IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP No.: 1681/2007 Reserved on:6.6.2008 Decided on.7.7.2008 Hukam Singh. …Petitioner. Versus Union of India and others. …Respondents Coram The Hon’ble Mr. Justice Rajiv Sharma, J. Whether approved for reporting ?1.yes. For the petitioner : Mr. Vinod Gupta, Advocate. For the respondents : Mr. Sandeep Sharma, Assistant solicitor General of India. Rajiv Sharma, J. The brief facts necessary for the disposal of this writ petition are that the petitioner was enrolled in the Central Reserve Police Force on 18.9.1968. He was promoted to the rank of Head Constable (GD) with effect from 31.12.1987 in the pay scale of Rs. 975-1660 plus usual allowances. As per the averments contained in the writ petition, he proceeded on leave on 26.8.1988 since his wife was suffering from severe asthma and lungs problem. He was under this impression that the leave has been duly sanctioned though the same was rejected. He received copy of communication dated 31st August, 1988 wherein he has been 1 Whether the reporters of Local Papers may be allowed to see the judgment? yes. 2 shown to have resigned from service on 26.8.1988. He had 35 days leave to his credit in the year 1988. The case set out precisely in the writ petition is that he had never tendered his resignation and, therefore, there was no occasion for the respondents to accept the same on 26.8.1988. The Deputy Commandant (Welfare) sent a communication to the Director General of Police (Implementation), CRPF on 12th September, 2003. The text of letter dated 12th September, 2003 reads thus: “On the subject cited above, case of Constable No. 680345316 Ex. serviceman Hawaldar Hukam Singh (22 Bn) has been presented before this Directorate that despite getting discharged voluntary, the application has been submitted for grant of pension, whereas, as per the application, the Personnel has served for less than 20 years. Therefore, I have been directed to request while enclosing the application received by me, on the above cited subject that the matter may be examined/enquired and to intimate this Headquarter alongwith the applicant regarding the action taken.” He made a representation vide Annexure P-7 which according to the petitioner has not been addressed till date. The respondents have filed reply to the writ petition. It is mentioned in the preliminary submissions of the reply to the writ petition that after getting the permission of leave on 26.8.1988, the petitioner proceeded on leave since his wife was living at native place and was suffering from severe asthma and lungs problem. It is further averred in this para that due to such circumstances, he had tendered his resignation from service at his own will and the same was accepted by the Department with effect from 26.8.1988 (AN) vide C/O NO.Dy.1/88GC-EC-1 dated 26.8.1988. Mr. Vinod Gupta, Advocate had strenuously argued that his client had never tendered resignation from the service. Rather according to him 3 there was no occasion for his client to tender resignation since on 26.8.1988 he had already completed 19 years 11 months and 8 days service and after 22 days he was entitle to get pension. He also contended that his client had proceeded on leave on 26.8.1988 presuming that the same has been duly sanctioned. He further contended that the representation made by his client till date has not been addressed to by the respondents which has led to a grave miscarriage of justice. Mr. Sandeep Sharma, Assistant Solicitor General of India on the other hand had strenuously argued that the petitioner had tendered his resignation which was accepted on 26.8.1988 and he cannot claim any retiral benefits. The judgment was reserved on 6.6.2008, however, the matter was listed for speaking to the minutes on 16.6.2008 on which date the Union of India was directed to produce the record. The record was produced by Mr. Sandeep Sharma, Assistant Solicitor General of India, as directed by the Court. I have heard the learned counsel for the parties and perused the pleadings as well as the records carefully. What emerges from the facts enumerated above and gathered from the records produced by Mr. Sandeep Sharma is that the petitioner was enrolled in the Central Reserve Police Force on 18.9.1968. His conditions of service are regulated under the Central Reserve Police Force Act, 1949. He was promoted to the post of Head Constable (GD) in the year 1987. It will be apt at this stage to take note of Rule 17 and 18 of the Central Reserve Police Force Rules, 1955, which read thus: “17. Discharge-.Subject to the provisions of the Schedule appended to the Act, any member of the Force shall at any time before he has completed three months' service or after the completion of the full period of 4 service for which he is engaged, be entitled to claim his discharge from the Force by applying to his appointing authority through the proper channel. 18. Discharge Certificate-. Every member on leaving the Force shall be entitled to a discharge Certificate in the prescribed Form CRP-26.” It is evident from the phraseology employed in rule 17 that any member of the Force is entitled to claim his discharge from the Force by applying to his appointing authority through proper channel. In the present case there is no resignation letter purported to have been submitted by the petitioner available on the record. As per rule 17, the application for resignation is to be made to the appointing authority through proper channel. In the character roll of the petitioner, the following endorsement has been made, which reads thus: “Resignation tendered by the individual is hereby accepted w.e.f. 26.8.1988 (AN) at his own request under Rule 17 of CRPF Rules, 1955 read with schedule below CRPF Act, 1949. He is struck off from the strength of the GC from the same date. FO 216/88 27.8.88 Authy: D.V-1/88-GC-EC-1 dated 26.8.88” It appears that resignation tendered by the petitioner has been accepted on 26.6.1988, but as noticed above, there is no resignation letter available on the record. The learned Assistant Solicitor General of India could also not bring to the notice of the Court from the available record that the petitioner has ever tendered his resignation. If the petitioner had not tendered his resignation at all, how it could be accepted. The explanation of Mr. Sandeep Sharma to this query is letter dated 28.8.1988 whereby the petitioner had prayed for earned leave and LHP. It is specifically mentioned in this communication that the applicant had tendered his resignation which was accepted on 26.8.1988 and thereafter 5 he had prayed for the earned leave etc. This letter is available on the record. It appears from the record that the petitioner had made a representation against the acceptance of his resignation as is evident from letter dated 31.10.1988. In this letter, Assistant Commandant (Administration) has highlighted that the petitioner had made a representation against the acceptance of his resignation, however, he has also sought information with regard to gratuity, pension, leave encashment and regarding his railway warrant. There is nothing on record to suggest that the representation made by the petitioner against the acceptance of his resignation was addressed to. It was incumbent upon the respondents to consider the representation made by the petitioner against the acceptance of his resignation taking into consideration the circumstances that his wife was sick and he had proceeded on leave and, more particularly, on the date when his resignation was accepted he had completed 19 years 11 months and 8 days of service. It is also clear from the record that the petitioner had 35 days earned leave to his credit up to 31.7.1988 and it was for this reason that he was sanctioned 17 days cash equivalent to leave salary by the competent authority. Mr. Sandeep Sharma has drawn the attention of this Court to Rule 48-A of the Central Civil Services (Pension) Rules, 1972, which reads thus: “48-A. - Retirement on completion of 20 years’ qualifying service. (1) At any time after a Government servant has completed twenty years’ qualifying service, he may, by giving notice of not less than three months in writing to the Appointing Authority, retire from service. Provided that this sub-rule shall not apply to a Government servant, including scientist or technical expert who is- 6 (i) on assignments under the Indian Technical and Economic Co-operation (ITEC) Programme of the Ministry of External Affairs and other aid programmes. (ii) Posted abroad in foreign based offices of the Ministries/Departments, (iii) On a specific contract assignment to a foreign Government, unless, after having been transferred to India, he has resumed the charge of the post in India and served for a period of not less than one year. (2) The notice of voluntary retirement given under sub-rule (1) shall require acceptance by the Appointing Authority: Provided that where the Appointing Authority does not refuse to grant the permission for retirement before the expiry of the period specified in the said notice, the retirement shall become effective from the date of expiry of the said period. (3-A) (a) A Governed servant referred to in sub- rule (1) may make a request in writing to the Appointing Authority to accept notice of voluntary retirement of less than three months giving reasons thereof; (b) on receipt of a request under Clause (a), the Appointing Authority subject to the provisions of sub- rule (2), may consider such request for the curtailment of the period of notice of three months on merits and if it is satisfied that the curtailment of the period of notice will not cause any administrative inconvenience, the Appointing Authority may relax the requirement of notice of three months on the condition that the Government servant shall not apply for communication of a part of his pension before the expiry of the period of notice of three months. (4)A Government servant, who has elected to retire under this rule and has given the necessary notice to that effect to the Appointing Authority, shall be 7 precluded from withdrawing his notice except with the specific approval of such authority: Provided that the request for withdrawal shall be made before the intended date of his retirement. (5) The pension and [ retirement gratuity] of the government servant retiring under this rule shall be based on the emoluments as defined under Rules 33 and 34 and the increase not exceeding five years in his qualifying service shall not entitle him to any notional fixation of pay for purposes of calculating pension and gratuity. (6) This rule shall not apply to a Government servant who- (a) retires under Rule 29, or (b)retires from Government service for being absorbed permanently in an Autonomous Body or a Public Sector Undertaking to which he is on deputation at the time of seeking voluntary retirement.” It is clear from the phraseology of rule 48-A that at any time after a Government servant has completed twenty years’ qualifying service, he may, by giving notice of not less than three months in writing to the Appointing Authority, retire from service. In the present case, as noticed above, the petitioner had completed 19 years 11 months and 8 days service and after 22 days he was bound to complete 20 years qualifying service. It is in this backdrop that this petition is to be adjudicated upon. There is a detailed procedure laid down the manner in which the resignation letter is to be tendered and accepted by the authorities as per the Central Reserve Police Force Rules, 1955. Since there is no resignation letter of the petitioner available on the record, it is strange how the resignation has been accepted by the authorities on 26.8.1988. The application was required to be submitted through proper channel to the 8 appointing authority under rule 17. The authorities have accepted the resignation on 26.8.1988 though there was no formal request made by the petitioner to this effect in a prescribed manner. There is considerable force in the submission of Mr. Vinod Gupta that his client had to proceed on leave on 26.8.1988 when he came to know that his wife was suffering from severe asthma. It is true that the petitioner could not proceed on 26th August, 1988 to attend his ailing wife without leave. However, it has come on record that 35 days earned leave was available to the petitioner till 31st July, 1988. In fact, he has been given credit of 17 days cash equivalent to the leave salary as per letters which are placed on record. It is intriguing to note that as per the record the petitioner himself has stated in letter dated 29.8.1988 that he had tendered his resignation and he may be given the benefit of earned leave etc., however, it is also relevant to take note of letter dated 31.10.1988 of the Assistant Commandant (Administration) whereby it is evident that he had made a representation against acceptance of his resignation. There is nothing on record to suggest that the representation made by the petitioner was considered and any decision was taken there on. Even the Deputy Commandant (Welfare) has sent a communication to the Director General of Police (Implementation), CRPF Annexure P-6 that the case of the petitioner for pensionary benefits etc. be considered. This letter has also not been dealt with by the respondents in their reply. The representation made by the petitioner Annexure P-7 has also not been considered. This petition was admitted on 30.10.2007. Mr. Sandeep Sharma had argued that the petitioner had approached this Court belatedly and the petition should be dismissed on this score alone. It is apparent from the above enumerated facts that the case of the petitioner remained under consideration as per Annexure P-6 and no decision till date has been 9 taken on the representation made by him against wrongful acceptance of his resignation. The writ petition was already admitted and in view of the peculiar facts and circumstances of the case, the petition cannot be dismissed on the ground of delay and laches. Moreover, the petitioner has a recurring cause of action since according to him he has been deprived of his retiral benefits, which were bound to accrue him on 1st day of every month. The position which emerges from the above discussion is that:- i) the petitioner has not tendered his resignation by submitting his application as required under rule 17 of the Central Reserve Police Force Rules, 1955 and in the absence of the same, the resignation could not be accepted as noted above. The learned Assistant Solicitor General of India, as noticed above, has failed to point out any resignation letter purported to be tendered by the petitioner on the record; ii) the fact that the petitioner has presumed that his resignation has been accepted will not make the acceptance of resignation lawful without there being any formal request from the petitioner in the prescribed manner; iii) the petitioner had made a representation against the unlawful acceptance of his resignation as per the letter signed by the Deputy Commandant dated 31.10.1988, but no action has been taken on the same. The representation made by the petitioner was bound to be considered in accordance with law; iv) the petitioner had already completed 19 years 11 months and 8 days service and only 22 days were left to complete the qualifying service under rule 48-A of the Central Civil Services (Pension) Rules, 1972. It cannot be presumed that a person who had 35 days earned leave to his credit and only 22 days 10 left for qualifying service will tender his resignation voluntarily; and v) to get a pension is a recurring cause of action and the writ petition cannot be dismissed only on the ground of delay and laches when the respondents themselves are remiss in the discharge of their statutory duties by not addressing to the grievance of the petitioner even after Annexure P-6 was written by the Deputy Commandant to the Director General of Police (Implementation, CRPF. Consequently, the writ petition is allowed. Annexure P-4 dated 31.8.1988 is quashed and set aside. The petitioner will be deemed to be in service till he attained the age of superannuation. The respondents are directed to work out the retiral benefits and pay the same to the petitioner within a period of 8 weeks from the date of receipt of the certified copy of the judgment. There shall be no order as to costs. July 7, 2008 (Rajiv Sharma ), J. *awasthi*