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2017 DIGILAW 389 (UTT)

STATE OF UTTARAKHAND v. RAMDAS

2017-07-17

ALOK SINGH, K.M.JOSEPH

body2017
JUDGMENT K.M. Joseph, C.J. (Oral) Appellants are the respondents in the writ petition. 2. The short facts, not in dispute, are as follows: The writ petitioner applied pursuant to advertisement dated 01.02.2014 for selection as an Assistant Teacher. It appears that the writ petitioner participated and was selected. The writ petitioner belongs to Kumaon Region. Advertisement dated 01.02.2014 was issued in respect of Chakrata in District Dehradun. Subsequently, another advertisement was issued on 17.02.2016; it relates to District Udham Singh Nagar. For the post of Assistant Teacher, the writ petitioner made application dated 29.02.2016 pursuant to the said advertisement. On 02.03.2016, the writ petitioner was appointed and was given posting order in pursuance to the earlier advertisement. On 05.03.2016, the writ petitioner joined his services at District Dehradun. On the very same day, he gave a notice of resignation and, finally on 10.05.2016, he tendered his resignation. The writ petition was filed seeking a mandamus to consider the candidature of the writ petitioner for appointment pursuant to the result of counseling held on 30.03.2016 and the approval given by second respondent for appointment on 19.07.2016, in view of the fact that writ petitioner’s name finds mention at Serial No. 99 in the list of merit for District Udham Singh Nagar against 150 posts of Assistant Teacher. 3. We heard Mr. Pradeep Joshi, learned Standing Counsel on behalf of the State/appellants and Mr. M.S. Bhandari, learned counsel on behalf of the writ petitioner/respondent. 4. The case of the appellants/State of Uttarakhand appears to be as follows: Clause 7(g) of the advertisement dated 17.02.2016 relating to District Udham Singh Nagar for which the writ petitioner applied and in respect of which, the writ petitioner seeks the relief contemplates that a person who is selected cannot apply. Clause 7(g), according to the learned counsel for the writ petitioner, however, does not yield that interpretation. He would submit that the writ petitioner, when he applied on 29.02.2016 pursuant to advertisement dated 17.02.2016 in relation to posts in District Udham Singh Nagar was not working, though he may have been selected. 5. On perusal of the said Clause, it would appear that the interpretation placed by the appellants/State may not be correct. Clause 7(g) actually only contains the prohibition against persons, who are already working pursuant to the selection being considered. If that be so, the person must be appointed. Appointment takes place after selection. 5. On perusal of the said Clause, it would appear that the interpretation placed by the appellants/State may not be correct. Clause 7(g) actually only contains the prohibition against persons, who are already working pursuant to the selection being considered. If that be so, the person must be appointed. Appointment takes place after selection. In this case, while the writ petitioner may have applied earlier pursuant to advertisement dated 01.02.2014 and may have been selected, but he may not be treated as working pursuant to an appointment order within the meaning of Clause 7(g) in the advertisement dated 17.02.2016. If that is so, the ground projected by the learned Standing Counsel does not appear to be correct. 6. Then, there remains another issue. Pursuant to advertisement dated 01.02.2014, the posting order was given on 02.03.2016 and the writ petitioner joined on 05.03.2016, but on the same day, he gave a notice of resignation and subsequently on 10.05.2016, he tendered his resignation. The matter of resignation of Government Servants is governed by the Uttaranchal Government Servants Resignation Rules, 2003(from hereinafter referred to as “Rules”). Rules 4, 5 and 6 reads as follows: “4. Notice of Resignation.—(1) A Government servant may resign from his service by giving three months notice in writing. (2) The notice of resignation shall be— (i) voluntary and unconditional; (ii) addressed to the appointing authority under intimation to the authority under whom the said Government servant is working at the time of tendering resignation: Provided that it shall be open to the appointing authority to allow a Government Servant to resign without any notice or by a shorter notice. 5. Acceptance or refusal of resignation.—(1) The resignation of the Government servant shall not be effective unless it is accepted by the appointing authority and formal order is issued thereof. The appointing authority may, in its discretion, refuse to accept the resignation, if— (i) the Government servant owes to the Government any sum of money and/or any other liability unless the amount due has been paid or the liability discharged. Or (ii) the Government servant is under suspension. Or (iii) the inquiry is contemplated or pending against him. Or (iv) investigation, inquiry or trial relating to criminal charge is pending and such charge is connected with his official position as the Government Servant. Or (ii) the Government servant is under suspension. Or (iii) the inquiry is contemplated or pending against him. Or (iv) investigation, inquiry or trial relating to criminal charge is pending and such charge is connected with his official position as the Government Servant. (2) The appointing authority shall, as far as possible take decision the request of resignation before the expiry of period of notice. 6. Termination of service.—The services of the said Government servant shall stand terminated with effect from the date of issue of order of the acceptance of his resignation or from such future date as mentioned therein.” 7. The scheme of the Rules appears to be as follows: A Government servant may tender his/her resignation and he/she must give three months notice. The notice may, however, be waived by the appointing authority. The appointing authority may accept notice of a shorter duration. Rule 5 of the Rules contemplates that resignation will not be effective unless it is accepted. In other words, an order must be passed accepting the resignation. Rule 5 of the Rules further contemplates that the notice must be acted upon or request for resignation must be acted upon as far as possible before the expiry of period of notice. More importantly, Rule 5 contemplates that in its discretion, the authority may refuse to act upon the resignation in four contingencies. Learned Standing Counsel does not have a case that any of the four contingencies is present in this case. However, the Rules do contemplate a formal order. This we say as Rule 7 provides as follows: “7. Withdrawal of resignation.—The Government servant may withdraw his resignation by making available a request in writing to the appointing authority only before the date of termination of his services as provided in rule 6 of these rules.” Therefore, the withdrawal of the resignation, which is to be made in writing, is to be made only before the date of termination under Rule 6. Rule 6, on the other hand, contemplates that the service will stand terminated with effect from the date of issue of order of the acceptance of his resignation or from any future date as mentioned therein. 8. The inevitable result is that there must be an order accepting the resignation to make the resignation effective. Rule 6, on the other hand, contemplates that the service will stand terminated with effect from the date of issue of order of the acceptance of his resignation or from any future date as mentioned therein. 8. The inevitable result is that there must be an order accepting the resignation to make the resignation effective. It may be accepted as provided from the date of issue of the order of the acceptance of his resignation or from any future date, which is mentioned. Withdrawal can be done only prior to the date of termination, which is done by issuing a formal order as contemplated in Rules 5 and 6. 9. In the circumstances of this case, since there is no order of acceptance of resignation as yet, we would think that the interest of justice would require that a decision must be taken on the resignation at the earliest and an order must be issued. Thereafter, the writ petitioner will be considered for appointment in terms of the advertisement dated 17.02.2016. Within a period of two weeks from the date of production of a certified copy of this judgment before respondent no. 2, a decision will be taken on the application for resignation and further steps will be taken thereafter. 10. The appeal is disposed of as above. No order as to cost.