Satendra Kumar Gupta vs Union Of India & Ors.
2013 Latest Caselaw 1726 Del

*           IN THE HIGH COURT OF DELHI AT NEW DELHI


+                        W.P.(C) No.293/2013


%                                 Date of decision: 17th April, 2013


      SATENDRA KUMAR GUPTA                                ..... Petitioner
                      Through:               Mr.B.K.Mishra, Advocate.


                               versus


      UNION OF INDIA & ORS.                                   ..... Respondents

                    Through:            Mr.Saqir, Advocate.

      CORAM:
      HON'BLE MS. JUSTICE GITA MITTAL
      HON'BLE MS. JUSTICE DEEPA SHARMA

GITA MITTAL, J (Oral)

1. We have heard learned counsel for the parties. The petitioner in the instant

case joined services on 08th May, 1995 as Overseer with the Border Roads

Organisation and was promoted on 17th January, 2003 to the post of Superintendent

Building & Roads Grade -II (Now JE (Civil)) w.e.f. from 17th January, 2003.

2. On 18th December, 2006, while working with the Border Road Organisation,

the petitioner submitted an application through proper channel for appointment to the

post of Junior Engineer (Civil) in Bihar Staff Selection Commission, Patna which

was at a higher pay scale. The respondents issued No Objection Certificate dated 28th

December, 2006 informing the petitioner that they had no objection in case of his

selection to the above mentioned post and that he would be relieved upon selection as

per the extant rules.

3. It is undisputed that on 5th January, 2012, the petitioner was declared

successful in the selection for the post of Junior Engineer (Civil) in Irrigation

Department in Patna. As a consequence, the petitioner submitted on 9 th January,

2012 his technical resignation through proper channel. The petitioner‟s resignation

was recommended on 13th April, 2012 upon receipt of comments of his officer

commanding and consideration of all relevant factors. The formal acceptance of the

technical resignation was given on 6th August, 2012 by the Superintendent Engineer

(Civil), FS, the then Commander of the 50 BRTF (GREF).

4. It is undisputed that the petitioner duly submitted an application dated 11 th

August, 2012 to the Chief Engineer Project Sampark that he was to join duty as

Junior Engineer (Civil) in the Government of Bihar in the Water Resources

Department, Patna. As such after due intimation to the respondents, on 13th August,

2012, the petitioner joined this post.

5. It is petitioner‟s grievance that despite his having duly informed the

respondents, on 16th August, 2012, he received the communication from the

respondents informing him that he had failed to report to HQ 50 BRTF w.e.f. August

11, 2012 without information and was advised to report for duty failing which

necessary desertion role would be initiated against him. The petitioner responded by

communication dated 22nd August, 2012 reiterating the aforefacts. On 6 September,

2012, the respondents informed the petitioner that his request for technical

resignation has not yet been sanctioned and was therefore advised to resume duty

failing which the desertion role would be initiated. Thereafter, the respondents

appear to have passed the formal order dated 7th September, 2012 rejecting the

petitioner‟s request for acceptance of his technical resignation. It is noteworthy that

the petitioner was given No Objection Certificate as on 28 th December, 2006. The

order dated 7th September, 2007 also pointed the following reasons:-

(i) There is huge deficiency of grade of Junior Engineer (Civil) in the

Organisation.

(ii) Requirement of experienced hands for strategic working on the borders.

6. The petitioner was now holding the post of Junior Engineer (Civil) and by his

application dated 18th December, 2006 applied for the same level post as such, the

case of petitioner being resigned from the service and joined at Patna and did not

merit favourably considerable.

7. For all these reasons, the competent authority had decided not to accept

petitioner‟s request for technical resignation. The formal order communicated on 12th

September, 2012 in addition to the above communication, the respondents

communicated rejection of his application for technical resignation by

communication dated 26th September, 2012.

8. The writ petition assails by way of the present writ petition rejecting of such

request.

9. Learned counsel for the petitioner submits that the identical issue arose for

consideration before this court in writ petition No. 6447/2011 titled as Shashi Kant

Singh Vs. UOI & Ors wherein also the acceptance of the technical resignation was

delayed. In Shashi Kant Singh (supra), the consideration of the application for

technical resignation got delay for the reason that some unsuccessful candidates

questioned the selection process. In this case, the No Objection Certificate had been

issued to the petitioner on 17th February, 2012..However, appointment was kept on

hold because of the challenge and the judicial process came to an end only in the year

2011. The Border Roads Organisation had refused to accept the request for technical

resignation submitted by the petitioner in the said writ for the same very reasons we

have noted herein.

10. In this regard, the consideration and the findings of the court in the Judgment

dated 5th September, 2011 (rendered in writ petition No. 6447/2011 raised before us

would guide adjudication by us in the claim made by the petitioner. The relevant

extract of the Judgment may usefully be set down in the extenso and reads as

follows:-

"5. The issue has to be sorted out with reference to sub-rule 2 of Rule 26 of the CCS Pension Rules which stipulates that a resignation shall not entail forfeiture of past service if it has been submitted to join, with proper permission, another service; whether temporary or permanent, under the Government where service qualifies.

6. It is not the case of the respondents that the petitioner would not be entitled to have his case considered under sub-rule 2 of Rule 26 of the CCS Pension Rules, but would urge that the rule does not cast any obligation on the respondents to accept the technical resignation and that if there are sufficient grounds, in public interest, the technical resignation can be rejected. It is urged that shortage of manpower and petitioner‟s experience for road construction at the Indo-China Border are good grounds to reject the technical resignation submitted by the petitioner.

7. We find that pertaining to technical resignations, OM No.3379E- III(b)/65 dated 17.6.1965 has been issued and suffice would it be to state that guidelines issued in exercise of the Executive power supplement the rules on subjects not covered by the rule. The Office Memorandum in question reads as under:-

"(1) When resignation a technical formality and when it subsists. - A Government servant intending to apply for a post or posts outside his parent office/department under the Government of India should have his application forwarded through the Competent Authority under whom he was serving at the time of applying for the post. Such an authority should either forward the application or withhold it according as the exigencies of public service may indicate but it should not forward the application conditionally, for example, that in the event of the applicant coming out successful, he will be required to resign his post before taking up the new one. Once the application has been forwarded unconditionally and the person concerned is offered the post applied for, he should be relieved of his duties to join the new post as a matter of course and the question of his resigning the post held by him in such circumstances should not arise. Accordingly, the amended article is intended to cover the cases where even though the applications were forwarded by the Competent Authority, the applicant had been asked for one reason or the other to resign his post before taking up the new one. The above position holds good whether the Government servant held the post in permanent or temporary capacity before resigning the post.

Situations may arise where the application of a Government servant was not forwarded and the Government servant resigned his appointment of his own volition with a view to his taking up the new post or where it was not possible to forward his application in the public interest but the Government servant had volunteered to resign his post or where the conditions of service in an office demand as a matter of policy that the Government servant should resign his post in the event of his taking up another post outside. In all such cases, it has been held that resignation of public service will subsist and entail forfeiture of past service.

It has been decided that in cases where Government servants apply for posts in the same or other departments through proper channel and on selection, they are asked to resign the previous posts for administrative reasons, the benefit of past service may, if otherwise admissible under rules, be given for purposes of fixation of pay in the new posting treating the resignation as a „technical formality‟. The pay in such

cases may be fixed under FR 27."

8. Suffice would it be to state that while applying to the Irrigation Department for the post, the petitioner got his application forwarded through the Competent Authority under whom he was serving and the requirement of manpower had to be considered at said stage by the Competent Authority and not at a later stage. The instruction clearly states that once the application has been forwarded unconditionally and the person concerned is offered the post applied for, he should be relieved of his duties to join the new post as a matter of course. The Competent Authority granted the sanction.

9. Thus, public interest i.e. retention of the government servant in the parent service has to be considered at the stage when the No Objection Certificate is sought and not after the person obtains employment to another civil post."

11. Learned counsel appearing for the respondent is unable to distinguish the

judgement dated 17th September, 2011 or to give any reason. The same would not

apply to the facts of the instant case.

12. For the reasons given by in the Judgment dated 5th September, 2011 which

have been noticed above, we are of the view that the present writ petition desserves to

be favourably considered and the petitioner is also entitled relief as was granted in

Shashi Kant Singh (supra).

13. We accordingly direct as follows:-

(i) The impugned communication dated 7th September, 2012 and 25th

September, 2012 are hereby set aside and quashed. As a result, the respondents

are directed to accept the petitioner‟s technical resignation and to relieve him

from service so that the petitioner is able to continue with his engagement with

the Water Resources Department and the Government of Bihar at Patna. The

petitioner would be entitled to due benefits so far as his pensionable service is

concerned.

(ii) The respondents are directed to do the needful within the period of 4

weeks from today.

(iii) The writ petition is allowed in above terms.

    (iv)    Parties are left to bear their own costs.



                                                           (GITA MITTAL)
                                                             JUDGE




                                                           (DEEPA SHARMA)
                                                             JUDGE
APRIL 17, 2013
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