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PETITIONER: COMMITTEE OF MANAGEMENT DAYANAND ARYA KANYA DEGREE COLLEGE,

       Vs.

RESPONDENT: DIRECTOR OF HIGHER EDUCTION ALLAHABAD & ORS.

DATE OF JUDGMENT:       16/01/1998

BENCH: G.N. RAY, G.B. PATTANAIK

ACT:

HEADNOTE:

JUDGMENT:                          O R D E R      Leave granted.      Reard  learned  counsel  for  the  parties.  The  short question that  arises for  decision of  this Court  in  this appeal  is   whether  the   respondent  Dr.  Manju  Saraswat continues as  Principal of  the Dayanand  Arya Kanya  Degree College,  Moradabad,   despite  the   fact  that   she   had Voluntarily tendered  resignation from  the said  post  long back. By the impugned judgment, the High Court has held that the acceptance  of the resignation by the Managing Committee of the said college was not operative because the authorised Controller had  not accepted  such resignation  and the Vice Chancellor the  concerned University  had also  not accorded approval of  the  decision  of  the  Managing  Committee  in accepting  the   resignation  tendered  by  the  said  Manju Saraswat.      There is no dispute to the fact that Smt.Manju Saraswat tendered resignation  voluntarily and till today she had not withdrawn such  resignation. There is also no dispute to the fact that  the relevant time when the Managing Committee had accepted the  said resignation,  the said Managing Committee was in  office both  de facto  and de  jure by virtue of the interim  order   passed  by  the  High  Court  in  the  writ proceeding in  favour of  the  Managing  Committee.  In  the aforesaid circumstances,  the footing  that  the  authorised controller had  accepted the  resignation tend by Smt. Manju Saraswat because the authorised controller was not in office at the  relevant time  when the  voluntary  resignation  was accepted  by  the  Managing  Committee  which  was  lawfully discharging  the   duties  and  functions  of  the  Managing Committee. So  far as  the question of according approval by the Vice-Chancellor  of the  University is concerned, it may be pointed  out that such approval is not contemplated under sub-section 3  of Section 35 of the Uttar Pradesh University Act, 1973  in the  case of voluntary resignation by teacher. The said  sub-section applies when decision to terminate the service of teacher whether by way of punishment or otherwise is taken by the management. If a teacher voluntarily tenders resignation and  by that  process withdraws from the service on own  record, the  question of termination of service does

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not arise.  In this  connection, reference  may made  to the decision of  this Court  in J.K. Cotton Spinning and Weaving Mills Co.  Ltd. Vs. State of U.P. (1990 (44) SCC 27). It has been  held   in  the  said  decision  that  if  an  employee voluntarily tenders  resignation, it  becomes an  act of the employee who  chooses to voluntarily give up job. Therefore, such situation  will be  covered by the expression voluntary retirement within  the meaning  of clause I of Section 2 (a) of U.P.  Industrial Disputes  Act, 1947.  It has  also  been indicated in  the said  decision that  if the resignation is not voluntarily  but it  is tendered on account of coersion, such resignation  cannot be  held to be voluntary act of the employee expressly deciding to withdraw from service.      We have  already indicated that such is not the case in this appeal.  Therefore, there was no occasion approval on a decision of  the management  to terminate the service of the concerned teacher.  Since the  Managing Committee  which was lawfully in  office at  the relevant  point of  time and had accepted the  voluntary  resignation,  the  relationship  of master and  servant between  the college authorities and Dr. Manju Saraswat  had come  to and  end. Hence,  there  is  on question of  her continuance  in the  service  in  the  said college. Mr.  Vijay Bahugana,  the  learned  senior  counsel appearing  for   the  respondent  Dr.  Manju  Saraswat,  has submitted  that  although  such  voluntary  resignation  was tendered by  Dr. Manju  Saraswat and  the same  had not been withdrawn by her, on account of some misconception, the fact remains that  she had  thereafter continued  in service  for long for  which she  had also  been paid.  Mr. Bahugana  has submitted that  the new  Management has  taken charge of the said college  and  it  will  be  only  appropriate  if  such Committee  considers   the  case   of   Smt.Manju   Saraswat sympathetically. It  is not necessary for this Court to make any observation  on such submission of Mr. Bahugana. It will be open  to the concerned Managing Committee to consider the representation, if made by Dr. Manju Saraswat, on its merit. This appeal,  therefore, succeeds  and the impugned order is set aside without, however, any order as to costs.