Orissa HC Quashes Acceptance of Judicial Officer's Resignation Withdrawn Before Governor's Approval
A Division Bench held that a civil judge's resignation, withdrawn on 21 December 2022 before the Governor approved it on 31 December, could not validly terminate her employment.
The High Court of Orissa at Cuttack has quashed the State Government notification dated 2 January 2023 that relieved a civil judge from service on the basis of a resignation she had already withdrawn. The Division Bench of Justice Manash Ranjan Pathak, who led the judgment, and Justice Sibo Sankar Mishra, who concurred, found that Ipsita Mohanty, then posted as Additional Civil Judge (Junior Division)-cum-Sub-Divisional Judicial Magistrate at Hindol in the Judgeship of Dhenkanal, had withdrawn her resignation on 21 December 2022 — ten days before the Governor of Odisha approved its acceptance on 31 December 2022. Because the withdrawal preceded acceptance by the competent appointing authority, the bench held the notification of 2 January 2023 to be null and void and allowed the writ petition.
A Transfer, an Unanswered Representation, and a Resignation Filed Under Duress
Ipsita Mohanty joined the Odisha Judicial Service on 7 February 2015 and served at several postings. Her son, born after her marriage, has suffered from autistic spectrum disorder since 2016. He is unable to speak and experiences neurological disorder, hyper-activity, self-harming and self-biting episodes.
While posted at Bhubaneswar, the petitioner had arranged treatment for her son at the Institute of Health Sciences and the Model Centre for Child with Special Needs at Chandaka. The child's condition was improving. On 17 March 2022 she requested the posting committee to allow her to remain at Bhubaneswar for two more years. The committee did not give effect to that request and on 16 July 2022 transferred her as Additional Civil Judge (Junior Division)-cum-SDJM to Hindol. She joined on 22 July 2022.
At Hindol and in the Dhenkanal district generally, the bench found, neither opposite party disputed that there were no adequate treatment facilities for autistic children and no trained therapists. The petitioner's son's condition deteriorated after the transfer. On 5 September 2022 she submitted a detailed representation through the District and Sessions Judge, Dhenkanal, to the Registrar (Administration) of the High Court, requesting a posting at Bhubaneswar headquarters for two and a half years. The Standing Committee of the High Court discussed that representation on 20 October 2022 and deferred it. The deferred representation was never placed before the committee again, and neither the Registry nor the committee ever communicated its outcome to the petitioner.
With her representation unaddressed and her son's health declining, the petitioner on 29 November 2022 submitted a resignation letter through the District Judge, Dhenkanal to the Registrar (Administration), High Court of Orissa, Cuttack. The resignation was received by the High Court office on 5 December 2022.
The Rush to Accept, the Withdrawal That Followed, and What the Registry Did Not Tell the Governor
On 5 December 2022 the High Court Registry placed the resignation before the then Chief Justice, who directed it be placed before the Full Court, as the resignation of a judicial officer is a matter for the Full Court. The Registry's note to the Chief Justice recorded that the petitioner was clear from the vigilance and departmental angle. On 20 December 2022 the Full Court resolved to accept the resignation and directed the Registry to move the State Government for the Governor's approval.
On 21 December 2022 — the very day the High Court dispatched its recommendation to the Law Department — the petitioner, having consulted her son's treating doctor and been advised that long-term continuous treatment would be required, submitted a withdrawal application through the District and Sessions Judge, Dhenkanal to the Registrar (Administration), requesting that her earlier resignation not be accepted. The District Judge forwarded that withdrawal application to the Registrar (Administration) on 21 December 2022 itself, and the High Court office received it the same day.
The withdrawal application was placed before the then Chief Justice on 22 December 2022. He directed the Registry to place the matter before the Full Court for consideration. However, neither the Chief Justice nor the Registry informed the Law Department of the State Government or the Governor's office about these subsequent developments. The Law Department was therefore unaware that a withdrawal application existed or that the Chief Justice had directed Full Court consideration of it.
The Governor of Odisha accepted the resignation on 31 December 2022 on the basis of the Full Court's recommendation of 20 December 2022. The Law Department issued the notification on 2 January 2023, relieving the petitioner from service with immediate effect from 3 January 2023.
On 2 January 2023, the same day the notification was issued, the Registry placed the petitioner's withdrawal application before the then Chief Justice for the purpose of placing it before the Full Court as he had directed. The Chief Justice, noting that the Government had by then already issued the notification, unilaterally directed that the matter need not be placed before the Full Court. The bench found this direction to be impermissible, because it was the Chief Justice himself and the Registry who had kept both the Law Department and the Governor in the dark about the withdrawal and the direction for Full Court consideration.
Why the Bench Found the Resignation Was Not Voluntary
The bench recorded several findings on the character of the resignation itself. The petitioner's representation dated 5 September 2022 had never been finally disposed of. Neither opposite party denied that Hindol, Dhenkanal and their nearby areas lacked proper treatment and therapy facilities for autistic children, or that there were no trained therapists available there. The bench therefore concluded that the resignation dated 29 November 2022 “was not voluntary at all and it was under compelling situation and duress.”
The bench also noted that on the date of the notification the petitioner had no outstanding government dues, no departmental proceedings against her, no vigilance cases, and had continued to serve and draw salary at Hindol through to 3 January 2023. There was no adverse entry on record against her integrity or efficiency.
An additional circumstance emerged after the resignation. The learned Family Judge, Cuttack dissolved the petitioner's marriage by order dated 11 January 2023, leaving her entirely alone to care for her autistic son. The bench treated this as a further material change in circumstances.
The Legal Framework: When a Judicial Officer's Withdrawal Extinguishes the Resignation
The bench applied Rule 34(4) of the Orissa Civil Services (Pension) Rules, 1992, which provides that the appointing authority may permit withdrawal of a resignation in the public interest where the resignation was tendered for compelling reasons not involving any reflection on integrity, efficiency or conduct, and the request for withdrawal is a result of a material change in the circumstances that originally compelled the resignation. The bench held that the 2025 amendment to Rule 34(4) — notified on 19 May 2025 — would not apply as it operates prospectively; the 1992 rule governs this case.
The bench relied on the principles set out by the Supreme Court in Union of India v. Gopal Chandra Misra, (1978) 2 SCC 301, which states as a general rule that a resignation can be withdrawn at any time before it becomes effective, and that in the case of a government servant who cannot by unilateral act give up service, the resignation becomes effective only when accepted by the competent authority. In the case of judicial officers, the bench held, the appointing authority is the Government and not the High Court. Approval by the Full Court and forwarding it to the Governor cannot be equated with acceptance by the appointing authority.
The bench further applied the DoPT Office Memorandum No. 28034/25/87-Estt.(A) dated 11 February 1988, which provides that if a government servant sends a written intimation withdrawing resignation before its acceptance by the appointing authority, “the resignation will be deemed to have been automatically withdrawn.” The bench also referred to Rajendra Roy v. Union of India, (1993) 1 SCC 148, which the High Court itself had been required to follow: that authority requires that a representation regarding personal hardship be considered expeditiously. The bench found the opposite parties had failed to comply with that direction because the petitioner's representation dated 5 September 2022 was deferred and never finally decided.
Applying those principles to the facts, the bench held that the withdrawal submitted on 21 December 2022 was made well before the Governor accepted the resignation on 31 December 2022. At the time the withdrawal reached the High Court office, there was no valid acceptance in place. The petitioner had continued to work and draw salary, and it had not been established that any of the exceptional grounds for refusing withdrawal under the applicable rules existed. The bench observed that the petitioner could not be penalised for the fact that her timely withdrawal application was not processed by the recommending authority with the same speed as her resignation, particularly when the High Court Registry had itself not communicated the development to the Government or the Governor.
Order
The Division Bench allowed Writ Petition (Civil) No. 15819 of 2023. The notification dated 2 January 2023 issued by the Principal Secretary to the Government in the Law Department, Government of Odisha — accepting the petitioner's resignation and relieving her from service with immediate effect — was quashed. The bench ordered reinstatement of the petitioner in service with all service and consequential benefits. The judgment was pronounced on 10 September 2026. Justice Sibo Sankar Mishra authored the operative reasoning in the concurring portion, and Justice Manash Ranjan Pathak recorded his agreement.