Research › Search › Judgment

Patna High Court · body

2002 DIGILAW 690 (PAT)

Manjubala Sinha v. State Of Bihar

2002-07-01

AFTAB ALAM

body2002
Judgment Aftab Alam, J. 1. This writ petition relates to the controversy regarding the acceptance of the petitioners request for voluntary retirement by the respondents even though according to her case, she had withdrawn her request before her retirement was made effective by getting her relieved from her post. 2. The petitioner held the post of Headmistress in Arya Kanya Uchch Vidyalaya, Khagaria. It is an undisputed position that Arya Kanya Uchch Vidayalaya (hereinafter referred to as the school) is a minority institution and this fact is admitted by the petitioner, the Government authorities (respondent No. 2 and 3) and the Managing Committee of the School respondent No. 4. 3. In order to appreciate the petitioners grievance and to see whether or not she is entitled to any relief by this Court, it would be necessary to take note certain material facts and circumstances. But for this one will have to advert also to the counter-affidavit filed by respondent No. 4 because I feel constrained to observe that the petitioner has stated the facts rather selectively and all the relevant facts were not stated in the writ petition filed on her behalf. 4. The petitioner, forced by her personal circumstances, made an application dated 15.12.1999 (Annexure-P/1 to the counter-affidavit of respondent No. 4) for being allowed to take voluntary retirement w.e.f. July, 2000. Her application was considered by the Managing Committee of the School in its meeting of 18.12.1999. The minutes of the meetings are at Annexure-1 from which it appears that her request was accepted unanimously and the Secretary was directed to allow her to take voluntary retirement from service. It was further resolved by the Managing Committee that on her retirement she would be entitled to all the terminal benefit e.g. pension etc. It was, however, added that the petitioner will be relieved from service only after the decision of the Managing Committee was approved by the Department and the Secretary was asked to take necessary action for obtaining Departmental approval in that connection. On 20.5.2000 the Secretary wrote a letter (Annexure-P/2) to the District Education Officer forwarding to him the petitioners application dated 15.12.1999 and the resolution of the Managing Committee dated 18.12.1999 and making a request for the grant of approval to the decision of the Managing Committee. On 20.5.2000 the Secretary wrote a letter (Annexure-P/2) to the District Education Officer forwarding to him the petitioners application dated 15.12.1999 and the resolution of the Managing Committee dated 18.12.1999 and making a request for the grant of approval to the decision of the Managing Committee. The D.E.O. by his letter, dated 5.6.2000 (Annexure P-3) accorded departmental approval to the decision of the Managing Committee to accept the petitioners request for voluntary retirement. He also asked for the pension papers of the petitioner, based on her service book, so that all the documents may be completed and sent to the department for appropriate action. He further gave the departmental consent for the petitioner being relieved from service of the School on July 31, 2000. On 28.7.2000 the D.E.O. also issued an office order (Annexure P-4) directing the petitioner to handover charge to the senior most teacher of the school by 5 p.m. on 31.7.2000 and further stating that she would be held responsible for failure to carry out the direction. On the following day the petitioner made an application before the Secretary of the School. In her application, a copy of which is at Annexure P/5, the petitioner stated that due to various circumstances her pension papers and other materials relating to her terminal benefits had not been completed. She, therefore, asked for some reasonable time stating that she would handover charge, after completing all her papers, by 16.8.2000. Thereafter, the Managing Committee in its meeting dated 11.8.2000 took the resolution (Annexure-2) that the petitioner could not be retired from service until payment was made of her arrear salary and other dues which remained unpaid from December, 1999. 5. The Managing Committee next met on 5.10.2000 and the minutes of that meeting are at Annexure P-7. In the meeting of 5.10.2000 the Managing Committee accepted the letter of the D.E.O. dated 5.6.2000. It further recorded that though the petitioner had made over charge to the Secretary on 11.8.2000 she had not handed over the records etc. It was further noted that the D.E.O. after granting approval to the decision of the Managing Committee to accept the petitioners request for voluntary retirement had directed her to be relieved by 31.7.2000 and the petitioner had submitted an application to be allowed to remain on earned leave till the payment of her dues. It was further noted that the D.E.O. after granting approval to the decision of the Managing Committee to accept the petitioners request for voluntary retirement had directed her to be relieved by 31.7.2000 and the petitioner had submitted an application to be allowed to remain on earned leave till the payment of her dues. In those circumstances the Managing Committee took the decision that the payment of all dues should be made to the petitioner without any delay and the date of her relieving be extended till 1.11.2000. It was further stated in that decision that in case she failed to handover charge to the Secretary by 5 p.m. on that date she would be deemed to be relieved w.e.f. 2.11.2000. The Secretary was asked to give the petitioner necessary intimation in this regard. 6. It is significant to note that in the writ petition there is no mention of the petitioners own application, dated 29.7.2000 (Annexure-P) or of the Managing Committees resolution, dated 5.10.2000 (Annexure P-7). It is also to be noted that in the petitioners rejoinder to the counter-affidavit of respondent No. 4 there is no denial of either her own application or of the resolution of the Managing Committee, dated 5.10.2000. 7. Coming back to the facts of the case, according to the petitioner at this point, her circumstances changed for the better and she decided to withdraw her request for voluntary retirement, To this end she submitted an application, dated 25.10.2000 (Annexure-3) addressed to the Secretary of the School. On 27.10.2000 she submitted a similar application (Annexure-4) to the Special Director, Secondary Education, Bihar. In this connection it is to be noted that though respondent No. 3 accepts receipt of the letter (at Annexure-4) it is denied both by respondent Nos. 3 and 4 that any letter of withdrawal of the application for voluntary retirement was ever submitted by the petitioner before the Secretary/Managing Committee of the school. 8. It seems that on 1.11.2000 the petitioner failed to relinquish charge of the school and on 20.11.2000 the D.E.O. wrote a letter (Annexure P-8) to the Director (Secondary Education), Bihar, Patna seeking instructions in the matter. The Director gave his reply by letter, dated 30.11.2000 (Annexure-5). 8. It seems that on 1.11.2000 the petitioner failed to relinquish charge of the school and on 20.11.2000 the D.E.O. wrote a letter (Annexure P-8) to the Director (Secondary Education), Bihar, Patna seeking instructions in the matter. The Director gave his reply by letter, dated 30.11.2000 (Annexure-5). In this letter it was stated that the school was a government-aided minority school and was administered by a Managing Committee which was competent to make appointments of teachers and non-teaching staff; hence, approval was granted to its decision to accept the petitioners request for voluntary retirement. On the basis of the Directors letter, the D.E.O. wrote a letter, dated 5.12.2000 (Annexure-6) pointing out to the Secretary that any further continuance of the petitioner on the post of Headmistress of the school would be in violation of the departmental directions. Thereupon the Secretary by his letter, dated 7.12.2000 (Annexure-7) relieved the petitioner asking her to submit the papers concerning her pension and other terminal dues by 15.12.2000 for being forwarded to the department. In this letter the petitioner was also directed to handover all the records and materials of the school to Smt. Prabhawati Devi, Who was stated to be the senior-most teacher of the school. 9. The petitioner then came to this Court challenging (i) the letter of the Director, Secondary Education, dated 30.11.2000 (Annexure-5) by which he granted approval to the decision of the Managing Committee to accept the petitioners application for voluntary retirement, (ii) the letter of the D.E.O., Khagaria dated 5.12.2000 (Annexure-6) asking the Secretary of the School to discontinue the petitioner as the Head Mistress of the school and (iii) letter of the Secretary dated 7.12.2000 (Annexure-7) relieving the petitioner on the basis of the direction contained in the DEO.s letter. It is stated on her behalf that the application for voluntary retirement having been withdrawn by her on October 25, 2000 there was nothing left to which the Director, Secondary Education could grant his approval and that being the position the direction of the D.E.O. to discontinue the petitioner as the Headmistress of the school and the action of the Secretary in proceeding on the basis of that direction were wholly illegal, bad and unsustainable. 10. The matter seems to have been unduly and unnecessarily complicated because the Managing Committee of the school and the D.E.O. acted in a manner which has no sanction in law. 10. The matter seems to have been unduly and unnecessarily complicated because the Managing Committee of the school and the D.E.O. acted in a manner which has no sanction in law. There is a need, therefore, to clarify certain legal issues. There was no need for the Managing Committee to make its decision on the question of the petitioners request for Voluntary retirement subject to the approval by the departmental authorities and there was no occasion for the D.E.O. to grant any such approval. It is noted above that the school is a minority Secondary School. The conditions under which a minority Secondary School is to function are laid down in the BIHAR ARAJKIYE MADHYAMIK VIDAYALAYA (PRABANDH EVAM NIYANTRAN GRAHAN) ADHINIYAM, 1981. sec. 2 (Ga) of the Act defines Minority Secondary School as follows: 2(GA). AALPSANKHYAK MADHYAMIK VIDYALAYA SE ABHIPRET HAI AISA MADHAYAMIK VIDYALAYA JISKI ASTHAPANA DHARAM ATHWA BHASHA PAR AADHARIT AALPSANKHYAK WARG DAWARA KI GAI HO TATHA JO USHKE DAWARA SANCHALIT HO TATHA JO AALPSANKHAYAK VIDYALAYA KE ROOP MAIN RAJYA SARKAR DAWARA GHOSIT EMAM MANYTAPRAPTHO. 11. sec. 18 lays down the condition for recognition of a minority school. Sec. 18 (3)(Gha) which deals with of removal, termination of service etc. of teachers of a minority school is as follows: 18(3)(GHA) VIDYALAYA SE BOARD KE ANOMODAN SE PRABANDH SAMITI VIYALAYA KE SIKCHKO KO HATA SAKEGI UNKI SEWA SAMPAT KAR SAKEGI, UNHE BARKHAST KAR SAKEGI ATHWA UNHE PADCHUT KAR SAKEGI, PRANTU PRABANDH SAMITY DAWARA KISI SIKCHAK KE VIRUDH KI GAI ANUSASHNIK KARWAI KA ANOMODAN KARTE SAMAY BOARD KEWAL, ISH BAAT KI JANCH KAR SAKEGI KI DAND KI MATRA NIRDHARIT KARNE KE PURWA UKAT PRAYOJNARTH BANAI GAI NIYAMAWALI AUR PRAKRIYA KA SAMYAK ROOP SE PALAN HUA HAI YA NAHI AUR BOARD YATHATSHTITHI ISH SAMBANDH MAIN KISHI AANYA BAAT MAIN NAHI PAREGA. 12. The opening words of the aforequoted provision, "Vidyalaya Sewa Board Ke Anomodan se...." cannot be read to mean prior approval because in that event the provision will have to be struck down as ultra vires Art. 30(1) of the Constitution. (See a bench decision of this Court in Anjuman Ahle-Hadees V/s. State of Bihar and Ors. 1985 PLJR 837, where a similar provision in sec. 24 of the Bihar State Madrasa Education Board Act, 1981 was struck down for that reason.). (See a bench decision of this Court in Anjuman Ahle-Hadees V/s. State of Bihar and Ors. 1985 PLJR 837, where a similar provision in sec. 24 of the Bihar State Madrasa Education Board Act, 1981 was struck down for that reason.). It must, therefore, be understood that the power of the Vidyalaya Sewa Board u/s. 18(3)(Gha) of the Act is to examine the decision of the Managing Committee subsequently and subject to the limitations indicated in the proviso to clause gha. 13. The second thing to note in this regard is that the power to grant approval to the decision of the Managing Committee of a Minority school rests with the Vidyalaya Sewa Board and neither the D.E.O. nor the Special Director (Secondary Education) have the competence or the authority to grant such approval. In case, therefore, any approval was required for the decision of the Managing Committee accept the petitioners request for voluntary retirement it could come from the Vidyalaya Sewa Board and not from the D.E.O. or the Special Director (Secondary Education). In fact the Special Director seemed to appreciate this position because in his letter, dated 30.11.2000 it is stated that the school was a Government aided minority school; and that it was under the control of a Managing Committee which was competent to make appointments of teachers and non-teaching staff of the school. Yet, he proceeded to accord approval to the decision of the Managing Committee to which he was not authorised. 14. This is not the end of the matter. sec. 18(3)(Gha) of the Act envisages cases of removal, termination of service etc. as a penal measure or at least cases of termination of service of a teacher at the instance of the Managing Committee. It does not cover cases of termination of service on the own initiative of the teacher concerned, as in the case of voluntary retirement. I have, therefore, no doubt in mind that the petitioners request for voluntary retirement did not come even within the purview of sec. 18(3)(Gha) of the Act. Therefore, to accept or reject his request lay solely and entirely within the purview of the Managing Committee of the school and the decision of the Managing Committee did not request any prior or subsequent approval from any other authority. 15. 18(3)(Gha) of the Act. Therefore, to accept or reject his request lay solely and entirely within the purview of the Managing Committee of the school and the decision of the Managing Committee did not request any prior or subsequent approval from any other authority. 15. In the light of the above, it is quite clear that both the Managing Committee of the School and the D.E.O. consistently acted under a completely erroneous assumption and as a result the matter got badly twisted up. 16. This being the legal position the issue of the petitioners request for voluntary retirement, its acceptance by the Managing Committee and the alleged withdrawal of the request by the petitioner must be confined between the petitioner and the Managing Committee of the School excluding from consideration all communications, directions etc. from the D.E.O. or the Special Director (Secondary Education). Proceeding on this basis one finds that the Managing Committee in its meeting on 5.10.2000 (Annexure P-7) recorded that though the petitioner had handed over charge to the Secretary on 11.8.2000 she had not given him the records of the school. The Managing Committee then fixed 1.11.2000 as the last date for her to be relieved with a further direction that payment of her dues should be made without any further delay. 17. Mr. Chittaranjan Sinha, learned Senior Counsel appearing on behalf of the petitioner submitted that it was open to the petitioner to withdraw her request for voluntary retirement any time before the date fixed for her being relieved and she actually withdrew her request by submitting an application on 25.10.2000 (Annexure-3). In support of the submission that withdrawal of a request for voluntary retirement is permissible till the date on which the employee is to be relieved Mr. Sinha relied upon a Supreme Court decision in Shambhu Murari Singh v. Project and Development of India and Anr. -. Mr. Sinha appears to be right in his legal proposition but the petitioners statement that she submitted an application, dated 25.10.2000 withdrawing her request for voluntary retirement is an issue under serious dispute. In the writ petition a typed copy of the withdrawal application, dated 25.10.2000, addressed to the Secretary of the School was enclosed as Annexure-3. -. Mr. Sinha appears to be right in his legal proposition but the petitioners statement that she submitted an application, dated 25.10.2000 withdrawing her request for voluntary retirement is an issue under serious dispute. In the writ petition a typed copy of the withdrawal application, dated 25.10.2000, addressed to the Secretary of the School was enclosed as Annexure-3. In paragraph 26 of the counter-affidavit filed by respondent No. 4 the petitioners statement was categorically denied as false and incorrect and it was stated that: The petitioner never made any application to the Managing Committee (respondent No. 4) withdrawing her request for voluntary retirement and the letter dated 25.10.2000 contained in Annexure-3 to the writ petition is a forged and fabricated one. 18. On 7.11.2001 the petitioner filed a rejoinder to the counter-affidavit of respondent No. 4. In that rejoinder there was no reference either to her withdrawal application or the denial of respondent No. 4 regarding any such application being made by her. After the hearing of the case was concluded and the judgment was reserved a supplementary affidavit was filed enclosing as annexure a photostat copy of the withdrawal application, dated 25.10.2000 which in the margin purportedly bears the signature of the Chairman of the Managing Committee as token of receipt of its copy. 19. Whether or not the petitioner submitted her application, dated 25.10.2000 before the Secretary/Managing Committee is a pure question of fact on which it is not possible for this writ Court to record a finding in her favour more so when the issue is being strongly disputed by the other side. This being the position it is not possible for this Court to find any illegality or infirmity in the action of the Managing Committee to relieve her from her post in pursuance of her own request for voluntary retirement. No relief as claimed by the petitioner can, therefore, be granted to her in this writ proceeding. 20. However, she must be paid all her arrears salary, if not already paid, within two months from today. Similarly all her retrial dues must be settled and paid to her within four months from today. 21. Subject to the above directions, this writ petition is dismissed but with no order as to costs.