Mrs. Mala Tandon Thukral vs Director Of Education & Others
2010 Latest Caselaw 468 Del

        IN THE HIGH COURT OF DELHI AT NEW DELHI

                W.P. (C ) NO. 7356/2008

                        Judgment reserved on :06 January, 2010
                        Judgment delivered on :28.01,2010


Mrs. Mala Tandon Thukral          ......Petitioner
                   Through: Mr. V. Shekhar, Sr. Advocate with
                                        Mr. S. Ganesh , Advocate.

                    versus
Director of Education & others                        ..... Respondents

                           Through: Mr. Puneet Mittal, Advocate
                                    Ms. Ruchi Sindhwani, Advocate
                                    For R-1 and R-2.

CORAM:

HON'BLE MR. JUSTICE KAILASH GAMBHIR,

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

2. To be referred to Reporter or not?                                    Yes

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


KAILASH GAMBHIR, J.

1. By this petition filed under Article 226 of the

W.P.(C) No. 7356/2008 pg. 1 Constitution of India the petitioner seeks quashing of the

communication dated 04.03.2008 whereby the petitioner was

relieved from her duties as a primary teacher w.e.f. 03.03.2008.

The petitioner also seeks directions for reinstatement to her

previous status as a primary teacher with retrospective effect.

2. Brief facts relevant for deciding the present petition are

that the petitioner was a primary teacher in the respondent no.4

school. On account of personal reasons the petitioner submitted

her resignation on 5.12.2007 and on 6.12.2007 she approached

the Principal and expressed her desire to withdraw her resignation.

The very next day i.e. on 7.12.2007 she approached the Principal

stating that she is withdrawing her resignation and to treat her

earlier resignation as null and invalid. On the very same day the

Principal informed the petitioner that the resignation tendered by

the petitioner has been accepted by the competent authority on

6.12.2007 and it is not possible to entertain the withdrawal of the

resignation letter. Thereafter the petitioner repeatedly approached

the school authorities but in vain. She then approached the

Regional office of the Directorate of Education, who sought

W.P.(C) No. 7356/2008 pg. 2 clarification from the Principal of the respondent no.4 school. In

the reply the respondent no.4 school stated that the resignation of

the petitioner dated 5.12.2007 was forwarded to the Chairman,

Managing Committee for approval and the same by a resolution

through circulation was accorded approval on 6.12.2007 and

hence, the resignation stood accepted on 6.12.2007. After this the

petitioner approached the School Tribunal, which passed the order

that it does not have jurisdiction to hear the matter and hence the

present petition.

3. Mr. V. Shekhar, Senior Advocate, appearing for the petitioner

submitted that the petitioner was not in a proper state of mind at

the time of submission of her resignation letter dated 5.12.2007.

He further submitted that after submitting the resignation the

petitioner had discussed the matter with the family members who

counseled her to withdraw the resignation letter and accordingly

on 6.12.2007 the petitioner took up the matter with the Principal

and later on submitted the withdrawal letter dated 07.12.2007.

The contention of the counsel for the petitioner was that before

W.P.(C) No. 7356/2008 pg. 3 the withdrawal of the said resignation letter by the petitioner, no

decision was taken by the Managing Committee of the School nor

any approval of the same was sought by the Managing Committee

of the School, therefore, the petitioner was well within her rights to

withdraw her resignation letter before it was finally accepted by

the school in accordance with Rule 114-A of the Delhi School

Education Rules, 1973. Inviting the attention of this court to the

letter dated 6.12.2007 addressed by the school to the Members of

the Managing Committee and copy of the resolution attached with

the said letter, the counsel contended that the resolution

purported to have been passed by the members of the Managing

Committee by circulation does not contain any date and even the

same is not signed by six of its members. Counsel for the

petitioner further submitted that even as per the resolution,

resignation of the petitioner was accepted w.e.f. 3.3.2008 and

therefore also the petitioner was well within her rights to have

withdrawn her resignation prior to the said date of 3.3.2008.

Counsel for the petitioner further submitted that on 11.12.2007

when the Principal had forwarded the resignation letter to the

W.P.(C) No. 7356/2008 pg. 4 Education Officer, Zone-XIII, by that time the withdrawal letter of

the petitioner was already in possession of the school but still the

same was not forwarded by the school to the Education Officer

and such an act on the part of the respondent school would clearly

show their malafide and ulterior designs. Counsel for the

petitioner further contended that the alleged acceptance of the

resignation letter of the petitioner on 6.12.2007, just within 24

hours of its submission would demonstrate utter haste on the part

of the respondent to the detriment of the valuable rights of the

petitioner who was not given enough time by the school to rethink

her decision.

4. Counsel further submitted that vide letter dated

29.12.2007, the Education Officer Zone XIII, clearly pointed out

certain discrepancies in the resolution alleged to have been

passed by the Managing Committee and therefore it would be

quite evident that the alleged decision taken by the Managing

Committee of the School was never accorded any approval by the

Director of Education in terms of Rule 114-A of the Delhi School

Education Rules, 1973 and therefore the alleged acceptance of

W.P.(C) No. 7356/2008 pg. 5 the Managing Committee has no validity in the eyes of law.

5. Counsel for the petitioner further submitted that the

petitioner had also challenged the decision of the School before

the Ld. Presiding Officer of the Education Tribunal but vide orders

dated 18.9.2008 the Ld. Presiding Officer of the Tribunal dismissed

the appeal of the petitioner for want of jurisdiction. Counsel thus

submitted that the action taken by the school to accept the

resignation is not only illegal and mala fide on the very face of it

but the same is in contravention of the provisions of Delhi School

Education Rules.

6. In support of his arguments counsel for the petitioner placed

reliance on the following judgments:-

1. Ms. Urmil Sharma Vs. Director of Education 1996 III AD (DELHI) 48

2. Kathuria Public School Vs. Director of Education & Anr. 113 (2004) DLT 703

3. Sonica Jaggi Vs. Lt. Governor & Ors.

152(2008)DLT601

4. Modern School Vs. Shashi Pal Sharma & Ors.

       (2007) 8 SCC 540




W.P.(C) No. 7356/2008                                  pg. 6

7. Refuting the said submissions of the counsel for the

petitioner, Mr. Puneet Mittal counsel for the respondent submitted

that it was a voluntary act of the petitioner to have tendered her

resignation from the said post of primary teacher and it was the

petitioner herself who wanted her resignation to be accepted at

the earliest and once having done so, the petitioner cannot be

allowed to resile from her own stand after her resignation was duly

accepted by the Managing Committee of the school through a

meeting of the Managing Committee held by circulation. The

contention of the counsel for the respondent was that the

resignation tendered by the petitioner on 5.12.2007 was duly

accepted by the Managing Committee of the school on 6.12.2007

and therefore, any withdrawal made by the petitioner on

7.12.2007 became totally inconsequential.

8. Counsel for the respondent further submitted that no fault

can be found with the resolution passed by the Managing

Committee by circulation as it is a normal practice adopted by the

Managing Committee and no illegality or infirmity or any sort of

fault can be found with the same. Counsel further submitted that

W.P.(C) No. 7356/2008 pg. 7 the resignation was accepted by a majority of the members of the

Managing Committee and simply because no date of resolution

was mentioned in the copy of the resolution attached to the letter

dated 6.12.2007, the same by itself would not invalidate the said

resolution. Counsel further submitted that any withdrawal made

by the petitioner after the acceptance of the resignation by the

Managing Committee of the school was an exercise in futility by

the petitioner as by that time there was no scope for

reconsideration by the Managing Committee of the request of

withdrawal made by the petitioner.

9. Counsel for the respondent further submitted that the

approval of the Directorate of Education is not mandatory as the

respondent school being an unaided private institution is well

within its rights to take its own decision without seeking prior

approval of the Director of Education. In support of his arguments

counsel for the respondent placed reliance on the judgment of

Apex Court in Kathuria Public School Vs. Director of

Education & Anr. 123 (2005) DLW 89 (DB)

10. I have heard learned counsel for the parties at

W.P.(C) No. 7356/2008 pg. 8 considerable length.

11. It is not in dispute that the act of resignation from the

post of primary teacher was a voluntary act of the petitioner as

nobody had forced her to resign from the said job. It is further not

in dispute that the petitioner had resigned from the said job on

05.12.2007 with the request for its acceptance at the earliest and

after giving a second thought to the same, she sought to withdraw

her resignation on 7.12.2007. The stand of the school is that the

resignation of the petitioner was accepted on 6.12.2007 that too

through meeting of the Managing Committee held by circulation.

However, it is quite bizarre that the school acted in utter haste and

accorded their acceptance just within 24 hours to the said

decision of the petitioner resigning from her job. Another amazing

factor is that the resignation was given an instant approval by the

Chairman of the Managing Committee of the school and thereafter

the members of the Managing Committee were called upon to

append their signatures on the resolution sent to them.

Indisputably, there was no agenda item circulated to the Managing

Committee and there is no date of the resolution when the same

W.P.(C) No. 7356/2008 pg. 9 can be stated to have been passed by the members of the

Managing Committee of the School. But even if these

discrepancies are ignored the indisputable feature of the letter

dated 6.12.2007 is that the members of the Managing Committee

were requested to append their signatures on the resolution and

the same was not sent for their independent decision. It would be

useful to reproduce the contents of the letter dated 6.12.2007 as

below:-

"06 December, 2007 All members of the Managing Committee Delhi Public School Rohini,

Dear Sir/Madam Ms. Mala (Tandon) Thukral, PRT has resigned from our school on personal grounds. Her resignation has been approved by the Chairman, Managing Committee, DPS Rohini. A resolution from the School Managing Committee is required to be forwarded to the Directorate of Education, conveying the acceptance of the resignation.

You are requested to kindly append your signature on the said resolution enclosed herewith.

Thanking you

With Warm regards Yours sincerely Sd/-

12. In the present day world of cut throat competition and

growing unemployment it is not an easy task to secure a job. The

W.P.(C) No. 7356/2008 pg. 10 petitioner no doubt was a regular employee appointed on the post

of a primary teacher and it has to be borne in mind that nobody

would ordinarily choose to resign from his/her job unless there are

compelling circumstances to do so. As per the petitioner she was

suffering from depression and when she consulted her family

members, she immediately reviewed her decision and sought

withdrawal of resignation but shockingly within just 24 hours the

school authorities sought the approval of the resignation through

circulation by the Managing Committee. This court is not finding

any fault if in certain cases there is a requirement of any

resolution to be passed by the Managing Committee by circulation

but in any case the issue of resignation of the petitioner was not

one such matter which required such an urgent attention of the

members of the Managing Committee. Moreover, the members of

the Managing Committee were required to append their signatures

on the resolution already circulated and therefore also it cannot be

inferred that the members of the Managing Committee took any

independent and conscious decision on the resolution sent by the

school authorities. In all such cases, it is the moral duty of the

W.P.(C) No. 7356/2008 pg. 11 Members of the Managing Committee, either to call the concerned

employee to have his/her views behind tendering the resignation

or through some other process so as to feel satisfied that the

decision taken by the employee is voluntary and independent and

not under any force, duress, coercion or because of some

depression or unstable state of mind.

13. The counsel for the petitioner placed reliance on para

21 of Modern School Vs. Shashi Pal Sharma (supra). This

would however be of no help to the petitioner as the conditions

therein are only departmental instructions and do not form part of

the ratio decidendi of the judgment.

14. It is also not in dispute that by letter dated 20.2.2008

the Deputy Director of Education had directed the school to

withdraw the said resignation as the school had failed to adopt the

proper procedure as earlier pointed out by the Education Officer

vide letter dated 29.12.2007. The school has failed to pay heed to

this direction and went further to relieve the petitioner from her

duties w.e.f 3.3.2008. The respondent no.4 school is a private

unaided school and is bound by the Delhi School Education Act,

W.P.(C) No. 7356/2008 pg. 12 1973 and the Rules framed there under. It would be pertinent to

reproduce Rule 114-A of the said Act here:

"114-A Resignation The resignation submitted by an employee of a recognized private school shall be accepted within a period of thirty days from the date of the receipt of the resignation by the managing committee with the approval of the Director. Provided that if no approval is received within 30 days, then such approval would be deemed to have been received after the expiry of the said period."

Hence it is manifest from the above provision that the respondent

no.4 school had to get the approval from the Director of Education

within 30 days failing which the approval would be deemed to

have been received after the expiry of the said period.

15. The counsel for the petitioner placed reliance on the

judgment of this court in Urmil Sharma vs. Director of

Education (supra) and it would be pertinent to reproduce the

relevant para of the same here:

"8. It is not in dispute that in the matter of acceptance of resignation compliance of Rule 114 A of the Delhi School Education Rules is necessary. Rule 114 A reads:

114-A Resignation

The resignation submitted by an employee of a recognized private school shall be accepted within a period of thirty days from the date of the receipt of the resignation by the managing committee with the approval of the Director. Provided that if no

W.P.(C) No. 7356/2008 pg. 13 approval is received within 30 days, then such approval would be deemed to have been received after the expiry of the said period.

9. A bare reading of the Rule would show that there are two conditions precedent in order to make the resignation effective, namely, it must be accepted within a period of thirty days from the date of the receipt of the resignation by the Managing Committee and such acceptance should be with the approval of the Director of Education. The approval, if not received within thirty days, the Director will be deemed to have recorded the approval after the expiry of thirty days."

The twin conditions above stated are cumulative and not in the

alternative and failing one of these, the resignation cannot be said

to be final.

16. According to Wharton's Law Lexicon (15th Edition, page

1502) the word "resignation" has been derived from the maxim:

Resionatio est juris proprii spontanea refutatio which means

resignation is a spontaneous relinquishment of one's own right

and in relation to an office, it connotes the act of giving up or

relinquishing the office. Under the common law the resignation is

not complete until it is accepted by the proper authority and

before such acceptance an employee can change his mind and

withdraw the resignation but once the resignation is accepted the

contract comes to an end and the relationship of master and

W.P.(C) No. 7356/2008 pg. 14 servant stands snapped. At the same time ,it has been held by the

Apex court in Moti Ram vs. Param Dev (1993)2SCC725 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 also held that:

"In cases 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 conditions governing it."

17. Hence applying the same to the present case, the bilateral act of resignation required two conditions to be fulfilled:

(i) tendering of the resignation of the petitioner and acceptance by the respondent no.4 school; and

(ii) approval by the Directorate of Education within a period of thirty days

The second condition being not fulfilled in the case, the

W.P.(C) No. 7356/2008 pg. 15 resignation cannot be said to be operative.

18. Hence it would be manifest from the above discussion

that when an employee resigns his office, it implies that he has

taken a conscious decision to sever his/her relationship with the

employer. However, in the present case the petitioner after

contemplating her initial decision, did not want to sever her

relation with her employer and reconsidering the same withdrew

the resignation letter.

19. Therefore, relieving a teacher from service after

resignation is tendered and thereafter withdrawn by her before its

acceptance by the appropriate authority will not be justified.

20. In the light of the above discussion, the respondent

no.4 school is directed to reinstate the petitioner to her previous

post of primary teacher with continuity of service and grant of full

salary and allowances etc.

The present petition is accordingly allowed.

January 28, 2010                          KAILASH GAMBHIR,J



W.P.(C) No. 7356/2008                                    pg. 16