Dr. Dinesh Purohit Vs. State of Rajasthan and Others - Court Judgment

Excerpt:
service law - voluntary retirement--withdrawal--employee has a right to withdraw his resignation letter before its acceptance.;writ petition allowed - section 2(k), 2(1), 7 & 40 & juvenile justice (care and protection of children) rules, 2007, rule 12 & 98 & juvenile justice act, 1986, section 2(h): [altamas kabir & cyriac joseph, jj] determination as to juvenile - appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - appellant was arrested on 30.11.1998 when the 1986 act was in force and under clause (h) of section 2 a juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years - it is with the enactment of the juvenile justice act, 2000, that in section 2(k) a juvenile or child was defined to mean a child who had not completed eighteen years of a ge which was given prospective prospect - appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the juvenile justice act, 2000, came into force - juvenile act, of 2000 has been given retrospective effect by rule 12 of juvenile justice rule, 2007 - as such, accused has to be treated as juvenile under the said act. orderchauhan, j.1. the instant writ petition has been tiled for quashing the order dated 31.7.2000, by which the resignation of the petitioner has been accepted inspite of its withdrawal prior to the date of acceptance.(2), though the matter was listed today after notice but with the consent of the learned counsel for the parties, it was heard finally.(3). the facts and circumstances giving rise to this case are that the petitioner, who was an employee of the respondents, preferred application dated 21.4.1999 to the respondents to permit him to retire voluntarily with effect from 31.7.99. the respondents did not pass any order on the said application, thus petitioner submitted a reminder dated 1.2.2000 to accept his application for voluntary retirement, but even then no action was taken. further reminder was submitted on 1.5.2000 but in vain. petitioner filed an application dated 2.6.2000 stating therein that as the respondents were not willing to accept his resignation, he withdrew his initial application' dated 21.4.99 and other reminders; thus, he was willing to continue in service till he reaches the age of superannuation in april, 2001. the said application dated 2.6.2000 (annex. 3) was received by the respondents and forwarded to the competent authority but without considering the same, petitioner was served the order dated 31.7.2000 that his application for voluntary retirement had been accepted with effect from 31.7.2000. hence this petition.(4). admittedly, petitioner had filed the application for voluntary retirement on 21.4.999 to go retire w.e.f. 31.7.99. there was no occasion for the respondents to remain inactive for a period of more than fifteen months in accepting his application whereas the statutory rules require only three months' notice moreso, when petitioner had already reached near the age of superannuation as he would retire in april, 2001, he had a valid reason to withdraw his application for voluntary retirement. he specifically gave this reason in his application dated 2.6.2000 and once the application for resignation had been withdrawn giving satisfactory explanation/reason, the order dated 31.7.2000 could not have been passed,(5). the law on the issue is crystal clear and the legal position which emerges out from the catena of decisions of the hon'ble supreme court is that an employee has a right to withdraw his resignation letter before its acceptance and in case the resignation is tendered with a stipulation to be effective from a future date, he can withdraw it even after its acceptance but prior to the date on which the resignation was to be made effective (vide raj kumar vs, union of india & ors. (1); union of india vs. gopal chandra (2); p. kasilingam vs. p.s.g. college of technology (3); balram gupta vs. union of india & ors. (4); punjab national bank vs. p.k. mittal (5); moti ram vs. pararndeo & anr. (6); the power financial corporation ltd. vs. pramod kumarbhatia (7); nand keshav irasand vs. indian farmers fertilizers co-operative societies ltd. & anr. (8) and j.n. srivastava vs. union of india & anr. (9).(6). a similar view has been reiterated by the hon'ble apex court in shambhu murari sinha vs. project & development india & anr. (10), wherein the hon'ble apex court held that the resignation, inspite of its acceptance, can be withdrawn before the effective date.(7). in union of india & anr. vs. wg. comm. t, parthasarlhy (11), the hon'ble supreme court held that even if the policy of the government provides that once the resignation is submitted by the employee and he was full aware of the fact that he cannot seek for cancellation of the application, such policy will be destructive of the right of the employee in law to withdraw his request for premature retirement before it ever becomes operative and effective and effected termination of his status and relation with department. the court observed as under:-'the reliance placed upon the so-called policy decision which obligated the respondent to furnish a certificate to the extent that he was fully aware of the fact that he cannot later seek for cancellation of the application once made for premature retirement cannot, in our view, be destructive of the right of the respondent, in law, to withdraw his request for premature retirement before it ever becomes operative and effective and effected termination of his status and relation with the department. when the legal position is that much clear, it would be futile for the appellants to base their rights on some policy decision of the department or a mere certificate of the respondent being aware of a particular position which has no sanctity or basis in law to destroy such rights which otherwise inhered in him and available in law. no such deprivation of a substantive right to a person can be denied except on the basis of any statutory provision or rule or regulation. there being none brought to our notice in this case, the claim of the appellants cannot be countenanced in our hands. even that apart the reasoning of the high court that the case of the respondent will not be covered by the type or nature of the mischief sought to be curbed by the so-called policy decision also cannot be said to suffer any conformity in law, to warrant our interference.'(8). therefore, in view of the above, petitioner had a right to withdraw his application for voluntary retirement and once he has exercised the same, the respondents were bound to consider the same. thus, there was no justification for the respondents to pass the impugned order. thus, petition succeeds and is allowed. the impugned order dated 31.7.2000 is hereby quashed. petitioner shall be deemed in continuous service of the respondents. however, he shall be entitled for 50% of the back wages. there shall he no order as to costs.

Judgment:
ORDER

Chauhan, J.

1. The instant writ petition has been Tiled for quashing the order dated 31.7.2000, by which the resignation of the petitioner has been accepted inspite of its withdrawal prior to the date of acceptance.

(2), Though the matter was listed today after notice but with the consent of the learned counsel for the parties, it was heard finally.

(3). The facts and circumstances giving rise to this case are that the petitioner, who was an employee of the respondents, preferred application dated 21.4.1999 to the respondents to permit him to retire voluntarily with effect from 31.7.99. The respondents did not pass any order on the said application, thus petitioner submitted a reminder dated 1.2.2000 to accept his application for voluntary retirement, but even then no action was taken. Further reminder was submitted on 1.5.2000 but in vain. Petitioner filed an application dated 2.6.2000 stating therein that as the respondents were not willing to accept his resignation, he Withdrew his initial application' dated 21.4.99 and other reminders; thus, he was willing to continue in service till he reaches the age of superannuation in April, 2001. The said application dated 2.6.2000 (Annex. 3) was received by the respondents and forwarded to the Competent Authority but without considering the same, petitioner was served the order dated 31.7.2000 that his application for voluntary retirement had been accepted with effect from 31.7.2000. Hence this petition.

(4). Admittedly, petitioner had filed the application for voluntary retirement on 21.4.999 to go retire w.e.f. 31.7.99. There was no occasion for the respondents to remain inactive for a period of more than fifteen months in accepting his application whereas the statutory rules require only three months' notice Moreso, when petitioner had already reached near the age of superannuation as he would retire in April, 2001, he had a valid reason to withdraw his application for voluntary retirement. He specifically gave this reason in his application dated 2.6.2000 and once the application for resignation had been withdrawn giving satisfactory explanation/reason, the order dated 31.7.2000 could not have been passed,

(5). The law on the issue is crystal clear and the legal position which emerges out from the catena of decisions of the Hon'ble Supreme Court is that an employee has a right to withdraw his resignation letter before its acceptance and in case the resignation is tendered with a stipulation to be effective from a future date, he can withdraw it even after its acceptance but prior to the date on which the resignation was to be made effective (Vide Raj Kumar vs, Union of India & Ors. (1); Union of India vs. Gopal Chandra (2); P. Kasilingam vs. P.S.G. College of Technology (3); Balram Gupta vs. Union of India & Ors. (4); Punjab National Bank vs. P.K. Mittal (5); Moti Ram vs. Pararndeo & Anr. (6); The Power Financial Corporation Ltd. vs. Pramod KumarBhatia (7); Nand Keshav Irasand vs. Indian Farmers Fertilizers Co-operative Societies Ltd. & Anr. (8) and J.N. Srivastava vs. Union of India & Anr. (9).

(6). A similar view has been reiterated by the Hon'ble Apex Court in Shambhu Murari Sinha vs. Project & Development India & Anr. (10), wherein the Hon'ble Apex Court held that the resignation, inspite of its acceptance, can be withdrawn before the effective date.

(7). In Union of India & Anr. vs. Wg. Comm. T, Parthasarlhy (11), the Hon'ble Supreme Court held that even if the policy of the Government provides that once the resignation is submitted by the employee and he was full aware of the fact that he cannot seek for cancellation of the application, such policy will be destructive of the right of the employee in law to withdraw his request for premature retirement before it ever becomes operative and effective and effected termination of his status and relation with department. The Court observed as under:-

'The reliance placed upon the so-called policy decision which obligated the respondent to furnish a certificate to the extent that he was fully aware of the fact that he cannot later seek for cancellation of the application once made for premature retirement cannot, in our view, be destructive of the right of the respondent, in law, to withdraw his request for premature retirement before it ever becomes operative and effective and effected termination of his status and relation with the department. When the legal position is that much clear, it would be futile for the appellants to base their rights on some policy decision of the department or a mere certificate of the respondent being aware of a particular position which has no sanctity or basis in law to destroy such rights which otherwise inhered in him and available in law. No such deprivation of a substantive right to a person can be denied except on the basis of any statutory provision or rule or regulation. There being none brought to our notice in this case, the claim of the appellants cannot be countenanced in our hands. Even that apart the reasoning of the High Court that the case of the respondent will not be covered by the type or nature of the mischief sought to be curbed by the so-called policy decision also cannot be said to suffer any conformity in law, to warrant our interference.'

(8). Therefore, in view of the above, petitioner had a right to withdraw his application for voluntary retirement and once he has exercised the same, the respondents were bound to consider the same. Thus, there was no justification for the respondents to pass the impugned order. Thus, petition succeeds and is allowed. The impugned order dated 31.7.2000 is hereby quashed. Petitioner shall be deemed in continuous service of the respondents. However, he shall be entitled for 50% of the back wages. There shall he no order as to costs.