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2003 DIGILAW 173 (MAD)

D. Lawrance v. The District and Sessions Judge, Madurai

2003-02-05

FAKKIR MOHAMED IBRAHIM KALIFULLA, V.S.SIRPURKAR

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V.S.Sirpurkar, J.: This is a writ petition by an employee who, at the relevant time, was working as an Assistant in the Court of District Munsif, Periyakulam. We need not go into the history of his career in this judgment. It will be sufficient to say that on 21.10.1993, the petitioner gave a letter to the Principal District Judge, Madurai, under whom he was serving at that time that he was relinquishing his right of promotion to the next higher post temporarily for a period of three years perhaps with an idea to avoid his transfer which would have been a certainty with his promotion. This letter was forwarded by the Subordinate Judge as is apparent from the record. The Principal District Judge passed an order on 11.11.1993 accepting the request of relinquishment. In his order, the Principal District Judge seems to have made a reference to G.O.Ms. No.783, dated 9.8.1982. On 28.4.1994, the petitioner was transferred to Madurai in the same capacity. It transpires from the argument at bar that he did not join and proceeded on one month’s leave and on the very next day of the transfer order i.e., on 29.4.1994 he made an application for revoking the relinquishment which had already come into effect by its acceptance on 11.11.1993. It may not be strictly necessary for us to note that the petitioner was transferred back to Periyakulam without even putting in a day’s service at Madurai. He came back in June, 1994 itself to Periyakulam. He then made another representation on 28.9.1994 reiterating his earlier request for revocation on 29.4.1994. This was rejected by the Principal District Judge by an order dated 15.11.1994. It is this order which is in challenge before us. 2. Mr.Ragavachari learned counsel for the petitioner firstly urges that there was nothing in the Rules to prevent any such relinquishment from being withdrawn. The effect of the relinquishment would have been the denial of promotion to the petitioner and in fact, there was no exercise of effecting the promotions taken up when the said relinquishment was sought to be withdrawn. Mr.Ragavachari learned counsel for the petitioner firstly urges that there was nothing in the Rules to prevent any such relinquishment from being withdrawn. The effect of the relinquishment would have been the denial of promotion to the petitioner and in fact, there was no exercise of effecting the promotions taken up when the said relinquishment was sought to be withdrawn. The learned counsel argues that after all, even if the relinquishment offer was accepted on 11.11.1993, for all practical purposes, there was no reason to refuse the revocation of the said relinquishment, since on the date of revocation there was no effort or exercise on the part of the Administration to effect promotions. According to him, this exercise was sought to be done somewhere in March, 1995 and therefore, the petitioner whose relinquishment offer was accepted on 11.11.1993 was well within his rights to withdraw the same on 29.4.1994. The learned counsel points out that both the order dated 11.11.1993 and the order rejecting the petitioner’s request for revocation dated 15.11.1994 are bereft of any reasons. According to the learned counsel, the order of acceptance of relinquishment is liable to be passed only on consideration that such relinquishment is not opposed to public interest and therefore the District Judge should have given some reasons in the order dated 11.11.1993 to the effect that the relinquishment was not opposed to public interest. Similarly, according to the learned counsel, the District Judge should have atleast given reasons why the request of the petitioner for revocation was being rejected and in the absence of any reasons, the order tends to become an arbitrary order and as such, the right of the petitioner under Art.14 of the Constitution of India is breached. 3. In support of his contention, the learned counsel has relied on two reported judgments: (i) Shambhu Murari Sinha v. Project and Development India, (2000)5 S.C.C. 621 and (ii) J.N. Srivastava v. Union of India, (1998)9 S.C.C. 559 . 4. 3. In support of his contention, the learned counsel has relied on two reported judgments: (i) Shambhu Murari Sinha v. Project and Development India, (2000)5 S.C.C. 621 and (ii) J.N. Srivastava v. Union of India, (1998)9 S.C.C. 559 . 4. As against this, the learned Special Government Pleader for the respondent points out that this relinquishment had started atleast from the day when it was accepted and as such, it could not be straightaway withdrawn because, there was firstly no provision to withdraw the relinquishment and secondly that, such withdrawal would have affected the rights of other persons who were juniors to the petitioner and who would have benefited because of the petitioner’s opting out of the race of promotion. The learned Special Government Pleader also points out that there is enough material in record to suggest that the District Judge had applied his mind to the situation before passing the order. He points out that the petitioner took the full advantage of the relinquishment inasmuch as the petitioner remained at Periyakulam without being transferred right from 21.10.1993 i.e., from the day he filed the application for relinquishment upto 29.4.1994 when he gave the application for revocation of his relinquishment. According to the learned Special Government Pleader, on that count also, the District Judge was right in refusing the request for revocation. 5. It is undoubtedly true that there was no exercise of the promotion taken before March, 1995 and even before that date, the petitioner had sought to withdraw his revocation. However, it has to be taken into consideration that the petitioner in this case has taken the advantage of the relinquishment with effect from 11.11.1993 inasmuch as he was not at all transferred. Perhaps because he was transferred on 28.4.1994, he on the very next day, sought to revoke his earlier request fro relinquishment, which had already been finally accepted. Even thereafter, admittedly, the petitioner remained at Periyakulam, because he was brought back to Periyakulam within a month i.e., in June, 1994. Once the petitioner takes advantage of the relinquishment offer by remaining at Periyakulam and once the offer of relinquishment has been finally accepted, it could not be straightaway revoked in the absence of any express provision and more particularly, when it could have had the effect of affecting the careers of others. Once the petitioner takes advantage of the relinquishment offer by remaining at Periyakulam and once the offer of relinquishment has been finally accepted, it could not be straightaway revoked in the absence of any express provision and more particularly, when it could have had the effect of affecting the careers of others. Admittedly, in this case, there was an exercise of the Promotion taken up in March, 1995 for which the petitioner gave another application dated 28.9.1994 and payed that his name should also be considered along with others. Undoubtedly, among those persons whose names were going to be considered for promotion, there were bound to be some juniors to the petitioner. It is apparent from the counter and more particularly from reply to ground (v) that the juniors would have been affected, had the petitioner’s offer of relinquishment been allowed to be revoked. Unfortunately for the petitioner, he had not joined any of such persons who were likely to be affected because of the revocation of the relinquishment. We find that this writ petition itself was filed on 22.12.1994. The counter was filed on 12.4.1995 when the exercise of promotion had already commenced as admitted by the petitioner during the course of the arguments. It is not asserted anywhere that his juniors were not considered at least by way of rejoinder. Therefore, it was all the more necessary for the petitioner to have joined all those persons whose names were taken for consideration for the promotion who were juniors to him. That was unfortunately not done. That is one of the reasons why this writ petition must fail. 6. As regards the proposition argued by the learned counsel that the relinquishment could be withdrawn any time after it was accepted, it must be observed that that cannot be done. Once the relinquishment starts operating - in this case it started operating atleast from 11.11.1993 - and the petitioner took the advantage of the relinquishment, he could not have been allowed to withdraw the same. It has already become effective atleast from the date of its acceptance on 11.11.1993 and there is no provision for allowing its withdrawal. 7. The learned counsel tried to draw a parallel by citing the aforementioned two decisions which were in respect of the offer of voluntary retirement. 8. It has already become effective atleast from the date of its acceptance on 11.11.1993 and there is no provision for allowing its withdrawal. 7. The learned counsel tried to draw a parallel by citing the aforementioned two decisions which were in respect of the offer of voluntary retirement. 8. In the first mentioned case, Shambhu Murari Sinha v. Project and Development India, (2000)5 S.C.C. 621 , the voluntary retirement offer was made with effect from a particular date but the petitioner was not relieved on that date and was asked to continue. He was allowed to retire only subsequently. Before his actual retirement, he withdrew his offer of voluntary retirement. The Supreme Court held that unless the petitioner was actually relieved in pursuance of his voluntary retirement offer, he could not be prevented from withdrawing his offer of voluntary retirement. In that case, the Supreme Court held that the effective date would be the date on which the petitioner actually stood relieved. 9. In the second mentioned case also, J.N. Srivastava v. Union of India, (1998)9 S.C.C. 559 , the situation is no different. In that case, though the petitioner had offered to retire voluntarily in three months’ time and had finally given a date after three months from the date of his application, he was relieved prior to that date. He then withdrew his offer before the date which he had mentioned in his offer of retirement. The management did not accept the revocation. The Supreme Court held that the effective date was the date which was offered by the petitioner in his voluntary retirement application and before that he could always withdraw his offer and that would be the effective date. Such is not the situation here on facts. The effective date in this case would be 11.11.1993, when the petitioner was informed that his offer for relinquishment was accepted and the period of relinquishment began. 10. We do not find any support in favour of the petitioner in the aforementioned Supreme Court decisions. In short, the writ petition has no merits. It is dismissed. No costs. W.M.P. No.27705 of 1996 is closed.