Telangana High Court
Ravi Shankar Kumar vs The Union Of India on 30 April, 2024
THE HONOURABLE SMT. JUSTICE T. MADHAVI DEVI
WRIT PETITION NO.18957 OF 2021
ORDER
In this Writ Petition, the petitioner is seeking a Writ of Mandamus
declaring the proceedings No.E-28015/2021/Estt.II/1589 dt.23.03.2021
of respondent No.2 received through respondent No.3 vide IG/SS HQrs
Ltr.No.(4458) dt.24.03.2021 rejecting the application of the petitioner
for technical resignation consequent upon his selection as LDC in Indian
Army and the representations of the petitioner dt.09.11.2020 and
24.05.2021 to consider his case as technical resignation, as illegal and
arbitrary and contrary to the Office Memorandum of the Department of
Personnel and Training vide F.No.12/2/2017-Estt(Pay-I) dt.05.08.2020
and the Office Memorandum of the Department of Personnel and
Training vide No.28020/2/2018-Estt.(C) dt.27.08.2018 and to set aside
the same and consequently to direct the respondents to process the
petitioner's application for technical resignation and allow the petitioner
to join the service of respondent No.8 and to pass such other order or
orders.
2. Brief facts leading to the filing of the present Writ Petition are
that the petitioner had initially applied for the post of Lower Division
Clerk (LDC) in the Army Ordinance Depot, Fort, Allahabad pursuant to
the Notification No.13/2013 of 06-20 APR 2013. Simultaneously, the
petitioner also applied for recruitment to the post of Head
Constable/Ministerial in the Central Industrial Security Force (CISF)
pursuant to the Special Recruitment Drive for filling up of backlog
vacancies of the Scheduled Castes, Scheduled Tribes, Other Backward
Classes and Ex-Servicemen for the post of Head Constable/Ministerial
in the CISF - 2012 with closing date 26.02.2013. It is submitted that the
petitioner appeared for the test/interview for selection in the Army and
the CISF and the results of the test/interview for the selection to the post
of LDC in the Army Ordinance Depot were declared in the month of
December, 2014 and the petitioner's name did not find place in the merit
list. Subsequently, the petitioner was selected to the post of Head
Constable/Ministerial in CISF and was intimated about the selection
vide letter dt.18.03.2015 issued by the Assistant Inspector General,
CISF, Eastern Zone Head Quarter, Patna. Accordingly, the petitioner
joined the services of the CISF on 23.05.2015 and was assigned force
No.150401399 and after undergoing the training, the petitioner was
posted at VSTPP, Vindhyanagar, District Singarauli, Madhya Pradesh
and the petitioner was detailed on temporary duty at Allahabad in the
year 2018.
3. It is submitted that while the petitioner was serving in the CISF at
Allahabad (temporary duty), the petitioner received an intimation
No.1267 dt.02.01.2019 from the office of respondent No.8 that he was
provisionally selected for the post of LDC in the Army Ordinance Depot
pursuant to the Notification No.13/2013 and in the said letter, the
petitioner was asked to report to the Army Ordinance Depot, Fort,
Allahabad latest by 20th January, 2019 with all the certificates shown
therein. It is submitted that in the month of January, 2019, while on
leave, the petitioner went to Army Ordinance Depot, Fort, Allahabad
with all the necessary forms including the medical and attestation forms
and he was also required to declare if he was employed at any place. It is
submitted that the petitioner has declared that he was employed as Head
Constable/Ministerial in CISF. By letter dt.24.01.2019, the petitioner
intimated respondent No.6 about his provisional selection for the post of
LDC in Army Ordinance Depot, Allahabad. It is submitted that the
Assistant Commandant, CISF, VSTPP, Vindhyanagar on behalf of
respondent No.6 addressed a letter dt.11.02.2019 stating that the
petitioner cannot be given the benefit of technical resignation as he did
not provide the information of appearing for the exam for the post of
LDC in Army Ordinance Depot immediately upon joining the CISF and
also due to the fact that the pay scale in the Army Ordinance Depot was
less than his current pay scale in the CISF and further that if the
petitioner would have been in the service of the CISF as on the date of
application to the Army Ordinance Depot, his application for the post of
LDC with Army Ordinance Depot would not have been forwarded
through proper channel. It is stated that the said letter was received by
the petitioner much later, i.e., in the month of March, 2019. It is
submitted that respondent No.8 seems to have verified the records of the
petitioner including the educational qualifications and also employment
details from respondent No.6. Respondent No.6, in response to the said
request of the Army Ordinance Depot, has addressed a letter
dt.18.03.2019 stating that a No Objection Certificate was not obtained
by the petitioner from the CISF to apply for/join in the post of LDC in
Army Ordinance Depot and also informed that if a force member
requests resignation, then he would have to pay training cost or three
months salary whichever is higher. In response to the same, the Army
Ordinance Depot, vide letter dt.18.03.2019 clarified that the petitioner
had applied for the test/interview in Army Ordinance Depot in the year
2013 and that the results were declared in December, 2014 and that the
petitioner's name was not in the declared list but was kept in reserve
panel and that since the petitioner was not employed at the time of
recruitment, No Objection Certificate (NOC) from the CISF was not
required to be obtained and further sought confirmation whether on
issue of appointment, the petitioner's resignation would be accepted by
the CISF. It appears that the CISF has given positive report on the
petitioner's character and antecedents to the Army Ordinance Depot and
accordingly, respondent No.8 has issued provisional appointment vide
letter dt.29.10.2019. It is also stated that the CISF in the said letter has
stated that the petitioner did not obtain NOC from CISF and as such, his
technical resignation was not possible. It is submitted that the petitioner,
thereafter, made a representation dt.28.03.2019 requesting for
acceptance of technical resignation and permitting him to join the Army.
However, the petitioner was sent on duties to Hyderabad, Chennai, etc.,
and the petitioner's request for technical resignation was not accepted
and therefore, the present Writ Petition has been filed.
4. As an interim order, this Court had directed the respondents to
relieve the petitioner and permit him to join respondent No.8
organisation. The petitioner has accordingly joined and he is serving in
respondent No.8.
5. Learned counsel for the petitioner submitted that the petitioner
could not have intimated respondent No.6 about his possibility of
appointment with respondent No.8 as, in the results declared by
respondent No.8, his name was not in the merit list. He has also drawn
the attention of this Court to the correspondence between the Army
Ordinance Depot and CISF, wherein it was clearly mentioned that
wherever the name of a candidate is placed in the reserve panel, it could
not be intimated to the said candidate. He submitted that due to these
circumstances, the petitioner was not aware of his possible selection and
therefore, could not have intimated the same to respondent No.6 and as
soon as he has come to know about the provisional selection, he has
intimated to the authorities of respondent No.6. It is submitted that the
respondents ought to have considered the case of the petitioner as
technical resignation since he has put in nearly 5 years of service and he
was also going to serve another organisation of the Central Government
only. He submitted that on the ground that the Writ Petition is pending,
the petitioner is not being granted all the consequential benefits of
technical resignation.
6. Learned Deputy Solicitor General, however, relied upon the
averments made in the counter affidavit and also the relevant
Fundamental Rules to submit that the petitioner could not be permitted
to join a post carrying lower pay scale. He submitted that the petitioner
ought to have intimated respondent No.6 about his application made to
respondent No.8 and for failure to do so, his resignation cannot be
considered as technical resignation and he would not be eligible for any
of the consequential benefits. He also placed reliance upon the judgment
of the Hon'ble Supreme Court in the case of Comptroller & Auditor
General of India and others Vs. Farid Sattar 1 for the proposition that
where the employee has chosen to join the post carrying lesser pay, then
he cannot again seek pay protection. He also referred to the judgment of
the Delhi High Court in the case of Deepak Kumar Vs. Office of
District and Sessions Judge (HQS) and others 2 for the proposition
that Circulars/Directions/OMs of Government have overriding effect
and the petitioner cannot seek consideration of his request for technical
resignation in violation of the principle of OM. He also referred to the
Office Memorandum dt.17.08.2016 where technical resignation has
been defined and the conditions to be fulfilled for acceptance of
(2000) 4 SCC 13
2016 LawSuit (Del) 6198
technical resignation are also prescribed. Therefore, according to him,
the petitioner's resignation cannot be treated as technical resignation and
the petitioner would have to forego all the benefits of technical
resignation as he has chosen to join respondent No.8 organisation that
too in the post carrying lesser pay than the post he has joined in CISF.
7. Having regard to the rival contentions and the material on record,
this Court finds that the petitioner was an unemployed youth at the time
when he has made the applications to both respondent No.6 as well as
respondent No.8. He has participated in the selection process of both the
organisations and it is also not in dispute that he has not been informed
to be successful in his attempts in the test written by him in respect of
LDC in respondent No.8 organisation. Therefore, it cannot be said that
the petitioner has faulted in not reporting that he has applied for the post
of LDC in Army Ordinance Depot when he was joining the CISF. It is
also not in dispute that it is after the lapse of nearly 6 years that the
provisional appointment letter has been issued by respondent No.8 in
favour of the petitioner. It is at this point of time that the petitioner had
informed respondent No.6 about his provisional selection. No doubt, the
Office Memorandum dt.17.08.2016 gives or provides the
guidelines/instructions for 'technical resignation' and it is stated therein
that the application would have to be made through proper channel for a
post in the same or some other Department and if the same is not made
and if a person is selected and the resignation is accepted as technical
resignation, the candidate would be eligible for the benefit of past
service. Resignation in other cases including where the competent
authority has not allowed the Government Servant to forward the
application through proper channel, will not be treated as technical
resignation and the benefit of past service will not be admissible to such
a candidate. Further, it is also provided that the benefit is also admissible
to Government Servants who have applied before joining the
Government service and on that account the application was not routed
through proper channel. The conditions prescribed for application of the
said clause is that the Government Servant should intimate the details of
such application immediately on his joining. The circumstances
mentioned in the said OM would be applicable had the petitioner known
about his selection and has chosen to opt for respondent No.6
organisation and not respondent No.8 organisation and reserved his right
to join respondent No.8 organisation subsequently in future. That is not
the case in this case. Since the petitioner had applied for the post in
respondent No.8 organisation much prior to his joining in respondent
No.6 organisation, there is no question of his intimation about his
unsuccessful attempts in the Army. As far as the Fundamental Rules
referred to in the guidelines for issuance of NOC to the trainees are
concerned, i.e., intimation for equivalent post may be accepted but not
for lower post, i.e., the argument of the learned Deputy Solicitor General
that the petitioner cannot be allowed to join a lower post, this Court is of
the opinion that such an interpretation is misplaced. Such a clause has
been put in place only to safeguard the interest of the employees so that
the employer may not post the employee in a lower post without passing
any reversion orders. However, if it is the choice of the employee to join
the lower post, such action cannot be stopped by the respondents. Even
in the case cited by the learned counsel for the petitioner, before the
Hon'ble Supreme Court, the employee had chosen to join the post
carrying lesser pay and the Hon'ble Supreme Court has held that where
it is the choice of the employee to join the lower post, he cannot seek
pay protection of the higher post. Therefore, the contention of the
learned Deputy Solicitor General is not acceptable.
8. In view of the above, this Court is of the opinion that the
resignation of the petitioner from respondent No.6 organisation to join
respondent No.8 organisation should be treated as technical resignation
in view of the specific and unique facts and circumstances of the case.
Even if it is felt that the Rules do not permit such acceptance, then the
matter shall have been referred to respondent No.2 for relaxation of the
said Rule. Such action has not been undertaken by the respondents. In
view of the same, this Court directs the respondents to accept the
resignation submitted by the petitioner as 'technical resignation' and
permit the petitioner to join respondent No.8 organisation with all
consequential benefits as per rules.
9. With the above directions, the Writ Petition is allowed. No order
as to costs.
10. Pending miscellaneous petitions, if any, in this Writ Petition shall
stand closed.
___________________________
JUSTICE T. MADHAVI DEVI
Date: 30.04.2024
Svv
