Case: Union Of India Vs. Shri Gopal Chandra Misra And Ors

of the parish and in mercy to the Vicar, the Vicar on the 2nd of June executed before witnesses, but not before a notary, an unconditional deed of resignation and sent it to the Bishops Secretary on the understanding that the Bishop would postpone formal acceptance until the 1st of October. On the 10th June the Vicar executed a deed cancelling and revoking the deed of resignation, and on the 16th of July he communicated the fact to the Bishops Secretary. The Bishop after the revocation, signed a document dated the 1st of October accepting the resignation and declaring the vicarage void.The Vicar brought an action against the Bishop and the patrons of the benefice, claiming a declaration that he was Vicar, the resignation was void, and an injunction to restraint the defendants from treating the benefice as vacant. The House of Lords, affirming the decision of the Court of Appeal (35 Ch.D. 48), held that the resignation was voluntary, absolute, validly executed and irrevocable and that the action could not be maintained. The principal contention canvassed before the House of Lords by the appellant Vicar was that assuming the resignation to be valid, it was sought without the Bishops acceptance. The acceptance of the ordinary is absolutely necessary to avoid a living. Until acceptance the effect of the incumbents resignation is to make the benefice voidable, not void; he remains incumbent with all his powers and rights, including the power of revocation; he is in the position (at the utmost) of one who has made a contract to resign. 61. The Noble Lords rejected this contention. Lord Halsbury L.C., observed :"The arrangements for resignation on the one side and acceptance on the other seem to me to have been consummated before the supposed withdrawal of the resignation of Mr. Reichal. It is true the Bishop agreed not to execute the formal document to declare the benefice vacant till the following 1st of October; but I decline to decide that when a perfectly voluntary and proper resignation has once been made and by arrangement a formal declaration of it is to be postponed, that is not a perfectly binding transaction upon both the parties to it; and I doubt whether in any view of the law such an arrangement could have been put an end to at the option of only one of the parties". Lord Watson further amplified :"His resignation was delivered in pursuance of a mutual agreement which rendered formal or other acceptance altogether unnecessary; the terms of the agreement showing plainly that the Bishop not merely was ready to accept, but insisted upon having it, in order that it might receive full effect upon the 1st of October following. The agreement was perfectly lawful, it being entirely within the discretion of the Bishop to judge whether the adoption of proceedings against the appellant, or his unconditional resignation as from a future date, would most conduce to the spiritual interest of the parish. The appellant assented to the arrangement, and on the 2nd of June, 1886 did all that lay in his power to complete it ... He cannot in my opinion be permitted to upset the agreement into which he voluntarily agreed ... upon the allegation that there was no formal acceptance of his resignation till 1st of October, 1886". Lord Herschell opined :"I do not think the word acceptance means more than the assent of the Bishop, or that it need take any particular form. Now, in the present case, the Bishop had intimated to the plaintiff that he was willing to assent to his resignation, and it was in pursuance of his intimation that the resignation was placed in the hands of the Bishop. At the time ... the Bishop received it, and thence forward down to and after the time of the alleged revocation, the Bishop was an assenting party to the resignation". 62. While declining the contention of the appellant, the Noble Lord closed the discussion on the point with this significant reservation :"It is, however, unnecessary in the present case to go to the length of saying that a resignation can never be withdrawn without the consent of the Bishop, for I am of opinion that it certainly cannot be so under circumstances such as those to which I have drawn attention". 63. Reichal is no authority for the proposition that on unconditional prospective resignation, without more normally becomes absolute and operative the moment it is conveyed to the appropriate authority. The special feature of the case was that Reichal had, of his own free will, entered into a "perfectly binding agreement" with the Bishop, according to which, the Bishop had agreed to abstain from commencing an inquiry into the serious charges against Reichal if the latter tendered his resignation. In pursuance of that lawful agreement, Reichal tendered his resignation and did all to complete it, and the Bishop also at the other end, abstained from instituting proceedings against him in the Ecclesiastical Court. The agreement was thus not a nudam poctum but for good consideration and had been acted upon and "consummated before the supposed withdrawal of the resignation of Mr. Reichal", who could not, therefore, be permitted "to upset the agreement" at his unilateral option and withdraw the resignation "without the consent of the Bishop". It was in view of these exceptional circumstances, their Lordships held Reichals resignation had become absolute and irrevocable. No extraordinary circumstances of this nature exist in the instant case. 64. In the light of all that has been said above, we hold that the letter, dated May 7, 1977 addressed by appellant 2 to the President, both in point of law and substance, amounts but to a proposal or notice of intention to resign at a future date (1-8-1977) and not being an absolute, complete resignation operative with immediate effect, could be and, in fact, had been validly withdrawn by the said appellant through his letter, dated July 15, 1977, conveyed to the President. 65.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]We find no merit in this objectionMr. Soli Sorabji, Additional Solicitor-General addressed arguments before the High Court on behalf of the Union of India. No objection to the locus standi of the Union of India to contest the writ petition was raised, at any stage, before the High Court. It is, therefore, not correct to say that the Union of India was not a contesting party in the Court belowAs rightly pointed out by the learned Attorney-General, the Union of India is vitally interested in the case. It is the President of India who had appointed appellant as a Judge, and the stand of the Union of India throughout has been that the withdrawal of the intimation to resign by the Judge, is valid and, therefore, he continues to hold the office of a Judge even after August 1, 1977, but the High Court had held otherwise. The Union of India, therefore, has reason to feel aggrieved by the decision of the High CourtIn order to give a person locus standi to appeal on a certificate granted under any clause of these articles, it is necessary that he was a "party in the case before the High Court". The Union of India was admittedly such a party having a stake in the dispute. The substantial question of law involved in the case, is of general importance and concerns the interpretation of the ConstitutionWe are not concerned with the matter of incurring expenditure by the Union of India; whether it is justified, proper or not. We are surely of the view that the Union had a substantial interest in this proceeding. Thus, from every point of view, the Union of India is entitled to come in appeal to this Court and question the correctness of the High Courts finding on the question of law involved. We, therefore, overruled the preliminary objection, and requested the learned Attorney-General to proceed with his addressIn the instant case, there can be no dispute about the performance of the first two, namely : (i) he wrote a letter under his hand, (ii) addressed to the President. Thus, the first two pillars of the ratiocinative edifice raised by the High Court rest on sound foundationsIf the answer to this question is found in the affirmative, the appeals must fail. If it be in the negative, the foundation for the reasoning of the High Court will fail and the appeals succeedIn the general juristic sense, also, the meaning of "resigning office" is not different. There also, as a rule, both the intention to give up or relinquish the office and the concomitant act of its relinquishment, are necessary to constitute a complete and operative resignation (see e.g., American Jurisprudence, 2nd edn., Vol. 15A, page 80), although the act of relinquishment may take different forms or assume a unilateral or bilateral character, depending on the nature of the office and the conditions governing it. Thus, resigning office necessarily involves relinquishment of the office which implies cessation or termination of, or cutting as under from the office. Indeed, the completion of the resignation and the vacation of the office are the casual and effectual aspects of one and the same eventsFrom the above dissertation, it emerges that a complete and effective act of resigning office is, one which severs the link of the resignor with his officer and terminates its tenure. In the context of Art. 217(1) this test assumes the character of a devisive test, because the expression "resign his office" the construction of which is under consideration occurs in a proviso which excepts or qualifies the substantive clause fixing the office-tenure of a Judge upto the age of 62 yearsThus tested, sending of the letter dated May 7, 1977 by the appellant 2 to the President, did not constitute a complete and operative resignation within the contemplation of the expression "resign his office" used in proviso (a) to Art. 217(1). Before the arrival of the indicated future date (August 1, 1977), it was wholly inert, inoperative and ineffective, and could not, and in fact did not cause any jural effectWith respect, we venture to say that this reasoning is convoluted logic spiralled up round a fiction for which there is no foundation in the statute. To say that the resignation or the relinquishment of his office by the Judge could not take place before 1-8-1977, and yet, the factum of resignation became complete on 7-5-77, would be a contradiction in terms. To get over this inherent contradiction, the High Court (by majority) has introduced a two-fold fiction; (1) That if in a written communication to the President, the Judge chooses to resign his office from a future date, the resignation will be deemed to be effective and complete from the moment the communication is sent to the President and received by him. (2) That since it has not been provided in proviso (a) or elsewhere in the Constitution, that such communication of a "prospective" resignation can be withdrawn, its withdrawal would be deemed to have been prohibited, on the maxim expressum facit cessare tacitumNo. (1) is manifestly imcompatible with the letter and intendment of Art. 217(1), since by deeming the resignation to have taken place on a date different from the date chosen by the Judge, it subverts his exclusive constitutional right to resign his office with effect from a date of his choosing. No. 2 is equally unjustified. There is nothing in proviso (a) or elsewhere in the Constitution which expressly or impliedly forbids the withdrawal of a communication by the Judge to resign his office before the arrival of the date on which it was intended to take effect. Indeed, such a futuristic communication or prospective resignation does not, before the indicated future date is reached, become a complete and operative act of "resigning his office" by the Judge within the contemplation of proviso (a) to Art. 217(1)Thus considered, it is clear that merely by writing the letter to the President on May 7, 1977 proposing to resign with effect from August 1, 1977 the Judge had not done all which he was required to do to determinate his tenure, of his own volition, under proviso (a) to Art. 217(1). He had not, as yet, resigned his office on May 7, 1977, itself, he had not done everything which was necessary to complete the requirement of the expression "resign his office". He had not relinquished his office and thus delinked himself from it. He had not - as the learned Judges of the High Court have erroneously assumed - crossed the Rubicon - Rubicon was still afar, 85 days away in the hazy future. At any time, before the dead line (August 1, 1977) was reached, the Judge could change his mind and choose not to resign, and withdraw the communication dated May 7, 1977We have already seen that there is nothing in the Constitution or any other law which prohibits the withdrawal of a communication to resign from a future date, addressed by a Judge to the President, before it becomes operativeIf this Court evolves a principle - proceeded the argument - whereby it permits a Judge who is a constitutional functionaries would misuse such implied power of withdrawal or resignation. The President may hold the Parliament to ransom and make a farce of Parliamentary sovereignty and the functioning of the ConstitutionThe contention appears to be misconceived. 38. The argument assumes that a tender of prospective resignation is always motivated by sinister consideration and, therefore, to permit its withdrawal is never in the public interest. We are unable to concede this as a rule of universal application. Any number of cases are conceivable where a prospective resignation is tendered with the best of motives. A Judge renowned for his conscientiousness and forensic skill may send an intimation under his hand to the President proposing to resign from a future date, 2 months away, covering this interregnum by two months leave due to him, in the belief, founded on his doctors advice, that he is stricken with a malady which will progressively render him deal in two months time. The motive behind the tender is that the Judge feels that he will no longer be able to discharge his official duties to the entire satisfaction of his conscience. But before the date on which the prospective resignation is to take effect, a surgical operation completely and permanently cures him of the disease and restores his full hearing power, and the Judge immediately thereupon, sends a communication withdrawing the tender of his resignationThere are no circumstances, whatever, which would show that the withdrawal of the resignation by the appellant would cause harm to the public or even to an individual. The contention, therefore, is repelledWe are here considering the case of withdrawal of a "prospective resignation" by a Judge of the High Court and not of any other constitutional functionary. It may not be correct to say that whatever principle we evolve with reference to the interpretation of Art. 217(1), proviso (a), will automatically govern the withdrawal of such a prospective resignation by the President of India because the provisions of Art. 256 relating to a resignation by the President are not, in all respect, identical with those of Art. 217. There is no provision in Art. 217 corresponding to cl. (2) or cl. (1)(c) of Art. 56, and in this case in accordance with the well-settled practice of the Court, we refrain from expressing any opinion with regard to the interpretation and effect of those distinctive provisions in Art. 56We are also unable to agree with the High Court that mere sending of the letter, dated May 7, 1977 by the Judge to the President and its receipt by the latter, constituted a complete juristic act. By itself, it did not operate to terminate the office tenure of the Judge, and as such, did not bring into existence any legal effect. For the same reason, the principle underlying S.19 of the Transfer of Property Act is not attractedThe general principle that emerges from the foregoing conspectus, is that in the absence of anything to the contrary in the provisions governing the terms and conditions of the office post, and intimation in writing sent to the competent authority by the incumbent, of his intention or proposal to resign his office/post from a future specified date, can be withdrawn by him at any time before it becomes effective, i.e., before it effects termination of the tenure of the office/post or the employmentIn our opinion, none of the aforesaid reasons given by the High Court for getting out of the ratio of Jai Rams case, is valid. Firstly, it was not a casual enunciation. It was necessary to dispose of effectually and completely the second point that had been canvassed on behalf of Jai Ram. Moreover, the same principle was reiterated pointedly in 1968 in Rai Kumars case. Secondly, a proposal to retire from service/office and a tender to resign office from a future date, for the purpose of the point under discussion stand on the same footing. Thirdly, the distinction between a case where the resignation is required to be accepted and the one where no acceptance is required, makes no difference to the applicability of the rule in Jai Rams caseIt will bear repetition that the general principle is that in the absence of a legal, 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 a Government servant/or functionary who cannot under the conditions of his service/or office, by his own unilateral act of tendering resignation, given 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 the case of a Judge of a High Court, who is a constitutional functionary and under proviso (a) to Art 217(1) has a unilateral right or privilege to resign his office, his resignation becomes effective and tenure terminated on the date from which he, of his own volition, chooses to quit office. If in terms of the writing under his hand addressed to the President, he resigns in praesenti, the resignation terminates his office-tenure forthwith, and cannot, therefore, be withdrawn or revoked thereafter. But, if he by such writing chooses to resign from a future date, the act of resigning office is not complete because it does not terminate his tenure before such date and the Judge can at any time before the arrival of that prospective date on which it was intended to be effective, withdraw it, because the Constitution does not bar such withdrawal49. Thelearned Attorney-General has cited authorities of the Allahabad, Kerala, Delhi and Madhya Pradesh High Courts, wherein the rule in Jai Rams case was followed. The High Court has tried to distinguish these cases and in regard to some of them, said that they were not rightly decided. We do not want to burden this judgment with a discussion of all those decisions. It will be sufficient to notice two of them, in which issues analogous to those which arise before us, were pointedly discussed56. Inour opinion, what has been extracted above from the decision in the Kerala case, correctly enunciates the principle that a prospective resignation remains mute and inoperative till the date on which it was intended to take effect is reached, and can be withdrawn and rendered non est at any time before such dateThe approach adopted to the problem by the Delhi High Court appears to be correct in principle, and meets our approvalWe do not want to add more to the volume of our judgment by noticing the numerous decisions of the English and American Courts that have been referred to by the High Court in its judgmentIn the light of all that has been said above, we hold that the letter, dated May 7, 1977 addressed by appellant 2 to the President, both in point of law and substance, amounts but to a proposal or notice of intention to resign at a future date (1-8-1977) and not being an absolute, complete resignation operative with immediate effect, could be and, in fact, had been validly withdrawn by the said appellant through his letter, dated July 15, 1977, conveyed to the President.