L.F. Thomas vs Union of India (UOI) and Others

Kochu Thommen, J.—The Petitioner who was an Assistant Sub Inspector in the Central Industrial Security Force submitted his resignation by Ext. P-1, dated 3rd September 1976 requesting that he be relieved from his post on 30th September 1976 A.N. This was on some sudden fit of emotion which he came to regret later but not immediately. He sought to withdraw the resignation by Ext. P-2 dated, 8th March 1978 but it was too late, for, in the meantime his resignation had been accepted by the Commandant of the Central Industrial Security Force by Ext. R-1, dated 4th October 1976. On the face of it is too late for the Petitioner to withdraw the resignation and he ought to be content with the fate brought about by his own voluntary action. However, the Petitioner says that his resignation has not been accepted by a competent officer and that he ought to be therefore treated as still in service. He contends that he is entitled to withdraw his resignation which he has done by Ext. P-2.

The Petitioner''s counsel Sri Ramakumar submits that Ext. R-1 shows that the resignation was accepted by the Commandant who was not the Petitioner''s appointing authority and he was therefore incompetent to accept the resignation. This, counsel says, is the effect of Rule 55 of the Central Industrial Security Force Rules, 1969 (''the Rules''). Counsel points out that the Petitioner was appointed by the Deputy Inspector General of the Central Industrial Security Force. He alone was therefore the competent authority under Rule 55 to accept his resignation.

It is true that the Petitioner was appointed by Deputy Inspector General. That was in 1972. The Deputy Inspector General is no longer the appointing authority, as Rule 11 which regulates the power of appointment was amended with effect from 28th February 1976 conferring the power of appointment to the rank of Sub Inspector, Assistant Sub Inspector, Head Security Guard, etc., upon the Commandant, Accordingly as from that date the Commandant became the appointing authority. On the date of Ext. R-1 by which the resignation was accepted, the Commandant was the person competent to make appointments to the post held by the Petitioner.

Sri Ramakumar submits that the amendment was not retrospective and the power to appoint was conferred upon the Commandant only prospectively. Consequently he was not the appointing authority on the date on which the Petitioner was appointed. Counsel therefore states that the Commandant was incompetent under Rule 55 to accept the Petitioner''s resignation. This argument is sought to be fortified by reference to Krishnakumar v. Divisional Assistant Electrical Engineer 1979 (2) S.L.R. 291, where the Supreme Court considered the effect of Article 311(1) of the Constitution of India and stated as follows:

Whether or not an authority is subsrdinate in rank to another has to be determined with reference to the state of affairs existing on the date of appointment. It is at that point of time that the constitutional guarantee under Article 311(1) becomes available to the person holding, for example a civil post under the Union Government that he shall not be removed or dismissed by an authority subordinate to that which appointed him. The subsequent authorization made in favour of Respondent 1 in regard to making appointments to the post held by the Appellant cannot confer upon Respondent 1 the power to remove him. On the date of the Appellant''s appointment as a Train Lighting Inspector, Respondent 1 had no power to make that appointment. He cannot have, therefore, the power to remove him.

This observation was made with reference to the protection guaranteed under Article 311(1) of the Constitution which is neither in language nor in substance in pari materia to Rule 55. They operate on totally different planes dealing with totally different matters. Article 311(1) reads:

No person who is a member of a civil service of the Union or an all-India service or a civil service of a State or holds a civil post under the Union or a State shall be dismissed or removed by an authority subordinate to that by which he was appointed.

The emphasis is clear. No civil servant shall be dismissed or removed by an authority subordinate to that by which he was appointed. It is that protection which is referred to in the decision of the Supreme Court. By authorising a junior officer to make appointment to the post subsequently, he does not assume equality in status with the person who appointed the civil servant. This aspect is discussed by the Supreme Court in the following words:

Besides, delegation of the power to make a particular appointment does not enhance or improve the hierarchical status of the delegate. An Officer subordinate to another will net become his equal in rank by reason of his coming to possess some of the powers of that another. The Divisional Engineer, in other words, does not cease to be subordinate in rank to the Chief Electrical Engineer merely because the Jotter�s power to make appointments to certain posts has been delegated to him.

(ibid).

None of these considerations arises in the construction of Rule 55 which does not deal with punishment, but with acceptance of voluntary resignations. This is the fundamental distinction between the protection guaranteed under Article 311(1) and the authorisation under Rule 55(I) this rule does not say that the resignation should be accepted by no authority subordinate to that by which the Officer was appointed. If that way the wording of Rule 55 the observation of the Supreme Court in the context of Article 311 would have been apposite. Bat Rule 55 is differently worded. For, it says:

Resignation.-(1) he resignation of a member of the Force shall be accepted only by the officer who has power to make appointments to the rank or post hold by such member.

(2) * * * * *

The officer who accepted the resignation must be competent on the date of acceptance to make appointments to the rank or post held by the member who submitted the resignation. That was the position with regard to the Commandant. He was competent on the date of the acceptance of the resignation to make appointments to the rank or post held by die Petitioner. Rule 55 was in terms satisfied when the resignation was accepted by the Commandant. The argument to the contrary fails. The Original Petition is accordingly dismissed. No costs.