JUDGMENT :

MD. SHABBAR RASHIDI, J.

1. The appeal and the cross objection are in assailment of judgment and order dated August 21, 2023 passed in WPA No. 15387 of 2017. By the impugned judgment and order, the learned Single Judge, allowed the writ petition directing the appellant to release pensionary benefits, gratuity along with all other admissible benefits to the writ petitioner treating her in continuous service with effect from April 1, 1985 till the date of her superannuation within a period of eight weeks from the date of communication of the order.

2. Being aggrieved with the impugned judgment and order, the respondent Kolkata Municipal Corporation, the appellant herein, preferred the instant appeal. It was contended on behalf of the appellant that the writ petition filed by the writ petitioner/respondent ought to have been dismissed. Learned Single Judge, while passing the impugned judgement and order, wrongly construed the position of law. The findings of learned Single Judge were misconceived, improper and devoid of any substance and merit.

3. It was also submitted on behalf of the appellant that learned trial Judge overlooked the application filed by the writ petitioner seeking voluntary retirement on September 9, 2009 which exhibited that the writ petitioner was in the know of the fact that her resignation was already accepted by the appellant on March 30, 2009.

4. It was further contended that the application of the writ petitioner seeking voluntary retirement dated September 9, 2009 was rejected by the OSD & DMC (P) on November 22, 2009. The writ petitioner approached the court after an unexplained delay of over seven years. Such fact of delay was not taken into consideration by the learned Single Judge. It was also submitted on behalf of the appellant that the writ petitioner was not entitled to withdraw her resignation and the appellant had every right to accept the same. The petition dated February 19, 2009 seeking to withdraw the resignation was never accepted by the appellant authority.

5. In support of their contention, learned Senior Advocate for the appellant relied upon (City and Industrial Development Corporation vs. Dosu Aardeshir Bhiwandiwala and Others, (2009) 1 SCC 701 and Union of India and Others vs. N. Murugasen and Others, (2022) 2 SCC 25).

6. On the contrary, it was submitted on behalf of the writ petitioner/respondent that she resigned from her service by a writing dated July 30, 2008 and thereafter she withdrew her resignation before it was accepted by the authorities, in terms of another letter dated February 19, 2009. Therefore, according to the respondent/writ petitioner, it was not open to the appellant authority to accept the resignation which she had already withdrawn. Such resignation was however, accepted by the appellant authority on March 30, 2009 which was communicated to the writ petitioner by a letter dated May 30, 2009.

7. Not only that, the writ petitioner approached the authorities of the appellant several times seeking permission to resume her duties but she was not allowed on the pretext of her resignation having been accepted. By another letter dated January 29, 2010, the writ petitioner was intimated that her prayer dated September 29, 2009 for treating her resignation as voluntary retirement was not considered by the authorities. She was also asked to submit her claims for settlement of terminal benefits.

8. On the point of delay, relying upon (Union of India and Others vs. Tarsem Singh, (2008) 8 SCC 648), the writ petitioner submitted that the action/inaction on the part of appellant authorities comes within the purview of continuing wrong for which the case made out by the writ petitioner cannot be said to be stale. In support of such proposition, learned advocate for the respondent/writ petitioner also relied upon (Sukh Dutt Ratra and Another vs. State of Himachal Pradesh and Others, (2022) 7 SCC 508, State of Madhya Pradesh and Others vs. Yogendra Shrivastava, (2010) 12 SCC 5