Atul Yadav vs Union Of India And Ors.
2002 Latest Caselaw 235 Del

JUDGMENT

Sanjay Kishan Kaul, J.

1. The petitioner was working with the Border Security Force Academy Takanpur. The petitioner was relieved from the said Academy on 29th August, 2001 and directed to report to 191 Bn BSF vide movement order dated 29th August, 2001 but failed to joint duty.

2. The petitioner on 10-10-2001 submitted application to the President of India through proper channel for acceptance of his resignation from service in terms of Section 8 of the Border Security Force Act, 1968 read with BSF Rules, 1969 (hereinafter referred to as the said Act and Rules). In response to the said letter of 10th October, 2001 the Commandant of 1991 Bn BSF addressed a letter to the petitioner dated 30.10.2001 directing him to rejoin duty forthwith and to deposit Rs. 92,984.91 on accounts of training charges as contemplated under Rule 19 of the Rules. The petitioner sent the said amount with a covering letter dated 9.11.2001 but expressed his inability to joint the Bn on medical ground. This was followed up with another letter dated 29.11.2001 for payment of difference of Rs. 10/-.

3. On 5th January, 2002 the Deputy Inspector General of the respondent sent a letter to the petitioner in reference to his application for resignation from service stating that the case of the petitioner could not be processed unless the petitioner physically reported to 191 Bn BSF specially taking into consideration the present operation situation of the country. The later also stated that the petitioner did not joint the Bn and absented without leave after he was relieved on 24th August, 2001 and had no medical problems till then. It was thus stated that on the failure of the petitioner to joint the Bn appropriate action be taken in accordance with the BSF Act and Rules. Later on 10.1.2002 it was acknowledged by the respondents that the amount sent by the petitioner for training charges had been received by the accounts department of the respondents.

4. It is the contention of the learned counsel for the petitioner that on the issuance of the letter dated 30th October, 2001 and further on appropriation of the training amount the resignation of the petitioner is deemed to be accepted. In order to appreciate the contention of the learned counsel for the petitioner, it would be appropriate to refer to Section 8 of the Act and Rule 19.

"Section 8 of the Act reads as under:

8. Resignation and withdrawal from the post.- No member of the force shall be at liberty.

(a) to resign his appointment during the term of the engagement ; or

(b) to withdraw himself from all or any of the duties of his appointment, except with the previous permission in writing of the prescribed authority."

5. It is thus apparent from the reading of Section 8 that there is no right of acceptance of resignation and the same comes into force only with the previous permission in writing of the prescribed Authority.

Rule 19 of the Rules in as under:

"19. Resignation.

"(1) The Central Government may, having regard to the special circumstances of any case, permit any officer of the Force to resign from the force before the attainment of the age of retirement of before putting in such number of years of service as may be necessary under the rules to be eligible for retirement ;

Provided that while granting such permission the Central Government may;-

(i) require the officer to refund to the Government such amount as would constitute the cost of training give to that officer; or

Provided further that an officer of the Force tendering resignation for accepting a job under central or state government or local bodies, after having been granted cadre clearance for the same, shall not be required be refund the sum as provided herein above.

(2) The Central Government may accept the resignation under Sub-rule (1) with effect from such date as it may consider expedient.'

6. The reading of the rule makes it clear also that that resignation "may be accepted". Thus the discretion is vested with the respondent authority. The proviso to Rule 19 however provides that while granting permission to the petitioner, the Central Government may require the officer to refund the amount which constitutes the cost of training. The contention of the learned counsel for the petitioner is that the requirement to deposit the amount is at the stage of granting of permission and thus on issuance of the letter dated 30.10.2001 asking the petitioner to deposit the training amount, it has to be assumed that the permission has been so granted.

7. It may also be pointed out that Sub-rule 2 of Rule 19 of the Rules provides that resignation may be accepted with effect from such date as may be considered expedient.

8. It is also relevant to state that Sub-rule 3 gives the right to Central Government to refuse to permit an officer to resign on the terms and conditions provided therein including due to exigencies of service or in the interests of the discipline of the Force.

9. Learned counsel for the petitioner relied upon a Judgment of the Supreme Court in Moti Ram v. Param Dev and Ors. to contend that the resignation of the petitioner should be deemed to be accepted in view of the bilatral character of the resignation and the letter dated 30th October, 2001 followed by deposit of the amount. Reference may be made to paragraph 16 of the said Judgment which is 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 or 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. 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 the conditions governing it. "

(emphasis supplied)

10. I have heard the learned counsel for the parties. From the reading of the Act and Rules, it is apparent that there is no mandate to the respondent to accept the resignation of the petitioner. In fact there cannot be said a mandate taking into consideration that the case relates to Armed service.

11. A reference to the letter dated 30th October, 2001 would show that it is clearly stated that the amount towards training charges has to be deposited for "so that your resignation case can be processed to higher headquarters accordingly".

12. Thus the amount was sought to be deposited before the decision making process which decision had to be taken by the prescribed authority. The other requirement for the application of the petitioner to be processed stated in letter dated 30.1.2001 was that the petitioner should rejoin the duty forthwith. A reading of the said letter thus makes it clear that the said letter cannot be treated as acceptance of the resignation. In fact the acceptance had to take place by the prescribed authority as provided in Section 8 of the Act and the letter of resignation was liable to be forwarded to the said authority.

13. The petitioner did comply with the first requirement of depositing the training charges but failed to rejoin duty. Despite repeated requests the position has remained the same. This resulted in the impugned letter dated 5.1.2002 being issued. The relevant portion reads as under:

"Your posting order from 162 Bn to 191 Bn BSF was issued vide FHQ BSF New Delhi signal No. R-3283 dated 08th June, 2001. You were accordingly, relieved by BSF Academy Takanpur on 29th Aug 2001 to report to 191 Bn BSF vide movement order No. 2456-58 dated 29th Aug 2001 but you have failed to join duty in 191 Bn BSF and absenting without leave since then. Despite repeated directions given by 191 Bn BSF to join duty, you did not respond and now seeking resignation from service by posing yourself as sick. After going through the details of your case, it is presumed that till you were in BSF Academy Takanpur, you had no medical problem and when posted to 191 Bn which is deployed in the Kashmir Valley, the medical problems started as you do not want to go to that unit which clearly indicates your intention to avoid duty at such place.

Your case for resignation cannot be processed at this stage unless, you physically report to 191 Bn BSF. In view of the present ops situation of the Country, you are hereby directed to join 191 Bn BSF immediately on receipt of this notice, failing which action for your apprehension through civil police will be taken followed by disc action under the provisions of BSF Act and Rules."

14. I am unable to accept the contention of the learned counsel for the petitioner that Rule 19 has been complied with. It is also relevant to state, as would be apparent from the reading of the letter of the respondent, that the petitioner on being relieved from the Academy failed to join duty and absented without leave. It appears that the health of the petitioner seems to have suddenly gone down when he was posted to Kashmir Valley. The respondent thus rightly noted that it appears to be with an intention to avoid joining duty at such a place.

15. Requirement of discipline in the army service naturally has to be of the highest level. A person in the army service cannot decide where and when he will work. The mere fact that the petitioner has deposited the training charges would not entitled him to automatically be relieved from service.

16. In so far as the reference to the Judgment in Moti Ram case (supra) is concerned, it is apparent that the present case is one of bilateral character as discussed in the said judgment and thus the intention to relinquish itself would not be sufficient without acceptance of such request. Admittedly in the present case there has been no such acceptance by any authority much less the prescribed authority. In communication dated 30th October, 2001 there is no acceptance but the petitioner has been asked to join duty and to deposit the training charges.

17. The matter also did not rest at this. The petition was listed on 23rd January, 2002 when on the interim application for stay of the operation of the letter dated 5.1.2002 being CM No. 815/2000 learned senior counsel for the petitioner on instructions stated that the petitioner will join the Bn within seven days. It was thus directed that in case the petitioner so joins, the letter dated 5.1.2002 would not be given effect to. However subsequently another application was filed seeking to resile from the such statement and making fresh allegations of which there was no whisper earlier in the petition. This application was dismissed on 30.1.2002.

18. Thus it is apparent that the petitioner does not wish to join duty and is bent on violating the discipline of the respondent force. I am of the considered view that no infirmity can be found in the impugned letter dated 5.1.2002.

19. The writ petition is without any merit or substance and is dismissed with costs of Rs. 10,000/- to be paid to the respondent within ten days.