( 1 ) THE petitioner was appointed as Medical Officer Class-III in the year 1955 in the Government Dispensary Bayad district Sabarkantha and he continued to be on that post till he sent his resignation and thereafter he was relieved from the charge. However the petitioner had withdrawn his resignation letter before the same was accepted by the State Government. Therefore the controversy arose as to whether the petitioner continues in service and whether he has a right to withdraw his letter of resignation before the same was accepted by the competent authority.

( 2 ) IT is not disputed that the petitioner was promoted to the cadre of Medical Officer Class-II. According to para 6 of the affidavit- in-reply filed on behalf of the Director of Health and Medical Services Respondent No. 2 the resignation was required to be accepted by the Government and there was no question of accepting the same by the respondent No. 2. Unfortunately the Government has not filed any affidavit nor the Government has produced the letter of resignation of the petitioner till the matter was heard by this Court on 13/12/1983 Mr. A. H. Mehta learned Counsel for the petitioner cited one judgment of this Court in the case of Hukumat Rai v. State of Gujarat 23 G. L. R. 64=11982 G. L. H. 85 in which a similar question arose and it was held by my brother A. M. Ahmadi J. that the withdrawal of the resignation before the same was sent to the appointing authority was legal and the petitioner in that case was continued in service. I suggested the State Government to file an affidavit to find out and to ascertain the proper fact. At that time Mr. M. A. Bukhari learned A. G. P. showed Mr. Mehta a letter of acceptance from the Government dated 24/05/1978 and having realised this position Mr. Mehta sought for amendment of the petition which was granted by me. Till then the Government had not filed any affidavit.

( 3 ) THE following facts shall be necessary in order to determine the points at issue. 4 (I) It is an admitted fact that the appointing authority of the petitioner is the State Government. (ii) The Petitioner was holding the post of Class-II Medical Officer at Bayad on the date of his resignation i. e. 15-4-1976. (iii) The petitioner had sent his notice for resignation dated 15 to the Director of Health and Medical Services. In the said notice he had stated that his resignation may be accepted with effect from 15-5-1976 on expiry of one months notice. (iv) On 21/05/1977 the District Health Officer Sabarkantha informed the petitioner inter alia that his resignation was not accepted. (v) On 21-3-1978 the petitioner by a letter withdrew his resignation. (vi) By a letter dated 19th April 1978 the sececond respondent informed the District Health Officer that the request of the petitioner for withdrawal of his resignation has not been granted and the petitioner may be informed accordingly.

( 4 ) IN para 4 of the affidavit-in-reply the deponent had stated that on receipt of the requisite certificate the proposal for acceptance of the resignation of the petitioner was submitted to the Secretary to Government Health and Family Welfare Department vide letter dated 23 and the same was accepted by the Government by its letter dated 24-5-1978 with retrospective effect i. e. from 18-6-1976.

( 5 ) MR. A. H. Mehta learned Counsel for the petitioner submitted that the acceptance of resignation is invalid on two grounds namely (1) that the resignation was not given to the appointing authority but to the Director of Health and Medical Services and (2) that the resig- nation was sent to the appointing authority on 23-3-1978 whereas the petitioner had withdrawn the resignation on 21-3-1978 i. e. two days prior to the date on which the letter of resignation was forwarded to the appointing authority. Therefore there was no resignation before the State Government in the eye of law and it cannot be accepted by the State Government.

( 6 ) SO far as resignation is conce