Sarkaria, J.

1. 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.

2. Whether a High Court Judge, who sends to the President, a letter in his own hand, intimating to resign his office with effect from a future date, is competent to withdraw the 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 Art. 226 of the Constitution, restraining Shri Satish Chandra (hereinafter referred to as appellant 2) from functioning as a Judge of the Allahabad High Court.

3. 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.

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."

4. On July 15, 1977, appellant 2 wrote to the President of India another letter in these terms :

"To

The President of India, New Delhi.

Sir,

I beg to revoke and cancel the intention expressed by me to resign on Ist of August, 1977, 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."

4. 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 his D.O. No. 2/14/77.Jus., dated July 28, 1977. By a separate letter, appellant 2 cut short his leave and resumed duty as a Judge of the Allahabad High Court on July 16, 1977, and from July 18, 1977, he commenced sitting in the Court and deciding cases.

5. On August 1, 1977, Shri Gopal Chandra Misra, and advocate of the High Court, filed a petition under Art. 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 Art. 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 any 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. Satish Chandra to show under what authority he was entitled 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 Arts. 132 and 133(1) of the Constitution have been filed before this Court. Civil Appeal No. 2644 of 1977 has been preferred by the Union of India, and Civil Appeal No. 2655 of 1977 by Shri Satish Chandra.

6. A preliminary objection was raised by Shri Yogeshwar Prasad, learned counsel for the respondent, Shri Gopal Chandra Misra, that the Union of India has no locus standi to prefer an appeal against the order of the High Court. 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 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 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."

7. We find no merit in this objection.

8. 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 petitioners claim.

9. Mr. Soli Sorabji, Additional Solicitor-General addressed arguments 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 Court below.

10. As rightly pointed out by the learned Attorney-General, the Union of India is vitally interested in the case. It is the President of India who had appointed appellant 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 had held otherwise. The Union of India, therefore, has reason to feel aggrieved by the decision of the High Court.

11. In order to give a person locus standi to appeal on a certificate 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 question of law involved in the case, is of general importance and concerns the interpretation of the Constitution.

12. We are not concerned with the matter of incurring expenditure by the Union of India; whether it is justified, proper or not. We are surely of the view that the Union had a substantial interest in this proceeding. Thus, from every point of view, the Union of India is entitled to come in appeal to this Court and question the correctness of the High Courts finding on the question of law involved. We, therefore, overruled the preliminary objection, and requested the learned Attorney-General to proceed with his address.

13. 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 Art. 217(1), 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 other date. Since in terms of the letter, dated May 7, 1977, the Judge proposed to sever his link with his office with effect from August 1, 1977, he could not be said to have resigned his office within the meaning of Proviso (a) on May 7, 1977, or at any time before the arrival of the prospective date indicated by him.

(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 legal effect and could not sever the link of the Judge by 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."

14. This principle, according to Mr. Gupte, was enunciated by the Supreme Court as far back as 1954 in Jai Ram v. Union of India, A.I.R. 1954 S.C. 584 and followed by the Allahabad, Kerala, Delhi and Madhya Pradesh High Courts in these cases, Sanker Dutt Shukla v. President, Municipal Board, Auraiya and others, A.I.R. 1956 All, 70; Bahori Lal Paliwal v. District Magistrate, Buland shahar A.I.R. 1956 All. 511 [LQ/AllHC/1956/158] F.B.; M. Kunjukrishnan Nadar v. Honble Speaker, Kerala Legislative Assembly and others, A.I.R. 1964 Ker. 194 [LQ/KerHC/1964/37] ; Y. K. Mathur and another v. The Commissioner, Municipal Corporation of Delhi and others, A.I.R. 1974 Delhi 58; Bhairon Singh Vishwakarma v. Civil Surgeon, Narsimhapur (1971) L.I.C. 127 M.P. The same principle has been reiterated in Raj Kumar v. Union of India, (1968) 3 S.C.R. at P. 860.

15. Mr. Gupte further referred to the case, Rev. Oswal Joseph Reichel v. The Right Rev. John Fielder, Lord Bishop of Oxford, [14] A.C. 259, decided by the House of Lords in England, which has been relied upon by the High Court-and submitted that Reichels case stood on its own facts and was clearly distinguishable.

16. Mr. F. S. Nariman, appearing for appellant 2, adopted the arguments of Mr. Gupte. He reiterated, with emphasis, that the expression "resign his office" used in proviso (a), means "relinquish or vacate his office", and the requirement of this expression is not satisfied unless and until the writing sent by the Judge effects severance of the link between the Judge and his office and terminates his tenure. It is submitted that by holding that though the letter of resignation in its terms, would effect termination of the tenure prospectively from 1-8-77, yet it would be deemed to have caused immediately on its despatch to and receipt by the President on 7-5-77, itself, curtailment of the Judges tenure of office until 1-8-77, the High Court has engrafted in proviso (a), a wholly unwarranted fiction.

17. As against the above, Mr. Jagdish Swarup, learned counsel for the respondent has substantially reiterated the same arguments which found acceptance with the High Court (majority).

18. 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 Art. 217(1) indicate that this tenure can be terminated before the Judge attains the age of 62 years, in four contingencies, namely, where he -

"(i) resigns his office in the manner laid down in its cl. (a);

(ii) is removed from office in the manner provided in Art. 124(4) (vide its cl. (b));

(iii) is appointed a Judge of the Supreme Court (vide its cl. (c));

(iv) is transferred to any other High Court in India."

19. Here, in this case, we have to focus attention on cl. (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, cl. (a) will not operate to cut short or terminate the tenure of his office.

20. The 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 cl. (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 "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 until 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 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 become a fait accompli. Article 217(1), proviso (a) of the Constitution is a self-contained provision. It gives the Judge a unilateral right to cut short his tenure by following the procedure prescribed therein, of his own volition. Such a resignation to be effective does 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 Art. 217(1), proviso (a) sets 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.

21. 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 Art. 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 registration within the contemplation of proviso (a) This is the primary question that call 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.

22. Well then, what is the correct connotation of the expression "resign his office" used by the founding fathers of in proviso (a) to Art. 217(1)

23. "Resignation" in the dictionary sense, means the spontaneous relinquishment of ones own right. This is conveyed by the maxim : Resionatio est juris propit spontanea refutation (See Earl Jowitts 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 "lose hold of" the office (of Shorter Oxford Dictionary); and to "lose hold of office", implies to detach, "unfasten, undo or untie the binding not of link" which holds one to the office and the obligations and privileges that go with it.

24. 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 resignation (see e.g., American Jurisprudence, 2nd edn., Vol. 15A, page 80), although the act of relinquishment may take different forms or assume a unilateral or bilateral character, depending on the nature of the office and the 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 casual and effectual aspects of one and the same events.

25. From the above dissertation, it emerges that a complete and effective act of resigning office is, one which severs the link of the resignor with his officer and terminates its tenure. In the context of Art. 217(1) this test assumes the character of a devisive 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 a Judge upto the age of 62 years.

26. Before applying this test to the case in hand, it is necessary to appreciate the true nature of the letter dated May 7, 1977, sent by the Judge to the President.

27. 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 of 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 reads :

"I will be on leave till 31-7-1977. My resignation shall be effective on 1-8-1977".

28. 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 writers 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 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.

29. Thus tested, sending of the letter dated May 7, 1977 by the 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 Art. 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.

30. 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 the 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 (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 unless Constitution so provided".

31. With respect, we venture to say that this reasoning is convoluted logic spiralled up round a fiction for which there is no foundation in the statute. To say that the resignation or the relinquishment of his office by the Judge could not take place before 1-8-1977, 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 in 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 tacitum.

32. No. (1) is manifestly imcompatible with the letter and intendment of Art. 217(1), since by deeming the resignation to have taken place on a date different from the date chosen by the Judge, it subverts his exclusive constitutional right to resign his office with effect from a date of his choosing. No. 2 is equally unjustified. There is nothing in proviso (a) or elsewhere in the Constitution which expressly or impliedly forbids the withdrawal of a communication by the Judge to resign his office before the arrival of the date on which it was intended to take effect. Indeed, such a futuristic communication or 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 Art. 217(1).

33. Thus considered, it is clear that merely by writing the letter to the President on May 7, 1977 proposing to resign with effect from August 1, 1977 the Judge had not done all which he was required to do to determinate his tenure, of his own volition, under proviso (a) to Art. 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 office and thus delinked himself from it. He had not - as the learned Judges of the High Court have erroneously assumed - crossed the Rubicon - Rubicon was still afar, 85 days away in the hazy future. At any time, before the dead line (August 1, 1977) was reached, the Judge could change his mind and choose not to resign, and withdraw the communication dated May 7, 1977.

34. We have already seen that there is nothing in the Constitution or any other law which prohibits the withdrawal of a 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

35. In this connection, Shri Jagdish Swarup contended that, but for the words "President and Vice-President", the language of proviso (a) to Art. 217(1) is identical with that of proviso (a) to Art. 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 evolves a principle - proceeded the argument - whereby it permits a Judge who is a constitutional functionaries would misuse such implied power of withdrawal or 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 argued 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.

36. The contention appears to be misconceived. 38. The argument assumes that a tender of prospective resignation is always motivated by sinister consideration and, therefore, to permit its withdrawal is never in the public interest. We are unable to concede 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 intimation under his hand to the President proposing to resign from a future date, 2 months away, covering this interregnum by two months leave due to him, in the belief, founded on his doctors advice, that he is stricken with a malady which will progressively render him deal 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

37. 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 described as "a very unruly horse". Public policy, as Burroughs, J., put it in Fauntleroys case, "is a restive horse and when you get astride of it, there is no knowing where it will carry you". Public policy can, therefore, be a very unsafe, questionable 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 Gherulol Pariekhs 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 attempts 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.

39. Shri Jagdish Swarups argument that a right to withdraw such a resignation will have wide and unhealthy repercussions on the other constitutional functionaries, particularly the President, and encourage them to abuse this right, appears to be a false alarm. We are here considering the case of withdrawal of a "prospective resignation" by a Judge of the High Court and not of any other constitutional functionary. It may not be correct to say that whatever principle we evolve with reference to the interpretation of Art. 217(1), proviso (a), will automatically govern the withdrawal of such a prospective resignation by the President of India because the provisions of Art. 256 relating to a resignation by the President are not, in all respect, identical with those of Art. 217. There is no provision in Art. 217 corresponding to cl. (2) or cl. (1)(c) of Art. 56, and in this case in accordance with the well-settled practice of the Court, we refrain from expressing any opinion with regard to the interpretation and effect of those distinctive provisions in Art. 56.

40. We are also unable to agree with the High Court that mere sending 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 S.19 of the Transfer of Property Act is not attracted.

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, and 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.

42. 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). In that case, the plaintiff entered the service of the Government as a clerk in the Central Research Instt., Kassuli, on May 7, 1912. Rule 56(6)(i) of Chapter IX of the Fundamental Rules, which regulated the Civil Services provided that a ministerial servant may be required to retire at the age of 55, but should ordinarily be retained in service if he continues efficient, till the age of 60 years. The plaintiff was to 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 of 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 pay and the rest on half average pay - from 1st June, 1945, on 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 25-5-1947. Just 10 days before this period of leave was due to expire, the plaintiff on May 16, 1947 sent an application to the Director stating that he had not retired and asked for permission to resume his duties immediately. In reply, the Director informed him that he could not be permitted to resume his duties as he had already retired, having voluntarily proceeded on leave preparatory to retirement. The plaintiff made representations. Ultimately, the Government of India, by a letter dated 28-4-1948, rejected his representation repeating the reasons intimated by the Director earlier to the plaintiff.

43. In special appeal before this Court, two points were urged on behalf of the plaintiff - appellant. First, that under Rule 56(b)(i), the age of retirement is not 55 but 60 years, and before a Government servant could be required to retire at 55, it is incumbent upon the Government to be given him an opportunity to represent against his premature retirement in accordance with the provisions of S.240(3) of the Government of India Act, 1935; and since this was not done, the order terminating his service, was invalid. Second, that although the plaintiff on his own application, obtained leave preparatory to retirement, yet there was nothing in the Rules which prevented him from changing his mind at any subsequent time and expressing a desire to continue in service, provided he indicated this intention before the period his leave expired.

44. Mr. B. K. Mukherjee, J., (as he then was), speaking for the Court, negatived the first contention on the ground that since the plaintiff had himself sought permission for retirement at the age of 55 years, it was a useless formality to ask him to show cause as to why his services should not be terminated. While disposing of the second contention, which had lost its force in view of the Courts decision of the first point, the Court made these crucial observations :

"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 subsequent and ask for cancellation of the permission thus obtained; but, he can be allowed to do so as long as he continues in service and not after it has terminated".

The rule enunciated above was reiterated by this Court in Raj Kumar v. Union of India, (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 poenitentise 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.

45. 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, R. B. Misra, J., bypassed it casually on the short ground that the above extracted observation was only "casually made" by the Supreme Court in a case of retirement. M. N. Shukla, J., did not even refer to it. C. S. P. Singh, J., tried to distinguish it with the summary observation :

"Jai Rams case was a case of retirement, and the request for retirement required acceptance. The Act was not complete till accepted. In such a situation, the request could definitely be withdrawn This case is not helpful in case where no acceptance is required".

Before us, Shri Jagdish Swarup has reiterated the same argument.

46. In our opinion, none of the aforesaid reasons given by the High Court for getting out of the ratio of Jai Rams 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 Rai Kumars case. Secondly, a proposal to retire from service/office and a tender to resign office from a future date, for the purpose of the point under discussion stand on the same footing. Thirdly, the distinction between a case where the resignation is required to be accepted and the one where no acceptance is required, makes no difference to the applicability of the rule in Jai Rams case.

47. It will bear repetition that the general principle is that in the absence of a legal, 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 a Government servant/or functionary who cannot under the conditions of his service/or office, by his own unilateral act of tendering resignation, given 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 Art 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.

48. The learned Attorney-General has cited authorities of the Allahabad, Kerala, Delhi and Madhya Pradesh High Courts, wherein the rule in Jai Rams case was followed. The High Court has tried to distinguish these cases and in regard to some of them, said that they were 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.

49. The first of those cases is M. Kunjukrishnan Nadar v. Honble Speaker, Kerala Legislative Assembly, A.I.R. 1964 Ker. 194 [LQ/KerHC/1964/37] . The petitioner in that case became a member of the Kerala Legislative on election in February, 1960. On November 23, 1963, he wrote to the Speaker :

"Sir,

As I wish to devote more time for meditation and religious purposes, I shall not be able to continue as a Member of the Legislative Assembly, Kerala. So, I request you to kindly accept this letter as my resignation as a Member of this Assembly, to take effect from 1-12-1963."

50. On November 26, 1963, the Speaker read the letter in the Assembly, announcing thereby the petitioners resignation to take effect on December 1, 1963.

51. On November 29, 1963, the petitioner wrote to the Speaker :

"Sir,

In my letter dated 23-11-1963, I have expressed my intention to resign my membership of the Legislative Assembly from the 1st of December, 1963. After mature consideration, I feel that it will be proper not to resign at this juncture.

I, therefore, hereby withdraw may letter of resignation dated 23-11-1963".

This letter was received by the Speaker on November 30, 1963. This letter was not given need to, and a Notification was published in the Kerala Gazette dated December 10, 1963, saying that the petitioner "has resigned his seat in the Kerala Legislative Assembly from 1st December, 1963." The petitioner challenged this Gazette Notification, praying that it be declared null and void and of no effect. He claimed a further declaration that he continued to be a Member of the Kerala Legislative Assembly.

52. On these facts, Art. 190(3) of the Constitution, as it stood prior to its amendment by Constitution Amendment (Thirty-third Amendment) Act 1974, came up for interpretation. At that time, the material part of Art. 190(3) ran as under :

"(3). If a member of a House of the Legislature of a State -

(a) Becomes subject to any of the disqualification mentioned in cl. (1) of Art. 191; or

(b) resigns his seat by writing under his hand addressed to the Speaker or the Chairman, as the case may be, his seat shall thereupon become vacant."

50. It will be seen that at that time, there was no provision in this Articles requiring such resignation to be accepted by the Speaker before it could become effective. Clause (b) of Art. 190(3), as it stood at that time, was, but for the words "the Speaker or the Chairman" and the last phrase "his seat shall thereupon become vacant", identical with cl. (a) of the proviso to Art. 217(1). Indeed, what is expressly provided by adding the words his seat shall thereupon become vacant" in cl. (b) of Art. 190(3), is implicit in cl. (a) of the proviso to Art. 217(1).

51. Two questions arose for determination; (i) Whether the letter dated 23-11-63, constituted a valid resignation under Art. 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 petitioners 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 November 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 neutralisation of the latent vitality in the former letter deposited with the Speaker. The withdrawal nullifies the entrustment or deposit of the letter of resignation in the hands of the Speaker, which must thereafter be found to have become non est in the eye of law. The absence of a specific provision for withdrawal of prospective resignation in the Constitution or the Rules is immaterial as basic principles of law and procedure must be applied wherever they are relevant".

52. R. B. Misra, J., felt; "difficulty in agreeing with the observation (in the above case) that the letter of resignation to be effective on a future date remains deposited with the Speaker or remains a mute letter till the arrival of that date when alone it can speak with effect". Singh, J., also expressed that this Kerala case had not been decided on correct principles.

53. In our opinion, what has been extracted above from the decision in the Kerala case, correctly enunciates the principle that a prospective resignation remains mute and inoperative till the date on which it was intended to take effect is reached, and can be withdrawn and rendered non est at any time before such date.

54. The next decision worthy of notice is Y. K. Mathur v. The Municipal Corporation of Delhi, A.I.R. 1974, Delhi 58. In that case, two Municipal Councillors of the Corporation of Delhi sent their resignation letters on November 16, 1972 to the Mayor of the Municipal Corporation, resigning their seats. One of those letters was a resignation in praesenti and was dated November 16, 1972. The other letter of resignation sent by O. P. Jain, reads as under :

"I resign from my seat. Please accept.

Sd./- Om Prakash Jain 16-12."

55. This letter being in the nature of a post-dated cheque, was constructed as a letter of resignation to be effective from a future date, viz., December 16, 1972. On these premises, question arose whether this resignation could be withdrawn by the Member concerned before that date. Sachar, J., speaking for the Division Bench answered this question, in these terms :

"It is the free volition of the councillor concerned as to the date from which he wishes to resign. There is no logic in saying that even though a councillor deliberately mentions in his resignation letter that it should be effective from a given future date, he would nevertheless be deemed to have resigned from an earlier date, i.e., date on which the letter is delivered. This would be contrary to the deliberately expressed intention of the councillor to resign from a particular future date. But is there any prohibition that once the resignation letter has been sent which is to be effective from a future date it 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".

56. 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 Raj Kumar v. Union of India (ibid).

57. It was also contended - as has been argued before us - that if a resignation has been sent prospectively, the only effect is that the seat would become vacant from that date, but the resignation would be effective from, the date it was delivered to the competent authority. The Court repelled this argument with these pertinent observations :

"Under S. 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 occur when resignation is effective, and if - it is from future date both resignation and vacation of seat will be effective simultaneously".

58. The approach adopted to the problem by the Delhi High Court appears to be correct in principle, and meets our approval.

59. We do not want to add more to the volume of our judgment by noticing the numerous decisions of the English and American Courts that have been referred to by the High Court in its judgment. It will suffice to notice one of those cases, which appears to have been relied upon by the High Court "as the best authority" in support of its reasoning that the letter of resignation, dated May 7, 1977, by Appellant 2, had become "final or irrevocable" on that very day when it was received by the President. "Though he could not be asked to actually relinquish his post prior to 1-8-1977". That English case is Reichal v. Bishop of Oxford, [1889] 14 A.C. 259.

60. The facts of that case were as follows :

Scandal having arisen with regard to the conduct of a Vicar, he was informed by the Bishop that he must either submit to an inquiry or cease to hold his benefice. Thereupon, in accordance with a proposal made by the Bishop in the interests of the parish and in mercy to the Vicar, the Vicar on the 2nd of June executed before witnesses, but not before a notary, an unconditional deed of resignation and sent it to the Bishops Secretary on the understanding that the Bishop would postpone formal acceptance until the 1st of October. On the 10th June the Vicar executed a deed cancelling and revoking the deed of resignation, and on the 16th of July he communicated the fact to the Bishops Secretary. The Bishop after the revocation, signed a document dated the 1st of October accepting the resignation and declaring the vicarage void.The Vicar brought an action against the Bishop and the patrons of the benefice, claiming a declaration that he was Vicar, the resignation was void, and an injunction to restraint the defendants from treating the benefice as vacant.

The House of Lords, affirming the decision of the Court of Appeal (35 Ch.D. 48), held that the resignation was voluntary, absolute, validly executed and irrevocable and that the action could not be maintained.

The principal contention canvassed before the House of Lords by the appellant Vicar was that assuming the resignation to be valid, it was sought without the Bishops acceptance. The acceptance of the ordinary is absolutely necessary to avoid a living. Until acceptance the effect of the incumbents resignation is to make the benefice voidable, 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.

61. 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 resignation was delivered in pursuance of a mutual agreement which rendered formal or other acceptance altogether unnecessary; the terms of the agreement showing plainly that the Bishop not merely was ready to accept, but insisted upon having it, in order that it might receive full effect upon the 1st of October following. The agreement was perfectly lawful, it being entirely within the discretion of the Bishop to judge whether the adoption of proceedings against the appellant, or his unconditional resignation as from a future date, would most conduce to the spiritual interest of the parish. The appellant assented to the arrangement, and on the 2nd of June, 1886 did all that lay in his power to complete it ... He cannot in my opinion be permitted to upset the agreement into which he voluntarily agreed ... upon the allegation that there was no formal acceptance of his resignation till 1st of October, 1886".

Lord Herschell opined :

"I do not think the word acceptance means more than the assent of the Bishop, or that it need take any particular form. Now, in the present case, the Bishop had intimated to the plaintiff that he was willing to assent to his resignation, and it was in pursuance of his intimation that the resignation was placed in the hands of the Bishop. At the time ... the Bishop received it, and thence forward down to and after the time of the alleged revocation, the Bishop was an assenting party to the resignation".

62. While declining the contention of the appellant, the Noble Lord closed the discussion on the point with this significant reservation :

"It is, however, unnecessary in the present case to go to the length of saying that a resignation can never be withdrawn without the consent of the Bishop, for I am of opinion that it certainly cannot be so under circumstances such as those to which I have drawn attention".

63. Reichal is no authority for the proposition that on unconditional prospective resignation, without more normally becomes absolute and operative the moment it is conveyed to the appropriate authority. The special feature of the case was that Reichal had, of his own free will, entered into a "perfectly binding agreement" with the Bishop, according to which, the Bishop had agreed to abstain from commencing an inquiry into the serious charges against Reichal if the latter tendered his resignation. In pursuance of that lawful agreement, Reichal tendered his resignation and did all to 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 nudam poctum but 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 Reichals resignation had become absolute and irrevocable. No extraordinary circumstances of this nature exist in the instant case.

64. 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 or 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 to the President.

65. Accordingly, we allow these appeals, set aside the majority judgment of the High Court and dismiss the writ petition, leaving the parties to bear their own costs throughout.