Sham Sunder Teacher vs The Director of School Education and Others

R.S. Mongia, J.—Petitioner, after putting in about 12 years of service as a Teacher in D.A.V. Higher Secondary School, Shahbad Markanda (Haryana), which is an aided School, submitted his resignation on August 13, 1984, vide letter Annexure P-1, which reads as under :

"due to unavoidable domestic circumstances I am compelled not to serve here more. You are, therefore, requested to accept my resignation and relieve me according to the norms laid down by the Education Department of Haryana."

However, he withdraw his resignation vide letter dated August 21, 1984, Annexure P-2, which reads as under :

"My circumstances have been changed and I withdraw my resignation dated 13.8.84. Submitted for favourable action.

Thanking you."

It is alleged that the petitioner was regularly attending his classes but after August 21, 1984, he was not allowed to continue in service. Consequently, a representation was made to the District Education Officer and on representation of the petitioner, the District Education Officer directed the management to allow the petitioner to continue in service. It may be observed here that vide letter dated July 4, 1978, Director, School Education, Haryana, issued a letter to all District Education Officers that it had been decided that the resignation of employee/officials of Haryana Aided Schools be sent to the Management through District Education Officer and the said decision be conveyed to all Managers/Heads of all Non-Government Schools. It is further the case of the petitioner that he approached the management with the letter of the District Education Officer but in spite of that, he was not allowed to continue in service and this fact was brought to the notice of the District Education Officer. He further made a representation to the Director, Public Instructions, Haryana, who is stated to have deputed an officer to enquire into the matter and it was reported by that officer that the management was at fault and that the resignation had been withdrawn before it was accepted. The fact remains that despite all this, petitioner was not allowed to join his duties as it was and is the stand of the management that before the petitioner had withdrawn his resignation on August 21, 1994, the same had already been accepted on August 18, 1984. Learned counsel for the respondent further states on the basis of the record in his possession that the letter dated August 21, 1984 withdrawing the resignation, which was sent through registered post, was received by the management on August 24, 1984.

By way of a Misc. application, the respondent has brought on record a certificate issued by the Principal, B.D.S. Senior Secondary School, Ambala Cantt. showing that the petitioner is in employment of the said School since January 1, 1986. Learned counsel for the petitioner is not denying the fact that the petitioner is in employment from the aforesaid date in the said School.

Petitioner''s counsel has argued that the service conditions of the employees like the petitioner are governed by the statutory rules known as Haryana Aided Schools (Security of Service) Rules, 1974. Rule 7(6) of the Rules provides that appointment orders to the post in service are to be issued by the management or the Head of the Institution, as the case may be, in the form prescribed in appendix B to the Rules. In the form Appendix B, the proforma of the appointment order includes the terms and conditions of appointment. Clause 2 of the terms and conditions of the appointment letter (Appendix B) is in the following terms:

"In case of resignation or discharge, on grounds other than the abolition of post or disciplinary action he/she shall be given one month''s notice or paid one month''s pay with allowances, in lieu thereof, on either side, subject to the fulfillment of other conditions of service."

On the basis of the above said condition, learned counsel for the petitioner submitted that one month''s notice is required to be given by the employee before he can be allowed to resign. According to him, since the petitioner''s terms and conditions of appointment are governed by the 1974 Rules, condition re: acceptance of resignation is to be read in Clause No.2 of Appendix B, which has already been quoted above. He submits that even if it is taken that the resignation had been accepted on August 18, 1984, but the same having been withdrawn within one month of its submission the acceptance of the same could not be given effect to inasmuch as an employee is at liberty to withdraw the resignation within the period of the notice irrespective of the factum of its acceptance. In support of his submission, he relied upon a Supreme Court judgment in Balram Gupta v. Union of India and Anr., AIR 1987 Supreme Court 2354, and a judgment of the learned Single Judge of this Court in Rajbir Singh v. The Haryana State Cooperative Development Federation Ltd., Chandigarh 1992 (3) RSJ 119 which in turn relies upon the aforesaid Supreme Court judgment. Learned counsel very fairly submits that in case the writ petition is accepted, then the petitioner would not like to go back to D.A.V. School, Shahabad Markanda, as he has already joined another School and even would forego the pay for the period when his resignation letter was allegedly accepted till January 1, 1986, when he started getting pay from the subsequent employer. However, he submits that the continuity of service, i.e., his service in the previous School would entitle him to get pay protection in the new School.

Learned counsel for the respondent, however, argued that the management had the right to accept the resignation any time and condition No.2 of appendix B would not be applicable to the case of the petitioner.

After hearing the learned counsel for the parties, I am of the view that there is substance in the submission of the learned counsel for the petitioner. It cannot be disputed that the service conditions of the employees of the Aided, Schools are governed by the 1974 Rules and Rule 7(6) thereof specifically provides that letter of appointment has to be issued in the form Appendix B, which lays down the terms and conditions. It is not disputed that the service conditions of the petitioner are governed by the 1974 Rules and Appendix B is part and parcel of those Rules. Even if the appointment letter has not been issued in the prescribed proforma as Appendix B, it would be deemed that the petitioner''s service conditions are governed by all the terms and conditions mentioned in Appendix B. That being so, the question then arises, could the petitioner withdraw his resignation within one month of its submission as one month''s notice is required to be given for purpose of resignation? The Supreme Court authority referred to above is a complete answer to this question. The apex Court has categorically held that despite the acceptance of the resignation, the employee is at liberty to withdraw the same during the period of notice that may be required under the terms and conditions/Rules. The petitioner having withdrawn his resignation within one month of its submission, the same could not be given effect to even if accepted prior to one month. The end result would be that the petitioner would be deemed to have continued in service of D.A.V. School, Shahabad Markanda.

Consequently, this writ petition is allowed and the acceptance of the resignation of the petitioner vide Annexure R-3/1 is hereby quashed. The petitioner would be deemed to have continued in service of the respondent school upto December 31, 1985, and he need not now join that School as he wishes to severe his connection from that School having joined another School w.e.f. January 1, 1986. As stated by the learned counsel for the petitioner, the petitioner would not claim any salary/allowances from the respondent-School for having deemingly worked there upto December 31, 1985. However, for all other purposes for fixing his pay etc., the service rendered in the respondent-School shall be taken into account. I make no order as to costs.