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PETITIONER: UNION OF INDIA

       Vs.

RESPONDENT: SHRI GOPAL CHANDRA MISRA AND ORS.

DATE OF JUDGMENT15/02/1978

BENCH: SARKARIA, RANJIT SINGH BENCH: SARKARIA, RANJIT SINGH GUPTA, A.C. UNTWALIA, N.L. FAZALALI, SYED MURTAZA SINGH, JASWANT

CITATION:  1978 AIR  694            1978 SCR  (3)  12  1978 SCC  (2) 301  CITATOR INFO :  RF         1981 SC 789  (13)  R          1987 SC2354  (10)  F          1989 SC1083  (8)

ACT: Constitution  of India, Art. 217(1) proviso (a) "resign  his office",  interpretation--High  Court  Judge’s   resignation letter intimating to have effect from a future date, whether receipt  by  President,  makes  resignation  fait  accompli- --Revocation  of  resignation  prior to  intimated  date  of effect,    validity   of--Doctrine   of    public    policy, applicability to judicial decisions.

HEADNOTE: The second respondent (appellant in CA 2655/77) Shri  Satish Chandra  wrote  to the President of India, on May  7,  1977, intimating  his resignation from the office of Judge of  the Allahabad  High Court, with effect from August 1, 1977.   On July 15,1977, he again wrote to the President, revoking  his earlier  communication,and  commenced  deciding  matters  in Court  from  July  16, 1977.  On  August  1,1977  the  first respondent Shri Misra, an advocate of the High Court.  filed a petition under Article 226 of the Constitution, contending that  the  resignation of Shri Satish Chandra,  having  been duly  communicated to the President of India, in  accordance with  Article  217(1) Proviso (a) of the  Constitution,  was final  and  irrevocable, and that the  continuance  of  res- pondent  No.  2  as a High Court Judge  thereafter,  was  an usurpation  of  public office.  The High Court  allowed  the petition holding that Shri Satish Chandra was not  competent to revoke his resignation letter. Allowing the appeal by certificate, HELD: Per  R.  S.  Sarkaria  on behalf of (A.   C.  Gupta,  N.  L. Untwalia, Jaswant Singh, JJ and himself). 1.   Resigning office necessarily involves relinquashment of the  office  which implies cessation or termination  of,  or cutting  asunder from the office.  A complete and  effective act of resigning office is one which severs the link of  the

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resignor with his office and terminates its tenure.  In  the context  of  Art.  217(1) this assumes the  character  of  a decisive  test, because the expression "resign  his  office" occurs   in  a  proviso  which  excepts  or  qualifies   the substantive clause fixing the office tenure of a judge  upto the age of 62 years. [21 E-F] 2.   In   the   absence   of   a   legal,   contractual   or constitutional  bar,  an intimation in writing sent  to  the appropriate  authority by an incumbent, of his intention  or proposal  to resign his office/post from a future  specified date, can be withdrawn by him at any time before it  becomes effective i.e., before it effects termination of the  tenure of the office/post or employment.  This is      general rule equally  applies to Government servants  and  constitutional functionaries.   In  the  case  of  a  Government   servant, normally,  the tender of resignation becomes  effective  and his   service  terminated,  when  it  is  accepted  by   the appropriate  authority.  In the case of a High  Court  Judge who  is  a  constitutional  functionary  having  under  Art. 217(1),  Proviso  (a), a Unilateral right  or  privilege  to resign,  his resignation becomes effective on the date  from which  he, of his own volition, chooses to quit office.  [27 E_G] Jai Ram v. Union of India, A.I.R. 1954, SC 584 and Rai Kumar Y. Union of India, [1968] 3 S.C.R. 857 followed. M.   Kunjukrishnan   Nadar  v.   Hon’ble   Speaker,   Kerala Legislative  Assembly, A.I.R. 1064 Kerala 194, Y. K.  Mathur v.  The Municipal Corporation of Delhi.  A.I.R.  1974  Delhi 58,  Sankar  Datt  Shukla  v.  President,  Municipal  Board, Attraiya and Anr., A.I.R. 1956 All. 70 Bahorilal Paliwal  v. Dist.  Magistrate, 13 Butandshahr  A.I.R.  1956 All. (511) F.B.: I.L.R.  (1956)  2 All.  593-F.B., Bhairon Singh Vishwakarma v.  Civil  Surgeon Narsimhapur, 1971 Labour Industrial Cases 127 M.P. approved. Rev.  Oswald Joseph Reichal v. The Right Rev.  John Fielder, Lord Bishop of Oxford, 14 A.C. 259, distinguished. 3.   A High Court Judge’s letter addressed to the  President intimating or notifying the writer’s intention to resign his office  as  Judge,’ on a future date, does no’,  and  cannot forthwith sever the writer from the office of the Judge,  or terminate his tenure.  Such a ’prospective’ resignation does not,  before the indicated future date is reached, become  a complete and operative act of resigning his office    by  the Judge within the contemplation of  Proviso (a) to Article 217(1). [22H,     23A] 4.   Public  policy can be a very unsafe,  questionable  and unreliable ground for judicial decision.  This doctrine  can be applied only in a case where clear and undeniable harm to the public is made out. [24C-E] Gherulal v. Mahadeo Das [1959] Supp. 2 S.C.R., 406, applied. 5.   In  substance, the letter dated May 7, 1977,  addressed by  appellant 2 to the President, amounted to a proposal  or notice  of intention to resign at a future date and,  before the  arrival  of  that date (August 1,  1977).  it  did  not constitute  a complete act of resignation having  the  jural consequence  of severing the link of the appellant with  the office of the Judge, and hence it had been validly withdrawn by  him as per his letter dated July 15, 1977  addressed  to the President, there being no constitutional or legal bar to such withdrawal. [33D-E] Per S. Murtaza Fazal Ali, J. (Dissenting) 1.   Where  the  effectiveness of a resignation by  a  Judge does  not depend upon the acceptance by the  President,  and

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the resignation acts ex-proprio vigore  on the compliance of the  conditions  mentioned in Art. 217(1)(a),  the  resignor completely ceases to retain any control over it and  becomes functus officio, though the resignation may take effect from the  date  mentioned in the letter, or "if no such  date  is mentioned, from the date of the letter itself". [54 EG] The  Principles  flowing  as a logical  corollary  from  the nature  and  character  of the  privileges  right  or  power conferred by the Constitution on a Judge of a High Court  or other constitutional functionaries are :-               1.    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               depend upon the acceptance of the  resignation               by the President.               If.  In  view  of the  provisions  of  Article               217(1)(a) and similar provision,-, in  respect               to  high  constitutional  functionaries,   the               resignation once submitted and communicated to               the  appropriate authority,  becomes  complete               and irrevocable and acts ex proprio vigore.               III.  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.               IV.   The  resignation  contemplated  by  Art.               217(1)  (a)  is purely a  unilateral  act  and               takes  effect  ipso  facto-once  intention  to               resign  is  communicated to the  President  in               writing and addressed to him.               V.    On  a  true  interpretation  of  Article               217(1)(a), a resignation having been submitted               and  communicated to the President, cannot  be               recalled even though it may be prospective  in               nature  so  is  to come  into  effect  from  a               particular date.                14               VI.   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 the omission. [56 C-H, 57 A-B] Rev.  Oswald Joseph Raichal v. The Right John Fielder,  Lord Bishop of Oxford, 14 A.C. 259, Pinch v. Oake (1896) 1  Ch.D. 409,  People  of  the  State of  Illinois  Ex.   Ral.   B.S. Adamowaki v. Otto Kerner, 82 A.L.R. 2nd Series 740,  Glossop V.  Glossop  (1907)  2 Ch.  D. 370; Bidi,  Bidi  Leaves  and Tobacco  Merchants Association, Gondia, & Anr. v. The  State of Bombay & Ors., A.I.R. 1962 S.C. 486; applied. Sukhdeo Narayan and Ors. v. Municipal Commissioner of  Arrah Municipality  and Ors., A.I.R. 1956 Patna 367 and  373;  and Smt.  Raisa Sultana Begum and Ors. v. Abdul Qadir and  Ors., A.I.R. 1966 All. 318 at 321 Approved. Y.   K.  Mathur  v.  The  Municipal  Corporation  of  Delhi. A.I.R. 1974 Delhi 58, distinguished. M.   Kunjukrishnan   Nadar  v.  Hon’ble   Speaker,   Kerala, Legislative  Assembly,  A.I.R. 1964  Kerala  194,  Bahorilal Paliwal v. District Magistrate, Bulandshahr A.I.R. 1956 All.

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511  F.B. = I.L.R. (1956) 2 All. 593 F.B. and Bhairon  Singh Vishwakarma  v.  Civil  Surgeon,  Narsimhapur,  1971  Labour Industrial Cases 127 M.P. disagreed with. Union  of  India v. S.H. Sheth and Anr., (1977) 4  SCC  193, Corpus  Juris Secundum, Vol. 48 p. 973 and Vol. 67  v.  227; Jurisprudence  by Paton 3rd Ed. by Derham; Jurisprudence  by Salmond,  12th Ed. by Fitzgerald, and American  Constitution edited by Corwin; referred to. 2.   It is manifestly plain that there is no relationship of 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  Art.  217 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 an employer of  the Judge,  in  appointing  a  Judge,  the  President  exercises certain  constitutional  functions as  contained-in  Article 217(1).  It is, therefore, indisputable that a Judge of  the High  Court enjoys a special status under the  Constitution, because  of  the very high position that he holds  and  the, dignity  and decorum of the office that he has to  maintain. [37 D-H] Union of India v. Sankalchand Himatlal Sheth & Anr.,  [1978] 1 S.C.R. 423; followed.

JUDGMENT: 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. 15 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 SARKARIA,  J.-By a short Order, dated December 8,  1977,  we (by majority) accepted these two appeals and announced  that a   reasoned   judgment   shall  follow   in   due   course. Accordingly, we are now rendering the same. Whether  a High Court Judge, who 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.

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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." 16 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 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.  2/14/77- Jus., 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

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Misra, that the Union of India has no locus standi to prefer an appeal against the 17 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 18 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  Attorney- General to proceed with his address. The  contentions advanced by the  learned  Attorney-General, Mr.  Gupte,  on  behalf  of  the  Union  of  India,  may  be summarised as follows :

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             (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. 19 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

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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.  20 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

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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  self- contained 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 21 question is found in the affirmative, the appeals must fail. If  it be in the negative, the foundation for the  reasoning of the High Court will fail and the appeals succeed. Well then, what is the correct connotation of the expression "resign his office" used by the founding fathers, in Proviso (a) to Article 217(1) ? ’Resignation’ in the Dictionary sense, means the spontaneous relinquishment of one’s own right.  This is conveyed by  the maxim : Resionatio est juris propii spontanea refutatio (See Carl Jowitt’s Dictionary of English Law).  In relation to an office,  it connotes the act of 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

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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 22 "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

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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 implied- 23 ly 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  Vice- President.  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  Cons- titutional provisions which would lead to abuse of power  by the Constitutional functionaries. The contention appears to be misconceived.

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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, 24 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  com- pletely  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  ?  Con- versely,  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

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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. 25 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  inten- tion  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 allow- ed 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  per- mission  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 26 to   retirement.    The   Plantiff   made   representations. Ultimately, the Government of India, by a letter dated 28-4-

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48  rejected  his  representation,  repeating  the   reasons intimated by the Director earlier to the plaintiff- In  special appeal before this Court, two points were  urged on  behalf  Of the plaintiff-appellant.  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. 27 The  learned Judges of the High Court (in majority),  if  we may say so with respect, have failed to appreciate correctly the  amplitude and implications of this rule  enunciated  by this  Court  in Jai Ram v. Union of India  (supra).   R.  B. Misra, J. bypassed it casually on the short ground that  the

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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  office- tenure of the resignor.  This general rule is equally appli- cable    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 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. 28 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

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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 29 (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

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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 30 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

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             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               31               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.

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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. 32 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

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             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."                              33 Reichal  is  no  authority  for  the  proposition  that   an unconditional   prospective   resignation,   without   more, normally  becomes  absolute and operative the moment  it  is conveyed to the appropriate authority.  The special  feature of  the  case was that Reichal had, of his  own  free  will, entered into a "perfectly binding agreement" with the Bishop according  to which, the Bishop had agreed to  abstain  from commencing  an  inquiry  into the  serious  charges  against Reichal   if  the  latter  tendered  his  resignation.    In 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. FAZAL  ALI,  J.  :  These two  appeals  by  certificate  are directed  against  an  order of  the  Allahabad  High  Court issuing  a  writ  of Quo  Warranto  against  Justice  Satish Chandra,  a 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

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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. 34 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  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". 35 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

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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, 36 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

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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               37               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

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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.               38               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

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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               39               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 :-

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             "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               40               "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

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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-               (b)   resigns  his seat by writing  under  his               hand addressed to the Chairman or the Speaker,               as  the case may be, his seat shall  thereupon               become vacant."               It   would   be,   seen   that   like    other               constitutional  functionaries mentioned  above               even  a member of either House  of  Parliament               could  resign  his seat by writing  under  his               hand addressed to the Chairman or the Speaker,               as  the case may be and once that is done  the               seat would become vacant.  A similar provision               exists   so   far  as  the  members   of   the               Legislature of a State are concerned which  is               contained  in  Article 190(3) (b)  which  runs               thus :               "190(3) If a member of a House of  Legislature               of a 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".                41               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)  If  a  member  of  a  House  of   the               Legislature of a State-               (b)   resigns  his seat by writing  under  his               hand   addressed  to  the  Speaker   or   the,               Chairman,   as  the  case  may  be,  and   his               resignation is accepted by the Speaker or  the               Chairman,  as the case may be, his seat  shall               thereupon become vacant               Provided  that in the case of any  resignation               referred   to  in  sub-clause  (b)   if   from               information  received or otherwise  and  after               making  such  inquiry as he  thinks  fit,  the               Speaker  or the Chairman, as the case may  be,               is  satisfied  that such  resignation  is  not               voluntary or genuine, he shall not accept such               resignation".

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             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               42               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

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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               43               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

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             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.               44               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

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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. 45 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

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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. 46 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.

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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  resig- nation  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. 47 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 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

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             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. 48 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  non- est  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

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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. 49 was  introduced  by  virtue of the  amendment.   As  however Parliament did not intend to disturb the position in case of other  constitutional  functionaries  like  the  High  Court Judges,  Supreme  Court Judges,  President,  Vice-President, Speaker  etc. no such amendment by introducing- the  concept of  acceptance  of  the resignation  was  brought  about  in Article   217  and  other  similar  Articles.   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. 50 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

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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 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  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                 51 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

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             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.               52               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

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             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 Presi- dent  was  clearly entitled to fill up the  vacancy  of  the Judge from 1st August, 1977 and may take steps  accordingly. Thus, by virtue of 53 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 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               wishes  to do so ? Absolutely nothing.  In  my

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             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. 54               "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

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             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  resig- nation  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. 55 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

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             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 56 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

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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. 57 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

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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 58 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  opera- tive 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. 59