HUKUMAT RAI Vs. STATE OF GUJARAT

JUDGEMENT

(1.) On selection by the Gujarat Public Service Commission the petitioner was appointed on probation as a Medical Officer Class II in Gujarat Public Health Service in the pay scale of Rs. 425-850. In course of time he successfully completed the probation period and was allowed to cross the Efficiency Bar with effect from 1/03/1971 vide Annexure H to the petition. It then appears that by an order dated 18/03/1978 Annexure IV the Government was pleased to appoint the petitioner as the District Family Planning Medical Officer in Class I in the pay scale of Rs. 500-1250 on probation for a period of two years. The petitioner completed his probation period and was confirmed in service in the said post. Thereafter by a letter dated 15/09/1975 Annexure VIII the petitioner tendered his resignation with effect from 16/09/1975. Instead of giving one months notice as required by the relevant Rules he deposited one months salary in the Government Treasury at Surat in lieu of notice. In the said letter of resignation he stated that no departmental inquiry was pending against him and no Government dues were outstanding as on that date. This letter of resignation was addressed to the Director of Health Services (Health Section) Public Health Department Government of Gujarat. After the receipt of this letter a reply dated 25/11/1976 Annexure IX was received from the office of the Director of Health Services stating that the notice pay deposited by the petitioner by challan was insufficient as it was not inclusive of all allowances and that till the balance was paid. the resignation could not be forwarded to the Government for acceptance. It thus becomes clear from this letter written on behalf of the Director of Health Services that the petitioners letter of resignation was not forwarded to the Government that is the appointing authority as it did not comply with the relevant rules in that the notice pay deposited by the petitioner fell short of the allowance received by the petitioner at the relevant point of time. The petitioner instead of depositing the balance of the amount as required by the aforesaid letter of 25/11/1976 decided to withdraw his resignation as is clear from the communication dated 18/01/1977 Annexure XI. By the said letter addressed to the Director of Health Services the petitioner in no uncertain terms stated that he withdrew the resignation tendered by him by his letter dated 15/09/1975. He also mentioned in the said letter that he was entitled to withdraw his resignation because it had not been accepted as yet by the appointing authority as he had failed to deposit the balance of the amount as directed by the communication dated 25/11/1976. It appears that it was only after the receipt of this letter from the petitioner that the Director forwarded his letter of resignation to the Government for acceptance on 28/01/1977 vide paragraph 11 of the affidavit-in-reply of Shri C. M. Kothari dated 17th March 1981. From the the above facts two things clearly emerge namely (i) the letter of resignation was not forwarded to the appointing authority; and (ii) it was forwarded for acceptance to the appointing authority for the first time after the petitioner had written the letter of 18/01/1977 withdrawing the resignation.

(2.) The governing Rule is Rule 33-A of the Bombay Civil Services Rules as amended by the third amendment of 1974. The relevant part of Rule 33-A reads as under:

(3.) It was next contended on behalf of the respondents that there was no provision in the rule for withdrawal of resignation and therefore the letter of withdrawal dated 18/01/1977 could validly be ignored by the State Government. Sub-rule (5) of Rule 33-A quoted above states that any notice of resignation from service shall not be permitted to be withdrawn after it has become effective except on exceptional grounds and in public interest. This Rule therefore lays down that even in the case where the resignation has become effective if can be permitted to withdrawn on exceptional grounds or in public interest. In the instant case the resignation had not become effective because it was received by the appointing authority on 28/01/1977 that is a few days after it was withdrawn by the petitioner. Having regard to the language of Clause (5) of Rule 33-A it can be validly implied that an incumbent can withdraw his resignation at any time before it is accepted or becomes effective by efflux of time. If any authority is needed to support this proposition reference may be made to Raj Kumar v. Union of India A.I.R. 1969 S. C. 180. In paragraph 5 of the said judgment Their Lords hips of the Supreme Court have stated the proposition of law in the following words :