JUDGMENT : Bhaskar Bhattacharya, J. This Letters Patent Appeal under clause 15 of the Letters Patent is at the instance of an unsuccessful writ-petitioner and is directed against the judgment and order dated 6th April 2010 passed by a learned Single Judge of this Court by which His Lordship dismissed the said Special Civil Application filed by the appellant. 2. In the Special Civil Application, out of which the present appeal arises, the appellant prayed for setting aside the order dated 24th October 2007 passed by the District Primary Education Officer, District Panchayat, Rajkot as well as the order dated 5th November 2007 passed by the Taluka Development Officer, Maliya and also for passing an order allowing the appellant to continue at the post of Vidya Sahayak. 3. The facts giving rise to the filing of the above Special Civil Application may be summed up thus: 3.1 The appellant was working as Vidya Sahayak at Mota Dahisar, Taluka Maliya, District-Rajkot. She joined the school as Vidya Sahayak on 1st December 2004. 3.2 As the petitioner got an order of appointment as a Teacher in Kendriya Vidyalaya, she had written a letter of resignation on 6th September 2007. It appears from the records that while giving such resignation letter, the petitioner, however, did not comply with one of the terms and conditions of giving one weeks notice as contemplated under the terms and conditions of her service. The employer also did not communicate to the petitioner that her letter of resignation had been accepted. 3.3 The appellant, however, on 17th September 2007 gave a further letter withdrawing her resignation earlier given. The school authorities, after receiving the letter of withdrawal of resignation, permitted the appellant to work for the rest of the month of September 2007 and also in the month of October 2007 and she was also given salary for those two months. 3.4 It appears from the records that the District Primary Education Officer, District Panchayat, Rajkot, dealt with the letter of withdrawal of resignation written by the appellant, and on 24th October 2007, a letter was written to the Taluka Development Officer stating therein that there was no necessity of formally accepting the resignation and the resignation had come into force from the very date of tendering the resignation. 3.5 Relying on the letter dated 24th October 2007 of District Primary Education Officer, District Panchayat, Rajkot, the Taluka Development Officer conveyed to the appellant by letter dated 5th November 2007 that the resignation letter given by her had come into effect from the date of resignation and, therefore, the employment of the appellant had come to an end from that date. 3.6 On 19th November 2007, the appellant made a representation for considering her case and for continuation of the employment but the said representation was not replied by the respondents. Consequently, another representation dated 28th January 2008 was given by the appellant to the Director of Primary Education but the same was also not replied to for a long time. In spite of repeated representations, no reply having been given, the appellant served a legal notice upon the Director of Primary Education and to the Secretary, Education Department on 10th November 2008. The said legal notice was replied to by the respondents concerned by holding that by giving resignation, the appellant had put an end to her service, 3.7 Hence, the aforesaid writ-petition came to be filed. 4. As indicated earlier, the learned Single Judge, by the order impugned herein, has rejected the Special Civil Application and held that as the appellant, after giving resignation letter on 6th September 2007, has also received notice-pay on 7th September 2007, the resignation had already taken effect on 7th September 2007, the date on which she accepted the amount of notice-pay. The learned Single Judge further held that if the petitioner had not accepted the amount of notice-pay before 17th September 2007, the position would have been different but having accepted the amount of notice-pay on 7th September 2007, after submission of the letter of resignation on 6th September 2007, the withdrawal of the letter of resignation was not permissible. 5. Being dissatisfied, the writ-applicant has come up with the present appeal. 6. Mr. 5. Being dissatisfied, the writ-applicant has come up with the present appeal. 6. Mr. D.P. Joshi, the learned advocate appearing on behalf of the appellant, has strenuously contended before us that the basis of the order passed by the learned Single Judge was, on the face of it, erroneous inasmuch as the appellant has never accepted any amount in lieu of notice and, on the other hand, it was the appellant who tendered one months salary of Rs.2500/- by way of challan on the next date of submission of the resignation letter. According to Mr. Joshi, it was not at all necessary for the appellant to tender such amount in lieu of notice period as neither the terms and conditions of service nor the rules framed by the Government prescribes payment of any amount by the employee in lieu of notice. Mr. Joshi, therefore, contends that there was no valid resignation at all at the instance of the appellant and the letter dated 6th September 2007 cannot be treated to be a resignation letter in accordance with the terms of the employment. According to Mr. Joshi, even the subsequent conduct of the employer by allowing the appellant to join service and by making payment of salary for the months of September and October 2007, the employer has expressed its intention clear that the resignation was not in accordance with law. Mr. Joshi, therefore, prays for setting aside the order of the learned Single Judge and permitting his client to continue as Vidya Sahayak. 7. Mr. Premal Joshi, the learned advocate appearing on behalf of the District Panchayat, has, on the other hand, opposed the aforesaid contention of the appellant and has contended that in accordance with the provisions contained in rule 36 of the Gujarat Civil Services [General Conditions of Services] Rules, 2002 [GCSR Rules, hereafter] payment by the appellant in lieu of one months notice was equivalent to valid service of such notice and thus, by tendering the amount of one months salary after writing the resignation letter, there is no necessity of giving any notice. Mr. Premal Joshi, therefore, prays for dismissal of the appeal. 8. Mr. Mr. Premal Joshi, therefore, prays for dismissal of the appeal. 8. Mr. Baxi, the learned Assistant Government Pleader appearing on behalf of the State Government, has supported the order passed by the learned Single Judge and has contended that it appears from the materials on record that the appellant even joined Kendriya Vidyalaya for two days and thereafter came back and rejoined the service on 17th September 2007 as a result the Kendriya Vidyala Authority has given her a notice of show-cause as to why her service should not be terminated and such act of joining in a different institution for two days comes in the way of the appellant in maintaining the Special Civil Application praying for continuation of her service. He, therefore, prays for dismissal of the appeal on the above additional ground also. 9. Therefore, the only question that arises for determination in this appeal is whether, in the facts of the present case, there was valid letter of resignation given by the appellant and for such resignation, whether she has lost her right to continue with the service as Vidya Sahayak. 10. We first propose to consider the contention of Mr. Premal Joshi, the learned advocate for the District Panchayat, regarding the alleged validity of the resignation given by the appellant in terms of rule 36 of the GCSR. In order to appreciate the said contention, the relevant portion of rule 36 of the GCSR are quoted below:- 36. Resignation from Government service: (1). A Government employee may at any time resign from the services of the State by giving a notice of one month in writing to the appointing authority. Provided that in the case of a temporary employee who has put in service of less than one year, the period of such notice shall be one week. Note: Nothing in this rule shall affect the provisions of any special contract of service or bond entered into by the Government employee with the Government, or the provisions of any special rules, if any, applicable to him, in respect of the period of notice to be given for resignation from service or payment of any sum by the Government employee, to the Government for premature resignation by him. (2) The resignation tendered by a Government employee shall be effective from the date on which it is accepted by the appointing authority; but if it is not accepted before the expiry of the period of notice for resignation to be given by such employee under sub-rule (1), it shall be deemed to have become effective on the date of the expiry of such period, unless the Government employee is informed before such date, that his resignation has been rejected and of the reasons for such rejection: Provided that the resignation of a Government employee shall not be rejected except in a case where - (a) any ascertained or ascertainable amount of money is found outstanding against him and payment thereof is not made by him within the period mentioned above, (b) he is under suspension, (c) any departmental inquiry or criminal prosecution is contemplated or pending against him. (3) xxx xxx xxx (4) xxx xxx xxx (5) xxx xxx xxx (6) Where the temporary Government employee has put in service for a period exceeding one year, the period of such notice shall be one month and where such Government employee has put in service for one year or any period less than one year, the period of such notice shall be one week. Provided that the service of any such Government employee may be terminated forthwith by payment to him of a sum equivalent to the amount of his pay plus allowance for the period of the notice at the same rates at which he was drawing pay and allowance immediately before the termination of his service, or as the case may be, for the period by which such notice falls short of the notice period. (7) Where a notice is given by the authority other than Government terminating the services of a temporary Government employee or where the services of any such Government employee is terminated by an authority other than the Government either on the expiry of the period of such notice or forthwith by payment of pay plus allowances, the Government may, of its own motion or otherwise reopen the case and after calling for the records of the case and after making such inquiry as it deemed fit: (i) confirm the action taken by the authority; (ii) withdraw the notice; (iii) reinstate the Government employee in service, or, (iv) make such other order in the case as it may consider proper. Provided that except in special circumstances, which shall be recorded in writing, no case shall be reopened under this sub-rule after the expiry of three months: (i) from the date of notice in case where notice is given; (ii) from the date of termination of service, in a case where no notice is given." 11. A plain reading of the aforesaid Rules makes it clear that Rule 36 has no application if it is in conflict with any of the terms and conditions of special contract of service or bond entered into by the Government employee with the Government. It appears from clause (6) of the terms and conditions for appointment of Vidya Sahayak that their service can be terminated by giving seven days notice by either side. In the said terms and conditions, there is no provision for dispensing with the notice period of seven days either at the instance of the employer or the employee in lieu of payment of notice-pay. Such being the position, by virtue of Note to rule(1) of rule 36 of the GSCR, even the provisions for dispensing with the giving of notice in lieu of payment of salary and other allowances at the instance of the employer as provided in sub-rule (6) of rule 36 is not applicable in the instant case. Such being the position, by virtue of Note to rule(1) of rule 36 of the GSCR, even the provisions for dispensing with the giving of notice in lieu of payment of salary and other allowances at the instance of the employer as provided in sub-rule (6) of rule 36 is not applicable in the instant case. Moreover, proviso to sub-rule (6) of Rule 36 provides that service of any such Government employee may be terminated by payment of a sum equivalent to the amount of pay plus allowance for the period of the notice for the period by which such notice falls short of the notice period where the employer terminates the service of an employee, and there is no provision for dispensing with the necessity of giving notice-pay in lieu of service of notice at the instance of the employee and thus, if a Government employee wants to resign, he must give the required notice and in the absence of such a notice, there is even no scope of giving a letter of resignation. 12. We, thus, find no substance in the contention of Mr. Premal Joshi, the learned advocate for the Panchayat authority, that the resignation letter written on 6th September 2007 by the appellant was a valid letter of resignation, as in our opinion, the required notice for giving such resignation was not given. Moreover, we have already pointed out that there is also no provision for tendering money at the instance of an employee in lieu of service of the notice either in the Rule 36 or in the terms of condition of the service of the appellant. 13. It appears from sub-rule 2 of rule 36 that the resignation tendered by a Government employee shall be effective from the date on which it is accepted by the appointing authority; but if it is not accepted before the expiry of the period of notice for resignation to be given by such employee under sub-rule (1), it shall be deemed to have become effective on the date of the expiry of such period, unless the Government employee is informed before such date, that his resignation has been rejected and of the reasons for such rejection. 14. 14. The above sub-rule 2, thus, makes it mandatory for an employee to give a notice and if such a notice is given, even in the absence of any information of acceptance by the employer to the employee it is deemed to be effective from the date of expiry of notice. But if no notice is at all given, even no such presumption of acceptance can be drawn; the word "accepted" does not imply the physical acceptance of the notice but the conscious decision of the employer to relieve the employee based on the notice given by him. On the other hand, by permitting the appellant to continue from 17th September, 2007 and giving salary for the month of September and October, 2007, the employer has made it implicit that the resignation was not accepted. The period of notice contemplated under rule 36 being a statutory rule based on public policy, even there is no question of taking the plea of waiver of notice at the instance of either the employer or the employee. However, even we assume for the sake of argument that the notice can be waived, the fact that there is no acceptance by the employer before the employee joined on 17th September and that the Government paid salary for the months of September and October leaves no scope of taking such a plea of waiver. 15. It appears that the learned Single Judge totally misconstrued the facts of this case and wrongly came to the conclusion that it was the appellant who had received the money of one months salary in lieu of notice though it was the appellant who tendered such amount by challan. Therefore, the basis of the decision of the learned Single Judge is incorrect. 16. We are also not impressed by the submission of the learned Assistant Government Pleader for the State that by joining Kendriya Vidyalaya for two days on 13th and 14th September 2007, the appellant has lost her right to challenge the action of the employer. 17. It appears that after the appellant came back and joined on 17th September, 2007, the employer did not raise any objection and permitted her to work for two months and thereafter, did not permit her to continue any further. 17. It appears that after the appellant came back and joined on 17th September, 2007, the employer did not raise any objection and permitted her to work for two months and thereafter, did not permit her to continue any further. It is not the case of the respondents that by joining Kendriya Vidyalaya for two days, the appellant has violated the terms of her service and for that reason she was dismissed. On the other hand, it is the case of the respondents that by her act of giving resignation letter, she has lost her right to continue. Therefore, for the purpose of the present writ-application, where we are only concerned with the validity of the resignation letter, the aforesaid fact of joining in Kendriya Vidyalaya for two days is inconsequential. 18. Once we hold that there was no valid resignation, the resignation letter dated 6th September 2007 has to be ignored, more particularly, when the appellant has come back and joined and the respondent authorities gave her salary for the months for September and October 2007. It is for the employer to decide how the absence of the appellant from 7th September 2007 to 16th September 2007 would be treated. It is also for the employer to decide whether it will take any steps against the appellant for joining the Kendriya Vidyalaya for two days. It is needless to mention that such steps have not been taken till today. It will now be unfair to permit the employer to raise the plea of valid resignation and to take advantage of its silence as well as the explicit permission to rejoin because the appellant in the event of acceptance of resignation or refusal to rejoin on September 17, 2007, could continue with the service of Kendriya Vidyalaya. 19. Such being the position, we hold that the learned Single Judge erroneously treated the letter dated 6th September 2007 issued by the appellant as a valid resignation letter on the wrong presumption that she accepted the money in lieu of notice from the employer although it was the appellant who tendered such money. In the rules or the terms and conditions of service of the appellant, we have already pointed out that there is no provision for making payment of one months salary in lieu of notice period at the instance the employee. 20. In the rules or the terms and conditions of service of the appellant, we have already pointed out that there is no provision for making payment of one months salary in lieu of notice period at the instance the employee. 20. In the case of North Zone Cultural Centre and another v. Vedpathi Dinesh Kumar reported in AIR 2003 SC 2719 , relied upon by the learned counsel for the respondents, so far as the appellant Organisation before the Supreme Court was concerned, there was no rule which required the acceptance of the resignation to be communicated before the resignation could become effective. Even under the consolidated guidelines and instructions issued by the Government of India vide letter of February 11, 1988 dealing with the subject of acceptance and withdrawal of resignation, there was no requirement which stated that even in cases where the resignation was accepted with immediate effect, the same could be withdrawn before such acceptance was communicated to the Government servant concerned. On the contrary, these guidelines also indicated that the resignation would take effect the moment the same was accepted. In the above case before the Supreme Court, the resignation letter was dated November 18, 1988 and the same was accepted on the selfsame date as would appear from the following endorsement: "Accepted, hand over charge. Signed-18/11.". The formal communication of acceptance of resignation was on December 1, 1988 about 13 days thereafter which, in the opinion of the Supreme Court, was not an undue delay in the facts of the said case so as to draw an inference that there had been no acceptance of the resignation. According to the Supreme Court, even the fact that in the meantime the respondent either attended duty or signed the attendance register would be of no assistance to claim that his resignation had not taken effect. Even otherwise, the Supreme Court proceeded, because there was no responsible officer in the headquarters from November 18, 1988 after the resignation was accepted till December 1, 1988 and the respondent took advantage of the same and marked his attendance, such attendance could not be treated as lawful attendance in view of the acceptance of his resignation on November 18, 1988. In the case before us, we have already pointed out that the condition of appointment does not permit submission of resignation without giving notice of seven days which is absent and there is also no formal decision of acceptance of the resignation before the appellant joined and at the same time, the employer gave salary for the next two months. We have already pointed out that physical acceptance of the resignation letter is not sufficient to conclude that the employer has accepted the same unless the same is in conformity with the conditions of service. Thus, the above decision does not apply to the facts of the present case. 21. In the case of Ramniklal M Purohit v. District Education Committee and others (Letters Patent Appeal no. 963 of 2010 disposed of on July 6, 2010), an unreported decision of a Division Bench of this Court, relied upon by Mr. Baxi, the appellant approached this High Court for quashing the impugned action of the respondent in not permitting him to discharge his duty as a primary teacher and for permitting him to join with full back wages and continuity of service but the same was dismissed. In the said case, the appellant tendered a resignation letter on July 30, 1990 after joining the service under a different employer by giving effect to the same from July 17, 1990. In such a fact, the Division Bench held that the appellant having joined the service of another employer cannot be permitted to come back and say that since there was no communication of acceptance, he should be permitted to come back and join. In the case before us, we have already held that there was no lawful tender of resignation letter at the instance of the appellant and at the same time, the employer not only failed to take any decision of its acceptance but also permitted the employee to work for two months and gave salary for the same. Thus, the said decision does not help the respondents in any way in the peculiar facts of this case. 22. We, therefore, allow the writ-application and declare that there was no valid resignation letter at the instance of the appellant and the services of the appellant should be deemed to have been continuing so long her service is not legally terminated. 22. We, therefore, allow the writ-application and declare that there was no valid resignation letter at the instance of the appellant and the services of the appellant should be deemed to have been continuing so long her service is not legally terminated. However, having regard to the fact that the appellant of her own had joined Kendriya Vidyalaya for two days, we do not pass any order of back-salary for the period for which she has not rendered services to the school. The appellant in her Special Civil Application has also not prayed for back-salary. The respondent authorities are directed to permit the appellant to join her services within a fortnight from today. We, however, make it clear that this order will not stand in the way of the school authorities in taking appropriate steps against the appellant if she has violated any other terms of her services by joining the Kendriya Vidyalaya for two days. 23. The appeal is allowed accordingly. In the facts and circumstances, there will be, however, no order as to costs. L.A. Appeal allowed.