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2010 DIGILAW 263 (JK)

Suman Khajuria v. State Of J&K

2010-05-06

Mansoor Ahmad Mir

body2010
1. Petitioner being a graduate came to be engaged as Rehbar-e-Taleem Teacher in Govt. Primary School, Chhadali. She joined, but after some time she tendered her resignation, which has not been accepted till today. Before resignation could be accepted, she applied for withdrawal of the same, but the petitioner has not been allowed to join, constrained her to file the present writ petition. 2. Vide interim order dated 28th March, 2005 respondents were directed not to fill up the post, which was held by the petitioner. The writ petition came to be admitted on 18th November, 2005 and interim direction came to be made absolute. 3. Respondents have admitted in their reply that they have not accepted the resignation of the petitioner till filing of the writ petition or till today. 4. The core question involved in the writ petition is whether resignation can be withdrawn before its acceptance. The answer is in affirmative. 5. Apex Court in a case titled as Raj Kumar v. Union of India, AIR 1969 SC 180 , laid the same principle. It is apt to reproduce Para 5 of the said judgment:- "................Termination of employment by order passed by the Government does not become effective until the order is intimated to the employees. But where a public servant has invited by his letter of resignation determination of his employment, his services 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 rule governing the conditions of his services 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 rule governing the acceptance, the public servant concerned has locus paenitentiae but not thereafter. Undue delay in intimating to the public servant concerned the action taken on the letter of resignation has not been accepted. In the present case the resignation was accepted within a short time after it was received by the Government of India. Apparently the State of Rajasthan did not immediately implement the order, and relieve the appellant of his duties, but the appellate cannot profit by the delay in intimating acceptance or in relieving him of his duties." 6. In the present case the resignation was accepted within a short time after it was received by the Government of India. Apparently the State of Rajasthan did not immediately implement the order, and relieve the appellant of his duties, but the appellate cannot profit by the delay in intimating acceptance or in relieving him of his duties." 6. Apex Court in another case titled as Shambhu Murari Sinha v. Project and Development India and another, AIR 2000 SC 2473 , laid the same law. It is apt to reproduce Para 5 of the said judgment:- "From the facts stated above, it would be seen that though the option of voluntary retirement exercised by the appellant by his letter dated 18.10.1995 was accepted by his letter dated 18.10.1995 was accepted by the respondent-management by their letter dated 30.7.1997, the appellant was not relieved from service and he was not allowed to continue in service till 26.9.1997, which for all practical purposes, would be the "effective date" as it was on this date that he was relieved from service. In the meantime, as pointed out above, the appellant has already withdrawn the offer of voluntary retirement vide his letter dated 7.8.1997.The question which therefore, arises in this appeal is whether it is open to a person having exercised option of voluntary retirement to withdrawn the said offer after it acceptance but before it is made effective. The question is squarely answered by the three decisions, namely, Balram Gupta v. Union of India, 1987 (Supp.) SCC 228: ( AIR 1987 SC 2354 : 1988 Lab IC46 ): J.N. Srivastava v. Union of India ( 1998 ) 9 SCC 559: (1998 AIR SCW 4057: AIR 1999 SC 1571) and Power Finance Corporation Ltd. v. Pramod Kumar Bhatia (1997) 4 SCC 280 , in which it was held that the resignation, in spite of its acceptance, can be withdrawn before the "effective date". That being so, the appeal is allowed. The impugned judgment of the High Court is set aside with the direction that the appellant shall be allowed to continue in service with all consequential benefits. There will, however be no order as to costs." 7. Apex Court in a case titled as North Zone Cultural Centre and anr. v. Vedpathi Dinesh Kumar, AIR 2003 SC 2719 , has also laid the same law. 8. There will, however be no order as to costs." 7. Apex Court in a case titled as North Zone Cultural Centre and anr. v. Vedpathi Dinesh Kumar, AIR 2003 SC 2719 , has also laid the same law. 8. The same matter came up for consideration before this Court in case titled as Mohammad Amin Pukhta v. State, 1997 S.L.J 205, and it was held that where resignation pre-supposes acceptance, it can be withdrawn till it is accepted. It is apt to reproduce Para 27 of the said judgment, which reads as under:- "So from the ratio of the decisions quoted above, I do find that where resignation presupposes acceptance, it can be withdrawn/varies before such acceptance and till that acceptance, prospective resignation remains mute and inoperative and non-existant in the eye of law and can be withdrawn." 9. This court in writ petition being SWP No. 2428/1009, `Ghulam Ali Sheikh v. State of J&K and others' decided on 18th March, 2009 in Srinagar wing, has also laid the same principle. 10. Thus, in the given circumstance, the writ petition is allowed and the respondents are directed to allow the petitioner to join the services as Rehbar-e-Taleem Teacher. However, it is made clear that petitioner shall not be entitled to any monetary benefits right from the date of resignation till today and the said period shall not qualify for any other service benefit. Writ petition is, accordingly disposed of.