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PETITIONER: MOTI RAM

       Vs.

RESPONDENT: PARAM DEV AND ANR.

DATE OF JUDGMENT05/03/1993

BENCH: AGRAWAL, S.C. (J) BENCH: AGRAWAL, S.C. (J) PANDIAN, S.R. (J)

CITATION:  1993 AIR 1662            1993 SCR  (2) 250  1993 SCC  (2) 725        JT 1993 (2)   251  1993 SCALE  (1)803

ACT: Representation  of  the  Peoples Act  1951  :  Section  116- A--Election petition challenging applicant’s election to the State  Legislature  Assembly--Allowed--Dissolution  of   the Legislation  of the Legislative Assembly pending  appeal  to this court--Effect of. Representation    of   the   Peoples   Act,    1951--Section 36(1)(2)--requirement  of the candidate of  being  qualified for  being  chosen to fill the seat on the  date  filed  for scrutiny  of  nomination--Resignation  from  the  office  of Chairman in far take effect from the date of the date of the communication  for  the  Head  of  the  Department  in   the Government.

HEADNOTE: For  election to the Himachal Pradesh  Legislative  Assembly from 60 Chachiot Assembly Constituency held during February, 1990, fifteen persons, including the appellant and one Karam Singh, filed nomination papers.  At the time of scrutiny, an objection  was raised against the nomination of Karam  Singh on  the ground that he was holding the office  of  Chairman, Himachal  Pradesh Khadi and village Industries Board,  which is an office of porfit within the meaning of Article 191 (1) (a) of the Constitution and was, therefore, disqualified for being  chosen as a member of the legislative Assembly.   The Returning  Officer  upheld the objection  and  rejected  the nomination  of  Karam  Singh.  The  appellant  was  declared elected   to   the  Legislative  Assembly  from   the   said Constituency.    His   election  was   challenged   by   the Respondents  by filing election petitions in the High  Court of  Himachal  Pradesh.  The High Court found that  the  said rejection of nomination of Karam Singh was improper  because on  the  date  of scrutiny Karam Singh was  not  holding  an office  of profit and for that reason, the election  of  the appellant was set aside. The appellant herein filed the present appeals under section 116-A  of the Representation of the People Act,  challenging the judgment of the High Court of Himachal Pradesh. 251 During  the  pendency of the appeals  the  Himachal  Pradesh Legislative Assembly was dissolved.

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After  considering  the appeals on merits the  Court,  which dismissing the appeals, HELD : 1. Inspite of the dissolution of the Himachal Pradesh Legislative Assembly the question arising for  consideration cannot   be  said  to  have  become  academic  because   the invalidation of the election of the appellant may give  rise to  the liability to refund the allowances received  by  the Appellant. [253G, 255-B] Loknath  Padhan  v. Birendra Kumar Sahu, [1974] 3  SCR  114, distinguished. [253G] 2.01.’Resignation’  means the spontaneous relinquishment  of one’s  own right and in relation to an office,  it  cannotes the  act of giving up or relinquishing the office.  The  act of  relinquishment may be unilateral or bilateral  depending on the return of the office and the conditions governing it. [260F] 2.02.If   the  act  of  relinquishment  is   of   unilateral character, it comes into effect when such act indicating the intention  to  relinquish  the  office  is  communicated  to competent  authority.   The  authority to whom  the  act  of relinquishment  is communicated is not required to take  any action and the relinquishment takes effect from the date  of such  communication  where the resignation  is  intended  to operate in praesenti. [260G] 2.03.In  cases  where  the act of  relinquishment  is  of  a bilateral  character, the communication of the intention  to relinquish, by itself, would not be sufficient to result  in relinquishment of the office and some action is required  to be   taken  on  such  communication  of  the  intention   to relinquish,   e.g.,  acceptance  of  the  said  request   to relinquish the office, and in such a case the relinquishment does  not become effective or operative till such action  is taken. [260H,,261A-B] 301.  From the provision of Section 7 of the H.P. Khadi  and Village  Industries  Board Act, 1966, (the ’Act’)  it  would appear  that  the  act of relinquishment of  the  office  of Chairman of the H.P. Khadi and Village Industries Board (the Board)  is unilateral in character and the resignation  from the said office takes effect when it is communicated without any 252 further  action  being  required to be taken  on  the  same. Since  the  Chairman  of  the  Board  is  nominated  by  the Government  of  Himachal Pradesh under Section 4(2)  of  the Act,  resignation  has  also  to  be  communicated  to   the Government  of  Himachal  Pradesh  i.e.  the  Head  of   the Department  dealing  with  the  Board, and  once  it  is  so communicated   it  takes  effect  from  the  date  of   such communication if the resignation is in praesenti or from the date indicated therein if it is prospective in nature to  be operative from a future date. [263G-H, 264A-B] 3.02.The resignation of Karam Singh as Chairman of the Board was  not  required  to  be accepted  by  the  Government  of Himachal  Pradesh.  It became effective on January 31,  1990 when the letter of resignation was received by the Financial Commissioner-cum-Secretary (Industries) to the Government of Himachal Pradesh who was the Head of the Department  dealing with the Board and to whom it was addressed. [265D] 3.03.Since  there  is  no requirement in the  Act  that  the resignation of the Chairman of the Board should be  notified in  the Official Gazette as in the case of a member  of  the Board, it cannot be said that the resignation of Karam Singh did  not  take effect till it was notified in  the  Official Gazette vide notification dated February 12, 1990. [265E] Central  Inland  Water  Transport  Corporation  Limited  and

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Another  v. Brojo Nath Ganguly and Anr., [1986] 2  SCR  273; J.K Cotton Spinning and Weaving Mills Company Ltd. v.  State of  U.P.  &  Others, [1990] 3 SCR 523;  Lala  Ram  v.  Gauri Shanker,  1981 All.  Law 1982; Raj Kumar v. Union of  India, [1968] SCR 857; Union of India v. Shri Gopal Chandra Misra & Ors.,  [1978]  3  SCR 12 at p. 21 and  Glossop  v.  Glossop, 1907,2 Ch. 370, Halsburys Law of England 4th Ed., Vol. 7, p. 316, para 536, relied on. [260D-G, 261G, 262G]

JUDGMENT: CIVIL  APPELLATE JURISDICTION: Civil Appeal Nos. 2640-41  of 1991. From  the Judgment and Order dated 3.6.1991 of the  Himachal Pradesh High Court in Election Petition Nos. 1 & 2 of 1990. A.K.  Ganguli, B.T. Kaul, Sarvesh Bisaria and  S.K.  Bisaria for the Appellant. B.   Dutta and R. Sasiprabhu for the Respondents. 253 The Judgment of the Court was delivered by S.C. AGRAWAL, J. These appeals have been filed under section 116-A  of the Representation of the People Act, 1951.   They relate  to  election  to the  Himachal  Pradesh  Legislative Assembly from 60- Chachiot Assembly constituency held during February,  1990.  The appellant was declared elected to  the Legislative  Assembly  from  the  said  constituency.    His election was challenged by the respondents in these  appeals by  filing election petitions in the High Court of  Himachal Pradesh.  By its judgment dated June 3, 1991, the High Court has  allowed  the election petitions and has set  aside  the election of the appellant on the ground that the  nomination of  one of the candidates, Shri Karam Singh  was  improperly rejected by the returning officer. The last date for filing the nomination papers was  February 2, 1990 and the scrutiny of the nomination papers was  fixed for  February  5,  1990.   Fifteen  persons,  including  the appellant and Shri Karam Singh had filed nomination  papers. At  the time of scrutiny, an objection was raised on  behalf of  one  of the candidates against the  nomination  of  Shri Karam Singh on the ground that he was holding the office  of Chairman,  Himachal  Pradesh Khadi  and  Village  Industries Board,  which is an office of profit within the  meaning  of Article  191(1)(a) of the Constitution and  was,  therefore, disqualified for being chosen as a member of the Legislative Assembly.   By order dated February 7, 1990,  the  Returning Officer   upheld  the  said  objection  and   rejected   the nomination  of  Shri  Karam  Singh.   The  High  Court  has, however, found that the said rejection of nomination of Shri Karam  Singh  was improper because on the date  of  scrutiny Shri  Karam  Singh was not holding an office of  profit  and has,  for  that  reason,  set  aside  the  election  of  the appellant. Before we proceed to deal with the appeals on merits, it may be  mentioned  that  during the pendency  of  these  appeals before this court, the Himachal Pradesh Legislative Assembly has  been dissolved.  This raises the question  whether  the matters  in issue in these appeals have ceased to be  living issues  and  have  become wholly academic.   The  effect  of dissolution of the legislature on a pending election  appeal has  been  considered  by this court in  Loknath  Padhan  v. Birendra  Kumar Sahu, [1974] 3 SCR 114.  In that  case,  the election of the returned candidate was challenged before the High  Court  on  the  ground that  there  was  a  subsisting contract entered into

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254 by  the respondent in the course of his trade  and  business with  the  State  Government  for  the  execution  of  works undertaken   by  the  Government  and  he  was,   therefore, disqualified  under section 9A of the Representation of  the People  Act,  1951.   The election  petition  was,  however, dismissed by the High Court and while the appeal against the said  decision  was pending in this Court,  the  Legislative Assembly was dissolved.  A preliminary objection was  raised on  behalf of the respondent to the appeal that in  view  of the  dissolution of the assembly it was academic  to  decide whether or not the respondent was disqualified under section 9A.   Upholding the said preliminary objection,  this  court has  held that the court should not undertake to  decide  an issue unless it is a living issue between the parties and if an issue is purely academic, in that its decision one way or the  other  would  have no impact on  the  position  of  the parties,  it  would be waste of public time and  indeed  not proper exercise of authority for the court to engage  itself in deciding it.  In that case, this court drew a distinction between  a case where the challenge to the election is on  a ground  confined to the validity of that election  only  and having  no  consequences  operating in  future  and  a  case involving challenge to the election on a ground which  would entail  electoral disqualification for the future, such  as, charge  of  corrupt  practice.   It was  held  that  if  the election  is  challenged on the ground of  commission  of  a corrupt  practice the dissolution of the  legislature  would not have any effect on the pendency of an election  petition or  an appeal arising therefrom and the said  petition  will have  to be considered on its merits whereas a challenge  to the  election  on  any other ground which  does  not  entail future disqualification would raise academic issue only  and in  view of the dissolution of the legislature the  election petition  or the appeal arising therefrom would not  survive because it would be futile and meaningless for the court  to decide  an academic question the answer to which  would  not affect the position of one party or the other. Although in the instant case the election is not  challenged on  the ground of commission of any corrupt practice  and  a finding  would not result in electoral  disqualification  in future  but-  the  present case differs  from  the  case  of Loknath  Padhan v. Birendra Kumar Sahu (supra) in the  sense that  in Loknath’s case the election petition was  dismissed whereas  in the present case the election petitions  against the  election  of the appellant have been  allowed  and  the election has been set aside.  It has been submitted by  Shri A.K. Ganguli, the learned Senior counsel appearing on behalf of the appellant, that in view of the fact that the decision of the High 255 Court  setting  aside  his election, the  appellant  may  be required  to  refund  the various  allowances  that  he  has received  while  he  was  functioning as  a  member  of  the Legislative Assembly after his election till the decision of the  High Court.  It would thus appear that invalidation  of the election of the appellant may give rise to the liability to  refund  the allowances received by the  appellant  as  a member  of the Legislative Assembly.  It cannot,  therefore, be said that the question a rising for consideration in this appeal   are   purely   academic  in   nature.    In   these circumstances, it becomes necessary to go into the merits of these appeals. The  relevant  facts  relating  to  the  rejection  of   the nomination of Shri Karam Singh are as under.

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The  Himachal  Pradesh Khadi and  Village  Industries  Board (hereinafter   referred  to  as  ’the  Board’).   has   been established  by  the Government of  Himachal  Pradesh  under Section  3 of H.P. Khadi and Village Industries  Board  Act, 1966  (hereinafter  referred to as ’the  Act’).   Section  4 provides  for  the constitution of the Board and  in  sub-s. (1),  it  is laid down that the Board shall consist  of  not less than three and not more than nine members appointed  by the  Government of Himachal Pradesh after consultation  with the  Khadi  and Village Industries Commission  from  amongst non-officials  who in the opinion of Government of  Himachal Pradesh  have  shown active interest in the  protection  and development  of khadi and village industries and  officials. In  sub-s.  (2)  of  Section  4  it  is  provided  that  the Government of Himachal Pradesh shall after consultation with the Khadi and Village Industries Commission, nominate one of the members of the Board to be the Chairman thereof, Section 7  makes  provision for resignation of  office  by  members. Section  11 provides that the term of office and  terms  and conditions  of  service  of  the  Chairman,   Vice-Chairman, Secretary  and  other  members  shall  be  such  as  may  be prescribed.  In exercise of the powers conferred by  Section 35  of the Act, the Government of Himachal Pradesh has  made the  Himachal  Pradesh Khadi and  Village  Industries  Board Rules, 1966 (hereinafter referred to as ’the Rules’).   Rule 3  of the Rules prescribes that a member of the Board  shall hold office for such period not exceeding three years as may be  prescribed in the notification of his appointment  which shall  be  notified  in the Official Gazette  and  shall  be eligible for re-appointment.  Rule 7 provides for salary  or honorarium  and allowance payable to members.  Sub-rule  (1) of Rule 7 provides that the Chairman, the Vice-Chairman, the Secretary and other 256 members of the Board shall be paid such salary or honorarium and allowances from the funds of the Board as the Government may  from time to time fix.  In sub- rule (2) of Rule 7,  it is  laid  down  that the Chairman,  the  Vice-Chairman,  the secretary  and  other  members of the Board  shall  also  be entitled  to  draw  travelling  and  daily  allowances   for journeys  performed for attending the meetings of the  Board or  for  the purpose of discharging such duties  as  may  be assigned  to them by the Board in accordance with the  rules and orders issued by the Government from time to time at the highest rate admissible to Government servants of Grade 1. By notification dated September 2, 1982, issued in  exercise of the powers conferred by Rule 7 of the Rules, the Governor of  the Himachal Pradesh, ordered that the Chairman  of  the Board shall be entitled to pay and other allowances from the Funds of the Board at the following rates:-               (1)   Pay/remuneration/honorarium of Rs.  1500               p.m. (consolidated).               (2)   Free electricity and water charges  upto               Rs. 1500 per year.                (3)  Use  of  a  car or  in  lieu  thereof  a               conveyance allowance of Rs. 300 per month.               (4)   Telephone  facilities in office  and  at               residence.               (5)   TA  and medical expenses  admissible  to               the officers of Highest First Grade category. By  notification  dated December 27, 1986, the  Governor  of Himachal  Pradesh  constituted  the  Board  with   immediate effect.   Under the said order, the Board consisted of  nine members  including  Shri Karam Singh Thakur.   By  the  said order  the Governor of Himachal Pradesh also nominated  Shri

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Karam  Singh  Thakur  as Chairman of  the  said  Board.   By notification dated December 20, 1989, the term of the  Board was  extended upto December 26, 1990.  On October 18,  1989, Shri  Karam  Singh Thakur wrote a letter  to  the  Financial Commissioner-cum-Secterary (Industries) to the Government of Himachal Pradesh wherein it was stated that consequent  upon amendment to Second Proviso to section (1) of section 6B  of the  Himachal Pradesh Legislative Assembly  (Allowances  and Pension of members) Act, 1971, his pension had been  revised to Rs. 2400 per month with effect from February 4, 1989  and that on the basis of the said orders, 257 he was authorised by the Senior DAG(A&E), Himachal  Pradesh, Shimla, by letter dated 6th July, 1989, to draw from  Shimla Treasury the balance pension of Rs. 900 p.m. after adjusting the  remuneration of Rs. 1500 which he had been  drawing  as remuneration from the Board and the pension of Rs. 900  p.m. plus  relief  due  thereon from  the  Punjab  National  Bank through Treasury Officer, Shimla.  By aforesaid letter, Shri Karam  Singh intimated that he now intended not to draw  the monthly  remuneration  of Rs. 1500 p.m. from the  Board  and that  instead he would be drawing the gross pension  of  Rs. 2400  p.m. from the Treasury/Bank and he requested  that  no objection  of the State Government to the said proposal  may be conveyed to him at an early date.  The said proposal made by  Karam Singh was accepted by the Government  of  Himachal Pradesh  and  by notification dated January 8,  1990  issued under  Rule  7(1)  of the Rules, the  Governor  of  Himachal Pradesh  ordered  that  the remuneration of  Rs.  1500  p.m. (consolidated)  which  was payable to the  Chairman  of  the Board  shall cease as per the request of the  Chairman  made vide  his  letter dated October 18, 1989.   On  January  31, 1990,  Shri Karam Singh addressed a Letter to the  Financial Commissioner-cum-Secretary  (Industries) to the Governor  of Himachal Pradesh in the following terms :-               "I  hereby  resign  from  the  membership  and               Chairmanship of the Himachal Pradesh Khadi and               Village Industries Board.  The resignation may               kindly be accepted with effect from today  Le.               31st January, 1990". On  the basis of the letter of January 31, 1990,  which  was received  on the same day, the matter was processed  in  the office of Financial Commissioner-cum-Secretary  (industries) and it was placed before the Chief Minister for his approval with  the recommendation that the resignation of Shri  Karam Singh,  Chairman, may be accepted.  The Chief Minister  gave his  approval on February 4, 1990.  On February 12, 1990,  a notification was issued in the following terms :-               "In exercise of the powers vested in him under               section  7 of the Himachal Pradesh  Khadi  and               Village   Industries  Board  Act,  1966,   the               Governor,  Himachal  Pradesh  is  pleased   to               accept  the  resignation of Shri  Karam  Singh               Thakur,  Chairman,  H.P.  Khadi  and   Village               Industries   Board,  Shimla   with   immediate               effect".               258 In  the  meanwhile, Shri Karam Singh  filed  his  nomination papers  for  election to the  Himachal  Pradesh  Legislative Assembly  from the 60 Chachiot Assembly  constituency.   The scrutiny  of the nomination papers was held on  February  5, 1990.   An  objection was raised against the  nomination  of Shri  Karam Singh on behalf of one of the candidates,  viz., Vir  Singh, on the ground that Shri Karam Singh was  holding an office of profit and was disqualified for being chosen as

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a member of the Legislative Assembly.  Shri Karam Singh  was not  present at the time of scrutiny but his proposer,  Shri Mani  Ram,  Advocate, was present and he  was  requested  to ensure  the  appearance  of  Shri  Karam  Singh  before  the Returning  Officer  on February 6, 1990 at  11.00  a.m.  for hearing him in connection with the objection.  The Returning Officer also directed Tehsildar (Elections) to enquire  from the Secretary of the Board about the remuneration and  other allowances  being drawn by Shri Karam Singh in his  capacity as  chairman of the Board.  The report of the Tehsildar  was placed  before  the  Returning  Officer.   Shri  Mani   Ram, Advocate,  as proposer of Shri Karam Singh also submitted  a reply  to the Returning Officer on February 6, 1990  wherein it  was  stated  that  Karam Singh  had  resigned  from  the chairmanship  on 29th or 30th of January 1990 and  that  the acceptance  of the resignation was not kwown to  Shri  Karam Singh.   By  order  dated February 7,  1990,  the  Returning Officer  rejected the nomination of Shri Karam Singh on  the view  that were submission of the resignation unless it  was accepted, could not be taken as deemed to have been accepted and that Shri Karam Singh was holding an office of profit as his resignation had not been accepted upto February 5,  1990 which  was  the  date  for scrutiny, and  that  he  was  not eligible  to  seek election as a candiate for  the  Himachal Pradesh Legislative Assembly. Before  the  High Court, it was submitted on behalf  of  the petitioners  in the election petitions (respondents  herein) that Shri Karam Singh had resigned with effect from  January 31,  1990 vide his resignation letter of the said  date  and the  said letter takes effect from January 31, 1990  itself. The  High Court accepted the said contention and  held  that the Act is silent and contains no provision as to how and in what manner the resignation of the Chairman of the Board  is to be accepted and therefore the holder thereof could  bring his  appointment to an end by resigning with effect  from  a particular  date and he would then be deemed to have  ceased to  be  Chairman from the date  itself  notwithstanding  its acceptance on a later date.  The High Court was,  therefore, of the view that Shri Karam Singh 259 held no office of profit whatsoever in the Board on the date of  scrutiny, i.e., February 5, 1990 since he  had  tendered his  resignation  on  January 31,  1990.   The  High  Court, further, found that in view of the letter dated October  18. 1989  sent  by  Shri Karam Singh conveying  his  request  of giving   up   the  remuneration  of  Rs.  1500   per   month (consolidated)  which  request  was accepted  by  the  State Government  as  pet  notification  dated  January  8,  1990, pursuant to which Shri Karam Singh ceased to be entitled  to draw  the  abovementioned  remuneration  with  effect   from January  8,  1990,  Shri Karam Singh  was  not  entitled  to remuneration  which could be classified as ‘profit’ for  the office  of  Chairman  of the Board held  by  him  and  after January 8, 1990, it could not be said that Shri Karam  Singh was   holding  an  office  of  profit  and   therefore   the disqualification for membership of the Legislative  Assembly of  Himachal  Pradesh  could not attach  to  him.   For  the reasons  aforesaid, the High Court held that the  nomination of  Shri Karam Singh was wrongly rejected by  the  Returning Officer. Shri Ganguli has assailed the findings recorded by the  High Court  on  both  the questions whereas Shri  B.  Datta,  the learned  senior  counsel appearing for the  respondents  has supported the said findings. It is not disputed that in view of the amendment  introduced

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in   clause  (a)  of  sub-s.  (2)  of  Section  36  of   the Representation  of the People Act, 1951 by Act 40  of  1961, the  relevant date for determining whether a  candidate  was qualified or disqualified for being chosen to fill the  seat under  the  various  provisions  of  Constitution  mentioned therein,  including  Article  191, is  the  date  fixed  for scrutiny of nominations.  In the instant case the said  date was  February  5,  1990.  It  is,  therefore,  necessary  to determine whether Shri Karam Singh was holding an office  of profit on February 1990. In  view  of the findings recorded by the  High  Court,  the following questions arise for consideration. (1)  Did  Shri  Karam  Singh cease to  hold  the  office  of Chairman of the Board on January 31. 1990 the date on  which he  submitted  his resignation from the said  office  or  on February 12, 1990 when the notification about acceptance  of his  resignation  with immediate effect was  issued  by  the Government of Himachal Pradesh? (2)  Did  the office of Chairman of the Board held  by  Shri Karam 260                   . Singh  cease  to  be an office of profit  with  effect  from January 8, 1990 in view of the notification of the said date whereby  the  remuneration of Rs. 1500  p.m.  (consolidated) payable  to  the  Chairman of the Board  had  ceased  to  be payable to Shri Karam Singh? Shri  Ganguli has urged that the resignation of  Shri  Karam Singh  from  the office of Chairman of the  Board  could  be effective  only  after it was accepted by  the  Governor  of Himachal  Pradesh who had nominated him to the  said  office and till the acceptance of the said resignation, Shri  Karam Singh  continued to hold the office of the Chairman  of  the Board.  The submission of Shri Ganguli is that acceptance of a  resignation is necessary before it can be  effective  and since in the present case the resignation was accepted  only by  notification dated February 12, 1990, Shri  Karam  Singh continued as Chairman of the Board till that date and he was holding that office on the date of scrutiny, i.e., February, 5,  1990.   In support of this submission Shri  Ganguli  has placed  reliance on the decisions of this Court  in  Central Inland  Water Transport Corporation Limited and  Another  v. Brojo Nath Ganguly and Anr., [1986] 2 SCR 278 and J.K Cotton Spinning  and Weaving Mills Company Ltd. v. State of U.P.  & Others.,  (19901  3 SCR 523 as well as the decision  of  the Allahabad  High  Court in Lala Rain v. Gauri  Shanker,  1981 All.   Law  1982.   Having  carefully  considered  the  said contention of Shri Ganguli we find it difficult to accede to it. As  pointed  out  by this  court,  ’resignation’  means  the spontaneous  relinquishment  of  one’s  own  right  and   in relation  to an office, it connotes the act of giving up  or relinquishing  the  office.  It has been held  that  in  the general  juristic sense, in order to constitute  a  complete and  operative  resignation there must be the  intention  to give up or relinquish the office and the concomitant act  of its relinquishment.  It has also been observed that 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. (See :  Union of India v. Shri Gopal Chandra Misra & Ors., [1978] 3 SCR 12 at  p. 21).  If the act of relinquishment is  of  unilateral character, it comes into effect when such act indicating the intention  to relinquish the office is communicated  to  the competent  authority.   The  authority to whom  the  act  of relinquishment  is communicated is not required to take  any

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action and the relinquishment takes effect from the date  of such  communication  where the resignation  is  intended  to operate in prasenti.  A resignation may also be  prospective to be operative 261 from  a future date and in that event it would  take  effect from  the  date indicated therein and not from the  date  of communication.  In cases where the act of relinquishment  is of a bilateral character, the communication of the intention to relinquish, by itself, would not be sufficient to  result in relinquishment of the office and some action is  required to  be  taken  on such communication  of  the  intention  to relinquish,   e.g.,  acceptance  of  the  said  request   to relinquish the office, and in such a case the relinquishment does  not become effective or operative till such action  is taken.  As to whether the act of relinquishment of  anoffice is  unilateral or’ bilateral in character would depend  upon the nature of the office and conditions governing it. Under  the Constitution of India there are  various  offices which can be relinquished by unilateral act of the holder of the  office and acceptance of resignation is  not  required, e.g.,  President [Article 56(a)].   Vice-President  [Article 67(a)],  Deputy  Chairman of Rajya  Sabha  [Article  90(b)], Speaker  and  Deputy Speaker of Lok Sabha  [Article  94(b)], Judge  of the Supreme Court [Article 124(2)(a)], Judge of  a High  Court  [Article  217 (1)(a)].  As  regards  member  of either  House  of  Parliament  or a member  of  a  House  of Legislature of a State, originally, the position was that he could resign his office by unilateral act and the acceptance of  resignation  was  not  required.   The  requirement   of acceptance  of such resignation was introduced  in  Articles 101(3)(b)  and  190(3)(b) by the  Constitution  (ThirtyThird Amendment) Act, 1974.  Similarly in company law, a  director of  a  company is entitled to relinquish his office  at  any time  he  pleases  by  proper  notice  to  the  company  and acceptance of the resignation is not required. [See: Glossop v. Glossop, (1907) 2 Ch 370, Halsbury’s Law of England,  4th Ed., Vol. 7, p. 316, para 536]. A  contract  of employment, however, stands on  a  different footing  wherein the act of relinquishment is  of  bilateral character  and resignation of an employee is effective  only on  acceptance  of  the same by the  employer.   Insofar  as Government  employees  are  concerned,  there  are  specific provisions in the Service rules which require acceptance  of the  resignation before it becomes effective.  In Raj  Kumar v. Union of India, [1968] 3 SCR 857, it has been held                "But when a public servant has invited by his               letter  of  resignation determination  of  his               employment, his services               262               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               (,pen  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   paenitentiae  but   not   thereafter".               (p.860) Similarly,  in  Central Inland Water  Transport  Corporation Ltd.  and Anr. v. Brojo Nath Ganguly and Anr. (supra)  which

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related  to an employee of a Government company jointly  and wholly  owned  by  the  Central  Government  and  two  State Governments, it was observed               "A resignation by an employee would,  however,               normally   require  to  be  accepted  by   the               employer in order to be effective.  It can  be               that  in  certain  circumstances  an  employer               would  be justified in refusing to accept  the               employee’s resignation as, for instance,  when               an employee wants to leave in the middle of  a               work which is urgent or .important and for the               completion   of   which   his   presence   and               participation  a necessary.  An  employer  can               also  refuse  to accept the  resignation  when               there   is  a  disciplinary  inquiry   pending               against  the  employee.  In such  a  case,  to               permit an employee to resign would be to allow               him to go away from the service and escape the               consequences of an adverse finding against him               in such an inquiry.  There be justified in not               accepting  the resignation  of  an  employee".               (p.386)  The  same view was reiterated in J.K. Cotton  Spinning  and Weaving  Mills Company Ltd. v. State of U.P. & Ors.  (Supra) which also relates to a contract of employment. The  question  whether the resignation of Shri  Karam  Singh from the office of Chairman of the Board was required to  be accepted  before it became effective involves  the  question whether the act of relinquishment 263 of  the  office of Chairman is unilateral  or  bilateral  in character.  In order to answer this question it is necessary to  consider  the relevant provisions of the Act.   The  Act does not contain any provision for resignation of the office of  Chairman  of the Board but in Section 7,  the  following provision  has been made with regard to the  resignation  of office by members               "7.  Resignation  of office  by  members   Any               member may resign, his office by giving notice               in  writing  to  the  Government  of  Himachal               Pradesh   and,  on  such   resignation   being               notified  in  the  Official  Gazette  by   the               Government  of  Himachal  Pradesh,  shall   be               deemed to have vacated his office". In the aforesaid provision, there is no requirement that the resignation of a member should be accepted by any authority. What  is required is that a member who wishes to resign  his office  as  member  should give notice  in  writing  to  the Government  of Himachal Pradesh and such  resignation  takes effect  when it is notified in the official gazette  by  the Government of Himachal Pradesh.  This indicates that the act of relinquishment of the office of a member of the Board  is bilateral  in character in as much as the resignation  takes effect  only  when  such  resignation  is  notified  in  the Official  Gazette  by the Government  of  Himachal  Pradesh. There is no such requirement for relinquishing the office of Chairman of the Board.  Section 4(2), however, provides that the  Chairman of the Board has to be nominated from  amongst the  members of the Board.  This means that the Chairman  of the  Board  holds office so long as he is a  member  of  the Board  and if he ceases to be a member of the Board he  also ceases to be the chairman of the Board.  But the converse is not true.  A Chairman of the Board may resign his office  as Chairman  but  may continue as member of the  Board.  If  he resigns only from the office of Chairman of the Board, there

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is  no requirement that such resignation should be  accepted by any authority or that any other action is required to  be taken  for the said resignation to be effective.  It  would, therefore,  appear  that the act of  relinquishment  of  the office  of Chairman of the Board is unilateral in  character and  the resignation from the said office takes effect  when it is communicated without any further action being required to be taken on the same.  Since the Chairman of the Board is nominated  by  the  Government  of  Himachal  Pradesh  under Section 4(2) of the Act, resignation has 264 also  to  be  communicated to  the  Government  of  Himachal Pradesh  i.e., the Head of the Department dealing  with  the Board,  and once it is so communicated it takes effect  from the  date  of such communication if the  resignation  is  in presenti  or  from  the  date indicated  therein  if  it  is prospective  in nature to be operative from a  future  date. This  means that the act of relinquishment of the office  of Chairman of the Board differs from the act of relinquishment from  the office of a Member of the Board in the sense  that while  the  act of relinquishment of office of a  Member  is bilateral  in  character requiring certain  action,  namely, resignation  being notified in the Official Gazette  by  the Government of Himachal Pradesh before it comes into  effect, the  act of relinquishment of the office of Chairman of  the Board  is unilateral in character.  The decisions  on  which reliance  has  been  placed  by  Shri  Ganguli  relating  to contracts of employment where the act of relinquishment  has been held to be bilateral in character requiring  acceptance of  the resignation, can, therefore, have no application  to the  present  case where the act of  relinquishment  of  the office of Chairman of the Board is unilateral in character. Three possible situations involving resignation by a  person holding the office of Chairman of the Board can be envisaged : (i)  He  may resign only from the office of the Chairman  of the Board.  In such a case if the resignation is in presenti it  would take effect from the date of communication of  the resignation to the Head of the Department in the  Government of  Himachal Pradesh it would take effect from the  date  as indicated  in  the said resignation if  the  resignation  is prospective to be operative from a future date. (ii)He may resign only from the office of the member of  the Board.  This resignation would take effect from the date the resignation  is  notified  in the Official  Gazette  by  the Government of Himachal Pradesh and with effect from the said date  the Chairman would cease to be a member of the  Board. Since  a  person cannot continue as Chairman  of  the  Board after  he has ceased to be a member of the Board,  he  would also cease to be the Chairman of the Board from the date  of his  resignation as member of the Board is notified  in  the Official Gazette by the Government of Himachal Pradesh. (iii)He  may resign both from the office of Chairman of  the Board 265 as well as from the office of member of the Board.  In  such a  case, his resignation from the office of Chairman of  the Board  would take effect from the date of  communication  to the  Head  of the Department in the Government  of  Himachal pradesh  if it is it? praesenti or from the  date  indicated therein  if it is prospective to be operative from a  future date.   He  would, however, continue to be a member  of  the Board  till  his resignation from the office  of  member  is notified  in  the  Official Gazette  by  the  Government  of Himachal Pradesh under Section 7 of the Act.

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The  instant case falls in the third category  because  Shri Karam Singh, by his letter dated January 31, 1990,  resigned from the office of member as well as the office of  Chairman of the Board and wanted the resignation to be accepted  with effect  from  the  same day, i.e.,  January  31,  1990.   By notification  dated February 12, 1990, it was notified  that the  resignation of Shri Karam Singh Thakur, as Chairman  of the  Board  has been accepted by the  Governor  of  Himachal Pradesh  with  immediate effect.  In our opinion,  the  said notification  dated  February  12, 1990,  proceeds  under  a misconception   of   the  correct   legal   position.    The resignation of Shri Karam Singh as Chairman of the Board was not  required to be accepted by the Government  of  Himachal Pradesh.   It became effective on January 31, 1990 when  the letter   of  resignation  was  received  by  the   Financial Commissioner-cum-Secretary (Industries) to the Government of Himachal Pradesh who was the Head of the Department  dealing with the Board and to whom it was addressed.  Since there is no  requirement  in  the Act that  the  resignation  of  the Chairman  of  the Bord should be notified  in  the  Official Gazette  as in the case of a member of the Board, it  cannot be  said  that the resignation of Shri Karam Singh  did  not take  effect  till it was notified in the  official  gazette vide notification dated February 12, 1990. The High Court was, therefore, right in taking the view that Shri  Karam  Singh  had ceased to hold  the  office  of  the Chairman  of the Board having resigned from the said  office on  January  31,  1990,  and  the  said  resignation  became effective  from  that date itself and that on  the  date  of scrutiny,  i.e.,  February 5, 1990, he was  not  holding  an office of profit.  For that reason, it has been rightly held that  the  nomination  of Shri Karam  Singh  was  improperly rejected by the Returning Officer. Since  we are in agreement with the view of the  High  Court that the nomination of Shri Karam Singh had been  improperly rejected for the 266 reason that he was not holding the office of the Chairman of the  Board  on the date of scrutiny, we do not  consider  it necessary  to  go into the question whether  the  office  of Chairman of the Board held by Shri Karam Singh had ceased to be an office of profit after January 8, 1990. The   appeals,   therefore,  fail  and   are,   accordingly, dismissed: But in the circumstances with no orders to costs. B.V.B.D. Appeals dismissed. 263