DURGA PRASANNA GUPTA Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) The petitioner was appointed Law Officer in the Directorate of Mines and Minerals, Government of West Bengal by the order dated 19th April, 1965. The petitioner was appointed sub-stantially to that post though on probation for two years with effect from the date he actually joined the said post as Law Officer. The petitioner actually joined on 27th April, 1965. On 16th May, 1966 the petitioner tendered his resignation to the De-puly Secretary, Commerce and Industries Department, Government of West Bengal through the Chief Mining Officer, Government of West Bengal. In the said letter, the petitioner stated that his resignation might be accepted at an early date with a request to relieve him of his present post as early as possible. It : has been said on behalf of the respondents in the affi-davit-in-opposition that the said resignation was accepted by the then Minister of State on the 30th May, 1966. After submission of the resignation, the petitioner changed his mind and wrote a letter on 3rd June, 1966 to the Deputy Secretary, Commerce and Industries Department withdrawing his resignation. On 8th June, 1966 the Deputy Secretary to the Government of West Bengal, Commerce and Industries, Mines Branch forwarded a Notification accepting the petitioner's resignation from the post of the Law Officer. The petitioner was informed by the said letter that his resignation had been accepted with effect from 10th June, 1966. On 9th June, 1966 the petitioner was informed that the petitioner's resignation had already been accepted with effect from 10th June, 1966 and the Government expressed its inability to consider the petitioner's letter dated 3rd June, 1968 withdrawing his resignation. Upon these facts, the petitioner moved this Court under Article 226 of the Constitution.

(2.) Counsel for the petitioner contended that inasmuch as the resignation letter was withdrawn before the order communicating acceptance of the resignation was received by the petitioner, the petitioner was entitled to withdraw the said resignation and the respondents were required to consider the said withdrawal. In not having done so, it was urged that the respondents acted illegally. It was further submitted that inasmuch as the resignation was accepted with effect from June 10, 1966 the petitioner continued to be in the Government service until that date and, therefore, the petitioner had the right to withdraw the said resignation until that date. It was urged that the Government decision was not a decision until it was communicated. In the premises, inasmuch as no decision was communicated to the petitioner accepting the resignation of the petitioner prior to 3rd or 4th June, 1966, the pelitioner was enlitled to withdraw the letter of resignation. It was submitted further that the Government had acted illegally in accepting the resignation. Counsel for the petitioner drew my attention to the decision of the Supreme Court in the case of Jai Ram v. Union of India, . There it has been observed that it might be conceded that it was open to a servant, who had expressed a desire to retire from service and to his superior officer to give him the requisite permission, to change his mind subsequently and ask for cancellation of the permission thus obtained; but the Government servant should be allowed to do so as long as he continued in service and not after it had terminated. But where the service of the servant had ceased, because of the retirement he could not be held to have continued in his service, though at the time he was on post-retirement leave granted to him under special circumstances. It was urged by counsel for the petitioner on the basis of the authority of this aforesaid decision that in the instant case, firstly, the resignation was accepted from 10th June, 1966, therefore, the Government servant was entitled until that date to be considered to be in service and as he was in service until June 10, 1966 the Government servant was entitled to withdraw the resignation. I am however of the opinion that it cannot be contended that the resignation was accepted on 1 Oth J une, 1966. The resignation was accepted long before that and in the affidavit-in-opposition it had been stated that it was so accepted on 30th May, 1966. The fact that the resignation was effective from a future date does not, in my opinion, mean that the resignation was not accepted until that future date. Therefore, it is not possible to hold that until 10th June, 1966, the petitioner continued to be in service. In the premises, I am unable to accept the first contention urged in support of this application.

(3.) Counsel for the petitioner also relied on the Full Bench decision of the Allahabad High Court in the case of Ba-hori Lal Paliwal v. District Magistrate, Bulandshahr, There, a bye-election was held on a casual vacancy supposed to have been created by the acceptance of resignation of the former Chairman of a Town Area Committee. The Chairman had, however before his resignation was accepted by the District Magistrate, withdrawn it. In reply to the writ petition filed by the Chairman, questioning the order of the District Magistrate to hold the bye-election, it was contended that the election having been held it could only be set aside in accordance with the. provisions of the U. P. Town Areas Act or the rules framed thereunder, and hence the writ petition was not maintainable. It was held that as upon the validity of the acceptance of resignation depended the validity of the order to hold the bye-election and the bye-election itself, the petition was maintainable. The majority of the learned Judges of the Allahabad Full Bench observed that the Chairman of the Town Area Committee had, before the resignation was accepted, a right to withdraw it and he having done so, there was no resignation left which could be accepted by the District Magistrate. Hence, even after its withdrawal if the District Magistrate accepted the resignation, the purported acceptance of the resignation by the District Magistrate was a nullity and so was his communication to the Town Area Committee. The facts of that case, in my opinion, were entirely different. It is not necessary for me to refer in detail to the said judgment in considering this issue.