The Orissa High Court has held that the resignation of a judicial officer does not become effective merely upon the High Court's Full Court recommending its acceptance, but only when the Governor, as the appointing authority, formally approves it. Consequently, a withdrawal application filed before such approval renders any subsequent acceptance a nullity, since there is no longer a valid resignation left on record to be accepted.

The Court further held that the judicial officer, Ipsita Mohanty's resignation, tendered while she was struggling to secure treatment and therapy for her autistic son amid the absence of specialised medical facilities at her place of posting, was not a voluntary act but one made under compelling personal circumstances and duress, a finding that, combined with the timing of her withdrawal, entitled her to reinstatement in service.

A Division Bench of Justice Manash Ranjan Pathak and Justice Sibo Sankar Mishra, with Justice Mishra rendering a separate concurring opinion supplementing the reasoning, observed, “As such from the conjoint reading of the provisions of Rules 15,16, 27 and 28 of the OSJS and OJS Rules, 2007 along with the Articles 233, 234 and 235 of the Constitution of India, it can be ascertained that it is the Governor of the State (Odisha) is the appointing and accepting authority to the cadre of Civil Judges under the Odisha Judicial Service Rules, 2007 and the High Court of Orissa is not the appointing authority to the cadre of Civil Judges under OJS Rules 2007”.

Justice Mishra concurring with the opinion, said, “If the present case is considered on the anvil of the aforementioned position of law, the resignation given by the petitioner on 29.11.2022 having been withdrawn on 21.12.2022, much before the date of acceptance by the competent appointing authority, i.e., 02.01.2023, there was no valid letter of resignation before the competent authority to consider for acceptance and therefore the letter of acceptance is null and void and cannot be held to have terminated the employment. Further it is a fact that the judicial officer after submitting her intention to resign, worked gainfully till 03.01.2023 and enjoyed her salary and perks. It is not in dispute that she withdrew her resignation much prior to its acceptance. It is not her fault that her timely withdrawal application was not processed by the recommending authority with the same haste with which it dealt with the Resignation application and she cannot be punished for the same particularly when she acted in consonance with statutory provisions and applicable guidelines in withdrawing the resignation before its acceptance. Approval of the resignation by the competent authority of the Hon‘ble High Court and sending it for acceptance to the Governor/Government cannot be accepted as acceptance from appointing authority as in case of the Judicial officer, the appointing Authority is the Government”.

Advocate Manoj Kumar Khuntia appeared for the petitioner and Senior Advocate Gautam Misra appeared for the respondent.

The petitioner, a Civil Judge posted at Hindol in the Dhenkanal Judgeship, had sought continuation at Bhubaneswar to secure treatment for her autistic son. Her representation dated September 05, 2022 remained undecided after being deferred by the Standing Committee. Under distress, she tendered resignation on November 29, 2022, but on medical advice regarding her son's long-term treatment, withdrew it on December 21, 2022.

The Full Court recommended acceptance of the resignation on December 20, 2022, unaware of the imminent withdrawal application. On December 22, 2022, the then Chief Justice directed that the withdrawal be placed before the Full Court. Meanwhile, the Governor approved the recommendation on December 31, 2022, and the Law Department issued the impugned notification on January 2, 2023. The petitioner's subsequent representations to the Governor and the Chief Justice were unsuccessful.

“Further it has not been established that she suffered any of the prescribed exceptional situations under the Rules of 2007 or the DoPT guidelines which could have led to the denial of her request to withdraw her resignation. In fact her personal situation of having a child requiring intensive and complex medical care due to a congenital life threatening ailment, created a compulsion to be posted at a place where such medical facility is available and her inability to ensure that for the treatment and survival of her son were the determinant factors for resigning the job. Real life situations are complex and each one fights his/her battles in unique ways. Her ruminations and second thoughts brought about by well-meaning people around her and the prospects of not getting a commensurate job of repute, respect and remuneration in near future which would have compromised both her survival and her ability to look after her child that led to her withdrawing the resignation would what a rational and prudent person would have done”, the Bench said.

The Court found the resignation was not voluntary, having been submitted under compelling personal circumstances. Distinguishing resignation by constitutional judges, which is self-executing, from that of judicial officers governed by service rules, the Bench relied on Union of India v. Gopal Chandra Misra (1978) 2 SCC 301 to hold that a prospective resignation may be withdrawn any time before it becomes effective. Since the Governor was not informed of the withdrawal before granting approval, the acceptance was held void.

The Court quashed the notification dated January 2, 2023 and directed reinstatement of the petitioner as Additional Civil Judge (Junior Division)-cum-S.D.J.M., with continuity of service from January 3, 2023 and consequential benefits, though without back wages.

Cause Title: Ipsita Mohanty v. State of Orissa and Another, W.P.(C) No. 15819 of 2023.

Appearances:

Petitioner: Manoj Kumar Khuntia, Advocate.

Respondent: Debaraj Mohanty, AGA, Gautam Misra, Senior Advocate, Sangram Jena, Advocate.

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