JUDGMENT
Garg, J.
1. This writ petition under Article 226 of the Constitution of India has been filed by the petitioner against the respondents on 5.4.91 with a prayer that the order dtd. 7.3.91 (Annex. 1) passed by respondent No. 2 by which resignation of the petitioner was accepted with effect from 20.10.84 may kindly be quashed and set aside and the respondents may be directed to treat the petitioner in their employment as if he never resigned from the service and he may be awarded ah consequential benefits; including pay fixation, seniority, further promotion etc, and any other appropriate relief which this Court deems just and proper in the facts and circumstances of the case may kindly be passed in favour of the petitioner.
2. It arises in the following circumstances:
(i) The petitioner was appointed as a Assistant Grade III (Accounts) in the pay scale of Rs. 290-485/- vide order dtd. 23.7.84 (Annex.3) passed by the Asstt. Manager for Sr. Regional Manager of the Corporation and was fixed at Rs. 290/- with all consequential admissible allowances and was posted at Bikaner.
(ii) In Pursuance of that appointment order the petitioner joined his duties on 14.8.84.
(iii) That after joining at Bikaner, the climate of Bikaner was not suitable to his health and therefore, he desired for his transfer from Bikaner to Kota, But his desire was not accepted by the respondents. Since climate of Bikaner was not suitable to the petitioner, it was impossible for the petitioner to work there. Under these circumstances, the petitioner tendered his resignation on 17.12.84, a copy whereof is marked as Anhex.4.
(IV) That resignation letter dtd. 17.12.84 (annex. 4) was forwarded by the Dist. Manager to the Senior Regional Manager(respondent No. 2) vide letter dtd. 14/15.1.85, a copy where of is marked as Annex.5. Since then with regard to dues of the petitioner/outstanding against him, some correspondence transpired and ultimately a letter dtd. 21.2.85 (annex.6) was written to the petitioner calling upon him to deposit a sum of Rs. 371.85/- by case or by a demand draft. The letter dtd. 21.2.85 further stated that resignation will only be accepted after the deposit of said sum. Another letter dtd. 23.4.85 (Annex.7) was also written to the same effect to the petitioner. Another letter dtd. 20.5.85 (Annex.8) was also written to the petitioner. In the letter (annex.6, 7 and 8), the is clear mention of the fact that “Your resignation will only be accepted after deposit of above said amount.”
(v) In continuance, another letter dtd. 20.3.86 (Annex.9) was addressed to the petitioner by the respondents and in that, it was further mentioned that resignation will only be accepted on deposition of the outstanding amount.
(vi) Thus from the above mentioned (acts, it is clear that the resignation letter dtd. 17.12.84 (Annex.4) was not accepted by respondents upto 20.3.86.
(vii) Thereafter the petitioner approached, Dist. Manager, Food Corporation of India, Bikaner and wanted to submit a letter recalling his resignation. However, the Dist. Manager declined to accept the same. In the aforesaid circumstances, the petitioner was left with no option except to send the same by a registered post and the letter withdrawing the resignation was sent by the petitioner on 29.5.90 (Annex.10).
(viii) The petitioner also gave telegram on 29.5.90.
(ix) Now the case of the petitioner is that since his resignation was not accepted upto 29.5.90, when he withdrew his resignation tendered earlier, therefore, he should be treated as continued in service of the Corporation and he also submitted a joining report on 29.5.90 (Annex.11), but he was not allowed to join. Thereafter the petitioner submitted yet another letter dtd. 29.5.90 (Annex.12 requesting the Dist. manager to permit him to join the duties. Thereafter the petitioner approached the Sr. Regional Magistrate, F.C.I., Jaipur through letter dtd.31.5.90 (Annex.13).
(x) With reference to his letter dtd.31.5.90 (Annex.13), the petitioner was asked to submit medical report/certificate etc. through letter dtd. 19/26.6.90 (Annex.14).
(xi) In compliance of the letter dtd. 19/26.6.90 (Annex. 14), the petitioner submitted medical report and affidavit as desired on 19.7.90. Medical report and affidavit are marked as Annex.15.
(xii) Since the petitioner was eager to join his duties, therefore, he further addressed a letter dtd. 30.8.90 (Annex. 16).
(xiii) Through letter dtd. 28.8.90 (Annex. 17), the petitioner was asked to submit the prescription slip in proof of having taken the treatment from Bombay doctor and through letter dtd. 30.11.90 (Annex. 19), the petitioner was informed by the respondents that the certificate submitted by him were not found complete proof of his treatment for a long period.
(xiv) Therefore through order dtd. 7.3.91 (Annex. 1), the respondents passed an order by which the resignation tendered by the petitioner from FCI services was accepted with effect from 20.10.84 (afternoon) and balance outstanding amount of Rs. 392.05 was waived off.
(xv) The order dtd. 7.3.91 (annex. 1) has been challenged in this writ petition.
3. A reply to the writ petition was filed by the respondents on 26.9.97 and the main contention of the respondents is that through appointment order dtd. 23.7.84 (annex. 3), the petitioner was appointed on probation for a period of one year from the date of appointment which was liable to be extended for further period upto one year and after completion of probation he was to be considered for confirmation on the post and during the period of probation he shall be liable to be discharged from service without any notice and reason and this fact has been concealed by the petitioner and, therefore, it is a case of suppression of material fact and on this ground along, the writ petition should be dismissed. Another ground taken by the respondents in that since he was on probation, his resignation letter was not required to be accepted and all the communications which were made by the respondents with the petitioner were made so that pressure may work on the petitioner and good sense may prevail upon him. Hence, this writ petition be dismissed.
4. The main submission of the learned counsel for the petitioner is that the impugned order dtd. 7.3.91 (Annex. 1) is wholly without jurisdiction in as much as resignation letter dtd. 17.5.84 was not acted upon until passing of the impugned order dtd. 7.3.91 and before that the petitioner had withdrawn his resignation through his letter dtd. 29.5.90 (Annex. 10) and therefore, on 7.3.91, there was no resignation alive to be acted upon by the respondents. Hence this order dtd. 7.3.91 should be set aside;
5. On the other hand, the learned counsel for the respondents submit that order dtd. 7.3.91 (Annex. 1) was passed only to make the position clear, other wise, the Department thought that after tendering of resignation through letter dtd. 17.12.84 (Annex. 4), since the petitioner was on probation, they treated their service to come to an end and, therefore, in these circumstances, the writ petition should be dismissed.
6. I have heard both and perused the record.
7. So far as legal position with respect to tendering or withdrawing resignation is concerned, for that the authority of Hon’ble Supreme Court in the case of Union of India v. Gopal Chandra Misra (1), may be referred to wherein the Hon’ble Supreme Court laid down following proposition:
“The general principle regarding resignation is that in the absence of a legal, contractual or constitutional bar, a ‘prospective’ resignation can be withdrawn at any time before it becomes effective when it operates to terminate the employment or the office-tenure of the resignor. This general rule is equally applicable to Government servants and constitutional functionaries. In the case of a Government servant/or functionary who cannot, under the conditions of his service/or office, by his own unilateral act of tendering resignation, give up his service/or office, normally, the tender of resignation becomes effective and his service/or office-tenure terminated, when it is accepted by the competent authority. In the case of a Judge of a High Court, who is a constitutional functionary and under proviso (a) to Article 217(1) has a unilateral right or privilege to resign his office, his resignation becomes effective and tenure terminated on the date from which he, of his own volition, chooses to quit office. If in terms of the writing under his hand addressed to the President, he resigns in praesenti, the resignation terminates his office-tenure forthwith and cannot, therefore, be withdrawn or revoked thereafter. But if e by such writing, chooses to resign from a future date, the act of resigning office is not complete’ because it does not terminate his tenure before such date and the judge can at any time before terminate of that prospective dale on which it was intended to be effective, withdraw it because the constitution does, not bar such withdrawal.”
8. In another latest judgment in the case of Shambhu Murari Sinha v. Project and Development India Ltd. (2), the Hon’ble Supreme Court held that in the absence of a legal, contractual or constitutional bar, a ‘prospective’ resignation can be withdrawn at any time before it becomes effective’ and it, becomes effective when it operates to terminate the employment or the officer- tenure of the resignor.
9. There is no dispute in this case on the point that resignation letter dtd. 17.12.84 (Annex. 4) was never accepted by the respondents upto 29.5.90, on which date, the petitioner withdrew his resignation tendered earlier. From the communications (Annex. 6), 7 8 and 9), it becomes also clear that the resignation letter tendered by the petitioner was under process in the office of the respondents and communications from both the sides were going on and in all the letters addressed by the respondents to the petitioner, it was stated that the resignation will only be accepted on deposition of some amount outstanding against the petitioner. To say that for all the purposes, since petitioner was on probation, therefore, the respondents though it that his service would come to an end, cannot be accepted. Since before passing the impugned order dtd. 7.3.91 (Annex. 1), the petitioner withdrew his resignation through letter dtd. 29.5.91 (annex. 1) cannot be sustained in view of the legal position propounded by the Hon’ble Supreme Court in the cases of Shambhu Murari Sinha and Union of India (supra) as before resignation letter was to be accepted, he withdrew the resignation latter. When this being the position, the impugned order dtd. 7.3.91 (Annex.1) cannot be sustained and is liable to be quashed.
10. The argument of the learned counsel for the respondents that for all purposes, the respondents treated his service as being terminated after tendering resignation by the petitioner vide letter dtd. 17.12.84 (Annex.4) would have been appreciated, had order dtd. 7.3.91 (Annex. 1) would not have been passed. Since from the order dtd. 7.3.91 (Annex.1) it becomes very much clear that through that order resignation of the petitioner was accepted. Therefore, it cannot be said that respondent though that the petitioner was not in service. Therefore, the plea of the respondent that he was not in service cannot be accepted.
11. There is also no dispute in this case on the point that after tendering resignation through letter dtd. 17.12.84 (Annex. 4), the petitioner did not work in the office of respondents and had only applied for joining the duties on 29.5.90 but he was not allowed to join the duties and from 17.12.84 to 29.5.90, the petitioner would not be treated on duty, but with effect from 29.5.90, he should be deemed to be on duty for all purposes.
12. Since tendering of resignation becomes effective when it is accepted by the competent authority and since in this case, it was not accepted before the petitioner withdrew his resignation therefore, the order dtd. 7.3.91 (Annex. 1) cannot be sustained and is liable to be quashed and the writ petition filed by the petitioner is liable to be allowed.
Accordingly, this writ petition is allowed. The order dtd. 7.3.91 (Annex.1) passed by respondent No. 2 by which resignation of the petitioner was accepted w.e.f. 20.10.84 is quashed. The respondents are directed to treat the petitioner on duty with effect from 29.5.90 and since 29.5.90, he will be entitled to all consequential benefit.
Cost made easy.