1. On selection by the Gujarat Public Service Commission the petitioner was appointed on probation as a Medical Officer, Class II, in Gujarat Public Health Service in the pay scale of Rs. 425-850. In course of time he successfully completed the probation period and was allowed to cross the efficiency bar with effect from 1st March, 1971, vide Annexure to the petition. It then appears that by an order dated 18th March, 1978, Annexure IV, the Government was pleased to appoint the petitioner as the District Family Planning Medical Officer in Class I in the pay scale of Rs. 500-1250 on probation for a period of two years. The petitioner completed his probation and was confirmed in service in the said post. Thereafter by a letter dated 15th September, 1975, Annexure VIII, the petitioner tendered his resignation with effect from 16th September, 1975. Instead of giving one month's notice as required by the relevant Rules, he deposited one month's salary in the Government Treasury at Surat in lieu of notice. In the said letter of resignation he stated that no departmental inquiry was pending against him and no government dues were outstanding as on that date. This letter of resignation was addressed to the Director of Health Services (Health Section), Public Health Department, the Government of Gujarat. After the receipt of this letter a reply dated 25th November, 1976, Annexure IX, was received from the Office of the Director of Health Services stating that the notice pay deposited by the petitioner by challan was insufficient as it was not inclusive of all allowances and that till the balance was paid, the resignation could not be forwarded to the Government for acceptance. It thus becomes clear from this letter written on behalf of the Directors of Health Services that the petitioner's letter of resignation was not forwarded to the Government, that is, the appointing authority, as it did not comply with the relevant rules in that, the notice pay deposited by the petitioner fell short of the allowances received by the petitioner at the relevant point of time. The petitioner, instead of depositing the balance of the amount as required by the aforesaid letter of 25th November, 1976 decided to withdraw his resignation as is clear from the communication dated 18th January, 1977, Annexure XI. By the said letter addressed to the Director of Health Services, the petitioner in no uncertain terms stated that he withdrew the resignation tendered by him by his letter dated 15th September, 1975. He also mentioned in the the said letter that he was entitled to withdraw his resignation because it had not been accepted as yet by the appointing authority as he had failed to deposit the balance of the amount as directed by the communication dated 25th November, 1976. It appears that it was only after the receipt of this letter from the petitioner that the Director forwarded his letter of resignation to the Government for acceptance on 28th January, 1977 vide paragraph 11 of the affidavit-in-reply of Shri C. M. Kothari dated 17th March, 1981. From the above facts two things clearly emerge, namely, (i) the letter of resignation was not forwarded to the appointing authority; and (ii) it was forwarded for acceptance to the appointing authority for the first time after the petitioner had written the letter of 18th January, 1977 withdrawing the resignation.
2. The governing Rule is R. 33A of the Bombay Civil Services Rules as amended by the third amendment of 1974. The relevant part of R. 33A reads as under :
'33A. (1)(a) A Government servant may at any time resign from the services of the State by giving a notice of one month in writing to the appointing authority :
Provided that in the case of a temporary servant who has put in service of less than one year, the period of such notice shall be one week.
(b) xxxx xxxx xxxx
(2) The resignation tendered by a Government servant shall be effective from the date on which it is accepted by the appointing authority; but if it is not accepted before the expiry of the period of notice for resignation to be given by such servant under sub-rule (1), it shall be deemed to have become effective on the date of the expiry of such period, unless the Government servant is informed, before such date, that this resignation has been rejected and of the reasons for such rejection :
Provided that the resignation of a Government servant shall not be rejected except in the case where -
(a) any ascertained or ascertainable amount of money is found outstanding against him and payment thereof is not made by him within the period mentioned above;
(b) he is under suspension :
(c) any departmental inquiry or criminal prosecution is contemplated or pending against him.
(3) (4) xx xx
(5) any notice of resignation from service shall not be permitted to be withdrawn after the resignation has become effective, except on exceptional grounds or in public interest.'
On a bare perusal of this Rule it becomes clear that a Government servant can resign by giving a notice of one month in writing to the appointing authority. In the instant case admittedly the appointing authority was the Government and not the Director of Health Services. It was for this reason that the Director of Health Services by his letter dated 25th November, 1976, Annexure IX, called upon the petitioner to deposit the balance equivalent to the allowances drawn by him at the relevant point of time to enable him to forward his resignation for acceptance to the Government. It is, therefore, obvious that the resignation of the petitioner was not forwarded to the Government by the Director of Health Services because, according to the letter, the petitioner had not deposited one month's wages inclusive of allowances as required by R. 33 A(1)(a) of Bombay Civil Services Rules. While the petitioner's proposal for resignation was still pending with the Director of Health Service, he withdrew the same by his letter dated 18th January, 1977, Annexure XI. It becomes obvious from the above correspondence that according to the Director of Health Services, the petitioner had not deposited one month's wages in lieu of notice and had, therefore, not complied with the first requirement of R. 33 A(1)(a) of Bombay Civil Service Rules. That is the petitioner to the Government for acceptance of his resignation. In the meantime the petitioner changed his mind and by his letter of 18th January, 1977 withdrew the resignation. It is clear from para 11 of the affidavit-in-reply that it was only thereafter that the Director of Health Services forwarded his letter of resignation to the Government for acceptance. In the affidavit-in-reply filed on behalf of the State Government by Shri C. M. Kothari, it is stated in para 11 as under :
'The letter of resignation was sent to respondent No. 2 who has forwarded it to Government on 26th January, 1977.'
It is, therefore, established beyond any manner of doubt that the appointing authority received the letter of resignation for the first time on 28th January, 1977, that is, after the resignation was actually withdrawn by the petitioner. At the date of withdrawal the letter of resignation was still with the Director of Health Services and it appears that along with that letter he unfortunately did not forward the letter of withdrawal also to the State Government. The State Government did not act on the letter of resignation of the petitioner and, therefore, it was contended by Mr. Jadeja for the respondents that by virtue of R. 33 A(2), the resignation had become effective on the expiry of the period of notice. That is why, it is contended in paragraph 13 of the affidavit-in-reply that the resignation became effective with effect from 16th September, 1975 and, therefore, the subsequent withdrawal was of no consequence whatsoever. There is no substance in this contention for the simple reason that the appointing till 28th January, 1977. If that is so, it is difficult to understand how reliance can be placed on R. 33 A(2) of Bombay Civil Services Rules for the purpose of contending that the resignation became effective with effect from 16th September, 1975. In order that the petitioner may be visited with the consequence of fiction created by R. 33 A(2) of Bombay Civil Service Rules, it must be shown that the letter of resignation was received by the appointing authority and that the period had expired so as to attract the said sub-rule. If the letter of resignation was in fact received by the appointing authority on 28th January, 1977, that is, after the withdrawal of the resignation, it could hardly be contended on behalf of the respondent that the resignation should be deemed to have been accepted by efflux of time.
3. It was next contended on behalf of the respondents that there was no provision in the rules for withdrawal of resignation and, therefore, the letter of withdrawal dated 18th January, 1977 could validly be ignored by the State Government. Sub-Rule (5) of R. 33A quoted above states that any notice of resignation form service shall not be permitted to be withdrawn after it has become effective except on exceptional grounds and in public interest. This Rules, therefore, lays down that even in the case where the resignation has become effective, it can be permitted to be withdrawn on exceptional grounds or in public interest. In the instant case, the resignation had not become effective because it was received by the appointing authority on 28th January, 1977, that is, a few days after it was withdrawn by the petitioner. Having regard to the language of clause (5) of R. 33A it can be validly implied that an incumbent can withdraw his resignation at any time before it is accepted or becomes effective by efflux of time. If any authority is needed to support this proposition, reference may be made to Raj Kumar v. Union of India, [1970-I L.L.J. 13]. In paragraph 5 of the said judgment their Lordships of the Supreme court have stated the proposition of law in the following words :
'Till the resignation is accepted by the appropriate authority in consonance with the rules governing the acceptance, the public servant concerned has locus paenitentiae but not thereafter.'
In the instant case as the resignation was withdrawn before it was actually received by the appointing authority which alone could accept or reject the resignation or permit it to become effective by efflux of time, there is no merit in the contention that the resignation once despatched could not be withdrawn. It is not like a bullet which cannot be withdrawn once fired. Therefore, I have no hesitation in reaching the conclusion that the petitioner was entitled to withdraw his resignation before the appointing authority either accepted or rejected it or permitted it to become effective by efflux of time.
4. It may at this stage be mentioned that Mr. H. B. Shah, the learned advocate for the petitioner, very fairly stated that having regard to the circumstances of the case the petitioner does not claim back wages or seniority but should be allowed continuity in service for the purpose of retirement benefits. I think this suggestion made by Mr. Shah is very fair and needs to be accepted.
5. In the result the petition is allowed. The respondents are directed to reinstate the petitioner in service forthwith. The petitioner will not be entitled to back wages or seniority over those who are presently in the cadre but he will be allowed continuity in service without break for the purpose of retirement benefits in future. The rules is made absolute accordingly. There will, however, be no order as to costs.