Telangana High Court
B. Somasekharamma vs The Secretary on 5 March, 2025
Author: P.Sam Koshy
Bench: P.Sam Koshy
IN THE HIGH COURT FOR THE STATE OF TELANGANA : HYDERABAD
***
WRIT PETITION (TR) NO.76 OF 2017
Between:
B.Somasekharamma, W/o.B.J.Christopher,
Aged 50 years, Extension Officer
O/o.Project Officer, Women Development and
Child Welfare Department, Collector's Office Complex,
Abids, Hyderabad.
R/o.Janapriya Apartment, Flat No.30B, Miyapur,
RR District, Hyderabad.
Petitioner
VERSUS
1. The State of AP represented by its Secretary to
Government, General Administration [Services]
Secretariat, Hyderabad. & 3 others.
Respondents
ORDER PRONOUNCED ON: 05.03.2025
THE HON'BLE SRI JUSTICE P.SAM KOSHY
AND
THE HON'BLE SRI JUSTICE NARSING RAO NANDIKONDA
1. Whether Reporters of Local newspapers
may be allowed to see the Judgments? : Yes/No
2. Whether the copies of judgment may be
marked to Law Reporters/Journals? : Yes/No.
3. Whether His Lordship wishes to
see the fair copy of the Judgment? : Yes/No.
_________________________________
NARSING RAO NANDIKONDA, J
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WP(TR) No.76 of 2017
* THE HON'BLE SRI JUSTICE P.SAM KOSHY
AND
THE HON'BLE SRI JUSTICE NARSING RAO NANDIKONDA
+ WRIT PETITION (TR) NO.76 OF 2017
% 05.03.2025
# Between:
B.Somasekharamma, W/o.B.J.Christopher,
Aged 50 years, Extension Officer
O/o.Project Officer, Women Development and
Child Welfare Department, Collector's Office Complex,
Abids, Hyderabad.
R/o.Janapriya Apartment, Flat No.30B, Miyapur,
RR District, Hyderabad.
Petitioner
VERSUS
1. The State of AP represented by its Secretary to
Government, General Administration [Services]
Secretariat, Hyderabad. & 3 others.
Respondents
! Counsel for Petitioner(s) : Sri M.Saleem
^Counsel for the respondent(s) : Ms.Shalini Lerned GP for Law &
Legislation (Services-II) appearing for
respondent No.3
<GIST:
> HEAD NOTE:
? Cases referred
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WP(TR) No.76 of 2017
THE HON'BLE SRI JUSTICE P.SAM KOSHY
AND
THE HON'BLE SRI JUSTICE NARSING RAO NANDIKONDA
WRIT PETITION (TR) NO.76 OF 2017
ORDER:
(per Hon'ble Sri Justice Narsing Rao Nandikonda)
This Writ Petition, under Article 226 of the Constitution of India is
filed seeking the following prayer:
"to declare the rule 30(d) of A.P.State Subordinate Service Rules
in so far as it relates to treating a person who is reappointed
after accepting resignation as a fresh appointment and further
declaring that he is not entitled to count any portion of service
benefits and concessions admissible under any rule or an order
as arbitrary illegal unconstitutional violating Article 14, 16 and
21 of the Constitution of India and set aside the same. And
declare the impugned G.O.Rt No.12, Women Development Child
Welfare Disable Welfare (Estt-A 1), Department dated
24.02.2009 issued by the 2ndrespondent in so far as it relates to
treating the reappointment of the applicant as fresh appointment
as Supervisor Grade-I after allowing the applicant to withdraw
her resignation is concerned as arbitrary illegal and
unconstitutional in violation of Articles 14, 16 and 21 of the
Constitution of India and set aside the same and issue
consequential directions directing the respondents to count the
previous service and continuity service of applicant without back
wages increments for the out of service period and fix the pay of
the applicant as per RPS along with increments and also direct
the respondents to consider the case of the applicant for
promotion to higher post on par with juniors with all
consequential benefits."
2. The brief facts of the case are that the petitioner was initially
appointed as Creche Teacher in Women and Child Welfare Department in
the year 1985 through Employment Notification. Subsequently, the
petitioner was selected for the post of Extension Officer, W&CW (Grade-I)
through Andhra Pradesh Public Service Commission (APPSC), Hyderabad
under direct recruitment, however the concerned authorities delayed nearly
five (5) years for giving appointment order after her selection by the APPSC
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due to non-production of Social Service Certificate in a proper format.
Subsequently, she submitted necessary certificate before the Secretary,
APPSC. Thereafter, respondent No.1 issued Memo No.906/Estt.A1/93-13,
dated 17.01.1997 instructing the Regional Deputy Director, Warangal to
issue posting orders to the petitioner as 'Extension Officer'. In pursuance of
the same, the Regional Deputy Director issued posting orders to the
petitioner, vide Proc.356/B/92, dated 17.03.1997. Aggrieved by the delay
in issuing appointment order, the petitioner requested the authorities
concerned to consider her appointment w.e.f., 1993 instead of 1998 on par
with similar selected persons recruited under the same notification.
Meanwhile, departmental proceedings were initiated against the petitioner
and a show-cause notice No.435/A2/2003, dated 18.10.2003, was issued
to her with regard to the administrative and financial irregularities
committed by her. Aggrieved by the said show-cause notice, the petitioner
out of frustration submitted resignation from service on 10.11.2003.
3. Mr. M.Saleem, learned counsel for the petitioner submits that
due to mental agony, frustration and depression meted out by the
petitioner and also continuance harassment meted out by her in the hands
of her husband, she applied for resignation on 10.11.2003. Without
application of mind and the same was accepted by the respondents on
24.11.2003 and issued proceedings vide proceedings No.435/A2/2000,
dated 24.11.2003. Thereafter, she made an application on 05.01.2004
before the respondents to withdraw her resignation and respondent No.1
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accepted her request for withdrawal of resignation and issued
G.O.Ms.No.12, Women Development Child Welfare & Disable Welfare (Estt-
A1) Department, dated 24.02.2009. Pursuant to the said G.O., respondent
No.4, the Regional Deputy Director issued proceedings No.191/E/2003,
dated 13.03.2009 permitting withdrawal of resignation and re-appointing
the petitioner as Supervisor Grade-I without any previous consequential
financial and service benefits.
4. Learned counsel for the petitioner further contended that
petitioner submitted her representation before the respondents for
withdrawal of her resignation, but the respondents without appreciating
her past service, have re-appointed without continuity of service and other
financial benefits. He further submitted that when the respondents have
accepted her withdrawal of resignation and allowed her to join duty, the
respondents cannot turn round and say that the petitioner is not eligible
for continuity of service. In as much as, such fresh appointment will arise
only, in case when the respondents have not accepted request of the
petitioner for withdrawal of resignation.
5. Learned counsel for the petitioner further contended that
petitioner was issued show-cause notice on 18.10.2003. The departmental
proceedings initiated against her were pending at the time of her
resignation. He further contended that acceptance of resignation while an
employee is under inquiry is not allowed as per A.P.Subordinate Rule 30,
clause (iii) of sub-rule (a) of the Rules, which clearly states that resignation
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of a Member of Service shall not be accepted against whom disciplinary
proceedings are instituted as per the provisions of Andhra Pradesh Civil
Services (Classification, Control & Appeal) Rule, 1991 or investigation,
inquiry or trial is initiated. Acceptance of resignation itself being against
the Rule and Law therefore, acceptance of resignation itself is not valid as
per the Rule and laws and the grant of fresh appointment of the petitioner
into service does not arise.
6. Learned counsel for the petitioner also contended that basically
disciplinary proceedings were pending when the petitioner's resignation
was accepted by the respondents on 24.11.2003 and the departmental
proceedings were concluded on 01.12.2003 after the acceptance of
resignation. This clearly indicates that the departmental proceedings
against the petitioner were pending when the petitioner made an
application for resignation and the same was accepted by the respondents
pending department proceedings. This is nothing but bad in law and
against the first proviso to Clause (iii) of sub-rule (a) of the Rule 30 of the
A.P.State & Subordinate Service Rules, 1996. He further submits that
during pendency of this writ petition, the petitioner retired from service on
30.09.2020 on attaining the age of superannuation as per Proceedings
No.3783/E1/2019, dated 22.11.2019 issued by the respondent No.4 and
due to pendency of writ petition, she is not receiving pensionary benefits till
date thereby she is facing serious financial difficulties and also suffering
from severe chronic kidney disease and cardiac problems. Hence learned
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counsel for the petitioner prays this Court to allow the writ petition with a
direction to the respondents to release the retirement benefits and other
consequential benefits.
7. Ms.M.Shalini, learned Government Pleader for Law &
Legislation (Services-II) appearing for respondent No.3 contended that the
petitioner's resignation was accepted by respondent No.4, Regional
Deputy Director, Hyderabad and issued Proceedings No.435/A2/2000,
dated 24.11.2003. Thereafter, the petitioner made a representation before
respondent No.1 to permit her to withdraw the resignation and the same
was allowed and instructed the authorities to issue re-appointment
orders without continuity of service, vide G.O.Ms.No.12, dated
24.02.2009. Accordingly, as per the instructions of respondent No.1,
fresh appointment orders were issued to the petitioner by respondent
No.4, Regional Deputy Director, Hyderabad, vide Proc.No.191/E/2003,
dated 13.03.2009 in terms of sub Rule (c) & (d) of Rule 30 A.P. State &
Subordinate Service Rules, 1996 and in the appointment order, dated
13.03.2009, it is clearly stated that the petitioner shall forfeit all her
previous service in Department and her service will be treated as fresh
candidate and her past service shall not be counted for any benefit or
concession under any Rule of law or order.
8. Learned Government Pleader further contended that the
petitioner was absent for duty from 13.03.2002 till she resigned to duty on
10.11.2003 and as per Service Register she has no leave at her credit and
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disciplinary proceedings were pending against her for financial
irregularities committed and for absconding to duty. She further submitted
that respondent No.1 issued G.O.Ms.No.12, dated 24.02.2009 specifying to
reappoint her as Supervisor Grade-I subject to conditions laid down under
sub-rule (c) and (d) of Rule 30 of the Andhra Pradesh State Subordinate
Service Rules, 1996, continuity of her service does not arise. Hence,
learned Government Pleader for respondents further submits that the writ
petition is devoid of merit and is liable to be dismissed.
9. Heard both sides. Perused the material on record.
10. The point that arises for consideration before this Bench is,
(i) whether the respondents have rightly accepted the resignation of
the petitioner when the departmental proceedings were pending
against the petitioner and (ii) whether the respondents have rightly
issued fresh appointment order after having accepted the
representation withdrawing the petitioner's resignation?
11. In Pramod Singh Chandravanshi v. Sri Som Prakash
Singh 1 this Court held that when the department proceedings are
pending, resignation should not be accepted. The relevant paragraph
No.25 of the order reads as under:
25. Thus, it is held that so long as departmental proceedings are
pending and not concluded, a resignation cannot be accepted.
From the evidence, as noted above, I had found that there was at
least one other departmental proceeding that was pending in which
there had been a recommendation for dismissal of the sole
respondent. That proceeding remains unconcluded. The sole
2014 SCC Online Pat 346 : AIR 2014 Pat 156 : (2014) 3 BBCJ 119
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respondent was aware of it having appeared in it. Thus, in my view,
in view of these facts, it is difficult to hold that had this fact been
brought to the notice of the DIG, DIG would have accepted the
resignation. To the contrary, from the order of the DIG itself, it is
apparent that had he been informed of this pending proceeding, he
would not have accepted the resignation. Thus, I can safely hold
that the resignation, as accepted by the DIG, was wholly without
jurisdiction as law did not permit him to accept the resignation
pending departmental proceeding.
12. Before proceeding further, it is imperative to extract the Sub
Rule (a) to (d) of Rule 30 of the Andhra Pradesh State and Subordinate
Service Rules, 1996.
"30. RESIGNATION:- (a) A member of a service may resign his
appointment and the 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
(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.
Provided that the resignation of a member of a service, who is placed under
suspension from service, pending investigation or enquiry into grave
charges or who is deemed to have been suspended under rule 8 of the
Andhra Pradesh Civil Services (Classification, Control and Appeal) Rules,
1991 shall not be accepted during the period of such suspension.
Provided further a member of a service may with draw his resignation
before it takes effect.
Provided also that no withdrawal of resignation shall be permitted except
with the sanction of the Government, if the withdrawal is made after the
resignation takes effect.
(b) If the resignation of a member of a 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. If the person is
permitted to withdraw his resignation after it has taken effect and is re-
appointed to the post from which he resigned, such reappointment shall be
subject to the conditions specified in sub-rules (c) and (d).
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(c) A member of service, shall, if he resigns his appointment, forfeit not
only the service rendered by him in the particular post held by him at the
time of resignation but all his previous service under the Government.
(d) The reappointment of a person, who has resigned from Government
service and who is re-appointed to any service, shall be treated in the same
way as a first appointment to such service by direct recruitment and all
rules governing such appointment shall apply; and on such re-
appointment, he shall not be entitled to count any portion of his previous
service for any benefit or concession admissible under any rule or order."
13. The main contention of the learned Government Pleader for
Services-II is that G.O.Rt.No.12, dated 24.02.2009 was issued after
considering the petitioner's request for withdrawal of resignation in terms
of Sub Rule (c) and (d) of Rule 30 of the Andhra Pradesh State Subordinate
Service Rules, 1996.
14. On perusal of G.O.Rt.No.12, dated 24.02.2009, it is clear that
the petitioner submitted her resignation as part of her reply to show-cause
notice, dated 18.10.2003 and other domestic reasons. Respondent No.1
having accepted the representation of the petitioner and permitted to
withdraw her resignation, then the question of giving fresh appointment to
her does not arise.
15. In Pramod Singh' case (supra), it was held that when the
departmental proceedings are pending against an employee, accepting of
resignation by the department is illegal. In the case on hand, both
counsel accepted the fact that departmental proceedings were pending
when the petitioner tendered her resignation and the respondents accepted
the same during the pendency of departmental proceedings. Thereafter
respondents concluded the departmental proceedings and imposed
punishment after acceptance of the resignation, which itself is illegal and
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contrary to law. Sub Rule (a) to (d) of Rule 30 of the Andhra Pradesh State
Subordinate Service Rules, 1996, clearly states that "Provided that the
resignation of a member of a service, who is placed under suspension
from service, pending investigation or enquiry into grave charges or
who is deemed to have been suspended under rule 8 of the Andhra
Pradesh Civil Services (Classification, Control and Appeal) Rules, 1991
shall not be accepted during the period of such suspension." By
applying the said rule, the very acceptance of the resignation is contrary to
law when the departmental proceedings are pending against the petitioner
and the respondents ought not to have accepted the resignation when the
departmental proceedings are pending against the petitioner. The
contention of the petitioner is that the respondents have accepted and
allowed the petitioner to withdraw the resignation and therefore it is
deemed to be the petitioner is in continuous service and all other previous
orders including accepting resignation is deemed to be non est in the eye of
law and the question of re-appointment does not arise. Therefore the
contention of the petitioner appears to be correct and is to be accepted.
Further, the very acceptance of resignation is illegal and contrary to law
and G.O.Rt No.12, Women Development Child Welfare Disable Welfare
(Estt-A 1), Department dated 24.02.2009 and the proceeding issued by
respondent No.1 are liable to be aside.
16. The very acceptance of the resignation was per se void and ab
initio as it was in violation of Rule 8 of the Telangana State Civil Services
(Classification, Control and Appeal) Rules, 1991. Thus, the acceptance of
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resignation was unsustainable and untenable under the said Rules. This
fact was brought to the notice of the higher authorities by the petitioner
with a request to withdraw her resignation. The higher authorities in turn,
realising the fact that the acceptance of resignation was bad, allowed the
prayer of the petitioner permitting withdrawal of resignation vide
proceedings dated 13.03.2009. The moment the resignation has been
permitted to be withdrawn by the authorities in the department, what is to
be taken note of is the consequence of it and which would relate back to
the stage of acceptance of resignation. The allowing of withdrawal of
resignation would lead to the acceptance of resignation not being in
existence any further in the record, nor can it be made use of adverse to
the interest of the employee. Once when the resignation has been
permitted to be withdrawn, the question of grant of re-appointment does
not arise at all. The employee, for all practical purposes, would have to be
treated as if in service and the acceptance of resignation order, not being in
acceptance, being given continuity of service to the petitioner from the date
of acceptance of resignation till it was permitted to be withdrawn. Hence,
the subsequent order passed by the authorities vide G.O.Rt.No.12, dated
24.02.2009 whereby, on the one hand, the higher authorities have
accepted the withdrawal of resignation and, on the other hand, has ordered
for re-appointment of petitioner, the latter part of the order projecting it as
a fresh employment or by way of re-appointment, is bad in law and
technically unsustainable under the Rules. Therefore, the impugned order,
to the aforesaid extent insofar as grant of re-appointment, is set aside and
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the petitioner for all practical purposes shall remain on the rolls of
respondents with continuity of service for the intervening period as well
and would also be entitled for all consequential benefits except for the
monetary benefits during the period of acceptance of resignation till it was
withdrawn by the higher authorities vide proceedings dated 13.03.2009.
17. Accordingly, this Writ Petition (TR) is allowed in-part and the
G.O.Rt No.12, dated 24.02.2009, issued by the respondent No.1 and so
also the subsequent proceeding No.191/E/2003, dated 13.03.2009 issued
by respondent No.4 are liable to be set aside and accordingly the
respondents are directed to treat the petitioner's service as continuous
service from the date of her initial appointment till the date of her
retirement and release all the pensionary and retirement benefits by taking
into account the petitioner's service from the date of her initial appointment
till the date of her retirement.
18. However, so far as monetary benefits are concerned, the
petitioner is not entitled to claim in the intervening period of acceptance of
resignation till it was withdrawn by the higher authorities vide proceedings,
dated 13.03.2009. But the pensionary benefits and all other retirement
benefits to the extent of the withdrawal of resignation holds good and the
retirement benefits shall be given to the petitioner within a period of three
(3) months from the date of this order, failing which the respondents are
liable to pay interest @ 6% on the entire eligible amount to the petitioner till
the date of realization of the said amount. The remaining later part of the
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impugned order is liable to be quashed. There shall be no order as to
costs.
Miscellaneous applications, if any pending, shall also stand closed.
______________________________
JUSTICE P.SAM KOSHY
_____________________________________________
JUSTICE NARSING RAO NANDIKONDA
Date: 05.03.2025.
YVL/SHA
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