http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 9  

PETITIONER: BALRAM GUPTA

       Vs.

RESPONDENT: UNION OF INDIA & ANR.

DATE OF JUDGMENT01/09/1987

BENCH: MUKHARJI, SABYASACHI (J) BENCH: MUKHARJI, SABYASACHI (J) OZA, G.L. (J)

CITATION:  1987 AIR 2354            1987 SCR  (3)1173  1987 SCC  Supl.  228     JT 1987 (3)   480  1987 SCALE  (2)521  CITATOR INFO :  F          1989 SC1083  (8)

ACT:     Central  Civil  Services  (Pension)  Rules,  1972:  Rule 48A(4)--Notice of voluntary retirement--Withdrawal  of--When permissible.     Civil  Services: Civil Servant--Withdrawal of notice  of voluntary retirement--Whether permissible.

HEADNOTE:     The  appellant  offered to resign voluntarily  from  his service by letter dated 24th December. 1980 with effect from 31st  March, 1981 under Rule 48A of the Central Civil  Serv- ices  (Pension)  Rules, 1972, having rendered by  then  more than 20 years service. The notice period of three months was to  commence from 1st January, 1981. By an order dated  20th January, 1981 he was allowed to retire voluntarily  prospec- tively with effect from the afternoon of 31st March, 1981.     On  account of personal requests from the staff  members the  appellant, however, changed his mind and by his  letter dated 31st January, 1981 requested the authorities that  his resignation  might  be treated as cancelled and  the  notice given by him be treated as withdrawn. He was not allowed  to do  so and was relieved by an order dated 31st March,  1981. The respondent No. 2 informed him that in view of the activ- ities  of the appellant in his capacity as the Secretary  of the Employees’ Association it has been found appropriate  to ease him out from service.     The  High Court dismissed the appellant’s writ  petition on  the ground that sub-rule (4) of Rule 48A of the  Pension Rules enables the Government servant to withdraw his  appli- cation  for voluntary retirement only with the  approval  of the Government. The approval having not been given the  rule had been complied with.     In  this appeal by special leave, it was  contended  for the appellant that if Rule 48(A) be read as consistent  with the constitutional requirements of reasonableness, which  is a  well accepted rule of construction, then  the  Government could not withhold approval to the withdrawal of 1174 resignation without any rhyme or reason. For the respondents

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 9  

it was contended that a Government servant was not  entitled to  demand as of right permission to withdraw the letter  of Voluntary retirement, it could only be given as a matter  of grace, that it was not in the knowledge of the respondent as to  what prompted the appellant to request  the  withdrawal, that  the application for withdrawal was considered  in  the light of the guidelines laid down by O.M. No.  24(57)-E-V-32 dated  24th December, 1952 for considering and  deciding  in the  matter  of  accepting or refusing  the  withdrawals  of notice  of voluntary retirement and the request  was  turned down  appropriately, and that once the notice was  given  it became operative immediately. Allowing the appeal,     HELD: 1.1 There was no valid reason for withholding  the permission  by the respondent to the appellant  to  withdraw his notice of voluntary retirement. [1182H-1183A]     1.2 On the principle of general law that in the  absence of a legal, contractual or constitutional bar an  intimation in  writing sent to the appropriate authority by  an  incum- bent, of his intention or proposal to resign his office/post from a future specified date, can be withdrawn by him at any time  before  it effects termination of the  tenure  of  the office/post  or employment, the offer of  relinquishment  in the instant case, could have been withdrawn by the appellant before the date it became effective if sub-rule (4) of  Rule 48-A was not there. [1180G-1181A]     Union  of India v. Shri Gopal Chandra Misra and  others, [1978] 3 S.C.R. 12, referred to.     1.3  Sub-rule  (4)  of Role 48-A of  the  Pension  Rules enjoins  that a Government servant shall be  precluded  from withdrawing his notice except with the specific approval  of the  appointing  authority.  The proviso  to  that  sub-rule stipulates  that  the request for withdrawal shall  be  made before  the intended date of his retirement. That  had  been done in the instant case. [1178H-1179A]     1.4  Approval under r. 48A(4) is not ipse dixit  of  the approving  authority.  The approving authority who  has  the statutory authority must act reasonably and rationally.  The guidelines  laid  down  by  O.M.  No.  24(57)-E-V-32   dated 24.12.1952  for  considering and deciding in the  matter  of accepting or refusing the withdrawal of notices of voluntary             1175 retirement  are  that ordinarily permission  should  not  be granted  unless  the officer concerned is in a  position  to show  that there has been a material change in  the  circum- stances in consideration of which the notice was  originally given.  There has been compliance with these  guidelines  in the  instant case, because the appellant has indicated  that there  was a change in the circumstances. In the notice  for resignation  he had not given any reason. There was  nothing wrong in this. He has stated that the persistent and person- al requests from the staff members and relations had changed his  attitude towards continuing in Government  service  and induced  him to withdraw the notice. This was not an  unrea- sonable reason. [1181G, 1179FG, 1182E, 1183AB, 1182F, 1181H]     2.  It  cannot  be said that once notice  was  given  it became  operative  immediately, if it was  received  by  the Government  and automatically brought about the  dissolution of contract after the expiry of notice period. The  dissolu- tion in the instant case, would have been brought about only on the date indicated in the notice, i.e. 31st March,  1981, upto  which the appellant was and is a Government  employee. There  could be no unilateral termination of the same  prior thereto.  He  was  at liberty,  and  entitled  independently without sub-rule (4) of Rule 48-A of the Pension Rules, as a

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 9  

Government  servant  to  withdraw his  notice  of  voluntary retirement. In this respect it stands at par with letter  of resignation. [1180A-C]     3.  In the modern age the Court should not  put  embargo upon  people’s choice or freedom. If the administration  had made  arrangements  acting on his resignation or  letter  of retirement  to  make other employee available for  his  job, that  would  have been another matter  but  the  appellant’s offer  to retire and withdrawal of the same happened  in  so quick succession that it cannot be said that any administra- tive set up or arrangement was affected. [1182FG] Raj Kumar v. Union of India, [1968] 3 SCR, 857, referred to.     4.  There should not be arbitrariness and  hostile  dis- crimination  in Government’s approach to its employees.  The Court cannot but condemn circuitous ways to ease out  uncom- fortable employees. As a model employer the Government  must conduct  itself with high probity and candour with  its  em- ployees.  In the modern and uncertain age it is very  diffi- cult to arrange one’s future with any amount of certainty, a certain  amount  of  flexibility is required,  and  if  such flexibility  does not jeopardize Government  or  administra- tion,  administration should be graceful enough  to  respond and acknowledge the flexibility of human mind and  attitude. [1181BC, 1183C, B] 1176     Air India etc. etc. v. Nergesh Meerza & Ors. etc.  etc., [1982] 1 S.C.R. 438, referred to.     5. The appellant in the instant case, is entitled to  be put  back  to his job with all  the  consequential  benefits being  treated  as  in the job from  31st  of  March,  1981. [1183DE]

JUDGMENT:     CIVIL  APPELLATE JURISDICTION: Civil Appeal No. 2057  of 1987.     From the Judgment and Order dated 13.7.1987 of the Delhi High Court in Civil Writ No. 1604 of 1981. G.D. Gupta and Ashok K. Mahajan for the Appellant.     G.S.  Shah,  Hemant Sharma and C.V. Subba  Rao  for  the Respondents. The Judgment of the Court was delivered by SABYASACHI MUKHARJI, J. Special leave granted.     In  1980 the appellant was working as an  Accountant  in the Photo Division of the Ministry of Information and Broad- casting, New Delhi. By that time the appellant had  rendered more  than  20 years’ service. By the letter dated  24th  of December,  1980  the appellant sought  voluntary  retirement from the service after having completed more than 20  years’ service. The said letter dated 24th of December, 1980  which was  addressed to the Director, Photo Division, Ministry  of Information   and  Broadcasting  stated,  inter   alia,   as follows:-                        "I  beg to seek voluntary  retirement               on 31.3. 1981. I had joined government service               on  4th  August, 1958, thus I  have  completed               more  than 20 years service. My notice  period               may please be treated w.e.f. 1.1. 1981.     The  appellant states that three months notice  was  re- quired  by the rules of service to which the  appellant  be- longed. The said voluntary retirement was sought under  Rule 48-A  of  the Central Civil Services (Pension)  Rules,  1972 (hereinafter  referred to as ’the Pension Rules’). The  Rule 48-A provides as follows:

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 9  

                      "48-A. Retirement on completion of 20               years’ qualifying service:                      1177                        (1)  At any time after  a  Government               servant has completed twenty years’ qualifying               service, he may, by giving notice of not  less               than three months in writing to the appointing               authority, retire from service.                        (2)  The notice of voluntary  retire-               ment  given under sub-rule (1)  shall  require               acceptance by the appointing authority.                        Provided  that where  the  appointing               authority does not refuse to grant the permis-               sion  for retirement before the expiry of  the               period  specified  in  the  said  notice,  the               retirement  shall  become effective  from  the               date of expiry of the said period."                   Sub-rule  (4) of Rule 48-A prevents  with-               drawal  of resignation letter except with  the               approval  of the authority. The said  sub-rule               (4-) provides as follows:                        "(4)  A Government servant,  who  has               elected  to  retire under this  rule  and  has               given  the necessary notice to that effect  to               the  appointing authority, shall be  precluded               from  withdrawing his notice except  with  the               specific approval of such authority."     Acting  on the basis of the letter of retirement, by  an order dated 20th of January, 198 1 the appellant was allowed to retire voluntarily from service prospectively with effect from  the  afternoon of 31st March, 198 1.  The  said  order dated 20th January, 198 1 read as follows:                         "Shri Bal Ram Gupta, permanent Upper               Division  Clerk and officiating Accountant  in               the Photo Division is allowed to retire volun-               tarily with effect from the afternoon of  31st               March, 1981, in accordance with the provisions               contained  in  the Ministry of  Home  Affairs,               Department  of  Personnel  and  Administrative               Reforms O .M. No. 250 13 7 77 Estt. (A)  dated               26th August, 1977."     In  the meantime, however, the appellant states that  on account  of persistent and personal requests from the  staff members, the appellant had changed his mind and consequently had  by  his letter dated 31st January, 1981  withdrawn  his notice of voluntary retirement. He stated in his letter that he had dropped the idea of seeking voluntary 1178 retirement and he, therefore, requested the authorities that his  request for resignation might be treated  as  cancelled and the notice given by him treated as withdrawn. The appel- lant,  however, was not allowed to do so. The appellant  was relieved  by an order dated 31st March, 1981. It was  stated in  the said order that his request contained in the  letter dated 31st January,  1981 for withdrawal of his  application for voluntary retirement "has also been considered and found not acceptable".     The  appellant contended before the authorities and  the High  Court that in view of his letter dated  31st  January, 1981  seeking withdrawal of his letter of  resignation,  the impugned  order dated 31st March, 198 1 retiring the  appel- lant  was illegal and invalid. The appellant,  however,  was asked  to  leave the office immediately. The  appellant  was thereafter sent the gratuity form for claiming his  retiring benefits.  The appellant met respondent No. 2 and  requested

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 9  

him  that his case may be considered on merits and  the  de- partment should not "hush up" the matters like this but  the same  was to no avail. The respondent No. 2,  the  Director, Photo  Division,  Ministry of Information  and  Broadcasting clearly  informed the appellant that in view of the  activi- ties  of the appellant in his capacity as the  Secretary  of the  Photo Division Employees Association  (Registered),  it had been found appropriate to "ease him out" from the  serv- ice.  In spite of the several representations  nothing  hap- pened,  the appellant moved the High Court by a  writ  peti- tion.  The Delhi High Court dismissed the  appellant’s  writ petition on the ground that the rule enabled the  government servant to withdraw his application for voluntary retirement only  with the approval of the Government. The approval  had not  been  given by the Government. According  to  the  High Court  the rule had been complied with. The  Government  had considered  afresh  the  application of  the  appellant  and Government found no reasons to interfere with the refusal to permit the appellant to withdraw his resignation. The appel- lant thereafter has come up in appeal to this Court.     The facts, therefore, are that the appellant offered  to resign  from his service by the letter dated 24th  December, 1980 with effect from 31st March, 1981 and according to  the appellant  his  resignation would have  been  effective,  if accepted, only from 31st March, 1981. Before the resignation could  have  become  effective the  appellant  withdrew  the application by the letter dated 31st of January, 1981,  long before, according to the appellant, the date the resignation could  have been effective. In the meantime, however,  prior thereto  on  the 20th of January, 1981  the  respondent  has purported  to accept the resignation with effect  from  31st March, 1981. The appropriate rule sub-rule (4) of      1179 Rule  48-A  of  the Pension Rules as  set  out  hereinbefore enjoins  that a government servant shall be  precluded  from withdrawing his notice except with the specific approval  of such authority. The proviso stipulates that the request  for withdrawal  shall  be made before the intended date  of  his retirement. That had been done. The approval of the authori- ty was, however, not given. Therefore, the normal rule which prevails  in  certain cases that a person can  withdraw  his resignation  before it is effective would not apply in  full force  to a case of this nature because here the  Government servant  cannot  withdraw except with the approval  of  such authority.     Learned  counsel appearing for the  appellant  contended before us that this rule was bad as violative of the  Funda- mental Rights of citizens. Challenge to the rule was however not made before the High Court on this ground. He,  however, contended  that if the rule be read as consistent  with  the constitutional  requirements  of  reasonableness  which   is well  .accepted  rule of construction, then  the  Government could not withhold approval to the withdrawal of resignation without any rhyme or reason. The counter-affidavit filed  in this  proceeding by Shri Majgaonkar, who is  the  respondent No.  2  in  this appeal reveals very little as  to  why  the sanction  was withheld. It is stated in paragraph 5  of  the said  affidavit  that  it was not in the  knowledge  of  the respondent as to what prompted the appellant to request  the withdrawal. What is important in this connection to be borne in  mind is not what prompted the desire for withdrawal  but what  is  important  is what prompted  the  government  from withholding  the withdrawal. In this respect the  government affidavit  certainly  lacks candour.  In  appropriate  cases where  the Government desires that public servant who  seeks

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 9  

voluntarily to resign should not be allowed to continue,  it is open to the Government to state those reasons. There  may be hundred and one situations where a situation or  opportu- nity  like this may be used by the Government to ease out  a disgruntled  or  reluctant or troublesome employee.  It  was further  stated that there were guidelines which  were  laid down  by  the O.M. No. 24(57)-E-V-32  dated  24.12.1952  for considering  and  deciding  in the matter  of  accepting  or refusing the withdrawals of notices of voluntary retirement. What  part of the guidelines was violated by  the  appellant was  not indicated or spelled out in the said affidavit.  We would advert to certain guidelines and examine if these were violated  later. It is only stated that the application  for withdrawal  was considered in the light of the  said  guide- lines and the request was turned down appropriately. It  was further stated that the notice of termination of service  or of retirement is a unilateral act whereby the officer commu- nicates his intention to dissolve the 1180 contract  of  service  and unlike  resignation  it  operates without  the consent of the other party. It  is,  therefore, submitted  that  once notice was given it  became  operative immediately, if it was received by the Government and  auto- matically  brought about the dissolution of  contract  after the  expiry  of the notice period. We are unable  to  accept this submission and this position. The dissolution would  be brought  about  only  on the date indicated  i.e.,  31st  of March,  1981, upto that the -appellant was and is a  Govern- ment  employee.  There is no unilateral termination  of  the same prior thereto. He is at liberty, and entitled independ- ently  without  sub-rule  (4) of Rule 48-A  of  the  Pension Rules,  as a Government servant, to withdraw his  notice  of voluntary retirement. In this respect it stands at par  with letter of resignation.     This  question  arose  in the case of  one  Shri  Satish Chandra,  then  a Judge in the High Court  of  Allahabad  in Union  of  India  v. Shri Gopal Chandra  Misra  and  others, [1978] 3 S.C.R. 12. There the second respondent Shri  Satish Chandra  wrote  to the President of India, on May  7,  1977, intimating  his resignation from the office of Judge of  the Allahabad High Court, with effect from 1st of August,  1977. On July 15, 1977, he again wrote to the President,  revoking his earlier communication, and commenced deciding matters in Court  from July 16, 1977. On 1st of August, 1977 the  first respondent  Shri Misra, an advocate of the said  High  Court filed a writ petition under Article 226 of the  Constitution contending  that  the  resignation of  Shri  Satish  Chandra having  been duly communicated to the President of India  in accordance with Article 217(1) Proviso (a) of the  Constitu- tion was final and irrevocable, and that the continuance  of said Shri Satish Chandra as a Judge of the High Court there- after,  was an usurpation of public office. The  High  Court allowed  the petition holding that Shri Satish  Chandra  was not  competent to revoke his resignation letter.  On  appeal this  Court held that the resigning office  necessarily  in- volved relinquishment of the office which implied  cessation or  termination of, or cutting as under from the  office.  A complete and effective act of resigning office is one  which severs  the link of the resigner with his office and  termi- nates  its  tenure. In the context of  Article  217(1)  this assumes  the character of a decisive test, because  the  ex- pression  "resign  his  office" occurs in  a  proviso  which excepts  or  qualifies  the substantive  clause  fixing  the office  tenure of a judge upto the age of 62 years.  It  was further reiterated that in the absence of a legal,  contrac-

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 9  

tual or constitutional bar, an intimation in writing sent to the appropriate authority by an incumbent, of his  intention or  proposal to resign his office/post from a future  speci- fied  date,  can be withdrawn by him at any time  before  it becomes effective i.e., before it effects termination of the tenure of the office/post, or employment. This general 1181 rule  equally applies to Government servants  and  constitu- tional  functionaries,  this  Court  reiterated.  The  other peculiar  essence of Article 2 17 which was  discussed  need not detain us in the facts of this case. On the principle of general  law  the offer to relinquishment  could  have  been withdrawn by the appellant before the date it became  effec- tive if sub-rule (4) of Rule 48-A was not there.     In  Air  India etc. etc. v. Nergesh Meerza &  Ors.  etc. etc.,  [1982]  1  S.C.R. 438, there the  Court  struck  down certain  provisions of Air India Employees  Service  Regula- tions. We are not concerned with the actual controversy. But the Court reiterated that there should not be  arbitrariness and  hostile discrimination in Government’s approach to  its employees. On behalf of the respondent it was submitted that a Government servant was not entitled to demand as of right, permission  to withdraw the letter of voluntary  retirement, it  could only be given as a matter of grace. Our  attention was  also  drawn to the observations of this  Court  in  Raj Kumar  v.  Union of India, [1968] 3 S.C.R.  857.  There  the Court  reiterated that till the resignation was accepted  by the  appropriate  authority  in consonance  with  the  rules governing  the acceptance, the public servant concerned  has locus poenitentiae but not thereafter. Undue delay in  inti- mating  to the public servant concerned the action taken  on the  letter  of resignation may justify  an  inference  that resignation  had not been accepted. But in the facts of  the instant case the resignation from the Government servant was to  take effect at a subsequent date prospectively  and  the withdrawal was long before that date. Therefore, the  appel- lant,  in our opinion, had locus. As mentioned  hereinbefore the main question was whether the sub-rule (4) of Rule  48-A was  valid and if so whether the power exercised  under  the sub-rule  (4) of Rule 48-A was proper. In the view  we  have taken it is not necessary, in our opinion, to decide whether subrule  (4)  of  Rule 48-A was valid or not. It  may  be  a salutary requirement that a Government servant cannot  with- draw  a letter of resignation or of voluntary retirement  at his  sweet will and put the Government into difficulties  by writing letters of resignation or retirement and withdrawing the  same immediately without rhyme or  reasons.  Therefore, for the purpose of appeal we do not propose to consider  the question  whether sub-rule (4) of Rule 48-A of  the  Pension Rules  is valid or not. If properly exercised the  power  of the government may be a salutary rule. Approval, however, is not  ipse  dixit of the approving authority.  The  approving authority who has the statutory authority must act  reasona- bly and rationally. The only reason put forward here is that the appellant had not indicated his reasons for  withdrawal. This, in our opinion, was sufficiently indicated that he was prevailed upon by his friends and the appellant had a second look at the matter. This is 1182 not an unreasonable reason. The guidelines indicated are  as follows:                        "(2)  A  question  has  been   raised               whether a Government servant who has given  to               the appropriate authority notice of retirement               under the para 2(2) above has any right subse-

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 9  

             quently  (but during the currency of  the  no-               tice) to withdraw the same and return to duty.               The question has been considered carefully and               the conclusion reached is that the  Government               servant has no such right. There would, howev-               er, be no objection to permission being  given               to such a Government servant, on consideration               of  the circumstances of his case to  withdraw               the  notice given by him, but ordinarily  such               permission should not be granted unless he  is               in  a position to show that there has  been  a               material  change in the circumstances in  con-               sideration of which the notice was  originally               given.               Where the notice of retirement has been served               by  Government on the Government  servant,  it               may  be withdrawn if so desired  for  adequate               reasons, provided the Government servant  con-               cerned is agreeable."     In this case the guidelines are that ordinarily  permis- sion  should not be granted unless the Officer concerned  is in a position to show that there has been a material  change in  the circumstances in consideration of which  the  notice was originally given. In the facts of the instant case  such indication has been given. The appellant has stated that  on the persistent and personal requests of the staff members he had dropped the idea of seeking voluntary retirement. We  do not see how this could not be a good and valid reason. It is true that he was resigning and in the notice for resignation he  had not given any reason except to state that he  sought voluntary  retirement. We see nothing wrong in this. In  the modern age we should not put embargo upon people’s choice or freedom.  If, however, the administration had made  arrange- ments  acting on his resignation or letter of retirement  to make  other  employee available for his job, that  would  be another  matter  but  the appellant’s offer  to  retire  and withdrawal of the same happened in so quick succession  that it cannot be said that any administrative set up or  manage- ment  was affected. The administration has now taken a  long time by its own attitude to communicate the matter. For this purpose the respondent is to blame and not the appellant. We  hold,  therefore,  that there was no  valid  reason  for withhold- 1183 ing  the permission,by the respondent. We hold further  that there  has been compliance with the guidelines  because  the appellant  has  indicated  that there was a  change  in  the circumstances, namely, the persistent and personal  requests from  the  staff  members and relations  which  changed  his attitude  towards continuing in Government service  and  in- duced  the appellant to withdraw the notice. In  the  modern and  uncertain  age it is very difficult  to  arrange  one’s future  with  any amount of certainty, a certain  amount  of flexibility  is required, and if such flexibility  does  not jeopardize  Government  or  administration,   administration should  be  graceful enough to respond and  acknowledge  the flexibility of human mind and attitude and allow the  appel- lant  to withdraw his letter of retirement in the facts  and circumstances  of  this case. Much complications  which  had arisen  could have been thus avoided by such graceful  atti- tude. The court cannot but condemn circuitous ways "to  ease out"  uncomfortable employees. As a model employer the  gov- ernment  must conduct itself with high probity  and  candour with its employees.     In  the aforesaid view of the matter, we are  unable  to

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 9 of 9  

sustain  the judgment and order of the High Court  of  Delhi dated  13th of July, 198 1 and the same are, therefore,  set aside. The appeal is accordingly allowed with costs and  the appellant is entitled to be put back to his job with all the consequential benefits being treated as in the job from 31st of March, 1981. P.S.S.                                                Appeal allowed. 1184