Daya Ram Bhargava v. State of U. P. — 1968 DIGILAW 360 (ALL)

JUDGMENT Jagdish Sahai, J. - This special appeal is directed against the judgment of G. C. Mathur, J. dated 9-9-1968 dismissing Writ Petition No. 1877 of 1968 filed by the appellant. 2. By means of the writ petition aforesaid the appellant has challenged the appointment of Sri Radha Raman Bhargava as the Pricipal of the Kishori Raman Intermediate College, Mathura on the ground that he was related to Sri K. P.. Bhargava and for that reason could not be appointed in view of the bar created by the provisions of rule 4 of Chapter III of the U. P. Intermediate Education Act. That rule reads :- "No teacher shall be appointed whether in a temporary or clear vacancy in an institution who is related to any member of the Committee of Management or the Principal or Headmaster, nor shall a Headmaster or Principal be appointed in an institution who is related to any member of the Committee of Management." 3. Admittedly Sri Radha Raman Bhargava was related to Sri K. P. Bhargava but before his appointment was made or even his name recommended by the Selection Committee, Sri K. P. Bhargava on 28th of March, 1968 resigned from the membership of the Management Committee of the aforesaid institution. The institution is a society registered under the Societies Registration Act. G. C. Mathur, J. took the view that it being disputed that Sri K. P. Bhargava tendered his resignation on 28th of March, 1968, that is, before Sri Radha Raman Bhargava was appointed and it being alleged that the letter bearing the date 28th of March, 1968 had been ante dated, the case should be fought out in a civil court of original jurisdiction where evidence could be recorded. He, therefore, dismissed the writ petition. 4. Mr. S. C. Khare who has appeared before us for the appellant has contended that even if it be assumed that the resignation was submitted by Sri K. P. Bhargava on 28th of March, 1968 he would be deemed to have continued as a member of the Managing Committee until his resignation was accepted which according to Mr. Khare would be subsequent to the appointment of Sri Radha Raman Bhargava. (The exact date is not known) . 5. In our opinion there are no merits in this submission. Khare would be subsequent to the appointment of Sri Radha Raman Bhargava. (The exact date is not known) . 5. In our opinion there are no merits in this submission. It is clear from the resignation submitted by Sri K. P. Bhargava that he had resigned "with immediate effect." In his capacity as a member of the Management Committee Sri K. P. Bhargava was not holding a public post nor was he holding any office of "honour". He was only rendering honorary public service by joining voluntarily and without any remuneration the Managing Committee of an educational institution. There was no obligation legal or moral on his part to become a member of the Managing Committee or to continue on it. He was free to resign at will. There were no rules which governed the matter of his resignation. 6. That being the position we are satisfied that it was open to Mr. Bhargava to resign at any time and the resignation had to take effect on the date when he wanted it to take effect. 7. He unequivocally submitted this resignation "with immediate effect". The authority to whom the resignation was addressed could not have compelled Mr. Bhargava to continue as a member of the Managing Committee nor he could have refused to accept the resignation. That being the position it is obvious that the resignation would take effect immediately Mr. Bhargava wanted to be relieved. 8. It is true that in case of Government servants or members of the Municipal Board or the District Board a resignation comes into effect only when it is accepted but that is because of the statutory provisions that deal with the matters of such resignation. As for example Section 47 of the U. P. Municipalities Act which provides for the resignation of the President. That provision reads : "Sec. 47 (1) A President of a Board wishing to resign may forward his written resignation through the District Magistrate- (a) where he is the President of the Board of a city, to the State Government, and (b) where he is the President of any other board, to the Prescribed Authority, (2) On receipt by the board of information that the resignation has been accepted by the State Government or the Prescribed Authority, as the case may be, such President shall be deemed to have vacated his office." 9. Similarly Section 24 of the Kshetti a Samitis and Zila Parishads Adhiniyam, 1961 which deals with the resignation of the Adhyaksha, Upadhyaksha or Members, reads as under :- "Sec. 24 (1) An Adhyaksha, Upadhyaksha or any member under clauses (ii) , (iv) and (v) of sub-sec. (1) and sub-sec. (2) of Section 18 may resign his office by notice in writing addressed, in the case of the Adhyaksha to the State Government and in other cases to the Adhyaksha and delivered to the Mukhya Adhikari of the Zila Parishad. (2) The resignation of the Adhyaksha shall take effect on and from the date on which the sanction thereto of the State Government is received in the office of the Zila Parishad and the resignation of an Upadhyaksha or member shall take effect on and from the date on which the resignation is accepted by the Adhyaksha." 10. Again to illustrate the point further a look may be had at Article 563 of the Civil Service Regulation which reads :- Article 563. The resignation of the Civil Service by a Lieutenant Governor or Judge of a High Court shall not be accepted unless his resignation of his office is at the same time tendered and accepted." 11. Similarly paragraph 505 of the Police Regulation reads :- "A police officer is entitled to resign on giving two months' notice but the Superintendent of Police need not insist on this notice if the reason for wishing to resign is satisfactory and the officer can be immediately spared. The full term of notice should be insisted on if an officer wishes to resign while an inquiry is being made into his conduct and the inquiry may lead to his prosecution or dismissal." 12. Article 309 of the Constitution of India provides that :- "Subject to the provisions of this Constitution, Acts of the appropriate Legislature may regulate the recruitment, an,I conditions of service of persons appointed, to public services and posts in connection with the affairs of the Union of any State : ....................... " 13. Similar were the provisions of Section 241 (2) and (3) of Government of India Act. It was held by the Federal Court in Suraj Narain Anand v. The North West Frontier Province, A.I.R. 1942 Federal Court 3 that the expression "conditions of service" include conditions under which a person can resign, or be dismissed or be removed. " 13. Similar were the provisions of Section 241 (2) and (3) of Government of India Act. It was held by the Federal Court in Suraj Narain Anand v. The North West Frontier Province, A.I.R. 1942 Federal Court 3 that the expression "conditions of service" include conditions under which a person can resign, or be dismissed or be removed. Therefore, when Article 309 or Section 211 (2) and (3) provide for making provisions for the conditions of service of a Government servant, they contemplate statutory rules being framed dealing with resignations of Government servants. In almost all the rules relating to Government servants it has been provided that a resignation will take effect only on the date on which it is accepted. This rule is based upon sound public policy. When a person enters Government service or the service of a statutary corporation or of a autonomous body like the District Board and the Municipal Board, he enters into either an express or implied contract by virtue of which he undertakes to abide by the inks framed governing the conditions of his service. He receives salary and other benefits from the Government or the corporation or the autonomous body and for that reason loses the freedom to quit at will. In such cases administrative convenience and public policy require that a servant should be relieved of his office only after the resignation has been accepted and the Government or the Corporation or the autonomous body has enabled itself to make proper arrangements for the substitute. That principle, however, cannot be applied to a case of institution where a person renders only voluntary and honorary service and there is no element of quid pro quo involved in the relationship of the member and the managing committee. The view that we are taking finds some support from Bahori Lal Paliwal v. District Magistrate Bulandshahr, 1956 ALJ 421: In this case the Chairman of a Town Area Committee had resigned but before the resignation was accepted he changed his mind and withdrew the resignation. The District Magistrate, however, accepted the resignation notwithstanding its withdrawal and the Full Bench which decided that case held that the order of the District Magistrate was a nullity. 14. The District Magistrate, however, accepted the resignation notwithstanding its withdrawal and the Full Bench which decided that case held that the order of the District Magistrate was a nullity. 14. In Jailal v. Union of India, A.I.R. 1954 SC 586 it was observed as follows by the Supreme Court :- "It may be conceded that it is open to a servant who has expressed a desire to retire from service and applied to his superior officer to give him the requisite permission to change his mind subsequently and ask for cancellation of the permission thus obtained, but he can be allowed to do so so long as he continues in service and not after it has terminated." 15. In this case Jai Lal had expressed a desire to be permitted to retire before attaining the age of superannuation. However, before permission was accorded he withdrew the request and the Supreme Court made the observation that we have quoted above. What we have said above also seems to be the general law. In Articles 885 and 885 page 868 of the American Jursiprudence-Volume 13 the following proposition of law has been stated :- "Art. 885. Since an officer may resign, as a rule, at pleasure, no action on the part of the corporation is essential to make his resignation effectual. Acceptance thereof by the directors or governing body is not required. When he tenders his resignation to the proper corporate authorities to take effect immediately, the resignation is complete, although it is not acted on by the corporation or entered in its books. In case the resignation of a corporate officer is offered to take effect on acceptance, however, it is essential that action shall be taken thereon, and a formal acceptance recorded." "Art. 886. According to some authorities, a resignation by an officer of a Corporation takes effect immediately and is not dependent upon the appointment of a successor in office, even though a bylaw provides that the office shall be held until a successor is appointed. There are authorities, however, which have taken the view that where the bylaws provide that a corporate officer shall continue to hold office until the election of his successor, the resignation of such an officer does not take effect until then." (The word "Bylaws" has been italicised by us) . 16. There are authorities, however, which have taken the view that where the bylaws provide that a corporate officer shall continue to hold office until the election of his successor, the resignation of such an officer does not take effect until then." (The word "Bylaws" has been italicised by us) . 16. To the same effect are the observation made in Flalsburys law of England Volume 18, paragraph 112 page 60, which reads :- "The right of a member to terminate his membership of a registered society or branch must be ascertained according to the provisions in the rules. If there is no provision on this matter,-it would seem that a member can resign his membership at any time. The resignation need not be accepted by the society, and therefore cannot be withdrawn after it has been received. It would also seem that if by the rules notice of withdrawal is required, but no particular form is prescribed, and it is not stated to whom notice is to be given, parol notice given by a member to the secretary or an officer or other person through whom the original contract with the society was made is sufficient." 17. The rule that a resignation should in a case like the one before us be effective from the date it is sought to be made effective is based on the fundamental principle that no person can be compelled to work against his will when he gets nothing in return for it and when he has not bound himself to work until relieved. That being the position we find no merits in the submission of Sri Khare that even though Sri K. P. Bhargava was voluntarily serving the institution in an honorary capacity and had not in any manner bound himself to serve until he was relieved, his resignation though made "with immediate effect" would be effective only from the date it was accepted. No authority or legal principle has been brought to our notice which can justify any restriction on Mr. Bhargava's freedom to terminate his membership of the Committee at will. 18. No other submission has been made be-fore us. 19. We, find no merits in this special appeal and dismiss it.