Judgment:
A.P. Sahi, J.
1. The petitioner has come up with a prayer to issue a direction to the respondents, respondent Nos. 1, 2 and 4 in particular to ensure payment of salary to the petitioner with effect from December 1997 onwards along with interest thereon and also for quashing of the proceedings undertaken by respondent No. 4 for making appointment on the post of clerk in the institution which post is occupied by the petitioner.
2. The institution in question is a Sanskirit Madavidyalaya affiliated to the Sampurnanand Sanskirit University, Varanasi. The institution is on the grant in aid list of the State Government and the post of clerk has been created in the institution vide government orders referred to in the writ petition. The post of clerk was advertised against which the petitioner was appointed by the resolution of the committee of management dated 19.9.1982. There was some dispute in the institution in the year 1990 which subsided. However, the dispute again arose in the year 1995 and the petitioner under duress submitted a letter of resignation dated 9.11.1995 which letter has been appended as Annexure-3 to the counter affidavit filed on behalf of respondent No. 4. The case of the petitioner is that the said letter of resignation which was tendered under duress by the petitioner and was not accepted by the committee of management and was disapproved which was communicated to the petitioner vide letter dated 12.3.1996 by the Manager of the institution. This document has been appended as Annexure-6 to the writ petition, and about which recital has been made in paragraph 9 of the writ petition. The respondent management on the other hand has filed a counter affidavit and have come up with a plea that the said resignation was placed before the committee of management on 6.8.1996 wherein it was resolved that the committee of management is left with no option but to accept the resignation of the petitioner. It is further important to note that in reply to the contents of the paragraph 9 of the writ petition wherein the petitioner has clearly stated that his resignation has been disapproved, has not been denied by the management in its reply contained in paragraph 20 of the counter affidavit. Th issuance of the letter dated 12.3.1996 by the manager and the genuineness of the said document appended as Annexure-6 has neither been disputed nor it has been rebutted. An altogether new stand of accepting the resignation on 6.8.1996 has been set up in the counter affidavit.
3. The aforesaid on going dispute with regard to the continuance of the petitioner in office and the payment of salary engaged the attention of the educational authorities as well. For this various documents have been filed by the petitioners, which are on record. The Regional Deputy Director of Education, Agra on 9th November 1998 passed an order directing the Deputy Director of Education, Mathura to ensure the payment of salary to the petitioner after making inspection of the institution which document is appended as Annexure-18 to the writ petition. This is followed by another order dated 22.10.1998 which is Annexure-19 to the writ petition. The respondent authorities have field counter affidavit through the Associate District Inspector of Schools, Mathura wherein details of inquiry conducted in this regard have been stated in paragraph 8 of the said counter affidavit. It has been further narrated in the counter affidavit that the committee of management illegally proceeded to advertise the post treating the petitioner to have been terminated from his services and as such directions were issued not to proceed to make any appointment. The committee of management, however, in defianes thereto proceeded to make appointment on the post whereupon the petitioner has filed the instant writ petition.
4. This Court passed an order on 31.5.2000 to the effect that in case any appointment is made by the respondents, the same shall be subject to the decision of the writ petition.
5. During the pendency of the instant writ petition the Director of Education, Extension Department, Allahabad passed an order on 11.7.2001 which has been appended as Annexure-1 to the rejoinder affidavit of the petitioner whereby it was held that there was no valid resignation tendered by the petitioner and that the payment of salary to the petitioner has also been made for some period after resorting to an order of single operation. It has also been recited in the said order that the resignation letter of the petitioner has always been treated to have been disapproved. A direction has also been issued to the District Inspector of Schools, Mathura to make payment of the salary to the petitioner.
6. During the course of arguments the Court pointedly put a question to Sri S.P. Singh, counsel for the management as to whether the said order dated 11.7.2001 has been put to challenge or not. Sri Singh stated, at the bar, that the said order has not been put to jeopardy in any proceeding either before this Court or any authority to the best of his knowledge. Even otherwise there is nothing on the record to indicate any such challenge to the said order dated 11.7.2001 and as such the only inference that can be drawns that the aforesaid order still holds good.
7. Another aspect of the said order is that the Director of Education has disapproved the appointment made by the committee of management on the post in question. Thus, the respondents herein will be presumed to have acquiesced to the said order.
8. The fact, however, remains that the petitioner, according to the respondent authorities except the committee of management, have admitted that the petitioner was illegally prevented from discharging his duty as a clerk and his salary has also been illegally withheld.
9. On merits of the matter, pertaining to the resignation tendered by the petitioner, it is clear from the facts already brought out on the record that the petitioner has tendered a resignation letter but the disapproval thereof by the committee of management on 12.3.1996 has not been rebutted or denied by the committee of management. It is also to be noted that once the committee of management had disapproved and not accepted the resignation of the petitioner categorically, the committee had no authority in law to subsequently review its decision by adopting another resolution whereby the committee of management proceeded to accept the resignation of the petitioner.
10. There is no rule pointed out by the parties governing the mode and manner in which a class III employee of a degree college affiliated to an University is required to tender a resignation. From the conduct of the parties it is apparent that the resignation was treated to be a bilateral act in the sense that tendering of the resignation was no sufficient and did require either an order of acceptance or disapproval by the appointing authority. As already held herein above, that the resignation was disapproved, there would be no resignation in the eyes of law as such the petitioner will be deemed (sic) continuing in service.
11. In fact, there was no resignation in existance, which was required to be approved by the committee of management. The case set up in the counter affidavit, therefore, is a clear case of an after-thought and an exercise in futility. Consequently, the resolution dated 6.8.1996 as set up in the counter affidavit is a nullity and has been rightly ignored by the authorities.
12. From the facts narrated herein above, it is also clear that there was no cessation of service of the petitioner and as such he will be deemed to be continuing to hold his post. It is also apparent from the facts on record that the petitioner was illegally prevented from discharging his duties. In view of this the petitioner is entitled to the payment of his salary as well. Before the final directions, as desirable, are issued it would be appropriate to refer to some of the decisions, which may throw light on the controversy relating to resignation.
13. The Apex Court in the case of Central Inland Water Transport Corporation Ltd. v. Brojo Nath Ganguly reported in (1986) 3 SCC 156 at page 228 paragraph 111 has held as under :-
'A resignation by an employee would, however, normally requires to be accepted by the employer in order to be effective. It can be that in certain circumstances an employer would be justified in refusing to accept the employee's resignation as, for instance, when an employee wants to leave in the middle of a work which is urgent or important and for the completion of which his presence and participation are necessary. An employer can also refuse to accept the resignation when there is a disciplinary inquiry pending against the employee. In such a case, to permit an employee to resign would be to allow him to go away from the service and escape the consequences of an adverse finding against him in such an inquiry. There can also be other grounds on which an employer would be justified in not accepting the resignation of an employee.'
14. The same view was reiterated in J.K. Cotton, Spinning and Weaving Mills Company Ltd. v. State of U.P. reported in (1990) 4 SCC 27. These aspects were further considered in the case of Moti Ram v. Param Deo and Anr. (1993) 2 SCC, 725 paragraphs 16 and 18, which are quoted herein below:
'16. As pointed out by this Court, 'resignation' means the spontaneous relinquishment of one's own right and in relation to an officer, it connotes the act of giving up or relinquishing the office. It has been held that in the general juristic sense, in order to constitute a complete and operative resignation there must be the intention to give up or relinquish the office and the concomitant act of its relinquishment. It has also been observed that the act of relinquishment may take different forms or assume a unilateral or bilateral character, depending on the nature of the office and the conditions governing it. (See Union of India v. Gopal Chandra Misra). If the act of relinquishment is of unilateral character, it comes into effect when such act indication the intention to relinquish the office is communicated to the competent authority. The authority to whom the act of relinquishment is communicated is not required to take any action and the relinquishment takes effect from the date of such communication where the resignation is intended to operate in praesenti. A resignation may also be prospective to be operative from a future date and in that event it would take effect from the date indicated therein and not from the date of communication. In case where the act of relinquishment is of a bilateral character, the communication of the intention to relinquish, by itself, would not be sufficient to result in relinquishment of the office and some action is required to be taken on such communication of the intention to relinquish. E.g., acceptance of the said request to relinquish the office, and in such a case the relinquishment does not become effective or operative till such action is taken. As to whether the act of relinquishment of an office is unilateral or bilateral in character would depend upon the nature of the office and the conditions governing it.'
'18. A contract of employment, however, stand on a different footing wherein the act of relinquishment is of bilateral character and resignation of an employee is effective only on acceptance of the same by the employer, Insofar as Government employees are concerned, there are specific provisions in the service rules which require acceptance of the resignation before it becomes effective in Raj Kumar v. Union of India, it has been held;
'...But when a public servant has invited by his letter of resignation determination of his employment, his services normally stand terminated from the date on which the letter of resignation is accepted by the appropriate authority, and in the absence of any law or rule governing the conditions of his service to the contrary, it will not be open to the public servant to withdraw his resignation after it is accepted by the appropriate authority. Till the resignation is accepted by the appropriate authority in consonance with the rules governing the acceptance, the public servant concerned has locus poenitentiae but not thereafter.' (page 860)
15. Applying the aforesaid principles, the first thing that has to be seen is as to whether the petitioner has tendered his resignation 'voluntarily'. A perusal of the text of the resignation letter clearly indicates that it was under duress and as such it cannot be said that the petitioner intended to give up his services 'voluntarily'. Secondly the act of resignation is subject to an bilateral procedure as held by the Apex Court herein above. In the matter of an employee a resignation takes effect normally upon its acceptance and the reasons for the same are clearly spelled out in the judgment of the Apex Court in the case of B.N. Ganguly (supra). Even from the conduct of the parties it is evident that petitioner's letter of resignation was subject to acceptance or disapproval by the committee of management. As found herein above, the resignation tendered by the petitioner was disapproved on 12.3.1996 Consequently, any action taken by the committee of management purportedly to accept the resignation on 6.8.1996 is nothing else but an after-thought and an exercise in futility as held herein above. Apart from this, the authorities have also accepted the stand of the petitioner vide order dated 11.7.2001 and hence the petitioner deserves to be granted the relief as claimed by him.
16. Accordingly, the writ petition succeeds and is allowed with a direction to the respondent District Inspector of Schools to ensure the payment of salary to the petitioner, which has remained unpaid since December 1997 onward. The amounts paid to the petitioner shall be adjusted and the balance shall be paid by the respondent-District Inspector of Schools as expeditiously as possible preferably within a period of three months from the date of presentation of certified copy of the order before him. The petitioner shall be treated to be continuing on the post in question and shall also be entitled to continue on the said post and receive salary for the same. The exercise taken by the committee to appoint a clerk on the post in question pursuant to the advertisement dated 25.10.1999 stand annulled.
17. With the aforesaid direction the writ petition is disposed of with no orders as to costs.