IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 08.06.2010 CORAM THE HONOURABLE MR.JUSTICE K.CHANDRU W.P.NOs.12588 and 12589 of 2009 and M.P.NOS.1,2,1 AND 2 OF 2009 Dr.M.R.C.Rajeswari .. Petitioner in both petitions Vs. 1.The Secretary to Government, Department of Health and Family Welfare, Secretariat, Chennai-600 003. 2.The Director of Medical Education, Kilpuak, Chennai-600 010. 3.The Dean, Tamilnadu Govt. Dental College & Hospital, Chennai-600 003. .. Respondents in both petitions W.P.No.12588 of 2009 is preferred under Article 226 of the Constitution of India praying for the issue of a writ of certiorari to call for the records of the second respondent made in Ref.No.101970/SCI(1)/08, dated 20.4.2009 which was served on the petitioner on 20.5.2009 and to quash the same. W.P.No.12589 of 2009 is preferred under Article 226 of the Constitution of India for the issue of a writ of certiorarified mandamus to call for the records of the first respondent made in letter No.18939/B1/07-4 dated 12.7.2007 and the consequential order passed by the second respondent made in Ref.No.28518/E3/2/07 dated 31.7.2007 and quash the same and declare that the petitioner is deemed to be resigned from service with effect from 12.7.2007 and consequently direct the respondents to pay the entire arrears of amount payable by the first respondent from the date of joining till date of issuance of resignation dated 12.7.2007. For Petitioner : Mrs.Nalini Chidambaram, Senior Advocate for Mr.N.Umapathi For Respondents : Mr.K.H.Ravikumar, GA https://hcservices.ecourts.gov.in/hcservices/ COMMON ORDER The petitioner in both the writ petitions is one and the same person. In the first writ petition, the petitioner seeks to challenge the order of the second respondent , dated 20.4.2009, which is a charge memo under Rule 17(b) framed under Tamil Ndu Civil Services (Discipline and Appeal) Rules. 2.The charge against the petitioner was that she had been unauthorisedly absenting herself from duty from 26.7.2007 to till date. She has also disobeyed the order of her superiors by not joining duty as instructed vide memo, dated 7.8.2007 and 22.8.2007 issued by the Principal, Tamil Nadu Government Dental College and Hospital, Chennai. When the matter came up on 8.7.2009, this court directed notice to be taken by the learned Government Advocate appearing for the department and also granted an interim stay of further proceedings. 3.The very same petitioner also filed another writ petition being W.P.No.12589 of 2009, challenging the letter of the first respondent, dated 12.7.2007 and the consequential order passed by the second respondent, dated 31.7.2007. She sought for a declaration that she is deemed to have resigned from service with effect from 12.7.2007 and for a consequential direction to pay the entire arrears payable by the first respondent from the date of joining till date of her resignation, dated 12.7.2007. 4.By an order, dated 12.7.2007, the first respondent State Government informed the petitioner that her resignation received on 16.7.2007 cannot be accepted in view of dearth of medical officers and in public interest. After receipt of the said letter by the Government, the second respondent, Director of Medical Education informed the petitioner that since the Government had negatived her request of resignation, she continues to be in Government service. Petitioner's attention was drawn to the order of the Government in G.O.No.53, Health Department, dated 23.5.2007, declaring all the specialities in Dental surgery as scarce category. Therefore, her request for resignation could not be considered. The second writ petition was directed to be posted along with the first writ petition. On notice from this court, a common counter affidavit, dated 31.3.2010 was filed by the second respondent. 5.The petitioner had completed BDS Course in October, 1990 and she had joined as an Assistant Surgeon (Dental) on 3.6.1994 at the Government Hospital, Walajapet. She was working from 3.6.1994 to 27.7.1994. Thereafter, she got relieved to do PG Degree, i.e. MDS in Oral Pathology discipline at the Tamil Nadu Government Dental College from 28.7.1994 to 27.7.1997. After completion of her MDS Degree, she joined as an Assistant Surgeon (Dental) at the Government Hospital Headquarters, Mettur Dam. On 18.5.1998, she was posted as a Tutor in Dental Surgery at the Government https://hcservices.ecourts.gov.in/hcservices/ Kasturbha Gandhi Hospital, Chennai. After availing three months maternity leave, she was transferred and posted as Tutor/Assistant Professor in Dental Surgery at Government Peripheral Hospital, KK Nagar, Chennai-78. Thereafter, she worked from 28.7.1997 to 15.7.2007 in various hospitals. While she was serving at the Tamil Nadu Government Dental College, she sent a letter dated 12.4.2007 to the State Government resigning from the post of Assistant Professor, Department of Oral Pathology and requested for relief within three days i.e. on or before 15.7.2007. According to her, her request should have been considered as per Rule 41-A of the Tamil Nadu State and Subordinate Service Rules. Her request was rejected stating that there was dearth of medical officers and in public interest. 6.She sent a further representation or reconsideration. It was also rejected by a further order, dated 17.7.2007. According to the petitioner, she was not in a position to attend duty and handed over the charge to the Heads of Department. In the meanwhile, she was informed that she continues to be in the Government service and her request for resignation was rejected. Subsequently, a charge memo was also framed. Even while these correspondence were in force, the petitioner was informed that she was temporarily promoted as a Reader in Dental Surgery in Tamil Nadu Medical Service in terms of Rule 39(a)(1) of the General Rules. 7.The petitioner contends that the impugned orders are violative of Articles 14 and 16 of the Constitution. In terms of Rule 41-A, she is entitled to resign from the service. Under Rule 41-A(c), if no order is passed by the authorities, resignation shall be deemed to have been accepted on the expiry of the period of notice. Hence framing of charge sheet after two years was illegal. 8.Rule 41-A of the Tamil Nadu State and Subordinate Service Rules reads as follows: "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 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 notice or rejecting the same, giving the reasons therefore. If no such order is passed, the resignation shall https://hcservices.ecourts.gov.in/hcservices/ be deemed to have been accepted on the expiry of the period of notice. (d)Notice of resignation given by the Government 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) or rule 17 of the Tamil Nadu Civil Services (Discipline and Appeal) Rules. (ii)that a report from the Director of Vigilance and Anticorruption 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 concerned seeks to resign. (e)Notwithstanding anything contained in Clauses (i) and (ii) of subrule (d), where a Government servant under suspension or against whom the 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 notice of resignation." 9.In the counter affidavit filed by the respondents, it was stated that the petitioner had acquired PG Degree in Oral Pathology and was the Head of Department of Oral Pathology. There are non availability of Professor in the said department. Because of her resignation, admission of two students for PG Degree in Oral Pathology was deferred for the academic year 2008-2009. Because of the conduct of the petitioner, two students could not be admitted and the Government will lose approval for those two seats. The petitioner has been staying away from work after giving a defective resignation letter. Her request was immediately rejected by the State Government. Her resignation letter was not even in confirmity with the rules, inasmuch as there was no three months' notice. Only three days notice was given to the Government. 10.The petitioner's contention that resignation was due to family circumstances cannot be accepted. Because even after rejection of resignation letter on 15.7.2007, the petitioner without regard of any norms and fair play, had joined in a private Dental College, i.e. J.K.K.Dental College, Kumaramangalam as a Professor and Head of Department on full time basis on 1.8.2007 and she served upto 31.5.2008. This can be seen from the https://hcservices.ecourts.gov.in/hcservices/ declaration form submitted by the petitioner for the year 2008- 2009. The petitioner's conduct in serving private institution while her employment subsisted with the State itself is illegal, unauthorised and contrary to the Government servants conduct rules. The petitioner was absenting herself only to serve a private college. For this grievous misconduct, she has to face another enquiry. 11.It was further stated that the act of the petitioner in resigning and without its acceptance and going away and thereafter coming with a declaratory relief, cannot be accepted. Under the relevant rule, resignation will have to be accepted by the Government. The Government had also evolved policy by which if there are dearth of medical officers with super specialities, the question of relieving them from service will be against public interest. Therefore, the Government had already issued G.O.Ms.No.53, Health Department, dated 23.5.2007. The petitioner's continuous absence from 26.7.2007 is clearly illegal and there is no case for interference with the disciplinary proceedings initiated against the petitioner. 12.Heard Mrs.Nalini Chidambaram, learned Senior Counsel appearing for the petitioner and Mr.K.H.Ravikumar, learned Government Advocate for respondents. 13.It was contended by the learned Senior Counsel that resignation of the Government servant is only controlled by Rule 41-A and therefore, in the absence of any qualifying condition not being available, the petitioner ought to have been relieved from her service. The petitioner did not face any disciplinary action. There was no vigilance enquiry and no dues are pending. There was also no contractual obligation to serve. Hence she is entitled to get the relief. 14.Since the petitioner was very much relying upon Rule 41-A, it must be noted that the petitioners resignation letter is not in conformity with the rules quoted by her. On the contrary, the petitioner's resignation letter which was dated 12.4.2007 addressed to the State Government through proper channel, wanted her to be relieved within three days, i.e on 15.7.2007. Under Rule 41-A, notice must be for a period of three months. Under Rule 41-A(c), it is the appointing authority who can accept the same before the expiry of notice. It is only when no order is passed, resignation shall be deemed to have been accepted by the authority on the expiry of the period of notice. But, before the expiry period, the Government has the power to reject the request. In the present case, the petitioner had given only three days' notice. Therefore, it cannot be said to be a notice in terms of Rule 41-A. 15.Further, the petitioner never waited for any reply. Even immediately after the Government's rejection on 15.7.2007, the https://hcservices.ecourts.gov.in/hcservices/ petitioner had joined in a private dental college. Therefore, her reason given in the resignation letter was not bona fide. On the contrary, her action is malafide as she was under a compulsion to join a private dental college on 1.8.2007. The petitioner did not give any notice as contemplated under the rule. Even when her service was in subsistence, she had joined private dental college. Though this fact was mentioned in the counter affidavit, it was not denied by way of any replication. The petitioner's action in absenting herself from 26.7.2007 had invited a disciplinary action for which a charge memo under Rule 17(b) was given. Therefore, it cannot be said that the petitioner's resignation was valid in the eye of law. It is open to the State Government to reject the same for reasons set out already. 16.There is no fundamental right for the petitioner to resign and go away. She has been working in the Government service. The Government in public interest had refused to entertain her resignation letter. Though series of judgements were cited to make it appear that any rejection of resignation can be made only on the ground stated under Rule 41-A, this court is not inclined to go into the merit of such contention. Since notice of resignation itself is not in terms of rule, the question of the Government considering it under the relevant rule may not arise. The action of the petitioner is highhanded and is malafide. She had an offer from a private dental college and was under compulsion to go away, come what may response on her so-called resignation. Even applying for a post outside her service without prior approval itself is a misconduct. 17.In the light of the above, both writ petition will stand dismissed. No costs. Consequently, connected miscellaneous petitions stand closed. Sd/- Asst.Registrar. /true copy/ Sub Asst.Registrar. vvk To 1.The Secretary to Government of Tamilnadu Department of Health and Family Welfare, Secretariat, Chennai-600 003. https://hcservices.ecourts.gov.in/hcservices/ 2.The Director of Medical Education, Kilpuak, Chennai-600 010. 3.The Dean, Tamilnadu Govt. Dental College & Hospital, Chennai-600 003. 1 cc to the Government Pleader, Sr. 40746 2 ccs to Mr.N. Umapathy, Advocate, SR. 40596 W.P.NOS.12588 AND 12589 OF 2009 SP (CO) kk 15/6 https://hcservices.ecourts.gov.in/hcservices/