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2023 DIGILAW 288 (CAL)

State of West Bengal v. Somak Krishna Biswas

2023-02-27

HARISH TANDON, PRASENJIT BISWAS

body2023
JUDGMENT : 1. Admittedly the respondent joined the services in the Department of Health and Family Welfare, M.A. (MES) Branch, on 3rd November, 2015. Subsequently the respondent decided to tender resignation, as he did not intend to continue with the said service and the letter of resignation dated 28th September, 2018 was caused upon the competent authority for acceptance. 2. As usual there was no decision taken on the said letter of resignation. The Tribunal was moved by the respondent being OA 478 of 2019 for a mandatory direction upon the authority to issue the release order in favour of him and also for quashing and/or setting aside the Finance (Audit) Notification No. 4499-F(P) dated 26th August, 2016 as ultra vires to the Constitution of India. 3. The said tribunal application came to be disposed of on 10th February, 2020 with the categorical finding that the respondent has abandoned the relief whereunder he challenged the amendment of the Rules for the time being and insisted upon the first relief, i.e. the direction to issue release order. In the backdrop of the above, the said tribunal application was disposed of directing the Director of Medical Education & Ex-Officio Secretary, Department of Health & Family Welfare, Government of West Bengal to consider the representation to be filed by the said respondent and dispose of the same within eight weeks by passing a reasoned order. 4. Pursuant to the same the said authority took a decision on 7th August, 2020 holding that by virtue of the said Notification dated 26th August, 2016 the resignation cannot be considered and/or accepted before the Government Servant completes five years of continuous services with effect from the date of joining in any cadre or different cadre taken together, as the case may be. 5. The said order is further challenged by the respondent before the West Bengal Administrative Tribunal in OA 599 of 2021. By the impugned order the Tribunal took notice of the earlier decision taken in case of Dr. 5. The said order is further challenged by the respondent before the West Bengal Administrative Tribunal in OA 599 of 2021. By the impugned order the Tribunal took notice of the earlier decision taken in case of Dr. Mukut Mani Adhikari vs. The State of West Bengal & Ors (OA 28 of 2021, decided on 1st February, 2021) and held that the said decision had set at the rest the issues in this regard and directed the authorities to accept the resignation of the respondent within four weeks from the date of presentation of the copy of the order and follow up action shall be taken within the stipulated time. 6. The State has challenged the said order primarily on two counts; firstly, that the Notification dated 26th August, 2016 creates an embargo in entertaining an application tendering resignation before completing five years of continuous service from the date of joining and, secondly the order of the Tribunal in case of Dr. Mukut Mani Adhikari vs. The State of West Bengal & Ors., which was affirmed by the Division Bench of this Court is pending consideration before the Supreme Court and the notices have been issued inviting counter-affidavits. 7. It is thus submitted that on both counts the Mandamus in such form is unwarranted more particularly when the Rule subsequently amended by virtue of the said Notification dated 26th August, 2016 is still operative and has not been struck down by the competent forum. 8. As indicated above, in the first round of litigation the respondent himself had abandoned the relief challenging the said notification dated 26th August, 2016 as ultra vires to the Constitution of India and so far as the second round of litigation is concerned, our endeavour has failed to find out that any relief in such form has been sought. 9. In view of the above facts, we proceed to decide the matter bearing in mind the aforesaid amendments having its applicability and whether the petitioner has been able to make out a case that the order of the authority relying on the said amendment is per se illegal and cannot stand independently. 10. 9. In view of the above facts, we proceed to decide the matter bearing in mind the aforesaid amendments having its applicability and whether the petitioner has been able to make out a case that the order of the authority relying on the said amendment is per se illegal and cannot stand independently. 10. By virtue of the Notification dated 26th August, 2016 the proviso is inserted to Sub-rule (1) of Rule 34A in the West Bengal Service Rules, Part – I in the following: “Provided that the provision under this sub-rule shall not be applicable in respect of the officers in the cadres of the West Bengal Health Service, the West Bengal Medical Educational Service, the West Bengal Public Health cum Administrative Service, the West Bengal Dental Service and the West Bengal Dental Education Service, prior to completion of a period of at least five years of continuous service with effect from the date of joining, in any of such cadres or in different cadres taken together, as the case may be.” 11. The meaningful reading of the language employed in the said proviso manifests the legislative intent that the officer in the cadre of the West Bengal Health Service, the West Bengal Medical Educational Service, the West Bengal Public Health cum Administrative Service, the West Bengal Dental Service and the West Bengal Dental Education Service is debarred from resigning from the said service taking shelter under the aforesaid Sub-rule before completing five years of continuous service to be counted from the date of joining. 12. Such being the position, admittedly the letter of resignation was tendered before completing five years of continuous service from the date of joining and, therefore, we do not find any infirmity and/or illegality in the decision of the authority based upon the said notification dated 26th August, 2016. However, the matter is sub-judice as the order of the Tribunal is assailed before us under Article 226 of the Constitution of India. Admittedly as on the day the respondent has completed five years of service counted from the date of joining, i.e. 3rd November, 2015, the Tribunal ought to have taken into account the aforesaid facts, when the challenge was made to the decision of the authority taken before completion of five years of service, at the time of disposal of the said tribunal application. 13. 13. Indubitably, five years expired even on the day when the tribunal application was filed and came up for final consideration. There was no pleading required in this regard. The moment pleading is explicit on the date of joining and the date of filing of the tribunal application, the necessity of taking into the subsequent events is to minimise the litigation and avoid the multiplicity of proceedings. 14. Even if the letter of resignation was tendered when the embargo was in vogue, yet by passage of time such embargo has been lifted and, therefore, there is no necessity of relegating the parties to the domain of the authority afresh, as it will be the replication of the same facts and the grounds of tendering resignation would still survive. It will never give a new address to the original thing and the approach has to be different, as such embargo is no longer operating against the respondent. It will be the replication of the same facts and, therefore, we feel that the justice requires that the said letter of resignation to be considered in the light of the relevant provisions prevalent as on the date and should not be dismissed on technalities more particularly applying the embargo created in the provision by virtue of Notification dated 26th August, 2016. 15. Though we do not find any infirmity and/or illegality in the order of the authority passed on 7th August, 2020 since at that relevant point of time the respondent did not complete five years of continuous service as on the date of joining but in view of the natural events happened in course of the proceeding the said order needs interference only for the purpose of resurrecting the letter of resignation to be considered on merit. 16. The order impugned is thus set aside so the order of the authority dated 7th August, 2020. 17. The petitioner no. 3 is directed to take fresh consideration on the letter of resignation treating the same to have been filed as on the date and shall pass the reasoned order within three weeks from the date of the communication of this order in the light of the observations made hereinabove.