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2016 DIGILAW 533 (UTT)

Sunil Kumar Agarwal v. State of Uttarakhand

2016-08-31

SUDHANSHU DHULIA

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JUDGMENT : Sudhanshu Dhulia, J. 1. The petitioner is a Junior Clerk in a grant-in-aid college, namely, Pt. Purnanand Tiwari Intermediate College, Jaspur, District Udham Singh Nagar, where the entire salary of teaching and non-teaching staff is being given by the State Government. The petitioner was initially appointed on the Class-IV post way back in the year 1990. He was later promoted to the post of Junior Clerk in the year 2004. Since then he has been working as such. 2. The case of the petitioner before this Court is that his eyesight becomes weak, as he had cataract. According to him, since he is not able to perform his duties, he sought voluntary retirement vide letter dated 05.11.2015, which though accepted by the management committee, but it was not yet approved by the Chief Education Officer, and prior to its approval (which has not been done even today), the petitioner withdrew his application for voluntary retirement vide letter dated 17.11.2015. All the same, he is not being allowed to work in the college, hence, the petitioner preferred present writ petition before this Court. The management is trating the petitioner as one who has already resigned. 3. Heard Mr. P.C. Pethshali, learned counsel for the petitioner, Mr. B.P.S. Mer, Brief Holder for the State, Mr. Jitendra Chaudhary, learned counsel for respondent Nos. 3 and 4 and perused the records. 4. From the perusal of the records, it appears that after receiving the letter dated 05.11.2015 the management committee, though the resignation of the petitioner was accepted by it, yet the same was not approved by the Chief Education Officer concerned. According to the petitioner, he moved his voluntary resignation to the authority concerned, which is also admitted to the counsel for the management committee. However, in case, it is considered as a voluntary retirement, it was never accepted inasmuch as per provision of The Uttar Pradesh Fundamental Rule 56, three months prior notice is liable to be given by the petitioner, which was not been given, nor has this condition been waived by the department in its acceptance letter dated 08.11.2015. In any case, the resignation has been withdrawn by the petitioner on 17.11.2015, prior to it is being approved by Chief Education Officer. In any case, the resignation has been withdrawn by the petitioner on 17.11.2015, prior to it is being approved by Chief Education Officer. Merely since the resignation has been accepted by the management committee, it would not mean it final acceptance, as acceptance of a resignation will depend upon the approval of Chief Education Officer. This has not been done, although prior to that petitioner has already moved his application for withdrawal of resignation, which is also an admitted fact. 5. Learned counsel for the respondent/management committee would argue that there is no provision of law where resignation has to be accepted by the Chief Education Officer is required. If this is so, general principal of law, which are applicable in the present case, particularly, considering the fact that the appointment of the petitioner on the post of Class-III post could only have been made after the approval of Chief Education Officer. The appointment clearly suggests that it has been made on the approval of Education Authority. Further the regulation framed under Uttarakhand School Education Act, 2006 in the year 2009 also suggests that before appointment on a Class-III post, approval has to be taken from the District Education Officer, therefore, before dispensing the service of the petitioner, approval of the education authority is necessary. 6. In view thereof, since prior to this approval resignation has been withdrawn, the writ petition succeeds. Petitioner shall be treated as a Junior Clerk in the Institute and the management committee shall also release the salary of the petitioner from the date he is not getting the same. 7. Having made the above determination, learned counsel for the management committee has also apprised this Court that the petitioner has not been performing his duties, and that he fails to do his duties as a Junior Clerk, as he has no knowledge of typing, computer etc. and he is actually a financial burden on the Institute. Moreover, his service record also suggests the same, it is contended. 8. Nothing can be said on this aspect, as the respondent would always be at liberty to give compulsory retirement to the petitioner, in accordance with law, which would only be after appraising of past service record of the petitioner.