- (1.) As Appellants the Union of India and its concerned officials are aggrieved by the judgment and order under appeal dated 11.12.2008 passed by a Division Bench of High Court of Himachal Pradesh in Civil Writ Petition No. 41 of 2001 whereby the High Court allowed the Writ Petition preferred by the sole Respondent and set aside the impugned order of the Central Administrative Tribunal dated 15.5.2000. The High Court held the Respondent entitled for reinstatement in service to the post of "Investigator". The Government was directed to decide the admissibility and entitlement of leave, arrears of pay and allowances and other service benefits of Respondent upon his reinstatement after affording full opportunity to the Respondent, of hearing as well as leading evidence.
(2.) Before adverting to the facts it is relevant to notice at the outset that the High Court, inspite of resignation of the Respondent dated 07.10.1997 having been accepted by the Competent Authority by order dated 16.6.1998 held that the resignation could not have come into effect because as per Clause (4) of Office Memorandum dated 11.2.1988 issued by the Government of India, Ministry of Personnel, Public Grievances and Pensions, the Respondent was also required to be relieved of his duties which was not done by the Appellants.
(3.) The question falling for determination in this appeal is whether relevant Clause (4) of the Office Memorandum dated 11.2.1988 takes away the power of the Government to effectively bring to an end the service of an employee by accepting his resignation unless the Government, besides accepting the resignation also proceeds to relieve the employee. In the judgment under appeal, the relevant clauses, i.e., Clauses 1, 2, 3 and 4 have been extracted in paragraph 10(iii) and those clauses are reproduced hereinbelow for the sake of clarity and convenience: Clause (01): Format of resignation: Resignation is an intimation in writing sent to the competent authority by the incumbent of a post, of his intention or proposal to resign the office/post either immediately or from a future specified date. A resignation has to be clear and unconditional. Clause (02): Circumstances under which resignation should be accepted. It is not in the interest of Government to retain an unwilling Government servant in service. The general rule, therefore, is that a resignation of a Government servant from service should be accepted, except in the circumstances indicated below: (i) Where the Government servant concerned is engaged on work of importance and it would take time to make alternative arrangements for filling the post, the resignation should not be accepted straightaway but only when alternative arrangements for filling the post have been made. (ii) xxxx xxxx xxxx xxxx xxxx Clause (03): A resignation becomes effective when it is accepted and the Government servant is relieved of his duties. If a Government servant who had submitted a resignation, sends an intimation in writing to the appointing authority withdrawing his earlier letter of resignation before its acceptance by the appointing authority, the resignation will be deemed to have been automatically withdrawn and there is no question of accepting the resignation. In case, however, the resignation had been accepted by the appointing authority and the Government servant is to be relieved from a future date, if any request for withdrawing the resignation is made by the Government servant before he is actually relieved of his duties, the normal principle should be to allow the request of the Government servant to withdraw the resignation. If, however, the request for withdrawal is to be refused, the grounds for the rejection of the request should be duly recorded by the appointing authority and suitably intimated to the Government servant concerned. Rules governing temporary Government servants in reference to Rule 5(1) of the CCS (TS) Rules, 1965. Clause (4): Since a temporary Government servant can sever his connection from Govt. service by giving a notice of termination of service Under Rule 5(1) of the Central Civil Services (TS) Rules, 1965, the instructions contained in this Office Memorandum relating to acceptance of resignation will not be applicable in cases where a notice of termination of service has been given by a temporary Govt. servant. If, however, temporary Govt. servant submits a letter of resignation in which he does not even mention that it may be treated as a notice of termination of service, he can relinquish the charge of the post held by him only after the resignation is duly accepted by the appointing authority and he is relieved of his duties and not after the expiry of the notice period laid down in the Temporary Service Rules.;