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C/M PRAYAG MAHILA VIDYAPEETH DEGREE COLLEGE versus STATE OF U.P. THRU PRINCIPAL SEC.,(HIGHER EDUCATION) &OTHERS

High Court of Judicature at Allahabad

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C/M Prayag Mahila Vidyapeeth Degree College v. State Of U.P. Thru Principal Sec.,(Higher Education) &Others - WRIT - A No. 40551 of 2004 [2006] RD-AH 20199 (29 November 2006)

 

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE OF ALLAHABAD

AFR

Reserved on 16.11.2006

Delivered on 29.11.2006

Civil Misc. Writ Petition No. 40551 of 2004

Committee of Management, Prayag Mahila Vidyapeeth Degree College Vs. State of U.P. & Ors.

WITH

Civil Misc. Writ Petition No. 76322 of 2005

Dr. (Smt.) Shakti Pandey Vs. State of U.P. & Ors.

WITH

Civil Misc. Writ Petition No. 46933 of 2004

Dr. (Mrs.) Rajni Tripathi Vs. State of U.P. & Ors.

********

Hon. Dr. B.S. Chauhan, J.

Hon. Dilip Gupta, J.

The appointment of the Principal of Prayag Mahila Vidyapeeth Degree College, Allahabad (hereinafter referred to as the ''College') which is affiliated to the Chhatrapati Shahuji Maharaj University, Kanpur (hereinafter referred to as the ''University') is the core issue involved in all these petitions and, therefore, they have been heard together.

The order dated 27th February, 2004 passed by the Vice-Chancellor of University and the order dated 9th June, 2004 passed by the Chancellor of the University have been impugned in Writ Petition No. 76322 of 2005 and Writ Petition No. 46551 of 2004 which have been filed by Dr. (Smt.) Shakti Pandey (hereinafter referred to as ''Dr. Pandey') and the Committee of Management of the College respectively. The Vice-Chancellor of the University by the order dated 27th February, 2004 accepted the claim of Dr. (Smt.) Rajni Tripathi (hereinafter referred to as ''Dr. Tripathi') that she had withdrawn her resignation on 28th September, 2003 prior to its acceptance and, therefore, directed the Management of the College to forthwith handover the charge of the Principal of the College to her. The Chancellor of the University by the order dated 9th June, 2004 rejected the representations filed by the Committee of Management of the College as well as Dr. Pandey under Section 68 of the U.P. State Universities Act, 1973 (hereinafter referred to as the ''University Act') for quashing the aforesaid order passed by the Vice-Chancellor of the University. Writ Petition No. 46933 of 2004 has been filed by Dr. Tripathi for a direction upon the respondents to ensure the compliance of the aforesaid orders passed by the Vice-Chancellor and Chancellor of the University.

An advertisement No.25 was issued by the U.P. Higher Education Services Commission, Allahabad (hereinafter referred to as the ''Commission') for selection of the Principals of a number of Degree Colleges including the aforesaid College under the provisions of the U.P. Higher Education Service Commission Act, 1980 (hereinafter referred to as the ''Commission Act'). Dr. Pandey and Dr. Tripathi along with a number of other candidates submitted applications for appointment as Principal of the Degree Colleges and thereafter the Commission sent the list dated 18th April, 2001 to the Director of Education (Higher Education) (hereinafter referred to as the ''Director') by the letter dated 30th April, 2001 recommending the names of candidates found to be most suitable in order of merit. The Director, by the communication dated 31st August, 2002, recommended the name of Dr. Tripathi as the Principal of the College under Section 13(3) of the Commission Act and thereafter Dr. Tripathi joined the College on 2nd September, 2002. On 27th September, 2003 at about 7.30 PM a resignation letter was submitted by Dr. Tripathi to the Committee of Management. It was mentioned that she was submitting the resignation letter after accepting the decision taken that day by the Committee of Management and that she wanted to proceed to her home district.

There is a serious dispute about the facts subsequent to the submission of the aforesaid resignation letter on 27th September, 2003. The case of Dr. Tripathi is that she submitted a letter to the Manager of the Committee of Management of the College on 28th September, 2006 for withdrawal of the resignation letter, while the case of the Committee of Management of the College is that no such letter was submitted by her for withdrawal of the resignation and that the Committee of Management in its meeting held on 11th October, 2003 also accepted the resignation submitted by her. The Director thereafter by the communication dated 18th November, 2003 recommended the name of Dr. Pandey from the list sent by the Commission on 30th April, 2001 for appointment as the Principal of the College against the vacancy that had arisen in the College on account of the resignation submitted by Dr. Tripathi. On the basis of the said letter Dr. Pandey joined the College as Principal on the same date.

This resolution of the Committee of Management for accepting the resignation was challenged by Dr. Tripathi by filing Writ Petition No. 52674 of 2003 and a direction was also sought to allow her to work as the Principal of the College. The said petition was ultimately disposed of on 16th December, 2003 with a direction that Dr. Tripathi may approach the appropriate forum for getting the controversy resolved as to whether she had withdrawn her resignation before acceptance or not decided. Dr. Tripathi then filed a representation before the Vice-Chancellor of the University who after hearing the Committee of Management of the College and Dr. Tripathi gave directions to the Committee of Management by the order dated 27th February, 2004 to handover the charge of the Principal of the College to Dr. Tripathi at the earliest. In the said order, the Vice-Chancellor recorded a finding of fact that the resignation dated 27th September, 2003 was obtained by the Manager late in the night at 7.30 PM under pressure and that the said resignation was withdrawn by the petitioner on 28th September, 2003 prior to its acceptance. The Committee of Management of the College as well as Dr. Pandey filed a representation to the Chancellor of the University under Section 68 of the Act. The said representations were rejected by the Chancellor of the University by the order dated 9th June, 2004. In respect of the representation filed by Dr. Pandey, the Chancellor observed that the representation itself was not maintainable as she was not an aggrieved person. The representation filed by the Committee of Management of the College was also rejected on merits after affirming the findings recorded by the Vice-Chancellor of the University.

The Committee of Management of the College filed Writ Petition No. 46551 of 2004 to challenge the orders passed by the Vice-Chancellor and Chancellor of the University. Dr. Pandey also filed Original Suit No.594 of 2004 for a declaration that the letter of withdrawal dated 28th September, 2003 was a forged and fabricated document and that the orders passed by the Vice-Chancellor and the Chancellor of the University were null and void and not binding upon her. On 14th October, 2004 the Trial Court granted temporary injunction in favour of Dr. Pandey that she should be allowed to carry on her duties as Principal of the College till her appointment was cancelled by the competent authority. Feeling aggrieved by the said injunction order, Dr. Tripathi filed Misc. Appeal but during the pendency of the appeal she also filed Writ Petition No.50040 of 2004 in this Court. The Writ Petition was ultimately allowed and the injunction order dated 14th October, 2004 was vacated. The order passed by the High Court was challenged by Dr. Pandey before the Supreme Court which initially directed the parties to maintain status quo. However, during the pendeny of the Special Leave Petition before the Supreme Court Dr. Pandey was advised that the validity of the orders passed by the Vice-Chancellor and the Chancellor of the University cannot be challenged in a suit and, therefore, Dr. Pandey filed Writ Petition No. 76322 of 2005 for challenging the order passed by the Vice-Chancellor and the Chancellor of the University.

We have heard Sri P.N. Saxena, learned Senior Counsel for Dr. Pandey, Sri Ravi Kant, learned Senior Counsel for the Committee of Management and Sri S.P. Singh, learned counsel for Dr. Tripathi.

Sri P.N. Saxena, learned Senior Counsel appearing for Dr. Pandey submitted that the Chancellor of the University was not justified in rejecting the representation on the ground that Dr. Pandey was not a person aggrieved. He submitted that as the resultant vacancy arising out of the acceptance of the resignation submitted by Dr. Tripathi was filled up by Dr. Pandey pursuant to the communication dated 18th November, 2003 sent by the Director, it cannot be said that Dr. Pandey was not a person aggrieved and, therefore, the matter was required to be sent back to the Chancellor of the University for deciding the representation on merits. He further contended even the Vice-Chancellor of the University had not heard Dr. Pandey before passing the order dated 27th February, 2004 and if opportunity was given he could have suitably demonstrated that Dr. Tripathi had not submitted the letter dated 28th September, 2003 for withdrawal of her resignation.

Sri Ravi Kant, learned Senior Counsel appearing for the Committee of Management submitted that the Vice-Chancellor of the University had no jurisdiction to entertain the representation filed by Dr. Tripathi and the Chancellor of the University committed an error in rejecting this contention. He also submitted that in view of the express language used by Dr. Tripathi in the resignation letter, the cessation of service came into force with immediate effect and there was no legal requirement for accepting the resignation letter. A further submission was made that the Chancellor of the University failed to take into consideration the communication dated 7th October, 2003 sent by Dr. Tripathi to the Management of the College and the communication dated 14th October, 2003 submitted by Dr. Tripathi before the Principal of D.B. Degree College, Jalaun where Dr. Tripathi was initially working prior to her placement in the Degree College and where she subsequently reported. Sri Ravi Kant also submitted that the resignation was never withdrawn by Dr. Tripathi.

Sri S.P. Singh, learned counsel appearing for Dr. Tripathi submitted that there was no infirmity in the orders passed by the Vice-Chancellor and Chancellor of the University and the finding recorded by these authorities that the resignation letter had been withdrawn before acceptance was a finding of fact which was based on the material available on record. According to him, the Vice-Chancellor of the University had the jurisdiction to examine the matter in view of the specific provisions contained in Section 35(2) of the University Act and the First Statutes of the University.

What is, therefore, not in dispute in the present petition is the fact that a resignation letter was submitted by Dr. Tripathi on 27th September, 2003. There is a serious dispute, however, as to whether the said resignation was voluntarily tendered or whether Dr. Tripathi had withdrawn the resignation on 28th September, 2003. Dr. Tripathi had filed Writ Petition No. 52674 of 2003 in this Court to challenge the resolution of the Committee of Management by which the resignation was accepted. This petition was disposed of by this Court on 16th December, 2003 with a direction that Dr. Tripathi may approach the appropriate forum for getting the controversy resolved as to whether she had withdrawn her resignation  before acceptance or not decided.

It is pursuant to the aforesaid direction of this Court that Dr. Tripathi filed a representation before the Vice-Chancellor of the University who passed a detailed order on 27th February, 2004 after examining the documents filed and after giving a personal hearing to Dr. Tripathi and the Manager of the Committee of Management. According to the Vice-Chancellor, the Manager had received the letter dated 28th September, 2003 submitted by Dr. Tripathi for withdrawing the resignation and he had also made an endorsement about receipt of the said letter. The Vice-Chancellor of the University also compared the signature of the Manger made while acknowledging the receipt of the letter for withdrawal of the resignation letter and found it to be the same. The Vice-Chancellor also repelled the contention of the Committee of Management that Dr. Tripathi had never withdrawn the resignation letter since she joined another college namely D.B. Degree College, Jalaun on 14th October, 2003 after accepting the explanation put forth by Dr. Tripathi that in such circumstances she was left with no option but to join that College as otherwise she would have been deprived of that position also. The Vice-Chancellor after examining the various documents and after hearing both the parties recorded a finding of fact that Dr. Tripathi had submitted the resignation on 27th September, 2003 on account of extreme pressure exerted by the Committee of Management but she withdrew the resignation the very next morning. The Vice-Chancellor also noticed that the College authorities had also sent Dr. Tripathi as Principal of the College for conducting the examinations at Delhi on 12th October, 2003 and, therefore, it cannot be said that her resignation had been accepted on 11th October, 2003.

The Chancellor of the University rejected the representation filed by the Committee of Management and Dr. Pandey by a detailed order. The Chancellor rejected the contention that the Vice-Chancellor did not have the jurisdiction to pass the order dated 27th February, 2004. The Chancellor of the University also considered at length the findings recorded by the Vice-Chancellor of the University on the basis of various documents and thereafter concurred with the same. The Chancellor of the University also examined the caveat application filed in this Court on 9th October, 2003 by the Committee of Management of the College through its Manager. He noticed that in the said caveat application, it was mentioned that Dr. Tripathi was likely to file a Writ Petition in this Court for withdrawing her voluntary resignation dated 27th September, 2003 and from this he concluded that the contention of the Committee of Management that prior to 11th October, 2003 Dr. Tripathi had not expressed any desire to withdraw the resignation was not correct because otherwise the Manger would not have filed the caveat application. The Chancellor of the University also noticed that even after 11th October, 2003 Dr. Tripathi was sent by the College for conducting the examination of the Public Service Commission.

We shall first deal with the contention of Sri P.N. Saxena, learned Senior Counsel for Dr. Pandey that the Chancellor of the University committed an error in rejecting the representation on the ground that Dr. Tripathi was not a person aggrieved. In this connection what must be emphasised is that the appointment of Dr. Pandey was dependant entirely on the fact whether a vacancy had arisen in the College on account of cessation of service of Dr. Tripathi. This dispute was between the Committee of Management and Dr. Tripathi as according to Dr. Tripathi she had withdrawn her resignation on 28th September, 2003 whereas according to the Committee of Management she had not withdrawn her resignation. The contention of Sri P.N. Saxena, learned Senior Counsel appearing for Dr. Pandey is that Dr. Pandey could have brought the correct facts to the notice of the Chancellor of the University cannot be accepted inasmuch as the fact whether the resignation had been submitted voluntarily or not or whether it was withdrawn or not was a dispute between the Committee of Management and Dr. Tripathi and Dr. Pandey had no role to play in it.

Such a contention was also considered by us in detail in Keshari Devi Vs. State of U.P. & Ors., 2005 (3) ESC (All.) 2209. We rejected the impleadment application filed by the Upadhyaksha of the Zila Panchayat for being impleaded as party-respondent in the Writ Petition filed by the Adhyaksha of the Zila Panchayat for challenging the order passed by the State Government removing her from the office under Section 29 of the Uttar Pradesh Kshetra Panchayat & Zila Panchayat Adhiniyam, 1961. In the said petition, we had, after examining various decisions of the Supreme Court and this Court observed that the right of the Upadhyaksha to occupy the office was entirely dependent on the vacancy occurring and not otherwise and, therefore, in such circumstances the Upadhyaksha cannot defend the order of removal of the Adhyaksha. Similar is the position in this case because the claim of Dr. Pandey is also based on the fact whether a vacancy had arisen to the post of Principal in the College. She cannot, therefore, defend the order of the Management of the College which had brought to an end the service of Dr. Tripathi as the Principal of the College on acceptance of the resignation letter. In view of the principles laid down in the aforesaid judgment, we are of the considered opinion that the Chancellor of the University was justified in rejecting the representation filed by Dr. Pandey on the ground that she was not a person aggrieved.

This apart, it also needs to be mentioned that all the possible grounds for quashing the order of the Vice-Chancellor and the Chancellor of the University that have been taken by Dr. Pandey in the Writ Petition have also been taken by the Committee of Management in the Writ Petition filed by it and the points urged by Sri P.N. Saxena, learned Senior Counsel for Dr. Pandey have also been argued by Sri Ravi Kant, learned Senior Counsel appearing for the Committee of Management. We shall be dealing with the submissions advanced by Sri Ravi Kant on behalf of of the Committee of Management and it is wholly immaterial whether the said contentions are raised on behalf of Dr. Tripathi or on behalf of the Management because in either event they have to be dealt with. The situation would have assumed importance only if the Committee of Management of the College had not filed any Writ Petition to challenge the order passed by the Vice-Chancellor and the Chancellor of the University.  

We shall now examine the contentions raised by Sri. Ravi Kant, learned Senior Counsel appearing for the Committee of Management. The first contention of Sri Ravi Kant, learned Senior Counsel is that in view of the language used by Dr. Tripathi in the resignation letter dated 27th September, 2003, the resignation came into effect immediately and the Committee of Management of the College was not even required to accept the same. Learned Senior Counsel placed the said resignation letter and submitted that it was to operate with immediate effect and not from some later date and, therefore, in the absence of any specific provision in University Act or the First Statutes of the University, there was an immediate cessation of service. He, therefore, contended that in such circumstances the action of the Committee of Management in accepting the resignation letter was wholly redundant. In support of his contention, he placed reliance upon the judgment of the Supreme Court in the case of Union of India etc. Vs. Gopal Chandra Misra & Ors., AIR 1978 SC 694.

We have carefully considered the aforesaid submissions. It is true that resignation means spontaneous relinquishment of one's own right but it is equally true that the act of relinquishment can assume either a unilateral or bilateral character depending on the nature of the office and the conditions governing it. This is what has been observed by the Supreme Court in the case of Gopal Chandra Misra (supra) and the relevant portion is quoted below:-

" ''Resignation' in the Dictionary sense, means the spontaneous relinquishment of one's own right. This is conveyed by the maxim: Resionatioest juris propii spontanea refutatio (See Earl Jowitt's Dictionary of English Law). In relation to an office, it connotes the act of giving up or relinquishing the office. To "relinquish an office" means to "cease to hold" the office, or to "loose hold of" the office (cf. Shorter Oxford Dictionary); and to "loose hold of office", implies to "detach", "unfasten", "undo or untie the binding knot or link" which holds one to the office and the obligations and privileges that go with it.

In the general juristic sense, also, the meaning of "resigning office" is not different. There also, as a rule, both, the intention to give up or relinquish the office and the concomitant act of its relinquishment, are necessary to constitute a complete and operative resignation (see, e.g. American Jurisprudence, 2nd Edition, Volume 15A, page 80) although the act of relinquishment may take different forms or assume a unilateral or bilateral character, depending on the nature of the office and the conditions governing it. Thus, resigning office necessarily involves relinquishment of the office, which implies cessation or termination of, or cutting asunder from the office. Indeed, the completion of the resignation and the vacation of the office, are the casual and effectual aspects of one and the same event.

.....................

It will bear repetition that the general principle is that in the absence of a legal, contractual or constitutional bar, a "prospective" resignation can be withdrawn at any time before it becomes effective, and it becomes effective when it operates to terminate the employment or the office-tenure of the resignor. This general rule is equally applicable to Government servants and constitutional functionaries. In the case of a Government servant or functionary who cannot, under the conditions of his service/or office, by his own unilateral act of tendering resignation, give up his service/or office, normally, the tender of resignation becomes effective and his service/or office-tenure terminated, when it is accepted by the competent authority. In the case of a Judge of a High Court, who is a constitutional functionary and under Proviso (a) to Article 217 (1) has a unilateral right or privilege to resign his office, his resignation becomes effective and tenure terminated on the date from which he, of his own volition, chooses to quit office. If in terms of the writing under his hand addressed to the President, he resigns in praesenti the resignation terminates his office-tenure forthwith, and cannot, therefore, be withdrawn or revoked thereafter. But, if he by such writing, chooses to resign from a future date, the act of resigning office is not complete because it does not terminate his tenure before such date and the Judge can at any time before the arrival of that prospective date on which it was intended to be effective withdraw it, because the Constitution does not bar such withdrawal." (emphasis supplied)

The aforesaid decision emphasises that where the holder of office cannot give up his service under the conditions governing his service by his own unilateral act of tendering resignation, the tender of resignation becomes effective and his service terminated only when it is accepted by the competent authority. We have, therefore, to examine the conditions of service in the present case.

Section 35 of the University Act deals with the conditions of service of teachers of affiliated colleges and is as follows :-

"Conditions of service of teachers of affiliated or associated colleges other than those maintained by Government or local authority.--(1) Every teacher in an affiliated college (other than a college maintained exclusively by the State Government) shall be appointed under a written contract which shall contain such terms and conditions as may be prescribed. The contract shall be lodged with the University and a copy thereof shall be given to the teacher concerned, and another copy thereof shall be retained by the college concerned.

(2) Every decision of the Management of such college to dismiss or remove a teacher or to reduce him in rank or to punish him in any other manner shall before it is communicated to him, be reported to the Vice-Chancellor and shall not take effect unless it has been approved by the Vice-Chancellor.

Provided that in the case of colleges established and administered by a minority referred to in clause (1) of Article 30 of the Constitution of India, the decision of the management dismissing removing or reducing in rank or punishing in any other manner any teacher shall not require the approval of the Vice-Chancellor, but, shall be reported to him and unless he is satisfied that the procedure prescribed in this behalf has been followed, the decision shall not be given effect to.  

(3) The provisions of sub-section (2) shall also apply to any decision to terminate the services of a teacher, whether by way of punishment or otherwise but shall not apply to any termination of service on the expiry of the period for which the teacher was appointed:

Provided that in the case of colleges established and administered by a minority referred to in clause (1) of Article 30 of the Constitution of India, the decision of the Management terminating the service of any teacher shall not require the approval of the Vice-Chancellor, but shall be reported to him and unless he is satisfied that the procedure prescribed in this behalf has been followed, the decision shall not be given effect to.

(4) Nothing in sub-section (2) shall be deemed to apply to an order of suspension pending inquiry, but any such order may be stayed, revoked or modified by the Vice-Chancellor:

Provided that in the case of colleges established and administered by a minority referred to in clause (1) of Article 30 of the Constitution of India, such order may be stayed, revoked or modified by the Vice-Chancellor only if the conditions prescribed for such suspension are not satisfied.

(5) Other conditions of service of teachers of such colleges shall be such as may be prescribed."

Chapter XVII of the First Statutes of the University deals with conditions of service of teachers of affiliated colleges. Statute 7.04 which is relevant for the purposes of the controversy involved in the present petition is quoted below :-

17.04 (1). A teacher of an affiliated college (other than a Principal) may be dismissed or removed or his services terminated on one or more of the following grounds-

(a) willful neglect of duty;

(b) misconduct, including disobedience to the orders of the principal;

(c) breach of any of the terms of contract or service;

(d) dishonesty connected with the University or college examinations;

(e) scandalous conduct or conviction for an offence involving moral turpitude;

(f) physical or mental unfitness;

(g) incompetence;

(h) abolition of the post with the prior approval of the Vice-Chancellor.

(2) A principal of an affiliated college may be dismissed or removed, or his services terminated on the grounds mentioned in clause (1) or on the grounds of continued mismanagement of the college.

(3) Except as provided by clause (4), not less than three months (or where notice is given after the month of October, then three months' notice or notice ending with the close of the session which ever is longer) shall be given on either side for terminating the contract of the service or in lieu of such notice, salary for three months (or longer period as aforesaid) shall be paid or refunded as the case may be:

Provided that where the Management dismisses or removes or terminates the services of a teacher. Under clause (1) or clause (2) or when the teacher terminates the contract for breach of any of its terms by the Management, no such notice shall be necessary:

Provided further that the parties will be free to waive the condition of notice, in whole or in part by mutual agreement.

(4) In the case of any other teacher appointed in a temporary or officiating capacity his services shall be terminable, by one month notice or on payment of salary in lieu thereof, on either side."

A perusal of Clause 3 of the Statute 17.04 indicates that a right has been conferred on the employer as well as on the employee to terminate the contract of service by giving three months' notice or three months' salary in lieu of notice. The second proviso, however, lays down that it is open to the parties to waive the condition of notice. It is, therefore, clear that even if a Teacher or Principal wishes to resign, he has to give three months' notice to the Management and it is for the Management to waive the condition of notice. This clearly leads to the conclusion that termination of service by resignation cannot be a unilateral action but is a bilateral action and, therefore, acceptance of resignation is a must.

This is what has been observed by the Division Bench of this Court in the case of Sri Pradeep Kumar Mukerjee Vs. The Managing Committee, Sant Vinoba Degree College, Deoria & Ors., 1984 UPLBEC 183 while interpreting a similar provision in the First Statutes of the University :-

"The purpose and object of giving three months notice by either of the parties is to safeguard the interest of the education of the students in the institution. If a teacher desires to terminate the contract of service by submitting his resignation to the management, he must give three month's notice as contemplated by the Statute so that the management may take steps for the employment of a suitable teacher. Similarly, if the management seeks to terminate the service of a teacher, it is mandatory to give three month's notice or salary to the teacher concerned. The period of notice is necessary to afford opportunity to the teacher for making arrangement for his alternative employment. In the absence of any such provision, it would be open to any teacher to submit resignation in the mid session without giving any time to the management to engage any other teacher, in that event the interest of education in the institution would certainly suffer adversely. The Statute has, therefore, provided for a mandatory provision for giving three months' notice or salary by either side for terminating the service contract. Under the second proviso of the Statute it is open to the parties to waive the condition of notice. The management may waive the period of notice and accept the resignation of a teacher but it may refuse to accept the same and insist upon the three months' notice and in that event the resignation will not be effective before the period of notice and the teacher would be under obligatory duty to serve the institution." (emphasis supplied)

We, therefore, do not find any force in the contention advanced by the learned Senior Counsel for the Committee of Management that it was not necessary for the Committee of Management to accept the resignation letter submitted by Dr. Tripathi.

This takes us to the next contention advanced by Sri Ravi Kant, learned Senior Counsel for the Committee of Management that the Vice-Chancellor of the University had no jurisdiction to entertain the representation filed by Dr. Tripathi and pass the order dated 27th February, 2004. This contention cannot also be accepted. The Division Bench of this Court in the case of Pradeep Kumar Mukharji (supra) considered this contention and repelled it by observing that Section 35(2) and Section 35(3) of the University Act read with Statute 17.04 provides security of service to the Teachers and Principals and is meant to frustrate the acts of unscrupulous management to manipulate the letter of resignation of inconvenient Teachers and Principals and to terminate their services by surreptiously accepting the same without obtaining the approval of the Vice-Chancellor of the University. The Court also observed that the question whether the resignation had been submitted under coercion or duress or whether it had been withdrawn before its acceptance, is a question of fact which can adequately be dealt with by the Vice-Chancellor of the University when the matter is put before him for approval. We reproduce the relevant portion of the judgment :-

" The purpose and object of Section 35(2) and (3) is to have effective control over the management of associated colleges and it would be appropriate to construe sub-section (3) in a manner to advance the legislative intent in order to give full effect to the legislative provision. The construction that we have placed on Section 35(3) read with statute 17.04 would ensure security of service of teacher and it would not do any violence to the legislative intent and it would defeat the legislative intent and it would provide opportunity to unscrupulous management to manipulate letter of resignation of inconvenient teachers and to terminate their service by surreptitiously accepting the same without obtaining approval of the Vice-Chancellor. In such a situation the legislative intent would be frustrated, but if the Vice-Chancellor has power to look into take matter while considering the question of genuineness of resignation of a teacher while considering the question of approval no injustice would likely be done. We are, therefore, of the opinion that the construction placed by us would be in public interest. It is admitted between the parties that the management in the instant case did not refer its proposal to accept the petitioner's resignation to the Vice-Chancellor for his approval, instead after accepting the resignation it has prevented the petitioner from continuing in service on the assumption that his service contract stood terminated. In the view taken by us the management's decision to accept the petitioner's resignation amounts to termination of the petitioner's service contract and as such it was obligatory on the management to have obtained approval of the Vice-Chancellor. Since no approval was obtained the management's order accepting the resignation cannot take effect and the petitioner has a right to continue in service till it is dispensed with in accordance with law.

........................

Learned counsel for the petitioner then urged that the petitioner had never submitted his resignation voluntarily, instead it was submitted under coercion and he had further withdrawn the resignation before its acceptance and as such the Committee of Management had no authority in law to accept the same. The question whether the petitioner had submitted resignation under coercion or duress is essentially a question of fact. Similarly, the fact whether the petitioner had withdrawn his resignation letter before its acceptance is also a question of fact. These matters can adequately be dealt with by the Vice-Chancellor if the matter is referred to him by the management for obtaining his approval. We would however like to observe that there is no statutory provision under the Act or the Statutes regulating the manner or procedure of submission and acceptance of resignation of a teacher. In the absence of any statutory provision the services of a teacher would normally stand terminated from the date on which the letter of resignation is accepted by the appropriate authority and it will not be open to the teacher to withdraw his resignation after it is accepted. The teacher has right to withdraw the same till it is accepted by the management. It is well settled that a resignation must be voluntary, free from duress or coercion. If a resignation is submitted by a teacher under duress or coercion such a resignation would be illegal and it would not be open to the management to accept the same or terminate the services of the teacher." (emphasis supplied)

We must, however, hasten to add that in Pradeep Kumar Mukerji (supra) this Court in paragraph no.7 had observed that the resignation, if accepted, brings about termination of contract and amounts to termination of service and, therefore, in view of the provisions of Section 35(3) of the University Act, the Management is under a legal duty to obtain approval of the Vice-Chancellor before acceptance of resignation is made effective.

This observation has been modified to a certain extent by the observations made by the Supreme Court in Committee of Management, Dayanand Arya Kanya Degree College, Moradabad & Ors. Vs. Director of Higher Education, Allahabad & Ors., (1998) 4 SCC 104 that such acceptance is not required in case of voluntary resignation by a teacher. The relevant portion of the judgment of the Supreme Court is quoted below :-

".........So far as the question of according approval by the Vice-Chancellor of the University is concerned, it may be pointed out that such approval is not contemplated under sub-section (3) of Section 35 of the Uttar Pradesh State Universities Act, 1973 in the case of voluntary resignation by a teacher. The said sub-section applies when a decision to terminate the service of teacher whether by way of punishment or otherwise is taken by the management. If a teacher voluntarily tenders resignation and by that process withdraws from the service does not arise. In this connection, reference may be made to the decision of this Court in J.K. Cotton Spg. and Wvg. Mills Co. Ltd. v. State of U.P. It has been held in the said decision that if an employee voluntarily tenders resignation, it becomes an act of the employee who chooses to voluntarily give up the job. Therefore, such situation will be covered by the expression voluntary retirement within the meaning of clause (i) of Section 2(s) of the U.P. Industrial Disputes Act, 1947. It has also been indicated in the said decision that if the resignation is not voluntary but it is tendered on account of coercion, such resignation cannot be held to be voluntary act of the employee expressly deciding to withdraw from service." (emphasis supplied)

The Supreme Court has, therefore, emphasised that it is only when the resignation has been given voluntarily that approval of the Vice-Chancellor is not required. It is, therefore, clear that when a Teacher or Principal raises a dispute that the resignation had not been tendered voluntarily but had been submitted on account of coercion or that the resignation had been withdrawn before acceptance, the Vice-Chancellor of the University is the competent authority to decide the dispute.

In the present case, Dr. Tripathi had filed a Writ Petition in this Court for challenging the resolution of the Committee of Management by which her resignation had been accepted. This Court disposed of the petition with a direction to the petitioner to approach the appropriate forum for getting the controversy resolved as to whether she had withdrawn the resignation before acceptance or not decided. This Court in the case of Pradeep Kumar Mukerjee (supra) has clearly observed that it is the Vice-Chancellor of the University who is the competent authority to examine the factual disputes. In this view of the matter we are of the opinion that the Vice-Chancellor of the University was the competent authority who could have decided the factual disputes raised by Dr. Tripathi. The order dated 27th February, 2004 passed by the Vice-Chancellor cannot, therefore, be said to be without jurisdiction.

Sri Ravi Kant then contended in the alternative that even if it be assumed that acceptance of the resignation letter by the Committee of Management was necessary and that the Vice-Chancellor of the University had the jurisdiction to decide the representation filed by Dr. Tripathi then too the finding recorded by the Vice-Chancellor and the Chancellor of the University that Dr. Tripathi had withdrawn the resignation on 28th September, 2003 prior to its acceptance by the Committee of Management on 11th October, 2003 is perverse as the communication dated 7th October, 2003 submitted by Dr. Tripathi before the Manager of the College for insisting that she should be relieved immediately so that she could join her former College at Orai and the communication dated 14th October, 2003 submitted by Dr. Tripathi to the Principal of D.B. Degree College, Orai regarding joining of duties in the said College on 14th October, 2003 have not been considered. Sri S.P. Singh, learned counsel for Dr. Tripathi, however, submitted that both the Vice-Chancellor and Chancellor of the University have recorded a categorical finding of fact on the basis of the evidence available on record that Dr. Tripathi had withdrawn the resignation on 28th September, 2003 and, therefore, the contention of the learned counsel for Dr. Pandey is not correct.

In order to properly appreciate the contentions advanced by the learned counsel for the parties, we consider it appropriate to briefly recapitulate the facts. Dr. Tripathi submitted a resignation letter to the Committee of Management on 27th September, 2003 at about 7.30 PM. In the said resignation letter she stated that because of a decision taken by the Committee of Management in her matter, she was submitting her resignation letter. According to Dr. Tripathi, immediately on the very next day early in the morning at about 7.00 AM, she withdrew the resignation by submitting the letter dated 28th September, 2003 which was acknowledged by the Manager by making an endorsement. It is this letter of withdrawal which is the bone of contention between the parties as the Committee of Management seriously disputes the submission of this letter. The case set up by the Committee of Management is that if Dr. Tripathi had submitted this letter on 28th September, 2003 she would not have subsequently sent the letter dated 7th October, 2003 to the Manager of the College for relieving her and nor would she have submitted the letter dated 14th October, 2003 to the Principal of her former College regarding her joining. It has also been submitted that in both these letters Dr. Tripathi did not make any mention of the withdrawal letter dated 28th September, 2003.

The filing of the Caveat Application in this Court by the Committee of Management through the Manager which fact has also been considered by the Chancellor of the University in coming to the conclusion that Dr. Tripathi had withdrawn the resignation letter prior to its acceptance by the Committee of Management, therefore, assumes importance. The records of Writ Petition No. 52674 of 2003 which had been filed by Dr. Tripathi indicate that Sri Shahid Kazmi had filed a Caveat Application on behalf of the Committee of Management of the College on 9th October, 2003. Though the said caveat application is not on the records, a copy of the same had been supplied by the learned counsel for Dr. Tripathi. Paragraph no.1 of the caveat application reads as follows :-

"That petitioner is likely to file aforesaid writ petition to some how withdraw her voluntary resignation dated 27.9.2003 from the post of Principal, Prayag Mahila Vidyapeeth Degree College, Allahabad along with an application for grant of interim relief."

In the said caveat application Dr. Tripathi was arrayed as petitioner while the Committee of Management was arrayed as respondent no.4. A perusal of the said caveat application, therefore, clearly shows that the Committee of Management was conscious of the fact that Dr. Tripathi was pressing for withdrawal of the resignation submitted by her on 27th September, 2003. The Manager would have filed the Caveat Application only when a letter for withdrawal of the resignation had been submitted by Dr. Tripathi because if she had no intention of withdrawing the resignation, there would have been no occasion for the Committee of Management to file the caveat application in this Court. Sri Ravi Kant, learned Senior Counsel for Dr. Pandey, however, made an attempt to explain the filing of the caveat application by submitting that as in the letter dated 7th October, 2003 Dr. Tripathi had threatened the Committee of Management that she would take it to the Court if she was not relieved from the College, the caveat application was filed. This explanation submitted on behalf of the Committee of Management is far from satisfactory and does not impress us. The letter dated 7th October, 2003 said to have been submitted by Dr. Tripathi mentions that the Committee of Management must immediately relieve her so that she could join her former College at Orai. The letter further mentions that if she is not relieved immediately, she would approach the law Courts. Such averments could not have compelled the Committee of Management to file a caveat application in this Court by mentioning that Dr. Tripathi wanted to withdraw her resignation because this is exactly contrary to what was stated in the letter dated 7th October, 2003. The only reason which could have compelled the Committee of Management to file the caveat application was that Dr. Tripathi had been insisting for giving effect to the letter dated 28th September, 2003 by which she had withdrawn the resignation submitted by her on 27th September, 2003. The Chancellor of the University has placed great emphasis on this caveat application and the finding recorded by the Chancellor of the University does not suffer from any infirmity.

It is also for this reason that no reliance can be placed on the communication dated 7th October, 2003 said to have been submitted by Dr. Tripathi as the averments made in the said letter run contrary to those mentioned in the caveat application. We are, therefore, inclined to believe the version of Dr. Tripathi that such a letter was never submitted. The other letter dated 14th October, 2003 submitted by Dr. Tripathi before the Principal of D.B. Degree College, Orai is of no significance. The Vice-Chancellor of the University in his order dated 27th February, 2004 has observed that since the Management had relieved Dr. Tripathi, she was left with no option but to join her former College at Orai. We entirely agree with the said finding because Dr. Tripathi could not have taken the risk of not joining her former College. Non consideration of this communication by the Chancellor of the University, therefore, does not affect the validity of the order.

Sri Ravi Kant, learned Senior Counsel for the Committee of Management then submitted that the Vice-Chancellor and the Chancellor of the University committed an error in placing reliance on the fact that Dr. Tripathi had been permitted by the College authorities to take examinations at Delhi even after 11th October, 2003 and in support of his contention he placed reliance on the decision of the Supreme Court in North Zone Cultural Centre & Anr., Vs. Vedpathi Dinesh Kumar (2003) 5 SCC 455 wherein it was observed:-

"As noticed above, in the present case the resignation is dated 18-11-1988 and the same as found by us is accepted on 18-11-1988 itself. The communication was on 1-12-1988 about 13 days thereafter which delay, in our opinion, is not an undue delay so as to make us draw an inference that there has been no acceptance of the resignation. Even the fact that in the meantime the respondent either attended duty or signed the attendance register will be of no assistance to claim his resignation had not taken effect. Even otherwise the appellants have urged that because there was no responsible officer in the headquarters from 18-11-1988 after the respondent's resignation was accepted till 1-12-1988 and the respondent took advantage of the same and marked his attendance and such attendance cannot be treated as lawful attendance in view of the acceptance of his resignation on 18-11-1988. We agree with this contention of the appellant."  

The said decision does not help Dr. Pandey inasmuch as in that case the resignation was withdrawn on 21st November, 1988 after its acceptance on 18th November, 1988 but in the present case it was withdrawn on 28th September, 2003 prior to its acceptance on 11th October, 2003. In that case the employee was informed of the acceptance on 1st December, 1988 and the only contention of the employee regarding the non-acceptance of the resignation letter on 18th November was because of the marking of the attendance after the said date. It is in this context that it was observed that the sending of the letter on 1st December, 1988 was not significant as there was no rule which required the acceptance to be communicated. The Court had found as a fact that the resignation had been accepted on 18th November, 1988 and, therefore, marking of attendance would not help the employee. In the present case, Dr. Tripathi was sent by the College after she had submitted the letter for withdrawal of the resignation letter. This apart the mere conduct of examination after 11th October, 2003 is not the sole ground taken by the Authorities for coming to the conclusion that the resignation letter had been withdrawn. We, therefore, find no force in this contention of the learned Senior Counsel for Dr. Pandey.

We are, therefore, of the considered opinion that the findings recorded by the Vice-Chancellor and the Chancellor of the University do not suffer from any infirmity and that since Dr. Tripathi had withdrawn her resignation on 28th September, 2003, the Committee of Management of the College was not justified in accepting the resignation letter submitted by her on 27th September, 2003. The Writ Petitions filed by the Committee of Management of the College and Dr. Tripathi are, therefore, liable to be dismissed. The Writ Petition filed by Dr. Tripathi for a direction to implement the orders passed by the Vice-Chancellor and the Chancellor of the University is, therefore, liable to be allowed.

However, before parting with this case, we must mention about the facts that have come to light regarding the functioning of the office of the Director of Higher Education in the matter of placement of the Teachers and Principals. The Commission along with its letter dated 30th April, 2001 sent the list dated 18th April, 2001 to the Director recommending the names of candidates found suitable in order of merit. The Director thereafter by the communication dated 31st August, 2002 recommended the name of Dr. Tripathi for the post of Principal of the College under Section 13(3) of the Commission Act and pursuant to the said communication Dr. Tripathi joined the College on 2nd September, 2002. After acceptance of the resignation of Dr. Tripathi on 11th October, 2003 by the Committee of Management, the Director sent the communication dated 18th November, 2003 to the College mentioning therein that the vacancy should be filled up by giving appointment to Dr. Pandey. We were surprised to notice that the name of Dr. Pandey was being recommended for appointment to the College after a period of more than two and a half years even though her name appeared at Serial No.8 in the General Category main list. We, therefore, called for the original records from the office of the Director and the learned Standing Counsel has produced the same. The records reveal that a communication dated 12th May, 2001/4th March, 2002 had also been sent by the Director to Dr. Pandey for appointment as Principal in Gauri Shankar Mahila Mahavidyalaya, Bulandshahar but she did not join the said College. The records also reveal that the process for appointment of Dr. Pandey in the College at Allahabad actually started on 13th November, 2003 when the then Director made a note in the file relating to Post Graduate Colleges even though Prayag Mahila Vidyapeet Degree College is a Graduate College. A direction was given to the office to prepare a note for the appointment of Dr. Pandey in the College and merely on the basis of the said noting made by the Director in the file relating to Post Graduate College that the office made a note on 14th November, 2003 for appointment of Dr. Pandey. This recommendation was accepted by the Joint Director and placed before the then Director who accepted the same on 15th November, 2003. Thereafter the order was issued on 18th November, 2003 in favour of Dr. Pandey and she joined on the same date.

The records, therefore, reveal a shocking state of affairs prevailing in the office of the Director. The records do not indicate that any communication had been sent by Dr. Pandey for appointing her in the College and only on the basis of some noting made by the Director of Higher Education in the file relating to Post Graduate Colleges that the office put up a note on 14th November, 2003 for appointment of Dr. Pandey in the College. The note prepared by the office does not mention at all that Dr. Pandey who was at Serial No.8 in the select list of 2001 had earlier been offered appointment in Gauri Shankar Mahavidyalaya, Bulandshahar but she did not join the College. According to the learned Senior Counsel for Dr. Pandey, she did not accept the offer of appointment in the said College at Bulandshahar for the reason that it was a Self Financing College and as soon as the offer of appointment in the College at Allahabad was made, she immediately joined it. In our opinion once Dr. Pandey had refused to accept the offer of appointment in the College at Bulandshahar, there was no reason to offer appointment to her subsequently in another College. The manner in which the Director had proceeded to offer appointment to Dr. Pandey clearly calls for an enquiry and indeed the learned Standing Counsel pointed out that the State Government had also ordered an enquiry to be conducted against the then Director in respect of the appointment made pursuant to advertisement No.25 and some other advertisements by the Commissioner, Allahabad Division, Allahabad. The records also indicate that subsequently the Enquiry Officer was changed by the communication dated 2nd June, 2006. We, therefore, do not propose to deal further with this matter at this stage but direct that the pending enquiry against the then Director must be completed expeditiously preferably within a period of three months from today. The learned Standing Counsel shall bring this order to the notice of the authorities concerned for due compliance. The enquiry report shall also be placed before this Court as soon as it received so that appropriate orders can be passed. Let the office list the petition after receipt of the enquiry report for the purpose of passing an appropriate order in this regard.  

In view of the discussion made above, Writ Petition No. 40551 of 2004 and Writ Petition No.76322 of 2005 filed by the Committee of Management of the College and Dr. Shakti Pandey respectively are liable to be dismissed and are dismissed. Writ Petition No. 46933 of 2004 filed by Dr. Tripathi is allowed and a direction is issued to the Committee of Management of the College to forthwith reinstate Dr. Tripathi as the Principal of the College.

Date : 29.11.2006

GS


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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