# Dharmendra Pal Dwivedi v. The D.I.O.S., Bulandshahar and another - **Citation:** (2000) 3 ILRA 161 - **Court:** High Court of Judicature at Allahabad - **Decided:** 2000 - **Source:** https://unisonlegal.in/judgment/allahabad-high-court/dharmendra-pal-dwivedi-v-the-d-i-o-s-bulandshahar-and-another-39047 - **Pages:** 5 ## Text 3All] Dharmendra Pal Dwivedi V. The D.I.O.S., Bulandshahar and another 161 25,*,1$/ -85,6',&7,21 25,*,1$/ -85,6',&7,21 &,9,/ 6,'( &,9,/ 6,'( '$7(' '$7(' $//$+$%$' $8*867 $//$+$%$' $8*867 %()25( %()25( 7+( +21·%/( 0& -$,1 - 7+( +21·%/( 0& -$,1 - &LYLO 0LVF :ULW 3HWLWLRQ 1R RI 'KDUPHQGUD 3DO 'ZLYHGL «3HWLWLRQHU 9HUVXV 7KH 'LVWULFW ,QVSHFWRU RI 6FKRROV %XODQGVKDKDU DQG DQRWKHU 5HVSRQGHQWV &RXQVHO IRU WKH 3HWLWLRQHU 6KUL 5DM .XPDU -DLQ &RXQVHO IRU WKH 5HVSRQGHQWV 0LVV +LQD 5L]YL 6& 83 ,QWHUPHGLDWH (GXFDWLRQ $FW 6V G $$ DQG UHDGZLWK 5HJXODWLRQ ± 5HVLJQDWLRQ E\ 3ULQFLSDO ZLWKRXW JLYLQJ WKUHH PRQWKV QRWLFH RU SD\ LQ OLHX WKHUHRI RQ $FFHSWDQFH E\ &RPPLWWHH RI 0DQDJHPHQW RQ DQG DSSURYHG E\ WKH 6RFLHW\ %KDUWL\D 6KLNVKD 6DPLWL RQ +HOG DFFHSWDQFH RI UHVLJQDWLRQ EHIRUH H[SLU\ RI WKUHH PRQWKV DV UHTXLUHG XQGHU UHJXODWLRQ LV LOOHJDO ± +HQFH UHLQVWDWHPHQW RUGHUHG 6R LW HPHUJHV WKDW WKH UHVLJQDWLRQ VXEPLWWHG E\ WKH SHWLWLRQHU RQ FRXOG QRW EH DFFHSWHG EHIRUH WKH H[SLU\ RI WKUHH PRQWKV DV KH KDG QHLWKHU JLYHQ WKUHH PRQWKV VDODU\ QRU KDG WKH PDQDJHPHQW FRPPLWWHH H[HPSWHG KLP IURP JLYLQJ WKH QRWLFH RI WKUHH PRQWKV 7KH ZULW SHWLWLRQ LWVHOI ZDV ILOHG RQ YL] EHIRUH WKH H[SLU\ RI WKUHH PRQWKV UHFNRQHG IURP WKH GDWH RI UHVLJQDWLRQ GDWHG +H KDV HYHQ PDGH D UHSUHVHQWDWLRQ WR WKH 'LVWULFW ,QVSHFWRU RI 6FKRROV RQ DQQH[XUH WR WKH ZULW SHWLWLRQ ZKHUHE\ KH KDG FKDOOHQJHG WKH DFFHSWDQFH RI WKH UHVLJQDWLRQ ,Q WKLV YLHZ RI WKH PDWWHU KH GHVHUYHV WR EH UHLQVWDWHG LJQRULQJ WKH UHVLJQDWLRQ OHWWHU GDWHG DQG LWV VRFDOOHG DFFHSWDQFH E\ UHVSRQGHQW QR EHIRUH WKH H[SLU\ RI WKUHH PRQWKV UHFNRQHG IURP &DVH /DZ GLVFXVVHG 83 /%(& 83 /%(& By the Court 1. The petitioner has sought a mandamus declaring the resolutions dated 21.12.92 and 11.5.93 as null and void and that he continues to be the Principal of the college and is entitled to his salary. 2. The case of the petitioner is that he was the Principal of Suraj Bhan Saraswati Vidhya Mandir, Inter College, Shikarpur, Bulandshahr, a recognised institution under the U.P. Intermediate Education Act. The college is being run by a registered society known as as Shikarpur Shikha Kalyan Samiti. The college was earlier a Junior High School which was upgraded as High School in the year 1989 and thereafter as Intermediate College. The petitioner was the Head Master of Junior High School and became the Head Master of High School when it was upgraded. On up gradation of the school as Intermediate College he was promoted as Principal by resolution of Managing Committee and was confirmed on a monthly salary of Rs.1700/-. The Committee of Management by resolution letter dated 21.12.1992 held that the petitioner had committed certain irregularities and without affording any opportunity to him and by letter dated 23.12.92 he was directed not work as Principal as to give the charge to Sri Chandra Pal Singh. He was attached with the head office of the Society at Vrindaban. He proceeded on INDIAN LAW REPORTS ALLAHABAD SERIES [2000 162 leave from 26.12.1992 to 30.6.1993 as he was in disturbed state of mind because of the serious illness of his wife. The leave was sanctioned to him on 30.12.92. He sent a letter dated 26.4.93 to the Manager by registered post on 28.4.1993. He contended that the resolution dated 21.12.1992 and the letter dated 23.12.92 were absolutely illegal. By letter dated 12.5.1993, the Manager informed him that he had submitted his resignation letter on 23.4.93 which had been accepted by the Committee of Management in its meeting dated 11.5.1993. As per this letter dated 12.51993 of the Manager, the resignation letter dated 23.4.1993 had personally been handed over by the petitioner to Manager of the College on 24.41993. The contention of the petitioner is that he never resigned and the said resignation had been forged. In the alternative, it is submitted that the resignation letter dated 23.4.1993 could be effective only after three months viz., with effect from 23.7.1993. Being inoperative before 23.7.93, it could not be accepted on 11.5.1993. in view of the applicable regulations. It is with these allegations that the writ petition has been filed. 3. The contest has been put forth by respondent no.2, the Committee of Management of the College in question. The defence, shortly put, through counter affidavit is that the institution is not on grant-in-aid. It is a private institution run by a registered society and has its own scheme of administration. The college is only recognised for the purposes of syllabus and examination. In the meeting of the Committee held on 21.12.1992, one of the resolutions related to the transfer of the petitioner. The petitioner was also present. He had been transferred and attached to the main office. He applied for leave from 26.12.1992 to 30.6.1993 which was sanctioned to him. He submitted his resignation dated 23.4.1993 to the Manager of respondent no. 2 on 24.4. 1993 which was accepted. The meeting of the Committee of Management was held on 27.4.1993 and the resignation of the petitioner was accepted. The resolution was sent to Bhartiya Shiksha Sansthan where it was approved on 12.5.1993. The petitioner voluntarily retired and no writ could be filed by him against the society running the college. 4. I have heard Sri Raj Kumar Jain, learned counsel for the petitioner, learned Standing Counsel for respondent no. 1 and Miss Hina Rizvi, learned counsel for the respondent no. 2. 5. The main thrust of learned counsel for the respondent no.2 is that since the college in question is not on grant -in aid and is being run by a society, the regulations framed under Section 15 of the U.P. Intermediate Education Act, 1921 would not apply. Reference has been made to Section 7-AA of the said Act and it has been urged that the college has simply been recognised for the purposes of syllabus and examination. 6. It may be pointed out that Section 7-AA of the Act aforesaid relates to employment of part-time teachers or parttime instructors. The term "Recognition" has been defined by Section 2 (d) of the said Act as meaning recognition for the purpose of preparing candidates for admission to the Board's Examinations. It is an admitted fact that the college in question is a recognised institution. This being so, it cannot be accepted that the said recognition is of a qualified nature 3All] Dharmendra Pal Dwivedi V. The D.I.O.S., Bulandshahar and another 163 and for limited purpose only. The recognised institution, as the college in question is, would be bound by the provisions of U.P. Intermediate Act, 1921 and the regulations made thereunder. The power for employing the part-time teachers and part-time instructors as per Section 7-AA of the Act does not detract from the efficacy of the institution being recognised and the consequences flowing from such recognition. Therefore, regulations framed under the Act would be applicable to the present case. 7. It may also be stated at this stage that the copy of resignation letter dated 23.4.1993 submitted by the petitioner has been filed as Annexure CA-5 by respondent no.2. It contains the signatures of the petitioner and also an endorsement of the Manager of the college that it was presented to him by the petitioner personally on 24.4.93. It is not acceptable that it is a document forged by respondent no.2. So, it is to be taken that the petitioner did submit his resignation letter on 23.4.93. The resignation letter, inter-alia, states that owing to family circumstances and for the reason that he had planned to work elsewhere, he was voluntarily tendering his resignation. He also made a request that his special leave be cancelled and resignation be accepted. 8. The argument of the learned counsel for the petitioner is that even if he tendered his resignation on 23.4.93, it could be effective only from 23.7.93 viz. after expiry of three months as provided by Regulation 29 which reads as under: 29. % ( »ž % (· ž6 … © [ » ¡@‘ Q»% (… O ‹ ‘ % (» } Qo » · 1⁄4 ‹ »L [ Q»% (… ¡9 ‘ % (» ¡o ‚ » ‹ F _ } [Y X … ‘ % ( © ‘ »‹ ‚ 1⁄4 ‘ · ^L ¡% (‚ » 9 [ » % ( © ¥‘O ¡L · 1⁄4 ¡Y % ( … © F »L L‚ 0 ^ M Q» ‘ % (L F¿ _ ¡L } [Y ‚ F F¿ ¡% ( % ( »ž % (· ž6 … © 9 [ ‹ … © ^ (…‹ … © O ‹ · 6 ž % (» · ‘ · 1⁄4 ‘ · ^L F »[ » ‹ o © [ » ¡@‘ [ F a Q»0 2 ©„· ‹ % (  [ » ¡@‘ % ( © ‹ ¡Y · 1⁄4 ‘ ¥·· ¡o L % (… ¡o ‚ 9 ‚ »0 … 9 % ( ©‚ ‘ »‹ O ‹ ¡% (‘ © ‘O [ ©‚ ¡[ % ( ‚ % ( © ‘ »‹ % ( © ¡[ ‚ ¥% 'L F»L 6 [ » 0 ‚ » % (· ž6 … © % ( » ‹ ‚ % ( [ » ¡@‘ Q»[ » % ( © ‹ ‚ % (L [ F »0 © ¿… ‘ » [ ž ¡[ ‚ ¥% 'L · 1⁄4 % ( ‚ ž| … 2 FK % (…[ » % (» ¡o $ ‘ · ‚ ‘ » ^ [ © ‘ »‹ ‘ » L‚ 0 ^ M Q»[ F »0 ‚ ¡Q ^ Q % (» ¡o ‚ » ¡6 L ‘ ¡…K © ‘ » _ O ž[ ^ M ¡Q‚ F¿ ^ … »% 'L _ ¡‹ Y [ ¡o ¡^ % ( ¡9 ‘ · 1⁄4 ^ ‘L % ( o ‚ Y‚ ) | © ‘ ¥·· ¡o L F¿ ^ … o 0 ± F 1⁄40 » ¡% ([L 6 L O ž ‹ 0 «‚ % (· ž6 ¡…‚ 1⁄4 % (» ‘ ·} [Y · 1⁄4 ^ … »% 'L _ ¡L } [Y L· % ( - KE % (» _ ¡‹ Y [ o 0 ± [ F a F 1⁄40 » _ } [Y ‘ ¡ · ¡L % ( » ‚ F ¡Y % ( … F »0 ¡% ( [ » ¡@‘ % (» Q ‹ » · 1⁄4 8±@ Q» Q» 9. It is an admitted fact that the petitioner neither gave three months' notice nor three months' pay in lieu thereof while tendering the resignation on 23.4.93, but the case put forth by respondent no.2 is that the meeting of Committee of Management was held on 27.4.93 and resignation of the petitioner was accepted which was approved by the society (Bhartiya Shiksha Samiti) on 12.5.93, vide Annexure CA-7. 10. A Division Bench of this Court has laid down in the case Shivraj Singh Vs. Shri Devi Mal Asha Ram Paliwal and Others 1982 UPLBEC 476 as under: INDIAN LAW REPORTS ALLAHABAD SERIES [2000 164 "In such case where the employee has not exercised his discretion by not actually paying the three months pay or giving the 3 months notice of resignation as required by Regulation 29 read with Regulation 26, the resignation cannot be termed as a valid resignation before the expiry of three months from the date lodging of the resignation letter itself. The resignation would be deemed to be ineffective before the expiry of three months from the date on which the resignation was lodged with the management." It was followed subsequently in the case of Giriraj Sharma Vs. State of U.P. and others 1985 UPLBEC 560. 11. So, it emerges that the resignation submitted by the petitioner on 23.4.93 could not be accepted before the expiry of three months as he had neither given three months salary nor had the management committee exempted him from giving the notice of three months. The writ petition itself was filed on 25.6.93 viz. before the expiry of three months reckoned from the date of resignation dated 23.4.93. He had even made a representation to the District Inspector of Schools on 3.6.93 (annexure8 to the writ petition) whereby he had challenged the acceptance of the resignation. In this view of the matter, he deserves to be reinstated, ignoring the resignation letter dated 23.4.93 and its socalled acceptance by respondent no.2 before the expiry of three months reckoned from 23.4.93. 12. The writ petition filed as back as on 25.6.93 has come to be decided after more than seven years. There was no interim stay order in favour of the petitioner. The point that I wish to make is that in all probabilities, the petitioner must have gainfully engaged himself during all these years after submitting resignation letter dated 23.4.93. It may be stated at the risk of repetition that the fact was mentioned by him in resignation letter also that he had planned to work else where. 13. It has to be taken note of that the tendering of resignation was the voluntary act of the petitioner owing to his family circumstances and on account of his having planned to work elsewhere as mentioned in the resignation letter. The relief of reinstatement is being granted to him for technical reason of noncompliance of Regulation 29. The question of back wages has to be decided having regard to the facts and circumstances of a particular case. In the present case, it would be just and proper to balance the equities between the parties that the petitioner should be made entitled to salary only from the date of his reinstatement. 14. To sum up, petition is allowed in that respondent no.2 is directed to reinstate the petitioner within one month from the date of production of certified copy this order. The petitioner would be entitled to his salary and allowances from the date his reinstatement. There shall be no order as to costs. 3All] Prem Singh V. Engineer-In-Chief, P.W.D., Lucknow and another 165 25,*,1$/ -85,6',&7,21 25,*,1$/ -85,6',&7,21 &,9,/ 6,'( &,9,/ 6,'( '$7(' $//$+$%$' '$7(' $//$+$%$' %()25( %()25( 7+( +21·%/( $. <2* - 7+( +21·%/( $. <2* - &LYLO 0LVF :ULW 3HWLWLRQ 1R RI 3UHP 6LQJK «3HWLWLRQHU 9HUVXV (QJLQHHU ,Q&KLHI 3:' /XFNQRZ 2WKHUV «5HVSRQGHQWV &RXQVHO IRU WKH 3HWLWLRQHU 6KUL 5DMHVK ' .KDUH &RXQVHO IRU WKH 5HVSRQGHQWV 6& &RQVWLWXWLRQ RI ,QGLD $UWLFOH ,QWHUSRODWLRQ LQ VHUYLFH UHFRUG UHVXOWHG SUHPDWXUH UHWLUHPHQW GLUHFWLRQ LVVXHG WR UHOHDVH WKH SRVW UHWLUHO EHQHILW DORQJ ZLWK LQWHUHVW ZLWK FRVW RI 5V IURP SHUVRQDO EHQHILW RI WKH RIILFHU KHOG UHVSRQVLEOH ± ZLWKLQ RQH PRQWK +HOG 3DUD 7KH RIILFHU FRQFHUQHG UHVSRQVLEOH IRU PDLQWHQDQFH RI UHFRUG DQG IRU LQWHUSRODWLRQ WKH VHUYLFH UHFRUG VKRXOG EH EURXJKW WR ERRN ,W LV IXUWKHU GLUHFWHG WKDW WKH UHVSRQGHQWV VKDOO HQVXUH UHOHDVH RI SHWLWLRQHU¶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y the Court 1. This writ petition under article 226 of the Constitution of India has been filed praying for a writ of certiorari to quash the impugned order dated 23.2.1995 (Annexure-6 to the writ petition) and for writ of mandamus commanding the respondents not to interfere in petitioner's functioning as work-agent till the petitioner attains the age of superanuation and to pay him regular salary month by month and other allowances also. 2. This writ petition was filed by the petitioner in the year 1995. The respondents were granted time to file a counter affidavit and the petitioner to file rejoinder affidavit. No counter affidavit has been filed. The writ petition was dismissed on 13.7.1995. Petitioner filed a restoration application which was allowed by the court on 12.5.1997, i.e. after about twenty two month i.e. more than one and half year. 3. Learned counsel for the petitioner stated that petitioner was not allowed to work and paid salary after February,1995. 4. In brief the undisputed facts of the case are that the petitioner was appointed as work agent in the Department of PWD, Government of U.P. in the year 1985. Subsequently he was confirmed vide order dated 23.3.1969 (Annexure-2 to the writ petition), which indicates that he was appointed on 1.3.1968 as work agent on temporary basis.