•^- ..^ L^c try ,y •fc< w^ ^. ^0^ ^;^' ^ '^' •^' BEFORE THE HON'BLE HIGH COURT OF CHHATTISGARH AT BILASPUR C.G. PETITIONER In theJVIatter of W.P.No. /37^/2003 ^ ^w^^^ Nirmal Sing'h, sbn of \^s--" ..-•••^^ ^^"" ^/ ^ RESPONDENTS Kushal Singh, .occupation - Service - Water Carrier, (Batch No. 852200164), Central Industrial Security Force, resident of - Dharamjaigarh Colony, PO Shahpur, Distt. Raigarh (Chhattisgarh). Versus 1) Union of India, through : Secretary, Ministry of Home Affairs, (Cell)- Central Industrial Security Force, Government of India). New Delhi. 2) Director General, Central Industrial Security Force, 13 K.S. Premises, Lodhi Road, New Delhi - 03. / 3) Assistant Inspector General (Recruitment) Central Industrial Security Force, New Delhi. 4) Commandant, Central Industrial Security Force, Unit Balco, Korba, Distt. Korba (C.G.) 5) Principal, Central Industrial Security Force, Recruitment and ^' ^ Training Centre, Barwaha, ©istt. Khargaon (Madhya^Pi-adesh). ^^' PETITION UNDER ARTICLE 226/227 OF THB CONSTITUTION OF INDIA FOR ISSUANCE OF WRIT IN THE NATURE_OF MANDAMUS. CERTIORARI AND /OR ANY OTHER COMMAND OF LIKE NATURE HIGH COURT OF CHHATTISGARH AT BILASPUR WRTT PETmON No. 1399 Qf2Q03 PETmONER : NinnalSmgh. VERSUS RESPONDENTS : UnionofIndia&Others. Post for pronouncement ofjudgment on .<^.day ofMarch,2010. Sd/- Satish K. Agnihotri Judge ^^...^s^^^- HIGH COURT OF CHHATTISGARH AT BILASPUR WRIT PETITION No. 1399 of2003 PETmONER : NinnalSmgh. VER8US RESPONDENTS : Unionofhidia&Others. PETmON UNDER ARTICLE 226/227 OF THE CONSTITUTION OF INDIA SB: Hon'ble Shri Satish K. Aenihotri, J. Present Shri A-N.Bhakta, Advocate for the petitioner Smt. Fouzia Mirza, Assistaiit Solicitor General for the respondents. JUDGMENT .^- (Pronounced on .^1. Aay of March, 2010) Challenge in fhis petition is to Ihe order dated 10.07.2002 (Annexure P/l) which arose from resignation letter dated 15.09.1995 (Annexure R/l) tendered by the petitioner, and further, a direction to the respondent authorities to permit the petitioner to withdraw his resignation letter dated 15.09.1995 and in altCTnative, ^-ant pension wifh eftect fi-om 15.5.1995 with back-wages and interest thereof. The indisputable facts, in nutshell, arc that tiie petitioner was appointed on llie post of Water Carrier in Central Industrial Security Force, Balco Unit on 13.04.1985 (Annexure P/2). After appomtmetit, he was posted at several places i.e. in O.N.G.C. Hazira (Surat), GAIL, Vijaipur (MP), and Barwaha. When fhe petitioner was posted at Barwaha, District Khargon (M.P), the father ofthe petitioner died on 25.05.1995. At the time ofhis death, the petitioner was not present for perfbmiing fhe last rites and could not see his father. The petitioner tendered his resignation on r" ..^<^a<^r'r ./'^. ^ 4. // 15.09.1995 unconditionally which was accepted by the authorities on 16.09.1995 (Annexure R/3 pg. 16 ofthe retum) w.e./ 16.09.1995 (A.N.). Thereafter, after acceptance ofhis resi^iation letter, the petitioner made an application on 06.10.1995 (pg. 20 oftiie retum) seeking withdrawal of his resignation letter dated 15.09.1995. After having considered all the aspects ofthe matter, the application ofthe petitioner for witfadrawal of the resignation was rejected on 15.12.1995 (Annexure R/3). Later on, fhe petitioner again made an application 01.10.1999 (Annexure R/5) addressed to the Director General, CISF, New Delhi, for withdrawal of his resignation but fhe same was alsorejected on 17.11.1999 (pg. 30 of the rcply). The petitioner thereafler made one more application to the Home Secretary, Union oflndia on 11.06.2002 fbr ^aiit ofpensionary benefrts. The same was also rejected on 10.7.2002 (Annexure P/l), thus, this petition. Leamed counsel appearing for the petitioner would submit that fhe case ofthe petitioner is govemed under the provisions ofRule 5 and 88 offhe Central Civil Services (Pension) Rules, 1972 (for short 'the Rules, 1972'). The resignation tendered by the petitioner was wrongly accepted. Thus, the order accepting resi^iation may be quashed and fhe petitioner may be reuastated to the post. Altematively, tiie petitioner may be granted pensionary benefits w.e.f. 15.5.1995 wifh back salary. On the other hand, Smt. Fouzia Mirza, Assistant Solicitor General appearing for the respondents would submit tfaat the resignation of the petitioner was considered and aflter examination,, it was accepted on 15.09.1995 (Annexure R/2). The application dated 01.10.1995 for withdrawal of resignation letter and 15.12.1995 for reinstatement in ."^^^.. /:c^^.\ ^ ,..,,-^y..^ ^ ^^./ ~--^^^i' tete service, were rejected as aforestated. Under the provisions ofRule 26(1) ofthe Rules, 1972, ifan employee resigns from service, tfie resignation entails forfeiture ofpast services and such, fhe petitioner is not entitled to pension, gratuity or terminal benefits. In the case on hand, the petitioner has worked for about 10 years and thereafter, he tendered his resignation unconditionally wilhout specifying any date from which the application/resignation ou^it to have been made effective. Rule 88 offhe Rules, 1972 is not applicable to the case as there in no question of any relaxation in fhe case ofthe petitioner as no extraordinary circumstances existed which made him to tender his resignation and thereafter withdraw the resignation, after accq)tance ofthe resigtiation. 5. Heard leamed counsel for the parties, perused the pleadings and documents appended fhereto. 6. The resignation letter dated 15.09.1995 reads as under: "^T-^r ^RT- f^?PT- ^N~rr <t?J4t^Txi Tr?ter ^ 3ft ^fiRT ^n^ ^TT? ^t 1i?ft iRqr? lijf^cT ^TF&spT IRT ^^t ^ ^%5T ij^ ^^ft^t ^ WTET ^r w^r ^ral Hgtc;^ f^cR t f^? ^ ^)?R fNcT f^fe ^eT ^TR? 852200164 tufl f^ 3ffq ^ .SI^FTFcT 31R ^t ^ft sRqT? ^ <bl^<1 ^t ^frqT'T ^t ^ f^TR? 14.9.95 ^t ^T ^l^ ^' WTte f^lT l ^NF'T ^fT f^TTyft ^ 'M^fctt^ M.5.95 ^ ^STTI 3ft? ^ TER^ ^ f^RT ^T ^ fv^ srfN ^t t ^t ^rrar ^ ^t ^ 3T^le(T ^l t| vlt f^) 13FT^t ^QT ^? ^?^ ^TTcfT ^^ ^ t| 3fr? ^ vPTg' ^P? 4^ 'ER eRRTT f^RT^ ^ ^R^flft ^ft WfiPlT t| WT: ^TM yft ^ insN t f^? v}4^<M 'w^rf ^ f^SS ^uf? 1?^ i^ ^ ^trfi^i Ti^? ^?^ f^ ^rr f^ vTpr ^ ^RT wq^T wmt ^' - ^ 1^TR;R/-15.9.95 ^?TC W^ f^f?" •^ -..-¥ AdmittecUy, fhere is no dispute Ihat tfae Rules, 1972 are applicable in tiie case on hand. Rule 5ofthe Rules 1972 prescribes for regulation ofclaims to pension or family pension. Proviso to sub rule 2 ofRule 5 ofthe Rules, 1972 provides that if a govemment ser^ant who retires prematurely or retires voluntarily under clause (J) to (m) ofRule 56 offhe Fundamental Rules or rule 48 or 48-A as ihe case may be, fhe date ofretirCTtient shall be treated as non-working day. Rule 26 ofthe Rules, 1972 provides for forfeiture ofservice on resi@iation. The same reads as under: ^26. Forfeiture of senice on resigna<aon.-(l) Resignation from a service or a post, unless it is allowed to be wifhdrawn in fhe public interest by fhe appointmg authority, entails forfeiture ofpast service. (2)A resignation shall not entml fbrfeiture ofpast seiTice if it has been subtiiitted to take up, witii proper pennission, another appointment, whetfier temporary or permanent, underfhe Govemment where service qualifies. (3) Intermption in service in a case falling undCT sub- mle (2) due to tiie two appointments being at different stations, not exceeding fhe joining time permissible under the mles of transfer, shall be covered by graiit of leave of any kind due to the Govemment servant on fhe date ofrelief or by formal condonation to the extent to which the period is not covered by leave due to him. (4)The appointing authority may pemiit a person to wifhdraw his resigpation in tiie public inter^st on &e following conditions, namely:- (i) That fhe resignation was tendered by the Govemment servant for some compelling reasons which did not involve any reflection on his integrity, efficiency or conduct and the request for withdrawal ofAe resignation has been made as a result of a material chaage m the circuiiistances which originally compelled hini to tender the resignation; (ii) that durmg the period mtervening between tihe date on which the resignation become efifective and the date from which the request for withdrawal was made, the conduct ofthe person concemed was in no way improper. (iii) tiiat tfie period of absence from duty between tiie date on which fhe resignation became effective aad the date on which the person is allowed to resume duty as a result of permission to withdraw the resignation is not more than 90 days; -^•/•y >- 7^ (iv) that the post, which was vacated by fhe Govemment ser^ant on the acceptance ofhis resignation or any other comparable post, is available. (5) Request for wifhdrawal ofa resignation shall not be accepted by the appointing aufhority where a Govemment servant resigns his service or post with a view to taking up an appointment in or under a private coiimiercial company or in or under a corporation or company wholly, or substantially owned or controlled by the Govemment or m or und^ a body controlled or financed by the Govemment. (6) When an order is passed by the appointmg authority allowing a person to withdraw his resigaation and to resume duty, the order shall be deemed to include the condonation of intermption in sei-vice but fhe period of intermption shall not be count as qualifying ser^ice/9 8. Reliance of the petitioner on Rule 88 of the Rules, 1972 is of no assistance as Rule 88 confers poww on the Ministry or Department oftfae Govemment to relax the requirement of the Rules as it may deem consider necessary for dealing with tie case in just and equitable maimer. The petitioner has made a representation up to Ifae Home Secretary, Govemment oflndia in exercise ofpower under fhe provisions ofRule 88 ofthe Rules, 1972. The same has also been rejected. 9. On pemsal oftfae documents, I do not find ajay reason to pass a direction to the respondents to consider the case ofthe petitioner a fi-esh. The resignation letter dated 15.09.1995 appeai's to be unconditional, statmg tiiat after deafh ofhis fafher on 20.05.1995, there was no person to look after his mother at old age. Therefore, the request was made to withdraw resignation letter. The petitioner had resigned on account of domestic problems aiid on the ofher hajad, in view of other family problems, he has prayed that he should be pemiitted tojoin fhe services again. ^•^•^.^ 10. A constitution Bench offhe Supreme Court, m Union oflndia & Others V. Gopal ChandraMishra & Others^, defined resignation as under: 24. 'Resignation^ in fhe dictionary sense^ meam the spontaneous relinquishiiienl of one's owa ri^t. This is conveyed by the maxim: Resionatio estjuies propii spontanea refutatio (See Earl Jowitt?s Dictionary of English Law). In relation to an ojffice, it comiotes the act of giving up or relinquishing Ifae office. To "relinquish an ojGtice9' meaiis to "cease to hold" Ae office, or to "loose hold of9 the oflSce (c£ Shorter Ovford Dictionary); mid to "loose hold of office", miplies to "detach", "uufasten", "undo or untie the bindmg knot or link" which holds one to the office and the obligations and privileges tfiat go wifh it 25. In the general juristic sease, also, tiie meaiiing of "resigning office" is not different. There also, as a mle, bofh, the intentton to give up or relinquish the office and tiie concomitant act of its relinquishment, are necessary to constitute a complete and operative rcsignation (see, e.g. American Jurispmdence^ Second Edn., Vol. 15A, page 80), allliough the act of relinquishment may take difFerent fom^s or assume a unilateral or bilateral character^ depending on the nature of the ofRce mid tiie conditions goveming it. Thus, resignmg oftlce necessarily involves relinquishment of the office, which implies eessation or termination ot^ or cutting asunder from fhe oftlce. Indeed, the completion of the resigtiation and the vacation of the office, are the casual and effectual aspects ofone andthe sanie event". 11. In Moti Ram v. Param Devi & anothef^, fhe Supr^ne Court observed as under: I^S5^-^^-^^^ ^-^^^^-'^^^s^ <><'16> As pointed out by fhis Court, 'resigpation^ means the spontaneous relinquislunent of one's own right mid m relation to an offence, it comiotes fhe act of giving up or relinquislimg the office. It has been hel4 fhat in fhe general juristic sense, m order to constitiite a complete and operative resigaation there must be the intention to give up or relinquish the office and fhe concomitant act of its relinquishment. It has also been observed Ihat tfae act of relinquishment may take different forms or assume a unilateral or bilateral character, depending on fhe nature oftfie office and the conditions govemmg it. [See: Union oflndia V. Gopal 1 (1978)28cc 301 2 (1993)28cc 725 12. 13. Chandra Mishra}. If the act of felinquishment is of unilateral character^ it comes into effect when such act mdicating the intention to relinquish Ifae offic^ is communicated to the competent autfaority. The aufhority to whom fhe act of relinquishment is communicated is not required to take any action and the relinquishment takes efifect from the date of such communication where the resigniation is intended to operate in praesenti. A resi^iation may also be prospective to be operative fi-om a future date smd m fhat event it would take effect from fhe date indicated therein and not from fhe date of commumcation. In cases where the act of relinquishment is of a bilateral character, the communication of the intention to relinquish, by itself, would not be sufficient to result in relinquishment of the ofBce and some action is required to be taken on such communication of fhe intention to relinquisli, e.g., acceptance of tfae said request to relinquish fhe oftlce^ and m such a case fhe relinqyisliment does not become effective or operative till such action is taken. As to whether fhe act of relinquishment of aii office is unilateral or bilateral m charactCT would depend upon the nature ofthe office and fhe conditions goveming it^ Further, in Nand Keshwar Prasad v. Indian Farmers Fertilizers Cooperattve Ltd. & Other/, the Supr^ne Court observ^ as under: "11. After giving our careful consideration to the facts and circumstances oftiie case, it appears to us fhat tfae law is well settled by this Court in a number of decisions that imless controUod by condition ofservice or the statutory provisions, the retiremeat mentioned in the letter of resignation must take effect from tfie date mentioned therein and such date camiot be advanced by accepting fhe resignation from aii earlier date when the employee concemed did not intend to retire Jfrom such earlier date. It has also been held by fhis Court it is open to the employee concemed to wMidraw letter ofresignation before fhe same becomes effective/9 The Supreme Court, while considering withdrawal ofresignatiofl after it is accepted, in Balram Gupta v. Union oflndia <& cimrthe/, tfae observed as under: "13. We hold, li^-efore, that tiiere w&s no valid reasoa for wifhholding the permission by fhe respondent We 3 (1998)58cc 461 41987 (supp)SCC 228 --?-v,•-,^ .?; --.,^^©?:fe wy'^%^ l^- hold further that there has been compliance wifh fhe guidelines because the appellant has indicated that tiiere was a change in the circumstances, namely, the persistent and personal requests Jfrom fhe staff members and relations which changed his attitude towards continumg in govemment service and mduced the appellant to withdraw tihe notice. In fhe modem and uncertain age it is very difficult to arrange one's future with any amount of certainty; a certain amount of flexibility is required, and if such flexibility does not jeopardize gov^nment or administratioxi, administration should be gracefiul enough to respond and acknowledge the flexibility of humaa mind and attitude and allow the appellant to withdraw his letter of retirement in fhe facts and circumstances of fhis case. Much complications which had aris@a could have been fhus avoided by such gracefal attitude, The court caimot but condemn circuitous ways '1:0 ease ouf' uncomfortable employees. As a model employer the govemment must conduct itself with hi^hi probity and caridour with its employees. 14. On withdrawal of resignation letter, it is expected that fhe authorities would consider the same ifsome extraordinary circumstances compelled the employee to tender resignation and thereafter, the employee made an application for wifhdrawal ofthe resignation letter. However, ifa person has been appointed against a vacancy created on fhe resigiation of an employee or some other right has been created, fhe authorities may not permit the employee to wifhdraw his resigaation. 15. In case on hand, resigaation as tendered on 15.09.1995 which was accepted on the same date. Thereafter, the application was made to witihdraw his resignation. After 1995 till date, fhough it is not pleaded by either ofthe party, someone must have been appointed to fill up fhe vacancy created on resi^iation of the petitioner, thus, at this stage, no relief directing the respondents to consider the case ofthe petitioner for withdrawal ofthe resigtiation letter, may be granted. -.«%;IS-\ -:'; ^••^ x^- ^' ^ 16. For grant ofpensionary benefite, the statutory provisions dealing with the pension would be applicable. If the petitioner is not entitled to any pensionary benefit under the provisions of law, tius Court cannot grant any reliefto fhat effect. 17. For the reason stated hereinabove, fhe writ petition is dismissed. 18. There shall be no order asto costs. Sd/- Satish K. Agnihotri Judge