IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA C.W.P. No. 41 of 2001 Judgment reserved on: 7.11.2008 Date of decision: 11.12.2008 Hitender Kumar Soni ..Petitioner Versus Union of India and others ..Respondents Coram The Hon’ble Mr. Justice R.B.Misra, Judge. The Hon’ble Mr. Justice Surjit Singh, Judge. Whether approved for reporting?1 For the Petitioner: Mr. K.D.Shreedhar, Advocate For the Respondents: Mr. Sandeep Sharma, Assistant Solicitor General of India. Per R.B.Misra, Judge The present writ petition has been preferred against the order dated 15th May, 2000, whereby Central Administrative Tribunal, Chandigarh Bench, Circuit Bench at Shimla (in short learned Tribunal), has dismissed the O.A. No. 798/HP/1998 (Hitender Kumar Soni Vs. Union of India and others) challenging the communication letter dated 16.6.1998 accepting the resignation application dated 7.10.1997 of the petitioner. Petitioner has also prayed for quashing the order dated 27.11.2000 of Deputy Director, 1 Whether the reporters of the local papers may be allowed to see the Judgment? 2 Government of India, Ministry of Statistics and Programme Implementation National Sample Survey Organization, informing the petitioner that his application for fresh appointment as Investigator, in reference to the above impugned order dated 15.5.2000 of learned tribunal, has been considered and rejected. 2. According to the petitioner, at the relevant time, he was appointed as Investigator on temporary basis on the recommendation of Staff Selection Committee and was kept on probation for two years in the scale of Rs. 1400-2300 and other allowances admissible to him under Directorate of National Sample Survey Organization-(Field Operations Division), State of H.P. ( in short “NSSO-(FOD)”, i.e. under respondent No. 3 herein. After receiving the message of ailment of his father that he had suffered massive heart attack and the presence of the petitioner was required, petitioner requested for leave which, however, was not granted. In the circumstances and under prevailing mental state, he had submitted his resignation on 3.10.1997 indicating that he wants to resign the job. The said letter was followed by an another letter dated 7.10.1997 (enclosed as Annexure A-5) addressed to Assistant Director, NSSO-FOD indicating as “Due to unavoidable family circumstance and my health, I want resign the job”. The petitioner had also enclosed photostat copy of medical prescription for the purpose of seeking leave with hope and expectation for getting favourable consideration. By another letter dated 18.10.1997, petitioner stated that he has already submitted his resignation on medical grounds 3 through registered post and has requested to kindly accept his resignation with an intimation to him in order to make clearance. The above letter was followed by another letters dated 23rd October, 1997 and 10.11.1997. It appears that the petitioner’s resignation application dated 7.10.1997 was accepted on 16.6.1998 w.e.f. 7.10.1997 (F.N.) (Annexure A-28) without being relieved from duty. Thereafter a letter dated 5.8.1998 (Annexure A- 23) was submitted with request that the circumstances under which he had submitted his resignation have now been changed and hence, he intends to continue in service, therefore, the resignation submitted by the petitioner may be treated as withdrawn. 3. The letter dated 16.6.1998, accepting the resignation of petitioner, however, was challenged before learned tribunal in O.A No. 798/HP/1998 with further prayer for setting aside his absence from duty w.e.f. 6.10.1997 to 23.9.1998 and to treat the petitioner in service and to release arrears as per revised pay scale admissible to him with consequential benefits. Learned tribunal while rejecting the O.A. No. 798/1998 by the impugned order dated 15.5.2000, has given liberty to the petitioner to apply a fresh to the same post of Investigator from which the petitioner had tendered resignation and in that sequence the petitioner’s representation was considered and rejected on 27.11.2000, which too has been challenged in the present writ petition. 4. In order to adjudicate the present writ petition, it is necessary to go in the background of the case. As revealed from the records, the 4 petitioner vide letter dated 7.10.1997 has expressed his willingness to resign the job. The two letters dated 8.10.1997 from Superintendent, NSSO (FOD), Shimla (Annexures A-6 & A-8) were sent to the petitioner stating that since he was absent from duty from 6.10.1997 without permission and sanction of leave as such he was directed to report for duty immediately and to proceed further on official duty for Patiala for the purpose of obtaining pending clarification pertaining to Shimla (Urban) survey performed by him. The petitioner, in turn, vide his letter dated 18.10.1997, (Annexure A-7) informed the Assistant Director `NSSO-(FOD)’ with a copy of same endorsed to the Superintendent that he has already submitted his resignation on 7.10.1997 and, therefore, he is requesting to accept the same with intimation to him in order to make clearance. By another memorandum letter dated 16.10.1997 (Annexure A-9), the petitioner was expected to complete his work and give clarification pertaining to Shimla/(Urban) sample surveyed by him. The petitioner, in return, informed on 23.10.1997 to Superintendent “NSSO-(FOD)”, that since he had already tendered his resignation on 7.10.1997, therefore, question of giving clarification asked by letter dated 16.10.1997 does not arise, whereas, the petitioner was made aware vide letter dated 24.10.1997 (Annexure A-11) of Superintendent NSSO-(FOD)” that tendering of resignation does not relieve the petitioner of his duties until and unless it is accepted by the competent authority, as such, he was asked to submit all the official documents, instructions set, identity cards, tour diary, kit items and other relevant 5 official papers together with clarification regarding sample survey, otherwise disciplinary action might be initiated against him. In response, the petitioner, vide his letter dated 10.11.1997, (Annexure-12) returned four items, namely, instructions set, tour diary, random table and NIC book with a request that the cost of kit items may please be adjusted from his pending dues with a further request that his resignation which he had already submitted may kindly be accepted with an intimation to him so that he may make clearance. 5. It appears that the Assistant Director “NSSO-(FOD)” vide his letter dated 31.10.1997 (Annexure A-3) intimated to the petitioner by stating that “your are being informed in this regard that because of some administrative reasons, your resignation is not being accepted”. It appears, the Assistant Director “NSSO-(FOD)” issued a memorandum letter dated 11th February, 1997 (Annexure A-17) again informing him that despite non- acceptance of letter of resignation, the petitioner has not resumed his work, thereby he was warned/directed to resume his duty immediately failing which administrative action would be taken against him”. The letter of similar effect was also written on 20.2.1998 by Assistant Director “NSSO-(FOD)” (Annexure A-18). In response to these two letters, the petitioner replied on 2.3.1998 to Assistant Director NSSO (FOD) stating that he has not received letter dated 3.11.1997, as referred in the letter dated 11.2.1998, more so, the petitioner was not in a position to take decision to join duties due to his ill health as he was still under treatment. The Assistant 6 Director “NSSO-(FOD)” vide letter dated 3rd November, 1998 (Annexure A- 20) asked the petitioner in reference to his letter dated 2.3.1998 that he has not submitted any information regarding his absence and neither leave application nor certificate regarding medical treatment has been produced, therefore, he was warned that he should submit medical certificate to the office again; vide letter dated 24.4.1998 (Annexure A-21), the Superintendent “NSSO-(FOD)” again informed the petitioner, indicating “Shri Hitender Kumar Soni Investigator NSSO(FOD) Shimla whose resignation is under process is hereby asked to surrender his identity card and other official documents lying pending with him immediately after the receipt of this letter so that his resignation could be forwarded for acceptance”. The Superintendent “NSSO-(FOD)” yet by an another letter dated 21.5.1998 (Annexure A-22) conveyed the petitioner “ Please refer to this office letter of even No. dated 24.4.1998, the official documents he was asked to surrender is till lying pending with him. He is once against asked to surrender the same immediately after the receipt of this letter failing which his resignation may not be forwarded for acceptance”. 6. Finding no response from the petitioner, the resignation of petitioner was accepted and the Assistant Director “NSSO-(FOD)” intimated the petitioner vide letter dated 16.6.1998 (Annexure A-28) that in reference to his application dated 7.10.1997, his resignation has been accepted from 7.10.1997 (F.N.). For convenience, the contents of said letter dated 16.6.1998 (Annexure A-28) are extracted as below:- 7 “Office Order” With reference to his application dated 7.10.1997, the resignation of Sh. Hitender Kumar Soni is accepted w.e.f. 7.10.1997 (FN). Sd/- J.S. Venkateswarlu Assistant Director Sh. Hitender Kumar Soni, Investigator, NSSO (FOD), Shimla. Copy to: 1. The Director NSSO (FOD) New Delhi for information & necessary action, please. 2. The Joint Director, (NZ), NSSO (FOD) Jaipur for information. 3. The Supdt. NSSO (FOD), Shimla with the direction to allot the work of Sh. Soni to some other Investigator. Sd/- J.S. Venkateswarlu Assistant Director” 7. It appears, consequent upon acceptance of resignation of petitioner on 16.6.1998 , no step was ever taken by the respondents to relieve the petitioner. No document or record or correspondence to that effect was produced before us. However, in the meantime, the petitioner wrote a letter dated 5.8.1998, (Annexure A-23) to the Superintendent, NSSO (FOD), informing him that the circumstances under which he had submitted his resignation, have now been changed, as such he intends to continue in the job and resignation submitted by him may be treated as cancelled. The contents of said letter dated 5.8.1998 (Annexure A-23) are quoted hereinbelow:- “Kindly refer to your letter No. C-26/SE/NSRO/SML/98-755, dated 21.5.1998 on the above mentioned subject. In this regard it is intimated that I have already submitted official documents to your office. Presently, I am under treatment due to ill health 8 and my health is improving now. I hope that I shall be able to join duty shortly on recovery from illness. I shall submit my medical documents on joining after recovery from illness. Moreover, the circumstances under which I have submitted my resignation have now been changed and as such I intend to continue my job. Therefore, resignation submitted by me, may please be treated as withdrawn. Besides, I am facing great financial hardship due to long treatment and I am in dire need of money to get my treatment properly. Therefore, I request your kind honour to remit my salary due as well as arrear claims on account of revised pay through Bank draft payable at Punjab National Bank Piplughat, Tehsil Arki, District Solan (H.P.) so that I can get my treatment properly. Thanking you, Yours faithfully, Sd/- H.K.Soni, s/o Sh.Shanker Lal Soni, VPO Saryanj, The. Arki, Distt. Solan, H.P. Dt. 5.8.1998” 8. On 25.8.1998, the Assistant Director, “NSSO-(FOD)” wrote a letter to the Superintendent of Police, District Solan indicating apprehension of identity card being misused by the petitioner and thereby expected him to get the identify card collected from the petitioner. The extract of such letter dated 25.8.1998 is indicated as below:- “I am to inform you that Sh. Hitender Kumar Soni, resident of Vill. And P.O. Saryanj, Tehsil Arki, District Solan was working in this office as Investigator upto 6th October, 1998. He resigned from the service w.e.f. 7.10.1997 (F.N.) He was asked to submit the official papers and Identity Card before his resignation is accepted. But he did not submit his Identity Card to this office till date, whereas his resignation has been accepted by this office. He has been asked to submit his I.Card several times through regd. and ordinary post. I feel that this Identity card can be mis-used as our Office deals with data collection of various types. Investigators visit many business 9 establishments, Service Sectors and house holds etc. to collect the data. So there are many chances of mis-use of Identity Card by Sh. Soni. So, I request your goodself to kindly get his Identity Card collected through your Deptt. And send the same to this office as early possible. The copies of the resignation submitted by Sh. Hitender Kumar and the acceptance in this regard are enclosed herewith for your ready reference please.” 9. According to the petitioner, letter dated 3.10.1997, followed by an another letter dated 7.10.1997 (indicating that the petitioner wanted to resign the job due to unavoidable family circumstances and his health), is termed as rejection vide memorandum dated 31.10.1997 (Annexure A-13) as it reflects that because of some administrative reason his resignation is not being accepted, such impression is indicative of rejection of the resignation of petitioner. Letter dated 11.2.1998, (Annexure A-17), followed by another letter dated 20.2.1998 (Annexure A-18), reflects that resignation of the petitioner has not been accepted and letter dated 2.3.1998 reflects the stand of the petitioner that he is not in a position to take a decision to join duties due to his ill health as he was under treatment and according to him since his resignation has not been accepted, meaning thereby it was rejected, as such there was no scope left to make any further request for withdrawal of resignation. According to the petitioner, a letter of acceptance of resignation was made behind the back of the petitioner, which too without serving to the petitioner even on his residential address. Without knowing that letter dated 16.6.1998 was issued regarding acceptance of resignation, the petitioner, in reference to the letter dated 21.5.1998 (Annexure A-22), wrote 10 a letter dated 5.8.1998 (Annexure A-23), informing the Superintendent “NSSO-(FOD)” that the circumstances under which the petitioner had submitted his resignation have now been changed, as such he intends to continue with his job, therefore, resignation was prayed to be treated as withdrawn. It was only when the police officials approached to him on 11.9.1988 in reference to collection of identity card and some official documents, then only he came to know that by an order dated 16.6.1998 his resignation had been accepted. According to the petitioner, despite submission of resignation, vide letter dated 7.10.1997, followed by request through letters dated 18.10.1997 and 10.11.1997 for acceptance of the resignation when nothing was done, then the petitioner derived bonafide impression (in view of letter dated 31.10.1997), that his resignation was not being accepted because of some administrative reason, meaning thereby his resignation had already been rejected. The impression of the petitioner was subsequently fortified by letters dated 11.2.1998 and 22.2.1998 addressed to him indicating that his resignation had not been accepted. Such impression and circumstances restrained the petitioner to withdraw his resignation, but, when his circumstances were changed he withdrew his resignation vide letter dated 5.8.1998. 10. Following submissions have been made for and on behalf f the petitioner:- (i) According to the petitioner letter dated 16.6.1998 accepting the resignation w.e.f. 7.10.1997 is concocted. However, for sake of argument 11 without admitting that the resignation of petitioner was accepted on 16.6.1998 then the resignation cannot be said to be effective and complete unless the requirement of prevailing office Memorandum dated 11.2.1988 is fulfilled. 10 (ii). Learned counsel for the petitioner has argued that the Government of India, Ministry of Personnel Public Grievances & Pension vide office memorandum dated 11.2.1988 has issued instructions in the form of guidelines regarding the resignation from service and procedure in respect of the resignation of permanent as well as temporary government employees. Office Memorandum dated 11.2.1988 is a part of the document before learned Tribunal and is also part of the paper book of the present writ petition. Clause 01of the above O.M. provides the format of resignation and also that the resignation has to be clear and unconditional. Clauses 2 and 3 provides the circumstances under which resignation should be accepted. Clause 4 provides the norms of resignation governing temporary servant. Clause 4 deals with provision when a temporary government servant can sever his connection from government service by giving a notice of termination of service under Rule 5 (1) of the Central Civil Services (TS) Rules 1965, in that case the instructions contained in the office memorandum, as provided in Clause 3, relating to acceptance of resignation, will not applicable in case. Clause 5 & 6, in reference to CCS Pension Rules 1972, deals with the procedure for withdrawal of resignation after it has become 12 effective and the Government servant had relinquished the charge of his earlier post, where following statutory provisions in sub-rules (4) to (6) of Rule 26 of the CCS (Pension) Rules, 1972 corresponds to Art. 418(b) of the Civil Service Regulations. Clause 7 deals with provisions of withdrawal of resignation by quasi permanent government servant. Clause 8 deals with the release of government servant for appointment in Central Public Enterprises/ Central Autonomous Body. Clause 9 deals with the provision when resignation is a technical formality and when the government servant applies for the same post in the same or other department through proper channel. 10 (iii) For the purpose of the present case, the relevant extract of clauses 1, 2, 3 & 4 are extracted hereinbelow: Clause (01) : Format of resignation: Resignation is an intimation in writing sent to the competent authority by the incumbent of a post, of his intention or proposal to resign the office/post either immediately or from a future specified date. A resignation has to be clear and unconditional. Clause (02): Circumtances under which resignation should be accepted. It is not in the interest of Government to retain an unwilling Government servant in service. The general rule, therefore, is that a resignation of a Government servant from service should be accepted, except in the circumstances indicated below:- (i) Where the Government servant concerned is engaged on work of importance and it would take time to make alternative arrangements for filling the post, the resignation should not be accepted straightway but only when alternative arrangements for filling the post have been made. (ii) x x x x x x x x x x x x x x x x x x x x x x x x x x x x 13 Clause (3): A resignation becomes effective when it is accepted and the Government servant is relieved of his duties. If a Government servant who had submitted a resignation, sends an intimation in writing to the appointing authority withdrawing his earlier letter of resignation before its acceptance by the appointing authority, the resignation will be deemed to have been automatically withdrawn and there is no question of accepting the resignation. In case, however, the resignation had been accepted by the appointing authority and the Government servant is to be relieved from a future date, if any request for withdrawing the resignation is made by the Government servant before he is actually relieved of his duties, the normal principle should be to allow the request of the Government servant to withdraw the resignation. If, however, the request for withdrawal is to be refused, the grounds for the rejection of the request should be duly recorded by the appointing authority and suitably intimated to the Government servant concerned. Rules governing temporary Government servants/ in reference to Rule 5(1) of the CCS (TS) Rules, 1965, Clause (4): Since a temporary Government servant can sever his connection from Govt. service by giving a notice of termination of service under Rule 5(1) of the Central Civil Services (TS) Rules, 1965, the instructions contained in this office Memorandum relating to acceptance of resignation will not be applicable in cases whereas notice of termination of service has been given by a temporary Govt. servant. If, however, temporary Govt. servant submits a letter of resignation in which he does not even mention that it may be treated as a notice of termination of service, he can relinquish the charge of the post held by him only after the resignation is duly accepted by the appointing authority and he is relieved of his duties and not after the expiry of the notice period laid down in the Temporary Service Rules. 10 (iv). As provided in Clause (3) of O.M. dated 11.2.1998, a resignation by a government employee becomes effective when it is 14 accepted and the government servant is relieved of his duties. In order to make the resignation complete, two parts are necessary. First part is acceptance of resignation and second part is relieving from duties. For making the resignation complete in view of Clause (3) of O.M. dated 11.2.1988, even if, resignation is accepted by the appointing authority, then the formality of relieving the government servant from duty has to be made and if the government servant is to be relieved from a future date and in the meantime, any request, if made, for withdrawing the resignation by the government servant before he is actually relieved of his duties, then the normal principle should be to allow the government servant to withdraw the resignation. If the request of withdrawal so made above is refused, then the grounds for rejection should be recorded by the appointing authority with an intimation to the concerned government servant. Since the petitioner had all along been carrying bonafide impression that his resignation was under process and has not been accepted, meaning thereby it was rejected, as such, there was no occasion left with the respondent authorities to accept the resignation subsequently and since by an order dated 16.6.1998 the resignation letter dated 7.10.1997 was accepted w.e.f. 7.10.1997, and the petitioner was yet to be relieved thereafter from duties, which was never done on the part of the respondents, therefore, it was open to the petitioner to withdraw his resignation which he did by his letter dated 5.8.1998, thereby, request to withdraw the resignation is treated to be effective request of 15 withdrawal and the same is to be allowed in view of Clause (3) of O.M. dated 11.2.1988. 10(v) Undisputedly O.M. dated 11.2.1988 deals with resignation of permanent and temporary government employees, as such, the same has to be read in the context of provisions of Central Civil Service (Temporary Service) Rules, 1965. According to Mr. Shreedhar, in a circular namely G.I.M.H.A. O.M. dated 25.6.1966, of Government of India has elaborated the distinction between a simple letter of resignation and notice under Rule 5(1) of `CCS (TS)) Rules,1965’ by providing as below :- “When a temporary Government servant submits a letter of resignation, a distinction should be drawn between a letter of resignation purporting to be a notice of termination of service and one which is not. A notice of termination of service given by a temporary Government servant under Rule 5(1) of the CCS (TS) Rules, 1965, is something different from a mere letter of resignation submitted by him without any reference, direct or indirect to the said rule. While the former is an exercise of the right conferred by statutory rules enabling a temporary Government servant to cease performance of his duties automatically on the expiry of the prescribed period of notice, the latter requires acceptance by the competent authority in order to become effective. Therefore, if a temporary Government servant submits a letter of resignation in which he does not refer to Rule 5 (1) of these rules or does not even say that it be treated as a notice of termination of service, the provisions of Rule 5(1) ibid will not be attracted. In such a case he can relinquish his post only when the resignation is accepted and he is relieved of his duties. It will, therefore, be possible in such circumstances to retain the temporary officer even beyond one month if it takes time to make alternative arrangements. This will not be repugnant to the provisions of these rules in any way because when a temporary 16 Government servant submits a letter of resignation without invoking the provisions of the said rules, they will not come into the picture, notwithstanding the fact that, being a temporary Government servant, he is governed by these rules.” 10 (vi). The above O.M./Circular dated 25.6.1966 if read with Clause (4) of O.M. dated 11.2.1988, it becomes clear that when the petitioner has not tendered the resignation by way of notice, then