Ajay Gupta vs State of U.P. and Ors.

D.K. Arora, J.—Heard counsel for the parties.

This is a Special Appeal under Chapter VIII Rule 5 of the High Court Rules, 1952 against the judgment and order dated 18.8.2007 passed in writ petition No.4016 (S/S) of 2007, Ajay Gupta v. State of U.P. and others.

The judgment and order of learned Single Judge dated 18.8.2007 is being assailed primarily on the ground that the learned Single Judge has completely failed to consider that the appellant has right to withdraw his resignation before the acceptance and the contest of election of Nagar Palika Parishad by the appellant did not disentitle him for moving application for withdrawal of resignation, which was not accepted till the date of moving the application. The finding to the effect that the appellant is stopped from challenging his resignation is wholly illegal as the appellant has never challenged his resignation and the learned Single Judge did not consider that the appellant was entitled for salary as his resignation was not accepted and the appellant has joined his duties after withdrawing his resignation and was discharging his duties and functions.

The brief facts of the case are that the appellant was appointed on the post of Assistant Teacher vide order dated 7.7.1994 under the provisions of DyinginHarness Rules and in pursuance of his appointment he joined his duties as Assistant Teacher in Primary School, Sehrua, Development Block Lakhimpur, district Lakhimpur Kheri.

On 15.9.2006, the appellant submitted his resignation from the post of Assistant Teacher to the District Basic Education Officer, Lakhimpur Kheri through proper channel and before the resignation could be accepted by the Competent Authority, an application dated 28.11.2006 was moved for withdrawing his resignation. On 29.11.2006, applicant submitted his joining in the School and the same was accepted by the Headmaster of the School. The information was forwarded to the District Basic Education Officer, Lakhimpur Kheri. The appellant is performing his duties regularly but when he was not paid his salary despite repeated request and reminders appellant filed writ petition bearing Writ petition No.4016 (S/S) of 2007.

The writ petition of the appellant was dismissed on the ground that once the petitioner has submitted his resignation for the purposes of contesting election, until and unless the resignation becomes final and has accepted by the authorities, he could not have contested the election. The withdrawal application of the petitioner at later point of time after contesting election is an obstacle in the way of petitioner. Accordingly, he is estopped from challenging the resignation which he has submitted for contesting the election.

The submission of counsel for the appellant is that in a catena of decisions, it is held that the resignation submitted by an employee can be withdrawn before its acceptance.

Objection/counter affidavit on behalf of the respondent No.3 i.e. Basic Shiksha Adhikari, Lakhimpur Kheri has been filed and case of the respondent is that the appellant by means of letter dated 17.6.2006 sought permission for contesting election of President, Nagar Palika Parishad, Lakhimpur Kheri and reply of the same was given vide letter dated 4.7.2006 in which it was specifically informed that under the Rules of Basic Education Board there is no chapter under which the teachers of the Board can be given permission for contesting election of Local Bodies/Assembly/Parliament/Rajya Sabha/Legislative Assembly. It was also clarified that if there is no rule under the provisions of U.P. Basic Education Board relating to the Teachers/Employees of the board then the Government Employees Conduct Rules, 1956 will govern the field and as per U.P. Government Employees Conduct Rules, 1956 there is no provision under which a teacher/employee can contest an election. Apart from this, there is circular of Board dated 29.5.1989 which provides that the teachers of Basic Shiksha Parishad can only contest election of Gram Sabha, Vidhan Sabha etc. only after tendering resignation.

The appellant submitted conditional resignation vide letter dated 19.8.2006 to the District Basic Education Officer, Lakhimpur Kheri stating therein that he wants to contest the election of Chairman, Nagar Palika Parishad, Lakhimpur and he cannot file nomination while working on the present post (Assistant Teacher). Therefore, he is submitting his resignation with the condition that if he files his nomination for the post of Chairman, local bodies in forthcoming election, his resignation be considered as accepted and the applicant be relieved from the post of Assistant Teacher.

The appellant again submitted his resignation vide letter dated 15.9.2006 (Annexure2 to the affidavit filed in support of the application for interim relief) which states that his resignation be accepted with immediate effect and the resignation of the appellant was accepted by the competent Authority vide order dated 22.9.2006 (AnnexureCA2).

It is further submitted that since the resignation of the appellant was accepted and due information was given to him vide letter dated 22.9.2006 as such there was no occasion for the appellant to submit his joining report on 29.11.2006. A disciplinary action has already been initiated against the concerned Headmaster for permitting the appellant to submit his joining and further allowing him to perform his duties.

The specific submission of the respondent No.3 is that the resignation was accepted much prior to the application for withdrawal of the resignation and vide letter dated 18.9.2007 it was again informed to the appellant that since his resignation has already been accepted on 22.9.2006 as such it is not open for him to unauthorizedly resume his duties and no payment of salary can be made to him.

The appellant in his rejoinder affidavit while reiterated his earlier averments also placed reliance on certain information''s taken under Right to Information Act and stated that the post of Chairman, Nagar Palika Parishad does not fall under the office of profit and his resignation was not accepted by the Competent Authority. It is also submitted that the order dated 22.9.2006 was never served upon the appellant.

We have considered the arguments of counsel for the parties and gone through the record of the special appeal, which makes it evident that the appellant was fully aware that for contesting election of Chairman, Nagar Palika Parishad he has to tender his resignation, as is evident from letter dated 4.7.2006 (AnnexureCA4) of the District Basic Education Officer, Lakhimpur Kheir which was replied to the appellant in response to the letter dated 17.7.2006 and it was informed that under Rules of Basic Education Rules there is no chapter under which a teacher of the Board can be given permission for contesting election of local Bodies/Assembly/Parliament/Rajya Sabha/Legislative Assembly. It was also clarified to the appellant that if there is no rule under the U.P. Basic Education Board relating to the teachers/employees then the Government Employees Conduct Rules, 1956 are applicable and there is no provision under the Conduct Rules which permits a teacher/employee to contest an election.

The appellant after the response to his query vide letter dated 19.8.2006 submitted a conditional resignation to the District Basic Education Officer, Lakhimpur Kheri stating therein that he wants to contest the election and he cannot file nomination while working on the present post and hence, he is submitting his resignation with the condition that if he files nomination for the post of Chairman, Local Bodies in the forthcoming election, his resignation be considered as accepted and the appellant be relieved from the post of Assistant Teacher (AnnexureCA3).

Subsequent to the conditional resignation dated 19.8.2006 the appellant submitted his resignation to the District Basic Education Officer, Lakhimpur Kheri stating therein that on account of some personal reasons he is not interested in working on the post in question and, accordingly, he tendering his resignation with immediate effect. It is further requested that necessary orders be passed for accepting his resignation from the date of submission of his resignation letter. From resignation letter, one thing is absolutely clear that the appellant wanted his resignation to be accepted from the date of presentation of his request for resignation.

According to the dictionary meaning, however the resignation means spontaneous relinquishment for ones own right. It is conveyed by the latin maxim resignation estjurispropii spondanea refutation (resignation is a spontaneous relinquishment of ones own rights). Any relation to an office, resignation connotes the act of giving up or relinquishing the office. �to relinquish an office� means �to cease to hold the office� or �to leave the job� or �to leave the position�. �To cease to hold office� or �to lose hold of the office� implies to �detach�, �unfasten�, �undo� or ''untie� �the binding knot or link� which holds one of the office and obligations and privileges that go with it.

The Constitutional Bench of Hon''ble Supreme Court analyzed and declared the position of law in 1978 (2) SCC 301, Union of India v. Gopal Chandra Mishra as under:

�50. 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 comes effective when it operates to terminate the employment or the office tenure of the resigner. 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, or 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.�

The Hon''ble Supreme Court in the matter of Balram Gupta v. Union of India, reported in (1987) Supp. SCC 228 held that �a complete and effective act of resigning office is one which severs the link of resigner with his office and terminate his tenure�.

It is well settled position that even if the voluntary retirement notice is moved by an employee and gets accepted by the authority within the time fixed, before the date of retirement is reached, the employee has locus poenitentiat to withdraw the proposal for voluntary retirement.

The Hon''ble Supreme Court in the matter of Chand Mal Chayal v. State of Rajasthan, reported in (2006) 10 SCC 358 observed that �it is settled principle of law that an incumbent is entitled to withdraw his resignation before acceptance. Ones his resignation is accepted, there is no jural relationship between the employee and employer ceases and he employee cannot claim withdrawal of the resignation nor reinstatement in the post�.

In the matter of North Zone Cultural Centre and another v. Vedpathi Dinesh Kumar, reported in (2003) 5 SCC 455, it has been held by the Hon''ble Supreme Court that �non communication of the acceptance does not make the resignation inoperative provided there is in fact an acceptance before withdrawal�.

The record shows that the resignation of the appellant was accepted vide order dated 22.9.2006 in pursuance of his resignation dated 15.9.2006. It appears that the appellant after contesting the election of the office of Chairman, Nagar Palika Parishad, moved an application to the District Basic Education Officer, Lakhimpur Kheri vide letter dated 28.11.2006 that he has submitted his resignation vide letter dated 15.9.2006. Since the same has yet not been accepted by the competent authority, he is withdrawing his resignation letter and submitting joining. The appellant without waiting for any response from the District Basic Education Officer, Lakhimpur Kheri, submitted his joining report on 29.11.2006 to the Headmaster of the Institution and the headmaster without seeking any permission from the District Basic Education Officer, Lakhimpur Kheri allowed the appellant to work. It is very strange that the Headmaster of the concerned Institution was not aware about the resignation of the appellant and he has allowed the appellant to resume his duties as if the appellant was absent in his normal course of duties and also forwarded the application of the appellant for grant of earned leave for the period he was absent.

It is important to mention here that the appellant in para3 of the affidavit filed in support of interim relief application mentioned that he has submitted his resignation on 15.9.2006 through proper channel, meaning thereby, all the correspondence ought to have been made through Headmaster and it cannot be said that fate of the resignation of the appellant was not in the knowledge of the headmaster as well as he must have relieved the appellant from the post of Assistant Teacher. The act of the Headmaster permitting the appellant to resume his duties was not proper, though it is stated in the counter affidavit that the disciplinary action has already been taken against the concerned Headmaster for permitting the appellant to submit his joining and allowing him to function.

The counsel for the appellant placed reliance on the judgment reported in (1998) 9 SCC 559, J.N. Srivastava v. Union of India and another, (1989) (Supp) 2 SCC 175, Punjab National Bank v. P.K. Mittal and 2008 (6) (Supreme) 150, Jaywant Bhaguji Godekar v. Balaleshwar Shikshan Mandal and Ors.

The case J.N. Srivastava v. Union of India and another relates to voluntary retirement and in this case it was held that if a voluntary retirement notice is moved by an employee and gets accepted by the authority within the time fixed, before the date of retirement is reached, the employee has locuspoenitentiae to withdraw the proposal for voluntary retirement. In the case of Punjab National Bank v. P.K. Mittal, it is held that until the resignation becomes effective on the terms of letter it is open to the employee on general principles, to withdraw his letter of resignation. In the matter of Jaywant Bhaguji Godekar v. Balaleshwar Shikshan Mandal & Ors. the appellant''s conditional resignation was accepted but he was subsequently revoked but the appellant instead of approaching the management filed petition before School Tribunal, Pune Region and the Tribunal allowed the appeal and ordered for reinstatement of the appellant as Assistant Teacher with full back wages. The said order of the Tribunal was challenged before the learned Single Judge of High Court and it was held that since the appellant had already resigned, therefore, he has no right to continue in service. The matter was remanded back by the Hon''ble Supreme Court as the attention of High Court was missed to the subsequent decision by which the initial decision of accepting the resignation was revoked.

All the aforesaid judgments have no relevance in the present case as the appellant voluntarily and unconditionally submitted his resignation with the request to accept the same from the date of his application i.e. 15.9.2006 and the same has been accepted vide order dated 22.9.2006 and, therefore there was no occasion for the appellant to withdraw his resignation as the same has been made effective as per his request.

A specific query was made from the counsel for the appellant whether the appellant contested the election or not.

Sri Prashant Chandra, learned Senior Counsel for the appellant replying in affirmative submitted that there is no bar on contesting election of Zila Panchayat and the same is not the office of profit.

From the order of the learned Single Judge as well as the documents placed by the respondents through objection/counter affidavit to the application for interim relief, it is evident that the appellant wanted to contest the election of the office of Chairman, Nagar Palika Parishad. Initially, the appellant sought permission from the District Basic Education Officer, Lakhimpur Kheri and on his refusal vide letter dated 4.7.2006 the appellant submitted conditional resignation requesting therein that if he files nomination then his resignation be considered and accepted and he be relieved from the post as he was fully aware while continuing on the post he cannot contest an election and finally the appellant submitted his resignation vide letter dated 15.9.2006 requesting therein that his resignation be accepted with immediate effect and he further requested that his resignation be accepted from the date of submission of his application and the same was accepted vide order dated 22.9.2006. Now, it is not open for the appellant to say that his resignation has yet not been accepted by the competent authority, therefore, he is withdrawing his resignation. The appellant even without waiting for any response from the District Basic Education Officer, Lakhimpur Kheri to his letter dated 28.11.2006 submitted his joining on 29.11.2006 to the Headmaster of the Institution concerned who in a collusive manner allowed him to perform his duties.

In view of the above, we are of the view that the resignation of the appellant dated 15.9.2006 was accepted by the respondents vide order dated 22.9.2006, as such, there is no occasion for the appellant to move application for withdrawal of the same and submit his joining to the concerned Institution and hence, appellant is not entitled for any salary for the period he has unauthorizedly worked in the Institution with the collusion of the school authorities. It was appellant''s prayer that his resignation should be accepted from the date of his submission of resignation letter, therefore, it is not a case where the resignation has been accepted by the authorities and before the dead line, appellant withdrew his resignation.

In our considered opinion, there is no infirmity in the judgment and order dated 18.8.2007 of the learned Single Judge. Hence, the special appeal is devoid of merit and is accordingly dismissed.