THE HONOURABLE SMT. JUSTICE P. MADHAVI DEVI
WRIT PETITION NO.24607 OF 2022
ORDER
This Writ Petition has been filed by the petitioner seeking a Writ of Mandamus declaring the impugned order in F.No.E1/68/2008 dt.19.02.2022 passed by the 2nd respondent and the consequential order passed by the 3rd respondent in F.No.E1/68/2008 dt.30.04.2022, as illegal and arbitrary.
2. Brief facts leading to the filing of the present Writ Petition are that the petitioner was initially appointed as a Junior Assistant-cum- Typist in the office of the 1st respondent on 26.07.1997 and was subsequently promoted as Senior Assistant on 28.06.2012 and was further promoted as Superintendent on 01.02.2020 and was working as Superintendent in the office of the 1st respondent. The petitioner after promotion as Superintendent on 01.02.2020 was posted in Zone II and Zone IV in the office of the 1st respondent by allocating ministerial duties. While so, the petitioner was transferred and posted as Inspector Auditor Waqf, Mahabubnagar, Narayanpet and Gadwal Districts by order dt.05.11.2021. The petitioner immediately made a representation W.P.No.24607 of 2022 2 dt.05.11.2021 to the 2nd respondent requesting to retain him at Head Office by considering his case on humanitarian grounds. It was stated that his wife was suffering from neurological and psychological disorders due to the death of his two daughters in the years 2012 and 2017 respectively and that she requires regular check up and treatment at Hyderabad and that except himself there was no other family member to look after her. It is submitted that when the respondents did not consider the said representation, the petitioner ultimately joined the duties as Inspector Auditor Waqf, but due to heavy work load and due to field work of 3 Districts, the petitioner fell sick and used to get hospitalised often and in view thereof, the petitioner made repeated representations requesting transfer/posting as Superintendent in the Head Office and allocation of ministerial work in the Head Office. Since there was no response, the petitioner applied for medical leave on 18.12.2019 for 7 days and for extension of medical leave for another 8 days by application dt.24.12.2021 and further extension of medical leave from 01.01.2022 to 31.03.2022.
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3. It is submitted that in the meantime, the petitioner made another representation dt.07.02.2022 to the 2nd respondent with a request to post him in the head office as Superintendent since he was suffering from hyper tension, blood pressure, depression, lower back pain and other ailments. It is also stated that due to his health problems, he is not in a position to work more in the field and he stated that he was going to submit his resignation for the post of Superintendent in case he is continued in the field work. It is submitted that the 2nd respondent passed an order in F.No.E1/68/2008 dt.19.02.2022 by treating the said representation as a resignation letter and after receipt of the said letter, the petitioner made a representation dt.16.03.2022 stating that the letter dt.07.02.2022 is not a letter of resignation and therefore, the order dt.19.02.2022 may be withdrawn. The 3rd respondent however passed the impugned order dt.30.04.2022 stating that since his resignation letter has already been accepted, his representation dt.16.03.2022 cannot be considered for reposting him as Superintendent. Challenging the same, the present Writ Petition is filed.
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4. Learned counsel for the petitioner, Sri S.A. Razzak, while reiterating the above submissions on facts, submitted that a resignation letter can only be addressed and submitted to the competent authority, i.e., the appointing authority, who, in the case of the petitioner is the Waqf Board headed by its Chairman. He submitted that the letter dt.07.02.2022 was addressed to the Chief Executive Officer who is not the appointing authority of the petitioner and therefore, the said letter cannot be treated as the letter addressed to the Chairman of the Waqf Board. He submitted that in the said letter, the petitioner has stated his intention to submit resignation letter in case his representation for posting him in the Head Office in view of the medical and other problems faced by him is not considered and therefore, the said letter cannot be treated as resignation letter. He further submitted that only the appointing authority can consider and accept the resignation letter, but in this case, it is the CEO who appears to have accepted and intimated the acceptance and hence, the resignation letter, even if it is considered as resignation letter, has not been accepted by the competent authority and therefore, it cannot be given effect to. He further submitted that the W.P.No.24607 of 2022 5 acceptance of the resignation cannot be conditional. He has drawn the attention of this Court to the letter dt.19.02.2022, wherein it is stated that the resignation of the petitioner is accepted with effect from 07.02.2022 subject to verification of records relating to disciplinary cases pending, if any, against him and no dues certificates to be received from all the sections of TSWB as required under the rules and regulations and submitted that the acceptance of the alleged resignation cannot be with retrospective effect. Without prejudice to the above arguments, the learned counsel for the petitioner further submitted that since it is a conditional acceptance of the resignation, unless and until the conditions are complied with, the resignation letter cannot be said to have come into effect. He also submitted that the letter dt.30.04.2022 is issued by an Officer on Special Duty who is not competent authority to consider the representation of the petitioner dt.16.03.2022. He submitted that it is only the Board of the 1st respondent organisation headed by the Chairman who can consider resignation as well as withdrawal of the resignation before it is given effect to and not the CEO or the Officer on Special Duty. He also referred to the Andhra Pradesh Waqf Regulations of 1963, which are filed by the respondents along with the counter W.P.No.24607 of 2022 6 affidavit, to submit that the appointing authority of Class-I and Class-II posts as per Regulation 17 of the Regulations is the Chairman and by virtue of the amendment made to the said Regulation, vide G.O.Ms.No.1017 Rev (Waqf) Dept., dt.27.10.1987, all appointments to the posts in Class-I, Class-II and Class-III shall be made on the recommendation of a selection committee appointed by the Board which shall consist of the Chairman and two members of the Board. Therefore, according to him, it is the Board which has to take a decision and not the Chairman alone. He also referred to the Telangana State and Subordinate Service Rules, 1996 and Rule 30 thereof which deals with the issue of 'resignation'. He submitted that as per the said Rule, a member of a service may resign from his appointment and acceptance of his resignation by the appointing authority shall take effect,
(i) in case he is on duty, from the date on which he is relieved of his duties in pursuance of such acceptance;
(ii) in case he is on leave, from the date of communication of such acceptance to the member or if the said authority so directs, from the date of expiry of leave; and W.P.No.24607 of 2022 7
(iii) in any other case, from the date of communication of such acceptance to the member or from such other date, not being earlier than the date on which he was last on duty, as the said authority may, having regard to administrative exigencies, specify.
5. He also placed reliance upon the Second Proviso thereto, wherein it is provided that a member of a service may withdraw his resignation before it takes effect and in Sub-Rule (b) of Rule 30, it is mentioned that if the resignation of a member of service has been accepted, but has not taken effect and he withdraws his resignation before it has taken effect, he should be deemed to be continuing in service. He referred to the impugned order dt.19.02.2022, wherein the petitioner's application for leave on medical grounds were referred to and it was stated that the same will be examined with reference to the leave title for sanction after submission of the medical certificate. He submitted that the petitioner had applied for leave from 01.01.2022 to 31.03.2022 and therefore, as on the date of application dt.07.02.2022 the petitioner was on leave and therefore, the provisions of Rule 30 of the State and Subordinate Service W.P.No.24607 of 2022 8 Rules, 1996 would be applicable and before the letter of resignation is given effect to after the expiry of leave on 31.03.2022, the petitioner has withdrawn the said letter by letter dt.16.03.2022 and therefore, the resignation has to be deemed to have been withdrawn before it has taken effect. He, therefore, prayed for setting aside of the impugned order and the consequential reliefs thereafter.
6. Learned counsel for the petitioner also placed reliance upon the judgment of the Hon'ble Supreme Court in the case of Power Finance Corporation Ltd. Vs. Pramod Kumar Bhatia1 for the proposition that voluntary retirement would not become effective unless the employee is relieved of his duty after complying with the conditions of acceptance.
7. Learned counsel for respondents 2 and 3 relied upon the averments made in the counter affidavit and has drawn the attention of this Court to the letter of the petitioner dt.07.02.2022, wherein in the subject itself, it is mentioned as "submission of resignation for the position of Superintendent of TSWB and requesting for acceptance and sanction and release of monetary benefits". It is submitted that the 1 (1997) 4 SCC 280 W.P.No.24607 of 2022 9 petitioner was very much clear in his mind about submission of resignation letter and after consideration of the same, it has been accepted by the competent authority, i.e., the Chairman of the Board and thereafter, the proceedings dt.19.02.2022 were issued. It is submitted that it is settled law that the resignation cannot be withdrawn after it has been accepted by the competent authority. It is further submitted that all the terminal benefits of the petitioner have been calculated and a cheque has also been prepared, but since the petitioner refused to accept the same, the same has not been paid to the petitioner.
8. Learned counsel representing the 1st respondent also adopted the averments in the counter affidavit filed by respondents 2 and 3 and submitted that by virtue of the Board Resolution No.3/2017, the resignation application filed by the petitioner though addressed to the CEO, has been forwarded to the Chairman through proper channel, and has been examined and accepted by him and therefore, there was no question of consideration of the withdrawal of the resignation which has already been accepted. He also submitted that the intimation given by W.P.No.24607 of 2022 10 the 2nd respondent on 30.04.2022 is pursuant to the decision taken by the Chairman.
9. Having regard to the rival contentions and the material on record, this Court finds that the question before this Court is whether the petitioner's representation dt.07.02.2022 is a resignation letter and if so, whether it has been given effect to before the petitioner has submitted the letter dt.16.03.2022 and whether the letter dt.16.03.2022 is in fact a letter of withdrawal of the resignation. From a reading of the letter dt.07.02.2022, it is seen that in the subject portion, it is mentioned as submission of resignation for the position of Superintendent of TSWB and a request was also made to accept the same and release the monetary benefits. However, in the last paragraph of the said letter, it is mentioned that for the reasons mentioned in the letter, if the petitioner is not able to continue the services to the Waqf Board, then he is going to submit his resignation for the position of the Superintendent of TSWB, Hyderabad with a request to sanction and release the monetary benefits as early as possible which has to be utilised for his medical treatment, etc. The intention of a party has to be gathered not only from the recitals W.P.No.24607 of 2022 11 in the subject portion of the letter but also from the submissions made in the letter. In the operative portion of the letter, the petitioner has pointed out his medical problems, due to which he is not able to continue in service as the Superintendent/I.A. Waqf, Mahaboobnagar District on field work. After reciting the health reasons, the petitioner has revealed his intention to submit resignation letter. When the petitioner had submitted the letter, he was admittedly on leave. Even the letter dt.19.02.2022 refers to the leave applications submitted by the petitioner on medical grounds and that they will be considered on submission of the medical certificates. It is nowhere mentioned that the petitioner had joined duty on 07.02.2022 and submitted the alleged letter of resignation. Even if the contention of the respondents that the letter submitted by the petitioner addressed to the CEO is to be accepted to be the letter addressed to the Chairman through proper channel, the letter would have to be addressed to the Chairman and has to be routed through the CEO. As rightly pointed out by the learned counsel for the petitioner, it has to be accepted by the Chairman of the Board. The learned counsel for the petitioner's contention that it is the Board which has to accept the resignation cannot be sustained as the Regulations only W.P.No.24607 of 2022 12 prescribe the Chairman as the appointing authority of Class-I and Class- II posts and only that the appointments have to be made on the recommendation made by a Selection Committee which shall consist of the Chairman and two other members of the Board. Therefore, it is the Chairman, who is the appointing authority and thus competent to accept the alleged resignation of the petitioner.
10. The learned counsel for the respondents had referred to the orders of the Hon'ble Chairman, TSWB in F.No.E1/68/2008 and also the alleged letter dt.07.02.2022 submitted by the petitioner, as referred to in the impugned order dt.19.02.2022. However, this Court finds that the said reference to the letter of the Chairman does not contain the date of the orders or the contents of the said orders. The learned counsel for the respondents has also referred to the Board Resolutions dt.11.03.2017 delegating certain powers of the Chairperson to the CEO. As rightly pointed out by the learned counsel for the petitioner, there is no delegation of power to accept the resignations of the officers of Class-I and Class-II by the CEO. Such a power cannot be delegated by the appointing authority.
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11. Further, even if the letter dt.07.02.2022 were to be considered as a resignation letter, under Rule 30 of the Telangana State and Subordinate Service Rules, 1996, the acceptance of the resignation shall take effect from the date of communication of such acceptance to the member in case of his being on duty and where he is on leave, if the said authority so directs, from the date of expiry of leave. In this case, the respondents have accepted the alleged resignation letter with effect from the date of application, i.e., retrospectively and therefore, it cannot be said to have come into effect on the said date as it could not have been communicated to him. As held by the Hon'ble Supreme Court in the case of Power Finance Corporation Ltd. Vs. Pramod Kumar Bhatia (1 supra), where the resignation letter is accepted subject to certain conditions, the resignation would not come into effect till the conditions are fulfilled. In the present case, it is not stated as to when the conditions stipulated in the acceptance letter have been fulfilled. The same is not stated in the proceedings dt.30.04.2022 or even in the counter affidavit. The letter of the petitioner dt.16.03.2022 has clarified that the petitioner did not intend to submit any resignation and that the letter dt.07.02.2022 W.P.No.24607 of 2022 14 is not a letter of resignation. Therefore, from the tone and tenor of the letter, it can be said that it is nothing but withdrawal of the alleged resignation letter and therefore, since the order of acceptance is supposedly not given effect to, before the submission of the petitioner's letter dt.16.03.2022, the orders dt.19.02.2022 and the consequential order dt.30.04.2022 are both not sustainable. In view thereof, they are set aside and the respondents are directed to allow the petitioner to continue his service as the Superintendent with all consequential benefits.
12. With the above directions, the Writ Petition is allowed. No order as to costs.
13. Pending miscellaneous petitions, if any, in this Writ Petition shall stand closed.
___________________________ JUSTICE P. MADHAVI DEVI Date: 27.09.2022 Svv