TaxTMI 
TaxTMI 
1978 (2) TMI 218
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....s reached-is the principal question that falls for consideration in these two appeals, directed against a judgment, dated October 28, 1977, of the High Court of Judicature at Allahabad, allowing the writ petition of Shri Gopal Chandra Misra, respondent herein, and issuing a direction under Article 226 of the Constitution, restraining Shri Satish Chandra (hereinafter referred to as Appellant 2) from functioning a; a Judge of the Allahabad High Court. Appellant 2 was appointed to the High Court of Allahabad a Additional Judge on October 7, 1963, and a permanent Judge or September 4, 1967. He will be attaining the age of 62 years of September 1, 1986. On May 7 1977, he sent a letter under his hand addressed to the President of India, through a messenger. This letter may be reproduced as below "TO The President of India, New Delhi. Sir, I beg to resign my office as Judge High Court of Judicature Allahabad. I will be on leave till 31st of July, 1977. My resignation shall I effective on 1st of August, 1977. With my, respects. Yours faithfully, Sd/- Satish Chandra." On July 15, 1977, Appellant 2 wrote to the President of India another letter in these terms "TO The Presid....
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....Simultaneously, with the raising of this objection at the bar, a petition to that effect was also presented to us, directly. The grounds of this objection, as canvassed by Shri Yogeshwar Prasad, are:- (a) That the Union of India was joined merely a pro form a party in the writ petition, inasmuch as no relief was claimed against it; (b) That the Union of India is not a party aggrieved by the Order of the High Court, because no relief has been granted against it; (c) That the Union of India is not a person interested; and (d) That the appeal by the Union of India will not further any public policy; that it has already incurred heavy expenditure in defending the action of an individual person after he has relinquished his office. Such expenditure is not permissible and should not be encouraged. We find no merit in this objection. The Union of India was impleaded as a respondent in the case before the High Court by the writ petitioner, himself. It filed a counter-affidavit contesting the writ petitioner's claim. Mr. Soli Sorabji, Additional Solicitor-General, addressed arguments before the High Court on behalf of the Union of India. No o....
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....ay 7, 1977, written and sent by Appellant 2 to the President, read as a whole, is a mere intimation of an intention to resign from a future date. Before the arrival of that date, it was not final and complete, nor a "juristic" act, because it had no legal effect and could not sever the link of the Judge with his office or cut short its tenure. (iii) Since the mere sending of the letter, dated May 7, 1977 to the President, did not constitute a final and complete act of resignation, nor a juristic act, it could be withdrawn at any time before August 1, 1977 upto which date it was wholly inoperative and ineffective. (iv) The withdrawal by Appellant 2 of his proposal to resign, does not offend public interest. The common law doctrine of public policy cannot be invoked in such a case [Gheru Lal v. Mahadeo Das ([1959] Supp. 2 S.C.R. 406)]. (v) The general principle is that in the absence of a provision prohibiting withdrawal, an intimation to resign from a future date can be withdrawn at any time before it operates to terminate the employment or the connection of the resignor with his office. This principle, according to Mr. Gupte, was enunciated by the Supr....
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....e its clause (b)]; (iii) is appointed a Judge of the Supreme Court [vide its clause (c) ]; (iv) is transferred to any other High Court in India. Here, in this case, we, have to focus attention on clause (a) of the Proviso. In order to terminate his tenure under this clause, the Judge must do three volitional things : Firstly, he should execute a "writing under his hand". Secondly, the writing should be "addressed to the President". Thirdly, by that writing he should "resign his office'. If any of these things is not done, or the performance of any of them is not complete, clause (a) will not operate to cut short or terminate the tenure of his office. Ile main reasoning adopted by the learned Judges of the High Court, (per R. B. Misra, M. N. Shukla and C. S. P. Singh, JJ.) appears to be that since the act of Appellant 2 in writing and addressing the letter, dated the 7th May, 1977, to the President, fully satisfied the three-fold requirement of clause (a) of the Proviso, and nothing more was required to be done under that clause either by the "Judge" or by the President at the other end, the resignation was "complete", "final" and "absolute". It was a complete ....
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....ust fail. If it be in the negative, the foundation for the reasoning of the High Court will fail and the appeals succeed. Well then, what is the correct connotation of the expression "resign his office" used by the founding fathers, in Proviso (a) to Article 217(1) ? 'Resignation' in the Dictionary sense, means the spontaneous relinquishment of one's own right. This is conveyed by the maxim : Resionatio est juris propii spontanea refutatio (See Carl Jowitt's Dictionary of English Law). In relation to an office, it connotes the act of giving up or relinquishing the office. To "relinquish an office' means to "cease to hold" the office, or to "loose hold of the office (cf. Shorter Oxford Dictionary); and to "loose hold of office", implies to "detach", "unfasten", "undo or untie the binding Knot or link" which holds one to the office and the obligations and privileges, that go with it. In the general juristic sense, also, the meaning of "resigning office" is not different. There also, as a rule, both, the intention to give tip or relinquish the office and the concomitant act of its relinquishment, are necessary to constitute a complete and operative resignation (....
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....is certainly not a complete and operative resignation because, by itself, it did not and could not, sever the writer from the office of the Judge, or terminate his tenure as such. Thus tested. sending of the letter dated May 7, 1977 by Appellant 2 to the President, did not constitute a complete and operative resignation within the contemplation of the expression "resign his office" used in Proviso (a) to Article 217(1). Before the arrival of the indicated future date (August 1, 1977), it was wholly inert, inoperative and ineffective, and could not, and in fact did not, cause any jural effect. The, learned Judges of the High Court (in majority) conceded that Appellant 2 "cannot be taken to have resigned on a date prior to 1st August, 1977", and "the vacation of a, seat may be on (the) future date", "because he made his choice to resign from 1st August 1977", yet, they hold that "the factum of resignation became complete the moment respondent 1 (Shri Satish Chandra) in his handwriting, sent a letter of resignation to the President of India" and on 7.5.77, itself, cut short the date of retirement of the Judge from 1-9-86 to 1-8-77, and there could be "no withdrawal of the same unle....
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....ot-as the learned Judges of the High Court have erroneously assumed-crossed the Rubicon-Ribicon was still afar, 85 days away in the hazy future. At any time, before that dead line (August 1, 1977) was reached, the Judge could change his mind and choose riot to resign, and withdraw the communication dated May 7, 1977. We have already seen that there is nothing in the Constitution or any other law which prohibits the withdrawal of the communication to resign from a future date, addressed by a, Judge to the President, before it becomes operative. Could he then be debarred from doing so on the ground of public policy? In this connection, Shri Jagdish Swarup contended that. but for the words "President and Vice-President", the language of Proviso (a,) to Article 217(1) is identical with that of Proviso (a) to Article 56 (1) of the Constitution which gives an identical right to, the President to resign his office by writing under his hand, addressed to the Vice- President. If this Court involves a principle-proceeded the argument---whereby it permits a Judge who, is a Constitutional functionary of the same class as the President or the Vice-President, whereby he can withdraw his re....
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....ll carry you". Public policy can, there fore, be a very unsafe, questionable and unreliable ground for judicial decision and Courts cannot, but be very cautious to mount this treacle, rows horse even if they must. This doctrine, as pointed out by this Court in Gherulal Parekh's case (ibid), can be applied only in a case where clear and undeniable, harm to the public is made out. To quote the words of Subba Rao, J. (as he then was): "Though theoretically it may be permissible to, evolve a new head (of public policy) under exceptional circumstances of a changing world, it is advisable in the, interest of stability of society not to make any attempt to discover new heads in these days". There are no circumstances, whatever, which would show that the withdrawal of the resignation by the appellant would cause harm to the public or even to an individual. The contention, therefore, is repelled. Shri Jagdish Swarup's argument that a right to withdraw such a resignation will have wide and unhealthy repercussions on the other Constitutional functionaries, particularly the President,....
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....fficient, till the age of 60 years. The plaintiff was to complete 55 years on November 26, 1946. On the 7th May 1945. he wrote a letter to the Director of the Institute to the following effect "Sir, having completed 33 years' service on the 6th instant, I beg permission to retire and shall feel grateful if allowed to have the leave admissible." The Director refused permission on the ground that the plaintiff could not be spared at that time. The plaintiff renewed his prayer by another letter, dated 30th May 1945, and also, asked for leave preparatory to retirement-four months on average play and the rest on half average pay-from 1st of June 1945, or the date of his availing the leave, to the date of superannuation which was specifically stated to be the 26th of November 1946. This request was also declined. To subsequent requests to the same effect, also met the same fate. On May 28, 1946, plaintiff made a fourth application repeating his request. This time, the Director of the Institute sanctioned the leave preparatory to retirement on average pay for six months from 1-6-1946 to 30-11-1946, and on half average pay for five months and 25 days thereafter, the period ending on....
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....a (1968 3 S.C.R. 857), in these words : "When a public servant has invited by his letter of resignation determination of his employment, his services normally stand , terminated from the date on which the letter of resignation is accepted by the appropriate authority, and in the absence of any law or rule governing the conditions of his service to the contrary, it will not be open to the public servant to withdraw his resignation after it is accepted by the appropriate authority. Till the resignation is accepted by the appropriate authority in consonance with the rules governing the acceptance, the public servant concerned has locus poenitentiae but not thereafter." It was also observed that, on the plain terms of the resignation letters of the servant (who was a member of the I.A.S.), the resignation became effective as soon as it was, accepted by the appropriate authority. The learned Judges of the High Court (in majority), if we may say so with respect, have failed to appreciate correctly the amplitude and implications of this rule enunciated by this Court in Jai Ram v. Union of India (supra). R. B. Misra, J. bypassed it casually on the short ground that the above....
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....If in terms of the writing under his hand addressed to the President, he resigns in praesanti, the resignation terminates his office- tenure forthwith, and cannot therefore, be withdrawn or revoked thereafter. But, if he by such Writing chooses to resign from a future date, the act resigning office is not complete because it does not terminate his tenure before such date and the Judge. can at any time before the arrival of that prospective date on which it was intended to be effective, withdraw it, because the Constitution does not bar such withdrawal. The learned Attorney-General has cited authorities of the Allahabad. Kerala, Delhi and Madhya Pradesh High Courts, wherein the rule in Jai Ram's case was followed. The High Court has tried to distinguish these cases and in regard to some of them, said that they were not rightly decided. We do not want to burden this judgment with a discussion of all those decisions. It will be sufficient to notice two of them, in which issues analogous to those which arise before us, were pointedly discussed. The first of those cases is, M. Kunjukrishnan Nadar v. Hon'ble Speaker, Kerala Legislative Assembly (supra). The petitioner in th....
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....le 217(1). Indeed, what is expressly provided by adding the words "his seat shall thereupon become vacant" in clause (b) of Art. 190(3), is implicit in clause (a) of the proviso to Article 217(1). Two questions arose for determination : (i) Whether the letter dated 23-11-63, constituted a valid resignation under Article 190(3); and (ii) if so, whether it could be withdrawn by the Member before the future date on which it was intended to be effective. A learned single Judge of the High Court answered these questions in the affirmative, with these observations ".......... the petitioner's letter of November 23, 1963, has to be held a letter resigning his seat in the Assembly on December 1, 1963, deposited with the Speaker on Novem- ber 23, 1963. It remains. a mute letter till December 1, 1963, when alone it can speak with effect. On November 29, 1963, the petitioner has withdrawn that letter by writing under his hand addressed to the Speaker himself;...... It is in effect the neutralization of the latent vitality in the former letter deposited with the Speaker. The withdrawal nullifies the entrustment or deposit of the letter of resignation in the hands of the Speaker, which must....
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....on letter has been sent which is to be effective from a future date it cannot be withdrawn even before that date ? The statute does not in any way limit the authority of the councillor who has sent his resignation' from a prospective date to withdraw it before that date is reached. The resignation which is to be effective from a future date necessarily implied that if that date has 'not reached it would be open to the councillor concerned to withdraw it." In support of this enunciation, the learned Judge relied on the ratio of the decisions of this Court in Jai Ram v. Union of India, and Rai Kumar v. Union of India (ibid). It was also contended-as has been argued before us-that if a resignation has been sent prospectively, the only effect is that the sea,, would become vacant from that date, but the resignation would be effective from the date it was delivered to the competent autho- rity. The Court repelled this argument with these pertinent observations :- "Under Section 33(1) (b), both the resignation and the vacancy of the seat are effective from the same time. There cannot be different times, one for resignation and the other for vacation of seat. Vacancy will only occ....
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....Bishop's acceptance. The acceptance of the Ordinary is absolutely necessary to avoid a living. Until acceptance the effect of the incumbents resignation is to make the benefice voidable, not void; he remains incumbent with all his powers and rights, including the power of revocation; he is in the position (at the utmost) of one who has made a contract to resign. (1) [1889] 14 A.C. 259. The Noble Lords rejected this contention. Lord Halsbury L. C. observed : "The arrangements for resignation on the one side and acceptance on the other seem to me to have been consummated before the supposed withdrawal of the resignation of Mr. Reichal. It is true the Bishop agreed not to execute the formal document to declare the benefice vacant till the following 1st of October; but I decline to decide that when a perfectly voluntary and proper resignation has once been made and by arrangement a formal declaration of it is to, be postponed, that is not a perfectly binding transaction upon both the parties to it; and I doubt whether in any view of the law such an arrangement could have been put an end to at the option of only one of the parties." Lord Watson further amplified : "His resi....
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....l agreement, Reichal tendered his resignation and did all to complete it, and the Bishop also at the other end, abstained from instituting proceedings against him in the Ecclesiastical Court. The agreement was thus not a nudem pactum but one for good consideration and had been acted upon and "consummated before the supposed withdrawal of the resignation of. Mr. Reichal", who could not, therefore, be permitted ",to upset the agreement" at his unilateral option and withdraw the resignation "without the consent of the Bishop". It was in view of these exceptional circumstances, Their Lordships held Reichal's resignation had become absolute and irrevocable. No extraordinary circumstances of this nature exist in the instant case. In the light of all that has been said above, we hold that the letter, dated May 7, 1977 addressed by Appellant 2 to the President, both in point of law and substance, amounts but to a proposal of notice of intention to resign at a future date (1-8-1977) and not being an absolute, complete resignation operative with immediate effect, could be and, in fact, had been validly withdrawn by the said Appellant through his letter, dated July 15, 1977, conveyed t....
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....he communication containing the resignation may be treated as null and void. In order to understand the exact implication of the intention of the second respondent it may be necessary to extract the two letters in extenso "TO The President of India, New Delhi. Sir, I beg to resign my office as Judge, High Court of Judicature at Allahabad. I will be on leave till 31st of July, 1977. My resignation shall be effective on 1st of August, 1977. With my respects, Yours faithfully, Sd/- Satish Chandra". "TO The President of India, New Delhi. Sir, I beg to revoke and cancel the intention expressed by me to resign on 1st of August, 1977, the office of Judge, High Court at Allahabad, in my letter dated 7th May, 1977. That communication may very kindly be treated as null and void. Thanking you and wishing to remain. Yours sincerely, Sd/- Satish Chandra". A careful perusal of the first letter leaves absolutely 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 resig....
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....h, JJ. and the High Court by a majority judgment accepted the writ petition and issued a writ of quo warranto holding that the second respondent ceased to be a Judge as he was not competent to withdraw his resignation once the same had been communicated to and in fact reached the President. The learned Judges who took the majority view against the second respondent were R. B. Misra, M. N. Shukla and C. P. S. Singh, JJ. whereas Hamid Hussain and S. B. Malik, JJ. were of the view that it was open to the second respondent to withdraw his resignati on at any time before the date from which the resignation was to be effective and were, therefore, of the opinion that the writ petition should be dismissed. It seems to me that the High Court has devoted a considerable part of its judgment to the consideration of two questions which were really not germane for the decision of the point in issue. Secondly, the High Court appears to have exhaustively considered the question of the theory of pleasure which obviously did not apply to a Judge of the High Court appointed under the Indian Constitution and after the said Constitution had come into force. In other words, a Judge appointed under Arti....
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....is Court in deciding the issue. The majority view was of the opinion that in the absence of any express provision to empower the Judge to revoke his resignation, the Judge was not competent to withdraw his resignation having once submitted the same. The minority view of the High Court which has been relied upon by the Attorney General and the second respondent proceeds on the doctrine 'of implied powers under which it is said that the power of submitting a resignation carries with it the power of revoking the same before the resignation becomes effective. I shall deal with these points a little later and before that I would like to indicate the position and the status conferred by the Constitution on a High Court Judge. The first thing which is manifestly plain is that there is no relationship of master and servant, employer and employee between the President and the Judge of the High Court, because a Judge is not a Government servant so as to be governed by Article 310 of the Constitution. A Judge of the High Court appointed under Article 2,17 has a special status and is a constitutional functionary appointed under the provisions of the Constitution by the President. The me....
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....has to abide by certain fixed principles and norms as also some self imposed restrictions in order to maintain the dignity of the high office which he holds so as to enhance the image of the court of which he is a member and to see that the great confidence which the people have in the courts is not lost. To resign an office is a decision to be taken once in a life time and that too for very special and cogent reasons because once such a decision is taken it cannot fie recalled as a point of no return is reached. Indeed, if Judges are allowed to resign freely and recall the resignation at their will this privilege may be used by them as a weapon-for achieving selfish ends or for striking political bargains. Not that the Judges are likely to take, resort to these methods but even if one Judge does so at any time the image of the entire court is tarnished. It was, in my opinion, for these reasons that the High Court Judges have been assigned a special place by the constitution and are not equated with other services, however high or important they may be. Thus, in these circumstances, therefore, it is manifest that any decision that the Judge may take in regard to resigning his offic....
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....the House of the People passed by a majority of all the then members of the House: Provided that no resolution for the purpose of clause (c) shall be moved unless at least fourteen days' notice has been given of the intention to move the resolution : Provided further that, whenever the House of the People is dissolved, the Speaker shall not vacate his office until immediately before the first meeting of the House of the people after the dissolution". So far as the Supreme Court Judges are concerned, the provision is contained in Article 124(2) (a) which runs thus "A Judge may, writing under his hand addressed to the President, resign office". For all these constitutional functionaries a special procedure has been prescribed by the Constitution regulating their resignation and in each one of these cases two things are conspicuous. First, that there is absolutely no provision for revocation of, a resignation, and, secondly, that there is nothing to show that in the case of these functionaries the resignation would become effective only on being accepted by the authority concerned. It was contended by Mr. Jagdish Swarup, counsel for the respondents that if any of these fu....
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....eupon become vacant". By virtue however of the Constitution 35th Amendment Bill 1974 Parliament amended both Articles 10 1 (3) (b) and 190 (3) (b) and made the resignation being effective dependent on the acceptance of the same by the Speaker or the Chairman concerned. The amended provisions ran thus : "101(3) If a member of either House of Parliament-- (b) resigns his seat by writing under his hand addressed to the Chairman or the Speaker, as the case may be, and his resignation is accepted by the Chairman or the Speaker, as the case may be, his seat shall thereupon become vacant Provided that in the case of any resignation referred to in sub-clause (b), it from information received or otherwise and after making such inquiry as he thinks fit, the Chairman or the Speaker, as the case may be, is satisfied that such resignation is not voluntary or genuine, he shall not accept such resignation". "190(3) 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 thereupo....
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....take effect until it received assent or acceptance, it introduced a specific provision to that effect". It would be noticed, therefore, that at the time when Articles 101 (3) and 190(3) were being amended by the Constitution (Thirty-fifth) Amendment Act the Constitution makers had also other similar provisions like Articles 217, 94, 67 and 124(2)(a) etc. before them and if they really intended that acceptance was made a condition precedent to the effectiveness of a resignation in case of constitutional functionaries under Article 217 and other Articles then such an amendment could have also been incorporated in the Thirty-fifth Amendment Bill as well either by conferring a power of revocation on the constitutional functionaries or by introducing a provision for acceptance of the resignation. The very fact that no such amendment was suggested or brought about in Article 217 and other Articles clearly reveals that the Constitution makers intended no change so far as the other Articles were concerned. This is a very important circumstance which fortifies my conclusion that the power of revocation or withdrawal of resignation once communicated to the President has been deliberately ....
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.... "The hardship, embarrassment or inconvenience resulting to a Judge by reason of his being compelled to become a litigant in his own court, cannot justify the addition of words to an article of the Constitution making his consent a precondition of his transfer. In adding such words, we will be confusing our own policy views with the command of the constitution". In view of the decision of this Court which is binding on us, can it be said that if the power of revocation of resignation is not expressly contained in the Constitution the same may be supplied by the application of the doctrine of implied powers. The question as to how far the doctrine of implied powers can be, invoked has also been considered by this Court in several cases. To quote one, viz., in the case of Bidi, Bidi Leaves and Tobacco Merchants' Association, Gondia & Ors. v. The State. of Bombay & Ors. (1) where Gajendragadkar, J. speaking for the Constitution Bench of this Court observed as follows :- "The definition of the term 'wages' postulates the binding character of the other terms of the contract and brings within the purview of the Act only one term and that relates (1) A.I.R. 1962 S.....
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....thermore, it seems to me that. the act of resignation by a Judge is a matter personal to him and however careful or cautious he may be in exercising this power, the concept of juristic act cannot be assigned to a document which is nothing but a letter of resignation, pure and simple. However, I do not want to dilate on this point, because in view of my finding that there is no express provision in Article 217 empowering a Judge to withdraw his resignation after the same is communicated to and submitted to the President, it is not necessary for me to spell out the concept of a juristic act. Another important angle of vision from which the point in issue can be approached is this. Once it is conceded that the resignation be,comes complete without the necessity of the President accepting the same, the very concept of withdrawal of the resignation disappears. In other words, the question of withdrawal of a resignation arises only if the resignation has to be accepted by an employer, because so long, as a resignation is not accepted it remains an incomplete document and totally ineffective. In such circumstances, it is always open to the resignor to withdraw his resignation which has....
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....ctive resignation, but in view of the peculiar provisions of Article 217(1) (a) it becomes irrevocable the moment it is received by the President or is communicated to him though it may take effect from the date mentioned in the letter or if no such date is mentioned from the date of the letter itself. I now turn to the Full Bench decision of the Allahabad High Court in the case of Bahori Lal Paliwal v. District Magistrate, Rulandshahr & Anr.(1) which is being relied on by the appellant. Chaturvedi, J, while drawing a distinction between the Indian law under the U.P. Town Areas Act which was the subject matter of review by the Court and the English Law on the subject observed as follows "The Indian Law under the U.P. Town Areas Act, however has not followed the English statutory law in this respect because the provisions of S.8-A of the Indian Act provide for acceptance of the resignation by the District Magistrate, which clearly shows that the resignation is not effective till it is accepted". Furthermore, it would appear that under the provisions of the statute in that case the resignation had to be accepted by the appropriate authority and it was on this basis that the ....
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....cle 217(1) or other constitutional functionaries referred to hereinbefore because in cases of such functionaries the act of resignation is a purely an uni- lateral act and once the resignation is written and communicated to the President it acts ipso facto and becomes fully effective without there being any question of acceptance by the President. I have already held that where a particular date is given in the letter of resignation, the resignation will be effective from that particular date, but it does not mean that the resignor had any right to recall his resignation merely because he has chosen a particular date from which the resignation is to take effect. On the other hand, the resignation becomes complete and irrevocable and cannot be recalled either before or after the date mentioned is reached Having signed the resignation and put the same in the course of transmission to the President the Judges loses all control over the same and becomes functous officio and the resignation becomes effective as soon as the date arrives without leaving any room or scope to the resignor to change his decision. This appears to be the constitutional scheme prescribed for the resignation of ....
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....ot be effective until the date prescribed therein had reached and the notification published in the Gazette regarding the vacancy of the seat of the member was not warranted by law. In the first Place, the Court was really concerned with the point of time as to when the actual vacancy of the member would arise and the seat would become vacant so as to justify a notification for fresh election. The point which is in issue before us did not arise in this shape in the Kerala case at all. In this connection, the learned Judge observed as follows :- "I hold therefore that it is open to a member of the Legislature to tender his resignation on a prior date to take effect on a subsequent date specified therein. The letter of re- signation has then to be construed as having been deposited with the Speaker on the earlier date, to be given effect to only on the date specified by the Member therein". "The withdrawal nullifies the entrustment or deposit of the letter of resignation in the hands of the Speaker, which must thereafter be found to have become non-est in the eye of law. The absence of a specific provision for withdrawal of prospective resignation in the Constitution or the ....
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....nces, therefore, I am not able to place any reliance on the judgment of the Kerala High Court cited by counsel for the appellant.' The Full Bench decision of the Delhi High Court in the case of Y. K. Mathur & And. v. The Commissioner, Municipal Corporation of Delhi & Ors.(1) appears to have been the sheet-anchor of the arguments of the Attorney General for the proposition that a prospective resignation submitted to the appropriate authority could be withdrawn by the resignor at any time before the date mentioned in the letter of resignation is reached. I have carefully perused the aforesaid decision and I am unable to agree with the view taken by the Delhi High Court for the reasons that I shall give hereafter. To begin with, the Court was considering the provisions of section 33(1)(b) of the Delhi Municipal Corporation Act which may be extractud thus "33(1) If a councillor or an alderman (a)................ (b)resigns his seat by writing under his hand addressed to the mayor and delivered to the commissioner his seat shall thereupon become vacant". It was vehmently contended by the appellant that section 33 (1) (b) (supra) was in absolute pari-materia with Article 217....
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....th by section 33(1)(b) and Article- 217 (1) (a) 'of the Constitution. There is no question of there being any compulsion on the resignor to submit his resignation. In fact,. both section 33(1)(b) and Article 217(1)(a) merely conferred a privilege on the resignor to offer his resignation if he so desired. It depends upon the sweet will of the councillor to resign or not to resign. From this however it cannot be inferred that where once a resignation is submitted and results in certain important consequences, namely, that the resignation acts ex proprio vigore, yet the resignor can still' withdraw his resignation and thus nullify the effectiveness of the resignation as contemplated both by section 33(1)(b) and Article 217(1)(a). Such an interpretation appears to be a contradiction in terms and against a plain interpretation of section 33(1)(b) of the Municipal Act and Article 217(1)(a) of the Constitution. Furthermore, the provision of section 33(1)(b) does not appear to be in complete pari-materia with those of Article 217(1) (a) inasmuch as section 33(1)(b) provides that as 'soon as the resignation was delivered to the Commissioner the seat of the councillor shall becom....
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....s : "Applying that to the present case, the Plaintiff, by sending in his resignation, procured a postponement of legal proceedings against himself, and thereby, according to ecclesiastical, law, incapacitated himself from wthdrawing it during, the interval before the 1st of October; and this result would follow, even if the true view of the facts. be, that the Bishop did not accept the resignation until that date. Under these circumstances, it appears to me that the plaintiff's attempt to withdraw his resignation fails entirely, and that, having failed on all points, the action must be dismissed with costs". This decision was affirmed by the Court of Appeal and it was held that the resignation was validly executed and irrevocable. In the Appeal Case Lord Halsbury observed as follows : "But there was no condition here at all. As I have already said, I find as a fact that Mr. Reichel agreed absolutely to, resign rather than undergo the inquiry which the Bishop would have felt himself otherwise compelled to institute. Neither in form nor in substance was the resignation conditional". Lord Herschell observed as follows " in these circumstances it is idle to consid....
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....rs. On the receipt by the society of a letter from a member stating his wish to retire, he at once ceased to, be a member without the necessity of the acceptance by the society of his resignation. It was held that the member could not withdraw his resignation even before acceptance and he could only become a member again after reelection. It would be seen that the principles decided in this case apply directly to the facts of the present case where also under the provisions of Article 217 the effectiveness of resignation does not depend upon the acceptance of the same by the appropriate authority. In the aforesaid case Lindley, L.J. observed as follows "By paying his subscription he no doubt acquires certain rights and benefits. But what is there to prevent him from retiring from the association at any moment 'if he wishes to do so ? Absolutely nothing. In my opinion no acceptance of his resignation is required, though of course he cannot get back the 10s.6d. which he has paid........ I can see no principle of law which entitles him to withdraw his resignation". Kay, L. J. observed as follows "It is said that, before his resignation had been accepted by the association, be w....
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....to withdraw that notice, but, if it is withdrawn, it must be by the consent of the company properly exercised by their managers, who are- the directors of the company". It would appear, from a conspectus of the authorities cited above and on a close and careful analysis of the provisions of Article 217(1) of the Constitution of India having regard to the setting of the spirit in which this provision was engrafted that the more acceptable view seems to be that where the effectiveness of a resignation by a Judge does not depend upon the acceptance by the President and the resignation acts ex proprio vigore on the compliance of the conditions mentioned in Articie 217 (1) (a) (that is by writing under his hand addressed to the, President and being communicated the same to the President) the Judge has no power to revoke or recall the aforesaid resignation even though he may have fixed a particular date from which the resignation is to be effective. In other words the act of resignation is a purely unilateral act and the concept of withdrawal or recalling or revoking the resignation appears to be totally foreign to the provisions of Article 217(1)(a). Counsel for the appellant reli....
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....r it is accepted it may be withdrawn by the consent of _the accepting authority, at least where no new rights have intervened". Similarly, in Corpus Juris Secundum Vol. 67 p. 227 para 55 the following observations are to be found: "However, under a statute providing that a resignation shall take effect on due delivery to the officer to whom it is addressed without making provision for a prospective.resig- nation, a resignation to take effect at a future, date is not permissible, and such resignation becomes effective on due delivery and creates a vacancy as of the date of delivery". These observations do not seem to be directly in point but come as close as possible to the view taken by me. The learned counsel for respondent No. 1 Mr. Jagdish Swarup took us through extracts of a number of books including Paton's Jurisprudence and Salmond's Jurisprudence with a view to explain the incidents and qualities of a legal right. The extracts, however, do not appear to me to be relevant to the facts of the present case where we are dealing with a codified right which has to be performed within the four corners of the constitutional provisions. The general principle....
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.... hold that such a resignation I can be withdrawn at any time before the date from which the resignation is to be effective is reached. 6. That as the Constitution contains an express and clear provision for the mode in which a resignation can be made it has deliberately omitted to provide for revocation or withdrawal of a resignation once submitted and communicated to the President. In the absence of such a provision, the doctrine of implied powers cannot be invoked to supply an omission left by the founding fathers of the Constitution deliberately. The principles enunciated above flows as a logical corollary from the nature and character of the privilege, right or power (whatever name we may choose to give to the same) conferred by the Constitution on a Judge of the High Court or other constitutional functionaries mentioned hereinbefore. Salmond on Jurisprudence (12th Ed. by Fitzgerald) describes a species of legal rights thus :- "All these are legal rights-they are legally recognised interests-they are advantages conferred by law. They resemble liberties, and differ from rights stricto sensu, inasmuch as they have no duties corresponding to them. A power may be def....