The Orissa High Court has clarified that withdrawal of resignation before acceptance by appointing authority automatically nullifies tendering, and the High Court’s recommendation to governor does not constitute acceptance under Odisha Judicial Service Rules. The Court asserted that resignation of a judicial officer becomes effective only upon acceptance by the competent appointing authority, which in the case of Civil Judges under the Odisha Judicial Service Rules, 2007, is the Governor of the State, and not the High Court.
The Court said that a prospective resignation can be withdrawn at any time before it becomes effective, and where a government servant withdraws the resignation before acceptance by the appointing authority, the resignation is deemed to have been automatically withdrawn. The High Court’s role under Article 235 is recommendatory and disciplinary, and its approval of a resignation and forwarding of the same to the Governor does not constitute acceptance by the appointing authority for Civil Judges.
Strongly, the High Court ruled that the resignation tendered under compelling circumstances and duress, particularly by a sole caregiver of an autistic child without access to medical facilities at the place of posting, cannot be treated as voluntary, and the authorities are bound to consider withdrawal applications sympathetically and expeditiously. Thus, reinstatement was granted with continuity of service and consequential benefits from the date of relief, but without back wages, in view of the petitioner’s affidavit waiving financial benefits for the period she did not render service.
Accordingly, the High Court quashed the impugned Notification No. VJ-102/2022-11/L dated Jan 02, 2023, issued by the Principal Secretary to the Government in the Law Department, Government of Odisha, relieving the petitioner from service with immediate effect. The opposite parties were directed to reinstate the petitioner forthwith as Additional Civil Judge (Junior Division)-cum-S.D.J.M.
The Division Bench comprising Justice Manash Ranjan Pathak and Justice Sibo Sankar Mishra observed that the petitioner’s resignation dated Nov 29, 2022, was not voluntary in nature but was tendered under compelling circumstances and duress, as she was the sole caregiver for her autistic son and had failed to provide him proper medical treatment and therapy at Hindol/Dhenkanal due to lack of facilities. The Bench noted that the Standing Committee of the High Court had deferred the petitioner’s representation dated Sep 05, 2022, on Oct 20, 2022, and never reconsidered or finally disposed of the same, in violation of the directions of the Supreme Court in Rajendra Roy v. Union of India [(1993) 1 SCC 148], which required expeditious consideration of personal hardship representations.
The Court further observed that the then Chief Justice and the Registry of the High Court kept the State Government (Opposite Party No.1) and the Governor in the dark about the subsequent developments, namely the withdrawal application dated Dec 21, 2022, and the Chief Justice’s order dated Dec 22, 2022, directing the matter to be placed before the Full Court. The Bench noted that the petitioner was clear from the vigilance/departmental angle, no government dues were outstanding against her, and she had continued in service till Jan 03, 2023. The Court also observed that the petitioner’s marriage was dissolved by the Family Judge, Cuttack on Jan 11, 2023, leaving her as the sole person to care for her autistic son.
On the legal framework, the Bench held that under Articles 233, 234 and 235 of the Constitution read with Rules 15, 16, 27 and 28 of the OSJS and OJS Rules, 2007, the Governor of the State is the appointing and accepting authority for Civil Judges, and the High Court is not the appointing authority. The Court further observed that the 2025 amendment to Rule 34(4) of the Odisha Civil Services (Pension) Rules, which introduced a 90-day window for withdrawal of resignation, was prospective and not applicable to the present case, and the unamended Rule 34(4) of the 1992 Pension Rules would govern.
Briefly, the petitioner was appointed to the Odisha Judicial Service on Feb 07, 2015, and was subsequently posted at various stations including Bargarh, Puri, Madanpur-Rampur (Kalahandi), Chandikhol, and Bhubaneswar. She has a son, then about 15 years old, who has been suffering from autistic spectrum disorder (ADHD) since 2016, with neurological issues and self-harming tendencies. While posted at Bhubaneswar, the petitioner’s son received treatment at the Institute of Health Sciences and the Model Centre for Child with Special Needs at Chandaka, and his health condition was improving. However, in July 2022, the petitioner was transferred as Additional Civil Judge (Junior Division)-cum-S.D.J.M. to Hindol in the Judgeship of Dhenkanal, where there were no proper medical facilities or trained therapists for autistic children, leading to deterioration of her son’s health.
She submitted a representation dated Sep 05, 2022, to the Registrar (Administration) of the High Court through the District and Sessions Judge, Dhenkanal, requesting transfer back to Bhubaneswar for two and a half years for her son’s treatment. The Standing Committee of the High Court discussed and deferred her representation on Oct 20, 2022, and the same was never reconsidered or communicated to her thereafter. Under compelling circumstances and distress caused by her son’s deteriorating health, the petitioner submitted her resignation from service on Nov 29, 2022. The Full Court accepted her resignation and recommended the same to the Governor. However, on Dec 21, 2022, itself, after consulting her son’s doctor who advised long-term continuous treatment, the petitioner submitted a fresh representation withdrawing her earlier resignation and requesting to continue in service.
The District Judge, Dhenkanal forwarded this withdrawal application to the Registrar (Administration) on Dec 21, 2022, itself, and the same was placed before the then Chief Justice on Dec 22, 2022, who directed the Registry to place the matter before the Full Court for consideration of the withdrawal. Despite this, neither the Registry nor the High Court communicated the withdrawal application to the Law Department or the Governor. Consequently, the Governor approved the resignation on Dec 31, 2022, and the impugned Notification No. VJ-102/2022-11/L dated Jan 02, 2023, was issued by the Principal Secretary, Law Department, relieving the petitioner from service with immediate effect from Jan 03, 2023.
