THE GOVT. OF NCT OF DELHI & ORS. versus KAMLESH RANI BHATLA on 23 March 2023

SUPREME COURT REPORTS

[2023] 3 S.C.R.

ATHE GOVT. OF NCT OF DELHI & ORS.

v.

KAMLESH RANI BHATLA

(Civil Appeal No. 1927 of 2023)

BMARCH 23, 2023

[ANIRUDDHA BOSE AND KRISHNA MURARI, JJ.]

Central Civil Service (Pension) Rules, 1972: r. 26(4) –Forfeiture of service on resignation – Withdrawal of resignation –COn facts, the respondent tendered her resignation to contest election,and the resignation was accepted – She lost the election andthereafter, applied for withdrawal of resignation – Application waskept pending – She then filed writ petition wherein the High Courtdirected the authorities to deliberate upon and thereafter disposeof her request qua withdrawal of her resignation taking note of theDjudgment of the High Court in Nirmal Verma’s case – Respondent’srepresentation was rejected by the appellant on the ground that shewas charge-sheeted for her involvement in political activities whileworking – Application thereagainst by the respondent – Allowed bythe tribunal with a direction to the authorities to process the case ofEthe respondent for withdrawal of her resignation and allow her tojoin duty as Assistant Teacher – Writ petition by the appellant –Rejection of, by the High Court holding that no enquiry wasconducted against respondent and even vigilance clearance wasgranted to her before accepting her resignation – On appeal, held:There is no absolute bar on the employer in permitting withdrawalFof resignation even after the same is accepted – Rule 26 does notcontain any such provision – Resignation can become effective eitherby stipulation of law or by acceptance thereof – In the instant case,the first order of the High Court was a direction upon the employerto take a decision in terms of Nirmal Verma’s case which impliesGthat her withdrawal plea was required to be examined within a givenparameter and since the employer never challenged the directionlaying down the scope within which they were to consider thewithdrawal plea of the respondent, the right of the respondent to beconsidered within that parameter had crystallised – Authorities couldnot and did not, go beyond that parameter – Authorities, in the H

order of rejection, did not take the stand that once accepted, aresignation cannot be withdrawn – Appellants also did not reasontheir rejection order with the ground that there was no compellingreason for the respondent to tender her resignation – Both the foraopined that the respondent’s case could not be distinguished fromthe ratio of the case of Nirmal Verma’s case merely on the strengthof issue of memorandum of charges against her – Resignation canbecome effective only on acceptance thereof and sub-rule (4) of r.26 lays down situations in which there can be withdrawal even afterresignation becomes effective – Respondent’s plea for withdrawalof resignation was rejected on grounds spelt out therein – Tribunaland the High Court found the reasoning of the appellantunsustainable – Judgment of the High Court sustaining the tribunal’sdecision do not warrant any interference.

Nirmal Verma v. MCD and Anr. [Decision dated18-03-2005 of Delhi High Court in WP (C) No.3303/2003]; Directorate of Education v. ManishaSharma [Decision dated 28-11-2019 of Delhi HighCourt in WP (C) 8494/2015]; State of Haryana andOthers v. Ram Kumar Mann (1997) 3 SCC 321 –referred to.

Case Law Reference

[1997] 2 SCR 329relied onPara 11

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1927of 2023.

From the Judgment and Order dated 09.10.2019 of the High Courtof Delhi at New Delhi in WP (C) No. 1118 of 2019.

Ms. Madhavi Gordie Divan, ASG, Ms. Neela Kedar Gokhale, VVVPattabhiraman, Ms. Nidhi Khanna, Gurmeet Singh Makker, Advs. forthe Appellants.

M. S. Saini, Jatinder Pal Singh, Ms. Reema Chawla, Advs. forthe Respondent.

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678SUPREME COURT REPORTS

AThe Judgment of the Court was delivered by ANIRUDDHA BOSE, J.

Leave granted.

2. The appellants question the legality of a judgment of a DivisionBBench of the Delhi High Court, which in substance sustains an order ofthe Central Administrative Tribunal allowing the respondent to withdrawher resignation and permit her to re-join duty. At the material point oftime, the respondent was working as an Assistant Teacher in a schoolunder the Directorate of Education, Delhi Government, who are theappellants before us. She had tendered her resignation on 22[nd] MarchC2012 as she desired to participate in the elections for the post of aCounsellor of Municipal Corporation of Delhi. Her request for resignationwas accepted by the authorities on 29[th] March itself, with effect from22[nd] March 2012. She, however, lost the election, which was held in themonth of April the same year. On 21[st] April 2012, she applied forDwithdrawing her resignation and re-join duty for the post in question.This application, however, was kept pending in spite of several remindersin the years 2013 and 2014.

3. The respondent then filed a writ petition before the Delhi HighCourt. This was registered as W.P. (C) No. 1522 of 2014 and the saidEpetition was disposed of on 20[th] March 2014 with the following directionsand order:- “6. The petitioner, is aggrieved by the fact that, there hasbeen no decision on her request, as yet. The petitioner,apparently, has also taken recourse to the Right to InformationFAct, 2005 (RTI Act). In respect of the application made underthe RTI Act, the petitioner though has received a responsedated 18.01.2013 from respondent nos. I and 2, which onlyindicates that the decision regarding her request forwithdrawal of resignation is ? under process.

7. In view of the aforesaid facts, in my opinion, therespondents cannot, not take a decision in the matter.Therefore, the writ petition is disposed of with a direction tothe respondents to deliberate upon and thereafter dispose ofthe request of the petitioner qua withdrawal of her resignation;albeit by a speaking order. The needful will be done G

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THE GOVERNMENT OF NCT OF DELHI & ORS. v. KAMLESHRANI BHATLA [ANIRUDDHA BOSE, J.]

expeditiously, though not later than 10 weeks from today. Thecopy of the order passed will be furnished to the petitioner.The respondents, while passing the order, will also take noteof the judgment of this court dated 18.03.2005, passed inWP(C) No. 3303/2003, titled Nirmal Verma vs MCD and Anr.

8. The writ petition and the application are disposed of withthe aforesaid directions.”

4. On 14[th] May 2015, the Deputy Director of Education, DistrictSouth East, Government of National Capital Territory of Delhi hadrejected her plea and, inter-alia, ordered:- “… AND WHEREAS, the operative part of the judgment dated18.03.2005 in W.P.(C) No. 3303/2003 of Hon’ble High CourtDelhi is re-produced as under;-

“… It would, thus, be seen that in the cases cited above andas also in Durgesh Mohanpunu’s case which is the latest caseprocessed after the petitioner’s case, the respondents havetaken a consistent position that legally it is permissible forthem to allow withdrawal of resignation after its acceptanceand have followed the practice of restoration of service. Inthe petitioner’s case also accordingly there is no ground madeout for adopting a different yardstick or contrary legalsubmission to defeat the petitioner’s case. Petitioner had also.within a month of the acceptance of her resignation and withina week of her losing the election requested for being permittedto withdraw the resignation in accordance with Rule 26(4) ofCCS Pension Rules. It is not the case of respondents thatpetitioner was not having a good record or had been guiltyof any misconduct: or impropriety or it being a case of anydoubt on the integrity etc. Denial of reinstatement in serviceto the petitioner and not treating the petitioner at par withothers in the absence of any distinguishing feature, rendersthe respondent’s action arbitrary and tantamount to denialof equality as guaranteed under Article 14 of the Constitutionof India. Reference in this regard may be made to SengaraSingh and Ors. v. State of Punjab and Ors. Reported at.....”.

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AND WHEREAS, the case of Mrs. Kamlesh Rani Bhatia cannotbe equated .at par with Nirmal Verma case.

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NOW, THEREFORE, after considering all the aspects of thematter, the request of Mrs. Kamlesh Rani Bhatia forwithdrawal of her resignation is considered and found nomerit, hence, rejected.

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This, issues with the prior approval of competent authority &in compliance of order of Hon’ble High Court dated20.03.2014, passed in W.P. (C) No 1522/2014.”

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5. This order was challenged by the respondent before the CentralAdministrative Terminal. The Tribunal in a judgement delivered on 20[th]March 2017, relying upon Rule 26(4) of the Central Civil Services(Pension) Rules, 1972, sustained the respondent’s case, primarily relyingon judgement of the Delhi High Court in the case of “Nirmal Verma -Dvs- MCD and Anr.” delivered on 18[th] March 2005 in Writ Petition(Civil) No.3303/2003.

6. We find from the order of the Tribunal that the main argumentthat was advanced before it by the appellant herein was that the case ofNirmal Verma (supra) was distinguishable in the sense that noEchargesheet was issued to the applicant in that case whereas in the caseof respondent, a chargesheet had been submitted alleging breach ofcertain provisions of the Central Civil Services (Conduct) Rules, 1964.The memorandum of charges was issued on 4[th] September 2011 and thetwo articles of charges related to her involvement in political activitiesFwhile working. Annexure II of Memorandum of charges stipulated: –

“ANNEXURE II

STATEMENT OF IMPUTATION OF MISNDUCT/MISBEHAVIOUR IN SUPPORT OF THE ARTICLE OFCHARGES FARAMED AGAINST SMT, KAMLESH RANIBATLA, ASSTT. TEACHER.

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ARTICLE-I

Smt. Kamlesh Rani Batla, Assistant Teacher while working inGovt. Sarvodya Coed. Middle School, J-Block, Sangam Vihar,New Delhi, during her duty hours, attended the meeting held H

by the BSP, the National Political Party without informing ortaking permission from the department.

ARTICLE-II

Smt. Kamlesh Rani Batla, Assistant Teacher while working inGovt. Sarvodya Coed. Middie School, J-Block, Sangam Vihar,New Delhi, and during the elections period canvassing anddelivering slogans for the BSP as evident from the CDs andphoto clippings.

Thus, she has violated Rule 3 of CCS Conduct Rules, 1964which unbecoming of a government servant.”

7. As we have already indicated, only argument advanced by theappellant before the Tribunal was that a chargesheet was issued to therespondent before her resignation. On that basis, the authorities wantedto distinguish her case in relation to the case of Nirmal Verma (supra).The Tribunal observed and held:- “5. The only argument advanced by the counsel for therespondents that a chargesheet was issued to the applicantbefore her resignation and accordingly the case of theapplicant cannot stand on the same footing as that of NirmalVerma, relied upon by her, does not seem to be justified forthe simple reason that if a chargesheet was issued to theapplicant then it was within the domain of the respondentsnot to accept her resignation and they could not have issuedvigilance clearance. Once the respondents have given thevigilance clearance in respect of the applicant and allowedher to contest MCD election, hence, in my considered opinion,the respondents are estopped from taking the plea of pendencyof chargesheet against the applicant. I am also of the viewthat the respondents were very much within their capacity notto accept the applicant’s resignation pending enquiry, if any,rather they ought to have awaited the decision in the enquiry.Hence, at this stage, taking the above plea of pendency ofchargesheet and distinguishing the character of the presentcase with that of Nirmal Verma’s case (supra) seems to showtheir power vested with the respondents to deny or reject theapplicant’s application for withdrawal of her resignation.

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Since all the conditions set out under Rule 26 of CCS(Pensions) Rules, 1972 are satisfied by the applicant, the standof the respondents to deny the applicant to withdraw herresignation is not reasonable in these circumstances apartfrom being contrary to law.

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B6. Going through the judgment in Nirmal Verma’s case (supra),I find that the Hon’ble High Court of Delhi in a similar mannerallowed the case of petitioner therein taking into considerationthe rule position and directed the respondents to process therequest of the petitioner for withdrawal of her resignationand also to allow her to join back her duties. Hence, adoptingCthe same ratio as laid down by the Hon’ble High Court ofDelhi in Nirmal Verma’s’ case (supra), I allow the instant OAwith a direction to the respondents to process the case of theapplicant for withdrawal of her resignation and allow her tojoin duty as Assistant Teacher and the intervening period beDalso decided as per existing rule with consequential benefits.However, the respondents are at liberty to proceed with thepending chargesheet, if any, as per rules. No costs.”

8. The High Court in the order impugned, observing that no enquiryEwas conducted against respondent and even vigilance clearance wasgranted to her before accepting her resignation, rejected the writ petitionfiled by the appellant authorities.

9. Before us, on behalf of the appellant, Ms. Divan, learnedAdditional Solicitor General has cited a decision of the Delhi High CourtFin the case of Directorate of Education -vs- Manisha Sharma inW.P. (C) 8494/2015 decided on 28[th] November 2019. The Division Benchof the High Court in this judgement, had referred to the decision in thecase of Nirmal Verma (supra) and observed: –

“14. The Court is unable to agree with the reasoning in NirmalGVerma v. MCD (supra) that since there was no misconduct onthe part of the candidate, she should be permitted to withdrawher resignation. What was not noticed in Nirmal Verma v. MCD(supra) is the fact that the resignation had already been actedupon and that Rule 26(4), in any event, did not standattracted.”H

10. Rule 26 of the CCS (Pension) Rules, 1972 stipulate:- “26. Forfeiture of service on resignation.-

(1) Resignation from a service or a post, unless it is allowedto be withdrawn in the public interest by the appointingauthority, entails forfeiture of past service.

(2) A resignation shall not entail forfeiture of past service if ithas been submitted to take up, with proper permission, anotherappointment, whether temporary or permanent, under theGovernment where service qualifies.

(3) Interruption in service in a case falling under sub-rule(2), due to the two appointments being at different stations,not exceeding the joining time permissible under the rules oftransfer, shall be covered by grant of leave of any kind dueto the Government servant on the date of relief or by formalcondonation to the extent to which the period is not coveredby leave due to him.

(4) the appointing authority may permit a person to withdrawhis resignation in the public interest on the followingconditions, namely:-

(i) That the resignation was tendered by the Governmentservant for some compelling reasons which did not involveany reflection on his integrity, efficiency or conduct andthe request for withdrawal of the resignation has been madeas a result of a material change in the circumstances whichoriginally compelled him to tender the resignation;

(ii) that during the period intervening between the date onwhich the resignation became effective and the date fromwhich the request for withdrawal was made, the conductof the person concerned was in no way improper;

(iii) that the period of absence from duty between the dateon which the resignation became effective and the date onwhich the person is allowed to resume duty as a result ofpermission to withdraw the resignation is not more thanninety days; A

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(iv) that the post, which was vacated by the Governmentservant on the acceptance of his resignation or any othercomparable post, is available.”

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(5) Request for withdrawal of a resignation shall not beaccepted by the Appointing Authority where a GovernmentBservant resigns his service or post with a view to taking up anappointment in or under a private commercial company or inor under a corporation or company wholly or substantiallyowned or controlled by the Government or in or under a bodycontrolled or financed by the Government.

(6) When an order is passed by the Appointing Authorityallowing a person to withdraw his resignation and to resumeduty, the order shall be deemed to include the condonation ofinterruption in service but the period of interruption shallnot count as qualifying service.

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D(7) A resignation submitted for the purpose of Rule 37shallnot entail forfeiture of past service under the Government.”

11. In the case of Manisha Sharma (supra), the Division Benchopined that there was no material change in the circumstances whichoriginally compelled the respondent to tender her resignation therein andEthe respondent voluntarily resigned because she intended to contest theelection. It was also held that once the resignation had been acceptedand acted upon, thereafter, the incumbent could not contend that shewas under any compulsion for tendering her resignation. Once resignationhad been acted upon, there was no question of permitting a person towithdraw such resignation. This was the view taken by this Court in theFcase of State of Haryana and others -vs- Ram Kumar Mann [(1997)3 SCC 321].

12. So far as the factual context of this case is concerned, as wehave narrated above, the first order of the High Court was a directionupon the employer to take a decision. At that point of time, the ratio laidGdown in the case of Nirmal Verma (supra) prevailed and the HighCourt had directed the authorities to take decision in terms of the saidratio while considering the plea of the respondent before us. The appellanthad accepted that judgment and the rejection decision was taken withinthe parameters set by the High Court in the order passed on 20[th] March2014. The only reason as to why the respondent’s request for withdrawalH

of resignation was rejected was that a memorandum of charges hadbeen issued against her. The authorities, in the order of rejection, did nottake the stand that once accepted, a resignation cannot be withdrawn.At no stage of this case, which underwent two rounds of litigations, theauthorities had raised the point which formed the basis of the judgmentin the case of Manisha Sharma (supra). The appellants also did notreason their rejection order with the ground that there was no compellingreason for the respondent to tender her resignation. In the second roundof proceedings from which this appeal arises, the Tribunal did not findjustification for rejection of the respondent’s plea for withdrawal ofresignation to be acceptable. We have reproduced earlier in this judgmentthe reasoning given by the Tribunal in sustaining the respondent’s case.Before the Tribunal, as also the High Court, the controversy remainedconfined to issue of memorandum of charges against the respondent.Both the fora opined that the respondent’s case could not be distinguishedfrom the ratio of the case of Nirmal Verma (supra) merely on thestrength of issue of memorandum of charges against her.

13. After the High Court sustained the Tribunal’s verdict whichwent in favour of the respondent, on 28[th] November 2019, the DivisionBench judgment in the case of Manisha Sharma (supra) was delivered.In this judgment, the Division Bench, on analysing the conditions specifiedin Rule 26(4) found that having resigned to contest the election, therespondent therein could not be heard to say that she was undercompulsion. It was also held that once the resignation has been acceptedand acted upon, then there is no question of permitting a person towithdraw such a resignation. In the facts of the present case, however,that ground was not invoked to reject the respondent’s withdrawal requestherein. Moreover, the parameter based on which the authorities wereasked to take decision on the request for withdrawal of resignation waslaid down by the High Court itself. The boundary within which theauthorities were to examine the incumbent’s plea was not questioned bythe authorities before any forum. On the other hand, they accepted thesaid parameter and rejected the plea thereby confining their considerationwithin the boundary demarcated by the High Court.

14. In our opinion, in the context of this case, the ratio of ManishaSharma (supra) cannot be made applicable. We accept, as a propositionof law, the interpretation given to the Rule 26(4) by the Division Benchin the said judgment. But in the case of the respondent herein, her A

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Awithdrawal plea was required to be examined within a given parameterand since the employer never challenged the direction laying down thescope within which they were to consider the withdrawal plea of therespondent, the right of the respondent to be considered within thatparameter had crystallised. The authorities could not, and did not, gobeyond that parameter.B

15. Now the question arises as to whether we could importadditional reasoning into the decision of the employer on the basis ofinterpretation given to said Rule 26(4) by the High Court subsequent inpoint of time. Ultimately, what we are dealing with in this appeal is adecision of an employer terminating the master-servant relationship onCthe basis of certain grounds laid down in the rejection order. It is a factthat Rule 26(4) operates in the case of the respondent and in the eventwe had found that the first decision of the High Court was absolutelycontrary to the provisions of the said Rules, we might have had acceptedthe argument of Ms. Divan founded on reasoning contained in the caseDof Manisha Sharma (supra). But as per the said provision, we do notfind there is absolute bar on the employer in permitting withdrawal ofresignation even after the same is accepted. Said Rule 26 does not containany such provision. Moreover, sub-rule (4) of Rule 26 envisages certainsituations wherein withdrawal of resignation might be permitted evenafter the resignation becomes effective. The situations contemplated inEsub-clauses (ii) and (iii) of Rule 26(4) permit withdrawal of resignationafter the same becomes effective. Resignation can become effectiveeither by stipulation of law or by acceptance thereof. To illustrate theformer situation, some statutory instrument may contain deemingprovisions for resignation to become effective in the event after tenderingFthe resignation letter, no decision is taken by the employer within a giventimeframe. That is not the case here. So far as the present case isconcerned, resignation can become effective only on acceptance thereofand sub-rule (4) of Rule 26 lays down situations in which there can bewithdrawal even after resignation becomes effective. This question, however, does not arise here as what we are examining in this judgmentGis legality of an order by which the respondent’s plea for withdrawal ofresignation was rejected on grounds spelt out in the order itself. TheTribunal and the High Court found the reasoning of the appellantunsustainable.

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THE GOVERNMENT OF NCT OF DELHI & ORS. v. KAMLESHRANI BHATLA [ANIRUDDHA BOSE, J.]

16. In the peculiar facts of this case, in our opinion the judgmentof the High Court sustaining the Tribunal’s decision do not warrant anyinterference.

17. The present appeal is accordingly dismissed. All connectedapplications are disposed of.

18. There shall be no order as to costs.

Nidhi Jain

Appeal dismissed.

(Assisted by : Anurag Agarwal, LCRA)

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