{"id":123428,"date":"1978-02-15T00:00:00","date_gmt":"1978-02-14T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/union-of-india-vs-shri-gopal-chandra-misra-and-ors-on-15-february-1978"},"modified":"2015-02-02T05:28:51","modified_gmt":"2015-02-01T23:58:51","slug":"union-of-india-vs-shri-gopal-chandra-misra-and-ors-on-15-february-1978","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/union-of-india-vs-shri-gopal-chandra-misra-and-ors-on-15-february-1978","title":{"rendered":"Union Of India vs Shri Gopal Chandra Misra And Ors on 15 February, 1978"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Union Of India vs Shri Gopal Chandra Misra And Ors on 15 February, 1978<\/div>\n
Equivalent citations: 1978 AIR 694, \t\t 1978 SCR (3)\t 12<\/div>\n
Author: R S Sarkaria<\/div>\n
Bench: Sarkaria, Ranjit Singh, Gupta, A.C., Untwalia, N.L., Fazalali, Syed Murtaza, Singh, Jaswant<\/div>\n
           PETITIONER:\nUNION OF INDIA\n\n\tVs.\n\nRESPONDENT:\nSHRI GOPAL CHANDRA MISRA AND ORS.\n\nDATE OF JUDGMENT15\/02\/1978\n\nBENCH:\nSARKARIA, RANJIT SINGH\nBENCH:\nSARKARIA, RANJIT SINGH\nGUPTA, A.C.\nUNTWALIA, N.L.\nFAZALALI, SYED MURTAZA\nSINGH, JASWANT\n\nCITATION:\n 1978 AIR  694\t\t  1978 SCR  (3)\t 12\n 1978 SCC  (2) 301\n CITATOR INFO :\n RF\t    1981 SC 789\t (13)\n R\t    1987 SC2354\t (10)\n F\t    1989 SC1083\t (8)\n\n\nACT:\nConstitution  of India, Art. 217(1) proviso (a) \"resign\t his\noffice\",  interpretation--High\tCourt  Judge's\t resignation\nletter intimating to have effect from a future date, whether\nreceipt\t by  President,\t makes\tresignation  fait  accompli-\n--Revocation  of  resignation  prior to\t intimated  date  of\neffect,\t   validity   of--Doctrine   of\t   public    policy,\napplicability to judicial decisions.\n\n\n\nHEADNOTE:\nThe second respondent (appellant in CA 2655\/77) Shri  Satish\nChandra\t wrote\tto the President of India, on May  7,  1977,\nintimating  his resignation from the office of Judge of\t the\nAllahabad  High Court, with effect from August 1, 1977.\t  On\nJuly 15,1977, he again wrote to the President, revoking\t his\nearlier\t communication,and  commenced  deciding\t matters  in\nCourt  from  July  16, 1977.  On  August  1,1977  the  first\nrespondent Shri Misra, an advocate of the High Court.  filed\na petition under Article 226 of the Constitution, contending\nthat  the  resignation of Shri Satish Chandra,\thaving\tbeen\nduly  communicated to the President of India, in  accordance\nwith  Article  217(1) Proviso (a) of the  Constitution,\t was\nfinal  and  irrevocable, and that the  continuance  of\tres-\npondent\t No.  2\t as a High Court Judge\tthereafter,  was  an\nusurpation  of\tpublic office.\tThe High Court\tallowed\t the\npetition holding that Shri Satish Chandra was not  competent\nto revoke his resignation letter.\nAllowing the appeal by certificate,\nHELD:\nPer  R.\t S.  Sarkaria  on behalf of (A.\t  C.  Gupta,  N.  L.\nUntwalia, Jaswant Singh, JJ and himself).\n1.   Resigning office necessarily involves relinquashment of\nthe  office  which implies cessation or termination  of,  or\ncutting\t asunder from the office.  A complete and  effective\nact of resigning office is one which severs the link of\t the\nresignor with his office and terminates its tenure.  In\t the\ncontext\t of  Art.  217(1) this assumes the  character  of  a\ndecisive  test, because the expression \"resign\this  office\"\noccurs\t in  a\tproviso\t which\texcepts\t or  qualifies\t the\nsubstantive clause fixing the office tenure of a judge\tupto\nthe age of 62 years. [21 E-F]\n2.   In\t  the\tabsence\t  of   a   legal,   contractual\t  or\nconstitutional\tbar,  an intimation in writing sent  to\t the\nappropriate  authority by an incumbent, of his intention  or\nproposal  to resign his office\/post from a future  specified\ndate, can be withdrawn by him at any time before it  becomes\neffective i.e., before it effects termination of the  tenure\nof the office\/post or employment.  This is\tgeneral rule\nequally\t applies to Government servants\t and  constitutional\nfunctionaries.\t In  the  case\tof  a  Government   servant,\nnormally,  the tender of resignation becomes  effective\t and\nhis   service  terminated,  when  it  is  accepted  by\t the\nappropriate  authority.\t In the case of a High\tCourt  Judge\nwho  is\t a  constitutional  functionary\t having\t under\tArt.\n217(1),\t Proviso  (a), a Unilateral right  or  privilege  to\nresign,\t his resignation becomes effective on the date\tfrom\nwhich  he, of his own volition, chooses to quit office.\t [27\nE_G]\nJai Ram v. Union of India, A.I.R.<\/a> 1954, SC 584 and Rai Kumar\nY. Union of India, [1968] 3 S.C.R. 857 followed.\nM.   Kunjukrishnan   Nadar  v.\t Hon'ble   Speaker,   Kerala\nLegislative  Assembly, A.I.R. 1064 Kerala 194, Y. K.  Mathur\nv.  The Municipal Corporation of Delhi.\t A.I.R.\t 1974  Delhi\n58,  Sankar  Datt  Shukla  v.  President,  Municipal  Board,\nAttraiya and Anr., A.I.R. 1956 All. 70 Bahorilal Paliwal  v.\nDist.  Magistrate,\n13\nButandshahr  A.I.R.  1956 All. (511) F.B.: I.L.R.  (1956)  2\nAll.  593-F.B., Bhairon Singh Vishwakarma v.  Civil  Surgeon\nNarsimhapur, 1971 Labour Industrial Cases 127 M.P. approved.\nRev.  Oswald Joseph Reichal v. The Right Rev.  John Fielder,\nLord Bishop of Oxford,<\/a> 14 A.C. 259, distinguished.\n3.   A High Court Judge's letter addressed to the  President\nintimating or notifying the writer's intention to resign his\noffice\tas  Judge,' on a future date, does no',\t and  cannot\nforthwith sever the writer from the office of the Judge,  or\nterminate his tenure.  Such a 'prospective' resignation does\nnot,  before the indicated future date is reached, become  a\ncomplete and operative act of resigning his\noffice\t  by  the Judge within the contemplation of  Proviso\n(a) to Article 217(1).\n[22H,\t  23A]\n4.   Public  policy can be a very unsafe,  questionable\t and\nunreliable ground for judicial decision.  This doctrine\t can\nbe applied only in a case where clear and undeniable harm to\nthe public is made out. [24C-E]\nGherulal v. Mahadeo Das [1959] Supp. 2 S.C.R., 406, applied.\n5.   In\t substance, the letter dated May 7, 1977,  addressed\nby  appellant 2 to the President, amounted to a proposal  or\nnotice\tof intention to resign at a future date and,  before\nthe  arrival  of  that date (August 1,\t1977).\tit  did\t not\nconstitute  a complete act of resignation having  the  jural\nconsequence  of severing the link of the appellant with\t the\noffice of the Judge, and hence it had been validly withdrawn\nby  him as per his letter dated July 15, 1977  addressed  to\nthe President, there being no constitutional or legal bar to\nsuch withdrawal. [33D-E]\nPer S. Murtaza Fazal Ali, J. (Dissenting)\n1.   Where  the\t effectiveness of a resignation by  a  Judge\ndoes  not depend upon the acceptance by the  President,\t and\nthe resignation acts ex-proprio vigore\ton the compliance of\nthe  conditions\t mentioned in Art. 217(1)(a),  the  resignor\ncompletely ceases to retain any control over it and  becomes\nfunctus officio, though the resignation may take effect from\nthe  date  mentioned in the letter, or \"if no such  date  is\nmentioned, from the date of the letter itself\". [54 EG]\nThe  Principles\t flowing  as a logical\tcorollary  from\t the\nnature\tand  character\tof the\tprivileges  right  or  power\nconferred by the Constitution on a Judge of a High Court  or\nother constitutional functionaries are :-\n\t      1.    The\t  concept  of  the   acceptance\t  of\n\t      resignation submitted by a High Court Judge is\n\t      completely absent from Article 217(1)(a),\t and\n\t      the effectiveness of the resignation does\t not\n\t      depend upon the acceptance of the\t resignation\n\t      by the President.\n\t      If.  In  view  of the  provisions\t of  Article\n\t      217(1)(a) and similar provision,-, in  respect\n\t      to  high\tconstitutional\tfunctionaries,\t the\n\t      resignation once submitted and communicated to\n\t      the  appropriate authority,  becomes  complete\n\t      and irrevocable and acts ex proprio vigore.\n\t      III.  The resignation may be effective from  a\n\t      particular  date but the\tresignor  completely\n\t      ceases  to  retain  any control  over  it\t and\n\t      becomes  functus officio once the\t resignation\n\t      is   submitted   and   communicated   to\t the\n\t      appropriate authority.\n\t      IV.   The\t resignation  contemplated  by\tArt.\n\t      217(1)  (a)  is purely a\tunilateral  act\t and\n\t      takes  effect  ipso  facto-once  intention  to\n\t      resign  is  communicated to the  President  in\n\t      writing and addressed to him.\n\t      V.    On\ta  true\t interpretation\t of  Article\n\t      217(1)(a), a resignation having been submitted\n\t      and  communicated to the President, cannot  be\n\t      recalled even though it may be prospective  in\n\t      nature  so  is  to come  into  effect  from  a\n\t      particular date.\n\t       14\n\t      VI.   The Constitution contains an express and\n\t      clear  Provision\tfor  the  mode\tin  which  a\n\t      resignation can be made.\tIt has\tdeliberately\n\t      omitted\tto,   Provide  for   revocation\t  or\n\t      withdrawal of a resignation once submitted and\n\t      communicated to the President.\nIn the absence of such a provision, the doctrine of  implied\npowers cannot be invoked to supply the omission. [56 C-H, 57\nA-B]\nRev.  Oswald Joseph Raichal v. The Right John Fielder,\tLord\nBishop of Oxford,<\/a> 14 A.C. 259, Pinch v. Oake (1896) 1  Ch.D.\n409,  People  of  the  State of\t Illinois  Ex.\t Ral.\tB.S.\nAdamowaki v. Otto Kerner, 82 A.L.R. 2nd Series 740,  Glossop\nV.  Glossop  (1907)  2 Ch.  D. 370; Bidi,  Bidi\t Leaves\t and\nTobacco\t Merchants Association, Gondia, & Anr. v. The  State\nof Bombay & Ors., A.I.R.<\/a> 1962 S.C. 486; applied.\nSukhdeo Narayan and Ors. v. Municipal Commissioner of  Arrah\nMunicipality  and Ors., A.I.R. 1956 Patna 367 and  373;\t and\nSmt.  Raisa Sultana Begum and Ors. v. Abdul Qadir and  Ors.,\nA.I.R. 1966 All. 318 at 321 Approved.\nY.   K.\t Mathur\t v.  The  Municipal  Corporation  of  Delhi.\nA.I.R. 1974 Delhi 58, distinguished.\nM.   Kunjukrishnan   Nadar  v.\tHon'ble\t  Speaker,   Kerala,\nLegislative  Assembly,\tA.I.R. 1964  Kerala  194,  Bahorilal\nPaliwal v. District Magistrate, Bulandshahr A.I.R. 1956 All.\n511  F.B. = I.L.R. (1956) 2 All. 593 F.B. and Bhairon  Singh\nVishwakarma  v.\t Civil\tSurgeon,  Narsimhapur,\t1971  Labour\nIndustrial Cases 127 M.P. disagreed with.\nUnion  of  India v. S.H. Sheth and Anr.,<\/a> (1977) 4  SCC\t193,\nCorpus\tJuris Secundum, Vol. 48 p. 973 and Vol. 67  v.\t227;\nJurisprudence  by Paton 3rd Ed. by Derham; Jurisprudence  by\nSalmond,  12th Ed. by Fitzgerald, and American\tConstitution\nedited by Corwin; referred to.\n2.   It is manifestly plain that there is no relationship of\nmaster\tand  servant,  employer\t and  employee\tbetween\t the\nPresident  and the Judge of the High Court, because a  Judge\nis not a Government servant so as to be governed by  Article\n310  of\t the  Constitution.   A\t Judge\tof  the\t High  Court\nappointed  under  Art.\t217 has a special status  and  is  a\nconstitutional functionary appointed under the provisions of\nthe  Constitution by the President.  The mere fact that\t the\nPresident appoints him does not make him an employer of\t the\nJudge,\tin  appointing\ta  Judge,  the\tPresident  exercises\ncertain\t constitutional\t functions as  contained-in  Article\n217(1).\t It is, therefore, indisputable that a Judge of\t the\nHigh  Court enjoys a special status under the  Constitution,\nbecause\t of  the very high position that he holds  and\tthe,\ndignity\t and decorum of the office that he has to  maintain.\n[37 D-H]\nUnion of India v. Sankalchand Himatlal Sheth & Anr.,<\/a>  [1978]\n1 S.C.R. 423; followed.\n\n\n\nJUDGMENT:\n<\/pre>\n
CIVIL  APPELLATE JURISDICTION :- Civil Appeals Nos.  2644  &
\n2655 of 1977.\n<\/p>\n
(From  the Judgment and Order dt. 28th October, 1977 of\t the
\nAllahabad High Court in Civil Misc.  Writ No. 1172 of 1977).
\nS.   V. Gupte, Attorney General and Soli J. Sorabjee,  Addl.
\nSolicitor  General. for the Appellant in C.A. No. 2644 &  R.
\nP. Bhat, R. N.\n<\/p>\n
Sachthey & Girish Chandra for the Appellant in C.A. Mo. 2644
\n& Respdt. 2 in C.A. 2655\/77.\n<\/p>\n
F.   S. Nariman, S. P. Gupta, Harish Chandra, H. K. Puri, M.
\nC. Dhingra and Vivek Sethi for the Appellant in C.A. 2655  &
\nRespdt. 2 in CA 2644\/77.\n<\/p>\n
15<\/span><\/p>\n
Jagdish\t Swarup\t (in CA 2655\/77), Yogeshwar  Prasad  (in  CA
\n2644\/77)  and  G. N. Verma, A. N.  Srivastava,\tMool  Behari
\nSaxena, Pramod Swarup, Miss Rani Arora & Miss Meera Bali for
\nRespondent
\nNo. 1 in both appeals.\n<\/p>\n
The following Judgments were delivered
\nSARKARIA,  J.-By a short Order, dated December 8,  1977,  we
\n(by majority) accepted these two appeals and announced\tthat
\na   reasoned   judgment\t  shall\t follow\t  in   due   course.
\nAccordingly, we are now rendering the same.
\nWhether\t a High Court Judge, who sends to the  President,  a
\nletter in his own hand, intimating to resign his office with
\neffect from a future date, is competent to withdraw the same
\nbefore\tthat date is reached-is the principal question\tthat
\nfalls  for  consideration  in these  two  appeals,  directed
\nagainst\t a  judgment, dated October 28, 1977,  of  the\tHigh
\nCourt of Judicature at Allahabad, allowing the writ petition
\nof Shri Gopal Chandra Misra, respondent herein, and  issuing
\na   direction  under  Article  226  of\t the   Constitution,
\nrestraining Shri Satish Chandra (hereinafter referred to  as
\nAppellant  2) from functioning a; a Judge of  the  Allahabad
\nHigh Court.\n<\/p>\n
Appellant  2 was appointed to the High Court of Allahabad  a
\nAdditional  Judge on October 7, 1963, and a permanent  Judge
\nor  September 4, 1967.\tHe will be attaining the age  of  62
\nyears  of  September  1, 1986.\tOn May 7  1977,\t he  sent  a
\nletter\tunder his hand addressed to the President of  India,
\nthrough a messenger.  This letter may be reproduced as below
\n“TO
\nThe President of India,
\nNew Delhi.\n<\/p>\n
Sir,
\nI beg to resign my office as Judge High Court of  Judicature
\nAllahabad.\n<\/p>\n
I will be on leave till 31st of July, 1977.  My\t resignation
\nshall I effective on 1st of August, 1977.\n<\/p>\n
With my, respects.\n<\/p>\n
Yours faithfully,
\nSd\/- Satish Chandra.”\n<\/p>\n
16<\/span><\/p>\n
On  July  15, 1977, Appellant 2 wrote to  the  President  of
\nIndia another letter in these terms
\n“TO
\nThe President of India,
\nNew Delhi.\n<\/p>\n
Sir,
\nI beg to revoke and cancel the intention expressed by me  to
\nresign\ton 1st of August, 1977, in my letter dated 7th\tMay,
\n1977.  That communication may very kindly be treated as null
\nand void.\n<\/p>\n
Thanking you and wishing to remain.\n<\/p>\n
Yours sincerely
\nSd\/- Satish Chandra.”\n<\/p>\n
The  receipt  of this letter of\t revocation  or\t withdrawal,
\ndated  July  15,  1977, was acknowledged by Shri  T.  C.  A.
\nSrinivasavardhan,  Secretary,  Ministry of  Law,  Justice  &
\nCompany\t Affairs,  New Delhi. as per his D.O.  No.  2\/14\/77-
\nJus., dated July 28, 1977.  By a separate letter,  Appellant
\n2  cut\tshort his leave and resumed duty as a Judge  of\t the
\nAllahabad  High\t Court on July 16, 1977, and from  July\t 18,
\n1977, he commenced sitting in the Court and deciding cases.
\nOn August 1, 1977, Shri Gopal Chandra Misra, an Advocate  of
\nthe  High Court, filed a petition under Article 226  of\t the
\nConstitution, contending that the resignation, dated May  7,
\n1977,  of Appellant 2, having been duly communicated to\t the
\nPresident  of  India in accordance with\t the  provisions  of
\nArticle\t 217(1), proviso (a) of the Constitution, was  final
\nand  irrevocable, and as a result, Appellant 2 had cased  to
\nbe a Judge of the Allahabad High Court with effect from\t May
\n7,  1977, or, at any rate, with effect from August 1,  1977;
\ntherefore,  his continuance to function as a Judge from\t and
\nafter August 1, 1977, was usurpation of the office of a High
\nCourt Judge, which was a public office.\t On these  premises,
\nthe writ petitioner prayed for a writ, order or direction in
\nthe  nature of quo warranto calling upon Jr. Satish  Chandra
\nto show under what authority he was entitled to unction\t and
\nwork as a Judge of the High Court.  The petition came up for
\nfinal hearing before a Bench of five learned Judges of\tthat
\nCourt, which by a majority of 3 against 2, allowed the\twrit
\npetition  and issued the direction aforesaid.  Against\tthat
\njudgment, these two appeals, on a certificate granted by the
\nHigh Court under Articles 132 and 133(1) of the Constitution
\nhave been filed before this Court.  Civil Appeal No. 2644 of
\n1977  has  been preferred by the Union of India,  and  Civil
\nAppeal No. 2655 of 1977 by Shri Satish Chandra.
\nA preliminary objection was raised by Shri Yogeshwar Prasad,
\nlearned\t counsel  for  the respondent,\tShri  Gopal  Chandra
\nMisra, that the Union of India has no locus standi to prefer
\nan appeal against the
\n17<\/span>
\nOrder  of the High Court.  Simultaneously, with the  raising
\nof this objection at the bar, a petition to that effect\t was
\nalso  presented\t to  us,  directly.   The  grounds  of\tthis
\nobjection, as canvassed by Shri Yogeshwar Prasad, are :-\n<\/p>\n
\t      (a)   That  the  Union  of  India\t was  joined
\n\t      merely  a\t pro  form  a  party  in  the\twrit
\n\t      petition,\t inasmuch as no relief\twas  claimed
\n\t      against it;\n<\/p><\/blockquote>\n
\t      (b)   That  the Union of India is not a  party
\n\t      aggrieved\t by  the Order of  the\tHigh  Court,
\n\t      because no relief has been granted against it;\n<\/p><\/blockquote>\n
\t      (c)   That the Union of India is not a  person
\n\t      interested; and\n<\/p><\/blockquote>\n
\t      (d)   That  the appeal by the Union  of  India
\n\t      will  not further any public policy;  that  it
\n\t      has  already  incurred  heavy  expenditure  in
\n\t      defending\t the action of an individual  person
\n\t      after  he has relinquished his  office.\tSuch
\n\t      expenditure is not permissible and should\t not
\n\t      be encouraged.\n<\/p><\/blockquote>\n
We find no merit in this objection.\n<\/p>\n
The Union of India was impleaded as a respondent in the case
\nbefore\tthe High Court by the writ petitioner, himself.\t  It
\nfiled  a counter-affidavit contesting the writ\tpetitioner’s
\nclaim.\n<\/p>\n
Mr.  Soli Sorabji, Additional  Solicitor-General,  addressed
\narguments  before the High Court on behalf of the  Union  of
\nIndia.\t No  objection to the locus standi of the  Union  of
\nIndia to contest the writ petition was raised, at any stage,
\nbefore the High Court.\tIt is, therefore, not correct to say
\nthat  the Union of India was not a contesting party  in\t the
\nCourt below.\n<\/p>\n
As rightly pointed out by the learned Attorney General,\t the
\nUnion of India is vitally interested in the case.  It is the
\nPresident of India who had appointed Appellant 2 as a Judge,
\nand the stand of the Union of India throughout has been that
\nthe withdrawal of the intiniation to resign by the Judge, is
\nvalid  and therefore, he continues to hold the office  of  a
\nJudge even after August 1, 1977, but the High Court has held
\notherwise.   The  Union of India, therefore, has  reason  to
\nfeel aggrieved by the decision of the High Court.
\nIn  order  to  give a person locus standi  to  appeal  on  a
\ncertificate ranted under any clause of these Articles it  is
\nnecessary  that he was a “party in the case before the\tHigh
\nCourt The Union of India was admittedly such a party  having
\na  stake  in the dispute.  The substantial question  of\t law
\ninvolved in the case, is of general importance and  concerns
\nthe interpretation of the Constitution.\n<\/p>\n
We   are  not  concerned  with\tthe  matter   of   incurring
\nexpenditure by the Union of India; whether it is  justified,
\nproper or not.\tWe are
\n18<\/span>
\nsurely of the view that the Union had a substantial interest
\nin  this  proceeding.  Thus, from every point of  view,\t the
\nUnion  of India is entitled to come in appeal to this  Court
\nand question the correctness of the High Court’s finding  on
\nthe question of law involved.  We, therefore, overruled\t the
\npreliminary  objection, and requested the learned  Attorney-
\nGeneral to proceed with his address.\n<\/p>\n
The  contentions advanced by the  learned  Attorney-General,
\nMr.  Gupte,  on\t behalf\t of  the  Union\t of  India,  may  be
\nsummarised as follows :\n<\/p>\n
\t      (i)   ‘Resignation’  within the  contemplation
\n\t      of Proviso (a), to Article 217(1), takes place
\n\t      on  the  date on which the Judge\tof  his\t own
\n\t      volition chooses to sever his connection\twith
\n\t      his office, and not on any other date.   Since
\n\t      in terms of the letter, dated May 7, 1977, the
\n\t      Judge  proposed  to sever his  link  with\t his
\n\t      office  with  effect from August 1,  1977,  he
\n\t      could hot be said to have resigned his  office
\n\t      within  the meaning of Proviso (a) on  May  7,
\n\t      1977, or at any time before the arrival of the
\n\t      prospective date indicated by him.\n<\/p><\/blockquote>\n
\t      (ii)  The\t letter, dated May 7, 1977,  written
\n\t      and sent by Appellant 2 to the President, read
\n\t      as  a  whole,  is\t a  mere  intimation  of  an
\n\t      intention\t to  resign  from  a  future   date.
\n\t      Before  the arrival of that date, it  was\t not
\n\t      final  and  complete, nor\t a  “juristic”\tact,
\n\t      because  it had no legal effect and could\t not
\n\t      sever the link of the Judge with his office or
\n\t      cut short its tenure.\n<\/p><\/blockquote>\n
\t      (iii) Since  the mere sending of\tthe  letter,
\n\t      dated  May 7, 1977 to the President,  did\t not
\n\t      constitute   a  final  and  complete  act\t  of
\n\t      resignation,  nor a juristic act, it could  be
\n\t      withdrawn\t at any time before August  1,\t1977
\n\t      upto which date it was wholly inoperative\t and
\n\t      ineffective.\n<\/p><\/blockquote>\n
\t      (iv)  The\t withdrawal  by Appellant 2  of\t his
\n\t      proposal\tto  resign, does not  offend  public
\n\t      interest.\t  The common law doctrine of  public
\n\t      policy cannot be invoked in such a case [Gheru
\n\t      Lal v. Mahadeo Das(1)].\n<\/p><\/blockquote>\n
\t      (v)   The\t general  principle is that  in\t the
\n\t      absence of a provision prohibiting withdrawal,
\n\t      an intimation to resign from a future date can
\n\t      be withdrawn at any time before it operates to
\n\t      terminate the employment or the connection  of
\n\t      the resignor with his office.\n<\/p><\/blockquote>\n
This  principle, according to Mr. Gupte, was  enunciated  by
\nthe Supreme Court as far back as 1954 in Jai Ram v. Union of
\nIndia<\/a>(2);  and followed by the Allahabad, Kerala, Delhi\t and
\nMadhya Pradesh.\n<\/p>\n
(1)  [1959] Supp. 2 S.C.R. 406,
\n(2)  A.I.R. 1954 S.C. 584.\n<\/p>\n
19<\/span><\/p>\n
High  Courts  in  these\t cases\t:  Sanker  Datt\t Shukla\t  v.
\nPresident,  Municipal Board, Auraiya & Anr.(1);\t Bahori\t Lal
\nPaliwal\t  v.   District\t Magistrate,   Bulandshahar(2);\t  M.
\nKunjukrishnan  Nadar v. Hon’ble Speaker, Kerala\t Legislative
\nAssembly & Ors(3); Y. K. Mathur & Anr. v. The  Commissioner,
\nMunicipal  Corporation\tof Delhi & Ors.(4);  Bhairon  Singh,
\nVishwakarma  v.\t Civil Surgeon,\t Narsimhapur(5).   The\tsame
\nprinciple  has\tbeen  reiterated in Raj Kumar  v.  Union  of
\nIndia(6).\n<\/p>\n
Mr. Gupte further referred to the case, Rev.  Oswald  Joseph
\nReichal\t v.  The  Right Rev John  Fielder,  Lord  Bishop  of
\nOxford<\/a>(7).  decided by the House of Lords in England,  which
\nhas  been relied upon by the High Court-and  submitted\tthat
\nReichel’s  case\t stood\ton its own  facts  and\twas  clearly
\ndistinguishable.\n<\/p>\n
Mr.  F. S. Nariman, appearing for Appellant 2,\tadopted\t the
\narguments  of Mr. Gupte.  He reiterated with emphasis,\tthat
\nthe  expression\t ” resign his office” used in  Proviso\t(a),
\nmeans “relinquish or vacate his office”, and the requirement
\nof  this  expression is not satisfied unless and  until\t the
\nwriting\t sent  by the Judge effects severance  of  the\tlink
\nbetween the Judge and his office and terminates his  tenure.
\nIt  is submitted that by holding that though the  letter  of
\nresignation  in its terms, would effect termination  of\t the
\ntenure prospectively from 1-8-77, yet it would be deemed  to
\nhave  caused immediately on its despatch to and\t receipt  by
\nthe President on 7-5-77, itself, curtailment of the  Judge’s
\ntenure\tof  office  up\ttill  1-8-77,  the  High  Court\t has
\nengrafted in Proviso (a), a wholly unwarranted fiction.
\nAs  against the above, Mr. Jagdish Swarap,  learned  counsel
\nfor  the  Respondent has substantially reiterated  the\tsame
\narguments  which  found\t acceptance  with  the\tHigh   Court
\n(majority).\n<\/p>\n
Article\t 217(1)\t fixes the tenure of the office\t of  a\tHigh
\nCourt  Judge  It, provides that a Judge\t shall\thold  office
\nuntil he attains the age of 62 years.  The three clauses  of
\nthe Proviso to Article 217(1) indicate that this tenure\t can
\nbe terminated before the Judge attains the age of 62  years,
\nin four contingencies, namely, where he-\n<\/p>\n
\t      (i)   resigns  his office in the\tmanner\tlaid
\n\t      down in its clause (a);\n<\/p><\/blockquote>\n
\t      (ii)  is removed from his office in the manner
\n\t      provided\tin Article 124(4) [vide\t its  clause\n<\/p><\/blockquote>\n
\t      (b)];\n<\/p><\/blockquote>\n
\t      (iii) is\tappointed  a Judge  of\tthe  Supreme
\n\t      Court [vide its clause (c) ];\n<\/p><\/blockquote>\n
\t      (iv)  is\ttransferred to any other High  Court
\n\t      in India.\n<\/p><\/blockquote>\n
(1)  A.I.R. 1956 All. 70.\n<\/p>\n
(2)  A.I.R. 1956 All. 511 F.B.= (1956)2 All. 593 F.B.
\n(3)  A.I.R. 1964 Kerala 194.\n<\/p>\n
(4)  A.I.R. 1974 Delhi 58.\n<\/p>\n
(5)  [1971] Labour industrial Cases 127 MP,
\n(6)  [1968] 3 S.C.R. at p. 860.\n<\/p>\n
(7)  14 A.C. 259.\n<\/p>\n
 20<\/span><\/p>\n
Here,  in this case, we, have to focus attention  on  clause\n<\/p>\n
(a) of the Proviso.  In order to terminate his tenure  under
\nthis  clause,  the Judge must do three volitional  things  :
\nFirstly,  he  should  execute a “writing  under\t his  hand”.
\nSecondly,   the\t  writing  should  be  “addressed   to\t the
\nPresident”.  Thirdly, by that writing he should “resign\t his
\noffice’.   If  any  of\tthese things is\t not  done,  or\t the
\nperformance of any of them is not complete, clause (a)\twill
\nnot  operate  to cut short or terminate the  tenure  of\t his
\noffice.\n<\/p>\n
Ile main reasoning adopted by the learned Judges of the High
\nCourt,\t(per R. B. Misra, M. N. Shukla and C. S.  P.  Singh,
\nJJ.)  appears  to be that since the act of  Appellant  2  in
\nwriting and addressing the letter, dated the 7th May,  1977,
\nto the President, fully satisfied the three-fold requirement
\nof clause (a) of the Proviso, and nothing more was  required
\nto be done under that clause either by the “Judge” or by the
\nPresident at the other end, the resignation was\t “complete”,
\n“final” and “absolute”.\t It was a complete “juristic” act as
\nimmediately on its receipt by the President on the 7th,\t May
\n1977, itself,,it had the effect of cutting short the  tenure
\nof  the\t Judge\tup till the 1st August\t1977;  and,  in\t the
\nabsence\t of  a\tconstitutional\tprovision  warranting\tthat
\ncourse, it could not be withdrawn or revoked even before the
\ndate, August 1, 1977, on which in terms of the letter  dated
\nthe  7th  May, 1977, the resignation was  to  be  effective.
\nWithdrawal  is\talways\tlinked with  acceptance.   Where  no
\nacceptance is required and the resignation has been made  in
\naccordance  with the prescribed procedure, the process\tgets
\nexhausted  and\tthe  resignation becomes  a  fait  accompli.
\nArticle\t 217(1), Proviso (a) of the Constitution is a  self-
\ncontained provision.  It gives the Judge a unilateral  right
\nto   cut  short\t his  tenure  by  following  the   procedure
\nprescribed therein, of his own volition.  Such a resignation
\nto   be\t effective  does  not  require\tacceptance  by\t the
\nPresident.   Article 217 does not give a right\tto  withdraw
\nthe  resignation, once given in accordance with\t the  manner
\nprescribed therein.  Since Article 217(1), Proviso (a)\tsets
\nout a complete machinery with regard to the resignation by a
\nJudge,\tthe  right  to\twithdraw  a  resignation  cannot  be
\nimplied,  the maxim being “expressum facit cessare  tacitum”
\n(when  there  is  express mention of  certain  things,\tthen
\nanything not mentioned is excluded).  Recognition of a right
\nof  withdrawal of resignation will leave the door wide\topen
\nto abuse and offend public policy.\n<\/p>\n
It may be observed that the entire edifice of this reasoning
\nis   founded  on  the  supposition  that  the  “Judge”\t had
\ncompletely performed everything which he was required to  do
\nunder  Proviso (a) to Article 217(1).  We have seen that  to
\nenable\ta Judge to terminate his term of office by  his\t own
\nunilateral  act,  he has to perform three  things.   In\t the
\ninstant case, there can be no dispute about the\t performance
\nof  the first two, namely : (i) he wrote a letter under\t his
\nhand  (ii) addressed to the President.\tThus, the first\t two
\npillars\t of  the ratiocinative edifice raised  by  the\tHigh
\nCourt  rest  on sound foundations.  But, is  the  same\ttrue
\nabout  the  third, which indisputably is the chief  prop  of
\nthat  edifice ? Is it a completed act of resignation  within
\nthe  contemplation  of\tProviso (a) ? This  is\tthe  primary
\nquestion that calls for an answer.  If the answer to this
\n21<\/span>
\nquestion is found in the affirmative, the appeals must fail.
\nIf  it be in the negative, the foundation for the  reasoning
\nof the High Court will fail and the appeals succeed.
\nWell then, what is the correct connotation of the expression
\n“resign his office” used by the founding fathers, in Proviso\n<\/p>\n
(a) to Article 217(1) ?\n<\/p>\n
‘Resignation’ in the Dictionary sense, means the spontaneous
\nrelinquishment of one’s own right.  This is conveyed by\t the
\nmaxim : Resionatio est juris propii spontanea refutatio (See
\nCarl Jowitt’s Dictionary of English Law).  In relation to an
\noffice,\t it connotes the act of giving up  or  relinquishing
\nthe  office.  To “relinquish an office’ means to  “cease  to
\nhold”  the  office,  or to “loose hold of  the\toffice\t(cf.
\nShorter\t Oxford Dictionary); and to “loose hold of  office”,
\nimplies to “detach”, “unfasten”, “undo or untie the  binding
\nKnot  or  link”\t which\tholds one  to  the  office  and\t the
\nobligations and privileges, that go with it.
\nIn  the\t general  juristic  sense,  also,  the\tmeaning\t  of
\n“resigning office” is not different.  There also, as a rule,
\nboth, the intention to give tip or relinquish the office and
\nthe concomitant act of its relinquishment, are necessary  to
\nconstitute  a complete and operative resignation (see,\te.g.
\nAmerican  Jurisprudence,  2nd  Edn.,  Vol.  15A,  page\t80),
\nalthough the act of relinquishment may take different  forms
\nor, assume a unilateral or bilateral character, depending on
\nthe  nature of the office and the conditions  governing\t it.
\nThus,  resigning office necessarily involves  relinquishment
\nof the, office which implies cessation or termination of, or
\ncutting asunder from the office.  Indeed, the completion  of
\nthe  resignation  and the vacation of the  office,  are\t the
\ncasual and effectual aspects of one and the same event.
\nFrom the above dissertation, it emerges that a complete\t and
\neffective  act of resigning office is, one which severs\t the
\nlink  of  the resignor with his office\tand  terminates\t its
\ntenure.\t  In  the  context of  Article-\t 217(1),  this\ttest
\nassumes\t the  character\t of a  decisive\t test,\tbecause\t the
\nexpression “resign his office”-the construction of which  is
\nunder  consideration-occurs in a, Proviso which\t excepts  or
\nqualifies the substantive clause fixing the office-tenure of
\nthe Judge upto the age of 62 years.\n<\/p>\n
Before\tapplying  this\ttest  to the case  in  hand,  it  is
\nnecessary to appreciate the true nature of the letter, dated
\nMay 7, 1977, sent by the Judge to the President.
\nThe  substantive  body\tof  this  letter  (which  has\tbeen
\nextracted  in full in a foregoing part of this judgment)  is
\ncomprised  of three sentences only.  In the first  sentence,
\nit  is\tstated: “I beg to resign my office  as\tJudge,\tHigh
\nCourt  of Judicature at Allahabad.” Had this sentence  stood
\nalone,\tor been the only content of this letter,,  it  would
\noperate\t as a complete resignation in  praesenti,  involving
\nimmediate  relinquishment of the office and  termination  of
\nhis tenure as Judge.  But this is not so. The first sentence
\nis immediately followed by two more, which read
\n22<\/span>
\n“I will be on leave till 31 .7. 1977.  My resignation  shall
\nbe  effective  on 1.8.1977.”, The first sentence  cannot  be
\ndivorced  from\tthe context of the other two  sentences\t and
\nconstrued  in isolation.  It has to be read along  with\t the
\nsucceeding  two\t which\tqualify it.  Construed\tas  a  whole
\naccording  to its tenor, the. letter dated May 7,  1977,  is
\nmerely an intimation or notice of, the writer’s intention to
\nresign\this office as Judge, on a future date, viz.,  August
\n1,  1977.  For the sake of convenience, we might  call\tthis
\ncommunication as a prospective or potential resignation, but
\nbefore\tthe  arrival of the indicated future,  date,  it  is
\ncertainly not a complete and operative resignation  because,
\nby  itself, it did not and could not, sever the writer\tfrom
\nthe office of the Judge, or terminate his tenure as such.
\nThus  tested.  sending of the letter dated May\t7,  1977  by
\nAppellant 2 to the President, did not constitute a  complete
\nand  operative resignation within the contemplation  of\t the
\nexpression  “resign  his  office” used\tin  Proviso  (a)  to
\nArticle 217(1).\t Before the,arrival of the indicated  future
\ndate (August 1, 1977), it was wholly inert, inoperative\t and
\nineffective,  and could not, and in fact did not, cause\t any
\njural effect.\n<\/p>\n
The, learned Judges of the High Court (in majority) conceded
\nthat Appellant 2 “cannot be taken to have resigned on a date
\nprior to 1st August, 1977”, and “the vacation of a, seat may
\nbe  on\t(the) future date”, “because he made his  choice  to
\nresign\tfrom  1st  August 1977”, yet, they  hold  that\t“the
\nfactum of resignation became complete the moment  respondent
\n1 (Shri Satish Chandra) in his handwriting, sent a letter of
\nresignation  to\t the  President of  India”  and\t on  7.5.77,
\nitself,\t cut short the date of retirement of the Judge\tfrom
\n1-9-86\tto 1-8-77, and there could be “no withdrawal of\t the
\nsame unless the Constitution so provided.”
\nWith  respect,\twe  venture to say that\t this  reasoning  is
\nconvoluted logic spiraled up round a fiction for which there
\nis   no\t foundation  in\t the  statute.\t To  say  that\t the
\nresignation  or\t relinquishment of his office by  the  Judge
\ncould not take place before 1 .8. 77, and yet, the factum of
\nresignation   became   complete\t on  7-5-77,  Would   be   a
\ncontradiction\tin  terms.   To\t get  over   this   inherent
\ncontradiction, the High Court (by majority) has introduced a
\ntwo-fold fiction: (1) That if a written communication to the
\nPresident,  the\t Judge chooses to resign his office  from  a
\nfuture date, the resignation will be deemed to be  effective
\nand  complete from the moment the communication is  sent  to
\nthe President and received by him. (2) That since it has not
\nbeen   provided\t  in  Proviso  (a)  or\telsewhere   in\t the
\nConstitution,  that  such communication of  a  “prospective”
\nresignation can be withdrawn, its withdrawal would be deemed
\nto  have  been\tprohibited, on the  maxim  ‘expressum  facit
\ncessare tacitum.\n<\/p>\n
No.  1\tis  manifestly\tincompatible  with  the\t letter\t and
\nintendment   of\t Article  217(1),  since  by   deeming\t the
\nresignation to have taken place on a date different from the
\ndate   chosen  by  the\tJudge  it  subverts  his   exclusive
\nConstitutional right to resign,, his office with effect from
\na  date\t of  his choosing.  No. 2  is  equally\tunjustified.
\nThere\tis  nothing  in\t Proviso(a)  or\t elsewhere  in\t the
\nConstitution which expressly or implied-\n<\/p>\n
23<\/span><\/p>\n
ly forbids the withdrawal of a communication by the Judge to
\nresign his office before the arrival of the date on which it
\nhas  intended  to take effect.\tIndeed,\t such  a  futuristic
\ncommunication  or prospective resignation does\tnot,  before
\nthe indicated future date is reached, become a complete\t and
\noperative act of ‘resigning his office’ by the Judge  within
\nthe contemplation of Proviso (a) to Article 217(1).
\nThus  considered,  it is clear that merely  by\twriting\t the
\nletter to the President on May 7, 1977, proposing to  resign
\nwith effect from August 1, 1977, the Judge had not done\t all
\nwhich he was required to do to determine his tenure, of\t his
\nown  volition, under Proviso (a) to Article 217(1).  He\t had
\nnot, as yet, resigned his office on May 7, 1977, itself,  he
\nhad not done everything which was necessary to complete\t the
\nrequirement  of the expression “resign his office”.  He\t had
\nnot-relinquished  his office and thus delinked himself\tfrom
\nit.  He had not-as the learned Judges of the High Court have
\nerroneously  assumed-crossed the Rubicon-Ribicon  was  still
\nafar, 85 days away in the hazy future.\tAt any time,  before
\nthat dead line (August 1, 1977) was reached, the Judge could
\nchange his mind and choose riot to resign, and withdraw\t the
\ncommunication dated May 7, 1977.\n<\/p>\n
We   have  already  seen  that\tthere  is  nothing  in\t the
\nConstitution or any other law which prohibits the withdrawal
\nof the communication to resign from a future date, addressed
\nby  a, Judge to the President, before it becomes  operative.
\nCould  he  then be debarred from doing so on the  ground  of
\npublic policy?\n<\/p>\n
In this connection, Shri Jagdish Swarup contended that.\t but
\nfor  the words “President and Vice-President”, the  language
\nof Proviso (a,) to Article 217(1) is identical with that  of
\nProviso\t (a)  to Article 56 (1) of  the\t Constitution  which
\ngives  an  identical right to, the President to\t resign\t his
\noffice\tby  writing under his hand, addressed to  the  Vice-
\nPresident.  If this Court involves a principle-proceeded the
\nargument—whereby   it\t  permits   a  Judge   who,   is   a
\nConstitutional\t functionary  of  the  same  class  as\t the
\nPresident or the Vice-President, whereby he can withdraw his
\nresignation,  it  will\tlead  to  startling  results.\t The
\nConstitutional functionaries would misuse such implied power
\nof  withdrawal of resignation.\tThe President may  hold\t the
\nParliament  to\transom\tand make a  farce  of  Parliamentary
\nsovereignty  and  the functioning of the  Constitution.\t  On
\nthese premises, it was urged that public policy demands that
\nno.  such  interpretation  should  be  put  on\tthese  Cons-
\ntitutional provisions which would lead to abuse of power  by
\nthe Constitutional functionaries.\n<\/p>\n
The contention appears to be misconceived.
\nThe   argument\t assumes  that\ta  tender   of\t prospective
\nresignation  is always motivated by sinister  considerations
\nand,  therefore,  to permit its withdrawal is never  in\t the
\npublic interest.  We are unable to concede this as a rule of
\nuniversal application.\tAny number of cases are\t conceivable
\nwhere a prospective resignation is tendered with the best of
\nmotives.   A  Judge renowned for his  conscientiousness\t and
\nforensic skill may send an intimation under his hand to\t the
\nPresident proposing to,
\n24<\/span>
\nresign\tfrom  a future date, 2 months  away,  covering\tthis
\ninterregnum by two months’ leave due to him, in the  belief,
\nfounded\t on his doctor’s advice, that he is stricken with  a
\nmalady\twhich  will progressively render him  deaf  in\ttwo.
\nmonths’\t time.\t The motive behind the, tender is  that\t the
\nJudge feels that he will no longer be able to discharge\t his
\nofficial   duties   to\tthe  entire  satisfaction   of\t his
\nconscience.   But before the date on which  the\t prospective
\nresignation  is\t to take effect, a surgical  operation\tcom-
\npletely\t and  permanently  cures  him  of  the\tdisease\t and
\nrestores  his full hearing power, and the Judge\t immediately
\nthereupon,  sends a communication withdrawing the tender  of
\nhis  resignation.   Will  not  such  withdrawal\t be  in\t the
\ninterest  of  the  public and justice to the  Judge  ?\tCon-
\nversely,  will\tnot refusal of such withdrawal\tdeprive\t the
\npublic of the benefit of his forensic talents in  exposition
\nof  law and at the same time work hardship and injustice  to
\nthe Judge ?\n<\/p>\n
It must be remembered that the doctrine of public policy  is
\nonly  a\t branch of the common law, and its  principles\thave
\nbeen crystallized and its scope well delineated by  judicial
\nprecedents.   It  is sometimes described as “a\tvery  unruly
\nhorse”.\t   Public  policy,  as\tBurroughs,  J.\tput  it\t  in
\nFauntleroy’s  case,  “is a restive horse and  when  you\t get
\nastride of it, there is no knowing where it will carry you”.
\nPublic\t policy\t  can,\tthere  fore,  be  a   very   unsafe,
\nquestionable and unreliable ground for judicial decision and
\nCourts\tcannot, but be very cautious to mount this  treacle,
\nrows horse even if they must.  This doctrine, as pointed out
\nby  this  Court\t in Gherulal Parekh’s case  (ibid),  can  be
\napplied\t only in a case where clear and undeniable, harm  to
\nthe public is made out.\t To quote the words of Subba Rao, J.
\n(as  he\t then  was)  :\t“Though\t theoretically\tit  may\t  be
\npermissible  to, evolve a new head (of public policy)  under
\nexceptional  circumstances  of\ta  changing  world,  it\t  is
\nadvisable  in the, interest of stability of society  not  to
\nmake  any  attempt  to discover new heads  in  these  days”.
\nThere are no circumstances, whatever, which would show\tthat
\nthe  withdrawal\t of the resignation by the  appellant  would
\ncause  harm  to the public or even to  an  individual.\t The
\ncontention, therefore, is repelled.\n<\/p>\n
Shri Jagdish Swarup’s argument that a right to withdraw such
\na resignation will have wide and unhealthy repercussions  on
\nthe  other  Constitutional functionaries,  particularly\t the
\nPresident,  and encourage them to abuse this right,  appears
\nto  be a false alarm.  We are here considering the  case  of
\nwithdrawal  of a ‘prospective resignation’ by a Judge  of  a
\nHigh Court and not of any other Constitutional\tfunctionary.
\nit  may\t not be correct to say that  whatever  principle  we
\nevolve\twith  reference\t to the\t interpretation\t of  Article
\n217(1),\t  Proviso   (a),  will\tautomatically\tgovern\t the
\nwithdrawal   of\t such  a  prospective  resignation  by\t the
\nPresident  of  India because the provisions  of\t Article  56
\nrelating  to a resignation by the President are not, in\t all
\nrespects, identical with those of Article 217.\tThere is  no
\nprovision  in  Article 217 corresponding to  clause  (2)  or
\nclause (1) (c) of Article 56, and in this case in accordance
\nwith the well-settled practice of the court, we refrain from
\nexpressing any opinion with regard to the interpretation and
\neffect of these distinctive provisions in Article 56.\n<\/p>\n
25<\/span><\/p>\n
We  are\t also unable to agree with the High Court  that\t the
\nmere  sending of the letter, dated May 7, 1977 by the  Judge
\nto the President and its receipt by the latter,\t constituted
\na  complete juristic act.  By itself, it did not operate  to
\nterminate  the office tenure of the Judge, and as such,\t did
\nnot  bring  into existence any legal effect.  For  the\tsame
\nreason, the principle underlying Section 19 of the  Transfer
\nof Property Act is not attracted.\n<\/p>\n
The  general  principle\t that  emerges\tfrom  the  foregoing
\nconspectus,  is\t that  in the absence  of  anything  to\t the
\ncontrary   in  the  provisions\tgoverning  the\t terms\t and
\nconditions of the office\/post, an intimation in writing sent
\nto  the competent authority by the incumbent, of his  inten-
\ntion  or  proposal to resign his office\/post from  a  future
\nspecified  date, can be Withdrawn by him at any time  before
\nit becomes effective. i.e. before it effects termination  of
\nthe tenure of the office\/post or the employment.
\nThis  principle first received the imprimatur of this  Court
\nin  the context of a case of a self-sought  retirement\tfrom
\nservice,  in  Jai Ram v. Union of India<\/a>\t (supra).   In\tthat
\ncase, the plaintiff entered the service of the Government as
\na  Clerk in the Central Research Institute, Kasauli, on\t May
\n7,  1912.  Rule 56(6) (i) of Chapter TX of  the\t Fundamental
\nRules,\twhich regulated the Civil Services, provided that  a
\nministerial servant may be required to retire at the age  of
\n55,  but  should  ordinarily be retained in  service  if  he
\ncontinues  efficient,  till  the  age  of  60  years.\t The
\nplaintiff was to complete 55 years on November 26, 1946.  On
\nthe  7th May 1945. he wrote a letter to the Director of\t the
\nInstitute to the following effect
\n“Sir, having completed 33 years’ service on the 6th instant,
\nI beg permission to retire and shall feel grateful if allow-
\ned to have the leave admissible.”\n<\/p>\n
The  Director  refused\tpermission on the  ground  that\t the
\nplaintiff  could not be spared at that time.  The  plaintiff
\nrenewed\t his prayer by another letter, dated 30th May  1945,
\nand  also,  asked for leave preparatory\t to  retirement-four
\nmonths on average play and the rest on half average pay-from
\n1st of June 1945, or the date of his availing the leave,  to
\nthe date of superannuation which was specifically stated  to
\nbe  the\t 26th  of  November 1946.   This  request  was\talso
\ndeclined.   To subsequent requests to the same effect,\talso
\nmet the same fate.  On May 28, 1946, plaintiff made a fourth
\napplication repeating his request.  This time, the  Director
\nof  the\t Institute  sanctioned\tthe  leave  preparatory\t  to
\nretirement  on average pay for six months from\t1-6-1946  to
\n30-11-1946,  and on half average pay for five months and  25
\ndays  thereafter, the period ending on 25-5-1947.   Just  10
\ndays  before  this period of leave was due to,\texpire,\t the
\nplaintiff  on  May  16,\t 1947 sent  an\tapplication  to\t the
\nDirector stating that he bad not retired and asked for\tper-
\nmission\t to  resume his duties immediately.  In\t reply,\t the
\nDirector  informed  him that he could not  be  permitted  to
\nresume\this,  duties  as  be  had  already  retired,  having
\nvoluntarily proceeded on leave preparatory
\n3-211 SCT\/78
\n26<\/span>
\nto   retirement.    The\t  Plantiff   made   representations.
\nUltimately, the Government of India, by a letter dated 28-4-
\n48  rejected  his  representation,  repeating  the   reasons
\nintimated by the Director earlier to the plaintiff-
\nIn  special appeal before this Court, two points were  urged
\non  behalf  Of the plaintiff-appellant.\t First,\t that  under
\nRule  56(b)  (i),  the age of retirement is not\t 55  but  60
\nyears, and before a Government servant could be required  to
\nretire\tat 55, it is incumbent upon the Government  to\tgive
\nhim  an\t opportunity  to  represent  against  his  premature
\nretirement  in\taccordance with the  provisions\t of  Section
\n240(3) of the Government of India Act, 1935; and since\tthis
\nwas  not  done,\t the order  terminating\t his  services,\t was
\ninvalid.   Second,  that although the plaintiff on  his\t own
\napplication,  obtained leave preparatory to retirement,\t yet
\nthere  was  nothing in the Rules which\tprevented  him\tfrom
\nchanging  his mind at any subsequent time and  expressing  a
\ndesire\tto continue in service, provided hi  indicated\tthis
\nintention before the period his leave expired.
\nB.  K.\tMukherjee,  J. (as he then was),  speaking  for\t the
\nCourt,\tnegatived  the first contention on the\tground\tthat
\nsince  the  plaintiff  had  himself  sought  permission\t for
\nretirement  at\tthe  age  of 55\t years,\t it  was  a  useless
\nformality  to asks him to show cause as to why his  services
\nshould\tnot  be terminated.  While disposing of\t the  second
\ncontention,  which had lost its force in view of the  Courts
\ndecision  on the first point, the Court made  these  crucial
\nobservations :\n<\/p>\n
\t      “It  may\tbe  conceded that it is\t open  to  a
\n\t      servant, who has expressed a desire to  retire
\n\t      from  service  and  applied  to  his  superior
\n\t      officer to give him the requisite\t permission,
\n\t      to  change his mind subsequently and  ask\t for
\n\t      cancellation of the permission thus  obtained;
\n\t      but, be can be allowed to do so as long as  he
\n\t      continues\t in  service and not  after  it\t has
\n\t      terminated.”\n<\/p><\/blockquote>\n
\t      The  rule enunciated above was  reiterated  by
\n\t      this Court in Raj Kumar v. Union of  India(1),
\n\t      in these words :<\/p><\/blockquote>\n
\t      “When  a\tpublic servant has  invited  by\t his
\n\t      letter  of  resignation determination  of\t his
\n\t\t\t    employment,\t  his  services\t  normally   stand
\n,
\n\t      terminated  from the date on which the  letter
\n\t      of resignation is accepted by the\t appropriate
\n\t      authority,  and in the absence of any  law  or
\n\t      rule  governing the conditions of his  service
\n\t      to  the contrary, it will not be open  to\t the
\n\t      public  servant  to withdraw  his\t resignation
\n\t      after  it\t is  accepted  by  the\t appropriate
\n\t      authority.   Till the resignation is  accepted
\n\t      by  the  appropriate authority  in  consonance
\n\t      with  the rules governing the acceptance,\t the
\n\t      public\tservant\t   concerned\thas    locus
\n\t      poenitentiae but not thereafter.”\n<\/p>\n
It  was\t also  observed\t that, on the  plain  terms  of\t the
\nresignation letters of the servant (who was a member of\t the
\nI.A.S.), the resignation became effective as soon as it was,
\naccepted by the appropriate authority.\n<\/p>\n
(1) 1968 3 S.C.R. 857.\n<\/p>\n
27<\/span><\/p>\n
The  learned Judges of the High Court (in majority),  if  we
\nmay say so with respect, have failed to appreciate correctly
\nthe  amplitude and implications of this rule  enunciated  by
\nthis  Court  in Jai Ram v. Union of India<\/a>  (supra).   R.  B.
\nMisra, J. bypassed it casually on the short ground that\t the
\nabove extracted observation was only “casually made” by\t the
\nSupreme Court in a case of retirement, M. N. Shukla, J.\t did
\nnot even refer to it.  C.S.P. Singh, J. tried to distinguish
\nit with the summary observation :\n<\/p>\n
\t      “Jai Ram’s case was a case of retirement,\t and
\n\t      the    request   for    retirement    required
\n\t      acceptance.   The\t act was not  complete\ttill
\n\t      accepted.\t  In such a situation,\tthe  request
\n\t      could  definitely be withdrawn.  This case  is
\n\t      not  helpful  in case where no  acceptance  is
\n\t      required.”\n<\/p><\/blockquote>\n
Before\tus,  Shri  Jagdish Swarup has  reiterated  the\tsame
\nargument.\n<\/p>\n
In  our opinion, none of the aforesaid reasons given by\t the
\nHigh  Court for getting out of the ratio of Jai Ram’s  case,
\n(supra) is valid.\n<\/p>\n
Firstly, it was not a casual enunciation.  It was  necessary
\nto  dispose of effectually and completely the  second  point
\nthat had been canvassed on behalf of Jai Ram.  Moreover, the
\nsame  principle\t was  reiterated pointedly in  1968  in\t Rai
\nKumar’s\t  case.\t  Secondly,  a\tproposal  to   retire\tfrom
\nservice\/office\tand a tender to resign office from a  future
\ndate.,\tfor the purpose of the point under discussion  stand
\non  the\t same footing.\tThirdly, the distinction  between  a
\ncase  where the resignation is required to be  accepted\t and
\nthe one where no acceptance is required makes no  difference
\nto the applicability of the rule in Jai Ram’s case.
\nIt  will bear repetition that the general principle is\tthat
\nin  the\t absence of a legal, contractual  or  constitutional
\nbar,  a\t ‘prospective’ resignation can be withdrawn  at\t any
\ntime  before it becomes effective, and it becomes  effective
\nwhen it operates to terminate the employment or the  office-
\ntenure of the resignor.\t This general rule is equally appli-
\ncable\t to   Government   servants    and    constitutional
\nfunctionaries.\t In  the  case of  a  Government  servant\/or
\nfunctionary   who  cannot,-under  the  conditions   of\t his
\nservice\/or  office, by his own unilateral act  of  tendering
\nresignation,  give up his service\/or office,  normally,\t the
\ntender\tof resignation becomes effective and his  service\/or
\noffice-tenure  terminated,  when  it  is  accepted  by\t the
\ncompetent  authority.\tIn  the case of a Judge\t of  a\tHigh
\nCourt, who is a constitutional functionary and under Proviso\n<\/p>\n
(a)  to Article 217(1) has a unilateral right, or  privilege
\nto resign his office, his resignation becomes effective\t and
\ntenure\tterminated  on the date from which he,\tof  his\t own
\nvolition,  chooses  to\tquit office.  If  in  terms  of\t the
\nwriting\t under\this  hand addressed  to\t the  President,  he
\nresigns in praesanti, the resignation terminates his office-
\ntenure\tforthwith,  and cannot therefore,  be  withdrawn  or
\nrevoked\t thereafter.  But, if he by such Writing chooses  to
\nresign\tfrom a future date, the act resigning office is\t not
\ncomplete  because  it does not terminate his  tenure  before
\nsuch date and the Judge. can at any time before the  arrival
\nof  that  prospective date on which it was  intended  to  be
\neffective,  withdraw it, because the Constitution  does\t not
\nbar such withdrawal.\n<\/p>\n
28<\/span><\/p>\n
The  learned Attorney-General has cited authorities  of\t the
\nAllahabad.   Kerala, Delhi and Madhya Pradesh  High  Courts,
\nwherein\t the rule in Jai Ram’s case was followed.  The\tHigh
\nCourt has tried to distinguish these cases and in regard  to
\nsome  of them, said that they were not rightly decided.\t  We
\ndo not want to burden this judgment with a discussion of all
\nthose  decisions.   It will be sufficient to notice  two  of
\nthem, in which issues analogous to those which arise  before
\nus, were pointedly discussed.\n<\/p>\n
The  first  of\tthose cases is, M.  Kunjukrishnan  Nadar  v.
\nHon’ble\t Speaker, Kerala Legislative Assembly (supra).\t The
\npetitioner  in\tthat  case became a  member  of\t the  Kerala
\nLegislative  on election in February 1960.  On November\t 23,
\n1963, he wrote to the Speaker.\n<\/p>\n
\t      “Sir,
\n\t      As  I wish to devote more time for  meditation
\n\t      and religious purposes, I shall not be able to
\n\t      continue\tas  a  Member  of  the\t Legislative
\n\t      Assembly,\t Kerala.   So,,\t I  request  you  to
\n\t      kindly accept this letter as my resignation as
\n\t      a Member of this Assembly, to take offect from
\n\t      1-12-1963.”\n<\/p><\/blockquote>\n
\t      On  November  26, 1963, the Speaker  read\t the
\n\t      letter in the Assembly, announcing thereby the
\n\t      petitioner’s  resignation\t to take  effect  on
\n\t      December 1, 1963.\n<\/p><\/blockquote>\n
\t      On November 29, 1963, the petitioner wrote  to
\n\t      the Speaker “Sir,
\n\t      In   my  letter  dated  23-11-1963,   1\thave
\n\t      expressed my intention to resign my membership
\n\t      of  the Legislative Assembly from the  1st  of
\n\t      December, 1963.  After mature consideration, I
\n\t      feel  that it will be proper not to resign  at
\n\t      this juncture.\n<\/p><\/blockquote>\n
\t      I\t therefore  hereby  withdraw  my  letter  of
\n\t      resignation dated 23-11-1963.”\n<\/p><\/blockquote>\n
This  letter  was received by the Speaker  on  November\t 30,
\n1963.  This letter was not given heed to, and a Notification
\nwas published in the Kerala Gazette dated December 10, 1963,
\nsaying\tthat  the petitioner “has resigned his seat  in\t the
\nKerala\tLegislative Assembly from 1st December\t1963”.\t The
\npetitioner  challenged\tthis Gazette  Notification,  praying
\nthat  it  be declared null and void and of  no\teffect.\t  He
\nclaimed\t a  further declaration that he continued  to  be  a
\nMember of ‘the Kerala Legislative Assembly.
\nOn  these facts, Article 190(3) of the Constitution,  as  it
\nstood  prior  to  its amendment\t by  Constitution  Amendment
\n(Thirty-third\t Amendment    Act,   1974,    came    up-for
\ninterpretation.\t At that time, the material part of  Article
\n190(3) ran as under
\n“(3).  If a member of a House of the Legislature of a State-\n<\/p>\n
(a)  becomes   subject\tto  any\t of  the   disqualifications
\nmentioned in cl. (1) of Art. 191; or
\n29<\/span>\n<\/p>\n
(b)  resigns his seat by writing under his hand addressed to
\nthe Speaker or the Chairman, as the case may be.
\nhis seat shall thereupon become vacant.”\n<\/p>\n
It will be seen that at that time, there was no provision in
\nthis  Article requiring such resignation to be\taccepted  by
\nthe Speaker before it could become effective.  Clause (b) of
\nArticle\t 190(3), as it stood at that time, was, but for\t the
\nwords “the Speaker or the Chairman” and the last phrase “his
\nseat  shall thereupon become vacant”, identical with  clause\n<\/p>\n
(a)  of\t the  Proviso to Article 217(1).   Indeed,  what  is
\nexpressly  provided  by\t adding the words  “his\t seat  shall
\nthereupon  become vacant” in clause (b) of Art.\t 190(3),  is
\nimplicit in clause (a) of the proviso to Article 217(1).
\nTwo  questions\tarose for determination :  (i)\tWhether\t the
\nletter dated 23-11-63, constituted a valid resignation under
\nArticle\t 190(3);  and  (ii)  if\t so,  whether  it  could  be
\nwithdrawn  by the Member before the future date on which  it
\nwas intended to be effective.  A learned single Judge of the
\nHigh Court answered these questions in the affirmative, with
\nthese observations
\n\t      “……….   the\t  petitioner’s\t letter\t  of
\n\t      November\t23,  1963, has to be held  a  letter
\n\t      resigning his seat in the Assembly on December
\n\t      1, 1963, deposited with the Speaker on  Novem-
\n\t      ber 23, 1963.  It remains. a mute letter\ttill
\n\t      December 1, 1963, when alone it can speak with
\n\t      effect.  On November 29, 1963, the  petitioner
\n\t      has withdrawn that letter by writing under his
\n\t      hand  addressed to the Speaker  himself;……
\n\t      It  is  in effect the  neutralization  of\t the
\n\t      latent vitality in the former letter deposited
\n\t      with  the Speaker.  The  withdrawal  nullifies
\n\t      the  entrustment or deposit of the  letter  of
\n\t      resignation in the hands of the Speaker, which
\n\t      must  thereafter be found to have\t become\t non
\n\t      est  in  the  eye of law.\t The  absence  of  a
\n\t      specific\t  provision   for   withdrawal\t  of
\n\t      prospective resignation in the Constitution or
\n\t      the Rules is immaterial as basic principles of
\n\t      law  and\tprocedure must be  applied  wherever
\n\t      they are relevant.”\n<\/p>\n
R.   B.\t Misra,\t J. felt “difficulty in\t agreeing  with\t the
\nobservation   (in  the\tabove  case)  that  the\t letter\t  of
\nresignation  to\t be  effective\ton  a  future  date  remains
\ndeposited with the Speaker or remains a mute letter till the
\narrival\t of that date when alone it can speak with  effect”.
\nSingh, J. also expressed that this Kerala case had not\tbeen
\ndecided on correct principles.\n<\/p>\n
In  our\t opinion,  what has been extracted  above  from\t the
\ndecision  in  the  Kerala  case,  correctly  enunciates\t the
\nprinciples  that  prospective resignation remains  mute\t and
\ninoperative  till the date on which it was intended to\ttake
\neffect\tis reached, and can be, withdrawn and  rendered\t non
\nest at any time before such date.\n<\/p>\n
The  next decision worthy of notice is Y. K. Mathur  v.\t The
\nMunicipal  Corporation of Delhi (supra).  In that case,\t two
\nMunicipal
\n30<\/span>
\nCouncillors   of  the  Corporation  of\tDelhi\tsent   their
\nresignation letters on November 16, 1972 to the Mayor of the
\nMunicipal Corporation, resigning their seats.  One of  those
\nletters\t was  a\t resignation  in  praesenti  and  was  dated
\nNovember 16, 1972.  The other letter of resignation sent  by
\nO. P. Jain, reads as under
\n“I resign from my seat.\t Please accept.\n<\/p>\n
\t\t\t    Sd\/-\n<\/p>\n
Om Prakash Jain 16. 12.”\n<\/p>\n
This letter being in the nature of a post-dated cheque,\t was
\nconstrued  as a letter of resignation to be  effective\tfrom
\nfuture\tdate, viz.  December 16, 1972.\tOn  these  premises,
\nquestion  arose whether this resignation could be  withdrawn
\nby  the\t Member\t concerned before  that\t date.\t Sachar\t J.,
\nspeaking for the Division Bench, answered this question,  in
\nthese terms:-\n<\/p>\n
\t      “It  is  the free volition of  the  councillor
\n\t      concerned as to the date from which he  wishes
\n\t      to  resign.  There is no logic in saying\tthat
\n\t      even though a councillor deliberately mentions
\n\t      in  his resignation letter that it  should  be
\n\t      effective\t from a given future date, he  would
\n\t      nevertheless  be deemed to have resigned\tfrom
\n\t      an earlier date i.e. date on which the  letter
\n\t      is  delivered.  This would be contrary to\t the
\n\t      deliberately   expressed\tintention   of
\n\t      the  councillor  to resign from  a  particular
\n\t      future  date.   But is there  any\t prohibition
\n\t      that once the resignation letter has been sent
\n\t      which is to be effective from a future date it
\n\t      cannot  be withdrawn even before that  date  ?
\n\t      The  statute  does not in any  way  limit\t the
\n\t      authority\t of the councillor who has sent\t his
\n\t      resignation’   from  a  prospective  date\t  to
\n\t      withdraw it before that date is reached.\t The
\n\t      resignation  which is to be effective  from  a
\n\t      future  date necessarily implied that if\tthat
\n\t      date has ‘not reached it would be open to\t the
\n\t      councillor concerned to withdraw it.”
\n\t      In  support of this enunciation,\tthe  learned
\n\t      Judge relied on the ratio of the decisions  of
\n\t      this  Court in Jai Ram v. Union of India,\t and
\n\t      Rai Kumar<\/a> v. Union of India (ibid).
\n\t      It  was  also  contended-as  has\tbeen  argued
\n\t      before us-that if a resignation has been\tsent
\n\t      prospectively,  the  only effect is  that\t the
\n\t      sea,, would become vacant from that date,\t but
\n\t      the  resignation would be effective  from\t the
\n\t      date it was delivered to the competent  autho-
\n\t      rity.   The Court repelled this argument\twith
\n\t      these pertinent observations :-
\n\t      “Under Section 33(1) (b), both the resignation
\n\t      and the vacancy of the seat are effective from
\n\t      the  same\t time.\tThere  cannot  be  different
\n\t      times,  one for resignation and the other\t for
\n\t      vacation\tof  seat.  Vacancy will\t only  occur
\n\t      when
\n\t      31<\/span>
\n\t      resignation  is effective, and if it  is\tfrom
\n\t      future  date both resignation and vacation  of
\n\t      seat will be effective simultaneously.”\n<\/p><\/blockquote>\n
The  approach  adopted\tto the. problem by  the\t Delhi\tHigh
\nCourt’\tappears\t to be correct in principle, and  meets\t our
\napproval.\n<\/p>\n
We do not want to add more to the volume of our judgment  by
\nnoticing the numerous decisions of the English and  American
\nCourts\tthat have been referred to by the High Court in\t the
\njudgment.   It\twill suffice to notice one of  those  cases,
\nwhich appears to have been relied upon by the High Court “as
\nthe  best  authority” in support of its reasoning  that\t the
\nletter\tof resignation, dated May 7, 1977, by  Appellant  2,
\nhad  become “final or irrevocable on that very day  when  it
\nwas received by the President, “though he could not be asked
\nto  actually  relinquish his post prior to  1-8-1977.”\tThat
\nEnglish case is Reichal v. Bishop of Oxford(1)
\nThe facts of that case were as follows :\n<\/p>\n
Scandal having arisen with regard to the conduct of a Vicar,
\nhe was informed by the Bishop that he must either submit  to
\nan  inquiry  or cease to hold his benefice.   Thereupon,  in
\naccordance  with  a  proposal  made by\tthe  Bishop  in\t the
\ninterests of the parish and in mercy to the Vicar, the Vicar
\non the 2nd of June executed before witnesses, but not before
\na  notary, an unconditional deed of resignation and sent  it
\nto  the\t Bishop’s Secretary on the  understanding  that\t the
\nBishop\twould  postpone formal acceptance until the  1st  of
\nOctober.   On  the 10th of June the Vicar  executed  a\tdeed
\ncanceling  and revoking the deed of resignation and  on\t the
\n16th  of  July\the communicated the  fact  to  the  Bishop’s
\nSecretary.   The  Bishop  after\t the  revocation,  signed  a
\ndocument dated the 1st of October accepting the\t resignation
\nand declaring the vicarage void.\n<\/p>\n
The  Vicar  brought  an action against the  Bishop  and\t the
\npatrons of the benefice, claiming a declaration that he\t was
\nVicar,\tthe  resignation  was  void,-and  an  injunction  to
\nrestrain  the  defendants  from\t treating  the\tbenefice  as
\nvacant.\n<\/p>\n
The  House of Lords, affirming the decision of the Court  of
\nAppeal\t(35  Ch.   D. 48), held\t that  the  resignation\t was
\nvoluntary,  absolute, validly executed and  irrevocable\t and
\nthat the action could not be maintained.\n<\/p>\n
The principal contention canvassed before the House of Lords
\nby the appellant Vicar was that assuming the resignation  to
\nbe  valid,  it was naught without the  Bishop’s\t acceptance.
\nThe  acceptance of the Ordinary is absolutely  necessary  to
\navoid  a  living.   Until  acceptance  the  effect  of\t the
\nincumbents resignation is to make the benefice voidable, not
\nvoid;  he remains incumbent with all his powers and  rights,
\nincluding the power of revocation; he is in the position (at
\nthe utmost) of one who has made a contract to resign.
\n(1)  [1889] 14 A.C. 259.\n<\/p>\n
32<\/span><\/p>\n
The Noble Lords rejected this contention.  Lord Halsbury  L.
\nC. observed :\n<\/p>\n
\t      “The  arrangements for resignation on the\t one
\n\t      side and acceptance on the other seem to me to
\n\t      have  been  consummated  before  the  supposed
\n\t      withdrawal of the resignation of Mr.  Reichal.
\n\t      It  is true the Bishop agreed not\t to  execute
\n\t      the  formal document to declare  the  benefice
\n\t      vacant till the following 1st of October;\t but
\n\t      I\t decline  to decide that  when\ta  perfectly
\n\t      voluntary and proper resignation has once been
\n\t      made  and by arrangement a formal\t declaration
\n\t      of  it  is  to, be postponed, that  is  not  a
\n\t      perfectly\t binding transaction upon  both\t the
\n\t      parties to it; and I doubt whether in any view
\n\t      of the law such an arrangement could have been
\n\t      put an end to at the option of only one of the
\n\t      parties.”\n<\/p><\/blockquote>\n
\t      Lord Watson further amplified :
\n\t      “His resignation was delivered in pursuance of
\n\t      a\t mutual, agreement which rendered formal  or
\n\t      other  acceptance altogether unnecessary;\t the
\n\t      terms  of the agreement showing  plainly\tthat
\n\t      the Bishop not merely was ready to accept, but
\n\t      insisted\tupon  having it, in  order  that  it
\n\t      might  receive  full effect upon\tthe  1st  of
\n\t      October\tfollowing.    The   agreement\t was
\n\t      perfectly lawful, it being entirely within the
\n\t      discretion of the Bishop to judge whether\t the
\n\t      adopted of Proceedings against the  appellant,
\n\t      or  his  unconditional resignation as  from  a
\n\t      future   date,  would  most  conduce  to\t the
\n\t      spiritual\t  interest  of\tthe   parish.\t The
\n\t      appellant assented to the arrangement, and  on
\n\t      the  2nd of June 1886 did all that lay in\t his
\n\t      power  to\t complete it…… He cannot  in  my
\n\t      opinion  be permitted to upset  the  agreement
\n\t      into  which he voluntarily  agreed……\tupon
\n\t      the  allegation,\tthat  there  was  no  formal
\n\t      acceptance  of  his resignation  till  1st  of
\n\t      October 1886.” Lord Herschell opined :
\n\t      “I  do not think the word\t “acceptance”  means
\n\t      more than the assent of the Bishop, or that it
\n\t      need  take any particular form.  Now,  in\t the
\n\t      present case, the Bishop had. intimated to the
\n\t      plaintiff that he was willing to assent to his
\n\t      resignation,  and it was in pursuance of\tthis
\n\t      intimation that the resignation was placed  in
\n\t      the  hands  of the Bishop.  At  the  time\t the
\n\t      Bishop received it, and thenceforward down  to
\n\t      and after the time of the alleged\t revocation,
\n\t      the  Bishop  was\tan assenting  party  to\t the
\n\t      resignation.”\n<\/p><\/blockquote>\n
\t      While   declining\t  the  contention   of\t the
\n\t      appellant,   the\t Noble\t Lord\tclosed\t the
\n\t      discussion on the point with this\t significant
\n\t      reservation :\n<\/p><\/blockquote>\n
\t      “It  is, however, unnecessary in\tthe  present
\n\t      case  to\tgo to the length of  saying  that  a
\n\t      resignation can never be withdrawn without the
\n\t      consent  of  the Bishop, for I am\t of  opinion
\n\t      that   it\t  certainly  cannot  be\t  so   under
\n\t      circumstances  such as those to which  I\thave
\n\t      drawn attention.”\n<\/p><\/blockquote>\n
\t\t\t     33<\/span><\/p>\n
Reichal\t is  no\t authority  for\t the  proposition  that\t  an
\nunconditional\tprospective   resignation,   without   more,
\nnormally  becomes  absolute and operative the moment  it  is
\nconveyed to the appropriate authority.\tThe special  feature
\nof  the\t case was that Reichal had, of his  own\t free  will,
\nentered into a “perfectly binding agreement” with the Bishop
\naccording  to which, the Bishop had agreed to  abstain\tfrom
\ncommencing  an\tinquiry\t into the  serious  charges  against
\nReichal\t  if  the  latter  tendered  his  resignation.\t  In
\npursuance  of  that lawful agreement, Reichal  tendered\t his
\nresignation and did all to complete it, and the Bishop\talso
\nat  the\t other end, abstained from  instituting\t proceedings
\nagainst him in the Ecclesiastical Court.  The agreement\t was
\nthus  not a nudem pactum but one for good consideration\t and
\nhad  been  acted upon and “consummated before  the  supposed
\nwithdrawal  of the resignation of.  Mr. Reichal”, who  could
\nnot,  therefore, be permitted “,to upset the  agreement”  at
\nhis unilateral option and withdraw the resignation  “without
\nthe  consent  of  the  Bishop”.\t It was\t in  view  of  these
\nexceptional  circumstances, Their Lordships  held  Reichal’s
\nresignation   had  become  absolute  and  irrevocable.\t  No
\nextraordinary  circumstances  of this nature  exist  in\t the
\ninstant case.\n<\/p>\n
In  the light of all that has been said above, we hold\tthat
\nthe  letter, dated May 7, 1977 addressed by Appellant  2  to
\nthe  President, both in point of law and substance,  amounts
\nbut  to\t a proposal of notice of intention to  resign  at  a
\nfuture\tdate (1-8-1977) and not being an absolute,  complete
\nresignation  operative with immediate effect, could be\tand,
\nin  fact, had been validly withdrawn by the  said  Appellant
\nthrough\t his  letter, dated July 15, 1977, conveyed  to\t the
\nPresident.\n<\/p>\n
Accordingly, we allow these appeals, set aside the  majority
\njudgment  of the High Court and dismiss the  writ  petition,
\nleaving the parties to bear their own costs throughout.
\nFAZAL  ALI,  J.\t :  These two  appeals\tby  certificate\t are
\ndirected  against  an  order of\t the  Allahabad\t High  Court
\nissuing\t a  writ  of Quo  Warranto  against  Justice  Satish
\nChandra,  a Judge of the Allahabad High Court on the  ground
\nthat  he ceased to be a Judge with effect from\t1st  August,
\n1977  as  he was not competent to withdraw  the\t resignation
\nsubmitted  by  him earlier.  Appeal No. 2644\/1977  has\tbeen
\nfiled  by  the\tUnion of India supporting the  case  of\t the
\nsecond respondent Satish Chandra while appeal No. 2655\/’1977
\nhas  been  filed  by the second\t respondent  Satish  Chandra
\nhimself\t against  the order of the High Court  as  indicated
\nabove.\t As  the  points involved in  the  two\tappeals\t are
\nidentical  and\tarise from the same judgment, I\t propose  to
\ndeal with the two, appeals by a common judgment.
\nThe  facts of the case lie within a narrow compass  and\t the
\nwhole case turns. upon the interpretation of Article 217 (1)\n<\/p>\n
(a)  of\t the Constitution of India.  I would  also  like  to
\nmention\t that the question of law that has to be  determined
\nin  this  case\tin one of first\t impression  and  no  direct
\nauthority  of  any court in India or outside appears  to  be
\navailable  in order to decide this case.  There are  however
\nnumber\t of   authorities  from\t which\t certain   important
\nprinciples   can   be  deduced\twhich  may  assist   me\t  in
\nadjudicating the point in issue.\n<\/p>\n
34<\/span><\/p>\n
Justice Satish Chandra hereinafter referred to as the second
\nrespondent  was\t a practising lawyer of the  Allahabad\tHigh
\nCourt.\t He was appointed as a Judge of the  Allahabad\tHigh
\nCourt on 7th October,- 1963 and was later made _permanent on
\n4th September, 1967.  Since then he had been continuing as a
\nJudge of the said High Court.\n<\/p>\n
On 7th May, 1977 the second respondent wrote a letter to the
\nPresident of India resigning his office with effect from 1st
\nAugust,\t 1977.\tThe second respondent however  indicated  to
\nthe  President that he would proceed on leave from 7th\tMay,
\n1977  to 31st July, 1977 the period intervening between\t the
\napplication  and the date from which the resignation was  to
\nbe effective.\n<\/p>\n
On 15th July, 1977 however the second respondent wrote\tano-
\nther  letter  to  the  President by  which  he\trevoked\t the
\nresignation  which  he\thad sent on the 7th  May,  1977\t and
\nprayed that the communication containing the resignation may
\nbe  treated  as null and void.\tIn order to  understand\t the
\nexact implication of the intention of the second  respondent
\nit may be necessary to extract the two letters in extenso
\n“TO
\nThe President of India,
\nNew Delhi.\n<\/p>\n
Sir,
\nI beg to resign my office as Judge, High Court of Judicature
\nat Allahabad.\n<\/p>\n
I will be on leave till 31st of July, 1977.  My\t resignation
\nshall be effective on 1st of August, 1977.\n<\/p>\n
With my respects,
\nYours faithfully,
\nSd\/- Satish Chandra”.\n<\/p>\n
“TO
\nThe President of India,
\nNew Delhi.\n<\/p>\n
Sir,
\nI beg to revoke and cancel the intention expressed by me  to
\nresign\ton  1st of August, 1977, the office of\tJudge,\tHigh
\nCourt at Allahabad, in my letter dated 7th May, 1977.\tThat
\ncommunication may very kindly be treated as null and void.
\nThanking you and wishing to remain.\n<\/p>\n
Yours sincerely,
\nSd\/- Satish Chandra”.\n<\/p>\n
35<\/span><\/p>\n
A  careful perusal of the first letter leaves absolutely  no
\nroom for doubt that the Judge had clearly intended to resign
\nhis  office with effect from 1st August,  1977.\t  Similarly,
\nthe  second  letter shows the unequivocal intention  of\t the
\nsecond\trespondent  to revoke the resignation  sent  by\t him
\nearlier.   The reasons for the resignation have\t been  given
\nneither in the first letter nor in the second.\tThe question
\nthat  has been mooted before the High Court was\t whether  or
\nnot having resigned his office the second respondent had any
\njurisdiction   to  revoke  his\tfirst  letter  sending\t his
\nresignation.   It might also be mentioned that it is  common
\nground\tthat  before the second letter was  written  to\t the
\nPresident the first letter had not only been communicated to
\nbut  was actually received by the President as found by\t the
\nmajority  judgment  of\tthe  High  Court.   Thus,  the\tsole
\nquestion  to  be determined in this case is whether  it\t was
\nwithin the competence of the second respondent to revoke the
\nresignation sent by him to the President by his letter dated
\n7th  May, 1977 after the same had been communicated  to\t and
\nreceived by the President.  The stand taken by the  Attorney
\nGeneral\t before us was that as the second res-. pondent\t had
\ncategorically  expressed his intention in the  first  letter
\nthat he would resign only with effect from 1st August, 1977,
\nit  was open to him to withdraw his resignation at any\ttime
\nbefore\tthe  crucial  date  was reached\t and  there  was  no
\nprovision  in the Constitution which debarred the  appellant
\nfrom doing so.\n<\/p>\n
The  Attorney  General,\t however, conceded  before  us\tthat
\nhaving\tregard\tto the provisions of Article  217  there  is
\nabsolutely  no question of the resignation of a Judge  being
\neffective  only\t on  the  acceptance  of  the  same  by\t the
\nPresident.   In other words, the Attorney General  submitted
\nthat  the resignation would become effective from  the\tdate
\nmentioned  therein  and the question of\t the  acceptance  of
\nresignation  by\t the President would not arise\tin  case  of
\nconstitutional functionaries like judges of the High Courts.
\nThus, in view of the concession of the Attorney General\t and
\nthe provisions of Article 217 any resignation submitted by a
\nJudge was not, dependent on its acceptance by the  President
\nand would operate ex proprio vigore from the date  mentioned
\nin  the\t letter\t of resignation.  It pears  that  after\t the
\nsecond\trespondent  sought  to\trevoke\this  resignation  an
\napplication praying for a writ of quo warranto was filed  by
\nthe  respondent\t Gopal\tChandra\t Misra\t&  Ors.\t before\t the
\nAllahabad   High  Court\t on  the  ground  that\tthe   second
\nrespondent  had no right to withdraw the  resignation.\t The
\nwrit was heard by a Full Bench consisting of R. B. Misra, M.
\nN.  Shukla, Hamid Hussain, S. B. Malik and C. S.  P.  Singh,
\nJJ.  and the High Court by a majority judgment accepted\t the
\nwrit petition and issued a writ of quo warranto holding that
\nthe  second  respondent ceased to be a Judge as he  was\t not
\ncompetent to withdraw his resignation once the same had been
\ncommunicated  to  and in fact reached  the  President.\t The
\nlearned Judges who took the majority view against the second
\nrespondent were R. B. Misra, M.\t   N.  Shukla and C.  P.  S.
\nSingh, JJ. whereas Hamid Hussain and S. B.  Malik, JJ.\twere
\nof  the\t view that it was open to the second  respondent  to
\nwithdraw  his resignati on at any time before the date\tfrom
\nwhich  the  resignation\t was  to  be  effective\t and   were,
\ntherefore,
\n36<\/span>
\nof  the opinion that the writ petition should be  dismissed.
\nIt   seems  to\tme  that  the  High  Court  has\t devoted   a
\nconsiderable  part of its judgment to the  consideration  of
\ntwo questions which were really not germane for the decision
\nof the point in issue.\tSecondly, the High Court appears  to
\nhave  exhaustively considered the question of the theory  of
\npleasure  which\t obviously did not apply to a Judge  of\t the
\nHigh Court appointed under the Indian Constitution and after
\nthe said Constitution had come into force.  In other  words,
\na  Judge appointed under Article 217 cannot be said to\thold
\nhis  assignment at the pleasure of the President, but  under
\nthe  provisions\t of Article 217 he was to  hold\t his  office
\nuntil the following contingencies arose :\n<\/p>\n
\t      1.    The Judge attained the age of 62 years,;\n<\/p><\/blockquote>\n
\t      2.    The\t Judge was removed from\t his  office
\n\t      under Article 124 of the Constitution;\n<\/p><\/blockquote>\n
\t      3.    The\t Judge\twas transferred\t to  another
\n\t      High Court under Article 222;\n<\/p><\/blockquote>\n
\t      4.    The Judge resigned his office by writing
\n\t      a\t letter\t under\this hand  addressed  to\t the
\n\t      President.\n<\/p><\/blockquote>\n
\t      It  is needless to state that a Judge  vacates
\n\t      his  office the moment he dies,  and  although
\n\t      this  contingency is not mentioned in  Article
\n\t      217  yet\tit follows from the very  nature  of
\n\t      things.\tIt  would  thus be  clear  that\t the
\n\t      constitutional provisions embodied in  Article
\n\t      217  have expressly provided for\tthe  various
\n\t      contingencies  in\t which a Judge of  the\tHigh
\n\t      Court may vacate his office or cease, to be  a
\n\t      Judge.   The relevant part of Article 217\t may
\n\t      be extracted thus :\n<\/p><\/blockquote>\n
\t      “217  :  Appointment  and\t conditions  of\t the
\n\t      office of a Judge of a High Court :
\n\t      (1)Every\tJudge  of  a  High  Court  shall  be
\n\t      appointed\t by the President by  warrant  under
\n\t      his hand and seal after consultation with\t the
\n\t      Chief  Justice of India, the Governor  of\t the
\n\t      State,  and, in the case of appointment  of  a
\n\t      Judge other than the Chief Justice, the, Chief
\n\t      Justice  of  the High Court,  and\t shall\thold
\n\t      office, in the case of an additional or acting
\n\t      Judge, as provided in Article 224, and in\t any
\n\t      other case, until he attains the age of sixty-
\n\t      two years:\n<\/p><\/blockquote>\n
\t      Provided that-\n<\/p><\/blockquote>\n
\t      (a)a  Judge  may, by writing  under  his\thand
\n\t      addressed to the President, resign his office;\n<\/p><\/blockquote>\n
\t      (b)a  Judge may be removed from his office  by
\n\t      the President in the manner provided in clause
\n\t      (4) of Article 124 for the removal of a  Judge
\n\t      of the Supreme Court;\n<\/p><\/blockquote>\n
\t      (c)the  office of a Judge shall be vacated  by
\n\t      his  being appointed by the President to be  a
\n\t      Judge of the Supreme
\n\t      37<\/span>
\n\t      Court  or\t by  his being\ttransferred  by\t the
\n\t      President\t to any other High Court within\t the
\n\t      territory of India”.\n<\/p><\/blockquote>\n
While  analysing  the various clauses of Article 217  it  is
\npertinent  to  observe\tthat while clause  (a)\tcontains  an
\nexpress\t provision  empowering a Judge to resign,  there  is
\nabsolutely no provision which confers upon him any power  to
\nwithdraw  or revoke his resignation once the same  has\tbeen
\nsubmitted to the President.\n<\/p>\n
This  is  one  of  the moot  points  that  has\tengaged\t the
\nattention  of  the,  High Court as also\t of  this  Court  in
\ndeciding  the issue.  The majority view was of\tthe  opinion
\nthat in the absence of any express provision to empower\t the
\nJudge to revoke his resignation, the Judge was not competent
\nto withdraw his resignation having once submitted the  same.
\nThe  minority view of the High Court which has\tbeen  relied
\nupon  by  the  Attorney General and  the  second  respondent
\nproceeds  on the doctrine ‘of implied powers under which  it
\nis  said that the power of submitting a resignation  carries
\nwith   it  the\tpower  of  revoking  the  same\tbefore\t the
\nresignation becomes effective.\n<\/p>\n
I  shall  deal with these points a little later\t and  before
\nthat  I would like to indicate the position and\t the  status
\nconferred  by the Constitution on a High Court\tJudge.\t The
\nfirst  thing which is manifestly plain is that there  is  no
\nrelationship  of master and servant, employer  and  employee
\nbetween\t the  President\t and the Judge of  the\tHigh  Court,
\nbecause\t a  Judge is not a Government servant so  as  to  be
\ngoverned by Article 310 of the Constitution.  A Judge of the
\nHigh Court appointed under Article 2,17 has a special status
\nand  is\t a constitutional functionary  appointed  under\t the
\nprovisions  of the Constitution by the President.  The\tmere
\nfact  that the President appoints him does not make him\t the
\nemployer  of the Judge.\t In appointing a Judge of  the\tHigh
\nCourt ‘ the President is discharging certain  constitutional
\nfunctions  as contained in Article 217(1).  This  aspect  of
\nthe matter was considered by this Court in the case of Union
\nof  India  v.  Sankalchand Himatlal Sheth  &  Anr.<\/a>(1)  where
\nKrishna Iyer, J.    dwelling  on  this\taspect\tobserved  as
\nfollows :\n<\/p>\n
\t      “So  it is that we must emphatically  state  a
\n\t      Judge  is\t not  a\t government  servant  but  a
\n\t      constitutional  functionary.  He stands  in  a
\n\t      different category.  He cannot be equated with
\n\t      other  ‘services’\t although  for\t convenience
\n\t      certain  rules applicable to the\tlatter\tmay,
\n\t      within limits, apply to the former.  Imagine a
\n\t      Judge’s\tleave\tand   pension\tbeing\tmade
\n\t      precariously  dependent  on  the\t executive’s
\n\t      pleasure-\t To  make  the\tgovernment-not\t the
\n\t      State-the\t employer of a superior court  Judge
\n\t      is to unwrite the Constitution”.
\n\t      It is, therefore, indisputable that a Judge of
\n\t      the  High Court enjoys a special status  under
\n\t      the  Constitution,  because of the  very\thigh
\n\t      position\tthat  he holds and the\tdignity\t and
\n\t      decorum of the office that he has to maintain.
\n\t      (1)   [1978] 1 S.C.R. 423.\n<\/p><\/blockquote>\n
\t      38<\/span><\/p>\n
\t      The  special guarantees contained\t in  Article
\n\t      217  are\tfor  the  purpose  of  ensuring\t the
\n\t      independence  of the judiciary as observed  by
\n\t      Chandrachud, J. in the case of Union of  India
\n\t      v. S. H. Sheth & Anr.<\/a> (supra) :\n<\/p><\/blockquote>\n
\t      “Having  envisaged that the  judiciary,  which
\n\t      ought  to act as a bastion of the\t rights\t and
\n\t      freedom of the people, must be immune from the
\n\t      influence\t and interference of the  executive,
\n\t      the Constituent Assembly gave to that  concept
\n\t      a\t concrete form by making various  provisions
\n\t      to  secure and safeguard the  independence  of
\n\t      the judiciary”.\n<\/p><\/blockquote>\n
The  High Court Judges are the repository of the  confidence
\nof the people and the protectors of the right and liberty of
\nthe  subjects.\t Having, regard, therefore, to\tthe  onerous
\nduties\tand  the sacrosanct functions which a Judge  of\t the
\nHigh  Court  has to discharge he has to act or behave  in  a
\nmanner\twhich enhances the confidence of the people  in\t the
\njudiciary.   The  Constitution itself contains a  number  of
\nprovisions  for\t promoting  an\tindependent  judiciary\t and
\nstriving for a complete separation of the Judiciary from the
\nExecutive.\n<\/p>\n
Having regard to these circumstances therefore once a  Judge
\ndecides to accept the high post of a High Court Judge he has
\nto abide by certain fixed principles and norms as also\tsome
\nself  imposed restrictions in order to maintain the  dignity
\nof the high office which he holds so as to enhance the image
\nof  the\t court of which he is a member and to see  that\t the
\ngreat confidence which the people have in the courts is\t not
\nlost.  To resign an office is a decision to be taken once in
\na life time and that too for very special and cogent reasons
\nbecause once such a decision is taken it cannot fie recalled
\nas  a point of no return is reached.  Indeed, if Judges\t are
\nallowed to resign freely and recall the resignation at their
\nwill  this  privilege may be used by them  as  a  weapon-for
\nachieving  selfish ends or for striking political  bargains.
\nNot  that  the Judges are likely to take,  resort  to  these
\nmethods but even if one Judge does so at any time the  image
\nof  the entire court is tarnished.  It was, in\tmy  opinion,
\nfor  these  reasons  that the High Court  Judges  have\tbeen
\nassigned  a  special place by the constitution and  are\t not
\nequated with other services, however high or important\tthey
\nmay  be.   Thus, in these circumstances,  therefore,  it  is
\nmanifest that any decision that the Judge may take in regard
\nto  resigning  his office must be taken after due  care\t and
\ncaution, full and complete deliberation and  circumspection,
\nso  that  the  high office which he holds  is  not  held  to
\nridicule.   The power to resign is not intended to  be\tused
\nfreely\tor  casually  so as to render the same\tas  a  farce
\nbecause\t after\ta Judge resigns important  and\tfar-reaching
\nconsequences flow.  Shukla, J. in the judgment under  appeal
\nhas very aptly and adroitly observed as follows. :-\n<\/p>\n
\t      “Therefore, if a Judge is permitted to  recent
\n\t      his  regisnation,\t born of free  volition,  it
\n\t      would savour of a precipitance which would not
\n\t      redound\tto   his   credit.    A\t   voluntary
\n\t      resignation of a High Court Judge deserves  to
\n\t      be looked
\n\t      39<\/span>
\n\t      upon  with  utmost  sanctity,  and  cannot  be
\n\t      treated lightly as if it was the outcome of  a
\n\t      momentary influence…….. In other words,  a
\n\t      Judge  may  resign  and  then  with   impunity
\n\t      rescind\this  resignation  and  thus  go\t  on
\n\t      repeating\t the  process at his sweet  will  a.
\n\t      That   would-be  ridiculous  and\treduce\t the
\n\t      declaration  of  resignation by a Judge  to  a
\n\t      mere farce.”\n<\/p><\/blockquote>\n
\t      I\t find myself in complete agreement with\t the
\n\t      observations  made  by the learned  Judge\t and
\n\t      fully  endorse  the  same.  What\tis  good  of
\n\t      Article  217 equally applies to other  similar
\n\t      constitutional\tfunctionaries\t like\t the
\n\t      President,  the Vice-President,  the  Speaker,
\n\t      the  Deputy  Speaker. and\t the  Supreme  Court
\n\t      Judges.. So far as the President is concerned,
\n\t      Article  56(a) contains a provision  identical
\n\t      to Article 217(a) and runs thus :
\n\t      “The President may, by writing under his\thand
\n\t      addressed\t to the Vice-President,\t resign\t his
\n\t      office’
\n\t      So  far as the Vice-President,  is  concerned,
\n\t      the  provision is contained in  Article  67(a)
\n\t      and runs thus :-\n<\/p><\/blockquote>\n
\t      “A  Vice-President may, by writing  under\t his
\n\t      hand  addressed to the President,\t resign\t his
\n\t      office”.\n<\/p><\/blockquote>\n
\t      So  far as the Speaker and the Deputy  Speaker
\n\t      are  concerned, the provision is contained  in
\n\t      Article 94 which runs thus :-\n<\/p><\/blockquote>\n
\t      “Vacation\t and  resignation  of,\tand  removal
\n\t      from,  the  offices  of  Speaker\tand   Deputy
\n\t      Speaker  : A member holding office as  Speaker
\n\t      or Deputy Speaker of the House of the people-\n<\/p><\/blockquote>\n
\t      (a)   shall vacate his office if he ceases  to
\n\t      be a member of the House of the People;\n<\/p><\/blockquote>\n
\t      (b)   may\t at any time, by writing  under\t his
\n\t      hand addressed, if such member is the Speaker,
\n\t      to  the Deputy Speaker, and if such member  is
\n\t      the Deputy Speaker, to the Speaker, resign his
\n\t      office, and\n<\/p><\/blockquote>\n
\t      (c)   may\t be  removed from his  office  by  a
\n\t      resolution  of the House of the People  passed
\n\t      by  a majority of all the then members of\t the
\n\t      House:\n<\/p><\/blockquote>\n
\t      Provided that no resolution for the purpose of
\n\t      clause  (c)  shall be moved  unless  at  least
\n\t      fourteen\tdays’ notice has been given  of\t the
\n\t      intention to move the resolution :
\n\t      Provided\tfurther that, whenever the House  of
\n\t      the People is dissolved, the Speaker shall not
\n\t      vacate his office until immediately before the
\n\t      first meeting of the House of the people after
\n\t      the dissolution”.\n<\/p><\/blockquote>\n
\t      So  far  as  the\tSupreme\t Court\tJudges\t are
\n\t      concerned,  the  provision  is  contained\t  in
\n\t      Article 124(2) (a) which runs thus
\n\t      40<\/span>
\n\t      “A Judge may, writing under his hand addressed
\n\t      to the President, resign office”.\n<\/p><\/blockquote>\n
For   all  these  constitutional  functionaries\t a   special
\nprocedure has been prescribed by the Constitution regulating
\ntheir resignation and in each one of these cases two  things
\nare  conspicuous.   First,  that  there\t is  absolutely\t  no
\nprovision  for revocation of, a resignation, and,  secondly,
\nthat  there  is nothing to show that in the  case  of  these
\nfunctionaries the resignation would become effective only on
\nbeing accepted by the authority concerned.  It was contended
\nby  Mr. Jagdish Swarup, counsel for the respondents that  if
\nany  of\t these\tfunctionaries are allowed  to  withdraw\t the
\nresignation  at\t their will they may use the powers  of\t the
\nConstitution  by  treating the resignation as  a  bargaining
\ncounter.   For\tinstance,  it was  suggested  that  where  a
\nPresident  is  not happy with a particular  Bill  passed  by
\nParliament,   he  may  submit  his  resignation\t  and\tthus
\npressurise Parliament to withdraw the Bill and after that is
\ndone,  he  could  withdraw the resignation  also.   Such  an
\naction\twill  lead  to a constitutional\t crisis\t of  a\tvery
\nextraordinary  nature.\t The  argument\tis  based  on\tpure
\nspeculation  yet it. merits some consideration.\t Thus  on  a
\nparity\tof reasoning the same principles have to be  applied
\nto other constitutional functionaries including a High Court
\nJudge  and that will create a very anomalous  situation.   I
\nthink,\tit must have been this important consideration\tthat
\nmust  have heavily weighed with the founding fathers of\t the
\nconstitution  in  not  providing for  an  express  power  to
\nwithdraw  the resignation or a provision for the  acceptance
\nof  the resignation by any particular authority.  From\tthis
\npoint of view also the irresistible inference that arises is
\nthat the absncpe of power in Article 217(1) (a) or the other
\nArticles  in the case of other constitutional  functionaries
\nindicated  above is deliberate, and, therefore, a Judge\t has
\nno  power to revoke his resignation, after having  submitted
\nor communicated the same to, the President.
\nAnother\t important aspect which may reveal the intention  of
\nParliament is to) be found in Article 101 (3) sub-clause (b)
\nof the Constitution which runs thus :\n<\/p>\n
\t      “101  (3)\t If  a member  of  either  House  of
\n\t      Parliament-\n<\/p><\/blockquote>\n
\t      (b)   resigns  his seat by writing  under\t his
\n\t      hand addressed to the Chairman or the Speaker,
\n\t      as  the case may be, his seat shall  thereupon
\n\t      become vacant.”\n<\/p><\/blockquote>\n
\t      It   would   be,\t seen\tthat   like    other
\n\t      constitutional  functionaries mentioned  above
\n\t      even  a member of either House  of  Parliament
\n\t      could  resign  his seat by writing  under\t his
\n\t      hand addressed to the Chairman or the Speaker,
\n\t      as  the case may be and once that is done\t the
\n\t      seat would become vacant.\t A similar provision
\n\t      exists   so   far\t as  the  members   of\t the
\n\t      Legislature of a State are concerned which  is
\n\t      contained\t in  Article 190(3) (b)\t which\truns
\n\t      thus :\n<\/p><\/blockquote>\n
\t      “190(3) If a member of a House of\t Legislature
\n\t      of a State-\n<\/p><\/blockquote>\n
\t      (b)   resigns his office by writing under\t his
\n\t      band addressed So the Speaker or the Chairman,
\n\t      as  the case may be, his seat shall  thereupon
\n\t      become vacant”.\n<\/p><\/blockquote>\n
\t       41<\/span><\/p>\n
\t      By  virtue  however of the  Constitution\t35th
\n\t      Amendment\t Bill 1974 Parliament  amended\tboth
\n\t      Articles 10 1 (3) (b) and 190 (3) (b) and made
\n\t      the  resignation being effective dependent  on
\n\t      the  acceptance of the same by the Speaker  or
\n\t      the    Chairman\tconcerned.    The    amended
\n\t      provisions ran thus :\n<\/p><\/blockquote>\n
\t      “101(3)  If  a  member  of  either  House\t  of
\n\t      Parliament–\n<\/p><\/blockquote>\n
\t      (b)   resigns  his seat by writing  under\t his
\n\t      hand addressed to the Chairman or the Speaker,
\n\t      as  the  case may be, and his  resignation  is
\n\t      accepted\tby the Chairman or the\tSpeaker,  as
\n\t      the  case\t may be, his  seat  shall  thereupon
\n\t      become vacant
\n\t      Provided\tthat in the case of any\t resignation
\n\t      referred\t to  in\t sub-clause  (b),  it\tfrom
\n\t      information  received or otherwise  and  after
\n\t      making  such  inquiry as he  thinks  fit,\t the
\n\t      Chairman\tor the Speaker, as the case may\t be,
\n\t      is  satisfied  that such\tresignation  is\t not
\n\t      voluntary or genuine, he shall not accept such
\n\t      resignation”.\n<\/p><\/blockquote>\n
\t      “190(3)  If  a  member  of  a  House  of\t the
\n\t      Legislature of a State-\n<\/p><\/blockquote>\n
\t      (b)   resigns  his seat by writing  under\t his
\n\t      hand   addressed\tto  the\t Speaker   or\tthe,
\n\t      Chairman,\t  as  the  case\t may  be,  and\t his
\n\t      resignation is accepted by the Speaker or\t the
\n\t      Chairman,\t as the case may be, his seat  shall
\n\t      thereupon become vacant
\n\t      Provided\tthat in the case of any\t resignation
\n\t      referred\t to  in\t sub-clause  (b)   if\tfrom
\n\t      information  received or otherwise  and  after
\n\t      making  such  inquiry as he  thinks  fit,\t the
\n\t      Speaker  or the Chairman, as the case may\t be,
\n\t      is  satisfied  that such\tresignation  is\t not
\n\t      voluntary or genuine, he shall not accept such
\n\t      resignation”.\n<\/p><\/blockquote>\n
\t      The  Statement of Objects and Reasons of\tthis
\n\t      Bill  mentions why this amendment was  brought
\n\t      about and the relevant portion may be extract-
\n\t      ed thus
\n\t      “In the recent past, there have been instances
\n\t      where  coercive measures havebeen resorted  to
\n\t      for   compelling\tmembers\t of  a\t Legislative
\n\t      Assembly to resign their membership.  If\tthis
\n\t      is not checked, it might become difficult\t for
\n\t      Legislatures  to function in  accordance\twith
\n\t      the  provisions  of the Constitution.   It  is
\n\t      therefore\t proposed  to amend  the  above\t two
\n\t      articles\t to  impose  a\trequirement  as\t  to
\n\t      acceptance  of the resignation by the  Speaker
\n\t      or the Chairman and to provide that the resig-
\n\t      nation shall not be accepted by the Speaker or
\n\t      the Chairman, if he is satisfied after  making
\n\t      such  inquiry  as\t he  thinks  fit  that\t the
\n\t      resignation is not voluntary or genuine”.
\n\t      This aspect of the matter has been adverted to
\n\t      by Shukla, J. who observed as follows :-
\n\t      “This  provision\tmade the  resignation  of  a
\n\t      member of the Legislature self-executing.\t  No
\n\t      acceptance was required.\n<\/p><\/blockquote>\n
\t      4-211 SCr\/78
\n\t      42<\/span>
\n\t      Later,  however,\tpolitical events  created  a
\n\t      situation\t in which it became  imperative\t not
\n\t      to,  let a resignation become effective  until
\n\t      it was accepted by the Chairman or the Speaker
\n\t      and  he was satisfied on inquiry that  it\t was
\n\t      voluntary\t or genuine.  In some  States  there
\n\t      was  political turmoil leading to\t ‘en  masse’
\n\t      resignations  of the members  of\tLegislature.
\n\t      Some of these resignations were also faked and
\n\t      engineered by interested factions in order to-
\n\t      serve  their Political ends.  So it  was\tfelt
\n\t      necessary to provide in the Constitution\tthat
\n\t      the  seat\t of  a member  of  Parliament  shall
\n\t      become, vacant only after his resignation\t had
\n\t      been  accepted.  That is why articles 101\t (3)\n<\/p><\/blockquote>\n
\t      (b)  & 1 90 (3) (b) were suitably\t amended  by
\n\t      the Constitution (Thirty-fifth Amendment) Act,
\n\t      1974  the\t notification is indicative  of\t two
\n\t      things  firstly,\tin the absence of  any\tsuch
\n\t      provision\t acceptance was not to be read\tinto
\n\t      Article ‘101 when it talked of the resignation
\n\t      of a member of Parliament.  Secondly, as\tsoon
\n\t      as the Parliament intended that a\t resignation
\n\t      should  not  take\t effect\t until\tit  received
\n\t      assent or acceptance, it introduced a specific
\n\t      provision to that effect”.\n<\/p><\/blockquote>\n
It  would  be  noticed, therefore, that\t at  the  time\twhen
\nArticles  101  (3)  and 190(3) were  being  amended  by\t the
\nConstitution  (Thirty-fifth) Amendment Act the\tConstitution
\nmakers had also other similar provisions like Articles\t217,
\n94,  67\t and 124(2)(a) etc. before them and if\tthey  really
\nintended  that acceptance was made a condition precedent  to
\nthe effectiveness of a resignation in case of constitutional
\nfunctionaries under Article 217 and other Articles then such
\nan  amendment  could  have also\t been  incorporated  in\t the
\nThirty-fifth  Amendment Bill as well either by conferring  a
\npower  of revocation on the constitutional functionaries  or
\nby   introducing   a  provision\t for   acceptance   of\t the
\nresignation.   The  very  fact that no\tsuch  amendment\t was
\nsuggested or brought about in Article 217 and other Articles
\nclearly\t reveals  that the Constitution makers\tintended  no
\nchange so far as the other Articles were concerned.  This is
\na very important circumstance which fortifies my  conclusion
\nthat  the power of revocation or withdrawal  of\t resignation
\nonce  communicated  to the President has  been\tdeliberately
\nomitted\t by the founding fathers from Article 217 and  other
\nsimilar Article.\n<\/p>\n
Coming now to the second point regarding the application  of
\nimplied\t powers\t to  the facts of a  case,  the\t matter\t was
\nconsidered  in the case of Union of India v. S. H.  Sheth  &
\nAnr.<\/a> (supra). where this Court was construing the provisions
\nof  Article  222 of the Constitution of India and  the\tcase
\nturned\tupon the question as to whether or not when a  Judge
\nwas  transferred  from\tone High Court\tto  another  it\t was
\nnecessary for the President to take his consent.  This Court
\nby majority of 3 : 2 held that consent could not be  implied
\nin  Article  222  in the absence of  an\t express  provision.
\nKrishna Iyer, J. while expounding this aspect of the  matter
\nand  speaking  for  himself and Fazal Ali,  J.\tobserved  as
\nfollows :\n<\/p>\n
\t      “It would be seen that there is absolutely  no
\n\t      provision\t  in  this  Article  requiring\t the
\n\t      consent of the Judges of the High
\n\t      43<\/span>
\n\t      Court  before transferring them from one\tHigh
\n\t      Court  to another.  Indeed, if  the  intention
\n\t      was  that\t such transfers could be  made\tonly
\n\t      with the consent of the Judges then we  should
\n\t      have expected a proviso to Article 222(1)\t in,
\n\t      some such terms as.\n<\/p><\/blockquote>\n
\t      Provided\tthat no Judge shall  be\t transferred
\n\t      from  one\t High Court to another\twithout\t his
\n\t      consent.\n<\/p><\/blockquote>\n
\t      The absence of such a provision shows that the
\n\t      founding\tfathers of the Constitution did\t not
\n\t      intend to restrict he transfer of Judges\tonly
\n\t      with their consent.  It is difficult to impose
\n\t      limitations  on the constitutional  provisions
\n\t      as  contained in Article 222 by importing\t the
\n\t      concept  of  consent  which  is  conspicuously
\n\t      absent therefrom”.\n<\/p><\/blockquote>\n
\t      “If consent is imported in Article, 222 so  as
\n\t      to make it a condition precedent to transfer a
\n\t      Judge, from one High ‘Court to another then  a
\n\t      Judge,  by withholding consent,  could  Tender
\n\t      the  power  contained in\tArticle\t 222  wholly
\n\t      ineffective  and nugatory.  It would  thus  be
\n\t      impossible to transfer a Judge if he does\t not
\n\t      give his consent even though he may have great
\n\t      personal\tinterests or close  associations  in
\n\t      his  own\tState or by his\t conduct  he  brings
\n\t      about    a   stalemate   in    the    judicial
\n\t      administration  where the Chief Justice  would
\n\t      become   more  or\t less  powerless.   In\t our
\n\t      opinion,\t the   founding\t  fathers   of\t the
\n\t      constitution could not have contemplated\tsuch
\n\t      a\t situation at all.  That is why Article\t 222
\n\t      was meant to take care of such contingencies.”
\n\t      Similarly, Chandrachud, J. took the same\tview
\n\t      and observed
\n\t      “The hardship, embarrassment or  inconvenience
\n\t      resulting\t to a Judge by reason of  his  being
\n\t      compelled\t to  become a litigant\tin  his\t own
\n\t      court, cannot justify the addition of words to
\n\t      an  article  of the  Constitution\t making\t his
\n\t      consent  a precondition of his  transfer.\t  In
\n\t      adding  such words, we will be  confusing\t our
\n\t      own  policy  views  with the  command  of\t the
\n\t      constitution”.\n<\/p><\/blockquote>\n
\t      In view of the decision of this Court which is
\n\t      binding  on  us, can it be said  that  if\t the
\n\t      power  of\t revocation of\tresignation  is\t not
\n\t      expressly\t contained in the  Constitution\t the
\n\t      same may be supplied by the application of the
\n\t      doctrine\tof implied powers.  The question  as
\n\t      to how far the doctrine of implied powers\t can
\n\t      be,  invoked has also been considered by\tthis
\n\t      Court  in several cases.\tTo quote one,  viz.,
\n\t      in  the case of Bidi, Bidi Leaves and  Tobacco
\n\t      Merchants’  Association, Gondia & Ors. v.\t The
\n\t      State.   of   Bombay   &\t Ors.<\/a>\t(1)    where
\n\t      Gajendragadkar,\t J.   speaking\t  for\t the
\n\t      Constitution  Bench of this Court observed  as
\n\t      follows :-\n<\/p><\/blockquote>\n
\t      “The definition of the term ‘wages’ postulates
\n\t      the  binding character of the other  terms  of
\n\t      the contract and brings within the purview  of
\n\t      the Act only one term and that relates
\n\t      (1)   A.I.R. 1962 S.C. 486.\n<\/p><\/blockquote>\n
\t      44<\/span><\/p>\n
\t      to  wages and no other.  That being so, it  is
\n\t      difficult to hold that by implication the very
\n\t      basic  concept  of  the term  ‘wages’  can  be
\n\t      ignored  and the other terms of  the  contract
\n\t      can  be dealt with by the notification  issued
\n\t      under  the  relevant provisions  of  the\tAct.
\n\t      When the said other terms of the contract\t are
\n\t      outside  the scope of the Act  altogether\t how
\n\t      could  they  be affected by  the\tnotification
\n\t      under  the Act under the doctrine\t of  implied
\n\t      powers”.<\/p><\/blockquote>\n
\t      “Therefore   the\tAct  has  made\ta   specific
\n\t      provision\t   for\t  the\t enforcement\t and
\n\t      implementation  of the minimum rates of  wages
\n\t      prescribed  by notifications. That is  another
\n\t      reason  why  the doctrine\t of  implied  powers
\n\t      cannot  be invoked in support of the  validity
\n\t      of the impugned clauses in the notification”.
\n\t      Thus,  an\t analysis  of  this  decision  would
\n\t      clearly  reveal that where express  provisions
\n\t      are made by a statute the doctrine of  implied
\n\t      powers   cannot  be  invoked  to\tsupply\t the
\n\t      provisions   which   had\t been\tdeliberately
\n\t      omitted.\t Same  view has been taken  by\tthe,
\n\t      Patna High Court in Sukhdeo Narayan & Ors.  v.
\n\t      Municipal Commissioners of Arrah\tMunicipality
\n\t      & Ors. (1) where the Court observed as follows
\n\t      :\n<\/p><\/blockquote>\n
\t      “I  hold, accordingly that the  withdrawal  of
\n\t      the  resignation\tof  the\t Chairman  (Opposite
\n\t      Party No. 2) as expressed in his letters,\t has
\n\t      no   effect   in\t law   and   the   Municipal
\n\t      Commissioners,  in their meeting on  19-1-1956
\n\t      had  jurisdiction to proceed on  the  question
\n\t      whether they should accept it or not.”\n<\/p><\/blockquote>\n
I fully endorse these observations.  For these reasons, I am
\nclearly\t of the opinion that in the absence of\tany  express
\nprovision  in Article 217 empowering a Judge to\t revoke\t his
\nresignation,  it  is difficult to accept the view  that\t the
\npower  of  resigning which has been conferred on  the  Judge
\nunder Article 217(a) carries with it the ‘inherent power  to
\nwithdraw  his resignation.  In this view of the matter I  am
\nafraid,\t I am not in a position to accept the submission  of
\nthe Attorney General on this point.\n<\/p>\n
I  might  mention  that the High  Court\t had  gone,into\t the
\nquestion as to whether the act of submitting resignation  by
\nthe  Judge  to\tthe  President\twas  a\tjuristic  act,\tand,
\ntherefore,  once the position was altered, it could  not  be
\nrecalled.   For the purposes of the present case and  having
\nregard\tto  the reasons that I have already given,  I  would
\nrefrain\t from  going  into this question  as  it  is  hardly
\nnecessary to, do so.  Furthermore, it seems to me that.\t the
\nact  of resignation by a Judge is a matter personal  to\t him
\nand however careful or cautious he may be in exercising this
\npower,\tthe concept of juristic act cannot be assigned to  a
\ndocument which is nothing but a letter of resignation,\tpure
\nand simple.  However, I do not want to dilate on this point,
\nbecause\t in  view  of my finding that there  is\t no  express
\nprovision in Article 217 empowering a Judge to withdraw\t his
\nresignation after the same is communicated to and  submitted
\nto  the President, it is not necessary for me to  spell\t out
\nthe concept of a juristic act.\n<\/p>\n
(1)  A.I.R. 1956 Patna 367, 373.\n<\/p>\n
45<\/span><\/p>\n
Another\t important angle of vision from which the  point  in
\nissue  can be approached is this.  Once it is conceded\tthat
\nthe  resignation be,comes complete without the necessity  of
\nthe  President\taccepting  the same,  the  very\t concept  of
\nwithdrawal  of the resignation disappears.  In other  words,
\nthe  question of withdrawal of a resignation arises only  if
\nthe  resignation has to be accepted by an employer,  because
\nso  long,  as a resignation is not accepted  it\t remains  an
\nincomplete  document  and  totally  ineffective.   In\tsuch
\ncircumstances, it is always open to the resignor to withdraw
\nhis   resignation  which  has  not  reached  the  stage\t  of
\ncompletion.   Such  are the cases of  resignation  given  by
\npersons\t who  are  governed  by\t usual\tmaster\tand  servant
\nrelationship.\tIt  appears that. in America even  though  a
\nprovision  for resignation is there, there is an  additional
\nprovision  that\t the  resignation has to be  accepted  by  a
\nparticular  authority and it is only in the context of\tthis
\npeculiar  relationship\tthat the American  authorities\thave
\ntaken  the view that a resignation can always  be  withdrawn
\nuntil it is accepted.  ‘this state of affairs is  completely
\nforeign to the provisions of our Constitution are  concerned
\nwhich  do  not at all require the President  to\t accept\t the
\nresignation  of a Judge.  If once the concept of  acceptance
\nof  resignation\t is  totally  absent,  in  my  opinion,\t the
\nquestion of withdrawal of the, resignation does not arise at
\nall,  because  the  resignation having\tbeen  submitted\t and
\ncommunicated   to   the\t President  becomes   complete\t and
\nirrevocable  once it is communicated.to and received by\t the
\nPresident.  In fact, Article 217 does not envisage or enjoin
\na conditional or prospective resignation. But assuming\tthat
\nthe power to resign carries with it the power to resign from
\na  particular  date,  the conclusion appears  to  me  to  be
\ninescapable that once the resignation is communicated to the
\nauthority concerned viz., the President in the instant case,
\nthe resignation will become irrevocable and will take effect
\nautomatically  ex proprio vigore from the date mentioned  in
\nthe  letter.   The mere fact that the  resignor\t mentions  a
\nparticular  date from which he wants to resign does  not  at
\nall empower him to withdraw or revoke his resignation at any
\ntime  before the date is reached.  Such a  conclusion  would
\nhave   been  possible  only  if.  the  completeness   of   a
\nresignation depended on the acceptance of the resignation by
\nthe  authority concerned, because in such a case  until\t the
\nresignation was accepted it was no resignation in the eye of
\nlaw  and  could always have been recalled.   But  where\t the
\nconcept\t of acceptance of resignation is.totally absent,  it
\nseems to me to be a contradiction in terms to say that\teven
\nthough\tthe  resignation has been submitted  to\t the  proper
\nauthority  and\treceived  by him still it  can\tbe  recalled
\nbefore the date is reached.  I am not in a position to\thold
\nthat  a resignation revealing an intention to resign from  a
\nparticular date is a conditional resignation.  It is only  a
\nprospective  resignation,  but\tin  view  of  the   peculiar
\nprovisions of Article 217(1) (a) it becomes irrevocable\t the
\nmoment it is received by the President or is communicated to
\nhim though it may take effect from the date mentioned in the
\nletter or if no such date is mentioned from the date of\t the
\nletter itself.\n<\/p>\n
I now turn to the Full Bench decision of the Allahabad\tHigh
\nCourt  in  the\tcase  of  Bahori  Lal  Paliwal\tv.  District
\nMagistrate,  Rulandshahr & Anr.(1) which is being relied  on
\nby the appellant.  Chaturvedi, J,
\n(1)  A.I.R. 1956 All. 511.\n<\/p>\n
46<\/span><\/p>\n
while drawing a distinction between the Indian law under the
\nU.P.  Town Areas Act which was the subject matter of  review
\nby the Court and the English Law on the subject observed  as
\nfollows
\n\t      “The Indian Law under the U.P. Town Areas Act,
\n\t      however has not followed the English statutory
\n\t      law in this respect because the provisions  of
\n\t      S.8-A of the Indian Act provide for acceptance
\n\t      of the resignation by the District Magistrate,
\n\t      which  clearly shows that the  resignation  is
\n\t      not effective till it is accepted”.\n<\/p>\n
Furthermore,  it would appear that under the  provisions  of
\nthe statute in that case the resignation had to be  accepted
\nby  the appropriate authority and it was on this basis\tthat
\nthe  Court held that the person had a right to withdraw\t his
\nresignation before it was accepted or before his office\t had
\ncome to an end.\t The Court further observed as follows
\n\t      “A   resignation\t which\t depends   for\t its
\n\t      effectiveness  upon  the acceptance  by\tthe
\n\t      proper authority is like an offer which may be
\n\t      withdrawn before, it is accepted”.\n<\/p>\n
These  observations do not help, the case of  the  appellant
\nbut  fortify  the  conclusion that I have  reached.   It  is
\nmanifest  that where effectiveness of a resignation  depends
\nupon  acceptance of the same by the proper authority it\t can
\nalways\tbe withdrawn until accepted because the\t resignation
\nis  not complete in the eye of law.  This is what  has\tbeen
\nheld  by the Full Bench of the Allahabad High Court  in\t the
\naforesaid case.\n<\/p>\n
Another decision to which our attention was drawn by counsel
\nfor  the appellant is the case of Bhairon Singh\t Vishwakarma
\nv.  The Civil Surgeon, Narsimhapur & Ors.(1) This case\talso
\ncontains the same principle which has been enunciated in the
\nAllahabad  case\t referred  to  above,  viz.,  that  where  a
\nresignation  is\t dependent  for\t its  effectiveness  on\t the
\nacceptance  by the proper authority, it can be withdrawn  at
\nany time before the acceptance is given.  This case was also
\ndealing\t with a public servant to which Article 311  applied
\nand  the resignation bad to be accepted by the\tDirector  of
\nPublic\tHealth.\t  I  do not see how  this  case\t helps,\t the
\nappellant in any way.\n<\/p>\n
Thus the position that emerges from the aforesaid  decisions
\nis that where a resignation given by a Government servant is
\ndependent  for\tits effectiveness on the acceptance  by\t the
\nappropriate authority, the government servant concerned\t has
\nan  unqualified right to withdraw the resignation until\t the
\nsame  is  accepted by the authority.  In  other\t words,\t the
\nposition  is that where the resignor has a right  to  resign
\nbut  the  resignation  can  be\teffective  for\tonly   after
\nacceptance,  it\t is  a\tbilateral  act.\t  That\tis  to\tsay,
\nresignation  by one, authority and acceptance of the  resig-
\nnation\tby  the other authority.  Unless the  two  acts\t are
\ncompleted,  the\t transaction remains in\t an  inchoate  form.
\nThat  is  to  say a resignation\t sent by  a  servant  is  no
\nresignation in the eye of law until accepted by the employer
\nand so long as it is not an effective resignation, there can
\n(1)  [1971] Lab.  I.C. 121.\n<\/p>\n
47<\/span><\/p>\n
be no bar to withdrawing the same.  The, same however cannot
\nbe  said  of a resignation tendered by a  High\tCourt  Judge
\nunder  Article 217(1) or other constitutional  functionaries
\nreferred   to\thereinbefore  because  in  cases   of\tsuch
\nfunctionaries  the  act of resignation is a purely  an\tuni-
\nlateral\t act  and  once\t the  resignation  is  written\t and
\ncommunicated to the President it acts ipso facto and becomes
\nfully\teffective  without  there  being  any  question\t  of
\nacceptance by the President.  I have already held that where
\na particular date is given in the letter of resignation, the
\nresignation will be effective from that particular date, but
\nit  does not mean that the resignor had any right to  recall
\nhis  resignation merely because he has chosen  a  particular
\ndate  from which the resignation is to take effect.  On\t the
\nother hand, the resignation becomes complete and irrevocable
\nand  cannot  be\t recalled either before or  after  the\tdate
\nmentioned  is reached Having signed the resignation and\t put
\nthe same in the course of transmission to the President\t the
\nJudges loses all control over the same and becomes  functous
\nofficio and the resignation becomes effective as soon as the
\ndate  arrives  without\tleaving any room  or  scope  to\t the
\nresignor  to  change his decision.  This appears to  be\t the
\nconstitutional scheme prescribed for the resignation of High
\nCourt Judges, Supreme Court Judges and other  constitutional
\nfunctionaries.\t In  fact,  all\t the  cases  cited  by\t the
\nappellant  excepting some are cases where the  effectiveness
\nof  the\t resignation  depends  on  the\tacceptance  of\t the
\nresignation.\n<\/p>\n
I  am fortified in my view by the observations made  in\t the
\nAmerican Jurisprudence Vol. 53 page 111 section 34 where the
\nfollowing observations are to be found :\n<\/p>\n
“The contract of employment is terminated where the employee
\ntenders his resignation and the proffer (sic) is accepted by
\nthe employer”.\n<\/p>\n
These  observations  clearly illustrate that a\tcontract  of
\nemployment  can only be terminated by a bilateral act,\tthat
\nis to say, resignation by the employee and acceptance by the
\nemployer.\n<\/p>\n
In short, it seems to me that a resignation contemplated  by
\nArticle\t 217  (1)  (a)\tis a unilateral\t act  which  may  be
\ncompared to an action of withdrawing a suit by the plaintiff
\nunder  Order  23 Rule 3, C.P.C. Once a\tplaintiff  files  an
\napplication  withdrawing a suit, the suit  stands  withdrawn
\nand  becomes effective as soon as it is withdrawn.   In\t the
\ncase  of Smt.  Raisa Sultana Begam and Ors. v.\tAbdul  Qadir
\nand  others(,) a Division Bench of the Allahabad High  Court
\nobserved as follows
\n\t      “Since withdrawing a suit is a unilateral\t act
\n\t      to  be  done  by\tthe  plaintiff\trequires  no
\n\t      permission  or order of the Court and  is\t not
\n\t      subject to any condition, it becomes effective
\n\t      as  soon as it is done just as.  a  compromise
\n\t      does……… The act is like a point and\t not
\n\t      continuous like a line having a beginning\t and
\n\t      an end.  Either it is done or not done;  there
\n\t      is nothing like its being done incompletely or
\n\t      ineffectively.   The consequence of an act  of
\n\t      withdrawal is that the plaintiff ceases to  be
\n\t      a plaintiff before the Court”.\n<\/p>\n
(1)  A.I.R. 1966 All. 318, 321.\n<\/p>\n
48<\/span><\/p>\n
The  same  principle applies to resignation submitted  by  a
\nHigh Court Judge under Article 217(1)(a).  The\tresignation,
\nwhich  is a unilateral act, becomes effective as soon as  it
\nis communicated to the President.\n<\/p>\n
 The appellant however, placed great reliance on a  decision
\nof  the\t Kerala High Court in the case\tof  M.\tKunjukrishna
\nNadar  v.  Hon’ble  Speaker  Kerala  Legislative   Assembly,
\nTrivandrum and Ors.(1). This was a case under  Article190(3)
\nof  the\t Constitution  by  a  member  of  the  Assembly\t who
\naddressed  a  communication  to the  Speaker  tendering\t his
\nresignation.   A Single Judge of the Kerala High Court\theld
\nthat the letter of resignation could not be effective  until
\nthe date prescribed therein had reached and the notification
\npublished  in the Gazette regarding the vacancy of the\tseat
\nof the member was not warranted by law.\t In the first Place,
\nthe Court was really concerned with the point of time as  to
\nwhen  the actual vacancy of the member would arise  and\t the
\nseat would become vacant so as to justify a notification for
\nfresh  election.  The point which is in issue before us\t did
\nnot arise in this shape in the Kerala case at all.  In\tthis
\nconnection, the learned Judge observed as follows :-\n<\/p>\n
\t       “I hold therefore that it is open to a member
\n\t      of  the Legislature to tender his\t resignation
\n\t      on a prior date to take effect on a subsequent
\n\t      date  specified  therein.\t The letter  of\t re-
\n\t      signation\t has then to be construed as  having
\n\t      been deposited with the Speaker on the earlier
\n\t      date,  to be given effect to only on the\tdate
\n\t      specified by the Member therein”.
\n\t      “The  withdrawal nullifies the entrustment  or
\n\t      deposit  of the letter of resignation  in\t the
\n\t      hands of the Speaker, which must thereafter be
\n\t      found  to\t have become non-est in the  eye  of
\n\t      law.  The absence of a specific provision
\n\t      for  withdrawal of prospective resignation  in
\n\t      the Constitution or the Rules is immaterial as
\n\t      basic principles of law and procedure must  be
\n\t      applied wherever they are relevant.”\n<\/p><\/blockquote>\n
While  I find myself in complete agreement with\t respect  to
\nthe  first portion of the observation of the learned  Judge,
\nviz.,  that  it\t was  open  to\tthe  Member  to\t submit\t his
\nresignation  to\t be  effective from  a\tsubsequent  date,  I
\nexpress\t my  respectful dissent from the view taken  by\t the
\nlearned\t  Judge\t  that\ta  Withdrawal  would   nullify\t the
\nresignation  completely and even if there was  no  provision
\nfor withdrawal of the resignation the same will become\tnon-
\nest  after  it\tis  withdrawn.\tThe Judge  has\tnot  at\t all
\ndiscussed the law on the subject nor has he referred to\t the
\nconstitutional\tprovisions relating to resignation In  fact,
\nthe  35th  Amendment Act itself shows that  the\t concept  of
\nacceptance  of resignation was completely absent before\t the
\namendment  was brought about and the legal  position  before
\nthe  amendment was that the resignation would  operate\tipso
\nfacto  and  ex proprio vigore and could\t not  be  withdrawn.
\nThat is why a specific power of acceptance
\n(1)  A.I.R.1964 Ker.194.\n<\/p>\n
49<\/span><\/p>\n
was  introduced\t by  virtue of the  amendment.\t As  however
\nParliament did not intend to disturb the position in case of
\nother  constitutional  functionaries  like  the\t High  Court
\nJudges,\t Supreme  Court Judges,\t President,  Vice-President,
\nSpeaker\t etc. no such amendment by introducing- the  concept
\nof  acceptance\tof  the resignation  was  brought  about  in
\nArticle\t  217  and  other  similar  Articles.\tIndeed,\t  if
\nParliament  really intended that the resignation given by  a
\nHigh  Court  Judge  or\tother  constitutional  functionaries
\nindicated   above  could  withdraw  the\t resignation   after
\ncommunicating the same to the appropriate authority or\teven
\nbefore the date from which the resignation was to operate, a
\nsuitable amendment could have been made in these Articles so
\nas  to\tconfer\tan  express  power  on\tthe   constitutional
\nfunctionaries to do so.\t The fact that no such provision was
\nmade confirms my view that Parlia Tent clearly intended that
\nthe  resignation  of constitutional  functionaries  being  a
\nsacrosanct  act\t should\t remain as it was  intended  by\t the
\nfounding   fathers  of\tthe  Constitution,  viz.,   once   a
\nresignation  is submitted or communicated to the  President,
\nit  becomes final and irrevocable and cannot be recalled  by
\nthe  functionary concerned.  Thus,.   Parliament  maintained
\nthe  unilateral nature of the act of resignation.  In  these
\ncircumstances,\ttherefore,  I  am  not\table  to  place\t any
\nreliance  on the judgment of the Kerala High Court cited  by
\ncounsel for the appellant.’
\n The Full Bench decision of the Delhi High Court in the case
\nof Y.\t  K.  Mathur & And. v. The  Commissioner,  Municipal
\nCorporation of Delhi  &\t Ors.(1) appears to  have  been\t the
\nsheet-anchor  of the arguments of the Attorney\tGeneral\t for
\nthe proposition that a prospective resignation submitted  to
\nthe appropriate authority could be withdrawn by the resignor
\nat  any\t time  before the date mentioned in  the  letter  of
\nresignation  is\t reached.   I  have  carefully\tperused\t the
\naforesaid  decision and I am unable to agree with  the\tview
\ntaken  by the Delhi High Court for the reasons that I  shall
\ngive hereafter.\n<\/p>\n
To  begin with, the Court was considering the provisions  of
\nsection\t 33(1)(b)  of the Delhi\t Municipal  Corporation\t Act
\nwhich may be extractud thus
\n“33(1) If a councillor or an alderman (a)…………….\n<\/p>\n
(b)resigns  his seat by writing under his hand addressed  to
\nthe  mayor and delivered to the commissioner his seat  shall
\nthereupon become vacant”.\n<\/p>\n
It was vehmently contended by the appellant that section  33
\n(1)  (b) (supra) was in absolute pari-materia  with  Article
\n217(1) (a), and therefore, the interpretation placed by\t the
\nDelhi High Court on this section would clearly apply to\t the
\nfacts\tof   the   present  case  which\t  depends   on\t the
\ninterpretation of Article 217(1)(a).  In the first place,  I
\nam  unable to agree with tile Attorney General that the\t pro\n<\/p>\n
-visions  of  the  Municipal Act can  be  equated  with\t the
\nprovisions contained in the Constitution of India.  There is
\na world of diffe-\n<\/p>\n
(1)  A.I.R. 1974 Delhi 58.\n<\/p>\n
50<\/span><\/p>\n
rence  between a constitutional functionary which  has\tbeen
\nassigned. a special status and given a high place under\t the
\nconstitutional provisions and a municipal councillor elected
\nunder the, local Municipal Act.\t It is obvious that in\tboth
\nthese  cases  the  self same  considerations  and  identical
\nprinciples  cannot be applied because of the nature  of\t the
\nposition  held by these two authorities.  The  High.   Court
\nheld that as the statute did not limit the authority of\t the
\ncouncillor to resign from a prospective date, the  authority
\nconcerned had the undoubted power to withdraw it before\t the
\ndate is reached.  In this connection, the Court observed  as
\nfollows
\n\t      “The  statute  does not in any way  limit\t the
\n\t      authority\t of the councillor who has sent\t his
\n\t      resignation   from  a  prospective   date\t  to
\n\t      withdraw it before that date is reached.\t The
\n\t      resignation  which is to be effective  from  a
\n\t      future  date necessarily implied that if\tthat
\n\t      date  has not reached it would be open to\t the
\n\t      councillor concerned to withdraw it”.\n<\/p>\n
These observations suffer from an apparent fallacy.  In\t the
\nfirst  place,  the Court seems. to assume that there  is  an
\nimplied power to withdraw the resignation where the resignor
\ngives  a  particular  date from\t which\tthe  resignation  is
\neffective,   In\t the  absence  of  any\t express   provision
\nconferring  such a power, it was not open to the High  Court
\nto  invoke the doctrine of implied powers as pointed out  by
\nme  earlier.   An implied power cannot be  conferred  on  an
\nauthority by a process of legal assumptions, in the  absence
\nof any express provision.\n<\/p>\n
Another\t argument which weighed heavily with the High  Court
\nwas  that there was no law which compelled a  councillor  to
\ngive his resignation if he did not want it, and,  therefore,
\nif a councillor chose-‘ to resign, he could not be  debarred
\nfrom  withdrawing it at any time before the date from  which
\nthe resignation was to be effectively reached. This argument
\nfails  to take into consideration the hard realities of\t the
\nsituation contemplated both by section 33(1)(b) and Article-
\n217  (1) (a) ‘of the Constitution.  There is no question  of
\nthere  being  any compulsion on the resignor to\t submit\t his
\nresignation.   In fact,. both section 33(1)(b)\tand  Article
\n217(1)(a)  merely conferred a privilege on the\tresignor  to
\noffer his resignation if he so desired.\t It depends upon the
\nsweet  will  of the councillor to resign or not\t to  resign.
\nFrom  this however it cannot be inferred that where  once  a
\nresignation  is submitted and results in  certain  important
\nconsequences,  namely, that the resignation acts ex  proprio
\nvigore, yet the resignor can still’ withdraw his resignation
\nand  thus  nullify the effectiveness of the  resignation  as
\ncontemplated both by section 33(1)(b) and Article 217(1)(a).
\nSuch  an  interpretation appears to be\ta  contradiction  in
\nterms and against a plain interpretation of section 33(1)(b)
\nof   the  Municipal  Act  and  Article\t217(1)(a)   of\t the
\nConstitution.\t Furthermore,  the  provision\tof   section
\n33(1)(b) does not appear to be in complete pari-materia with
\nthose  of  Article 217(1) (a) inasmuch as  section  33(1)(b)
\nprovides  that as ‘soon as the resignation was delivered  to
\nthe Commissioner the seat of the councillor shall become
\n\t\t51<\/span>
\nvacant.\t  On the interpretation of this provision the  Delhi
\nHigh  Court held that the vacancy could occur only when\t the
\nresignation became effective and if the resignation was from
\na future date both the resig-nation. and the vacation of the
\nseat  could be simultaneous.  In this connection, the  Court
\nobserved as follows
\n\t      “Under  section 33(1)(b) both the\t resignation
\n\t      and the vacancy of the seat are effective from
\n\t      the  same time…… Vacancy will\t only  occur
\n\t      when  resignation is effective, and if  it  is
\n\t      from future date both resignation and vacation
\n\t      of seat will be effective simultaneously”.
\nSo  far as Article 217(1)(a) is concerned it is\t differently
\nworded and the consequence of the resignation is not at\t all
\nindicated in this Article.  Thus, the provisions of  Article
\n217(1)(a) cannot be said to be in complete peri materia with
\nsection 33(1) (b) of the Municipal Corporation Act.
\nThirdly, as I have already pointed out the consideration  by
\nwhich the Court is Governed and the principles which it\t may
\nseek  to  apply\t to a municipal\t councillor  cannot  by\t any
\nprocess\t of reasoning or principle of logic be applied to  a
\nHigh  Court  Judge  or\tother  Constitutional  functionaries
\ngoverned by constitutional provisions.\tFourthly, the  Delhi
\nHigh Court has applied the doctrine of implied powers  which
\nas  discussed above cannot apply where there is\t no  express
\nprovision  justifying  a particular  situation.\t  For  these
\nreasons,  with due deference to the Judges constituting\t the
\nFull  Bench of the Delhi High Court I find myself unable  to
\nagree with the view taken by them.  In my opinion, the Delhi
\ncase referred to above is either distinguishable or even  if
\nit be taken to be directly in point, it is wrongly decided.
\nOn the other hand, there are some English cases which  throw
\na  flood of light on the view that  propose to take in\tthis
\ncase  and  which  have\tbeen relied  upon  by  the  majority
\njudgment  of  the  Allahabad High Court.   In  the  case  of
\nReichel v. Bishop of Oxford(1) it was held that a clerk\t who
\nhad  tendered his resignation to the Bishop cannot  withdraw
\nit,  even  before  acceptance, if,  in\tconsequence  of\t the
\ntender, the position of any party has been altered.  In that
\ncase  the  Bishop had been thereby induced to  abstain\tfrom
\ncommencing  proceedings in the Ecclesiastical Court for\t the
\ndeprivation of the clerk, in view of his resignation.\tLord
\nNorth after considering all the aspects of the case observed
\nas follows :\n<\/p>\n
\t      “Applying\t that  to  the\tpresent\t case,\t the
\n\t      Plaintiff,  by  sending  in  his\tresignation,
\n\t      procured\ta postponement of legal\t proceedings
\n\t      against  himself,\t and thereby,  according  to
\n\t      ecclesiastical,  law,  incapacitated   himself
\n\t      from wthdrawing it during, the interval
\n\t      before  the  1st of October; and\tthis  result
\n\t      would  follow,  even if the true view  of\t the
\n\t      facts. be, that the Bishop did not accept\t the
\n\t      resignation until that date.\n<\/p><\/blockquote>\n
\t      (1)   1887) Ch.  D. 48.\n<\/p><\/blockquote>\n
\t      52<\/span><\/p>\n
\t      Under  these circumstances, it appears  to  me
\n\t      that  the plaintiff’s attempt to withdraw\t his
\n\t      resignation  fails entirely, and that,  having
\n\t      failed  on  all  points, the  action  must  be
\n\t      dismissed with costs”.\n<\/p><\/blockquote>\n
\t      This  decision  was affirmed by the  Court  of
\n\t      Appeal  and it was held that  the\t resignation
\n\t      was validly executed and irrevocable.  In\t the
\n\t      Appeal Case Lord Halsbury observed as  follows
\n\t      :\n<\/p><\/blockquote>\n
\t      “But there was no condition here at all.\tAs I
\n\t      have  already said, I find as a fact that\t Mr.
\n\t      Reichel  agreed absolutely to,  resign  rather
\n\t      than  undergo  the inquiry  which\t the  Bishop
\n\t      would have felt himself otherwise compelled to
\n\t      institute.   Neither in form nor in  substance
\n\t      was the resignation conditional”.
\n\t      Lord Herschell observed as follows
\n\t      ”\t in  these  circumstances  it  is  idle\t  to
\n\t      consider\twhat the Appellant’s position  might
\n\t      have   been,  if\tthere  had  been   Do\tsuch
\n\t      arrangement,  and\t he merely had sent  in\t his
\n\t      resignation without knowing whether it was  to
\n\t      be  accepted or not.  He cannot in my  opinion
\n\t      be permitted to upset the agreement into which
\n\t      he voluntarily entered, and which he has\tdone
\n\t      all  that\t he  could  to\tcomplete,  upon\t the
\n\t      allegation that there was no formal acceptance
\n\t      of  the resignation until the 1st of  October,
\n\t      1886″.\n<\/p><\/blockquote>\n
\t      Lord Herschell observed as follows
\n\t      ” It was argued further by the appellant\tthat
\n\t      inasmuch\tas his resignation was\ttendered  to
\n\t      the  Bishop on the understanding that  it\t was
\n\t      not  to be accepted until a  subsequent  date.
\n\t      the  resignation\twas a conditional  one,\t and
\n\t      therefore void.  I can see no ground for\tsuch
\n\t      a\t contention.  The resignation was  absolute.
\n\t      It was intended to take effect in any event”.\n<\/p><\/blockquote>\n
These  observations  also  show\t that  merely  because\t the
\nresignation  is\t to take effect from a particular  date,  it
\ndoes  not become a conditional resignation and its  absolute
\nnature is not changed at all, because the Law Lords as\talso
\nthe  Chancery  Division proceeded on the footing  that\teven
\nthough the resignation of the clerk was to take effect\tfrom
\na  certain  date it was not conditional but  absolute.\t The
\nlearned counsel for he appellant sought to, distinguish this
\ncase  on  the  ground that in the Bishop’s  case  (supra)  a
\nmaterial change had already taken place, which could not  be
\nreversed  and that is why it was held that  the\t resignation
\ncould not be withdrawn.\t It is true that this was one of the
\ngrounds\t taken both by the Chancery Division Court  and\t the
\nAppeal Court, but the same reason will apply to the  present
\ncase also because once a resignation was submitted by Satish
\nChandra to take effect from the 1st August, 1977, the Presi-
\ndent  was  clearly entitled to fill up the  vacancy  of\t the
\nJudge from 1st August, 1977 and may take steps\taccordingly.
\nThus, by virtue of
\n53<\/span>
\nhis resignation Satish Chandra had invited the President  to
\ntake  steps to fill up the vacancy which will arise  on\t 1st
\nAugust, 1977.  By virtue of this representation,  therefore,
\na  material  change  undoubtedly  took\tplace.\t For   these
\nreasons,  therefore,  I am not in a position t0\t accept\t the
\narguments of counsel for the appellant on this score.
\nIn the case of Finch v. Oake(1) a member under Trade Protec-
\ntion Society was entitled to retire at any time without\t the
\nconsent of other members.  On the receipt by the society  of
\na  letter  from a member stating his wish to retire,  he  at
\nonce  ceased  to, be a member without the necessity  of\t the
\nacceptance  by the society of his resignation. It  was\theld
\nthat  the  member could not withdraw  his  resignation\teven
\nbefore\tacceptance and he could only become a  member  again
\nafter  reelection.   It would be seen  that  the  principles
\ndecided\t in  this case apply directly to the  facts  of\t the
\npresent case where also under the provisions of Article\t 217
\nthe  effectiveness of resignation does not depend  upon\t the
\nacceptance of the same by the appropriate authority.  In the
\naforesaid case Lindley, L.J. observed as follows
\n\t      “By  paying  his\tsubscription  he  no   doubt
\n\t      acquires\tcertain\t rights and  benefits.\t But
\n\t      what  is\tthere to prevent him  from  retiring
\n\t      from  the\t association at any  moment  ‘if  he
\n\t      wishes  to do so ? Absolutely nothing.  In  my
\n\t      opinion  no acceptance of his  resignation  is
\n\t      required, though of course he cannot get\tback
\n\t      the  10s.6d. which he has paid……..  I\t can
\n\t      see no principle of law which entitles him  to
\n\t      withdraw his resignation”.\n<\/p>\n
\t      Kay, L. J. observed as follows
\n\t      “It  is said that, before his resignation\t had
\n\t      been accepted by the association, be  withdrew
\n\t      it.  But why was any consent to his withdrawal
\n\t      from  the\t society required ? As\ta  voluntary
\n\t      member of a voluntary society he had said,  “I
\n\t      do   not\twish  to  continue  a\tmember\t any
\n\t      longer…….. In my opinion, after his letter
\n\t      of   resignation\t had  been   received,\t the
\n\t      plaintiff\t could not become, a member  of\t the
\n\t      society again without being reelected”.\n<\/p>\n
\t      In  my  opinion, the principles laid  down  by
\n\t      this  case  seem to be in all fours  with\t the
\n\t      facts of the present case.\n<\/p>\n
In  the\t case of People of the State of Illinois  Ex.\tRel.
\nBenjamin  S. Adamowski, v. Otto Kerner(2) what happened\t was
\nthat  a\t County\t Judge- submitted  his\tresignation  to\t the
\nGovernor which was to become operative on a specified  date.
\nBut the Judge sought to. withdraw the resignation before the
\ndate  mentioned in the resignation and before  the  Governor
\nhad  acted  thereon.  It was held by  the  Illinois  Supreme
\nCourt that the resignation could not be withdrawn.  In\tthis
\nconnection.   Davis, J. while delivering the opinion of\t the
\ncourt observed as follows
\n(1)  [1896] 1 Ch.  D. 409.\n<\/p>\n
(2)  82 A.L.R. 2tid Series 740.\n<\/p>\n
54<\/span><\/p>\n
\t      “However, public policy requires that there be
\n\t      certainly as to who are and who are not public
\n\t      officers……  Therefore, the resignation  of
\n\t      an officer effective either forthwith or at  a
\n\t      future  date may not be withdrawn\t after\tsuch
\n\t      resignation  is received by or filed with\t the
\n\t      officer authorized by law to fill such vacancy
\n\t      or to call an election for such purpose”.
\n\t      It  is true that Schaefer, J. and Hershey,  J.
\n\t      dissented\t from the view taken by\t Davis,\t J.,
\n\t      but I would prefer to follow the view taken by
\n\t      Davis,  J. which falls in line with the  tenor
\n\t      and   the\t  spirit   of\tthe   constitutional
\n\t      provisions   which  we  are  called  upon\t  to
\n\t      interpret here.\n<\/p><\/blockquote>\n
\t      Similarly,   in\tthe  case  of\tGlossop\t  v.
\n\t      Glossop(1)  it  was  held\t that  the  managing
\n\t      director\tcould not withdraw  the\t resignation
\n\t      without the consent of the company, and by his
\n\t      letter  of resignation be vacated his  office.
\n\t      Neville,\tJ. while adumbrating  the  aforesaid
\n\t      principles observed as follows :-
\n\t      “I have no doubt that a director is  en-titled
\n\t      to  relinquish  his  office  at  any  time  he
\n\t      pleases  by proper notice to the company,\t and
\n\t      that  his resignation depends upon his  notice
\n\t      and  is not dependent upon any  acceptance  by
\n\t      the  company, because I do not think they\t are
\n\t      in   a   position\t  to   refuse\t acceptance.
\n\t      Consequently,   it  appears  to  me   that   a
\n\t      director,\t once  having given  in\t the  proper
\n\t      quarter  notice  of  his\tresignation  of\t his
\n\t      office,  is  not\tentitled  to  withdraw\tthat
\n\t      notice, but, if it is withdrawn, it must be by
\n\t      the consent of the company properly  exercised
\n\t      by  their managers, who are- the directors  of
\n\t      the company”.\n<\/p><\/blockquote>\n
It would appear, from a conspectus of the authorities  cited
\nabove and on a close and careful analysis of the  provisions
\nof Article 217(1) of the Constitution of India having regard
\nto  the\t setting of the spirit in which this  provision\t was
\nengrafted  that\t the more acceptable view seems to  be\tthat
\nwhere the effectiveness of a resignation by a Judge does not
\ndepend\tupon the acceptance by the President and the  resig-
\nnation\tacts  ex  proprio vigore on the\t compliance  of\t the
\nconditions  mentioned  in Articie 217 (1) (a)  (that  is  by
\nwriting under his hand addressed to the, President and being
\ncommunicated  the  same to the President) the Judge  has  no
\npower  to  revoke or recall the aforesaid  resignation\teven
\nthough\the may have fixed a particular date from  which\t the
\nresignation  is to be effective.  In other words the act  of
\nresignation  is a purely unilateral act and the\t concept  of
\nwithdrawal or recalling or revoking the resignation  appears
\nto   be\t totally  foreign  to  the  provisions\tof   Article
\n217(1)(a).\n<\/p>\n
Counsel\t for the appellant relied on Corpus Juris  Secundum,
\nAmerican Jurisprudence and other books. of eminent  authors,
\nwhich do not appear to me to be very helpful in deciding the
\npoint in issue in the present case.  In the first place\t the
\nprovision   of\t the  American\t Constitution\tas   regards
\nresignation of Judges is quite different.  In
\n(1)  (1907) 2 Ch.  D. 370.\n<\/p>\n
55<\/span><\/p>\n
fact,  there  is  no  provision\t at  all  in  the   American
\nConstitution entitling a Judge to resign.  Article 3 section
\n1  of  the American Constitution as edited by  Corwin  shows
\nthat   although\t Article  3  Section  1\t of   the   American
\nConstitution confers judicial powers on the United States in
\none  Supreme  Court  and other inferior\t Courts\t as  may  be
\nestablished by the Congress it provides that Judges both  of
\nthe  Supreme  Court  and inferior Courts  shall\t hold  their
\noffice\tduring\tgood behaviour.\t Apart from  this  provision
\nthere is no provision in the Constitution regarding the mode
\nand  manner in which the Judges could resign  their  office.
\nIn the absence of any such provision, the general principles
\nhave been applied which includes cases where a Judge tenders
\nhis  resignation  either prospectively or with\ta  condition
\nattached  to  the  same and such a  resignation\t has  to  be
\naccepted  by the President and can be withdrawn at any\ttime
\nbefore\tthe  date  fixed  is  reached.\t These\t principles,
\nhowever,  cannot  be  applied to our  Constitution  where  a
\ndefinite mode and a prescribed procedure has been formulated
\nfor the resignation of a Judge and the consequences  flowing
\nthereof.  In these circumstances, therefore, we, can  derive
\nlittle help from the provisions of the American Constitution
\non  the\t question at issue.  In the absence of\tany  express
\nprovision,  the courts have applied the common law which  is
\nto the effect that in the absence of a statute providing for
\nresignation,  the  resignation\tbecomes\t effective  on\t its
\nacceptance  by the proper authority.  Similarly, it is\tlaid
\ndown that a prospective resignation may be withdrawn at\t any
\ntime  before its acceptance vide Corpus Juris Secundum\tVol.
\n48 p. 973 para 25 which runs thus :-\n<\/p>\n
\t      “The  term or tenure of a judge, with  respect
\n\t      to  the  incumbent, may become  terminated  by
\n\t      reason of his resignation.  In the absence  of
\n\t      a\t statute providing otherwise, a\t resignation
\n\t      becomes  effective  on its acceptance  by\t the
\n\t      proper  authority,  but, in  order  to  become
\n\t      effective it must be accepted.  A\t prospective
\n\t      resignation  may\tbe  withdrawn  at  any\ttime
\n\t      before  it  is  accepted,\t and  after  it\t  is
\n\t      accepted it may be withdrawn by the consent of
\n\t      _the  accepting authority, at least  where  no
\n\t      new rights have intervened”.\n<\/p><\/blockquote>\n
\t      Similarly, in Corpus Juris Secundum Vol. 67 p.
\n\t      227 para 55 the following observations are  to
\n\t      be found :\n<\/p><\/blockquote>\n
\t      “However,\t under\ta statute providing  that  a
\n\t      resignation shall take effect on due  delivery
\n\t      to the officer to whom it is addressed without
\n\t      making  provision\t for  a\t  prospective.resig-
\n\t      nation,  a  resignation to take  effect  at  a
\n\t      future,  date  is not  permissible,  and\tsuch
\n\t      resignation becomes effective on due  delivery
\n\t      and  creates  a  vacancy as  of  the  date  of
\n\t      delivery”.\n<\/p><\/blockquote>\n
\t      These observations do not seem to be  directly
\n\t      in point but come as close as possible to\t the
\n\t      view taken by me.\n<\/p><\/blockquote>\n
The learned counsel for respondent No. 1 Mr. Jagdish  Swarup
\ntook  us  through extracts of a number\tof  books  including
\nPaton’s\t Jurisprudence\tand Salmond’s Jurisprudence  with  a
\nview to explain
\n56<\/span>
\nthe incidents and qualities of a legal right.  The extracts,
\nhowever, do not appear to me to be relevant to the facts  of
\nthe present case where we are dealing with a codified  right
\nwhich  has  to be performed within the four corners  of\t the
\nconstitutional provisions.  The general principles contained
\nin  the\t book  of the eminent jurists  referred\t to  by\t Mr.
\nJagdish\t Swarup\t cannot\t be disputed.\tThe  main  question,
\nhowever,  is as to what is the effect of the  provisions  of
\nArticle\t 217(1)\t (a)  of the  Constitution  of\tIndia  which
\nprescribes  a  particular mode for the resignation  of\tHigh
\nCourt  Judges.\tI, therefore, do not think it  necessary  to
\nadvert\tto  the books referred to by the High  Court  or  by
\ncounsel for the first respondent.\n<\/p>\n
Thus,  from the conclusions arrived by me on  the  questions
\ninvolved  in  this appeal the following propositions  in  my
\nopinion emerge\n<\/p>\n
1.   That  the\tconcept\t of the\t acceptance  of\t resignation
\nsubmitted  by a High Court Judge is completely\tabsent\tfrom
\nArticle\t 217(1)(a) and the effectiveness of the\t resignation
\ndoes   not  at\tall  depend  upon  the\tacceptance  of\t the
\nresignation  by the President nor does such a question\tever
\narise.\tThis is how the Executive Government has implemented
\nthe law for wherever notifications regarding the resignation
\nof High Court Judges or Supreme Court Judges have been\tmade
\nthey  have merely mentioned the date of the resignation\t and
\nnot the fact of acceptance.  The High Court has\t elaborately
\ndealt with this question.\n<\/p>\n
2.   That in view of the provisions of Article 217 ( 1\t)(a)
\nand  similar  provisions in respect to\thigh  constitutional
\nfunctionaries  like the President,  Vice-President,  Speaker
\netc. the resignation once submitted and communicated to\t the
\nappropriate  authority becomes complete and irrevocable\t and
\nacts ex proprio vigore.\n<\/p>\n
3.   That  there is nothing to show that the  provisions  of
\nArticle\t  217(1)   (a)\texclude\t a  resignation\t  which\t  is
\nprospective.  That is to say, a resignation may take  effect
\nfrom  a\t particular  date Even so, the\tresignation  may  be
\neffective from a particular date but the resignor completely
\nceases\tto  retain any control over it and  becomes  functus
\nofficio\t once the resignation is submitted and\tcommunicated
\nto the appropriate authority.\n<\/p>\n
4.   That the resignation contemplated by Article  217(1)(a)
\nis purely an unilateral act and takes effect ipso facto once
\nintention  to  resign is communicated to  the  President  in
\nwriting and addressed to him.\n<\/p>\n
5.   That  on a true interpretation of Article 217(1) (a)  a
\nresignation  having once been submitted and communicated  to
\nthe  President\tcannot\tbe recalled even though\t it  may  be
\nprospective  in\t nature\t so as to come into  effect  from  a
\nparticular  date.   It is not possible to hold that  such  a
\nresignation  I can be withdrawn at any time before the\tdate
\nfrom which the resignation is to be effective is reached.\n<\/p>\n
57<\/span><\/p>\n
6.   That as the Constitution contains an express and  clear
\nprovision for the mode in which a resignation can be made it
\nhas  deliberately  omitted  to\tprovide\t for  revocation  or
\nwithdrawal of a resignation once submitted and\tcommunicated
\nto  the President.  In the absence of such a provision,\t the
\ndoctrine  of implied powers cannot be invoked to  supply  an
\nomission  left by the founding fathers of  the\tConstitution
\ndeliberately.\n<\/p>\n
The principles enunciated above flows as a logical corollary
\nfrom  the  nature and character of the privilege,  right  or
\npower  (whatever  name we may choose to give  to  the  same)
\nconferred  by the Constitution on a Judge of the High  Court
\nor    other    constitutional\t functionaries\t   mentioned
\nhereinbefore.\t Salmond  on  Jurisprudence  (12th  Ed.\t  by
\nFitzgerald) describes a species of legal rights thus :-\n<\/p>\n
\t      “All  these are legal rights-they are  legally
\n\t      recognised   interests-they   are\t  advantages
\n\t      conferred by law. They resemble liberties, and
\n\t      differ from rights stricto sensu, inasmuch  as
\n\t      they  have no duties corresponding to them.  A
\n\t      power may be defined as ability conferred upon
\n\t      a person by the law to alter, by his own\twill
\n\t      directed\tto  that end,  the  rights,  duties,
\n\t      liabilities  or other legal relations,  either
\n\t      of  himself  or  of other\t persons.  Power  is
\n\t      either   ability\t to  determine\t the   legal
\n\t      relations\t of  other persons,  or\t ability  to
\n\t      determine one’s own.  The first of these-power
\n\t      other  persons-is sometimes called  authority;
\n\t      the   second-power  over\toneself-is   usually
\n\t      termed capacity”.\n<\/p><\/blockquote>\n
\t      Similarly, Paton on Jurisprudence (3rd Edition
\n\t      by  Derham)  while illustrating the  right  of
\n\t      liberty observed as follows :\n<\/p><\/blockquote>\n
\t      “I have liberty to breathe, to walk in my\t own
\n\t      fields,  to  play golf in\t my  private  links.
\n\t      Here  no precise relationship to others is  in
\n\t      question,\t save that the law  will  protect_my
\n\t      liberty if others interfere with its exercise.
\n\t      But  it is more accurate to say that I have  a
\n\t      liberty to, play than that I have a claim, for
\n\t      I\t may exercise my liberty  without  affecting
\n\t      others, whereas my claim can be enforced\tonly
\n\t      by coercing another to act or forbear”.\n<\/p><\/blockquote>\n
It  would thus appear that the privilege or power  enshrined
\nin  Article 217(1)(a) is an absolute one and  not  relative.
\nIn  other words, the aforesaid power is an  independent\t one
\nand has no corresponding rights to be performed by any other
\nauthority.  The only privilege given to a Judge of the\tHigh
\nCourt  is  to resign without there being  any  corresponding
\nright to the President to accept the same, nor is there\t any
\npower  in the resignor to recall or revoke  the\t resignation
\nonce it becomes effective.  The provisions of Article 217(1)\n<\/p>\n
(a)  really  contemplates that the decision of\ta  Judge  to
\nresign his office must be taken with due deliberation  after
\nconsidering   all  the pros and cons of the matter  and\t not
\nunder  any emotional instinct or inspired by undue haste  or
\nmomentous  fury.   One\tof  the\t essential  qualities  of  a
\njudicial power is restraint and a Judge before resigning
\n5-211 SCT\/78
\n58<\/span>
\nmust  be  prepared to take a decision once for all  so\tthat
\nhaving taken the decision he is not in a position to  repent
\non the same or to brood over it.  The decision once taken by
\nthe Judge in this regard is irrevocable and immutable and is
\njust  like  an\tarrow  shot from the  bow  which  cannot  be
\nrecalled  or  a bullet having fired and having\treached\t its
\ndestination cannot come back to the barrel from which it was
\nshot.\n<\/p>\n
Thus  having  regard  to the letter of\tresignation  in\t the
\npresent case, there can be no doubt that Satish Chandra\t had
\nin his letter dated 7th May, 1977 indicated his\t unequivocal
\nintention  to resign in the clearest possible terms  to\t the
\nPresident  with effect from 1st August, 1977 and the  letter
\nhaving\tbeen communicated to the President and\treceived  by
\nhim, it was not open to Satish Chandra to withdraw or revoke
\nthat letter.  Consequently, the letter dated 15th July, 1977
\naddressed  to the President by Satish  Chandra\trevoking-his
\nresignation  was  null\tand  void  and\tmust  be  completely
\nignored.\n<\/p>\n
The  position,\ttherefore,  in my opinion,  is\tthat  Satish
\nChandra\t ceased to be a Judge of the High Court with  effect
\nfrom  1st  August, 1977.  For these  reasons,  therefore,  I
\nfully agree with the majority view of the High Court (Misra,
\nShukla\tand Singh, JJ.). I am unable to persuade  myself  to
\nagree with my Brother Judges who have taken a contrary view.
\nI,  therefore,\tuphold the judgment of the  High  Court\t and
\ndismiss the appeals.  We have already pronounced the  opera-
\ntive portion of the order on 8th December, 1977 and we\thave
\nnow  given  the reasons for the order  pronounced.   In\t the
\ncircumstances, there would be no order as to costs.
\nM.R.\n<\/p>\n
Appeals allowed.\n<\/p>\n
59<\/span><\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Union Of India vs Shri Gopal Chandra Misra And Ors on 15 February, 1978 Equivalent citations: 1978 AIR 694, 1978 SCR (3) 12 Author: R S Sarkaria Bench: Sarkaria, Ranjit Singh, Gupta, A.C., Untwalia, N.L., Fazalali, Syed Murtaza, Singh, Jaswant PETITIONER: UNION OF INDIA Vs. RESPONDENT: SHRI GOPAL CHANDRA MISRA AND […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-123428","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nUnion Of India vs Shri Gopal Chandra Misra And Ors on 15 February, 1978 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/union-of-india-vs-shri-gopal-chandra-misra-and-ors-on-15-february-1978\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Union Of India vs Shri Gopal Chandra Misra And Ors on 15 February, 1978 - 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