resignation had been accepted with retrospective date. 9. Consequently, the writ petition succeeds and the same is allowed. The impugned order dated 31.7.95 is quashed and set aside. The petitioner would be deemed to be in service after 31.7.95 and shall be entitled for all consequential benefits. There shall be no order as to costs. (RAGHUVENDRA S. RATHORE),J. Gandhi/-P.A. Item No.7