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Supreme Court of India
Balram Gupta vs Union Of India & Anr on 1 September, 1987
Equivalent citations: 1987 AIR 2354, 1987 SCR (3)1173
Author: S Mukharji
Bench: Mukharji, Sabyasachi (J)

PETITIONER:

BALRAM GUPTA

Vs.

RESPONDENT:

UNION OF INDIA & ANR.

DATE OF JUDGMENT01/09/1987

BENCH:

MUKHARJI, SABYASACHI (J)

BENCH:

MUKHARJI, SABYASACHI (J)

OZA, G.L. (J)

CITATION:

1987 AIR 2354 1987 SCR (3)1173

1987 SCC Supl. 228 JT 1987 (3) 480

1987 SCALE (2)521

CITATOR INFO :

F 1989 SC1083 (8)

ACT:

Central Civil Services (Pension) Rules, 1972: Rule 48A(4)--Notice of voluntary retirement--Withdrawal of--When permissible.

Civil Services: Civil Servant--Withdrawal of notice of voluntary retirement--Whether permissible.

HEADNOTE:

The appellant offered to resign voluntarily from his service by letter dated 24th December. 1980 with effect from 31st March, 1981 under Rule 48A of the Central Civil Serv- ices (Pension) Rules, 1972, having rendered by then more than 20 years service. The notice period of three months was to commence from 1st January, 1981. By an order dated 20th January, 1981 he was allowed to retire voluntarily prospec- tively with effect from the afternoon of 31st March, 1981. On account of personal requests from the staff members the appellant, however, changed his mind and by his letter dated 31st January, 1981 requested the authorities that his resignation might be treated as cancelled and the notice given by him be treated as withdrawn. He was not allowed to do so and was relieved by an order dated 31st March, 1981. The respondent No. 2 informed him that in view of the activ- ities of the appellant in his capacity as the Secretary of the Employees' Association it has been found appropriate to ease him out from service.

The High Court dismissed the appellant's writ petition on the ground that sub-rule (4) of Rule 48A of the Pension Rules enables the Government servant to withdraw his appli- cation for voluntary retirement only with the approval of the Government. The approval having not been given the rule had been complied with.

In this appeal by special leave, it was contended for the appellant that if Rule 48(A) be read as consistent with the constitutional requirements of reasonableness, which is a well accepted rule of construction, then the Government could not withhold approval to the withdrawal of 1174

resignation without any rhyme or reason. For the respondents it was contended that a Government servant was not entitled to demand as of right permission to withdraw the letter of Voluntary retirement, it could only be given as a matter of grace, that it was not in the knowledge of the respondent as to what prompted the appellant to request the withdrawal, that the application for withdrawal was considered in the light of the guidelines laid down by O.M. No. 24(57)-E-V-32 dated 24th December, 1952 for considering and deciding in the matter of accepting or refusing the withdrawals of notice of voluntary retirement and the request was turned down appropriately, and that once the notice was given it became operative immediately.

Allowing the appeal,

HELD: 1.1 There was no valid reason for withholding the permission by the respondent to the appellant to withdraw his notice of voluntary retirement. [1182H-1183A] 1.2 On the principle of general law that in the absence of a legal, contractual or constitutional bar an intimation in writing sent to the appropriate authority by an incum- bent, of his intention or proposal to resign his office/post from a future specified date, can be withdrawn by him at any time before it effects termination of the tenure of the office/post or employment, the offer of relinquishment in the instant case, could have been withdrawn by the appellant before the date it became effective if sub-rule (4) of Rule 48-A was not there. [1180G-1181A]

Union of India v. Shri Gopal Chandra Misra and others, [1978] 3 S.C.R. 12, referred to.

1.3 Sub-rule (4) of Role 48-A of the Pension Rules enjoins that a Government servant shall be precluded from withdrawing his notice except with the specific approval of the appointing authority. The proviso to that sub-rule stipulates that the request for withdrawal shall be made before the intended date of his retirement. That had been done in the instant case. [1178H-1179A]

1.4 Approval under r. 48A(4) is not ipse dixit of the approving authority. The approving authority who has the statutory authority must act reasonably and rationally. The guidelines laid down by O.M. No. 24(57)-E-V-32 dated 24.12.1952 for considering and deciding in the matter of accepting or refusing the withdrawal of notices of voluntary 1175

retirement are that ordinarily permission should not be granted unless the officer concerned is in a position to show that there has been a material change in the circum- stances in consideration of which the notice was originally given. There has been compliance with these guidelines in the instant case, because the appellant has indicated that there was a change in the circumstances. In the notice for resignation he had not given any reason. There was nothing wrong in this. He has stated that the persistent and person- al requests from the staff members and relations had changed his attitude towards continuing in Government service and induced him to withdraw the notice. This was not an unrea- sonable reason. [1181G, 1179FG, 1182E, 1183AB, 1182F, 1181H]

2. It cannot be said that once notice was given it became operative immediately, if it was received by the Government and automatically brought about the dissolution of contract after the expiry of notice period. The dissolu- tion in the instant case, would have been brought about only on the date indicated in the notice, i.e. 31st March, 1981, upto which the appellant was and is a Government employee. There could be no unilateral termination of the same prior thereto. He was at liberty, and entitled independently without sub-rule (4) of Rule 48-A of the Pension Rules, as a Government servant to withdraw his notice of voluntary retirement. In this respect it stands at par with letter of resignation. [1180A-C]

3. In the modern age the Court should not put embargo upon people's choice or freedom. If the administration had made arrangements acting on his resignation or letter of retirement to make other employee available for his job, that would have been another matter but the appellant's offer to retire and withdrawal of the same happened in so quick succession that it cannot be said that any administra- tive set up or arrangement was affected. [1182FG] Raj Kumar v. Union of India, [1968] 3 SCR, 857, referred to.

4. There should not be arbitrariness and hostile dis- crimination in Government's approach to its employees. The Court cannot but condemn circuitous ways to ease out uncom- fortable employees. As a model employer the Government must conduct itself with high probity and candour with its em- ployees. In the modern and uncertain age it is very diffi- cult to arrange one's future with any amount of certainty, a certain amount of flexibility is required, and if such flexibility does not jeopardize Government or administra- tion, administration should be graceful enough to respond and acknowledge the flexibility of human mind and attitude. [1181BC, 1183C, B]

1176

Air India etc. etc. v. Nergesh Meerza & Ors. etc. etc., [1982] 1 S.C.R. 438, referred to.

5. The appellant in the instant case, is entitled to be put back to his job with all the consequential benefits being treated as in the job from 31st of March, 1981. [1183DE]

JUDGMENT:

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2057 of 1987.

From the Judgment and Order dated 13.7.1987 of the Delhi High Court in Civil Writ No. 1604 of 1981. G.D. Gupta and Ashok K. Mahajan for the Appellant. G.S. Shah, Hemant Sharma and C.V. Subba Rao for the Respondents.

The Judgment of the Court was delivered by SABYASACHI MUKHARJI, J. Special leave granted. In 1980 the appellant was working as an Accountant in the Photo Division of the Ministry of Information and Broad- casting, New Delhi. By that time the appellant had rendered more than 20 years' service. By the letter dated 24th of December, 1980 the appellant sought voluntary retirement from the service after having completed more than 20 years' service. The said letter dated 24th of December, 1980 which was addressed to the Director, Photo Division, Ministry of Information and Broadcasting stated, inter alia, as follows:-

"I beg to seek voluntary retirement

on 31.3. 1981. I had joined government service on 4th August, 1958, thus I have completed more than 20 years service. My notice period may please be treated w.e.f. 1.1. 1981.

The appellant states that three months notice was re- quired by the rules of service to which the appellant be- longed. The said voluntary retirement was sought under Rule 48-A of the Central Civil Services (Pension) Rules, 1972 (hereinafter referred to as 'the Pension Rules'). The Rule 48-A provides as follows:

"48-A. Retirement on completion of 20

years' qualifying service:

1177

(1) At any time after a Government

servant has completed twenty years' qualifying service, he may, by giving notice of not less than three months in writing to the appointing authority, retire from service.

(2) The notice of voluntary retire-

ment given under sub-rule (1) shall require acceptance by the appointing authority.

Provided that where the appointing

authority does not refuse to grant the permis- sion for retirement before the expiry of the period specified in the said notice, the retirement shall become effective from the date of expiry of the said period."

Sub-rule (4) of Rule 48-A prevents with- drawal of resignation letter except with the approval of the authority. The said sub-rule (4-) provides as follows:

"(4) A Government servant, who has

elected to retire under this rule and has given the necessary notice to that effect to the appointing authority, shall be precluded from withdrawing his notice except with the specific approval of such authority."

Acting on the basis of the letter of retirement, by an order dated 20th of January, 198 1 the appellant was allowed to retire voluntarily from service prospectively with effect from the afternoon of 31st March, 198 1. The said order dated 20th January, 198 1 read as follows: "Shri Bal Ram Gupta, permanent Upper

Division Clerk and officiating Accountant in the Photo Division is allowed to retire volun- tarily with effect from the afternoon of 31st March, 1981, in accordance with the provisions contained in the Ministry of Home Affairs, Department of Personnel and Administrative Reforms O .M. No. 250 13 7 77 Estt. (A) dated 26th August, 1977."

In the meantime, however, the appellant states that on account of persistent and personal requests from the staff members, the appellant had changed his mind and consequently had by his letter dated 31st January, 1981 withdrawn his notice of voluntary retirement. He stated in his letter that he had dropped the idea of seeking voluntary 1178

retirement and he, therefore, requested the authorities that his request for resignation might be treated as cancelled and the notice given by him treated as withdrawn. The appel- lant, however, was not allowed to do so. The appellant was relieved by an order dated 31st March, 1981. It was stated in the said order that his request contained in the letter dated 31st January, 1981 for withdrawal of his application for voluntary retirement "has also been considered and found not acceptable".

The appellant contended before the authorities and the High Court that in view of his letter dated 31st January, 1981 seeking withdrawal of his letter of resignation, the impugned order dated 31st March, 198 1 retiring the appel- lant was illegal and invalid. The appellant, however, was asked to leave the office immediately. The appellant was thereafter sent the gratuity form for claiming his retiring benefits. The appellant met respondent No. 2 and requested him that his case may be considered on merits and the de- partment should not "hush up" the matters like this but the same was to no avail. The respondent No. 2, the Director, Photo Division, Ministry of Information and Broadcasting clearly informed the appellant that in view of the activi- ties of the appellant in his capacity as the Secretary of the Photo Division Employees Association (Registered), it had been found appropriate to "ease him out" from the serv- ice. In spite of the several representations nothing hap- pened, the appellant moved the High Court by a writ peti- tion. The Delhi High Court dismissed the appellant's writ petition on the ground that the rule enabled the government servant to withdraw his application for voluntary retirement only with the approval of the Government. The approval had not been given by the Government. According to the High Court the rule had been complied with. The Government had considered afresh the application of the appellant and Government found no reasons to interfere with the refusal to permit the appellant to withdraw his resignation. The appel- lant thereafter has come up in appeal to this Court. The facts, therefore, are that the appellant offered to resign from his service by the letter dated 24th December, 1980 with effect from 31st March, 1981 and according to the appellant his resignation would have been effective, if accepted, only from 31st March, 1981. Before the resignation could have become effective the appellant withdrew the application by the letter dated 31st of January, 1981, long before, according to the appellant, the date the resignation could have been effective. In the meantime, however, prior thereto on the 20th of January, 1981 the respondent has purported to accept the resignation with effect from 31st March, 1981. The appropriate rule sub-rule (4) of 1179

Rule 48-A of the Pension Rules as set out hereinbefore enjoins that a government servant shall be precluded from withdrawing his notice except with the specific approval of such authority. The proviso stipulates that the request for withdrawal shall be made before the intended date of his retirement. That had been done. The approval of the authori- ty was, however, not given. Therefore, the normal rule which prevails in certain cases that a person can withdraw his resignation before it is effective would not apply in full force to a case of this nature because here the Government servant cannot withdraw except with the approval of such authority.

Learned counsel appearing for the appellant contended before us that this rule was bad as violative of the Funda- mental Rights of citizens. Challenge to the rule was however not made before the High Court on this ground. He, however, contended that if the rule be read as consistent with the constitutional requirements of reasonableness which is well .accepted rule of construction, then the Government could not withhold approval to the withdrawal of resignation without any rhyme or reason. The counter-affidavit filed in this proceeding by Shri Majgaonkar, who is the respondent No. 2 in this appeal reveals very little as to why the sanction was withheld. It is stated in paragraph 5 of the said affidavit that it was not in the knowledge of the respondent as to what prompted the appellant to request the withdrawal. What is important in this connection to be borne in mind is not what prompted the desire for withdrawal but what is important is what prompted the government from withholding the withdrawal. In this respect the government affidavit certainly lacks candour. In appropriate cases where the Government desires that public servant who seeks voluntarily to resign should not be allowed to continue, it is open to the Government to state those reasons. There may be hundred and one situations where a situation or opportu- nity like this may be used by the Government to ease out a disgruntled or reluctant or troublesome employee. It was further stated that there were guidelines which were laid down by the O.M. No. 24(57)-E-V-32 dated 24.12.1952 for considering and deciding in the matter of accepting or refusing the withdrawals of notices of voluntary retirement. What part of the guidelines was violated by the appellant was not indicated or spelled out in the said affidavit. We would advert to certain guidelines and examine if these were violated later. It is only stated that the application for withdrawal was considered in the light of the said guide- lines and the request was turned down appropriately. It was further stated that the notice of termination of service or of retirement is a unilateral act whereby the officer commu- nicates his intention to dissolve the

1180

contract of service and unlike resignation it operates without the consent of the other party. It is, therefore, submitted that once notice was given it became operative immediately, if it was received by the Government and auto- matically brought about the dissolution of contract after the expiry of the notice period. We are unable to accept this submission and this position. The dissolution would be brought about only on the date indicated i.e., 31st of March, 1981, upto that the -appellant was and is a Govern- ment employee. There is no unilateral termination of the same prior thereto. He is at liberty, and entitled independ- ently without sub-rule (4) of Rule 48-A of the Pension Rules, as a Government servant, to withdraw his notice of voluntary retirement. In this respect it stands at par with letter of resignation.

This question arose in the case of one Shri Satish Chandra, then a Judge in the High Court of Allahabad in Union of India v. Shri Gopal Chandra Misra and others, [1978] 3 S.C.R. 12. There the second respondent Shri Satish Chandra wrote to the President of India, on May 7, 1977, intimating his resignation from the office of Judge of the Allahabad High Court, with effect from 1st of August, 1977. On July 15, 1977, he again wrote to the President, revoking his earlier communication, and commenced deciding matters in Court from July 16, 1977. On 1st of August, 1977 the first respondent Shri Misra, an advocate of the said High Court filed a writ petition under Article 226 of the Constitution contending that the resignation of Shri Satish Chandra having been duly communicated to the President of India in accordance with Article 217(1) Proviso (a) of the Constitu- tion was final and irrevocable, and that the continuance of said Shri Satish Chandra as a Judge of the High Court there- after, was an usurpation of public office. The High Court allowed the petition holding that Shri Satish Chandra was not competent to revoke his resignation letter. On appeal this Court held that the resigning office necessarily in- volved relinquishment of the office which implied cessation or termination of, or cutting as under from the office. A complete and effective act of resigning office is one which severs the link of the resigner with his office and termi- nates its tenure. In the context of Article 217(1) this assumes the character of a decisive test, because the ex- pression "resign his office" occurs in a proviso which excepts or qualifies the substantive clause fixing the office tenure of a judge upto the age of 62 years. It was further reiterated that in the absence of a legal, contrac- tual or constitutional bar, an intimation in writing sent to the appropriate authority by an incumbent, of his intention or proposal to resign his office/post from a future speci- fied date, can be withdrawn by him at any time before it becomes effective i.e., before it effects termination of the tenure of the office/post, or employment. This general 1181

rule equally applies to Government servants and constitu- tional functionaries, this Court reiterated. The other peculiar essence of Article 2 17 which was discussed need not detain us in the facts of this case. On the principle of general law the offer to relinquishment could have been withdrawn by the appellant before the date it became effec- tive if sub-rule (4) of Rule 48-A was not there. In Air India etc. etc. v. Nergesh Meerza & Ors. etc. etc., [1982] 1 S.C.R. 438, there the Court struck down certain provisions of Air India Employees Service Regula- tions. We are not concerned with the actual controversy. But the Court reiterated that there should not be arbitrariness and hostile discrimination in Government's approach to its employees. On behalf of the respondent it was submitted that a Government servant was not entitled to demand as of right, permission to withdraw the letter of voluntary retirement, it could only be given as a matter of grace. Our attention was also drawn to the observations of this Court in Raj Kumar v. Union of India, [1968] 3 S.C.R. 857. There the Court reiterated that till the resignation was accepted by the appropriate authority in consonance with the rules governing the acceptance, the public servant concerned has locus poenitentiae but not thereafter. Undue delay in inti- mating to the public servant concerned the action taken on the letter of resignation may justify an inference that resignation had not been accepted. But in the facts of the instant case the resignation from the Government servant was to take effect at a subsequent date prospectively and the withdrawal was long before that date. Therefore, the appel- lant, in our opinion, had locus. As mentioned hereinbefore the main question was whether the sub-rule (4) of Rule 48-A was valid and if so whether the power exercised under the sub-rule (4) of Rule 48-A was proper. In the view we have taken it is not necessary, in our opinion, to decide whether subrule (4) of Rule 48-A was valid or not. It may be a salutary requirement that a Government servant cannot with- draw a letter of resignation or of voluntary retirement at his sweet will and put the Government into difficulties by writing letters of resignation or retirement and withdrawing the same immediately without rhyme or reasons. Therefore, for the purpose of appeal we do not propose to consider the question whether sub-rule (4) of Rule 48-A of the Pension Rules is valid or not. If properly exercised the power of the government may be a salutary rule. Approval, however, is not ipse dixit of the approving authority. The approving authority who has the statutory authority must act reasona- bly and rationally. The only reason put forward here is that the appellant had not indicated his reasons for withdrawal. This, in our opinion, was sufficiently indicated that he was prevailed upon by his friends and the appellant had a second look at the matter. This is

1182

not an unreasonable reason. The guidelines indicated are as follows:

"(2) A question has been raised

whether a Government servant who has given to the appropriate authority notice of retirement under the para 2(2) above has any right subse- quently (but during the currency of the no- tice) to withdraw the same and return to duty. The question has been considered carefully and the conclusion reached is that the Government servant has no such right. There would, howev- er, be no objection to permission being given to such a Government servant, on consideration of the circumstances of his case to withdraw the notice given by him, but ordinarily such permission should not be granted unless he is in a position to show that there has been a material change in the circumstances in con- sideration of which the notice was originally given.

Where the notice of retirement has been served by Government on the Government servant, it may be withdrawn if so desired for adequate reasons, provided the Government servant con- cerned is agreeable."

In this case the guidelines are that ordinarily permis- sion should not be granted unless the Officer concerned is in a position to show that there has been a material change in the circumstances in consideration of which the notice was originally given. In the facts of the instant case such indication has been given. The appellant has stated that on the persistent and personal requests of the staff members he had dropped the idea of seeking voluntary retirement. We do not see how this could not be a good and valid reason. It is true that he was resigning and in the notice for resignation he had not given any reason except to state that he sought voluntary retirement. We see nothing wrong in this. In the modern age we should not put embargo upon people's choice or freedom. If, however, the administration had made arrange- ments acting on his resignation or letter of retirement to make other employee available for his job, that would be another matter but the appellant's offer to retire and withdrawal of the same happened in so quick succession that it cannot be said that any administrative set up or manage- ment was affected. The administration has now taken a long time by its own attitude to communicate the matter. For this purpose the respondent is to blame and not the appellant. We hold, therefore, that there was no valid reason for withhold-

1183

ing the permission,by the respondent. We hold further that there has been compliance with the guidelines because the appellant has indicated that there was a change in the circumstances, namely, the persistent and personal requests from the staff members and relations which changed his attitude towards continuing in Government service and in- duced the appellant to withdraw the notice. In the modern and uncertain age it is very difficult to arrange one's future with any amount of certainty, a certain amount of flexibility is required, and if such flexibility does not jeopardize Government or administration, administration should be graceful enough to respond and acknowledge the flexibility of human mind and attitude and allow the appel- lant to withdraw his letter of retirement in the facts and circumstances of this case. Much complications which had arisen could have been thus avoided by such graceful atti- tude. The court cannot but condemn circuitous ways "to ease out" uncomfortable employees. As a model employer the gov- ernment must conduct itself with high probity and candour with its employees.

In the aforesaid view of the matter, we are unable to sustain the judgment and order of the High Court of Delhi dated 13th of July, 198 1 and the same are, therefore, set aside. The appeal is accordingly allowed with costs and the appellant is entitled to be put back to his job with all the consequential benefits being treated as in the job from 31st of March, 1981.

P.S.S. Appeal

allowed.

1184