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2001 DIGILAW 94 (KER)

Hyderali v. State of Kerala

2001-02-08

G.SASIDHARAN, K.S.RADHAKRISHNAN

body2001
Judgment :- K.S. Radhakrishnan, J. Common question arises in these appeals. The question is when can a letter of resignation be validly withdrawn and what are the legal consequences flows from its withdrawal. 2. We deal with the facts as available in O.P. No. 16993 of 1999 against which W.A. No. 65 of 2001 was filed by the Manager. Fifth respondent, V.V. Ditto, was working as Assistant Teacher in the A.M.U.P. School, Vettom, Tirur. He was appointed as trained Graduate Teacher (U.P. school) on 5.8.1993 and his appointment was approved. He tendered a letter of resignation for personal reasons on 31.5.1996 before the Manager. Even though the letter of resignation bears the date 1.5.1996 it was actually submitted on 1.6.1996. Manager accepted the resignation on 1.6.1996 and forwarded the same on 3.6.1996 to the Assistant Educational Officer for approval. On 3.6.1996 Ditto applied for half pay leave for 13 days and casual leave for 10 days which was received by the Headmaster on 15.6.1996. On the same day he submitted a representation withdrawing his resignation as well. The Manager forwarded the letter of withdrawal of resignation also to the Assistant Educational Officer. On 25.7.1996 Ditto intimated the Assistant Educational Officer, Tirur of his withdrawal of resignation and sought a direction to the Headmaster to permit him to sign the attendance register and join duty. The Assistant Educational Officer did not accede to the said request and accepted the resignation on 2.11.1996. 3. Petitioner in O.P. No. 8400 of 2000 who is the appellant in W.A. No. 3364 of 2000 was appointed as Lower Primary School Assistant in the same school on 1.7.1998 in a retirement vacancy. That appointment was approved by the educational authorities. He is the junior-most teacher in the school. Apprehension of the teacher is that if Ditto is allowed to join duty after accepting his withdrawal of resignation he will be thrown out from the school. He therefore sought a writ of mandamus directing the respondents not to terminate his service pursuant to Government Order dated 10.6.1999. 4. Against the order of the Assistant Educational Officer dated 2.11.1996 approving the letter of resignation with effect from 1.5.1996 the matter was taken up by Ditto before the District Educational Officer, Tirur who dismissed his appeal. Ditto took up the matter again before the Government and the Government vide order dated 10.6.1999 allowed the revision. 4. Against the order of the Assistant Educational Officer dated 2.11.1996 approving the letter of resignation with effect from 1.5.1996 the matter was taken up by Ditto before the District Educational Officer, Tirur who dismissed his appeal. Ditto took up the matter again before the Government and the Government vide order dated 10.6.1999 allowed the revision. While allowing the revision Government held as follows: "Sri. Ditto has submitted an explanation letter to the A.E.O., Tirur. He has stated all the facts clearly in the letter. But the A.E.O has not properly considered and accepted the resignation on 2.11.1996. And the D.E.O. has relied on the findings of the A.E.O., Tirur. The action of the Headmaster/ Manager and the Department staff is gross violation of all principles of natural justice. Resignation is not complete until it is accepted by the proper authority and before such acceptance an employee can change his mind and withdraw the resignation. In this case, the petitioner has withdrawn his resignation before which is accepted by the concerned authorities i.e., the aeo, has accepted his resignation on 2.11.1996. Though the Manager is the appointing authority the approval of appointment and all other Monetary benefits to the teachers have been given by the Government, here the A.E.O. The hasty action of the Headmaster the Manager and the aeo shows that they have malafide intention to oust the petitioner from the school. The petitioner has withdrawn his resignation before it is accepted by the competent authority and informed it to A.E.O. within the time and he has also applied for leave from 1.6.1996 to 16.6.1996. Even though all such actions are done by the petitioner, it is found that natural justice has not been taken into consideration, in the case of Sri. Ditto. The Revision Petition deserves consideration". 5. Counsel for the appellant Sri. T. Krishnanunni as well as Sri. P. Chandrasekhar submitted that it is the Manager who has to accept the letter of registration and once Manager accepts the letter of resignation, it will come into effect. Counsel submitted that approval of A.E.O. is necessary only for relieving the teacher and not for accepting the resignation of the teacher. Counsel submitted since Ditto was a permanent teacher, question of application of R.48 or 53 of Chapter XIVA of the Kerala Education Rules does not arise. Counsel submitted that approval of A.E.O. is necessary only for relieving the teacher and not for accepting the resignation of the teacher. Counsel submitted since Ditto was a permanent teacher, question of application of R.48 or 53 of Chapter XIVA of the Kerala Education Rules does not arise. Counsel submitted that the expression 'term of appointment' in R.48 as well as in R.53 would indicate that those provisions would be applicable only to cases of persons who have been appointed acting, temporary or on probation. 6. Counsel for the appellant in W.A. No. 3364 of 2000 has placed reliance on the decision of the Supreme Court in Raj Kumar v. Union of India (AIR 1969 SC 180) and submitted that where a public servant has invited by his letter of resignation determination of the employment, his services normally stand terminated from the date on which the letter of resignation is accepted by the appropriate authority. Counsel appearing for Ditto, Sri. K.K. Dinesan on the other hand submitted that R.48 or 53 of Chapter XIV-A would apply irrespective of the nature of appointment, whether it is temporary or permanent. Counsel submitted, the expression 'teacher' would take in all the teachers including acting, temporary, probationary and regular. Counsel submitted before the teacher is relieved jural relationship between the employer and employee stands and consequently the teacher can withdraw his letter of resignation before he is relieved. 7. In the above factual scenario we will examine the legal provisions in the Kerala Education Rules and test the action of the Assistant Educational Officer in according approval to the letter of resignation. 8. The crux of the argument of the teacher Ditto is that unless and until A.E.O. gives his approval to the letter of resignation it would not come into effect and consequently he can withdraw the same. Counsel on either side placed their interpretation on the R.48 and R.53 of Chapter XIV-A. We have to examine the scope of those provisions to resolve the controversy in this case. We may for easy reference extract the above provisions. Discharge, Relief and Resignation: 48. No teacher shall be relieved before the expiry of the term of appointment without the previous approval of the Educational Officer. xxx xxx xxx xxx 53. A teacher shall not himself terminate his service before the expiry of the term of his appointment without the permission of the Educational Officer. Discharge, Relief and Resignation: 48. No teacher shall be relieved before the expiry of the term of appointment without the previous approval of the Educational Officer. xxx xxx xxx xxx 53. A teacher shall not himself terminate his service before the expiry of the term of his appointment without the permission of the Educational Officer. Ditto is a permanent teacher on the roll of the school. He was appointed by the Manager and his appointment was approved. Salary is being paid to the teacher by the Government in accordance with S.9 of the Kerala Education Act. Under S.11 of the Act it is the Manager who is to appoint teacher in an aided school. Every appointment made by the Manager is to be approved by the educational authorities. R.7 of Chapter XIV-A says that as soon as a teacher is appointed in a school, the Manager shall immediately issue an appointment order to the teacher in Form 27 and the appointment shall be effective from the date on which the teacher is admitted to duty provided the appointment is duly approved. R.8(2) of Chapter XIV-A says that on receipt of the appointment order and other records mentioned in sub-r.(1) the educational authority may approve the appointment if it is in accordance with the provisions of the Act, the Rules and orders issued by the Government or the Director from time to time. If approval of appointment is declined for any reason the order declining approval showing reasons thereof shall be communicated to the teacher through the Manager. 9. Appointment made by the Manager will be effective only when it is approved. When a teacher retires on superannuation evidently no approval of the educational authority is necessary for superannuation, since date of superannuation is statutorily fixed. But question may arise between the date of appointment and the date of superannuation suppose a teacher is discharged; relieved or resigned from service any permission from the educational authority is necessary for such relief, resignation and discharge. Question may also arise whether the educational authority has got the power to refuse approval for discharge, relief and registration. 10. Kerala Education Act is enacted to provide for the better organisation and development of educational institutions in the State providing a varied and comprehensive educational service throughout the State. Question may also arise whether the educational authority has got the power to refuse approval for discharge, relief and registration. 10. Kerala Education Act is enacted to provide for the better organisation and development of educational institutions in the State providing a varied and comprehensive educational service throughout the State. Government have got the power to regulate the primary and other stages of education and courses of institutions in Government and private schools. Government may for the purpose of providing facilities establish and maintain schools, permit any person or body of persons to establish and maintain aided schools, recognise any school established and maintained by any person or body of persons. Government also have got power under S.14 of the Act to take over management of the school for a limited period in public interest for a period not exceeding five years if it appears to the Government that the Managers of any aided schools neglected to perform any of the duties imposed by or under the-Act or the rules. Power is also vested on the Government to take over an aided school for standardising the general education in the State or for improving the level of literacy in any area or in any aided school in public interest or in such contingencies. Power is also vested on the State Government as well as the authorities to take over the management of the school in case of mismanagement or maladministration. For the interest of the students, various provisions also have been enacted in the statute. 11. All the above mentioned provisions would indicate that it is the concern of the Government and the educational authority to see that aided schools are properly maintained and managed for providing better educational service in the State of Kerala. In the aforementioned background we have to examine the scope of Rr. 48 and 53 of Chapter XIV-A of the Kerala Education Rules. Suppose a teacher is discharged from service during the middle of the academic year or relieved of his duties by the Manager on resignation of the teacher that would adversely affect the interest of the students and consequently affect the educational system as such. We cannot approve the contention of the counsel for the appellants that Rr. 48 and 53 of Chapter XIV-A -would apply only in the case of teachers who have been appointed for a particular term. We cannot approve the contention of the counsel for the appellants that Rr. 48 and 53 of Chapter XIV-A -would apply only in the case of teachers who have been appointed for a particular term. Emphasis has been made by the counsel for the appellants on the expression "term of appointment" appears in Rr. 48 and 53 of Chapter XIV-A of the K.E.R. R.48 was later substituted by notification in the gazette dated 2.2.1965. Prior to 2.2.1965 Rr. 48 and 53 stood as follows: 48. Discharge, Relief and Resignation Acting, temporary and probationary teachers appointed in any vacancy shall not be relieved before the expiry of their term of appointment without the previous approval of the Educational Officer. 53. A teacher shall not himself terminate his service before the expiry of his appointment without the previous approval of the Educational Officer. We may indicate that the term'acting, temporary and probationary teachers' is absent in the present R.48 which we have extracted earlier. Instead the rule making authority has used the expression 'no teacher'. We are of the view that the expression 'no-teacher' is very wide which takes away not only acting, temporary and probationary teachers. The word 'teacher' has been defined in R.2(7)(a) of the Kerala Education Rules, 1959 as teacher includes the headmaster. Therefore, teacher is inclusive definition which takes headmaster as well. The rule making authority has intentionally omitted the words "acting, temporary and probationary" in the present R.48, instead they used the expression "teacher". We are therefore of the view that the word "teacher" has to be given the widest meaning which takes in not only permanent teacher but also acting, temporary and probationary teacher. Legislature has also used the expression "no teacher" which makes the statute imperative. By connoting the term in the negative form statute has given clear interpretation to the provisions enacted as mandatory. 12. The Apex Court in M. Pentiah v. Muddala Veeramallappa & Ors. (AIR 1961 SC 1107) held that where the language used by the Legislature is negative, that is, the act to be done must be done in the manner prescribed and in no other manner, the requirement would be construed as imperative. 12. The Apex Court in M. Pentiah v. Muddala Veeramallappa & Ors. (AIR 1961 SC 1107) held that where the language used by the Legislature is negative, that is, the act to be done must be done in the manner prescribed and in no other manner, the requirement would be construed as imperative. We are of the view that the statue has made it mandatory that no teacher shall be relieved either on discharge, relief or resignation before the expiry of the term of appointment without the previous approval of the Assistant Educational Officer. We are of the view we cannot restrict the term of appointment of teachers who are only acting, temporary or probationary. 'Teacher' as we have already indicated takes in all teachers, acting, temporary or probationary. In other words permanent teacher or an acting, temporary and probationary teacher has to be discharged from service or to be relieved from service or to be resigned from service on getting previous approval of the educational authorities. In other words, discharge, relief and resignation would be effective only on approval of the educational Authorities. So long as no previous approval is obtained from the educational authorities, discharge, relief or resignation would not come into effect. We are of the view that mere fact that the Manager is the appointing authority does not mean that once he accepts the letter of resignation,- it would come into effect. As the appointing authority he may receive the letter of resignation and give his approval, but that approval has no legal consequence unless and until the educational authority grants approval to the resignation of a teacher. Same position will apply in the case of discharge and relief of a teacher. 13. R.53 also stipulates that teacher shall not himself terminate his service without the permission of the Educational Officer. R.53 also used the expression 'teacher' and not 'acting, temporary and probationer'. Therefore 'teacher' would take in all teachers, permanent, acting, temporary and probationer. Such teachers shall not themselves terminate their service before the expiry of the term of their appointment. If a teacher resigns or gets relief from duty as and when he likes or as and when the Manager wishes that will affect the smooth functioning of the school and would affect the education of the children. State has got constitutional obligation to provide better organisation and development of the educational institution. If a teacher resigns or gets relief from duty as and when he likes or as and when the Manager wishes that will affect the smooth functioning of the school and would affect the education of the children. State has got constitutional obligation to provide better organisation and development of the educational institution. The object and purpose of the educational system would be defeated if teachers on their volition or on the volition of the Manager are discharged, relieved or tendered resignation as and when they wish. We have indicated there is no provision in the Kerala Education Act enabling the Manager to accept the letter of resignation. Only stipulation provided in the case of discharge, relief and resignation is the approval by the educational authority. Therefore, discharge, relief and resignation would come into effect when approval is granted by the educational authority. 14. We may in this connection refer to the decision of the Apex Court in Balram Gupta v. Union of India (1987 Supp. SCC 228) "It is true that he was resigning and in the notice for resignation he had not given any reason except to State that he sought voluntary retirement. We see nothing wrong in this. In the modern age we should not put embargo up on peoples choice or freedom. If, however, the administration had made arrangements acting on his resignation or letter of retirement to make other employee available for his job, that would be another matter but the appellant's offer to retire and withdrawal of the same happened in so quick succession that it cannot be said that any administrative set up or arrangement was affected. The administration has now taken a long time by its own attitude to communicate the matter. For this purpose the respondent is to blame and not the appellant." In J.N. Srivastava v. Union of India and Ann (1998 (9) SCC 559) the Apex Court reversed the decision of the Central Administrative Tribunal and held as follows: "It is now well settled 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 poenitentiae to withdraw the proposal for voluntary retirement. The said view has been taken by a Bench of this Court in the case of Balram Gupta v. Union of India. The said view has been taken by a Bench of this Court in the case of Balram Gupta v. Union of India. In view of the aforesaid decision of this Court it cannot be said that the appellant had no locus standi to withdraw his proposal for voluntary retirement before 31.3.1990". Again the Apex Court in Power Finance Corporation Ltd. v. Pramod Kumar Bhatia (1997) 4 SCC 280) held that the resignation in spite of its acceptance, can be withdrawn before the effective date. The court further held: "It is now well settled legal position that unless the employee is relieved of the duty, after acceptance of the offer of voluntary retirement or resignation, jural relationship of the employee and the employer does not come to an end. Since the order accepting the voluntary retirement was a conditional one, the conditions ought to have been complied with. Before the conditions could be complied with, the appellant withdrew the scheme. Consequently, the order accepting voluntary retirement did not become effective. Thereby no vested right has been created in favour of the respondent. The High Court, therefore, was not right in holding that the respondent has acquired a vested right and, therefore, the appellant has no right to withdraw the scheme subsequently". The Apex Court in Andhra Bank v. Sudha Nagaraj (1999 SCC (L & S) 793) upheld the claim of a bank employee holding that the employer-employee relationship between the Bank and the employee would come to an end only when relieving order was issued and before the said date employee is entitled to withdraw his resignation. In that case withdrawal letter was written by the employee before she was relieved. The Apex Court held that the resignation did not come into effect that she was deemed to have been continued in service. The Apex Court however, denied backwages. 15. In this case the teacher withdrew the resignation letter before the approval was granted by the Assistant Educational Officer. Even though he tendered his resignation on 31.5.1996 he withdrew the same on 15.6.1996. Letter of withdrawal was also forwarded to the educational authority by the Manager. We have held that letter of resignation of a teacher would come into effect only when appeal is granted by the educational authority. Even though he tendered his resignation on 31.5.1996 he withdrew the same on 15.6.1996. Letter of withdrawal was also forwarded to the educational authority by the Manager. We have held that letter of resignation of a teacher would come into effect only when appeal is granted by the educational authority. We are of the view that teacher has got locus poenitentiae to withdraw the letter of resignation which he did before the educational authority granted approval to the letter of resignation. For the reasons indicated herein before we confirm the judgment of the learned single judge and uphold the Government Order. The teacher Ditto will be reinstated forthwith. He will have continuity of service and is entitled to all service benefits except salary for the period he was out of service.