Suresh Chand vs Union Of India And Ors.
2001 Latest Caselaw 1342 Del

JUDGMENT

Dr. Mukundakam Sharma, J.

1. In this writ petition the petitioner has challenged the legality of the order dated 21.8.1999 issued by the respondents accepting the resignation of the petitioner from service w.e.f. 21.8.1999 at his own request and without pensionary benefits. The petitioner seeks for quashing and setting aside of the said order with a further direction to the respondents to reinstate the petitioner in service from 21.8.1999 with all consequential benefits and/or alternatively to grant pro rata pension and other retiral benefits to the petitioner.

2. The petitioner was working as a Constable Driver in Border Security Force having been enrolled as such on 18.10.1987. However, somewhere in July/August, 1998 the petitioner was ordered to perform general duty as a constable. It is alleged in the petition that on 17.8.1999 the petitioner submitted an application contending inter alia that he might be permitted to work in M.T. as Driver failing which he might be discharged from service as because he was enrolled as a Driver and he was unable to perform general duties as a Constable. It is further alleged that by the aforesaid letter dated 21.8.1999 the respondents accepted the application of the petitioner treating the same as a resignation letter, and therefore, the present petition is filed in this court.

3. It was contended by the counsel appearing for the petitioner that the aforesaid application filed by the petitioner was a conditional letter seeking for his discharge in case he was not allowed to perform the duties of a Constable Driver and therefore, the same could not have been treated as a resignation letter. It was also submitted that the impugned order was passed by an Officer subordinate to the appointing authority who could not have accepted the said letter treating it as a resignation letter. It was further submitted that at any rate and even on the basis of the impugned letter the petitioner was entitled to payment of pro rata pension under Rule 13 of CCS (Pension) Rules, 1972 read with Rule 49(2) (b) of the said Rules which are applicable to the members of Border Security Force under Rule 182 of the Border Security Force Rules, 1969.

4. Counsel appearing for the respondents, on the other hand submitted that the letter annexed as Annexure P-3 to the writ petition is a forged and fabricated one and the said letter is prepared by the petitioner only with the malafide intention and purpose of making out a case. It was stated that the letter which was submitted by the petitioner is a letter dated 17.8.1999, a copy of which is kept on the Service Book of the petitioner and an English Translation thereof is annexed as Annexure R-1 to the counter affidavit. It was further submitted that the said letter submitted by the petitioner was a pure and simple resignation letter from service seeking for acceptance of the said resignation letter with immediate effect. She drew my attention to the statements made in the counter affidavit and submitted that even after submission of the said application by the petitioner the Competent Authority tried to dissuade the petitioner and advised him to reconsider his decision but as the petitioner was adamant on his decision his resignation was accepted w.e.f. 21.8.1999 at his own request by the Commandant who is the Appointing Authority for a Constable. She also submitted that the provisions of rule 13 as also the provisions of Rule 49(2)(b) CCS (Pension) Rule are not applicable to the facts and circumstances of the present case.

5. In the light of the aforesaid submissions, I proceed to decide this writ petition on merits. The petitioner has placed on record Annexure P-3 which is dated 17.8.1999, contents of which have already been set out in the preceding paragraphs. In view of the specific allegations of the counsel appearing for the respondents that the aforesaid letter is a forged and fabricated one I carefully perused the service records of the petitioner which were placed before me during the course of arguments for my perusal. Scrutiny thereof proves and establishes that the letter which was submitted by the petitioner on 17.8.1999 is the letter which is placed as Annexure R-1 with English Translation. From the contents of the said letter it is crystal clear that the same is a pure and simple resignation letter of the petitioner resigning from service in view of his domestic problems. It is thus apparent that the petitioner has not approached this court with clean hands and tried to over-reach the court by relying on and referring to a letter which is forged and fabricated. Therefore, in the light of the aforesaid discussion the writ petition is liable to be dismissed on that count alone as the petitioner has not come to the court with clean hands. In this connection reference may be made to the Division Bench decision of this Court in Kuldip Singh v. Union of India; DRJ (36) 1996 page 25.

6. The averments made in the writ petition also disclose that the competent authority tried to dissuade the petitioner from acting in such a manner and advised him to reconsider his decision but the petitioner was adamant on his decision. The letter of the petitioner dated 17.8.1999 with a direction that the petitioner might be directed to deposit three months pay for going without notice. Therefore, the letter of resignation submitted by the petitioner was accepted by the Commandant who admittedly is the competent authority to accept such resignation of the petitioner being his Appointing Authority. Therefore, the submission that the resignation was accepted by a subordinate officer to the appointing authority is baseless and is accordingly rejected.

7. The contention of the counsel appearing for the petitioner that an application was submitted by the petitioner with a plea of discharge and that the same was not a resignation letter is also devoid of merit on the face of the records of the case. So far the plea of the petitioner that in any case he was entitled to the grant of pro rate pension under the provisions of the Rule 49(2)(b) of CCS (Pension) Rules is concerned, a bare perusal of the said provision would indicate that the said provision is applicable to a case of retirement and not to the case of resignation. The said provision is applicable to those government servants retiring before completing the qualifying service or thirty three years or after completing qualifying service of ten years. The petitioner resigned from service and his resignation was accepted at his own request and therefore, the case of the petitioner was not a case of retirement by the Competent Authority and therefore, the said provision is not applicable to the facts and circumstances of the present case. Rule 26 of the CCS (Pension) Rules clearly lays down that resignation from a service or a post would entail forfeiture of past service unless the said resignation is allowed to be withdrawn in public interest by the Appointing Authority. In that view of the matter, the petitioner is also not entitled to payment of any pro rata pension as claimed by him in this writ petition.

8. In view of the aforesaid discussions, there is no merit in this petition and the writ petition stands dismissed. However, there will be no order as to costs.