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PETITIONER: UNION OF INDIA & ANR.

       Vs.

RESPONDENT: WING COMMANDER  T. PARTHASARATHY

DATE OF JUDGMENT:       10/11/2000

BENCH: Doraiswamy Raju, & Shivaraj V. Patil.

JUDGMENT:

Raju, J. L...I...T.......T.......T.......T.......T.......T.......T..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 Eamendment  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 certificate  given

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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

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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 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.