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PETITIONER: UNION OF INDIA & ANR.

       Vs.

RESPONDENT: WING COMMANDER T.  PARTHASARATHY

DATE OF JUDGMENT:       10/11/2000

BENCH: Doraswamy Raju, Shivaraj V. Patil

JUDGMENT:

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     Raju, J.

     The  respondent  was  commissioned in the  Indian  Air Force  on 21.1.1963 as an officer in the Accounts Branch and in  due  course  he successively rose to the  rank  of  Wing Commander  by  virtue  of  promotions   earned  by  him,  on 17.1.1989.   Having regard to certain problems in the family due  continued  illness of his wife and need to  face  other commitments  and responsibilities he was constrained to seek for  pre-mature  retirement.   He submitted  an  application dated  21.7.1985  praying  for  pre-mature  retirement  from service  with  effect  from 31.8.1986 with  6  months  leave preparatory  to  retirement said to be due to him  with  the admissible  full non-effective benefits.  It is a fact  that as  expected of him he also furnished a certificate  stating that he was aware that any request made by him later for the cancellation  of  his application for pre-mature  retirement would not be accepted.

     When the matter was under process before the concerned Authorities, on 6.11.85 the respondent seem to have moved an amendment to his earlier application stating that the actual date of his release could be decided taking into account the pensionary  recommendations/requirements  of  the  IVth  Pay Commissions  Report which was expected to come in  November 1985.   In  view of this the date of retirement sought  with effect  from  31.8.86  itself, according to  the  respondent stood altered before any decision was taken or communicated. On  19.2.86, the respondent on being able to, as claimed  by him  surmount the health problems of his wife and also  sort out the other difficulties, submitted an application seeking to withdraw the application earlier submitted for pre-mature retirement  from  service, with a favourable  recommendation thereon  by  the group captain - Command  Accounts  Officer. While  matters  stood  thus, the respondent  was  served  on 7.3.86  with  a communication dated 6.3.86 that  information has been received from AIR Headquarter in their letter dated 20.2.86  that  the respondent will pre-maturely retire  from service  at  his own request with effect from 31.8.86,  with certain  other  consequential directions.  The request  made for  withdrawal of the application for pre-mature retirement was  also  not accepted on the ground that the  Headquarters does  not  accede  to requests for such  cancellation  after initial approval of the same by RRM and having regard to the

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certificate  given  by the respondent himself.  The  request further  made  on  8.7.86  to change at least  the  date  of retirement,  did not meet with success and the same was also turned  down  under a communication dated 10.7.86 mailed  on 28.7.86 and served on the respondent on 5.8.86.

     Aggrieved, the respondent filed Writ Petition No.16105 of 1986 before the Karnataka High Court seeking to quash the order of pre- mature retirement with effect from 31.8.86 and for  consequential  direction to continue the respondent  in service  with all consequential and attendant benefits.  The Departments stand before the High Court as is now before us was  that  under the existing policy there was no scope  for withdrawing  the application for pre-mature retirement, once submitted,  that in the light of such policy the  respondent also  gave a certificate that he was aware of the fact  that his  subsequent request for withdrawal will not be  accepted and that such a policy came to be adopted in public interest in  the light of the experience gained from the move of  the officers often to seek pre-mature retirement when there is a difficult  duty  to be performed and attempting to seek  for cancellation  after  tiding  over/avoiding   the  same   and consequently,  no exception could be taken to the action  of the Department.

     The  learned  Single Judge overruled the objection  of the  Department both on the ground that in the case on  hand it has not been averred or substantiated that the petitioner offered  for  pre- mature retirement as a camouflage to  get over  any difficult assignment of duties and the  subsequent change  of  mind was to gain any undue advantage as well  as for  the reason that when the offer of the respondent  stood withdrawn  on  19.2.86, the subsequent action taken  by  the competent  Authority  on 20.2.86 and onwards will be  of  no effect, having been taken on a letter or offer which by then had   no  existence  in  the   eye  of  law.   The  impugned proceedings  were quashed and consequential directions  also came  to  be  issued by an order dated 2.11.95.   An  appeal filed  before  the Division Bench of the High Court in  W.A. No.1146   of   1996  also  did   not  meet   with   success, necessitating  the appellants to come before this Court,  on further appeal.

     The  learned counsel for the appellant reiterated  the stand that having regard to the policy decision of which the respondent  was  said  to be also aware and having  given  a certificate at the time of submission of the application for pre-mature retirement that he was aware of the fact that his request  for withdrawal/cancellation made subsequently  will not   be  accepted,  the  High   Court  ought  not  to  have countenanced  the claim of the respondent.  Strong  reliance has  also been placed on the decision reported in Raj  Kumar vs  Union  of India [1968 (3) SCR 857] to contend  that  the application  for pre-mature retirement having been  approved on  14.1.86  by the RRM even prior to the withdrawal  letter dated 19.2.86, the respondent could not be given any relief, as  claimed  by him in his Writ Petition.  Per  contra,  the learned  counsel  tried  to justify the orders of  the  High Court  by  placing  strong reliance also  on  the  decisions reported in Balram Gupta vs Union of India and Another [1987 (3)  SCR 1173] and Union of India vs Sri Gopal Chandra Misra & Others [1978 (3) SCR 12].

     We  have  carefully considered the submissions of  the learned  counsel  appearing  on either side.   The  reliance

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placed  for  the appellants on the decision reported in  Raj Kumars  case (Supra) is inappropriate to the facts of  this case.   In  that  case  this  Court  merely  emphasised  the position  that  when  a public servant has  invited  by  his letter  of  resignation determination of his employment  his service clearly stands terminated from the date on which the letter  of  resignation  is   accepted  by  the  appropriate Authority  and  in the absence of any law or rule  governing the condition of the service to the contrary, it will not be open to the public servant to withdraw his resignation after it  is  accepted by the appropriate Authority and that  till the  resignation is accepted by the appropriate Authority in consonance  with  the  rules governing the  acceptance,  the public  servant  concerned had Locus Penitentiae  but  not thereafter.   This  judgment  was   the  subject  matter  of consideration  alongside the other relevant case law on  the subject  by  a  Constitution  Bench of  this  Court  in  the decision  reported in Union of India Etc.  vs Gopal  Chandra Misra  and  Others  (AIR  1978  SC  694).   A  request   for pre-mature  retirement which required the acceptance of  the competent or appropriate Authority will not be complete till accepted  by such competent Authority and the request  could definitely be withdrawn before it became so complete.  It is all  the more so in a case where the request for  pre-mature retirement  was made to take effect from a future date as in this  case.  The majority of the Constitution Bench analysed and declared the position of law to be as hereunder:

     51.   It  will  bear   repetition  that  the  general principle  is that in the absence of a legal, contractual or constitutional  bar,  a  prospective  resignation  can  be withdrawn  at  any time before it becomes effective, and  it becomes   effective  when  it   operates  to  terminate  the employment  or  the  office-tenure of  the  resignor.   This general  rule  is equally applicable to Government  servants and   constitutional  functionaries.   In   the  case  of  a Government  servant  or  functionary who cannot,  under  the conditions  of his service/or office, by his own  unilateral act of tendering resignation, give up his service/or office, normally,  the  tender of resignation becomes effective  and his service/or office-tenure terminated, when it is accepted by  the  competent authority.  In the case of a Judge  of  a High  Court,  who is a constitutional functionary and  under Proviso  (a)  to Article 217 (1) has a unilateral  right  or privilege  to  resign  his office, his  resignation  becomes effective  and tenure terminated on the date from which  he, of his own volition, chooses to quit office.  If in terms of the  writing  under his hand addressed to the President,  he resigns   in  praesenti  the   resignation  terminates   his office-tenure  forthwith, and cannot therefore, be withdrawn or  revoked thereafter.  But, if he by such writing, chooses to resign from a future date, the act of resigning office is not complete because it does not terminate his tenure before such  date and the Judge can at any time before the  arrival of  that  prospective  date on which it was intended  to  be effective withdraw it, because the Constitution does not bar such  withdrawal. [Emphasis supplied] This Court had  again an  occasion to consider the question as to the principle of law  to  be applied to a case of resignation made to  become effective  on  the expiry of a particular period or  from  a future  date  as desired by the employee in Punjab  National Bank  vs  P.K.   Mittal  (AIR 1989 SC 1083).   It  was  held therein  that resignation being a voluntary act of employee, he  may  choose  to resign with immediate effect or  with  a notice  of less than 3 months if the employer agrees to  the

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same or he may also resign at a future date on the expiry or beyond  the  period  of  3 months  as  envisaged  under  the governing  regulation in that case, even though there is  no such consent from the employer, and that, it was always open to  the  employee  to withdraw the same before the  date  on which the resignation could have become effective.

     So  far  as the case in hand is concerned, nothing  in the  form of any statutory rules or any provision of any Act has been brought to our notice which could be said to impede or  deny  this right of the appellants.  On the other  hand, not  only the acceptance of the request by the Headquarters, the appropriate Authority was said to have been made only on 20.2.86, a day after the respondent withdrew his request for pre-mature  retirement but even such acceptance in this case was  to  be  effective from a future  date  namely  31.8.86. Consequently,  it could not be legitimately contended by the appellants  that there was any cessation of the relationship of  master  and  servant  between  the  Department  and  the respondent  at  any rate before 31.8.86.  While that be  the position  inevitably  the  respondent had a  right  and  was entitled  to  withdraw  or revoke his request  earlier  made before it ever really and effectively became effective.

     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  pre-mature  retirement cannot, in  our  view,  be destructive  of  the  right of the respondent,  in  law,  to withdraw  his  request for pre-mature retirement  before  it ever became 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  of 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.

     For all the reasons stated above, the appeal fails and shall  stand  dismissed.  The time limit stipulated  by  the learned  Single Judge to settle the claims and consequential benefits  due  to respondent shall commence and be  computed from this date, for compliance.