Zohra Banoo vs State

Muzaffar Hussain Attar, J.(Oral)—The petitioner came to be engaged as teacher on consolidated pay under the Sarv-i-Shikhsha Abhiyan vide

order No. CEO-K/518 dated 17th October, 2005. Her selection was made on the pattern of Rehbar-i-Taleem Scheme (ReT.).

Writ petition is filed, inter alia, on the ground that the resignation submitted by the petitioner and which was accepted by the respondents Chief

Education Officer (CEO), was not voluntary and the CEO was not the Competent Authority to accept the same.

Respondents have filed the Reply Affidavit.

On 09th February, 2011, when this petition was taken up for consideration, the Court directed that the vacancy of ReT., subject matter of this

writ petition, shall not be filled up till next date before the bench. The interim direction continued thereafter, which means that the position of ReT. is

available.

The case set up in the writ petition is that because of some ailment and other domestic problems, the petitioner had applied for leave, which was

denied to her by the respondents on the ground that an ReT. is not entitled to any kind of leave. It is for this reason that the petitioner, as submitted

at bar, was compelled to submit her resignation.

Any employee, either working on ad hoc or contractual or in any other temporary capacity, cannot be denied leave as, because of the ailment,

such employee will not be in a position to perform his/her duties. It cannot be expected of a human being to continue to remain healthy and able

bodied and to continue to discharge his/her duties regularly and without any fail.

The stand taken by the respondents that a ReT. would not be entitled to any kind of leave, is not only arbitrary but unjust too. The respondent -

State and its authorities were duty bound to grant leave to the petitioner as she had sought the same being ill. Some ailments, if not taken care of

and treated properly, can deprive a person of his/her life. It is in this backdrop, it is held that refusal to grant leave to the petitioner is an unjust act

on the part of the respondents and to ensure that her life was not put to any kind of jeopardy, the petitioner was compelled to submit her

resignation. This resignation, in law, cannot be said to be voluntary.

A resignation is that, which one submits out of his/her own free will and without being compelled by the circumstances to do the same. The

action of the respondents, in not granting leave to the petitioner and in accepting her resignation, which is held to be not voluntary one, is arbitrary

and violative of article 14 & 21 of the Constitution of India, in as much as, the petitioner has been deprived of her livelihood as well.

This writ petition along with connected IAs is disposed of in the following manner :

The order No. RET/8066-67 dated 26th July, 2010, where under resignation of the petitioner has been accepted by respondent No. 3 - Chief

Education Officer, Kargil, mention whereof is made in communication No. CEO/SSA/RET/934 dated 08-11-2010, addressed to the Deputy

Commissioner, LAHDC, Kargil by respondent No. 3 (annexure D), is set aside. The petitioner shall be deemed to be in continuous service of the

respondents. The period, for which she remained out of service, shall be counted for the purpose of her regularisation as General Line Teacher.

However, she would not be entitled to any salary/wages for that period. Respondents to, forthwith, take the petitioner back into service and give

her posting commensurate to her status. Necessary orders, in this behalf, shall be passed within four weeks from the date copy of this order is

served on the respondents.

Disposed of along with CMPs.