Case Note & Summary
The litigation concerned a service dispute between a Head Mistress of a private aided Ashram school and the school management over an alleged forced voluntary retirement. The petitioner, who had been serving since 1999 and was promoted to Head Mistress in 2005, claimed that on 02.08.2019 the management obtained her signature on a typed notice for voluntary retirement under threat and coercion at the residence of the President/Secretary. She promptly informed the Assistant Commissioner, Social Welfare on 29.08.2019 and requested cancellation, and also wrote to the management on 24.10.2019 before the school's Diwali vacation expressing her willingness to continue in service. Despite these communications, the management passed a resolution on 31.10.2019 accepting the voluntary retirement and appointed another person as Head Master. The petitioner represented to the authorities and filed a writ petition. The Assistant Commissioner, Social Welfare, Beed, acting under Government Resolution dated 03.10.2017, by order dated 24.12.2019 cancelled the management's resolution and directed reinstatement. The management challenged that order by filing Writ Petition No.550 of 2020, which it later withdrew to pursue an appeal before the Regional Deputy Commissioner. The appellate authority by order dated 17.12.2020 quashed the Assistant Commissioner's order and remanded the matter. On remand, the Assistant Commissioner again by order dated 30.07.2021 cancelled the voluntary retirement acceptance, directed reinstatement, and ordered release of salary as per rules. The management filed a second appeal which was not decided within the stipulated period, leading the petitioner to file the present writ petition seeking a writ of mandamus for reinstatement and salary. The petitioner also challenged the validity of the appellate authority created by Government Resolution dated 03.10.2017, contending that tribunals with adjudicatory powers can be created only by statute and not by executive order. The court considered whether the resignation was voluntary, whether the statutory mode of resignation under Section 7 of the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977 and Rule 40 of the Rules was mandatory, and whether the appellate mechanism was legally valid. The court observed that prior decisions establish that the core requirement for a valid resignation is voluntariness, not obtained by force, fraud or misrepresentation, and that strict adherence to the mode of tendering may be relaxed. The court also noted the argument that executive resolutions cannot create appellate authorities. The available text of the judgment does not include the final operative decision.
Headnote
A) Service Law - Resignation and Voluntary Retirement - Voluntary Nature of Resignation - Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977, Section 7; Maharashtra Employees of Private Schools (Conditions of Service) Rules, Rule 40 - Petitioner alleged that her signature on voluntary retirement notice dated 02.08.2019 was obtained by force and threat, and she communicated cancellation to the employer before acceptance - Court observed that prior judgments establish that resignation must be truly voluntary and not obtained by fraud or coercion; strict compliance with the statutory mode of tendering may be relaxed, but voluntariness remains the core requirement (Paras 7-10).
B) Administrative Law - Appellate Authority - Creation by Statute Not Executive Order - Government Resolution dated 03.10.2017 - Petitioner contended that an appellate authority cannot be created by executive resolution, relying on decisions that tribunals with adjudicatory powers can be created only by statute - Court noted this submission while considering the validity of the appeal mechanism under the GR (Para 8).
C) Writ Jurisdiction - Alternative Remedy - Availability of Appeal Under Government Resolution - Constitution of India, Article 226 - Respondent No.5 argued that the petitioner had an alternative remedy of appeal under GR dated 03.10.2017, and thus writ jurisdiction should not be exercised - Court considered the contention but did not conclusively rule on maintainability in the provided excerpt (Paras 5, 8).
Issue of Consideration
Whether the voluntary retirement notice dated 02.08.2019 was voluntary and valid; whether respondent No.5's resolution accepting it on 31.10.2019 is legally sustainable; whether the appellate authority under Government Resolution dated 03.10.2017 is validly constituted absent statutory backing; whether the writ petition should be entertained despite availability of alleged alternative remedy.
Law Points
- resignation must be voluntary
- not forced
- mode of resignation may be relaxed if voluntariness is clear
- tribunals with adjudicatory powers can be created only by statute
- not by executive order
- government resolution cannot create appellate authority
- alternative remedy does not bar writ if fundamental issue of jurisdiction raised
Case Details
2024 LawText (BOM) (04) 16
WRIT PETITION NO.4168 OF 2022
Smt. Vibha Kankanwadi, S. G. Chapalgaonkar
V. D. Salunke, P. G. Rodge, K. S. Patil, V. V. Bhavthankar
Vimal D/o Namdeorao Kurwade
1. The State of Maharashtra Through its Secretary, Department of Social Justice and Special Assistance, Mantralaya, Mumbai-32; 2. The Director for Welfare of VJNT, OBC & SBC, Maharashtra State, Pune; 3. Regional Deputy Commissioner, Social Welfare Department, Aurangabad; 4. The Assistant Commissioner, Social Welfare, Beed, District Beed; 5. Late Pandit Shyamprasad Mukharjee Shikshan Sanstha, Kille Dharur, Tq. Dharur, District Beed, Through its Secretary.
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Nature of Litigation
Service dispute between a Head Mistress of a private aided Ashram school and the school management regarding alleged forced voluntary retirement and subsequent reinstatement orders; also involves challenge to the validity of an appellate authority created by Government Resolution.
Remedy Sought
Petitioner sought a writ directing respondent No.5 school management to reinstate her as Head Mistress and release her salary as per rules, and to quash the voluntary retirement acceptance resolution.
Filing Reason
Respondent No.5 management obtained petitioner's signature on a voluntary retirement notice dated 02.08.2019 by force and later passed resolution dated 31.10.2019 accepting it despite petitioner's revocation; respondent No.4 twice ordered reinstatement, but respondent No.5 filed appeals and the appellate authority under GR was not deciding within stipulated period; petitioner alleged illegality of appellate mechanism.
Previous Decisions
Respondent No.4 Assistant Commissioner, Social Welfare, Beed by order dated 24.12.2019 cancelled the resolution and directed reinstatement; Respondent No.3 appellate authority by order dated 17.12.2020 quashed that order and remanded; Respondent No.4 again by order dated 30.07.2021 cancelled the voluntary retirement acceptance and directed reinstatement and salary; Respondent No.5 filed second appeal which remains undecided; earlier Writ Petition No.13908 of 2019 became infructuous; Writ Petition No.550 of 2020 was withdrawn.
Issues
Whether the voluntary retirement notice dated 02.08.2019 was voluntary or obtained by force and threat, and whether respondent No.5's resolution dated 31.10.2019 accepting it is valid.
Whether the petitioner effectively revoked the resignation before acceptance through representations dated 29.08.2019 and 24.10.2019.
Whether the statutory mode of resignation under Section 7 of the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977 and Rule 40 of the Rules was mandatory, and what is the effect of non-compliance.
Whether the appellate authority under Government Resolution dated 03.10.2017 can be validly created by executive order without statutory backing.
Whether the writ petition should be entertained despite the existence of an alternative remedy of appeal under the Government Resolution.
Submissions/Arguments
Petitioner: The signature on voluntary retirement notice was forcibly obtained; she had no intention to resign; she cancelled the notice before acceptance; the resignation did not follow the statutory mode under Section 7 and Rule 40; the appellate authority created by GR is illegal as only statute can create tribunals; respondent No.5 is adopting delaying tactics.
Respondent No.5: The resignation was voluntary; the revocation letter dated 24.10.2019 was received after the three-month notice period and after resolution; the alternative remedy of appeal under GR dated 03.10.2017 is available; prior judgments hold personal tender of resignation valid even if not by registered post.
Respondents 1-4 (State): Government Resolutions dated 03.10.2017, 21.03.2018 and 10.02.2022 provide speedy relief to employees; the petitioner has filed multiple petitions and thus the present writ should be dismissed.
Ratio Decidendi
The court observed that the core requirement for a valid resignation is that it must be voluntary and not obtained by force, fraud, or misrepresentation; strict adherence to the statutory mode of tendering may be relaxed, but voluntariness is essential. The court also considered the argument that appellate authorities with adjudicatory powers can be created only by statute and not by executive order, but the final decision on this point is not included in the provided excerpt.
Judgment Excerpts
It is well settled that the appellate authorities can be created only by statute and not by an executive order. Tribunals with adjudicatory powers can be created only by statute and not by executive powers or by passing government resolution.
The mode of tendering the same to the employer may not have been then strictly adhered to. Here, it appears from the record that even before the alleged resignation dated 02.08.2019 could be acted upon by respondent No.5, the present petitioner had informed the respondent No.4 by communication dated 29.08.2019 that the petitioner was called at the house by the President/Secretary of the Institute on 02.08.2019 along with her husband. They were threatened and her signature on the said letter of voluntary retirement was forcibly taken.
Procedural History
Petitioner appointed as Assistant Teacher on 12.07.1999; promoted to Head Mistress in 2005. On 02.08.2019, a voluntary retirement notice was allegedly signed under force. Petitioner made representation dated 29.08.2019 to cancel; followed by letter dated 24.10.2019 to respondent No.5. Respondent No.5 passed resolution on 31.10.2019 accepting voluntary retirement. Petitioner made representation dated 11.11.2019 to respondent No.4 and filed Writ Petition No.13908 of 2019. Respondent No.4 by order dated 24.12.2019 cancelled the resolution and directed reinstatement. Respondent No.5 challenged by Writ Petition No.550 of 2020, later withdrew, and filed Appeal No.1 of 2020 before respondent No.3. Appellate authority by order dated 17.12.2020 set aside the order and remanded. Respondent No.4 by order dated 30.07.2021 again cancelled the resolution and directed reinstatement and salary. Respondent No.5 filed a second appeal which remains undecided. Present Writ Petition No.4168 of 2022 filed seeking writ of mandamus for reinstatement and salary.
Acts & Sections
- Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977: Section 7
- Maharashtra Employees of Private Schools (Conditions of Service) Rules: Rule 40
