1. The question raised by the petitioner relates to regulation of seniority of an officer who has been 'reinstated' into service some months after he had been relieved of his duties on acceptance of his voluntary resignation.
2. The petitioner and respondent 3 were appointed in the former State of Bombay as probationary sub-registrars in grade III, in the year 1948 and had been confirmed in that grade in due course, long before the Reorganization of States. The petitioner was junior to respondent 3. Both of them were allotted to the new State of Mysore with effect from 1 November, 1956. In the division wise provisional seniority list for the Belgaum Division, the petitioner was shown at serial No. 7 and respondent 3 was shown at serial No. 4 under the category of second-grade sub-registrars. In the State-wise list of second grade sub-registrars prepared for promotion to the post of first-grade sub-registrars in August, 1959 the rank of respondent 3 was 38 while that of the petitioner was 40. On 26 January, 1960, respondent 3 tendered his resignation to the Inspector-General of Registration (respondent 2) and the latter accepted the same with effect from 13 February, 1960, when respondent 3 was relieved of his duties. The Government of Mysore issued a circular (annexure E) No. GAD 18 SRR 62, dated 2 March, 1962, directing that the heads of departments should not permit officials to withdraw their resignations which had already been accepted by the competent authority as nothing remains to be withdrawn when once the resignation of a Government servant is properly accepted. In spite of the circular, respondent 3 submitted a petition to the State Government (respondent 1) on 1 April, 1963 praying for permission to withdraw his resignation alleging that he had submitted the same when he was in an agitated mood due to domestic worries, even though a similar request made in 1962 had been refused. The Inspector-General of Registration reviewed his previous order and by his official memorandum dated 28 September, 1963 permitted respondent 3 to withdraw his resignation and reinstated him in service as second-grade sub-registrar subject to certain conditions as per order of the State Government (No. RD 59 GRG 63, dated 11 September, 1963). One of the conditions was that his seniority and pay after the reinstatement were to be governed by the 'standing orders.' Respondent 3 accordingly joined his duties as sub-registrar at Nargund in Dharwar district in October, 1963. On his reinstatement, his break in service to the extent of three years and eight months was ordered to be treated as 'leave without pay and allowance.' The petitioner complains that the orders passed by the Government illegally affect his seniority in the substantive rank of second-grade sub-registrars and virtually reduce him in rank postponing his future chances of promotion in the department. He has therefore prayed for quashing the order of reinstatement of respondent 3 and for a writ of quo warranto directing him to vacate the post of the sub-registrar. He has also prayed for a writ of mandamus against respondents 1 and 2 restraining them from giving seniority to respondent 3 over him.
3. In the counter filed on behalf of the State it has been contended that permission for withdrawal of resignation had been granted according to rules and that the break in service of respondent 3 had been regularized by treating the period as leave without pay and allowance. It is admitted that an earlier representation made by respondent 3 had been rejected. It is submitted that as respondents was already senior to the petitioner, the latter's rank was in no way altered by the orders passed by the Government in accordance with rule 252 of the Mysore Civil Services Rules, 1958, framed by the Governor in exercise of the powers conferred on him by the proviso to Art. 309 of the Constitution.
4. Respondent 3 has resisted the petition on the ground that his rank in the seniority list was fully in accordance with the Government order reinstating him in his original post. He has submitted that the circular referred to by the petitioner was in the nature of administrative instructions and as such, could not affect the legality of the order of his reinstatement under rule 256 of the Mysore Civil Services Rules.
5. So the sole question that arises for determination is whether the order of reinstatement passed by the Government in favour of respondent 3 reinstating him in his original post and giving him seniority over the petitioner is legal and valid. The contention of Sri Hiremath, the learned counsel appearing for the petitioner is, that the rule empowering the State Government to permit withdrawal of a resignation after it is once accepted is illegal and arbitrary as it takes away rights of seniority and chances of promotion vested in persons like the petitioner. Sri Pappu appearing for respondent 3 submitted that it was within the competence of the State Government to frame a rule under the proviso to Art. 309 of the Constitution empowering the Government to grant permission for withdrawal of a resignation even after it had become effective and that the impugned order passed by the State Government had not infringed any right of the petitioner.
6. Before referring to the relevant rules contained in the Mysore Civil Services Rules (hereinafter called the rules), it is necessary to refer to the impugned order and the relevant undisputed facts bearing on the points at issue. It is common ground that both the petitioner and respondent 3 were holding the post of second-grade sub-registrar at the material date and that the petitioner was junior to respondent 3. It is undisputed that respondent 3 voluntarily tendered his resignation on 26 January, 1960 and that he was relieved of his duties on 13 February, 1960. He once applied in 1962 for permission to withdraw his resignation, but the same was refused. Thereafter he submitted a petition to the State Government on 9 April, 1963 praying for withdrawal of his resignation and for his reinstatement in service on the ground that he had tendered his resignation after putting in thirteen years of service, when he was in a desperate and agitated mood due to domestic worries. The proceedings of the State Government relating to the impugned order (annexure F) are dated 11 September, 1963 and refer to the demiofficial latter from respondent 2 dated 3 October, 1962 and to the petition of respondent 3. The material portion of the order reads thus :
'After full examination of the case in all aspects, Government direct that T. L. Dhekane may be permitted to withdraw his resignation and that he may be reinstated into service as sub-registrar in the Department of Registration subject to the following conditions :
(i) the period intervening between the termination of his service and his reinstatement shall be treated as leave without pay and allowances;
(ii) The enquiries that were pending against him when he was in service shall be revived and disposed of on merits, and
(iii) his seniority and pay after his reinstatement shall be governed by the standing orders.'
7. It appears that after this order, respondent 3 submitted a letter dated 21 September, 1963 withdrawing his resignation and he was
'posted as sub-registrar, grade II, to sub-registry office, Nargund, vice Sri N. G. Dandiwad, sub-registrar (on leave) temporarily, and until further orders.'
8. It is admitted for the respondents that the vacancy caused by the resignation of respondent 3 was filled up immediately by the appointment of another candidate who had been recruited by the district level recruitment committee. Hence, there could be no reinstatement as such unless suitable orders of reinstatement consequent on the restoration of respondent 3 to his original post were passed. It may be mentioned that no orders of Government have been produced to show that respondent 3 was restored to his original rank as a consequence of the order of reinstatement.
9. As regards the validity of the order of reinstatement, the position under the Mysore Civil Services Rules is neither unambiguous nor free from difficulty. These rules regulate the conditions of service of persons appointed to services and posts in the State of Mysore. Part I contains general rules and 'definitions.' Part II contains relating to 'general conditions of service, regulation and emoluments, compulsory retirement, dismissal, removal and suspension, etc.' Part III contains rules relating to leave while Part IV contains rules regarding 'ordinary pension.' We are not concerned with the other parts of these rules.
It is significant that there are no rules in Part I which deal with resignation and reinstatement or reemployment :
'Resignation is a term of legal art, having legal connotation which describes certain legal results. It is characteristically the voluntary surrender of a position by the one resigning, made freely and not under duress, and the word is defined generally as meaning the act of resigning or giving up, as a claim, possession or posision. [See p. 351, Corpus Juris Secundum, Vol. 77].'
10. A resignation becomes effective when the authority competent to make the appointment accepts it and the servant resigning is relieved of his duties. A resignation, after it has become effective, puts and end to the relationship of master and servant, and the post occupied by the person resigning becomes vacant. In this connexion reference may be made to the decision of the Supreme Court in Jai Ram v. Union of India : AIR1954SC584 which deals with the case of a servant applying for permission to retire before reaching the age of superannuation. The position enunciated is identical with that of a person voluntarily resigning his post. In dealing with premature retirement, their lordships observed :
'... It may be conceded that it is open to a servant, who has expressed a desire to retire from service and apply to his superior officer to give him the requisite permission, to change his mind subsequently and ask for cancellation of the permission thus obtained; but he can be allowed to do so so long as he continues in service and not after it has terminated.'
11. In deciding the case, their lordships relied upon the fundamental rules which governed the service conditions of the appellant before them.
12. The question as to what would be the nature of service of a person who is permitted to resume his duties after his resignation has become effective, is not free from difficulty. Such a person may either be reemployed or reinstated as the relevant rules may permit. 'Reinstatement' results in replacing a person in the position from which he resigned or was dismissed; it means restoration of the status quo ante the resignation or dismissal, as the case may be. The word 're' when used as a prefix normally means 'again' or 'back.', 'Reemployment' therefore means taken back to service or taken again into service. So whether a person is 'reemployed' or 'reinstated' is a matter depending upon the order passed in the case or the terms of the contract relating to it. In the present case, the order quoted in Para. 6 above stated that respondent 3 was 'reinstated.' We have already pointed out that the post from which he resigned was immediately filled up and that he was posted in a leave vacancy 'temporarily and until further orders.' The petitioner and respondent 3 were both confirmed second-grade sub-registrars. So the order actually issued posting respondent 3 in a leave vacancy 'temporarily and until further orders' cannot be consistent with the principles of 'reinstatement'.'
13. The Mysore Civil Services Rules do not appear to be quite consistent on this subject. Rules 151 and 152 which occur in Chap. XII. Part III, dealing with 'Leave,' read as follows :
'151. A Government servant who is discharged on reduction of establishment from, or resigns the public service, and is reemployed after an interval, cannot, without the permission of the authority sanctioning the reemployment, count his former service towards leave.
'152. A Government servant who is dismissed or removed from the public service but is reinstated on appeal or revision is entitled to count his former service for leave.'
14. It is necessary to note that the word 'reemployed' is used in rule 151 which expressly deals with the case of a servant who is discharged or reduced from establishment or resigns his public service; the word 'reinstatement' in rule 152 is used only in the case of a person who is dismissed or removed as a punishment and is taken back to duty as a result of his success in appeal or revision. If the ratio of these two rules is borne in mind, it should follow that a person who has voluntarily resigned from service should be treated as having been 'reemployed' if he is permitted to resume his duties. Rule 252 which occurs in Chap. XVII of Part IV dealing with 'pension' seems to lay down a different rule. The relevant portion reads :
'252. (a) Resignation of the public service, or dismissal or removal from it for misconduct ... entails forfeiture of past service.
Note. - The appointing authority in respect of a service or post shall be the competent authority to accept the resignation. When the resignation of a Government servant is accepted, the competent authority shall decide the date from which the resignation shall become effective. Where, however, a Government servant is on leave, the competent authority shall decide whether the resignation is accepted with immediate effect or with effect from the date following the termination of leave ... A resignation becomes effective when it is accepted and the Government servant is relieved of his duties. Where a resignation has not become effective and the Government servant wishes to withdraw it, the authority which accepted the resignation may either permit the officer to withdraw his resignation or refuse such request. Where, however, a resignation has become effective, sanction of Government with concurrence of the Finance Department should be obtained before permitting the withdrawal of resignation. In such cases, the Government servant is entitled to count his past services and the period of break between the date from which the resignation has become effective and the date of resignation shall not count unless regularized as leave by a specific order of Government.'
15. The latter portion of this not relating to counting of past service after permission for withdrawal of resignation is granted verily speaks of 'resuming duty' implying 'reinstatement.' In the present case it is not shown that the concurrence of the Finance Department was obtained in passing the impugned order.
16. We shall now advert to consideration of the terms of the impugned order. The first clause of the order of reinstatement was sought to be defended by the respondents on the strength of rule 256 of the rules. That clause lays down that the period intervening the termination of his service and his reinstatement shall be treated as leave without pay and allowances. This clause is not in conformity with the provisions contained in rule 256 which provided for condonation of interruptions and deficiencies. The rule reads :
'256. Upon such conditions as it may think fit, in each case, to impose, Government may condone all interruptions in service.
Note 1. - Among the conditions that may be imposed, care should be taken to ensure that Government servants are discouraged from quitting Government service against the enforcement of discipline or in the expectation that they might get back their pension rights if they re-enter service after a break to suit their convenience.
2. In respect of Government servants retiring from service after 31 December, 1950, Government may condone interruptions in service (either between two spells of permanent or temporary service or between a spell of temporary service and permanent service or vice versa) only in cases where the following conditions are fulfilled :-
(i) The interruptions should have been caused by reasons beyond the control of the Government servant concerned.
(ii) Service preceding the interruption should not be less than five years' duration, and in cases where there are two or more interruptions the total service. Pensionary benefits in respect of which will be lost if the interruptions are not condoned, should not be less than five years.
(iii) The interruption should not be more than of one year's duration. In cases where there are two or more interruptions, the total of the periods of all the interruptions that are condoned should not exceed one year.'
17. Clause (iii) of note 2 quoted above unequivocally lays down that the interruption that could be condoned 'should not be more than of one year's duration.' In the present case, the duration is of three years and eight months. Hence the first clause of the order is in excess of the power vested in the State Government and has therefore to be struck down as illegal. The second clause of the order merely relates to the revival of the enquiry that had been dropped and is of no consequence so far as the present writ petition is concerned.
18. Apart from this infirmity, the order passed by the Government violates other rules bearing on the subject-matter dealt with by Cls. (i) and (iii) of the said order. Normally, a person who is taken back to service some months after his voluntary resignation has become effective, should, in the matter of his seniority rank below the last person officiating in that cadre post on the date of his resumption of duty. In other words, he should stand in the position of a person who is reemployed on the date of rejoining.
19. Seniority is determined by the length of continuous service in the same grade as between two persons. Rule 8(11) defines 'continuous service' as meaning 'service of a Government servant from the beginning of his service, without any break. Only leave with allowance will be included in continuous service.'
20. This is a general rule and seems to regulate the general conditions of service. Therefore, in deciding whether a person like respondent 3 in whose service there has been a break and whose absence from duty is treated as 'leave without allowance,' the Government should take into account the implications of this rule as well. The seniority rules, as they stand to not contain any rule to cover the case of respondent 3. In such cases, rule 8 of the said rules empowers the State Government to fix the seniority of such persons, in consultation with the Public Service Commission. It would be now for the State Government to take a decision in the matter according to the rule. That has not been done. It is advisable that the State Government should consider and provide expressly in the rules as to how the seniority of a person who is 'reinstated' should be regulated. As the facts of this case stand, there is no legal order or rule which can place respondent 3 above the petitioner.
21. We refrain from quashing the order of reinstatement in the hope that the Government would take into consideration the aforesaid provisions and pass appropriate orders after taking into consideration what has been stated above.
22. For these reasons, we allow the writ petition partially and quash the placement of respondent 3 above the petitioner and the first clause of the break. In the circumstances of the case, we direct the parties to best their costs.