The Managing Committee Of Rani ... vs The Director Of Education, Govt. ...
2017 Latest Caselaw 177 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                           W.P.(C) No. 20218-19/2004
%                                                       11th January, 2017

THE MANAGING COMMITTEE OF RANI DUTTA ARYA
VIDYALAYA AND ANR.                          ..... Petitioner
                Through:  Mr. G.Tushar Rao, Mr. Mayank
                         Sharma and Mr. Rajiv Trivedi,
                         Advocates.
                            versus

THE DIRECTOR OF EDUCATION, GOVT. OF NATIONAL CAPITAL
TERRITORY OF DELHI AND ORS.                    ..... Respondents

Through: Mr. Satyakam, Addl. Standing counsel Govt. of NCT of Delhi and Mr. Pradeep Kaushik, LA Zone, XXVII, DOE, GNCTD for R-1 and 2.

Mr. Arvind Kr. Sharma, Adv. for R-

CORAM:

HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?      YES


VALMIKI J. MEHTA, J (ORAL)

1. By this writ petition under Article 226 of the Constitution of

India, the petitioner no.1-school/Rani Dutta Arya Vidyalaya (hereinafter

referred to as petitioner-school) impugns the order of the Director of

Education dated 15.12.2004 by which the Director of Education has refused

to grant approval to the petitioner-school to the resignation of the

respondent no.3/Sh. Nand Kishore from the petitioner-school. Sh. Nand

Kishore was working as a Head Clerk in the petitioner-school. The

impugned order of the Director of Education dated 15.12.2004 reads as

under:-

"OFFICE OF THE EDUCATION OFFICER: ZONE XXVII:

DISTT.CENTRAL SKV ZEENAT MAHAL SCHOOL BUILDING: KAMLA MARKET NEW DELHI No.EO/Zone-27/2004/3062 Dated: 15/12/04

To The Manager, Rani Dutta Arya Vidyalaya, Pataudi House, Darya Ganj, New Delhi.

Sub: Approval on resignation tendered by Shri Nand Kishore, Head Clerk, Rani Dutta, Arya Vidyalaya, Pataudi House, Darya Ganj, New Delhi.

Sir, I am directed by the competent authority to convey to you that taking a view in totality, the request of the managing committee to grant approval to resignation tendered by Shri Nand Kishore is set aside because the provision of the DSEA & R 1973 have not been followed and that management is directed to allow Shri Nand Kishore to join the duties as Head Clerk with immediate effect. The compliance report be sent within seven working days of the receipt of this letter.

Yours faithfully,

Sd/-

13/12/2004 (Dr. K.S.Yadav) Education Officer Zone-27 Copy to Shri Nand Kishore R/o 1/5618 Balbir Nagar Extn., Shahadara, Delhi 110032 for information.

(Dr. K.S.Yadav) Education Officer Zone-27

2. The issue before this Court is that whether in the facts of the

present case the petitioner is justified in taking the factum of resignation of

the respondent no.3 from the petitioner-school given by the respondent no.3

in terms of his letter dated 15.3.2003 to be final and binding and

consequently of the impugned order dated 15.12.2004 for being held as

illegal and hence not binding upon the petitioner.

3. The issue of resignation of an employee of a school is governed

by Rule 114A of the Delhi School Education Rules, 1973, and this Rule

114A reads as under:-

"114A. Resignation- The resignation submitted by an employee of a recognised 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 expire of the said period."

4. Besides the aforesaid Rule 114A, Rule 96(9) of the Delhi

School Education Rules would also be relevant because the said provision

talks of relieving of the teacher after acceptance of resignation only after a

period of three months. This Rule 96(9) reads as under:-

"Rule 96. Recruitment- xxxxx (9) No managing committee shall entertain any application for employment from a person who is already serving as teacher in a recognised school, whether aided or not, unless the application from such person is duly forwarded by the manager of the school in which such applicant is serving:

Provided that every application from such person shall be forwarded by the manager, but any application in excess of three in a year shall not be forwarded unless the managing committee, for reasons to be recorded by it in writing, so directs:

Provided further that no such teacher shall be relieved of his duties except after the expiry of a period of:

(i) three months, in the case of a permanent teacher, from the date on which notice of intimation to leave the school is given; and

(ii) one month, in the case of a teacher who is not permanent, from the date on which notice of intimation to leave the school is given:

Provided also where the managing committee is in a position to provide for a substitute for such teacher earlier than the respective period specified in the foregoing proviso, the managing committee may relieve the teacher of his duties on the expiry of such earlier period."

5. On a plain reading of the language of Rule 114A of the Delhi

School Education Rules one is left with no manner of doubt that the object

of Rule 114A when it provides the period of 30 days for finalization of

resignation the same is for the benefit of the employee i.e the employee is

not forced to work beyond a period of 90 days from the date of submitting

the letter of resignation. Rule 114A uses the expression "shall be accepted"

i.e there is no option for a school not to accept the letter of resignation. The

expression "within a period of 30 days from the date of receipt of

resignation" does not in any manner cut down the strength of the expression

"shall be accepted". The reason for the resignation given by an employee of

a school shall be compulsorily accepted becomes clear even from the

Proviso of Rule 114A which provides that if the Director of Education does

not give approval to the resignation within 30 days, there is deemed

approval of the resignation. The reason for such language of Rule 114A of

mandatory acceptance of the resignation of the employee, taking that there

is no dispute that an employee has in fact resigned, is for the reason that

there cannot be forced labour i.e no one can be forced to work in an

institution where he does not want to work because such an employee wants

to resign from services. The issue of resignation is different from the issue

of an employee seeking voluntary retirement, because, on account of

voluntary retirement of an employee various monetary benefits would flow

from services rendered till voluntary retirement, however the effect of

resignation is that the entire service record of the employee is wiped out and

such an employee receives much lesser monetary benefits as compared to an

employee who is allowed a voluntary retirement. The spirit of why the

requirement of acceptance of resignation is mandatory i.e a school is not

entitled to force an employee to work with the school, is also found in

Section 14(1)(b) and (d) of the Specific Relief Act, 1963. Therefore, there

is no manner of doubt that resignation of an employee of a school either

takes place within 30 days of the employee submitting resignation by its

acceptance by the Managing Committee of the school with the approval of

the Director of Education or in any case if there is no refusal of acceptance

of resignation by the Director of Education within 30 days, resignation then

is final on the expiry of the period of 30 days.

6. An issue which also comes to mind is that suppose an

employee of a school wants to resign, the question is, can the Director of

Education force him not to resign inasmuch as Rule 114A requires approval

of the Director of Education for resignation. Ordinarily I do not think so. As

already stated above, a contract of personal service cannot be specifically

enforced as that would amount to effectively compulsorily seek

performance of service, and which is not possible under law. Therefore,

when the provision of Rule 114A requires approval of the Director of

Education, obviously such an issue of declining of approval ordinarily only

comes in if there is a doubt with respect to whether or not the resignation of

an employee is or is not genuine because there may be cases in which it may

be found that the resignation may be forced upon an employee. Save apart

the issue with respect to any issue of resignation not being a voluntary

resignation, there would be only a rare case where a Director of Education

would possibly be entitled to refuse the resignation given by an employee

from a school. Though we cannot visualize all cases where the Director of

Education can refuse approval, ordinarily in view of the contract of service

being a contract of personal service by an employee, with the aspect of

entitlement of a person not to work for an organization, the Director of

Education is thus ordinarily bound to give approval to the resignation of an

employee from the school.

7. There is also another aspect which is to be noted and which

arises from a conjoint reading of Rules 114A and Rule 96(9) of the Delhi

School Education Rules, and which is that resignation becomes effective

from the date of acceptance of the resignation or at the maximum on the 30th

day of submitting the letter of resignation, but, the actual relieving of duty

after acceptance of resignation is and can be from a prospective date and

which in the view of Rule 96(9) at the very maximum can be three months

from the date from which the employee gives his resignation to the school.

Of course, the issue of three months notice period is for the benefit of the

school and not for the employee because the object of the relieving period of

three months is for the school to ensure that a substitute employee is

available and the working of the school is not prejudicially affected. This

aspect I have had an occasion to discuss and decide in the case of Smt.

Lavika Jain Vs. The Principal, Delhi Public School & Ors. 205 (2013)

DLT 306 and the relevant paras of which judgment read as under:-

5. Whereas the petitioner contends that every teacher on giving notice of intimation to leave the school is entitled to three months‟ pay in terms of second proviso to Rule 96(9), the respondent-school relies upon the third proviso to state that if a substitute can be provided earlier than the period specified in the second proviso of three months, managing committee is entitled to relieve the teacher before the expiry of three months.

6. At the outset, I may state that there is no provision in the Rules except Rule 96(9) and as per which a permanent employee like the petitioner can seek three months salary after giving a notice of resignation. Resignation of an employee is in terms of Rule 114A of the Rules and as per which all that is required is that the managing committee must accept the resignation within 30

days. There is no issue in this case of the managing committee not having accepted the resignation within 30 days. What is argued before me on behalf of the petitioner is that even after acceptance of resignation, yet, the leaving employee will be entitled to work and get salary of three months in terms of second proviso to Rule 96(9).

7. In my opinion, the arguments which are urged on behalf of the petitioner by placing reliance upon the second proviso to Rule 96(9) are misconceived inasmuch as the second proviso to Rule 96(9) is not made for the benefit of the teacher but for the benefit of the school. This becomes clear from the third proviso which states that before expiry of the three months period if a school is able to provide a substitute for teacher who resigns, then, managing committee can relieve the teacher from his earlier duties. The earlier period means that period which commences when the substitute teacher would be available to the school. The object of law and which become clear on reading of second and third provisos together of Rule 96(9) is that the studies of the children in the school should not be affected by a teacher suddenly leaving the school. The period of three months is provided so that the school may get a substitute teacher. The expression „substitute teacher‟ does not mean that there has to be necessarily a fresh appointment inasmuch as the school may have sufficient number of teachers to take the classes of that teacher who resigned from the school. If within the three months as provided under the first proviso to Rule 96(9) a substitute teacher is available then surely the school will be entitled to accept the resignation of an employee even before the three month period, and consequently bring an end to the services of such resigning teacher even prior to three months period.

8. Since in the present case respondent-school has stated that duties of the petitioner were given to Ms. Vandana Goswami after reopening of the summer vacation of the school, the school remaining closed from 16.5.2009 to 7.7.2009, in my opinion, it is not open to the petitioner to contend that petitioner was entitled to work and take salary for the period of three months under the second proviso to Rule 96(9) of the Rules. As already stated above, a combined reading of second and third provisos show that period of three months is for the benefit of the school and not for the teacher who is leaving the services of the school."

8. The difference between the final date of the acceptance of

resignation and the fact that there may be relieving from a prospective

future date is also duly clarified by the Supreme Court by making such

observations with respect to the distinction between the date of acceptance

of resignation and the future/subsequent date of relieving, in the judgment in

the case of Modern School. Vs. Shashi Pal Sharma & Others (2007) 8

SCC 540 and the relevant para 17 of which judgment reads as under:-

"17. Once the resignation of the first respondent had validly been accepted, the question which would arise for consideration is as to whether the same could be done before 17-06-1997. It is not a case where acceptance of the resignation was made effective from a future date. Resignation of the first respondent having been accepted, only he was to be relieved from 17-06-1997. We have noticed hereinbefore the purport of Rule 114-A of the Rules, in terms whereof resignation was to be accepted within a period of 30 days. In view of the aforementioned statutory provision, in our opinion, only because the first respondent was to be relieved with effect from 17-06-1997 the same would not mean that even thereafter it was open to the first respondent to withdraw his resignation. In fact, if the aforementioned letter dated 18-03-1997 is excluded from consideration, he had not withdrawn his resignation at all ........ ."

9. In view of the above mentioned exposition of law as regards

Rules 114A and Rule 96(9) of the Delhi School Education Rules, let us now

turn to the facts of the present case. The following list of dates is relevant in

the present case for determining the different issues which arise:-

(i) 15.3.2003 -- Respondent no.3 submits his hand written letter of

resignation to the petitioner-school.

(ii) 29.3.2003 -- Resignation of the respondent no.3 from the petitioner-

school is accepted by the petitioner-school as per the resolution of its

Managing Committee which reads as under:-

" RANI DUTTA ARYA VIDYALAYA (MANAGED BY ARYA ORPHANAGE AND RECOGNISED & AIDED BY THE GOVT. OF NCT OF DELHI) 1488, PATAUDI HOUSE, DARYA GANJ, NEW DELHI-110002

TRUE COPY OF THE RESOLUTION PASSED BY THE MANAGING COMMITTEE OF RANI DUTTA ARYA VIDYALAYA IN ITS MEETING HELD ON 29.03.2003

"Item No.6: Acceptance of resignation of Shri Nand Kishore, Head Clerk, who is on probation and consequent decision in respect thereof". "Information is given that Shri Nand Kishore, Head Clerk, who is on probation, has, by its letter dated 15.3.2003 addressed to the Chairman of the Managing Committee of the School resigned from the post of Head Clerk and has asked that his resignation be accepted with immediate effect. After some discussion, the Managing Committee resolved unanimously to accept the resignation of Shri Nand Kishore and also decided that he might be asked to continue on his post till 30.6.2003 on which date his resignation would become effective."

(iii) 2.4.2003 -- Office note signed by the Principal of the petitioner-

school in furtherance of the acceptance of resignation of respondent no.3

from the petitioner-school and which reads as under:-

" RANI DUTTA ARYA VIDYALAYA (MANAGED BY ARYA ORPHANAGE AND RECOGNISED & AIDED BY THE GOVT. OF NCT OF DELHI) 1488, PATAUDI HOUSE, DARYA GANJ, NEW DELHI-110002

OFFICE NOTE

Shri Nand Kishore, Head Clerk of the School, had submitted his resignation on 15.03.2003 and desired that the same be accepted with immediate effect. His resignation was put up for consideration in the meeting of the Managing Committee held on 29.03.2003. His resignation was accepted but it was decided that he might be asked to continue till 30th June 2003. Shri Nand Kishore has been informed about the said decision and he has agreed to continue in the School till 30th June 2003. This is for your information.

Sd/-

        To                                                                  Principal
          Manager, R.D.A.V                                                 02.04.2003





 (iv)    8.5.2003 --        Petitioner-school wrote to the Director of Education

with respect to resignation of the respondent no.3 from the petitioner-school

and sought permission to advertise the post of Head Clerk and which letter

dated 8.5.2003 reads as under:-

"RANI DUTTA ARYA VIDYALAYA (MANAGED BY ARYA ORPHANAGE AND RECOGNISED & AIDED BY THE GOVT. OF NCT OF DELHI) 1488, PATAUDI HOUSE, DARYA GANJ, NEW DELHI-110002 08.05.2003

The Deputy Director of Education, Central District, Zone 27, Jhandewalan, New Delhi Sub: Resignation rendered by Sh. Nand Kishor, Head Clerk of our school.

Dear Madam, Shri Nand Kishor, Head Clerk of our School who was on probation, submitted his resignation from his post. The Managing Committee of the School in its meeting held on 29th March, 2003 accepted the said resignation but asked Sh. Nand Kishor to continue to work on the said post till 30.06.2003. This is for your kind information and record. It is requested that the school be permitted to advertise the post of Head Clerk so that after selection, the same can be filled w.e.f. 01.07.2003."

Thanking you, Yours faithfully, for Rani Dutta Arya Vidyalaya

Sd/-

(Achla Chaudhary) Manager"

(v) 7.7.2003 -- Respondent no.3 writes his letter to the petitioner-

school withdrawing from resignation and stating that the resignation was not

willingly given and was given under mental pressure.

(vi) 19.8.2003 -- Reminder letter by the petitioner-school to the

Director of Education with respect to the resignation of the respondent no.3

for grant of permission, and which letter reads as under:-

"RANI DUTTA ARYA VIDYALAYA (MANAGED BY ARYA ORPHANAGE AND RECOGNISED & AIDED BY THE GOVT. OF NCT OF DELHI) 1488, PATAUDI HOUSE, DARYA GANJ, NEW DELHI-110002 Dated: 19.08.2003 To The Deputy Directorate of Education, Zone 27, Central District, Jhandewalan, New Delhi-110005

Subject: Clearance for the post of Head Clerk

Dear Madam,

Reference to our letter No. Nil dated 08.05.2003 regarding the acceptance of resignation of Sh. Nand Kishor. Head Clerk of our school by the school Managing Committee in its meeting held on 29.03.2003, I request you to kindly sanction your permission to fill this vacant post at your earliest.

Sh. Nand Kishor had resigned from his post on 15.03.2003 (Copy of resignation letter is being enclosed).

Kindly sanction your permission and clearance to fill the post through proper procedure, so that the school work is not hampered.

Thanking you, Yours sincerely, Sd/-

(Manager)

"R I O with the remarks that the school authority has not submitted the following documents for the approval for the resignation from the competent authority:

1. Original application submitted by the employee;

2. No due certificate

3. No court case pending certificate;

4. Service Book;

5. M.C. Resolution;

6. Total length of service;

7. EOL Certificate, if any."

You are required should be submitted for the acceptance of resignation in r/o Shri Nand Kishore Head Clerk with recommendation urgently.

Sd/-

                                                                             30/08/03
            School Authority                                                     Sd/-
            1727/27                                                          30/8/03
            2/9/03

(vii) 11.12.2003 -- Letter of the Director of Education to the petitioner-

school asking the petitioner to talk to the concerned officer of the Director

of Education, and which letter reads as under:-

"OFFICE OF THE EDUCATION OFFICER:ZONE XXVII: DISTT. CENTRAL SKV ZEENAT MAHAL SCHOOL BUILDING: KAMLA MARKET No. Dated:

MEMO Reference to your application dated 10.11.2013 wherein mentioned that the resignation from the post of Head Clerk, from Rani Dutta Arya Anathalaya, Pataudi House pressurized by the Manager/Vice Principal of the school. You are therefore directed to see the undersigned within seven days from the date of issuance of this letter otherwise it will be presumed that nothing to say in this regard and the action will be taken as per rule.

     Sh. Nand Kishore
     C.72, DLF, Bhopura
     Ghaziabad                                                     Education Officer
                                                                            Zone 27


     No. 1451                                                     Dated: 11/12/03

Copy to: The Manager, Rani Dutta Arya Anathalaya, Daryaganj, New Delhi in response to letter dated 24.9.2003 Sd/-

10/12/03 Education Officer Zone27

10. I may note that after the first letter of the Director of Education

dated 11.12.2003 to the petitioner-school there are various other subsequent

letters but such letters would have no bearing or consequences for

determination of the issues in the present case as will be discussed

hereinafter.

11. I may also at this stage note that there is an issue as regards

whether or not respondent no. 3 was a confirmed employee of the petitioner-

school inasmuch as petitioner-school denies the factum of the note allegedly

signed by the Vice-Principal of the petitioner-school by which the Vice-

Principal talks of confirmation of the respondent no. 3 in the petitioner-

school in the meeting of the Managing Committee held on 21.9.2002

whereas the respondent no. 3 contends that respondent no. 3 was in fact

confirmed after his probationary services to the status of a confirmed

employee on 21.9.2002, however, for the purpose of this judgment I am

proceeding on the basis that respondent no. 3 was a confirmed employee of

the petitioner-school.

12. From a list of dates which is reproduced above, it is seen that

respondent no. 3 did in fact give his hand written letter to the petitioner-

school tendering his resignation, and which is not even disputed by

respondent no. 3 that this letter was indeed given by the respondent no. 3.

Respondent no. 3 however only much subsequently on 7.7.2003 for the first

time by his letter to the petitioner-school, with a copy to the Director of

Education, contended that resignation was given under mental pressure and

this resignation be withdrawn. This letter dated 7.7.2003 is given

approximately after a period of 115 days from giving of the letter of

resignation dated 15.3.2003 and well after 29.3.2003 when the Managing

Committee had accepted the resignation. In other words the withdrawal of

resignation by the respondent no.3 is neither within 30 days of giving of his

resignation on 15.3.2003, nor within 30 days of the petitioner-school writing

its letter dated 8.5.2003 to the Director of Education mentioning the factum

of resignation of the respondent no.3 from the petitioner-school. Also, it is

not disputed that the petitioner-school indeed has passed a resolution on

29.3.2003 accepting the resignation of the respondent no.3 from the

petitioner-school and which resolution dated 29.3.2003 along with the

subsequent office note of the Principal dated 2.4.2003 has already been

reproduced above and in fact is duly referred to by the petitioner-school in

its letter dated 8.5.2003 to the Director of Education.

13. (i) Therefore, since the withdrawal of resignation by respondent

no.3 by his letter dated 7.7.2003 is neither within 30 days of submitting the

letter of resignation dated 15.3.2003, nor within 30 days of the letter dated

8.5.2003 of the petitioner-school to the Director of Education, and is in fact

after the acceptance of resignation by the Managing Committee of the

school on 29.3.2003, therefore, there does not arise any issue in the present

case of a legal entitlement remaining in the respondent no.3 to withdraw the

resignation by his letter dated 7.7.2003 because there is no legal entitlement

to withdraw from resignation after the period of 30 days under Rule 114A,

or after 30 days of the letter dated 8.5.2003 sent by the petitioner-school to

the Director of Education mentioning the factum of resignation or after the

resolution dated 29.3.2003 of the Managing Committee of the petitioner-

school accepting the resignation of the respondent no.3.

(ii) There was an issue raised by the respondents with respect to

whether the resignation of the respondent no.3 stood accepted by the

petitioner-school on 29.3.2003 or was the resignation only to be from

30.6.2003, however, in view of the language of Rule 114A of the Delhi

School Education Rules, I would like to read the language of the resolution

of the Managing Committee of the petitioner-school dated 29.3.2003 as that

the resignation has not been accepted and that the resignation will be taken

as accepted only from 30.6.2003 inasmuch as Rule 114A read with Rule

96(9) of the Delhi School Education Rules, talks of two separate dates and

events being one of finalization of resignation and two of a possible future

relieving date. In fact, the three months period after 29.3.2003 ending on

30.6.2003 as stated in the Managing Committee resolution dated 29.3.2003

was in compliance with Rule 96(9) of the Delhi School Education Rules, as

per which an employee can be asked to continue to work with the employer

for the period of three months after submitting of his resignation. The

expression "resignation would become effective" appearing in the resolution

of the Managing Committee of the petitioner-school dated 29.3.2003 is only

to clarify when the resignation would become effective for respondent no.3

being relieved of his duties i.e the duty of the respondent no.3 will continue

till 30.6.2003. It is not as if by the Managing Committee resolution dated

29.3.2003 the resignation is not accepted with immediate effect especially

because the earlier lines talk of the respondent no.3 requiring the resignation

to be accepted with immediate effect and the subsequent lines are thus only

with reference to that factual statement of requirement/consequence of Rule

96(9) of the Delhi School Education Rules which gives a period of three

months for the resignation to become effective or operative i.e the date of

relieving after resignation being submitted by an employee being three

months after the date of submitting of the resignation.

14. Reliance placed on behalf of the respondent no.3 upon the

judgments of this Court in the cases of Ms. Urmil Sharma Vs. Director of

Education 1996 III AD (DELHI) 48 and Mrs. Mala Tandon Thukral Vs.

Director of Education and Others 167 (2010) DLT 46 will not help the

respondent no.3 because in the facts of those cases, the resignation by the

employee was withdrawn prior to the period of 30 days of submitting of the

resignation. In the case of Ms. Urmil Sharma (supra), resignation was

given on 21.10.1994 and was withdrawn by a letter dated 11.11.1994 and in

the case of Mrs. Mala Tandon (supra) resignation was submitted on

5.12.2007 and withdrawal was on the very next date i.e 6.12.2007.

15. One argument which was urged on behalf of the respondents

was that the petitioner-school by its letter dated 8.5.2003 sent to the

respondent no.1/Director of Education only mentioned the factum of the

resignation of respondent no.3, and that petitioner-school did not seek prior

approval by this letter, however, in my opinion, the letter dated 8.5.2003

cannot be read legalistically because this letter also talks of petitioner-

school asking the permission to be given for advertising the post of Head

Clerk of the petitioner-school and to which post the respondent no.3 was

working and which therefore should be read to mean that permission to

advertise the post can only be given after acceptance is granted by the

Director of Education to the resignation of the respondent no.3 and which

factum has been mentioned in this letter dated 8.5.2003. I have already

reproduced the letter dated 8.5.2003 of the petitioner-school to the Director

of Education above and if this letter is not to be read as the petitioner-school

asking for approval to resignation then why at all this letter was written by

the petitioner-school to the Director of Education and which was only

because there was a requirement as such because of Rule 114A of the Delhi

School Education Rules.

16. Learned counsel for the respondent no.3 placed reliance upon

the judgment of the Supreme Court in the Modern School's case (supra) to

argue that prior permission was required of the Director of Education or in

any case acceptance of the resignation would only become final when the

Director of Education would have given his approval, and the Director of

Education has not given approval in this case and consequently it should be

held that the resignation of the respondent no.3 is not legally valid but I

cannot agree with this argument of the approval of the Director of Education

having not been granted and that such argument is available to the

respondents because approval issue as regards the Director of Education

would only be for approval within 30 days of receipt of the letter of the

petitioner-school dated 8.5.2003 written to the petitioner-school of refusing

to grant permission for the resignation of the respondent no.3 from the

petitioner-school and which is not the factual position in this case. Also

merely because certain notings are mentioned of the Director of Education

on the letter dated 19.8.2003 of the petitioner-school to the Director of

Education would not mean that within 30 days from 8.5.2003 Director of

Education has refused permission for acceptance of the resignation of the

respondent no.3 from the petitioner-school because refusal has to be by a

specific communication to the school within 30 days and which is not done.

Of course the letter dated 8.5.2003 by the petitioner-school is given after 30

days of the letter of the respondent no.3 dated 15.3.2003, and also 30 days

after acceptance of the resignation by the Managing Committee of the

petitioner-school on 29.3.2003, but, therefore we can take the period of 30

days for the Director of Education to give approval if not from 15.3.2003

then from 8.5.2003 (because the petitioner-school did not seek approval

within 30 days from 15.3.2003) then even in that case the 30 days period of

the knowledge of the Director of Education for declining the approval to the

resignation of the respondent no.3 from the petitioner-school expired on

8.6.2003. Admittedly, neither till 8.6.2003, and in fact right till 11.12.2003,

no communication whatsoever was addressed by the Director of Education

to the petitioner-school, much less by refusing to grant of approval to the

resignation of respondent no.3 from the petitioner-school. Further, I have

already expounded the position of law above that there is no reason why

Director of Education should not accept, save in a most rare case including

of actually there being no resignation, to deny the approval to the

resignation of an employee of the school inasmuch as there cannot be forced

upon an employee his services being performed to a school, and I have

already discussed above that the present is not a case where the withdrawal

or resignation of the respondent no.3 from the petitioner-school was legally

valid inasmuch as it is discussed that it is given only on 7.7.2003 i.e well

beyond the period of 30 days of submitting of the letter of resignation dated

15.3.2003 and also 30 days beyond 8.5.2003 when the petitioner-school

informed the Director of Education with respect to resignation of the

respondent no.3 from the petitioner-school. Also I note that the respondent

no.3 is only conveniently stating that his resignation given by letter dated

15.3.2003 was given under pressure from the petitioner-school inasmuch as

if really the resignation letter dated 15.3.2003 was given by the respondent

no.3 on account of pressure put by the petitioner-school then there was no

need for respondent no.3 to have waited from 15.3.2003 to 7.7.2003 i.e for a

period of around 115 days. I also therefore reject the argument of the

respondent no.3 that the resignation letter dated 15.3.2003 was given by the

respondent no.3 on account of pressure put by the petitioner-school.

17. In view of the above discussion this writ petition is allowed and

the impugned order of the Director of Education dated 15.12.2004 is

quashed and it is held that respondent no.3 has resigned from the petitioner-

school by giving of his letter of resignation dated 15.3.2003 and which

resignation will be effective from 30.6.2003 i.e the date of relieving of the

respondent no.3 from the petitioner-school from 30.6.2003.

18. The writ petition is accordingly allowed and disposed of,

leaving the parties to bear their own costs.

JANUARY 11, 2017                                  VALMIKI J. MEHTA, J
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