CIVIL APPELLATE JURISDICTION :- Civil Appeals Nos. 2644 & 2655 of 1977.
(From the Judgment and Order dt. 28th October, 1977 of the Allahabad High Court in Civil Misc. Writ No. 1172 of 1977). S. V. Gupte, Attorney General and Soli J. Sorabjee, Addl. Solicitor General. for the Appellant in C.A. No. 2644 & R. P. Bhat, R. N.
Sachthey & Girish Chandra for the Appellant in C.A. Mo. 2644 & Respdt. 2 in C.A. 2655/77.
F. S. Nariman, S. P. Gupta, Harish Chandra, H. K. Puri, M. C. Dhingra and Vivek Sethi for the Appellant in C.A. 2655 & Respdt. 2 in CA 2644/77.
Jagdish Swarup (in CA 2655/77), Yogeshwar Prasad (in CA 2644/77) and G. N. Verma, A. N. Srivastava, Mool Behari Saxena, Pramod Swarup, Miss Rani Arora & Miss Meera Bali for Respondent No. 1 in both appeals.
The following Judgments were delivered
By a short Order, dated December 8, 1977, we (by majority) accepted these two appeals and announced that a reasoned judgment shall follow in due course. Accordingly, we are now rendering the same. Whether a High Court Judge, who sends to the President, a letter in his own hand, intimating to resign his office with effect from a future date, is competent to withdraw the same before that date is reached-is the principal question that falls for consideration in these two appeals, directed against a judgment, dated October 28, 1977, of the High Court of Judicature at Allahabad, allowing the writ petition of Shri Gopal Chandra Misra, respondent herein, and issuing a direction under Article 226 of the Constitution, restraining Shri Satish Chandra (hereinafter referred to as Appellant 2) from functioning a; a Judge of the Allahabad High Court. Appellant 2 was appointed to the High Court of Allahabad a Additional Judge on October 7, 1963, and a permanent Judge or September 4, 1967. He will be attaining the age of 62 years of September 1, 1986. On May 7 1977, he sent a letter under his hand addressed to the President of India, through a messenger. This letter may be reproduced as below "TO Sir, I beg to resign my office as Judge High Court of Judicature Allahabad. I will be on leave till 31st of July, 1977. My resignation shall I effective on 1st of August, 1977. With my, respects. Yours faithfully, Sd/- Satish Chandra." On July 15, 1977, Appellant 2 wrote to the President of India another letter in these terms "TO Sir, I beg to revoke and cancel the intention expressed by me to resign on 1st of August, 1977, in my letter dated 7th May, 1977. That communication may very kindly be treated as null and void. Thanking you and wishing to remain. Yours sincerely Sd/- Satish Chandra." The receipt of this letter of revocation or withdrawal, dated July 15, 1977, was acknowledged by Shri T. C. A. Srinivasavardhan, Secretary, Ministry of Law, Justice & Company Affairs, New Delhi. as per his D.O. No. 2/14/77Jus., dated July 28, 1977. By a separate letter, Appellant 2 cut short his leave and resumed duty as a Judge of the Allahabad High Court on July 16, 1977, and from July 18, 1977, he commenced sitting in the Court and deciding cases. On August 1, 1977, Shri Gopal Chandra Misra, an Advocate of the High Court, filed a petition under Article 226 of the Constitution, contending that the resignation, dated May 7, 1977, of Appellant 2, having been duly communicated to the President of India in accordance with the provisions of Article 217(1), proviso (a) of the Constitution, was final and irrevocable, and as a result, Appellant 2 had cased to be a Judge of the Allahabad High Court with effect from May 7, 1977, or, at any rate, with effect from August 1, 1977; therefore, his continuance to function as a Judge from and after August 1, 1977, was usurpation of the office of a High Court Judge, which was a public office. On these premises, the writ petitioner prayed for a writ, order or direction in the nature of quo warranto calling upon Jr. Satish Chandra to show under what authority he was entitled to unction and work as a Judge of the High Court. The petition came up for final hearing before a Bench of five learned Judges of that Court, which by a majority of 3 against 2, allowed the writ petition and issued the direction aforesaid. Against that judgment, these two appeals, on a certificate granted by the High Court under Articles 132 and 133(1) of the Constitution have been filed before this Court. Civil Appeal No. 2644 of 1977 has been preferred by the Union of India, and Civil Appeal No. 2655 of 1977 by Shri Satish Chandra. A preliminary objection was raised by Shri Yogeshwar Prasad, learned counsel for the respondent, Shri Gopal Chandra Misra, that the Union of India has no locus standi to prefer an appeal against the Order of the High Court. Simultaneously, with the raising of this objection at the bar, a petition to that effect was also presented to us, directly. The grounds of this objection, as canvassed by Shri Yogeshwar Prasad, are :-
(a) That the Union of India was joined
merely a pro form a party in the writ
petition, inasmuch as no relief was claimed
against it;
(b) That the Union of India is not a party
aggrieved by the Order of the High Court,
because no relief has been granted against it;
(c) That the Union of India is not a person
interested; and
(d) That the appeal by the Union of India
will not further any public policy; that it
has already incurred heavy expenditure in
defending the action of an individual person
after he has relinquished his office. Such
expenditure is not permissible and should not
be encouraged. We find no merit in this objection. The Union of India was impleaded as a respondent in the case before the High Court by the writ petitioner, himself. It filed a counter-affidavit contesting the writ petitioner’s claim. Mr. Soli Sorabji, Additional Solicitor-General, addressed arguments before the High Court on behalf of the Union of India. No objection to the locus standi of the Union of India to contest the writ petition was raised, at any stage, before the High Court. It is, therefore, not correct to say that the Union of India was not a contesting party in the Court below. As rightly pointed out by the learned Attorney General, the Union of India is vitally interested in the case. It is the President of India who had appointed Appellant 2 as a Judge, and the stand of the Union of India throughout has been that the withdrawal of the intiniation to resign by the Judge, is valid and therefore, he continues to hold the office of a Judge even after August 1, 1977, but the High Court has held otherwise. The Union of India, therefore, has reason to feel aggrieved by the decision of the High Court. In order to give a person locus standi to appeal on a certificate ranted under any clause of these Articles it is necessary that he was a "party in the case before the High Court The Union of India was admittedly such a party having a stake in the dispute. The substantial question of law involved in the case, is of general importance and concerns the interpretation of the Constitution. We are not concerned with the matter of incurring expenditure by the Union of India; whether it is justified, proper or not. We are surely of the view that the Union had a substantial interest in this proceeding. Thus, from every point of view, the Union of India is entitled to come in appeal to this Court and question the correctness of the High Court’s finding on the question of law involved. We, therefore, overruled the preliminary objection, and requested the learned AttorneyGeneral to proceed with his address. The contentions advanced by the learned Attorney-General, Mr. Gupte, on behalf of the Union of India, may be summarised as follows :
(i) ’Resignation’ within the contemplation
of Proviso (a), to Article 217(1), takes place
on the date on which the Judge of his own
volition chooses to sever his connection with
his office, and not on any other date. Since
in terms of the letter, dated May 7, 1977, the
Judge proposed to sever his link with his
office with effect from August 1, 1977, he
could hot be said to have resigned his office
within the meaning of Proviso (a) on May 7,
1977, or at any time before the arrival of the
prospective date indicated by him.
(ii) The letter, dated May 7, 1977, written
and sent by Appellant 2 to the President, read
as a whole, is a mere intimation of an
intention to resign from a future date.
Before the arrival of that date, it was not
final and complete, nor a "juristic" act,
because it had no legal effect and could not
sever the link of the Judge with his office or
cut short its tenure.
(iii) Since the mere sending of the letter,
dated May 7, 1977 to the President, did not
constitute a final and complete act of
resignation, nor a juristic act, it could be
withdrawn at any time before August 1, 1977
upto which date it was wholly inoperative and
ineffective.
(iv) The withdrawal by Appellant 2 of his
proposal to resign, does not offend public
interest. The common law doctrine of public
policy cannot be invoked in such a case [Gheru
Lal v. Mahadeo Das(1)].
(v) The general principle is that in the
absence of a provision prohibiting withdrawal,
an intimation to resign from a future date can
be withdrawn at any time before it operates to
terminate the employment or the connection of
the resignor with his office. This principle, according to Mr. Gupte, was enunciated by the Supreme Court as far back as 1954 in Jai Ram v. Union of India(2); and followed by the Allahabad, Kerala, Delhi and Madhya Pradesh. (1) [1959] Supp. 2 S.C.R. 406, (2) A.I.R. 1954 S.C. 584. High Courts in these cases : Sanker Datt Shukla v. President, Municipal Board, Auraiya & Anr.(1); Bahori Lal Paliwal v. District Magistrate, Bulandshahar(2); M. Kunjukrishnan Nadar v. Hon’ble Speaker, Kerala Legislative Assembly & Ors(3); Y. K. Mathur & Anr. v. The Commissioner, Municipal Corporation of Delhi & Ors.(4); Bhairon Singh, Vishwakarma v. Civil Surgeon, Narsimhapur(5). The same principle has been reiterated in Raj Kumar v. Union of India(6). Mr. Gupte further referred to the case, Rev. Oswald Joseph Reichal v. The Right Rev John Fielder, Lord Bishop of Oxford(7). decided by the House of Lords in England, which has been relied upon by the High Court-and submitted that Reichel’s case stood on its own facts and was clearly distinguishable. Mr. F. S. Nariman, appearing for Appellant 2, adopted the arguments of Mr. Gupte. He reiterated with emphasis, that the expression " resign his office" used in Proviso (a), means "relinquish or vacate his office", and the requirement of this expression is not satisfied unless and until the writing sent by the Judge effects severance of the link between the Judge and his office and terminates his tenure. It is submitted that by holding that though the letter of resignation in its terms, would effect termination of the tenure prospectively from 1-8-77, yet it would be deemed to have caused immediately on its despatch to and receipt by the President on 7-5-77, itself, curtailment of the Judge’s tenure of office up till 1-8-77, the High Court has engrafted in Proviso (a), a wholly unwarranted fiction. As against the above, Mr. Jagdish Swarap, learned counsel for the Respondent has substantially reiterated the same arguments which found acceptance with the High Court (majority). Article 217(1) fixes the tenure of the office of a High Court Judge It, provides that a Judge shall hold office until he attains the age of 62 years. The three clauses of the Proviso to Article 217(1) indicate that this tenure can be terminated before the Judge attains the age of 62 years, in four contingencies, namely, where he-
(i) resigns his office in the manner laid
down in its clause (a);
(ii) is removed from his office in the manner
provided in Article 124(4) [vide its clause
(b)];
(iii) is appointed a Judge of the Supreme
Court [vide its clause (c) ];
(iv) is transferred to any other High Court
in India. (1) A.I.R. 1956 All. 70. (2) A.I.R. 1956 All. 511 F.B.= (1956)2 All. 593 F.B. (3) A.I.R. 1964 Kerala 194. (4) A.I.R. 1974 Delhi 58. (5) [1971] Labour industrial Cases 127 MP, (6) [1968] 3 S.C.R. at p. 860. (7) 14 A.C. 259. Here, in this case, we, have to focus attention on clause (a) of the Proviso. In order to terminate his tenure under this clause, the Judge must do three volitional things : Firstly, he should execute a "writing under his hand". Secondly, the writing should be "addressed to the President". Thirdly, by that writing he should "resign his office’. If any of these things is not done, or the performance of any of them is not complete, clause (a) will not operate to cut short or terminate the tenure of his office. Ile main reasoning adopted by the learned Judges of the High Court, (per R. B. Misra, M. N. Shukla and C. S. P. Singh, JJ.) appears to be that since the act of Appellant 2 in writing and addressing the letter, dated the 7th May, 1977, to the President, fully satisfied the three-fold requirement of clause (a) of the Proviso, and nothing more was required to be done under that clause either by the "Judge" or by the President at the other end, the resignation was "complete", "final" and "absolute".
It was a complete "juristic" act as immediately on its receipt by the President on the 7th, May 1977, itself,,it had the effect of cutting short the tenure of the Judge up till the 1st August 1977; and, in the absence of a constitutional provision warranting that course, it could not be withdrawn or revoked even before the date, August 1, 1977, on which in terms of the letter dated the 7th May, 1977, the resignation was to be effective. Withdrawal is always linked with acceptance. Where no acceptance is required and the resignation has been made in accordance with the prescribed procedure, the process gets exhausted and the resignation becomes a fait accompli. Article 217(1), Proviso (a) of the Constitution is a selfcontained provision. It gives the Judge a unilateral right to cut short his tenure by following the procedure prescribed therein, of his own volition. Such a resignation to be effective does not require acceptance by the President. Article 217 does not give a right to withdraw the resignation, once given in accordance with the manner prescribed therein. Since Article 217(1), Proviso (a) sets out a complete machinery with regard to the resignation by a Judge, the right to withdraw a resignation cannot be implied, the maxim being "expressum facit cessare tacitum" (when there is express mention of certain things, then anything not mentioned is excluded).
Recognition of a right of withdrawal of resignation will leave the door wide open to abuse and offend public policy. It may be observed that the entire edifice of this reasoning is founded on the supposition that the "Judge" had completely performed everything which he was required to do under Proviso (a) to Article 217(1). We have seen that to enable a Judge to terminate his term of office by his own unilateral act, he has to perform three things. In the instant case, there can be no dispute about the performance of the first two, namely : (i) he wrote a letter under his hand (ii) addressed to the President. Thus, the first two pillars of the ratiocinative edifice raised by the High Court rest on sound foundations. But, is the same true about the third, which indisputably is the chief prop of that edifice ? Is it a completed act of resignation within the contemplation of Proviso (a) ? This is the primary question that calls for an answer. If the answer to this question is found in the affirmative, the appeals must fail. If it be in the negative, the foundation for the reasoning of the High Court will fail and the appeals succeed. Well then, what is the correct connotation of the expression "resign his office" used by the founding fathers, in Proviso (a) to Article 217(1) ? ’Resignation’ in the Dictionary sense, means the spontaneous relinquishment of one’s own right.
This is conveyed by the maxim : Resionatio est juris propii spontanea refutatio (See Carl Jowitt’s Dictionary of English Law). In relation to an office, it connotes the act of giving up or relinquishing the office. To "relinquish an office’ means to "cease to hold" the office, or to "loose hold of the office (cf. Shorter Oxford Dictionary); and to "loose hold of office", implies to "detach", "unfasten", "undo or untie the binding Knot or link" which holds one to the office and the obligations and privileges, that go with it. In the general juristic sense, also, the meaning of "resigning office" is not different. There also, as a rule, both, the intention to give tip or relinquish the office and the concomitant act of its relinquishment, are necessary to constitute a complete and operative resignation (see, e.g. American Jurisprudence, 2nd Edn., Vol. 15A, page 80), although the act of relinquishment may take different forms or, assume a unilateral or bilateral character, depending on the nature of the office and the conditions governing it. Thus, resigning office necessarily involves relinquishment of the, office which implies cessation or termination of, or cutting asunder from the office. Indeed, the completion of the resignation and the vacation of the office, are the casual and effectual aspects of one and the same event.
From the above dissertation, it emerges that a complete and effective act of resigning office is, one which severs the link of the resignor with his office and terminates its tenure. In the context of Article- 217(1), this test assumes the character of a decisive test, because the expression "resign his office"-the construction of which is under consideration-occurs in a, Proviso which excepts or qualifies the substantive clause fixing the office-tenure of the Judge upto the age of 62 years. Before applying this test to the case in hand, it is necessary to appreciate the true nature of the letter, dated May 7, 1977, sent by the Judge to the President. The substantive body of this letter (which has been extracted in full in a foregoing part of this judgment) is comprised of three sentences only. In the first sentence, it is stated: "I beg to resign my office as Judge, High Court of Judicature at Allahabad." Had this sentence stood alone, or been the only content of this letter,, it would operate as a complete resignation in praesenti, involving immediate relinquishment of the office and termination of his tenure as Judge. But this is not so. The first sentence is immediately followed by two more, which read "I will be on leave till 31 .7. 1977. My resignation shall be effective on 1.8.1977.", The first sentence cannot be divorced from the context of the other two sentences and construed in isolation. It has to be read along with the succeeding two which qualify it.
Construed as a whole according to its tenor, the. letter dated May 7, 1977, is merely an intimation or notice of, the writer’s intention to resign his office as Judge, on a future date, viz., August 1, 1977. For the sake of convenience, we might call this communication as a prospective or potential resignation, but before the arrival of the indicated future, date, it is certainly not a complete and operative resignation because, by itself, it did not and could not, sever the writer from the office of the Judge, or terminate his tenure as such. Thus tested. sending of the letter dated May 7, 1977 by Appellant 2 to the President, did not constitute a complete and operative resignation within the contemplation of the expression "resign his office" used in Proviso (a) to Article 217(1). Before the,arrival of the indicated future date (August 1, 1977), it was wholly inert, inoperative and ineffective, and could not, and in fact did not, cause any jural effect.
The, learned Judges of the High Court (in majority) conceded that Appellant 2 "cannot be taken to have resigned on a date prior to 1st August, 1977", and "the vacation of a, seat may be on (the) future date", "because he made his choice to resign from 1st August 1977", yet, they hold that "the factum of resignation became complete the moment respondent 1 (Shri Satish Chandra) in his handwriting, sent a letter of resignation to the President of India" and on 7.5.77, itself, cut short the date of retirement of the Judge from 1-9-86 to 1-8-77, and there could be "no withdrawal of the same unless the Constitution so provided." With respect, we venture to say that this reasoning is convoluted logic spiraled up round a fiction for which there is no foundation in the statute. To say that the resignation or relinquishment of his office by the Judge could not take place before 1 .8. 77, and yet, the factum of resignation became complete on 7-5-77, Would be a contradiction in terms. To get over this inherent contradiction, the High Court (by majority) has introduced a two-fold fiction: (1) That if a written communication to the President, the Judge chooses to resign his office from a future date, the resignation will be deemed to be effective and complete from the moment the communication is sent to the President and received by him.
(2) That since it has not been provided in Proviso (a) or elsewhere in the Constitution, that such communication of a "prospective" resignation can be withdrawn, its withdrawal would be deemed to have been prohibited, on the maxim ’expressum facit cessare tacitum. No. 1 is manifestly incompatible with the letter and intendment of Article 217(1), since by deeming the resignation to have taken place on a date different from the date chosen by the Judge it subverts his exclusive Constitutional right to resign,, his office with effect from a date of his choosing. No. 2 is equally unjustified. There is nothing in Proviso(a) or elsewhere in the Constitution which expressly or impliedly forbids the withdrawal of a communication by the Judge to resign his office before the arrival of the date on which it has intended to take effect. Indeed, such a futuristic communication or prospective resignation does not, before the indicated future date is reached, become a complete and operative act of ’resigning his office’ by the Judge within the contemplation of Proviso (a) to Article 217(1). Thus considered, it is clear that merely by writing the letter to the President on May 7, 1977, proposing to resign with effect from August 1, 1977, the Judge had not done all which he was required to do to determine his tenure, of his own volition, under Proviso (a) to Article 217(1).
He had not, as yet, resigned his office on May 7, 1977, itself, he had not done everything which was necessary to complete the requirement of the expression "resign his office". He had not-relinquished his office and thus delinked himself from it. He had not-as the learned Judges of the High Court have erroneously assumed-crossed the Rubicon-Ribicon was still afar, 85 days away in the hazy future. At any time, before that dead line (August 1, 1977) was reached, the Judge could change his mind and choose riot to resign, and withdraw the communication dated May 7, 1977. We have already seen that there is nothing in the Constitution or any other law which prohibits the withdrawal of the communication to resign from a future date, addressed by a, Judge to the President, before it becomes operative. Could he then be debarred from doing so on the ground of public policy? In this connection, Shri Jagdish Swarup contended that. but for the words "President and Vice-President", the language of Proviso (a,) to Article 217(1) is identical with that of Proviso (a) to Article 56 (1) of the Constitution which gives an identical right to, the President to resign his office by writing under his hand, addressed to the VicePresident. If this Court involves a principle-proceeded the argument---whereby it permits a Judge who, is a Constitutional functionary of the same class as the President or the Vice-President, whereby he can withdraw his resignation, it will lead to startling results.
The Constitutional functionaries would misuse such implied power of withdrawal of resignation. The President may hold the Parliament to ransom and make a farce of Parliamentary sovereignty and the functioning of the Constitution. On these premises, it was urged that public policy demands that no. such interpretation should be put on these Constitutional provisions which would lead to abuse of power by the Constitutional functionaries. The contention appears to be misconceived. The argument assumes that a tender of prospective resignation is always motivated by sinister considerations and, therefore, to permit its withdrawal is never in the public interest. We are unable to concede this as a rule of universal application. Any number of cases are conceivable where a prospective resignation is tendered with the best of motives. A Judge renowned for his conscientiousness and forensic skill may send an intimation under his hand to the President proposing to, resign from a future date, 2 months away, covering this interregnum by two months’ leave due to him, in the belief, founded on his doctor’s advice, that he is stricken with a malady which will progressively render him deaf in two. months’ time. The motive behind the, tender is that the Judge feels that he will no longer be able to discharge his official duties to the entire satisfaction of his conscience.
But before the date on which the prospective resignation is to take effect, a surgical operation completely and permanently cures him of the disease and restores his full hearing power, and the Judge immediately thereupon, sends a communication withdrawing the tender of his resignation. Will not such withdrawal be in the interest of the public and justice to the Judge ? Conversely, will not refusal of such withdrawal deprive the public of the benefit of his forensic talents in exposition of law and at the same time work hardship and injustice to the Judge ? It must be remembered that the doctrine of public policy is only a branch of the common law, and its principles have been crystallized and its scope well delineated by judicial precedents. It is sometimes described as "a very unruly horse". Public policy, as Burroughs, J. put it in Fauntleroy’s case, "is a restive horse and when you get astride of it, there is no knowing where it will carry you". Public policy can, there fore, be a very unsafe, questionable and unreliable ground for judicial decision and Courts cannot, but be very cautious to mount this treacle, rows horse even if they must. This doctrine, as pointed out by this Court in Gherulal Parekh’s case (ibid), can be applied only in a case where clear and undeniable, harm to the public is made out. To quote the words of Subba Rao, J.
(as he then was) : "Though theoretically it may be permissible to, evolve a new head (of public policy) under exceptional circumstances of a changing world, it is advisable in the, interest of stability of society not to make any attempt to discover new heads in these days". There are no circumstances, whatever, which would show that the withdrawal of the resignation by the appellant would cause harm to the public or even to an individual. The contention, therefore, is repelled. Shri Jagdish Swarup’s argument that a right to withdraw such a resignation will have wide and unhealthy repercussions on the other Constitutional functionaries, particularly the President, and encourage them to abuse this right, appears to be a false alarm. We are here considering the case of withdrawal of a ’prospective resignation’ by a Judge of a High Court and not of any other Constitutional functionary. it may not be correct to say that whatever principle we evolve with reference to the interpretation of Article 217(1), Proviso (a), will automatically govern the withdrawal of such a prospective resignation by the President of India because the provisions of Article 56 relating to a resignation by the President are not, in all respects, identical with those of Article 217.
There is no provision in Article 217 corresponding to clause (2) or clause (1) (c) of Article 56, and in this case in accordance with the well-settled practice of the court, we refrain from expressing any opinion with regard to the interpretation and effect of these distinctive provisions in Article 56. We are also unable to agree with the High Court that the mere sending of the letter, dated May 7, 1977 by the Judge to the President and its receipt by the latter, constituted a complete juristic act. By itself, it did not operate to terminate the office tenure of the Judge, and as such, did not bring into existence any legal effect. For the same reason, the principle underlying Section 19 of the Transfer of Property Act is not attracted. The general principle that emerges from the foregoing conspectus, is that in the absence of anything to the contrary in the provisions governing the terms and conditions of the office/post, an intimation in writing sent to the competent authority by the incumbent, of his intention or proposal to resign his office/post from a future specified date, can be Withdrawn by him at any time before it becomes effective. i.e. before it effects termination of the tenure of the office/post or the employment. This principle first received the imprimatur of this Court in the context of a case of a self-sought retirement from service, in Jai Ram v. Union of India (supra).
In that case, the plaintiff entered the service of the Government as a Clerk in the Central Research Institute, Kasauli, on May 7, 1912. Rule 56(6) (i) of Chapter TX of the Fundamental Rules, which regulated the Civil Services, provided that a ministerial servant may be required to retire at the age of 55, but should ordinarily be retained in service if he continues efficient, till the age of 60 years. The plaintiff was to complete 55 years on November 26, 1946. On the 7th May 1945. he wrote a letter to the Director of the Institute to the following effect "Sir, having completed 33 years’ service on the 6th instant, I beg permission to retire and shall feel grateful if allowed to have the leave admissible." The Director refused permission on the ground that the plaintiff could not be spared at that time. The plaintiff renewed his prayer by another letter, dated 30th May 1945, and also, asked for leave preparatory to retirement-four months on average play and the rest on half average pay-from 1st of June 1945, or the date of his availing the leave, to the date of superannuation which was specifically stated to be the 26th of November 1946. This request was also declined. To subsequent requests to the same effect, also met the same fate. On May 28, 1946, plaintiff made a fourth application repeating his request.
This time, the Director of the Institute sanctioned the leave preparatory to retirement on average pay for six months from 1-6-1946 to 30-11-1946, and on half average pay for five months and 25 days thereafter, the period ending on 25-5-1947. Just 10 days before this period of leave was due to, expire, the plaintiff on May 16, 1947 sent an application to the Director stating that he bad not retired and asked for permission to resume his duties immediately. In reply, the Director informed him that he could not be permitted to resume his, duties as be had already retired, having voluntarily proceeded on leave preparatory 3-211 SCT/78 to retirement. The Plantiff made representations. Ultimately, the Government of India, by a letter dated 28-448 rejected his representation, repeating the reasons intimated by the Director earlier to the plaintiffIn special appeal before this Court, two points were urged on behalf Of the plaintiff-appellant. First, that under Rule 56(b) (i), the age of retirement is not 55 but 60 years, and before a Government servant could be required to retire at 55, it is incumbent upon the Government to give him an opportunity to represent against his premature retirement in accordance with the provisions of Section 240(3) of the Government of India Act, 1935; and since this was not done, the order terminating his services, was invalid.
Second, that although the plaintiff on his own application, obtained leave preparatory to retirement, yet there was nothing in the Rules which prevented him from changing his mind at any subsequent time and expressing a desire to continue in service, provided hi indicated this intention before the period his leave expired. B. K. Mukherjee, J. (as he then was), speaking for the Court, negatived the first contention on the ground that since the plaintiff had himself sought permission for retirement at the age of 55 years, it was a useless formality to asks him to show cause as to why his services should not be terminated. While disposing of the second contention, which had lost its force in view of the Courts decision on the first point, the Court made these crucial observations :
"It may be conceded that it is open to a
servant, who has expressed a desire to retire
from service and applied to his superior
officer to give him the requisite permission,
to change his mind subsequently and ask for
cancellation of the permission thus obtained;
but, be can be allowed to do so as long as he
continues in service and not after it has
terminated."
The rule enunciated above was reiterated by
this Court in Raj Kumar v. Union of India(1),
in these words :
"When a public servant has invited by his
letter of resignation determination of his
employment, his services normally stand ,
terminated from the date on which the letter
of resignation is accepted by the appropriate
authority, and in the absence of any law or
rule governing the conditions of his service
to the contrary, it will not be open to the
public servant to withdraw his resignation
after it is accepted by the appropriate
authority. Till the resignation is accepted
by the appropriate authority in consonance
with the rules governing the acceptance, the
public servant concerned has locus
poenitentiae but not thereafter." It was also observed that, on the plain terms of the resignation letters of the servant (who was a member of the I.A.S.), the resignation became effective as soon as it was, accepted by the appropriate authority. (1) 1968 3 S.C.R. 857. The learned Judges of the High Court (in majority), if we may say so with respect, have failed to appreciate correctly the amplitude and implications of this rule enunciated by this Court in Jai Ram v. Union of India (supra). R. B. Misra, J. bypassed it casually on the short ground that the above extracted observation was only "casually made" by the Supreme Court in a case of retirement, M. N. Shukla, J. did not even refer to it. C.S.P. Singh, J. tried to distinguish it with the summary observation :
"Jai Ram’s case was a case of retirement, and
the request for retirement required
acceptance. The act was not complete till
accepted. In such a situation, the request
could definitely be withdrawn. This case is
not helpful in case where no acceptance is
required." Before us, Shri Jagdish Swarup has reiterated the same argument. In our opinion, none of the aforesaid reasons given by the High Court for getting out of the ratio of Jai Ram’s case, (supra) is valid. Firstly, it was not a casual enunciation. It was necessary to dispose of effectually and completely the second point that had been canvassed on behalf of Jai Ram. Moreover, the same principle was reiterated pointedly in 1968 in Rai Kumar’s case. Secondly, a proposal to retire from service/office and a tender to resign office from a future date., for the purpose of the point under discussion stand on the same footing. Thirdly, the distinction between a case where the resignation is required to be accepted and the one where no acceptance is required makes no difference to the applicability of the rule in Jai Ram’s case. It will bear repetition that the general principle is that in the absence of a legal, contractual or constitutional bar, a ’prospective’ resignation can be withdrawn at any time before it becomes effective, and it becomes effective when it operates to terminate the employment or the officetenure of the resignor. This general rule is equally applicable to Government servants and constitutional functionaries. In the case of a Government servant/or functionary who cannot,-under the conditions of his service/or office, by his own unilateral act of tendering resignation, give up his service/or office, normally, the tender of resignation becomes effective and his service/or office-tenure terminated, when it is accepted by the competent authority. In the case of a Judge of a High Court, who is a constitutional functionary and under Proviso (a) to Article 217(1) has a unilateral right, or privilege to resign his office, his resignation becomes effective and tenure terminated on the date from which he, of his own volition, chooses to quit office. If in terms of the writing under his hand addressed to the President, he resigns in praesanti, the resignation terminates his officetenure forthwith, and cannot therefore, be withdrawn or revoked thereafter. But, if he by such Writing chooses to resign from a future date, the act resigning office is not complete because it does not terminate his tenure before such date and the Judge. can at any time before the arrival of that prospective date on which it was intended to be effective, withdraw it, because the Constitution does not bar such withdrawal. The learned Attorney-General has cited authorities of the Allahabad. Kerala, Delhi and Madhya Pradesh High Courts, wherein the rule in Jai Ram’s case was followed. The High Court has tried to distinguish these cases and in regard to some of them, said that they were not rightly decided. We do not want to burden this judgment with a discussion of all those decisions. It will be sufficient to notice two of them, in which issues analogous to those which arise before us, were pointedly discussed. The first of those cases is, M. Kunjukrishnan Nadar v. Hon’ble Speaker, Kerala Legislative Assembly (supra). The petitioner in that case became a member of the Kerala Legislative on election in February 1960. On November 23, 1963, he wrote to the Speaker.
"Sir,
As I wish to devote more time for meditation
and religious purposes, I shall not be able to
continue as a Member of the Legislative
Assembly, Kerala. So,, I request you to
kindly accept this letter as my resignation as
a Member of this Assembly, to take offect from
1-12-1963."
On November 26, 1963, the Speaker read the
letter in the Assembly, announcing thereby the
petitioner’s resignation to take effect on
December 1, 1963.
On November 29, 1963, the petitioner wrote to
the Speaker "Sir,
In my letter dated 23-11-1963, 1 have
expressed my intention to resign my membership
of the Legislative Assembly from the 1st of
December, 1963. After mature consideration, I
feel that it will be proper not to resign at
this juncture.
I therefore hereby withdraw my letter of
resignation dated 23-11-1963." This letter was received by the Speaker on November 30, 1963. This letter was not given heed to, and a Notification was published in the Kerala Gazette dated December 10, 1963, saying that the petitioner "has resigned his seat in the Kerala Legislative Assembly from 1st December 1963". The petitioner challenged this Gazette Notification, praying that it be declared null and void and of no effect. He claimed a further declaration that he continued to be a Member of ’the Kerala Legislative Assembly. On these facts, Article 190(3) of the Constitution, as it stood prior to its amendment by Constitution Amendment (Thirty-third Amendment Act, 1974, came up-for interpretation. At that time, the material part of Article 190(3) ran as under "(3). If a member of a House of the Legislature of a State(a) becomes subject to any of the disqualifications mentioned in cl. (1) of Art. 191; or (b) resigns his seat by writing under his hand addressed to the Speaker or the Chairman, as the case may be. his seat shall thereupon become vacant." It will be seen that at that time, there was no provision in this Article requiring such resignation to be accepted by the Speaker before it could become effective. Clause (b) of Article 190(3), as it stood at that time, was, but for the words "the Speaker or the Chairman" and the last phrase "his seat shall thereupon become vacant", identical with clause (a) of the Proviso to Article 217(1). Indeed, what is expressly provided by adding the words "his seat shall thereupon become vacant" in clause (b) of Art. 190(3), is implicit in clause (a) of the proviso to Article 217(1). Two questions arose for determination : (i) Whether the letter dated 23-11-63, constituted a valid resignation under Article 190(3); and (ii) if so, whether it could be withdrawn by the Member before the future date on which it was intended to be effective. A learned single Judge of the High Court answered these questions in the affirmative, with these observations
".......... the petitioner’s letter of
November 23, 1963, has to be held a letter
resigning his seat in the Assembly on December
1, 1963, deposited with the Speaker on Novem-
ber 23, 1963. It remains. a mute letter till
December 1, 1963, when alone it can speak with
effect. On November 29, 1963, the petitioner
has withdrawn that letter by writing under his
hand addressed to the Speaker himself;......
It is in effect the neutralization of the
latent vitality in the former letter deposited
with the Speaker. The withdrawal nullifies
the entrustment or deposit of the letter of
resignation in the hands of the Speaker, which
must thereafter be found to have become non
est in the eye of law. The absence of a
specific provision for withdrawal of
prospective resignation in the Constitution or
the Rules is immaterial as basic principles of
law and procedure must be applied wherever
they are relevant." R. B. Misra, J. felt "difficulty in agreeing with the observation (in the above case) that the letter of resignation to be effective on a future date remains deposited with the Speaker or remains a mute letter till the arrival of that date when alone it can speak with effect". Singh, J. also expressed that this Kerala case had not been decided on correct principles. In our opinion, what has been extracted above from the decision in the Kerala case, correctly enunciates the principles that prospective resignation remains mute and inoperative till the date on which it was intended to take effect is reached, and can be, withdrawn and rendered non est at any time before such date. The next decision worthy of notice is Y. K. Mathur v. The Municipal Corporation of Delhi (supra). In that case, two Municipal Councillors of the Corporation of Delhi sent their resignation letters on November 16, 1972 to the Mayor of the Municipal Corporation, resigning their seats. One of those letters was a resignation in praesenti and was dated November 16, 1972. The other letter of resignation sent by O. P. Jain, reads as under "I resign from my seat. Please accept.
Sd/Om Prakash Jain 16. 12." This letter being in the nature of a post-dated cheque, was construed as a letter of resignation to be effective from future date, viz. December 16, 1972. On these premises, question arose whether this resignation could be withdrawn by the Member concerned before that date. Sachar J., speaking for the Division Bench, answered this question, in these terms:-
"It is the free volition of the councillor
concerned as to the date from which he wishes
to resign. There is no logic in saying that
even though a councillor deliberately mentions
in his resignation letter that it should be
effective from a given future date, he would
nevertheless be deemed to have resigned from
an earlier date i.e. date on which the letter
is delivered. This would be contrary to the
deliberately expressed intention of
the councillor to resign from a particular
future date. But is there any prohibition
that once the resignation letter has been sent
which is to be effective from a future date it
cannot be withdrawn even before that date ?
The statute does not in any way limit the
authority of the councillor who has sent his
resignation’ from a prospective date to
withdraw it before that date is reached. The
resignation which is to be effective from a
future date necessarily implied that if that
date has ’not reached it would be open to the
councillor concerned to withdraw it."
In support of this enunciation, the learned
Judge relied on the ratio of the decisions of
this Court in Jai Ram v. Union of India, and
Rai Kumar v. Union of India (ibid).
It was also contended-as has been argued
before us-that if a resignation has been sent
prospectively, the only effect is that the
sea,, would become vacant from that date, but
the resignation would be effective from the
date it was delivered to the competent autho-
rity. The Court repelled this argument with
these pertinent observations :-
"Under Section 33(1) (b), both the resignation
and the vacancy of the seat are effective from
the same time. There cannot be different
times, one for resignation and the other for
vacation of seat. Vacancy will only occur
when
resignation is effective, and if it is from
future date both resignation and vacation of
seat will be effective simultaneously." The approach adopted to the. problem by the Delhi High Court’ appears to be correct in principle, and meets our approval. We do not want to add more to the volume of our judgment by noticing the numerous decisions of the English and American Courts that have been referred to by the High Court in the judgment. It will suffice to notice one of those cases, which appears to have been relied upon by the High Court "as the best authority" in support of its reasoning that the letter of resignation, dated May 7, 1977, by Appellant 2, had become "final or irrevocable on that very day when it was received by the President, "though he could not be asked to actually relinquish his post prior to 1-8-1977." That English case is Reichal v. Bishop of Oxford(1) The facts of that case were as follows : Scandal having arisen with regard to the conduct of a Vicar, he was informed by the Bishop that he must either submit to an inquiry or cease to hold his benefice. Thereupon, in accordance with a proposal made by the Bishop in the interests of the parish and in mercy to the Vicar, the Vicar on the 2nd of June executed before witnesses, but not before a notary, an unconditional deed of resignation and sent it to the Bishop’s Secretary on the understanding that the Bishop would postpone formal acceptance until the 1st of October. On the 10th of June the Vicar executed a deed canceling and revoking the deed of resignation and on the 16th of July he communicated the fact to the Bishop’s Secretary. The Bishop after the revocation, signed a document dated the 1st of October accepting the resignation and declaring the vicarage void. The Vicar brought an action against the Bishop and the patrons of the benefice, claiming a declaration that he was Vicar, the resignation was void,-and an injunction to restrain the defendants from treating the benefice as vacant. The House of Lords, affirming the decision of the Court of Appeal (35 Ch. D. 48), held that the resignation was voluntary, absolute, validly executed and irrevocable and that the action could not be maintained. The principal contention canvassed before the House of Lords by the appellant Vicar was that assuming the resignation to be valid, it was naught without the Bishop’s acceptance. The acceptance of the Ordinary is absolutely necessary to avoid a living. Until acceptance the effect of the incumbents resignation is to make the benefice voidable, not void; he remains incumbent with all his powers and rights, including the power of revocation; he is in the position (at the utmost) of one who has made a contract to resign. (1) [1889] 14 A.C. 259. The Noble Lords rejected this contention. Lord Halsbury L. C. observed :
"The arrangements for resignation on the one
side and acceptance on the other seem to me to
have been consummated before the supposed
withdrawal of the resignation of Mr. Reichal.
It is true the Bishop agreed not to execute
the formal document to declare the benefice
vacant till the following 1st of October; but
I decline to decide that when a perfectly
voluntary and proper resignation has once been
made and by arrangement a formal declaration
of it is to, be postponed, that is not a
perfectly binding transaction upon both the
parties to it; and I doubt whether in any view
of the law such an arrangement could have been
put an end to at the option of only one of the
parties."
Lord Watson further amplified :
"His resignation was delivered in pursuance of
a mutual, agreement which rendered formal or
other acceptance altogether unnecessary; the
terms of the agreement showing plainly that
the Bishop not merely was ready to accept, but
insisted upon having it, in order that it
might receive full effect upon the 1st of
October following. The agreement was
perfectly lawful, it being entirely within the
discretion of the Bishop to judge whether the
adopted of Proceedings against the appellant,
or his unconditional resignation as from a
future date, would most conduce to the
spiritual interest of the parish. The
appellant assented to the arrangement, and on
the 2nd of June 1886 did all that lay in his
power to complete it...... He cannot in my
opinion be permitted to upset the agreement
into which he voluntarily agreed...... upon
the allegation, that there was no formal
acceptance of his resignation till 1st of
October 1886." Lord Herschell opined :
"I do not think the word "acceptance" means
more than the assent of the Bishop, or that it
need take any particular form. Now, in the
present case, the Bishop had. intimated to the
plaintiff that he was willing to assent to his
resignation, and it was in pursuance of this
intimation that the resignation was placed in
the hands of the Bishop. At the time the
Bishop received it, and thenceforward down to
and after the time of the alleged revocation,
the Bishop was an assenting party to the
resignation."
While declining the contention of the
appellant, the Noble Lord closed the
discussion on the point with this significant
reservation :
"It is, however, unnecessary in the present
case to go to the length of saying that a
resignation can never be withdrawn without the
consent of the Bishop, for I am of opinion
that it certainly cannot be so under
circumstances such as those to which I have
drawn attention." Reichal is no authority for the proposition that an unconditional prospective resignation, without more, normally becomes absolute and operative the moment it is conveyed to the appropriate authority. The special feature of the case was that Reichal had, of his own free will, entered into a "perfectly binding agreement" with the Bishop according to which, the Bishop had agreed to abstain from commencing an inquiry into the serious charges against Reichal if the latter tendered his resignation. In pursuance of that lawful agreement, Reichal tendered his resignation and did all to complete it, and the Bishop also at the other end, abstained from instituting proceedings against him in the Ecclesiastical Court. The agreement was thus not a nudem pactum but one for good consideration and had been acted upon and "consummated before the supposed withdrawal of the resignation of. Mr. Reichal", who could not, therefore, be permitted ",to upset the agreement" at his unilateral option and withdraw the resignation "without the consent of the Bishop". It was in view of these exceptional circumstances, Their Lordships held Reichal’s resignation had become absolute and irrevocable. No extraordinary circumstances of this nature exist in the instant case. In the light of all that has been said above, we hold that the letter, dated May 7, 1977 addressed by Appellant 2 to the President, both in point of law and substance, amounts but to a proposal of notice of intention to resign at a future date (1-8-1977) and not being an absolute, complete resignation operative with immediate effect, could be and, in fact, had been validly withdrawn by the said Appellant through his letter, dated July 15, 1977, conveyed to the President. Accordingly, we allow these appeals, set aside the majority judgment of the High Court and dismiss the writ petition, leaving the parties to bear their own costs throughout.
These two appeals by certificate are directed against an order of the Allahabad High Court issuing a writ of Quo Warranto against Justice Satish Chandra, a Judge of the Allahabad High Court on the ground that he ceased to be a Judge with effect from 1st August, 1977 as he was not competent to withdraw the resignation submitted by him earlier. Appeal No. 2644/1977 has been filed by the Union of India supporting the case of the second respondent Satish Chandra while appeal No. 2655/’1977 has been filed by the second respondent Satish Chandra himself against the order of the High Court as indicated above. As the points involved in the two appeals are identical and arise from the same judgment, I propose to deal with the two, appeals by a common judgment. The facts of the case lie within a narrow compass and the whole case turns. upon the interpretation of Article 217 (1) (a) of the Constitution of India. I would also like to mention that the question of law that has to be determined in this case in one of first impression and no direct authority of any court in India or outside appears to be available in order to decide this case. There are however number of authorities from which certain important principles can be deduced which may assist me in adjudicating the point in issue.
Justice Satish Chandra hereinafter referred to as the second respondent was a practising lawyer of the Allahabad High Court. He was appointed as a Judge of the Allahabad High Court on 7th October,- 1963 and was later made _permanent on 4th September, 1967. Since then he had been continuing as a Judge of the said High Court.
On 7th May, 1977 the second respondent wrote a letter to the President of India resigning his office with effect from 1st August, 1977. The second respondent however indicated to the President that he would proceed on leave from 7th May, 1977 to 31st July, 1977 the period intervening between the application and the date from which the resignation was to be effective.
On 15th July, 1977 however the second respondent wrote another letter to the President by which he revoked the resignation which he had sent on the 7th May, 1977 and prayed that the communication containing the resignation may be treated as null and void. In order to understand the exact implication of the intention of the second respondent it may be necessary to extract the two letters in extenso "TO Sir, I beg to resign my office as Judge, High Court of Judicature at Allahabad.
I will be on leave till 31st of July, 1977. My resignation shall be effective on 1st of August, 1977.
With my respects, Yours faithfully, Sd/- Satish Chandra".
"TO Sir, I beg to revoke and cancel the intention expressed by me to resign on 1st of August, 1977, the office of Judge, High Court at Allahabad, in my letter dated 7th May, 1977. That communication may very kindly be treated as null and void. Thanking you and wishing to remain.
Yours sincerely, Sd/- Satish Chandra".
A careful perusal of the first letter leaves absolutely no room for doubt that the Judge had clearly intended to resign his office with effect from 1st August, 1977. Similarly, the second letter shows the unequivocal intention of the second respondent to revoke the resignation sent by him earlier. The reasons for the resignation have been given neither in the first letter nor in the second. The question that has been mooted before the High Court was whether or not having resigned his office the second respondent had any jurisdiction to revoke his first letter sending his resignation. It might also be mentioned that it is common ground that before the second letter was written to the President the first letter had not only been communicated to but was actually received by the President as found by the majority judgment of the High Court. Thus, the sole question to be determined in this case is whether it was within the competence of the second respondent to revoke the resignation sent by him to the President by his letter dated 7th May, 1977 after the same had been communicated to and received by the President. The stand taken by the Attorney General before us was that as the second res-. pondent had categorically expressed his intention in the first letter that he would resign only with effect from 1st August, 1977, it was open to him to withdraw his resignation at any time before the crucial date was reached and there was no provision in the Constitution which debarred the appellant from doing so.
The Attorney General, however, conceded before us that having regard to the provisions of Article 217 there is absolutely no question of the resignation of a Judge being effective only on the acceptance of the same by the President. In other words, the Attorney General submitted that the resignation would become effective from the date mentioned therein and the question of the acceptance of resignation by the President would not arise in case of constitutional functionaries like judges of the High Courts. Thus, in view of the concession of the Attorney General and the provisions of Article 217 any resignation submitted by a Judge was not, dependent on its acceptance by the President and would operate ex proprio vigore from the date mentioned in the letter of resignation. It pears that after the second respondent sought to revoke his resignation an application praying for a writ of quo warranto was filed by the respondent Gopal Chandra Misra & Ors. before the Allahabad High Court on the ground that the second respondent had no right to withdraw the resignation. The writ was heard by a Full Bench consisting of R. B. Misra, M. N. Shukla, Hamid Hussain, S. B. Malik and C. S. P. Singh, JJ. and the High Court by a majority judgment accepted the writ petition and issued a writ of quo warranto holding that the second respondent ceased to be a Judge as he was not competent to withdraw his resignation once the same had been communicated to and in fact reached the President. The learned Judges who took the majority view against the second respondent were R. B. Misra, M. N. Shukla and C. P. S. Singh, JJ. whereas Hamid Hussain and S. B. Malik, JJ. were of the view that it was open to the second respondent to withdraw his resignati on at any time before the date from which the resignation was to be effective and were, therefore, of the opinion that the writ petition should be dismissed. It seems to me that the High Court has devoted a considerable part of its judgment to the consideration of two questions which were really not germane for the decision of the point in issue. Secondly, the High Court appears to have exhaustively considered the question of the theory of pleasure which obviously did not apply to a Judge of the High Court appointed under the Indian Constitution and after the said Constitution had come into force. In other words, a Judge appointed under Article 217 cannot be said to hold his assignment at the pleasure of the President, but under the provisions of Article 217 he was to hold his office until the following contingencies arose :
1.The Judge attained the age of 62 years,;
2.The Judge was removed from his office under Article 124 of the Constitution;
3.The Judge was transferred to another High Court under Article 222;
4.The Judge resigned his office by writing
a letter under his hand addressed to the
President.
It is needless to state that a Judge vacates
his office the moment he dies, and although
this contingency is not mentioned in Article
217 yet it follows from the very nature of
things. It would thus be clear that the
constitutional provisions embodied in Article
217 have expressly provided for the various
contingencies in which a Judge of the High
Court may vacate his office or cease, to be a
Judge. The relevant part of Article 217 may
be extracted thus :
"217 : Appointment and conditions of the
office of a Judge of a High Court :
(1)Every Judge of a High Court shall be
appointed by the President by warrant under
his hand and seal after consultation with the
Chief Justice of India, the Governor of the
State, and, in the case of appointment of a
Judge other than the Chief Justice, the, Chief
Justice of the High Court, and shall hold
office, in the case of an additional or acting
Judge, as provided in Article 224, and in any
other case, until he attains the age of sixty-
two years:
Provided that-
(a)a Judge may, by writing under his hand
addressed to the President, resign his office;
(b)a Judge may be removed from his office by
the President in the manner provided in clause
(4) of Article 124 for the removal of a Judge
of the Supreme Court;
(c)the office of a Judge shall be vacated by
his being appointed by the President to be a
Judge of the Supreme
Court or by his being transferred by the
President to any other High Court within the
territory of India". While analysing the various clauses of Article 217 it is pertinent to observe that while clause (a) contains an express provision empowering a Judge to resign, there is absolutely no provision which confers upon him any power to withdraw or revoke his resignation once the same has been submitted to the President. This is one of the moot points that has engaged the attention of the, High Court as also of this Court in deciding the issue. The majority view was of the opinion that in the absence of any express provision to empower the Judge to revoke his resignation, the Judge was not competent to withdraw his resignation having once submitted the same. The minority view of the High Court which has been relied upon by the Attorney General and the second respondent proceeds on the doctrine ’of implied powers under which it is said that the power of submitting a resignation carries with it the power of revoking the same before the resignation becomes effective. I shall deal with these points a little later and before that I would like to indicate the position and the status conferred by the Constitution on a High Court Judge. The first thing which is manifestly plain is that there is no relationship of master and servant, employer and employee between the President and the Judge of the High Court, because a Judge is not a Government servant so as to be governed by Article 310 of the Constitution. A Judge of the High Court appointed under Article 2,17 has a special status and is a constitutional functionary appointed under the provisions of the Constitution by the President. The mere fact that the President appoints him does not make him the employer of the Judge. In appointing a Judge of the High Court ’ the President is discharging certain constitutional functions as contained in Article 217(1). This aspect of the matter was considered by this Court in the case of Union of India v. Sankalchand Himatlal Sheth & Anr.(1) where Krishna Iyer, J. dwelling on this aspect observed as follows :
"So it is that we must emphatically state a
Judge is not a government servant but a
constitutional functionary. He stands in a
different category. He cannot be equated with
other ’services’ although for convenience
certain rules applicable to the latter may,
within limits, apply to the former. Imagine a
Judge’s leave and pension being made
precariously dependent on the executive’s
pleasure- To make the government-not the
State-the employer of a superior court Judge
is to unwrite the Constitution".
It is, therefore, indisputable that a Judge of
the High Court enjoys a special status under
the Constitution, because of the very high
position that he holds and the dignity and
decorum of the office that he has to maintain.
(1) [1978] 1 S.C.R. 423.
The special guarantees contained in Article
217 are for the purpose of ensuring the
independence of the judiciary as observed by
Chandrachud, J. in the case of Union of India
v. S. H. Sheth & Anr. (supra) :
"Having envisaged that the judiciary, which
ought to act as a bastion of the rights and
freedom of the people, must be immune from the
influence and interference of the executive,
the Constituent Assembly gave to that concept
a concrete form by making various provisions
to secure and safeguard the independence of
the judiciary". The High Court Judges are the repository of the confidence of the people and the protectors of the right and liberty of the subjects. Having, regard, therefore, to the onerous duties and the sacrosanct functions which a Judge of the High Court has to discharge he has to act or behave in a manner which enhances the confidence of the people in the judiciary. The Constitution itself contains a number of provisions for promoting an independent judiciary and striving for a complete separation of the Judiciary from the Executive. Having regard to these circumstances therefore once a Judge decides to accept the high post of a High Court Judge he has to abide by certain fixed principles and norms as also some self imposed restrictions in order to maintain the dignity of the high office which he holds so as to enhance the image of the court of which he is a member and to see that the great confidence which the people have in the courts is not lost. To resign an office is a decision to be taken once in a life time and that too for very special and cogent reasons because once such a decision is taken it cannot fie recalled as a point of no return is reached. Indeed, if Judges are allowed to resign freely and recall the resignation at their will this privilege may be used by them as a weapon-for achieving selfish ends or for striking political bargains. Not that the Judges are likely to take, resort to these methods but even if one Judge does so at any time the image of the entire court is tarnished. It was, in my opinion, for these reasons that the High Court Judges have been assigned a special place by the constitution and are not equated with other services, however high or important they may be. Thus, in these circumstances, therefore, it is manifest that any decision that the Judge may take in regard to resigning his office must be taken after due care and caution, full and complete deliberation and circumspection, so that the high office which he holds is not held to ridicule. The power to resign is not intended to be used freely or casually so as to render the same as a farce because after a Judge resigns important and far-reaching consequences flow. Shukla, J. in the judgment under appeal has very aptly and adroitly observed as follows. :-
"Therefore, if a Judge is permitted to recent
his regisnation, born of free volition, it
would savour of a precipitance which would not
redound to his credit. A voluntary
resignation of a High Court Judge deserves to
be looked
upon with utmost sanctity, and cannot be
treated lightly as if it was the outcome of a
momentary influence........ In other words, a
Judge may resign and then with impunity
rescind his resignation and thus go on
repeating the process at his sweet will a.
That would-be ridiculous and reduce the
declaration of resignation by a Judge to a
mere farce."
I find myself in complete agreement with the
observations made by the learned Judge and
fully endorse the same. What is good of
Article 217 equally applies to other similar
constitutional functionaries like the
President, the Vice-President, the Speaker,
the Deputy Speaker. and the Supreme Court
Judges.. So far as the President is concerned,
Article 56(a) contains a provision identical
to Article 217(a) and runs thus :
"The President may, by writing under his hand
addressed to the Vice-President, resign his
office’
So far as the Vice-President, is concerned,
the provision is contained in Article 67(a)
and runs thus :-
"A Vice-President may, by writing under his
hand addressed to the President, resign his
office".
So far as the Speaker and the Deputy Speaker
are concerned, the provision is contained in
Article 94 which runs thus :-
"Vacation and resignation of, and removal
from, the offices of Speaker and Deputy
Speaker : A member holding office as Speaker
or Deputy Speaker of the House of the people-
(a) shall vacate his office if he ceases to
be a member of the House of the People;
(b) may at any time, by writing under his
hand addressed, if such member is the Speaker,
to the Deputy Speaker, and if such member is
the Deputy Speaker, to the Speaker, resign his
office, and
(c) may be removed from his office by a
resolution of the House of the People passed
by a majority of all the then members of the
House:
Provided that no resolution for the purpose of
clause (c) shall be moved unless at least
fourteen days’ notice has been given of the
intention to move the resolution :
Provided further that, whenever the House of
the People is dissolved, the Speaker shall not
vacate his office until immediately before the
first meeting of the House of the people after
the dissolution".
So far as the Supreme Court Judges are
concerned, the provision is contained in
Article 124(2) (a) which runs thus
"A Judge may, writing under his hand addressed
to the President, resign office". For all these constitutional functionaries a special procedure has been prescribed by the Constitution regulating their resignation and in each one of these cases two things are conspicuous. First, that there is absolutely no provision for revocation of, a resignation, and, secondly, that there is nothing to show that in the case of these functionaries the resignation would become effective only on being accepted by the authority concerned. It was contended by Mr. Jagdish Swarup, counsel for the respondents that if any of these functionaries are allowed to withdraw the resignation at their will they may use the powers of the Constitution by treating the resignation as a bargaining counter. For instance, it was suggested that where a President is not happy with a particular Bill passed by Parliament, he may submit his resignation and thus pressurise Parliament to withdraw the Bill and after that is done, he could withdraw the resignation also. Such an action will lead to a constitutional crisis of a very extraordinary nature. The argument is based on pure speculation yet it. merits some consideration. Thus on a parity of reasoning the same principles have to be applied to other constitutional functionaries including a High Court Judge and that will create a very anomalous situation. I think, it must have been this important consideration that must have heavily weighed with the founding fathers of the constitution in not providing for an express power to withdraw the resignation or a provision for the acceptance of the resignation by any particular authority. From this point of view also the irresistible inference that arises is that the absncpe of power in Article 217(1) (a) or the other Articles in the case of other constitutional functionaries indicated above is deliberate, and, therefore, a Judge has no power to revoke his resignation, after having submitted or communicated the same to, the President. Another important aspect which may reveal the intention of Parliament is to) be found in Article 101 (3) sub-clause (b) of the Constitution which runs thus :
"101 (3) If a member of either House of
Parliament-
as the case may be, his seat shall thereupon
become vacant."
It would be, seen that like other
constitutional functionaries mentioned above
even a member of either House of Parliament
could resign his seat by writing under his
as the case may be and once that is done the
seat would become vacant. A similar provision
exists so far as the members of the
Legislature of a State are concerned which is
contained in Article 190(3) (b) which runs
thus :
"190(3) If a member of a House of Legislature
of a State-
(b) resigns his office by writing under his
band addressed So the Speaker or the Chairman,
as the case may be, his seat shall thereupon
become vacant".
By virtue however of the Constitution 35th
Amendment Bill 1974 Parliament amended both
Articles 10 1 (3) (b) and 190 (3) (b) and made
the resignation being effective dependent on
the acceptance of the same by the Speaker or
the Chairman concerned. The amended
provisions ran thus :
"101(3) If a member of either House of
Parliament--
as the case may be, and his resignation is
accepted by the Chairman or the Speaker, as
the case may be, his seat shall thereupon
become vacant
Provided that in the case of any resignation
referred to in sub-clause (b), it from
information received or otherwise and after
making such inquiry as he thinks fit, the
Chairman or the Speaker, as the case may be,
is satisfied that such resignation is not
voluntary or genuine, he shall not accept such
resignation".
"190(3) If a member of a House of the
Legislature of a State-
hand addressed to the Speaker or the,
Chairman, as the case may be, and his
resignation is accepted by the Speaker or the
Chairman, as the case may be, his seat shall
thereupon become vacant
Provided that in the case of any resignation
referred to in sub-clause (b) if from
information received or otherwise and after
making such inquiry as he thinks fit, the
Speaker or the Chairman, as the case may be,
is satisfied that such resignation is not
voluntary or genuine, he shall not accept such
resignation".
The Statement of Objects and Reasons of this
Bill mentions why this amendment was brought
about and the relevant portion may be extract-
ed thus
"In the recent past, there have been instances
where coercive measures havebeen resorted to
for compelling members of a Legislative
Assembly to resign their membership. If this
is not checked, it might become difficult for
Legislatures to function in accordance with
the provisions of the Constitution. It is
therefore proposed to amend the above two
articles to impose a requirement as to
acceptance of the resignation by the Speaker
or the Chairman and to provide that the resig-
nation shall not be accepted by the Speaker or
the Chairman, if he is satisfied after making
such inquiry as he thinks fit that the
resignation is not voluntary or genuine".
This aspect of the matter has been adverted to
by Shukla, J. who observed as follows :-
"This provision made the resignation of a
member of the Legislature self-executing. No
acceptance was required.
4-211 SCr/78
Later, however, political events created a
situation in which it became imperative not
to, let a resignation become effective until
it was accepted by the Chairman or the Speaker
and he was satisfied on inquiry that it was
voluntary or genuine. In some States there
was political turmoil leading to ’en masse’
resignations of the members of Legislature.
Some of these resignations were also faked and
engineered by interested factions in order to-
serve their Political ends. So it was felt
necessary to provide in the Constitution that
the seat of a member of Parliament shall
become, vacant only after his resignation had
been accepted. That is why articles 101 (3)
(b) & 1 90 (3) (b) were suitably amended by
the Constitution (Thirty-fifth Amendment) Act,
1974 the notification is indicative of two
things firstly, in the absence of any such
provision acceptance was not to be read into
Article ’101 when it talked of the resignation
of a member of Parliament. Secondly, as soon
as the Parliament intended that a resignation
should not take effect until it received
assent or acceptance, it introduced a specific
provision to that effect". It would be noticed, therefore, that at the time when Articles 101 (3) and 190(3) were being amended by the Constitution (Thirty-fifth) Amendment Act the Constitution makers had also other similar provisions like Articles 217, 94, 67 and 124(2)(a) etc. before them and if they really intended that acceptance was made a condition precedent to the effectiveness of a resignation in case of constitutional functionaries under Article 217 and other Articles then such an amendment could have also been incorporated in the Thirty-fifth Amendment Bill as well either by conferring a power of revocation on the constitutional functionaries or by introducing a provision for acceptance of the resignation. The very fact that no such amendment was suggested or brought about in Article 217 and other Articles clearly reveals that the Constitution makers intended no change so far as the other Articles were concerned. This is a very important circumstance which fortifies my conclusion that the power of revocation or withdrawal of resignation once communicated to the President has been deliberately omitted by the founding fathers from Article 217 and other similar Article. Coming now to the second point regarding the application of implied powers to the facts of a case, the matter was considered in the case of Union of India v. S. H. Sheth & Anr. (supra). where this Court was construing the provisions of Article 222 of the Constitution of India and the case turned upon the question as to whether or not when a Judge was transferred from one High Court to another it was necessary for the President to take his consent. This Court by majority of 3 : 2 held that consent could not be implied in Article 222 in the absence of an express provision. Krishna Iyer, J. while expounding this aspect of the matter and speaking for himself and Fazal Ali, J. observed as follows :
"It would be seen that there is absolutely no
provision in this Article requiring the
consent of the Judges of the High
Court before transferring them from one High
Court to another. Indeed, if the intention
was that such transfers could be made only
with the consent of the Judges then we should
have expected a proviso to Article 222(1) in,
some such terms as.
Provided that no Judge shall be transferred
from one High Court to another without his
consent.
The absence of such a provision shows that the
founding fathers of the Constitution did not
intend to restrict he transfer of Judges only
with their consent. It is difficult to impose
limitations on the constitutional provisions
as contained in Article 222 by importing the
concept of consent which is conspicuously
absent therefrom".
"If consent is imported in Article, 222 so as
to make it a condition precedent to transfer a
Judge, from one High ’Court to another then a
Judge, by withholding consent, could Tender
the power contained in Article 222 wholly
ineffective and nugatory. It would thus be
impossible to transfer a Judge if he does not
give his consent even though he may have great
personal interests or close associations in
his own State or by his conduct he brings
about a stalemate in the judicial
administration where the Chief Justice would
become more or less powerless. In our
opinion, the founding fathers of the
constitution could not have contemplated such
a situation at all. That is why Article 222
was meant to take care of such contingencies."
Similarly, Chandrachud, J. took the same view
and observed
"The hardship, embarrassment or inconvenience
resulting to a Judge by reason of his being
compelled to become a litigant in his own
court, cannot justify the addition of words to
an article of the Constitution making his
consent a precondition of his transfer. In
adding such words, we will be confusing our
own policy views with the command of the
constitution".
In view of the decision of this Court which is
binding on us, can it be said that if the
power of revocation of resignation is not
expressly contained in the Constitution the
same may be supplied by the application of the
doctrine of implied powers. The question as
to how far the doctrine of implied powers can
be, invoked has also been considered by this
Court in several cases. To quote one, viz.,
in the case of Bidi, Bidi Leaves and Tobacco
Merchants’ Association, Gondia & Ors. v. The
State. of Bombay & Ors. (1) where
Gajendragadkar, J. speaking for the
Constitution Bench of this Court observed as
follows :-
"The definition of the term ’wages’ postulates
the binding character of the other terms of
the contract and brings within the purview of
the Act only one term and that relates
(1) A.I.R. 1962 S.C. 486.
to wages and no other. That being so, it is
difficult to hold that by implication the very
basic concept of the term ’wages’ can be
ignored and the other terms of the contract
can be dealt with by the notification issued
under the relevant provisions of the Act.
When the said other terms of the contract are
outside the scope of the Act altogether how
could they be affected by the notification
under the Act under the doctrine of implied
powers".
"Therefore the Act has made a specific
provision for the enforcement and
implementation of the minimum rates of wages
prescribed by notifications. That is another
reason why the doctrine of implied powers
cannot be invoked in support of the validity
of the impugned clauses in the notification".
Thus, an analysis of this decision would
clearly reveal that where express provisions
are made by a statute the doctrine of implied
powers cannot be invoked to supply the
provisions which had been deliberately
omitted. Same view has been taken by the,
Patna High Court in Sukhdeo Narayan & Ors. v.
Municipal Commissioners of Arrah Municipality
& Ors. (1) where the Court observed as follows
"I hold, accordingly that the withdrawal of
the resignation of the Chairman (Opposite
Party No. 2) as expressed in his letters, has
no effect in law and the Municipal
Commissioners, in their meeting on 19-1-1956
had jurisdiction to proceed on the question
whether they should accept it or not." I fully endorse these observations. For these reasons, I am clearly of the opinion that in the absence of any express provision in Article 217 empowering a Judge to revoke his resignation, it is difficult to accept the view that the power of resigning which has been conferred on the Judge under Article 217(a) carries with it the ’inherent power to withdraw his resignation. In this view of the matter I am afraid, I am not in a position to accept the submission of the Attorney General on this point. I might mention that the High Court had gone,into the question as to whether the act of submitting resignation by the Judge to the President was a juristic act, and, therefore, once the position was altered, it could not be recalled. For the purposes of the present case and having regard to the reasons that I have already given, I would refrain from going into this question as it is hardly necessary to, do so. Furthermore, it seems to me that. the act of resignation by a Judge is a matter personal to him and however careful or cautious he may be in exercising this power, the concept of juristic act cannot be assigned to a document which is nothing but a letter of resignation, pure and simple. However, I do not want to dilate on this point, because in view of my finding that there is no express provision in Article 217 empowering a Judge to withdraw his resignation after the same is communicated to and submitted to the President, it is not necessary for me to spell out the concept of a juristic act. (1) A.I.R. 1956 Patna 367, 373. Another important angle of vision from which the point in issue can be approached is this. Once it is conceded that the resignation be,comes complete without the necessity of the President accepting the same, the very concept of withdrawal of the resignation disappears. In other words, the question of withdrawal of a resignation arises only if the resignation has to be accepted by an employer, because so long, as a resignation is not accepted it remains an incomplete document and totally ineffective. In such circumstances, it is always open to the resignor to withdraw his resignation which has not reached the stage of completion. Such are the cases of resignation given by persons who are governed by usual master and servant relationship. It appears that. in America even though a provision for resignation is there, there is an additional provision that the resignation has to be accepted by a particular authority and it is only in the context of this peculiar relationship that the American authorities have taken the view that a resignation can always be withdrawn until it is accepted. ’this state of affairs is completely foreign to the provisions of our Constitution are concerned which do not at all require the President to accept the resignation of a Judge. If once the concept of acceptance of resignation is totally absent, in my opinion, the question of withdrawal of the, resignation does not arise at all, because the resignation having been submitted and communicated to the President becomes complete and irrevocable once it is communicated.to and received by the President. In fact, Article 217 does not envisage or enjoin a conditional or prospective resignation. But assuming that the power to resign carries with it the power to resign from a particular date, the conclusion appears to me to be inescapable that once the resignation is communicated to the authority concerned viz., the President in the instant case, the resignation will become irrevocable and will take effect automatically ex proprio vigore from the date mentioned in the letter. The mere fact that the resignor mentions a particular date from which he wants to resign does not at all empower him to withdraw or revoke his resignation at any time before the date is reached. Such a conclusion would have been possible only if. the completeness of a resignation depended on the acceptance of the resignation by the authority concerned, because in such a case until the resignation was accepted it was no resignation in the eye of law and could always have been recalled. But where the concept of acceptance of resignation is.totally absent, it seems to me to be a contradiction in terms to say that even though the resignation has been submitted to the proper authority and received by him still it can be recalled before the date is reached. I am not in a position to hold that a resignation revealing an intention to resign from a particular date is a conditional resignation. It is only a prospective resignation, but in view of the peculiar provisions of Article 217(1) (a) it becomes irrevocable the moment it is received by the President or is communicated to him though it may take effect from the date mentioned in the letter or if no such date is mentioned from the date of the letter itself. I now turn to the Full Bench decision of the Allahabad High Court in the case of Bahori Lal Paliwal v. District Magistrate, Rulandshahr & Anr.(1) which is being relied on by the appellant. Chaturvedi, J, (1) A.I.R. 1956 All. 511. while drawing a distinction between the Indian law under the U.P. Town Areas Act which was the subject matter of review by the Court and the English Law on the subject observed as follows
"The Indian Law under the U.P. Town Areas Act,
however has not followed the English statutory
law in this respect because the provisions of
S.8-A of the Indian Act provide for acceptance
of the resignation by the District Magistrate,
which clearly shows that the resignation is
not effective till it is accepted". Furthermore, it would appear that under the provisions of the statute in that case the resignation had to be accepted by the appropriate authority and it was on this basis that the Court held that the person had a right to withdraw his resignation before it was accepted or before his office had come to an end. The Court further observed as follows
"A resignation which depends for its
effectiveness upon the acceptance by the
proper authority is like an offer which may be
withdrawn before, it is accepted". These observations do not help, the case of the appellant but fortify the conclusion that I have reached. It is manifest that where effectiveness of a resignation depends upon acceptance of the same by the proper authority it can always be withdrawn until accepted because the resignation is not complete in the eye of law. This is what has been held by the Full Bench of the Allahabad High Court in the aforesaid case. Another decision to which our attention was drawn by counsel for the appellant is the case of Bhairon Singh Vishwakarma v. The Civil Surgeon, Narsimhapur & Ors.(1) This case also contains the same principle which has been enunciated in the Allahabad case referred to above, viz., that where a resignation is dependent for its effectiveness on the acceptance by the proper authority, it can be withdrawn at any time before the acceptance is given. This case was also dealing with a public servant to which Article 311 applied and the resignation bad to be accepted by the Director of Public Health. I do not see how this case helps, the appellant in any way. Thus the position that emerges from the aforesaid decisions is that where a resignation given by a Government servant is dependent for its effectiveness on the acceptance by the appropriate authority, the government servant concerned has an unqualified right to withdraw the resignation until the same is accepted by the authority. In other words, the position is that where the resignor has a right to resign but the resignation can be effective for only after acceptance, it is a bilateral act. That is to say, resignation by one, authority and acceptance of the resignation by the other authority. Unless the two acts are completed, the transaction remains in an inchoate form. That is to say a resignation sent by a servant is no resignation in the eye of law until accepted by the employer and so long as it is not an effective resignation, there can (1) [1971] Lab. I.C. 121. be no bar to withdrawing the same. The, same however cannot be said of a resignation tendered by a High Court Judge under Article 217(1) or other constitutional functionaries referred to hereinbefore because in cases of such functionaries the act of resignation is a purely an unilateral act and once the resignation is written and communicated to the President it acts ipso facto and becomes fully effective without there being any question of acceptance by the President. I have already held that where a particular date is given in the letter of resignation, the resignation will be effective from that particular date, but it does not mean that the resignor had any right to recall his resignation merely because he has chosen a particular date from which the resignation is to take effect. On the other hand, the resignation becomes complete and irrevocable and cannot be recalled either before or after the date mentioned is reached Having signed the resignation and put the same in the course of transmission to the President the Judges loses all control over the same and becomes functous officio and the resignation becomes effective as soon as the date arrives without leaving any room or scope to the resignor to change his decision. This appears to be the constitutional scheme prescribed for the resignation of High Court Judges, Supreme Court Judges and other constitutional functionaries. In fact, all the cases cited by the appellant excepting some are cases where the effectiveness of the resignation depends on the acceptance of the resignation. I am fortified in my view by the observations made in the American Jurisprudence Vol. 53 page 111 section 34 where the following observations are to be found : "The contract of employment is terminated where the employee tenders his resignation and the proffer (sic) is accepted by the employer". These observations clearly illustrate that a contract of employment can only be terminated by a bilateral act, that is to say, resignation by the employee and acceptance by the employer. In short, it seems to me that a resignation contemplated by Article 217 (1) (a) is a unilateral act which may be compared to an action of withdrawing a suit by the plaintiff under Order 23 Rule 3, C.P.C. Once a plaintiff files an application withdrawing a suit, the suit stands withdrawn and becomes effective as soon as it is withdrawn. In the case of Smt. Raisa Sultana Begam and Ors. v. Abdul Qadir and others(,) a Division Bench of the Allahabad High Court observed as follows
"Since withdrawing a suit is a unilateral act
to be done by the plaintiff requires no
permission or order of the Court and is not
subject to any condition, it becomes effective
as soon as it is done just as. a compromise
does......... The act is like a point and not
continuous like a line having a beginning and
an end. Either it is done or not done; there
is nothing like its being done incompletely or
ineffectively. The consequence of an act of
withdrawal is that the plaintiff ceases to be
a plaintiff before the Court". (1) A.I.R. 1966 All. 318, 321. The same principle applies to resignation submitted by a High Court Judge under Article 217(1)(a). The resignation, which is a unilateral act, becomes effective as soon as it is communicated to the President. The appellant however, placed great reliance on a decision of the Kerala High Court in the case of M. Kunjukrishna Nadar v. Hon’ble Speaker Kerala Legislative Assembly, Trivandrum and Ors.(1). This was a case under Article190(3) of the Constitution by a member of the Assembly who addressed a communication to the Speaker tendering his resignation. A Single Judge of the Kerala High Court held that the letter of resignation could not be effective until the date prescribed therein had reached and the notification published in the Gazette regarding the vacancy of the seat of the member was not warranted by law. In the first Place, the Court was really concerned with the point of time as to when the actual vacancy of the member would arise and the seat would become vacant so as to justify a notification for fresh election. The point which is in issue before us did not arise in this shape in the Kerala case at all. In this connection, the learned Judge observed as follows :-
"I hold therefore that it is open to a member
of the Legislature to tender his resignation
on a prior date to take effect on a subsequent
date specified therein. The letter of re-
signation has then to be construed as having
been deposited with the Speaker on the earlier
date, to be given effect to only on the date
specified by the Member therein".
"The withdrawal nullifies the entrustment or
deposit of the letter of resignation in the
hands of the Speaker, which must thereafter be
found to have become non-est in the eye of
law. The absence of a specific provision
for withdrawal of prospective resignation in
the Constitution or the Rules is immaterial as
basic principles of law and procedure must be
applied wherever they are relevant." While I find myself in complete agreement with respect to the first portion of the observation of the learned Judge, viz., that it was open to the Member to submit his resignation to be effective from a subsequent date, I express my respectful dissent from the view taken by the learned Judge that a Withdrawal would nullify the resignation completely and even if there was no provision for withdrawal of the resignation the same will become nonest after it is withdrawn. The Judge has not at all discussed the law on the subject nor has he referred to the constitutional provisions relating to resignation In fact, the 35th Amendment Act itself shows that the concept of acceptance of resignation was completely absent before the amendment was brought about and the legal position before the amendment was that the resignation would operate ipso facto and ex proprio vigore and could not be withdrawn. That is why a specific power of acceptance (1) A.I.R.1964 Ker.194. was introduced by virtue of the amendment. As however Parliament did not intend to disturb the position in case of other constitutional functionaries like the High Court Judges, Supreme Court Judges, President, Vice-President, Speaker etc. no such amendment by introducing- the concept of acceptance of the resignation was brought about in Article 217 and other similar Articles. Indeed, if Parliament really intended that the resignation given by a High Court Judge or other constitutional functionaries indicated above could withdraw the resignation after communicating the same to the appropriate authority or even before the date from which the resignation was to operate, a suitable amendment could have been made in these Articles so as to confer an express power on the constitutional functionaries to do so. The fact that no such provision was made confirms my view that Parlia Tent clearly intended that the resignation of constitutional functionaries being a sacrosanct act should remain as it was intended by the founding fathers of the Constitution, viz., once a resignation is submitted or communicated to the President, it becomes final and irrevocable and cannot be recalled by the functionary concerned. Thus,. Parliament maintained the unilateral nature of the act of resignation. In these circumstances, therefore, I am not able to place any reliance on the judgment of the Kerala High Court cited by counsel for the appellant.’ The Full Bench decision of the Delhi High Court in the case of Y. K. Mathur & And. v. The Commissioner, Municipal Corporation of Delhi & Ors.(1) appears to have been the sheet-anchor of the arguments of the Attorney General for the proposition that a prospective resignation submitted to the appropriate authority could be withdrawn by the resignor at any time before the date mentioned in the letter of resignation is reached. I have carefully perused the aforesaid decision and I am unable to agree with the view taken by the Delhi High Court for the reasons that I shall give hereafter. To begin with, the Court was considering the provisions of section 33(1)(b) of the Delhi Municipal Corporation Act which may be extractud thus "33(1) If a councillor or an alderman (a)................ (b)resigns his seat by writing under his hand addressed to the mayor and delivered to the commissioner his seat shall thereupon become vacant". It was vehmently contended by the appellant that section 33 (1) (b) (supra) was in absolute pari-materia with Article 217(1) (a), and therefore, the interpretation placed by the Delhi High Court on this section would clearly apply to the facts of the present case which depends on the interpretation of Article 217(1)(a). In the first place, I am unable to agree with tile Attorney General that the pro -visions of the Municipal Act can be equated with the provisions contained in the Constitution of India. There is a world of diffe(1) A.I.R. 1974 Delhi 58. rence between a constitutional functionary which has been assigned. a special status and given a high place under the constitutional provisions and a municipal councillor elected under the, local Municipal Act. It is obvious that in both these cases the self same considerations and identical principles cannot be applied because of the nature of the position held by these two authorities. The High. Court held that as the statute did not limit the authority of the councillor to resign from a prospective date, the authority concerned had the undoubted power to withdraw it before the date is reached. In this connection, the Court observed as follows
"The statute does not in any way limit the
authority of the councillor who has sent his
resignation from a prospective date to
withdraw it before that date is reached. The
resignation which is to be effective from a
future date necessarily implied that if that
date has not reached it would be open to the
councillor concerned to withdraw it". These observations suffer from an apparent fallacy. In the first place, the Court seems. to assume that there is an implied power to withdraw the resignation where the resignor gives a particular date from which the resignation is effective, In the absence of any express provision conferring such a power, it was not open to the High Court to invoke the doctrine of implied powers as pointed out by me earlier. An implied power cannot be conferred on an authority by a process of legal assumptions, in the absence of any express provision. Another argument which weighed heavily with the High Court was that there was no law which compelled a councillor to give his resignation if he did not want it, and, therefore, if a councillor chose-’ to resign, he could not be debarred from withdrawing it at any time before the date from which the resignation was to be effectively reached. This argument fails to take into consideration the hard realities of the situation contemplated both by section 33(1)(b) and Article217 (1) (a) ’of the Constitution. There is no question of there being any compulsion on the resignor to submit his resignation. In fact,. both section 33(1)(b) and Article 217(1)(a) merely conferred a privilege on the resignor to offer his resignation if he so desired. It depends upon the sweet will of the councillor to resign or not to resign. From this however it cannot be inferred that where once a resignation is submitted and results in certain important consequences, namely, that the resignation acts ex proprio vigore, yet the resignor can still’ withdraw his resignation and thus nullify the effectiveness of the resignation as contemplated both by section 33(1)(b) and Article 217(1)(a). Such an interpretation appears to be a contradiction in terms and against a plain interpretation of section 33(1)(b) of the Municipal Act and Article 217(1)(a) of the Constitution. Furthermore, the provision of section 33(1)(b) does not appear to be in complete pari-materia with those of Article 217(1) (a) inasmuch as section 33(1)(b) provides that as ’soon as the resignation was delivered to the Commissioner the seat of the councillor shall become vacant. On the interpretation of this provision the Delhi High Court held that the vacancy could occur only when the resignation became effective and if the resignation was from a future date both the resig-nation. and the vacation of the seat could be simultaneous. In this connection, the Court observed as follows
"Under section 33(1)(b) both the resignation
and the vacancy of the seat are effective from
the same time...... Vacancy will only occur
when resignation is effective, and if it is
from future date both resignation and vacation
of seat will be effective simultaneously". So far as Article 217(1)(a) is concerned it is differently worded and the consequence of the resignation is not at all indicated in this Article. Thus, the provisions of Article 217(1)(a) cannot be said to be in complete peri materia with section 33(1) (b) of the Municipal Corporation Act. Thirdly, as I have already pointed out the consideration by which the Court is Governed and the principles which it may seek to apply to a municipal councillor cannot by any process of reasoning or principle of logic be applied to a High Court Judge or other Constitutional functionaries governed by constitutional provisions. Fourthly, the Delhi High Court has applied the doctrine of implied powers which as discussed above cannot apply where there is no express provision justifying a particular situation. For these reasons, with due deference to the Judges constituting the Full Bench of the Delhi High Court I find myself unable to agree with the view taken by them. In my opinion, the Delhi case referred to above is either distinguishable or even if it be taken to be directly in point, it is wrongly decided. On the other hand, there are some English cases which throw a flood of light on the view that propose to take in this case and which have been relied upon by the majority judgment of the Allahabad High Court. In the case of Reichel v. Bishop of Oxford(1) it was held that a clerk who had tendered his resignation to the Bishop cannot withdraw it, even before acceptance, if, in consequence of the tender, the position of any party has been altered. In that case the Bishop had been thereby induced to abstain from commencing proceedings in the Ecclesiastical Court for the deprivation of the clerk, in view of his resignation. Lord North after considering all the aspects of the case observed as follows :
"Applying that to the present case, the
Plaintiff, by sending in his resignation,
procured a postponement of legal proceedings
against himself, and thereby, according to
ecclesiastical, law, incapacitated himself
from wthdrawing it during, the interval
before the 1st of October; and this result
would follow, even if the true view of the
facts. be, that the Bishop did not accept the
resignation until that date.
(1) 1887) Ch. D. 48.
Under these circumstances, it appears to me
that the plaintiff’s attempt to withdraw his
resignation fails entirely, and that, having
failed on all points, the action must be
dismissed with costs".
This decision was affirmed by the Court of
Appeal and it was held that the resignation
was validly executed and irrevocable. In the
Appeal Case Lord Halsbury observed as follows
"But there was no condition here at all. As I
have already said, I find as a fact that Mr.
Reichel agreed absolutely to, resign rather
than undergo the inquiry which the Bishop
would have felt himself otherwise compelled to
institute. Neither in form nor in substance
was the resignation conditional".
Lord Herschell observed as follows
" in these circumstances it is idle to
consider what the Appellant’s position might
have been, if there had been Do such
arrangement, and he merely had sent in his
resignation without knowing whether it was to
be accepted or not. He cannot in my opinion
be permitted to upset the agreement into which
he voluntarily entered, and which he has done
all that he could to complete, upon the
allegation that there was no formal acceptance
of the resignation until the 1st of October,
1886".
Lord Herschell observed as follows
" It was argued further by the appellant that
inasmuch as his resignation was tendered to
the Bishop on the understanding that it was
not to be accepted until a subsequent date.
the resignation was a conditional one, and
therefore void. I can see no ground for such
a contention. The resignation was absolute.
It was intended to take effect in any event". These observations also show that merely because the resignation is to take effect from a particular date, it does not become a conditional resignation and its absolute nature is not changed at all, because the Law Lords as also the Chancery Division proceeded on the footing that even though the resignation of the clerk was to take effect from a certain date it was not conditional but absolute. The learned counsel for he appellant sought to, distinguish this case on the ground that in the Bishop’s case (supra) a material change had already taken place, which could not be reversed and that is why it was held that the resignation could not be withdrawn. It is true that this was one of the grounds taken both by the Chancery Division Court and the Appeal Court, but the same reason will apply to the present case also because once a resignation was submitted by Satish Chandra to take effect from the 1st August, 1977, the President was clearly entitled to fill up the vacancy of the Judge from 1st August, 1977 and may take steps accordingly. Thus, by virtue of his resignation Satish Chandra had invited the President to take steps to fill up the vacancy which will arise on 1st August, 1977. By virtue of this representation, therefore, a material change undoubtedly took place. For these reasons, therefore, I am not in a position t0 accept the arguments of counsel for the appellant on this score. In the case of Finch v. Oake(1) a member under Trade Protection Society was entitled to retire at any time without the consent of other members. On the receipt by the society of a letter from a member stating his wish to retire, he at once ceased to, be a member without the necessity of the acceptance by the society of his resignation. It was held that the member could not withdraw his resignation even before acceptance and he could only become a member again after reelection. It would be seen that the principles decided in this case apply directly to the facts of the present case where also under the provisions of Article 217 the effectiveness of resignation does not depend upon the acceptance of the same by the appropriate authority. In the aforesaid case Lindley, L.J. observed as follows
"By paying his subscription he no doubt
acquires certain rights and benefits. But
what is there to prevent him from retiring
from the association at any moment ’if he
wishes to do so ? Absolutely nothing. In my
opinion no acceptance of his resignation is
required, though of course he cannot get back
the 10s.6d. which he has paid........ I can
see no principle of law which entitles him to
withdraw his resignation".
Kay, L. J. observed as follows
"It is said that, before his resignation had
been accepted by the association, be withdrew
it. But why was any consent to his withdrawal
from the society required ? As a voluntary
member of a voluntary society he had said, "I
do not wish to continue a member any
longer........ In my opinion, after his letter
of resignation had been received, the
plaintiff could not become, a member of the
society again without being reelected".
In my opinion, the principles laid down by
this case seem to be in all fours with the
facts of the present case. In the case of People of the State of Illinois Ex. Rel. Benjamin S. Adamowski, v. Otto Kerner(2) what happened was that a County Judge- submitted his resignation to the Governor which was to become operative on a specified date. But the Judge sought to. withdraw the resignation before the date mentioned in the resignation and before the Governor had acted thereon. It was held by the Illinois Supreme Court that the resignation could not be withdrawn. In this connection. Davis, J. while delivering the opinion of the court observed as follows (1) [1896] 1 Ch. D. 409. (2) 82 A.L.R. 2tid Series 740.
"However, public policy requires that there be
certainly as to who are and who are not public
officers...... Therefore, the resignation of
an officer effective either forthwith or at a
future date may not be withdrawn after such
resignation is received by or filed with the
officer authorized by law to fill such vacancy
or to call an election for such purpose".
It is true that Schaefer, J. and Hershey, J.
dissented from the view taken by Davis, J.,
but I would prefer to follow the view taken by
Davis, J. which falls in line with the tenor
and the spirit of the constitutional
provisions which we are called upon to
interpret here.
Similarly, in the case of Glossop v.
Glossop(1) it was held that the managing
director could not withdraw the resignation
without the consent of the company, and by his
letter of resignation be vacated his office.
Neville, J. while adumbrating the aforesaid
principles observed as follows :-
"I have no doubt that a director is en-titled
to relinquish his office at any time he
pleases by proper notice to the company, and
that his resignation depends upon his notice
and is not dependent upon any acceptance by
the company, because I do not think they are
in a position to refuse acceptance.
Consequently, it appears to me that a
director, once having given in the proper
quarter notice of his resignation of his
office, is not entitled to withdraw that
notice, but, if it is withdrawn, it must be by
the consent of the company properly exercised
by their managers, who are- the directors of
the company". It would appear, from a conspectus of the authorities cited above and on a close and careful analysis of the provisions of Article 217(1) of the Constitution of India having regard to the setting of the spirit in which this provision was engrafted that the more acceptable view seems to be that where the effectiveness of a resignation by a Judge does not depend upon the acceptance by the President and the resignation acts ex proprio vigore on the compliance of the conditions mentioned in Articie 217 (1) (a) (that is by writing under his hand addressed to the, President and being communicated the same to the President) the Judge has no power to revoke or recall the aforesaid resignation even though he may have fixed a particular date from which the resignation is to be effective. In other words the act of resignation is a purely unilateral act and the concept of withdrawal or recalling or revoking the resignation appears to be totally foreign to the provisions of Article 217(1)(a). Counsel for the appellant relied on Corpus Juris Secundum, American Jurisprudence and other books. of eminent authors, which do not appear to me to be very helpful in deciding the point in issue in the present case. In the first place the provision of the American Constitution as regards resignation of Judges is quite different. In (1) (1907) 2 Ch. D. 370. fact, there is no provision at all in the American Constitution entitling a Judge to resign. Article 3 section 1 of the American Constitution as edited by Corwin shows that although Article 3 Section 1 of the American Constitution confers judicial powers on the United States in one Supreme Court and other inferior Courts as may be established by the Congress it provides that Judges both of the Supreme Court and inferior Courts shall hold their office during good behaviour. Apart from this provision there is no provision in the Constitution regarding the mode and manner in which the Judges could resign their office. In the absence of any such provision, the general principles have been applied which includes cases where a Judge tenders his resignation either prospectively or with a condition attached to the same and such a resignation has to be accepted by the President and can be withdrawn at any time before the date fixed is reached. These principles, however, cannot be applied to our Constitution where a definite mode and a prescribed procedure has been formulated for the resignation of a Judge and the consequences flowing thereof. In these circumstances, therefore, we, can derive little help from the provisions of the American Constitution on the question at issue. In the absence of any express provision, the courts have applied the common law which is to the effect that in the absence of a statute providing for resignation, the resignation becomes effective on its acceptance by the proper authority. Similarly, it is laid down that a prospective resignation may be withdrawn at any time before its acceptance vide Corpus Juris Secundum Vol. 48 p. 973 para 25 which runs thus :-
"The term or tenure of a judge, with respect
to the incumbent, may become terminated by
reason of his resignation. In the absence of
a statute providing otherwise, a resignation
becomes effective on its acceptance by the
proper authority, but, in order to become
effective it must be accepted. A prospective
resignation may be withdrawn at any time
before it is accepted, and after it is
accepted it may be withdrawn by the consent of
_the accepting authority, at least where no
new rights have intervened".
Similarly, in Corpus Juris Secundum Vol. 67 p.
227 para 55 the following observations are to
be found :
"However, under a statute providing that a
resignation shall take effect on due delivery
to the officer to whom it is addressed without
making provision for a prospective.resig-
nation, a resignation to take effect at a
future, date is not permissible, and such
resignation becomes effective on due delivery
and creates a vacancy as of the date of
delivery".
These observations do not seem to be directly
in point but come as close as possible to the
view taken by me. The learned counsel for respondent No. 1 Mr. Jagdish Swarup took us through extracts of a number of books including Paton’s Jurisprudence and Salmond’s Jurisprudence with a view to explain the incidents and qualities of a legal right. The extracts, however, do not appear to me to be relevant to the facts of the present case where we are dealing with a codified right which has to be performed within the four corners of the constitutional provisions. The general principles contained in the book of the eminent jurists referred to by Mr. Jagdish Swarup cannot be disputed. The main question, however, is as to what is the effect of the provisions of Article 217(1) (a) of the Constitution of India which prescribes a particular mode for the resignation of High Court Judges. I, therefore, do not think it necessary to advert to the books referred to by the High Court or by counsel for the first respondent. Thus, from the conclusions arrived by me on the questions involved in this appeal the following propositions in my opinion emerge 1. That the concept of the acceptance of resignation submitted by a High Court Judge is completely absent from Article 217(1)(a) and the effectiveness of the resignation does not at all depend upon the acceptance of the resignation by the President nor does such a question ever arise. This is how the Executive Government has implemented the law for wherever notifications regarding the resignation of High Court Judges or Supreme Court Judges have been made they have merely mentioned the date of the resignation and not the fact of acceptance. The High Court has elaborately dealt with this question. 2. That in view of the provisions of Article 217 ( 1 )(a) and similar provisions in respect to high constitutional functionaries like the President, Vice-President, Speaker etc. the resignation once submitted and communicated to the appropriate authority becomes complete and irrevocable and acts ex proprio vigore. 3. That there is nothing to show that the provisions of Article 217(1) (a) exclude a resignation which is prospective. That is to say, a resignation may take effect from a particular date Even so, the resignation may be effective from a particular date but the resignor completely ceases to retain any control over it and becomes functus officio once the resignation is submitted and communicated to the appropriate authority. 4. That the resignation contemplated by Article 217(1)(a) is purely an unilateral act and takes effect ipso facto once intention to resign is communicated to the President in writing and addressed to him.
5.That on a true interpretation of Article 217(1) (a) a resignation having once been submitted and communicated to the President cannot be recalled even though it may be prospective in nature so as to come into effect from a particular date. It is not possible to hold that such a resignation I can be withdrawn at any time before the date from which the resignation is to be effective is reached.
6.That as the Constitution contains an express and clear provision for the mode in which a resignation can be made it has deliberately omitted to provide for revocation or withdrawal of a resignation once submitted and communicated to the President. In the absence of such a provision, the doctrine of implied powers cannot be invoked to supply an omission left by the founding fathers of the Constitution deliberately. The principles enunciated above flows as a logical corollary from the nature and character of the privilege, right or power (whatever name we may choose to give to the same) conferred by the Constitution on a Judge of the High Court or other constitutional functionaries mentioned hereinbefore. Salmond on Jurisprudence (12th Ed. by Fitzgerald) describes a species of legal rights thus :-"All these are legal rights-they are legally recognised interests-they are advantages conferred by law. They resemble liberties, and differ from rights stricto sensu, inasmuch as they have no duties corresponding to them. A power may be defined as ability conferred upon a person by the law to alter, by his own will directed to that end, the rights, duties, liabilities or other legal relations, either of himself or of other persons. Power is either ability to determine the legal relations of other persons, or ability to determine one’s own. The first of these-power other persons-is sometimes called authority; the second-power over oneself-is usually termed capacity". Similarly, Paton on Jurisprudence (3rd Edition by Derham) while illustrating the right of liberty observed as follows : "I have liberty to breathe, to walk in my own fields, to play golf in my private links. Here no precise relationship to others is in question, save that the law will protect_my liberty if others interfere with its exercise. But it is more accurate to say that I have a liberty to, play than that I have a claim, for I may exercise my liberty without affecting others, whereas my claim can be enforced only by coercing another to act or forbear". It would thus appear that the privilege or power enshrined in Article 217(1)(a) is an absolute one and not relative. In other words, the aforesaid power is an independent one and has no corresponding rights to be performed by any other authority. The only privilege given to a Judge of the High Court is to resign without there being any corresponding right to the President to accept the same, nor is there any power in the resignor to recall or revoke the resignation once it becomes effective. The provisions of Article 217(1) (a) really contemplates that the decision of a Judge to resign his office must be taken with due deliberation after considering all the pros and cons of the matter and not under any emotional instinct or inspired by undue haste or momentous fury. One of the essential qualities of a judicial power is restraint and a Judge before resigning 5-211 SCT/78 must be prepared to take a decision once for all so that having taken the decision he is not in a position to repent on the same or to brood over it. The decision once taken by the Judge in this regard is irrevocable and immutable and is just like an arrow shot from the bow which cannot be recalled or a bullet having fired and having reached its destination cannot come back to the barrel from which it was shot. Thus having regard to the letter of resignation in the present case, there can be no doubt that Satish Chandra had in his letter dated 7th May, 1977 indicated his unequivocal intention to resign in the clearest possible terms to the President with effect from 1st August, 1977 and the letter having been communicated to the President and received by him, it was not open to Satish Chandra to withdraw or revoke that letter. Consequently, the letter dated 15th July, 1977 addressed to the President by Satish Chandra revoking-his resignation was null and void and must be completely ignored. The position, therefore, in my opinion, is that Satish Chandra ceased to be a Judge of the High Court with effect from 1st August, 1977. For these reasons, therefore, I fully agree with the majority view of the High Court (Misra, Shukla and Singh, JJ.). I am unable to persuade myself to agree with my Brother Judges who have taken a contrary view. I, therefore, uphold the judgment of the High Court and dismiss the appeals. We have already pronounced the operative portion of the order on 8th December, 1977 and we have now given the reasons for the order pronounced. In the circumstances, there would be no order as to costs. M.R. Appeals allowed.