Chattisgarh High Court

Ujay Kumar vs State Of Chhattisgarh on 5 July, 2021

                                         -1-


                                                                                AFR
                  HIGH COURT OF CHHATTISGARH AT BILASPUR
                         Writ Petition (S) No. 3326 of 2021

   1. Ujay Kumar S/o Shri Meghnath Aged About 35 Years R/o Village And Post
        Padumtara, Tahsil Rajnandgaon, P.S. Ghumka, District Rajnandgaon
        (Chhattisgarh).
                                                                   ---Petitioner(s)
                                  Versus
   1. State of Chhattisgarh Through The Secretary, Department of Education,
        Mantralaya, Naya Raipur, Post And P.S. - Rakhi, District- Raipur
        (Chhattisgarh).
   2.   The Director Department Of Public Instruction, 1st Floor, C-Block, Indravati
        Bhavan, Mantralaya, Naya Raipur, Post And P.S. - Rakhi, District- Raipur
        (Chhattisgarh).
   3.   The Deputy Director Department Of Public Instruction, 1st Floor, C-Block,
        Indravati Bhavan, Mantralaya, Naya Raipur, Post And P.S. - Rakhi, District
        - Raipur (Chhattisgarh).
   4.   The District Education Officer District- Korea Baikunthpur (Chhattisgarh).
   5.   Chief Executive Officer District Panchayat District Korea- Baikunthpur
        (Chhattisgarh).
   6.   Principal Government Higher Secondary School Jilibandh, Block
        Khadgavan, District Korea - Baikunthpur (Chhattisgarh)
   7.   The District Education Officer Rajnandgaon, District - Rajnandgaon
        (Chhattisgarh).
   8.   Principal Government Higher Secondary School Chilhati, Block Chawki,
        District - Rajnandgaon (Chhattisgarh)
                                                                 ---Respondents

For Petitioner : Shri Mayank Chandrakar, Advocate. For Respondents : Shri Amrito Das, Addl. Advocate General.

Hon'ble Shri Justice P. Sam Koshy Order on Board

05.07.2021 .

1. Aggrieved by the order dated 11.06.2021, the present writ petition has

been filed. Vide the said impugned order, the respondents have rejected

the resignation letter of the petitioner resigning from the post of Lecturer

(LB) T Cadre.

2. Before narrating the facts of the case, it would be relevant at this juncture

to reproduce the contents of the impugned order dated 11.06.2021:

^^mijksDr fo"k;karxZr lanfHkZr i= dk voyksdu djus dk d"V djsa ftlds }kjk Jh mt; dqekj O;k[;krk ,y-ch- 'kk-m-ek-fo-

ftyhcka/k fo-[ka- [kMxoka ftyk dksfj;k dk R;kxi= Lohd`fr dk vkonsu bl dk;kZy; dks izsf"kr fd;k x;k gSA bl laca/k eas ys[k gS fd Jh mt; dqekj ds }kjk O;k[;krk iapk;r ds in ij dk;Zjr jgrs gq, O;k[;krk HkrhZ ijh{kk ds fy, vkosnu fd;k x;k FkkA Jh mt; dk lh/kh HkrhZ ls O;k[;krk ds in ij fu;qfDRk iwoZ O;k[;krk ,y-ch- Vh- laoxZ ds in ij lafoy;u gks pqdk gSA bl iz d kj O;k[;krk ,y-ch- ,oa O;k[;krk lh/kh HkrhZ dk in leku gksu s ds dkj.k Jh mt; dq e kj O;k[;krk ,y-ch- 'kk-m-ek-fo- ftykcka/ k fo-[ka- [kMxoka ftyk dksf j;k }kjk vkosf nr R;kx Ik+= Lohd` f r gsr q vH;kosn u vekU; fd;k tkrk gS A ^^

3. Brief facts of the case is that, the petitioner was appointed on the post of

Lecturer (P) and got selected vide order dated 03.02.2018. The petitioner

is presently working as Lecturer (LB) at Govt. Higher Secondary School,

Jilibandh, Block Khadgawan, District Korea. The petitioner joined his

services on 15.02.2018 and since then he has been continuously

rendering his services under the respondents. The services of the

petitioner has been totally unblemished. The petitioner also has completed

his probation period and his services subsequently got absorbed with the

State Govt. vide order dated 29.06.2020.

4. Subsequently, it seems that there was another advertisement which was

issued for appointment to the post of Lecturer (P) again in English subject

by way of a direct recruitment. The petitioner after due permission from the

authorities applied for the same and participated in the said selection

process. He also got selected and an order of appointment was also

issued vide order dated 22.02.2021 and the petitioner has been granted

appointment at Govt. Higher Secondary School, Chilhati, Block Chowki,

District Rajnandgaon. Immediately the petitioner tendered his resignation

to the respondent No.2 through proper channel i.e. through the Principal-

respondent No.6 on 19.03.2021 requesting the respondents to accept his

resignation as technical resignation so that he can join at the place where

he has been issued with a fresh order of appointment.

5. Since the respondents did not take a decision on the resignation letter, the

petitioner filed a writ petition i.e. WPS No.2912 of 2021, however, when

the matter came up for hearing the State counsel informed that the

respondents, pending the writ petition, had already taken a decision on

11.06.2021 whereby the resignation letter has been rejected, this led to

the withdrawal of the writ petition with liberty to file fresh one challenging

the order dated 11.06.2021 and the present writ petition has been filed

challenging the impugned order dated 11.06.2021.

6. The counsel for the petitioner submits that the petitioner has a right to

resign from his service and that he cannot be forced to continue in service

by the respondents. It is further contention of the petitioner that the

grounds on which the resignation letter has been rejected is also not one

which would be acceptable under the service rules for the reason that it is

not for the respondents to decide whether the petitioner should work and

whether the petitioner can go and join at a different place at the same level

by way of a fresh appointment or whether the authorities can refuse

permitting to petitioner to join at the new place for the reasons assigned in

the impugned order.

7. On the other hand learned counsel for the State submits that the

authorities concerned have taken into consideration the reason for

resignation and found that since the petitioner was moving laterally in the

department, there was no reason why the petitioner should resign when

he was enjoying same benefits at the present place of posting, and

therefore the impugned order does not warrant any interference.

8. From the given facts and circumstances, what is admitted is the fact that

the petitioner was working as Lecturer (P) and was posted under the

respondent No.6. He applied for appointment as Lecturer (P) in

subsequent recruitment process and got appointed under the respondent

No.8. The petitioner immediately submitted his resignation to the

respondent No.2 through respondent No.6 which finally stood decided

vide impugned order dated 11.06.2021, an order passed by the

respondent No.3.

9. From the plain perusal of the contents of the impugned order, there does

not seem to be any ground or pending departmental enquiry or the

petitioner facing any criminal trial for an act arising out of his employment

by which the respondents could have refused to grant resignation. This

further gets fortified from Annexure P/10, a letter issued by the respondent

No.6 in this regard.

10. At this juncture it would be relevant to take note of the recent decision of

Supreme Court in case of Sanjay Jain Vs. National Aviation Company of

India Ltd., 2019(14)SCC 492 wherein the Supreme Court relying upon the

various authorities dealing with the term "Resignation" in paragraphs 13 to

15 has held as under:

"13. In State of U.P. vs. Achal Singh (supra) the Court observed that it would depend upon phraseology used in the particular provision whether a prayer for resignation/voluntary retirement require acceptance. Following observations have been made:

12. In our opinion, whether voluntary retirement is automatic or an order is required to be passed would depend upon the phraseology used in a particular rule

under which retirement is to be ordered or voluntary retirement is sought. The factual position of each and every case has to be seen along with applicable rules while applying a dictum of the Court interpreting any other rule it should be Pari Materia. Rule 56(2) deals with the satisfaction of the Government to require a Government servant to retire in the public interest. For the purpose, the Government may consider any material relating to Government servant and may requisition any report from the Vigilance establishment.

22. In the State of Haryana (supra), This Court also observed that

9.......some rules are couched in language, which results in an automatic retirement of the employee upon the expiry of the period specified in the employee's notice. On the other hand, certain rules in some other departments are couched in the language which makes it clear that even upon expiry of the period specified in the notice, the retirement is not automatic and an express order granting permission is required and has to be communicated. The relationship of master and servant in the latter type of rules continues after the period specified in the notice till such acceptance is communicated and the refusal of permission could also be communicated after three months and the employee continues to be in service. It is the aforesaid later observations made by this Court, which are squarely applicable to the rule in question as applicable in the State of Uttar Pradesh."

14. In Dinesh Chandra Sangma v. State of Assam (1977) 4 SCC 441, the provisions of rule 119 of DISI rules came up for consideration. It observed;

15...... It is a cardinal rule of construction that no word should be considered redundant or surplus in interpreting the provisions of a statute or of a rule

Explanation 2 does not say an express or implied term of employment but refers to "an express or implied term of his contract of employment". If the language in Explanation 2 were different, namely, an express or implied term of employment, instead of "contract of employment", the position would have been different. Explanation 2 in Rule 119 albeit a penal rule takes care to use the words contract of employment" and necessarily excludes the two categories of employment, namely, the one under the Central Government and the other under the State Government. Explanation 2 only takes in its sweep the third category of employment where the relationship between the employer and the employee is one governed by a contract of employment. Since FR 56 is a statutory condition of service which operates in law, without reference to a contract of employment, there is nothing inconsistent between Rule 119 and FR 56.

16. The appellant has voluntarily retired by giving three months' notice not in accordance with an express or implied term of his contract of employment, but in pursuance of a statutory rule. Explanation 2 to Rule 119 makes no mention of retirement under a statutory rule and hence the same is clearly out of the way. The submission that rule 119 is superimposed on F.R.56 has no force in this case.

17. The High Court committed an error of law holding that consent of the Government was necessary to give legal effect to the voluntary retirement of the appellant under F.R.56(c). Since the conditions of FR 56(c) are fulfilled, in the instant case, the appellant must be held to have lawfully retired as notified by him with effect from 02.08.1976.

15. In view of the aforesaid enunciation of law and on consideration of the provisions contained in Standing order

18 in the facts and circumstances of the case, we are of the opinion that appellant has rightly terminated the relationship by serving the requisite notice for resignation. To resign is a right of an employee who cannot be forced to serve in case he is not willing until and unless there is some stipulation in the rules or in the terms of appointment or disciplinary proceedings is pending or contemplated which is sought to be avoided by resigning from the services. Thus, we are of the opinion that the High Court has erred in law in holding otherwise."

11. Similar view in the past had already been taken in case of Moti Ram Vs.

Param Dev, 1993(2)SCC 725 wherein paragraph 16 it has been held as

under:

"16. As pointed out by this Court, 'resignation' means the spontaneous relinquishment of one's own right and in relation to an office, it connotes the act of giving up or relinquishing the office. It has been held that in the general juristic sense, in order to constitute a complete and operative resignation there must be the intention to give up or relinquish the office and the concomitant act of its relinquishment. It has also been observed that the act of relinquishment may take different forms or assume a unilateral or bilateral character, depending on the nature of the office and the conditions governing it. Union of India v. Shri Gopal Chandra Misra & Ors., [1978] 3 SCR 12 at p. 21). If the act of relinquishment is of unilateral character, it comes into effect when such act indicating the intention to relinquish the office is communicated to the competent authority. The authority to whom the act of relinquishment is communicated is not required to take any action and the relinquishment takes effect from the date of such communication where the resignation is intended to operate in praesenti. A resignation may also be prospective to be operative from a future date and in that event, it would take effect from the date indicated therein and not from the date of communication. In cases

where the act of relinquishment is of a bilateral character, the communication of the intention to relinquish, by itself, would not be sufficient to result in relinquishment of the office and some action is required to be taken on such communication of the intention to relinquish, e.g., acceptance of the said request to relinquish the office, and in such a case the relinquishment does not become effective or operative till such action is taken. As to whether the act of relinquishment of an office is unilateral or bilateral in character would depend upon the nature of the office and conditions governing it.

xxxxx xxxxx xxxxx

18. A contract of employment, however, stands on a different footing wherein the act of relinquishment is of bilateral character and resignation of an employee is effective only on acceptance of the same by the employer. Insofar as Government employees are concerned, there are specific provisions in the service rules which require acceptance of the resignation before it becomes effective. In Raj Kumar v. Union of India, [1968] 3 SCR 857, it has been held

5...... "But when a public servant has invited by his letter of resignation determination of his employment, his services normally stand terminated from the date on which the letter of resignation is accepted by the appropriate authority, and in the absence of any law or rule governing the conditions of his service to the contrary, it will not be open to the public servant to withdraw his resignation after it is accepted by the appropriate authority. Till the resignation is accepted by the appropriate authority in consonance with the rules governing the acceptance, the public servant concerned has locus poenitentiae but not thereafter".

12. Given the aforesaid factual matrix of the case and the legal

pronouncement referred to in the preceding paragraphs under the service

regulations governing the field, the resignation seems to be that of

unilateral character and is not one which can be termed to be a bilateral

character. It is always the right of an employee to decide when to resign

from his/her service, if he is not comfort at one place or if he gets better

opportunity or better place of posting by way of another recruitment which

he has applied in accordance with law and the rules governing the field.

That right which stands conferred upon an employee cannot be taken

away by the employer only for the reason that in the opinion of the

employer it may not be beneficial for the petitioner as compared to what

he is presently getting or as compared to what is presently the post that he