# Pradeep Kumar Sonker v. District Judge Faizabad And Another

- **Citation:** (2013) 1 ILRA 167
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2013-02-08
- **Bench:** Anil Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/pradeep-kumar-sonker-v-district-judge-faizabad-and-another-42481
- **Pages:** 6

## Headnote

Constitution
of
India,
Article
226resignation-effects from the date of
acceptance
by
the
competent
authorities-after acceptance-not open to
take 'U' turn in any manner-petitiondismissed.

Held: Para-21

Thus,
in
view
of
the
facts
stated
hereinabvoe, as per the law, admittedly,
in the present case, the petitioner had
submitted his resignation from service
on 15.02.2010 on personal grounds and
the same has been accepted by the O.P.
No. 1 on 07.06.2012. Accordingly, once
168 INDIAN LAW REPORTS ALLAHABAD SERIES [2013
the same has been accepted, it is not
open to the petitioner to withdraw the
same subsequently hence there is no
illegality or infirmity in the impugned
order dated 07.06.2012 passed by O.P.
No. 1/District Judge, Faizabad which is
under challenge in the present writ
petition.
Case Law discussed:
AIR 1978 SC 694; AIR 1981 SC 789; (1993) 2
SCC 725; (2001) 1 SCC 158; (2003) 1 SCC
701; (2005) 5 SCC 455

## Text

1 All] Pradeep Kumar Sonker Vs. District Judge Faizabad And Another
167
reiterated the grounds taken in the writ
petition.

7. On the other hand, learned State
counsel submitted that the contract in
question was not cancelled by the Special
Secretary but he had only issued some
directions to the District Magistrate,
Basti, to take appropriate action on the
enquiry report.

8. On due consideration of rival
submissions, we find considerable force
in the grounds of writ petition as well as
the arguments of learned counsel for
petitioner that the Special Secretary, who
passed the order, directing the District
Magistrate, Basti, to take action against
the petitioner where under the District
Magistrate directed the Nagar Panchayat
concerned to proceed, was not competent
to pass the order for the reason that the
Special Secretary was not a party nor an
authority to grant the contract in favour of
the petitioner and secondly, it would
reflect upon and interfere with the
independence/autonomy of local bodies.

9. Impugned order (Annexure no.3)
passed
by
the
Special
Secretary,
Government
of
U.P.,
suffers
from
inherent infirmities of incompetence.
Besides, the petitioner has not been left
with any remedy of filing an statutory
appeal or revision, if any, on the
administrative side. The contract had been
alloted by the Nagar Panchayat, Babhnan
Bazar, Basti through the Executive
Officer, therefore, the said officer should
be the appropriate authority unless the law
governing the field specifically prohibits.
That apart, the enquiry and the enquiry
report which formed the basis of further
action were carried out ex-parte without
giving opportunity to the petitioner.

10. In view of all the aforesaid, the
order dated 13.12.2012 and all other
consequential
orders
leading
to
cancellation of the contract granted in
favour of the petitioner are hereby
quashed. Thus, the writ petition is
allowed.

11. However, it would be open for
the Nagar Panchayat-competent authority
to start the proceedings afresh on the
complaint made against the petitioner.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 08.02.2013

BEFORE
THE HON'BLE ANIL KUMAR,J.

SERVICE SINGLE No. - 635 of 2013

Pradeep Kumar Sonker
...Petitioner
Versus
District Judge Faizabad And Another

 ...Respondents

Counsel for the Petitioner:
Sri Kapil Muni Dubey

Counsel for the Respondents:
Sri Manish Kumar

Constitution
of
India,
Article
226resignation-effects from the date of
acceptance
by
the
competent
authorities-after acceptance-not open to
take 'U' turn in any manner-petitiondismissed.

Held: Para-21

Thus,
in
view
of
the
facts
stated
hereinabvoe, as per the law, admittedly,
in the present case, the petitioner had
submitted his resignation from service
on 15.02.2010 on personal grounds and
the same has been accepted by the O.P.
No. 1 on 07.06.2012. Accordingly, once
168 INDIAN LAW REPORTS ALLAHABAD SERIES [2013
the same has been accepted, it is not
open to the petitioner to withdraw the
same subsequently hence there is no
illegality or infirmity in the impugned
order dated 07.06.2012 passed by O.P.
No. 1/District Judge, Faizabad which is
under challenge in the present writ
petition.
Case Law discussed:
AIR 1978 SC 694; AIR 1981 SC 789; (1993) 2
SCC 725; (2001) 1 SCC 158; (2003) 1 SCC
701; (2005) 5 SCC 455

(Delivered by Hon'ble Anil Kumar,J.)

1. Heard Sri Kapil Muni Dubey,
learned counsel for petitioner, Sri Manish
Kumar, learned counsel for opposite
parties and perused the record.

2. By means of the present writ
petition, the petitioner has challenged the
impugned
order
dated
07.06.2012
(Annexure No. 1) passed by District
Judge, Faizabad.

3. Facts of the present case are that
on 06.01.2000 the petitioner was initially
appointed on the Class-III post in the
office of District Judge, Banda. On his
own request, transferred on 28.07.2001 to
Faizabad.

4. On 15.02.2010, he tendered his
resignation from service to the District
Judge, Faizabad on personal ground. The
District Judge, Faizabad on the said
application has called a report from the
concerned officer and thereafter in the
matter in question certain correspondents
have been taken place.

5. Lastly by an order dated
07.06.2012
(Annexure
No.
1)
the
application of petitioner for resignation
from service has been accepted by the
O.P.No. 1/District Judge, Faizabad, the
findings which given while accepting the
same is as under:-

"अतः ी सोनकर का पद एवं कायभार
से मु होने के सदभ म दनांक १५-०२२०१० क! "#तुत "$नाप%/&यागप% आज
दनांक ०७-०६-२०१२ को #वीकार कया जाता
है तथा आज क! ितिथ से उनसे सेवामु
कया जाता है | ी सोनकर 0ारा दनांक २७०२-२०१० तक काय कया गया है | दनांक
२८-०२-२०१० को अवकाश था ०१-०३-२०१० से
आज तक 4बना कसी अवकाश के अनुप6#थत
रहे है| उनके 0ारा पदेन सेवा दािय&व क! पूित
म कोई काय नह9ं कया गया है, इसिलए
दनांक ०१-०३-२०१० से वेतन का कोई लाभ
उह नह9ं िमलेगा तथा उ<र"देश 4वतीय
ह#तपु6#तका खंड--दो, भाग-२ से ४ के
मु6@नयम-५६ (ग) के "ा4वधान के अनुसार
पशन से सBबंिधत कोई लाभ ी सोनकर को,
सेवाकाल बीस वष से कम हने के कारन, देय
नह9ं होगा |

सवसBबंिधत तदनुसार सूिचत हो |"

6. Thereafter, as per the version of
the petitioner, who was ill and under
medical treatment uptill 17.08.2012. On
18.08.2012, the Doctor declared him
medically fit, So, on 21.08.2012 he went
to join his duties along with medical
certificate and fitness certificate and he
was not allowed to join his duties on the
ground that resignation given by him on
15.02.2010 has been accepted by the
authority concerned on 07.06.2012.

7. In view of the abovesaid factual
background, present writ petition has been
filed by the petitioner thereby challenging
1 All] Pradeep Kumar Sonker Vs. District Judge Faizabad And Another
169
the impugned order dated 07.06.2012
(Annexure No. 1) passed by District
Judge, Faizabad.

8. I have heard learned counsel for
parties and perused the record.

9. The word 'Resignation' in relation
to an office connotes the act of giving up
or relinquishment of the office. To
relinquish office means to cease to hold
office or to lose hold of the office.
Therefore, it means that the employees
wants to sever his relation from the
employer without any riders and then only
it would amount to resignation.

10. Corpus Juris Secundum Vol. 77
page 311 defines the words 'resign' and
'resignation' as under:

"RESIGN" To give up; to surrender
by a formal act; to yield; to relinquish; to
give up one's office or position; to
withdrawn from. The word" resign" in its
ordinary and usual sense, imports a
voluntary act, and has been held not to
include the act of one whose continuance
in a position has been terminated by
death or by induction into the armed
forces under th Selective Service Act.

"RESIGNATION. It has been said
that "resignation" is a term of legal art,
having legal connotation which describe
certain
legal
results.
It
is
characteristically the voluntary surrender
of a position by the one resigning, , made
freely and not duress, and the word is
defined generally as meaning the act of
resigning or giving up, as a claim,
possession, or position."

11.

In
Words
and
Phrases(
permanent Edn.) Vol. 37 at page 473, the
word 'Resign' denoting voluntarily act,
relinquish to give up , surrender by formal
out, yield, relinquish , give up ones' office
or position , or withdraw from it. Further
at age 436 the word resignation has been
define as :

" To constitute a ' resignation', it
must be unconditional and with an intent
to operate as such. There must be an
intention to relinquish a portion of the
term of office accompanied by an act of
relinquishment. It is to give back, to give
up in a formal manner, an office."

12. Black's Law Dictionary Sixth
Edition Page 1310 defines the resignation
as formal renouncement or relinquishment
of an office. It must be made with
intention of relinquishing the office
accompanied by act of relinquishment . It
is said that resignatio est juris proprii
spontanea refutatio i.e. resignation is
spontaneous relinquishment of one's own
right thus the term of resignation implies
voluntarily surrender of the position by a
person resigning and acting freely not
under duress and it becomes effective
when the authority competent to make
appointment accept it.

13. Moreover the resignation must
be unambiguous and where an ambiguous
letter of resignation is submitted, the
authority should right to the employee to
explain or clear the ambiguity instead of
proceeding to accept the same. Further,
the resignation becomes absolute when it
is accepted by the appointing authority ,
date of communication of acceptance to
him is not material .

14. Once the appointing authority
accepts the resignation submitted by the
Government servant, it becomes absolute
170 INDIAN LAW REPORTS ALLAHABAD SERIES [2013
and cannot be withdrawn thereafter. The
date on which he was informed of the
such acceptance is not material for the
purpose till the resignation is accepted by
the appropriate authority in consonance
with the rules governing the acceptance,
the public servant has locus poenitentiae
but not thereafter.

15. Hon'ble Supreme Court while
considering
the
meaning
of
the
word"resigning office" in the case of
Union of India etc. Vs Gopal Chandra
Misra and others, AIR 1978 SC 694 held
as under:-

" In the general juristic: sense, also
the meaning of " resigning office" is not
different. There also , as a rule, both, the
intention to give up or relinquish the
office and the concomitant act of its
relinquishment,
are
necessary
to
constitute a complete and operative
resignation
(see,
e.g.
American
Jurisprudence, 2nd Edition Volume 15A ,
page
80)
although
the
act
of
relinquishment may take different forms
or assume a unilateral or bilateral
character , depending on the nature of the
office and the conditions governing it.
Thus, resigning office necessarily involves
relinquishment of the office , which
implies cessation or termination of, or
cutting as under from the office . Indeed
the completion of the resignation and the
vacation of the office , are the causal and
effectual aspects of one and the same
event."

Further in para 42 of the aforesaid
judgment
the
Hon'ble
Apex
Court
approving the principle of withdrawal
before the relationship of the employer
and the employee held as under:-

" The general principle that emerges
from the foregoing conspectus is that in
the absence of anything to the contrary in
the provisions governing the terms and
conditions of the office post, an intimation
in writing sent to the ; competent
authority by the incumbent, of his
intention or proposal to resign his
office/post from a future specific 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 the employment."

16. In the case of P. Kasilingam V.
P.S.G. College of Technology, AIR 1981
SC 789, Hon'ble Supreme Court has held
that :-

" It may be conceded that it is open
to a servant to make his resignation
operative from a future date and to
withdraw such resignation before its
acceptance. The question as to when a
Government
servant's
resignation
becomes effect came up for consideration
by this Court in Raj Kumar Vs. Union of
India , (1968) 3 SCR 857; ( AIR 1969 SC,
180) . It was held that the services of a
Government
servant
normally
stand
terminated form the date on which the
letter of resignation is accepted by the
appropriate authority, unless there is any
law or statutory rule governing the
conditions of services to the contrary.
There is no reason why the same principle
should not apply to the case."

17. In Moti Ram Vs. Param Dev
(1993) 2 SCC 725, this Court observed as
hereunder:-

" As pointed out by this Court,
'resignation'
means
the
spontaneous
relinquishment of one's own right and in
1 All] Pradeep Kumar Sonker Vs. District Judge Faizabad And Another
171
relation to an office, it connotes the act of
giving up or relinquishing the office. It
has been held that in the general juristic
sense, in order to constitute a complete
and operative resignation there must be
the intention to give up or relinquish the
office and the concomitant act of its
relinquishment. It has also been observed
that the act of relinquishment may take
different forms or assume a unilateral or
bilateral character, depending on the
nature of the office and the conditions
governing it, Union of India Vs. Gopal
Chandra Misra (1978) 2SCC 301, If the
act of relinquishment is of unilateral
character, it comes into effect when such
act indicating the intention to relinquish
the office is communicated to the
competent authority. The authority to
whom the act of relinquishment is
communicated is not required to take any
action and the relinquishment takes effect
from the date of such communication
where the resignation is intended to
operate in praesenti. A resignation may
also be prospective to be operative from a
future date and in that event it would take
effect from the date indicated therein and
not from the date of communication. In
cases where the act of relinquishment is
of
a
bilateral
character,
the
communication
of
the
intention
to
relinquish, by itself, would not be
sufficient to result in relinquishment of the
office and some action is required to be
taken on such communication of the
intention to relinquish, e.g. acceptance of
the said request to relinquish the office,
and in such a case the relinquishment
does not become effective or operative till
such action is taken. As to whether the act
of relinquishment of an office is unilateral
or bilateral in character would depend
upon the nature of the office and the
conditions governing it."

18. In Union of India Vs. Wing
Commender T Porthasarathy (2001) 1
SCC 158, the Apex Court has held that
when a public servant has tendered
resignation his service normally stands
terminated from the date on which the
letter of his request is accepted by the
appropriate authority and the absence of
any law or statutory rule governing the
condition of his service contrary to the
delay not be open to the public servant to
withdraw his resignation after it is
accepted by the appropriate authority.

19. In the case of Dr. Prabha Atri
Vs. State of U.P. and other, (2003) 1
SCC 701, Hon'ble Supreme Court has
observed that letter when constitutes
resignation , such a letter , held must be
unconditional and intending to operate as
such. Where an employee, required to
submit his explanation for a certain lapse
on
his
part,
while
submitting
his
explanation added that if the explanation
was found to be not acceptable he would
have no option left but to tender his
resignation with immediate effect, held,
such
a letter
did
not
amount
to
resignation. At best it could amount to a
threatened offer to resign. The words
"with immediate effect" in the said letter ,
held , could not be given undue
importance dehors the context tenor of the
language used, the purport of the letter
and the portion of the letter indicating the
circumstances in which the letter was
written. Moreover, stopping the domestic
enquiry by the management consequent to
acceptance of the alleged resignation, held
, had not significance in ascertaining the
true or real intention of the said letter.

20. The Supreme Court in (2005) 5
SCC 455, North Zone Cultural Center
and another v. Vedpathi Dinesh Kumar
172 INDIAN LAW REPORTS ALLAHABAD SERIES [2013
has observed that the resignation becomes
effective on acceptance even if not
communicated. Non Communication of
the acceptance does not make the
resignation inoperative provided there is
in
fact
on
acceptance
before
the
withdrawal when the relevant rules not
postulating communication of acceptance
as a condition precedent for coming into
effect of resignation. Employee tendering
resignation with immediate effect and
employer accepting the same on the same
day but communicating the acceptance to
the employee after 13 days. During the
intervening
period,
the
employee
withdrawing his resignation. Such delay
of mere 13 days, held , not an undue delay
so as to infer that resignation had not
already
been
accepted.
Even
the
continued attendance to duty and signing
of attendance register by the said
employee during the intervening period
held, of no assistance to claim that the
resignation had not taken effect. More so,
when there was no responsible officer in
the office during that time and taking the
advantage of that situation the employee
had marked his attendance, hence the
High
Court's
decision
holding
that
communication of the acceptance of
resignation subsequent to withdrawal of
the resignation by the employee had
become redundant was held improper.

21. Thus, in view of the facts stated
hereinabvoe, as per the law, admittedly, in
the present case, the petitioner had
submitted his resignation from service on
15.02.2010 on personal grounds and the
same has been accepted by the O.P. No. 1
on 07.06.2012. Accordingly, once the
same has been accepted, it is not open to
the petitioner to withdraw the same
subsequently hence there is no illegality
or infirmity in the impugned order dated
07.06.2012 passed by O.P. No. 1/District
Judge, Faizabad which is under challenge
in the present writ petition.

22. In the result, the writ petition
lacks merit and is dismissed.
---------
 ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 21.02.2013

BEFORE
THE HON'BLE SUDHIR AGARWAL, J.

MISC. SINGLE No. - 878 of 1995

Sardar Jasbir Singh and Others ...Petitioner
Versus
IV Additional District Judge Unnao and
Others

 ...Respondents

Counsel for the Petitioner:
Sri Govind Saran Nigam

Counsel for the Respondents:
C S C
Sri Malay Shukla
Sri P K Srivastava
Sri Ramesh Kumar Singh
Sri Sanjay Shukla
Sri Sushil Kumar

U.P. Consolidation of Holding Act 1953Section 5(2) (a)-abatement of suit for
injunction-without declaration of right or
title-held-in view of Division Bench case
of Banwarilal-followed by Single Judge
in K Kanchan Kumar Chowdhary and
Radha Krishna-would not stand abated.

Held: Para-25

In view of Division Bench judgment in
Banwarilal & Others (supra) and the two
Single Judge authority of this Court,
following
aforesaid
Division
Bench
judgment in Kanchan Kumar Chowdhary
(supra) and Radha Krishna & others
(supra), I am clearly of the view that suit
in
question
is
simply
a
suit
for