- (1.) R. A. Sharma, J. The permanent Principal of Bhan Pratap A. S. Intermediate College, Jahangirabad, Bulandshahr after referred to as the College) retired from service on 30-6-1991 ; thereby causing a substantive vacancy on the post of the Principal. Shri Prem Murti Dixit (hereinafter referred to as Dixit) being the seniormost lecturer in the College was appointed by the management as officiating Principal with effect from 1-7- 1991 After haying worked as officiating Principal for about one year and four months Dixit on 4-11-1992 submitted a letter of resignation to the management of the College, mentioning therein that he is unable to discharge the duties of officiating Principal on account of mental agony he has suffered due to disappearance of his younger daughter. He accordingly requested for acceptance of his resignation. The management on 11-11-1992 accepted his resignation and on the same date appointed another lecturer Sri Satyavir Singh Raghuvanshi (hereinafter referred to as Raghuvanshi) who was next in the seniority, as officiating Principal. Dixit stopped functioning as officiating Principal after 18-11-1992 and in his place Raghuvanshi started working as officiating Principal with effect from 19-12-1992 After more than a year Dixit wrote a letter dated 13 12-1923 to the District Inspector of Schools, Bulandshahr (hereinafter referred to as the D. I O S ) mentioning therein that he is now again willing to act as officiating Principal of the College. D. I. O. S. vide letter dated 16-7-1994 directed the Manager of the College to hand over charge of the post of acting Principal of the College to Dixit. Manager thereupon made a representation before the D. I. O. S. against the above order, but the D. I. O. S. issued another order dated 20-9-1994 asking the management to hand over charge of the post of officiating Principal to Dixit. Raghuvanshi, who was working as officiating Principal since 19-11-1992, has filed the writ petition before this Court challenging the above orders of D. I. O. S. This writ petition has been allowed by the learned Single Judge on 14-11-1994 Being aggrieved, Dixit has filed this Special Appeal. We have heard the learned counsel for the parties.
(2.) EARLIER Regulation 2 of. Chapter II of the Regulations framed under the U. P. Intermediate Education Act, provided for appointment of the head of the institution both against the substantive and temporary vacancies. After enactment of U. P. Secondary Education Services Com mission and Selection Board Act, 1982 (hereinafter referred to as the Act) the appointment to the posts of teachers and the Principal of an intermediate college can only be made on the basis of the recommendation by the Secondary Education Services Commission (hereinafter referred to as the Commission ). Act also contains the provisions in Section 18 for appoint ment of ad hoc teacher, if the Commission has failed to recommend the name of any suitable candidate within certain period after the vacancy was duly communicated to it. State Government has also issued Removal of Orders, under Section 33 of the Act making the provisions for tad hoc appointment against both, substantive and short-term vacancies. A Division Bench of this Court in Smt. Sudesh Kakkar v. Regional Inspectress of Girls Schools, (Special Appeal No. 141 of 1993) decided on 7-4-1994, has laid down that if a teacher has refused to accept the promotion to higher post he/she could not lay claim to the said cost again later on. In this connection the Bench referred to the decision of Supreme Court in N. C. Singhal v. Union of India AIR 1990 SC 125-5 wherein it was laid down as under : ". . . . . . . . if an employee eligible for promotion is offered a higher post by way of promotion, his refusal to accept the same would enable the employer the Central Government in this case to fill m the post by offering it to a junior to the Government servant, refusing to accept the post and in so acting there will be no violation of Article 16. Further, the Government servant who refused to accept the promotional post offered to him for his own reasons cannot then be heard to complain that he must be given promotional post from the date on which the avenue for promotion opened to him. " Although Dixit initially accepted the post of officiating Principal on 1-7-1991 and continued to work as such for almost one and half years, but he resigned on 4-11-1992 and his resignation was accepted by the management on 18-11-1992. On the same date Raghuvanshi was appointed in place of Dixit as officiating Principal. Thereafter the Manager of the College sent a letter dated 25-11-1992 to the D. 1. O. S. for attesting the specimen signatures of Reghuvanshi in place of Dixit. On receiving the aforesaid latter, D. I. O. S. required Dixist to appear before him on 23-12-1992. On 23-12-1992 Dixit appeared before the D. I. O. S. . where he not only accepted that he has submitted his resignation but also expressed his inability to work as officiating Principal, in view of mental torture he is suffering to disappearance of his younger daughter. These facts have been stated in paragraphs 6, 7 and 8 of the writ petition. But they have not been denied by Dixit as is clear from paras 7 and 8 of his counter- affidavit which contains the reply of paragraphs 6, 7 and 8 of the writ petition. Dixit intentionally gave up the post of officiating Principal and permitted Raghuvanshi to be appointed in his place as officiating Principal. Dixt has, thus, voluntarily and intentionally relinquished the post of officiating Principal. It is, therefore, not open to him to claim the said post again. Once a teacher has either declined to accept the promotional post or after having accepted the said post, he has voluntarily given it up, it is not open to him to lay his claim to the said post again after some one else has been promoted to that post. D. I. O. S. was thus not justified to direct the management to appoint Dixit again as officiating Principal and hand over the charge of the said post to him. Learned counsel for the appellant has, however, contended that the resignation submitted by Dixit was not in conformity with law. In support of his contention he placed reliance to Regulations 26 and 29 of Chapter III of the regulations framed under the Intermediate Education Act, according to which a teacher can resign from service by giving three months' notice or pay in lieu thereof. Contention of the learned counsel is that as Dixit has neither given three months' notice nor paid three months' salary in lieu thereof, his resignation was invalid and could not have been accepted by the management. Reliance, in this connection, has been placed on Shevraj Singh v. Shri Devji Mai Asha Ram Paliwal, 1982 UPLBEC 476), wherein the Division Bench while interpreting the aforesaid Regulations No. 26 and 29 has held that an employee can resign from service only in accordance with the provisions of Regulation 29 by giving three months' notice or pay in lieu thereof and if the resignation letter does not indicate the mode of resignation, it shall become effective only after expiry of three months. It was further held therein that as the Regulation 29 (1) prohibits an employee from giving a notice expiring in the months of January, February and March, the question of waiver of notice by the management in such cases does not arise. This decision has been followed by this Court in Kumari Rama Chauhan v. Committee of Management, (1983) UPLBfic 721 Parma Lal Pathak v. District Inspector of Schools, 1988 (1) UPLBEC 827 and Giriraj Sharma v. State of U. P. , 1985 UPLBEC 560. Regulation 29 is reproduced below ; "29. Any employee may resign by giving a notice or pay in lieu thereof to which he would have been entitled in case of termination of his services by the management: Provided that- (i) no employee shall give notice expiring in the month of January, or March ; (ii) Summer vacation may be included in the period of the notice ; (iii) an employee selected for appointment in Government service or the service of any local body shall not be required to give due notice and shall be required to resign from ser vice in time to join the new appointment if the application for the post had been made through proper channel; (iv) It will be open to the management to waive its claim to the notice. "
(3.) THE la*v laid down in Shevraj Singh v. Shri Devji Mai Asha Ram Paliwal (supra), and other decisions referred to above cannot apply to the instant case for two reasons, viz. (i) when Dixit's resignation dated 4-11-1992 was accepted by the management of the College on 18-11-1992, he did not raise any objection against it. He also did not raise any objection against the appointment and continuance of Raghuvanshi as officiating Principal of the College in his place with effect from 19-11-1992. On 23-12- 1992 Dixit appeared before the D. I. O. S. and has expressed his inability to work as Officiating Principal. He not only acquiesced in the matter but also voluntarily gave up his claim to the post of officiating Principal. He thus relinquished the said promotional post voluntarily and intentionally. In such circumstances it is not open to him to lay his claim to that post again, (ii) It is true that a teacher can resign only by giving three months' notice or pay in lieu thereof. It is also true that notice given in this connection by the teacher should not expire in the months of January, February and March. But if the teacher has resigned voluntarily and thereafter he has stopped functioning willingly on the promotional post, the management cannot force him to work. THE management has to run the College and for running College there has to be a Principal after the person has relinquished his job voluntarily the management has to make alternative arrangement by making fresh appointment of another eligible person in his place. Such a case would not be a simple case of resignation. It will also be a case of intentional and deliberate giving up of the promotional post for which compliance with Regulation 29 is not necessary. For the reasons given above, this appeal is dismissed. No cost. Appeal dismissed. .;