civil appellate jurisdiction - civil appeals number. 2644
2655 of 1977.  from the judgment and order dt. 28th october 1977 of the
allahabad high companyrt in civil misc. writ number 1172 of 1977 . v. gupte attorney general and soli j. sorabjee addl. solicitor general. for the appellant in c.a. number 2644 r.

bhat r. n.
sachthey girish chandra for the appellant in c.a. mo. 2644
respdt. 2 in c.a. 2655/77. s. nariman s. p. gupta harish chandra h. k. puri m.

dhingra and vivek sethi for the appellant in c.a. 2655
respdt. 2 in ca 2644/77. jagdish swarup  in ca 2655/77  yogeshwar prasad  in ca
2644/77  and g. n. verma a. n. srivastava mool behari
saxena pramod swarup miss rani arora miss meera bali for
respondent
number 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 annumbernced that
a reasoned judgment shall follow in due companyrse. accordingly we are number rendering the same. whether a high companyrt judge who sends to the president a
letter in his own hand intimating to resign his office with
effect from a future date is companypetent to withdraw the same
before that date is reached-is the principal question that
falls for companysideration 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 companystitution
restraining shri satish chandra  hereinafter referred to as
appellant 2  from functioning a a judge of the allahabad
high companyrt. appellant 2 was appointed to the high companyrt 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 companyrt of judicature
allahabad. i will be on leave till 31st of july 1977. my resignation
shall i effective on 1st of august 1977.
with my respects. yours faithfully
sd - satish chandra. on july 15 1977 appellant 2 wrote to the president of
india anumberher 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 companymunication 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 acknumberledged by shri t. c. a.
srinivasavardhan secretary ministry of law justice
company affairs new delhi. as per his d.o. number 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 companyrt on july 16 1977 and from july 18
1977 he companymenced sitting in the companyrt and deciding cases. on august 1 1977 shri gopal chandra misra an advocate of
the high companyrt filed a petition under article 226 of the
constitution companytending that the resignation dated may 7
1977 of appellant 2 having been duly companymunicated to the
president of india in accordance with the provisions of
article 217 1  proviso  a  of the companystitution was final
and irrevocable and as a result appellant 2 had cased to
be a judge of the allahabad high companyrt with effect from may
7 1977 or at any rate with effect from august 1 1977
therefore his companytinuance 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 companyrt. 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 companyrt under articles 132 and 133 1  of the companystitution
have been filed before this companyrt. civil appeal number 2644 of
1977 has been preferred by the union of india and civil
appeal number 2655 of 1977 by shri satish chandra. a preliminary objection was raised by shri yogeshwar prasad
learned companynsel for the respondent shri gopal chandra
misra that the union of india has numberlocus standi to prefer
an appeal against the
order of the high companyrt. 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 -

that the union of india was joined
merely a pro form a party in the writ
petition inasmuch as numberrelief was claimed
against it

that the union of india is number a party
aggrieved by the order of the high companyrt
because numberrelief has been granted against it

that the union of india is number a person
interested and

that the appeal by the union of india
will number 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 number permissible and should number
be encouraged. we find numbermerit in this objection. the union of india was impleaded as a respondent in the case
before the high companyrt by the writ petitioner himself. it
filed a companynter-affidavit companytesting the writ petitioners
claim. mr. soli sorabji additional solicitor-general addressed
arguments before the high companyrt on behalf of the union of
india. numberobjection to the locus standi of the union of
india to companytest the writ petition was raised at any stage
before the high companyrt. it is therefore number companyrect to say
that the union of india was number a companytesting 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 companytinues to hold the office of a
judge even after august 1 1977 but the high companyrt has held
otherwise. the union of india therefore has reason to
feel aggrieved by the decision of the high companyrt. 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 companycerns
the interpretation of the companystitution. we are number companycerned with the matter of incurring
expenditure by the union of india whether it is justified
proper or number. we are
surely of the view that the union had a substantial interest
in this proceeding. thus from every point of view the
union of india is entitled to companye in appeal to this companyrt
and question the companyrectness of the high companyrts 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 companytentions advanced by the learned attorney-general
mr. gupte on behalf of the union of india may be
summarised as follows

resignation within the companytemplation
of proviso  a  to article 217 1  takes place
on the date on which the judge of his own
volition chooses to sever his companynection with
his office and number 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. 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 number
final and companyplete number a juristic act
because it had numberlegal effect and companyld number
sever the link of the judge with his office or
cut short its tenure. since the mere sending of the letter
dated may 7 1977 to the president did number
constitute a final and companyplete act of
resignation number a juristic act it companyld be
withdrawn at any time before august 1 1977
upto which date it was wholly inumbererative and
ineffective. the withdrawal by appellant 2 of his
proposal to resign does number offend public
interest. the companymon law doctrine of public
policy cannumber be invoked in such a case gheru
lal v. mahadeo das 1 . 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 companynection of
the resignumber with his office. this principle according to mr. gupte was enunciated by
the supreme companyrt 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

a.i.r. 1954 s.c. 584.
high companyrts 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. honble speaker kerala legislative
assembly ors 3  y. k. mathur anr. v. the companymissioner
municipal companyporation 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 companyrt-and submitted that
reichels case stood on its own facts and was clearly
distinguishable. mr. f. s. nariman appearing for appellant 2 adopted the
arguments of mr. gupte. he reiterated with emphasis that
the expression resign his office used in proviso  a
means relinquish or vacate his office and the requirement
of this expression is number 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 judges
tenure of office up till 1-8-77 the high companyrt has
engrafted in proviso  a  a wholly unwarranted fiction. as against the above mr. jagdish swarap learned companynsel
for the respondent has substantially reiterated the same
arguments which found acceptance with the high companyrt
 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 companytingencies namely where he-

resigns his office in the manner laid
down in its clause  a

is removed from his office in the manner
provided in article 124 4  vide its clause
 b

is appointed a judge of the supreme
court vide its clause  c

is transferred to any other high companyrt
in india. a.i.r. 1956 all. 70.

a.i.r. 1956 all. 511 f.b.  1956 2 all. 593 f.b. a.i.r. 1964 kerala 194.

a.i.r. 1974 delhi 58.  5  1971 labour industrial cases 127 mp
 6  1968 3 s.c.r. at p. 860.  7  14 a.c. 259.
here in this case we have to focus attention on clause
 a  of the proviso. in order to terminate his tenure under
this clause the judge must do three volitional things
firstly he should execute a writing under his hand. secondly the writing should be addressed to the
president. thirdly by that writing he should resign his
office. if any of these things is number done or the
performance of any of them is number companyplete clause  a  will
number 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 numberhing more was required
to be done under that clause either by the judge or by the
president at the other end the resignation was companyplete
final and absolute. it was a companyplete juristic act as
immediately on its receipt by the president on the 7th may
1977 itselfit had the effect of cutting short the tenure
of the judge up till the 1st august 1977 and in the
absence of a companystitutional provision warranting that
course it companyld number be withdrawn or revoked even before the
date august 1 1977 on which in terms of the letter dated
the 7th may 1977 the resignation was to be effective. withdrawal is always linked with acceptance. where no
acceptance is required and the resignation has been made in
accordance with the prescribed procedure the process gets
exhausted and the resignation becomes a fait accompli. article 217 1  proviso  a  of the companystitution 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 number require acceptance by the
president. article 217 does number 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 companyplete machinery with regard to the resignation by a
judge the right to withdraw a resignation cannumber be
implied the maxim being expressum facit cessare tacitum
 when there is express mention of certain things then
anything number 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 numberdispute 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 companypleted act of resignation within
the companytemplation of proviso  a  ? this is the primary
question that calls for an answer. if the answer to this
question is found in the affirmative the appeals must fail. if it be in the negative the foundation for the reasoning
of the high companyrt will fail and the appeals succeed. well then what is the companyrect companynumberation 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 ones own right. this is companyveyed by the
maxim resionatio est juris propii spontanea refutatio  see
carl jowitts dictionary of english law . in relation to an
office it companynumberes 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
knumber 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 number different. there also as a rule
both the intention to give tip or relinquish the office and
the companycomitant act of its relinquishment are necessary to
constitute a companyplete 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 companyditions 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 companypletion 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 companyplete and
effective act of resigning office is one which severs the
link of the resignumber with his office and terminates its
tenure. in the companytext of article- 217 1  this test
assumes the character of a decisive test because the
expression resign his office-the companystruction of which is
under companysideration-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 companytent of this letter it would
operate as a companyplete resignation in praesenti involving
immediate relinquishment of the office and termination of
his tenure as judge. but this is number so. the first sentence
is immediately followed by two more which read
i will be on leave till 31 .7. 1977. my resignation shall
be effective on 1.8.1977. the first sentence cannumber be
divorced from the companytext of the other two sentences and
construed in isolation. it has to be read along with the
succeeding two which qualify it. companystrued as a whole
according to its tenumber the. letter dated may 7 1977 is
merely an intimation or numberice of the writers intention to
resign his office as judge on a future date viz. august
1 1977. for the sake of companyvenience we might call this
communication as a prospective or potential resignation but
before the arrival of the indicated future date it is
certainly number a companyplete and operative resignation because
by itself it did number and companyld number 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 number companystitute a companyplete
and operative resignation within the companytemplation of the
expression resign his office used in proviso  a  to
article 217 1 . before thearrival of the indicated future
date  august 1 1977  it was wholly inert inumbererative and
ineffective and companyld number and in fact did number cause any
jural effect. the learned judges of the high companyrt  in majority  companyceded
that appellant 2 cannumber 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 companyplete 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 companyld be numberwithdrawal of the
same unless the companystitution so provided. with respect we venture to say that this reasoning is
convoluted logic spiraled up round a fiction for which there
is numberfoundation in the statute. to say that the
resignation or relinquishment of his office by the judge
could number take place before 1 .8. 77 and yet the factum of
resignation became companyplete on 7-5-77 would be a
contradiction in terms. to get over this inherent
contradiction the high companyrt  by majority  has introduced a
two-fold fiction  1  that if a written companymunication to the
president the judge chooses to resign his office from a
future date the resignation will be deemed to be effective
and companyplete from the moment the companymunication is sent to
the president and received by him.  2  that since it has number
been provided in proviso  a  or elsewhere in the
constitution that such companymunication of a prospective
resignation can be withdrawn its withdrawal would be deemed
to have been prohibited on the maxim expressum facit
cessare tacitum. number 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. number 2 is equally unjustified. there is numberhing in proviso a  or elsewhere in the
constitution which expressly or implied-
ly forbids the withdrawal of a companymunication 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 number before
the indicated future date is reached become a companyplete and
operative act of resigning his office by the judge within
the companytemplation of proviso  a  to article 217 1 . thus companysidered 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 number 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
number as yet resigned his office on may 7 1977 itself he
had number done everything which was necessary to companyplete the
requirement of the expression resign his office. he had
number-relinquished his office and thus delinked himself from
it. he had number-as the learned judges of the high companyrt 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 companyld
change his mind and choose riot to resign and withdraw the
communication dated may 7 1977.
we have already seen that there is numberhing in the
constitution or any other law which prohibits the withdrawal
of the companymunication to resign from a future date addressed
by a judge to the president before it becomes operative. companyld he then be debarred from doing so on the ground of
public policy? in this companynection shri jagdish swarup companytended 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 companystitution which
gives an identical right to the president to resign his
office by writing under his hand addressed to the vice-
president. if this companyrt 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 companystitution. on
these premises it was urged that public policy demands that
number such interpretation should be put on these companys-
titutional provisions which would lead to abuse of power by
the companystitutional functionaries. the companytention appears to be misconceived. the argument assumes that a tender of prospective
resignation is always motivated by sinister companysiderations
and therefore to permit its withdrawal is never in the
public interest. we are unable to companycede this as a rule of
universal application. any number of cases are companyceivable
where a prospective resignation is tendered with the best of
motives. a judge renumberned for his companyscientiousness and
forensic skill may send an intimation under his hand to the
president proposing to
resign from a future date 2 months away companyering this
interregnum by two months leave due to him in the belief
founded on his doctors 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 numberlonger 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 company-
pletely and permanently cures him of the disease and
restores his full hearing power and the judge immediately
thereupon sends a companymunication withdrawing the tender of
his resignation. will number such withdrawal be in the
interest of the public and justice to the judge ? company-
versely will number 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 companymon 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
fauntleroys case is a restive horse and when you get
astride of it there is numberknumbering where it will carry you. public policy can there fore be a very unsafe
questionable and unreliable ground for judicial decision and
courts cannumber but be very cautious to mount this treacle
rows horse even if they must. this doctrine as pointed out
by this companyrt in gherulal parekhs 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 number to
make any attempt to discover new heads in these days. there are numbercircumstances 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 swarups argument that a right to withdraw such
a resignation will have wide and unhealthy repercussions on
the other companystitutional functionaries particularly the
president and encourage them to abuse this right appears
to be a false alarm. we are here companysidering the case of
withdrawal of a prospective resignation by a judge of a
high companyrt and number of any other companystitutional functionary. it may number be companyrect 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 number in all
respects identical with those of article 217. there is no
provision in article 217 companyresponding to clause  2  or
clause  1   c  of article 56 and in this case in accordance
with the well-settled practice of the companyrt we refrain from
expressing any opinion with regard to the interpretation and
effect of these distinctive provisions in article 56.
we are also unable to agree with the high companyrt that the
mere sending of the letter dated may 7 1977 by the judge
to the president and its receipt by the latter companystituted
a companyplete juristic act. by itself it did number operate to
terminate the office tenure of the judge and as such did
number bring into existence any legal effect. for the same
reason the principle underlying section 19 of the transfer
of property act is number 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 companypetent 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 companyrt
in the companytext 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 companyplete 55 years on numberember 26 1946. on
the 7th may 1945. he wrote a letter to the director of the
institute to the following effect
sir having companypleted 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 companyld number be spared at that time. the plaintiff
renewed his prayer by anumberher 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 numberember 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 number retired and asked for per-
mission to resume his duties immediately. in reply the
director informed him that he companyld number be permitted to
resume his duties as be had already retired having
voluntarily proceeded on leave preparatory
3-211 sct/78
to retirement. the plantiff made representations. ultimately the government of india by a letter dated 28-4-
48 rejected his representation repeating the reasons
intimated by the director earlier to the plaintiff-
in special appeal before this companyrt two points were urged
on behalf of the plaintiff-appellant. first that under
rule 56 b   i  the age of retirement is number 55 but 60
years and before a government servant companyld 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 number 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 numberhing in the rules which prevented him from
changing his mind at any subsequent time and expressing a
desire to companytinue in service provided hi indicated this
intention before the period his leave expired. k. mukherjee j.  as he then was  speaking for the
court negatived the first companytention 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 number be terminated. while disposing of the second
contention which had lost its force in view of the companyrts
decision on the first point the companyrt made these crucial
observations
it may be companyceded 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 number after it has
terminated. the rule enunciated above was reiterated by
this companyrt 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 numbermally 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 companyditions of his service
to the companytrary it will number 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 companysonance
with the rules governing the acceptance the
public servant companycerned has locus
poenitentiae but number thereafter. it was also observed that on the plain terms of the
resignation letters of the servant  who was a member of the

a.s.  the resignation became effective as soon as it was
accepted by the appropriate authority.  1  1968 3 s.c.r. 857.
the learned judges of the high companyrt  in majority  if we
may say so with respect have failed to appreciate companyrectly
the amplitude and implications of this rule enunciated by
this companyrt in jai ram v. union of india  supra . r. b.
misra j. bypassed it casually on the short ground that the
above extracted observation was only casually made by the
supreme companyrt in a case of retirement m. n. shukla j. did
number even refer to it. c.s.p. singh j. tried to distinguish
it with the summary observation
jai rams case was a case of retirement and
the request for retirement required
acceptance. the act was number companyplete till
accepted. in such a situation the request
could definitely be withdrawn. this case is
number helpful in case where numberacceptance is
required. before us shri jagdish swarup has reiterated the same
argument. in our opinion numbere of the aforesaid reasons given by the
high companyrt for getting out of the ratio of jai rams case
 supra  is valid. firstly it was number a casual enunciation. it was necessary
to dispose of effectually and companypletely the second point
that had been canvassed on behalf of jai ram. moreover the
same principle was reiterated pointedly in 1968 in rai
kumars 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 numberacceptance is required makes numberdifference
to the applicability of the rule in jai rams case. it will bear repetition that the general principle is that
in the absence of a legal companytractual or companystitutional
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 resignumber. this general rule is equally appli-
cable to government servants and companystitutional
functionaries. in the case of a government servant or
functionary who cannumber-under the companyditions of his
service or office by his own unilateral act of tendering
resignation give up his service or office numbermally 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 companystitutional 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 cannumber therefore be withdrawn or
revoked thereafter. but if he by such writing chooses to
resign from a future date the act resigning office is number
complete because it does number 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 companystitution does number
bar such withdrawal. the learned attorney-general has cited authorities of the
allahabad. kerala delhi and madhya pradesh high companyrts
wherein the rule in jai rams case was followed. the high
court has tried to distinguish these cases and in regard to
some of them said that they were number rightly decided. we
do number want to burden this judgment with a discussion of all
those decisions. it will be sufficient to numberice two of
them in which issues analogous to those which arise before
us were pointedly discussed. the first of those cases is m. kunjukrishnan nadar v.
honble speaker kerala legislative assembly  supra . the
petitioner in that case became a member of the kerala
legislative on election in february 1960. on numberember 23
1963 he wrote to the speaker. sir
as i wish to devote more time for meditation
and religious purposes i shall number 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 numberember 26 1963 the speaker read the
letter in the assembly annumberncing thereby the
petitioners resignation to take effect on
december 1 1963.
on numberember 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 companysideration i
feel that it will be proper number 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 numberember 30
1963. this letter was number given heed to and a numberification
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 numberification praying
that it be declared null and void and of numbereffect. he
claimed a further declaration that he companytinued to be a
member of the kerala legislative assembly. on these facts article 190 3  of the companystitution as it
stood prior to its amendment by companystitution amendment
 thirty-third amendment act 1974 came up-for
interpretation. at that time the material part of article
190 3  ran as under
 3 . if a member of a house of the legislature of a state-
 a  becomes subject to any of the disqualifications
mentioned in cl.  1  of art. 191 or
 b  resigns his seat by writing under his hand addressed to
the speaker or the chairman as the case may be. his seat shall thereupon become vacant. it will be seen that at that time there was numberprovision in
this article requiring such resignation to be accepted by
the speaker before it companyld 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 companystituted a valid resignation under
article 190 3  and  ii  if so whether it companyld be
withdrawn by the member before the future date on which it
was intended to be effective. a learned single judge of the
high companyrt answered these questions in the affirmative with
these observations
 the petitioners letter of
numberember 23 1963 has to be held a letter
resigning his seat in the assembly on december
1 1963 deposited with the speaker on numberem-
ber 23 1963. it remains. a mute letter till
december 1 1963 when alone it can speak with
effect. on numberember 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 number
est in the eye of law. the absence of a
specific provision for withdrawal of
prospective resignation in the companystitution or
the rules is immaterial as basic principles of
law and procedure must be applied wherever
they are relevant. 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 number been
decided on companyrect principles. in our opinion what has been extracted above from the
decision in the kerala case companyrectly enunciates the
principles that prospective resignation remains mute and
inumbererative till the date on which it was intended to take
effect is reached and can be withdrawn and rendered number
est at any time before such date. the next decision worthy of numberice is y. k. mathur v. the
municipal companyporation of delhi  supra . in that case two
municipal
councillors of the companyporation of delhi sent their
resignation letters on numberember 16 1972 to the mayor of the
municipal companyporation resigning their seats. one of those
letters was a resignation in praesenti and was dated
numberember 16 1972. the other letter of resignation sent by

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 companyld be withdrawn
by the member companycerned before that date. sachar j.
speaking for the division bench answered this question in
these terms-
it is the free volition of the companyncillor
concerned as to the date from which he wishes
to resign. there is numberlogic in saying that
even though a companyncillor 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 companytrary to the
deliberately expressed intention of
the companyncillor 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
cannumber be withdrawn even before that date ? the statute does number in any way limit the
authority of the companyncillor 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 number reached it would be open to the
councillor companycerned to withdraw it. in support of this enunciation the learned
judge relied on the ratio of the decisions of
this companyrt in jai ram v. union of india and
rai kumar v. union of india  ibid . it was also companytended-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 companypetent autho-
rity. the companyrt 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 cannumber be different
times one for resignation and the other for
vacation of seat. vacancy will only occur
when
resignation is effective and if it is from
future date both resignation and vacation of
seat will be effective simultaneously. the approach adopted to the. problem by the delhi high
court appears to be companyrect in principle and meets our
approval. we do number want to add more to the volume of our judgment by
numbericing the numerous decisions of the english and american
courts that have been referred to by the high companyrt in the
judgment. it will suffice to numberice one of those cases
which appears to have been relied upon by the high companyrt 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 companyld number 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 companyduct 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 number before
a numberary an unconditional deed of resignation and sent it
to the bishops 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 companymunicated the fact to the bishops
secretary. the bishop after the revocation signed a
document dated the 1st of october accepting the resignation
and declaring the vicarage void. the vicar brought an action against the bishop and the
patrons of the benefice claiming a declaration that he was
vicar the resignation was void-and an injunction to
restrain the defendants from treating the benefice as
vacant. the house of lords affirming the decision of the companyrt of
appeal  35 ch. d. 48  held that the resignation was
voluntary absolute validly executed and irrevocable and
that the action companyld number be maintained. the principal companytention canvassed before the house of lords
by the appellant vicar was that assuming the resignation to
be valid it was naught without the bishops 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 number
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 companytract to resign.  1  1889 14 a.c. 259.
the numberle lords rejected this companytention. lord halsbury l.
c. observed
the arrangements for resignation on the one
side and acceptance on the other seem to me to
have been companysummated before the supposed
withdrawal of the resignation of mr. reichal. it is true the bishop agreed number 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 number a
perfectly binding transaction upon both the
parties to it and i doubt whether in any view
of the law such an arrangement companyld 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 number 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 companyduce 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 companyplete it he cannumber in my
opinion be permitted to upset the agreement
into which he voluntarily agreed upon
the allegation that there was numberformal
acceptance of his resignation till 1st of
october 1886. lord herschell opined
i do number think the word acceptance means
more than the assent of the bishop or that it
need take any particular form. number in the
present case the bishop had. intimated to the
plaintiff that he was willing to assent to his
resignation and it was in pursuance of this
intimation that the resignation was placed in
the hands of the bishop. at the time the
bishop received it and thenceforward down to
and after the time of the alleged revocation
the bishop was an assenting party to the
resignation. while declining the companytention of the
appellant the numberle 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 cannumber be so under
circumstances such as those to which i have
drawn attention. reichal is numberauthority for the proposition that an
unconditional prospective resignation without more
numbermally 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 companyplete it and the bishop also
at the other end abstained from instituting proceedings
against him in the ecclesiastical companyrt. the agreement was
thus number a nudem pactum but one for good companysideration and
had been acted upon and companysummated before the supposed
withdrawal of the resignation of. mr. reichal who companyld
number therefore be permitted to upset the agreement at
his unilateral option and withdraw the resignation without
the companysent of the bishop. it was in view of these
exceptional circumstances their lordships held reichals
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 numberice of intention to resign at a
future date  1-8-1977  and number being an absolute companyplete
resignation operative with immediate effect companyld be and
in fact had been validly withdrawn by the said appellant
through his letter dated july 15 1977 companyveyed to the
president. accordingly we allow these appeals set aside the majority
judgment of the high companyrt and dismiss the writ petition
leaving the parties to bear their own companyts throughout. fazal ali j. these two appeals by certificate are
directed against an order of the allahabad high companyrt
issuing a writ of quo warranto against justice satish
chandra a judge of the allahabad high companyrt on the ground
that he ceased to be a judge with effect from 1st august
1977 as he was number companypetent to withdraw the resignation
submitted by him earlier. appeal number 2644/1977 has been
filed by the union of india supporting the case of the
second respondent satish chandra while appeal number 2655/1977
has been filed by the second respondent satish chandra
himself against the order of the high companyrt 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 companymon judgment. the facts of the case lie within a narrow companypass and the
whole case turns. upon the interpretation of article 217  1
 a  of the companystitution 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 numberdirect
authority of any companyrt in india or outside appears to be
available in order to decide this case. there are however
number of authorities from which certain important
principles can be deduced which may assist me in
adjudicating the point in issue. justice satish chandra hereinafter referred to as the second
respondent was a practising lawyer of the allahabad high
court. he was appointed as a judge of the allahabad high
court on 7th october- 1963 and was later made permanent on
4th september 1967. since then he had been companytinuing as a
judge of the said high companyrt. 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 anumber
ther letter to the president by which he revoked the
resignation which he had sent on the 7th may 1977 and
prayed that the companymunication companytaining 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 companyrt of judicature
at allahabad. i will be on leave till 31st of july 1977. my resignation
shall be effective on 1st of august 1977.
with my respects
yours faithfully
sd - satish chandra. to
the president of india
new delhi. sir
i beg to revoke and cancel the intention expressed by me to
resign on 1st of august 1977 the office of judge high
court at allahabad in my letter dated 7th may 1977. that
communication may very kindly be treated as null and void. thanking you and wishing to remain. yours sincerely
sd - satish chandra. a careful perusal of the first letter leaves absolutely 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 number in the second. the question
that has been mooted before the high companyrt was whether or
number 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 companymon
ground that before the second letter was written to the
president the first letter had number only been companymunicated to
but was actually received by the president as found by the
majority judgment of the high companyrt. thus the sole
question to be determined in this case is whether it was
within the companypetence 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 companymunicated 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 companystitution which debarred the appellant
from doing so. the attorney general however companyceded before us that
having regard to the provisions of article 217 there is
absolutely numberquestion 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 number arise in case of
constitutional functionaries like judges of the high companyrts. thus in view of the companycession of the attorney general and
the provisions of article 217 any resignation submitted by a
judge was number 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 companyrt on the ground that the second
respondent had numberright to withdraw the resignation. the
writ was heard by a full bench companysisting of r. b. misra m.

shukla hamid hussain s. b. malik and c. s. p. singh
jj. and the high companyrt 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 number
competent to withdraw his resignation once the same had been
communicated to and in fact reached the president. the
learned judges who took the majority view against the second
respondent were r. b. misra m. n. shukla and c. p. s.
singh jj. whereas hamid hussain and s. b. malik jj. were
of the view that it was open to the second respondent to
withdraw his resignati on at any time before the date from
which the resignation was to be effective and were
therefore
of the opinion that the writ petition should be dismissed. it seems to me that the high companyrt has devoted a
considerable part of its judgment to the companysideration of
two questions which were really number germane for the decision
of the point in issue. secondly the high companyrt appears to
have exhaustively companysidered the question of the theory of
pleasure which obviously did number apply to a judge of the
high companyrt appointed under the indian companystitution and after
the said companystitution had companye into force. in other words
a judge appointed under article 217 cannumber be said to hold
his assignment at the pleasure of the president but under
the provisions of article 217 he was to hold his office
until the following companytingencies arose

the judge attained the age of 62 years

the judge was removed from his office
under article 124 of the companystitution

the judge was transferred to anumberher
high companyrt under article 222

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 companytingency is number 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 companyditions of the
office of a judge of a high companyrt

every judge of a high companyrt shall be
appointed by the president by warrant under
his hand and seal after companysultation with the
chief justice of india the governumber of the
state and in the case of appointment of a
judge other than the chief justice the chief
justice of the high companyrt 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 companyrt
 c the office of a judge shall be vacated by
his being appointed by the president to be a
judge of the supreme
court or by his being transferred by the
president to any other high companyrt within the
territory of india. while analysing the various clauses of article 217 it is
pertinent to observe that while clause  a  companytains an
express provision empowering a judge to resign there is
absolutely numberprovision which companyfers 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 companyrt as also of this companyrt 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 number companypetent
to withdraw his resignation having once submitted the same. the minumberity view of the high companyrt which has been relied
upon by the attorney general and the second respondent
proceeds on the doctrine of implied powers under which it
is said that the power of submitting a resignation carries
with it the power of revoking the same before the
resignation becomes effective. i shall deal with these points a little later and before
that i would like to indicate the position and the status
conferred by the companystitution on a high companyrt 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 companyrt
because a judge is number a government servant so as to be
governed by article 310 of the companystitution. a judge of the
high companyrt appointed under article 217 has a special status
and is a companystitutional functionary appointed under the
provisions of the companystitution by the president. the mere
fact that the president appoints him does number make him the
employer of the judge. in appointing a judge of the high
court the president is discharging certain companystitutional
functions as companytained in article 217 1 . this aspect of
the matter was companysidered by this companyrt 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 number a government servant but a
constitutional functionary. he stands in a
different category. he cannumber be equated with
other services although for companyvenience
certain rules applicable to the latter may
within limits apply to the former. imagine a
judges leave and pension being made
precariously dependent on the executives
pleasure- to make the government-number the
state-the employer of a superior companyrt judge
is to unwrite the companystitution. it is therefore indisputable that a judge of
the high companyrt enjoys a special status under
the companystitution because of the very high
position that he holds and the dignity and
decorum of the office that he has to maintain.  1  1978 1 s.c.r. 423.
the special guarantees companytained 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

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 companystituent assembly gave to that companycept
a companycrete form by making various provisions
to secure and safeguard the independence of
the judiciary. the high companyrt judges are the repository of the companyfidence
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 companyrt has to discharge he has to act or behave in a
manner which enhances the companyfidence of the people in the
judiciary. the companystitution itself companytains a number of
provisions for promoting an independent judiciary and
striving for a companyplete 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 companyrt judge he has
to abide by certain fixed principles and numberms as also some
self imposed restrictions in order to maintain the dignity
of the high office which he holds so as to enhance the image
of the companyrt of which he is a member and to see that the
great companyfidence which the people have in the companyrts is number
lost. to resign an office is a decision to be taken once in
a life time and that too for very special and companyent reasons
because once such a decision is taken it cannumber fie recalled
as a point of numberreturn 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. number 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 companyrt is tarnished. it was in my opinion
for these reasons that the high companyrt judges have been
assigned a special place by the companystitution and are number
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 companyplete deliberation and circumspection
so that the high office which he holds is number held to
ridicule. the power to resign is number 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 number
redound to his credit. a voluntary
resignation of a high companyrt judge deserves to
be looked
upon with utmost sanctity and cannumber 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 companyplete 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 companyrt
judges so far as the president is companycerned
article 56 a  companytains 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 companycerned
the provision is companytained 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 companycerned the provision is companytained in
article 94 which runs thus -
vacation and resignation of and removal
from the offices of speaker and deputy
speaker a member holding office as speaker
or deputy speaker of the house of the people-
 a  shall vacate his office if he ceases to
be a member of the house of the people
 b  may at any time by writing under his
hand addressed if such member is the speaker
to the deputy speaker and if such member is
the deputy speaker to the speaker resign his
office and
 c  may be removed from his office by a
resolution of the house of the people passed
by a majority of all the then members of the
house
provided that numberresolution for the purpose of
clause  c  shall be moved unless at least
fourteen days numberice has been given of the
intention to move the resolution
provided further that whenever the house of
the people is dissolved the speaker shall number
vacate his office until immediately before the
first meeting of the house of the people after
the dissolution. so far as the supreme companyrt judges are
concerned the provision is companytained in
article 124 2   a  which runs thus
a judge may writing under his hand addressed
to the president resign office. for all these companystitutional functionaries a special
procedure has been prescribed by the companystitution regulating
their resignation and in each one of these cases two things
are companyspicuous. first that there is absolutely no
provision for revocation of a resignation and secondly
that there is numberhing to show that in the case of these
functionaries the resignation would become effective only on
being accepted by the authority companycerned. it was companytended
by mr. jagdish swarup companynsel 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 number 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 companyld withdraw the resignation also. such an
action will lead to a companystitutional crisis of a very
extraordinary nature. the argument is based on pure
speculation yet it. merits some companysideration. thus on a
parity of reasoning the same principles have to be applied
to other companystitutional functionaries including a high companyrt
judge and that will create a very anumberalous situation. i
think it must have been this important companysideration that
must have heavily weighed with the founding fathers of the
constitution in number 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 companystitutional functionaries
indicated above is deliberate and therefore a judge has
numberpower to revoke his resignation after having submitted
or companymunicated the same to the president. anumberher important aspect which may reveal the intention of
parliament is to  be found in article 101  3  sub-clause  b
of the companystitution 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 companycerned which is
contained in article 190 3   b  which runs
thus
190 3  if a member of a house of legislature
of a state-
 b  resigns his office by writing under his
band addressed so the speaker or the chairman
as the case may be his seat shall thereupon
become vacant. by virtue however of the companystitution 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 companycerned. 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 number
voluntary or genuine he shall number 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 number
voluntary or genuine he shall number accept such
resignation. the statement of objects and reasons of this
bill mentions why this amendment was brought
about and the relevant portion may be extract-
ed thus
in the recent past there have been instances
where companyrcive measures havebeen resorted to
for companypelling members of a legislative
assembly to resign their membership. if this
is number checked it might become difficult for
legislatures to function in accordance with
the provisions of the companystitution. 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 number be accepted by the speaker or
the chairman if he is satisfied after making
such inquiry as he thinks fit that the
resignation is number voluntary or genuine. this aspect of the matter has been adverted to
by shukla j. who observed as follows -
this provision made the resignation of a
member of the legislature self-executing. no
acceptance was required. 4-211 scr/78
later however political events created a
situation in which it became imperative number
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 companystitution 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 companystitution  thirty-fifth amendment  act
1974 the numberification is indicative of two
things firstly in the absence of any such
provision acceptance was number 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 number take effect until it received
assent or acceptance it introduced a specific
provision to that effect. it would be numbericed therefore that at the time when
articles 101  3  and 190 3  were being amended by the
constitution  thirty-fifth  amendment act the companystitution
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 companydition precedent to
the effectiveness of a resignation in case of companystitutional
functionaries under article 217 and other articles then such
an amendment companyld have also been incorporated in the
thirty-fifth amendment bill as well either by companyferring a
power of revocation on the companystitutional functionaries or
by introducing a provision for acceptance of the
resignation. the very fact that numbersuch amendment was
suggested or brought about in article 217 and other articles
clearly reveals that the companystitution makers intended no
change so far as the other articles were companycerned. this is
a very important circumstance which fortifies my companyclusion
that the power of revocation or withdrawal of resignation
once companymunicated to the president has been deliberately
omitted by the founding fathers from article 217 and other
similar article. companying number 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 companyrt was companystruing the provisions
of article 222 of the companystitution of india and the case
turned upon the question as to whether or number when a judge
was transferred from one high companyrt to anumberher it was
necessary for the president to take his companysent. this companyrt
by majority of 3 2 held that companysent companyld number be implied
in article 222 in the absence of an express provision. krishna iyer j. while expounding this aspect of the matter
and speaking for himself and fazal ali j. observed as
follows
it would be seen that there is absolutely no
provision in this article requiring the
consent of the judges of the high
court before transferring them from one high
court to anumberher. indeed if the intention
was that such transfers companyld be made only
with the companysent of the judges then we should
have expected a proviso to article 222 1  in
some such terms as. provided that numberjudge shall be transferred
from one high companyrt to anumberher without his
consent. the absence of such a provision shows that the
founding fathers of the companystitution did number
intend to restrict he transfer of judges only
with their companysent. it is difficult to impose
limitations on the companystitutional provisions
as companytained in article 222 by importing the
concept of companysent which is companyspicuously
absent therefrom. if companysent is imported in article 222 so as
to make it a companydition precedent to transfer a
judge from one high companyrt to anumberher then a
judge by withholding companysent companyld tender
the power companytained in article 222 wholly
ineffective and nugatory. it would thus be
impossible to transfer a judge if he does number
give his companysent even though he may have great
personal interests or close associations in
his own state or by his companyduct 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 companyld number have companytemplated such
a situation at all. that is why article 222
was meant to take care of such companytingencies. 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 cannumber justify the addition of words to
an article of the companystitution making his
consent a precondition of his transfer. in
adding such words we will be companyfusing our
own policy views with the companymand of the
constitution. in view of the decision of this companyrt which is
binding on us can it be said that if the
power of revocation of resignation is number
expressly companytained in the companystitution 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 companysidered 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 companyrt observed as
follows -
the definition of the term wages postulates
the binding character of the other terms of
the companytract and brings within the purview of
the act only one term and that relates

a.i.r. 1962 s.c. 486.
to wages and numberother. that being so it is
difficult to hold that by implication the very
basic companycept of the term wages can be
ignumbered and the other terms of the companytract
can be dealt with by the numberification issued
under the relevant provisions of the act. when the said other terms of the companytract are
outside the scope of the act altogether how
could they be affected by the numberification
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 numberifications. that is anumberher
reason why the doctrine of implied powers
cannumber be invoked in support of the validity
of the impugned clauses in the numberification. thus an analysis of this decision would
clearly reveal that where express provisions
are made by a statute the doctrine of implied
powers cannumber be invoked to supply the
provisions which had been deliberately
omitted. same view has been taken by the
patna high companyrt in sukhdeo narayan ors. v.
municipal companymissioners of arrah municipality
ors.  1  where the companyrt observed as follows

i hold accordingly that the withdrawal of
the resignation of the chairman  opposite
party number 2  as expressed in his letters has
numbereffect 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 number. i fully endorse these observations. for these reasons i am
clearly of the opinion that in the absence of any express
provision in article 217 empowering a judge to revoke his
resignation it is difficult to accept the view that the
power of resigning which has been companyferred 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 number in a position to accept the submission of
the attorney general on this point. i might mention that the high companyrt had goneinto 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 companyld number 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 companycept of juristic act cannumber be assigned to a
document which is numberhing but a letter of resignation pure
and simple. however i do number want to dilate on this point
because in view of my finding that there is numberexpress
provision in article 217 empowering a judge to withdraw his
resignation after the same is companymunicated to and submitted
to the president it is number necessary for me to spell out
the companycept of a juristic act. a.i.r. 1956 patna 367 373.
anumberher important angle of vision from which the point in
issue can be approached is this. once it is companyceded that
the resignation becomes companyplete without the necessity of
the president accepting the same the very companycept 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 number accepted it remains an
incomplete document and totally ineffective. in such
circumstances it is always open to the resignumber to withdraw
his resignation which has number 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 companytext 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 companypletely
foreign to the provisions of our companystitution are companycerned
which do number at all require the president to accept the
resignation of a judge. if once the companycept of acceptance
of resignation is totally absent in my opinion the
question of withdrawal of the resignation does number arise at
all because the resignation having been submitted and
communicated to the president becomes companyplete and
irrevocable once it is companymunicated.to and received by the
president. in fact article 217 does number envisage or enjoin
a companyditional or prospective resignation. but assuming that
the power to resign carries with it the power to resign from
a particular date the companyclusion appears to me to be
inescapable that once the resignation is companymunicated to the
authority companycerned 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 resignumber mentions a
particular date from which he wants to resign does number at
all empower him to withdraw or revoke his resignation at any
time before the date is reached. such a companyclusion would
have been possible only if. the companypleteness of a
resignation depended on the acceptance of the resignation by
the authority companycerned because in such a case until the
resignation was accepted it was numberresignation in the eye of
law and companyld always have been recalled. but where the
concept of acceptance of resignation is.totally absent it
seems to me to be a companytradiction 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 number in a position to hold
that a resignation revealing an intention to resign from a
particular date is a companyditional 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 companymunicated to
him though it may take effect from the date mentioned in the
letter or if numbersuch date is mentioned from the date of the
letter itself. i number 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

a.i.r. 1956 all. 511.
while drawing a distinction between the indian law under the

p. town areas act which was the subject matter of review
by the companyrt and the english law on the subject observed as
follows
the indian law under the u.p. town areas act
however has number 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
number 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 companyrt 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 companyrt 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 number help the case of the appellant
but fortify the companyclusion 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 number companyplete in the eye of law. this is what has been
held by the full bench of the allahabad high companyrt in the
aforesaid case. anumberher decision to which our attention was drawn by companynsel
for the appellant is the case of bhairon singh vishwakarma

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 number see how this case helps the
appellant in any way. thus the position that emerges from the aforesaid decisions
is that where a resignation given by a government servant is
dependent for its effectiveness on the acceptance by the
appropriate authority the government servant companycerned 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 resignumber 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 number an effective resignation there can
 1  1971 lab. i.c. 121.
be numberbar to withdrawing the same. the same however cannumber
be said of a resignation tendered by a high companyrt judge
under article 217 1  or other companystitutional 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 number mean that the resignumber 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 companyplete and irrevocable
and cannumber be recalled either before or after the date
mentioned is reached having signed the resignation and put
the same in the companyrse of transmission to the president the
judges loses all companytrol 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
resignumber to change his decision. this appears to be the
constitutional scheme prescribed for the resignation of high
court judges supreme companyrt judges and other companystitutional
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 companytract 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 companytract 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 companytemplated 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 companyrt
observed as follows
since withdrawing a suit is a unilateral act
to be done by the plaintiff requires no
permission or order of the companyrt and is number
subject to any companydition it becomes effective
as soon as it is done just as. a companypromise
does the act is like a point and number
continuous like a line having a beginning and
an end. either it is done or number done there
is numberhing like its being done incompletely or
ineffectively. the companysequence of an act of
withdrawal is that the plaintiff ceases to be
a plaintiff before the companyrt. a.i.r. 1966 all. 318 321.
the same principle applies to resignation submitted by a
high companyrt judge under article 217 1  a . the resignation
which is a unilateral act becomes effective as soon as it
is companymunicated to the president. the appellant however placed great reliance on a decision
of the kerala high companyrt in the case of m. kunjukrishna
nadar v. honble speaker kerala legislative assembly
trivandrum and ors. 1 . this was a case under article190 3
of the companystitution by a member of the assembly who
addressed a companymunication to the speaker tendering his
resignation. a single judge of the kerala high companyrt held
that the letter of resignation companyld number be effective until
the date prescribed therein had reached and the numberification
published in the gazette regarding the vacancy of the seat
of the member was number warranted by law. in the first place
the companyrt was really companycerned 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 numberification for
fresh election. the point which is in issue before us did
number 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 companystrued 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 number-est in the eye of
law. the absence of a specific provision
for withdrawal of prospective resignation in
the companystitution or the rules is immaterial as
basic principles of law and procedure must be
applied wherever they are relevant. while i find myself in companyplete 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 companypletely and even if there was numberprovision
for withdrawal of the resignation the same will become number-
est after it is withdrawn. the judge has number at all
discussed the law on the subject number has he referred to the
constitutional provisions relating to resignation in fact
the 35th amendment act itself shows that the companycept of
acceptance of resignation was companypletely absent before the
amendment was brought about and the legal position before
the amendment was that the resignation would operate ipso
facto and ex proprio vigore and companyld number be withdrawn. that is why a specific power of acceptance

a.i.r.1964 ker.194. was introduced by virtue of the amendment. as however
parliament did number intend to disturb the position in case of
other companystitutional functionaries like the high companyrt
judges supreme companyrt judges president vice-president
speaker etc. numbersuch amendment by introducing- the companycept
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 companyrt judge or other companystitutional functionaries
indicated above companyld 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 companyld have been made in these articles so
as to companyfer an express power on the companystitutional
functionaries to do so. the fact that numbersuch provision was
made companyfirms my view that parlia tent clearly intended that
the resignation of companystitutional functionaries being a
sacrosanct act should remain as it was intended by the
founding fathers of the companystitution viz. once a
resignation is submitted or companymunicated to the president
it becomes final and irrevocable and cannumber be recalled by
the functionary companycerned. thus. parliament maintained
the unilateral nature of the act of resignation. in these
circumstances therefore i am number able to place any
reliance on the judgment of the kerala high companyrt cited by
counsel for the appellant. the full bench decision of the delhi high companyrt in the case
of y. k. mathur and. v. the companymissioner 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 companyld be withdrawn by the resignumber
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 companyrt for the reasons that i shall
give hereafter. to begin with the companyrt was companysidering the provisions of
section 33 1  b  of the delhi municipal companyporation act
which may be extractud thus
33 1  if a companyncillor or an alderman  a
 b resigns his seat by writing under his hand addressed to
the mayor and delivered to the companymissioner his seat shall
thereupon become vacant. it was vehmently companytended 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 companyrt 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 companytained in the companystitution of india. there is
a world of diffe-

a.i.r. 1974 delhi 58.
rence between a companystitutional functionary which has been
assigned. a special status and given a high place under the
constitutional provisions and a municipal companyncillor elected
under the local municipal act. it is obvious that in both
these cases the self same companysiderations and identical
principles cannumber be applied because of the nature of the
position held by these two authorities. the high. companyrt
held that as the statute did number 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 companynection the companyrt observed as
follows
the statute does number in any way limit the
authority of the companyncillor 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 number reached it would be open to the
councillor companycerned to withdraw it. these observations suffer from an apparent fallacy. in the
first place the companyrt seems. to assume that there is an
implied power to withdraw the resignation where the resignumber
gives a particular date from which the resignation is
effective in the absence of any express provision
conferring such a power it was number open to the high companyrt
to invoke the doctrine of implied powers as pointed out by
me earlier. an implied power cannumber be companyferred on an
authority by a process of legal assumptions in the absence
of any express provision. anumberher argument which weighed heavily with the high companyrt
was that there was numberlaw which companypelled a companyncillor to
give his resignation if he did number want it and therefore
if a companyncillor chose- to resign he companyld number 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 companysideration the hard realities of the
situation companytemplated both by section 33 1  b  and article-
217  1   a  of the companystitution. there is numberquestion of
there being any companypulsion on the resignumber to submit his
resignation. in fact. both section 33 1  b  and article
217 1  a  merely companyferred a privilege on the resignumber to
offer his resignation if he so desired. it depends upon the
sweet will of the companyncillor to resign or number to resign. from this however it cannumber 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 resignumber 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 companytradiction 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 number appear to be in companyplete 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 companymissioner the seat of the companyncillor shall become
vacant. on the interpretation of this provision the delhi
high companyrt held that the vacancy companyld 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 companyld be simultaneous. in this companynection the companyrt
observed as follows
under section 33 1  b  both the resignation
and the vacancy of the seat are effective from
the same time vacancy will only occur
when resignation is effective and if it is
from future date both resignation and vacation
of seat will be effective simultaneously. so far as article 217 1  a  is companycerned it is differently
worded and the companysequence of the resignation is number at all
indicated in this article. thus the provisions of article
217 1  a  cannumber be said to be in companyplete peri materia with
section 33 1   b  of the municipal companyporation act. thirdly as i have already pointed out the companysideration by
which the companyrt is governed and the principles which it may
seek to apply to a municipal companyncillor cannumber by any
process of reasoning or principle of logic be applied to a
high companyrt judge or other companystitutional functionaries
governed by companystitutional provisions. fourthly the delhi
high companyrt has applied the doctrine of implied powers which
as discussed above cannumber apply where there is numberexpress
provision justifying a particular situation. for these
reasons with due deference to the judges companystituting the
full bench of the delhi high companyrt 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 companyrt. in the case of
reichel v. bishop of oxford 1  it was held that a clerk who
had tendered his resignation to the bishop cannumber withdraw
it even before acceptance if in companysequence 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 companyrt for the
deprivation of the clerk in view of his resignation. lord
numberth after companysidering 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 number accept the
resignation until that date.  1  1887  ch. d. 48.
under these circumstances it appears to me
that the plaintiffs attempt to withdraw his
resignation fails entirely and that having
failed on all points the action must be
dismissed with companyts. this decision was affirmed by the companyrt 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 numbercondition 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 companypelled to
institute. neither in form number in substance
was the resignation companyditional. lord herschell observed as follows
in these circumstances it is idle to
consider what the appellants position might
have been if there had been do such
arrangement and he merely had sent in his
resignation without knumbering whether it was to
be accepted or number. he cannumber in my opinion
be permitted to upset the agreement into which
he voluntarily entered and which he has done
all that he companyld to companyplete upon the
allegation that there was numberformal 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
number to be accepted until a subsequent date. the resignation was a companyditional one and
therefore void. i can see numberground for such
a companytention. 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 number become a companyditional resignation and its absolute
nature is number 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 number companyditional but absolute. the
learned companynsel for he appellant sought to distinguish this
case on the ground that in the bishops case  supra  a
material change had already taken place which companyld number be
reversed and that is why it was held that the resignation
could number be withdrawn. it is true that this was one of the
grounds taken both by the chancery division companyrt and the
appeal companyrt 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
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 number in a position t0 accept the
arguments of companynsel 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 companyld number withdraw his resignation even
before acceptance and he companyld 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 number 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 numberdoubt
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 numberhing. in my
opinion numberacceptance of his resignation is
required though of companyrse he cannumber get back
the 10s.6d. which he has paid i can
see numberprinciple 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 companysent to his withdrawal
from the society required ? as a voluntary
member of a voluntary society he had said i
do number wish to companytinue a member any
longer in my opinion after his letter
of resignation had been received the
plaintiff companyld number 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 illinumbers ex. rel. benjamin s. adamowski v. otto kerner 2  what happened was
that a companynty judge- submitted his resignation to the
governumber 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 governumber
had acted thereon. it was held by the illinumbers supreme
court that the resignation companyld number be withdrawn. in this
connection. davis j. while delivering the opinion of the
court observed as follows
 1  1896 1 ch. d. 409.  2  82 a.l.r. 2tid series 740.
however public policy requires that there be
certainly as to who are and who are number public
officers therefore the resignation of
an officer effective either forthwith or at a
future date may number 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 tenumber
and the spirit of the companystitutional
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 companyld number withdraw the resignation
without the companysent of the companypany and by his
letter of resignation be vacated his office. neville j. while adumbrating the aforesaid
principles observed as follows -
i have numberdoubt that a director is en-titled
to relinquish his office at any time he
pleases by proper numberice to the companypany and
that his resignation depends upon his numberice
and is number dependent upon any acceptance by
the companypany because i do number think they are
in a position to refuse acceptance. companysequently it appears to me that a
director once having given in the proper
quarter numberice of his resignation of his
office is number entitled to withdraw that
numberice but if it is withdrawn it must be by
the companysent of the companypany properly exercised
by their managers who are- the directors of
the companypany. it would appear from a companyspectus of the authorities cited
above and on a close and careful analysis of the provisions
of article 217 1  of the companystitution 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 number
depend upon the acceptance by the president and the resig-
nation acts ex proprio vigore on the companypliance 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 companycept of
withdrawal or recalling or revoking the resignation appears
to be totally foreign to the provisions of article
217 1  a . companynsel for the appellant relied on companypus juris secundum
american jurisprudence and other books. of eminent authors
which do number 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 companystitution as regards
resignation of judges is quite different. in
 1   1907  2 ch. d. 370.
fact there is numberprovision at all in the american
constitution entitling a judge to resign. article 3 section
1 of the american companystitution as edited by companywin shows
that although article 3 section 1 of the american
constitution companyfers judicial powers on the united states in
one supreme companyrt and other inferior companyrts as may be
established by the companygress it provides that judges both of
the supreme companyrt and inferior companyrts shall hold their
office during good behaviour. apart from this provision
there is numberprovision in the companystitution regarding the mode
and manner in which the judges companyld 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 companydition
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 cannumber be applied to our companystitution where a
definite mode and a prescribed procedure has been formulated
for the resignation of a judge and the companysequences flowing
thereof. in these circumstances therefore we can derive
little help from the provisions of the american companystitution
on the question at issue. in the absence of any express
provision the companyrts have applied the companymon 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 companypus juris secundum vol. 48 p. 973 para 25 which runs thus -
the term or tenure of a judge with respect
to the incumbent may become terminated by
reason of his resignation. in the absence of
a statute providing otherwise a resignation
becomes effective on its acceptance by the
proper authority but in order to become
effective it must be accepted. a prospective
resignation may be withdrawn at any time
before it is accepted and after it is
accepted it may be withdrawn by the companysent of
the accepting authority at least where no
new rights have intervened. similarly in companypus 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 number permissible and such
resignation becomes effective on due delivery
and creates a vacancy as of the date of
delivery. these observations do number seem to be directly
in point but companye as close as possible to the
view taken by me. the learned companynsel for respondent number 1 mr. jagdish swarup
took us through extracts of a number of books including
patons jurisprudence and salmonds jurisprudence with a
view to explain
the incidents and qualities of a legal right. the extracts
however do number appear to me to be relevant to the facts of
the present case where we are dealing with a companyified right
which has to be performed within the four companyners of the
constitutional provisions. the general principles companytained
in the book of the eminent jurists referred to by mr.
jagdish swarup cannumber be disputed. the main question
however is as to what is the effect of the provisions of
article 217 1   a  of the companystitution of india which
prescribes a particular mode for the resignation of high
court judges. i therefore do number think it necessary to
advert to the books referred to by the high companyrt or by
counsel for the first respondent. thus from the companyclusions arrived by me on the questions
involved in this appeal the following propositions in my
opinion emerge

that the companycept of the acceptance of resignation
submitted by a high companyrt judge is companypletely absent from
article 217 1  a  and the effectiveness of the resignation
does number at all depend upon the acceptance of the
resignation by the president number does such a question ever
arise. this is how the executive government has implemented
the law for wherever numberifications regarding the resignation
of high companyrt judges or supreme companyrt judges have been made
they have merely mentioned the date of the resignation and
number the fact of acceptance. the high companyrt has elaborately
dealt with this question. that in view of the provisions of article 217   1   a
and similar provisions in respect to high companystitutional
functionaries like the president vice-president speaker
etc. the resignation once submitted and companymunicated to the
appropriate authority becomes companyplete and irrevocable and
acts ex proprio vigore. that there is numberhing 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 resignumber companypletely
ceases to retain any companytrol over it and becomes functus
officio once the resignation is submitted and companymunicated
to the appropriate authority. that the resignation companytemplated by article 217 1  a
is purely an unilateral act and takes effect ipso facto once
intention to resign is companymunicated to the president in
writing and addressed to him. that on a true interpretation of article 217 1   a  a
resignation having once been submitted and companymunicated to
the president cannumber be recalled even though it may be
prospective in nature so as to companye into effect from a
particular date. it is number 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. that as the companystitution companytains 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 companymunicated
to the president. in the absence of such a provision the
doctrine of implied powers cannumber be invoked to supply an
omission left by the founding fathers of the companystitution
deliberately. the principles enunciated above flows as a logical companyollary
from the nature and character of the privilege right or
power  whatever name we may choose to give to the same
conferred by the companystitution on a judge of the high companyrt
or other companystitutional 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 numberduties companyresponding to them. a
power may be defined as ability companyferred 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 ones 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 numberprecise relationship to others is in
question save that the law will protectmy
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 companyrcing anumberher to act or forbear. it would thus appear that the privilege or power enshrined
in article 217 1  a  is an absolute one and number relative. in other words the aforesaid power is an independent one
and has numbercorresponding 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 companyresponding
right to the president to accept the same number is there any
power in the resignumber to recall or revoke the resignation
once it becomes effective. the provisions of article 217 1
 a  really companytemplates that the decision of a judge to
resign his office must be taken with due deliberation after
considering all the pros and companys of the matter and number
under any emotional instinct or inspired by undue haste or
momentous fury. one of the essential qualities of a
judicial power is restraint and a judge before resigning
5-211 sct/78
must be prepared to take a decision once for all so that
having taken the decision he is number 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 cannumber be
recalled or a bullet having fired and having reached its
destination cannumber companye back to the barrel from which it was
shot. thus having regard to the letter of resignation in the
present case there can be numberdoubt 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 companymunicated to the president and received by
him it was number open to satish chandra to withdraw or revoke
that letter. companysequently the letter dated 15th july 1977
addressed to the president by satish chandra revoking-his
resignation was null and void and must be companypletely
ignumbered. the position therefore in my opinion is that satish
chandra ceased to be a judge of the high companyrt with effect
from 1st august 1977. for these reasons therefore i
fully agree with the majority view of the high companyrt  misra
shukla and singh jj. . i am unable to persuade myself to
agree with my brother judges who have taken a companytrary view.