Holding

The order accepting the voluntary retirement was invalid, amounted to a removal under Section 94 of the Karnataka Education Act, 1983, and the appeal was maintainable; the appellant is not to reinstate the respondent but must pay compensation.

Summary

Dr. R.R. Patil, the principal of a college run by K.L.E. Society, applied twice for voluntary retirement, first on 2 December 1994 without specifying a retirement date and again on 5 July 1995. The Society’s Board of Management accepted his second application on 20 July 1995, without the three‑month notice period required by Rule 50(5) of the Triple Benefit Scheme Rules and without the specific prior approval of the State Government mandated by clause (m). Patil appealed the acceptance before the Karnataka Education Appellate Tribunal, which set aside the order, holding it amounted to a removal under Section 94 of the Karnataka Education Act, 1983. The High Court affirmed the Tribunal’s decision, and the Society challenged that judgment before the Supreme Court. The Supreme Court upheld the Tribunal’s view, declaring the acceptance invalid, confirming the appeal’s maintainability, and directing the Society to pay Patil compensation equivalent to three years’ salary while refusing reinstatement. The appeal by the Society was dismissed.

Issues considered

Whether the Society’s order accepting the respondent’s voluntary retirement complied with Rule 50(5)(c) and (m) of the Triple Benefit Scheme Rules regarding notice period and prior State Government approval.
Whether the order of acceptance amounted to a removal within the meaning of Section 94 of the Karnataka Education Act, 1983, thereby making the respondent’s appeal maintainable before the Education Appellate Tribunal.
Whether the Education Appellate Tribunal had jurisdiction to entertain the appeal against the order of acceptance.

Legislation cited

Karnataka Education Act, 1983s. 94, s. 96

Subjects

service lawvoluntary retirementnotice periodremovalKarnataka Education ActEducation Appellate TribunalcompensationTriple Benefit Schemeemployment law

Judgment

A K.L.E. SOCIETY
v.
DR. R.R. PATIL AND ANR.

APRIL 26, 2002

B [S. RAJENDRA BABU, RUMA PAL AND BISHESHWAR PRASAD, JJ.]

Service Law:
"
Triple Benefit Scheme Rules Karnataka-Rule 50(5)(c) and (m)-
C Voluntary retirement-Acceptance ofbefore expiry ofnotice period and without
prior approval ofApproving Authority-Held, acceptance was not sustainable
as the same was pre-mature and amounted to curtailment of notice period

Karnataka Education Act, I 983-Section 94-Acceptance of voluntary
D retirement-Non-consideration of subsequent application for keeping in
abeyance the voluntary retirement-Appeal before Tribunal-Maintainability
of-Held, maintainable, since acceptance of voluntary retirement amounted to
removal. .-•

Respondent No. 1. Principal of Appellant Society's College applied on
E 2.12.1994 seeking permission for voluntary retirement, without mentioning
the intended date of retirement. The application was not considered and even
after expiry of notice period i.e. three months as per Rule 50(5)(h) of Triple
Benefit Scheme Rules, respondent No. 1 continued in service. Subsequently
when he was vested with additional obligations, he again applied for voluntary
retirement on 5.7.1995 without mentioning the intended date of retirement
F and there was no reference made to the earlier notice. On 19.7.1995 he
requested the Board to keep the notice of voluntary retirement dated 5.7.1995
in abeyance. Thereafter the Board of Directors of Life members recommended
acceptance of his resignation.

Board of Management resolved to accept the recommendation of Board
G of Director of Life Members without obtaining specific prior approval of the
State Government i.e. the Approving Authority. Nor did it consider the
application dated 19.7.1995. Respondent was issued memorandum conveying
the acceptance of voluntary retirement and non-consideration of letter dated
19.7.1995 and was relieved from service.
H 520
K.L.E. SOCIETYv. R.R. PATIL 521

Another person assumed charge of Principal in place of respondent. A
Respondent filed appeal against the resolution of Board of Management
before Education Appellate Tribunal which was allowed. During pendency
of the appeal, voluntary retirement was approved by the State. Revision
application of the appellant confirming the finding of the appellant, was
rejected by High Court. B
In appeal t-J this Court the issues for determination were whether the
appellant's acceptance of the voluntary retirement was valid and whether the
Education Appellate Tribunal was competent under the provisions of
Karnataka Education Act, 1983 to entertain the appeal from the order C
accepting the resignation.

Dismissing the appeal, the Court

HELD: 1.1. Appellant Society's order accepting the respondent's request
for voluntary retirement cannot be sustained primarily because the first notice D
given by the respondent on 2.12.1994 for voluntary retirement could not be
acted upon. The appellant purported to treat the notice dated 5.7.1995 as a
continuation of the first notice for the purpose of calculating the notice period
They could not have done that. The appellant not having waited for three
months from 5.7.1995, the order accepting the respondent No.l's request for
voluntary retirement was premature and amounted to unilateral curtailment E
of the notice period by the appellant contrary to the Scheme and more
particularly Rule 50(5)(c) thereof. [526-H; 527-H; 528-A]

1.2. The order of acceptance could not have been issued by the appellant
before obtaining the "specific prior approval" of the State Government under
clause (m) and after verification of the respondent No. l's eligibility is F
consolation with the Accountant General under clause (m). The purported
approval of the State Government was much after the impugned order of
acceptance was passed. Neither of these pre-conditions had been fulfilled.
[528-B, CJ

2. Impugned order amounted to a removal within the meaning of Section G
94 of the Karnataka Education Act, 1983 and the Respondent No. l's appeal
-. was, therefore, maintainable before the Tribunal. The element of voluntariness
attaching to the cesser of the respondent No. l's services when the impugned
_order was passed was entirely lacking. The result of the impugned order was
an immediate cessation of the respondent No. l's services as Principal of the H
522 SUPREME COURT REPORTS [2002) 3 S.C.R.

A appellants' college dehors the Scheme. [528-F, G, HJ

3. Since the appellant has replaced the respondent with another
Principal who was serving competently for the past several years and whose
replacement by the respondent may create an atmosphere of discord and
confrontation the respondent will not be reinstated in service but be treated
B to have retired from service and the appellant shall pay to the respondent a
sum equivalent to three years' salary as last drawn by the respondent as
Principal of the College by way of compensation. [529-B-E)

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 4509 of
c 2000.
From the Judgment and Order dated 26.5.2000 of the Karnataka High
Court in C.R.P. No. 836 of 1999.

Ranjit Kumar, Ashok B. Patil and Ms. Binu Tamta for the Appellant.

D S.S. Javali and Ms. Kiran Suri for the Respondents.

The Judgment of the Court was delivered by

RUMA PAL, J. The respondent No. I was the Principal of the appellant
society's college at Bangalore. He sent a letter on 2.12.1994 to the appellant
E stating that he was unable to continue as Principal of the College due to his
ill-health. He therefore requested the appellant " to accord necessary permission
to take voluntary retirement at the earliest and oblige". No period of notice
was mentioned by the respondent No. I in this letter. The appellant did not
reply nor did it take any action on the letter. On the other hand on.1.7.1995
F the respondent No. I was requested by the appellant to visit six institutions of
the appellant at least once in three months and to submit reports regarding
ways and means to improve the academic standard of the institutions.

On 5.7.1995 the respondent No. I submitted a second letter of voluntary
retirement to the appellant. It was said in the letter:
G "I am severely hit by ill-health and misfortune. As a result, I have
been undergoing both physical and mental agony, since long time.
I do not wish to cause any problem to the Society or any
.,,
individual".
H For these reasons the respondent no. I stated that he wished to resign
Ii'

K.L.E. SOCIETYv. R.R. PATIL [RUMA PAL, J.] 523

• from various posts held by him in the appellant-society and to take voluntary A
retirement as Principal of the appellant's college at Bangalore and that he
"may kindly be permitted to take voluntary retirement at the earliest".

A few days later, on 14.7.1995 the Board of Life Members of the
appellant with reference to the letters dated 2.12.1984 and 5.7.1995 sent by
the respondent No. I, unanimously resolved to recommend the acceptance of B
the resignation of the respondent No. I from the various posts and also to
permit the respondent No. I to take voluntary retirement on medical grounds
from the post of Principal of the College.

On 19.7.1995 the respondent No.I resumed his duties as Principal. He
says that he found that there was a law and order problem in the college c
campus with outsiders seeking to interfere with the Admissions Committee.
According to the respondent No. I, in order to take the situation under control
and also to respect the appeals from students, their parents, colleagues, and
public at large, he had resumed his duties. He sent a letter on 19.7.1995 by
facsimile to the Board of Management of the appellant requesting that his D
letter dated 5.7.1995 be kept in abeyance. That the letter was received by the
Board of Management is not in dispute. But it was not considered when the
Board of Management met on the same day to consider the recommendation
of the Board of Life Members relating to the respondent No.l's letter dated
2.12.1994 and 5.7.1995. The reason given for not considering the respondent
No.l's request dated 19.7.1995 was that" it did not establish that there has E
been a material change in circumstances". It was resolved to accept the
recommendations ot the Board of Life Members in toto.

On 20.7.1995 the Chairman, Board of Management issued a
memorandum to the respondent No. I with reference to his letters dated
-I F
2.12.1994 and 5.7.1995, stating that both the Board of Life Members and the
Board of Management had resolved to accept the respondent No.l's
resignation/voluntary retirement and to relieve the respondent No. I from his
services forthwith. The memorandum went on to state:

"In view of the resolutions passed by the Board of Life Members and G
Board of Management, your further request dated 19th July, 1995 for
keeping the voluntary retirement in abeyance has not been considered."
. By another order passed on the same day the Chairman transferred a
senior grade lecturer from the appellant's college at Belgaon to take over
immediately the post of Principal of the Bangalore College in place of the H
524 SUPREME COURT REPORTS [2002) 3 S.C.R.

A respondent No. l. The lecturer from Belgaon assumed charge as Principal in
Bangalore on 22.7.1995."

The respondent No. I appealed against the resolution of the Board of
Management before the Education Appellate Tribunal. While the appeal was
pending, the Director, Collegiate Education issued an order according approval
B to the voluntary retirement of the respondent No. l as requested by the
appellant's society. The appeal preferred by the respondent No. I was allowed
on 19.2.1999 by the Education Appellate Tribunal and the resolution dated
19. 7.1995 was quashed and the appellant was directed to continue the service
of the respondent No.1 and to release to him all the benefits as if he were
C continuing in service. The appellant challenged the decision of the Tribunal
before the High Court in its revisional jurisdiction under Section I 15 of the
Code of Civil Procedure. By its judgment dated 26.5.2000, the High Court
rejected the revision application of the appellant and confirmed the finding
of the Tribunal. Aggrieved by the decision of the High Court, the appellant
has now approached this Court.
D
Two issues arise for determination in this case. The first: whether the
appellant's acceptance of the voluntary retirement of the respondent No. l.
from service was validly done. The second (which is dependent on the outcome
of the first) : whether the Education Appellate Tribunal was competent under
E the provisions of the Kamataka Education Act, 1983 (hereinafter referred to
as the Act) to entertain the appeal from the order accepting the resignation.

The answer to the first question will tum on a construction of Rule 50
(5) of the Triple Benefit Scheme Rules (hereinafter referred to as the Scheme).
The Rule in question pertains to voluntary retirement of employees of aided
p educational !nstitutions on completion of20 years of qualifying service on or
after 16.1.1985. The benefit of voluntary retirement under Rule 50 (5) is
subject to several conditions. Set out below are those conditions which are
relevant:

(a) The employees shall give a notice of at least 3 months in writing
G to the appointing authority.

(b) The scheme is voluntary the initiative resting with the employee
himself/herself.
.,.
(c) Govt. does not have the reciprocal right to retire employees
H under the TBS.
K.L.E. SOCIETYv. R.R. PATIL [RUMA PAL, J.] 525

(d) Xxx xxxxxx xxx A
(e) Xxx xxxxxx xxx
(f) Xxx xxxxxx xxx
(g) Xxx xxxxxx xxx
(h) A notice of less than three months may be accepted by the B
appointing authority in deserving cases with the prior approval
of the authority competent to approve the said appointment.
(i) A notice of voluntary retirement may be withdrawn subsequently
only with the approval of the appointing authority and the
approval of the authority competent to approval of appointment C
provided that the request for such withdrawal is made within the
intended date of retirement and the employee is in a position to
establish that there has been a material change in the
circumstances in consideration of which the notice was originally
given. D
The voluntary retirement shall not become effective merely on
the ground that a notice to that effect has been given by the
employee unless it is duly accepted by the appointing authority.
Such acceptance may be generally given in all cases except
those:-
E
(i) In which disciplinary proceedings are pending or
contemplated against the employees for the imposition of
any of the major penalties under the GIA Code or other
rules prescribed as the case be;

(ii) In which prosecution is contemplated or may have been F
launched in a Court of Law against the employee.

(k) Xxxxxx xxx xxx
(I) Orders permitting the employees to retire under Rule 50(5) shall
not be issued until after the fact that he/she has put in a qualifying G
service of not less than 20 years, has been verified in consultation
with the Accountant General.

(m) The voluntary retirement under this scheme may be ordered by
the Management only after specific prior approval of the authority
competent to approve the appointment for which selection is H
526 SUPREME COURT REPORTS [2002] 3 S.C.R.

A made by the Management.

The Rule speaks of two authorities, namely, the appointing authority of
the employee and the authority competent to approve the appointment of the
concerned employee. No particular form of giving the notice is specified in
the Rule except that it must be in writing and should be addressed to the
B appointing authority. As far as the period of notice is concerned, a minimum
three months' period is specified subject to both the appointing authority and
the approving authority being satisfied that the employee's case merited a
lesser notice period. In other words, as far as the authorities themselves are
concerned they cannot on their own curtail the notice period. Once the right
C is exercised by the employ~e, he can withdraw the nc;>tice to retire provided
he;

(i) makes a request to withdraw within the 'intended date of
retirement' and;
(ii) is in a position to establish that there is a material change in the
D circumstances by reason of which the notice to retire voluntarily
had been given in the first place.

If there is no such withdrawal of notice, the request for voluntary
retirement can be accepted under clause G) subject to two exceptions neither
of which are relevant to this case. Finally: an order of voluntary retirement
E can be passed by the appointing authority subject again to the fulfillment of
two pre-conditions under clauses (I) and (m) of the sub-rule: viz. the specific
prior approval of the approving authority and the verification in consultation
with the Accountant General that the employee has put in a qualifying service
of 20 years.
F In ans\\'er to the first question, the learned counsel for the appellant
contended that under clause G) of sub rule (5) of Rule 50 of the Scheme, a
notice of voluntary retirement is to be generally accepted in the absence of
a valid notice of withdrawal. It is contended that the withdrawal of the
respondents' request of voluntary retirement was not in terms of clause (i) in
G that it did not even claim any change in the circumstances for which voluntary
retirement had been sought by him.

To our mind irrespective of the validity of the notice of withdrawal the
appellants order accepting the respondents request for voluntary retirement
cannot be sustained primarily because the first notice given by the respondent
H on 2.12.1994 for voluntary retirement could not be acted upon. As noted
K.L.E. SOCIETYv. R.R. PATIL [RUMA PAL, J.] 527
4
above, Rule 50(5) provides for a minimum period of notice unless explicitly A
curtailed under clause (h) of Rule 50(5). The respondent had not specified an
intended date of retirement in the first notice. He had asked for 'permission
to take voluntary retirement at the earliest' but there was no plea for curtailing
the notice period. Therefore in the context of Rule 50 (h), the "earliest"
would have been after three months viz., 2nd March. The importance of the
notice period lies in the fact that the retirement if accepted would be effective B
on the expiry of that period. However, no action was taken by the appellant
~
to retire the respondent No. I then. On the other hand, after the notice period
expired, the respondent No. I was not only continued in service but vested
with additional obligations. The respondent No. I did not refuse nor did he
protest this. He continued in service well after the expiry of the first notice c
period. Both the appellant and the respondent No. I by their conduct clearly
treated the first notice as infructuous and inoperative. Had the appellant
treated the first notice of retirement as the operative one, when the impugned

- order of acceptance was issued, the respondent No. I would have been treated
as ref .d with effect from the expiry of the first notice period, When the
respondent No. I submitted the second notice on 5. 7.1995 no reference was D
made to the earlier notice dated 2.12.84. Besides there could not have been
• two applications for voluntary retirement. By accepting the second application
on 5.7.95 the first application must in any event be treated as having been
superseded. The respondent No. l's letter dated 5.7.1995 was in fact a fresh
application for voluntary retirement. Here too the respondent No. I did not E
specify the intended date of retirement. He only requested that he may be
permitted to take retirement 'at the earliest'. The non specification of a date
coupled with the fact that no request was made for curtailment of the notice
period, meant that the date of his voluntary retirement could only be on or
after 5.10.95. During this period, the respondent No. I sent the letter dated
19.7.95 requesting that the notice of voluntary retirement dated 5.7.95 be F
~

kept in abeyance. This was not a letter for withdrawing the notice. It was a
request that the notice may be kept in abeyance in the sense not considered
immediately thus postponing the intended date of retirement. Assuming that
the letter dated 19.7.95 was a notice of withdrawal and that the appellant was
right in discarding it, nevertheless the appellant was bound to allow the
G
notice period of three months calculated from 5.7.95 to expire before issuing
an order accepting the notice. Admittedly the appellant did not do that. They
issued the impugned order within 15 days.

., The appellant purported to treat the notice dated 5.7.95 as a continuation
of the first notice dated 2.12.94 for the purpose of calculating the notice H
528 SUPREME COURT REPORTS [2002] 3 S.C.R.

A period. They could not have done that for the reasons stated earlier. The
appellant not having waited for three months from 5.7.95, the order accepting
the respondent No. l's request for voluntary retirement was premature and
amounted to unilateral curtailment of the notice period by the appellant
contrary to the Scheme and more particularly Rule 50 (5) (c) thereof. The
B impugned order cannot but be held to be bad.

There is a further reason for setting aside the impugned order. Under
Rule 50 (5), as far as the respondent No. 1 was concerned, the appointing
authority was the appellant and the approving authority was the State
Government. The order of acceptance could have been issued by the appellant
C on 20.7.95 only after obtaining the "specific prior approval" of the State
Government under clause (m) and after verification of the respondent No. l's
eligibility in consultation with the Accountant General under clause (m).
Neither of these pre-conditions had been fulfilled. The purported approval of
the State Government was much after the impugned order of acceptance was
passed. The verification with the Accountant General has not been done at
D all.

This brings us to the second question namely whether the appeal by the
respondent No. I was maintainable before the Tribunal, the Tribunal was set
up by the State Government under Section 96 of the Act for the purposes of
adjudicating appeals preferred under the Act. Section 94 which is the provision
E relating to appeals allows any teacher or other employee of a private
educational institution who has been dismissed, removed or reduced in rank
to prefer an appeal to the Tribunal within three months from the date of the
communication of such order. There is no argument that the appeal of the
appellant was barred by limitation. The question then is - did the impugned
p order of the appellant amount to a dismissal or removal within the meaning
of Section 94? The impugned order was, as held earlier, not one under or in )
accordance with the Scheme. The appellant lost sight of the fact that Rule 50 t=-
(5) was part of a scheme the express object of which was to benefit the
employee and not the employer. The element of voluntariness attaching to
the cesser of the respondent No.l's services when the impugned order was
G passed was entirely lacking. The result of the impugned order was an
immediate cessation of the respondent No.l's services as Principal of the
·appellants' college dehors the Scheme. We have therefore no hesitation in
holding that the impugned order amounted to a removal within the meaning
of Section 94 of the Act and the Respondent No.l's appeal was, therefore,
H maintainable.
K.L.E. SOCIETYv. R.R. PATIL [RUMA PAL, J.] 529
. Ordinarily having reached this conclusion, we would have merely A
dismissed the appeal, but having regard to the submissions made by counsel
on either sides, we feel that it would be more appropriate to mould the relief
granted by the High Court to the respondent. The respondent himself had
decided to retire for compelling personal reasons. In fact, he had been on
long leave prior to the second notice asking for permission to voluntarily
retire. He had agreed to continue for the time being at the instance of others B
in the interest of the institution. The appellant has in the meantime replaced
the respondent with another Principal who has been serving for the last 7
years apparently to the satisfaction of the appellant and without any complaint.
It is also not the respondent's case that the present incumbent is incompetent
or has not discharged his duties during this period with dedication and C
commitment. On the other hand the replacement of the present incumbent by
the respondent may, given the history of this litigation, create an atmosphere
of discord and confrontation, which would not benefit the institution at all.
It would, in the circumstances, be in the interest of all the protagonists to
allc·' the present incumbent to continue while compensating the respondent
for the incorrect action taken by the appellant against him. D
~ We accordingly dismiss the appeal with the direction that the respondent
will not be reinstated in service but be treated to have retired from service
as indicated in the order impugned before the Tribunal and the appellant shall
pay to the respondent a sum equivalent to three years' salary as last drawn E
by the respondent as Principal of the College by way of compensation. Such
payment shall be made within eight weeks from today. The appellant will
also pay the respondent the costs of this appeal assessed at Rs. 5,000 (Rs.
Five thousand only).

K.K.T. Appeal dismissed.