Telangana High Court
Ravi Shankar Kumar vs The Union Of India on 30 April, 2024
THE HONOURABLE SMT. JUSTICE T. MADHAVI DEVI
WRIT PETITION NO.18957 OF 2021
ORDER
In this Writ Petition, the petitioner is seeking a Writ of Mandamus declaring the proceedings No.E-28015/2021/Estt.II/1589 dt.23.03.2021 of respondent No.2 received through respondent No.3 vide IG/SS HQrs Ltr.No.(4458) dt.24.03.2021 rejecting the application of the petitioner for technical resignation consequent upon his selection as LDC in Indian Army and the representations of the petitioner dt.09.11.2020 and 24.05.2021 to consider his case as technical resignation, as illegal and arbitrary and contrary to the Office Memorandum of the Department of Personnel and Training vide F.No.12/2/2017-Estt(Pay-I) dt.05.08.2020 and the Office Memorandum of the Department of Personnel and Training vide No.28020/2/2018-Estt.(C) dt.27.08.2018 and to set aside the same and consequently to direct the respondents to process the petitioner's application for technical resignation and allow the petitioner to join the service of respondent No.8 and to pass such other order or orders.
W.P.No.18957 of 20212
2. Brief facts leading to the filing of the present Writ Petition are that the petitioner had initially applied for the post of Lower Division Clerk (LDC) in the Army Ordinance Depot, Fort, Allahabad pursuant to the Notification No.13/2013 of 06-20 APR 2013. Simultaneously, the petitioner also applied for recruitment to the post of Head Constable/Ministerial in the Central Industrial Security Force (CISF) pursuant to the Special Recruitment Drive for filling up of backlog vacancies of the Scheduled Castes, Scheduled Tribes, Other Backward Classes and Ex-Servicemen for the post of Head Constable/Ministerial in the CISF - 2012 with closing date 26.02.2013. It is submitted that the petitioner appeared for the test/interview for selection in the Army and the CISF and the results of the test/interview for the selection to the post of LDC in the Army Ordinance Depot were declared in the month of December, 2014 and the petitioner's name did not find place in the merit list. Subsequently, the petitioner was selected to the post of Head Constable/Ministerial in CISF and was intimated about the selection vide letter dt.18.03.2015 issued by the Assistant Inspector General, CISF, Eastern Zone Head Quarter, Patna. Accordingly, the petitioner joined the services of the CISF on 23.05.2015 and was assigned force No.150401399 and after undergoing the training, the petitioner was W.P.No.18957 of 2021 3 posted at VSTPP, Vindhyanagar, District Singarauli, Madhya Pradesh and the petitioner was detailed on temporary duty at Allahabad in the year 2018.
3. It is submitted that while the petitioner was serving in the CISF at Allahabad (temporary duty), the petitioner received an intimation No.1267 dt.02.01.2019 from the office of respondent No.8 that he was provisionally selected for the post of LDC in the Army Ordinance Depot pursuant to the Notification No.13/2013 and in the said letter, the petitioner was asked to report to the Army Ordinance Depot, Fort, Allahabad latest by 20th January, 2019 with all the certificates shown therein. It is submitted that in the month of January, 2019, while on leave, the petitioner went to Army Ordinance Depot, Fort, Allahabad with all the necessary forms including the medical and attestation forms and he was also required to declare if he was employed at any place. It is submitted that the petitioner has declared that he was employed as Head Constable/Ministerial in CISF. By letter dt.24.01.2019, the petitioner intimated respondent No.6 about his provisional selection for the post of LDC in Army Ordinance Depot, Allahabad. It is submitted that the Assistant Commandant, CISF, VSTPP, Vindhyanagar on behalf of respondent No.6 addressed a letter dt.11.02.2019 stating that the W.P.No.18957 of 2021 4 petitioner cannot be given the benefit of technical resignation as he did not provide the information of appearing for the exam for the post of LDC in Army Ordinance Depot immediately upon joining the CISF and also due to the fact that the pay scale in the Army Ordinance Depot was less than his current pay scale in the CISF and further that if the petitioner would have been in the service of the CISF as on the date of application to the Army Ordinance Depot, his application for the post of LDC with Army Ordinance Depot would not have been forwarded through proper channel. It is stated that the said letter was received by the petitioner much later, i.e., in the month of March, 2019. It is submitted that respondent No.8 seems to have verified the records of the petitioner including the educational qualifications and also employment details from respondent No.6. Respondent No.6, in response to the said request of the Army Ordinance Depot, has addressed a letter dt.18.03.2019 stating that a No Objection Certificate was not obtained by the petitioner from the CISF to apply for/join in the post of LDC in Army Ordinance Depot and also informed that if a force member requests resignation, then he would have to pay training cost or three months salary whichever is higher. In response to the same, the Army Ordinance Depot, vide letter dt.18.03.2019 clarified that the petitioner W.P.No.18957 of 2021 5 had applied for the test/interview in Army Ordinance Depot in the year 2013 and that the results were declared in December, 2014 and that the petitioner's name was not in the declared list but was kept in reserve panel and that since the petitioner was not employed at the time of recruitment, No Objection Certificate (NOC) from the CISF was not required to be obtained and further sought confirmation whether on issue of appointment, the petitioner's resignation would be accepted by the CISF. It appears that the CISF has given positive report on the petitioner's character and antecedents to the Army Ordinance Depot and accordingly, respondent No.8 has issued provisional appointment vide letter dt.29.10.2019. It is also stated that the CISF in the said letter has stated that the petitioner did not obtain NOC from CISF and as such, his technical resignation was not possible. It is submitted that the petitioner, thereafter, made a representation dt.28.03.2019 requesting for acceptance of technical resignation and permitting him to join the Army. However, the petitioner was sent on duties to Hyderabad, Chennai, etc., and the petitioner's request for technical resignation was not accepted and therefore, the present Writ Petition has been filed.
4. As an interim order, this Court had directed the respondents to relieve the petitioner and permit him to join respondent No.8 W.P.No.18957 of 2021 6 organisation. The petitioner has accordingly joined and he is serving in respondent No.8.
5. Learned counsel for the petitioner submitted that the petitioner could not have intimated respondent No.6 about his possibility of appointment with respondent No.8 as, in the results declared by respondent No.8, his name was not in the merit list. He has also drawn the attention of this Court to the correspondence between the Army Ordinance Depot and CISF, wherein it was clearly mentioned that wherever the name of a candidate is placed in the reserve panel, it could not be intimated to the said candidate. He submitted that due to these circumstances, the petitioner was not aware of his possible selection and therefore, could not have intimated the same to respondent No.6 and as soon as he has come to know about the provisional selection, he has intimated to the authorities of respondent No.6. It is submitted that the respondents ought to have considered the case of the petitioner as technical resignation since he has put in nearly 5 years of service and he was also going to serve another organisation of the Central Government only. He submitted that on the ground that the Writ Petition is pending, the petitioner is not being granted all the consequential benefits of technical resignation.
W.P.No.18957 of 20217
6. Learned Deputy Solicitor General, however, relied upon the averments made in the counter affidavit and also the relevant Fundamental Rules to submit that the petitioner could not be permitted to join a post carrying lower pay scale. He submitted that the petitioner ought to have intimated respondent No.6 about his application made to respondent No.8 and for failure to do so, his resignation cannot be considered as technical resignation and he would not be eligible for any of the consequential benefits. He also placed reliance upon the judgment of the Hon'ble Supreme Court in the case of Comptroller & Auditor General of India and others Vs. Farid Sattar 1 for the proposition that where the employee has chosen to join the post carrying lesser pay, then he cannot again seek pay protection. He also referred to the judgment of the Delhi High Court in the case of Deepak Kumar Vs. Office of District and Sessions Judge (HQS) and others 2 for the proposition that Circulars/Directions/OMs of Government have overriding effect and the petitioner cannot seek consideration of his request for technical resignation in violation of the principle of OM. He also referred to the Office Memorandum dt.17.08.2016 where technical resignation has been defined and the conditions to be fulfilled for acceptance of 1 (2000) 4 SCC 13 2 2016 LawSuit (Del) 6198 W.P.No.18957 of 2021 8 technical resignation are also prescribed. Therefore, according to him, the petitioner's resignation cannot be treated as technical resignation and the petitioner would have to forego all the benefits of technical resignation as he has chosen to join respondent No.8 organisation that too in the post carrying lesser pay than the post he has joined in CISF.
7. Having regard to the rival contentions and the material on record, this Court finds that the petitioner was an unemployed youth at the time when he has made the applications to both respondent No.6 as well as respondent No.8. He has participated in the selection process of both the organisations and it is also not in dispute that he has not been informed to be successful in his attempts in the test written by him in respect of LDC in respondent No.8 organisation. Therefore, it cannot be said that the petitioner has faulted in not reporting that he has applied for the post of LDC in Army Ordinance Depot when he was joining the CISF. It is also not in dispute that it is after the lapse of nearly 6 years that the provisional appointment letter has been issued by respondent No.8 in favour of the petitioner. It is at this point of time that the petitioner had informed respondent No.6 about his provisional selection. No doubt, the Office Memorandum dt.17.08.2016 gives or provides the guidelines/instructions for 'technical resignation' and it is stated therein W.P.No.18957 of 2021 9 that the application would have to be made through proper channel for a post in the same or some other Department and if the same is not made and if a person is selected and the resignation is accepted as technical resignation, the candidate would be eligible for the benefit of past service. Resignation in other cases including where the competent authority has not allowed the Government Servant to forward the application through proper channel, will not be treated as technical resignation and the benefit of past service will not be admissible to such a candidate. Further, it is also provided that the benefit is also admissible to Government Servants who have applied before joining the Government service and on that account the application was not routed through proper channel. The conditions prescribed for application of the said clause is that the Government Servant should intimate the details of such application immediately on his joining. The circumstances mentioned in the said OM would be applicable had the petitioner known about his selection and has chosen to opt for respondent No.6 organisation and not respondent No.8 organisation and reserved his right to join respondent No.8 organisation subsequently in future. That is not the case in this case. Since the petitioner had applied for the post in respondent No.8 organisation much prior to his joining in respondent W.P.No.18957 of 2021 10 No.6 organisation, there is no question of his intimation about his unsuccessful attempts in the Army. As far as the Fundamental Rules referred to in the guidelines for issuance of NOC to the trainees are concerned, i.e., intimation for equivalent post may be accepted but not for lower post, i.e., the argument of the learned Deputy Solicitor General that the petitioner cannot be allowed to join a lower post, this Court is of the opinion that such an interpretation is misplaced. Such a clause has been put in place only to safeguard the interest of the employees so that the employer may not post the employee in a lower post without passing any reversion orders. However, if it is the choice of the employee to join the lower post, such action cannot be stopped by the respondents. Even in the case cited by the learned counsel for the petitioner, before the Hon'ble Supreme Court, the employee had chosen to join the post carrying lesser pay and the Hon'ble Supreme Court has held that where it is the choice of the employee to join the lower post, he cannot seek pay protection of the higher post. Therefore, the contention of the learned Deputy Solicitor General is not acceptable.
8. In view of the above, this Court is of the opinion that the resignation of the petitioner from respondent No.6 organisation to join respondent No.8 organisation should be treated as technical resignation W.P.No.18957 of 2021 11 in view of the specific and unique facts and circumstances of the case. Even if it is felt that the Rules do not permit such acceptance, then the matter shall have been referred to respondent No.2 for relaxation of the said Rule. Such action has not been undertaken by the respondents. In view of the same, this Court directs the respondents to accept the resignation submitted by the petitioner as 'technical resignation' and permit the petitioner to join respondent No.8 organisation with all consequential benefits as per rules.
9. With the above directions, the Writ Petition is allowed. No order as to costs.
10. Pending miscellaneous petitions, if any, in this Writ Petition shall stand closed.
___________________________ JUSTICE T. MADHAVI DEVI Date: 30.04.2024 Svv