C. MOIDEENKUTTY HAJI Vs. STATE OF KERALA

JUDGEMENT

(1.) FROM 1st May 1975 onwards the petitioner was the Headmaster of the A.M.L.P.School,Thoombathparamba,of which the 4th respondent is the Manager.On 5th July 1977 the petitioner sent Ext.P1 letter to the 4th respondent resigning from the post of Headmastership of the school with effect from 1st August 1977.The 4th respondent on 5th July 1977 itself accepted the petitioner 's resignation.But on 28th July 1977 the petitioner sent Ext.P2 letter to the 4th respondent withdrawing Ext.P1 resignation and informing the 4th respondent that he proposes to continue as Headmaster of the school.The 3rd respondent Assistant Educational Officer by Ext.P3 proceedings dated 1st August 1977 approved the petitioner 's resignation from the post of Headmaster with effect from 1st August 1977 and also approved the appointment of the 5th respondent as Headmaster of the school.In view of Ext.P3 the petitioner handed over charge as Headmaster of the school to the 5th respondent.But the petitioner filed an appeal to the 2nd responds District Educational Officer,Tirur against Ext.P3 order.The 2nd respondent District Educational Officer rejected that appeal by Ext.P4.The petitioner challenged Ext.P4 in a revision before the 1st respondent State.The 1st respondent by Ext.P5 rejected the petitioner 's revision holding:The petitioner has no claim that he had withdrawn his resignation letter before the Manager 's acceptance of the same and the moment the Manager,who was the appointing authority accepted the relinquishment the act of relinquishment became final,and the petitioner was precluded from saying that he wanted to withdraw his request ;.The petitioner then challenged Exts.P3,P4 and P5 by this original petition.The petitioner has also prayed for a declaration that he is entitled to continue as Headmaster of the 4th respondent 's school.

(2.) A counter affidavit has been filed on behalf of the 1st respondent State.It is stated in para 3 that on the acceptance of the resignation,the relinquishment by the petitioner of his post of Headmaster has become final and hence the petitioner cannot,as a matter of right,withdraw his resignation.It is also pointed out that as the petitioner has tendered his resignation voluntarily and it was accepted by the appointing authority the provisions contained in R.48 and 53 of Chap.14A of the Kerala Education Rules has no application.In para 4 it is stated that as the petitioner has admitted that he was relieved from the post of Headmaster as per orders of the Assistant Educational Officer,the contention that the previous approval of the Educational Officer was not there before he was relieved is not correct.

(3.) IN coming to the above conclusion I am supported by a decision of the supreme Court in Union of India v.Gopal Chandra AIR 1978 SC 694 wherein it is said: ''The general principle regarding resignation is that in the absence of a legal,contractual or constitutional bar,a 'prospective 'resignation can be withdrawn at any time before it becomes effective,and it becomes effective when it operates to terminate the employment or the office tenure of the resignor.This general rule is equally applicable to government servants and constitutional functionaries.In the case of a government servant/ or functionary who cannot,under the conditions of his service/ or office,by his own unilateral act of tendering resignation,give up his service/ or office,normally,the tender of resignation becomes effective and his service/or office tenure terminated,when it is accepted by the competent authority. In Kunjukrishnan Nadar v.Speaker 1964 KLT 140 it is said: The absence of a specific provision for withdrawal of a prospective resignation in the Constitution or the Rules is immaterial as basic principles of law and procedure must be applied wherever they are relevant.It then follows that there was no valid letter of resignation on the material date to be given effect to,and therefore the petitioner 's seat in the Assembly has not become vacant.