# Kanpur v. State of U.P. and others (AIR

- **Citation:** High Court of Judicature at Allahabad #39517
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2000
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/kanpur-v-state-of-u-p-and-others-air-39517
- **Pages:** 3

## Text

2ALL] Sri Devi Sharan Sharma V District Magistrate & others 13

(2)
By the Principal/Director, If the
maximum of the scale does not exceed Rs.
3500/-
 and
(3)
By the Board in other cases."

4. .In Annexure -2 to the writ petition it
is mentioned that the pay scale of the
petitioner was Rs. 2200-4000. Thus his
maximum pay scale was above Rs. 3500/- and
hence according to the Bye Law No. 3 the
petitioner's Appointing Authority was the
Board of Governors. Hence it is submitted
that only the Board of Governors can accept
the petitioner's resignation. Annexure-2 to the
counter affidavit shows that the petitioner's
resignation letter dated 6.9.93 was accepted
by the Principal on the same date, but the
Principal forwarded the matter to the Board of
Governors with the following endorsement: -
"Although usually one month's notice is
required to be given by the employee while
resigning, it is upto the Board of Governors
to accept the resignation with immediate
effect and to waive the notice period."

5. In our opinion the Principal had no
authority
or
jurisdiction
to
accept the
petitioner's resignation as the petitioner's
Appointing
Authority
is
the
Board
of
Governors and hence only the Board of
Governors can accept his resignation. In fact
the Principal has recognized this legal
position as he forwarded the papers to the
Board, but there was no acceptance by the
Board of Governors and instead it was the
State
Government
which
accepted
the
resignation on 17.1.94 i.e. long after the
petitioner had withdrawn his resignation.

6. In Union of India V. Gopal Chand
Mishra (AIR 1978 SC 694) it has been held
that resignation can be withdrawn at any time
before it become effective. In the case of
employees
for
whom
acceptance
of
resignation
is
necessary
obviously
the
resignation becomes effective only when it is
accepted. Similarly in M/S J.K. Cotton
Spinning & Weaving Mills Co. Ltd.
Kanpur V. State of U.P. and others (AIR
1990 SC 1808) it has been held that
resignation is not complete until it is accepted
by the proper authority. The same view has
been taken in several other decisions. In the
present case since the petitioner's resignation
was withdrawn before it was accepted hence
in our opinion the withdrawal of the
resignation was valid and acceptance of the
resignation was illegal.

7. Hence we set aside the impugned order
dated 27.1.94 (Annexxure-22 to the writ
petition) and hold that the petitioner validly
withdrew his resignation. The petitioner will
be reinstated in service within six weeks from
the date of production of a certified copy of
this order before the authority concerned and
shall be treated in continuous service as if his
service had never come to an end. He will get
seniority and all consequential benefits and
also arrears within three months from the date
of production of a certified copy of this order.
No. order as to costs.

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By the Court

1. The petitioner was appointed on
1.4.1976 as peon in Collectorate, Meerut. He
was regularised/confirmed with effect from
1.8.1972. Since he was a class IV employee
his age of superannuation was sixty years. His
date of birth being 28.4.1940 he was due to
retire in August, 2000. He was suspended on
28.2.1985 and remained under suspension till
18.3.1985. Thereafter, he was reinstated in
service. An adverse entry was awarded to him
on 25.6.1985. The respondent no. 1 by his
order dated 26.11.1991 compulsorily retired
the petitioner/ It is this order which is under
challenge in the instant writ petition.

2. I have heard Miss Rollie Kauser,
learned counsel for the petitioner and Sri V.K.
Rai, brief holder, State of Uttar Pradesh
appearing
for
the
respondents.
Learned
counsel for the petitioner has urged that on the
basis of one adverse entry the petitioner could
not be retired compulsorily and there was
nothing against the petitioner from the year
1986 to 1991. On the other hand learned
counsel for the respondents supported the
impugned order of compulsory retirement and
produced
the
report
of
the
screening
committee before this court. The relevant part
of the report of the screening committee so far
as t relates to the petitioner is quoted below :
"43-

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3. The report of the screening committee
demonstrates
that
the
petitioner
was
compulsorily retired on the basis of one
adverse entry awarded to him on 25.6.1985 as
he was under suspension for about twenty
days and he made incorrect allegations against
his officers. No material has been produced
by the counsel for respondents to show that
the petitioner was awarded any other adverse
entry. The question, therefore, that arises for
consideration is whether one adverse entry by
itself is sufficient for the appointing authority
to exercise his discretion that the retention of
an employee was not in public interest. The
compulsory retirement under rule 56 (c) of
Financial Hand Book Volume II, Part II to IV,
is not a punishment but it affects the
employee injuriously,. That is why the
exercise of power is subject to public interest.
It can arise when the continuance of employee
is not in the interest of the service. The
objective of the rule is obviously to weed out
the dead wood. In other words the employee
should have become of no use for the service.
For arriving at such a decision adverse entry
of one year, ordinarily, cannot furnish
material to decide that the employee deserved
to be weeded out. The record must establish
that the retention of the employee was not in
public interest. In the case of petitioner he was
found absent from duty for few days. The
respondents had taken action against him. He
was reinstated. But he was given adverse
2ALL] State of U.P. V Kamal Narayan Singh 15
entry. This entry in absence of any other
material either before or after was not
sufficient to warrant the conclusion in rule 56
(c) that it was in public interest to retire the
petitioner from service.

4. The petitioner was retired in public
interest. This expression has been explained in
various
decisions.
For
instance
in
S.
Ramachandra Raju v State of Orissa
(1994) Vol 28 Administrative Tribunal
Cases 443 the apex court held that an order of
compulsory retirement based on one adverse
entry followed by subsequent good reports
makes the exercise of power arbitrary. In
absence of any material that the work of the
petitioner after 1985 was such that he
deserved to be weeded out the order is
arbitrary.

In the result this petition succeeds and is
allowed. The order dated 26.11.1991 passed
by respondent no. 1, Annexxure-1 to the writ
petition is quashed with all consequential
benefits of service to the petitioner. The
respondents are directed to reinstate the
petitioner and pay his entire arrears of salary
within a period of two months from the date a
certified copy of this order is produced before
them.

 There shall be no order as to costs.

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By the Court

1. The proceeding before us is apparition
of the three contempt cases In Re : Kamal
Narain Singh, referred to above. Having
emerged from the graveyard in which the
composite corpus of the three cases were
buried with contemner's comeuppance in each
of the three cases disposed of by a common
judgment dated 28.5.1999, the ghost is
chasing two Advocates namely Sri V.C.
Mishra, Senior Advocate and his Advocate
son Sri Vivek Mishra, besides some officials
of the Copying Section of this Court and the
contemner Kamal Narain Singh himself by
using the vehicle of contempt of court
jurisdiction of this Court. The proceeding, it
appears, has been initiated as a suo motu
review by the Bench which had disposed of
the contempt cases as aforestated. It is neither
necessary nor desirable to speak of the
circumstances under which the proceeding