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TMI Blog1978 (2) TMI 218X X X X Extracts X X X X X X X X Extracts X X X X ..... hat 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 The President of India, New Delhi. 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 The President of India, New Delhi. Sir, I b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re 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 ([1959] Supp. 2 S.C.R. 406)]. (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 (A.I.R. 1954 S.C. 584); and followed by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ; (iv) is transferred to any other High Court in India. 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 immediatel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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" ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch 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 Vice- President. If this Court involves a principle ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t has terminated." The rule enunciated above was reiterated by this Court in Raj Kumar v. Union of India (1968 3 S.C.R. 857), 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. 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 i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 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 office- tenure forthwith, and cannot therefore, be withdrawn or revoked thereafter. But, if he by such Writing chooses to resign from a future date, the act resigning office is not complete because it does not terminate his tenure before such date and the Judge. 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 cas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ker 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd 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 b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... een the application and the date from which the resignation was to be effective. On 15th July, 1977 however the second respondent wrote ano- ther 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 The President of India, New Delhi. 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 The President of India, New Delhi. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dent 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n, 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 s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ber 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 assi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (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, se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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-- (b) resigns his seat by writing under his hand addressed to the Chairman or the Speaker, as the case may be, and his resignation is accepted by the Chairman or the Speaker, as the case may be, his seat shall thereupon become vacant Provided that in the case of any resignation referred to in sub-clause (b), 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 974 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 clearl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tice 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 Gajendrag ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dge 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. 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 wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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, 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 resignat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 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 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 uni- lateral 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9;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 Me ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 Article- 217 (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 Munici ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce, 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. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Protec- tion 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 wishe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot;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 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fect 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me 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 w ..... X X X X Extracts X X X X X X X X Extracts X X X X
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