Ajay Pandey vs State Of U.P. Thru. Addl. Chief ...
2023 Latest Caselaw 5657 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?Court No. - 18
 
Case :- WRIT - A No. - 8450 of 2022
 
Petitioner :- Ajay Pandey
 
Respondent :- State Of U.P. Thru. Addl. Chief Secy. Deptt. Of Higher Edu. Lko. And 3 Others
 
Counsel for Petitioner :- Birendra Pratap Singh,Abhishek Singh,Birendra Pratap Singh,Sameer Kalia
 
Counsel for Respondent :- C.S.C.,Anurag Kumar Singh
 

 
Hon'ble Pankaj Bhatia,J.

Heard learned Counsel for the petitioner, learned Standing Counsel and Sri Anurag Kumar Singh, learned Counsel appearing for the respondent University.

The present petition has been filed by the petitioner challenging the order dated 29.10.2022 (Annexure-1).

The facts in brief leading to the present writ petition are that the petitioner was appointed on the post of Assistant Director on 26.12.2008 in the respondent University and was assigned various works from time to time. It is stated that during the COVID-19 period the petitioner was suffered, and after being diagnosed with COVID-19 situation and on account of stress, the petitioner sent resignation on 19.07.2021 from his post through e-mail to the respondent no.3 (Annexure-5).

It is stated that subsequently, the petitioner realizing his mistake, sent a communication dated 16.08.2021 requesting the respondent no.3 that he may be permitted to withdraw the resignation and to allow him to work on the post on which he was working, however, no decision was taken on the said request made by the petitioner and ultimately an order came to be passed on 29.10.2022 rejecting the request of the petitioner by mentioning that 'the resignation once accepted cannot be withdrawn'.

The Counsel for the petitioner argues that the resignation respect of the services of the petitioner are governed by The U.P. Government Servants Resignation Rules, 2000 (hereinafter referred to as 'the Resignation Rules'). He draws my attention to Rule 4 of the said Rule which provides for the manner in which a government servant can resign from service by giving a three month notice in writing. He further relies on Rule 5 which provides that the resignation of the Government servant shall not be effective unless it is accepted by the appointing authority and formal order is issued thereof. A discretion is also conferred upon the appointing authority to refuse to accept the resignation.

The Counsel for the petitioner further argues that in terms of the mandate of Rule 6 of the Resignation Rules, the services of the Government servant shall stand terminated with effect from the date of issue of order of the acceptance of the resignation or from such future date as mentioned therein. He further argues that in terms of Rule 7, a discretion is conferred upon the Government servant to make a request for withdrawal of the resignation prior to the termination of the services. Rules 4, 5, 6 and 7 of the Resignation Rules, 2000 is quoted below:

"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 his 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) any 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 on the request of resignation before the expiry of the 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. Withdrawal of Resignation. - The Government servant may withdraw his resignation by making 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."

In the light of the said, the Counsel for the petitioner argues that till the time, a formal order of acceptance is passed, it is always open to the Government servant to withdraw the resignation in terms of the mandate of Rule 7 of the Resignation Rules. He further argues that till the time, a formal order is issued, there cannot be any termination of service in terms of the mandate of Rule 6 and thus, the respondents have erred in not accepting the request of the petitioner for withdrawal of the resignation. He places reliance on the judgment of this Court in the case of Ram Prakash Vyas vs State of U.P. and another; 2018 SCC OnLine All 5801 wherein similar provision contained in Rule 6 was considered.

The Counsel for the respondent, on the other hand, argued that on the resignation tendered by the petitioner on 19.07.2021, a resolution came to be passed in the meeting dated 31.07.2021 wherein the resignation tendered by the petitioner was approved, a copy whereof has been produced before this Court along with the instructions received by the Counsel for the respondent University. He further argues that the resolution of the Committee was uploaded on the website on 19.08.2021. On the basis of the instructions, he argues that although no formal order was passed, the resolution passed in the meeting dated 31.07.2021 has to be considered as a formal order and the same was uploaded on the website on 19.08.2021 and it has to be treated as communication to the entire world including the petitioner. He places reliance on the judgment of the Hon'ble Supreme Court in the case of North Zone Cultural Centre and another vs Vedpathi Dinesh Kumar; (2003) 5 SCC 455.

Considering the submissions made at the bar, what is undisputed is that the petitioner resigned on 19.07.2021, the resolution approving the resignation was passed in the meeting dated 31.07.2021, the petitioner requested for withdrawal of the resignation by giving a separate application on 16.08.2021 and the resolution passed by the respondent University on 31.07.2021 was uploaded on the website on 19.08.2021.

In the light of the said, this Court is to adjudicate whether the process of tendering the resignation stood complete by passing of the resolution on 31.07.2021 without there being any formal order to that effect or not.

On perusal of the resignation Rules, 2000, a Government servant has been given privilege of tendering resignation by giving three months notice, however, a greater latitude is given to the employer in Rule 5, which provides that the resignation should not be effected till the time it is accepted by the appointing authority and a formal order is issue. A further discretion is conferred upon the appointing authority to refuse the acceptance of resignation. Rule 5(2) is of some importance, inasmuch as, the appointing authority is to take a decision before the period of notice, thus, a greater latitude is conferred upon the authority to accept or refuse the resignation within the period of notice. Thus in terms of the rules resignation is not a unilateral act and is a bilateral act.

The twin conditions specified in Rule 5 being an order of acceptance and the issuance of formal order are required before the resignation order is rendered effective. If the contention of the respondent University that the resignation is approved, is accepted, the second part of Rule 5 of there being a formal order will be rendered otiose. Any interpretation, which renders the specific directions contained in the Rule as nugatory is to be avoided by the Court, thus, in terms of the Rules, it is essential that the request of resignation is accepted and a formal order is also necessary before the relation in between the master and the servant is terminated in terms of Rule 6, but for the twin conditions, the relationship of the master and the servant would not come to an end and would not amount to termination of service as provided under Rule 6 of the Resignation Rules. The judgment of the Hon'ble Supreme Court as relied upon by the Counsel for the respondent is of no avail as the said case was passed while interpreting the Rules which did not contemplate or provide for passing of a formal order, as in the present case.

In the facts of the present case, there was no formal order issued accepting the resignation of the petitioner before it was withdrawn on 16.08.2021, thus the bilateral act required for termination of employer-employee relationship were never complied with.

Thus on the basis of analysis of the Rules as recorded above, the impugned order dated 29.10.2022 cannot be sustained and is set aside with directions the respondent University to permit the petitioner to continue as he was doing prior to the tendering of the resignation on 19.07.2021 and considering the peculiar facts and circumstances of the case, the petitioner would not be entitled for the back wages from 19.07.2021 till date. The petitioner is entitled for the continuity of service and all other benefits to which he is entitled as per law.

In terms aforesaid, the writ petition stands allowed.

Order Date :- 21.2.2023

akverma