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DR. RAM KISHORE SHUKLA versus STATE OF U.P. THRU' SECY. EDUCATION LKO. AND OTHERS

High Court of Judicature at Allahabad

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Dr. Ram Kishore Shukla v. State Of U.P. Thru' Secy. Education Lko. And Others - WRIT - A No. 34352 of 2005 [2007] RD-AH 11807 (12 July 2007)

 

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HIGH COURT OF JUDICATURE OF ALLAHABAD

Court No. 26

Civil Misc. Writ Petition No.  34352 of 2005

Dr. Ram Kishore Shukla                            ...                  Petitioner

                                                              Versus

State of U.P. and others                            ...                   Respondents.

Hon'ble Mr. Justice Vineet Saran

This is a case in which the petitioner, as a father, has given way to his son to get employment as L.T.grade teacher in the institution of the Respondent no.3 by first tendering his resignation and thereafter, when the resignation was accepted and on the same day appointment was given to his son, he chose to withdraw his resignation subsequently and is now wanting to take advantage of the technicalities of law to continue as Lecturer.

The brief facts of this case are that the petitioner was initially appointed on 11.9.1973 as a L.T.grade Kala teacher in the Respondent no.3-institution. His appointment was duly approved by the District Inspector of School on 17.9.1973 and thereafter on 17.5.1975, the petitioner was confirmed on such post with effect from 27.8.1974. Then on 12.6.1979, on the request of the Manager of the college, the Deputy Director of Education upgraded the post of L.T.grade Kala to that of Lecturer Kala, with the condition that the post of L.T.grade Kala be not filled up. The petitioner was then promoted as Lecturer Kala, for which approval was duly accorded by the District Inspector of School and his promotion was made effective from the date of up-gradation of the post i.e. 12.6.1979. On 18.11.2003 the petitioner sent his resignation to the Manager of the Committee of Management stating that due to family circumstances he was unable to work as Lecturer. The said resignation was received by the Manager on 19.11.2003, which was placed in the next meeting of the Committee of Management held on 21.11.2003. Interestingly, Pawan Kumar Shukla, son of the petitioner, had been selected by the U.P. Secondary Education Service Commission (hereinafter referred to as the Commission) as L.T.grade Kala teacher and on 18.9.2003 the District Inspector of School had written to the Manager/Principal of the Respondent no.3-institution to give appointment to said Pawan Kumar Shukla as L.T.grade Kala teacher. The said letter with regard to the appointment of the son of the petitioner was also placed in the same meeting of the Committee of Management held on 21.11.2003, in which the resignation letter of his father (petitioner) was placed. In the said meeting the resignation of the petitioner was first accepted (with the request that the petitioner be required to continue to work till the end of the academic session i.e. 30.6.2004) and thereafter it was resolved that the son of the petitioner be appointed as L.T.grade Kala teacher. The said decision of acceptance of the resignation of the petitioner was communicated to the petitioner by the Manager on 1.12.2003. Thereafter on 17.2.2004 the petitioner wrote to the Manager of the Respondent no.3-institution that since his family circumstances had changed, the resignation submitted by him on 18.11.2003, which was accepted on 23.11.2003, be treated as withdrawn. By an order dated 2.5.2004, the Committee of Management rejected the request of the petitioner. The petitioner thereafter filed a representation before the District Inspector of School who also, by order dated 11.3.2005, rejected the same. Aggrieved by the aforesaid orders dated 2.5.2004 and 11.3.2005 passed by Respondents no. 3 and 2 respectively, this writ petition has been filed. A further prayer has been made for a direction to the respondents to treat the petitioner in service and permit the petitioner to work till his retirement and pay him his salary.

I have heard Sri Raj Kumar Jain, learned Senior counsel assisted by Sri Rahul Jain, learned counsel appearing for the petitioner as well as learned Standing Counsel appearing for the State-respondents no. 1 and 2 and Sri Ankush Tandon, holding brief of Sri Vikas Budhwar, learned counsel appearing for the respondent no. 3 Committee of Management of the institution. Pleadings have been exchanged, and with consent of the learned counsel for the parties, this writ petition is being disposed of at this stage.

The submission of the learned counsel for the petitioner is that the resignation was taken from the petitioner by the Manager of the institution by force and although the said resignation was obtained on 23.11.2003 but it was ante-dated and shown to be as dated 18.11.2003. Such submission of the learned counsel for the petitioner is not acceptable as there is no whisper of such assertion in the letter dated 17.2.2004 of the petitioner seeking withdrawal of his resignation nor was there any complaint filed by the petitioner with regard to the management forcing him to tender his  resignation.

Chapter III of the Regulations framed under the U.P. Intermediate Education Act, 1921 deals with the conditions of service of teachers. Regulation 29 of the said Chapter relates to resignation by a teacher whereas Regulation 26 relates to the termination. The said Regulations 26 and 29 are being quoted below:-

"Regulation 26.(1) - The services of a permanent employee may be terminated by giving him three months notice or three months' pay in lieu thereof, on the ground of the abolition of the post which the employee is holding. The abolition may be due to one of the following reasons:

(a) Retrenchment decided upon for reasons of financial stringency.

(b) Abolition of a subject.

(c) Abolition of section or class.

2. For the purpose of computing the period of notice mentioned in clause (1) or for determining the amount to be paid in lieu thereof the period of summer vacation shall be excluded.

Regulation 29. - Any employee may resign by giving a notice or pay in lieu thereof to which he would have been entitled in case of termination of his services by the management:

Provided that -

(i) no employee shall give notice expiring in the month of January, February or March;

(ii) Summer vacation may be included in the period of the notice;

(iii) an employee selected for appointment in government service or in the service of any local body shall not be required to give due notice and shall be required to resign from service in time to join the new appointment if the application for the post had been made through proper channel.

(iv) It will be open to the management to waive its claim to the notice."

The submission of Sri Jain is that since the requisite three months' notice, as required under Regulation 29 read with Regulation 26, was not given by the resignation letter dated 18.11.2003, hence the same would be ab initio void and could not be treated as a valid resignation. It has further been submitted that the proviso (i) to Regulation 29 specifies that no employee shall give notice expiring in the month of January, February and March. It has thus been contended that even if it is presumed that the resignation letter dated 18.11.2003 was with the implied condition that the same would be effective after three months, then too the expiry of notice would fall in the month of February, and as such also the said resignation would be illegal and void in view of the first proviso to Regulation 29. It has also been submitted that the conditional acceptance of the resignation of the petitioner was not valid and since the petitioner had withdrawn his resignation prior to the same having been given effect to, which was to be from 30.6.2004, he had full right to withdraw the same. In support of his submissions the learned counsel for the petitioner has relied upon the following decisions:-

(1) Shivraj Singh Vs. Devji Mal Asha Ram Paliwal 1982 All.L.J. 1012

(2) Panna Lal Pathak Vs. District Inspector of School, Aligarh 1988 UPLBEC 827

(3) Kumari Rama Chauhan Vs. Committee of Management Chironji Devi Girls intermediate College, Rura, Kanpur 1983 UPLBEC 721

(4) Pukhraj Mantri Vs. U.P. Cooperative Spinning mills Federation Ltd. (1992) 1 UPLBEC 664

(5) Rajesh Tripathi Vs. Board of Governors Through Chief Secretary U.P. Government, Motilal Nehru Regional Engineering College, Allahabad (1997) 2 UPLBEC 1380.

(6) Committee of Management Shyam Krishna Intermediate college, Thawaipar, Gorakhpur Vs. District Inspector of School 1983 UPLBEC 28.

A Division Bench of this Court in the case of Shivraj Singh (supra) has, while dealing with a case in which a teacher of a college had resigned on 16.10.1971, which was accepted by the resolution passed by the Committee of Management of the college on 24.10.1971, which was in the meantime withdrawn by the teacher,  held as follows:-

"9. The statutory regulations framed under the U.P. Intermediate Education Act, 1921 control both the management's as well as the teacher's right to terminate or resign from service. Regn. 26 is in positive terms. Under it the management can terminate the service of a permanent employee by giving him three months' notice or three months' pay in lieu thereof. Giving of three months' notice or pay in lieu thereof is a condition precedent for the management to exercise its right to terminate the service of an employee. Regn. 29 enables an employee to resign either by giving notice or pay in lieu thereof. The notice or pay refers to the notice or pay to which he would have been entitled in case of termination by the management. In other words, regn. 29 refers back to regn. 26 in so far as the period of notice or pay is concerned. Accordingly an employee can resign only by giving a notice of three months or pay in lieu thereof. This shows that an employee has no unfettered right to resign. He can exercise the right of resignation only in accordance with the provisions of Regns. 29 and 30.

10. The proviso to Regn. 29 further restricts the right of an employee to resign by providing that no employee shall give notice expiring in the month of Jan., Feb. or March. The proviso is in positive and Mandatory terms. It suffers from no exception. It gives no discretion to the employee.

11. In our view the main thrust of Regn. 29 is to give to the employee a discretion to give to the management pay in lieu of the period of notice. He is, however, not bound to pay. What is required is that if he (employee) does not give payment as required under Regn. 29 his resignation can be valid only if he gives the requisite notice. In other words, the employee can then give three months pay in lieu of the notice or else his resignation will be valid only if a three months' notice is given.

12. Now what would be the situation in case an employee may not have indicated either of the modes i.e. he neither gives payment of three months pay nor expressly gives three months notice. In our opinion in such a case where the employee has not exercised his discretion by not actually paying the three months pay or giving the 3 months notice of resignation as required by Regn. 29 read with Regn. 26, the resignation cannot be termed as a valid resignation before the expiry of three months from the date of lodging of the resignation letter itself. The resignation would be deemed to be ineffective before the expiry of three months from the date on which the resignation was lodged with the management.

13. If the letter of resignation in any manner indicates that the employee wishes to be exempted from the period of notice without paying the pay in lieu thereof, the resignation letter would be invalid and void. In order to treat it as a valid resignation it would be deemed that he proposes to give the statutory three months notice from the day when the resignation letter itself is lodged with the management. Thus the resignation would be deemed effective in law on the expiry of the period of the three months.

14. In the present case the resignation letter was lodged with the management on Oct. 16, 1971. It would become effective on the expiry of three months' period of notice, namely on Jan. 16, 1972. Resignation being effective in the month of January attracts the first proviso to regn. 29. Under it no employee shall give notice expiring in the month of Jan., Feb. or Mar. In view of this proviso as the notice deemed to have been given by the plaintiff appellant by his resignation letter dated Oct. 16, 1971 will be invalid since it expired in the month of Jan., 1972. The resignation was hence as already stated above initio void and could not rupture the relationship between the parties. In this view the resolution passed on Oct. 24, 1971 by the Managing Committee lost its utility and could have no legal effect.

15. Since the resignation itself remained a dead letter, the question whether a resignation by a teacher requires acceptance by the Managing Committee before it becomes effective in law is merely an academic one on the facts of the present case. The other questions referred to us are equally immaterial."

The said view has been followed by another Division Bench of this Court in the case of Panna Lal Pathak (supra) as well as learned Single judge in the case of Kumari Rama Chauhan (supra).

With regard to his submission that the petitioner had withdrawn his resignation prior to the same having become effective, Sri Jain has relied on the decision in case of the Pukhraj Mantri (supra) wherein it has been held "that the resignation tendered by the petitioner could not become legally effective before expiry of the notice of three months as visualised by bye-law No. 6 of the U.P.Textile Corporation(General Service Conditions) Bye-laws, 1978 referred to herein before and further the resignation was legally withdrawn before it could become effective even in terms of the letter of acceptance dated 3.8.1983 and, therefore, the petitioner shall be deemed to be service of the respondent and the respondent has no authority in law to appoint any other person in place of the petitioner in pursuance of the impugned advertisement till his services are terminated in accordance with law." He has also relied on the Division Bench decision in the case of Rajesh Tripathi (supra) wherein it has been held as follows:-

"18. Therefore, the proposal of resignation is capable of being withdrawn before its acceptance by the appropriate authority. The acceptance of the proposal is complete as against the proposer when the letter of acceptance is put in the course of transmission to him taking it out of power of the acceptor. The proposal of resignation cannot be revoked after its acceptance is complete.

19. Communication of revocation of proposal of resignation as against accepting authority is complete when it comes to the knowledge of the authority. Till then revocation is in operative and the proposal of resignation remains open to acceptance."

Sri Tandon, learned counsel appearing for the Committee of Management as well as learned Standing Counsel appearing for Respondents no.1 and 2 have submitted that the petitioner has played fraud by first tendering his resignation in order to accommodate his son and thereafter he is wanting to withdraw his resignation so that he may continue to work as Lecturer, even though there is only one post available in Kala Department of the institution which initially was of L.T. Grade but was upgraded to that of Lecturer, with the condition that L.T. Grade would not be filled up.

It is true that strictly under law a resignation tendered without three months notice or notice for resignation which is expiring in the month of January, February or March would be invalid and void ab initio and not worthy of acceptance, but before giving any judgment with regard to the merits of this case, what is to be considered in the present case is the conduct of the petitioner.  A clear finding of fact has been recorded by the District Inspector of School that there was only one post in the Kala Department and the resignation was first tendered by the petitioner and accepted by the management and it was only thereafter that Pawan Kumar Shukla, son of the petitioner, could be appointed as a L.T.grade Kala Teacher. The acceptance of the resignation of the petitioner as well as appointment of his son Pawan Kumar Shukla are both by a common resolution passed by the Committee of Management on the same date i.e. 23.11.2003. A clear finding of fact has also been recorded to the effect that there is only one post of Teacher/Lecturer in the Department of Kala. Such finding of fact has not been contradicted or challenged by the petitioner in this writ petition.

 The action of the petitioner in trying to defraud the authority by first resigning from his post and getting his son appointed as L.T.grade teacher and then withdrawing his resignation and seeking protection of technicalities of law do not call for protection to be given to such a person specially in this extra-ordinary, discretionary and equity jurisdiction under Article 226 of the Constitution of India. Even if  the case of the petitioner may be legally sound but the conduct, as well as the circumstances, may still not warrant that relief be given to the petitioner. When there is only one post available, on which the petitioner was working, he cannot be permitted to take advantage of technicalities of law in getting his son appointed on the same post and then wanting himself also to continue on such post on the basis of technicalities. Accordingly, I do not find any good ground for interference with the impugned order of the District Inspector of Schools, whereby the representation of the petitioner with regard to withdrawal of his resignation has been rejected and a direction has been issued with regard to recovery of the amount paid to two teachers when only one post was sanctioned.

For the foregoing reasons, no interference is called for with the  impugned orders. This writ petition is, accordingly, dismissed. No order as to cost.

dt. 12.7.2007

dps


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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