S.A. Shah, J.
1. The petitioner was appointed as Medical Officer, Class-111 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 However, the petitioner had withdrawn his resignation letter before the same was accepted by the State Government.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-11. 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 13th December, 1983. Mr. A. H. Mehta, Learned Counsel for the petitioner, cited one judgment of this Court in the case of Hakumat Rai v. State of Gujarat 23(1) 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 24th May, 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.
(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-11 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 15-4-1976 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 month's notice.
(iv) On May 21, 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 second 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 23-3-1978 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 & Medical Services, and (2) that the resignation 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 concerned, provisions of B.C.S.R. in respect of resignation of a Government Servant being material are reproduced below:
33-A(1)(a). A Government servant may at any time resign from the service 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) Nothing in this rule shall affect the provisions of any special contract of service or bond entered into by the Government servant with the Government, or the provisions of any special rules if any, applicable to him, in respect of the period of notice to be given for resignation from service on payment of any sum by the Government servant, to the Government for premature resignation by him.
(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 his 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 a 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.
Rule 33-A(1)(a) in clear terms states that one month's notice for resignation must be given to the appointing authority. Sub-rule (2) provides that the resignation so 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 Government 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 his resignation has been rejected and of the reasons for such rejection. Sub-clause (2) of the said Rule gives power to the Government to accept the resignation before the period of notice expires, and unless the resignation is rejected the same will become effective on the date of expiry of such period. It may be noted that even Sub-rule (2) vests power only with the appointing authority to accept the resignation earlier or reject the same before it becomes effective. However, if nothing is done by the appointing authority, then the resignation becomes effective on the expiry of the period of one month.
7. In the instant case it is not disputed that the resignation has not been accepted by the Government within a period of one month, and therefore, the resignation becomes effective on the expiry of the period of one month, i.e. 15-5-1976. However, Mr. Mehta submits that this deeming provision will come into operation only if the resignation is either given to the appointing authority or at the said resignation is sent to the appointing authority for its consideration. In the instant case it is admitted position that the resignation was not addressed or given to the appointing authority which is according to the Government's case is the State Government. The letter of resignation which has now been produced by the Government with the affidavit is addressed to the Director of Health & Medical Services and not to the Government. Para 4 of the affidavit in-reply in terms states that the said resignation was sent for consideration of the Government by the District Development Officer along with his letter dated 23-3-1978, i.e. after the said resignation was withdrawn by the petitioner on March 21, 1978. Therefore, Mr. Mehta argues that the subsequent acceptance of the resignation by the Government by its order dated 24th May, 1978 cannot terminate the services of the petitioner because the same was passed after the resignation was withdrawn.
8. Mr. Mehta is right on both the points. The resignation was admittedly given to the Director of Health and Medical Services and not to the appointing authority and, therefore, the resignation was not in accordance with the statutory Rule 33-A. Secondly, even if we give a wider interpretation to the said rule that at last the resignation was ultimately sent to the appointing authority on 23-3-1978, that fact will not help the Government because the resignation was forwarded to the Government only after the date when the petitioner had withdrawn his resignation. It is obvious that as soon as the petitioner withdrew his resignation the concerned officers became active and immediately tried to send the resignation letter to the appointing authority for necessary action. Unfortunately they were late. The petitioner had withdrawn the same and, therefore, there was no resignation before the appointing authority which the appointing authority can either accept or reject.
9. Mr. Mehta has relied upon the judgment of this Court in the case of Hukumat Rai v. State of Gujarat and Ors. 23(1) G.L.R. 641 : 1982 G.L.H. 85. Facts of that case were similar to that of this petition. In that petition, the petitioner Hukumat Rai was appointed as Medical Officer Class-11 in Gujarat Public Health Services and thereafter he was promoted to the cadre of Medical Officer Class-1 and was confirmed on the said post. On 15th September, 1975 Hukumat Rai gave 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. He further stated in the letter of resignation that no departmental inquiry was pending against him and no Government dues were outstanding as on that date. This letter was addressed to the Director of Health Services (Health Section) Public Health Department, Government of Gujarat. After the receipt of this letter a belated reply dated 25th November, 1976 was sent to Hukumat Rai slating that the notice pay deposited by him 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. Hukumat Rai, instead of depositing the balance of the amount as required by the aforesaid letter, decided to withdraw his resignation as is clear from his communication dated 18th January, 1977 wherein he stated that since the resignation has not been accepted by the appointing authority and that he failed to deposit the balance as directed by the authority, he was withdrawing the resignation. However, on receipt of that letter Hukumat Rai's resignation letter was sent to the Government for acceptance on 28th January, 1977 i.e. after ten days of the withdrawal of the resignation. Therefore, the question arose as to whether the resignation was given to the proper authority and whether the withdrawal of the resignation was legal and valid. While deciding the case A. M. Ahmadi, J. observed as under:
It is, therefore, established beyond any manner of doubt that the appointing authority received the letter of resigintion for the first time on 23th 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.
In that case also the respondents contended that by virtue of Rule 33-A(2) the resignation became effective on the expiry of the period of notice. It was contended by the respondents in that case that the resignation became effective with effect from 16th September, 1975 and, therefore, the subsequent withdrawal was of no consequence whatsoever. Rejecting this argument, my learned brother A. M. Ahmadi, J. observed that:
There is no substance in this contention for the simple reason that the appointing authority had not received the letter of resignation till 28th January, 1977. If that is so, it is difficult to understand how reliance can be placed on Rule 33A(2) of Bombay Civil Services Rules for the purpose of contending that the resignation became effective with effect from 15th September, 1975.
10. The aforesaid case totally supports the contention of Mr. Mehta. Thereafter Mr. Mehta relied upon the case of Rajkumar v. Union of India : (1970)ILLJ13SC 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 poenitentiae but not thereafter.
11. Relying upon this observation Mr. Mehta argues that till the resignation is Accepted or it comes into operation by deeming fiction the concerned public servant can withdraw the same. I have, therefore, no hesitation to come to the conclusion that the petitioner was entitled to withdraw his resignation before the appointing authority has accepted or rejected it or permitted it to be effective by lapse of time. In view of the aforesaid legal position the acceptance letter of the State Government has no legal effect and is required to be quashed and set aside.
12. Mr. Bukhari, learned A. G. P., has argued that not only the petitioner had tendered his resignation but the petitioner had handed over the charge to one Dr. B. G. Patel in anticipation of acceptance of his resignation, and thereafter he had acted as if be ceased to be a Government servant and, therefore, the withdrawal of resignation was an afterthought. Even if the petitioner can succeed on the technical ground. Mr. Bukhari argues that the petitioner has remained absent and has never applied for leave and, therefore, he should be treated as having been relieved from Government service. It is no doubt true that the petitioner has acted as if he has been relieved from service and has never cared to discharge his duties as Medical Officer nor has he offered himself for the services. But this is not a case in which the petitioner is praying for backwages. However, if the petitioner has remained absent it is for the State Government to consider what steps should be taken. That does not change any position because a Government servant is governed by the statutory rules and if the rules direct the resignation to be given in a particular manner than the resignation can be given only in that manner and not in any other manner. If the resignation was not accepted, it was not the fault of the petitioner and the petitioner can take advantage of the delay made by the respondents. However, even if it is assumed that the petitioner has considered himself relieved from the service and has not even cared to take leave for remaining absent, the Court cannot help. It is for the Government to take action. The petitioner, is, therefore, entitled to the declaration that acceptance of his resignation was ineffective and be continues in service.
13. In the result, the petition is allowed. The impugned order of the Government dated 24th May, 1978 is quashed and set aside. It is declared that the petitioner continues in service of the State Government. Rule is made absolute with no order as to costs.