# Dinesh Prasad Chaurasia v. Managing Director & Ors. 1404 INDIAN LAW REPORTS ALLAHABAD SERIES

- **Citation:** (2016) 5 ILRA 1403
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2016-05-30
- **Bench:** Ashwani Kumar Mishra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/dinesh-prasad-chaurasia-v-managing-director-ors-1404-indian-law-reports-43760
- **Pages:** 12

## Text

5 All. Dinesh Prasad Chaurasia Vs Managing Director & Ors.

1403
licence from the authorities. Any violation of Rules of licence would result in offence committed under
D and C Act.

30. Considering the above noted discussions, relevant provision of NDPS Act and Rules, D and
C Act and Rules and judgments of the Hon'ble Supreme Court, this Court is of the view that in the case
in hand if at all an offence has been committed it would be under D and C Act and no offence under
Section 8/22 of NDPS Act read with Rule 67 of NDPS Rules is made out.

31. Accordingly, the petitions are allowed.

32. The proceedings in crime case no. 288 of 2006, Union of India versus Tribhuwan Singh and
another pending in the court of Special Judge(E.C. Act), Lucknow under Section 8/22 of NDPS Act
read with Rule 67 of NDPS Rules and order dated 9.1.2007 passed by the court below in regard to the
petitioners only, are hereby quashed.

33. The proceedings in crime case no. 291 of 2006, Union of India versus Vijai Kumar
Agrawal and another pending in the court of Special Judge(E.C. Act), Lucknow under Section 8/22 of
NDPS Act read with Rule 67 of NDPS Rules and order dated 2.12.2006 passed by the court below in
regard to the petitioners only, are hereby quashed.

34. The proceedings in crime case no. 290 of 2006, Union of India versus Vijai Kumar
Agrawal and another pending in the court of Special Judge(E.C. Act), Lucknow under Section 8/22 of
NDPS Act read with Rule 67 of NDPS Rules and order dated 2.12.2006 passed by the court below in
regard to the petitioners only, are hereby quashed.

35. The proceedings in crime case no. 292 of 2006, Union of India versus V.K. Agrawal and
another pending in the court of Special Judge(E.C. Act), Lucknow under Section 8/22 of NDPS Act
read with Rule 67 of NDPS Rules and order dated 2.12.2006 passed by the court below in regard to the
petitioners only, are hereby quashed.
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ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 30.05.2016

BEFORE

THE HON'BLE ASHWANI KUMAR MISHRA, J.

Writ A No.- 8679 Of 1999

Dinesh Prasad Chaurasia
 ...Petitioner
Versus
Managing Director & Ors. ...Respondents
1404 INDIAN LAW REPORTS ALLAHABAD SERIES
Counsel for Petitioner:
M.C.Kandpal, Komal Mehrotra

Counsel for Respondents:
V.K.Singh, M.C. Pandey, S.C.

SERVICE LAW - RESIGNATION - WITHDRAWAL BEFORE ACCEPTANCE - COMPETENCY TO
ACCEPT THEREAFTER - REINSTATEMENT - BACK WAGES.

FACTS:

The Petitioner, appointed as a Junior Assistant on 26.04.1980 in the U.P. Forest Corporation and posted at
various stations, was ultimately transferred to Karvi Logging Division. He remained absent from duty from
05.08.1985 onwards, after serving briefly at Karvi from 12.07.1985 to 05.08.1985. On 28.10.1986, the
Petitioner submitted a formal resignation to the Corporation. Despite repeated correspondence between 1988
and 1995 - including letters from the Corporation directing the Petitioner to re-submit his resignation to the
competent Regional Office at Allahabad - the resignation was not formally accepted.

On 28.02.1996, the Petitioner wrote to the Personnel Officer of the Head Office withdrawing his resignation.
The withdrawal was duly served and acknowledged by the Corporation vide letter dated 07.09.1998.
Notwithstanding the withdrawal, the Regional Manager (the competent authority) unconditionally accepted
the Petitioner's resignation by order dated 30.12.1998, purportedly with effect from 28.10.1986 - the date of
its original tendering. The Petitioner challenged this order by way of a Writ Petition before this Court.

ISSUES:

(i) Whether resignation, once validly withdrawn by an employee prior to acceptance by the competent
authority, can thereafter be accepted by the employer.

(ii) Whether the Petitioner, whose resignation was wrongly accepted after its withdrawal, is entitled to
reinstatement and back wages.

HELD:

(i) Under Clause 23 of the U.P. Forest Corporation General Service Regulation, 1985, a resignation does not
become effective until it is accepted by the competent authority. Since the resignation tendered on
28.10.1986 had not been accepted until the Petitioner validly withdrew it on 28.02.1996, the offer to sever
the employer-employee relationship was no longer subsisting on the date the acceptance order was
purportedly passed on 30.12.1998. Acceptance of a resignation that has already been withdrawn is
incompetent and void in law.

(ii) It is a settled legal position that in the absence of a statutory bar, a prospective or pending resignation
may be withdrawn by the employee at any time before it becomes effective, i.e., before it operates to
terminate the employment. Once a valid withdrawal is communicated and received, the employer loses the
competence to accept the resigned offer. The principle was affirmed by the Supreme Court in Union of India
v. Gopal Chandra Misra (AIR 1978 SC 694), Balram Gupta v. Union of India (AIR 1987 SC 2354) and Power
Finance Corporation Ltd. v. Pramod Kumar Bhatia [(1997) 4 SCC 280].

(iii) The impugned order dated 30.12.1998 accepting the Petitioner's resignation is accordingly set aside. The
Petitioner is entitled to reinstatement with continuity of service.
5 All. Dinesh Prasad Chaurasia Vs Managing Director & Ors.

1405
(iv) However, back wages cannot be awarded as a matter of routine. On the facts, the Petitioner was himself
responsible for his prolonged absence from duty since 1985 and displayed no serious intent to resume work.
The resignation was withdrawn only after 11 years and the Petitioner subsequently took no concrete steps to
rejoin. Considering the peculiar facts and circumstances, the Petitioner is awarded a consolidated sum of Rs.
1,00,000/- (Rupees One Lakh only) towards back wages, in lieu of full back wages.
RATIO DECIDENDI

A resignation pending acceptance is merely an offer to sever the jural relationship of employer and employee.
Such an offer retains the character of an offer until accepted by the competent authority in accordance with
the governing service rules. The employee possesses locus poenitentiae - the right to retract - at any time
before such acceptance is communicated. Once a valid written withdrawal of resignation is made and served
upon the authority, the offer stands revoked and there is no subsisting resignation capable of acceptance. Any
purported order of acceptance made thereafter is without competence, illegal, and liable to be set aside.

RESULT: Writ petition is, accordingly, disposed of. Order dated 30.12.1998 set aside. Reinstatement with
continuity of service ordered. Consolidated back wages of Rs. 1,00,000/- awarded. No order as to costs.

Case listed
1. Raj Narain v. Smt. Indira Nehru Gandhi - AIR 1972 SC 1302
2. Union of India v. Gopal Chandra Misra and Others - AIR 1978 SC 694 (Constitution Bench)
3. Central Inland Water Transport Corporation Ltd. v. Brojonath Ganguli - AIR 1986 SC 1571
4. Balram Gupta v. Union of India and Another - AIR 1987 SC 2354
5. Power Finance Corporation Ltd. v. Pramod Kumar Bhatia - (1997) 4 SCC 280
6. Shambhu Murari Sinha v. Project and Development India and Another - 2000 (86) FLR 206
7. Managing Director, Orissa State Handloom Weavers' Co-operative Society Ltd. v.
Satyanarayan Pattnaik and Another - (2014) 3 SCC 218

(Delivered by Hon'ble Ashwani Kumar Mishra, J.)

 1. Petitioner, who was an Assistant Accountant in U.P. Forest Corporation, submitted
resignation on 28th October, 1986. Regional Manager, who was the competent authority, has
unconditionally accepted resignation on 30th December, 1998, which is under challenge in the
present writ petition. Petitioner contends that he had already withdrawn his resignation on
28.2.1996, which was acknowledged by the Corporation vide letter dated 7.9.1998, and therefore,
resignation could not be accepted, once it stood withdrawn.

2. Briefly stated facts, giving rise to filing of the present writ petition, are that petitioner
was appointed as Junior Assistant on 26.4.1980 and was posted at Khatima, Nainital. It is claimed
that he was then transferred to Pilihhit, Haldwani and Kumaun, within a period of four years,
pursuant to which he joined. By an order dated 12th March, 1984, petitioner was deputed to
perform temporary duty, relating to collection of Tendu Patta at Karvi Logging Division of U.P.
Forest Corporation, but such orders were not complied, although advance was received for the
purpose by the petitioner of Rs.500/-. Petitioner was then transferred to Karvi Logging Division
from Kumaun Region on 1.6.1984. It appears that petitioner did not join at Karvi, and remained
absent from 6.4.1984 to 27.12.1984. A supplementary counter affidavit has been filed by the
respondents alleging that petitioner applied for medical leave on 28.12.1984, whereafter matter was
1406 INDIAN LAW REPORTS ALLAHABAD SERIES
enquired, and the Corporation was informed that petitioner had opened a shop in the name of Roop
Sringar in Nainital, and that he was in fact engaged in commercial activity. However, petitioner's
medical leave from 6.4.1984 to 27.12.1984 was sanctioned. When petitioner reported for duty at
Kumaun, he was informed on 2.1.1985 to report for duty at Karvi, as he had already been
transferred, but the petitioner failed to join, and again remained absent from service for more than
six months, and it was only on 12.7.1985 that he reported at Karvi Logging Division. Petitioner is
stated to have again absented from duty from 5.8.1985, and a telegram was sent by the petitioner on
11.11.1985 stating that he was unable to continue with his service and that a resignation is being
forwarded. Ultimately, a resignation was submitted by the petitioner on 28.10.1986, which came to
be accepted by the Corporation after 12 years on 30th December, 1998. It is, however, not in
dispute that petitioner remained absent since 5.8.1985 onwards.

3. The statement made in the supplementary counter affidavit of the respondents about
opening and running of business venture has been disputed on behalf of petitioner. Since such
claims have been made by the respondents, during the course of hearing of the matter, and
petitioner had no opportunity to submit a reply on such count, as such, no opinion is expressed by
the Court on this aspect.

4. According to the petitioner, his wife was running ill, and he was not being paid his
salary regularly, as such it was difficult for the petitioner to work permanently at Karvi, Banda. It is
claimed that although he joined pursuant to order of transfer, but he could not continue, owing to
noncooperative behaviour of the officials in the matter of payment of salary, which forced the
petitioner to submit unconditional resignation on 4.11.1985. This letter dated 4.11.1985 was
returned by the Regional Office at Karvi, and therefore, a subsequent resignation dated 28.10.1986
was sent by the petitioner. However, the resignation was not accepted, and the respondents also
stopped paying salary, as such a letter was sent by him on 3 4.2.1989, which is Annexure-3 to the
writ petition, stating that either the petitioner's resignation be accepted, or he be assigned duties.
Petitioner further asserts that he was called to make audit by the Kumaun Office, which was duly
performed. A letter was sent by the Manager of the Regional Office, Southern Region, Allahabad,
dated 8.2.1995, stating that since he was posted in Southern Region, as such, resignation letter sent
to Nainital Office is being returned, and that the resignation be modified, and sent to the Regional
Office at Allahabad, so that steps for its acceptance could be taken. Reminder was again sent on
21.8.1995 by the Regional Office, Allahabad, and thereafter, by the Personnel Officer of the Head
Office for sending the resignation to the Regional Office, Southern Region, so that petitioner's
resignation could be accepted. It is in reply to the letter of the Personnel Officer of the Head Office
dated 5.9.1995 that petitioner has withdrawn his resignation vide his letter dated 28.2.1996.
Petitioner again claims to have sent letters to the Regional Office, Allahabad on 28.7.1996, and
subsequent letters are claimed to have been sent stating that no orders for petitioner's posting are
being issued. The Regional Officer vide his letter dated 7.9.1998 again informed the petitioner to
sent resignation letter directly to Regional Office at Allahabad, so that it could be accepted.
Petitioner responded to this letter on 11.9.1998 by stating that once he has withdrawn his
resignation, the question of sending any modified resignation letter does not arise. Petitioner, at this
5 All. Dinesh Prasad Chaurasia Vs Managing Director & Ors.

1407
stage, approached this Court by filing Writ Petition No.31500 of 1998, which was disposed of on
5.10.1998, vide following order:-

"Heard.

This petition is disposed of with the direction to the authority concerned to decide
the petitioner's representation, dated 10.8.98 and 11.9.98 within three months of production of a
certified copy of this order in accordance with law. Sri V.K. Singh learned counsel appeared for
the respondents."

5. The order is stated to have been served alongwith a letter dated 6.1.1999, and at such
stage, petitioner received the order dated 30th December, 1998, accepting his resignation. The
order accepts petitioner's resignation w.e.f. 28.10.1986. Learned counsel for the petitioner submits
that once petitioner had withdrawn his resignation, there remained no offer on part of the petitioner
to resign from services of the Corporation, which could be accepted. Learned counsel for the
petitioner has relied upon judgment of the Apex Court in Raj Narain Vs. Smt. Indira Nehru Gandhi,
reported in AIR 1972 SC 1302 to contend that service of a Government servant normally stands
terminated from the date on which letter of resignation is accepted by the appropriate authority,
unless there is any law or statutory regulation governing the service conditions, provide for a
contrary. Reliance has also been placed upon a Constitution Bench judgment in Union of India Vs.
Gopal Chandra Misra and others, reported in AIR 1978 SC 694, as well as upon the observations
made in Central Inland Water Transport Corporation Ltd. Vs. Brojonath Ganguli, reported in AIR
1986 SC 1571. According to learned counsel, as per Clause 23 of the service regulations framed for
the employees of the Corporation, a resignation would not be effective, unless it is accepted by the
competent authority. According to the petitioner, the acceptance of resignation on 30th December,
1998 was contrary to law, and the order impugned had been passed with the object of frustrating
the orders passed by the Writ Court for considering petitioner's grievance. Clause 23 of the U.P.
Forest Corporation General Service Regulation, 1985 is reproduced:-

 "23. डकसी कमगर्ारी का त्यागपत्र तब तक प्रभावी िहीं होगा जब तक उसे सक्षम प्राडिकारी द्वारा स्वीकार ि कर
डलया जाए।

सक्षम प्राडिकारी त्यागपत्र को स्वीकार करिे से इंकार कर सकता है, यडद-

1. कमगर्ारी डकसी डवडिडदगष्ट अवडि के डलए डिगम की सेवा करिे के डलए आबद्ध हो; या

2. कमगर्ारी ऐसे समय तक डकसी ििराडश और/या अन्य दाडयत्ों का ऋणी हो, जब तक उक्त ििराडश का भुगताि
ि कर डदया जाए या दाडयत् का उन्मोर्ि ि कर डदया जाए; या

3. ऐसे डकसी अन्य पयागप्त कारणों से, जैसा अडभडलखित डकया जाए।"

6. Learned counsel for the respondents, on the other hand, contends that petitioner had
virtually abandoned the services from 1985 onwards, and although the resignation was not formally
1408 INDIAN LAW REPORTS ALLAHABAD SERIES
accepted, but the contract of employment had been unilaterally surrendered by the petitioner in the
year 1985 itself, and it was not open for the petitioner to have withdrawn the resignation after 10
years, inasmuch as the mere acceptance of resignation was an empty formality in the facts and
circumstances of the present case. It is contended that the principles governing acceptance of
resignation has no applicability in the facts of the present case, as the case in hand is of
abandonment, and not of acceptance of resignation, and the order of resignation does not give any
fresh cause to the petitioner.

 7. I have heard Sri Manoj Kumar Sharma, learned counsel for the petitioner and Sri V.K.
Singh, learned Senior Counsel assisted by Sri S. Shekhar, learned counsel for the respondents, and
have perused the records.

8. From the facts appearing on record, it is apparent that ever since 1984, when petitioner
was asked to report for duty at Karvi, Banda, petitioner was not comfortable with the idea of
working there, and initially he applied for medical leave from 6.4.1984 to 27.12.1984, but he
appears to have again absented from duty. It appears that petitioner had worked at Karvi Logging
Division from 12.7.1985 to 5.8.1985 only, whereafter petitioner again absented, and ultimately sent
a telegram on 11.11.1985, which reads as under:-

"unable continue service Karwi may accept resignation follows"

9. This telegram has been sent from Nainital. It is not in dispute that ever since then,
petitioner continued to remain absent, and it was only in 1989 that a letter is claimed to have been
sent by the petitioner stating that either his resignation be accepted, or he be assigned duties. From
the materials, which have been brought on record, it seems that petitioner wanted to work only at
Nainital, and was not willing to work at Banda. Being holder of a transferable post, petitioner was
under an obligation to have complied with the orders issued by the employer, and either petitioner
ought to have challenged it, or was required to have complied with it. It appears that thereafter also,
petitioner remained absent, and the only communication, which took place in 1995, was about the
authority, who was to accept the resignation, inasmuch as petitioner had sent a resignation to the
Corporation through Regional Office at Kumaun, whereas respondents insisted to sent resignation
to Regional Office at Allahabad, where he was posted last. It further appears that this
correspondence continued between the parties till petitioner withdrew his resignation on 28.2.1996.
The withdrawal of resignation by the petitioner is not disputed. It seems that after the petitioner
filed a writ petition before this Court, orders were passed on 5.10.1998 for considering the
petitioner's representation, and that is when the order dated 30th December, 1998 has been passed
unconditionally accepting petitioner's resignation.

10. So far as legal proposition with regard to resignation and its acceptance are concerned,
the same is settled. Clause 23 of the U.P. Forest Corporation General Service Regulation, 1985,
which has been extracted above, provides that resignation will not become effective till it is
accepted by the competent authority. The resignation submitted by petitioner on 28.10.1986
remained on paper, and was not accepted till it was withdrawn on 28.2.1996. It is not in dispute that
5 All. Dinesh Prasad Chaurasia Vs Managing Director & Ors.

1409
letter dated 28.2.1996 was duly served. Once the resignation was withdrawn by petitioner prior to
its acceptance by the competent authority, it was not open for the respondents to have accepted the
same, vide order impugned dated 30th December, 1998. This is particularly so, as the offer on part
of petitioner to sever the contract of employment was not subsisting on the date when it was
accepted. The acceptance of resignation, therefore, was incompetent. Even otherwise, law is settled
that resignation can be 7 accepted, so long as it is not withdrawn. The observation made by the
Apex Court in para-22 of Raj Narain (supra) reads as under:-

"22. For the reasons mentioned above, we think that the learned judge was not
justified in striking out Issue No. 1. On the other hand. he should have reframed that issue, as
mentioned earlier. Before leaving- this question, it is necessary to mention one other fact. Yashpal
Kapur appears to have tendered his resignation to the office he was holding on January 13, 1971.
The certified copy of the notification produced shows that the President accepted his resignation on
the 25th of January '71 and the same was gazetted on February 6, 1971. The order of the President
shows that he accepted Yashpal Kapur's resignation with effect from January 14, 1971. The
learned trial judge without examining the true effect of the President's order has abruptly come to
the conclusion that Yashpal Kapur's resignation became effective as from January 14, 1971. This
conclusion, in our opinion, requires re examination. It is necessary to examine whether a
government servant's resignation can be accepted with effect from an earlier date. At any rate
whether such an acceptance has any validity in considering a corrupt practice under S. 123(7). If
such a course is permissible, it might enable the government to defeat the mandate of S. 123(7).
The question as to when a government servant's resignation becomes effective came up for
consideration by this Court in Raj Kumar v. Union of India(1). Therein this Court ruled that when
a public servant has invited by his letter of resignation the determination of his employment, his
service normally 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 statutory rule governing the conditions
of his 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. Hence the question as to when Yashpal Kapur's
resignation became effective will have to be examined with reference to his conditions of service.
This examination having nor been done, the conclusion of the learned trial judge that it became
effective on January 14, 1971, has to be ignored."

 11. Reliance has also been placed upon a judgment of the Apex Court in Balram Gupta Vs.
Union of India and another, reported in AIR 1987 SC 2354. Paras-10 to 13 of the judgment, which
are relevant for the purpose, are reproduced:-

"10. 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 8 Court filed a writ
1410 INDIAN LAW REPORTS ALLAHABAD SERIES
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 Constitution 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 involved
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 terminates its tenure. In the context of Article 217(1) this assumes the character
of a decisive test, because the expression "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, contractual 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 specified 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 rule equally applies to Government servants and constitutional 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 effective if sub-rule (4) of Rule 48-A was not
there.

11. 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 Regulations. 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 intimating 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 appellant, 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 subrule (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 9 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
5 All. Dinesh Prasad Chaurasia Vs Managing Director & Ors.

1411
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 reasonably
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 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 subsequently
(but during the currency of the notice) 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, however, 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 consideration 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
concerned is agreeable."

12. In this case the guidelines 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
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 arrangements 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 management 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.

13. We hold, therefore, that there was no valid reason for withholding 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 induced 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
1412 INDIAN LAW REPORTS ALLAHABAD SERIES
administration, administration should be graceful enough to respond and acknowledge the
flexibility of human mind and attitude and allow the appellant 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 attitude. The court cannot but condemn circuitous ways "to ease out"
uncomfortable employees. As a model employer the government must conduct itself with high
probity and candour with its employees."

12. In Power Finance Corporation Ltd. Vs. Parmod Kumar Bhatia, reported in 1997 (4)
SCC 280, following observations have been made in paragraph-7:-

"7. It is now settled legal position that unless the employee is relieved of the duty,
after acceptance of the offer of voluntary retirement or resignation, jural relationship of the
employee and the employer does not come to an end. since the order accepting the voluntary
retirement was a conditional one, the conditions ought to have been complied with. Before the
conditions could be complied with, the appellant withdrew the scheme. consequently, the order
accepting voluntary retirement did not become effective. Thereby no vested right has been created
in favour of the respondent. The High court, therefore, was not right in holding that the respondent
has acquired a vested right and, therefore, the appellant has no right to withdraw the scheme
subsequently."

13. A Constitution Bench in Union of India Vs. Gopal Chandra Misra and others, reported
in AIR 1978 SC 694, has been pleased to make following observations:-

"It will be 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
officetenure of the resignor......... If he 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 arrival of prospective date on which it was intended to be effective, withdraw it,
because the Constitution does not bar such withdrawal."

14. In view of the settled legal position, as well as considering the fact that in terms of
applicable service rules, resignation was to become effective only from the date of its acceptance
by the competent authority, the decision taken by the respondents to accept resignation from the
date of its tendering, after it had been withdrawn, is illegal and arbitrary. The order impugned,
consequently, cannot be sustained.

15. Having reached the conclusion aforesaid, the next question, which arises for
consideration, is as to what relief is liable to be granted to the petitioner. Law by now is well settled
that back wages cannot be granted, as a matter of routine. Learned counsel for the petitioner has
placed various decisions on this aspect of the matter. In Shambhu Murari Sinha Vs. Project and
Development India and another, reported in 2000 (86) FLR 206, it has been observed that in such
5 All. Dinesh Prasad Chaurasia Vs Managing Director & Ors.

1413
circumstances, the employee concerned would be entitled to continue with all consequential
benefits. Para-4 of the judgment is reproduced:-

"4. From the facts stated above, it would be seen that though the option of voluntary
retirement exercised by the appellant by his letter dated 18.10.1995 was accepted by the
respondent-management by their letter dated 30.7.1997, the appellant was not relieved from
service and he was allowed to continue in service till 26.9.1997, which, for all practical purposes,
would be the "effective date" as it was on this date that he was relieved from service. In the
meantime, as pointed out above, the appellant had already withdrawn the offer of voluntary
retirement vide his letter dated 7.8.1997. The question which, therefore, arises in this appeal is
whether it is open to a person having exercised option of voluntary retirement to withdraw the said
offer after its acceptance but before it is made effective. The question is squarely answered by the
three decisions, namely, Balram Gupta vs. Union of India & Anr. 1987 (Supp.) SCC 228; J.N.
Srivastava vs. Union of India & Anr. (1998) 9 SCC 559 and Power Finance Corporation Ltd. vs.
Pramod Kumar Bhatia (1997) 4 SCC 280, in which it was held that the resignation, in spite of its
acceptance, can be withdrawn before the "effective date". That being so, the appeal is allowed. The
impugned judgment of the High Court is set aside with the direction that the appellant shall be
allowed to continue in service with all consequential benefits. There will, however, be no order as
to costs."

 16. In Managing Director, Orissa State Handloom Weavers' Cooperative Society Ltd. Vs.
Satyanarayan Pattnaik and another, reported in 2014 (3) SCC 218, following observations have
been made in para-4 of the judgment, awarding 20@ of back wages:-

"4. Keeping the question of law open, looking at the peculiar facts of the case, we
feel that the appeal deserves to be allowed to a limited extent by directing the appellant employer
to pay only 20% of the back wages from the date when the respondent ceased to discharge his
duties till the date he is reinstated in service. The respondent shall be reinstated in service within
two weeks from today."

17. Per contra, learned counsel for the respondent Corporation submits that in the facts of
the present case, the petitioner has virtually abandoned the services, and acceptance of resignation
was a mere formality, and even if, the order of acceptance is held to be illegal, petitioner would not
be entitled to any back wages.

 18. From the materials, which have been brought on record, this Court finds that there was
an intentional act on part of the petitioner not to perform his duties from 1985 onwards. Except for
sending of certain letters, there was no serious intent on part of petitioner to actually work. It is
only after 11 years that the resignation was withdrawn. Even thereafter, petitioner did nothing, and
only in October, 1998, petitioner approached this Court by filing a writ petition.

 19. From the facts aforesaid, this Court finds that it was not a case, in which respondents
have prevented the petitioner from working, but petitioner was himself responsible for failing to
1414 INDIAN LAW REPORTS ALLAHABAD SERIES
perform his duties. Since the resignation was not accepted by the competent authority, and it had
been withdrawn before its acceptance, as such, the order impugned cannot be sustained, but the
petitioner would not be entitled to full back wages.

20. In the opinion of the Court, as the respondents could not have accepted the resignation
after it stood withdrawn, the order impugned dated 30.12.1998 is set aside. Petitioner would be
entitled to reinstatement alongwith continuity of service. In the peculiar facts and circumstances of
the present case, petitioner would be entitled to a consolidated sum of Rs.1,00,000/- towards back
wages.

21. The writ petition is, accordingly, disposed of. No order as to costs.
 ---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 27.05.2016

BEFORE

THE HON'BLE PRADEEP KUMAR SINGH BAGHEL, J.

Writ A No.- 25227 Of 2016

Smt. Shalu Sharma ...Petitioner
Versus
State Of U.P. & Anr. ...Respondents

Counsel for Petitioner:
Jeevanjee Srivastava

Counsel for Respondents:
C.S.C.

Service Law - Compassionate Appointment - Married Daughter - Definition of "Family" - Rule
2(c)(iii) of U.P. Recruitment of Dependents of Government Servants Dying-in-Harness Rules,
1974 - Word "Unmarried" Struck Down - Binding Effect of Division Bench Judgment -
Authorities Bound by Law Declared by High Court - Rejection Order Illegal - Contemptuous
Conduct - Impugned Orders Quashed - Matter Remitted

The petitioner, a married daughter of a deceased government servant, sought compassionate appointment
under the U.P. Recruitment of Dependents of Government Servants Dying-in-Harness Rules, 1974. Her claim
was rejected by the District Magistrate solely on the ground that she was a married daughter and thus
excluded from the definition of "family" under Rule 2(c)(iii).

Held that the Division Bench of this Court in Smt. Vimla Srivastava v. State of U.P. had declared the word
"unmarried" occurring in Rule 2(c)(iii) to be unconstitutional and violative of Articles 14 and 15 of the
Constitution, and had struck down the same. Once a provision of subordinate legislation is declared ultra
vires, it becomes inoperative for all purposes and binds all authorities within the jurisdiction of the Court,
irrespective of whether they were parties to the earlier proceedings.