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2024 DIGILAW 610 (UTT)

State of Uttarakhand v. Archana Rani

2024-09-26

RAKESH THAPLIYAL, RITU BAHRI

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JUDGMENT : RAKESH THAPLIYAL, J. 1. The instant Appeal has been preferred by the State/appellants, challenging the judgment and order dated 17.08.2022 passed by the learned Single Judge in Writ Petition (S/S) No. 2238 of 2016, Archana Rani Vs. State of Uttarakhand and others, whereby the learned Single Judge allowed the writ petition and quashed the order dated 27.07.2016, whereby the order of appointment of the respondent/writ petitioner was kept under suspension and a further mandamus had been issued to the respondents/appellants herein to issue letter of appointment. 2. Learned counsel for the appellants/State submits that learned Single Judge passed the judgment under challenge without considering the entire factual aspects of the case in correct perspective since the petitioner was already appointed as Assistant Teacher in Government Primary School Dharpangu, Dharchula District Pithoragarh on 01.10.2014 and she gave her joining on 14.10.2014 and thereafter she remained unauthorisedly absent from her duties since 16.11.2015 and without any prior information, she submitted her resignation on 22.01.2016 which was rejected by the Deputy Education Officer on 16.11.2016. 3. Learned counsel for the appellants submits that this is a very vital issue because the respondent/writ petition has applied pursuant to a fresh advertisement issued on 17.02.2016 and though she was permitted to participate in that selection process and offered appointment on 21.07.2016 but subsequently the same was kept under suspension on 27.07.2016 since she was not eligible to apply pursuant to clause 7(cha) of the advertisement which provides that those who are already appointed and are working on the post of Assistant Teacher, are not eligible to apply afresh pursuant to the fresh advertisement. 4. Mr. C.S. Rawat, learned Chief Standing Counsel for the State/Appellants submits that this is the most vital aspect of the matter which, in fact, not understood by the learned Single Judge and allowed the writ petition. 5. He further submits that the respondent/writ petitioner had not disclosed this fact before the respondents/appellants that she was already appointed pursuant to the earlier advertisement, issued in the year 2014 and she had not furnished the NOC from the competent officer with regard to her earlier appointment and even no certificate has been produced with regard to acceptance of resignation and as such the respondent/writ petitioner was not eligible to apply afresh pursuant to the fresh advertisement. 6. 6. The learned Single Judge allowed the writ petition that a fresh advertisement was issued on 17.02.2016 and the last cut off date for submitting the application form was on 05.03.2016 and much prior to the last cut off date, the petitioner has already submitted her resignation on 22.01.2016 and by giving reference of Rule 5 of the Uttaranchal Government Servants Resignation Rules, 2003, the resignation was submitted by the petitioner on 22.01.2016 which was prior to the cut-off date i.e. 05.03.2016, would be deemed to have been accepted. 7. Ms. Neetu Singh, learned counsel for the respondent/writ petitioner submits that the letter of resignation of the respondent/writ petitioner dated 22.01.2016 was on personal grounds and it was sent to the competent authority and the same was forwarded by the Deputy Education Officer, Elementary Education, Pithoragarh to the Deputy Education Officer, Dharchula on 20.02.2016 and when no action was taken on such resignation, a fresh reminder was sent by the Deputy Education Officer, Elementary Education, Pithoragarh on 13.04.2016. 8. Learned counsel for the respondent/writ petitioner further submits that there was no fault of the respondent/writ petitioner since she had already submitted her resignation on 22.01.2016 which was sent for acceptance on 20.02.2016 which is much prior to the cut-off date i.e. 05.03.2016 for applying a fresh pursuant to the fresh advertisement, therefore, the respondent/writ petitioner cannot be treated to be “not eligible” for applying afresh pursuant to the fresh advertisement. 9. We have also gone through the provisions of Uttaranchal Government Servants Resignation Rules, 2003 and Rule 5(2) of the said Rules clearly stipulates that the appointing authority shall, as far as possible take decision on the request of resignation before the expiry of the period of notice. 10. This is an undisputed fact that the respondent/writ petitioner submitted her resignation on 22.01.2016 and the same was forwarded on 20.02.2016, therefore, if there was any fault in acceptance of the resignation, it lies with the respondents authorities for which the respondent/writ petitioner cannot be made to suffer. 11. 10. This is an undisputed fact that the respondent/writ petitioner submitted her resignation on 22.01.2016 and the same was forwarded on 20.02.2016, therefore, if there was any fault in acceptance of the resignation, it lies with the respondents authorities for which the respondent/writ petitioner cannot be made to suffer. 11. There is also another aspect of the matter that no doubt the respondent/writ petitioner was appointed earlier pursuant to the earlier advertisement issued in the year 2014, however, due to some matrimonial discord, she was facing some litigations and therefore, she was unable to serve notice pursuant to the earlier appointment since she was posted in a very remote place i.e. in District Pithoragarh. Consequently, she furnished her resignation. 12. After furnishing resignation if she applied afresh for appointment pursuant to fresh advertisement, the respondent/writ petitioner cannot be debarred from participating in fresh selection process, merely on the ground that she was offered appointment earlier. Even otherwise, the respondent/writ petitioner admittedly is not seeking any benefit pursuant to earlier appointment and, she is simply praying for that since she has participated in the fresh selection process and she was found on merit, therefore, her appointment cannot be taken away merely on the ground that she could not produce NOC from her earlier parent department and also not furnished the certificate with regard to acceptance of resignation. Acceptance of resignation is not in the hands of the respondent/writ petitioner and it is for the respondents/appellants either to accept or to reject it particularly when the resignation was forwarded much prior to the cut-off date i.e. 05.03.2016. 13. Thus, since the respondent/writ petitioner participates in the fresh selection process and she was selected and found on merit and offered appointment on 21.07.2016 and, she is not claiming any benefit pursuant to the earlier appointment, therefore, the action of the respondents/appellants appears to be wholly illegal and unjustifiable by keeping the order of appointment of the petitioner dated 21.07.2016 under suspension. 14. After arguing at length, Mr. C.S. Rawat, learned Chief Standing Counsel placed before this Court a judgment rendered by the Hon’ble Apex Court in the case of Pathapati Subba Reddy (Died) by LRs. & Ors. Vs. The Special Deputy Collector (LA), 2024 INSC 286 [decided in Special Leave Petition (Civil) No. 31248 of 2018]. The facts of the said case are totally irrelevant to the present controversy. 15. & Ors. Vs. The Special Deputy Collector (LA), 2024 INSC 286 [decided in Special Leave Petition (Civil) No. 31248 of 2018]. The facts of the said case are totally irrelevant to the present controversy. 15. Thus, we do not find any merit in the present Appeal and the same is, accordingly, dismissed.