# Suresh Singh v. State of U.P. & Ors

- **Citation:** (2019) 2 ILRA 2096
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-09-19
- **Case number:** Service Bench No. 470 of 2003
- **Bench:** Anil Kumar, Saurabh Lavania
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/suresh-singh-v-state-of-u-p-ors-44701
- **Pages:** 15

## Headnote

A. Service Law - resignation - petitioner
appointed on the post of Constable in
Provincial Armed Constabulary fell ill on
duty - sent resignation when medical
certificate
was
not
accepted
-
after
acceptance
of
resignation
by
the
authorities, petitioner sent representation
to reinstate him back

Resignation becomes absolute when accepted
by the competent authority. (Para 20)

The intention or proposal to resign from office
from a future or specific date can be
withdrawn at the time before it (resignation)
becomes effective (Para 23)

Black Law's Dictionary Sixth Edition Page 1310
defines "resignation"
to be spontaneous
relinquishment of one's own right therefore it
implies voluntary surrender of the position by
a person resigning and acting freely not under
duress. (Para 19)

Writ Petition dismissed (E-10)

Cases Cited:-

## Text

_Characters 0–39,863 of 49,912. This is a partial read: ask again with offset=39863 for what follows._

2096 INDIAN LAW REPORTS ALLAHABAD SERIES
have consistently declined to condone the
delay and denied relief to litigants who
are guilty of laches. Litigants who are in
long slumber and not vigilant about their
rights are discouraged by the courts.
Belated claims are rejected at the
threshold. Rip Van Winkles have a place
in literature, but not in law !

50. All this is done on the foot of the
rule of delay and laches. Statutes of
limitation are ordained by the legislature,
rule of laches was evolved by the courts.
Sources of the law differ but the purpose is
congruent. Statutes of limitation and the law
of delay and laches are rules of repose.

51. The rule of laches and delay is
founded on sound policy and is supported
by good authority. The rule of laches and
delay is employed by the courts as a tool
for efficient administration of justice and
a bulwark against abuse of process of
courts.

52. Some elements of public policy
and realities of administration of justice
may now be considered.

53. While indolent litigants revel in
inactivity, the cycle of life moves on.
New
realities
come
into
existence.
Oblivious to the claims of the litigants,
parties order their lives and institutions
their affairs to the new realities. In case
claims filed after inordinate delay are
entertained by courts, lives and affairs of
such individuals and institutions would be
in a disarray for no fault of theirs. Their
lives and affairs would be clouded with
uncertainty and they would face prospects
of long and fruitless litigation.

54. The delay would entrench
independent third party rights, which
cannot be dislodged. The deposit of
subsequent events obscures the original
claim and alters the cause itself. The
refusal to permit agitation of stale claims
is based on the principle of acquiescence.
In certain situations, the party by its
failure to raise the claim in time waives its
right to assert it after long delay.

55. The rule of delay and laches by
preventing the assertion of belated claims
puts to final rest long dormant claims.
This policy of litigative repose, creates
certainty in legal relations and curtails
fruitless litigation. It ensures that the
administration of justice is not clogged by
pointless litigation.

56. The above stated position of law,
on the question of delay and laches, on
part of the petitioner, controls the facts of
the
case.
There
is
no
satisfactory
explanation of the delay in writ petition.
The entrenched rights of third parties are
not liable to be disturbed in such view of
the conduct of the petitioner.

57. The claim of the petitioner for
appointment on compassionate grounds,
is untenable in law.

58. The writ petition is dismissed.
----------

(2019)10ILR A 2096

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 19.09.2019

BEFORE

THE HON'BLE ANIL KUMAR, J.
THE HON'BLE SAURABH LAVANIA, J.

Service Bench No. 470 of 2003
2 All. Suresh Singh Vs State of U.P. & Ors.
2097
Suresh Singh ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Suresh Kumar, Rama Kant Dixit

Counsel for the Respondents:
C.S.C.

A. Service Law - resignation - petitioner
appointed on the post of Constable in
Provincial Armed Constabulary fell ill on
duty - sent resignation when medical
certificate
was
not
accepted
-
after
acceptance
of
resignation
by
the
authorities, petitioner sent representation
to reinstate him back

Resignation becomes absolute when accepted
by the competent authority. (Para 20)

The intention or proposal to resign from office
from a future or specific date can be
withdrawn at the time before it (resignation)
becomes effective (Para 23)

Black Law's Dictionary Sixth Edition Page 1310
defines "resignation"
to be spontaneous
relinquishment of one's own right therefore it
implies voluntary surrender of the position by
a person resigning and acting freely not under
duress. (Para 19)

Writ Petition dismissed (E-10)

Cases Cited:-
1. Chhabiley Khan Vs St of U.P. & ors Writ A
No. 34378 of 2005
2. Abdul Hamid Vs District Inspector of
Schools (2018) 4 UPLBEC 2839
3. U.O.I. etc Vs Gopal Chandra Misra & ors
AIR 1978 SC 694
4. P. Kasilingam Vs P.S.G. College of
Technology AIR 1981 SC 789
5. Moti Ram Vs Param Dev (1993) 2 SCC 725
6. U.O.I. Vs Wing Commander T Porthasarathy
(2001) 1 SCC 158
7. Dr. Prabha Atri Vs St of U.P. & ors (2003) 1
SCC 701
8. North Zone Cultural Centre & ors Vs
Vedpathi Dinesh Kumar (2005) 5 SCC 455

9. Air India Express Ltd. Vs Gurdarshan Kaur
Sandhu (2019) SCC Online SC 1082

(Delivered by Hon'ble Saurabh Lavania, J.)

1. Heard learned counsel for the
petitioner and the learned State Counsel.

2. By means of the present writ
petition, the petitioner has challenged the
judgment and order dated 11.12.1997,
passed by the State Public Services
Tribunal, Lucknow (in short "Tribunal")
in Claim Petition No. 626/V/1990 [Suresh
Singh v. State of U.P. and others].

3. Facts, in brief as submitted by the
learned counsel for the petitioner, of the
present case are to the effect that the
petitioner was appointed on the post of
Constable
in
Provincial
Armed
Constabulary
(in
short
"PAC")
on
28.02.1981. Thereafter, the petitioner
while was on duty fell ill, as such, he
submitted medical certificate to opposite
party No. 5-Commandant, 25th Battalion
PAC, Raebareli, and the same was not
accepted by the opposite party No. 5. The
petitioner being aggrieved, annoyed and
in frustrated mood, on account of act of
opposite
party
no.5,
submitted
his
resignation letter dated 25.11.1987. In
fact, under coercion and duress, the
resignation of the petitioner was obtained
on 25.11.1987.
2098 INDIAN LAW REPORTS ALLAHABAD SERIES

4. Vide order dated, 19.12.1987, the
opposite party No. 5 accepted the
resignation letter singed by the petitioner.
After acceptance of the resignation letter,
the leave without pay was sanctioned by
the opposite party No. 5 in the following
manner:-

"(1) 165 days -
30.01.1987 to 03.07.1987.

(ii) 110 days -
30.08.1987 to 18.12.1987."

5. It is submitted by the learned
counsel for the petitioner when the
petitioner recovered from illness, his wife
submitted a detailed representation in
regard to reinstatement of the petitioner in
service. The same was rejected by the
competent authority vide order dated
25.07.1990 (Annexure No. 20 to the writ
petition).

6. Aggrieved by the order dated
25.07.1990, the petitioner approached the
Tribunal by means of the Claim Petition
No. 626/V/1990 [Suresh Singh v. State of
U.P. and others], which was dismissed
vide order dated 11.12.1997 with the
following finding:-

"I am, therefore, not prepared to
believe the case of the petitioner that
resignation letter dated 25.11.1987 was
obtained by the opposite party No. 4 from
the petitioner under duress and coercion.
I, therefore, find no illegality in the order
whereby the resignation of the petitioner
was accepted by the competent authority.

The petitioner has not filed any
application to show that he made any
application to opposite party-4 for taking
him back in service. In his claim petition
he has re referred to the representation
contained in Annexure -18 to the claim
petition sent to the Chief Minister. In this
representation sent by the wife of the
petitioner, she had prayed to the Chief
Minister that the petitioner may be taken
back in service. The opposite parties have
denied that any such representation was
received by them. The petitioner has not
filed any document to show that any such
representation was received in the office
of the Chief Minister. Even if it is
presumed that the petitioner had moved
any application before the Inspector
General, PAC, for giving him reemployment, the petitioner had no right to
get re-employment under the opposite
parties and if his representation for taking
him back in service has been rejected by
the Inspector General of PAC vide his
order dated 25.07.1990 contained in
Annexure-19 to the claim petition, I do
not find any illegality in it. I find that the
order contained in Annexure-19 to the
claim petition is an administrative order
and there is no question of giving any
reason for rejecting the representation of
the petitioner seeking re-employment
because the petitioner has no right to get
re-employment
under
the
Provincial
Armed Constabulary. Even the learned
counsel for the petitioner has not been
able to show that the petitioner had any
right to get re-employment and any such
right of the petitioner has been infringed
by the impugned order dated 25.07.1990.

The
petitioner
has
no
where
mentioned in the claim petition as to
where Chabbiley Khan was appointed
and when he submitted his resignation
and when he was re-employed. It is also
not mentioned where the said Chabbiley
Khan was posted when his resignation
was accepted and where he was posted
after re-employment. Thus, there is
nothing on record to show that the case of
the petitioner is similar to the said
2 All. Suresh Singh Vs State of U.P. & Ors.
2099
Chabbiley Khan. I, therefore, hold that
the petitioner has failed to prove that the
opposite party No. 3 has in any way
discriminated against him when he
rejected
the
representation
of
the
petitioner vide his order dated 25.07.1990
(contained in Annexure-19 to the claim
petition) for taking him back in service.

In view of the above considerations, I
do not find any merit in the claim petition
which is liable to be dismissed."

7. Learned counsel for the petitioner
while challenging the impugned order
dated 11.12.1997, passed by the Tribunal
submitted that in the present case, the
resignation of the petitioner was obtained
by way of threat and coercion adopted by
the opposite party No. 5, as such, the
petitioner may be reinstated in service.

8. In addition to the aforesaid, the
learned counsel for the petitioner placed
reliance on the order dated 19.02.2018
passed by this Court in Writ-A No. 34378
of 2005 (Chhabiley Khan v. State of U.P.
and others). The order dated 19.02.2018
reads as under:-

"Heard learned counsel for the
petitioner and learned Standing Counsel.

This writ petition has been filed by
the petitioner seeking direction in the
nature of mandamus commanding the
respondents to sanction the advance
increments of pay in time scale by
counting the period of resignation by
exercising the power conferred under
Regulation 416 of U.P. Police Regulation.

As
per
the
writ
petition,
the
petitioner was appointed on 26.10.1970
as constable in 30th Battalion P.A.C
(Provincial Armed Constabulary), Gonda,
District Gonda. Subsequently, he resigned
from service on 30.7.1979 due to some
family problems and his resignation was
accepted by the competent authority vide
order dated 18.8.1979. Subsequently, the
petitioner was again enlisted as constable
vide order dated 21.11.1986 and joined
his duty on 15.12.1986.

Learned counsel for the petitioner
states
that
the
Commandant
25th
Battalion P.A.C, Raebareli vide letter
dated 11.10.1988 (annexure-4 to the writ
petition) recommended to sanction the
advance increments of pay to the extent to
bring a re-enlisted constable to the stage
he would reached on the time scale of
constable in the U.P. Police in view of the
paragraph 416 of the Police Regulation,
but till date no decision has been taken by
the concerned respondent.

Under the aforesaid circumstance,
the Director General of Police, U.P.
Lucknow is directed to consider the
grievances of the petitioner and pass the
appropriate order in the matter as per the
recommendation
made
by
the
Commandant
25th
Battalion
P.A.C
Raebareli for which the petitioner is also
directed to make fresh representation
within two weeks from today, annexing all
the relevant documents and orders passed
by the concerned authority. In case, the
petitioner file representation, the same
shall be decided by reasoned and
speaking order by the respondent no.4
within a period of three months from the
date of production of certified copy of this
order.

The writ petition is, accordingly,
disposed of."

9. Reliance placed by learned
counsel for the petitioner on the judgment
dated 19.02.2018 passed by this Court in
Writ-A No. 34378 of 2005 (Chhabiley
Khan v. State of U.P. and others) is
concerned, the same is not applicable in
2100 INDIAN LAW REPORTS ALLAHABAD SERIES
the facts and circumstances of the present
case, as such, the petitioner cannot derive
any benefit from it, as in the said case, the
petitioner-Chhabiley Khan was enlisted as
constable after acceptance of resignation
and the writ petition was filed for
direction to state-respondents to sanction
the advance increments of pay in time
scale by continuing the period related to
acceptance
of
resignation
and
reenlistment of petitioner as constable.

10. The learned counsel for the
petitioner also placed reliance on the
judgment of the Division Bench of this
Court passed in the case of Abdul Hamid
Vs. District Inspector of Schools, [(2018)
4 UPLBEC 2839].

11. The aforesaid judgment is also
not applicable in the said case, as the
Deputy Inspector of Schools (DIOS) after
passing the order dated 22.01.1981,
holding resignation to be invalid passed
another order dated 15.05.1998 holding
that resignation to be invalid, passed
another order dated 15.05.1998 holding
that resignation is valid and the issue for
consideration before the Court that
whether DIOS is empowered to review its
Order. This Court held that DIOS can not
review its order and in view of the above,
interfered in the order dated 15.05.1998.

12. Learned counsel for the State
while reverting the contention raised by
the learned counsel for the petitioner
submitted that in the present case, the
story
set-up
by
the
petitioner
for
submitting his resignation is wholly
incorrect and wrong. The Tribunal after
taking into consideration all the facts,
dismissed the claim petition of the
petitioner. While dismissing the claim
petition, the Tribunal recorded findings on
the issue of right to re-employment after
acceptance of resignation and the story
framed by the petitioner for submitting his
resignation and held that once the
petitioner's resignation has been accepted
then he has no locus to withdraw the said
resignation.

13. We have heard the learned
counsel for the parties and gone through
the record carefully.

14. Admittedly, the petitioner made
a request for re-employment/withdrawal
of
resignation
after
acceptance
of
resignation. It is also admitted position
that fact of acceptance of resignation was
in the knowledge of the petitioner, as
appears from the representation of the
wife of the petitioner for re-employment
of petitioner, which is on record as
Annexure No. 19 to the writ petition, on
which
the
order
dated
25.07.1990
(challenged before the Tribunal) was
passed, whereby the request for reemployment was rejected.

15. It is settled proposition of law that
once the resignation of an employee/person
is accepted then it becomes absolute and
cannot be withdrawn.

16. The word 'Resignation' in
relation to an office connotes the act of
giving up or relinquishment of the office.
To relinquish office means to cease to
hold office or to lose hold of the office.
Therefore, it means that the employees
wants to sever his relation from the
employer without any riders and then only
it would amount to resignation.

17. Corpus Juris Secundum Vol. 77
page 311 defines the words 'resign' and
'resignation' as under:-
2 All. Suresh Singh Vs State of U.P. & Ors.
2101

"RESIGN" To give up; to surrender
by a formal act; to yield; to relinquish; to
give up one's office or position; to
withdrawn from. The word" resign" in its
ordinary and usual sense, imports a
voluntary act, and has been held not to
include the act of one whose continuance
in a position has been terminated by
death or by induction into the armed
forces under th Selective Service Act.

"RESIGNATION. It has been said
that "resignation" is a term of legal art,
having legal connotation which describe
certain
legal
results.
It
is
characteristically the voluntary surrender
of a position by the one resigning, , made
freely and not duress, and the word is
defined generally as meaning the act of
resigning or giving up, as a claim,
possession, or position."

18.

In
Words
and
Phrases
(permanent Edn.) Vol. 37 at page 473, the
word 'Resign' denoting voluntarily act,
relinquish to give up, surrender by formal
out, yield, relinquish, give up ones' office
or position, or withdraw from it. Further
at age 436 the word resignation has been
define as:-

"To constitute a ' resignation', it must
be unconditional and with an intent to
operate as such. There must be an
intention to relinquish a portion of the
term of office accompanied by an act of
relinquishment. It is to give back, to give
up in a formal manner, an office."

19. Black's Law Dictionary Sixth
Edition Page 1310 defines the resignation
as formal renouncement or relinquishment
of an office. It must be made with
intention of relinquishing the office
accompanied by act of relinquishment. It
is said that resignatio est juris proprii
spontanea refutatio i.e. resignation is
spontaneous relinquishment of one's own
right thus the term of resignation implies
voluntarily surrender of the position by a
person resigning and acting freely not
under duress and it becomes effective
when the authority competent to make
appointment accept it.

20. Moreover the resignation must
be unambiguous and where an ambiguous
letter of resignation is submitted, the
authority should right to the employee to
explain or clear the ambiguity instead of
proceeding to accept the same. Further,
the resignation becomes absolute when it
is accepted by the appointing authority,
date of communication of acceptance to
him is not material.

21. Once the appointing authority
accepts the resignation submitted by the
Government servant, it becomes absolute
and cannot be withdrawn thereafter. The
date on which he was informed of the
such acceptance is not material for the
purpose till the resignation is accepted by
the appropriate authority in consonance
with the rules governing the acceptance,
the public servant has locus poenitentiae
but not thereafter.

22. Hon'ble Supreme Court while
considering the meaning of the word
"resigning office" in the case of Union of
India etc. Vs Gopal Chandra Misra and
others, AIR 1978 SC 694 held as under:-

"In the general juristic: sense, also
the meaning of " resigning office" is not
different. There also , as a rule, both, the
intention to give up or relinquish the
office and the concomitant act of its
relinquishment,
are
necessary
to
constitute a complete and operative
2102 INDIAN LAW REPORTS ALLAHABAD SERIES
resignation
(see,
e.g.
American
Jurisprudence, 2nd Edition Volume 15A ,
page
80)
although
the
act
of
relinquishment may take different forms
or assume a unilateral or bilateral
character , depending on the nature of the
office and the conditions governing it.
Thus, resigning office necessarily involves
relinquishment of the office , which
implies cessation or termination of, or
cutting as under from the office . Indeed
the completion of the resignation and the
vacation of the office , are the causal and
effectual aspects of one and the same
event."

23. Further in para 42 of the
aforesaid judgment the Hon'ble Apex
Court
approving
the
principle
of
withdrawal before the relationship of the
employer and the employee held as
under:-

"The general principle that emerges
from the foregoing conspectus is that in
the absence of anything to the contrary in
the provisions governing the terms and
conditions of the office post, an intimation
in writing sent to the; competent authority
by the incumbent, of his intention or
proposal to resign his office/post from a
future specific 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."

24. In the case of P. Kasilingam V.
P.S.G. College of Technology, AIR 1981
SC 789, Hon'ble Supreme Court has held
that :-

"It may be conceded that it is open to
a servant to make his resignation
operative from a future date and to
withdraw such resignation before its
acceptance. The question as to when a
Government
servant's
resignation
becomes effect came up for consideration
by this Court in Raj Kumar Vs. Union of
India , (1968) 3 SCR 857; ( AIR 1969 SC,
180) . It was held that the services of a
Government
servant
normally
stand
terminated form the date on which the
letter of resignation is accepted by the
appropriate authority, unless there is any
law or statutory rule governing the
conditions of services to the contrary.
There is no reason why the same principle
should not apply to the case."

25. In Moti Ram Vs. Param Dev
(1993) 2 SCC 725, this Court observed as
hereunder:-

"As pointed out by this Court,
'resignation'
means
the
spontaneous
relinquishment of one's own right and in
relation to an office, it connotes the act of
giving up or relinquishing the office. It
has been held that in the general juristic
sense, in order to constitute a complete
and operative resignation there must be
the intention to give up or relinquish the
office and the concomitant act of its
relinquishment. It has also been observed
that the act of relinquishment may take
different forms or assume a unilateral or
bilateral character, depending on the
nature of the office and the conditions
governing it, Union of India Vs. Gopal
Chandra Misra (1978) 2SCC 301, If the
act of relinquishment is of unilateral
character, it comes into effect when such
act indicating the intention to relinquish
the office is communicated to the
competent authority. The authority to
whom the act of relinquishment is
communicated is not required to take any
action and the relinquishment takes effect
2 All. Suresh Singh Vs State of U.P. & Ors.
2103
from the date of such communication
where the resignation is intended to
operate in praesenti. A resignation may
also be prospective to be operative from a
future date and in that event it would take
effect from the date indicated therein and
not from the date of communication. In
cases where the act of relinquishment is
of
a
bilateral
character,
the
communication
of
the
intention
to
relinquish, by itself, would not be
sufficient to result in relinquishment of the
office and some action is required to be
taken on such communication of the
intention to relinquish, e.g. acceptance of
the said request to relinquish the office,
and in such a case the relinquishment
does not become effective or operative till
such action is taken. As to whether the act
of relinquishment of an office is unilateral
or bilateral in character would depend
upon the nature of the office and the
conditions governing it."

26. In Union of India Vs. Wing
Commender T Porthasarathy (2001) 1
SCC 158, the Apex Court has held that
when a public servant has tendered
resignation his service normally stands
terminated from the date on which the
letter of his request is accepted by the
appropriate authority and the absence of
any law or statutory rule governing the
condition of his service contrary to the
delay not be open to the public servant to
withdraw his resignation after it is
accepted by the appropriate authority.

27. In the case of Dr. Prabha Atri
Vs. State of U.P. and other, (2003) 1
SCC 701, Hon'ble Supreme Court has
observed that letter when constitutes
resignation , such a letter , held must be
unconditional and intending to operate as
such. Where an employee, required to
submit his explanation for a certain lapse
on
his
part,
while
submitting
his
explanation added that if the explanation
was found to be not acceptable he would
have no option left but to tender his
resignation with immediate effect, held,
such
a
letter
did
not
amount
to
resignation. At best it could amount to a
threatened offer to resign. The words
"with immediate effect" in the said letter ,
held , could not be given undue
importance dehors the context tenor of the
language used, the purport of the letter
and the portion of the letter indicating the
circumstances in which the letter was
written. Moreover, stopping the domestic
enquiry by the management consequent to
acceptance of the alleged resignation, held
, had not significance in ascertaining the
true or real intention of the said letter.

28. The Supreme Court in (2005) 5
SCC 455, North Zone Cultural Center
and another v. Vedpathi Dinesh Kumar
has observed that the resignation becomes
effective on acceptance even if not
communicated. Non Communication of
the acceptance does not make the
resignation inoperative provided there is
in
fact
on
acceptance
before
the
withdrawal when the relevant rules not
postulating communication of acceptance
as a condition precedent for coming into
effect of resignation. Employee tendering
resignation with immediate effect and
employer accepting the same on the same
day but communicating the acceptance to
the employee after 13 days. During the
intervening
period,
the
employee
withdrawing his resignation. Such delay
of mere 13 days, held , not an undue delay
so as to infer that resignation had not
already
been
accepted.
Even
the
continued attendance to duty and signing
of attendance register by the said
2104 INDIAN LAW REPORTS ALLAHABAD SERIES
employee during the intervening period
held, of no assistance to claim that the
resignation had not taken effect. More so,
when there was no responsible officer in
the office during that time and taking the
advantage of that situation the employee
had marked his attendance, hence the
High
Court's
decision
holding
that
communication of the acceptance of
resignation subsequent to withdrawal of
the resignation by the employee had
become redundant was held improper.

29. Recently, the Hon'ble Apex
Court in judgment passed in the case of
Air India Express Ltd. Vs. Gurdarshan
Kaur Sandhu reported in 2019 SCC
Online SC 1082, summarized the legal
portion on the issue of withdrawal of
resignation.
The
relevant
paras
are
reproduced as under:-

"12. The circumstances under which
an
employee
can
withdraw
the
resignation tendered by him and what are
the limitations to the exercise of such
right, have been dealt by this Court in a
number of decisions.

A] In Jai Ram v. Union of India; AIR
1954 SC 584, the concerned Government
servant was to attain age of 55 years on
26.11.1946. He applied on 07.05.1945 for
leave preparatory to retirement in terms
of Fundamental Rule 86. The request was
finally allowed and he was given 6
months' leave which was to expire on
25.05.1947. Ten days before such expiry
i.e. on 16.05.1947, he sent an intimation
that he would resume his duties which
request was rejected. The submission that
the age of retirement was 60 years was
rejected by this Court. The submission
that in terms of Rule 56(b)(i) of Chapter
IX of the Fundamental Rules, if found
efficient, he could have continued till he
attained the age of 60 years, was rejected.
It was observed that when a public
servant himself expresses his inability to
continue in service any longer and seeks
permission for retirement, the required
exercise in terms of said Rule 56(b)(i) to
decide whether to continue him beyond
the age of 55 years was rightly not
undertaken and the age of retirement for
him would be 55 years. In the context
whether he could apply for resuming
duties on 16.05.1947, it was observed by
the Constitution Bench of this Court,:--

"It may be conceded that it is open to
a servant, who has expressed a desire to
retire from service and applied to his
superior officer to give him the requisite
permission,
to
change
his
mind
subsequently and ask for cancellation of
the permission thus obtained; but he can
be allowed to do so long as he continues
in service and not after it has terminated.

As we have said above, the plaintiff's
service ceased on the 27th of November
1946; the leave, which was allowed to
him subsequent to that date, was postretirement leave which was granted under
the special circumstances mentioned in F.
R. 86. He could not be held to continue in
service after the 26th of November 1946,
and consequently it was no longer
competent to him to apply for joining his
duties on the 16th of May 1947, even
though the post-retirement leave had not
yet run out. In our opinion, the decision of
the Letters Patent Bench of the High
Court is right and this appeal should
stand dismissed."

B] In Raj Kumar v. Union of India;
(1968) 3 SCR 857, an officer belonging to
the
Indian
Administrative
Service
tendered resignation and addressed a
letter to the Chief Secretary to the
Government of Rajasthan on 30.08.1964
that it may be forwarded to the
2 All. Suresh Singh Vs State of U.P. & Ors.
2105
Government of India with remarks of the
State Government. The State Government
recommended that the resignation be
accepted
and
on
31.10.1964
the
Government of India requested the Chief
Secretary to the State Government "to
intimate the date on which the appellant
was relieved of his duties so that a formal
notification could be issued in that
behalf". Before the date could be
intimated and formal notification could be
issued,
the
officer
withdrew
his
resignation by letter dated 27.11.1964.
On 29.03.1965 an order accepting his
resignation was issued. The challenge
raised by the officer was rejected and the
High Court held that the resignation
became
effective
on
the
date
the
Government of India had accepted it.
While dismissing the appeal, a Bench of
three Judges of this Court observed:--

"The letters written by the appellant
on August 21, 1964, and August 30, 1964,
did not indicate that the resignation was
not to become effective until acceptances
thereof was intimated to the appellant.
The appellant informed the authorities of
the State of Rajasthan that his resignation
may be forwarded for early acceptance.
On the plain terms of the letters, the
resignation was to become effective as
soon as it was accepted by the appointing
authority. No rule has been framed under
Article 309 of the Constitution which
enacts that for an order accepting the
resignation to be effective, it must be
communicated to the person submitting
his resignation.

Our attention was invited to a
judgment of this Court in State of Punjab
v. Amar Singh Harika (AIR 1966 SCR
1313) in which it was held that an order
of dismissal passed by an authority and
kept on its file without communicating it
to the officer concerned or otherwise
publishing it did not take effect as from
the date on which the order was actually
written out by the said authority; such an
order could only be effective after it was
communicated to the Officer concerned or
was otherwise published. The principle of
that case has no application here.
Termination of employment by order
passed by the Government does not
become effective until the order is
intimated to the employee. But where 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. Undue
delay in intimating to the public servant
concerned the action taken on the letter of
resignation may justify an inference that
resignation has not been accepted. In the
present case the resignation was accepted
within a short time after it was received
by the Government of India. Apparently
the State of Rajasthan did not immediately
implement the order, and relieve the
appellant of his duties, but the appellant
cannot profit by the delay in intimating
acceptance or in relieving him of his
duties."

C] In Union of India v. Gopal
Chandra Mishra; (1978) 2 SCC 301, the
issue for consideration was whether a
High Court Judge, who had by letter in
his own hand writing sent to the President
2106 INDIAN LAW REPORTS ALLAHABAD SERIES
intimated his intention to resign the office
with effect from a future date would be
competent to withdraw the resignation
before the date had reached? The
decisions in Jai Ram; AIR 1954 SC 584
and Raj Kumar; (1968 3 SCR 857), were
considered and while dealing with the
scope of clause(a) of the proviso to
Article 217 of the Constitution, the
Constitution Bench of this Court stated:--

"20. Here, in this case, we have to
focus attention on clause (a) of the
proviso. In order to terminate his tenure
under this clause, the Judge must do three
volitional things: Firstly, he should
execute a "writing under his hand".
Secondly,
the
writing
should
be
"addressed to the President". Thirdly, by
that writing he should "resign his office".
If any of these things is not done, or the
performance of any of them is not
complete, clause (a) will not operate to
cut short or terminate the tenure of his
office.

22. It may be observed that the entire
edifice of this reasoning is founded on the
supposition
that
the
"Judge"
had
completely performed everything which
he was required to do under proviso (a) to
Article 217(1). We have seen that to
enable a Judge to terminate his term of
office by his own unilateral act, he has to
perform three things. In the instant case,
there can be no dispute about the
performance of the first two, namely: (i)
he wrote a letter under his hand, (ii)
addressed to the President. Thus, the first
two pillars of the ratiocinative edifice
raised by the High Court rest on sound
foundations. But, is the same true about
the third, which indisputably is the chief
prop of that edifice? Is it a completed act
of resignation within the contemplation of
proviso (a)? This is the primary question
that calls for an answer. If the answer to
this question is found in the affirmative,
the appeals must fail. If it be in the
negative, the foundation for the reasoning
of the High Court will fail and the appeals
succeed.

13. The tenor and the effect of
resignation were then considered in
paragraph 28 and it was held that the
letter
in
question
was
merely
an
intimation or notice to resign the office on
a future date and it was open to withdraw
the resignation before the arrival of the
indicated future date. The observations
were:--

"28. The substantive body of this
letter (which has been extracted in full in
a foregoing part of this judgment) is
comprised of three sentences only. In the
first sentence, it is stated: "I beg to resign
my office as Judge, High Court of
Judicature at Allahabad." Had this
sentence stood alone, or been the only
content of this letter, it would operate as a
complete
resignation
in
praesenti,
involving immediate relinquishment of the
office and termination of his tenure as
Judge. But this is not so. The first
sentence is immediately followed by two
more, which read : "I will be on leave till
July 31, 1977. My resignation shall be
effective on August 1, 1977." The first
sentence cannot be divorced from the
context of the other two sentences and
construed in isolation. It has to be read
along with the succeeding two which
qualify
it.
Construed
as
a
whole
according to its tenor, the letter dated
May 7, 1977, is merely an intimation or
notice of the writer's intention to resign
his office as Judge, on a future date viz.
August 1, 1977. For the sake of
convenience,
we
might
call
this
communication as a prospective or
potential resignation, but before the
arrival of the indicated future date it was
2 All. Suresh Singh Vs State of U.P. & Ors.
2107
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.

14. The Court went on to state the
principles as:--

"41. The general principle that
emerges from the foregoing conspectus, is
that in the absence of anything to the
contrary in the provisions governing the
terms and conditions of the office/post, an
intimation in writing sent to the competent
authority by the incumbent, of his
intention or proposal to resign his
office/post from a future specified date
can be withdrawn by him at any time
before it becomes effective, i.e. before it
effects termination of the tenure of the
office/post or the employment.
50. It will bear repetition that the general
principle is that in the absence of a legal,
contractual or constitutional bar, a
"prospective"
resignation
can
be
withdrawn at any time before it becomes
effective, and it becomes effective when it
operates to terminate the employment or
the office-tenure of the resignor. This
general rule is equally applicable to
government servants and constitutional
functionaries. In the case of a government
servant/or functionary/who cannot, under
the conditions of his service/or office, by
his own unilateral act of tendering
resignation, give up his service/or office,
normally, the tender of resignation
becomes effective and his service/or
office-tenure terminated, when it is
accepted by the competent authority. In
the case of a Judge of a High Court, who
is a constitutional functionary and under
proviso (a) to Article 217(1) has a
unilateral right or privilege to resign his
office, his resignation becomes effective
and tenure terminated on the date from
which he, of his own volition, chooses to
quit office. If in terms of the writing under
his hand addressed to the President, he
resigns in praesenti, 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 of 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."

15. As regards the applicability of
the rule in Jai Ram; AIR 1954 SC 584, it
was stated:--

"49. In our opinion, none of the
aforesaid reasons given by the High
Court for getting out of the ratio of Jai
Ram case is valid. Firstly, it was not a
"casual" enunciation. It was necessary to
dispose of effectually and completely the
second point that had been canvassed on
behalf of Jai Ram. Moreover, the same
principle was reiterated pointedly in 1968
in Raj Kumar case. Secondly, a proposal
to retire from service/office and a tender
to resign office from a future date for the
purpose of the point under discussion,
stand on the same footing. Thirdly, the
distinction between a case where the
resignation is required to be accepted and
the one where no acceptance is required,
makes no difference to the applicability of
the rule in Jai Ram case."

D] In Balram Gupta v. Union of
India; 1987 Supp SCC 228, the concerned
officer was an accountant in the Photo
Division of the Ministry of Information
and Broadcasting. While holding that the
matter was covered by the decisions of
this Court in Raj Kumar; (1968 3 SCR
2108 INDIAN LAW REPORTS ALLAHABAD SERIES
857) and Gopal Chandra Misra; (1978) 2
SCC 301, this Court considered the
relevant guidelines and observed:

"12.