Md Dastagir vs The Telangana State Wakf Board
2022 Latest Caselaw 4939 Tel

      THE HONOURABLE SMT. JUSTICE P. MADHAVI DEVI

                 WRIT PETITION NO.24607 OF 2022

                              ORDER

This Writ Petition has been filed by the petitioner seeking a Writ

of Mandamus declaring the impugned order in F.No.E1/68/2008

dt.19.02.2022 passed by the 2nd respondent and the consequential order

passed by the 3rd respondent in F.No.E1/68/2008 dt.30.04.2022, as

illegal and arbitrary.

2. Brief facts leading to the filing of the present Writ Petition are

that the petitioner was initially appointed as a Junior Assistant-cum-

Typist in the office of the 1st respondent on 26.07.1997 and was

subsequently promoted as Senior Assistant on 28.06.2012 and was

further promoted as Superintendent on 01.02.2020 and was working as

Superintendent in the office of the 1st respondent. The petitioner after

promotion as Superintendent on 01.02.2020 was posted in Zone II and

Zone IV in the office of the 1st respondent by allocating ministerial

duties. While so, the petitioner was transferred and posted as Inspector

Auditor Waqf, Mahabubnagar, Narayanpet and Gadwal Districts by

order dt.05.11.2021. The petitioner immediately made a representation W.P.No.24607 of 2022

dt.05.11.2021 to the 2nd respondent requesting to retain him at Head

Office by considering his case on humanitarian grounds. It was stated

that his wife was suffering from neurological and psychological

disorders due to the death of his two daughters in the years 2012 and

2017 respectively and that she requires regular check up and treatment

at Hyderabad and that except himself there was no other family member

to look after her. It is submitted that when the respondents did not

consider the said representation, the petitioner ultimately joined the

duties as Inspector Auditor Waqf, but due to heavy work load and due

to field work of 3 Districts, the petitioner fell sick and used to get

hospitalised often and in view thereof, the petitioner made repeated

representations requesting transfer/posting as Superintendent in the

Head Office and allocation of ministerial work in the Head Office. Since

there was no response, the petitioner applied for medical leave on

18.12.2019 for 7 days and for extension of medical leave for another 8

days by application dt.24.12.2021 and further extension of medical leave

from 01.01.2022 to 31.03.2022.

W.P.No.24607 of 2022

3. It is submitted that in the meantime, the petitioner made another

representation dt.07.02.2022 to the 2nd respondent with a request to post

him in the head office as Superintendent since he was suffering from

hyper tension, blood pressure, depression, lower back pain and other

ailments. It is also stated that due to his health problems, he is not in a

position to work more in the field and he stated that he was going to

submit his resignation for the post of Superintendent in case he is

continued in the field work. It is submitted that the 2nd respondent

passed an order in F.No.E1/68/2008 dt.19.02.2022 by treating the said

representation as a resignation letter and after receipt of the said letter,

the petitioner made a representation dt.16.03.2022 stating that the letter

dt.07.02.2022 is not a letter of resignation and therefore, the order

dt.19.02.2022 may be withdrawn. The 3rd respondent however passed

the impugned order dt.30.04.2022 stating that since his resignation letter

has already been accepted, his representation dt.16.03.2022 cannot be

considered for reposting him as Superintendent. Challenging the same,

the present Writ Petition is filed.

W.P.No.24607 of 2022

4. Learned counsel for the petitioner, Sri S.A. Razzak, while

reiterating the above submissions on facts, submitted that a resignation

letter can only be addressed and submitted to the competent authority,

i.e., the appointing authority, who, in the case of the petitioner is the

Waqf Board headed by its Chairman. He submitted that the letter

dt.07.02.2022 was addressed to the Chief Executive Officer who is not

the appointing authority of the petitioner and therefore, the said letter

cannot be treated as the letter addressed to the Chairman of the Waqf

Board. He submitted that in the said letter, the petitioner has stated his

intention to submit resignation letter in case his representation for

posting him in the Head Office in view of the medical and other

problems faced by him is not considered and therefore, the said letter

cannot be treated as resignation letter. He further submitted that only the

appointing authority can consider and accept the resignation letter, but

in this case, it is the CEO who appears to have accepted and intimated

the acceptance and hence, the resignation letter, even if it is considered

as resignation letter, has not been accepted by the competent authority

and therefore, it cannot be given effect to. He further submitted that the W.P.No.24607 of 2022

acceptance of the resignation cannot be conditional. He has drawn the

attention of this Court to the letter dt.19.02.2022, wherein it is stated

that the resignation of the petitioner is accepted with effect from

07.02.2022 subject to verification of records relating to disciplinary

cases pending, if any, against him and no dues certificates to be received

from all the sections of TSWB as required under the rules and

regulations and submitted that the acceptance of the alleged resignation

cannot be with retrospective effect. Without prejudice to the above

arguments, the learned counsel for the petitioner further submitted that

since it is a conditional acceptance of the resignation, unless and until

the conditions are complied with, the resignation letter cannot be said to

have come into effect. He also submitted that the letter dt.30.04.2022 is

issued by an Officer on Special Duty who is not competent authority to

consider the representation of the petitioner dt.16.03.2022. He submitted

that it is only the Board of the 1st respondent organisation headed by the

Chairman who can consider resignation as well as withdrawal of the

resignation before it is given effect to and not the CEO or the Officer on

Special Duty. He also referred to the Andhra Pradesh Waqf Regulations

of 1963, which are filed by the respondents along with the counter W.P.No.24607 of 2022

affidavit, to submit that the appointing authority of Class-I and Class-II

posts as per Regulation 17 of the Regulations is the Chairman and by

virtue of the amendment made to the said Regulation, vide

G.O.Ms.No.1017 Rev (Waqf) Dept., dt.27.10.1987, all appointments to

the posts in Class-I, Class-II and Class-III shall be made on the

recommendation of a selection committee appointed by the Board which

shall consist of the Chairman and two members of the Board. Therefore,

according to him, it is the Board which has to take a decision and not the

Chairman alone. He also referred to the Telangana State and

Subordinate Service Rules, 1996 and Rule 30 thereof which deals with

the issue of 'resignation'. He submitted that as per the said Rule, a

member of a service may resign from his appointment and acceptance of

his resignation by the appointing authority shall take effect,

(i) in case he is on duty, from the date on which he is relieved

of his duties in pursuance of such acceptance;

(ii) in case he is on leave, from the date of communication of

such acceptance to the member or if the said authority so

directs, from the date of expiry of leave; and W.P.No.24607 of 2022

(iii) in any other case, from the date of communication of such

acceptance to the member or from such other date, not

being earlier than the date on which he was last on duty, as

the said authority may, having regard to administrative

exigencies, specify.

5. He also placed reliance upon the Second Proviso thereto, wherein

it is provided that a member of a service may withdraw his resignation

before it takes effect and in Sub-Rule (b) of Rule 30, it is mentioned that

if the resignation of a member of service has been accepted, but has not

taken effect and he withdraws his resignation before it has taken effect,

he should be deemed to be continuing in service. He referred to the

impugned order dt.19.02.2022, wherein the petitioner's application for

leave on medical grounds were referred to and it was stated that the

same will be examined with reference to the leave title for sanction after

submission of the medical certificate. He submitted that the petitioner

had applied for leave from 01.01.2022 to 31.03.2022 and therefore, as

on the date of application dt.07.02.2022 the petitioner was on leave and

therefore, the provisions of Rule 30 of the State and Subordinate Service W.P.No.24607 of 2022

Rules, 1996 would be applicable and before the letter of resignation is

given effect to after the expiry of leave on 31.03.2022, the petitioner has

withdrawn the said letter by letter dt.16.03.2022 and therefore, the

resignation has to be deemed to have been withdrawn before it has taken

effect. He, therefore, prayed for setting aside of the impugned order and

the consequential reliefs thereafter.

6. Learned counsel for the petitioner also placed reliance upon the

judgment of the Hon'ble Supreme Court in the case of Power Finance

Corporation Ltd. Vs. Pramod Kumar Bhatia1 for the proposition that

voluntary retirement would not become effective unless the employee is

relieved of his duty after complying with the conditions of acceptance.

7. Learned counsel for respondents 2 and 3 relied upon the

averments made in the counter affidavit and has drawn the attention of

this Court to the letter of the petitioner dt.07.02.2022, wherein in the

subject itself, it is mentioned as "submission of resignation for the

position of Superintendent of TSWB and requesting for acceptance and

sanction and release of monetary benefits". It is submitted that the

(1997) 4 SCC 280 W.P.No.24607 of 2022

petitioner was very much clear in his mind about submission of

resignation letter and after consideration of the same, it has been

accepted by the competent authority, i.e., the Chairman of the Board and

thereafter, the proceedings dt.19.02.2022 were issued. It is submitted

that it is settled law that the resignation cannot be withdrawn after it has

been accepted by the competent authority. It is further submitted that all

the terminal benefits of the petitioner have been calculated and a cheque

has also been prepared, but since the petitioner refused to accept the

same, the same has not been paid to the petitioner.

8. Learned counsel representing the 1st respondent also adopted the

averments in the counter affidavit filed by respondents 2 and 3 and

submitted that by virtue of the Board Resolution No.3/2017, the

resignation application filed by the petitioner though addressed to the

CEO, has been forwarded to the Chairman through proper channel, and

has been examined and accepted by him and therefore, there was no

question of consideration of the withdrawal of the resignation which has

already been accepted. He also submitted that the intimation given by W.P.No.24607 of 2022

the 2nd respondent on 30.04.2022 is pursuant to the decision taken by the

Chairman.

9. Having regard to the rival contentions and the material on record,

this Court finds that the question before this Court is whether the

petitioner's representation dt.07.02.2022 is a resignation letter and if so,

whether it has been given effect to before the petitioner has submitted

the letter dt.16.03.2022 and whether the letter dt.16.03.2022 is in fact a

letter of withdrawal of the resignation. From a reading of the letter

dt.07.02.2022, it is seen that in the subject portion, it is mentioned as

submission of resignation for the position of Superintendent of TSWB

and a request was also made to accept the same and release the

monetary benefits. However, in the last paragraph of the said letter, it is

mentioned that for the reasons mentioned in the letter, if the petitioner is

not able to continue the services to the Waqf Board, then he is going to

submit his resignation for the position of the Superintendent of TSWB,

Hyderabad with a request to sanction and release the monetary benefits

as early as possible which has to be utilised for his medical treatment,

etc. The intention of a party has to be gathered not only from the recitals W.P.No.24607 of 2022

in the subject portion of the letter but also from the submissions made in

the letter. In the operative portion of the letter, the petitioner has pointed

out his medical problems, due to which he is not able to continue in

service as the Superintendent/I.A. Waqf, Mahaboobnagar District on

field work. After reciting the health reasons, the petitioner has revealed

his intention to submit resignation letter. When the petitioner had

submitted the letter, he was admittedly on leave. Even the letter

dt.19.02.2022 refers to the leave applications submitted by the petitioner

on medical grounds and that they will be considered on submission of

the medical certificates. It is nowhere mentioned that the petitioner had

joined duty on 07.02.2022 and submitted the alleged letter of

resignation. Even if the contention of the respondents that the letter

submitted by the petitioner addressed to the CEO is to be accepted to be

the letter addressed to the Chairman through proper channel, the letter

would have to be addressed to the Chairman and has to be routed

through the CEO. As rightly pointed out by the learned counsel for the

petitioner, it has to be accepted by the Chairman of the Board. The

learned counsel for the petitioner's contention that it is the Board which

has to accept the resignation cannot be sustained as the Regulations only W.P.No.24607 of 2022

prescribe the Chairman as the appointing authority of Class-I and Class-

II posts and only that the appointments have to be made on the

recommendation made by a Selection Committee which shall consist of

the Chairman and two other members of the Board. Therefore, it is the

Chairman, who is the appointing authority and thus competent to accept

the alleged resignation of the petitioner.

10. The learned counsel for the respondents had referred to the orders

of the Hon'ble Chairman, TSWB in F.No.E1/68/2008 and also the

alleged letter dt.07.02.2022 submitted by the petitioner, as referred to in

the impugned order dt.19.02.2022. However, this Court finds that the

said reference to the letter of the Chairman does not contain the date of

the orders or the contents of the said orders. The learned counsel for the

respondents has also referred to the Board Resolutions dt.11.03.2017

delegating certain powers of the Chairperson to the CEO. As rightly

pointed out by the learned counsel for the petitioner, there is no

delegation of power to accept the resignations of the officers of Class-I

and Class-II by the CEO. Such a power cannot be delegated by the

appointing authority.

W.P.No.24607 of 2022

11. Further, even if the letter dt.07.02.2022 were to be considered as a

resignation letter, under Rule 30 of the Telangana State and Subordinate

Service Rules, 1996, the acceptance of the resignation shall take effect

from the date of communication of such acceptance to the member in

case of his being on duty and where he is on leave, if the said authority

so directs, from the date of expiry of leave. In this case, the respondents

have accepted the alleged resignation letter with effect from the date of

application, i.e., retrospectively and therefore, it cannot be said to have

come into effect on the said date as it could not have been

communicated to him. As held by the Hon'ble Supreme Court in the

case of Power Finance Corporation Ltd. Vs. Pramod Kumar Bhatia

(1 supra), where the resignation letter is accepted subject to certain

conditions, the resignation would not come into effect till the conditions

are fulfilled. In the present case, it is not stated as to when the conditions

stipulated in the acceptance letter have been fulfilled. The same is not

stated in the proceedings dt.30.04.2022 or even in the counter affidavit.

The letter of the petitioner dt.16.03.2022 has clarified that the petitioner

did not intend to submit any resignation and that the letter dt.07.02.2022 W.P.No.24607 of 2022

is not a letter of resignation. Therefore, from the tone and tenor of the

letter, it can be said that it is nothing but withdrawal of the alleged

resignation letter and therefore, since the order of acceptance is

supposedly not given effect to, before the submission of the petitioner's

letter dt.16.03.2022, the orders dt.19.02.2022 and the consequential

order dt.30.04.2022 are both not sustainable. In view thereof, they are

set aside and the respondents are directed to allow the petitioner to

continue his service as the Superintendent with all consequential

benefits.

12. With the above directions, the Writ Petition is allowed. No order

as to costs.

13. Pending miscellaneous petitions, if any, in this Writ Petition shall

stand closed.

___________________________ JUSTICE P. MADHAVI DEVI Date: 27.09.2022 Svv