Court No. - 58
Case :- WRIT - A No. - 15994 of 2018 Petitioner :- Sunil Kumar Respondent :- Union Of India And 2 Others Counsel for Petitioner :- Ashok Kumar Tripathi (Now Ashok Tripathi) Counsel for Respondent :- A.S.G.I.
Hon'ble Ashwani Kumar Mishra,J.
This petition is directed against an order dated 17.5.2018, whereby petitioner's representation for revocation of his resignation has been rejected. It appears that petitioner was initially appointed as Constable GD in CRPF on 21.2.2011 and having worked for 26 days, he submitted his resignation on 3.3.2011, which was accepted by authority competent on 17.3.2011. An application for revocation of resignation was filed on 4.5.2011. This application was rejected. A writ petition filed against such order was also dismissed. Special appeal thereafter was filed by the petitioner, which came to be allowed on 18.12.2012 on the ground that the order refusing to accept petitioner's prayer for revocation was exparte. The order dated 18.12.2012 passed in Special Appeal No.338 of 2012 reads as under:-
"Without going into the merits of the contention of the petitioner/appellant with regard to the effect of Rule 26(4), we are of the opinion that if the petitioner could not be heard in respect of the writ petition and if there was sufficient cause for non appearance, and because the effect of Rule 26(4) has not been examined in the earlier decision on merits, the restoration application should have been examined for sufficiency of cause shown for non-appearance.
An order passed behind the back of a petitioner, even on merits, is nevertheless ex-parte, and if there is sufficient cause for non-appearance, the person behind whose back the order has been passed is entitled to apply for restoration and consequent hearing.
Under these circumstances, we allow this appeal and set aside the order dated 17.1.2012. The matter will be re-examined by the learned Single Judge."
Pursuant to the aforesaid order, this Court has remitted back the matter to respondent no.2 vide following orders passed in Writ Petition No.73720 of 2011:-
"A bare perusal of the aforesaid rule clearly indicates that the period provided for withdrawal of the resignation is not more than 90 days. Under such circumstances, the observation made in the impugned order that more than 7 months have expired is incorrect, inasmuch as admittedly, the application dated 11.04.2011 was moved by the petitioner which was rejected on 23.04.2011, was certainly within the period of 90 days as provided under Rule 26(4)(iii) of the CCS (Pension) Rules, 1972. In such view of the matter it would be appropriate that the matter be reconsidered by the respondent No.2, who has passed the impugned order dated 04.11.2011. Consequently, the impugned order dated 04.11.2011 is set aside. Matter is remitted back to respondent No.2 who shall consider and decide the same on its own merits strictly in accordance with law without being any influence or observation made by this Court in this order. The petitioner is at liberty to file fresh representation for this purpose along with certified copy of this order which may be decided by the respondent No.2 preferably within a period of 4 months from the date of production of certified copy of this order. "
It is pursuant to the writ court's order that the claim of petitioner has been re-considered and rejected. The prayer for revocation of resignation had to be examined in accordance with rule 26(4) (iii) of the CCS (Pension) Rules, 1972, which is reproduced hereinafter:-
"The appointing authority may permit a person to withdraw his resignation in the public interest on the following conditions, namely:-
1. That the resignation was tendered by the Government servant for some compelling reasons which did not involve any reflection on his integrity, efficiency or conduct and the request for withdrawal of the resignation has been made as a result of a material change in the circumstrances which originally compelled him to tender the resignation;
2. That during the period intervening between the date on which the resignation became effective and the date from which the request for withdrawal was made, the conduct of the person concerned was in no way improper;
3. That the period of absence from duty between the date on which the resignation became effective and the date on which the person is allowed to resume duty as a result of permission to withdraw the resignation is not more than ninety days;
4. That the post, which was vacated by the Government servant on the acceptance of his resignation or any other comparable post, is available."
The authority concerned has rejected petitioner's prayer on the ground that petitioner has not been confirmed in service. His status has been shown to be a temporary government servant at the time when he submitted his resignation. There is nothing on record to show that the finding returned by the authority is incorrect. The appointment letter is also brought on record as Annexure-1, which clearly mentions petitioner's appointment as being on temporary basis. The authority has observed that the provisions contained under rule 26 would not be available to a temporary government servant.
In the facts and circumstances, this Court finds that petitioner was a temporary government servant, who has only worked for 26 days. His prayer for revocation of resignation, therefore, does not appear to have been rejected on illegal and arbitrary grounds. No interference in the matter is called for.
Writ petition is, accordingly, dismissed.
Order Date :- 31.7.2018 Ashok Kr.