IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.12205 of 2010 1. SANJAY KUMAR DAS (NO. IRLA NO. 1964029, EX-DY. COMMANDANT, BSF) S/O SRI SHEO SHANKAR R/O GOLGHAR PARK ROAD, P.S.- GANDHI MAIDAN, PATNA, BIHAR Versus 1. THE UNION OF INDIA THROUGH THE SECRETARY MINISTRY OF HOME AFFAIRS, NEW DELHI 2. THE JOINT SECRETARY OF POLICE-III MINISTRY OF HOME AFFAIRS, NEW DELHI 3. THE DIRECTOR GENERAL, BORDER SECURITY FORCE, NEW DELHI 4. THE DIG (PERS), O/O DG BSF, NEW DELHI 5. THE A.C. (ADM.), OFFICE OF I.G., BSF, BLA 6. THE DC ADM, O/O DIG BSF BDR 7. THE COMMANDANT (PERS), BSF FHQ 8. THE COMMANDANT (PERS), O/O DG BSF 9. THE ADMN OFFICER (PERS) O/O DG BSF, NEW DELHI 10. THE DIRECTOR (ACCOUNTS), PAD BSF, NEW DELHI 11. THE ASSISTANT DIRECTOR (ACCOUNTS) O/O DG BSF, NEW DELHI 12. THE SENIOR ACCOUNTS OFFICER, PG-III O/O DG BSF, NEW DELHI 13. THE ACCOUNTS OFFICER (FUND) BSF, NEW DELHI 14. THE ASSISTANT ACCOUNTS OFFICER, FUND SECTION O/O DG BSF, NEW DELHI 15. THE JOINT SECRETARY OF POLICE - II MINISTRY OF HOME AFFAIRS, NEW DELHI 16. THE DIRECTOR (PERS.), MINISTRY OF HOME AFFAIRS (PERS.-III) null GOVT. OF INDIA, NORTH BLOCK, NEW DELHI 17. THE IG (PERS.), BORDER SECURITY FORCE, PERS. DIRECTORATE PERS. SECTION, CGO COMPLEX, NEW DELHI For the petitioner : M/s. Devendra Kr. Sinha, Sr.Adv., Dilip Kumar, advocate. For the Union : M/s. Rajhib Ahsan, ASG, S.M.Iqbal Hasan Rahmani, advocates. ----------- 08. 09.09.2010 Heard learned counsel for the petitioner, the Assistant Solicitor General of India as also Sri S.M. Iqbal Hasan Rahmani who not only filed counter affidavit on behalf of the Union but also produced the records in compliance of my order dated 3.8.2010. 2. Petitioner is aggrieved by the order dated 8.6.2010, Annexure-31 by which his representation dated 21.3.2010, Annexure- 30 filed in compliance of the orders of this Court dated 8.3.2010, Annexure-29 has been rejected holding that his case is different from - 2 - that of Dr.(Mrs.) Radhika Bahl who was permitted to withdraw her resignation dated 18.5.2002 which became effective from 5.8.2003 as she applied for withdrawal of resignation on 9.10.2003 i.e. within 90 days from the date her resignation became effective. The resignation of the petitioner became effective from 31.10.2007 but he applied for withdrawal of his resignation on 13.10.2008 i.e. after lapse of 11 months and 22 days, as such, petitioner cannot be permitted to withdraw the resignation and rejoin the force in view of the provisions contained in Rule-26(4)(iii) of CCS (Pension) Rules, 1972, which inter alia mandate that appointing authority may permit an officer to withdraw his resignation in public interest provided the absence from duty between the date on which the resignation became effective and the date on which the officer is allowed to resume duty, as a result of permission to withdraw the resignation is not more than 90 days. 3. Learned counsel for the petitioner submitted that resignation of Dr. Bahl was accepted by the competent authority of the Central Government on 13.9.2002 and order was issued on 19.9.2002, whereafter Dr. Bahl appeared in the office of the Commandant on 8.10.2002 to relinquish her charge but before the charge relinquishment report could be countersigned by the Commandant on 8.10.2002 she left the unit and again appeared in the unit on 5.8.2003 i.e. after more than 301 days. The period between 8.10.2002-5.8.2003 i.e. for about 301 days was treated as leave without pay and her charge report was countersigned on 5.8.2003. Later on 9.10.2003 i.e. within 90 days from 5.8.2003 Dr. Bahl applied for withdrawal of her - 3 - resignation, which request was accepted as she had submitted the withdrawal application within 90 days from 5.8.2003. It is submitted that in terms of the order of the competent authority as communicated under letter dated 19.9.2002, resignation of Dr. Bahl was accepted with immediate effect meaning thereby that from the date of order but the request for withdrawal was submitted on 9.10.2003 i.e. much beyond 90 days from the date of the order i.e. 19.9.2002. It is further submitted that if the authorities had considered the case of Dr. Bahl strictly in terms of the provision read with the order accepting her resignation there was no occasion for the authorities to have allowed withdrawal of her resignation accepted on 13/19.9.2002 in the light of her withdrawal application dated 9.10.2003 filed much after the resignation became effective on 13/19.9.2002. It is also submitted by the counsel for the petitioner that authorities of the Central Government while considering the case of Dr. Bahl has taken a lenient view of the matter and had the same lenient view been taken in the case of the petitioner perhaps order rejecting the representation may not have been passed. 4. Counsel for the Union of India on the other hand, explained the position and submitted that from perusal of order dated 19.9.2002 passed in the case of Dr. Bahl, it would appear that her resignation was accepted with immediate effect i.e. date of release and she was released by the Commandant on 5.8.2003 when her charge relinquishment report was accepted. In the circumstances, according to learned counsel withdrawal application dated 5.8.2003 is within the - 4 - period of 90 days from the date the resignation of Dr. Bahl became effective. 5. Having heard counsel for the petitioner and the Union as also having considered the provisions of Sections-3, 8 of the BSF Act, 1968, BSF Rules, 1969 i.e. Rule-19 and 30, I am of the view that while accepting the resignation of Dr. Bahl the competent authority passed order dated 13.9.2002, in the light whereof order was communicated to all concerned under letter dated 19.9.2002 with immediate effect i.e. date of release under Section-8, 3 of the BSF Act and Rule-19, 30(a) of the Rules without pensionary benefits. It was further stated in paragraph-2 of the order that the officer will thus stand struck off strength of BSF with immediate effect in accordance with Rule-30(a). The Officer be relieved accordingly, and charge report be sent to all concerned in compliance of the order dated 13/19.9.2002. Dr. Bahl appeared before the Commandant on 8.10.2002 for handing over charge but before her charge relinquishment report was countersigned by the Commandant she disappeared from the office of the Commandant to again appear on 5.8.2003 when her charge relinquishment report was accepted. The order dated 13/19.9.2002 of the competent authorities of the Central Government was to accept the resignation of Dr. Bahl with immediate effect with further direction to strike off the officer from the strength of the BSF with immediate effect and to send the charge report, therefore, in my opinion in compliance of the orders of the Central Government resignation of Dr. Bahl was required to be accepted when - 5 - she had appeared in the office of the Commandant on 8.10.2002 and disappeared within 10 minutes. Had her charge relinquishment report been accepted on 8.10.2002 there was no occasion for the authorities to have allowed withdrawal of her resignation application filed on 9.10.2003. 6. Aforesaid aspect of the matter does not appear to have been considered by the competent authority of the Central Government while considering the representation of the petitioner in compliance of my order. As the competent authority has not considered aspect which is relevant in the matter and has passed the impugned order, the same suffers from the vice of having not considered aspect which is relevant to be considered in the matter. In appreciation of the aforesaid aspect of the matter, I set aside the impugned order dated 8.6.2010, Annexure-31 and remit back the matter to the competent authority of the Central Government to take a fresh view in the matter and pass appropriate order albeit in accordance with law as early as possible, in any case within three months from the date of receipt/production of a copy of this order. 7. The writ application is, accordingly, disposed of. AFR Rajesh/ (V.N. Sinha, J.)