MADHYA PRADESH HIGH COURT

                 Bhairon Singh Vishwakarma

                 Vs.

                 The Civil Surgeon,

                 Misc. Petition No. 345 of 1968
                 (K.L. Pandey and A.P. Sen, JJ.)

                 24.07.1970

                 ORDER

K.L. Pandey, J.

1. By an order dated April 24, 1959, the Director of Health Services, M.P., had
appointed the petitioner temporarily until further orders as a lower division clerk and
posted him to work in the office of the Civil Surgeon, Narsimhapur. By a subsequent
order of the appointing authority, dated August 9, 1965, he was declared to be a quasi
-permanent servant. On December 22, 1966, he gave a three months' notice of
resignation. By a communication dated February 22, 1967, he withdrew his
resignation. Even so, the Civil Surgeon had accepted the resignation on February 21,
1967 and the appointing authority subsequently accepted it on July 17, 1967. The
petitioner was required to make over charge of the post held by him on April 14, 1967.
His appeal against the acceptance of his resignation was dismissed on May 8, 1968.
Being aggrieved, he has filed this petition under Articles 226 and 227 of the
Constitution to call up and quash by certiorari the two orders of acceptance of his
resignation and prayed for a suitable writ, order or direction for his reinstatement.
Among the grounds raised in support of the petition, the following were pressed before
us:

(i) The resignation was conditional operating on a future date and, before it took
effect, it could be withdrawn.
(ii) The Civil Surgeon, Narsimhapur was not the appointing authority and could
not accept the resignation. That resignation was admittedly withdrawn before
the appointing authority accepted it on July 17, 1967.
(iii) Even if the Civil Surgeon, Narsimhapur was competent to accept the
       resignation, the withdrawal of the resignation was received by him on February
       25, 1967 before his acceptance dated February 21, 1967 was put in the course
       of transmission to the petitioner on February 28, 1967.

Having heard the counsel, we have formed the opinion that this petition must be
allowed. It is well settled that until the resignation of a civil servant is duly accepted
by the appropriate authority he has a chance of recalling it. So, in Raj Kumar v. Union
of India, 1 the Supreme Court observed:

       Till the resignation is accepted by the appropriate authority in consonance with
       the rules governing the acceptance, the public servant concerned has locus
       penitential but not thereafter.

In the case, the resignation was to take effect three months after the date on which it
had been sent, namely, December 22, 1966. That being so, this conditional resignation
was not to come into effect before March 22, 1967. Therefore, the petitioner had a
right to withdraw that resignation and to intimate to the appropriate authority that he
no longer desired that his application for resignation should be considered as effective.
A like view was taken in somewhat similar circumstances by the Allahabad High
Court in Shanker Dutt Shukla v. President, Municipal Board, Auraiya, 2 and it was
observed :

       The resignation was to become operative from 1st April and, in my opinion, the
       applicant had the right to intimate to the President that he no longer wished that
       his application, which was to come into existence from 1-4-1955, should be
       considered as effective.

In taking that view the Allahabad High Court relied upon the observations of the
Supreme Court in Jai Bam v. Union of India 3 to the effect that a person who expressed
his desire to retire from service could be permitted to change his mind subsequently
before his services were actually terminated. It is, however, argued that the Civil
Surgeon, Narsimhapur, had already accepted the petitioner's resignation on February
21, 1967 before the latter withdrawing, the resignation was received by him on
February 25, 1967. This is met by the petitioner by contending that the acceptance of
the resignation was not complete on February 21, 1967 because its intimation was put
in the course of transmission to the petitioner on February 28, 1967. It does not appear
to us to be necessary to examine the correctness of any of these two contentions,
involving as they do dispute questions of fact, because, in our opinion, they do not
really arise. In this particular case, the resignation was accepted by the Civil Surgeon
who was not the appointing authority. Normally, it is the appointing authority which
should accept the resignation and so terminate the services of a person employed by it.
It is not that the appointing authority may not delegate its functions limited to the
acceptance of resignation to a subordinate authority. But, no such delegation was
either urged or established. In these circumstances, the acceptance of resignation by
the Civil Surgeon was not legally effective and, long before the resignation was
accepted by the Director of Public Health, it had been withdrawn by the petitioner. In
the circumstances, the two orders dated February 21, 1967 and July 17, 1967
accepting the petitioner's resignation cannot be sustained. The result is that the petition
succeeds and is allowed. The orders dated February 21, 1967 and July 17,1967
accepting the petitioner's resignation are quashed and the respondents are directed to
deal with the case of the petitioner as if his resignation never took effect. The
respondents shall bear their own costs and pay those incurred by the petitioner to
whom the security amount shall be refunded. Hearing fee  100.

Cases Referred.

1. AIR 1969 SC 180
2. AIR 1956 All 70
3. AIR 1954 SC 584