Allahabad High Court
850824165 EX.LNK GD GANESH DAS RAM CHANDRAversusUnion Of India & Others
- Decided
- Bench
- ANISH KUMAR GUPTA
Holding
The resignation acceptance was invalid as the petitioner withdrew it before it became effective; the orders accepting the resignation and rejecting his representations are quashed.
Summary
The petitioner, a constable of the CRPF who had acquired substantive status, was compelled to resign in December 2000 to obtain leave for his ailing wife. He applied to withdraw his resignation on 17 January 2001, before the resignation became effective on 25 January 2001, and was subsequently called for an interview. The Commandant nevertheless accepted the resignation on 16 January 2001 and later rejected the petitioner’s representations seeking reinstatement. Relying on the Division Bench decision in Dinesh Chandra Gupta v. Union of India, the High Court held that a resignation of a substantive member can be withdrawn before it becomes effective and that the Commandant must consider the exceptional circumstances before accepting it. Consequently, the orders dated 16 January 2001 and 9 June 2006 were quashed. As the petitioner is now superannuated, the court could not order reinstatement but directed the respondents to pay him 50 % of back wages with pensionary benefits from 25 January 2001 until his superannuation.
Issues considered
- Whether the Commandant could validly accept the petitioner’s resignation when the petitioner had applied to withdraw it before it became effective.
- Whether the provisions of the Central Reserve Police Force Act, 1949 and Rules permit withdrawal of resignation within 90 days.
- Whether the orders rejecting the petitioner’s representations should be set aside.
Legislation cited
- CCS (Pension) Rules, 1972 — s. Rule 26(4), Rule 26(5), Rule 26(6)
- Central Civil Services (Temporary Service) Rules, 1965
- Central Reserve Police Force Act, 1949 — s. Section 6
- Central Reserve Police Force Rules, 1955 — s. Rule 16(d), Rule 17
Subjects
- resignation
- withdrawal of resignation
- CRPF
- substantive status
- back wages
- superannuation
- writ petition
- administrative law
Judgment
HIGH COURT OF JUDICATURE AT ALLAHABAD
WRIT - A No. - 14385 of 2007
850824165 Ex.Lnk Gd Ganesh Das Ram Chandra
.....Petitioner(s)
Versus
State of U.P. and Others
.....Respondent(s)
Counsel for Petitioner(s) : Havaldar Verma, S.N. Pandey
Counsel for Respondent(s) : A.S.G.I., Arun Kumar Pal, Rajeshwar
Singh
Court No. - 34
(Sl.No.269)
HON'BLE ANISH KUMAR GUPTA, J.
1. Heard Sri Ashok Kumar Dwivedi, Advocate holding brief of Sri
Havaldar Verma, learned counsel for the petitioner and Sri Arun Kumar
Pal, learned counsel for the respondents.
2. The instant petition has been filed by the petitioner seeking quashing
of the order dated 09.06.2006 whereby the representations of the
petitioner were rejected by the respondent and also commanding the
respondent to take a decision in the light of the judgment of Division
Bench of this Court in Dinesh Chandra Gupta vs. Union of India,
(1998) 3 UPLBEC 2305.
3. Learned counsel for the petitioner submits that the petitioner was
appointed as Constable in 93rd Battalion, CRPF in the year 1997 and as
such was continuing in service. Thereafter, in the years 1999 and 2000,
after the wife of the petitioner delivered a child, she suffered serious
ailments of tuberculosis. In such circumstances, according to the
petitioner, he asked the commandant concerned to grant him leave so that
he can take care of his wife and newborn child. The Commandant instead
of granting leave to the petitioner, forced him to resign as a precondition
to grant him leave. Under such compelling circumstances, on 6.12.2000,
the petitioner had to resign from the service. Thereafter, the petitioner was
granted leave from 23.12.2000 till 30.12.2000 and the petitioner went to
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his home, got his wife admitted in the hospital and thereafter reported
back on 31.12.2000. On 16.01.2001, the said resignation of the petitioner
was accepted by the commandant w.e.f. 25.01.2001.
4. However, the case of the petitioner herein is that on 17.01.2001, the
petitioner had moved an application to withdraw his resignation and
thereafter on 22.01.2001, personal interview/discussion was held with the
petitioner by the Commandant and again on 31.01.2001, the petitioner
had moved another application requesting the respondent to set aside the
order dated 16.01.2001 and allow the petitioner to continue in service till
the attainment of his age of superannuation. However, the petitioner
continued to request the respondent no.3 to permit him to join but the
respondent did not permit him to join. He again moved a representation
on 18.03.2005 and 14.05.2005.Thereafter, when no action was taken by
the respondent and the petitioner was not permitted to join, he filed Writ
Petition No. 17372 of 2006, which was disposed of vide order dated
29.03.2006 directing the respondent no.3 to dispose of the claim of the
petitioner as expeditiously as possible within three months from the date
of production of certified copy of the order in the light of the judgment of
Division Bench in Dinesh Chandra Gupta (supra). Thereafter, vide
order dated 09.06.2006, the respondent no.3 rejected the claim of the
petitioner rejecting all the representations submitted by the petitioner.
Being aggrieved, the petitioner herein again moved an application dated
17.09.2006 before the respondent no.3 seeking review of the order dated
09.06.2006 in the light of the judgment of Division Bench in Dinesh
Chandra Gupta (supra). Since no action was taken by the respondent, the
instant petition has been filed by the petitioner.
5. Learned counsel for the petitioner further relying upon the judgment of
Co-ordinate Bench of this court in Dinesh Chandra Gupta (supra)
submits that the Division Bench of this Court has categorically considered
the provisions of Section 6 of the Act and Rules 16 and 17 of the CRPF
Rules and the Division Bench has categorically held that the Rules do not
contemplate resignation by a member of the force after he has been given
substantive status in the force but the second proviso of the Recruitment
Rules embodied in the schedule of the Act empowers the Commandant to
allow, if he thinks fit a member of the force to resign at any time, on such
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member giving three months' notice of his wish to do so.
6. Relying upon the aforesaid judgment, learned counsel for the petitioner
submits that the Commandant could not have accepted the resignation
prior to three months notice period is over and before the notice period is
over, the petitioner has already applied for withdrawing his resignation. In
such circumstances, it was not open to the respondents to accept the
resignation. In such circumstances, learned counsel for the petitioner
submits that the order dated 16.01.2001 does not sustain in law and is
liable to be set aside. Consequently, the further orders whereby the
representations of the petitioners have been rejected, are also liable to be
quashed.
7. Per contra, learned counsel for the respondent has placed reliance upon
the office memorandum dated 11.02.1988 and submits that once the
resignation is accepted, it is not open to be withdrawn. Even according to
the petitioner, the first application for withdrawing the resignation was
submitted by him on 17.01.2001 after the resignation was accepted on
16.01.2001. Though the receipt of the said letter has been disputed by the
respondent thus learned counsel for the respondent submits that there is
no illegality in the order dated 16.01.2001 whereby the resignation was
accepted and consequently there is no illegality in the impugned order
whereby the representations of the petitioner have been rejected.
8. Having heard the rival submission so made by learned counsel for the
parties, this Court has carefully gone through the record of the case. The
Division Bench of this Court has categorically dealt with the relevant
Rules in this regard in Dinesh Chandra Gupta (supra) in the following
manner.
"(6.) Lastly, the learned counsel for the appellant canvassed that the
order of discharge of appellant was not in accordance with the provisions
of the Central Reserve Police Force Act, 1949 those of the Central
Reserve Police Force Rules, 1955. In order to appreciate the contention
advanced by the learned counsel appearing for the appellant, we may
advert to the relevant provisions embodied in the Act and the Rules made
there under. Section 6 of the Act postulates that no member of the Force
shall be at liberty to (a) resign his appointment during the term of his
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engagement except before the expiration of the first three months of the
service: or (b) withdraw himself from/or of any of the duties of his
appointment without the previous permission in writing of the
Commandant or Asstt. Commandant or any other officer authorised by
the Commandant to grant such permission. Rules 16 and 17 of the Rules
too being germane, are abstracted below:
"16. Period of Service.--(a) All members of the Force shall be
enrolled for a period of three years. During this period of engagement,
they shall be liable to discharge at any time on one month's notice by the
appointing authority. At the end of this period those not given substantive
status shall be considered for quasi-permanency under the provision of
the Central Civil Services (Temporary Service) Rules, 1965. Those not
declared quasi-permanent under the said rules shall be continued as
temporary Government employees unless they claim discharge as per
Schedule to the Act. Those who are temporary shall be liable to discharge
on one month's notice and those who are quasi-permanent shall be liable
to discharge on three months' notice in accordance with the said rules, as
amended from time to time. (b) Should the Central Government decide at
any time to disband the Force or any part of it either before termination
of the period for which a member of the Force is enrolled or at any time
thereafter, he shall be liable to discharge, without compensation from the
date of disbandment. (c) No member of the Force shall withdraw from the
duties of his office without the express permission of the Commandant or
an accredited gazetted officer. (d) The appointing authority may, during
the period of initial appointment of a member of the Force appointed
under Section 4 of the Act, permit him, for good and sufficient reason, to
resign from the Force with effect from such date as may be specified in
the order accepting his resignation; Provided that on the acceptance of
his resignation any such member of the Force shall be required to refund
to the Government all the cost of training imparted to him in the Force or
a sum equal to three months' pay and allowances, received by him prior
to the date of his resignation whichever is less. Explanation.--(1) For the
purpose of this sub-clause "during the period of Initial appointment shall
mean the period before a member of the Force is declared quasi-
permanent. (2) The appointing authority may refuse to permit a member
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of the Force to resign if any emergency has been declared in the country
either due to internal disturbances or external aggression. (3) The
appointing authority may give substantive status to such members of the
Force as are found suitable in all respects.
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 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."
(8.) A conjoint reading of Section 6 of the Act, Rules 16 and 17 of the
Rules and the Schedule to the Act makes it abundantly clear that
'discharge' and 'resignation' are treated differently. All members of the
Force are enrolled for a period of three years and during this period of
engagement, they are liable to discharge at any time on one month's
notice by appointing authority at the end of the Initial period of
enrolment. Those not given substantive status are to be considered for
quasi-permanency under the provisions of Central Civil Services
(Temporary) Rules, 1965 and those not declared quasi-permanent under
the said Rules, shall be treated as temporary Government employees
unless they claim discharge as per Schedule to the Act. Those who are
temporary shall be liable to discharge on one month's notice and those
who are quasi-permanent shall be liable to discharge on three months'
notice in accordance with the said Rules as amended from time to time. A
member of Force can claim his discharge from the Force as of right by
applying to his appointing authority through the proper channel at any
time before he has completed three months' service or after the
completion of the full period of service for which he is engaged.
(9.) But according to 'Recruiting Roll' contained in the Schedule to the
Act and Rule 16 (d) of the Rules, no member of the Force has the liberty
to resign his appointment except before the expiration of the first three
months of his service. The appointing authority has indubitably been
given discretion to permit a member of service, "for good and sufficient
reason", to resign, "during the period of initial appointment" from the
Force with effect from such dale as may be specified in the order
accepting resignation. The discretion of the appointing authority is not
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unrestrained by fetters. There must be good and sufficient/cogent reason
for accepting the resignation during the period of initial appointment and
the appointing authority may refuse to permit a member of the Force to
resign if any emergency has been declared in the country either due to
internal disturbances or external aggression. The expression "during the
period of initial appointment", connotes the period before a member of
the Force is declared quasi-permanent. The Rules do not contemplate
resignation by a member of the Force after he has been given substantive
status in the Force but the second proviso to the 'Recruiting Roll'
embodied tn the Schedule to the Act, empowers the Commandant to allow,
"if he thinks fit" a member of the Force to resign "at any time" on such
member giving three months' notice of his wish to do so. There is no
provision enabling the Commandant to waive the notice period. In the
instant case, the appellant was inducted for the post of constable in the
C.R.P.F, and was enlisted on the Recruiting Roll in the year 1985 on final
agreement in the prescribed form and was accordingly appointed
constable which duty he joined on 27.6.1985. Admittedly, at the time of
his discharge, the appellant was harnessed on active duty in Amritsar. In
case, the appellant had demitted the service during the Initial period of
his appointment, the appointing authority could have permitted the
appellant for "good and sufficient reason" to resign from the Force. The
appellant was enlisted in service way-back in 1985 and from his affidavit
dated 23.8,93, a photocopy of which has been annexed to the
supplementary counter-affidavit dated 19th September. 1997 and which
was admittedly received in the office of the Commandant on 19.10.93, it
appears to us that the appellant had acquired 'substantive status' in the
Force. Since the appellant had acquired "substantive status' in the Force,
the question of resigning as of right from Force would not arise. The
Commandant could, of course, have permitted the appellant to resign
from the Force if he thought it fit to allow the appellant to resign on his
giving three months' notice of his desire to do so, as comprehended by the
second proviso to the Schedule. The order of discharge purports to have
been issued under Rule 17 of the Rules though it is termed as resignation.
Related provisions contained in the Act, the Schedule and the Rules do
not shore up the order of discharge as such and the resignation could not
have been accepted by the appointing authority except on proper self-
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direction to the conditions stipulated in Rule 16 (d) of the Rules
and/or those of the second proviso to the Schedule appended to the Act.
The order of discharge per se does not connote that the
Commandant/Appointing authority adverted itself to the relevant
provisions discussed above and then accepted the application moved by
the petitioner-appellant seeking voluntary discharge from service. The
expression "if he thinks fit" used in this second proviso is significant.
While permitting a member of the Force who has acquired substantive
status in the Force, to resign, the Commandant has to keep in mind the
interest of the Force as well as the gravity of the circumstances in which
the resignation is given coupled with the fact if acceptance of the
resignation in such circumstances, would be unfair and unjust to the
concerned member of the Force. A reasonable balance between the two
needs to be struck by the Commandant. Before permitting a substantive
member of the Force to resign, the appointing authority must address
himself to all the aspects relevant to the matter which in the Instant case
does not seem to have been done by the appointing authority and the
resignation was accepted in a perfunctory manner and the representation
filed by the petitioner seeking reinstatement in service, came to be
rejected by the Commandant vide order dated 25.2.94 as "being devoid of
merit". The learned single Judge in our opinion, was not right in holding
that no Justifiable ground had been made out for intervention by this
Court."
9. The relevant part of office memo dated 11.02.1988 as relied upon by
the respondent reads as under:-
"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
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duties, the normal principle should be to allow the request of the
Government servant to withdrew the resignation. lf, 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.
5. The procedure for Withdrawal of resignation after it has become had
effective and the charge of The procedure for withdrawal of resignation
come effective and the Government servant had relinquished the charge
of his earlier post, are governed by the following statutory provisions in
sub-rules (4) to (6) of Rule 26 of the CCS (Pension) Rules, 1972 which
corresponds to Art. 418(b) of the Civil Service Regulations:-
(4)The appointing authority pointing Authority may permit a person to
withdraw his resignation in the public interest on the following condition
namely-
(i) that the resignation was tendered by the Government servant for some
compelling reasons that the resignation which did not involve any
reflection on his integrity, efficiency or conduct and the request of a
material change in the circumstances which originally compelled him to
tonder the resignation:
(ii) that during the period intervening between the date on which the
resignation become effective and the date from which the request for
withdrawal was made, the conduct of the person concerned was in no way
improper,
(iii) the period of absence from duty between the date on which the
resignation becomes effective and the date on which the person is
allowed to resume duty a result of permission to withdraw the
resignation is not more than ninety days:
(iv) that the post, which was vacated by the Government servant on the
acceptance of his resignation or any other comparable post, is available.
(5) Request for withdrawal of a resignation shall not be accepted by the
appointing authority where a Government servant resigns his service or
post with with a view to taking up an appointment in or under a private
commercial company or in or under a corporation or company wholly or
substantially owned or controlled by the Government or in or under a
body controlled or financed by the Government.
(6) When an order is passed by the appointing authority allowing a
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person to withdraw his resignation and to resume duty, the order shall be
deemed to include the condonation of interruption in service but the
period of interruption shall not count. as qualifying service."
10. Clause 3 of the office memorandum makes it clear that the resignation
becomes effective when it is accepted and the government servant is
relieved of his duties. Clause-5 of the office memorandum deals with the
withdrawal of resignation, which relies upon the sub-rules (4) to (6) of
Rule 26 of the CCS (Pension) Rules,1972, which corresponds to Article
418 (b) of Civil Service Regulations. Clause-3 of the said Regulation
permits that the resignation can be withdrawn from the date when it
became effective till the period of 90 days. Thus, from the aforesaid office
memorandum, it is clear that though the resignation becomes effective
when it is accepted and in the instant case, the resignation has been
accepted on 16th January, however the same has been made effective on
25.01.2001. It is an admitted position that on 22.01.2001, the petitioner
was called for an interview/discussion on the issue of resignation.
11. Though the respondents have denied the receipt of the application
dated 17th January 2001 submitted by the petitioner withdrawing the
resignation, however from the fact that on 22nd January 2001 he was
called for an interview on the same subject after accepting the resignation.
Thus had there been no application for withdrawal on the part of the
petitioner, there was no occasion for the respondent to call him for
interview/discussion.
12. In such view the matter, immediately after the order of his resignation
was accepted, the petitioner moved for its withdrawal before the said
resignation became effective on 25.01.2001 and clause-5 of the office
memorandum categorically permits that the said resignation can be
withdrawn even within 90 days from the date when the resignation
becomes effective. In such circumstances, considering the overall
circumstances as has already been noted herein above that the petitioner
was compelled by the respondent to resign as he wanted to take leave to
take care of his wife, who was seriously ill and before the resignation
became effective, the petitioner had already moved a representation
before the respondent to withdraw his resignation, for which he was also
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called for interview on 22.01.2001 and thus his resignation ought to have
been withdrawn. As from the scheme of the Act, the resignation of the
person of a permanent status in the disciplined force is an exception, not a
rule and this ought to have been accepted only in the exceptional
circumstances, not as a general rule, as has already been laid down by the
Division Bench of this Court in Dinesh Chandra Gupta (supra).
13. In such view of the matter, this Court is of the considered view that
the respondents ought to have permitted the petitioner to withdraw the
resignation by setting aside the order dated 16.01.2001 passed by the
Commandant.
14. As of now it has been submitted by the learned counsel for the
petitioner that the petitioner is aged about 62 years. Thus, he has already
attained the age of superannuation.
15. In such circumstances, this Court cannot pass any order for
reinstatement of the petitioner at this stage. However, the order dated
16.01.2001 as well as the impugned order dated 09.06.2006 are hereby
quashed.
16. Since the respondents have illegally acted in not permitting the
petitioner to withdraw the resignation, in such circumstances, had the
petitioner been permitted, the petitioner would have worked satisfactorily
till he attains the age of superannuation. In such view the matter, the
instant petition is disposed of with the direction to the respondents to pay
50% of the back wages to the petitioner w.e.f. 25.01.2001 till he attained
the age of superannuation with all consequential benefits such as
pensionary and other retiral benefits available to the petitioner. The
aforesaid payment shall be made to the petitioner by the respondents
within a period of three months from today.
(Anish Kumar Gupta,J.)
May 12, 2026
Ashish Pd.
Digitally signed by :-
ASHISH PRASAD
High Court of Judicature at Allahabad
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