Gujarat High Court
Pratapbhai Bhagwanbhai Rawal vs President/ Mantrishi on 7 November, 2023
Bench: Cheekati Manavendranath Roy
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C/LPA/122/2023 JUDGMENT DATED: 07/11/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/LETTERS PATENT APPEAL NO. 122 of 2023
In R/SPECIAL CIVIL APPLICATION NO. 9159 of 2010
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2022
In R/LETTERS PATENT APPEAL NO. 122 of 2023
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE N.V.ANJARIA
and
HONOURABLE MR. JUSTICE CHEEKATI MANAVENDRANATH ROY
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1 Whether Reporters of Local Papers may be allowed Yes
to see the judgment ?
2 To be referred to the Reporter or not ? Yes
3 Whether their Lordships wish to see the fair copy No
of the judgment ?
4 Whether this case involves a substantial question No
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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PRATAPBHAI BHAGWANBHAI RAWAL
Versus
PRESIDENT/ MANTRISHI
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Appearance:
MR GAURAV P THAKOR(2452) for the Appellant(s) No. 1
MR KALPESH N SHASTRI(1739) for the Appellant(s) No. 1
MS SHRUTI DHRUVE, AGP for the Respondent(s) No. 1,2,3,4
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CORAM:HONOURABLE MR. JUSTICE N.V.ANJARIA
and
HONOURABLE MR. JUSTICE CHEEKATI
MANAVENDRANATH ROY
Page 1 of 11
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Date : 07/11/2023
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE N.V.ANJARIA)
The appellant - original petitioner was a Teacher. He
approached the Gujarat Secondary Education Tribunal,
Ahmedabad, by filing application with a grievance that the
management of the School under which he had been serving, did
not consider and accept his request for withdrawal of the
resignation. The Tribunal by its judgment and order dated
16.9.2009, refused to entertain the prayer on the ground that
the petitioner had not withdrawn the resignation before it
became effective.
2. The applicant teacher thereafter preferred Special Civil
Application which came to be dismissed by learned single Judge
as per judgment and order dated 19.11.2019, upholding the
decision of the Tribunal.
2.1 It is this judgment and order dated 19.11.2019 dismissing
the petition and confirming the order of the Tribunal that is
brought under challenge in this Letters Patent Appeal.
3. Noticing the relevant dates, the appellant petitioner
tendered his resignation by addressing letter dated 7.2.2005 to
the school management. It was stated in the said letter that the
resignation would become effective on 30.6.2005. In other
words, it was conditional resignation proposed to take effect
from the future date.
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3.1 It appears that before the effective date of resignation, that
is 30.6.2005, could arrive, the petitioner appellant withdrew the
same. A withdrawal letter dated 25.6.2005 was prepared. The
said withdrawal communication, however, was dispatched on
30.6.2005 by the appellant.
3.2 Learned single Judge, however noticed the relevant dates
and observed in its judgment that the petitioner dispatched the
letter on 29.6.2005, the date prior to effective date mentioned in
the resignation letter, however, observed that the said letter of
withdrawal did not reach the management before the effective
date. It was reasoned by learned single Judge in para 13 of the
order that the appellant could have dispatched the letter of
withdrawal of resignation immediately.
"It is the case of the petitioner that on
21.06.2005, he dispatched a letter by
Registered Post A.D. after a period of 8 days on
29.06.2005 informing the School Management
that he intends to withdraw his resignation.
Such action of the petitioner needs to be
deprecated since if he was serious enough of
withdrawing his resignation, he could have
dispatched it immediately on the very same day
so that the respondents could have an occasion
to deal with the same. The petitioner dispatched
his letter dated 21.06.2005 only on 29.06.2005
i.e. one day prior to the effective date
mentioned in his resignation letter. He also
dispatched the same by Registered Post A.D.
and the aforesaid letter dated 21.06.2005 was
not received by the District Education Officer
and the Management before the effective date
of 30.06.2005. Be that as it may, the undisputed
fact remains the petitioner made an application
of withdrawing his resignation after the same
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was accepted, and such decision was
communicated to him."
3.3 The position of law regarding acceptance and withdrawal
of resignation by a government servant could be gathered from
the decision of the Supreme Court in Rajkumar Vs. Union of
India [AIR 1969 SC 180], in Raj Narain Vs. Smt. Indira
Nehru Gandhi [AIR 1972 SC 1302] and from yet another
decision in P. Kasilingam Vs. P.S.G.College of Technology
[AIR 1981 SC 789].
3.4 The principles stated are that upon tendering of
resignation by a government servant, his services would stand
terminated from the date when the resignation becomes
effective and when the resignation is accepted by the
appropriate authority, and in absence of any law or statutory
rule governing the conditions of his services to the contrary, it
will not be open to the public servant to withdraw his
resignation after it is accepted by the appropriate authority.
4. Since the court wanted itself to steer clear about the
relevant dates of sending the letter of withdrawal of resignation
by the appellant to the authorities, the reaching of the letter
with the authorities and / or the acceptance or otherwise,
learned Assistant Government Pleader Ms.Shruti Dhruve was
requested to call for the original file. She was swiftly responsive
to produce the original files to assist the court.
4.1 Learned advocate Mr.Kalpesh Shastri for the appellant
assailing the impugned judgment and order of learned single
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Judge as well as the order of the Tribunal, submitted that the
resignation of the appellant was to become effective from
30.6.2005 only. According to his submission, before the said
effective date, the appellant had proceeded to withdraw his
resignation by addressing communication dated 25.6.2005 which
was dispatched on 30.6.2005.
4.2 From the original files, it was shown to the court and it
could be gathered that the withdrawal letter dated 30.6.2005
was dispatched by the Registered A.D. Post on 30.6.2005 and
had reached the addressee on the same day, that is on
30.6.2005, as the postal stamp reflected the position.
4.3 It was the contention on behalf of the appellant petitioner
that his letter of withdrawal was dated 25.6.2005 but could be
dispatched only on 30.6.2005, however, in any case, it was
submitted, it reached the authorities concerned on the very date,
therefore, it could be said that the resignation was withdrawn
before it could become effective.
4.4 It was next submitted that since the effective date for
coming into force mentioned in the letter of resignation dated
30.6.2005, technically, the appellant petitioner could be said to
be continued in service till 12:00 p.m. or till office hours in the
night on the same day as per the English Calender.
4.5 The case was advanced that before the point of terminus of
the services of the appellant. The withdrawal letter had reached
the authority and therefore the withdrawal of the resignation
had become effective before the resignation could come into
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force. This submission on behalf of the appellant petitioner could
not be brushed aside lightly.
5. However, there is an additional outweighing aspect on
merit involved in the controversy.
5.1 Section 36 of the Gujarat Secondary and Higher Secondary
Education Act, 1972 deals with the Dismissal, removal and
reduction in rank of certain persons. Sub section (4) thereof is
about a eventuality when a Teacher or Head Master submits his
resignation. Sub section (4) relevant for the purpose reads as
under,
"Section 36 (4) - Where a head-master, a
teacher or a member of the non-teaching staff of
a registered private secondary school or
registered Private Higher Secondary School
desires to submit his resignation, the
resignation shall be tendered by him in person
to the District Education Officer concerned and
shall not be accepted by the manager unless it
is so tendered and forwarded to him by such
officer duly endorsed. The acceptance of any
such resignation tendered in contravention of
this sub-section shall be in-effective."
5.2 What is contemplated in the above statutory provision is
that in order to become effective the resignation tendered by the
Head Master or Teacher, it shall be tendered by him in person.
Secondly, the resignation letter should be tendered to the
District Education Officer. Thirdly, it is provided that the
resignation shall not be accepted by the manager unless it is
tendered in the above manner. Fourthly, it must have been
forwarded to the manager by such officer duly endorsed.
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5.3 Therefore, there are specific requirements which are not
only just procedural but substantive in the sense that the District
Education Officer is required to put seal of approval on the
resignation of a Teacher. These requirements have to be
complied with.
5.4 It is trite that when a statute requires a particular thing to
be done in particular manner, and the conditions are prescribed
in the statute, such thing or act has to be done scrupulously by
complying the said conditions and in that manner only.
5.5 In Popatlal Naranbhai Patel Vs. Navchetan High
School Trust [1983 GLH 203], this court held that the District
Education Officer is not expected to act merely as a post-office
but it is his function as a statutory authority to ascertain
whether the resignation is the outcome of the free consent of the
person tendering the same.
5.5.1 The provisions of Sub section (4) of Section 36 of the
Act came to be analyzed by the court, after quoting the Section
in para 8 of the judgment,
"On an analysis of the said sub-section it will
appear that the following conditions are
required to be satisfied so that the acceptance
of the resignation of a head master, a teacher or
a member of the non-teaching staff of a
registered private secondary school can be
treated as valid and effective: (1) the
resignation must be tendered by the concerned
employee in person, to the concerned District
Education Officer; (2) as and when the
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resignation is tendered accordingly, the District
Education Officer will forward the same duly
endorsed to the school management; (3) unless
it is so tendered and forwarded, the manager
shall not accept the resignation."
5.5.2 It was further observed by the court in the same
paragraph,
"The consequence of acceptance of any
resignation tendered in contravention of the
sub-section is that such resignation shall be
ineffective. The question is whether the District
Education Officer acts merely as a post office
and whether he is required to mechanically
forward the resignation once it is tendered in
person before him by the concerned employee,
or whether he is a duly constituted statutory
authority who has to satisfy himself in the
discharge of the function entrusted to him
under the subsection that the case is one where
the resignation may be accepted and that,
therefore, it is required to be forwarded by him
to the school management with an endorsement
in that behalf. In order to answer this question
it would be necessary to consider how the law
stood when Section 36(4) was enacted, what
the mischief was for which the old law did not
provide and the remedy provided by Section
36(4) to cure that mischief."
5.6 Therefore, the District Education Officer could not
mechanically entertain, accept or even forward the resignation
which may be tendered by the Head Master or Teacher, as the
case may be, to the management. The function contemplated
under Section 36 (4) by the District Education Officer is a
statutory function and the proper consideration or otherwise of
the resignation would invest the party concerned a substantive
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right in that regard. If the resignation is not processed in
accordance with the said statutory provision and ultimately
accepted, the whole process may vitiate to entitle the Teacher or
Head Master, as the case may be, from tendering the resignation
to contend that the resignation was not properly accepted and
that he continues to be in service.
5.7 Although it was sought to be submitted by learned
advocate for the petitioner that the appellant petitioner was
coerced to submit his resignation, the court is not adverting to
the said aspect, when, even otherwise, the court finds that the
said statutory requirements under Section 36 (4) of the Act were
mandatory to be observed and the District Education Officer
could not have acted mechanically or without application of
mind in relation to the appellant's resignation.
5.8 The original file produced by learned Assistant
Government Pleader did show that resignation dated 7.2.2005
was placed before the District Education Officer and it was
stamped by the District Education Officer, along with the stamp
of the management, on the same date that is 7.2.2005. The
resignation was not given to the District Education Officer in
person nor it was addressed to the competent authority - the
District Education Officer. The file does not reflect that the
movement of the resignation of the appellant was in accordance
with the sequence indicated in the Section nor it would be
shown that the District Education Officer had considered the
resignation to forward the same to the management in light of
and in conformity with the statutory provisions as above. The
mechanical stamping on the resignation letter would not said to
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be a compliance of the statutory requirements. In view of the
non-compliance of the statutory provisions, the resignation not
only did not become effective in law, it deemed to have been not
taken place at all and was non est in the eye of law. When the
resignation remained ineffective as above, the question of the
withdrawal letter reaching in time or not was rendered
irrelevant and of no consequence.
5.9 In view of the above circumstances when the provisions of
Section 36 (4) were not adhered to and were not complied with,
the resignation of the appellant could not be said to have
become effective. It was an ineffective resignation from its initial
stage.
6. It is to be held therefore that the resignation remained
ineffective for want of statutory compliance under the Act. This
aspect was to be a decisive aspect in the controversy, which has
been ignored both by the Tribunal as well as by learned single
Judge. It is the question of law, which could not have been left
aside for its effect and application.
6.1 Therefore, this court holds that the resignation of the
petitioner did not become effective for the aforesaid reasons. As
a result, the impugned order of learned single Judge dated
19.11.2019 and the confirmation thereof by the Gujarat
Secondary Education Tribunal, Ahmedabad dated 16.9.2009, are
liable to be set aside. They are accordingly, set aside.
6.2 The benefits flowing for the appellant petitioner in view of
the present setting aside of the impugned orders, will be paid to
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the appellant within ten weeks from the date of receipt of the
present order.
7. The Letters Patent Appeal succeeds. It is allowed
accordingly.
In view of dismissal of the appeal, the Civil Application will
not survive, it is accordingly, disposed of.
(N.V.ANJARIA, J)
(CHEEKATI MANAVENDRANATH ROY, J)
Manshi
