V.N. Gaur, Member (A):

The applicant in this case is aggrieved by the action of the respondents in not allowing her to withdraw her resignation tendered on 18.02.2009. Brief facts of the case are that the applicant was offered appointment as Specialist Grade-II (Cardiology) under respondent no.2 vide letter dated 07.08.2008 issued by respondent no.1. On the request of the applicant dated 28.01.2009 for extension of time for joining, the respondent no.1 informed her that the offer of appointment dated 07.08.2008 would lapse on 07.02.2009 on expiry of six months. The applicant then submitted her joining report on 06.02.2009 to respondent no.2. After 12 days, vide letter dated 18.02.2009 the applicant submitted her resignation stating as follows:

To

The Medical Superintendent,

Dr. R.M.L. Hospital,

New Delhi.

Subj: Resignation from Specialist post.

Respected Sir,

Due to certain personal reasons I will not be able to continue as Specialist [Cardiology]. Kindly accept my resignation with immediate effect 18.2.09 (F/N)

Sincerely yours

Sd/-

(Dr. Arima Nigam.

2. Again on 30.03.2009 the applicant wrote the following letter to respondent no.1, which is reproduced below:

To

The Secretary Health,

Nirman Bhawan,

New Delhi.

Subj: Request for withdrawal of resignation by Dr. Arima Nigam [Cardiogist], RML Hospital, New Delhi.

Respected Sir,

I, Dr. Arima Nigam, joined as specialist [Cardiologist] at Dr. RML Hospital on 6/2/09 (A/N) but due to certain unfortunate and unmanageable family and personal circumstances I had to submit my resignation on 18/2/09. Somehow I have managed to come out of my predicament. I therefore, request you to allow me to withdraw my resignation and rejoin my duties.

Thanking you,

Sincerely yours

Sd/-

(Dr. Arima Nigam.

Date: 30/03/09

3. The applicant had stopped attending to her duties with effect from the date of resignation. According to the applicant as she did not receive any communication about the decision of respondents on her letter dated 30.03.2009, she submitted a representation on 18.03.2012 to respondent no.1. In response she received a letter dated 19.04.2012 intimating that her application dated 30.03.2009 requesting for withdrawal of resignation was examined/considered in this Ministry, but the same has not been acceded to. The applicant has thereafter filed this OA, seeking the following reliefs:

(a) Call for the relevant file(s)/record(s) of the respondents:

(b) Declare the Order No.A.12025/08/2005-CHS-IV dated 21st October, 2009 [Annexure-A impugned) passed by the respondent No.1, as illegal, arbitrary and discriminatory and quash the same.

(c) Declare that the applicant is entitled to withdraw her resignation dated 18.2.2009 as requested vide her request/letter dated 30.3.2009 and she is entitled for all consequential benefits, viz., rejoining her duties as Specialist Gr.II (Cardiology) under the respondent No.2, notional fixation of pay and perks, continuation in service, seniority, etc.

4. Learned counsel of the applicant in his submission referred to the clarification given in the Chapter on Resignation in Swamys book on Establishment and Administration, which states as follows:

A resignation becomes effective when it is accepted and the Government servant is relieved of his duties. If a Government servant who had submitted a resignation, sends an intimation in writing to the appointing authority withdrawing his earlier letter of resignation before its acceptance by the appointing authority, the resignation will be deemed to have been automatically withdrawn and there is no question of accepting the resignation.

It was argued that the applicant had submitted her resignation on 18.02.2009 but she was never relieved from her duties nor any decision on her resignation letter was communicated before she submitted the letter of withdrawal of resignation. On the basis of the information obtained through RTI by the applicant, the learned counsel underlined the fact that the resignation was finally accepted by the competent authority only on 16.10.2009. The extracts from the noting on the concerned file also show that respondent no.1 had received letter of withdrawal of resignation dated 30.03.2009 even before the letter of resignation dated 18.02.2009 of the applicant was forwarded by respondent no.2 to respondent no.1. On the basis of another set of information obtained by the applicant under RTI the learned counsel stressed on the fact that the decision of the competent authority was conveyed by respondent no.1 to respondent no.2 vide letter dated 21.10.2009 but a copy of the same was not sent to the applicant. The respondent no.2 also never informed the applicant about the acceptance of the resignation of the applicant. The applicant had been contacting the concerned authority to allow her to resume duties as a Specialist Grade-II (Cardiology) under respondent no.2 but she was neither allowed to join her duties nor communicated any decision with regard to her resignation. The learned counsel argued that as the applicant was never informed about the outcome of her request dated 30.03.2009 and she could know about it only from the letter dated 19.04.2012 sent to her from the office of respondent no.1, thus, there was no delay on the part of the applicant in approaching this Tribunal for redressal of her grievance. However, as an abandoned caution applicant has filed MA-3241/2012 for the condonation of delay.

5. Further stressing on the rule position, the learned counsel stated that the provision with regard to the withdrawal of resignation was that if a Government servant who had submitted a resignation, sends an intimation in writing to the appointing authority withdrawing his earlier letter of resignation before its acceptance by the appointing authority, the resignation will be deemed to have been automatically withdrawn and there is no question of accepting the resignation. The facts of this case clearly show that respondent no.1 was in possession of the letter of withdrawal of resignation sent by the applicant much before the resignation was accepted by the competent authority and despite that it went ahead and accepted the resignation. This was contrary to the law and he cited the following cases on the issue of limitation:

i) The State of Madhya Pradesh v. Syed Qamarali, 1967 SLR SC 229 wherein the Honble Supreme Court observed:

We therefore hold that the order of dismissal having been made in breach of a mandatory provision of the rules subject to which only the power of punishment under section 7 could be exercised, is totally invalid. The order of dismissal had therefore no legal existence and it was not necessary for the respondent to have the order set aside by a court. The defence of limitation which was based only on the contention that the order had to be set aside by a court before it became invalid must therefore be rejected.

ii) Collector, Land Acquisition, Anantnag and anther v. Mst. Katiji and others, (1987) 2 SCC 107. In this case the Honble Supreme Court observed as follows:

6. It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so.

6. The learned counsel also relied on the following decisions on the issues of withdrawal of resignation and compliance of Government instructions:

i) Balram Gupta Vs. UOI & Anr., 1987 (Supp) SCC 228.

ii) Power Finance Corpn. Ltd. V. P.K. Bhatia, 1999 (4) SCC 280.

iii) J.N. Srivastava v. Union of India & Anr., 1998 (9) SCC 559.

iv) Shambhu Murari Sinha v. Project & Development India & Anr., 2000 (5) SCC 621.

v) Srikantha S.M. v. Bharat Earth Movers Ltd., 2005 (8) SCC 314.

vi) Brijesh Kumar Chandoliya v. State & Anr., 2009 (2) SLR 576.

7. Learned counsel of the respondents in his preliminary submission stated that the OA was not maintainable on the ground of laches. The applicant had admitted that the letter of withdrawal of resignation was submitted on 30.03.2009 and after that the first representation was submitted on 18.03.2012, and this OA was filed on 31.10.2012. Besides this, the applicant stopped attending her duties from the day she submitted her resignation letter. In the OA or in the rejoinder there was no explanation with regard to the period of delay of more than 2-1/2 years in filing this OA. On this ground alone, the OA needs to be rejected.

8. Adverting to the facts of the case the learned counsel referred to the rule regarding withdrawal of resignation (extracts in para-4 supra) and submitted that there were four components of the process of resignation, namely, (a) letter of resignation in proper format, (b) an indication of the date from which the resignation is going to be effective, i.e., notice period, (c) the withdrawal of resignation to be before that date and (d) the date of acceptance of the resignation. In the instant case, the letter was unambiguous with regard to the intention of the applicant and the date from which it was going to be effected. The request of the applicant was for the the resignation to come into force with immediate effect i.e. date of resignation (18.02.2009) and not only that, the applicant stopped attending to her duties after submission of the resignation letter. She did not even wait for respondent no.2 to relieve her or to make any alternative arrangement. Even in the case of a normal voluntary retirement by a government servant, the government servant has to give three months notice in his resignation letter. He referred to the provision in the rule governing temporary Government servants which states that:

If, however, a temporary Government servant submits a letter of resignation in which he does not refer to Rule 5 (1) of the CCS (TS) Rules, 1965, or does not even mention that it may be treated as a notice of termination of service, he can relinquish the charge of the post held by him only after the resignation is duly accepted by the appointing authority and he is relieved of his duties and not after the expiry of the notice period laid down in the Temporary Service Rules.

Thus the applicant was duty bound not to relinquish the charge till her resignation was accepted by the appointing authority and she was relieved of her duties. Instead the applicant did not wait for her resignation to be accepted and being relieved by respondent no.2. She just relinquished her charge and stopped coming to office. He also pointed out that while the letter of resignation was submitted by the applicant to respondent no.2, the letter to withdraw the resignation was submitted to respondent no.1 and hence there was some delay due to the correspondence between the two offices.

9. The learned counsel for the respondents also submitted that the applicant had not come to the Tribunal with clean hands, as she has suppressed the fact that the applicant was working at G.B. Pant hospital and resigned from her duties on 06.02.2009 and joined respondent no.2 on the same date. Later, she withdrew her resignation at G.B. Pant hospital on 18.02.2009 and rejoined duties at G.B. Pant hospital on 20.02.2009 and, therefore, it is clear that she was not interested to join Central Health Service and her resignation was not due to compelling family circumstances, as stated by her in her application dated 18.02.2009. He further submitted that it was the prerogative of the Accepting Authority to decide the date from which the resignation should become effective. Normally a resignation would become effective only after the same has been accepted and the officer has been relieved. But, in this case the applicant did not wait for any of these approvals and abandoned her duties in the organization of the respondent no.2. Now the applicant is trying to take advantage of her own wrong. She also never turned up later on to check the outcome of the letter of withdrawal of resignation submitted by her until 2012, implying thereby that she was not serious about withdrawing her resignation. Therefore, on merits also the OA needs to be rejected.

10. We have carefully considered the submission made by both sides. At first we will deal with the issue of laches. According to the applicant she has been contacting the concerned authorities to allow her to resume her duties as Specialist Grade II (Cardiology) under the respondent no.2. However, she was neither allowed to resume her duties nor communicated any decision regarding her request Except this averment there is nothing on record to show that after submitting the letter of withdrawal of her resignation on 30.03.2009 the applicant ever approached the respondents either in person or in writing to ascertain the fate of her letter of resignation or letter of its withdrawal. Under the normal circumstances a person who is desirous of rejoining the duties, particularly if it is a case of withdrawal of resignation, would be anxious to know the status of the resignation letter submitted earlier and the subsequent request of its withdrawal. The applicant for some mysterious reason did not bother to send any reminder or letter to check what was happening to her request until the representation dated 18.03.2012. The applicant has not indicated any reason to explain as to why she never pursued the matter or, for the delay in approaching this Tribunal. In this connection the provisions with regard to limitation as provided in the Administrative Tribunals Act, 1985 are quite explicit and are reproduced below:

21. Limitation -

(1) A Tribunal shall not admit an application, -

(a) in a case where a final order such as is mentioned in clause (a) of sub-section (2) of section 20 has been made in connection with the grievance unless the application is made, within one year from the date on which such final order has been made;

(b) in a case where an appeal or representation such as is mentioned in clause (b) of sub-section (2) of section 20 has been made and a period of six months had expired thereafter without such final order having been made, within one year from the date of expiry of the said period of six months.

If we treat the date of her letter of withdrawal of resignation as the reference point the latest she could file the OA was 30.09.2010.

11. We have also considered the citations of the learned counsel for the applicant on limitation but as the extracts in para-5 above would show these are not relevant in this case.

12. Even though we would be inclined to sympathetically consider the request for condonation of delay, there is absolutely no averment on the part of the applicant that would justify the delay of more than 02 years in filing this OA. On this ground alone the OA is liable to be dismissed. Considering the provision of Section 21 of the Administrative Tribunals Act, 1985 and the law as laid down by the Apex Court in D.C.S. Negi v. Union of India and others, Special Leave to Appeal (Civil) No.7956/2011, decided on 07.03.2011 and S.S. Rathore v. State of M.P., AIR 1990 SC 10 , we do not find any ground to condone the delay, as prayed for in the MA-3241/2012.

13. We now proceed to examine the case on merits. The only issue to be examined is whether the applicants request for withdrawal of resignation dated 30.03.2009 would come in the category of (the resignation) deemed to have been automatically withdrawn, as provided in the rules extracted in para-4 (supra). It is not disputed that the resignation was accepted by the competent authority only on 16.10.2009. The learned counsel for the respondents submits that there was no notice period in this case as the resignation was with immediate effect and hence there was no such date before which the applicant could withdraw the resignation. This was further reinforced by the conduct of the applicant in relinquishing her post from the same date. On the other hand, the learned counsel for the applicant has argued that since there was no order relieving the applicant from the organization of respondent no.2, and no communication to her informing acceptance of her resignation before 30.03.2009 (date of withdrawal letter of resignation), the respondents had no authority to accept the resignation, since they had already received the withdrawal letter before that date.

14. To probe these contentions further let us recapitulate some relevant dates. The applicant was offered appointment as Specialist Grade-II (Cardiology) on 07.08.2008, which she joined a day before the last date (07.02.2009) when the appointment order would have lapsed after resigning from G.B. Pant hospital, where she was working, on the same date. Later she resigned from the respondent-organization on 18.02.2009, withdrew resignation at G.B. Pant hospital and rejoined duties there on 20.02.2009.

15. The applicants offer of appointment letter dated 07.08.2008 contains the following stipulation in terms and conditions of the appointment:

i) The post is temporary and she will be appointed on an officiating basis only. She will be on probation for a period of one year from the date of appointment which may be considered for confirmation after she successfully completes the probation. After the satisfactory completion of probation, the termination of the applicant will be after giving one months notice on either side.

[Emphasis supplied]

16. The terms and conditions of the appointment indicate that the appointment is on officiating basis only and the applicant would be on probation for a period of one year. Only after the satisfactory completion of probation the applicant would get the right of terminating the appointment by giving one months notice. This is in consonance with the provisions contained in the Central Civil Services (Temporary) Rules, 1965. The Rule-5 Termination of Temporary Service provides as follows:

(1) (a) The services of a temporary Government servant who is not in quasi-permanent service shall be liable to termination at any time by a notice in writing given either by the Government servant to the Appointing Authority or by the Appointing Authority to the Government servant:

(b) The period of such notice shall be one month:

Provided that the service of any such Government servant may be terminated forth with and on such termination the Government servant shall be entitled to claim a sum equivalent to the amount of his pay plus allowances for the period of the notice at the same rates at which he was drawing them immediately before the termination of his services, or as the case may be, for the period by which such notice falls short of one month.

17. The MHA OM no.4/1/65-Estt. (C) dated 25.05.1966 (reproduced below the rule 5) also states that a letter of resignation submitted under rule 5 (1) of CCS (TS) Rules, 1965 is an exercise of the right conferred by statutory rules, enabling a temporary Government servant to cease performance of his duties automatically on the expiry of the prescribed period of notice, the latter (resignation submitted without any reference, direct or indirect to the said rule) requires acceptance by the Competent Authority in order to become effective. This restriction of acceptance by the employer in latter situation is required as the employer may have to make alternative arrangement and complete other formalities before relieving the employee. In this context, the observation of Bombay High Court in A.K. Kenial v. Uco Bank [1992 (3) BomCR 437 =(1993) IIILJ 236] is quite relevant and is reproduced below:

7. Even otherwise, a responsible employee cannot seek to set himself free from the responsibilities of his office by merely flinging on the management a letter evincing his desire to have an exit from employment. Under the general law, a resignation will be effective only when it is accepted. That is based on sound policy. A responsible officer could not be permitted to be in confusing garb. People have to deal with him with reasonable certainty. To permit officials unilaterally to throw away the apparel of authority would generate chaotic conditions in sensitive areas where certainty is rightly mandated. The high status of the employees of such instrumentalities, had been emphasised by judicial decisions. Along with the powers and perks which he enjoys, a Bank Official has to share and shoulder duties and responsibilities. He cannot adopt an attitude that his office is just another piece of abandoned luggage.

18. In the present case the applicant did indeed treat her job as just another piece of abandoned luggage by resigning/withdrawing resignations at G.B. Pant Hospital and Dr. Ram Manohar Lohia Hospital in quick succession within a short period. She chose not to give any notice and resigned with immediate effect at Dr. Ram Manohar Lohia Hospital. Not only that, the applicant who is a Doctor (Cardiologist) and bound by certain professional ethics, abandoned the post forth-with without giving any opportunity to the employer to make alternative arrangement, process acceptance of the resignation or arrange for the applicant to be formally relieved. Apparently she was in a hurry to resume the duties in her former organization. Here it is not necessary for us to go into the question as to what remedy was available to the respondents against the conduct of the applicant which was not in accordance with the rules governing the service conditions of temporary employees. It is enough to observe that so long as the employer is not pressing for any damages, the employer-employee relationship snapped with the action of abandonment of post by the applicant, who was appointed on officiating basis and on probation, following submission of the letter of resignation. Formal acceptance of resignation or a communication to the applicant is of only academic value as it cannot confer any substantive right on the applicant or alter status of any existing right. The act of resignation attained finality with the applicant, relinquishing the post without waiting for relieving orders from the respondents.

19. Coming to the question of withdrawal of resignation the provisions quoted in para-4 supra, is given in para-3 of Procedure to be followed in accepting resignation from service which forms part of the Government of Indias decision below Rule 26 of the CCS (Pension) Rules, 1965. Para-6 of the same instruction clarifies that since the CCS (Pension) Rules, 1972 are applicable only to the holders of permanent posts, the above provision would apply only in the case of a permanent Government servant who had resigned his post. It is obvious that the provision of withdrawal of resignation before its acceptance by the appointing authority to be treated as deemed to have been automatically withdrawn, would not be applicable in this case since the applicant was on probation.

20. The facts of the present case bear resemblance to that in State of U.P. and Others vs. Ved Prakash Sharma (Dr.), 1995 Supp (2) SCC 582. In that case the respondent was appointed as a Medical Officer in P.M.S. on temporary basis some time in 1973 and the terms of appointment included a condition that his services could be terminated on one months notice by either side similar to rule 5 (1) of CCS (TS) Rules, 1965. The brief facts of the case as given in the judgment are:

In terms of the said term in the letter of appointment, the respondent served notice on 14/03/1983 terminating his contract and thereby his appointment to the post in question. It appears that thereafter since he did not hear from the department he served the department till August 1983 and thereafter ceased to do so. The appellant has paid him the salary up to August 1983 and there is no dispute in that behalf. It appears that more than four years thereafter he sent a letter dated 10/12/1987 stating that he desired to withdraw his letter of resignation dated 14/03/1983. He did not hear from the authorities on this letter till 13/06/1990 whereby he was informed that since he had resigned by the letter of 14/03/1983 the relationship of employer and employee had come to an end and nothing further could be done. It was only after the receipt of this letter of 13/06/1990 that he filed a writ petition in the High court for quashing the same and for a direction that he be taken back in service. The High court by the impugned order of 23/01/1992 quashed the communication dated 13/06/1990 and held that he shall be deemed to be in continued employment from 14/03/1983 and the question of payment of salary and other consequential benefits for the period from 14/03/1983 to the date on which he is reinstated in service will be determined by the department. It is against this order that the department has come in appeal.

[Emphasis supplied]

21. After discussing the limitation issue, the Honble Supreme Court observed as follows:-

5. We are afraid we cannot allow the impugned order of the High court to stand. The facts clearly reveal that under the terms of the contract the respondent was entitled as of right to terminate the contract by one months notice. That he did and, therefore, on the expiry of the period of one month the relationship came to an end. Under the contract that was a right conferred on the respondent which was not dependent on the managements goodwill. The management did not come in the picture as the right was absolute and on the expiry of 30 days the relationship came to an end. His continuance up to August 1983 makes no difference. It is also an admitted fact that after August 1983 he ceased to report for work which is indicative of his desire to terminate the contract of employment. Till 1987, i.e., for over four years he remained quiet and thereafter it suddenly occurred to him that he could take advantage of the fact that there was no formal acceptance of his resignation. He, therefore, dashed off a letter dated 10/12/1987 with a view to withdrawing his resignation letter of 14/03/1983. Even thereafter he did nothing and went on making periodical representations, the last of which was rejected on 13/06/1990. Treating that as a cause of action he filed the writ petition in question. We think that in the circumstances it is absolutely clear that he had the animus to terminate his relationship by the letter of 14/03/1983. There was, therefore, no question of his being taken back in service after such a long lapse merely because of want of a formal communication accepting the resignation. The conduct of the parties has also relevance and the conduct of the respondent in particular shows his intention to terminate the contract..

6. We are, therefore, of the opinion that the High court ought not to have interfered in the exercise of its extraordinary jurisdiction under Article 226 of the Constitution after a lapse of several years. The High court should have realised that the respondent alone was responsible for the situation and must thank himself for the same. The management would have filled in the vacancy and cannot be expected to create a supernumerary post for no fault of its own. We, therefore, cannot allow the order to stand.

[Emphasis supplied]

22. On the issue of withdrawal of resignation the learned counsel for the applicant has relied on the citations given in para-6 above. We have considered the citations and find that the citations at serial no. i) to iv) relate to the cases of voluntary retirement which are not relevant in this case. The facts in Srikantha S.M. (supra) are also different as in that case the employer had granted casual leave to the employee beyond the date on which the resignation was going to be effective as approved by the employer. The employee withdrew the resignation during the period of casual leave. The facts of the present OA are quite different.

23. In the given background of facts in the present OA, the act of resignation of the applicant attained the irrevocable status following her conduct in relinquishing the post without permission of the employer and joining another job within two days. The provision with regard to withdrawal of resignation is, in any case, not applicable to a temporary Government employee as per the CCS (Pension) Rules, 1972.

24. Taking into account the entire conspectus of the case and in the light of the Honble Supreme Court observation in Ved Prakash Sharma (Dr.) (supra), we have no hesitation in dismissing the OA, both on the ground of laches and on merits. Accordingly the OA is dismissed. No costs.