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Judgment
Kailash Gambhir, J.—By way of the present petition filed under Articles 226 and 227 of the Constitution, the petitioner seeks issuance of directions against respondent No. 1 to withdraw their letter dated 7.8.1986 and 30.8.86. The petitioner also seeks directions for declaration of Sub-rule 2 of Rule 48 of the Central Civil Services (Pension) Rules, 1972 ultravires. Directions are also sought by the petitioner against respondents 1 and 2 to pay the petitioners entire salary and other allowances from the month of September 1986 onwards.
Brief facts of the case as set out in the present petition are that the petitioner was appointed as a Language Teacher by the erstwhile Managing Committee of the school w.e.f. 24.7.1950. Thereafter the petitioner was promoted to the post of PGT on 8.8.1962 in the Pay Scale of Rs. 350-700/- p.m. on account of his hard labour, honest and efficient outlook and ultimately the petitioner was appointed as a Principal of the school w.e.f. September 26, 1974 by Shri Tikka Jagjit Singh, Retd. Judge High Court as its Chairman and the said appointment was duly approved by the Director of Education, Delhi, i.e., the respondent No. 3. The case of the petitioner is that he was performing his duties and functions as a Principal diligently, honestly and conscientiously in the best interest and welfare of the school. In the meantime Delhi Sikh Gurdwara Management Act was enacted and the elections for the Delhi Sikh Gurdwara Management Committee were held. The Delhi Sikh Gurdwara Management Committee constituted the Managing Committee of the school under it and the new Managing Committee of the school had taken over headed by Shri Tarlochan Singh Sarna as its Chairman. The then Chairman of the new Managing Committee Shri Trilochan Singh Sarna arbitrarily cancelled the petitioners appointment as Principal of the school, w.e.f. August, 29, 1975 and acted in an absolutely illegal manner in utter disregard of the rule without assigning any reason whatsoever and without seeking the approval of the respondent No. 2. The respondent No. 3 wrote a letter dated 1.9.1975 to the Chairman of the school wherein he disapproved such arbitrary and illegal decision of the Chairman of the school . The petitioner then filed a civil suit for injunction being Suit No. 782/75 in the court of Senior Sub Judge, Delhi, challenging the cancellation of his appointment. The Sub Judge Delhi stayed the impugned resolution dated 29.8.75. Afterwards the new Managing Committee on the directions of the respondent No. 3 reviewed the case of the petitioner and revoked its earlier resolution dated 29.8.75 cancelling the petitioners appointment as Principal of the school. It was also resolved that the petitioner shall be deemed to have been treated on duty for the intervening period i.e. from 29.8.75 to 16.4.76 and held that the petitioner shall be entitled to full pay with all the allowances and services benefits. However the petitioner was not paid arrears of his salary and allowances for the said period. After the inception of the new Managing Committee the Manager of the school started interfering in the day to day affairs of the school in spite of the fact that the petitioner made many requests to him that such an attitude would only spoil the atmosphere of the school as the same was not conducive to the interest and welfare of the school. The petitioner made such request both orally as well as in writing but to no effect. The petitioner also requested the Chairman on a number of occasions to convene the meeting of the managing committee so as to discuss the functioning of the school and the interference of the Manager in the day to day affairs of the school, however, in spite of this no meeting of the Managing Committee was held. The petitioner also requested the Chairman to intervene in the matter as such a hostile attitude of the Manager towards the petitioner would have an adverse effect on the smooth functioning of the school besides affecting the education of the students. Under such situation created by the Manager of the school, the petitioner was compelled to seek voluntarily retirement vide his letter dated 25.10.2984. However, on 29.10.84 the petitioner was made to withdraw the same under the suggestions and directions of Mr. S. Jaswant Singh, President DSGMC on the assurance the grievance of the petitioner would be looked into. But the attitude of the Manager remained unchanged and he became even more hostile in his vindictive attitude. Ultimately in or around August, 1985 the petitioner filed a civil writ petition in the High Court seeking issuance of directions to the respondents to pay the arrears of salary along with interest for the intervening period i.e. 29.8.75 to 16.4.76 after being reinstated. This Court vide order dated 20.11.85 directed the respondent No. 3 to deduct the said amount of arrears of salary from the future grant-in-aid payable to the school and further directed to pay the same to the petitioner. The Manager of the school got infuriated by the decision of the this Court. The salary of the petitioner for the month of October, 1985 was delayed for the said reason alone for a period of more than two months. The Manager of the school deliberately withheld the petitioners salary for the months of April and December 1985 and January and February 1986 on imaginary grounds with the sole intentions to put the petitioner under harassment. Under such compelling circumstances and harassment that was being meted out to the petitioner and his family, the petitioner was again forced to seek voluntary retirement and in this regard he made an application to the Chairman of the Managing Committee seeking voluntary retirement w.e.f. 31.7.86.
During the course of the arguments, counsel for the petitioner did not press the prayer (b) of the writ petition. Counsel submits that the petitioner sought voluntary retirement vide letter dated 4.2.86 from the services of the school w.e.f. 31.7.1986. Since no such decision was taken by the Managing Committee of the school to accede to his request, another letter dated 29.7.86 was sent by the petitioner to grant him compulsory retirement thereby extending the period of notice of voluntary retirement by another six months i.e. up to 31.1.1987. In reply to the said letter the respondent management vide their reply dated 7.8.86 agreed to grant extension till 31.8.86. Counsel for the petitioner further submits that before the said deadline of 31st August 1986 came to an end the petitioner gave a rethinking to his decision and vide letter dated 25.8.86 withdrew said notice of seeking voluntary retirement. The petitioner through the said letter clearly wrote to the Chairman of the Managing Committee of the school that his request made earlier be treated as cancelled and withdrawn. Counsel for the petitioner further submits that immediately thereafter the respondent school in utter haste by their letter dated 29.8.86 rejected the said request made by the petitioner and vide said letter directed the petitioner to hand over complete charge of his post of Principal to one Mr. S. Ram Singh, the then Vice Principal.
Ms. Sujata Kashyap counsel for the respondent/DOE submits that the Managing Committee of the school did not seek any approval from the Directorate of Education to grant voluntary retirement to the petitioner. Counsel further submits that even there was no such intimation received by the Directorate of Education that meeting of the Managing Committee was held to consider the said request of the petitioner to grant him voluntary retirement. Ms. Kashyap thus submits that the action taken by the school management is ex-facie illegal as the petitioner was well within his right to withdraw his request before the deadline of 31.8.86 and also in view of the fact that no decision in this regard was taken by the Managing Committee of the school nor any approval was sought by the Managing Committee on the request of the petitioner seeking voluntary retirement.
On the other hand, Mr. Baxi counsel for the respondent school submits that the Managing Committee was well within their right to take decision on the request made by the petitioner seeking his voluntarily retirement without any sort of pressure upon him. Mr. Baxi further submits that in other words, compulsory retirement was granted to the petitioner till 31.8.86, as per the request made by the petitioner and therefore, there was no illegality on the part of the Managing Committee in taking the said decision. Mr. Baxi also states that there was no requirement to obtain the approval from the Directorate of Education in the case of voluntary retirement and the Managing Committee was well within their power to take such a decision.
I have heard learned Counsel for the parties and gone through the record.
Indisputably, the petitioner himself sought his voluntary retirement vide letter dated 4.2.1986 and since no decision was taken by the Managing Committee of the School on the said letter, therefore, he voluntarily extended the time so as to enable the Managing Committee of the school to take a decision by the end of 31.1.87. In the meanwhile, the petitioner had a rethinking of his decision and vide his letter dated 25.8.86 withdrew his earlier request of voluntary retirement and called upon the respondent Management to treat his request as cancelled/withdrawn. This request of withdrawing his request activated the respondent management and immediately on the receipt of the same, a letter was sent by them to the petitioner accepting his request to grant him compulsory retirement w.e.f 31.8.1986. There is no reference made by the respondent school that any such decision was taken by the Managing Committee or any Resolution in this regard was passed by the Managing Committee. Even there is no reference to any approval having been sought by the Managing Committee on the said decision, taken by them, although, in the letter dated 6.9.86, vaguely there is a reference to the Resolution having been passed by the Managing Committee through circulation and the same was sent to the Department for the necessary action but no details of such Resolution have been given in the said letter. In any event of the matter, the Directorate of Education has taken a stand that no such request was received by the Directorate of Education to grant approval to the purported decision of the Managing Committee to grant voluntary retirement to the petitioner. As per Rule 98 of the Delhi School Education Rules, 1973, the appointing authority of every employee of a school is Managing Committee of the school but every such appointment has to be duly approved by the Directorate of Education. u/s 8(2) of Delhi School Education Act, no employee of a recognized private school can be dismissed, removed or reduced in rank nor his/her services can otherwise be terminated except with the prior approval of the Directorate of Education. In this regard, the Hon''ble Apex Court in The Principal and Others Vs. The Presiding Officer and Others, observed as under:
Sub-section (2) of Section 8 of the Act ordains that subject to any rule that may be made in this behalf, no employee of a recognised private school shall be dismissed, removed or reduced in rank nor shall his service be otherwise terminated except with the prior approval of the Director of Education. From this, it clearly follows that the prior approval of the Director of Education is required only if the service of an employee of a recognised private school is to be terminated.
It is, therefore, manifest that it was incumbent upon the Managing Committee of the school to have sought approval of their decision to grant compulsory retirement to the petitioner, after the Managing Committee of the school had taken a decision in their meeting but nothing has been placed on record by the respondent school to show that such Resolution of the Managing Committee was sent to the Directorate of Education for their approval. In the absence of the said approval, the decision taken by the Managing Committee is ex-facie illegal and therefore, the same cannot sustain in the eyes of law. Even otherwise once the petitioner had withdrawn from his request prior to the deadline of 31.8.1986, it was expected from the respondent school to have acceded to his request instead of taking a hasty decision over the previous request of the petitioner to grant him compulsory retirement w.e.f. 31.8.86. The law in this regard is well settled that unless controlled by conditions of service or statutory provisions, retirement mentioned in resignation letter must take effect from the date specified therein but it is open to an employee to withdraw resignation letter before it becomes effective. In this regard, the Hon''ble Apex Court in Union of India and Another Vs. Wing Commander T. Parthasarathy, observed as under:
We have carefully considered the submissions of the learned Counsel appearing on either side. The reliance placed for the appellants on the decision reported in Raj Kumar case1 is inappropriate to the facts of this case. In that case this Court merely emphasised the position that when a public servant has invited by his letter of resignation determination of his employment his service clearly stands terminated from the date on which the letter of resignation is accepted by the appropriate authority and in the absence of any law or rule governing the condition of the service to the contrary, it will not be open to the public servant to withdraw his resignation after it is accepted by the appropriate authority and that till the resignation is accepted by the appropriate authority in consonance with the rules governing the acceptance, the public servant concerned had locus poenitentiae but not thereafter. This judgment was the subject-matter of consideration alongside the other relevant case law on the subject by a Constitution Bench of this Court in the decision reported in Union of India v. Gopal Chandra Misra. A request for premature retirement which required the acceptance of the competent or appropriate authority will not be complete till accepted by such competent authority and the request could definitely be withdrawn before it became so complete. It is all the more so in a case where the request for premature retirement was made to take effect from a future date as in this case. The majority of the Constitution Bench analysed and declared the position of law to be as hereunder: (SCC p. 317, para 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 becomes 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, 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.
This Court had again an occasion to consider the question as to the principle of law to be applied to a case of resignation made to become effective on the expiry of a particular period or from a future date as desired by the employee in Punjab National Bank v. P.K. Mittal. It was held therein that resignation being a voluntary act of employee, he may choose to resign with immediate effect or with a notice of less than 3 months if the employer agrees to the same or he may also resign at a future date on the expiry or beyond the period of 3 months as envisaged under the governing regulation in that case, even though there is no such consent from the employer, and that, it was always open to the employee to withdraw the same before the date on which the resignation could have become effective.
In the light of the above discussion, the decision taken by the respondent school vide their letters dated 7.8.1986 and 30.8.1986 are hereby set aside.
10 The petitioner shall be entitled to all the benefits of his past service and other allowances including his pensionary benefits etc., and will be treated in service till the age of his superannuation on the same post.
With these directions, the petition stands disposed of.