DEVI DAYAL Vs. STATE OF HARYANA

JUDGEMENT

(1.) Petitioner had joined service as a Functional Manager in the Industries Department of Haryana by way of direct recruitment w.e.f. August 14, 1985. He was promoted as a General Manager on March 20, 1996. Respondent No. 5, Dayal Singh, had also joined service in the Industries Department of Haryana as Functional Manager, by way of direct recruitment, on June 17, 1983. He was promoted as General Manager vide order dated December 16, 1993 (copy whereof is at Annexure P.2), on ad hoc basis. He tendered his resignation vide application dated March 27, 1996 (copy at Annexure P.3). It was mentioned in the application that he wanted to contest the forthcoming Haryana Assembly Election from Sadhaura Constituency. He gave only 24 hours' notice for acceptance of his resignation by depositing one month's salary through a Bank draft. The resignation was accepted by the competent authority on April 3, 1996 w.e.f. March 27, 1996. A copy of the order has been appended as Annexure P.4. Respondent No. 5 did contest the Haryana Legislative Assembly election in 1996 from Sadhaura Constituency on Haryana Vikas Party ticket, but was defeated. Respondent No. 5 is stated to have applied for permission for withdrawing the resignation after he was defeated in the Assembly Election. An order was issued on August 12, 1996 taking back Respondent No. 5 in service on the advice of the Chief Secretary. The order dated August 12, 1996 (Annexure P.7) reads as under:-

(2.) Respondent No. 5 pursuant to the aforesaid order joined as General Manager, on August 16, 1996. Vide order dated January 5, 1997, passed by the Commissioner and Secretary to Government of Haryana, Department of Industries (copy at Annexure P.10) respondent No. 5 was granted leave of kind due for the period from March 28, 1996 to August 15, 1996 and his break in service for the said period was regularised. The order of condoning the break in service has affected the petitioner inasmuch as respondent No. 5 has been treated senior to the petitioner as General Manager. The action of the respondents in accepting the withdrawal of the resignation, reinstating in service and condoning the period of break in service vide order dated January 5, 1997 (Annexure P.10) has been made the subject matter of challenge in this writ petition. It is not necessary for us to go into the detail of the arguments of the learned counsel for the parties inasmuch as the matter is concluded against the respondents by a Full Bench of this Court in Kartar Singh v. State of Haryana etc., 1997 3 SCT 47 C.W.P. No. 6580 of 1994, decided on February 24, 1998 , in which both of us were the members.

(3.) It may be observed here that when the impugned order of reinstating the petitioner in service after accepting the withdrawal of the resignation was passed on August 12, 1996 and the order dated January 5, 1997 condoning the break in service was passed, a Division Bench judgment of this Court in Ram Kumar Mann v. The State of Haryana etc. (C.W.P. No. 1154 of 1994, decided on August 10, 1984 held the field in which a view had been taken that if in some other similarly situated persons' cases resignations had been allowed to be withdrawn after the incumbents had been unsuccessful in elections, similar order should have been passed by the State Government in the case of Ram Kumar Mann inasmuch as there was a discrimination. This judgment of the Division Bench has been reversed by the Apex Court on February 20, 1997 and the judgment is reported as The State of Haryana and ors. v. Ram Kumar Mann, 1997 3 SCT 135. A Full Bench of this Court has also taken the view that once the resignation has been accepted to allow an incumbent to contest an election, he cannot be allowed to withdraw the same after having been unsuccessful in the election. Apart from that it has been held by the Full Bench that as per instructions of the Government, dated May 4, 1960, as reiterated by the State Government on November 21, 1996, such an incumbent, whose resignation has been accepted for contesting the election, cannot be taken back in service, but he can only apply for job in the Government as an ordinary citizen.