UNION OF INDIA v.

SHRI GOPAL CHANDRA MISRA AND ORS.

February 15, 1978

[R. S. SARKARIA, A. C. GUPTA, N. L. UNTWALIA, JASWANT SINGH

AND S. MURTAZA FAZAL ALI, JJ.J

(~011stitution of India, Art. 217(1) proviso (a) "resign his office", interpretation-Iligh Court Judge's resignation letter intin1ati11g to have effect from a future date, whether receipt by President, 1nakes resignation fait accompli- Revocation of resignation prior to intimated date of effect, validity of- Doctrine of public policy, applicability to iudicial decisions.

The second respondent (appellant in CA 2655/77) Shri Salish Chandra \vrote to the President of India, on May 7, 1977, intimating his resignation from the office of Judge of the Allahabad High Collrt, with effect from August 1, 1977.

On July 15, 1977, he again wrote to the President, revoking his earlier communication, and commenced deciding matters in Court from July 16, 1977.

On August 1, 1977 the first respondent Shri Misra, an advocate of the High Court. filed a petition under Article 226 of the Constitution, contending that the resignation of Shri Satish Chandra, having been duly communicated to the President of India, in accordance with Article 217(,1) Proviso (a) of the Constitution, was final and irrevocable, and that the continuance of respondent No. 2 as a High Court Judge thereafter, was an usurpation of public office.

The High Court allowed the petition holding that Shri Satish Chandra was not competent to revoke his resignation letter.

Allowing the appeal by certificate,

HELD:

Per R. S. Sarkaria on behalf of (A. C. Gupta, N. L. Untwalia, Ja.nvant SinRh, JJ and himself).

1. Resigning office necessarily involves relinquashment of the office which implies cessation or termination of, or cutting asunder from the office.

A complete and effective act of resigning office is one which severs the link of the resigner with his office and termina.tes its tenure. In the context of Art. 217(1) this assumes the character of a decisive test, because the expression "res; gn his office'' occurs in a proviso which excepts or qualifies the substantive clause fixing the office tenure of a judge upto the age of 62 years.

[21 E-F)

2. Jn the absence of a legal, contractual or constitutional bar, an intimation in writing sent to the appropriate authority by an incumbent, of his intention or proposal to resign his office/post from a future specified date, can be withdrawn by him at any time before it becomes effective i.e., before it effects termination of the tenure of the office/post, or employment.

Thi.<; general rule equally applies to Government servants and constitutional functionaries.

In the case of a Government servant, normally, the tender of resignation becomes effective and his service. terminated, when it is accepted by the appropriate authority.

In the case of a High Court Judge, who is a constitutiona1 funtionary having under Art. 217(1), Proviso (a). a unilateral right or privilege to resign, his resignation becomes effective on the date from which he, of his own volition chooses to quit office.

[27 E-G] ·

Jai Ram v. Union of India, A.J.R. 1954, SC 584 and Raj Kumar "· Union of India. [19681 3 S.C.R. 857 followed. ..

M. Kunjukrishnan Nadar v. Hon'ble Speaker, Kerala Le7islative Assembly,

A.I.~. 1064 Kerala 194: Y. K. Mathur v.

The Mrtnicipa Corporation of Deflu. A.J.R. 1974 Delhi 58, Sankar Datt Shrtkla v .. President, Municipal Board Auraiya and Anr., A.J.R. 1956 All. 70 Bahorilal Paliwal v.

Dist. Magistrat~

UNION v. G. c. MISRA (Sarkaria, J.) 13

Bulandshahr A.l.R. 1956 All. (511) F.B. : 1.L.R. (1956) 2 All.

593-F.B..

A Bhairon Singh Vislnvakarma v. Civil Surgeon Narsifnhapur, 1971 Labour Industrial Cases 127 M.P. approved.

Rev. Oswald Joseph Reichal v. The Right Rev. John Fielder, Lord Bishop oj Oxford, 14 A.C. 259, distinguished. '

3. A High Court Judge's letter addressed to the President intimating or notifying the writer's intention to resign his office as Judge, on a future date, does noc and cannot forthwith sever the writer from the office of the Judge, or terminate bis tenure. Such a '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 Article 217(1). [22H, 23Al

4, Public policy can be a very unsafe, questionable and unreliable ground for judicial decision. This doctrine can be applied only in a case where clear and undeniable harm to the public is made out.

[24C-E]

Gherulal v. Malwdeo Das [1959] Supp. 2 S.C.R., 406, applie<l.

5. In substance, the Jetter dated May 7, 1977, addressed by appellant 2 to the President, amounted to a proposal or notice of intention to resign at a future daJte., and, before the arrival of that date (August 1, 1977), it did not constitute a complete act of resignation having the jural consequence of severing the link of the appellant v; ith the office of the Judge. and hence it had been validly withdrawn by him as per his letter dated July 15, 197'7 addressed to the President,

there being no constitutional or legal bar to such withdrawal. [33D-E] D

Per S. Murtaza Fnzal Ali, J. (Dissenting)

1. Where the effectiveness of a resignation by a Judge does not depend upon the acceptance by the President, and the resignation acts exproprio vigore on the compliance of the conditions mentioned in Art. 217(1)(a), the resigner completely ceases to retain any control over it and becomes functus officio, though thei resignation may take effect from the date mentioned i.n the letter, or -r "if no such date is mentioned. from the date of the letter itself''. [54 EG] E

The principles flowing as a logical corollary from the nature and character of the privilege, right or power conferred by the Constitution on a Judge of a High Court or other constitutional functionaries are :-

I. The concept o.f the accep:ance of resignation subn1ittcd by a High

Court Judge is con1pletely absent from Article 217(1) (a), and the effectiveness of the resignation does not deipend upon the acceptance of the resignation by the President.

II. In view of the provisions of Article 217 ( 1) (a) and sin1ilar provision_~

in repect to high cons.titutional functionaries, the resignation once submitted and communicated to the appropriate •authority, become..o;;. complete and irrevocable and acts ex proprio vigore.

Ill Th~ resignation may be effective from a particular date but the restgnor completely ceases to retain any control over it and becon1es functus officio once the resignation is submitted and communicated G co the. appropriate authority.

IV. The resignation contemplated by Art. 217(1)(a) is purely a unilateral act and takes effect ipso facto once intention to resign is communicated to the President in writing and addres:; ed to him.

V. On a true _interpretation of rticle 217(1)(a), a resignation having H been submitted and .con1mun1cated to the Presidt:nt, cannot be realled even though 1t .may be prospective in nature so as to come into effect from a particular date.

VI. The Constitution contains an express and clear provision for the inod.~·

in which a resignation can be made. It has deliberately omitted:to provide for revocation or withdrawal of a resignation once submitted and con1municated te the Prident.

In the absence of such a provisiOn, the doctrine of in1plied po\vers cannot be invoked to supply the omission. [56 C.H, 57 A-BJ Rev. Oswald Joseph Raichal v. The Right John Fieldt'r, Lord Bfa!iop (}f Oxford, 14 A.C. 259, Finch v. Oake (189.6) 1 Ch.D. 409, People of the State of Illinois Ex. Ra/. B.S. Adarnowaki v. Otto Kerner, 82 A.L.R. 2nd Series 140~ G/ossop V. Glossop (1907) 2 Ch. D. 370; Bidi, Bidi Leaves and Tobacco Merchants Association, Gandia & Anr. v. The Slate of Bombay & Ors., A.I.R. 1962 S.C. 486; applied.

Sukhdeo Narayan and Ors. v. Municipal Conunissioner of Arrah Municipality and Ors., A.I.R. 1956 Patna 367 and 373; and S1nt. Raisa Sultana Beg1un and Ors. v. Abdul Qadir and Ors., A.I.R. 1966 All. 318 "t 321 Approved.

Y. K. Matbur v. The Municipal Corporation of Delhi. A.LR. 1974 Delhi 58, distinguished.

M. Kunjukrishnan Nadar v. Hon'ble Speaker, Kerala, Legislative Assenibly, A.LR. 1964 KeraJa 194, Ba/lorilal Paliwal v. District Magistrate, Bulandshahr A.LR. 1956 All. 511 F.B. =I.LR. (1956) 2 All. 593 F.B. and Bhairon Singh

Vishwakanna v. Civil Surgeon, Narsirnhapur, 1971 Labour Industrial Cases 127 O M.P. disagreed with.

Union of India v. S.H. Sheth and Anr., (1977) 4 SCC 193, Corpus Juris Secundum, Vol. 48 p. 973 and Vol. 67 p. 227; Jurisprudence by Paton 3rd Ed. by Derham; Jurisprudence by Salmond, 12th Ed. by Fitzgerald, and American Constitution edited by Corwin; referred to.

2. It is manifestly plain that there is no relationship of inr:.ster nnd servant, employer and employee. between the President arid the Judge of the liigh Court,

because a Jud~ is not a Government servant so as

1to be governed by Article 310 of the Constitution. A Judge of the High Court appointed under Art. 217 ha5 a special status and is a constitutional functionary appointed under the provisions of the Constitution by the President. The n1ere fact that the President appoints him does not make him an employer of the Judge, in appointing a Judge, the President exercises certain constitutional functions a'> contained in Article 217(1). It is, therefore, indisputable that a Judge of the High Court enjoys a special status under the Constitution, because of the very high position that he holds and the, digniity and decorum of the office that he has to maintain.

[37 D-HJ

Union of India v. Sankalchand Himatlal Sheth & Arlr., [1978] 1 S.C.R. 423; followed.

CIVIL APPELLATE JURISDICTION : Civil Appeals Nos. 2644 & 2655 of 1977.

(From the Judgment and Order dt. 28th October, 1977 of the Allahabad High Court in Civil Misc. Writ No. 1172 of 1977).

S. V. Gupte, Attorney General and Soli J. Sorabjee, Addi. Solicitor General for the Appellant in C.A. No. 2644 & R. P. Bhat, R. N.

Sachthey & Girish Ch1N1dra for the Appellant in C.A. Nti. 2644 & Respdt. 2 in C.A. 2655/77.

H F. S. Nariman, S. P. Gupta, Harish Chandra, H. K. Puri, M. C.

D/lingra and Vivek Sethi for the Appellant iil C.A. 2655 & Respdt. 2 in CA 2644/77. . .

UNION v. G. c. MISRA (Sarkaria, J.) 15

Jagdish Swarup (in CA 2655 /77), Yogeshwar Prasad (in CA A 2644/77) and G. N. Verma, A. N. Srivastava, Mool Behari Saxel!fl, Pramod Swarup, Miss Rani Arora & Miss Meera Bali for Respondent No. 1 in both appeals.

The following Judgments were delivered

SARKARIA, J.-By a short Order, dated December 8, 1977, we (by majority) accepted these two appeals and announced that a reasoned judgment shall follow in due course.

Accordingly, we are now rendering the same.

Whether a High Court Judge, who semis to the President,' a letter in his own hand, intimating to resign his office with effect from a future date, is competent to withdraw th•o same before that date is reached-is the principal question that falls for consideration in these two appeals, directed against a judgment, dated October 28, 1977, of

the High Court of Judicature at Allahabad, allowing the writ petition of Shri Gopal Chandra Misra, respondent herein, and issuing a direction under Article 226 of the Co'nstitution, restraining Shri Salish Chandra (hereinafter referred to as Appellant 2) from functioning as a Judge of the Allahabad High Court.

Appellant 2 was appointed to the High Court of Allahabad as Additional Judge on October 7, 1963, and a permanent Judge on September 4, 1967.

He will be attaining the age of 62 years on September 1, 1986.

On May 7, 1977, he sent a letter under his hand addressed to the President of India, through a messenger.

This letter may be reproduced as below :-

"To

The President of India,

New Delhi.

I beg to resign my office as Judge High Court of Judicature at Allahabad.

I .will be on leave till 31st of July, 1977.

My resignation shall be effective on 1st of August, 1977.

With my respects.

Yours faithfully,

Sd/- Salish Chandra."

A On July 15, 1977, Appellant 2 wrote to the President of Indi!l

another letter in these terms :-

41TO

Sir,

The President of India, New Delhi.

I beg to revoke and cancel the intention expressed by me to resigru on 1st of August, 1977, in my letter dated 7th May, 1977. That com- !llunication may very kindly be treated as null and void.

Thanking you and wishing to remain.

Yours sincerely Sd/· Salish Chandra."

The receipt of this letter of revocation or withdrawal, dated July 15, 1977, was acknowledged by Shri T. C. A. Srinivasavardhan, Secretary, Ministry of Law, Justice & Company Affairs, New Delhi. as per hiB D.O. No. 2/14/77.Jus., dated July 28, 1977. By a separate letter, Appellant 2 cut short his leave and resumed duty aB a Judge of the Allahabad High Court on July 16, 1977, and from July 18, 1977, he commenced sitting in the Court and decidiqg cases.

On August 1, 1977, Shri Gopal Chandra Misra, an Advocate of the High Court, filed a petition under Article 226 of the Constitution, contending that the resignation, dated May 7, 1977, of Appellant 2, having been duly communicated to the President of India in accordance with the provisions of Article 217 ( 1), proviso (a) of the Constitution, was final and irrevocable, and as a result, Appellant 2 had ceased to be a Judge of the Allahabad High Court with effect from May 7, 1977, or, at any rate, with effect from August 1, 1977; therefore, his continuance to function as a Judge from and after August 1, 1977, was usurpation of the office of a High Court Judge, which was a public office.

On these premises, the writ petitioner prayed for a writ, order or direction in the nature of quo warranto calling upon Mr. Salish Chandra to show under what authority he was e'ntitled to function and work as a Judge of the High Court.

The petition came up for final hearing before a Bench of five learned Judges of that Court, which by a majority of 3 against 2, allowed the writ petition and issued the direction aforesaid.

Against that judgment, these two appeals, on a certificate granted by the High Court under Articles 132 and 133 ( 1) of the Constitution have been filed before this Court.

Civil Appeal No. 2644 of 19.77 has been preferred by the Union of India, and Civil Appeal No. 2655 of 1977 by Shri Salish Chandra.

A preliminary objection was raised by Shri Yogeshwar Prasad, learned counsel for the respondent, Shri Go pal Chandra Misra, that the Union of India has no locus standi to prefer an appeal against the

. ),

UNION v. o. c. MISRA (Sarkaria, J.) 17

Order of the High Court.

Simultaneously, with the raismg of this objection at the bar, a petition to that effect was also presented to us, directly.

The grounds of this objectio'n, as canvassed by Shri Yogeshwar Prasad, arc :-

(a) That the Union of India was joined merely a pro forma party in the writ petition, inasmuch as no relief was claimed against it;

(b) That the Union of India is not a party aggrieved by the Order of the High Court, because no relief has been granted agai'nst it;

(c) That the Union of India is rrot a person interested;

~ c

(d) That the appeal by the Union of India will not further any public policy; that it has already incurred heavy expenditu!:\' in defe'nding the action of an individual person after he has relinquisl>od his office.

Such expenditure is not permissible and should not be encouraged.

We find no merit in this objection.

The Union of India was impleaded as a responde'nt in the case before the High Court by the writ petitioner, himself. It filed a counter-affidavit contesting the writ petitioner's claim.

Mr. Soli Sorabji, Additional Solicitor-General, addPossed arguments E 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 CO'Urt below.

As rightly pointed out by the learned Attorney General, the Union of India is vitally inerested i'n the case. It is the President of India who had appointed Appellant 2 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 has !1eld otherwise.

The Union of India, therefore, has reason to feel aggrieved by the decision of the High Court.

In order to give a person locus standi to appeal on a oortificate 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 questio'n of law involved in the case, is of general importance and

concerns the interpretation of the Constitution.

We an;, not concerned with the matter of incurring expenditure by the Union of India; whether it is justified, proper or not.

We are

SUPREME <; OURT REPORTS [1978] 3 s.c.R.

A surely of the view that the Unioh bad 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 ot the High Court's finding on the question of law involved.

We, therefore, overruled the preliminary objectio'n, and requested the learned Attorney-General to proceed with his address.

The contentions advanced by the learned Attorney-General, Mr.

Gupte, on behalf of the Union of India, may be summarised as follows

(i) 'Resignation' within the contemplation of Proviso

(a), to Article 217 (I), takes place on the date on which the Judge of his own volition chooses to sever his connection with his office, and not on any o:her date.

Since in terms of the letter, dated May 7, 1977, the Judge proposed to sever his link with his office with effect from August 1, 1977, he could bot

b~ said to have resigned his office within the meaning of Proviso (a) on May 7, 1977, or at any time before the arrival of the prospective date indicated by him.

(ii) The letter, dated May 7, 1977, written and sent by Appellant 2 to the President, read as a whole, is a mere intimation of an intention to resign from a future date.

Before the arrival of that date, it was not final and complete, nor a "'juristic" act, because it had no legal effect and could not sever the link of the Judge with his office or cut s;.>art its tenure.

(iii) Since the mere sending of the lette1, dated May 7, 1977 to the President, did not constitute a final and complete ag of resignation, nor a juristic act, it could be withdrawn at any time before August 1, 1977 upto which date it was wholly inoperative and ineffective.

(iv) The withdrawal by Appellant 2 of his proposal to

rosign, does not offend public interest.

The common law doctrine of public policy cannot be invoked in such a case [Gheru Lal v. Mahadeo Das(')].

(v) The general principle is that in the absence of a provision prohibiting withdrawal, an intimation to resign from a future date can be wthdrawn at a'ny time before it operates to terminate the employment or the connection of the resignor with his office.

This principle, according to Mr. Gupte, was enunciated by the Supreme Court as far back as 1954 in Jai Ram v. Union of lndia('); and followed by the Allahabad, Kcrala, Delhi and Madhya Pradesh

(!} [1959] Supp. 2 S.C.R. 406,

(2) A.LR. 1954 S.C. 584.

I j

UNION v. G. c. MISRA (Sarkaria, !.) 19

High Courts in these cases: Sanker Dutt Shukla v. President, Municipal Board, Auraiya & Anr. (1); Bahori Lal l'aliwal v. District Magistrate, Bulandshahar('); M. Kunjukrishnan Nadar v. Hon'ble Speaker, Kerala Legislative Assembly & Ors(3); Y. K. Mathur & Anr. v. The Commissioner, Municipal Corporation of Delhi & Ors.('); Bhalron . Siigh Vishwakarma v. Civil Surgeon, Narsimhapur(').

The same prmc1ple has been reiterated in Raj Kumar v. Union of lndia( 6).

Mr. Gupte further referred to the case, Rev. Oswald Joseph Rdchal v. The Right Rev John Fielder, Lord Bishop of Oxford('), decided by the House of Lords in England, which has been relied upon by the High Court-and submitted that Reichel's case stood on its own facts and was clearly distinguishable.

Mr. F. S. Nariman, appearing for Appellant 2, adopted the argu- C ments of Mr. Gupte.

He reiterated with emphasis, that the expression "resign his office" used in Proviso (a), J!!eans "relinquish or vaca.te his office", and the requirement of this expression is uot satisfied unless and until the writing sent by the Judge effects severance of the link between the Judge and his office and terminates his tenure. It is submitted that by holding that though the letter of resignation in its terms, would effect termination of the tenure prospectively from 1-8-77, yet it would be D deemed to have caused immediately on its despatch to and receipt by the

President on 7-5-77, itself, curtailment of the Judge's tenure of office up till 1-8-77, the High Court has engrafted in Proviso (a), a wholly unwarranted fiction.

As aainst the above, Mr. Jagdish Swarup, learned counsel for the Respondent has substantially reiterated the same arguments which found acceptance with the High Court (majority).

Article 217 ( 1) fixes the tenure of the office of a High Court Judge It provides that a Judge shall hold office; until he attains the age of 62 years. The three clauses of the Proviso to Article 217(1) indicate that this tenure can be terminated before the Judge attains the age of 62 years, in four contingencies, namely, where he- F

(i) resigns his office in the manner laid down in its clause (a);

(ii) is removed from his office in the manner provided in Article 124(4) [vide its clause (b)];

(iii) is appointed a Judge of the Supreme Court [vide its clause (c)]; G

(iv) is transferred to any other High Court in Jnd1a.

(1) A.LR. 1956 All. 70.

(2) A.LR. 1956 All. 511 F.ll.~I.L.R. (1956)2 All. 593 F.B.

(3) A.l.R. 1964 Kcrala 194.

(4) A.LR. 1974 Delhi 58.

(5) [1971] Labour Industrial Cases 127 M.P.


(7) . 14 A.C. 259.

Here, in this case, we have to focus attention on clause (a) of the Proviso. In order to terminate his tenure under this clause, the Judge mnst do three volitional things : Firstly, he should execute a "writing under his hand". Secondly, the writing should be "addressed to the President". Thirdly, by that writing he should "resign his office". If any of these things is not done, or the performance of any of them is not complete, clause (a) will not operate to cut short or terminate the tenure of his office.

The main reasoning adopted by the learned Judges at the High Court, (per R. B. Misra, M. N. Shukla and C. S. P. Singh, JJ.) appears to be that since the act of Appellant 2 in writing and addressing the letter, dated the 7th May, 1977, ta the President, fully satisfied the three-fold requirement of clause (a) of the Proviso, and nathing more was required to be done under that clause either by the "Judge" or by the President at the other end, the resignation was "complete", "final" and "absolute".

Ct was a complete "juristic" act as immediately on its receipt by the President on the 7th May 1977, itself, it had the effect of cutting short the tenure of the Judge up till the 1st August 1977; and, in the absence of a constitutional provision warranting that course, it could not be withdrawn or revoked even before the date, August 1, 1977, on which in terms of the letter dated the 7th May, 1977, the resignation was to be effective. Withdrawal is always linked with acceptance.

Where no acceptance is required and the resignation has been made in accordance with the prescribed procedure, the process gets exhausted and the resignation becomes a fait accomp!i. Article 217(1), Proviso (a) of the Constitution is a self-contained provision. It gives the Judge a unilateral right tci cut short his tenure by following the procedure prescribed therein, of his own volition. Such a resignation to be effective does not require acceptance by the President. Article 217 does not give a right to withdraw the resignation, once given in accordance with the manner prescribed therein. Since Article 217 ( 1), Proviso (a) els out a complete machinery with regard to the resignation by a Judge, the right to withdraw a resignation cannot be implied, the maxim being "expressum

facit cessare tacitum" (when there is express mention of certain things, then anything not mentioned is excluded). Recognition of a right of withdrawal of resignation will leave the door wide open to abuse and offend public policy.

It may be observed that the entire edifice of this reasoning is founded on the supposition that the "Judge" had completely performed everything which he was required to do under Proviso (a) to Article 217(1).

We have seen that to enable a Judge to terminate his term of office by his own unilateral act, he has to perform three things. In 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 foundations. But, is the same true about the third, which indisputably is the chief prop of that edifice ? Is it a co~ pleted act of resignation within the contemplation of Proviso (a) ? Ths is the primary question that calls for an answer. If the answer to this

UNION v. G. c. MISRA (Sarkaria, !.) 21

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 succeed.

Well then, what is the correct connotation of the expression "resign his office" used by the founding fathers in Proviso (a) to Article 217-

(1) ?

'Resignation' in the Dictionary sense, means the spontaneous relinquishment of one's own right.

This is conveyed by the maxim: Resionatio est juris propii spontanea refutatio (See Carl Jowitt's Dictionary of English Law). In relation to an office, it connotes the act of giYing up or relinquishing the office.

To "relinquish an office" means to "cease to hold" the office, or to "loose hold of the office (cf. Shorter Oxford Dictionary); and to "loose hold of office", implies to "detach", "unfasten", "undo or untie the binding kllot or link" which holds one to the office and the obligations and privileges that go with it.

In 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, arc necessary to constitute a complete and operative resignation (see, e.g.

American Jurisprudence, 2nd Edn., Vol. !SA, page 80), although the act of relinquishment may take different forms o< 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 asunder 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 event

From the abovle dissertation, it emerges that a complete and effective act of resigning office is, one which severs the link of the resignor with his office and terminates its tenure. In the context of Article 217 (I), this test assumes the character of a decisive 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 the Judge upto the age of 62 years.

Before applying this test to the case in hand, it is necessary to appreciate the true nature of the letter, dated May 7, 1977, sent by

the Judge to the President.

The substantive body of this letter (which has been extracted in full in a foregoing part of this judgment) is comprised of three sentences only.

In the first sentence, it is stated: "I beg to resign my office as Judge, High Court of Judicature at Allahabad." Had this sentence stood alone, or been the only content of this letter,. it would operate as a complete resignation in praesenti, involving immediate relinqisment H of the office and termination of his tenure as Judge.

But this is not so.

The first sentence is immediately followed by two more, which read:

"I will be on leave till 31. 7 .1977. My resignation shall be effective on 1.8 .1977.", The first sentence cannot be divorced from the context of the other two sentences and construed in isolation. It has to be read along with the succeeding two which qualify it.

Construed as a whole according to its tenor, the. letter dated May 7, 1977, is merely an intimation or notice o~ the writer's intention to resign his office as Judge, on a future date, viz., August 1, 1977.

For the sake of convenience, we might call this communication as a prospective or porerilial resignation, but before the arrival of the indicated future date; it is certainly not a complete and operative resignation because, by itself, it did not and could not, sever the writer from the office of the Judge, or terminate his tenure as such.

Thus tested, sending of the letter dated May 7, 1977 by 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 Article 217(1). Before the arrival of the indicated future date (August l, 1977), it was wholly inert, inoperative and ineffective, and could not, and in fact did not, cause any jural effect.

The learned Judges of the High Court (in majority) conceded that Appellant 2 "cannot be taken to have resigned on a date prior to !st August, 1977", and "the vacation of a seat may be on (the) future date", "because he made his choice to resign from !st August 1977", yet, they hold that "the factum of resignation became com..rlete the moment respondent 1 (Shri Salish Chandra) in his handwriting, sent a letter of resignation to the President of India" and on 7 . 5 . 77, itself, cut short the date of retirement of the Judge from 1-9-86 to 1-8-77, and there could be "no withdrawal of the same unless the Constitution so provided."

With respect, we venture to say that this reasoning is convoluted logic spiralled up roupd a fiction for which there is no foundation in the statute.

To say that the resignation or relinquishment of his office by the Judge could not take place before 1 . 8 . 77, 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 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 taciturn.

No. 1 is manifestly incompatible with the letter and intendment of Article 217 ( 1), since by deeming the resignation to have taken place

on a date different from the date chosen by the Judge it subverts bis exclusive Constitntional right to resign, his office with effect front a date of his choosing. No. 2 is equally unjustified. There is nothing in Proviso(a) or elsewhere in the Constitution which expressly or implied-

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UNION v. G. c. MISRA (Sarkaria, !.) 23

Jy forbids the withdrawal of a communication by the Judge to resign his A office before the arrival of the <late on which it has intended to take effect.

Indeed, such a futuristic communication or prosp; x:tive 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 Article 217 ( 1).

Thus considered, it is clear that merely by writing the Jetter to the B 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 determine his tenure, of his own volition, under Proviso (a) to Article 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 otfice and thus delinked himself from it.

He had not-as the C learned Judges of the High Court have erroneously assumed-crossed the Rubicon-Ribicon was still afar, 85 days away in the hazy future.

At any time, before that dead line (August 1, 1977) was reached, the Judge could change his mind and choose not to resign, and withdraw the communicaiton dated May 7, 1977.

We have already seen that there is nothing in the Constitution or D any other law which prohibits the withdrawal' of the communication to resign from a future date, addressed by a Judge to the Presideni, before it becomes operative.

Could he then be debarred from doing so on the ground of public policy ?

In this connection, Shri Jagdish Swarup contended that, but for the words "President aJ11] Vice-President", the language of Proviso E

(a) to Article 217(1) is identical with that of Proviso (a) to Article 56( I) of the Constitution which gives an identical right to the President to resign his office by writing under his hand, addressed to the Vice-President. If this Court envolves a principle--proceeded the argu-.

ment-·-whereby it permits a Judge who is a Constitutional functionary of the same class as the President or the Vice-President, whereby he can withdraw his resignation, it will lead to startling results.

The F Constitutional functionaries would misuse such implied power of withdrawal of resignation. The President may hold the Parliament to ransom and make a farce of Parliamentary sovereignty and the functioning; of the Constitution. On these premises, it was urged that public policy demands that no such interpretation should be put on these Constitutional provisions which would lead to abuse of power by the Constitutional functionaries.

The contention appears to be misconceived.

The argument assumes that a tender of prospective resignatlon is always motivated by sinister considerations and, therefore, to permit its withdrawal is never in the public interest. We are unable to conce\le 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 fotimation under his hand to tlie 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 doctor's advice, that he is stricken with a malady which will progressively n;.nder him deaf 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 resignation. Will not such withdrawal be in the interest of the public and justice to the Judge? Conversely, will not refusal of such withdrawal deprive the public of the benefit of his forensic talents in exposition of law and at the same time work hardship and injustice to the Judge?

It must be remembered that the doctrine of public policy is only a branch of the common law, and its principles have been crystallised and its scope well delineated by judicial precedents. It is sometimes des-, cribed as "a very unruly horse". Public policy, as Burroughs, J. put it in Fauntleroy's case, "is a restive horse and when you get astride of it, there is no knowing where it will carry you". Pubilic policy can, therefore, be a very unsafe, quesiionable and unreliable ground for judicial decision and Courts cannot, but be very cautious to mount this treacherous horse even if they must. This doctrine, as pointed out by this Court in Gherulal Parekh's case (ibid), can be applied only in a case where clear and undeniable harm to the public is made out.

To quote the words of Subba Rao, J. (as he then was) : "Though theoretically it may be permissible to evolve a new head (of public palicy) under exceptional circumstances of a changing world, it is advisable in the interest of stability of society not to make any attempt to discover new heads in these days".

There 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 repelled.

Shri Jagdish Swarup's argument that a right to withdraw such a resignation will have Wide and unhealthy repercussions on the other Constitutional functionaries, particularly the President, and encourag-e

them to abuse this right, appears to be a false alarm.

W c arc here considering the case of withdrawal of a 'prospective resignation' by a Judge of a High Court and not of any other Constitutional functionary.

It mav not be correct to say that whatever principle we evolve with reference to the interpretation of Article 217(1), Proviso (a), will automatically govern the withdrawal of such a prospective resignation by the President of India because the provisions of Article 56 relating to a resignation by the President are not, in all rcspeci,5, identical with those of Article 217. There is no provision in Article 217 corresponding to clause (2) or clause (1) (c) of Article 56, and in this case in accordance with the well-settled practice of the court, we refrain from expressing any opinion with regard to th!' interpretation and effect of these distinctive provisions_ in Article 56.

UNION v. G. c. MISRA (Sarkaria, J.) 25

We are also unable to agree with the High Court that the mere send- A ing 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 section 19 of the Transfer of Property Act is not attracted.

The 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, an intimation in writing sent to the competent authority by the incumbent, of his inten- . tion or proposal to resign his office/post fmm 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 employment.

This principle first received the imprimatur of this Court in the context of a case of a self-sought retirement from service, in Jai Ram v.

Union of India (supra). In that case, the plaintiff entered the service of the Government as a Clerk in the Central Research Institute, Kasauli, on May 7, 1912.

Rule 56(6) (i) of Chapter IX of the Fundamental Rules, which regulated the Civil Services, provided that a ministerial servant may be required to retire at the age of 55, but should ordinarily

be retained in service if he continues efficient, till the age of 60 years, The plaintiff was to complete 55 years on November 26, 1946. On the 7th May 1945, he wrote a letter to the Director of the Institute to the following effect :

E j "Sir, having completed 33 years' service on the 6th ins-· -

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tant, I beg permission to retire and shall feel grateful if allowed to have the leave admissible."

The Director refused permission on the ground that the plaintiff could not be spared at that time. The plaintiff renewed his prayer by another letter, dated 30th May 1945, and also asked for leave preparatory to retirement-four months on average JXIY and the rest on half average pay-from 1st of June 1945, or the date of his availing the leave, to the date of superannuation which was specifically stated to be the 26th of November 1946. This request was also declined.

To subsequent requests to the same effect, also met the same fate..

On May 28, 1946, plaintiff made a fourth application repeating his request.

This time, the Director of the Institute sanctioned the leave preparatorv to retirement on average pa'y for six months from 1-6-1946 to 30-11-1946, and on half average pay for five months and 25 days thereafter, the period ending on 25-5-1947. Just 10 days before this period of leave was due to expire, the plaintiff on May 16, 1947 sent an application to the Director stating that he had not retired and asked for permission to resume his duties immediately. In reply, the Director informed him that he could not be permitted to reswne his duties as he had already retired, having voluntarily proceeded on le.ave preparatory

3-211 SCI /78

A to retirement.

The plantiff made representations.

Ultimately, the Government of India, by a letter dated 28-4-48 rejected his representation, repeating the reasons intimated by the Director earlier to the plaintiff.

In special appeal before this Court, two points were urged on behalf of the plaintiff-appellant. Fi¥st, that under Rule 56(b) (i), the age ot retirement is not 55 but 60 years, and before a Government servant could be required to retire at 55, it is incumbent upon the Government to give him an opportunity to represent against his premature retirement in accordance with the provisions of Section 240 ( 3) of the Government of India Act, 1935; and since this was not done, the prder terminating his services, was invalid. Second, that although the plaintiff on his own application, obtained leave preparatory to retirement, yet there was nothing in the Rules which prevented him from changing his mind at any subsequent time and expressing a desire to continue in service, provjded he indicated this intention before the period his leave expired.

B. K. Mukherjee, J. (as he then was), speaking for the Court, negatived the first contention on the ground that since the.plaintiff had himself sought permission for retirement at the age of 55 years, it w~ a useless formality to ask him to show cause as to why his services should not be terminated. While disposing of the second contention, which had lost its force in view of the Court's decision on the first point, the Court made these crucial observations :

"It may be conceded that it is open to a servant, who has expressed a desire to retire fron1 service and applied to his superior officer to give him the requisite permission, to change bis mind subsequently and ask for cancellation of the permission thus obtained; but, he can be allowed to do so as long as he continues in service and not after it has terminated."

The rule enunciated above was reiterated by this Court in Ra; Kumar v. Union of lndia('I), in these words :

"When a public servant has invited by his letter of resignation determiriatiort of h, is employment, his .services normally stand) terminated from the date on which the Jetter of resignation is accepted by the appropriate authority, and in the absence of any law or rule governing the conditions of his service to the contrary, It will not be open to the public servant to withdraw his resignation after it is accepted by the appropriate authority. Ttll the resignation is accepted by the appropriate authority in consonnce with the rules governing the acceptance, the public servant concerned has locus poenitentiae but not thereafter." It was also observed that, on the plain terms of the resignation letters of the servant (who was a member of the I.A.S.), the resignation became effective as soon as it was accepted by the appropriate authority.


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UNION v. G. c. MISRA (Sarkaria, J.) 27

The learned Judges of the High Court (in majority), if we may say so with respect, have failed to appreciate correctly the amplitude and implications of this rule enunciated by this Court in Jai Ram v.

Union of India (supra).

R. B. Misra, J. bypassed it casually on the short ground that the above extracted observation was only "casually made" by the Supreme Court in a case of retirement, M. N. Shukla, J. did not even refer to it.

C.S.P. Singh, J. tried to distinguish it with the summary observation :

"Jai Ram's case was a case of retirement, and the request for retirement required acceptance.

The act was not complete till accepted. In such a situation, the request could definitely be withdrawn. This case is not helpful in case where no acceptance is required."

Before us, Shri Jagdish Swarup has reiterated tl1e same argument.

In onr opinion, none of the aforesaid reasons given by the High Court for getting out of the ratio of Jai Ram's case, (supra) 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 Raj Kumar's case.

Secondly, a proposal to retire from service/office and a tender to resigu 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 requ; red makes no difference to the applicability of the rule in Jai Ram's case.

It will bear repetition that the general principle 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 cannoj,-under the conditions of his service/or office, by his own unilateral act ot 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 competen~ a?thority. n the case of a Judge of a High Court, who is a conslitullonal functionary and under Proviso (a) to Article 217(1) has a unilateral r:ghr or privilege to resign his office, his resigution becomi; s effective .. and tenure terminated on the date from which he, of his own vo!tt1on, chooses to quit office.

If in term~ of te writing 1;1nder hi~ hand addresed to the President. he resigns zn praesantz, the res1gna!ton termi1iiltes 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 resigning office is not complete because it does not terminate his tenure before such date and the Judge ca'n at any time before the arrival of that prospective date

011 which it was intended to be effective, withdraw it, because the Constitution does not bar such withdrawal

The learned Attorney-General has cited authorities of the Allahabad, Kerala, Delhi and Madhya Pradesh High Conrts, wherein the rule in Jai Ram's 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 discussed.

The first of those cases is, M. Kunjukrishnan Nadar v. Hon'blc \.

Speaker, Kera/a Legislative Assembly (supra).

The petitioner in that case became a member of the Kerala Legislative on election in February 1960. On November 23, 1963, he wrote to the Speaker.

"Sir,

As I wish to devote more time for meditation and religious purposes, I shall not be able to continue as a Member of the Legislative Assembly, Kerala.

So, I request you to kindly accept this letter as my resignation as a Member of this Assembly, to take offect from 1-12-1963."

D On November 26, 1963, the Speaker read the letter in the Assembly, announcing thereby the petitioner's resignation to take effect on December 1, 1963.

On November 29, 1963, the petitioner wrote to the Speaker: "Sir,

In my letter dated 23-11-1963, I .have expressed my intention to resign my membership of the Legislative Assembly from the 1st of December, 1963.

After mature consideration, I feel that it will be proper not to resign at this juncture.

I therefore hereby withdraw my letter of resignatmn dated 23-11-1963."

This letter was received by the Speaker on November 30, .1963.

Thi5 letter was not given heed to, and a Notification was published in the Kerala Gazette dated December 10, 1963, saying that the petitioner "has resigned his seat in the Kerala Legislative Assembly from 1st December 1963".

The petitioner challenged this Gazette 'Notification, praying that it be declared null and void and of no effect He claimed a further declaration that he continued to be a Member of the Kerala Legislative Assembly.

On these facts, Article 190(3) of the Constitution, as it stood prior to its amendment by 'Constitution Amendment (Thirty-third Amendment Act, 1974, came up for interpreiation.

At that time, the material part of Article 190(3) ran as under :

"(3). If a member of a House of the Legislature of a State--

(a) becomes subject to any of the disqualifications mentioned in cl. (1) of Art. 191; or

UNION v. G. c. MISRA (Sarkaria, J.) 29

(b) resigns his seat by writing nnder his hand addressed to A the Speaker or the Chairman, as the case may be.

his seat shall thereupon become vacant." It will be seen that at that time, there was no provision in this Article requiring such resignation to be accepted by the Speaker before it could become effective.

Clause (b) of Article 190(3), as it stood at that time, was, but for the words "the Speaker or the Chairman" and the last phrase "his seat shall thereupon become vacant", identical with clause (a) of the Proviso to Article 217(1). Indeed, what is expressly provided by adding the words "his seat shall thereupon become vacant" in clause (b) of Art. 190(3), is implicit in clause

(a) of the proviso to Article 217 (1).

Two questions arose for determination : (i) Whether the letter C dated 23-11-63, constituted a valid resignation under Article 190(3); and (ii) if so, whether it could be withdrawn by the Member before the future date on which it was intended to be effective.

A learned single Judge of the High Court answered these questioll§ in the affirmative, with these observations :

" ........ the petitioner's Jetter of November 23, 1963, D has to be held a letter resigning his seat in the Assembly on December 1, 1963, deposited with the Speaker on November 23, 1963. It remains a mute letter till December 1, 1963, when alone it can speak with effect. On November 29, 1963, the petitioner has withdrawn that letter by writing under his hand addressed to the Speaker himself; ..... .

It is in effect the neutralization of the latent vita!ITy il1 the E former letter deposited with the Speaker. The withdrawal nullifies the entrustment or deposit of the letter of resignation in the hands of the Speaker, which must tliereafter be found to have become non est in the eye of law.

The absence of a specific provision for withdrawal of prospective resignation ii! the Constitution or the Rules is immaterial as basic principles of law and procedure must be applied F wherever they are relevant."

R. B. Misra, J. felt "difficulty in agreeing with the observation (in the above case) that the letter of resignation to be ell'ective on a future date remains deposited with the Speaker or remains a mute

letter till the arrival of that date when alone it can speak wltli.effect".

Singh, J. also expressed that this Kerala case had not been decided G on correct principles.

In our opinion, what has been extracted above from the decision in the Kerala case, correctly ennnciates the principles that prospective resignation remains mute and inoperative till the date on which it was intended to take effect is reached, and can be withdrawn anrl rendered 1um est at any time before such date.

The next decision worthy of notice is Y. K. Mathur v. The "1'!nicipal Corporation of Delhi (supra). In that case, two Mumc1pal

A Councillors of the Corporation of Delhi serit their resignation letters on November 16, 1972 to the Mayor of the Municipal Corporation, resigning their seats.

One of those letters was a resignation in praesenti and was dated November 16, 1972. The other Jetter of resignation sent by 0. P. Jain, reads as under

"T resign from my seat.

Please accept.

Sd/- Om Prakash Jain

16. 12."

This letter being in the nature of a post-dated cheque, was construed as a Jetter of resignation to be effective from future date, viz. December 16, 1972. On these premises, question arose whether this resignati01; could be withdrawn by the Member concerned before that date.

Sachar J., speaking for the Division Bench, answered this question, in these terms :-

"It is the free volition of the councillor concerned as to the date from which he wishes to resign.

There is no logic in saying that even though a councillor deliberately mentions in his resignation letter that it should be effective from a given future date, he would nevertheless be deemed to have resigned from an earlier date i.e. date on which the letter is delivered.

This would be contrary to the deliberately expressed intention of the councillor to resign from a particular future date. But is there any prohibition that once the resignation letter has been sent which is to be effective from a future date it cannot be withdrawn even before that date ? The statute does not in any way limit the authority of the councillor who has sent his resignation from a prospective date to withdraw it before that date is reached.

The resignation which is to be effective from afuture date necessarily implied that if that date has not reached it would be open to the councillor concerned to withdraw it." -

In support of this enunciation, the learned Judge relied on the ratio ', "'-- of the decisions of this Court in Jai Ram v. Union of India, and

Raj Kumar v. Union of India (ibid).

It was also contended-as has been argued before us-that if a resignation has been sent prospectively, the only effect is that the seat would become vacant from that date, but the resignation would be effective from the date it was delivered to the competent authority.

The Court repelled this argument with these pertinent observations :-

"Under Section 33(1) (b), both the resignation and the vacancy of the seat are effective from the same time.

There cannot be different times, one for resignation and the other for vacation of seat.

Vacancy will only occur when

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UNION v. G. c. MISRA (Sarkaria, !.) 31

resignation is effective, and if it is from future date both A resignation and vacation of seat will be effective simultaneous! y."

The approach adopted to the problem by the Delhi High Court appears to be correct in principle, and meets our approval.

We do not want to add more to the volume of our judgment by B noticing the numerous decisions of the English and American Courts that have been referred to by the High Court in the judgment.

It will suffice to notice one of those cases, which appears to have beer; relieJ upon by the High Court "as the best authority" in support of its reasoning that the letter of resignation, dated May 7, 1977, by Appellant 2, had become "final or irrevocable" on that very day when it was received by the President, "thongh he could not be C asked to actually relinquish his post prior to 1-8-1977." That English case is Reichal v. Bishop of Oxford(1).

The facts of that case were as follows :

Scandal having arisen with regard to the conduct of a Vicar, he was informed by the Bishop. that he must either submit to an inquiry or cease to hold his benefice.

Thereupon, in accordance with a proposal made by the Bishop in the interests 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 Bishop's Sicre(!lry on the understanding that the Bishop would postpone formal acceptance until the 1st of October. On the 10th of 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 Bishop's 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 , iction against the Bishop and the patrons of the benefice, claiming a declaration that he was Vicar, the resignation was void,_ and an injunction to restrain the defe11dai:tts from treatinz 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 naught without the Bishop's 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 oenefice voidable, not void; be 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.

(l) [1889] 14 A.C. 259.

A The Noble Lords rejected this contention. Lord Halsbnrv L. C.

observed:

"The arrangements for resigna!Ion on the one side and acceptance on the other seem to me to have been consum

mated 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 arranement 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 tliat the Bishop not merely was ready to accept, but insisted upon having it, in order thit 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 adopted of procedings 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 this iiitimation that the resignation was placed in the hands of the Bishop.

At the time .... the Bishop received it, and thenceforward down to and after the time of the alleged revocation, the Bishop was an assenting party to the resignation.''

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."

UNION v. G. c. MISRA (Fazal Ali, J.) 33

Reichal is no authority for the proposition that an 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 pursnance 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 nudem pactum but one 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 Reichal's resignation had become absolute and irrevocable. No extraordinary circumstances of this nature exist in the instant case.

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 Jnly 15, 1977, conveyed to the President.

Accordingly, we allow these appeals, set aside the majority judgment of the High Court and dismiss the writ petition, leaving the parties to bear their own costs throughout.

FAZAL Au, J. : These two appeals by certificate are directed against an order of the Allahabad High Court issuing a writ of Quo Warranto against Justice Satish Chandra, a Jndge of the Allahabad High Court on the ground that. he ceased to be a Judge with effect F from 1st August, 1977 as he was not competent to withdraw the re>ignation submitted by him earlier.

Appeal No. '2644/1977 has beeu filed by the Union of India supporting the case of the second respondent Salish Chandra while appeal No. 2655/1977 has been filed by the second respondent Salish Chandra himself against the order of the High Court as indicated above.

As the points involved in the two appeals arc identical and arise from the same jndgment, l G propose to deal with the two appeals by a common judgment.

The facts of the case lie within a narrow compass and the whole case turns upon the interpretation of Article 217 (1 )(a) of the Con. stitution of India.

I would also like to mention that the question of law that lias to be determined in this case in one of first impression and no direct authority of any court in India or outside appe.ars H to be available in order to decide this case. There are however number of authorities from which certain important principles can be deduced which may assist me in adjudicating the point in issue.

A Justice Satish Chandra hereinafter referred to as the second respondent was a practising lawyer of the Allahabad High Court.

He was appointed as a Judge of the Allahabad High Court on 7th October, 1963 and was later made permanent on 4th September,

1967. Since then he had been continuing as a Judge of the said High Court.

On 7th May, 1977 the second respondent wrote a letter to the President of India resigning his office with effect from 1st August, 1977.

The second respondent however indicated to the President that he would proceed on leave from 7th May, 1977 to 31st July, 1977 the period intervening between the application and the date from which the resignation was to be effective.

C On 15th July, 1977 however the second respondent wrote another fetter to the President by which he revoked the resignation which he had sent on the 7th May, 1977 and prayed that the communication containing the resignation may be treated as null and void.

In order to understand the exact implication of the intention of the second respondent it may he necessary to extract the two letters in

extenso :

"To

Sir,

The President of India, New Delhi.

I beg to resign my office as Judge, High Court of Judicature at Allahabad.

I will be on leave till 31st of July, 1977.

My resignation shall be effective on !st of August, 1977.

''To

With my respects,

The President of India, New Delhi.

Yours faithfully,

Sd/- Salish Chandra".

G Sir,

I beg to revoke and caned the intention expressed by me to resign on 1st of August, 1977, the office of Judge, High Court at Allahabad, in my letter dated 7th May, 1977.

That communication may very kindly be treated as null and void.

Thanking you and wishing to remain.

Yours sincerely,

Sd/- Salish Chandra".

I ~

UNION v. G. C. MISRA (Fazal Ali, J.) 35

A c.areful perusal of the first letter leaves absolutely no room for doubt that the Judge had clearly intended to resign his office with effect from 1st August, 1977. Similarly, the second letter shows the unequivocal intention of the second respondent to revoke the resignation sent by him earlier.

The reaso11s for the resignation have been given neither in the first letter nor in the second.

The question that has been mooted before the High Court was whether or not having resigned his office the second respondent had any jurisdiction to revoke his first letter sending his reignation. It might also be mentioned that it is common ground that before the second letter was written to the President the first letter bad not onli been communicated to but was actually received by the President as found by the majority judgment of the High Court.

Thus, the sole question to be determined in this case is whether it was within the competence of the second respondent to revoke the resignation sent by him to the President by bis letter dated 7th May, 1977 after the same bad been communicated to and received by the President. The stand taken by the Attorney General before us was that as the second respondent bad categorically expressed his intention in the :first letter that he would resign only with effect from 1st August, 1977, it was open to him to withdraw his resignation at any time before the crucial date was reached and there was no provision in the Constitution which debarred the appellant from doing so.

The Attorney General, however, conceded before us that having regard to the provisions of Article 217 there is absolutely no question of the resignation of a Judge being effective only on the acceptance of the same by the President.

In other words, the Attorney General submitted that the resignation would become effective from the date mentioned therein and the question of the acceptance of resignation . by the President would not arise in case of constitutional functionaries like Judges of the High Courts. Thus, in view of the concession of the Attorney General and the provisions of Article 217 any resignation submitted by a Judge was not depeiidenC on its acceptance by the President and would operate ex proprio vigore from the date mentioned in the letter of resignation. It appears that after the second respondent sought to revoke his resignation an application praying for a writ of quo warranto was filed by the respondents Gopal Chandra Misra & Ors. before the Allahabad High Conrt on

1he gound that the second respondent had no right to withdraw the resignation. The writ was heard by a Full Bench consisting of. R.

B. Misra, M. N. Shukla, Hamid Hussain, S. B. Malik ancfC. S. P.

G Singh, JJ. and the High Conrt by a majority judgment accepted the writ petition and issued a writ of quo warranto holding that the second respondent ceased to be a Judge as he was not competent

to withdraw his resignation once the same had been communicated to and in fact reached the President. The learned Judges who took the maj0rity view against the second respondent were

R. B.

Misra, M. N. Shukla and C. P. S. Singh, JJ. whereas Hamid Hussain and H s. B. Malik, JJ. were of the view that it was open to the second respondent to withdraw his resignation at any time before tlie date from which the resignation was to be effective and were, therefore,

of the opinion that the writ petition should be dismissed.

It seems to me that the High Court has devoted a considerable part of its judgment to the consideration of two questions which were really not germane for the decision of the point in issue.

Secondly, the High Court appears to have exhaustively considered the question of the theory of pleasure which obviously did not apply to a Judge of the High Court appointed under the Indian COnsfitution

and after the said Constitution had come into force. In other words, a Judge appointed under Article 217 cannot be said to hold jhis assignment at the pleasure of the President, but under the proVisions of Article 217 he was to hold his office until ihe following contingencies arose : ·

J. The Judge attained the age of 62 years;

2. The Judge was removed from his office under Article 124 of the Constitution;

3. The Judge was transferred to another High Coun under Article 222;

4. The Judge resigned his office by writing a letter under his hand addressed to the President. ·

It is needless to state that a Judge vacates his office the moment he dies, and although this contingency is not mentioned in Article 217 yet it follows from the very nature of things. It would thus be clear that the constitutional provisions embodied in Article 217 have expressly provided for the various contingencies in which a Judge of the High Court may vacate his office or cease to bei a Judge.

The relevant part of Article 217 may be extracted thus:

"217 : Appointment and conditions of the office of a Judge of a High Court :

(1) Every Judge of a High Court shall be appointed b}' the President by warrant under his hand and seal after consultation with the Chief Justice of India, the Governor of tl1e State, and, in the case of appointment of a Judge other than the Chief Justice, the Chief Justice of the High Court, and shall hold office, in the case of an additional or acting Judge, as provided in Article 224, and in any other case, until he attains the age of sixty-two years:

Provided that-

( a) a Judge may, by writing under his hand addresed to the President, resign his office;

(b) a Judge may be removed from his office by the President in the manner provided in clause ( 4) of Article 124 for the removal of a Judge of the Supreme Court;

( c) the office of a Judge shall be vacated by his being appointed by the President to be a Judge of the Supreme

UNION v. G. c. MISRA (Fazal Ali, J.) 37

~ Court or by his being transferred by the President to any A other High Court within th~ territory of India".

While analysing the various clauses of Article 217 it is pertinent to observe that while clause (a) contains an express provision mopowering a Judg<1 to resign, there is absolutely no provision which confers upon him any power to withdraw or revoke his resignation once B the same has been submitted to the President. , This is one of the moot points that has engaged the attention of the High Coort as also of this Court in deciding the issue.

The majority view was of the opinion that in the absence of any express provision to empower the Judge to revoke his resignation, the Judge

was not competent to withdraw his resignation having 011ce subc mitted the same.

The minority view of the High Court which has been relied upon by the Attorney General and the second respondent proceeds on the doctrine of implied powers under which it is said that the power of submitting a resignation carries with it the power of revoking the same before the resignation becomes effective.

I shall deal with these points a little later and before that I would like to indicate the position and the status conferred by the Consti- D tution on a High Court Judge.

The first thing which is manifestly plain is that there is no relationship of master and servant, employer and employee between the President and the Judge of the High Court, because a Judge is not a Government servant so as to be governed by Article 310 of the Constitution. A Judge of the High Court appointed under Article 2.17 has a special status and is a constitutional E functionary appointed under the provisions of the Constitution by the :I President.

The mere fact that the President appoints him does not make him the employer of the Judge.

In appointing a Judge of the High Court, the President is discharging certain constitutioual functions as contained in Article 217(1). This aspect of the matter was considered by this Court in the case of Union of India v. Sankalchand Himatlal Sheth & Anr.(1) where Krishna Iyer, F J. dwelling on this aspect observed as follows :

"So it is that we must emphatically state a Judge is not k

a government servant but a constitutional functionary.

He stands in a different category.

He cannot be e_quated ' with other 'services' although for convenience certain rules applicable to the latter may, within limits, apply to the G former.

Imagine a Judge's leave and pension be]ng made precariously dependent on the executive's pleasure: To make the government-not the State-the employer of a

uperior court Judge is to unwrite the Constitution".

It is, therefore, indisputable that a Judge of the High Court enjoys a special status under the Constitution, because of the very H hiuh position that he holds and the dignity and decorum of the office -<, 0 - • • that he has to mamtam.

(!) (19781 I S.C.R. 423.

The special guarantees contained in Article 217 are for the purpose of ensuring the independence of the judiciary as observed by Chandrachud, J. in the case of Union of India v. S. H. Sheth & Anr.

(supra) :

"Having envisaged that the judiciary, which ought to act as a bastion of the rights and freedom of the people, must be immune from the influence and interference of the

executive, the Constituent Assembly gave to that concept a concrete form by making various provisions to secure and safeguard the independnce of the judiciary".

The High Court Judges are the repasitory of the confidence of the people and the protectors of the right and liberty of the subjects.

HaYiug regard, therefore, to the onerous duties and the sacro§anct functions which a Judge of the Higb Court has to discharge he has to act or behave in a manner which enhances the contfdence of the people in the judiciary. The Constitution itself contains a number of provisions for promoting an independent judiciary and striving for a complete separation of the Judiciary from the Executive.

, Having regard to these circumstances therefore once a Judge decides to accept the high post of a High Court Judge he has to abide by certain fixed principles and norms as also some self imposed restrictions in order to maintain the dignity of the high office which he holds so as to enhance the image of the court of which he is a member and to see that the great confidence which the people have in the courts is not lost.

To resign an office is a decision to be taken once in a life time and that too for very special imd cogent reasons because once such a decision is taken it cannot be recalled as a point of no return is reached.

Indeed, if Judges are allowed to resign freely and recall the resignation at their will this privilege may be used by them as a weapon for achieving selfish ends or for striking p0litical bargains.

Not that the Judges are likely to take resort to these methods but even if one Judge does so at any time the image of the entire court is tarnished. It was, in my opinion, for these reasons that the High Court Judges have been assigned a special place by the constitution and are not equated with other services, however high or important they may be.

Thus, in these circumstances, therefore, it is manifest that any decision that the Judge may take in regard to resigning his office must be taken after due care and caution, full and complete deliberation and circumspection, so that the high office which he holds is not held to ridicule.

The power to resign is not intended to be used freely or casually so as to render the .same as a farce because after a Judge resigns important and far-reaching consequences flow.

Shukla, J. in the judgment under appeal has very aptly and adroitly observed as follows :-

"Therefore, if a Judge is permitted to recant .. his resignation, born of free volition, it would savour of a precipitance which would not redound to his credit.

A voluntary resignation of a High Court Judge deserves to be looked

UNION v. G. c. MISRA (Fazal Ali, J.)

upon with utmost sanctity, and cannot be treated lightly as if it was the outcome of a momentary influence ....... .

In other words, a Judge may resign and then with impunity rescind his resignation and thus go on repeating the process at his sweet will.

That would be ridiculous and reduce the declaration of resignation by a Judge to a mere farce."

I find myself in complete agreement with the observations made by the learned Judge and fully endorse the same.

What is g, ood of Article 217 equally applies to other similar constitutional functionaries like the President, the Vice-President, the Speaker, the Deputy Speaker. and the Supreme Court Judges.

So far as the President is concerned, Article 56(a) contains a provision identical to Article 217 (a) and runs thus :

"The President may, by writing under his hand addressed to the Vice-President, resign his office".

So far as the Vice-President is concerned, the provision is contained in Article 67(a) and runs thus:-

"A Vice-President may, by writing under his hand addressed to the President, resign his office".

So far as the Speaker and the Deputy Speaker are concerned, the provision is contained in Article 94 which runs thus :-

"Vacation and resignation of, and removal from, the offices of Speaker and Deputy Speaker : A member holding office as Speaker or Deputy Speaker of the House of the people-

( a) shall vacate his office if he ceases to be a member of the House of the People;

(b) may at any time, by writing.under his hand addressed, if such member is the Speaker, to the Deputy Speaker, and if such member is the Deputy Speaker, to the Speaker, resign his office, and

( c) may be removed from his office by a resolution of the House of the People passed by a majority of all the then members of the House :

Pro-dded that no resolution for the purpose of clause ( c) shall be moved unless at least fourteen days' notice has been given of the intention to move the resolution :

Provided further that, whenever the House of the People is dissolved, the Speaker shall not vacate his office until immediately before the first meeting of the House of the people after the dissolution".

So far as the Supreme Court Judges are concerned, the provision is contained in Article 124(2) (a) which runs thus:

"A Judge may, by writing under his hand addressed to the President, resign his office".

For all these constitutional functionaries a special procedure has been prescribed by the Constitution regulating their resignation and in each one of these cases two things are conspicuous. First, that there is absolutely no provision for revocation of, a resignation, and, secondly, that there is nothing to show that in the case of these functionaries the resignation wonld become effective only on being accepted by the authority concerned. It was contended by Mr. Jagdish Swamp, counsel for the respondents that if any of these functionaries are allowed to withdraw the resignation at their will they may use the powers of the Constitntion by treating the resignation as a bargaining counter. For instance, it was suggested that where a President is not happy with a particular Bill passed by Parliament, he may submit his resignation and thus pressurise Parliament to withdraw the Bill and after that is done, he could withdraw the resignation also. Such an action will lead to a constitutional crisis of a very extraordinary nature. The argnment is based on pure speculation yet it merits some consideration. Thus, on a parity of reasoning the same principles have to be applied to other constitutional functionaries including a High Court Judge and that will create a very anomalous situation. I think, it must have been this important consideration that must have heavily weighed with the founding fathers of the constitution in not providing for an express power to withdraw the resignation or a provision for the1 acceptance of the resignation by any particular authority. From this point of view also the irresistible inference that arises is that the absence of power in Article 217(1) (a) or the other Articles in the case of other constitutional func- E tionaries indicated above is deliberate, and, therefore, a Judge has no power to revoke his resignation, after having submitted or communicated the same to the President.

Another important aspect which may reveal the intention of Parliament is to be found in Article 101 (3) sub-clause (b) of the Constitution which runs thus :

"101(3) If a member of either House of Par!iament-

(b) resigns his seat by writing under his hand addressed to the Chairman or the Speaker, as the case may be, his seat shall thereupon become vacant." It would be seen that like other constitutional functionaries mentioned above even a member of either House of Parliament could resign his seat by writing under his hand addressed to the Chairman or the Speaker, as the case may be and once that is done the seat would become vacant. A similar provision exists so far as the members of the Legislature of a State are concerned which is contained in Article 190(3) (b) which runs thus:

"190(3) If a member of a House of Legislature of a Stat<>-

(b) resigns his office by writing under his hand addressed Jo the Speaker or the Chairman, as the case may be, his seat shall thereupon become vacant".

' I

• ,.

.....

"'"

UNION v. G. c. MISRA (Fazal Ali, l.) 41'

By virtue however of the Constitution 35th Amendment Bill 1974 Parliament amended both Articles 101(3) (b) and 190(3)(b) and made the resignation being effective dependent on the acceptance of the same by the Speaker' or the Chairman concerned. The amended provisions run thus :

"101 (3) If a member of either House of Parliament-

(b) resigns his seat by writing under his hand addressed to the Chairman, or the Speaker, as the case may be, and his resignation is accepted by the Chairman or the Speaker, as the case may be, his seat shall thereupon become vacant :

Provided that in the case of any resignation referred to in sub-clause (b), if from infocmation received or otherwise and after making such inquiry as he thinks fit, the Chairman or the Speaker, as the case may be, is satisfied that such resignation is not voluntary or genuine, he shall not accept such resignation".

"190 ( 3) If a member' of a House of the Legislature of a State-

(b) resigns his seat by writing under his hand addressed to the Speaker or the Chairman, as the case may be, and his resignation is accepted by the Speaker or the Chairman, as the case may be, his seat shall thereupon become vacant :

Provided that in the case of any resignation referred to in sub-clause (b), if from information received or otherwise and after making such inquiry as he thinks fit, the Speaker or the Chairnial), as the case may be, is satisfied that such resignation is not voluntary or genuine, he shall not accept such

resignation".

The Statement of Objects and Reasons of this Bill mentions why this amendment was brought about and the relevant portion may be extracted thus :

"In the recent past, there have bee.n instances v1here coercive measures have been resorted to for compelling members of a Legislative Assembly to resign their membership. If this is not checked, it might become difficult for Legislatures to function in accocdance with the provisions of the Constitution. It is therefore proposed to amend the above two articles to impose a requirement as to acceptance of the resignation by the Speaker or the Chairman and to provide that the resignation shall not be accepted by the Speaker or the Chairman, if he is satisfied after making such inquiry as he thinks fit that the resignation is not voluntary or genuine".

This aspect of the matter has been adverted to by Shukla, J. who observed as follows :-

"This provision made the resignation of a member o~ the Legislature self-executing. No acceptance was reqmred.

4-211 SCI /78

Later, however, political events created a situ!llion in which it became imperative not to let a resignation become effective until it was accep'.ed by the Chairman or the Speaker and he was satisfied on enquiry that it was voluntary or genuine. In some States there was political turmoil leading to 'en masse' resignat10ns of the members of Legislature.

Some of these resignations were also faked and engineered by interested factions in order to_serve their political ends. So it was felt necessary to provide in the Constitution that the seat of a member of Parliament shall become vacant only after his resignation had been accepted. That is why articles 101 (3)-

(b) & 190(3) (b) were suitably amended by the Constitution (Thirty-fifth Amendment) Act, 1974 ... The notification is indicative of two things firstly, in the absence of any such provision acceptance was not to be read into Ar, ticle 101 when it talked of the resignation of a member of Parliament.

Secondly, as soon as the Parliament intended that a resignation should not ta.1<:e effect until it _received assent or acceptance, it introduced a specific provision to that effect".

D It would be noticed, therefore, that at the time when Articles 101 (3) and 190(3) were being amended by the Constitution (Thirty-fifth) Amendment Act the Constitution makers had also other similar provisions like Articles 217, 94, 67 and 124(2)(a) etc. before them and if they really intended that acceptance was made a condition precedent to the effectiveness of a resignation in case of constitutional functionaries under Article 217 and other Ar.tides then such an amendment could

E have also been incorporated in the Thirty-fifth Amendment Bill as well either by conferring a power of revocation on the constitutional functionaries or by introducing a provision for acceptance of the resignation.

The very fact that no such amendment was suggested or brought about in Article 217 and other Articles clearly reveals that the Constitutionmakers intended no change so far as the other Articles were concerned.

This is a very important circumstance which fortifies my conclusion F that the power of revocation or withdrawal of resignation once communicated to the President has been deliberately .omitted by the founding fathers from Article 211 and other similar Articles.

Coining now to the second point regarding the application of implied powers to the facts of a case, the matter was considered in the case of Union of India v. S. H. Sheth & Anr. (supra) where this Court was -G construing the provisions of Article 222 of the Constitution of India and the case turned upon the question as to whether or not when a Jndge was transferred from one High Court to another it wa~ necessary for the President to take his consent. This Court by majority of 3 : 2 held that consent could not be implied in Article 222 in the absence of an express provision. Krishna Iyer, J. while expounding this aspect of the matter and speaking for himself and Fazal Ali, 1. observed as H follows:-

"It would be seen that there is absolutely no provtSion in this Article requiring the consent of the Judges of the High

_.,.-

.UNION v. oG. c. MISRA (Faza/ Aii, J.)

Court before transferring them from one High Court to another. Indeed, if the intention was that such transfers could be made only with the consent of the Judges then we should have expected a proviso to Article 222 (1) in some such tern1s as:

Provided that no Judge shall be transferred from one

High Court to another without his consent.

The absence of such a prO'Vision shows that the founding fathers of the Constitution did not intend .to restrict the transfrr of Judges only with their consent. It is difficult to impose [imitations on the constitutional provisions as contained in Article 222 by importing theJ concept of consent which is con- spicuously absent therefrom".

'1f consent is imported in Article 222 so as to make it a condition precedent to transfer a Judge from one High Court to another then a Judge, by withholding consent, could render the power contained in Article 222 wholly ineffective and nugatory. It would thus be impossible to transfer a Judge if he does not give his consent even though he may have great personal interests or close associations in his own State or by J; iis conduct he brings about a stalemate in the judicial administration where the Chfof Justice would become more or less powerless. In our opinion, the founding fathers of the constitution could not have contemplated such a situation at all. That is why Article 222 was meant to take care of such contingencies."

E :f Similarly, Chandrachud, J. took the same view and observed :

"The hardship, embarrassment or inconvenience resulting to a Judge by reason of his being compelled to become a litigant in his own conrt, cannot justify the addition of words to an article of the Constitution making his consent a precondition of his transfer. In adding snch words, we will be F confusing onr own po)icy views with the command of the constitution".

Jn view of the decision of this Court which is binding on us, can it be said that if the power of revocation of resignation is not expressly contained in the Constitution the same may be supplied by the application of the doctrine of implied powers. The question as to how far G the doctrine of implied powers can be invoked has also been .considered by this Court in several cases. To quote one, viz., in the case of Bidi, Bidi Leaves and Tobacco Merchants' Association, Gondia & Ors. v.

The State of Bombay & Ors. (1) where Gajendragadkar, J. speaking for the Constitution Bench of this Court observed as follows :-

"'Jlie definition of the term 'wages' postulates the binding character of the other terms of the contract and brings H within the purview of the Act only one term and that relates

.(1) A.LR. 1962 S.C. 486.

to wages and no other. That being so, it is difficult to hold that by implication the very basic concept of the term 'wages' can be ignored and the other terms of the contract can be dealt with by the notification issued. under the relevant provisions of the Act. When the said other terms of the contract are outside the scope of the Act altogether how could they be affected by the notification under the Act under the doctrine of implied powers".

"Therefore the Act has made a specific provision for the enforcement and implementation of the minimum rates of wages prescribed by notifications .... That is another reason why the doctrine 9f implied powers cannot be invoked in support of the validity of the impugned clauses in ihe notification".

Thus, an analysis of this decision would clearly reveal that where express provisions are made by a statute the doctrine of implied powers cannot be invoked to supply the provisions which had been deliberately omitted. Same view has been taken by the Patna High Court in Sukhdeo Narayan & Ors. v. Municipal Comm'ssioners of Arrah Municipality & Ors.(") where the Court observed as follows:-

"I hold, accordingly that the withdrawal of the resignation of the Chairman (Oppositer Party No. 2) as expressed in his letters, has no effect in law and th~ Municipal Commissioners, in their meeting on 19-1-1956 had jurisdiction to proceed on the question whether they should accept it or not."

E I fully endorse these observations. For these reasons, I am clearly of the opinion that in the absence of any express provision in Article 217 empowering a Judge to revoke his resignation, it is difficult to accept the view that the power of resigning which has been conferred on the Judge under Article 217(a) carries with it the inherent power to withdraw his resignation. In this view of the matter I am afraid, I am not in a position to accept the submission of the Attorney General ori this F poin~.

I might mention that the High Court had gone into the question as to 1¥hether the act of submitting resignation by the Judge to the President was a juristic act, and, therefore, once the position was altered, it could not be recalled. For the purposes of the present case and having regard to the reasons that I have already given, I would refrain from going into this question as it is hardly necessary to do so. Furthermore, G it seems to me that the act of resignation by a Judge is a matter personal to him and however careful or cautious he may be in exercising this power, the concept of juristic.act cannot be assigned to a document which is nothing but a letter of resignation, pure and simple. However, I do not want to dilate on this point, because in view of my finding that there is no express provision in Article 217 empowering a Judge to withdraw his resignation after the same is communicated to and sub- H mitted to the President, it is not necessary for me to spell out the con~

cept of a juristic act.

(!) A.LR. 1956 Patna 367, 373.

..... ~- - ... . ,,.

UNION v. G. c. MISRA (Fazal Ali, J.) 45

Another important angle of vision from which the point in issue can be approached is this. Once it is conceded that the resignation becomes complete without the necessity of the President accepting the same, the very concept of withdrawal of the resignation disappears.

In other words, the question of withdrawal of a resignation arises only if the resignation has to be accepted by au employer, because so long as a resignation is not accepted it remains au incomplete document and totally ineffective. In such c:_ircumstances, it is always open to the resignor to withdraw his resignation which has npt reached the stage of completion.

Such are the cases of resignation given by persons who are governed by usual master and servant relationship. It appears that in America even though a provision for resignation is there, there is an additional provision that the resignation has to be accepted by a particular authority and it is only in the context of this peculiar relationship that the American authorities have taken the view that a resignation can always be withdrawn until it is accepted. This state of affairs is completely foreign to the provisions of our Constitution are concerned which do not at all require the President to accept the resignation of a Judge. If once the concept of acceptance of resignation is totally absent, in my opinion, the question of withdrawal of the resignation does not arise at all, because the resignation having been submitted and

communicaed to the President becomes complete and irrevocable once it is communicated to and received by the President. In fact, Article 217 d~ not envisage or enjoin a conditional or prospective resignation.

But assuming that the power to resign carries with it the power to resign from a particular date, the conclusion appears to me to be inescapable that once the resignation is communicated to the authority concerned viz .. the President in the instant case, the resignation will become irrevocable and will take effect automatically ex proprio vigore from . the date mentioned in the letter. The mere fact that the resignor mentions a particular date from which he wants to resign does not at all empower hiin to withdraw or revoke his resignation at any time before the date is reached. Such a conclusion would have been possible only if the completeness of a resignation depended on the acceptance of the resignation by the authority concerned, because in such a case until the resignation was accepted it was no resignation in the eye of law and could always have been recalled. But where the concept of acceptance of resignation is totally absent, it seems to me to be a contradiction in terms to. say that even though .the resignation has been submitted to the proper authority and recieved by hinI still it .can be recalled before the date is reached. I am not in a position to hold that a resignation revealin_g an intention to resign from a particular date is a conditional resignation.

It is only a prospective resignation, but in view of the peculiar provisions of Article 217(1) (a) it becomes irrevocable the moment it is received by the President or is communicated to him though it may take effect from the date mentioned in the Jetter or if no such date is mentioned from the date of the Jetter itself. .

I now turn to the Full Bench decision of the Allahabad High Court in the case of Bahori Lal Paliwal v. District Magistrate, Rulandshahr &: Anr. (1) which is being relied on by the appellant. Chaturvedi, J,

(1) A.l.R. 1956 All. 511.

A while drawing a distinction between the Indian law tlllder the U.P.

Town Areas Act whic_h was the subject matter of review by .the Court and the English Law on the subject observed as follows :-

"The Indian Law under the U.P. Town Areas Act, however, bas not followed the English statutory law in this respect because the provisions of S.8-A of the Indian Act pro-

B vide for acceptance of the resignation by the District Magistrate, which clearly shows that the resignation is not effective ' till it is accepted".

Furthermore, it would appear that µrider the provisions of the s!<ltute

in that case the resignation had to be accepted by the appropriate authority and it was on this basis that the Court held that the person ,.

C had a right to withdraw his resignation before it was accepted or before his office had come to an end. The Court further observed as follows :-

"A resignation which depends for its effectiveness µpan the acceptance by the proper !luthority is like an offer which may be withdrawn befor, e it is accepted".

These observations do not help the case of the appellant but fortify the conclusion that I have reached. It is manifest that where effectiveness of a resignation depends upon acceptance of the same by the proper authority it can always be withdrawn until accepted because the resignation is not complete in the eye of law. This is what has been held by the Full Bench of the Allahabad High Court in the aforesaid case.

Another decision to which our attention was drawn by counsel for the appellant is the case of Bhairon Singh Vishwakarma v. The Civil Surgeon, Narsimhapur & Ors.( 1) This case also contains the same principle which has been_ enunciated in the Allahabad case referred to above, viz., that where a resignation is dependent for its effectiveness on the acceptance by the proper authority, it can. be withdrawn at any time before the acceptance is given.

This case was also dealing with a public servant to whic:h Article 311 applied and the resignation had to be accepted by the Director of Public Health. I do not see how this case helps the appellant in any way.

Thuo. th<" posi.tion that emerges from the aforesaid decisions is that where a resignation given by a Government servant is dependent for its effectiveness on the acceptance by the appropriate authority, the government servant concerned has an unqualified right to withdraw the resignation until the same is accepted by the authority. In other words, the position is that where the resignor has a right to resign but the resignation can be effective for only after aeceptance, it is a bilateral act.

That is to say, resignation by one authority and acceptance of the resignation bi the other authority. Unless the two acts are completed, the transaction remains in an inchoate form. That is to say a resignation sent by a servant is no resignation in the eye of law until accepted by the employer and so long as it is not an effective resignation, there can

(I) [197lj Lab. I.C. 121.

UNION v. G. c. MISRA (Fazal Ali, J.) 47

be no bar to withdrawing the same. The same however cannot be said A of a resignation tendered by a High Court Judge under Article 217(1) or other constitutional functionaries referred to hereinbefore because in cases of such functionaries the act of resignation is a purely an unilateral act and once the resignation is written and communicated to the President it acts ipso facto and becomes fully effective without there being any question of acceptance by the President. I have already held that where a particular date is given in the letter of resignation, }l; the resignatio"n will be effective from that particular date, but it does not mean that the resignor had any right to recall his resignation merely because he has chosen a particular date from which the resignation is to take effect.

On the other hand, the resignation becomes complete and irrevocable and ca"nnot be recalled either tdore or after the date mentioned is reached Having signed the resignation and put the same in the course of transmission to the President the Judges loses all cont- C rol over the same and becomes functous officio and the resignation

becomes effective as soon as the date arrives without leaving any room or scope to the resignor to change his decision.

This appears to be the constitutional scheme prescribd for the resignation of High Court Judges, Supreme Court Judges and other constitutional functionaries.

In fact, all the cases cited by the appellant excepting some are cases where the effectiveness of the resignation depends on the acceptance D of the resignation.

I am fortified in my view by the observations made i"n the Amrican Jurisprudence Vol. 53 page 111 section 34 where the following observations are to be found :

"'The contract of employment is terminated where the employee tenders his resignation and the proffer (sic) is accepted by the employer".

These observations clearly illustrate that a contract of emplo1111e'nt can only be terminated by a bilateral act, that is to say, resignation by the empioyee and acceptance by the employer.

In short, it se•ems to me that a resignation contemplated by Article F 217(1)(a) is a unilateral act which may be compared to an action of withdrawing a suit by the plaintiff under Order 23 Rule 3, C.P.C.

Once a plaintiff files an application withdrawing a suit, the suit stands withdrawn and becomes effective as soon as it is withdrawn. In the case of Smt. Raisa Sultana Begam and Ors. v. Abdul Qadir and others(') a Division Bench of the Allahabad High Court observed as follows

"Si"nce withdrawing a suit is a unilateral act to be done by G the plaintiff requires no perntission or order of the Court and is not subject to any condition, it becomes effective as soon as it is done jnst as. a compromise does ......... The act is like a point and not continuous like a line havi"ng a beginning and an end.

Either it is done or not done; there is nothi"ng like its being done incompletely or ineffectively.

The consequence of an act of withdrawal is that the plaintiff H ceases to be a plaintiff before the court" ..

(l) A.LR. 1966 All. 318, 321.

The same princile applies to resignation submitted by a High Court Jndge under Article 217(1)(a).

The resignation, which is a unilateral act, becomes effective as soon as it is communicated to the President.

The appellant jlowever, placed great reliance on a decision of the Kerala High Court in the case of M. Kunjukrishna Nadar v, Hon'ble Speaker Kera/a Legislative Assembly, Trivandrum and Ors.('). This was a case under Article 190(3) of the Constitution by a member of

he f\ssembly "'.ho addresed a communic_!l.tion to the Speaker tendermg his r>s1g'.nat10n. A Smgle Judge of the Kerala High Court held that the letter of resignation could not be effective until the date prescribed therein had reached and the notification published in the Gazette regarding the vacancy of the seat of the rnember was not warranted by law.

In the first place, the Court was really concerned with the point of time as to when the actual vacancy of the member would arise and the seat would become vacant so as to justify a notification for fresh election.

The point which is in issue before us did not arise in this shape in the Kera:a case at all.

In this connection, the learned Judge observed as follows :-

"I hold therefore that it is open to a member of the Legislature to tender his resignation on a prior date to take effect on a subsequent date specified therein.

The letter of resignation has then to be construed as having been deposited with the Speaker on the earlier date, to be given effect to only on the date specified by the Member therein".

''The withdrawal nullifies the entrustment or deposit of the letter of resignation in the hands of the Speaker, which must lhereafter be found to have become non-est in the eye of law. The absence of a specific provision for withdrawal of prospective resignation in the Constitution or the Rules is immaterial as basic principles of law and procedure must be applied wherever they are relevant."

While I find myself in complete agreement with respect to the first portion of the observation of the learned Judge, viz., that it was open to the Member to submit his resignation to be effective from a subsequent date, I express my respectful dissent fro~ the vie':" ten by the learned Judge that a withcjrawaJ would nulhfy the resignation completely and even if there was no provision for withdrawal of the resignation the same will become non-est after it is withdrawn.

The Judge has not at all discussed the Jaw on the subject nor has he referred to the constitutional provisions relating to resignation In fact, the 35th Amendment Act itself shows that the concept of a"5'eptance of resignation was completely absent before the amendrnent was brought about and the legal position before the amendment was that the re>1gnation would operate ipso facto and ex proprio vigore and could not be withdrawn.

That is why a specific power of acceptance

(l) A.LR. 1964 Ker. 194.

"""--·

;; I

UNION v. G. c. MISRA (Fazal Ali, J.) 49

was introduced by virtue of the amendment. As however Parliament did not intend to disturb the position in case of other constitutional functionaries like the High Court Judges, Supreme Court Judges, President, Vice-President, Speaker etc. no such amendment by introducing the concept of acceptance of the resignation was brought about in Article 217 and other similar Articles.

I'ndeed, if Parliament really intended that the resignation given by a High Court Judge or other constitutional functionaries indicated above could withdraw the reignation after communicating the same to the appropriate authority er even before the date from which the resignation was to operate, a

uitable amendment could have been made in these Articles so as to confer an express power on the constitutional functionaries to do so.

The fact that no such provision was made confirms my view that Parliament clearly i'ntended that the resignation of constitutional functionaries being a sacrosanct act should remain as it was intended by the founding fathers of the Constitution, viz., once a resignation is submitted or communicated to the President, it becomes final a'nd irrevocable and cannot be recalled by the functionary concerned.

Thus, Parliarrnnt maintained the unilateral nature of the act of resignatio'n. In these circumstances, therefore, I am not able to place any reliance on the judgment of the Kerala High Court cited by counsel for the appellant.

The Full Bench decision of the Delhi High Court i'n the case of Y. K. Mathur & And. v. The Commissioner, Municipal Corporation of Delhi & Ors. (1) appears to have been the sheet-anchor of the arguments of the Attorney General for the proposition that a prospective resignation submitted to the appropriate authority could be withdrawn by the resignor at a'ny time before the dab! mentioned in E the letter of resignation is reached. I have. carefully perused the aforesaid decision and I am unble to agree with the view taken by the Delhi High Court for the reasons that I shall give hereafter.

To begin with, the Court was considering the provisions of section 33(1 )(b) of the Delhi Municipal Corporation Act which may be extrncted thns : - F

"33 (l) If a cou'ncillor or an aldrman :-

(a) ............... .

(b r resigns his seat by writing under his hand addressed to the mayor and delivered to the commissioner his seat shall thereupon become vacant''.

G It was vehmently contended. by the appellant that section 33(l)(b)

(supra) was in absolute pari-materia with Article 217(1) (a) and

therfore, the intcrpretatio'n placed by the Delhi High Court n this -secl!on would clearly apply to the facts of the present case which depends on the interpretation of Article 217(l)(a).

In the first

P.lce, I am unable !o. agree with the A torney General th; it th•e prov1s1on, s of .the Murnctpa.J ct can be equated with the provisions <:ontamed m the Const1tu!Jon of India. There is a world of diffe-

{I) A.LR. 1974 Delhi 58.

rence between a constitutional functionary which has been assigned a special status and given a high place under the constitutional provisions and a municipal councillor elected under the local Municipal Act.

It is obvious that in both these cases the self same considerations and identical principles cannot be applied because of the nature of the position held by these two authorities.

The High Court held that as the statute did not limit the authority of the councillor to resign from a prospective date, the authority concerned had the undoubted power to withdraw it before the date is reached ..

In this connection, the Court observed as follows :-

"The statute does not in any way limit the authority of the councillor who has sent his resignation from a prospec-. tive date to withdraw it before that date is reached.

The resignation which is to be effective from a future date neoessarily implied that if that date has not reached it would be open to the councillor concerned to withdraw it''.

These observations suffer from an apparent fallacy.

In the first place, the Court seems to assume that there is an implied power to withdrm; the resignation where the resignor gives a particular date from which the resignation is effective.

In the absence of any expre55 provision conferring such a power, it was not open to the High Court to invoke the doctrine of implied powers as pointed out by me earlier.

An implied power cannot be conferred on an authority by a proceS5 of legal assumptions in the absence of any express provision.

Another argument which weighed heavily with the High Court was that there was no law which compelled a councillor to give his resignation if he did not want it, and, therefore, if a councilli>r chose to resign, he could not be debarred from withdrawing it at any time before the date from which the resignation was to be effectively reached.

This argument fails to take into consideration the hard realities of the situation contemplated, both by section 33 ( 1) (b) and Article 217 ( l )(a) of the Constitution.

There is no question of there being any compulsion on the resignor to submit his resignation.

In fact,. both section 33(l)(b) and Article 217(l)(a) merely conferred a privilege en the resignor to offer his resignation if he so desired. It depends upon the sweet will of the councillor to resign or not to resign.

From this however it cannot be inferred that where once a resignation is submitted and results in certain important consequences, namely, that the resignation acts ex proprio vigore, yet the resignor can still . withdraw his resignation and thus nullify the effectiven.ess of the resignation as contemplated both by section 33(1)(b) and Article 217 (1 )(a). Such an interpretation appears to be a contradiction in terms and against a plain interpretation of section 33 ( 1) (b) of the Municipal Act and Article 217 (1 )(a) cf the Constitution. Furthermore, the proviSion of section 33 (1 )(b) does not appar to b~ in complete pari-materia wi.th those of Article 217(l)(a) iasmucn as section 33 (1) (b) provides that as soon as the resignation was delivered to the Commissioner the seat of the councillor shall become

L '

UNION v. G. c. MISRA (Fazal Ali, J.) 51

vacant.

On the interpretation of this provision the Delhi High Court A hel<:l that the vacancy could occur only when the resignation became effective anci if the resignation was fro111 a future date both the resignation and the vacation of the seat could be simultaneous.

In this co:rncction, the Court observed as follows. :-

'"!Jnder section 33( 1 )(b) both the resignation and the vacancy of the seat are effective from the same time......

B Vacancy will only occur when resignation is effective, and if it is from future date both resignation and vacation of seat will be effective simultaneously".

So far as Article 217(1)(a) is concerned it is differently worded and the consequence of the resignation is not at all indicated in this Article.

Thus, the provisions of Article 217 (1 )(a) cannot be said C to be in complete per; materia with section 33(1) (b) of the Mwiicipal Corporation Act.

Thirdly, as I have already pointed out the consideration by which the Court is governed and the principles which it may seek to apply to a municipal councillor cannot by any process of reasoning or principle of logic be applied to a High Court Judge or other Consti- D tutional functionaries governed by constitutional provisions. Fourthly, the Delhi High Court has applied the .. doctrine of implied powers which as discussed above cannot apply where there is no express provisiou justifying a particular situation.

For !hese reasons, with due deference to the Judges constituting the Full Bench of the Delhi High Court I find myself unable to agree with the view taken by them.

In my opinion, the Delhi case referred to above is either distinguish- E able or even if it be taken to be directly in point, it is wrongly decided.

On the other hand, there are some English cases which throw a flood of light on the view that I propose to take in this case and which have been relied upon by the majority judgment of the Allahabad Hgh Court.

In the case of Reichel v. Bishop of Oxford(') F it was held that a clerk who had tendered his' resignation to the Bishop car.not withdraw it, even before acceptance, if, in consequence of the tender, the position of any party has been altered.

In that case the Bishop had been thereby induced to abstain from commencing proceedings in the Ecclesiastical Court for the deprivation of the clerk, in view of his resignation.

Lord North after considering all the aspects of the case observed as follows : G

"Applying that to th~ present case, the Plaintiff, by sending in his resignation, procured a postponement of legal proceedings against himself, and thereby, according to ecclesiastical law, incapacitated himself from withdrawing it during the interval before the 1st of October; and this result would follow, even if the true view of the facts he, that the Bishop did not accept the resignation until that date.

( l) (1887) Ch. D. 48.

Under these circumstances, it appears to me that the plaintiff's attempt to withdraw his resignation fails entirely, and that, having failed on all points, the action must be dismissed with costs".

This decision was affirmed by the Court of Appeal and it was held that the resignation was validly executed and irrevocable.

In the Appeal Case Lord Halsbury observed as follows :

"But there was no condition here at all.

As I have already said, I find as a fact that Mr. Reichel agreed absolutely to resign rather than undergo the inquiry which the Bishop would have felt himself otherwise compelled to institute.

Neither in form nor in substance was the resig- 11ation conditional". :.--

Lord Herschell observed as follows :

"In these circumstances it is idle to consider what the .appellant's position might have been, if there had been no such .arrangement, and he merely had sen_t in his resignation without knowing whether it was to be accepted or not. He cannot in my opinion be permitted to upset the agreement into which he .voluntarily entered, and which he has done all that he could to complete, upon the allegation that the!e

was no formal acceptance of the resignation until the 1st of October, 1886".

Lord Herschell observed as follows :

"It was argued further by the appellant that inasmuch as his resignation was tendered to the Bishop on the understanding that it was not to be ac; cepted until a subsequent date, the resignation was a conditional one, and therefore void.

I can see no ground for such a contention.

The resignation was absolute.

It was intended to take effect in any event".

These observations also show that merely because the resignation is to take effect from a particular date, it does not become a conditional resignation and its absolute nature is not changed at all, because the Law Lords as also the Chancery Division proceeded on the footing that even though the resignation of the clerk was to take effect from a certain date it was not conditional but absolute.

The learned counsel for he appellant sought to distinguish this case on the ground that in the Bishop's case (supra) a material _change had already taken place, which could not be reversed and that is why it was held that the resignation could not be withdrawn. It is true that this was one of the grounds taken both by the Chancery Division Court and the Appeal Court, but the same reason will apply to the present case also because once a resignation was submitted y Salish Chandra to take effect from the 1st August, 1977, the President was clearly entitled to fill up the vacancy of the Judge from 1st August, 1977 and may take steps accordingly.

Thus, by virtue of

UNJON v. G. c. MISRA (Fazal Ali, J.) 53

his resignation Salish Chandra had invited the President to take steps A to fill up the vacancy which will arise on 1st August, 1977.

By virtue of this representation, therefore, a material change undoubtedly took place.

For these reasons, therefore, I am not in a poSi'tion to accept the arguments of counsel for the appellant on this score.

In the case of Finch v. Oake(') a member under Trade Protection Society was entitled to retire at any time without the consent B of other members.

On the receipt by the society of a letter from a member stating his wish to retire, he at once ceased to be a member without the necessity of the acceptance by the society of his resignation.

It ""s held that the member could not withdraw his resignation even before acceptance and he could only become a member again after re-election. It would be seen that the principles decided in th; s case apply directly to the facts of the present case where also C under the provisions of Article 21 7 the effectiveness o( resignation does not depend upon the acceptance of the same by the appropriate

auiliority. In the aforesaid case Lindley, L.J. observed as follow§:-

"By paying his subscription he no doubt acquires certain rights and benefits.

But what is there to prevent him from retiring from the association at any momerit il' he D wishes to do so'?

Absolutely nothing. In my opinion no acceptance of his resignation is required, though of course he cannot get back the 10s.6d. which he has paid ...... .

I can see no principle of law which entitles him to withdraw his resignation".

Kay, L. J. observed as follows : - E

"It is said that, before his resignation had been accepted by the association, he withdrew it.

But why was any consent to his withdrawal from the society required? As a voluntary member of a voluntary society he had said, "I do not wish to continue a member any f6nger ....... .

In my opinion, after his letter of resignation had been receiv- . ed, the plaintiff could not become, a member of the society again without being re-elected".

In my opinion, the principles laid down by this case seem to be in all fours with the facts of the present case.

fn the case of People of the State of Illinois Ex. Rel. Benjamin S. Adamowski, v. Otto Kerner(') what happened was that a County Judge submitted his resignation to the Governor which was to become operative on a specified date.

But the Judge sought to .withdraw the resi1mation before the date mentioned in the resignation and before the Governor had acted thereon. It was held by the Illinois

Supreme Court that the resignation could not be withdrawn. In this

connetion. Davis, J. while delivering the opinion of the court observed as follows :- -- ·----

(!) [1896] l Ch. D. 409.

(2) 82 A.L.R. 2nd Series 740.

"However, public policy requires that there be certainly as to who are and who are not public officers ...... Therefore, the resignation of an officer effiective either forthwith or .at a. future date may not be. withdrawn after such resignatmn 1s received by or filed with the officer authorized by law to fill such vacancy or to call an election for such purpose".

It is true that Schaefer, J. and Hershey, J. dissented from the view taken by Davis, J., but I would prefer to follow the view taken by Davis, J. which falls in line with the tenor and the spirit of the constitutional provisions which we_ are called upon to interpret here.

Similarly, in the case of Glossop v. Glossop(') it was held that the managing director could not withdraw the resignation without the consent of the company, and by his letter of resignation be vacated his office.

Neville, J. while adumbrating the aforesaid principles observed as follows :-

"I have no doubt that a director is entitled to relinquish his office at any time he pleases by proper notice fothe company, and that his resignation depends upon his notice and is not dependent upon any acceptance by the company, because I do not think they are in a position to refuse acceptance.

Consequently, it appears to me that a director, once having given in the proper quarter notice of his resignation of his office, is not entitled to withdraw that notice, but, if it is withdrawn, it must be by the consent of the company properly exercised by their managers, who are the directors of the company".

It would appear, from a conspectus of the authorities cited above and on a close and careful analysis of the provisions of Article 217 (1) of the Cm1stitution of India having regard to the setting of the spirit in which this provision was engrafted that the more acceptable view seems to be that where the effectiveness of a resignation by a Judge does not depend upon the acceptance by the President and the resignation acts ex proprio vigore on the compliance of the condi!ions mentioned in Article 217(l)(a) (that is by writing under his hand addressed to the President and being communicated the same to the President) the Judge has no power to revoke or recall the aforesaid resignation even though he may have fixed a particular date from which the resignation is to be effective. In other words,_ the act of resignation is a purely unilateral act and the concept of wi!hdrawal or recalling or revoking the resignation appears to be totally foreign to the provisions of Article 217 (1) (a). /

Counsel for the appellant relied on Corpus Juris Secundum, American Jurisprudence and other books of eminent authors, which do not appear to me to be very helpful in deciding the point in issue in the present case. In the first place the provision of the American Consfaulion as regards resignation of Judges is quite different. In

(I)

(1907) 2 Ch. D. 370.

...

UNION v. G. c. MISRA (Fazal Ali, J.) 55

fact, there_ is no provision at all in the American Constitution entitling a Judge to resign.

Article 3 section l of the American Con_stitution as edited by Corwin shows that although Article 3 Section 1 of the American Constitution confers judicial powers on the United

States in one Supreme Court and other inferior Courts as may be established by the Congress it provides that Judges both of the

Supl_em0 Court and inferior Courts shall holtl their office during good behaviour.

Apart from this provision there is no provision in . the Constitution regarding the mode and manner in which the Judges cou!J resign their bffice.

In the absence of any such provision, the general principles have been applied which includes cases where a Judge tenders his resignation either prospectively or with a condition attached to the same and such a resignation has to be accepted by

the Pres".dent and can be withdrawn at any time before the date fixed is reached .. 'f.hese principles, however, cannot be applied to our Constitution where a definite mode and a prescribed procedure has been formulated for the resignation of a Judge and the consequences

fiowin~ thereof.

In these circumstances, therefore, we can derive little help from the provisions "f the American Constitution on the question at issue.

In the absence of any express provision, the courts have applied the common law which is to the effect that in the absence of a statute providing for resignation, the resignation becomes effective on its acceptance by the proper authority.

Similarly, it is laid down that a prospective resignation may be withdrawn at any time before it< acceptance vide Corpus Juris Secundurh Vol. 48 p. 973 para 25 wl1ich runs thus :-

"The term or tenure of a judge, with respect to the incumbent, may become terminated by reason of his resignation. In the absence of a statute providing otherwise, a resignation becomes effective on its acceptance by !lie proper authprity, but in order to become effective it _must be accepted.

A prospective resignation may be withdrawn at any time before it is accepted, and after it is accepted it may be withdrawn by the consept of the accepting authority, at least where no new rights have intervened".

Similarly, in Corpus Juris Secundum Vol. 67 p. 227 para 55 the following observations are to be found :

"However, under a statute providing that a resignation shall take effect on due delivery to the officer to whom it is

addressed without making provision for a prospective resi_g- G nation, a resignation to take effect 'at a future date is not permissible, and such resignation becomes effective Oh due delivery and creates a vacancy as of the date of delivery".

These observations do not seem to be directly in point but come as close as possible to the view taken by me.

The learned counsel for respondent No. 1 Mr. Jagdish Swarup

too~ us through extracts of a number of books including Paton's Junsprudence and Salmond's Jurisprudence with a view to explain

the incidents and qualities of a legal right.

The extracts, however, do not appear to me to be relevant to the facts of the present case where we are dealing with a codified rjght which has to be performed within the four corners of the constitutional provisions.

The general principles contained in the book of the eminent jurists referred to by Mr. Jagdish Swarup cannot be disputed. The main question, however, is as to wliat is the effect of the provisions of Article 217(1) (a) of the Constitution of India, which prescribes a particular mode for the resignation of High Court Judges.

I, therefore. do not think it necessary to advert to the books referred to by the High Court or by counsel for the first respondent.

Thus, from the conclusions arrived by me on the questions involved in this appeal the following propositions in my opinion emerge :

 1. That the concept of the acceptance of resignation submitted by a High Court Judge is completely ab, sent from Article 217 (1 )(a) and the effectiveness of the resignation does not at all depend upon the acceptance of the resignation by the President nor does such a question ever arise.

This is how the Executive Government bas implemented the law for wherever notifications regarding the resignation of High Court Judges or Supreme Court Judges have been made they have merely mentioned the date of the resignation and nOf the fact of acceptance.

The High Court has elaborately dealt with this question.

2. That in view of the provisions of Article 217(1)(a) and similar provisions in respect to high constitutional functionaries like the President, Vice-President, Speaker etc. the resignation once submitted and communicated to the appropriate authority becomes complete and irrevocable and acts ex proprio vigore.

3. That there is nothing to show that the provisions of Article 217(l)(a) exclude a resignation which is prospective.

That is to F say, a resignation may take effect from a particular date Even so, the resignation may be effective from a particular date but the resig- nor completely ceases to retain any control over it and becomes functus officio once the resignation is submitted and commnnicated to the

appropriate anthority. ·

4. That the resignation contemv.Iated. by Article 2l~ClH!t) is purely an unilateral act and takes effect 1pso facto once mtent1on to resign is communicated to the President in writing and addressed to him.

5. That on a true interpretation of Article 217(1)(a) a resignation havino once been submitted and communicated to the President cannot be

0recalled even though it may be prospective in nature so as to come into effect from a particular date.

It is npt possible to hold that such a resignation can be withdrawn at any time before the date

frmn which the resignation is to be effective is reached.

•• ', "'

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UNION v. G. c. MISRA (Fazal Ali, J.) 57

.6. That as the Constitution contains an express and clear provi- :sion for the mode in which a resignation can be made it has deliberately omitted to provide for revocation or withdrawal of a resignation .once submitted and communicated to the President. In the absence of such a provision, the doctrine of implied powers cannot be invoked to supply an omission left by the founding fathers of the Constitution deliberately. ·

The principles enunciated above flows as a logical corollary from the nature and character of the privilege, right or power (whatever name we may choose to give to the same) conferred by the Constitution on a Judge of the High Court or other constitutional functionaries mentioned hereinbefore.

Salmond on Jurisprudence (12th Ed. by Fitzgerald) describes a species of legal rights thus :-

"All these are legal rights-they are legally recognised interests-they are advantages conferred by Jaw .... They .resemble liberties, and differ from rights stricto sensu, inasmuch as they have no duties corresponding to them ...... A power may be defined as ability conferred upon a person by the Jaw to alter, by his own will directed to that end, the rights, duties, liabilities or other legal relations, either of himself or of other persons ........ Power is either ability to determine the legal relations of other persons, or ability to determine one's. own.

The first. of these-powr oiner persons-is sometimes called authority; the second-power .over oneself-is usually termed capacity".

'Similarly, Paton on Jurisprudence (3rd Edition by Derham) while illustrating the right of liberty observed as follows : -

"I have liberty to breathe, to walk in my own fields, to play golf in my private links.

Here no precise relationship to others is in question, save that the law will protect_my liberty if others interfere with its exercise.

But it is more accurate to say that I have a liberty to play than that I have a claim, for I may exercise my liberty without affecting F others, whereas my claim can be enforced only by coercing another to act or forbear".

It would thus appear that the privilege or power enshrined in Article 217(1)(a) is an absolute one and not relative.

In other words, the aforesaid power is an independent one and has no cor- Tesponding rights to be performed by any other authority.

The G only. privilege given to a Judge of the High Court is to resign without there_ being any corresponding right to the President_ to accept the same, nor is there any power in the resignor to recall or revoke the resignation once it becomes effective.

The ' provisions of Article 217(l)(a) really contemplates that the decision of a Jugge to resign his office must be taken with due deliberation after considering all lhe pros and cons of the matter and not under any emotional instict H or inspired by undue haste or momentous fury.

One of the esenial qualities of a judicial power is restraint and a Judge before res1gnmg S-"2l! SCI 178

must be prepared to take a decision once for all so that having taken the .decision he is not in a position to repent on the same or to brood over it.

The decision once taken ~Y the Judge in this regard IS irrevoc.abl~ and immutable and is just like an arrow shot from the bow

whi~:1 cannot be recalled or a bullet having fired and having reached its destination cannot come back to the barrel from wbich it was shot.

Thus having regard to the letter of resignation in the present case, there can be no doubt that Satish Chandra had in his letter dated 7th May, 1977 indicated his. unequivocal intention to resign in the clearest possible terms to the President with effect from 1st August, 1977 and the letter having been communicated to the President and received by him, it was not open to Satish Chandra to withdraw or revoke that letter.

Consequently, the letter dated 15th July, 1977 addrerned to the President by Satish Chandra revoking his resignation was null and void and must be completely igiiored.

The pcsition, therefore, in my opinion, is that Salish Chandra ceased to be a Judge cf the High Court with effect from 1st August, 1977.

For these reasons, therefore, I fully agree with the majority D view of the High Court (Misra, Shukla and Singh, JJ.).

I am unable to persuade myself to agref1 with my Brother Judges who have taken a contrary view.

I, therefore, uphold the judgment of the High Court and dismiss the appeals.

We have already pronounced the operative portion of the order on 8th December, 1977 and we have now given the reasons for the order pronounced.

In the circumstances, there would be no order as to costs.

M.R.

Appeals allowed.