(BY SHRI MANU v. JOHN - PANEL LAWYER)

Judgment

3. THE STATE OF MADHYA PRADESH THROUGH SECRETARY TRIBAL WELFARE DEPARTMENT (EDUCATION WING) BHAWAN (MADHYA PRADESH) VALLABH COLLECTOR SEONI SEONI (MADHYA PRADESH) CHIEF EXECUTIVE OFFICER JANPAD PANCHAYAT LAKHANDAUN SEONI (MADHYA PRADESH) .....PETITIONER

(BY SHRI MANU V. JOHN - PANEL LAWYER) .....RESPONDENTS This petition coming on for admission this day, th e court passed the following: ORDER The petitioner in the present case has challenged the order Annexure-P/14 dated 14.07.2015. By the said order, the representation of the petitioner submitted in pursuance to the direction issued by this Court in W.P No.15940/2013 vide order Anneuxre-P/11 to rejoin on the post of Samvidha Signature Not Verified Signed by: PRARTHANA SURYAVANSHI Signing time: 1/19/2024 6:23:20 PM Shala Shikshak Grade -III has been turned down. 2

2. Learned counsel for the petitioner submits that the petitioner was initially appointed as Samvidha Shala Shikshak Grade-III vide order dated

01.10.2003 (Annexures-P/1) by the respondent No.3. The petitioner duly joined on the said post and was continued on the said post. It is further contended that in the year 2005 posts were advertised for appointment as Samvidha Shala Shikshak Grade-II. The petitioner duly appeared in the said selection process and vide order dated 02.11.2006 (Anneuxre-P/4), she was given appointment under the same employer i.e respondent No.3 on the post of Samvidha Shala Shikshak Grade-II.

3. On behalf of the petitioner, she joined on the post of Samvidha Shikshak Grade-II on 03.11.2006. However, vide letter dated 01.02.2007 (Anneuxre-P/6), the petitioner was directed by the respondent No.3 to tender her resignation from the post of Samvidha Shikshak Grade -III.

4. It is the case of the petitioner that she accordingly submitted her resignation from the post of Samvidha Shala Shikshak Grade-II but shortly thereafter, vide order dated 26.09.2007 (Anneuxre-P/8), the entire selection on the post of Samvidha Shikshak Grade-II made in the year 2006-07 in the respondent No.3 was cancelled. The petitioner thereafter submitted representation vide Annexure-P/10 to reappoint her on the post of Samvidha Shikshak Grade-III. As no action was taken on the said representation, she filed W.P No.15940/2013 before this Court which was decided vide order Annexure- P/11 dated 09.04.2015 with direction to the Collector to decide the representation.

5. The petitioner thereafter submitted fresh representation (Annexure- P/12) before the Collector and she stated in the said representation that the Signature Not Verified Signed by: PRARTHANA SURYAVANSHI Signing time: 1/19/2024 6:23:20 PM 3 resignation dated 01.02.2007 be treated as cancelled. The said representation has now been rejected vide Annexure-P/14 on the ground that there is no provision to give fresh appointment on the post of Samvidha Shikshak Grade- III.

6. The learned counsel for the petitioner has submitted that the resignation tendered by the petitioner was not unilateral unconditional resignation which would became final and binding upon its acceptance. Rather it was a technical and bilateral act of resignation which could always be withdrawn upon non-occurrence of the contingency mentioned therein.

7. Per contra, learned counsel for the respondents by referring to the contentions made in the return have submitted that the appointment given on the post of Samvidha Shikshak Grade-III was on contractual post and there was stipulation in the appointment order that the contract of service can be rescinded by any of the parties on one month notice or salary in lieu thereof. It is further contended that when the petitioner was asked to tender resignation from the post of Samvidha ShikshakGrade-III, it was open for her not have tendered the resignation and continue on the post of Samvidha Shikshak Grade- III. However, she tendered resignation and joined on the post of Samvidha Shikshak Grade -II. Hence, she cannot be allowed to withdraw the resignation at later date.

8. Heard learned counsel for the parties and perused the record.

9. The circumstances prevailing in the present case are somewhat peculiar. It is well settled in law that the resignation once submitted by an employee cannot be withdrawn after its acceptance and its becomes binding on the parties when the resignation is accepted. This aspect of law is well settled Signature Not Verified Signed by: PRARTHANA SURYAVANSHI Signing time: 1/19/2024 6:23:20 PM and I need not burden this order with authorities and citations on this aspect. However, considerations in the matter of technical and bilateral resignations are 4 somewhat different.

10. In the present case, the petitioner was continued on the post of Samvidha Shala Shikshak Grade-III since the year 2003 under the same employer. To get better avenues for her career, she appeared in selection process for Samvidha Shikshak Grade-II and got selected and appointed under the same employer. The employer asked the petitioner to tender resignation from the post of Samvidha Shikshak Grade -III. The petitioner accordingly tendered the resignation and within five months after tendering the said rejection, the entire selection process of Samvidha Shikshak Grade-II was cancelled by the respondent No.3 which is the same employer.

11. The cancellation of the selection process cannot be said to be due to some event occurring on account of some fault or overt act of the petitioner. Cancellation order Annexure-P/8 clearly mentions that as per direction of Additional Collector, District Seoni, 76 appointments on the posts of Samvidha Shikshak Grade -II and 231 appointments on the post of Samvidha Shikshak Grade -III stands canceled.

12. The aforesaid facts of the case indicate that the resignation tendered by the petitioner was not a unilateral unconditional resignation but it was tendered at the asking of the employer to permit the employer to continue her appointment on the new post in which she was selected and appointed. Thus, the said resignation is of a bilateral character. It has been held by the Hon'ble Supreme Court in the case of Moti Ram v. Param Dev reported in (1993) 2 SCC 725 as under: "16. As pointed out by this Court, ‘resignation’ means the spontaneous Signature Not Verified Signed by: PRARTHANA SURYAVANSHI Signing time: 1/19/2024 6:23:20 PM 5 relinquishment of one's own right and in relation to an office, it connotes the act of giving up or relinquishing the office. It has been held 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 has also been observed that the act of relinquishment may take different forms or assume a unilateral or bilateral character, depending on the nature of the office and the conditions governing it. [See: Union of India v. Gopal Chandra Misra [(1978) 2 SCC 301, 310-11 : 1978 SCC (LandS) 303 : (1978) 3 SCR 12, 21] .] If the act of relinquishment is of unilateral character, it comes into effect when such act indicating the intention to relinquish the office is communicated to the competent authority. The authority to whom the act of relinquishment is communicated is not required to take any action and the relinquishment takes effect from the date of such communication where the resignation is intended to operate in praesenti. A resignation may also be prospective to be operative from a future date and in that event it would take effect from the date indicated therein and not from the date of communication. 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 the conditions governing it."

13. Also, the Hon'ble Supreme Court in the case of Prabha Atri (Dr) v. State of U.P. reported in (2003) 1 SCC 701 has held as under:- " 9. In traversing the contention on behalf of the appellant that the letter in question dated 9-1-1999 could not be construed as a letter of resignation, on behalf of the respondent hospital authorities it is strenuously contended that such a letter coming from the appellant in the teeth of suspension order and proposed domestic enquiry expressing a desire to tender resignation and that too with immediate effect, cannot but be a resignation outright and simpliciter to avoid facing disciplinary proceedings and that, therefore, the competent authority acted well within its rights in treating it to be a resignation and accepting the same forthwith and as a consequence thereof, directing further not to proceed with the domestic enquiry already ordered. Finally, it has been submitted that if this Court is pleased to interfere in the matter the right of the hospital authorities to pursue the disciplinary action already initiated from the stage at which it stood on the date of acceptance of the resignation should not be jeopardized and liberty may be granted in this regard. Signature Not Verified Signed by: PRARTHANA SURYAVANSHI Signing time: 1/19/2024 6:23:20 PM 6

10. We have carefully considered the submissions of the learned counsel appearing on either side, in the light of the materials and principles, noticed supra. This is not a case where it is required to consider as to whether the relinquishment envisaged under the rules and conditions of service is unilateral or bilateral in character but whether the letter dated 9-1-1999 could be treated or held to be a letter of resignation or relinquishment of the office, so as to sever her services once and for all. The letter cannot be construed, in our view, to convey any spontaneous intention to give up or relinquish her office by any act of relinquishment. To constitute a accompanied “resignation”, it must be unconditional and with an intention to operate as such. At best, as observed by this Court in the decision in P.K. Ramachandra Iyer [(1984) 2 SCC 141 : 1984 SCC (LandS) 214] it may amount to a threatened offer more on account of exasperation, to resign on account of a feeling of frustration born out of an idea that she was being harassed unnecessarily but not, at any rate, amounting to a resignation, actual and simple. The appellant had put in about two decades of service in the hospital, that she was placed under suspension and exposed to disciplinary proceedings and proposed domestic enquiry and she had certain benefits flowing to her benefit, if she resigns but yet the letter dated 9-1-1999 does not seek for any of those things to be settled or the disciplinary proceedings being scrapped as a sequel to her so-called resignation. The words “with immediate effect” in the said letter could not be given undue importance dehors the context, tenor of language used and the purport as well as the remaining portion of the letter indicating the circumstances in which it was written. That the management of the hospital took up such action forthwith, as a result of acceptance of the resignation is not of much significance in ascertaining the true or real intention of the appellant on 9-1-1999. Consequently, it appears to be reasonable to view that as in the case reported in P.K. Ramachandra Iyer [(1984) 2 SCC 141 : 1984 SCC (LandS) 214] the respondents have seized an opportunity to get rid of the appellant the moment they got the letter dated 9-1-1999, without due or proper consideration of the matter in a right perspective or understanding of the contents thereof. The High Court also seems to have completely lost sight of these vital aspects in rejecting the writ petition. letter written by

11. For all the reasons stated above, the order of the High Court under challenge in this appeal is set aside and the appeals are allowed. The communication dated 9-1-1999 purporting to accept a non-existent resignation is set aside. But, the respondent hospital authorities shall be at liberty to pursue the disciplinary proceedings initiated against her in accordance with law. No costs." The aforesaid judgment have been relied by the Hon'ble Supreme Court Signature Not Verified Signed by: PRARTHANA SURYAVANSHI Signing time: 1/19/2024 6:23:20 PM very recently in the case of Ms.X vs.High Court of Madhya Pradesh reported in 7 2022 (14) SCC 187.

14. The facts of the case clearly shows that the petitioner had resigned at the asking of employer from one post to join at another post under the same employer. The same other authority canceled selection of as many as 76 candidates appointed on the post of Samvidha The aforesaid judgment have been relied by the Hon'ble Supreme Court very recently in the case of Ms.x Vs.High Court of Madhya Pradesh reported in 2002 (14) SCC 187 Shikshak Garde-II. The petitioner cannot said to be at fault in this matter.

15. The resignation of the petitioner in teeth of the aforesaid circumstances can be said to be bilateral act and technical resignation. The resignation in the present case was not an act of giving up or relinquishing the office unconditionally. It was of a bilateral character and it was for the purpose of joining on another post under the same employer. The cancellation of appointments on the higher post came about hardly 6 months after tendering resignation from the lower posts. It is not the case of the respondents that during this intervening period of time, the posts from which the petitioner had resigned, had been filled up by the respondent No.3.

16. The impugned order Anneuxre-P/14 does not take into consideration any of the aforesaid factors and the entire order considered the right of the petitioner on the post of Samvidha Shikshak Grade-II. Only in the last paragraph of page No.3 of the order Annexure-P/14, the aspect of resignation of the petitioner has been dealt with, that too in only 3 lines. The said consideration is improper and cannot be given stamp of approval.

17. So far as the contention of the respondents that the post was contractual one is concerned, it is apposite to mention here that the State Signature Not Verified Signed by: PRARTHANA SURYAVANSHI Signing time: 1/19/2024 6:23:20 PM 8 Government has framed statutory rules governing service condition of Samvidha Shala Shikshak and a separate regular cadre has been constituted for such teachers who were initially appointed on contract basis. These rules are known as The M.P. Panchayat Adhyapak Samvarg (Employment and Conditions of Services) Rules, 2008. The existing employees holding the status of Shiksha Karmi or Samvidha Shala Shikshak have been absorbed in the Adhyapak Samvarg (Teacher Cadre). Thus, the services of Samvidha Shala Shikshak are no longer contractual after coming into force of the Rules of 2008. Thus, the contention of the respondents that the services of the petitioner were contractual one, cannot be countenanced.

18. In the result, the petition stands allowed. The order Annexure-P/14 is quashed. The petitioner is permitted to withdraw her resignation in terms of her representation.. The petitioner shall be allowed to rejoin on the post of Samvidha Shikshak Grade-III by the respondent No.3.

19. In the peculiar circumstances of the case, as the petitioner is shown to have approached the authorities with some delay and also considering the overall facts and circumstances of the case, the petitioner shall not be entitled to any back wages for the intervening period. However, she shall be entitled to seniority and continuation of service for other purposes on the post of Samvidha Shikshak Grade-III. She would be entitled to be considered for absorption as per Rules of 2008, if otherwise eligible.

20. In the above terms, the petition is allowed and disposed of. Prar Signature Not Verified Signed by: PRARTHANA SURYAVANSHI Signing time: 1/19/2024 6:23:20 PM (VIVEK JAIN) JUDGE 9 Signature Not Verified Signed by: PRARTHANA SURYAVANSHI Signing time: 1/19/2024 6:23:20 PM