Appellate Division (Civil)
Nazmun Ara Sultana J
Syed Mahmud Hossain J
Md lmman Ali J
Government of Bangladesh, represented by the Secretary. Ministry of Education
and others ……………………….. Petitioners.
vs
SM Humayun Kabir and another……… Respondents*
Judgment
September 7th, 2014.
Service Matter
Resignation tendered by a government official can be withdrawn before it is accepted by the competent authority. Government servant continued with his service till his resignation was accepted or in other words his service was terminated on the day when his resignation was accepted by the Government. (16 & 12)
Jagdish Chandra vs Commissioner of Transport (1982) I Serv. LJ 422 (HP); Jairam vs Union of India. 1954 (SC) 584 and Raj Kumar vs Union of India, AIR 1969 (SC) 180 ref.
Rajik-al-Jalil, Deputy Attorney General, instructed by Mahmuda Begum, Advocate-on-Record-For the Petitioners.
Akther Iminam, Senior Advocate, instructed by Syed Mahbubur Rahman, Advocate-on-Record-For Respondent No.1.
None Represented-Respondent No.2.
Judgment
Syed Mahmud Hossain J: This civil petition for leave to appeal is directed against the judgment and order dated 15-5-2011 passed by the High Court Division in Writ Petition No.4717 of 20 I 0 making the Rule absolute.
2. The facts relevant for the purpose of disposal of this civil petition for leave to appeal, in a nutshell, are:
3. Respondent No.1 herein SM Humayun Kabir filed the above writ petition challenging the impugned order dated 22-7-2008 passed by the writ-respondents releasing the writ-petitioner from service on accepting his resignation letter dated 18-4-2007 (Annexure-H).
4. Respondent’s case, in short, is that he was appointed in the BCS (General Education) Cadre as Lecturer. Accordingly, he joined Netrokona Government College as Lecturer in Philosophy on 20-10-1996, vide appointment letter dated 16-10-1996 issued by the Ministry of Education. The post of respondent No.1 was subsequently made permanent vide notification dated 4-11-2003. Because of various achievements especially for having academic qualification, professional experience, knowledge about computer and experience abroad, respondent No.1 was transferred to the post of Assistant Director of Asian Development Bank, CIDA. In 2004, respondent No.1 sat for the examination of the Public Service Commission under the President’s quota of 10 (ten) percent and stood first. He was accordingly promoted to the post of Assistant Professor and posted at Government Haraganga College, Munshigonj on 6-1-2005. To his utter surprise, respondent No.1 was subsequently transferred to Sathkania Government College, Sathkania, Chittagong, vide order dated 7-3-2007 issued by the Directorate of Secondary and Higher Education, Bangladesh, Dhaka. At the time of the said transfer, respondent No.1 was suffering from jaundice and was in his village town, Manikgonj and, as such, he could not join Sathkania College within time. Respondent No.1 accordingly made a representation to the Director General of Secondary and Higher Education, Dhaka to withdraw the transfer order on the ground that he never applied for the same, but his request was not entertained. Being aggrieved and frustrated by the unilateral transfer order, respondent No.1 vide letter dated 18-42007 tendered his resignation. It has been empathically contended that at the time of tendering resignation, respondent No.1 was seriously ill and was diagnosed with “General Anxiety Disorder” from 10-3-2007 till 9-9-2007. Respondent No.1 was facing severe financial crisis and finding difficulty to cope with the various expenses of his treatment, consequent thereto he had to sell personal household goods. Ultimately, respondent No.1 regained his health around 9-9-2007 and after being recovered from illness, vide letter dated 10-9-2007 he made an application to the Secretary, Ministry of Education for granting him extraordinary leave for the said period without pay and for posting him to any Degree College situated within Dhaka. The similar nature of prayer was allowed in the case of one Mr. Ahmadul Bari, a Lecturer in Bengali Department, Dhaka College, who remained absent from 5-6-1998 till 26-8-2003 without leave. However, he was granted an “extraordinary leave” with retrospective effect, vide letter dated 27-2-2005. Respondent No.1 following the verbal advice of the then Director General made an application on 13-9-2007 for joining as an Assistant Professor in the Department of Philosophy at Satkania College, but he was not allowed to join because the allotted time for joining at Satkania College had elapsed. Subsequently, the application dated 10-9-2007 of respondent No.1 and the opinion expressed by the Principal of Satkania College were sent by respondent No.1 to the Ministry of Education for consideration. By a letter dated 15-1-2008, the Ministry of Education requested the Ministry of Establishment to give opinion on the issue of respondent No.1. After that, by a letter dated 28-2-2008, the Ministry of Establishment stated that the appointing authority in its discretion could take any decision in this regard, that is, it could either accept the resignation or accept the withdrawal of resignation. By the letters dated 30-4-2008 and 9-5-2008 respectively the Ministry of Education and the Directorate of the Secondary and Higher Education, Dhaka sought production of necessary documents in order to take decision on the issue of respondent No.1. By a letter dated 13-5-2008, respondent No.1 wrote to the Secretary, Ministry of Education, expressing his intention to withdraw his resignation. By a letter dated 22-6-2008, he also made representation to the Hon’ble President of the Republic narrating the situation and made a prayer to allow him to continue his service. The prayer of respondent No.1 to withdraw his earlier application of resignation was turned down, vide the memo dated 22-7-2008 issued by the Ministry of Education intimating respondent No. I that his resignation had been duly accepted. However, by the Government notification dated 10-2-2009, the Minister of Establishment informed all Government servants to communicate their grievances to the Review Committee constituted for the said purpose. Respondent No.1 accordingly made by a letter dated 9-2-2009 to the Hon’ble Prime Ministry of country as well as the Chairman of the Review Committee with a prayer to withdraw the order of acceptance of his resignation but to no avail.
5. Being aggrieved by and dissatisfied with the impugned order dated 22-7-2008 passed by the petitioners releasing respondent No.1 from service on accepting his resignation letter dated 18-4-2007, respondent No.1 moved the High Court Division by filing writ-petition and obtained Rule Nisi in Writ Petition No. 4717 of 2010.
6. The petitioners herein contested the Rule by filing affidavits-in-opposition controverting the material statements made in the writ-petition.
7. The learned Judges of the High Court Division, upon hearing the parties, by the impugned judgment and order dated 15-5-2011 made the Rule absolute.
8. Feeling aggrieved by and dissatisfied with the impugned judgment and order passed by the High Court Division, the petitioners herein have filed this civil petition for leave to appeal before this Division.
9. Mr Rajik-al-Jalil, learned Deputy Attorney General, appearing on behalf of the leave-petitioners, submits that as soon as respondent No.1 submitted resignation, he did not have the option to withdraw the resignation and that the High Court Division without considering this aspect of the case made the Rule absolute and, as such, the impugned should be set-aside. He further submits that resignation once submitted could not be withdrawn and that the resignation was rightly accepted by the order dated 22-7-2008 impugned before the High Court Division and, as such, the impugned judgment should be set-aside.
10. Mr Akther Imman, learned Senior Advocate, appearing on behalf of respondent No.1, on other hand, supports the impugned judgment delivered by the High Court Division.
11. The High Court Division noted that respondent No.1 categorically asserted that under pressing situation he tendered his resignation on 18-4-2007 but later he made a representation to allow him to join the respective post upon treating his leave of absence as extraordinary leave, which was tantamount to withdrawal of his resignation by necessary implication and that subsequently, by a letter dated 13-5-2009 addressed to petitioner No.1 herein, respondent No.1 expressly made a prayer to place him in service (c`vqb) upon recalling/withdrawing his resignation letter. The High Court Division observed that in spite of the letter recalling/withdrawing resignation the Government released respondent No.1 from service by the impugned order dated 22-7-2008 upon accepting his resignation letter dated 18-4-2007. The High Court Division relied upon the office Memo No.13/5/49-ESTS.(SE), dated 17-5-1949 under the heading “Section-E, Resignation of permanent Government servants” and sub-section-E-I incorporates the provision as to resignation of pennanent Government servant at serial No.47, which provides as under:.
“The position regarding permanent Government servants is different. ‘Permanent Service’ is the result of a bilateral contract for the termination of which the consent of both the employer and the employee is necessary. If a permanent Government servant tenders his resignation, he continues to be in service until the resignation is accepted, for the reason that, for the cancellation of the contract of service, the consent of the other party is also necessary. Till his resignation is accepted, the employee continues to be in the employment of the employer and, if he absents himself from duty, he incurs a penalty prescribed for such default which may be dismissal in certain cases. A permanent Government servant, therefore, continues to remain in service till his resignation is accepted.”
12. Having considered the quoted above provision, the High Court Division came to a finding that a Government servant continued with his service till his resignation was accepted or in other words his service was terminated on the day when his resignation was accepted by the Government.
13. In support of this finding, the High Court Division has placed reliance on many decisions. In the case of Jagdish Chandra vs Commissioner of Transport (1982) 1 Serv. LJ 422 (HP), it has been observed as under:
“Thus the General Rule is that a resignation can take effect only when it is accepted by the employer. It merely amounts to an offer to quit the service and unless the offer is accepted by the employer, or someone duly authorized in that behalf, it cannot bring about the termination of service of the resigning employee. Although the relationship between the Government and its employee is not entirely based on contract, in matters of employment. The principles relating to contracts are applicable. It is for this reason that the principles applicable to withdrawal of offers under the law of contract are also applicable to the withdrawal of a resignation. A resignation can be withdrawn before it is accepted by the competent authority.”
14. Also in the case of Jairam vs Union of India reported in 1954 (SC) 584, it has beeu
observed as under: .
“It may be concealed that it is open to a servant who has expressed to retire from service, and applied to his superior officer to give him the required 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.”
15. In the case of Raj Kumar vs Union of India reported in AIR 1969 (SC) 180, it has been observed as under:
“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.”
16. Having considered the cases referred to above, it appears that resignation tendered by a government official can be withdrawn before it is accepted by the competent authority.
Having considered all aspects of the case and also the findings of the High Court Division, we do not find any substance in this civil petition for leave to appeal. Accordingly, this petition is dismissed.
Nazmun Ara Sultana J
Syed Mahmud Hossain J
Md lmman Ali J
Government of Bangladesh, represented by the Secretary. Ministry of Education
and others ……………………….. Petitioners.
vs
SM Humayun Kabir and another……… Respondents*
Judgment
September 7th, 2014.
Service Matter
Resignation tendered by a government official can be withdrawn before it is accepted by the competent authority. Government servant continued with his service till his resignation was accepted or in other words his service was terminated on the day when his resignation was accepted by the Government. (16 & 12)
Jagdish Chandra vs Commissioner of Transport (1982) I Serv. LJ 422 (HP); Jairam vs Union of India. 1954 (SC) 584 and Raj Kumar vs Union of India, AIR 1969 (SC) 180 ref.
Rajik-al-Jalil, Deputy Attorney General, instructed by Mahmuda Begum, Advocate-on-Record-For the Petitioners.
Akther Iminam, Senior Advocate, instructed by Syed Mahbubur Rahman, Advocate-on-Record-For Respondent No.1.
None Represented-Respondent No.2.
Judgment
Syed Mahmud Hossain J: This civil petition for leave to appeal is directed against the judgment and order dated 15-5-2011 passed by the High Court Division in Writ Petition No.4717 of 20 I 0 making the Rule absolute.
2. The facts relevant for the purpose of disposal of this civil petition for leave to appeal, in a nutshell, are:
3. Respondent No.1 herein SM Humayun Kabir filed the above writ petition challenging the impugned order dated 22-7-2008 passed by the writ-respondents releasing the writ-petitioner from service on accepting his resignation letter dated 18-4-2007 (Annexure-H).
4. Respondent’s case, in short, is that he was appointed in the BCS (General Education) Cadre as Lecturer. Accordingly, he joined Netrokona Government College as Lecturer in Philosophy on 20-10-1996, vide appointment letter dated 16-10-1996 issued by the Ministry of Education. The post of respondent No.1 was subsequently made permanent vide notification dated 4-11-2003. Because of various achievements especially for having academic qualification, professional experience, knowledge about computer and experience abroad, respondent No.1 was transferred to the post of Assistant Director of Asian Development Bank, CIDA. In 2004, respondent No.1 sat for the examination of the Public Service Commission under the President’s quota of 10 (ten) percent and stood first. He was accordingly promoted to the post of Assistant Professor and posted at Government Haraganga College, Munshigonj on 6-1-2005. To his utter surprise, respondent No.1 was subsequently transferred to Sathkania Government College, Sathkania, Chittagong, vide order dated 7-3-2007 issued by the Directorate of Secondary and Higher Education, Bangladesh, Dhaka. At the time of the said transfer, respondent No.1 was suffering from jaundice and was in his village town, Manikgonj and, as such, he could not join Sathkania College within time. Respondent No.1 accordingly made a representation to the Director General of Secondary and Higher Education, Dhaka to withdraw the transfer order on the ground that he never applied for the same, but his request was not entertained. Being aggrieved and frustrated by the unilateral transfer order, respondent No.1 vide letter dated 18-42007 tendered his resignation. It has been empathically contended that at the time of tendering resignation, respondent No.1 was seriously ill and was diagnosed with “General Anxiety Disorder” from 10-3-2007 till 9-9-2007. Respondent No.1 was facing severe financial crisis and finding difficulty to cope with the various expenses of his treatment, consequent thereto he had to sell personal household goods. Ultimately, respondent No.1 regained his health around 9-9-2007 and after being recovered from illness, vide letter dated 10-9-2007 he made an application to the Secretary, Ministry of Education for granting him extraordinary leave for the said period without pay and for posting him to any Degree College situated within Dhaka. The similar nature of prayer was allowed in the case of one Mr. Ahmadul Bari, a Lecturer in Bengali Department, Dhaka College, who remained absent from 5-6-1998 till 26-8-2003 without leave. However, he was granted an “extraordinary leave” with retrospective effect, vide letter dated 27-2-2005. Respondent No.1 following the verbal advice of the then Director General made an application on 13-9-2007 for joining as an Assistant Professor in the Department of Philosophy at Satkania College, but he was not allowed to join because the allotted time for joining at Satkania College had elapsed. Subsequently, the application dated 10-9-2007 of respondent No.1 and the opinion expressed by the Principal of Satkania College were sent by respondent No.1 to the Ministry of Education for consideration. By a letter dated 15-1-2008, the Ministry of Education requested the Ministry of Establishment to give opinion on the issue of respondent No.1. After that, by a letter dated 28-2-2008, the Ministry of Establishment stated that the appointing authority in its discretion could take any decision in this regard, that is, it could either accept the resignation or accept the withdrawal of resignation. By the letters dated 30-4-2008 and 9-5-2008 respectively the Ministry of Education and the Directorate of the Secondary and Higher Education, Dhaka sought production of necessary documents in order to take decision on the issue of respondent No.1. By a letter dated 13-5-2008, respondent No.1 wrote to the Secretary, Ministry of Education, expressing his intention to withdraw his resignation. By a letter dated 22-6-2008, he also made representation to the Hon’ble President of the Republic narrating the situation and made a prayer to allow him to continue his service. The prayer of respondent No.1 to withdraw his earlier application of resignation was turned down, vide the memo dated 22-7-2008 issued by the Ministry of Education intimating respondent No. I that his resignation had been duly accepted. However, by the Government notification dated 10-2-2009, the Minister of Establishment informed all Government servants to communicate their grievances to the Review Committee constituted for the said purpose. Respondent No.1 accordingly made by a letter dated 9-2-2009 to the Hon’ble Prime Ministry of country as well as the Chairman of the Review Committee with a prayer to withdraw the order of acceptance of his resignation but to no avail.
5. Being aggrieved by and dissatisfied with the impugned order dated 22-7-2008 passed by the petitioners releasing respondent No.1 from service on accepting his resignation letter dated 18-4-2007, respondent No.1 moved the High Court Division by filing writ-petition and obtained Rule Nisi in Writ Petition No. 4717 of 2010.
6. The petitioners herein contested the Rule by filing affidavits-in-opposition controverting the material statements made in the writ-petition.
7. The learned Judges of the High Court Division, upon hearing the parties, by the impugned judgment and order dated 15-5-2011 made the Rule absolute.
8. Feeling aggrieved by and dissatisfied with the impugned judgment and order passed by the High Court Division, the petitioners herein have filed this civil petition for leave to appeal before this Division.
9. Mr Rajik-al-Jalil, learned Deputy Attorney General, appearing on behalf of the leave-petitioners, submits that as soon as respondent No.1 submitted resignation, he did not have the option to withdraw the resignation and that the High Court Division without considering this aspect of the case made the Rule absolute and, as such, the impugned should be set-aside. He further submits that resignation once submitted could not be withdrawn and that the resignation was rightly accepted by the order dated 22-7-2008 impugned before the High Court Division and, as such, the impugned judgment should be set-aside.
10. Mr Akther Imman, learned Senior Advocate, appearing on behalf of respondent No.1, on other hand, supports the impugned judgment delivered by the High Court Division.
11. The High Court Division noted that respondent No.1 categorically asserted that under pressing situation he tendered his resignation on 18-4-2007 but later he made a representation to allow him to join the respective post upon treating his leave of absence as extraordinary leave, which was tantamount to withdrawal of his resignation by necessary implication and that subsequently, by a letter dated 13-5-2009 addressed to petitioner No.1 herein, respondent No.1 expressly made a prayer to place him in service (c`vqb) upon recalling/withdrawing his resignation letter. The High Court Division observed that in spite of the letter recalling/withdrawing resignation the Government released respondent No.1 from service by the impugned order dated 22-7-2008 upon accepting his resignation letter dated 18-4-2007. The High Court Division relied upon the office Memo No.13/5/49-ESTS.(SE), dated 17-5-1949 under the heading “Section-E, Resignation of permanent Government servants” and sub-section-E-I incorporates the provision as to resignation of pennanent Government servant at serial No.47, which provides as under:.
“The position regarding permanent Government servants is different. ‘Permanent Service’ is the result of a bilateral contract for the termination of which the consent of both the employer and the employee is necessary. If a permanent Government servant tenders his resignation, he continues to be in service until the resignation is accepted, for the reason that, for the cancellation of the contract of service, the consent of the other party is also necessary. Till his resignation is accepted, the employee continues to be in the employment of the employer and, if he absents himself from duty, he incurs a penalty prescribed for such default which may be dismissal in certain cases. A permanent Government servant, therefore, continues to remain in service till his resignation is accepted.”
12. Having considered the quoted above provision, the High Court Division came to a finding that a Government servant continued with his service till his resignation was accepted or in other words his service was terminated on the day when his resignation was accepted by the Government.
13. In support of this finding, the High Court Division has placed reliance on many decisions. In the case of Jagdish Chandra vs Commissioner of Transport (1982) 1 Serv. LJ 422 (HP), it has been observed as under:
“Thus the General Rule is that a resignation can take effect only when it is accepted by the employer. It merely amounts to an offer to quit the service and unless the offer is accepted by the employer, or someone duly authorized in that behalf, it cannot bring about the termination of service of the resigning employee. Although the relationship between the Government and its employee is not entirely based on contract, in matters of employment. The principles relating to contracts are applicable. It is for this reason that the principles applicable to withdrawal of offers under the law of contract are also applicable to the withdrawal of a resignation. A resignation can be withdrawn before it is accepted by the competent authority.”
14. Also in the case of Jairam vs Union of India reported in 1954 (SC) 584, it has beeu
observed as under: .
“It may be concealed that it is open to a servant who has expressed to retire from service, and applied to his superior officer to give him the required 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.”
15. In the case of Raj Kumar vs Union of India reported in AIR 1969 (SC) 180, it has been observed as under:
“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.”
16. Having considered the cases referred to above, it appears that resignation tendered by a government official can be withdrawn before it is accepted by the competent authority.
Having considered all aspects of the case and also the findings of the High Court Division, we do not find any substance in this civil petition for leave to appeal. Accordingly, this petition is dismissed.
