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2008 DIGILAW 415 (PAT)

Bachchu Das v. State Of Bihar

2008-02-27

NAVIN SINHA

body2008
Judgment 1. Heard learned counsel for the petitioner, learned counsel for the State, for the State Advisory Committee and for the private Respondent No. 8. 2. The short controversy of this case has been noticed in the order dated 7.11.2007. 3. Consequent to the reorganization of the State of Bihar and allocation of cadres, the petitioner made an application for mutual transfer alongwith Respondent No. 8 vide annexure-2. The Respondent No. 8, who was allocated the State of Jharkhand requested for transfer to the State of Bihar while the petitioner, who was allocated the State of Bihar requested. for his transfer to the State of Jharkhand. This mutual request was submitted on 9.4.2007 to the State of Bihar and to the State of Jharkhand, which was approved by the competent authority i.e. Union of India on 17.8.2007. In the meantime, on 3.7.2007 itself the petitioner withdrew his option based on mutual consent by submitting an application to his departmental head which was forwarded belatedly by the departmental head to the competent authority of the State Government for placing before the competent authority of the Union of India on 22.8.2007. 4. Counsel for the petitioner urged that once the petitioner withdrew his option for mutual consent there was no justification for acting on the earlier representation to effect the transfer thereafter. 5. Counsel for the official Respondents and private Respondent No. 8 urged that withdrawal of the option was not submitted before the Secretary of the Department, who was competent to receive the same, but it was submitted before an authority incompetent i.e. the Engineer-in-Chief-cum-Special Secretary of the Public Health Engineering Department. That an option having been submitted mutually, the same could be withdrawn mutually only. That Respondent No. 8 had already joined in pursuance of the exercise of mutual option. 6. The law stands well settled and needs no elaborate discussion that a request for transfer on mutual consent was a bilateral act requiring acceptance of the request. The mere submission of the request was of no legal consequence unilaterally, and the maker thereof was at liberty to withdraw the request at anytime before acceptance. The petitioner submitted his withdrawal of the option prior to the acceptance. The fact that it may not have been forwarded by his department in time cannot work to his prejudice. The mere submission of the request was of no legal consequence unilaterally, and the maker thereof was at liberty to withdraw the request at anytime before acceptance. The petitioner submitted his withdrawal of the option prior to the acceptance. The fact that it may not have been forwarded by his department in time cannot work to his prejudice. The very fact that it was forwarded belatedly is ample proof of the fact that there was no procedural infirmity in the application of the petitioner. This Court cannot overlook the submission on behalf of the petitioner that withdrawal of the option, for ulterior reasons was not forwarded in time and kept inordinately for a long period for one and half months to be forwarded to the competent authority deliberately. 7. The submission of the Respondents that withdrawal of the option also would have been done mutually only does not appeal to this Court. That Respondent No. 8 was relieved by the State of Bihar on 2.5.2007, prior to acceptance of the request by the competent authority is of no avail to him. The request though in the nomenclature of mutuality was in fact an individual act in individual interest of the petitioner and Respondent No. 8. No sooner that the mutuality ended by withdrawal of option by the petitioner the edifice of the recquest collapsed. Any acceptance of such request after it had been withdrawn is of no consequence. 8. In the case of Raj Kumar vs. Union of India [ (1968)3 SCR 857 ] it was held: "When a public servant has invited by his letter of resignation determination of his employment, his service normally stand terminated from the date on which the letter of resignation is accepted by the appropriate authority, and in the absence of any law or rule governing the conditions of his service to the contrary, it will not be open to the public servant to withdraw his resignation after it is accepted by the appropriate authority. Till the resignation is accepted by the appropriate authority in consonance with the rules governing the acceptance, the public servant concerned has locus poenitentiae but not thereafter." 9. In the result, this writ application is allowed. The impugned order at Annexure-5 is, accordingly, quashed.