JUDGMENT Nikhil Nath Bhattacherjee, J. 1. In this application under Article 226 of the Constitution, moved with notice upon the respondents who duly made appearance and contested the case, the questions that arose for consideration are (1) What is the effect of a resignation tendered by a Commissioner/Councillor of a Municipality? (2) Who is the competent authority to accept the resignation? and (3) Whether the resignation once tendered without specifying any date for taking effect can be withdrawn subsequently. 2. On the factual aspect it appears that the petitioner 'is the elected Commissioner of Ward No. 9 of Bangaon Municipality as per certificate of election issued by the competent authority on 28th May 1990. While working as such Commissioner, the municipality by its resolutions assigned to the petitioner the work of members of different sub-committees. On 27th August 1994, the petitioner submitted a letter of resignation to the Chairman respondent No.3 herein with a copy to the local MLA, Sri Bhupendra Nath Seth. On the request of the said local MLA and on a second thought the petitioner on 29th August, 1994 submitted a letter of withdrawal of his resignation from the post of Commissioner. It is alleged that the letter of withdrawal having not been accepted by the Chairman, though tendered to him personally, was submitted before the Vice Chairman, respondent No. 4 herein. A copy of the letter of withdrawal was however sent to the Chairman under certificate of posting on the selfsame dak On 6th September, 1994, petitioner was surprised to get a letter from the Chairman intimating that he had accepted the resignation of the petitioner. Immediately thereafter petitioner's advocate drew attention of the Chairman as to the fact of withdrawal of the resignation and requested him not to act upon the purported acceptance and the petitioner be deemed to continue as a Commissioner of Ward No.9. But the respondent No.3 by his reply dated 13th September 1994 informed the advocate of the petitioner that the resignation had already been accepted by him on 6th September 1994. Aggrieved by the said decision of the Chairman the petitioner has prayed for the following reliefs: “(a) A writ or and/or in the nature of mandamus commanding the respondent Chairman to withdraw and/or cancel and/or rescind the purported order of acceptance of resignation being Annexure. Aggrieved by the said decision of the Chairman the petitioner has prayed for the following reliefs: “(a) A writ or and/or in the nature of mandamus commanding the respondent Chairman to withdraw and/or cancel and/or rescind the purported order of acceptance of resignation being Annexure. (b) A writ of declaration declaring that there has been no letter of resignation filed by the petitioner in view of its subsequent withdrawal before the purported and illegal acceptance. (c) A writ of declaration that the petitioner is still continuing as Commissioner on the basis of his election." 3. The Bengal Municipal Act, 1932 has been repealed by the West Bengal Municipal Act, 1993 (West Bengal Act XXII of 1993) with effect from 31st May. 1994. The new Act has been amended by the West Bengal Municipal (Amendment) Act 1994 (West Bengal Act XXX of 1994), with effect from 11th July, 1994. As the dispute or the cause of action under consideration arose sometime in August-September, 1994 there is no doubt that the old Act of 1932 has no manner of application to the same. 4. Mr. Bikash Bhattacherjee, learned Advocate appearing for the petitioner at the outset drew my attention to s. 60, sub-s. (3) and (4) of the West Bengal Municipal Act, 1932 which runs as follows: "60. Resignation of Chairman, Vice-Chairman or Commissioner. (3) A Vice-Chairman or a Commissioner may resign by notifying his intention to do so to the Chairman, who shall forthwith lay such notice before the Commissioner at a meeting. (4) On a resignation under sub-s. (2) or sub-s. (3) being accepted by the Commissioners at a meeting, the Chairman or Vice-Chairman or Commissioner as the case may be, shall be deemed to have vacated his office." 5. Mr. Bhattacherjee submitted that under the new Act there is no corresponding provision for resignation of a Commissioner/Councillor as would be evident from S. 21 of the Act wherein there are provisions for resignation of the Chairman and Vice-Chairman but not of the Councillors. Section 14, Sub-s. (1) and (2) which are relevant for our purpose run as follows: "14. Constitution of Board of Councillors. (1) The Councillors elected in a general election of a Municipality shall constitute the Board of Councillors. Section 14, Sub-s. (1) and (2) which are relevant for our purpose run as follows: "14. Constitution of Board of Councillors. (1) The Councillors elected in a general election of a Municipality shall constitute the Board of Councillors. (2) The Board of Councillors shall hold office for a period of five years from the date of its first meeting after the general election at which a quorum is present, unless dissolved or superseded earlier: Provided that the Board of Councillors shall continue in office till the next Board of Councillors assumes, unless dissolved or superseded earlier." 6. Drawing an analogy with the Members of Legislative Assembly and the State Council of Ministers, Mr. Bhattacherjee submitted that as an MLA working as a minister can resign from the Council of Ministers, but not from his office of MLA, so also a Councillor under the new Act can resign from the post of Chairman or Vice-Chairman if he has been elected to hold the office but not from the post of Councillor on the ground that he holds his post or office by virtue of the election by the people of his ward. 7. In respect of a resignation where no date is specified to take effect from, Mr. Bhattacherjee placed his reliance on the decision of the Supreme Court in Hal Ram Gupta vs. Union of India, reported in AIR 1987 Supreme Court, 2354. wherein the Supreme Court observed that the notice of resignation submitted by a public servant does not take effect immediately and that any time before the resignation is accepted the public servant concerned can withdraw the same. He also relied on the decision of Union of India vs. Gopal Chandra Misra, reported in AIR 1978 SC Page 694 wherein the Supreme Court observed that the general principle regarding resignation is that in the absence of a legal, contractual or constitutional bar it can be withdrawn at any time before it becomes effective. Applying this principle in the case of resignation of a Judge, the Supreme Court held that a constitutional functionary has an unilateral right or privilege to resign from his office but his resignation becomes effective and tenure terminated an the date from which he of his own volition chooses to quit the office. Mr. Applying this principle in the case of resignation of a Judge, the Supreme Court held that a constitutional functionary has an unilateral right or privilege to resign from his office but his resignation becomes effective and tenure terminated an the date from which he of his own volition chooses to quit the office. Mr. Bhattacherjee's contention is that Cauncillors are statutory functionaries and in absence of a provision in the statute enabling them to tender resignation, they can cease to serve as a Chairman of a Vice-Chairman but not from the office of Councilor before expiry of his term of office. He argues that if no date is mentioned in the letter of resignation from which it is to be effective, the letter is vague and cannot be acted upon and further that it can be withdrawn any time thereafter, Mr. Bhattacherjee also, questioned the competency of the Chairman to accept the resignation of the petitioner without at least placing the same before the Board of Councillors for consideration. Mr. Bhattacherjee painted out that when the resignation was quickly followed by withdrawal and both being before the Chairman, unilateral acceptance of the one ignoring the other only smacks of mala fides an the part of the Chairman. Mr. Bhattacherjee submitted that the resignation which was withdrawn long before acceptance cannot have any effect in the eye of law. 8. Mr. Arunava Ghash, learned advocate far the respondent No. 4 made his submissions in the same line as of Mr. Bhattacherjee. 9. Mr. L. C. Bihani, appearing for the Chairman, respondent No. 3 drew my attention to s. 31 of the Amendment Act, 1994 which came into force only in July, 1994 to highlight that under the amended prevision a Commissioner continuing in his office as such under the Bengal Municipal Act 1932, shall be deemed to be a Councillor under the new Act and "shall hold office as such unless he vacates or is removed from his office under this Act whichever is earlier." 10. Mr. Bihani laid stress an the words "shall hold office as such unless he vacates" to paint out that this vacation of office must be deemed to have occured the moment a resignation is submitted its acceptance being immaterial. To which Mr. Mr. Bihani laid stress an the words "shall hold office as such unless he vacates" to paint out that this vacation of office must be deemed to have occured the moment a resignation is submitted its acceptance being immaterial. To which Mr. Bhattacherjee sarcastically remarked that mere filing of a letter of resignation cannot he so sacrosanct as to severe all statutory relations immediately and automatically like the utterance of "three talaks" to snap a muslim marriage. Mr. Bihani had to agree that there is no provision in the Act of 1993 or the Amending Act of 1994 regarding the manner of acceptance of resignation of a Councillor or the authority who is competent to accept the same and that being, so. Mr. Bihani's submissions offer no answer how a resignation without specifying any date can be equated as vacation of office and there could be any question of its acceptance by the Chairman, particularly when the same had been withdrawn before acceptance. 11. I have given an anxious consideration to the whole matter and in my view there being no provision in the Statute specifying the authority who is to accept the resignation, acceptance of the resignation by the Chairman could not at all arise and further that a resignation without specifying a date to be effective cannot be taken to be vacation of the office of a Councillor. The resignation to become effective must be specific, unequivocal. sufficiently indicating clear and unambiguous intention when to take effect and in my view, something more than mere filing, some overt act, like failure to attend office etc. is also required to make the letter of resignation tantamount to vacating the office. And when the letter of resignation is promptly followed by a letter of withdrawal, in the scheme of the 1993 Act and 1994 Amendment Act, the letter of resignation must be deemed to be non-est and inconsequential. 12. Considering the facts, circumstances and the provisions of law involved as indicated above. I am of the opinion that in the said case the petitioner's resignation without specifying a date to take effect from, followed by his letter of withdrawal could not be accepted by the Chairman, he being not the competent authority to do so and such a resignation cannot be treated as vacating the office. 13. For the reasons aforesaid, the writ application succeeds. 13. For the reasons aforesaid, the writ application succeeds. Let a writ in the nature of mandamus be issued commanding the Chairman, Bongaon Municipality, respondent No. 3 to withdraw, cancel and rescind the purported order of acceptance of the resignation being annexure H to the writ application. It is herewith declared that in view of the subsequent withdrawal the resignation is without any effect and that the writ petitioner is still continuing as a Commissioner, Ward No.9 of Bongaon Municipality on the basis of his election. There shall be no order as to costs. The prayer for stay is considered and dismissed. Let a xerox copy of the judgment delivered today in the above matter be given to the learned Advocates for the respective parties on usual undertaking. Writ Application allowed.