Giriraj Sharma v. State of Uttar Pradesh — 1984 DIGILAW 850 (ALL)

JUDGMENT B.N. Sapru, J. - Adarsh Janta Vidyalaya Higher Secondary School, Farid Nagar, Ghaziabad, used to be a Junior High School. In the year 1957, the petitioner, Giriraj Sharma was appointed as its Head Master. In 1966, the Junior High School became a High School and in 1-7-1966 the Petitioner was appointed as an officiating Principal of the High School. The question of appointing a permanent Principal arose on 18-5-1967 when the Deputy Director of Education wrote to the Manager of the Institution that the petitioner was qualified to be appointed as a Head Master and he could appear before the Selection Committee. On 17-8-1969 the Selection Committee recommended the name of Giriraj Sharma. The managing committee having agreed with the recommendations of the Selection Committee sent the papers of the Deputy Director of Education for approval and on 30-9-1969 the Deputy Director of Education approved the appointment of the petitioner as a permanent Principal of the High School and the petitioner consequently was appointed as a permanent Principal of the High School. 2. In the year 1972, certain members of the Vikash Samiti, Farid Nagar including Sri Ram Nath and Sri Mahavir made a complaint against the petitioner that he had produced a forged certificate at the time of his appointment as Principal that he had passed M. A. in Mathematics. On the receipt of the aforesaid complaint, the Deputy Director of Education on 16-2-1972 directed the District Inspector of Schools to enquire into the matter and specifically look into the complaint as to whether the petitioner had falsely claimed that he had passed M. A. in Mathematics. The District Inspector of Schools made some enquiries and being satisfied that the petitioner had falsely mentioned that he was an M. A. in Mathematics, lodged a first information report on 5-3-1972 with P. S. Lal Kurti, Meerut Cantt. a copy of which is Annexure 2 to the counter affidavit filed by Ram Swarup Pal who has been arrayed as respondent No. 5 in the writ petition. 3. a copy of which is Annexure 2 to the counter affidavit filed by Ram Swarup Pal who has been arrayed as respondent No. 5 in the writ petition. 3. On 15-3-1972 the petitioner submitted his resignation to the Manager of the Committee of Management of the Institution a copy of the letter of resignation has been filed as Annexure 6 to the writ petition which runs as under; egksn;] ?kjsyq ifjfLFkfr;ksa ds dkj.k esa laLFkk ds iz/kkukpk;Z ds :i esa dk;Z djus esa vleFkZ gwWaA d`i;k esjk R;kx i= Lohdkj fd;k tk;A Hkonh; g0@& fxfjjkt 'kekZ iz/kkukpk;Z vk0t0fc0gk0ls0 Ldwy Qjhnuxj esjB 14&3&72 " 4. Instead of the Committee of Management accepting the resignation, the resignation was placed before the General Body of the Institution and the General Body in its meeting held on 26-3-1972 accepted the resignation by its resolution No.3. Consequent upon the acceptance of the resignation of the petitioner, the Committee of Management recommended Attar Singh for appointment as officiating Principal and sent the proposal to the Deputy Director of Education. On 5-10-1974 the Deputy Director of Education rejected the proposal on the ground that it was doubtful whether there was a vacancy in the office of the Principal and further on the ground that the resignation of the petitioner having not been accepted by the Committee of Management but by the General Body of the Institution by its resolution No. 3, it was irregular. On 10-11-1974 the District Inspector of Schools directed that one Anand Kripal Sharma would work as a temporary Principal. 5. At this stage it is necessary to mention that the State Government issued the U.P. Removal of Difficulties Order, 1975 and by its notification dated 18-8-1975 stayed fresh appointments in aided institutions in the State. On 30-9-1975 Ram Swarup Pal the respondent No. 5, who was the senior most teacher in the institution, was appointed as the officiating Principal under the orders issued by the District Inspector of Schools, a copy of which has been filed as Annexure 5 to the counter-affidavit filed by Ram Swarup Pal. The officiating appointment of Ram Swarup Pal was directed to be effective for six months or till a permanent appointment was made. 6. Thereafter on 6-6-1976 the Committee of Management of the Institution held a meeting at which Giriraj Sharma, the Principal, who had become the Manager consequent upon his resignation, was present. The officiating appointment of Ram Swarup Pal was directed to be effective for six months or till a permanent appointment was made. 6. Thereafter on 6-6-1976 the Committee of Management of the Institution held a meeting at which Giriraj Sharma, the Principal, who had become the Manager consequent upon his resignation, was present. It was resolved that since the resignation of Giri Raj Sharma had been accepted by the General Body instead of the Committee of Management, it was not legal and it was further r6J solved that the resignation of Giriraj Sharma be not accepted. It was also resolved that the petitioner be treated as on leave without pay from 15-3-1972 to 30-6-1976 and he be appointed as Principal to work from 1-7-1976 and information in this regard be sent to the District Inspector of Schools. It was further resolved that till the election of next Manager Raj Singh would function as a Manager. 7. On 25-7-1976 the petitioner asked for the return of his letter of resignation and on 31-10-1976 the Committee of Management held another meeting at which Giriraj Sharma was not present. It was resolved that Giriraj Sharma was working as a Principal from 1-7-1976 and it was further resolved that the resignation of the petitioner had been accepted from the post of Manager. 8. On 26-7-1976 Giriraj Sharma filed a Civil Suit being Suit No. 815 of 1976, Giriraj Sharma v. Managing Committee and others, in which the respondent No. 5 was also a defendant, and sought an injunction restraining the defendants from interfering with the petitioners working as a Principal. On 27-7-1976 the Munsif granted a temporary injunction restraining the reversion of the petitioner from the office of the Principal. The interim injunction order was, however, vacated by the trial Court on 7-9-1976. The petitioner filed an appeal against the order vacating the injunction and the same was dismissed by the Civil Judge by his order dated 30-10-1976 a copy of which has been filed as Annexure 11 to the counter-affidavit filed by Ram Swarup Pal. 9. It may be added here that the suit of the petitioner was dismissed in default on 13-4-1978 and no steps were taken by the petitioner to get the suit revived. 10. 9. It may be added here that the suit of the petitioner was dismissed in default on 13-4-1978 and no steps were taken by the petitioner to get the suit revived. 10. On 4-3-1977 the District Inspector of Schools passed an order, a copy of which is Annexure 8 to the writ petition and which is impugned in the writ petition that he could not recognise the petitioner as a Principal. This order states, inter alia, that the question of accepting Giriraj Sharma as Principal had been under consideration. It went on to add that the question as to whether Giriraj Sharma was an M. A., was in dispute in a Court of law and tip the matter was finally decided by the Court, it was not possible to accept Giriraj Sharma as Principal. 11. The Committee of Management through Raj Singh purported to have preferred an appeal before the Deputy Director of Education on 10-3-1977. The learned counsel for the petitioner has been unable to show under what provision this appeal has been filed. The appeal filed by the Committee of Management was dismissed by the Deputy Director of Education 1 Region, Meerut, by his order dated 31-3-1979 which has been filed an Annexure 12 to the writ petition. This order is also impugned in the writ petition. The order of the Deputy Director of Education stated that there is no reason to interfere with the order of the District Inspector of Schools dated 4-3-1977. 12. In this writ petition, the petitioner questions the validity of the order passed against him by the District Inspector of Schools dated 4-3-1977 and that of the Deputy Director of Education dated 31-3-1979 on the following grounds: (a) It is submitted that the petitioner was approved for appointment as a Principal by the Deputy Director of Education by his order dated 30-9-1969 and the approval given to the petitioners appointment could not be set aside by the District Inspector of Schools by his order dated 4-3-1977. (b) It is then submitted that if the authorities thought that the petitioners appointment was made in contravention of the provisions of the U.P. Intermediate Education Act (hereinafter referred to as `the Act') then they could have only referred the matter to the State Government which alone was competent to cancel the appointment of the petitioner as provided under Section 16-E (10) of the Act. (c) The next argument is that since the petitioners resignation had not been accepted by the Committee of Management which alone was competent to accept his resignation but by the General Body of the Institution, the resignation had not been validly accepted and the petitioner continues to be the Principal of the College. (d) Lastly, it is submitted that an order adverse to the petitioner has been passed by the District Inspector of Schools without affording the petitioner any opportunity of showing cause against the making of the order dated 4-3-1977. 13. On behalf of the respondent No. 5, Ram Swarup Pal, it is contended, inter alia, that the petitioner was not qualified to be appointed as a Principal when he was appointed as such in the year 1969. It is submitted that the petitioner had falsely claimed that he had got an M. A. (Mathematics) degree from the Agra University when in fact he had not any such degree at that time. 14. The next submission on behalf of the respondent is that there is no provision under the Act which requires that a resignation by a Principal should be accepted. It is submitted that the resignation submitted by the petitioner fully complied with the requirement of Regulation 29 of Chapter III of the Regulations framed under the Act. 15. It is then urged that no writ should be issued which will revive an illegality inasmuch as a person who is not qualified for appointment will be reinstated in his office. 16. It is also submitted that in any way after the acceptance of his resignation by the General Body, the petitioner was elected as a Manager of the Institution and it must be deemed that the resignation of the petitioner had been accepted by the Committee of Management if the acceptance is held to be required. 17. The learned counsel has placed reliance on Regulation 5 of Chapter III of the Regulations which provides that member of the teaching staff or the Principal or Headmaster shall act as an office-bearer of the Committee of Management of any recognised institution. It is submitted that once the petitioner was elected a Manager of the Institution, it must be held that his resignation from the office of the Principal has been accepted. 18. It is submitted that once the petitioner was elected a Manager of the Institution, it must be held that his resignation from the office of the Principal has been accepted. 18. It is further urged that the petitioner obtained an interim order from this Court by concealing the fact that he had filed a suit in which the respondent No. 5 was a party and in which he had prayed for an injunction restraining the defendants from interfering with the functioning of the petitioner as a Principal of the College and the same had been dismissed. It should be held that the petitioner has not come with clean hands and is not entitled to any relief under Article 226 of the Constitution of India. 19. In this connection reliance is placed upon a decision of a Full Bench of this Court in the case of Asiatic Engineering Co. v. Achhru Ram, AIR 1951 All 746 . 20. It is also urged that the petitioner had, in the writ petition, falsely urged in paragraph 24 of the writ petition that he was still holding the post of Principal and functioning as Principal on the date of the institution of the petition when in fact he was not holding the post and thereby succeeded in getting an interim order from this Court which runs as follows; ".......... Until further orders the operation of the order of the Distt. Inspector of Schools dated 4-3-1977 and the order dated 31-3-1979 of the Deputy Director of Education shall remain suspended and the respondents will not interfere with the petitioner functioning as Principal of the College." 21. It is submitted that this false representation led to the making of the interim order dated 12-4-1979 and the petitioner is thereby precluded from getting any relief under Article 226 of the Constitution of India. 22. The Act and the Regulations framed under the Act govern the appointment an, conditions of service of the teachers. In Chapter III of the Regulations framed under the Act, there are provisions regarding resignation. The relevant regulations are 29, 26 and 30 which run as follows: "29. 22. The Act and the Regulations framed under the Act govern the appointment an, conditions of service of the teachers. In Chapter III of the Regulations framed under the Act, there are provisions regarding resignation. The relevant regulations are 29, 26 and 30 which run as follows: "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. 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. 30. No employee shall be allowed to resign if disciplinary proceedings are pending against him unless specifically permitted by the Managing Committee to do so." 23. In the case of Shivraj Singh v. Shri Devji Mal Asha Ram Paliwal, 1982 UPLBEC 476 : (1982 All LJ 1012) Regulation 29 came up for interpretation before a Division Bench of this Court. In paragraph 12 of the judgment, the law is explained as follows: "12. Now what would be the situation in case of 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 paragraph 12 of the judgment, the law is explained as follows: "12. Now what would be the situation in case of 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 Regulation 29 read with Regulation 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." 23-A. This case is an authority for the proposition that where an employee does not either give three months notice or make payment of three months pay in lieu thereof, his resignation could not be treated as a valid resignation before the expiry of three months from the date of lodging of the resignation letter itself. It was further held that it would be deemed to be ineffective before the expiry of three months from the date on which the resignation letter was lodged. 24. In the present case the resignation letter was dated 15-3-1972 and would become operative three months thereafter in the month of June, 1972. It would not be rendered invalid under the provisions of Regulation 29 (1) of the Regulations which prohibits the acceptance of a notice of resignation which expires in the months of January, February or March. The requirement of three months` notice or pay in lieu thereof has been held to be mandatory in view of Regulation 29 read with Regulation 26 of the Regulations framed under the Act. However, the Division Bench, referred to above, does not say that the resignation without giving three months pay in lieu of notice is invalid. On the contrary, it is clear that such a resignation would be valid on the expiry of three months from the date when it is tendered to the management. ' 25. However, the Division Bench, referred to above, does not say that the resignation without giving three months pay in lieu of notice is invalid. On the contrary, it is clear that such a resignation would be valid on the expiry of three months from the date when it is tendered to the management. ' 25. The argument of the learned counsel for the petitioner that it was the General Body of the Institution which accepted the resignation and not the Committee of Management who was the employer of the petitioner, who was a Principal of the College, and consequently the acceptance was bad particularly as if was accepted on 26-3-1972 which was within three months of the date of the lodging of the resignation. 26. The right given to an employee to resign is subject only to the conditions specified in Regulations 29 and 30 of the Regulations. Under Regulation 30 it is expressly provided that an employee shall not be allowed to resign if any disciplinary proceeding is pending against him unless specifically permitted by the Committee of Management to do so. There is no authority in the Committee of Management or any other body to reject the resignation of an employee whose resignation is in accordance with Regulation 29 and is not contrary to the provisions of Regulation 30. Regulation 29 gives an unfettered right to an employee to resign by giving a notice in accordance with the provisions thereof. The petitioner did tender such a resignation. There was no disciplinary proceeding pending against him. The resignation, therefore, became effective immediately on the expiry of three months from the date it was given to the Manager of the Institution. There is therefore, nothing in the case of Shivraj Singh (supra) which will support the contention of the petitioner that the resignation was not validly accepted. 27. Another decision referred by the learned counsel for the petitioner is Kumari Rama Chauhan v. Committee of Management, Chironji Devi Girls Intermediate College, Rural Kanpur, 1983 U.P. Local Bodies and Educational Cases 721. In that case, a teacher had sent a resignation under registered cover dated 25-6-1976 and it was accepted by the Committee of Management on 7-7-1976. Three months notice was not given nor three months pay was tendered with the resignation. In that case, a teacher had sent a resignation under registered cover dated 25-6-1976 and it was accepted by the Committee of Management on 7-7-1976. Three months notice was not given nor three months pay was tendered with the resignation. The petitioner reported for duty as soon as the Institution opened in July, 1976 after the vacation but was not allowed to join. In these circumstances, it was held that the resignation was not valid as neither three months notice has been given nor three months pay in lieu thereof was tendered. It was further held that before the expiry of three months the petitioner had withdrawn her resignation. It was further found as a fact that the Committee of Management had not waived the claim to notice under Regulation 29 (iv). Thus, this case is of no help or assistance to the petitioner. 28. The next decision relied upon by the learned counsel for the petitioner is in the case of Raj Kumar v. Union of India, AIR 1969 SC 180 : (1969 Lab IC 310). The appellant, before the Supreme Court, belonged to the Indian Administrative Service. The appellant submitted his resignation on 25-8-1964. The State Government to whom he submitted the resignation, recommended the acceptance. On 31-10-1964 the Government of India accepted the resignation. After the order of acceptance of the resignation had been made but before its communication the appellant wrote a letter dated 27-11-1964 withdrawing his resignation, in paragraph 5 of the judgment of the Supreme Court it was observed as follows: "5. Our attention was invited to a judgment of this Court in State of Punjab v. Amar Singh Harika, AIR 1966 SC 1313 in which it was held that an order of dismissal passed by an authority and kept on its file without communicating it to the officer concerned or otherwise publishing it did not take effect as from the date on which the order was actually written out by the said authority; such an order could only be effective after it was communicated to the officer concerned or was otherwise published. The principle of that case has no application here. Termination of employment by order passed by the Government does not become effective until the order is intimated to the employee. The principle of that case has no application here. Termination of employment by order passed by the Government does not become effective until the order is intimated to the employee. But where a public servant has invited by his letter of resignation determination of his employment, his services normally stand 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 conditions of his 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. Till the resignation is accepted by the appropriate authority in consonance with the rules governing the acceptance, the public servant concerned has locus poenitentiae but not thereafter." 29. On the basis of this, it is argued that until the letter of resignation is accepted by the employer, it cannot be operative. The Supreme Court observed that their attention has not been invited to any statutory rule under which the resignation by a member of the Indian Administrative Service - specially on the question of the date on which - would become effective. It is also pointed out that there were no rules made under Article 309 of the Constitution governing the resignation. 30. In the instant case, there are regulations governing the resignation by an employee of an Institution. Thus, the principle enunciated by the Supreme Court will have no application in the instant Case. In any case, the so-called withdrawal of the resignation was made long after the expiry of three months of the date of tendering of the resignation, i.e. 15-3-1972. 31. The next decision relied upon by the learned counsel for the petitioner is in the case of Raj Narain v. Smt. Indira Nehru Gandhi, AIR 1972 SC 1302 and paragraph 22 of the judgment is relied upon. In that case Sri Yashpal Kapoor tendered his resignation on January 13, 1971. The President accepted his resignation on 25-1-71 and gazetted it on 2-6-1971. The order of the President showed that he accepted the resignation of Sri Yashpal Kapoor with effect from January 14, 1971. The trial court had come to the conclusion that Sri Yashpal Kapoor's resignation became effective as from 14-1-1971. The Supreme Court observed that the conclusion of the trial court required re-examination. The order of the President showed that he accepted the resignation of Sri Yashpal Kapoor with effect from January 14, 1971. The trial court had come to the conclusion that Sri Yashpal Kapoor's resignation became effective as from 14-1-1971. The Supreme Court observed that the conclusion of the trial court required re-examination. The Supreme Court went on to say that:- "The question as to when a Government servants resignation becomes effective came up for consideration by this Court in Raj Kumar v. Union of India, (1968) 3 SCR 857 : AIR 1969 SC 180 : (1969 Lab IC 310). Therein this Court ruled that when a public servant has invited by his letter of resignation the determination of his employment, his service normally 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 statutory rule governing the conditions of his 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. Hence the question as to when Yashpal Kapoor's resignation became effective will have to be examined with reference to his conditions of service. This examination having not been done, the conclusion of the learned trial Judge that it became effective on January 14, 1971, has to be ignored." This case does not really decide anything one way or the other. 32. Another decision relied upon by the learned counsel for the petitioner is in the case of Union of India v. Gopal Chandra Misra, AIR 1978 SC 694 : (1978 Lab IC 660). That case is an authority for the proposition that where a Judge of a High Court resigns and says in his letter of resignation that the resignation would be effective from some future date, he can, before that date arrives, withdraw his resignation, it is further an authority for the proposition that after the resignation becomes operative on the expiry of the date mentioned in the resignation, there can be no withdrawal. This case is also an authority for the proposition that- "In the case of a Government servant or functionary who cannot, under the conditions of his service/or office, by his 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 by a future date the act of resiging 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." 33. This case cannot help the petitioner in the instant case the only fetters on the power of an employee to resign are those which are mentioned in Regulations 29 and 30 otherwise the right to resign is not hedged in by any other condition. It must accordingly be held that the resignation of the petitioner from the office of the Principal became operative on the expiry of three months from the date of lodging of the resignation, i.e. 15-3-1972. 34. Once it is held that the petitioner had validly resigned he could not be made a Principal again by the Managing Committee by passing a resolution rejecting his resignation as it did by its resolutions dated 6-6-1976 and 31-10-1976. The office of the Principal being vacant could only be filled by fresh appointment under the procedure laid down by law which has patently not been done. 35. The office of the Principal being vacant could only be filled by fresh appointment under the procedure laid down by law which has patently not been done. 35. As regards the question as to whether the petitioner was qualified to be appointed as Principal when he was appointed in 1969 it is admitted that the petitioner did not, at the time of his appointment, possess the M. A. degree in Mathematics. It is necessary to add here that the petitioner was convicted by the trial Court and his appeal to the appellate Court was dismissed in a case in which it was alleged that he wrongly represented that he had got an M. A. degree in Mathematics from the Agra University. The petitioners revision is pending in this Court. 36. The petitioner possessed J.A.V. (Junior Anglo Vedic) degree from the Punjab which was recognised as equivalent to C.T. (Certificate of Teaching) in Uttar Pradesh in the year 1952 but was not recognised in the year 1969. A person who was a C.T. and having 5 years' experience as Head Master of a Junior High School, was qualified to be appointed as a Principal of the High School. However, the petitioner was not a C.T. though he had J.A.V. from Punjab which was not recognised in Uttar Pradesh in 1969 and therefore. The petitioner could not have been appointed as a Principal. 37. The petitioner's argument is that even if he was appointed against the provision of the Act and Regulations inasmuch as he did not possess the qualification mentioned in Appendix to Section 16-E of the Act, he could only be removed from the office of the Principal by the State Government and not by any other authority. It is unnecessary to decide this question as it has been held that the petitioner had resigned from the office of the principal and there sign at on has become operative. 38. The Petitioner appears to have factually made a wrong statement when he stated that he was holding the office of the Principal on the date of the institution of the writ petition and succeeded in obtaining ad interim order from this Court whin in fact, the petitioner was not holding the office of the Principal. On this ground alone, the petition under Article 226 of the Constitution of India is liable to be rejected. 39. On this ground alone, the petition under Article 226 of the Constitution of India is liable to be rejected. 39. In this view of the matter, the petitioner is entitled to no relief under Article 226 of the Constitution of India. 40. The petition accordingly fails and is dismissed with costs.