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IN THE HIGH COURT AT CALCUTTA
HARISH TANDON, PRASENJIT BISWAS, JJ.
The State of West Bengal & Ors. – Petitioners
Versus
Dr. Somak Krishna Biswas – Respondents
WP.ST. 128 of 2022
Decided On : 27-02-2023
resignation - government service - West Bengal Service Rules, Part – I, Rule 34A - [Rule 34A] - The court discussed the applicability of the Notification dated 26th August, 2016, which created an embargo on resigning from government service before completing five years of continuous service. The court found that the respondent's resignation was tendered before completing five years of service, but as the embargo had been lifted by the time of the court's consideration, the letter of resignation should be considered on its merit.
Fact of the Case:
The respondent joined the Department of Health and Family Welfare and later tendered resignation, which was not accepted due to a Notification creating an embargo on resigning before completing five years of service. The court was moved for a mandatory direction to issue the release order and quash the Notification.
Finding of the Court:
The court found that the embargo on resignation had been lifted by the time of the court's consideration, and the letter of resignation should be considered on its merit.
Issues: The issues involved the applicability of the Notification creating an embargo on resigning before completing five years of service, and the timing of the resignation in relation to the lifting of the embargo.
Ratio Decidendi: The court held that as the embargo on resignation had been lifted by the time of the court's consideration, the letter of resignation should be considered on its merit, and the order of the authority was set aside for fresh consideration.
Final Decision: The court set aside the order of the authority and directed for fresh consideration of the resignation letter, treating it as filed on the date, and passing a reasoned order within three weeks.
JUDGMENT :
1. Admittedly the respondent joined the services in the Department of Health and Family Welfare, M.A. (MES) Branch, on 3rd November, 2015. Subsequently the respondent decided to tender resignation, as he did not intend to continue with the said service and the letter of resignation dated 28th September, 2018 was caused upon the competent authority for acceptance.
2. As usual there was no decision taken on the said letter of resignation. The Tribunal was moved by the respondent being OA 478 of 2019 for a mandatory direction upon the authority to issue the release order in favour of him and also for quashing and/or setting aside the Finance (Audit) Notification No. 4499-F(P) dated 26th August, 2016 as ultra vires to the Constitution of India.
3. The said tribunal application came to be disposed of on 10th February, 2020 with the categorical finding that the respondent has abandoned the relief whereunder he challenged the amendment of the Rules for the time being and insisted upon the first relief, i.e. the direction to issue release order. In the backdrop of the above, the said tribunal application was disposed of directing the Director of Medical Education & Ex-Officio Secretary, Department of Health & Family Welfare, Government of West Bengal to consider the representation to be filed by the said respondent and dispose of the same within eight weeks by passing a reasoned order.
4. Pursuant to the same the said authority took a decision on 7th August, 2020 holding that by virtue of the said Notification dated 26th August, 2016 the resignation cannot be considered and/or accepted before the Government Servant completes five years of continuous services with effect from the date of joining in any cadre or different cadre taken together, as the case may be.
5. The said order is further challenged by the respondent before the West Bengal Administrative Tribunal in OA 599 of 2021. By the impugned order the Tribunal took notice of the earlier decision taken in case of Dr. Mukut Mani Adhikari vs. The State of West Bengal & Ors (OA 28 of 2021, decided on 1st February, 2021) and held that the said decision had set at the rest the issues in this regard and directed the authorities to accept the resignation of the respondent within four weeks from the date of presentation of the copy of the order and follow up action shall be taken within the stipulated time.
6. The State has challenged the said order primarily on two counts; firstly, that the Notification dated 26th August, 2016 creates an embargo in entertaining an application tendering resignation before completing five years of continuous service from the date of joining and, secondly the order of the Tribunal in case of Dr. Mukut Mani Adhikari vs. The State of West Bengal & Ors., which was affirmed by the Division Bench of this Court is pending consideration before the Supreme Court and the notices have been issued inviting counter-affidavits.
7. It is thus submitted that on both counts the Mandamus in such form is unwarranted more particularly when the Rule subsequently amended by virtue of the said Notification dated 26th August, 2016 is still operative and has not been struck down by the competent forum.
8. As indicated above, in the first round of litigation the respondent himself had abandoned the relief challenging the said notification dated 26th August, 2016 as ultra vires to the Constitution of India and so far as the second round of litigation is concerned, our endeavour has failed to find out that any relief in such form has been sought.
9. In view of the above facts, we proceed to decide the matter bearing in mind the aforesaid amendments having its applicability and whether the petitioner has been able to make out a case that the order of the authority relying on the said amendment is per se illegal and cannot stand independently.
10. By virtue of the Notification dated 26th August, 2016 the proviso is inserted to Sub-rule (1) of Rule 34A in the West Bengal Serv
AI
The main legal point established is that the lifting of an embargo on resignation should be considered in the context of the timing of the resignation and the relevant provisions prevalent at the tim....
An employee cannot be forced to serve if not willing, unless there are stipulations in the rules or terms of appointment or pending disciplinary proceedings.
The acceptance of resignation was invalid due to non-timely action by the department and discriminatory practices in handling similar cases.
An employee can withdraw a resignation before it becomes effective, even if accepted, as long as the employer-employee relationship persists.
The court established that under the West Bengal Service Rules, an appointing authority cannot arbitrarily refuse a resignation once it has been duly submitted.
The legal point established is that the withdrawal of resignation renders subsequent acceptance of resignation with no legal effect, and entitlement to pensionary dues should be based on completing t....
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