Dr Dhananjaya Y Chandrachud, J
1 Leave granted.
2 This appeal arises from a judgment of a Division Bench of the
Madurai Bench of the Madras High Court dated 27 March 2019. Allowing
a writ appeal, the Division Bench set aside an order of the learned Single
Judge which had dismissed the writ petition filed by the respondent and
directed the State to reinstate the respondent back into service with
continuity.
3. The facts, insofar as they are material to the controversy, are thus:
2010. While working at the All Women’s Police Station, Thoothukudi, the
respondent tendered her resignation on 1 June 2017 and sought to be
relieved from her job. The resignation was accepted on 12 June 2017. On
13 July 2017, the respondent purported to address a communication
withdrawing the resignation. The respondent instituted a writ petition1
before the High Court which was disposed of on 1 March 2018 with a
direction to the Director General of Police to consider the representation
and to pass appropriate orders in accordance with law.
4 On 2 June 2018, the Director General of Police2 passed an order
rejecting the representation. In doing so, the DGP relied on the provisions
of Rule 35A of the Special Rules of Tamil Nadu Police Subordinate
Services3. The order of the DGP was challenged before a learned Single
Judge in a writ petition4 which was dismissed by an order dated 21 August
2018. The writ appeal5 filed by the respondent was, however, allowed.
The Division Bench came to the conclusion that in terms of Section 50 of
the Tamil Nadu Government Servants (Conditions of Service) Act 20166, a
period of ninety days’ notice is necessary. In the view of the High Court,
this period of ninety days is intended for the benefit not only of the
authority, but for the person who tendered the resignation to rethink
whether the resignation should be withdrawn. The High Court found fault
with the appellants for having accepted the resignation without waiting for
the period of notice to expire and accordingly set aside the decision.
Consequently, reinstatement was granted with continuity of service.
1 Writ Petition No 3888 of 2018 2 “DGP” 3 “Rules” 4 Writ Petition No 18211 of 2018 5 Writ Appeal No 1596 of 2018 6 “Act of 2016”
5 Learned counsel appearing on behalf of the appellants, at the outset,
submits that the High Court has relied on the provisions of Section 50 of
the Act of 2016 whereas the respondent was governed by Rule 35A of the
Rules. Moreover, it was submitted that the provisions of Section 50(2),
which have been extracted in the judgment of the High Court, contained an
omission which would have a bearing on the interpretation of the provision.
Learned counsel submitted that once the resignation was accepted, it was
not open to the respondent to withdraw it.
6 Opposing this submission, it was urged on behalf of the respondent
that the acceptance of the resignation on 12 June 2017 was not valid in
law since it was subject to the grant of Vigilance and other clearances.
Moreover, learned counsel supported the reasoning of the Division Bench
that in view of the requirement of ninety days’ notice, it was open to the
employee to withdraw the resignation before the period of notice expired
and the acceptance of the resignation in the meantime would not affect
that entitlement.
7 The provisions of Rule 35A of the Rules are analogous to Section 50
of the Act of 2016. The respondent, as a police constable, was governed
by Rule 35A, which is extracted below:
“35A Acceptance of Resignation
(a) The member of the service may resign his appointment
by giving notice of not less than three months in writing direct to
the appointing authority with a copy marked to his immediate
Superior Officer. The period of three months notice shall be
reckoned from the date of receipt of such notice by the
appointing authority.
(b) The member of the service may withdraw the notice of
his resignation before its acceptance. Withdrawal of resignation
will not be permitted after its acceptance by the appointing
authority.
(c) The appointing authority shall issue orders on the notice
of resignation before the date of expiry of notice either accepting
the resignation from a date not later than the date of expiry of the
notice or rejecting the same, giving the reasons thereof. If no
such order is passed, the resignation shall be deemed to have
been accepted on the expiry of the period of notice.”
8 Clause (a) of Rule 35A requires that before resigning, a member of
the service must furnish not less than three months’ notice in writing to the
appointing authority. Under clause (b), the notice may be withdrawn
before its acceptance. Withdrawal of the resignation is not permitted after
acceptance by the appointing authority. Under clause (c), the appointing
authority is required to issue orders on the notice of resignation before the
date of expiry of the notice. If the resignation is being accepted, the date
of acceptance is not to be later than the date of the expiry of the notice. If
no order has been passed, the resignation is deemed to have been
accepted on the expiry of the period of notice. The provisions of clauses
(b) and (c) of Rule 35A make it abundantly clear that:
(i) A resignation can be withdrawn before its acceptance; and
(ii) Upon acceptance, the employee loses the entitlement to withdraw the
resignation.
Moreover, it is evident from clause (c) of Rule 35A that the appointing
authority, while accepting the resignation, is empowered to indicate a date
from which it will take effect which will not be later than the date of expiry
of the notice. In other words, the authority can legitimately accept the
resignation from a date anterior to the expiry of the notice. Upon the
acceptance of the resignation, the cessation of service takes place and it is
not open to the employee to withdraw the resignation.
9 In the present case, as the facts which have been narrated indicate,
the resignation dated 1 June 2017 was accepted on 12 June 2017. It was
only a month thereafter on 13 July 2017 that the respondent purported to
withdraw the resignation. The resignation having taken effect upon its
acceptance, the withdrawal was of no consequence. We do not find merit
in the submission that the acceptance of the resignation was invalid. The
order which was passed clearly indicates the acceptance of the
resignation. The order, however, provides that if the Vigilance and Anti
Corruption Department indicated that any adverse remarks or if any
adverse noting was made by the Special Branch CID, the resignation
would be cancelled. The fact of the matter, however, is that the
acceptance of the resignation was complete on 12 June 2017. Once this
was the position, the withdrawal was of no consequence in law.
10 The High Court was not justified in coming to the conclusion that
within a period of ninety days, which is the period of notice required under
the Rules, it was open to the employee to withdraw the resignation even
after acceptance. This construction is clearly contrary to the provisions of
Rule 35A.
11 We accordingly allow the appeal and set aside the impugned
judgment and order of the High Court dated 27 March 2019, affirming the
dismissal of the writ petition by the learned Single Judge. There shall be
no order as to costs.
12 We, however, clarify that this order will not come in the way of the
respondent applying for appointment afresh as and when any selection
takes place and any such application may be considered in accordance
with law.
[Dr Dhananjaya Y Chandrachud]
[Hrishikesh Roy]
New Delhi; December 13, 2019
Petition(s) for Special Leave to Appeal (C) No(s).10115/2019
(Arising out of impugned final judgment and order dated 27-03-2019 in WAMD No. 1596/2018 passed by the High Court of Judicature at Madras at Madurai)
THE DIRECTOR GENERAL OF POLICE & ANR. Petitioner(s)
VERSUS
M JEYANTHI Respondent(s)
Date : 13-12-2019 These matters were called on for hearing today.
CORAM :
For Petitioner(s) Mr. M. Yogesh Kanna, AOR
Mr. Karthik Rajendran, Adv.
Ms. Uma Prasuna Bachu, Adv.
For Respondent(s) Mr. (Dr.) P. Jyothimani, Sr. Adv.
Mr. Sumit Kumar, AOR
Mr. Hemant Kumar, Adv.
Mr. Bhupendra Kumar, Adv.
Mr. Gunjan Kumar, Adv.
UPON hearing the counsel the Court made the following
O R D E R
Leave granted.
The appeal is allowed in terms of the signed
reportable judgment.
Pending application, if any, stands disposed of.
(Signed reportable judgment is placed on the file)