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2009 DIGILAW 262 (UTT)

DEEPA CHATURVEDI v. DISTRICT JUDGE, CHAMPAWAT

2009-05-14

SUDHANSHU DHULIA

body2009
Judgment The petitioner who was permanent Class IV employee in the District Court Champawat, has challenged the order dated 20th October, 2008 passed by the District Judge, Champawat, whereby her services have been terminated. 2. Heard Mr. B.D. Upadhyay, learned counsel for the petitioner and Mr. Rakesh Thapliyal, learned counsel for the respondent. 3. The case of the petitioner is that she was initially appointed on Class IV post on 19-6-2002 and was continuing on that post when she appeared in an examination for appointment on the Class III post in the same Judgeship. The petitioner was selected by the Selection Committee and consequently was given appointment on Class III post in the same judgeship. As the petitioner was already working in Class IV post in the same judgeship, she had to formally resign from her Class IV post and therefore, she submitted her resignation on 31-3-2004 to the respondent i.e. the then District Judge, Champawat, which was accepted by the District Judge, Champawat the same day. These are the admitted facts. Next day i.e. on 1st April, 2009 (sic, 2004), the petitioner joined her service as a Class III employee. However, the entire examination on the Class III post of the judgeship was cancelled by the orders of the High Court of Uttarakhand, which were communicated to the Champawat Judgeship and consequently, the services of petitioner on class III post came to an end w.e.f. 7th April, 2004. It is also an admitted case that this cancellation of examination was not challenged by the petitioner. Instead the petitioner moved two applications before the District Judge, Champawat on 8th April, 2004, where she stated the entire facts as to how she had formally resigned from Class IV post and consequently, the same was accepted and the petitioner cannot be blamed, if the examination of Class III post has been cancelled. She therefore pleaded that her resignation may be treated as a “conditional resignation” i.e. the condition to the fact of her joining on Class III post and since this condition has not materialized, therefore, her resignation is infact no resignation, and should not be treated as such. She also filed another application on the same day praying that her services rendered in the Class III post should be treated as leave without pay and continuity of her service on Class IV post may be maintained. She also filed another application on the same day praying that her services rendered in the Class III post should be treated as leave without pay and continuity of her service on Class IV post may be maintained. On this an office report was prepared by the then District Judge, Champawat and thereafter by an order dated 21st April, 2004, the then District Judge, Champawat withdrew the acceptance of resignation, treating the resignation as “conditional” and the petitioner was reinstated in service as a class IV employee. The learned District Judge, has also relied upon a ruling of Punjab & Haryana High Court, according to which in a given case which was before the Punjab & Haryana High Court, resignation once accepted was withdrawn. However, it must be said here that the ruling referred to in order dated 21-4-2004 has no citation and even this Court had no privilege of going through this ruling as it was not placed before this Court. Therefore, this Court is not placing any reliance on the said ruling. However, in order to complete the narration of events, the petitioner in consequence of order dated 21-4-2004 joined the Class IV post on 22-4-2004 and continued to serve on that post till 2008. 4. Now, after a period of four years, one Mohd. Irshad and one another (who are employees of the same judgeship), moved an application before the District Judge challenging the inter se seniority between them and the petitioner. Mohd. Irshad and another, perhaps claimed themselves to be senior to the petitioner and hence on the basis of this application an enquiry was set up and the Inquiry Officer, who submitted its report on 20th September, 2008 before the District judge, Champawat, stated that “applicants claim against Mrs. Deepa Chaturvedi is justified because withdrawal of her resignation is “void ab initio”, in the eyes of law”. On this report, the District Judge vide order dated 20th October, 2008 has held that the order dated 21st April, 2004 passed by the then District Judge is void ab initio and contrary to District Judge has passed an order dated 20-10-2008, presently impugned, terminating the services of the petitioner by quashing the order dated 21-4-2004 of the then District Judge, “Champawat”, by which the petitioner was reinstated. 5. In the impugned order, three questions of law were framed by the learned District Judge. 5. In the impugned order, three questions of law were framed by the learned District Judge. These are as follows: “i. Whether the resignation of a government employee may be withdrawn after the acceptance? ii. Whether a Government employee is entitled to render his service on two post at the same time in the same department? iii. Whether the order of the withdrawal of resignation of Mrs. Deepa is illegal, unconstitutional (void ab initio)?” 6. The answer to all the questions of law by the respondent has been in negative and it has been held that resignation once given by a government employee cannot be withdrawn. Moreover, a government employee cannot render service on two posts one on Class III post and another on Class IV post between April 1 to April 7, then the third question regarding withdrawal of the resignation the District Judge has said that the order is illegal and such an order could not be passed. The order of the District Judge concludes as follows: “Thus in the light of ruling of Hon’ble Apex Court the service of Deepa as class fourth employee was not in existence after acceptance of her resignation on date 31-03-2004. She has no lien on this job and was selected separately through examination in class three cadre in this Judgeship. So after her termination from that post she can not be permitted to withdraw her resignation from class fourth post. This withdrawal is in violation of Uttarakhand Tyagpatra Niyamavali 2003 and can not be justified on the basis of unclear (Mentioner has no citation as per his statement and not available to me after many efforts, due to lack of proper citation) ruling of another High Court.” 7. There is another aspect which can not be ignored. That is the job on two different posts on same date. As per order of Hon’ble then District Judge, Deepa worked as class three employee from date 01-04-2004 to 07-04-2004 and she will be treated as class fourth employee in leave without pay at that time. How it is possible that an employee can be on two posts of different cadre at a time. So in my opinion service of Deepa as class fourth employee is void ab inito in the light of above discussion and she can not be senior than applicants.” 8. How it is possible that an employee can be on two posts of different cadre at a time. So in my opinion service of Deepa as class fourth employee is void ab inito in the light of above discussion and she can not be senior than applicants.” 8. In the clear view of this Court, the learned District Judge is wholly incorrect on all the three questions of law for simple reason that a very narrow and pedantic view has been adopted by the District Judge under the present facts and circumstances of the case. It is indeed a settled question of law that resignation once accepted cannot be withdrawn and the employee only has an opportunity to withdraw resignation before it has been formally accepted. There is no confusion or doubt on this accepted principle of law. All the same, what is also to be borne in mind is that under the present facts and circumstances of the case, there is no fault of any kind on the part of the petitioner as she tendered her resignation admittedly on a “condition” the condition being her securing an appointment on Class III post, that too in the same Judgeship, in an examination which was conducted under the supervision of the High Court. Now when the examination itself has been cancelled by the High Court, this ipso facto would mean that the condition on which the resignation was admittedly based had itself come to an end. Therefore, both equity and justice demand that such a resignation has to be treated as a conditional resignation and since there is no question of acceptance of conditional resignation, the acceptance of said resignation itself becomes nonest, or a non event, in the eyes of law. In short, this matter has to be treated as if the resignation of the petitioner was never accepted. 9. The second question of law as to whether a government employee is entitled to render service on two posts is also totally misconceived by the District Judge. The period of service rendered by the petitioner from April 1 to April 7 on Class III post in the judgeship is no service in the eyes of law, inasmuch as the examination itself has been cancelled there is no meaning of petitioner having rendered any service on Class III. The period of service rendered by the petitioner from April 1 to April 7 on Class III post in the judgeship is no service in the eyes of law, inasmuch as the examination itself has been cancelled there is no meaning of petitioner having rendered any service on Class III. This service has neither any relevance nor any benefit can be given to the petitioner on this account and therefore, it will be taken as if these services were never rendered by the petitioner. There is therefore no question of the petitioner rendering two services, one of Class III post and another on Class IV post, as contemplated by the District Judge, Bageshwar. 10. Thirdly, the order of the then District Judge dated 21st April, 2004 whereby the resignation of petitioner was treated as a conditional resignation is a correct order and it is an order which finds favour both under equity as well as law. On the contrary, it is the present order of the District Judge, which is alien to any concept of justice and fair-play. The entire view and approach of the learned District Judge has been over legalistic and hyper technical and totally in violation of every concept of equity, justice and good conscience. 11. There is another aspect of this matter which needs to be stated. The then District Judge, Champawat vide his order dated 21st April, 2004 had withdrawn the order of acceptance of the resignation of the petitioner and the petitioner thereafter continued to serve on Class IV post for another four years. Why this matter was raked up after four years has nowhere been explained ! Ostensibly it is on a dispute of inter se seniority but it does not appear to be as simple as it is being made out. This is a case where the petitioner tendered her resignation on the basis of an “event”, the event being her getting a higher job in the same judgeship. The resignation from Class IV post was, therefore, necessary and a pre-condition for her joining on the Class III post. Now, this “event” itself has become a “non-event” and therefore, the entire edifice of her resignation goes away and there can be no other view but to treat her resignation as a conditional rejection. The resignation from Class IV post was, therefore, necessary and a pre-condition for her joining on the Class III post. Now, this “event” itself has become a “non-event” and therefore, the entire edifice of her resignation goes away and there can be no other view but to treat her resignation as a conditional rejection. It is also legitimate expectation of the petitioner that she will not be treated unfairly and the matter once settled will be raked up after four years. Therefore, the order impugned by the petitioner is also liable to be set aside on the grounds that it violates the just and legitimate expectation of the petitioner. 12. In these events and in view of the facts stated above the order dated 20-10-2008 passed by the respondent is liable to be quashed and is being quashed. It is further directed that the petitioner shall always be treated to be in continuous service. It also goes without saying that the petitioner will be entitled to all service benefits and the service of the petitioner shall be treated without any break. The District Judge shall give all such benefits to the petitioner within a period of one month from today, which shall include the arrear of her salary. 13. With the aforesaid directions, writ petition stands allowed. The impugned order dated 20th October, 2008 is quashed. No order as to costs.