Delhi High Court
A.P. Jain vs Union Of India & Ors. on 19 August, 1998
Author: K Ramamoorthy
Bench: K Ramamoorthy
ORDER
K. Ramamoorthy, J.
1. The petitioner, who was working with the first respondent, Ministry of defense, applied for the post of Director (PPC) of the IDPL, the third respondent organisation, which is a public sector undertaking. On the 11th of February, 1994, the appointment letter was issued by the second respondent, the Ministry of Chemicals & Fertilisers. The letter reads as under:-
"I am directed to say that on the basis of the recommendations of the Public Enterprises Selection Board this Ministry offers you appointment to the post of Director (Production, Planning & Coordination) in Indian Drugs & Pharmaceuticals Limited, Gurgaon on the following terms & conditions:
(i) The scale of pay of the post is Rs.7500-200-8500) Schedule 'C' Scale).
(ii) The appointment is on contractual basis and for a period of five years from the date you take over charge or till the date of superannuation, whichever is earlier. Even during this period the appointment can be terminated by either side by giving notice of three months or pay and allowances in lieu thereof.
(iii) The headquarters of the post is at Gurgaon and you are liable to work anywhere in India or abroad at the discretion of the IDPL management.
(iv) The perquisite and other terms and conditions of service will be as per the guidelines laid down by the Department of Public Enterprises and the detailed terms & conditions will be issued after you report for duty.
2. In the even the offer is acceptable to you are requested to report to Shri B.E. Rao, Chairman & Managing Director, IDPL, Gurgaon immediately.
It is clear from this letter that the appointment was on contractual basis for a period of five years or till the petitioner attained the age of superannuation whichever is earlier.
2. The second respondent, the Ministry of Chemicals & Fertilisers, wrote to the Deputy General Manager (Personnel) of the third respondent on the 13th of January, 1995 regarding the terms and conditions of the appointment of the petitioner. The letter reads as under:
"This is regarding the detailed terms and conditions of appointment of Shri A.P.Jain as Director (PPC) in Indian Drugs and Pharmaceuticals Limited.
2. As you are aware, the detailed terms and conditions of appointment of Shri Jain have not yet been issued. While examining the case, it has been observed that Shri Jain has been allowed to retain lien by the Ministry of defense for a period of two years in his previous post of Senior Quality Assurance Officer in the Directorate General of Quality Assurance, Ministry of defense. This is not permissible under the rules. The appointment to the post of Director (PPC) is on immediate absorption basis and on a contract basis for a period of 5 years. This was clearly mentioned in the advertisement published in the News Papers on the 27th May, 1993. This was also communicated to Shri Jain under this Department s letter of even number dated the 11th February, 1994 through which he was offered the appointment.
3. Before we consider finalising the detailed terms and conditions of appointment of Shri A.P. Jain, we would request you to obtain a written consent from Shri Jain that he has no objection to his appointment to the post of Director (PPC) in IDPL on immediate absorption basis and he would not claim any lien on his previous appointment in the Directorate General Quality Assurance under the Ministry of defense."
3. On the 17th of January, 1995, the petitioner wrote to the third respondent saying that he would not claim any lien on his previous appointment in the Directorate General of Quality Assurance under the Ministry of defense and he requested for the fixation of his pay. The letter reads as under:-
"With reference to D.O. No. 2(4)/93-PI(V) dated the 13th January, 1995 addressed to Dy.GM(P) and a copy endorsed to the under signed.
2. In pursuance to para 3 of above letter, it is confirmed that I have no objection to my appointment to the post of Director (PPC) in IDPL on immediate absorption basis and I would not claim any lien on my previous appointment in the Directorate General of Quality Assurance under the Ministry of defense.
3. As the Pay & Allowances drawn at Ministry of defense have been substantially reduced after joining the present post, it is requested that my pay may kindly be suitably protected while finalising the terms and conditions of my appointment as Director (PPC) at IDPL.
4. However, in order to facilitate the release of payment of my terminal benefits, it is requested that Ministry of defense, Directorate General of Quality Assurance may kindly be intimated that the undersigned has been permanently absorbed as Director (PPC) in IDPL."
4. On the 20th of February, 1995, the Government of India, the Ministry of Chemicals & Fertilisers, the second respondent, wrote to the third respondent conveying the sanction of the President of India and the letter refers to the fixation of pay. The letter reads as under:-
"I am directed to convey the sanction of the President to the appointment of Shri A.P. Jain as Director (PP&C) of Shri A.P. Jain as Director (PP&C) of Indian Drugs & Pharmaceuticals Ltd. w.e.f. 26.5.1994 (F/N) on the following terms and conditions:
(i) PERIOD: The period of his appointment will be five years w.e.f. 16.5.1994 (F/N) in the first instance or till the age of superannuation whichever is earlier and in accordance with the provisions of Companies Act. The appointment may, however, be terminated even during this period by either side on 3 months notice or on payment of three months salary in lieu thereof.
(ii) HEADQUARTER:- The Hqrs. of Shri Jain will be at Gurgaon where the registered office/Hqrs. of the company is located. He will be liable to serve in any part of the country at the discretion of the PSE.
(iii) PAY: Shri A.P.Jain will draw a basic pay of Rs.8300/- per month in the existing scale of pay of Rs.7500-280-8500 (Schedule 'C') from the date of his assumption of office as Director (PP&C), IDPL. The existing scales of pay were last revised by the Government in April, 1990 and were made effective from 1.1.1987. These scales of pay are to be revised by the Government further 1.1.1992. The present fixation of his pay in schedule `C' at Rs.8300/- is, therefore, a stop-gap arrangement and his pay would be refixed in the revised scales which would be notified by the Government w.e.f. 1.1.1992. Since his appointment in Schedule `C' has taken place much after 1.1.1992 he would be deemed to have been appointed as initio in the scale of pay which would be notified subsequently. He would not be eligible for any fitment amount as Director (PP&C), IDPL.
(IV) DEARNESS ALLOWANCE : He would be paid DA for present in accordance with the IDA scheme spelt out in the DPE's OM dated 9.3.1993. Since the DA scheme itself is likely to be revised w.e.f. 1.1.1992, his entitlement would be regulated for DA as per the new DA Scheme which would be notified by the DPE after the same have been approved by the Government.
(V) RESIDENTIAL A OMMODATION/PAYMENT OF HOUSE RENT ALLOWANCE AND RECOVER OF RENT FOR THE A OMMODATION SO PROVIDE :
(a) COMPANY'S OWN A OMMODATION:
Wherever the PSE has built residential flats in the industrial to or purchased residential flats in the cities, arrangement would be made by the PSE to provide a suitable residential accommodation to him.
(b) LEASE A OMMODATION: If the PSE does not have residential accommodation in its own township or is not able to provide residential accommodation out of the residential flats purchased by it in other cities, then in that situation accommodation could be arranged by the PSE by taking the premises on lease basis. In respect of the lease accommodation arranged, the ceiling on rental as well as plinth are would be as per the schedule given in Sub-paragraph (iv) of paragraph 4 of DPE8s Om No. 2 (8/93-DPE(WC) DATED 3.3.1992 i.e. Rs.6,000/- per month.
(c) Self-Lease:- If he owns a house at the place of his posting and is desirous of taking his own house on self-lease basis for his residential purposes, the PSE can permit him to do so provided he executes a lease-deed in favour of the PSE. However, the ceiling in respect of plinth area as well as the monetary ceiling towards rent for self-lease purposes would be the same as indicated in sub-paragraph (iv) of paragraph 4 of DPQL's OM dated 3.3.1992 i.e. he can be permitted to take his own house on lease basis upto a monthly ceiling of Rs 6000/-.
Existing lease deeds:
The lease agreement signed by the PSE in respect of the accommodation taken on lease basis for him if any prior to 3.3.1992 would not be reopened during the pendency of the lease period. The lease money in other words should not be hiked till the expiry of lease period. This proviso would be applicable even if he had been permitted to take his own house on self-lease basis.
Payment of House Rent Allowance:
If the PSE is note in a position to arrange residential accommodation to him out of its residential quarters or even on lease-basis of it he can be paid HRA at the rates admissible under the rules of the PSE provided he pays 10% of his basic pay and PPF towards rent. HRA could also be paid to him if he has claimed or is claiming HRA of the self-occupied portion of __ produced the relevant certificates from the Municipal Authorities of the area where this house is situated. The claim of HRA in respect of self-occupied portion of the house would be entertained on the basis of the certificate issued by the Municipal Authorities provided he agrees to bear the initial 10- of his and PP towards rent.
HRA without production of rent receipt:
In case he is not in a position to produce rent receipt or where the rateable value of the self-occupied portion of the house is either nominal or insignificant, the company could pay HRA to him in accordance with the rates approved by the Government for the executives. However, ceiling for payment of HRA on this basis would be Rs.1000/- in A, B1 and B2 class cities and Rs.500/- and Rs.300/- when posted in 'C' class cities and in unclassified area respectively.
Office Accommodation:
The ceiling on plinth area referred to in sub para (iv) of paragraph 4 of DPE's ON No. 2(8)/91-DPE(WC) dt.3.3.1992 are only in respect of residential accommodation and provisions of a garage for staff car i.e. whether such an accommodation has been arranged on lease basis (including self lease) or has been allotted to him out of the flats owned by the PSE in cities/industrial townships. In other words, no office accommodation at the expenses of the PSE would be provided or arranged by the PSE at his residence.
Furnished Accommodation:
If the accommodation allotted to him either from the PSE pool of residential/accommodation or arranged by way of lease in town and cities at the expenses of the PSE is to be furnished, then such furnishing should be done on utmost economical basis and should not given an impression of luxurious living.
Rent Recovery:-
(a) PSE'S Township/own Flats: Recovery of rent for the accommodation arranged by the company in its own township or from the pool of flats purchased by it in cities and towns and so allotted to him would be made at the rate of 10% of basic pay and PP or the standard rent whichever is lower. Where the PSE has prescribed flat rates of recovery in respect of accommodation in its townships depending on each type of accommodation i.e. recovery of rent on uniform basis for each type of accommodation, then rent would be paid by him as prescribed by the PSE.
(b) Leased Accommodation: In respect of leased accommodation arranged by the PSE, rent would be recovered from him to whom such leased accommodation has been allotted at the rate of 10% of his basic pay and PP. If in a particular case, the rent paid by the PSE in respect of leased accommodation happens to be lower than the amount worked out at the rate of 10% of basic pay and PP, then in that event the recovery of rent would be restricted to the actual amount paid by the PSE in respect of such leased accommodation.
Furnished Accommodation:
Wherever furnished accommodation ...................... township/residential flats or arranged on leased base an additional recovery at the rate of; or his basic pay and PP would have to be made per month. This would be in addition to the rent recovered at (a) and (b) above.
C.C.A.
He will also be eligible for payment of city compensatory allowance as per the existing rates approved for its executives subject to an over all ceiling of Rs.400/- in 'A' class cities, Rs.75/- and Rs.20/- in 'B1' and 'B2' class cities respectively.
Annual Increments:
He will be eligible to draw his annual increment on the anniversary date of his appointment in the scale and further increments on the same date in the subsequent years.
Conveyance:-
He will be entitled to the facility of staff car for private use as indicated below:
Name of the Ceiling on non-
City duty journey
Delhi 1000 KM/PM
Monthly rate of recovery for non-duty journeys would be as follows:
Non-air condi- Rupees per month
tioned cars
Below 16 HP Rs.250/-
Above 16 HP Rs.375/-
Air-conditioned Cars
Below 16 HP Rs.400/-
Above 16 HP Rs.600/-
Leave:
He will remain subject to the Leave Rules of the PSE.
Contributory Provident Fund & Gratuity:
He will be governed for these benefits as per rules of the PSE.
Other benefits and perquisites:
He will be entitled to medical facilities, travelling allowance, leave travel concession, disability leave, etc. in accordance with the rules of the PSE.
Conduct, Discipline & Appeal Rules:-
The conduct, discipline and appeal rules framed by the PSE in respect of their non-workmen category of staff would also mutates mutants apply to him with the modification that the disciplinary authority in his case would be the President.
The Government also reserves the right not to accept his resignation if the circumstances so warrant i.e. the disciplinary proceedings are pending or decision has been taken by the competent authority to issue a charge sheet to him.
Club Membership:
He will also be eligible to be some member of two clubs at the expenses of the PSE but his membership of thee clubs will be determines with his tenure as Director (PP&C), IDPL.
Other Conditions:
In respect of other terms and conditions not covered in paragraph 1 above, he will be governed by the rules of the PSI.
3. This issues with the concurrence to the Finance Division vide their U.O. No. 115/JS&FA/95 dated 14.2.1995 and Ministry of Industry, Department of Public Enterprises (DPS), vide their U.O. No. Nil dated 34d February, 1995."
5. On the 2nd of August, 1995 the Assistant Director, of the Director General Quality Control wrote to the Deputy General Manager of the third respondent had asked for the unconditional resignation by the petitioner from the Ministry of defense. On the 16th of November, 1995, the Assistant Director on behalf of the Director General Quality Assurance wrote to the Deputy General Manager of the third respondent that unconditional resignation from the petitioner is still awaited. On the 18th of April, 1996, the petitioner tendered his unconditional resignation from the Ministry of defense. The letter reads as under:-
"Kindly refer to my D.O.No.IDPL/Dir. (PPC)/96-1 dated 30.1.96 addressed to the Secretary, Ministry of Chemicals & Fertilisers, Deptt. of Chemicals & Petro Chemicals, New Delhi with a copy to the Secretary, Ministry of defense, Deptt of defense Production & Supply, New Delhi.
As my request for repatriation to my parent Deptt. in Ministry of defense has not been acceded to by the Ministry of Def., Deptt of Chemicals & PetroChemicals New Delhi, I hereby tender my unconditional resignation from the post of PSCO (NFSG) in DGQA organisation."
6. Before the unconditional resignation of the petitioner was considered by the Ministry of defense, on the 3rd of June, 1996, the petitioner changing his mind locus penitential withdrew his resignation and requested that the letter of resignation be treated as cancelled. That letter reads as under:
"In continuation of my even letter No. IDPL/Dir.(PPC)/96-2 dated 18.4.1996 and discussions held subsequently on the above subject, it is requested that my unconditional resignation from the post of PGCO (MFSG) in DGQA may please be treated as cancelled.
2. It is also requested that my posting order in my parent organisation may kindly be issued at your earliest."
7. Earlier to this resignation, the petitioner had written to the respondents 2 & 3 for revision of his pay scale in accordance with rules and regulations payable to the post to which he had been appointed. That was not done. Now the petitioner, his resignation having not been accepted and he not having been given the necessary scales of pay and other allowances, had approached this Court.
8. Relating to the acceptance of resignation, the matter was mooted out before this Court at the interlocutory stage and an order was passed by this Court on the 5th of August, 1998. That order reads as under:
"CW.3114/97 & CM.No.6098/97
Notice. Mr.Manjit Singh accepts notice on behalf of respondents 1 & 2 and seeks time to file counter-affidavit. Let him do so within four weeks with advance copy to counsel for the petitioner, who may file rejoinder, if any, within two weeks thereafter. Counsel for the petitioner states that petitioner has submitted his resignation, but the same has not been accepted, as apparent from the letter issued by the respondent. Acceptance, if any of the resignation submitted by the petitioner will be subject to the outcome of this writ petition.
Matter be listed on 19th November, 1997. Notice be also issued to respondent No.3 for the said date."
9. On the 20th of August, 1997, an order was passed by the Ministry of defense. The same is as under:-
"1. Reference DGM, IDPL letter No. IDP/2(1162) Estt./96/ dated 18.4.96 addressed to Director General Quality Assurance, Ministry of defense under copy to Shri C.Lal, Deputy Secretary, Ministry of Chemical and Fertilizers and D.O.letter No. 2(4)/91-P1(v) dated 1.1.95 from Shri S.K. Bandyopadhyay, Under Secretary of the same Ministry addressed to Shri R.K. Ojha, Under Secretary, Ministry of defense on the above subject.
2. Approval of the Competent Authority is hereby accorded for acceptance of resignation of Shri A.P. Jain, Director (PP&C) IDPL from Government Service under DGQA Ministry of defense w.e.f. 16.5.94 i.e. the date from Shri A.P. Jain had been absorbed in the aforesaid Central Public Sector Undertaking.
3. Further action for issue of Government sanction/letter for grant of pensionary and other terminal benefits as laid down under Ministry of Personnel/Public Grievances and Pensions (DOP&T) OM No. 28016/5/85-Estt(C) dated 31.1.86 is in progress. The same will follow.
4. Shri A.P. Jain may also please be informed accordingly."
It has to be noticed that this order of acceptance was long after the petitioner had sought for withdrawal of his resignation vide his letter dated 3.6.1996. As a matter of fact, no reference has been made to the letter of withdrawal of the petitioner dated 3.6.1996 in this order.
10. The learned counsel for the petitioner, Mr. Sanjay Kishan Kaul submitted that the petitioner had withdrawn his resignation by letter dated 3.6.1996, and therefore, the resignation letter sent by him on the 18th of April, 1996 would be non est and it cannot be put against him. The learned counsel for the petitioner, Mr. Sanjay Kishan Kaul, relied upon the judgments in "Union of India etc. Vs. Gopal Chandra Misra & Others", "J.K. Cotton Spg. & Wvg. Mills Company Limited Vs. State of U.P. & Others", JT 1990 (p) SC 300 and "Shri Moti Ram Vs. Shri Param Dev & Another", , for the preposition that it is always open to an employee to withdraw his resignation before it was actually accepted by the employer and there can be no withdrawal after acceptance of the resignation, According to the learned counsel for the petitioner, Mr. Sanjay Kishan Kaul, the dictum laid down by the Supreme Court in these cases would apply to this case and therefore, the withdrawal of resignation on 3.6.1996 would have full legal effect and, therefore, the petitioner is deemed to continue in the services of the first respondent.
11. According to the learned counsel for the petitioner, Mr. Sanjay Kishan Kaul, the petitioner had to seek repatriation owing to the fact that the third respondent, having been declared sick, has not been in a position to pay him the salary consistent to his status and payable to the post, and the petitioner shall continue to be in the services of the first respondent.
12. Mr. Sanjay Kishan Kaul, the learned counsel for the petitioner submitted that in case there is any legal impediment in the petitioner being sent back to the first respondent, respondents 2 & 3 should be directed to pay the scales of pay. According to the learned counsel for the petitioner, Mr. Sanjay Kishan Kaul, the financial implications of his not being given scales of pay have been set out in the writ petition at pages 26 to 28. It is not necessary to refer them at this stage.
13. The learned counsel for the respondents 1 & 2, Mr. M.S. Gandhi submitted that even though the appointment letter dated 11.2.1994 speaks of appointment being on contractual basis and though the period of five years is mentioned, the appointment was on permanent basis. The petitioner applied for to be appointed through an advertisement made by the third respondent. The juries relationship between the petitioner and the first respondent had come to a end and the petitioner cannot any longer claim to be an employee of the first respondent. According to the learned counsel for respondents 1 & 2, Mr. M.S. Gandhi, having regard to the policy laid down by the Government of India, the petitioner cannot claim to go back to the first respondent. In other words, the petitioner is not entitled to ask for repatriation.
14. Regarding the scales of pay claimed by the petitioner, the learned counsel for the respondents 1 & 2, Mr. M.S. Gandhi, referred to the office memorandum dated the 19th of July, 1995 issued by the Government of India, Department of Public Enterprises, which is found at page 148. The same reads as under:-
"The undersigned is directed to say that the scales of pay of the incumbents of the top posts i.e. Executives holding Board level posts were last revised by the Government w.e.f. 1.1.1987. Government have decided that the scale of pay attached to the Scheduled Posts i.e. Board level posts would stand revised w.e.f.
1.1.1992 as follows:
Existing Revised
1. Schedule 'A' 9000-250-10000 13000-500-15000
2. Schedule 'B' 8500-200-9500 12000-400-14000
3. Schedule 'C' 7500-200-8500 10000-400-12000
4. Schedule 'D' 6500-175-7550 9000-300-10500
The above scales of pay would be valid for a period of five years, that is, till 31.12.1996.
2. The fitment benefit and fitment method would be as indicated in Annexure-I.
3. The Industrial DA at AICPI-1099 as on 1.1.1992 admissible to the incumbents of the board level posts in the revised scale would be 'nil', as the amount of Rs.787.75 drawn as IDA as on 1.1.1992 has been merged in the revised basic pay. The DA payable from 1.4.92 to the incumbents of the Board level posts would be as per new DA scheme. The details of the scheme are indicated in Annexure-II.
4. All fresh appointments to the Board level posts hereafter would be made in the revised scale of pay and DA scheme as mentioned in paras 1 and 3 above.
5. (i) The ceiling for payment of HRA without production of rent receipt and monetary ceiling for leased accommodation set out in sub-paragraphs (ii) and (iv) of the paragraph 4 of the OM NO. 2(8)/91-DPE(WC) dated 3.3.92 would stand revise w.e.f. 1.4.94 as per details give in Annexure-III. There would be no change in the plinth area ceilings. The revised monetary ceilings would also be applicable w.e.f. 1.4.94 to part-time Chairman for whom leased accommodation is to be provided by the PSEs.
5.(ii) Recovery towards rent for the furnished and unfurnished accommodation provided by the public enterprises would be as per details given in the sub-paragraph (x) and (xii) respectively of paragraph 4 of the OM No. 2(8)/91-DPE(WC) dated 3.3.92. Rent recovery on revised pay would be computed w.e.f. 1.4.94.
For the period from 1.1.92 to 31.3.94, HRA, leased accommodation and rent recovery would be computed and paid on pre-revised basic pay.
6. The monthly rates of recovery for non-duty journeys performed by the Staff cars provided to these executives would continue as at present as indicated in para 7 of this Deptts. OM No. 4(12)/82-BPE(WC) dated 1.4.87. City Compensatory allowance would be paid as under:-
Classification A Class B-1 B-2
Cities Cities Cities
Rate at which 6% of *BP 4.5% of *BP 3.5% of *BP
A is payable subject to subject to subject to
maximum of maximum of maximum of
Rs.100/- Rs.75/- Rs.20/-.
*BP = Basic Pay
7. Wherever Productivity Linked Incentive Scheme have been introduced by the PSEs with the prior approval of the Government, the benefit of incentive payment under the existing Productivity Linked Incentive Scheme would also be extended to the incumbents of the Board level posts.
8. The administrative Ministries are requested to fix the pay of the incumbents of the Board level posts who were in employment in their enterprises as on 1.1.92 in the manner indicated above and forward their files to the DPE for vetting as required under the existing instructions contained in BPE's DO Letter No. 1/1/89-BPE (S&A) Cell dated 14.2.89 and DOPT's OM No. 27(14)/EO/89 (A) dated 6.12.89, and as per procedure indicated in Annexure-IV.
9. For sick PSEs registered with the BIFR, pay revision and grant of other benefits will be allowed only if it is decided to revive the unit. The revival package should include the enhanced liability on this account. The benefit of pay revision etc. shall be extended to IISCO and financial liability thereof shall be met by SAIL.
10. The basic thrust of the new Wage Policy for the fifth round of wage negotiation as contained in OM dated 12.4.1993 read with OM dated 17.1.1994 is that the PSUs should generate their own resources for meeting enhanced liability on account of wage revision and no budgetary support would be extended to them by the Government. In the case of revision of scales of pay of Board level posts in public enterprises also, the same thrust as contained in the aforementioned OMs of Department of Public Enterprises would hold good. It is clarified that the procedure detailed in Annexure-IV must be followed scrupulously and there will not be any budgetary support for giving the revised scale of pay. The respective managements/administrative Ministries/Departments will have to find the requisite resources from within their own internal generation. There should not also be any automatic increase in administered prices of their goods and services.
11. All the administrative Ministries/Departments are, therefore, requested to issue Presidential Directives as per draft enclosed (Annexure-V) to the concerned PSEs under their administrative control to give effect to the above mentioned revision in scales of pay of Scheduled posts w.e.f. 1.1.1992. A copy of the directive issued may be sent to DPE.
15. The learned counsel for the respondents 1 & 2, Mr. M.S. Gandhi, submitted that it is for the public sector undertakings to generate funds and respondents 1 & 2 are not bound even to answer to the claim of the petitioner with reference to this aspect of the matter.
16. The learned counsel for the third respondent, Ms. Anjana Gosain, submitted that though the third respondent is a company, it has to depend upon the second respondent for resources, and the appointment of the petitioner was only for a limited period and as per the appointment letter, the third respondent does not have any intention to detain the petitioner. The third respondent has to act as per the decision of the Ministry and necessary provision has to be made by the second respondent for payment of salary and allowances of the petitioner and, if necessary, resources are made available by the second respondent, the third respondent will not have any objection to the claim of the petitioner with reference to pay scales.
17. On these particular facts, the first point that arises for consideration is: Whether the petitioner can claim repatriation and seek to go back to the first respondent, the Ministry of defense? To decide this point, it is necessary to refer to his position as a civil servant under the first respondent. The fact that he was in the services of the first respondent is not in dispute. After the appointment letter was issued on the with of February, 1994 mentioning clearly that it is for a particular period, the petitioner, as per the directions issued by the third respondent, sent his resignation on the 18th of April, 1996 thinking that he would get his due pay and allowances. The third respondent, being a sick industry, apparently, was not in a position to pay the salary and it had expressed its intention. Therefore, on the 3rd of June 1996 the petitioner had to prefer withdrawal of his resignation. That was not accepted till the matter was considered by this Court on the 5th of August, 1998 The order dated 20.8.1997 cannot be put against the petitioner because it was after filing of the writ petition. When, as per the dictum laid down by the Supreme Court, a civil servant can withdraw his resignation, the order dated 20.8.1997 has apparently no legal effect. It is a brutum fulmen. The petitioner, therefore, in law would continue to be an employee of the first respondent. In the light of the position of the third respondent being a sick industry, the petitioner cannot be denied to his right to go back to his parent department. The argument of the learned counsel for respondents 1 & 2, Mr. M.S. Gandhi, that the petitioner cannot seek repatriation, on the basis of the guidelines issued by the Government which is filed as Annexure R-1 to the counter filed by the first respondent, which captioned as "PERMANENT ABSORPTION OF CENTRAL GOVERNMENT EMPLOYEES IN CENTRAL PUBLIC SECTOR UNDERTAKINGS/AUTONOMOUS BODIES", cannot be put against the petitioner under the facts and circumstances of this case.
18. The learned counsel for respondents 1 & 2, Mr. M.S. Gandhi, submitted, as I already noticed, that in spite of what is stated in the appointment letter dated 11.2.94, the petitioner was absorbed on permanent basis by the third respondent and, therefore, there is no question of the petitioner seeking to go back to his parent department. The guidelines referred to by the learned counsel for respondents 1 & 2, Annexure R-1 would not apply to the facts and circumstances of this case.
19. In view of this, the point taken by the Mr. Sanjay Kishan Kaul, the learned counsel for the petitioner, about the payment of salary, if the petitioner continues with the third respondent, would become purely academic and need not be gone into. Accordingly, the writ petition is allowed.
20. The respondents 1 & 2 are directed to issue appropriate orders for repatriation of the petitioner to the Ministry of defense (Quality Assurance Services), as if he continues in service, with all consequential benefits on or before the 31st of October, 1998.
21. There shall be no orders as to costs.
