Sardar Narinder Singh vs The Managing Committee Of Shri ...
2009 Latest Caselaw 598 Del

      IN THE HIGH COURT OF DELHI AT NEW DELHI

+                     W.P. ( C) 2754/86

                     Judgment delivered on: February 19,2009

Sardar Narinder Singh                          ..... Petitioner

       Through: Mr. Shailendra Bhardwaj for the petitioner.

                          versus

The Managing Committee of Shri
Guru Tegh bahadur Khalsa Sr. Sec.School
And Ors.                             ..... Respondents

              Through: Ms. Sujata Kashyap for respondent/DOE
                          Mr. I.S. Baxi for the respondent/school

CORAM:
HON'BLE MR. JUSTICE KAILASH GAMBHIR

1.     Whether the Reporters of local papers may
       be allowed to see the judgment?                             Yes

2.     To be referred to Reporter or not?                          Yes

3.     Whether the judgment should be reported
       in the Digest?                                              Yes


KAILASH GAMBHIR, J. (Oral)

*

1. By way of the present petition filed under Articles 226

and 227 of the Constitution, the petitioner seeks issuance of

directions against respondent no.1 to withdraw their letter

dated 7.8.1986 and 30.8.86. The petitioner also seeks

directions for declaration of sub-Rule 2 of Rule 48 of the

Central Civil Services (Pension) Rules, 1972 ultravires.

Directions are also sought by the petitioner against

respondents 1 and 2 to pay the petitioner's entire salary and

other allowances from the month of September 1986

onwards.

2. Brief facts of the case as set out in the present

petition are that the petitioner was appointed as a Language

Teacher by the erstwhile Managing Committee of the school

w.e.f. 24.7.1950. Thereafter the petitioner was promoted to

the post of PGT on 8.8.1962 in the Pay Scale of Rs.350-700/-

p.m. on account of his hard labour, honest and efficient

outlook and ultimately the petitioner was appointed as a

Principal of the school w.e.f. September 26, 1974 by Shri

Tikka Jagjit Singh, Retd. Judge High Court as its Chairman

and the said appointment was duly approved by the Director

of Education, Delhi, i.e., the respondent no.3. The case of the

petitioner is that he was performing his duties and functions

as a Principal diligently, honestly and conscientiously in the

best interest and welfare of the school. In the meantime Delhi

Sikh Gurdwara Management Act was enacted and the

elections for the Delhi Sikh Gurdwara Management

Committee were held. The Delhi Sikh Gurdwara

Management Committee constituted the Managing Committee

of the school under it and the new Managing Committee of

the school had taken over headed by Shri Tarlochan Singh

Sarna as its Chairman. The then Chairman of the new

Managing Committee Shri Trilochan Singh Sarna arbitrarily

cancelled the petitioner's appointment as Principal of the

school, w.e.f. August, 29, 1975 and acted in an absolutely

illegal manner in utter disregard of the rule without

assigning any reason whatsoever and without seeking the

approval of the respondent no.2. The respondent no.3 wrote a

letter dated 1.9.1975 to the Chairman of the school wherein

he disapproved such arbitrary and illegal decision of the

Chairman of the school . The petitioner then filed a civil suit

for injunction being Suit No.782/75 in the court of Senior Sub

Judge, Delhi, challenging the cancellation of his appointment.

The Sub Judge Delhi stayed the impugned resolution dated

29.8.75. Afterwards the new Managing Committee on the

directions of the respondent no.3 reviewed the case of the

petitioner and revoked its earlier resolution dated 29.8.75

cancelling the petitioner's appointment as Principal of the

school. It was also resolved that the petitioner shall be

deemed to have been treated on duty for the intervening

period i.e. from 29.8.75 to 16.4.76 and held that the

petitioner shall be entitled to full pay with all the allowances

and services benefits. However the petitioner was not paid

arrears of his salary and allowances for the said period. After

the inception of the new Managing Committee the Manager

of the school started interfering in the day to day affairs of the

school in spite of the fact that the petitioner made many

requests to him that such an attitude would only spoil the

atmosphere of the school as the same was not conducive to

the interest and welfare of the school. The petitioner made

such request both orally as well as in writing but to no effect.

The petitioner also requested the Chairman on a number of

occasions to convene the meeting of the managing committee

so as to discuss the functioning of the school and the

interference of the Manager in the day to day affairs of the

school, however, in spite of this no meeting of the Managing

Committee was held. The petitioner also requested the

Chairman to intervene in the matter as such a hostile attitude

of the Manager towards the petitioner would have an adverse

effect on the smooth functioning of the school besides

affecting the education of the students. Under such situation

created by the Manager of the school, the petitioner was

compelled to seek voluntarily retirement vide his letter dated

25.10.2984. However, on 29.10.84 the petitioner was made to

withdraw the same under the suggestions and directions of

Mr.S. Jaswant Singh, President DSGMC on the assurance the

grievance of the petitioner would be looked into. But the

attitude of the Manager remained unchanged and he became

even more hostile in his vindictive attitude. Ultimately in or

around August, 1985 the petitioner filed a civil writ petition

in the High Court seeking issuance of directions to the

respondents to pay the arrears of salary along with interest

for the intervening period i.e. 29.8.75 to 16.4.76 after being

reinstated. This court vide order dated 20.11.85 directed the

respondent no.3 to deduct the said amount of arrears of

salary from the future grant-in-aid payable to the school and

further directed to pay the same to the petitioner. The

Manager of the school got infuriated by the decision of the

this court. The salary of the petitioner for the month of

October, 1985 was delayed for the said reason alone for a

period of more than two months. The Manager of the school

deliberately withheld the petitioner's salary for the months of

April and December 1985 and January and February 1986 on

imaginary grounds with the sole intentions to put the

petitioner under harassment. Under such compelling

circumstances and harassment that was being meted out to

the petitioner and his family, the petitioner was again forced

to seek voluntary retirement and in this regard he made an

application to the Chairman of the Managing Committee

seeking voluntary retirement w.e.f. 31.7.86.

3. During the course of the arguments, counsel for the

petitioner did not press the prayer (b) of the writ petition.

Counsel submits that the petitioner sought voluntary

retirement vide letter dated 4.2.86 from the services of the

school w.e.f. 31.7.1986. Since no such decision was taken by

the Managing Committee of the school to accede to his

request, another letter dated 29.7.86 was sent by the

petitioner to grant him compulsory retirement thereby

extending the period of notice of voluntary retirement by

another six months i.e. up to 31.1.1987. In reply to the said

letter the respondent management vide their reply dated

7.8.86 agreed to grant extension till 31.8.86. Counsel for the

petitioner further submits that before the said deadline of 31st

August 1986 came to an end the petitioner gave a rethinking

to his decision and vide letter dated 25.8.86 withdrew said

notice of seeking voluntary retirement. The petitioner

through the said letter clearly wrote to the Chairman of the

Managing Committee of the school that his request made

earlier be treated as cancelled and withdrawn. Counsel for

the petitioner further submits that immediately thereafter the

respondent school in utter haste by their letter dated 29.8.86

rejected the said request made by the petitioner and vide

said letter directed the petitioner to hand over complete

charge of his post of Principal to one Mr. S. Ram Singh, the

then Vice Principal.

4. Ms. Sujata Kashyap counsel for the

respondent/DOE submits that the Managing Committee of the

school did not seek any approval from the Directorate of

Education to grant voluntary retirement to the petitioner.

Counsel further submits that even there was no such

intimation received by the Directorate of Education that

meeting of the Managing Committee was held to consider

the said request of the petitioner to grant him voluntary

retirement. Ms. Kashyap thus submits that the action taken

by the school management is ex-facie illegal as the petitioner

was well within his right to withdraw his request before the

deadline of 31.8.86 and also in view of the fact that no

decision in this regard was taken by the Managing Committee

of the school nor any approval was sought by the Managing

Committee on the request of the petitioner seeking voluntary

retirement.

5. On the other hand, Mr. Baxi counsel for the

respondent school submits that the Managing Committee was

well within their right to take decision on the request made

by the petitioner seeking his voluntarily retirement without

any sort of pressure upon him. Mr. Baxi further submits that

in other words, compulsory retirement was granted to the

petitioner till 31.8.86, as per the request made by the

petitioner and therefore, there was no illegality on the part

of the Managing Committee in taking the said decision. Mr.

Baxi also states that there was no requirement to obtain the

approval from the Directorate of Education in the case of

voluntary retirement and the Managing Committee was well

within their power to take such a decision.

6. I have heard learned counsel for the parties and

gone through the record.

7. Indisputably, the petitioner himself sought his

voluntary retirement vide letter dated 4.2.1986 and since no

decision was taken by the Managing Committee of the School

on the said letter, therefore, he voluntarily extended the time

so as to enable the Managing Committee of the school to take

a decision by the end of 31.1.87. In the meanwhile, the

petitioner had a rethinking of his decision and vide his letter

dated 25.8.86 withdrew his earlier request of voluntary

retirement and called upon the respondent Management to

treat his request as cancelled/withdrawn. This request of

withdrawing his request activated the respondent

management and immediately on the receipt of the same, a

letter was sent by them to the petitioner accepting his request

to grant him compulsory retirement w.e.f 31.8.1986. There

is no reference made by the respondent school that any such

decision was taken by the Managing Committee or any

Resolution in this regard was passed by the Managing

Committee. Even there is no reference to any approval

having been sought by the Managing Committee on the said

decision, taken by them, although, in the letter dated 6.9.86,

vaguely there is a reference to the Resolution having been

passed by the Managing Committee through circulation and

the same was sent to the Department for the necessary

action but no details of such Resolution have been given in

the said letter. In any event of the matter, the Directorate of

Education has taken a stand that no such request was

received by the Directorate of Education to grant approval to

the purported decision of the Managing Committee to grant

voluntary retirement to the petitioner. As per Rule 98 of the

Delhi School Education Rules, 1973, the appointing authority

of every employee of a school is Managing Committee of the

school but every such appointment has to be duly approved

by the Directorate of Education. Under Section 8(2) of Delhi

School Education Act, no employee of a recognized private

school can be dismissed, removed or reduced in rank nor

his/her services can otherwise be terminated except with

the prior approval of the Directorate of Education. In this

regard, the Hon'ble Apex Court in Principal Vs. Presiding

Officer-(1978)1 SC 498, observed as under:

"7. Sub-section (2) of Section 8 of the Act ordains that subject to any rule that may be made in this behalf, no employee of a recognised private school shall be dismissed, removed or reduced in rank nor shall his service be otherwise terminated except with the prior approval of the Director of Education. From this, it clearly follows that the prior approval of the Director of Education is required only if the service of an employee of a recognised private school is to be terminated."

8. It is, therefore, manifest that it was incumbent

upon the Managing Committee of the school to have sought

approval of their decision to grant compulsory retirement to

the petitioner, after the Managing Committee of the school

had taken a decision in their meeting but nothing has

been placed on record by the respondent school to show that

such Resolution of the Managing Committee was sent to the

Directorate of Education for their approval. In the absence of

the said approval, the decision taken by the Managing

Committee is ex-facie illegal and therefore, the same cannot

sustain in the eyes of law. Even otherwise once the petitioner

had withdrawn from his request prior to the deadline of

31.8.1986, it was expected from the respondent school to

have acceded to his request instead of taking a hasty decision

over the previous request of the petitioner to grant him

compulsory retirement w.e.f. 31.8.86. The law in this regard

is well settled that unless controlled by conditions of service

or statutory provisions, retirement mentioned in resignation

letter must take effect from the date specified therein but it is

open to an employee to withdraw resignation letter before it

becomes effective. In this regard, the Hon'ble Apex Court in

U.O.I. vs. Wingh Commander T. Parthasarathy, (2001) 1

SCC 158 observed as under:-

"6. We have carefully considered the submissions of the learned counsel appearing on either side. The reliance placed for the appellants on the decision reported in Raj Kumar case1 is inappropriate to the facts of this case. In that case this Court merely emphasised the position that when a public servant has invited by his letter of resignation determination of his employment his service clearly stands 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 condition of the 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 and that till the resignation is accepted by the appropriate authority in consonance with the rules governing the acceptance, the public servant concerned had locus poenitentiae but not thereafter. This judgment was the subject-matter of consideration alongside the other relevant case law on the subject by a Constitution Bench of this Court in the decision

reported in Union of India v. Gopal Chandra Misra3. A request for premature retirement which required the acceptance of the competent or appropriate authority will not be complete till accepted by such competent authority and the request could definitely be withdrawn before it became so complete. It is all the more so in a case where the request for premature retirement was made to take effect from a future date as in this case. The majority of the Constitution Bench analysed and declared the position of law to be as hereunder: (SCC p. 317, para 50) "50. It will bear repetition that the general principle is that in the absence of a legal contractual or constitutional bar, a 'prospective' resignation can be withdrawn at any time before it becomes effective, and it becomes effective when it operates to terminate the employment or the office tenure of the resigner. This general rule is equally applicable to government servants and constitutional functionaries. In the case of a government servant/or functionary/who cannot, under the conditions of his service/or office, by his own unilateral act of tendering resignation, give up his service/or office, normally, the tender of resignation becomes effective and his service/or office tenure terminated, when it is accepted by the competent authority. In the case of a Judge of a High Court, who is a constitutional functionary and under Proviso (a) to Article 217(1) has a unilateral right or privilege to resign his office, his resignation becomes effective and tenure terminated on the date from which he, of his own volition, chooses to quit office. If in terms of the writing under his hand addressed to the President, he resigns in praesenti, the resignation terminates his office tenure forthwith, and cannot therefore, be withdrawn or revoked thereafter. But, if he by such writing, chooses to resign from a future date, the act of resigning office is not complete because it does not terminate his tenure before such date and the Judge can at any time before the arrival of that prospective date on which it was intended to be effective, withdraw it, because the Constitution does not bar such withdrawal."

(emphasis supplied)

7. This Court had again an occasion to consider the question as to the principle of law to be applied to a case of resignation made to become effective on the expiry of a particular period or from a future date as desired by the employee in Punjab National Bank v. P.K. Mittal4. It was held therein that resignation being a voluntary act of employee, he may choose to resign with immediate effect or with a notice of less than 3 months if the employer agrees to the same or he may also resign at a future date on the expiry or beyond the period of 3 months as envisaged under the governing regulation in that case, even though there is no such consent from the employer, and that, it was always open to the employee to withdraw the same before the date on which the resignation could have become effective."

9. In the light of the above discussion, the decision

taken by the respondent school vide their letters dated

7.8.1986 and 30.8.1986 are hereby set aside.

10 The petitioner shall be entitled to all the benefits of

his past service and other allowances including his pensionary

benefits etc., and will be treated in service till the age of his

superannuation on the same post.

11. With these directions, the petition stands disposed

of.

February 19, 2009                  KAILASH GAMBHIR, J.
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