Allahabad High Court
Vinod Kumar vs State Of U.P. Thru. Secy. Basic ... on 18 January, 2023
Bench: Pankaj Bhatia
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Court No. - 17
Case :- WRIT - A No. - 18682 of 2021
Petitioner :- Vinod Kumar
Respondent :- State Of U.P. Thru. Secy. Basic Edu. And Ors.
Counsel for Petitioner :- Amrendra Nath Tripathi,Durga Prasad Shukla
Counsel for Respondent :- C.S.C.,Ghaus Beg,Ran Vijay Singh
Hon'ble Pankaj Bhatia,J.
Heard learned counsel for the petitioner; Shri Hamza Rasid, learned counsel holding brief of Shri Ghaus Beg, learned counsel appearing for respondent no.5 and Shri Ran Vijay Singh, learned counsel appearing for respondent no.4.
Present petition has been filed challenging the order dated 30.7.2021 whereby the application of the petitioner tendered for resignation was rejected.
Contention of learned counsel for the petitioner is that the petitioner had tendered his resignation which was not being accepted, as such, the petitioner approached this Court by filing Writ Petition No.2960 (SS) of 2021. In the said petition, the Court taking cognizance of the U.P. Government Servants Resignation Rules, 2000 (hereinafter referred to as 'the Rules, 2000') directed the respondents to take a decision strictly in terms of the said rules.
In terms of the directions given by this Court on 2.2.2021 in Writ Petition No.2960 (SS) of 2021, the impugned order has been passed rejecting the application of resignation of the petitioner solely on the ground of Clause 5(1) of the Government Order dated 4.12.2020.
Contention of learned counsel for the petitioner is that the issue with regard to tendering of resignation is to be dealt with strictly in terms of the Rules, 2000; in particular, he lays emphasis on Rule 4 and Rule 5, which are quoted herein under:
"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."
He further draws my attention to the Government Order dated 4.12.2020 which was issued by the respondents and was governing the grant of NOC to the teachers who are already employed. He argues that Clause 5(1) of the said Government Order came up for adjudication before this Court in Writ - A No.988 of 2021 (Rohit Kumar and 56 Ors. v. State of U.P. & 43 Ors.) and this Court vide a detailed judgment dated 29.10.2021 quashed the Clause 5(1) of the Government Order dated 4.12.2020.
In the light of the said judgment, he argue that the foundation based upon which the resignation is rejected, is ill-founded as the same has been passed ignoring the judgment passed in the case of Rohit Kumar (supra) as well as the mandate of the Rules, 2000.
He argues that the decision with regard to acceptance of resignation has to be strictly taken in terms of the Rule 4 and Rule 5 of the Rules, 2000 and the discretion granted on the appointing authority can be exercised only in the event of any of the conditions specified in Rule 5(1)(i)(ii)(iii) & (iv) of the conditions being present.
He argues that none of the conditions as specified in Rule 5(1) of the Rules, 2000 are present in the case of the petitioner and in any event, this Court while passing an order dated 2.2.2021 had specifically directed the consideration of resignation in terms of the Rules, 2000, which has not been done.
Considering the submissions made at the Bar, it is clear that the right of tendering resignation is vested in a government servant, however, the same is subject to two conditions; first being its acceptance by the appointing authority and passing of a formal order in that respect, and the restriction conferred upon the appointing authority of accepting the resignation can be done only in the event of presence of any of the conditions as specified in Rule 5(1) of the Rules, 2000.
In the present case, none of the conditions as specified in Rule 5(1) are present in the case of the petitioner, thus, the rejection falls short of the requirement as stipulated in Rule 5(1) of the Rules, 2000.
Although, Clause 5(1) of the Government Order dated 4.12.2020, which is the foundation for rejecting the resignation, has been struck down by this Court in the case of Rohit Kumar (supra), even if the said provision was not struck down, the same would fall short of the requirement as specified in Rule 5(1) of the Rules, 2000.
Considering the submissions made at the Bar and on perusal of the Rule 5(1) coupled with the fact that there is no sum due or pending against the petitioner, the petitioner is not under suspension, no inquiry is pending against the petitioner, the petitioner is not wanted in any investigation, inquiry or trial relating to criminal charge in connection with his official position as a government servant, the exercise of discretion by the appointing authority as contained in Annexure - 1 was wholly arbitrary, as such, the impugned order dated 30.7.2021 as contained in Annexure - 1 is set aside with directions to the respondents to pass a fresh order on the resignation application of the petitioner.
It is further clarified that the fresh order shall be passed strictly in terms of Rule 5(1) of the Rules, 2000 and in the event any sum is due and payable by the petitioner or the petitioner has been placed under suspension or any inquiry is contemplated or pending against him or the petitioner is wanted in any criminal trial, his application be rejected.
All the requirements as specified above, should be on the date of tendering of the resignation and not subsequent thereto.
It is further clarified that in the event none of the conditions as specified are present, the respondent/authority shall pass order accepting the resignation of the petitioner.
The order, as directed above, shall be passed within a period of four weeks from today.
The writ petition is accordingly allowed.
Order Date :- 18.1.2023
nishant
