Mageta Dakua vs Secretary to Govt. of Orissa, Finance Department and Others

G.K. Misra, C.J.—Facts are not in dispute. By Annexure.1 dated 29.12.1947 the Petitioner was temporarily appointed by the Commercial Tax Officer, Ganjam to work as Sweeper cum Watcher in the Commercial Tax Office, Berhampur. He was confirmed by Annexure-2 on 2.11.1949. By Annexure-B dated 5.10.1967 the Petitioner submitted his resignation. On 26.10.1967 he withdrew the resignation by Annexure-F. On 29.10.1967 the resignation was accepted by Annexure-A. The Petitioner filed appeals and representations which were dismissed and his memorial before the Government is still pending. The Petitioner challenges the legality of Annexure-A in this writ application under Article 226 of the Constitution.

Mr. A.B. Misra on behalf of the Petitioner contends that after the resignation (Annexure-B) was withdrawn by Annexure-F on 26-10-1967 opposite parties had no jurisdiction to accept the resignation Annexure-A on 29-10-1967.

The learned Standing Counsel, on the other hand, contends that even if the application for withdrawal of resignation was received before the resignation was accepted the Petitioner cannot claim an absolute right to withdraw his resignation. It was within the discretion of the appointing authority not to permit withdrawal of the resignation. He further contends that the writ application is liable to, be dismissed on account of inordinate delay.

All these contentions require careful examination.

The learned standing Counsel placed reliance on Jwala Prasad Vs. State of Uttar Pradesh and Others, , in support of his contention that it was within the discretion of the appointing authority not to permit withdrawal of the resignation. A Bench of the Allahabad High Court observed thus:

Even if his withdrawal of resignation application had been received before the resignation was accepted, he could not claim an absolute right to withdraw his resignation. The resignation was unconditional, and whether he would be permitted to withdraw that, resignation was a matter within the discretion of the appointing authority.

This decision was disapproved in Bahori Lal Paliwal Vs. District Magistrate, Bulandshahr and Another, . The learned Standing Counsel should not have cited the earlier decision which stands overruled.

That apart, the contention is unsound. There are no rules under Article 309 of the Constitution or any executive instruction relating to withdrawal of application for resignation. In Raj Kumar Vs. Union of India (UOI), , their Lordships held:

Till the resignation is accepted by the appropriate authority in consonance with the rules governing the acceptance, the public servant concerned has locus poenitentiae but not thereafter.

This decision was followed in Raj Narain Vs. Indira Nehru Gandhi and Another, . Identical matter was considered in Narendranath Tripathy v. The Director of Public Instruction 1971 (1) C.W.R. 336 and Abhaya Charan Patnaik v. The State of Orissa and Ors. 39 (1973) C.L.T. 50, and the same view was taken.

It is, therefore, clear that in the absence of any rules or executive instruction to the contrary it is open to the Government servant to withdraw the resignation before its acceptance. In this case the Petitioner withdrew his resignation on 26-10-1967 prior to its acceptance on 29-10-1967. Annexure-A is ultra vires. The application for resignation having been withdrawn there is nothing for acceptance before the competent authority. Annexure-A is liable to be quashed.

The learned Standing Counsel cited Roshan Lal Tandon Vs. Union of India (UOI), , in support of his contention that the Government employee has no vested contractual right in regard to terms of service and that once an employee is appointed to his post he acquires a status and his rights and obligations are no longer determined by consent of both parties but by statute or statutory rules which may be altered unilaterally by the Government. It is difficult to appreciate why this decision was cited. There is no controversy in this case that the Government could unilate rany alter the conditions of service subsequent to the entry of the Petitioner into service. We uphold the contention urged by Mr. Misra.

It is now necessary to examine the contention of the learned Standing Counsel that the writ application is liable to be dismissed as it was filed after inordinate delay. To appreciate this contention certain material dates may be noted.

On 29th October, 1967 the resignation was accepted. On 27th of March, 1968 the Petitioner filed a representation before the Commissioner of Commercial Taxes. In schedule A of the Orissa Civil Services (Classification, Control and Appeal) Rules. 1962 (hereinafter to be referred to as the Rules) the authority to whom an appeal would lie against various penalties has been indicated. The Petitioner is a Class IV servant. In case of employees serving in any office of the Head of the Department if the penalty of termination of service is imposed by any other junior officer subordinate to the Head of the Department the appeal would lie to the Head of the Department. In this case the resignation was accepted by the appointing authority (Commercial Tax Officer). The Head of the Department is the Commissioner of Commercial Taxes, Orissa and against the order accepting resignation appeal lay to the Commissioner. The Commissioner should have treated the representation of the Petitioner made to him on 27-3-1968 as an appeal. Without doing so he rejected the representation on 12-7-1968 and directed the Petitioner to file an appeal before the Assistant Commissioner of Commercial Taxes who had no jurisdiction to entertain an appeal. In accordance with the direction the Petitioner filed an appeal before the Assistant Commissioner on 31-7-1968 which was rejected by the Assistant Commissioner on 21.1-1969. The Petitioner filed a representation before the Commissioner on l0-2-1969 which should have been treated as an appeal. The Commissioner rejected the same on 30-1-1971. The Petitioner filed a memorial before the Government under Rule 31 of the Rules and the same is still pending.

It would thus appear that all through the Petitioner acted with promptness. He lost no time. The Commissioner exercised his jurisdiction illegally in passing an order on 12-7 -1968 that he had no jurisdiction and the Petitioner should file an appeal before the Assistant Commissioner who in fact was not the appellate Authority. The Commissioner should have gone into the merits of the matter and followed the law and without doing so rejected the representation filed by the Petitioner on 10.2-1969. Though there is clear statutory provision that a memorial lies to the Governor the same has been kept pending for mere than three years. The Petitioner filed the writ application on 8.5.1974 when he was helpless and got no information from the appropriate forum. It does not look well in the mouth of the opposite parties to complain of delay and laches on the part of the Petitioner though really they themselves were responsible for the delay and evinced gross callousness in not disposing of the appeal and memorial expenditiously.

In Bishnu Charan Mohanty v. State of Orissa and Ors. ILR 1973 Cutt. 339, seven propositions were laid down as to what considerations are to be kept in mind while determining whether a writ application is to be dismissed on account of laches and delay. The third proposition was to the following effect:

The important circumstances to be borne in mind in an such cases are: the length of the delay, and the nature of the facts done during the interval which might affect either party and cause a balance of justice or injustice in taking the one course or the other so far as relates to the remedy.

The seventh proposition was:

No hard-and-fast rule can be laid down. Each case is to be determined on its own facts and circumstances.

As has been indicated, in the factual analysis the Petitioner was all through vigilant and alert to save his rights. He pursued the remedies by way of appeal and memorial as prescribed in the Rules framed under Article 309 of the Constitution. The memorial to the Government is still pending. There has been no delay or laches on his part in the facts - and circumstances of this case. We overrule the contention of the learned Standing Counsel on this score.

In the result, the writ application is allowed with costs. Hearing fee of Rs. 100/ -. Writ of certiorari be issued quashing Annexure-A dated 28-10-1967. The Petitioner shall be deemed to be continuing in service. He will be entitled to arrears of salary and other service benefits available to him in law.

S.K. Ray, J.

I agree.