JUDGMENT Aloke Chakrabarti, J.
1. Seeking remedy of putting signature on the attendance register and payment of appears and current salary this writ petition was filed. Contentions made in the writ petition are that the petitioner was appointed as a clerk on 15.7.1982 in Sri Nand Ram Gupta, Junior High School, Rirua, Tahsil Oral, district Jalaun by the Committee of Management and his appointment was approved by the Basic Education Officer by order dated 10.1.1985. As the petitioner was being harassed and was not being allowed to put signature on the attendance register he made representations. As at the time of initial appointment under pressure the petitioner was made to give an undated resignation letter, the petitioner apprehending the misuse of the said resignation letter sent a registered letter dated 26.6.1991 to the respondent No. 1 District Basic Education Officer. On the basis of the said representation the respondent No. 1 directed the District Inspector of Girls Schools for conducting enquiry and submitting her report thereafter. After the enquiry detailed report was submitted to the respondent No. 1 with a recommendation that the petitioner may be allowed to put signature on the attendance register and he may be paid salary. A copy of the report has been annexed at Annexure-6 to the writ petition. The District Basic Education Officer the respondent No. 1 on the basis of the said report directed the Management of the School to allow the petitioner to put his signature on the attendance register within a week holding that in respect of the resignation letter prior approval was required. As still then the petitioner was not getting relief, this writ petition was filed.
2. Counter-affidavit was filed on behalf of the respondent No. 1 and a separate counter-affidavit was filed on behalf of the respondent Nos. 2 and 3. A supplementary counter-affidavit was also filed by the respondent Nos. 2 and 3. The petitioner filed rejoinder-affidavit.
3. Heard Mr. R.C. Srivastava, learned Counsel for the petitioner and Mr. V.S. Dwivedi, learned Counsel for the respondent Nos. 2 and 3.
4. The contention of the petitioner is that although his appointment was duly approved by the authority he is being harassed by the School management using the resignation letter which was obtained from the petitioner under pressure at the time of appointment. It is contended that the respondents are not entitled to use the said resignation letter as it was not voluntarily given by the petitioner and secondly such resignation could not be made effective as there was no prior approval. Provision of law as contained in Rule 21 of the Uttar Pradesh Recognised Basic Schools (Junior High Schools) (Recruitment and Conditions of Service of Ministerial Staff and Group 'D' Employees) Rules, 1984 (hereinafter referred to as Rules of 1984) has been referred. It has been stated that the language of the said Rule 21 converse the case of resignation also and as such without prior approval giving effect to resignation is bad. It is also stated on behalf of the petitioner that as resignation has been found to be not voluntary after enquiry, the same could not be given effect to.
5. It is further contended by the learned Counsel for the petitioner that the finding of the respondent No. 1 in respect of the said resignation has become final and as such the management could not withhold the salary of the petitioner treating him as since resigned.
6. The learned Counsel for the respondents school management contends that the order at Annexure-6 to the writ petition passed by the respondent No. 1 has already been appealed against and as such the same has not attained finality. On the question of the maintainability of the said appeal as there is no provisions of appeal in the said 1984 Rules, the learned Counsel for the respondents contends that the said Rule 21 is subject to the provisions of Rule 23 thereof. A reading of Rule 23, it is contended, indicates that Rules applicable to Assistant Teachers of a Basic School will be applicable and, therefore, the provisions of U.P. Recognised Basic Schools (Recruitment and Conditions of Service of Teachers and other Conditions) Rules, 1975 will become applicable wherein Rule 12 has been included providing for an appeal against orders of the District Basic Education Officer.
7. Further contention of the Learned Counsel for the respondents is that resignation is not covered by the Rule 21 of the said Rules of 1984 and as such no prior approval is required.
8. The learned Counsel for the respondents referred to the law as decided in the case of M/s. J.K. Cotton Spg. & Wvg. Mills Co. Ltd., Kanpur v. State of U.P. and Ors., reported in A.I.R. 1990 S.C. 1808.
9. The learned Counsel for the petitioner in reply to the contentions of the respondents contended that neither Rule 21 of Rules of 1984 is dependent on Rule 23 thereof nor the aforesaid Rules of 1975 are applicable for the purpose of maintainability of the appeal, and even if it applies the said Rule 23 refers to the provisions of the UP. Recognised Basic Schools (Junior High Schools) (Recruitment and Conditions of Service of Teachers) Rules, 1978 and the same will apply as the concerned institution is a Junior High School and the said Rules do not provide for any appeal. The learned Counsel also referred to the Judgments in the cases of Sri Pradeep Kumar Mukerjee v. The Managing Committee, Sant Vinoba Degree College, Deorla and Ors., (1994) 1 U.P.L.B.E.C. 183, Panna Lal Pathak v. District Inspector of Schools, Aligarh and Ors., (1988) 1 UPLBEC 827, Dharamvir Singh Tyagl v. The Deputy Director of Education and Ors., (1981) 1 UPLBEC 511 and Shioraj Singh v. Shri Devjimal Asha Ram Paliwal and Ors., (1982) 1 UPLBEC 476.
10. After considering the respective contentions of the parties, I find that the concerned institution here is a Junior High School and as such the aforesaid Rules of 1978 do not apply herein as the said 1975 Rules were made applicable only in respect of Junior Basic Schools in view of the provisions of Rule 3 and Rule 2 (b) of the said Rules. Even the Rule 23 of the said Rules of 1984 while bringing in provisions applicable to Assistant Teachers of a basic school it could not mean to bring in provisions of law as applicable to Junior Basic Schools only because the provisions of appeal is not there in the Rules of 1978 meant for Junior High Schools.
11. With regard to applicability of Rule 21 in the case of resignation, I am of the opinion that in the present case as resignation itself has been disputed by the petitioner stating that the same is not a voluntary resignation the same amounts to termination of service. Therefore, the provisions of Rule 21 of the said Rules of 1984 becomes applicable. The law as discussed in the aforesaid cases also supports such conclusion. In the facts of the present case the contention of the respondents is not acceptable as regards applicability of the law.
12. In view of the aforesaid findings, the writ petition succeeds and is hereby allowed. The respondents are directed to allow the petitioner to discharge his duties and but signatures on the attendance register as also to pay salary to him month by month and all arrears in accordance with law within a period of three months from the date of productions of a certified copy of this order. There will be no order as to costs.