Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO…1927…...OF 2023
(arising out of Petition for Special Leave to Appeal (Civil)
No.2139 of 2021)
THE GOVT. OF NCT OF DELHI & ORS. …...APPELLANT(S)
VERSUS
KAMLESH RANI BHATLA ……RESPONDENT(S)
J U D G M E N T
ANIRUDDHA BOSE, J.
Leave granted.
2.
The appellants question the legality of a judgment of a
Division Bench of the Delhi High Court, which in substance
sustains an order of the Central Administrative Tribunal allowing
the respondent to withdraw her resignation and permit her to re-
join duty. At the material point of time, the respondent was
working as an Assistant Teacher in a school under the Directorate
of Education, Delhi Government, who are the appellants before us.
Signature Not Verified
Digitally signed by
SNEHA DAS
Date: 2023.03.24
18:17:55 IST
Reason:
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She had tendered her resignation on 22 March 2012 as she
desired to participate in the elections for the post of a Counsellor of
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Municipal Corporation of Delhi. Her request for resignation was
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accepted by the authorities on 29 March itself, with effect from
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22 March 2012. She, however, lost the election, which was held
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in the month of April the same year. On 21 April 2012, she
applied for withdrawing her resignation and re-join duty for the
post in question. This application, however, was kept pending in
spite of several reminders in the years 2013 and 2014.
3. The respondent then filed a writ petition before the Delhi High
Court. This was registered as W.P. (C) No. 1522 of 2014 and the
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said petition was disposed of on 20 March 2014 with the following
directions and order:-
“6. The petitioner, is aggrieved by the fact that, there has
been no decision on her request, as yet. The petitioner,
apparently, has also taken recourse to the Right to
Information Act, 2005 (RTI Act). In respect of the
application made under the RTI Act, the petitioner though
has received a response dated 18.01.2013 from
respondent nos. I and 2, which only indicates that the
decision regarding her request for withdrawal of
resignation is ? under process.
7. In view of the aforesaid facts, in my opinion, the
respondents cannot, not take a decision in the matter.
Therefore, the writ petition is disposed of with a direction
to the respondents to deliberate upon and thereafter
dispose of the request of the petitioner qua withdrawal of
her resignation; albeit by a speaking order. The needful
will be done expeditiously, though not later than 10 weeks
from today. The copy of the order passed will be furnished
to the petitioner. The respondents, while passing the order,
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will also take note of the judgment of this court dated
18.03.2005, passed in WP(C) No. 3303/2003, titled Nirmal
Verma vs MCD and Anr.
8. The writ petition and the application are disposed of
with the aforesaid directions.”
(quoted verbatim from the paper book)
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4. On 14 May 2015, the Deputy Director of Education, District
South East, Government of National Capital Territory of Delhi had
rejected her plea and, inter-alia, ordered:-
“… AND WHEREAS, the operative part of the judgment
dated 18.03.2005 in W.P.(C) No. 3303/2003 of Hon'ble
High Court Delhi is re-produced as under;-
"… It would, thus, be seen that in the cases cited above
and as also in Durgesh Mohanpunu’s case which is the
latest case processed after the petitioner's case, the
respondents have taken a consistent position that legally it
is permissible for them to allow withdrawal of resignation
after its acceptance and have followed the practice of
restoration of service. In the petitioner's case also
accordingly there is no ground made out for adopting a
different yardstick or contrary legal submission to defeat
the petitioner's case. Petitioner had also. within a month of
the acceptance of her resignation and within a week of her
losing the election requested for being permitted to
withdraw the resignation in accordance with Rule 26(4) of
CCS Pension Rules. It is not the case of respondents that
petitioner was not having a good record or had been guilty
of any misconduct: or impropriety or it being a case of any
doubt on the integrity etc. Denial of reinstatement in
service to the petitioner and not treating the petitioner at
par with others in the absence of any distinguishing
feature, renders the respondent's action arbitrary and
tantamount to denial of equality as guaranteed under
Article 14 of the Constitution of India. Reference in this
regard may be made to Sengara Singh and Ors. v. State of
Punjab and Ors. Reported at.....”.
AND WHEREAS, the case of Mrs. Kamlesh Rani Bhatia
cannot be equated .at par with Nirmal Verma case.
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NOW, THEREFORE, after considering all the aspects of
the matter, the request of Mrs. Kamlesh Rani Bhatia for
withdrawal of her resignation is considered and found no
merit, hence, rejected.
This, issues with the prior approval of competent
authority & in compliance of order of Hon'ble High Court
dated 20.03.2014, passed in W.P. (C) No 1522/2014.”
(quoted verbatim from the paper book)
5. This order was challenged by the respondent before the
Central Administrative Terminal. The Tribunal in a judgement
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delivered on 20 March 2017, relying upon Rule 26(4) of the
Central Civil Services (Pension) Rules, 1972, sustained the
respondent’s case, primarily relying on judgement of the Delhi High
Court in the case of “Nirmal Verma -vs- MCD and Anr.” delivered
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on 18 March 2005 in Writ Petition (Civil) No.3303/2003.
6. We find from the order of the Tribunal that the main argument
that was advanced before it by the appellant herein was that the
case of Nirmal Verma (supra) was distinguishable in the sense that
no chargesheet was issued to the applicant in that case whereas in
the case of respondent, a chargesheet had been submitted alleging
breach of certain provisions of the Central Civil Services (Conduct)
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Rules, 1964. The memorandum of charges was issued on 4
September 2011 and the two articles of charges related to her
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involvement in political activities while working. Annexure II of
Memorandum of charges stipulated: –
“ANNEXURE II
STATEMENT OF IMPUTATION OF
MISNDUCT/MISBEHAVIOUR IN SUPPORT OF THE
ARTICLE OF CHARGES FARAMED AGAINST SMT,
KAMLESH RANI BATLA, ASSTT. TEACHER.
ARTICLE-I
Smt. Kamlesh Rani Batla, Assistant Teacher while
working in Govt. Sarvodya Coed. Middle School, J-Block,
Sangam Vihar, New Delhi, during her duty hours, attended
the meeting held by the BSP, the National Political Party
without informing or taking permission from the
department.
ARTICLE-II
Smt. Kamlesh Rani Batla, Assistant Teacher while
working in Govt. Sarvodya Coed. Middie School, J-Block,
Sangam Vihar, New Delhi, and during the elections period
canvassing and delivering slogans for the BSP as evident
from the CDs and photo clippings.
Thus, she has violated Rule 3 of CCS Conduct Rules, 1964
which unbecoming of a government servant.”
(quoted verbatim from the paper book)
7. As we have already indicated, only argument advanced by the
appellant before the Tribunal was that a chargesheet was issued to
the respondent before her resignation. On that basis, the
authorities wanted to distinguish her case in relation to the case of
Nirmal Verma (supra). The Tribunal observed and held:-
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“5. The only argument advanced by the counsel for the
respondents that a chargesheet was issued to the
applicant before her resignation and accordingly the case
of the applicant cannot stand on the same footing as that
of Nirmal Verma, relied upon by her, does not seem to be
justified for the simple reason that if a chargesheet was
issued to the applicant then it was within the domain of
the respondents not to accept her resignation and they
could not have issued vigilance clearance. Once the
respondents have given the vigilance clearance in respect
of the applicant and allowed her to contest MCD election,
hence, in my considered opinion, the respondents are
estopped from taking the plea of pendency of chargesheet
against the applicant. I am also of the view that the
respondents were very much within their capacity not to
accept the applicant's resignation pending enquiry, if any,
rather they ought to have awaited the decision in the
enquiry. Hence, at this stage, taking the above plea of
pendency of chargesheet and distinguishing the character
of the present case with that of Nirmal Verma's case
(supra) seems to show their power vested with the
respondents to deny or reject the applicant's application for
withdrawal of her resignation. Since all the conditions set
out under Rule 26 of CCS (Pensions) Rules, 1972 are
satisfied by the applicant, the stand of the respondents to
deny the applicant to withdraw her resignation is not
reasonable in these circumstances apart from being
contrary to law.
6. Going through the judgment in Nirmal Verma's case
(supra), I find that the Hon'ble High Court of Delhi in a
similar manner allowed the case of petitioner therein
taking into consideration the rule position and directed the
respondents to process the request of the petitioner for
withdrawal of her resignation and also to allow her to join
back her duties. Hence, adopting the same ratio as laid
down by the Hon'ble High Court of Delhi in Nirmal
Verma's’ case (supra), I allow the instant OA with a
direction to the respondents to process the case of the
applicant for withdrawal of her resignation and allow her
to join duty as Assistant Teacher and the intervening
period be also decided as per existing rule with
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consequential benefits. However, the respondents are at
liberty to proceed with the pending chargesheet, if any, as
per rules. No costs.”
(quoted verbatim from the paper book)
8. The High Court in the order impugned, observing that no
enquiry was conducted against respondent and even vigilance
clearance was granted to her before accepting her resignation,
rejected the writ petition filed by the appellant authorities.
9. Before us, on behalf of the appellant, Ms. Divan, learned
Additional Solicitor General has cited a decision of the Delhi High
Directorate of Education -vs- Manisha
Court in the case of
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Sharma in W.P. (C) 8494/2015 decided on 28 November 2019.
The Division Bench of the High Court in this judgement, had
referred to the decision in the case of Nirmal Verma (supra) and
observed: –
“14. The Court is unable to agree with the reasoning in
Nirmal Verma v. MCD (supra) that since there was no
misconduct on the part of the candidate, she should be
permitted to withdraw her resignation. What was not
noticed in Nirmal Verma v. MCD (supra) is the fact that the
resignation had already been acted upon and that Rule
26(4), in any event, did not stand attracted.”
10. Rule 26 of the CCS (Pension) Rules, 1972 stipulate:-
“26. Forfeiture of service on resignation.-
(1) Resignation from a service or a post, unless it is
allowed to be withdrawn in the public interest by the
appointing authority, entails forfeiture of past service.
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(2) A resignation shall not entail forfeiture of past service if
it has been submitted to take up, with proper permission,
another appointment, whether temporary or permanent,
under the Government where service qualifies.
(3) Interruption in service in a case falling under sub-rule
(2), due to the two appointments being at different
stations, not exceeding the joining time permissible under
the rules of transfer, shall be covered by grant of leave of
any kind due to the Government servant on the date of
relief or by formal condonation to the extent to which the
period is not covered by leave due to him.
(4) the appointing authority may permit a person to
withdraw his resignation in the public interest on the
following conditions, namely:-
(i) 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
circumstances which originally compelled him to
tender the resignation;
(ii) 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;
(iii) 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;
(iv) that the post, which was vacated by the
Government servant on the acceptance of his
resignation or any other comparable post, is
available.”
(5) Request for withdrawal of a resignation shall not be
accepted by the Appointing Authority where a Government
servant resigns his service or post with a view to taking up
an appointment in or under a private commercial company
or in or under a corporation or company wholly or
substantially owned or controlled by the Government or in
or under a body controlled or financed by the Government.
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(6) When an order is passed by the Appointing Authority
allowing a person to withdraw his resignation and to
resume duty, the order shall be deemed to include the
condonation of interruption in service but the period of
interruption shall not count as qualifying service.
(7) A resignation submitted for the purpose of Rule
37 shall not entail forfeiture of past service under the
Government.”
11. In the case of Manisha Sharma (supra), the Division Bench
opined that there was no material change in the circumstances
which originally compelled the respondent to tender her resignation
therein and the respondent voluntarily resigned because she
intended to contest the election. It was also held that once the
resignation had been accepted and acted upon, thereafter, the
incumbent could not contend that she was under any compulsion
for tendering her resignation. Once resignation had been acted
upon, there was no question of permitting a person to withdraw
such resignation. This was the view taken by this Court in the case
of State of Haryana and others -vs- Ram Kumar Mann [(1997) 3
SCC 321].
12. So far as the factual context of this case is concerned, as we
have narrated above, the first order of the High Court was a
direction upon the employer to take a decision. At that point of
Nirmal Verma
time, the ratio laid down in the case of (supra)
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prevailed and the High Court had directed the authorities to take
decision in terms of the said ratio while considering the plea of the
respondent before us. The appellant had accepted that judgment
and the rejection decision was taken within the parameters set by
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the High Court in the order passed on 20 March 2014. The only
reason as to why the respondent’s request for withdrawal of
resignation was rejected was that a memorandum of charges had
been issued against her. The authorities, in the order of rejection,
did not take the stand that once accepted, a resignation cannot be
withdrawn. At no stage of this case, which underwent two rounds of
litigations, the authorities had raised the point which formed the
basis of the judgment in the case of Manisha Sharma (supra). The
appellants also did not reason their rejection order with the ground
that there was no compelling reason for the respondent to tender
her resignation. In the second round of proceedings from which this
appeal arises, the Tribunal did not find justification for rejection of
the respondent’s plea for withdrawal of resignation to be
acceptable. We have reproduced earlier in this judgment the
reasoning given by the Tribunal in sustaining the respondent’s
case. Before the Tribunal, as also the High Court, the controversy
remained confined to issue of memorandum of charges against the
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respondent. Both the fora opined that the respondent’s case could
not be distinguished from the ratio of the case of Nirmal Verma
(supra) merely on the strength of issue of memorandum of charges
against her.
13. After the High Court sustained the Tribunal’s verdict which
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went in favour of the respondent, on 28 November 2019, the
Division Bench judgment in the case of Manisha Sharma (supra)
was delivered. In this judgment, the Division Bench, on analysing
the conditions specified in Rule 26(4) found that having resigned to
contest the election, the respondent therein could not be heard to
say that she was under compulsion. It was also held that once the
resignation has been accepted and acted upon, then there is no
question of permitting a person to withdraw such a resignation. In
the facts of the present case, however, that ground was not invoked
to reject the respondent’s withdrawal request herein. Moreover, the
parameter based on which the authorities were asked to take
decision on the request for withdrawal of resignation was laid down
by the High Court itself. The boundary within which the authorities
were to examine the incumbent’s plea was not questioned by the
authorities before any forum. On the other hand, they accepted the
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said parameter and rejected the plea thereby confining their
consideration within the boundary demarcated by the High Court.
14. In our opinion, in the context of this case, the ratio of
Manisha Sharma (supra) cannot be made applicable. We accept, as
a proposition of law, the interpretation given to the Rule 26(4) by
the Division Bench in the said judgment. But in the case of the
respondent herein, her withdrawal plea was required to be
examined within a given parameter and since the employer never
challenged the direction laying down the scope within which they
were to consider the withdrawal plea of the respondent, the right of
the respondent to be considered within that parameter had
crystallised. The authorities could not, and did not, go beyond that
parameter.
15. Now the question arises as to whether we could import
additional reasoning into the decision of the employer on the basis
of interpretation given to said Rule 26(4) by the High Court
subsequent in point of time. Ultimately, what we are dealing with in
this appeal is a decision of an employer terminating the master-
servant relationship on the basis of certain grounds laid down in
the rejection order. It is a fact that Rule 26(4) operates in the case
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of the respondent and in the event we had found that the first
decision of the High Court was absolutely contrary to the provisions
of the said Rules, we might have had accepted the argument of Ms.
Divan founded on reasoning contained in the case of Manisha
Sharma (supra). But as per the said provision, we do not find there
is absolute bar on the employer in permitting withdrawal of
resignation even after the same is accepted. Said Rule 26 does not
contain any such provision. Moreover, sub-rule (4) of Rule 26
envisages certain situations wherein withdrawal of resignation
might be permitted even after the resignation becomes effective. The
situations contemplated in sub-clauses (ii) and (iii) of Rule 26(4)
permit withdrawal of resignation after the same becomes effective.
Resignation can become effective either by stipulation of law or by
acceptance thereof. To illustrate the former situation, some
statutory instrument may contain deeming provisions for
resignation to become effective in the event after tendering the
resignation letter, no decision is taken by the employer within a
given timeframe. That is not the case here. So far as the present
case is concerned, resignation can become effective only on
acceptance thereof and sub-rule (4) of Rule 26 lays down situations
in which there can be withdrawal even after resignation becomes
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effective. This question, however, does not arise here as what we
are examining in this judgment is legality of an order by which the
respondent’s plea for withdrawal of resignation was rejected on
grounds spelt out in the order itself. The Tribunal and the High
Court found the reasoning of the appellant unsustainable.
16. In the peculiar facts of this case, in our opinion the judgment
of the High Court sustaining the Tribunal’s decision do not warrant
any interference.
17. The present appeal is accordingly dismissed. All connected
applications are disposed of.
18. There shall be no order as to costs.
…...........................J.
(ANIRUDDHA BOSE)
…..........................J.
(KRISHNA MURARI)
NEW DELHI;
rd
23 March, 2023.
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