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2019 DIGILAW 519 (UTT)

COMMITTEE OF MANAGEMENT v. STATE OF UTTARAKHAND

2019-09-23

ALOK KUMAR VERMA, RAMESH RANGANATHAN

body2019
JUDGMENT Ramesh Ranganathan, C.J. (Oral) Delay Condonation Application No. (CLMA) No. 8270 of 2019 The application, seeking condonation of delay of 25 days in preferring the appeal, is not opposed, and the delay is, therefore, condoned. 2. This appeal is preferred by the Committee of Management (fifth respondent in WPSS No. 3088 of 2018). The fifth respondent in this appeal filed WPSS No. 3088 of 2018 seeking a mandamus commanding the respondents to appoint the petitioner under the provisions of the dying in harness rules; and a mandamus commanding and directing respondent Nos.5 & 6 to send necessary papers for his appointment under the provisions of the dying in harness Rules. 3. Facts, to the limited extent necessary, are that the petitioner's father was working as an Assistant Teacher (L.T. Grade) in the applicant-College when he was found to be suffering from lung cancer. On completion of 20 years of service, he sought voluntary retirement by his letter dated 01.08.2015. The appellant passed resolution dated 15.08.2015 (allegedly in his presence) accepting his request for voluntary retirement. This resolution, passed by the Committee of Management on 15.08.2015, was forwarded to the Chief Education Officer, through the Block Education Officer, on 17.08.2015. The Block Education Officer, in turn, forwarded the proposal to the Chief Education Officer, who received it on 21.08.2015. The Chief Education Officer did not pass any orders, on the proposal forwarded to him by the Committee of Management through the Block Education Officer, for nearly two months before which the appellant-writ petitioner's father died because of lung cancer on 26.09.2015. 4. The appellant-writ petitioner submitted an application, for being provided compassionate appointment under the dying in harness rules, on 16.05.2018; and, despite the Chief Education Officer directing the appellant to submit such a proposal, they failed to do so. Aggrieved thereby, the appellant-writ petitioner invoked the jurisdiction of this Court. It is not in dispute that the Dying in Harness Rules are applicable to Government aided institutions, including the appellant herein; and, but for the voluntary retirement application submitted by his father, the petitioner would have been entitled to the benefit of compassionate appointment, under the dying in harness rules, treating his father to have died while in service. 5. It is not in dispute that the Dying in Harness Rules are applicable to Government aided institutions, including the appellant herein; and, but for the voluntary retirement application submitted by his father, the petitioner would have been entitled to the benefit of compassionate appointment, under the dying in harness rules, treating his father to have died while in service. 5. The appellant's claim, however, is that the request for voluntary retirement was accepted by resolution dated 15.08.2015 and, on such acceptance, the master and servant relationship ceases; since the petitioner's father was alive on 15.08.2015, when he retired from service, the provisions of the dying in harness rules, which are applicable only to employees who died while in service, would not apply to the case on hand; pursuant to the resolution dated 15.08.2015, whereby the Committee of Management accepted the VRS application of the father of the appellant-writ petitioner, they had forwarded the pension papers of the petitioner's father; in any event, the delay on the part of the Chief Education Officer, in considering the resolution, cannot result in the Committee of Management being forced to provide the petitioner compassionate appointment under the dying in harness rules, when these Rules do not apply to an employee who had retired from service. 6. In the order under appeal, the learned Single Judge took note of the content of the counter affidavit, filed on behalf of the Director and the Chief Education Officer, that the voluntary retirement application of the petitioner's father was not accepted till his death; the Chief Education Officer had called upon the management of the concerned school to produce the relevant records to appoint the petitioner on compassionate grounds; and the Committee of Management had not supplied the records as desired. The learned Single Judge observed that the relationship of master and servant continued between the petitioner's father and the Committee of Management till the death of the petitioner's father; mere submission of an application for voluntary retirement does not amount to severance of the master and servant relationship; such a relationship is severed only when the application for voluntary retirement is accepted; and the stand taken by the Committee of Management, for not forwarding the petitioner's application to the competent authority in the education department, was not justified. The writ petition was allowed directing the appellant to forward the petitioner's application and other relevant records, in terms of the letter of the Chief Education Officer dated 15.06.2008, within a period of two weeks; and the Chief Education Officer was directed to consider the petitioner's claim for compassionate appointment in accordance with law, and take an appropriate decision within three weeks' thereafter. Aggrieved thereby the Committee of Management has now filed an appeal before us. 7. Mr. Pankaj Purohit, learned counsel for the appellant-fifth respondent, would submit that the moment the Committee of Management passes a resolution on 15.08.2015, accepting the VRS application of the petitioner's father, the relationship of master and servant came to an end on that day; forwarding the resolution to the Chief Education Officer was only to enable the latter to process the pension papers for payment of the retirement benefits of petitioner's father; section 39(3)(a) of the Uttaranchal School Education Act, 2006 (for short the “2006 Act") is attracted only for imposition of punishment; there is no requirement of obtaining approval of the Chief Education Officer in the case of voluntary retirement; the petitioner's father's request for voluntary retirement stood accepted when a resolution was passed by the Committee of Management on 28.08.2015; the death of the petitioners' father, post his retirement, would not bring the petitioner within the dying and harness Rules since, in terms of the said Rules, compassionate appointment can only be provided when an employee has died while in service, and not after retirement. 8. Learned counsel would contend that, even otherwise, the Chief Education Officer cannot take advantage of his own wrong in keeping the proposal, submitted by the Committee of Management which he received on 21.08.2015, pending till the petitioner's father died on 26.09.2015; the appellant cannot be asked to provide compassionate appointment to the petitioner's son, for the fault of the Chief Education Officer; and nothing prevented the Chief Education Officer, if he was not inclined to accept the proposal, to intimate the Committee of Management, more so as the Regulations require the Chief Education Officer to take a decision within six weeks. 9. On the other hand, Mr. 9. On the other hand, Mr. Anil Kumar Joshi, learned counsel for the respondent-writ petitioner, would submit that the petitioner's father's request for voluntary retirement was merely an offer; it is only if the said offer had been accepted, and the acceptance had been communicated to him, can it be be said to have taken effect; admittedly the resolution, passed by the Committee of Management, was not communicated to the petitioner's father; approval of the Chief Education Officer is required in terms of Section 38(3)(b) of the 2006 Act; since acceptance of voluntary retirement results in termination of the services of the employee, approval of the Chief Education Officer is required in terms of Section 39(3)(a) of the 2006 Act; even otherwise, as approval of the Chief Education Officer is required for appointment of a teacher, termination of his services, even if it be on acceptance of his request for voluntary retirement, also requires his approval; since no such approval was granted by the Chief Education Officer, the petitioner's father must be deemed to have died while in service; and the 5th respondent-writ petitioner was, therefore, entitled to be appointed on compassionate grounds under the dying in harness rules. 10. The Uttaranchal School Education Act, 2006 contains no provision for voluntary retirement of an employee. Accepting the submission of Mr. Pankaj Purohit, learned counsel for the appellant that the request for voluntary retirement is deemed to have been accepted on the day the appellant passed the resolution dated 15.08.2015, would mean that the petitioner would then not be entitled for appointment on the compassionate grounds since his father must then be held to have died after retirement, and not while in service. The effect of the resolution of the Committee of Management dated 15.08.2015, therefore, necessitates examination. 11. While the resolution dated 15.08.2015 records that it was passed in the presence of the petitioner's father and his request for voluntary retirement was accepted, the fact remains that the resolution was not communicated in writing to the petitioner's father. The request made by the petitioner's father on 01.08.2015, to permit him to retire voluntarily, is in the nature of an offer. Acceptance of such an offer, by the Committee of Management, would come into effect only when it is communicated to the offeree i.e. the petitioner's father. The request made by the petitioner's father on 01.08.2015, to permit him to retire voluntarily, is in the nature of an offer. Acceptance of such an offer, by the Committee of Management, would come into effect only when it is communicated to the offeree i.e. the petitioner's father. Admittedly no order, accepting the petitioner's father's request for voluntary retirement, was communicated to him. 12. In terms of Section 39(3)(a) no Principal, Head Master or teacher may be discharged or removed or dismissed from service or reduced in rank or subjected to any diminution in emoluments, or served with notice of termination of service except with the prior approval in writing of the Chief Education Officer. Section 39(3)(a) requires approval in writing of the Chief Education Officer to be obtained before the order of punishment (the punishment of discharge or removal or dismissal from service or reduction in rank or being subjected to any diminution in emoluments) comes into effect. In the present case, the petitioner's father services were not terminated as a measure of punishment. 13. Mr. Anil Kumar Joshi, learned Counsel for the respondent-writ petitioner, would contend that, since Section 39(3)(a) provides for termination and as acceptance of the request for voluntary retirement also results in termination of services, approval is required from the Chief Education Officer. We must express our inability to agree. The words used in Section 39(3)(a) are “or served with notice of termination of service". The notice of termination of service is to be issued by the Committee of Management putting an end to the employer-employee relationship, and not the other way round. In the present case, it was the petitioner's father's requests for voluntary retirement which was accepted by the Committee of Management by way of its resolution dated 15.08.2015, and no notice was issued to the petitioner's father for termination of his services. We are satisfied, therefore, that Section 39(3)(a) of the 2006 Act has no application. 14. Mr. Pankaj Purohit, learned counsel for the petitioner, would however contend that, since the resolution dated 15.08.2015 was passed in the presence of the petitioner's father, it is evident that he was aware that his request for voluntary retirement had been accepted. Whether such a resolution can be construed as communication of acceptance of the offer is debatable. 14. Mr. Pankaj Purohit, learned counsel for the petitioner, would however contend that, since the resolution dated 15.08.2015 was passed in the presence of the petitioner's father, it is evident that he was aware that his request for voluntary retirement had been accepted. Whether such a resolution can be construed as communication of acceptance of the offer is debatable. It is, however, unnecessary for us to dwell on this aspect since we are satisfied that the appeal necessitates rejection on another ground. 15. Section 38(3)(b) of the 2006 Act stipulates that no person, selected as a teacher, shall be appointed unless such appointment is approved by the Chief Education Officer. Approval of the Chief Education Officer is required for appointment of an Assistant Teacher (L.T. Grade). Section 16 of the Uttar Pradesh General Clauses Act, 1904 stipulates that where, by any Uttar Pradesh Act, a power to make any appointment is conferred, then, unless a different intention appears, the authority, having for the time being power to make the appointment, shall also have the power to suspend, dismiss, remove or otherwise terminate the tenure of office of any person appointed. Since Section 39(3)(a) of the 2006 Act is inapplicable, it is evident that the 2006 Act does not provide any different intention. Consequently, since the power to appoint an Assistant Teacher (L.T. Grade) is conferred only on the Chief Education Officer, he also has the power to terminate the tenure of office of a person so appointed. His approval for acceptance of the petitioner's father's request for voluntary retirement was, therefore, necessary. 16. There is no provision either in the 2006 Act, or in the 2009 Regulations, for voluntary retirement from service of a teacher. Mr. Pankaj Purohit, learned counsel appearing on behalf of the appellant, would, however, place reliance on the proviso to FR 56(e) which provides that, where a government servant who voluntarily retires or is allowed to voluntarily retire under the Rules, the appointing authority may allow him, for the purpose of pension and gratuity, if any, the benefit of additional service of 05 years, or of such period as he would have served if he had continued till the ordinary date of his superannuation, whichever be less. The petitioner's father, undoubtedly, had some service remaining till he was to attain the age of superannuation. The petitioner's father, undoubtedly, had some service remaining till he was to attain the age of superannuation. The proviso does indicate that it applies only to a Government Servant, and the petitioner's father (a teacher in a Government aided School) would not fall within the definition of a “Government servant". Even if we were to proceed on the premise that the proviso to FR 56(e) applies, it is evident there from that, where an employee has retired from service after completing 20 years of service, he would be entitled to the benefit of additional 05 years of service for the purpose of pension. A financial burden is imposed on the Government, which provides grant-in-aid to the appellant-school, to extend to an employee, who retires voluntarily from service, 05 more years pay in computing his pension. It is difficult for us, therefore, to hold that approval of the Chief Education Officer is not required. Accepting the submission of Mr. Pankaj Purohit, learned counsel for the appellant, would mean that, even though a financial liability is cast upon the State Government, it would nonetheless have no say on whether or not the application of a teacher, for voluntary retirement, should be accepted. 17. The submission of Pankaj Purohit is that the delay on the part of the Chief Education Officer, in accepting the proposal for voluntary retirement of the petitioner's father of 57 days, though the Regulation required him to accept such a proposal within six weeks, would require the Court to deem that such a proposal has been accepted. We must express our inability to agree. The decision of the Chief Education Officer is required to be communicated within a period to be prescribed by the Regulations (which is six weeks as per Regulation 38 of the 2009 Regulations). While the Regulations, no doubt, prescribe six weeks as the time framed within which the proposal, submitted by the Committee of Management, should be accepted by the Chief Education Officer, the Regulations do not provide that failure, on the part of the Chief Education Officer to accept such a proposal within six weeks, would require the proposal to be deemed to have been accepted. No such deeming provision exists in the Regulations. No such deeming provision exists in the Regulations. While the Chief Education Officer ought to have taken a decision, whether or not to grant approval to the proposal submitted by the Committee of Management for voluntary retirement of the petitioner's father, the mere fact that he had failed to take a decision within six weeks would not necessitate the inference that such a proposal must be deemed to have been accepted. 18. Viewed from any angle, we are satisfied that, when the petitioner's father died on 26.09.2015, he was still in the service of the appellant-School. His son i.e. the petitioner is, therefore, entitled to be considered for compassionate appointment under the dying in harness rules. 19. Interference in an intra-court appeal is justified only if the order under appeal suffers from a patent illegality. We find no such infirmity in said order. 20. The Special Appeal fails and is, accordingly, dismissed. No costs.