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2014 DIGILAW 850 (GAU)

Shailendra Kumar v. Union of India

2014-09-04

BIPLAB KUMAR SHARMA

body2014
JUDGMENT : Biplab Kumar Sharma, J. 1. Challenge in this writ petition is the Annexure-7 and An-nexure-8 communications dated 28/02/2011 and 21/06/2011 by which while rejecting the prayer of the petitioner to permit him to withdraw the resignation earlier tendered and accepted, it was communicated that it would be open for him to appear afresh in a recruitment rally for enrollment. It appears that the petitioner had entered into the services of the Assam Rifles as a Driver. His name was enlisted as trainee on 21/02/2010. While undergoing training in Assam Rifles Training Centre and School at Nagaland for a period of three months, he tendered resignation on 28/09/2010. The grounds on which he had tendered resignation was that his health was not permitting him to continue with the service. His resignation letter was supported by an affidavit stating therein that he was desirous to resign from service out of his free will without any pressure and undue influence and that he had taken the decision in sound mind and health. Upon such resignation tendered by the petitioner, he was released from the training upon acceptance of the same vide communication dated 11/10/2010 giving effect to the resignation from 15/10/2010. Thereafter the petitioner vide his Annexure-4 letter dated 15/11/2010 addressed to the Director General, Assam Rifles prayed for allowing him to withdraw the resignation earlier tendered. It was pursuant to the said representation, the petitioner was informed of the decision of the authority vide impugned Annexures-7 and 8 communications dated 28/01/2011 and 21/06/2011. 2. Referring to the provisions of Rule 26(4) of the CCS (Pension) Rules, 1972, it is the case of the petitioner that since here is provision for withdrawal of resignation even after acceptance and having regard to the facts and circumstances in which the petitioner had earlier resigned from his service, the authority ought to have considered the changed circumstances towards allowing the petitioner to withdraw the resignation which he had tendered earlier. 3. I have heard Mr. R.K. Deka, learned counsel for the petitioner and have also heard Mr. D.K. Saikia, learned CGC appearing for the respondents. While Mr. 3. I have heard Mr. R.K. Deka, learned counsel for the petitioner and have also heard Mr. D.K. Saikia, learned CGC appearing for the respondents. While Mr. Deka, learned counsel for the petitioner referring to the aforesaid provisions of the Rules and also the stand of the respondents in the impugned communications and subsequent stand vide Annexure-A communication dated 25/05/2011 annexed to the affidavit-in-reply, submits that since the authority was under a misconception, the prayer of the petitioner is required to be considered afresh, Mr. D.K. Saikia, learned CGC on the other hand submits that the petitioner having voluntarily tendered his resignation and the authority having accepted the same, there is no question of allowing the petitioner to withdraw the resignation. As regard the provision of Rule 26(4) referred to above, he submits that the circumstances in which an exception can be made in respect of withdrawal of resignation being missing in this case, there is no question of allowing the petitioner to withdraw his resignation. 4. I have considered the submissions made by the learned counsel for the parties and the entire materials on record. Although the petitioner has not annexed the copy of the resignation letter to the writ petition but the respondents in their counter affidavit have annexed the same. On perusal of the said letter of resignation dated 28/09/2010 it appears that the petitioner had resigned from service with the statement that ".....I do not want to serve. My health is not permitting me. I will not serve. There is no pressure of anyone upon me. I do not want to leave service at my own will. I do hereby request you to kindly accept my prayer". 5. The resignation tendered by the petitioner with the aforesaid statement was accepted by the authority and the same was communicated vide letter dated 11/10/2010 making the resignation effective from 15/10/2010. As noted above, the resignation letter of the petitioner was supported by an affidavit. However, in the letter of withdrawal, the petitioner assigned the grounds of his mother's expiry and father's illness. He also took the ground of realization of the fact that the job was very important to run the family as there was no other earning member. It was in such circumstances, he conveyed his decision to withdraw the resignation tendered by him. He also took the ground of realization of the fact that the job was very important to run the family as there was no other earning member. It was in such circumstances, he conveyed his decision to withdraw the resignation tendered by him. By the impugned communications, the authority had intimated the petitioner that as per Rules in vogue, the petitioner cannot be permitted to rejoin as he was already discharged from his service at his own request. By the second communication dated 21/06/2011 it was also communicated that there is no provision to reinstate a discharged personnel. 6. In the affidavit-in-reply, the petitioner has annexed the copy of the letter dated 25/05/2011 addressed to the father of the petitioner stating therein about the applicability of Rule 26(4) of the CCS (Pension) Rules, 1972. However, the letter also conveyed that the period stipulated in the rule having expired, there is no question of reinstatement of the petitioner in service. It is in this context, Mr. Deka, learned counsel for the petitioner submits that the respondents are required to reconsider the case of the petitioner in reference to the letter of withdrawal of resignation dated 15/11/2010 and not in reference to the position that was existing when the aforesaid communication dated 25/05/2011 was made. 7. As per the provision of the aforesaid rules, the appointing authority may permit a person to withdraw his resignation in public interest subject to the conditions: (i) that the resignation was tendered by him for some compelling reasons which did not involve any reflection in his integrity, efficiency or conduct; (ii) the request for withdrawal has been made as a result of material change in the circumstances which originally compelled him to tender resignation; (iii) the period of absence from duty between the date on which the resignation become effective and the date on which the person is allowed to resume the duty is not more than 90 days; and (iv) the post that was vacated by the Government servant upon acceptance of his resignation or any other comparable post is available. 8. In the counter affidavit, the respondents have taken the plea that the post is not vacant and has been filled up by subsequent selection. However, the only ground on which the petitioner's case was rejected is that upon discharge, there is no provision for re-consideration. 8. In the counter affidavit, the respondents have taken the plea that the post is not vacant and has been filled up by subsequent selection. However, the only ground on which the petitioner's case was rejected is that upon discharge, there is no provision for re-consideration. It is only on 25/05/2011, the authority communicated that although Rule 26(4) of the aforesaid Rules was applicable but the case of the petitioner was not in a position to be considered as the period stipulated therein had already expired. 9. The period of 90 days as stipulated in the aforesaid rules will have to be considered in reference to the impugned communications. As per the requirement of the rules, the stipulated period of 90 days is to be counted from the date when the resignation became effective and the date on which the incumbent is allowed to resume duty, subject to the fulfillment of the other conditions stipulated in the said rules. As to whether the petitioner could fulfill the required conditions as stipulated in the said rules is a matter to be decided by the appropriate authority of the Assam Rifles. According to Mr. Saikia, learned CGC, the circumstances envisaged in the aforesaid rules are missing in the instant case, inasmuch as, while the petitioner resigned from service, he took the ground of ill health but while offering to withdraw the resignation he assigned other grounds. According to him, there is also no reflection of changed circumstances to withdraw the resignation. 10. Without expressing any opinion on the merit of the submission made by Mr. D.K. Saikia, learned CGC, the writ petition is disposed of directing the respondents to re-examine the case of the petitioner as to the permissibility or otherwise of withdrawal of the resignation tendered by him. Let the required exercise be carried out and completed by passing a speaking order as expeditiously as possible, preferably within three months. With the above direction and observation, the writ petition is disposed of, without however, any order as to costs.