Smt. Mary Kutty Michel Vs. the State of Madhya Pradesh - Court Judgment

HIGH COURT OF MADHYA PRADESH : JABALPUR.

Writ Petition No.10086/2006(s) Smt.

Mary Kutty Michel.

Vs State of M.P.and otheRs.PRESENT : Hon’ble Shri Justice K.K.Trivedi.J.Shri Dilip Pandey learned counsel for the petitioner.

Shri Vivek Sharma, learned Panel Lawyer, for the respondents No.1 to 3.

Shri Brindawan Tiwari, Adv.for respondent No.4.

ORDER

(24.9.2012) The grievance of the petitioner is that she submitted a resignation letter before the respondent No.4, but as the school was already taken over by the State Government, the resignation of the petitioner was not to be accepted by the Society.

The petitioner made a prayer for withdrawal of the resignation, but it was not allowed alleging that the same has already been accepted by the President of the Society, running the school and the petitioner was not permitted to work in the school thereafter.

Though for some period, she was allowed to continue, but no action was taken for absorption of services of the petitioner in the Government service and thereby the rights of the petitioner have been denied.

It is contended that in fact wrong information was sent with respect to making of resignation by the petitioner, by the Principal of the school and on account of this reason only the claim of the petitioner for absorption in Government service was not considered.

It is contended that because of such illegalities committed by the respondents, the petitioner has been denied her valuable rights, therefore, she is required to approach this Court by way of filing this writ petition.

2: Brief facts giving rise to filing of this writ petition are that 2 the petitioner was said to be appointed by one Shriram Shiksha Samiti Gangahra, Rewa, vide order dated 1.7.1977 for the purposes of her posting as Lecturer in Science in the school run by the said Samiti known as Anjan Higher Secondary School, Gangahra, Rewa.

The said school was subsequently started receiving grant-in-aid from the State Government.

The post of the petitioner as a teacher was approved by the education authorities for the purposes of distributing the salary from the grant-in-aid.

Later on, a decision was taken by the State Government on the basis of a resolution passed by the Cabinet of Ministers to take over all such schools and, accordingly, the aforesaid Anjan Higher Secondary School, Gangahra, was also taken over by the State Government.

Certain posts were sanctioned vide order dated 6.11.2000.

The petitioner was in the service at that time.

However, before even absorption, the petitioner made an application on 30.4.2002 submitting that her husband was posted at Gajva Gear Factory, Dewas.

The petitioner was not keeping good health and was not in a position to serve in the school, therefore, she was tendering her resignation.

After making such an application, the petitioner again made an application on 26.7.2002 saying that the petitioner on account of certain personal problems has tendered the resignation, but the same was not accepted, therefore, she may be allowed to withdraw the same and the period of absence of the petitioner may be adjusted in leave.

The petitioner gave her joining in the school which was accepted by the authorities.

However, the proceedings of absorption of the employees of the school were concluded on 13.1.2005 and, ultimately, it was informed that the claim of petitioner for absorption was not considered only because it was informed by the Principal of the School that the petitioner has submitted her resignation on 30.4.2002.

Because of such a reason, the claim of the petitioner was not considered despite making representation, therefore, she was required to 3 approach this Court.

3: On receipt of the notice of the writ petition, the respondents have filed their return.

The respondents have contended that resignation of the petitioner was unconditional which was accepted by the authority competent at the relevant time and immediately since the resignation was accepted, there was no question of permitting the joining of the petitioner after withdrawal of the said resignation.

The order was issued on 6.11.2000 for taking over of the school and it was made clear that till the absorption of the employees of the school is not completed, no liability could be fastened on the State.

It is contended that since the resignation of the petitioner was accepted by the President of the Society, there was no question of considering the claim of petitioner for absorption and, therefore, no illegality was committed by the official respondent.

The respondent No.4 has filed a reply and has contended that the resignation of the petitioner was not to be accepted by the President of the said Shriram Shiksha Samiti Gangahra, as the school was already taken over on 6.11.2000 by the State Government .

At the best, the matter was to be referred to the education authorities, but this was not done.

Since the petitioner was not in the school at the relevant time, her claim was not considered by the State authorities for absorption in the Government services.

4: By filing a rejoinder, the petitioner has tried to wriggle out of such a situation saying that the resignation was not to be accepted by the President of the Society and an incompetent authority has accepted the resignation of the petitioner.

It was deemed that she was still in the employment as she has withdrawn the letter of resignation before its acceptance by the competent authority.

It is contended that if wrong information is given by the Principal 4 of the school, without conducting any enquiry in that respect, it was not open to the State authorities to deny the claim of absorption of the petitioner.

Since this has been done in illegal manner, the petitioner is still entitled to the relief claimed in the writ petition.

5: Heard learned counsel for the parties at length and perused the record.

6: Undisputedly, before amendment made in the Ashaskiya Shikshan Sanstha (Adhyapkon Tatha Anya Karmchariyon Ke Vetanot Ka Sanday) Adhiniyam, 1978 (hereinafter referred to as the Act for brevity).the provisions were made in the aforesaid Act for appointment of employees in such aided institutions.

It was specifically provided that all such appointments were to be made with the approval of the education officer as is defined under the Act.

However, the appointment of the petitioner was prior to receiving the grant-in-aid by the school.

It is to be seen that the appointment of the petitioner was regularised by the authorities of the School Education Department when the order granting grant-in-aid to the said school was passed on 10.7.1981.

The petitioner was treated to be a teacher appointed on the post in the school and for her, the grant was being paid for the purposes of payment of her salary by the State Government.

The definition of Education Officer as given in Section 2(c) of the Act, means the District Education Officer, or any other officer of the State Government, or any teacher serving in the institutions not below the rank of Principal, or Headmaster by whatever name called, appointed by the State Government as such for the purposes of the Act.

The order of grant-in-aid was issued by the Divisional Superintendent of Education Rewa Division, Rewa, and as such, he became the Education Officer, within the meaning of definition prescribed in the Act.

Section 6 of the Act creates a prohibition in the matter of termination of services, which 5 specifically prescribes that no teacher or other employee shall be dismissed or removed from service, or his services terminated except by an order passed after following such procedure as may be prescribed.

There is no provision made for tendering of a resignation by a teacher, or an employee of the aided school, in exercise of power under Section 10 of the Act.

Thus, if the resignation was submitted by the petitioner after passing of an order by the State Government for taking over of the school, it was not open to the President of the Society to accept the resignation of the petitioner.

The school never remained a school within the meaning of the Act and it becomes the State Government owned institution after taking over of school by the State Government.

For the said purposes, again the definition of Institution as given in Section 2(e) of the Act is required to be looked into.

The moment the order was passed by the State Government for taking over of the school, though the employees were not absorbed, but the entire liability of the school was on the State Government.

This is clear from the conditions mentioned in the order dated 6.11.2000 (Annx.P/2) where it was categorically ordered by the State Government that the school is taken over from the date of order issued by the State Government.

7: not the question remains whether a President of any such Society which was earlier running the school before its taking over by the State Government was a competent authority to accept the resignation of the petitioner or No.?.

Admittedly, the school was taken over on 6.11.2000 and though the staff was not merged finally in the State Government, but the liability of the school was on the State Government from the date of taking over.

The appointing authority of a teacher then become the Divisional Superintendent of Education and not the President of the Society after 6.11.2000.

Even if any resignation was submitted by the petitioner, addressed to the President of the 6 Society, it was required to be forwarded to the Divisional Superintendent of Education for the proper acceptance.

Nothing has been placed on record to indicate that such a resignation of the petitioner was ever referred to the said authority.

It is also not available on record that any decision taken on the resignation of petitioner was communicated to her.

As is mentioned hereinabove, there was no procedure for making of a resignation, therefore, at least the general principles of a month's notice should have been made applicable in such a case.

This too was not done.

In the meantime, the petitioner had made the application for withdrawal of the said resignation, but the same was never considered.

8: In light of these findings, it is to be seen whether the case of the petitioner was to be considered for absorption or not.

Undisputedly, by taking over the school on 6.11.2000, condition of screening was prescribed by the respondent- State, in respect of absorption of the employees of the school.

All the employees were to be subjected to the screening.

The name of the petitioner was already mentioned in the list so submitted before the authorities, but only because a note was appended that she has tendered a resignation on 30.4.2002, without there being any information of acceptance of the same, it appears that the case of the petitioner was not considered only because of this reason.

not it is contended by the petitioner that she was continuously working in the school after making an application for withdrawal of the resignation.

This being so, it was necessary on the part of the respondents to examine the case of the petitioner objectively and if she was found fit to be absorbed, she should have been absorbed in the service.

The period of absence of the petitioner could have been regularised in terms of the Rules, which would have been made applicable after the absorption of petitioner.

Having 7 failed to do so, it is not right on the part of the respondents to say that only because of the resignation submitted by the petitioner, she was not to be considered at all.

In fact, such a resignation of the petitioner was of no consequence as the same was already withdrawn before its acceptance by any competent authority, by the petitioner.

9: Resultantly, this writ petition is allowed to the extent that the respondents would examine the case of the petitioner for her absorption in the school, which was taken over by the State Government on 6.11.2000.

In case, it is found that the petitioner is entitled to be absorbed, as was done in the cases of otheRs.appropriate orders be passed in that respect.

However, the fact remains that for some period the petitioner has worked in the said school and for the said period only she will be entitled for the salary.

For the period of absence, the petitioner would not be entitled to the payment of salary.

The other claims of the petitioner be considered by fixing her salary notionally and be granted to her within a period of three months from the date of receipt of certified copy of the order passed today.

10: The writ petition is allowed to the extent indicated herein above.

There shall be no order as to costs.

(K.K.TRIVEDI) Judge 24/9/2012 A.Praj.

8 HIGH COURT OF MADHYA PRADESH : JABALPUR.

Writ Petition No.10086/2006(s) Smt.

Mary Kutty Michel.

Vs State of M.P.and otheRs.ORDER

Post it for /09/2012 (K.K.Trivedi) Judge /09/2012