# UNION OF INDIA v. SHRI GOPAL CHANDRA MISRA AND ORS

- **Citation:** [1978] 3 S.C.R. 12
- **Court:** Supreme Court of India
- **Decided:** 1978-02-15
- **Case number:** Civil Appeals Nos. 2644 & 2655 of 1977
- **Bench:** R. S. Sarkaria, A. C. Gupta, N. L. Untwalia, Jaswant Singh, S. Murtaza Fazal Ali
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/union-of-india-v-shri-gopal-chandra-misra-and-ors-7462
- **Pages:** 47

## Headnote

(~011stitution of India, Art. 217(1) proviso (a) "resign his office", interpretation-Iligh Court Judge's resignation letter intin1ati11g to have effect from a
future date, whether receipt by President,
1nakes resignation fait accompliRevocation of resignation prior to intimated date
of effect,
validity ofDoctrine of public policy, applicability to iudicial decisions.
The second respondent (appellant in CA 2655/77) Shri Salish
Chandra
\vrote to the President of India, on May 7, 1977, intimating his resignation
from the office of Judge of the Allahabad High Collrt, with effect from August
1, 1977.
On July 15, 1977, he again wrote to the President,
revoking his
earlier communication, and commenced deciding matters in Court from July
16, 1977.
On August 1, 1977 the first respondent Shri Misra, an advocate· of
the High Court. filed a petition under Article 226 of the Constitution, contending that the resignation of Shri Satish Chandra, having been duly communicated to the President of India, in accordance with Article 217(,1) Proviso (a)
of the Constitution, was final and irrevocable, and that the continuance of respondent No. 2 as a High Court Judge thereafter, was an usurpation of public
office.
The High Court allowed the petition holding that Shri Satish Chandra
was not competent to revoke his resignation letter.
Allowing the appeal by certificate,
HELD:
Per R. S. Sarkaria on behalf of (A. C. Gupta, N. L. Untwalia, Ja.nvant
SinRh, JJ and himself).
1. Resigning office necessarily involves relinquashment of the office which
implies cessation or termination of, or cutting asunder from the
office.
A
complete and effective act of resigning office is one which severs the link of the
resigner with his office and termina.tes its tenure. In the context of Art. 217(1)
this assumes the character of a decisive test, because the expression "res;gn his
office'' occurs in a proviso which excepts or qualifies the substantive clause fixing
the office tenure of a judge upto the age of 62 years.
[21 E-F)
2. Jn the absence of a legal, contractual or constitutional bar, an intimation
in writing sent to the appropriate authority by an incumbent, of his intention
or proposal to resign his office/post from a future specified date, can be withdrawn by him at any time before it becomes effective i.e., before it effects
termination of the tenure of the office/post, or employment.
Thi.<; general rule
equally applies to Government servants and constitutional functionaries.
In the
case of a Government servant, normally, the tender of resignation becomes
effective and his service. terminated, when it is accepted by the appropriate authority.
In the case of a High Court Judge·, who is a constitutiona1 fun~tionary
having under Art. 217(1), Proviso (a). a unilateral right or privilege to resign,
his resignation becomes effective on the date· from which he, of his own volition
chooses to quit office.
[27 E-G]
·
Jai Ram v. Union of India, A.J.R. 1954, SC 584 and Raj Kumar "· Union
of India. [19681 3 S.C.R. 857 followed.
..
M. Kunjukrishnan Nadar v. Hon'ble Speaker, Kerala Le7islative Assembly,
A.I.~. 1064 Kerala 194: Y. K. Ma·thur v.
The
Mrtnicipa
Corporation of
Deflu. A.J.R. 1974 Delhi 58, Sankar Datt Shrtkla v .. President, Municipal Board
Auraiya and Anr., A.J.R. 1956 All. 70 Bahorilal Paliwal
v.
Dist. Magistrat~
'
-
-
UNION v. G. c. MISRA (Sarkaria, J.)
13
Bulandshahr A.l.R. 1956 All. (511) F.B. : 1.L.R. (1956) 2 All.
593-F.B..
A
Bhairon Singh Vislnvakarma v. Civil
Surgeon
Narsifnhapur,
1971
Labour
Industrial Cases 127 M.P. approved.
Rev. Oswald Joseph Reichal v. The Right Rev. John Fielder, Lord Bishop
oj Oxford, 14 A.C. 259, distinguished.
'
3. A High Court Judge's letter addressed to the President intimating or notifying the writer's intention to resign his office as Judge, on a future date, does
noc and cannot forthwith sever the· writer from the office of the Judge, or terminate bis tenure. Such a 'prospective' resignation does not, before the indicated

## Text

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12
UNION OF INDIA
v.
SHRI GOPAL CHANDRA MISRA AND ORS.
February 15, 1978
[R. S. SARKARIA, A. C. GUPTA, N. L. UNTWALIA, JASWANT SINGH
AND S. MURTAZA FAZAL ALI, JJ.J
(~011stitution of India, Art. 217(1) proviso (a) "resign his office", interpretation-Iligh Court Judge's resignation letter intin1ati11g to have effect from a
future date, whether receipt by President,
1nakes resignation fait accompliRevocation of resignation prior to intimated date
of effect,
validity ofDoctrine of public policy, applicability to iudicial decisions.
The second respondent (appellant in CA 2655/77) Shri Salish
Chandra
\vrote to the President of India, on May 7, 1977, intimating his resignation
from the office of Judge of the Allahabad High Collrt, with effect from August
1, 1977.
On July 15, 1977, he again wrote to the President,
revoking his
earlier communication, and commenced deciding matters in Court from July
16, 1977.
On August 1, 1977 the first respondent Shri Misra, an advocate· of
the High Court. filed a petition under Article 226 of the Constitution, contending that the resignation of Shri Satish Chandra, having been duly communicated to the President of India, in accordance with Article 217(,1) Proviso (a)
of the Constitution, was final and irrevocable, and that the continuance of respondent No. 2 as a High Court Judge thereafter, was an usurpation of public
office.
The High Court allowed the petition holding that Shri Satish Chandra
was not competent to revoke his resignation letter.
Allowing the appeal by certificate,
HELD:
Per R. S. Sarkaria on behalf of (A. C. Gupta, N. L. Untwalia, Ja.nvant
SinRh, JJ and himself).
1. Resigning office necessarily involves relinquashment of the office which
implies cessation or termination of, or cutting asunder from the
office.
A
complete and effective act of resigning office is one which severs the link of the
resigner with his office and termina.tes its tenure. In the context of Art. 217(1)
this assumes the character of a decisive test, because the expression "res;gn his
office'' occurs in a proviso which excepts or qualifies the substantive clause fixing
the office tenure of a judge upto the age of 62 years.
[21 E-F)
2. Jn the absence of a legal, contractual or constitutional bar, an intimation
in writing sent to the appropriate authority by an incumbent, of his intention
or proposal to resign his office/post from a future specified date, can be withdrawn by him at any time before it becomes effective i.e., before it effects
termination of the tenure of the office/post, or employment.
Thi.<; general rule
equally applies to Government servants and constitutional functionaries.
In the
case of a Government servant, normally, the tender of resignation becomes
effective and his service. terminated, when it is accepted by the appropriate authority.
In the case of a High Court Judge·, who is a constitutiona1 fun~tionary
having under Art. 217(1), Proviso (a). a unilateral right or privilege to resign,
his resignation becomes effective on the date· from which he, of his own volition
chooses to quit office.
[27 E-G]
·
Jai Ram v. Union of India, A.J.R. 1954, SC 584 and Raj Kumar "· Union
of India. [19681 3 S.C.R. 857 followed.
..
M. Kunjukrishnan Nadar v. Hon'ble Speaker, Kerala Le7islative Assembly,
A.I.~. 1064 Kerala 194: Y. K. Ma·thur v.
The
Mrtnicipa
Corporation of
Deflu. A.J.R. 1974 Delhi 58, Sankar Datt Shrtkla v .. President, Municipal Board
Auraiya and Anr., A.J.R. 1956 All. 70 Bahorilal Paliwal
v.
Dist. Magistrat~
'
-
-
UNION v. G. c. MISRA (Sarkaria, J.)
13
Bulandshahr A.l.R. 1956 All. (511) F.B. : 1.L.R. (1956) 2 All.
593-F.B..
A
Bhairon Singh Vislnvakarma v. Civil
Surgeon
Narsifnhapur,
1971
Labour
Industrial Cases 127 M.P. approved.
Rev. Oswald Joseph Reichal v. The Right Rev. John Fielder, Lord Bishop
oj Oxford, 14 A.C. 259, distinguished.
'
3. A High Court Judge's letter addressed to the President intimating or notifying the writer's intention to resign his office as Judge, on a future date, does
noc and cannot forthwith sever the· writer from the office of the Judge, or terminate bis tenure. Such a 'prospective' resignation does not, before the indicated
future date is reached, become a complete and operative act of resigning his
office by the Judge within the contemplation of Proviso (a) to Article 217(1).
[22H, 23Al
4, Public policy can be a very unsafe, questionable and unreliable ground
for judicial decision. This doctrine can be applied only in a case where clear
and undeniable harm to the public is made out.
[24C-E]
Gherulal v. Malwdeo Das [1959] Supp. 2 S.C.R., 406, applie<l.
5. In substance, the Jetter dated May 7, 1977, addressed by appellant 2 to
the President, amounted to a proposal or notice of intention to resign at a future
daJte., and, before the arrival of that date (August 1, 1977), it did not constitute
a complete act of resignation having the jural consequence of severing the link
of the appellant v;ith the office of the Judge. and hence it had been validly
withdrawn by him as per his letter dated July 15, 197'7 addressed to the President,
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there being no constitutional or legal bar to such withdrawal. [33D-E]
D
Per S. Murtaza Fnzal Ali, J. (Dissenting)
1. 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 Art. 217(1)(a), the resigner
completely ceases to retain any control over it and becomes
functus officio,
though thei resignation may take effect from the date mentioned i.n the letter, or
-r
"if no such date is mentioned. from the date of the letter itself''. [54 EG]
E
The principles flowing as a logical corollary from the nature and character
of the privilege, right or power conferred by the Constitution on a Judge of a
High Court or other constitutional functionaries are :-
I. The concept o.f the accep:ance of resignation subn1ittcd by a High
Court Judge· is con1pletely absent from Article 217(1) (a), and the
effectiveness of the resignation does not deipend upon the acceptance
of the resignation by the President.
II. In view of the provisions of Article 217 ( 1) (a) and sin1ilar provision_~
in re~pect to high cons.titutional functionaries, the resignation once
submitted and communicated to the appropriate •authority, become..o;;.
complete and irrevocable and acts ex proprio vigore.
F
Ill Th~ resignation may be effective from a particular date but the
restgnor completely ceases to retain any control over it and becon1es
functus officio once the resignation is submitted and communicated
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co the. appropriate authority.
IV. The resignation contemplated by Art. 217(1)(a) is purely a unilateral
act and takes effect ipso facto once intention to resign is communicated to the President in writing and addres:;ed to him.
V. On a true· _interpretation of ~rticle 217(1)(a), a resignation having
H
been submitted and .con1mun1cated to the Presidt:nt, cannot be re-
~alled even though 1t .may be prospective in nature so as to come
into effect from a particular date.
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14
SUPREME COURT REPORTS
(1978] 3 s.c.R.
VI. The Constitution contains an express and clear provision for the inod.~·
in which a resignation can be made. It has deliberately omitted:to
provide for revocation or withdrawal of a resignation once submitted
and con1municated te the Pr~ident.
In the absence of such a provisiOn, the doctrine of in1plied po\vers cannot be
invoked to supply the omission. [56 C.H, 57 A-BJ
Rev. Oswald Joseph Raichal v. The Right John Fieldt'r, Lord Bfa!iop (}f
Oxford, 14 A.C. 259, Finch v. Oake (189.6) 1 Ch.D. 409, People of the State of
Illinois Ex. Ra/. B.S. Adarnowaki v. Otto Kerner, 82 A.L.R. 2nd Series 140~
G/ossop V. Glossop (1907) 2 Ch. D. 370; Bidi, Bidi Leaves and Tobacco Merchants Association, Gandia & Anr. v. The Slate of Bombay & Ors., A.I.R. 1962
S.C. 486; applied.
Sukhdeo Narayan and Ors. v. Municipal Conunissioner of Arrah Municipality
and Ors., A.I.R. 1956 Patna 367 and 373; and S1nt. Raisa Sultana Beg1un and
Ors. v. Abdul Qadir and Ors., A.I.R. 1966 All. 318 "t 321 Approved.
Y. K. Matbur v. The Municipal Corporation of Delhi. A.LR. 1974 Delhi 58,
distinguished.
M. Kunjukrishnan Nadar v. Hon'ble Speaker, Kerala, Legislative Assenibly,
A.LR. 1964 KeraJa 194, Ba/lorilal Paliwal v. District Magistrate, Bulandshahr
A.LR. 1956 All. 511 F.B. =I.LR. (1956) 2 All. 593 F.B. and Bhairon Singh
Vishwakanna v. Civil Surgeon, Narsirnhapur, 1971 Labour Industrial Cases 127
O
M.P. disagreed with.
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Union of India v. S.H. Sheth and Anr., (1977) 4 SCC 193, Corpus Juris
Secundum, Vol. 48 p. 973 and Vol. 67 p. 227; Jurisprudence by Paton 3rd Ed.
by Derham; Jurisprudence by Salmond, 12th Ed. by Fitzgerald, and American
Constitution edited by Corwin; referred to.
2. It is manifestly plain that there is no relationship of inr:.ster nnd servant,
employer and employee. between the President arid the Judge of the liigh Court,
because a Jud~ is not a Government servant so as
1to be governed by Article
310 of the Constitution. A Judge of the High Court appointed under Art. 217
ha5 a special status and is a constitutional functionary appointed under the provisions of the Constitution by the President. The n1ere fact that the President
appoints him does not make him an employer of the Judge, in appointing a
Judge, the President exercises certain constitutional functions a'> contained in
Article 217(1). It is, therefore, indisputable that a Judge of the High Court
enjoys a special status under the Constitution, because of the very high position
that he holds and the, digniity and decorum of the office that he has to maintain.
[37 D-HJ
Union of India v. Sankalchand Himatlal Sheth & Arlr., [1978] 1 S.C.R. 423;
followed.
CIVIL APPELLATE JURISDICTION : Civil Appeals Nos. 2644 & 2655
of 1977.
(From the Judgment and Order dt. 28th October, 1977 of the
Allahabad High Court in ·Civil Misc. Writ No. 1172 of 1977).
S. V. Gupte, Attorney General and Soli J. Sorabjee, Addi. Solicitor General for the Appellant in C.A. No. 2644 & R. P. Bhat, R. N.
Sachthey & Girish Ch1N1dra for the Appellant in C.A. Nti. 2644 &
Respdt. 2 in C.A. 2655/77.
H
· F. S. Nariman, S. P. Gupta, Harish Chandra, H. K. Puri, M. C.
D/lingra and Vivek Sethi for the Appellant iil C.A. 2655 & Respdt. 2
in CA 2644/77. .
.
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,
UNION v. G. c. MISRA (Sarkaria, J.)
15
Jagdish Swarup (in CA 2655 /77), Yogeshwar Prasad
(in CA
A
2644/77) and G. N. Verma, A. N. Srivastava, Mool Behari Saxel!fl,
Pramod Swarup, Miss Rani Arora & Miss Meera Bali for Respondent
No. 1 in both appeals.
The following Judgments were delivered
SARKARIA, J.-By a short Order, dated December 8, 1977, we (by
majority) accepted these two appeals and announced that a reasoned
judgment shall follow in due course.
Accordingly, we are now rendering the same.
Whether a High Court Judge, who semis to the President,' a letter
in his own hand, intimating to resign his office with effect from a
future date, is competent to withdraw th•o same before that date is
reached-is the principal question that falls for consideration in these
two appeals, directed against a judgment, dated October 28, 1977, of
the High Court of Judicature at Allahabad, allowing the writ petition
of Shri Gopal Chandra Misra, respondent herein, and issuing a direction under Article 226 of the Co'nstitution, restraining
Shri
Salish
Chandra (hereinafter referred to as Appellant 2) from functioning as
a Judge of the Allahabad High Court.
Appellant 2 was appointed to the High Court of Allahabad as
Additional Judge on October 7, 1963, and a permanent Judge on
September 4, 1967.
He will be attaining the age of 62 years on
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.
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/- Salish Chandra."
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16
SUPREME COURT REPORTS
(1978] 3 S.C.R·
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On July 15, 1977, Appellant 2 wrote to the President of Indi!l
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another letter in these terms :-
41TO
Sir,
The President of India,
New Delhi.
I beg to revoke and cancel the intention expressed by me to resigru
on 1st of August, 1977, in my letter dated 7th May, 1977. That com-
!llunication may very kindly be treated as null and void.
Thanking you and wishing to remain.
Yours sincerely
Sd/· Salish Chandra."
The receipt of this letter of revocation or withdrawal, dated July
15, 1977, was acknowledged by Shri T. C. A. Srinivasavardhan,
Secretary, Ministry of Law, Justice & Company Affairs, New Delhi.
as per hiB D.O. No. 2/14/77.Jus., dated July 28, 1977. By a separate
letter, Appellant 2 cut short his leave and resumed duty aB a Judge
of the Allahabad High Court on July 16, 1977, and from July 18,
1977, he commenced sitting in the Court and decidiqg cases.
On August 1, 1977, Shri Gopal Chandra Misra, an Advocate of
the High Court, filed a petition under Article 226 of the Constitution,
contending that the resignation, dated May 7, 1977, of Appellant 2,
having been duly communicated to the President of India in accordance with the provisions of Article 217 ( 1), proviso (a) of the Constitution, was final and irrevocable, and as a result, Appellant 2 had
ceased to be a Judge of the Allahabad High Court with effect from
May 7, 1977, or, at a·ny rate, with effect from August 1, 1977; therefore, his continuance to function as a Judge from and after August 1,
1977, was usurpation of the office of a High Court Judge, which was
a public office.
On these premises, the writ petitioner prayed for
a writ, order or direction in the nature of quo warranto calling upon
Mr. Salish Chandra to show under what authority he was e'ntitled to
function and work as a Judge of the High Court.
The petition came
up for final hearing before a Bench of five learned Judges of that
Court, which by a majority of 3 against 2, allowed the writ petition
and issued the direction aforesaid.
Against that judgment, these two
appeals, on a certificate granted by the High Court under Articles 132
and 133 ( 1) of the Constitution have been filed before this Court.
Civil Appeal No. 2644 of 19.77 has been preferred by the Union of
India, and Civil Appeal No. 2655 of 1977 by Shri Salish Chandra.
A preliminary objection was raised by Shri Yogeshwar Prasad,
learned counsel for the respondent, Shri Go pal Chandra Misra, that
the Union of India has no locus standi to prefer an appeal against the
.
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\
UNION v. o. c. MISRA (Sarkaria, J.)
17
Order of the High Court.
Simultaneously, with the raismg of this
objection at the bar, a petition to that effect was also presented to us,
directly.
The grounds of this objectio'n, as canvassed by Shri Yogeshwar Prasad, arc :-
(a) That the Union of India was joined merely
a pro
forma 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 agai'nst it;
(c) That the Union of India is rrot a person
interested;
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(d) That the appeal by the Union of India will not further any public policy; that it has already incurred
heavy expenditu!:\' in defe'nding the action of an individual person after he has relinquisl>od
his
office.
Such expenditure is not permissible and should not be
encouraged.
D
We find no merit in this objection.
The Union of India was impleaded as a responde'nt 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, addPossed arguments
E
before the High Court on behalf of the Union of India.
No objection
to the locus standi of the Union of India to contest the writ petition
was raised, at any stage, before the High Court. It is, therefore, not
correct to say that the Union of India was not a contesting party in the
CO'Urt below.
As rightly pointed out by the learned Attorney General, the Union
of India is vitally in~erested i'n 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 intimation to resign by the Judge, is valid and therefore, he continues to hold
the office of a Judge even after August 1, 1977, but the High Court
has !1eld otherwise.
The Union of India, therefore, has reason to feel
aggrieved by the decision of the High Court.
In order to give a person locus standi to appeal on a oortificate
granted 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
questio'n of law involved in the case, is of general importance and
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concerns the interpretation of the Constitution.
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We an;, not concerned with the matter of incurring expenditure
by the Union of India; whether it is justified, proper or not.
We are
18
SUPREME <;OURT REPORTS
[1978] 3 s.c.R.
A
surely of the view that the Unioh bad a substantial interest in this proceeding.
Thus, from every point of view, the Union of India is entitled to come in appeal to this Court and question the correctness ot
the High Court's finding on the question of law involved.
We, therefore, overruled the preliminary objectio'n, and requested the learned
Attorney-General to proceed with his address.
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The contentions advanced by the learned Attorney-General, Mr.
Gupte, on behalf of the Union of India, may be
summarised
as
follows
(i) 'Resignation' within the contemplation of Proviso
(a), to Article 217 (I), takes place on the date on
which the Judge of his own volition chooses to sever
his connection with his office, and not on any o:her
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 bot
b~ said to have resigned his office within the meaning
of Proviso (a) on May 7, 1977, or at any time before
the arrival of the prospective date indicated by him.
(ii) The letter, dated May 7, 1977, written and sent by
Appellant 2 to the President, read as a whole, is a
mere intimation of an intention to resign from
a
future date.
Before the arrival of that date, it was
not final and complete, nor a "'juristic" act, because
it had no legal effect and could not sever the link of
the Judge with his office or cut s;.>art its tenure.
(iii) Since the mere sending of the lette1, dated May 7,
1977 to the President, did not constitute a final and
complete ag 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
ro~sign, does not offend public interest.
The common law doctrine of public policy cannot be invoked
in such a case [Gheru Lal v. Mahadeo Das(')].
(v) The general principle is that in the absence of a provision prohibiting withdrawal, an intimation to resign
from a future date can be wthdrawn at a'ny time before it operates to terminate the employment or the
connection of the resignor with his office.
This principle, according to Mr. Gupte, was enunciated by the
Supreme Court as far back as 1954 in Jai Ram v. Union of lndia(');
and followed by the Allahabad, Kcrala, Delhi and Madhya Pradesh
(!} [1959] Supp. 2 S.C.R. 406,
(2) A.LR. 1954 S.C. 584.
I j
y
I
UNION v. G. c. MISRA (Sarkaria, !.)
19
High Courts in these cases: Sanker Dutt Shukla v. President, Municipal
Board, Auraiya & Anr. (1); Bahori Lal l'aliwal v. District Magistrate,
Bulandshahar('); M. Kunjukrishnan Nadar v. Hon'ble Speaker, Kerala
Legislative Assembly & Ors(3); Y. K. Mathur & Anr. v. The Commissioner, Municipal Corporation of Delhi & Ors.('); Bhalron . Si~igh
Vishwakarma v. Civil Surgeon, Narsimhapur(').
The same prmc1ple
has been reiterated in Raj Kumar v. Union of lndia( 6).
Mr. Gupte further referred to the case, Rev. Oswald Joseph Rdchal v. The Right Rev John Fielder, Lord Bishop of Oxford('), decided by the House of Lords in England, which has been relied upon by
the High Court-and submitted that Reichel's case stood on its own
facts and was clearly distinguishable.
A
B
Mr. F. S. Nariman, appearing for Appellant 2, adopted the arguC
ments of Mr. Gupte.
He reiterated with emphasis, that the expression
"resign his office" used in Proviso (a), J!!eans "relinquish or vaca.te his
office", and the requirement of this expression is uot 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
D
deemed to have caused immediately on its despatch to and receipt by the
President on 7-5-77, itself, curtailment of the Judge's tenure of office
up till 1-8-77, the High Court has engrafted in Proviso (a), a wholly
unwarranted fiction.
As a~ainst the above, Mr. Jagdish Swarup, learned counsel for the
Respondent has substantially reiterated the same arguments which found
acceptance with the High Court (majority).
E
Article 217 ( 1) fixes the tenure of the office of a High Court Judge
It provides that a Judge shall hold office; until he attains the age of 62
years. The three clauses of the Proviso to Article 217(1) indicate that
this tenure can be terminated before the Judge attains the age of 62
years, in four contingencies, namely, where heF
(i) resigns his office in the manner laid down in its clause (a);
(ii) is removed from his office in the manner provided
in
Article 124(4) [vide its clause (b)];
(iii) is appointed a Judge of the Supreme Court [vide its clause
(c)];
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(iv) is transferred to any other High Court in Jnd1a.
(1) A.LR. 1956 All. 70.
(2) A.LR. 1956 All. 511 F.ll.~I.L.R. (1956)2 All. 593 F.B.
(3) A.l.R. 1964 Kcrala 194.
(4) A.LR. 1974 Delhi 58.
(5) [1971] Labour Industrial Cases 127 M.P.
(6) [1968] 3 S.C.R. at p. 860.
(7) . 14 A.C. 259.
II
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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
mnst 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.
The main reasoning adopted by the learned Judges at 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, ta the President, fully satisfied the three-fold
requirement of clause (a) of the Proviso, and nathing 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".
Ct was a complete "juristic" act as immediately on its receipt by the
President on the 7th May 1977, itself, it had the effect of cutting short
the tenure of the Judge up till the 1st August 1977; and, in the absence of
a constitutional provision warranting that course, it could not be withdrawn or revoked even before the date, August 1, 1977, on which in
terms of the letter dated the 7th May, 1977, the resignation was to be
effective. Withdrawal is always linked with acceptance.
Where no
acceptance is required and the resignation has been made in accordance
with the prescribed procedure, the process gets exhausted and the resignation becomes a fait accomp!i. Article 217(1), Proviso (a) of the
Constitution is a self-contained provision. It gives the Judge a unilateral
right tci cut short his tenure by following the procedure prescribed therein, of his own volition. Such a resignation to be effective does not
require acceptance by the President. Article 217 does not give a right
to withdraw the resignation, once given in accordance with the manner
prescribed therein. Since Article 217 ( 1), Proviso (a) ~els out a complete machinery with regard to the resignation by a Judge, the right to
withdraw a resignation cannot be implied, the maxim being "expressum
facit cessare tacitum" (when there is express mention of certain things,
then anything not mentioned is excluded). Recognition of a right of
withdrawal of resignation will leave the door wide open to abuse and
offend public policy.
It may be observed that the entire edifice of this reasoning is founded
on the supposition that the "Judge" had completely performed everything which he was required to do under Proviso (a) to Article 217(1).
We have seen that to enable a Judge to terminate his term of office by
his own unilateral act, he has to perform three things. In the instant
case, there can be no dispute about the performance of the first two,
namely : (i) he wrote a letter under his hand (ii) addressed to the President. ' Thus, the first two pillars of the ratiocinative edifice raised by the
High Court rest on sound foundations. But, is the same true about the
third, which indisputably is the chief prop of that edifice ? Is it a co~
pleted act of resignation within the contemplation of Proviso (a) ? Th~s
is the primary question that calls for an answer. If the answer to this
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UNION v. G. c. MISRA (Sarkaria, !.)
21
question is found in the affirmative, the appeals must fail. If it be in the
negative, the foundation for the reasoning of the High Court will fail
and the appeals succeed.
Well then, what is the correct connotation of the expression "resign
his office" used by the founding fathers in Proviso (a) to Article 217-
(1) ?
'Resignation' in the Dictionary sense, means the spontaneous relinquishment
of
one's own right.
This is conveyed by the maxim:
Resionatio est juris propii spontanea refutatio (See Carl Jowitt's
Dictionary of English Law). In relation to an· office, it connotes the
act of giYing 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 kllot
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 up or
relinquish the office and the concomitant act of its relinquishment, arc
necessary to constitute a complete and operative resignation (see, e.g.
American Jurisprudence, 2nd Edn., Vol. !SA, page 80), although the
act of relinquishment may take different forms o< assume a unilateral
or bilateral character, depending on the nature of the office. and the
conditions governing it. Thus, resigning office necessarily involves relinquishment of the office which implies cessation or termination of, or
cutting asunder from the office.
Indeed, the completion of the resignation and the vacation of the office, are the casual and effectual aspects
of one and the same event
From the abovle dissertation, it emerges that a complete and
effective act of resigning office is, one which severs the link of the
resignor with his office and terminates its tenure. In the context of
Article 217 (I), this test assumes the character of a decisive test, because the expression "resign his office"-the. construction of which is
under consideration-occurs in a, Proviso which excepts or qualifies
the substantive clause fixing the, office-tenure of the Judge upto the age
of 62 years.
Before applying this test to the case in hand, it is necessary to
appreciate the true nature of the letter, dated May 7, 1977, sent by
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the Judge to the President.
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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 relinq~is~ment
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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:
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[1978] 3 s.c.R.
"I will be on leave till 31. 7 .1977. · My resignation shall be effective on 1.8 .1977.", The first sentence cannot be divorced from the
context of the other two sentences and construed in isolation. It has
to be read along with the succeeding two which qualify it.
Construed
as a whole according to its tenor, the. letter dated May 7, 1977, is
merely an intimation or notice o~ 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
porerilial resignation, but before the arrival of the indicated future date;
it is certainly not a complete and operative resignation because, by
itself, it did not and could not, sever the writer from the office of the
Judge, or terminate his tenure as such.
Thus tested, sending of the letter dated May 7, 1977 by Appellant
2 to the President, did not constitute a complete and operative resignation within the contemplation of the expression "resign his office" used
in Proviso (a) to Article 217(1). Before the arrival of the indicated
future date (August l, 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 !st
August, 1977", and "the vacation of a seat may be on (the) future
date", "because he made his choice to resign from !st August 1977",
yet, they hold that "the factum of resignation became com..rlete the
moment respondent 1 (Shri Salish Chandra) in his handwriting, sent a
letter of resignation to the President of India" and on 7 . 5 . 77, itself,
cut short the date of retirement of the Judge from 1-9-86 to 1-8-77,
and there could be "no withdrawal of the same unless the Constitution
so provided."
With respect, we venture to say that this reasoning is convoluted
logic spiralled up roupd a fiction for which there is no foundation in the
statute.
To say that the resignation or relinquishment of his office by
the Judge could not take place before 1 . 8 . 77, and yet. the factum of
resignation became complete on 7-5-77, would be a contradiction in
terms.
To get over this inherent contradiction, the High Court (by
majority) has introduced a two-fold fiction: (1) That if a written communication to the President. the Judge chooses to resign his office. from
a future date, the resignation will be deemed to be effective and complete from the moment the communication is sent to the President and
received by him.
(2) That since it has not been provided in Proviso
(a) or elsewhere in the Constitution. that such communication of a
"prospective" resignation can be withdrawn, its withdrawal would be
deemed to have been prohibited, on the maxim 'expressum facit cessare
taciturn.
No. 1 is manifestly incompatible with the letter and intendment of
Article 217 ( 1), since by deeming the resignation to have taken place
on a date different from the date chosen by the Judge it subverts bis
exclusive Constitntional right to resign, his office with effect front a
date of his choosing. No. 2 is equally unjustified. There is nothing in
Proviso(a) or elsewhere in the Constitution which expressly or implied-
'
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UNION v. G. c. MISRA (Sarkaria, !.)
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Jy forbids the withdrawal of a communication by the Judge to resign his
A
office before the arrival of the <late on which it has intended to take
effect.
Indeed, such a futuristic communication or prosp;x:tive resignation does not, before the indicated future date is reached, become a
complete and operative act of 'resigning his office' by the Judge within
the contemplation of Proviso (a) to Article 217 ( 1).
Thus considered, it is clear that merely by writing the Jetter to the
B
President on May 7, 1977, proposing to resign with effect from August
1, 1977, the Judge had not done all which he was required to do to
determine his tenure, of his own volition, under Proviso (a) to Article
217 ( 1). He had not, as yet, resigned his office on May 7, 1977, itself,
he had not done everything which was necessary to complete the requirement of the expression "resign his office". He had not relinquished
his otfice and thus delinked himself from it.
He had not-as the
C
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 not to resign, and withdraw
the communicaiton dated May 7, 1977.
We have already seen that there is nothing in the Constitution or
D
any other law which prohibits the withdrawal' of the communication
to resign from a future date, addressed by a Judge to the Presideni,
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 aJ11] Vice-President", the language of
Proviso
E
(a) to Article 217(1) is identical with that of Proviso (a) to Article
56( I) 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 envolves a principle--proceeded the argu-.
ment-·-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
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Constitutional functionaries would misuse
such implied power of
withdrawal of resignation. The President may hold the Parliament to
ransom and make a farce of Parliamentary sovereignty and the functioning; of the Constitution. On these premises, it was urged that public
policy demands that no such interpretation should be put on these Constitutional provisions which would lead to abuse of power by the Constitutional functionaries.
G
The contention appears to be misconceived.
The argument assumes that a tender of prospective resignatlon is
always motivated by sinister considerations and, therefore, to permit its
withdrawal is never in the public interest. We are unable to conce\le
this _as a rule of universal application. Any number of cases are conceivable where a prospective resignation is tendered with the best of
motives. A Judge renowned for his conscientiousness and forensic skill
may send an fotimation under his hand to tlie President proposing to
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SUPREME COURT REPORTS
[1978] 3 s.c.R.
resign from a future date, 2 months away, covering this interregnum by
two. months' leave due to him, in the belief, founded on his doctor's
advice, that he is stricken with a malady which will progressively n;.nder
him deaf in two months' time. The motive behind the tender is, that the
Judge feels that he will no longer be able to discharge his official duties
to the entire satisfaction of his conscience. But before the date on which
the prospective resignation is to take effect, a surgical operation completely and permanently cures him of the disease and restores his full
hearing power, and the Judge immediately thereupon, sends a communication withdrawing the tender of his resignation. Will not such withdrawal be in the interest of the public and justice to the Judge? Conversely, will not refusal of such withdrawal deprive the public of the
benefit of his forensic talents in exposition of law and at the same time
work hardship and injustice to the Judge?
It must be remembered that the doctrine of public policy is only a
branch of the common law, and its principles have been crystallised and
its scope well delineated by judicial precedents. It is sometimes des-,
cribed as "a very unruly horse". Public policy, as Burroughs, J. put it
in Fauntleroy's case, "is a restive horse and when you get astride of it,
there is no knowing where it will carry you". Pubilic policy can, therefore, be a very unsafe, quesiionable and unreliable ground for judicial
decision and Courts cannot, but be very cautious to mount this treacherous 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 palicy) under exceptional circumstances of a changing world, it is advisable in the
interest of stability of society not to make any attempt to discover new
heads in these days".
There are no circumstances, whatever, which
would show that the withdrawal of the resignation by the appellant
would cause harm to the public or even to an individual. The contention, therefore, is repelled.
Shri Jagdish Swarup's argument that a right to withdraw such a
resignation will have Wide and unhealthy repercussions on the other
Constitutional functionaries, particularly the President, and encourag-e
them to abuse this right, appears to be a false alarm.
W c arc here
considering the case of withdrawal of a 'prospective resignation' by
a Judge of a High Court and not of any other Constitutional functionary.
It mav not be correct to say that whatever principle we evolve with
reference to the interpretation of Article 217(1), Proviso (a), will
automatically govern the withdrawal of such a prospective resignation
by the President of India because the provisions of Article 56 relating
to a resignation by the President are not, in all rcspeci,5, identical with
those of Article 217. There is no provision in Article 217 corresponding to clause (2) or clause (1) (c) of Article 56, and in this case
in accordance with the well-settled practice of the court, we refrain
from expressing any opinion with regard to th!' interpretation and effect
of these distinctive provisions_ in Article 56.
UNION v. G. c. MISRA (Sarkaria, J.)
25
We are also unable to agree with the High Court that the mere sendA
ing of the letter, dated May 7, 1977 by the Judge to the President and
its receipt by the latter, constituted a complete juristic act. By itself, it
did not operate to terminate the office tenure of the Judge, and as such,
did not bring into existence any legal effect. For the same reason, the
principle underlying section 19 of the Transfer of Property Act is not
attracted.
The general principle that emerges from the foregoing conspectus,
is that in the absence of anything to the contrary in
the provisions
governing the terms and conditions of the office/post, an intimation in
writing sent to the competent authority by the incumbent, of his inten-
. tion or proposal to resign his office/post fmm a. future specified date,
can be withdrawn by him at any time before it becomes effective, i.e.
before it effects termination of the tenure of the office/post or the
employment.
This principle first received the imprimatur of this Court in the
context of a case of a self-sought retirement from service, in Jai Ram v.
Union of India (supra).