Smt Lovika Jain vs The Principal, Delhi Public ...
2014 Latest Caselaw 5426 Del

$~16
*    IN THE HIGH COURT OF DELHI AT NEW DELHI
+       LPA 88/2014
        SMT LOVIKA JAIN                                ..... Appellant
                      Through:         Mr. R.K. Saini, Mr. Ayush Arora,
                                       Advocates.
                           versus

        THE PRINCIPAL, DELHI PUBLIC SCHOOL & ORS.. Respondents
                      Through: Mr. Puneet Mittal, Advocate for
                                 respondent No. 1 and 2.
                                 Ms. Purnima Maheshwari, Advocate
                                 for respondent No. 3.
        CORAM:
        HON'BLE MR. JUSTICE KAILASH GAMBHIR
        HON'BLE MR. JUSTICE NAJMI WAZIRI
                            ORDER

%                          31.10.2014

KAILASH GAMBHIR, J. (ORAL)

The challenge in this appeal is to the order dated 9th October 2013

passed by the learned Single Judge whereby the learned Single Judge has

dismissed the writ petition filed by the appellant seeking direction for

accepting his resignation effective from 31.7.2009 and to grant salary for the

period from 17th May 2009 to 31st July 2009.

Mr. R.K. Saini, the learned counsel for the appellant submits that the

learned Single Judge failed to appreciate the fact that the acceptance of the

appellant's resignation by the respondent Nos. 1 and 2 with effect from 16th

May 2009 before the expiry of the period of three months' notice is in clear

violation of proviso 2 (i) of Rule 96(9) of Delhi School Education Rules,

1973. The learned counsel for the appellant also submits that no

arrangements were made by the respondent Nos. 1 and 2 to appoint any

substitute teacher in the place of the appellant as on the date of acceptance

of the resignation and it is only later that Ms.Vandana Goswami, an existing

teacher was entrusted with the duties of the appellant in addition to her own

duties; that the respondents had no right to unilaterally waive the notice

period without there being any request made from the side of the employee

and therefore the respondents could not have deprived the appellant from the

salary she was entitled to during the three months' notice period; that even

in the letter accepting the resignation of the appellant, nowhere have the

respondent Nos. 1 and 2 taken a stand that they had appointed a teacher in

her place in terms of proviso 2 (ii) of Rule 96(9); and that the appellant did

not join the International School (her new employer) as she was conscious

of the fact that she will have to serve the respondent No. 2 school during the

three months' notice period otherwise she would have joined the

International School immediately after her resignation.

We have heard the learned counsel for the appellant at considerable

length.

The petitioner was a permanent TGT (Counsellor) with respondent

Nos. 1 and 2. She had tendered her resignation vide her resignation dated 1st

May 2009. In her resignation letter, she stated that she would like to resign

from the present post w.e.f. 1st May 2009. Simultaneously she also

mentioned that she would serve out the notice period. This resignation was

accepted by the respondent Nos. 1 and 2 on 12th May 2009, relieving the

petitioner from her duties w.e.f. 16th May 2009. In the acceptance letter the

respondent Nos. 1 and 2 made it explicitly clear that they had waived the

notice period. The school was on vacation from 16th May 2009 till 7th July

2009 and when it reopened, respondent Nos. 1 and 2 had assigned the duties

of the petitioner to their existing teacher Ms. Vandana Goswami.

The learned Single Judge has correctly appreciated the proviso to

Rule 96(9) of the Delhi School Education Rules, 1973, by reading the same

with the third proviso which states that before the expiry of the three

months' period, if a school is able to provide a substitute for a teacher, who

is resigning then, Managing Committee can relieve the teacher from her

earlier duties. Learned Single Judge is also correct in holding that the object

of law, which becomes clear on reading the second and third provisos of

Rule 96(9) of Delhi School Education Rules, 1973 together, is that the

studies of the children in the school should not be affected because of the

teacher suddenly leaving the school and this period of three months is

provided so that the school may get a substitute teacher. The learned Single

Judge has also clarified that the expression 'substitute teacher' does not

mean that there necessarily has to be a fresh appointment inasmuch as the

school may have sufficient number of teachers to teach the students, who

were earlier taught by the teacher who had resigned from the school.

Learned Single Judge has also correctly observed that if within three months

as provided under proviso 2 (i) to Rule 96(9) of the said Rules, the substitute

teacher is available then surely the school will be entitled to accept the

resignation of the employee even before the expiry of three months period

and consequently bring an end to the services of such resigning officer even

prior to the three months' period. Certainly, it is for the school to see

whether they are in a position to provide a substitute for the teacher who is

resigning and it is not for the teacher, who had resigned to keep a track as to

how and in what manner the school would appoint a teacher in her place. In

any event, the petitioner was to join her duties with the International School

on or before 27th July 2009 meaning thereby that she was to join her duties

before the expiry of three months' period from the date of her resignation.

In light of the aforesaid discussions, we find that the order passed by

the learned Single Judge is a well reasoned order and there is no reason to

interfere with the same. There is no merit in the present petition. Resultantly,

it is dismissed with no orders as to costs.

KAILASH GAMBHIR, J

NAJMI WAZIRI, J OCTOBER 31, 2014 pkb