THE DIRECTOR GENERAL OF POLICE & ANR. versus M JEYANTHI on 13 December 2019

[2019] 15 S.C.R. 207

THE DIRECTOR GENERAL OF POLICE & ANR.

v.

M JEYANTHI

(Civil Appeal No. 9423 of 2019)

DECEMBER 13, 2019

[DR. DHANANJAYA Y CHANDRACHUD ANDHRISHIKESH ROY, JJ.]

Special Rules of Tamil Nadu Police Subordinate Services –r.35A– Respondent, Grade II Police Constable at the IX[th] Batallion,Manimuthar, Palayamkottai tendered resignation on 1 June 2017 –Accepted on 12 June 2017 – Later, sought withdrawal of theresignation –Respondent’s representation rejected by the DirectorGeneral of Police – Challenged – Writ petition dismissed – Writappeal allowed by the Division Bench holding that in terms of s.50of the 2016 Act, a period of ninety days’ notice is necessary and theappellants faulted in accepting the resignation without waiting forthe period of notice to expire – Held: Provisions of r.35A of theRules are analogous to s.50 of the 2016 Act – Respondent, as apolice constable, was governed by r.35A – Clause (a) of r.35Arequires that before resigning, a member of the service must furnishnot less than three months’ notice in writing to the appointingauthority – Under clause (b), the notice may be withdrawn beforeits acceptance – Withdrawal of the resignation is not permitted afteracceptance –Under clause (c) of r.35A, the appointing authority,while accepting the resignation, is empowered to indicate a datefrom which it will take effect which will not be laterthan the date ofexpiry of the notice – Thus, the authority can legitimately acceptthe resignation from a date anterior to the expiry of the notice – Inthe present case, the resignation dtd. 1 June 2017 was accepted on12 June 2017 – It was only a month thereafter on 13 July 2017 thatthe respondent purported to withdraw the resignation – Resignationhaving taken effect upon its acceptance, the withdrawal was of noconsequence – High Court not justified in holding that within periodof ninety days, the period of notice required under the Rules, it wasopen to the employee to withdraw the resignation even after

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Aacceptance – This construction is contrary to the provisions of r.35A– Judgment of the High Court set aside – Dismissal of the writpetition by the Single Judge, affirmed – Tamil Nadu GovernmentServants (Conditions of Service) Act, 2016 – s.50.

Respondent, appointed in 2010, was working as Grade II PoliceBConstable at the IX[th] Batallion, Manimuthar, Palayamkottai. She tenderedher resignation on 1 June 2017, which was accepted on 12 June 2017.On 13 July 2017, the respondent purported to address communicationwithdrawing the resignation. The High Court in the writ petition filed bythe respondent, directed the Director General of Police to consider theCrepresentation and to pass appropriate orders in accordance with law.The DGP passed an order rejecting the representation, which waschallenged by the respondent. The Single Judge dismissed the writ petition.Division Bench allowed the writ appeal granting reinstatement withcontinuity of service. Hence, the present appeal.

DAllowing the appeal, the Court

Conclusion

DAllowing the appeal, the Court

HELD: The provisions of Rule 35A of the Special Rules ofTamil Nadu Police Subordinate Services are analogous to Section50 of the Tamil Nadu Government Servants (Conditions ofService) Act, 2016. The respondent, as a police constable, wasEgoverned by Rule 35A. Clause (a) of Rule 35A requires that beforeresigning, a member of the service must furnish not less thanthree months’ notice in writing to the appointing authority. Underclause (b), the notice may be withdrawn before its acceptance.Withdrawal of the resignation is not permitted after acceptanceby the appointing authority. Under clause (c), the appointingFauthority is required to issue orders on the notice of resignationbefore the date of expiry of the notice. If the resignation is beingaccepted, the date of acceptance is not to be later than the dateof the expiry of the notice. If no order has been passed, theresignation is deemed to have been accepted on the expiry ofGthe period of notice. The provisions of clauses (b) and (c) of Rule35A make it abundantly clear that: (i) A resignation can bewithdrawn before its acceptance; and (ii)Upon acceptance, theemployee loses the entitlement to withdraw the resignation.

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Moreover, it is evident from clause (c) of Rule 35A that theappointing authority, while accepting the resignation, isempowered to indicate a date from which it will take effect whichwill not be later than the date of expiry of the notice. The authoritycan legitimately accept the resignation from a date anterior tothe expiry of the notice. Upon the acceptance of the resignation,the cessation of service takes place and it is not open to theemployee to withdraw the resignation. In the present case, theresignation dated 1 June 2017 was accepted on 12 June 2017. Itwas only a month thereafter on 13 July 2017 that the respondentpurported to withdraw the resignation. The resignation havingtaken effect upon its acceptance, the withdrawal was of noconsequence. The acceptance of the resignation was completeon 12 June 2017. Once this was the position, the withdrawal wasof no consequence in law. The High Court was not justified incoming to the conclusion that within a period of ninety days, whichis the period of notice required under the Rules, it was open tothe employee to withdraw the resignation even after acceptance.This construction is clearly contrary to the provisions of Rule35A. The impugned judgment and order of the High Court is setaside, affirming the dismissal of the writ petition by the SingleJudge. It is, however, clarified that this order will not come inthe way of the respondent applying for appointment afresh as andwhen any selection takes place and any such application may beconsidered in accordance with law. [Paras 7-12][211-E; 212-B-H; 213-A-C]

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 9423of 2019.

From the Judgment and Order dated 27.03.2019 of the MaduraiBench of Madras High Court in W.A. (MD) No. 1596 of 2018.

M. Yogesh Kanna, Karthik Rajendran, Ms. Uma Prasuna Bachu,Advs. for the Appellants.

Dr. P. Jyothimani, Sr. Adv., Sumit Kumar, Hemant Kumar,Bhupendra Kumar, Gunjan Kumar, Advs. for the Respondent.

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210SUPREME COURT REPORTS

AThe Judgment of the Court was delivered byDR. DHANANJAYA Y CHANDRACHUD, J.

1. Leave granted.

2. This appeal arises from a judgment of a Division Bench of theBMadurai Bench of the Madras High Court dated 27 March 2019.Allowing a writ appeal, the Division Bench set aside an order of thelearned Single Judge which had dismissed the writ petition filed by therespondent and directed the State to reinstate the respondent back intoservice with continuity.

C3. The facts, insofar as they are material to the controversy, arethus:

The respondent was working as a Grade II Police Constable atthe IX[th] Batallion, Manimuthar, Palayamkottai. She was appointed on 1April 2010. While working at the All Women’s Police Station, Thoothukudi,Dthe respondent tendered her resignation on 1 June 2017 and sought to berelieved from her job. The resignation was accepted on 12 June 2017.On 13 July 2017, the respondent purported to address a communicationwithdrawing the resignation. The respondent instituted a writ petition[1]before the High Court which was disposed of on 1 March 2018 with adirection to the Director General of Police to consider the representationEand to pass appropriate orders in accordance with law.

4. On 2 June 2018, the Director General of Police[2] passed anorder rejecting the representation. In doing so, the DGP relied on theprovisions of Rule 35A of the Special Rules of Tamil Nadu PoliceSubordinate Services[3]. The order of the DGP was challenged before aFlearned Single Judge in a writ petition[4] which was dismissed by an orderdated 21 August 2018. The writ appeal[5] filed by the respondent was,however, allowed. The Division Bench came to the conclusion that interms of Section 50 of the Tamil Nadu Government Servants (Conditionsof Service) Act 2016[6], a period of ninety days’ notice is necessary. Inthe view of the High Court, this period of ninety days is intended for theG

1 Writ Petition No 3888 of 20182 “DGP”3 “Rules”4 Writ Petition No 18211 of 2018

5 Writ Appeal No 1596 of 2018

H6 “Act of 2016"

benefit not only of the authority, but for the person who tendered theresignation to rethink whether the resignation should be withdrawn. TheHigh Court found fault with the appellants for having accepted theresignation without waiting for the period of notice to expire andaccordingly set aside the decision. Consequently, reinstatement wasgranted with continuity of service.

5. Learned counsel appearing on behalf of the appellants, at theoutset, submits that the High Court has relied on the provisions of Section50 of the Act of 2016 whereas the respondent was governed by Rule35A of the Rules. Moreover, it was submitted that the provisions ofSection 50(2), which have been extracted in the judgment of the HighCourt, contained an omission which would have a bearing on theinterpretation of the provision. Learned counsel submitted that once theresignation was accepted, it was not open to the respondent to withdraw it.

6. Opposing this submission, it was urged on behalf of therespondent that the acceptance of the resignation on 12 June 2017 wasnot valid in law since it was subject to the grant of Vigilance and otherclearances. Moreover, learned counsel supported the reasoning of theDivision Bench that in view of the requirement of ninety days’ notice, itwas open to the employee to withdraw the resignation before the periodof notice expired and the acceptance of the resignation in the meantimewould not affect that entitlement.

7. The provisions of Rule 35A of the Rules are analogous toSection 50 of the Act of 2016. The respondent, as a police constable,was governed by Rule 35A, which is extracted below:

“35A Acceptance of Resignation

(a) The member of the service may resign his appointment bygiving notice of not less than three months in writing direct to theappointing authority with a copy marked to his immediate SuperiorOfficer. The period of three months notice shall be reckoned fromthe date of receipt of such notice by the appointing authority.

(b) The member of the service may withdraw the notice of hisresignation before its acceptance. Withdrawal of resignation willnot be permitted after its acceptance by the appointing authority.

(c) The appointing authority shall issue orders on the notice ofresignation before the date of expiry of notice either accepting AB

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Athe resignation from a date not later than the date of expiry of thenotice or rejecting the same, giving the reasons thereof. If nosuch order is passed, the resignation shall be deemed to havebeen accepted on the expiry of the period of notice.”

8. Clause (a) of Rule 35A requires that before resigning, a memberBof the service must furnish not less than three months’ notice in writingto the appointing authority. Under clause (b), the notice may be withdrawnbefore its acceptance. Withdrawal of the resignation is not permittedafter acceptance by the appointing authority. Under clause (c), theappointing authority is required to issue orders on the notice of resignationbefore the date of expiry of the notice. If the resignation is being accepted,Cthe date of acceptance is not to be later than the date of the expiry of thenotice. If no order has been passed, the resignation is deemed to havebeen accepted on the expiry of the period of notice. The provisions ofclauses (b) and (c) of Rule 35A make it abundantly clear that:

(i) A resignation can be withdrawn before its acceptance; andD(ii) Upon acceptance, the employee loses the entitlement towithdraw the resignation.

Moreover, it is evident from clause (c) of Rule 35A that theappointing authority, while accepting the resignation, is empowered toindicate a date from which it will take effect which will not be laterthanEthe date of expiry of the notice. In other words, the authority canlegitimately accept the resignation from a date anterior to the expiry ofthe notice. Upon the acceptance of the resignation, the cessation ofservice takes place and it is not open to the employee to withdraw theresignation.F

9. In the present case, as the facts which have been narratedindicate, the resignation dated 1 June 2017 was accepted on 12 June2017. It was only a month thereafter on 13 July 2017 that the respondentpurported to withdraw the resignation. The resignation having taken effectupon its acceptance, the withdrawal was of no consequence. We do notGfind merit in the submission that the acceptance of the resignation wasinvalid. The order which was passed clearly indicates the acceptance ofthe resignation. The order, however, provides that if the Vigilance andAnti Corruption Department indicated that any adverse remarks or ifany adverse noting was made by the Special Branch CID, the resignationwould be cancelled. The fact of the matter, however, is that the acceptanceH

of the resignation was complete on 12 June 2017. Once this was theposition, the withdrawal was of no consequence in law.

10. The High Court was not justified in coming to the conclusionthat within a period of ninety days, which is the period of notice requiredunder the Rules, it was open to the employee to withdraw the resignationeven after acceptance. This construction is clearly contrary to theprovisions of Rule 35A.

11. We accordingly allow the appeal and set aside the impugnedjudgment and order of the High Court dated 27 March 2019, affirmingthe dismissal of the writ petition by the learned Single Judge. There shallbe no order as to costs.

12. We, however, clarify that this order will not come in the wayof the respondent applying for appointment afresh as and when anyselection takes place and any such application may be considered inaccordance with law.

Divya Pandey

Appeal allowed.

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