Deoki Nandan, J.
1. This is a plaintiffs second appeal in a suit for declaration that the plaintiff's 'so-called' resignation dated 4th February, 1964 was null and void, inoperative and illegal and for recovery of Rs. 1,200/- as arrears of pay etc., and for a further declaration that the plaintiff continues in service as House Visitor in the Malaria Eradication Programme and is entitled to his arrears of pay and allowances etc., till such time as the plaintiff is allowed to join his service. The suit was filed on 27th February, 1965 by presenting an application for permission to sue in forma pauperis. It was registered as a suit on 20th December, 1965. The trial Court decreed the suit by saying that the plaintiff is declared to be in service entitled to the arrears claimed and pendente lite and future emoluments, and further that 'the impugned resignation and order accepting the same are declared to be illegal, null and void.' The lower appellate court allowed in part the appeal filed by the defendant State of Uttar Pradesh and its officers who were the other defendants. The decree of the trial court was modified and the suit was decreed only to the extent that the plaintiff was declared to have continued in service up to 3rd February, 1964 and entitled to get his pay and other emoluments from 25th January, 1964 to 3rd February, 1964 at the rate claimed. The suit was dismissed in all other respects; the parties were directed to bear their own costs of both the courts, but the plaintiff was directed to pay the court-fees payable on the plaint which had been filed by him as an indigent person.
2. According to the plaintiff's case he was appointed as House Visitor on 15th December, 1960 at the N. M. E. P. Unit Azamgarh (East) by the Addl. Director of Health and Medical Services, U.P. Lucknow, 'through an open competition in which the plaintiff competed successfully.' The Anti Malaria Officer, Dr. Kashi Nath Singh, the third defendant, and the Senior Malaria Inspector Sri S. H. Zaidi, the fourth defendant, it was alleged, had been maliciously harassing the plaintiff although his work was praised by other officers. Ultimately on 4th February, 1964 while the plaintiff was going to the office, the Anti-Malaria Officer, Dr. Kashi Nath Singh and the Senior Malaria Inspector. Mr. Zaidi met him on the way and ordered him to sit in their jeep and after showering abuses on him and proceeding to a place near river Tamsa, they demanded his resignation on the spot by show of force and other threats and the plaintiff was forced to write a slip on the dictation of the Senior Malaria Inspector Mr. Zaidi. That letter was wrongly treated to be the plaintiff's resignation. It was obtained by coercion, undue influence and force. A part of it was actually written by Mr. Zaidi. The next day the plaintiff lodged a complaint with the Deputy Director of Malariology, Lucknow, defendant No. 6, 'giving the details of the drama played against the plaintiff with the request that he might not be relieved from his service'. No reply was received in spite of a reminder. The plaintiff never resigned and his resignation had not 'yet been accepted'. The 'so-called' resignation was no resignation. The plaintiff was forced out of his office and the Anti Malaria Officer and the Senior Malaria Inspector did not allow the plaintiff to do any work. It amounts to the plaintiffs dismissal by an unauthorised person. The so-called resignation has not been accepted by the proper authority. This is followed by the allegation about service of notice under Section 30 of the Code of Civil Procedure, after which, it is said that, the plaintiff received a letter signed by the Anti Malaria Officer accepting the, resignation on behalf of the Deputy Assistant Director of Malaria, and which was said to be illegal for having been accepted from a date prior to 4-2-1964. The date of accrual of the 'cause of action was stated to be the 4th February, 1964, when the resignation was said to have been taken forcibly from the plaintiff and the subsequent dates when the plaintiff was not allowed to perform his duties and lastly en 24th October, 1964 said to be the date of letter, without specifying which letter.
3. The defendants filed a common written statement. The defence was that the plaintiff was in temporary service as House Visitor in Anti Malaria Department, that he appeared in LL. B. previous examination in 1963, without taking permission from the department and took leave for the examination period on a false pretext; that when this came to the knowledge of the Anti Malaria Officer, the plaintiff apologised and took permission from the Anti Malaria Officer, Azamgarh, for study and for appearing at the LL. B. final examination, While giving that permission it was made clear to the plaintiff that the government work should not suffer but the plaintiff cared only for his studies and neglected government work; that on 4th February, 1964 when the Anti Malaria Officer along with Senior Malaria Inspector began checking of work in the plaintiff's circle, he the plaintiff, realised that he could not pull on in service, as he had done no work and that his services might be terminated or he may even, be dismissed which would leave a stigma on his future career. The LL. B, final examination was near and the plaintiff hoped topractise law thereafter and the service had no charm for him. In view of these considerations he voluntarily and willingly tendered has resignation which was later on accepted by the 'Prescribed Authority.' The plaintiff's allegation against the Anti Malaria Officer and the Senior Malaria Inspector was denied and it was stated that they bore no grudge or malice against the plaintiff nor did the Anti Malaria Officer rebuke him, or apply any force on him. The plaintiff was duly informed of the acceptance of his resignation and he handed over charge to another House Visitor. The plaintiff appeared at the LL. B. final examination in April, 1964. He then took training of pleadership and got enrolled in the High Court of Allahabad as pleader, filing, affidavit that he was not in any service. Thereafter he gave the 'illegal' notice under Section 80 of the Code of Civil Procedure and filed the suit with ulterior motive to derive unearned benefit. It was lastly alleged that although, the resignation was to be acted upon from 4th February, 1964 but for the purposes of payment of pay it was made clear that the plaintiff will get it only till 25th January, 1964. An additional written statement was filed after certain amendments were made in the plaint. The allegations of using coercion, undue influence and force against the plaintiff were specifically denied by the Anti Malaria Officer. It was pleaded that the cause of action mentioned in the notice under Section 80, C. P. C. was different from the cause of action alleged in the plaint and the suit was barred under Section 80, C. P. C. as no valid and legal notice was served on the defendants.
4. The following were the issues onon which the parties went to trial:
(1-A) Whether the plaintiff tendered his resignation voluntarily or under coercion and undue influence exercised by the defendants 1 and 2?
(1-B) Whether the impugned order dated 9-3-1964 accepting the resignation is illegal and invalid as alleged?
(2) Whether the plaintiff is entitled to any arrears of salary as alleged? If so,its amount?
(3) To what relief, if any, is the plaintiff entitled?
It appears from the proceedings before the trial court that issue No. 1 was originally framed as under:
(i) Whether the resignation dated 4-2-1964 is void for reasons alleged in the plaint? If so, its effect?
but was amended on 21st September, 1966, the date on which the case was finally heard by the trial court. It is noticeable in this connection that the order dated 9th March, 1964 accepting the plaintiff's resignation was not mentioned in the plaint even after its amendment, nor in the notice under Section 80, C.P.C. The details of the letter dated 24th October, 1964 referred to as the final date of the cause of action in the plaint are not given therein, but a post-card, Ext. 8, sent to the plaintiff endorses the copy of letter No. Rt-6/64/ 675 dated March 9, 1964 from the Dy. Assistant Director, Malariology Varanasi Zone, Varanasi; to the Anti Malaria Officer, Azamgarh (East). The endorsement of the Anti Malaria Officer forwarding the copy of the said letter is dated 23rd October, 1964. The original of the letter dated 9th March, 1964 from the Deputy Assistant Director Malariology, Varanasi Zone, Varanasi to the Anti Malaria Officer, Azamgarh (East) is Ext. A-16, The original resignation with an endorsement on its back dated 4th February, 5964 of the Anti Malaria Officer forwarding it to the Deputy Assistant Director, Malariology, Varanasi and the latter's remark thereon dated 17th February, 1964, is Ext. A-15 on the record. One further document which needs to be referred to is a letter dated 5th February, 1934 from the plaintiff to the Deputy Director of Malariology, U.P. Lucknow which is Ext. 20 on the record. It was sent by registered post the same day to the Dy. Director of Malariology, Lucknow, vide postal receipt Ext. 9, and the plaintiff's statement on oath.
5. The trial court found on issue No. I-A that the plaintiff did not tender his resignation voluntarily and was made to submit it under coercion and undue influence exercised by defendants Nos. 1 and 2. It may be here noted that the description of defendants Nos. 1 and 2 is only the official title of defendants Nos. 3 and 4 respectively; and defendant No. 1 may be treated to be identical with defendant No. 3 and defendant No, 2 to be identical with defendant No. 4. On issue No. 1-B the trial court held that in view of the findings that the resignation was illegal and inoperative in law there could have been no valid acceptance of the same and the order accepting it was, therefore, illegal and void. The trial court further proceeded to bold that the 'letter Ext. A-16 could hardly be said to be the specific order passed on the resignation letter after applying mind' that the aforesaid authority never informed the plaintiff that he accepted the resignation, that there was 'nothing on the record to show that the plaintiff was served with the above acceptance order', and further that it was only after the plaintiff gave notice under Section 80 of the Code of Civil Procedure that 'he was served with registered post-card Ext. 8 intimating that his resignation was accepted.' The trial court further proceeded to observe that even assuming that Ext. A-16 was the order accepting the resignation, the authority concerned could not have accepted the resignation from a prior date and the purported acceptance of the resignation which came into being on 4th February, 1964, with effect from 25th January, 1964 was itself bad in law. About Ext. 20, which is the letter dated 5th February, 1964 sent by the plaintiff to the Deputy Director, Malariology, Lucknow, the trial court observed that its despatch was proved by the postal receipt dated 5th February, 1564, Ext. 3, and it must be deemed to have been served on the addressee within 2-3 days, but no such letter was produced by the defendants and that, therefore, the contention of the defendants that no such letter was received by them from the plaintiff cannot be accepted. The trial court further went on to hold that the plaintiff was appointed by the Additional Director, Medical Health Service, while his resignation was accepted by the Dy. Assistant Director who was lower in rank than the Additional Director that there was no legal proof that the power of appointment or dismissal was delegated to the Deputy Assistant Director and the latter was competent to accept the resignation. The defendants' contention that the plaintiff had got himself enrolled as pleader by swearing that he was not in service was met by the trial court by saying that the plaintiff was not allowed to work and he was, therefore, not in actual service and thus the affidavit filed by him was not incorrect, and he could not be denied relief on any such ground. In the result the trial court held on issue No. 1-B that the impugned enter dated 9th March, 1964 accepting the resignation is illegal and void. On issues Nos. 2 and 3 the trial court held that in view of its finding on issues Nos. 1-A and 1-B, the plaintiff was entitled to all the reliefs claimed.
6. The lower appellate court held on the first point raised before it that there was no coercion and undue influence and that the plaintiff tendered his resignation out of his free-will; on the second point that the resignation of the plaintiff was accepted by a proper authority and was valid; and on the third point that the letter dated 5th February, 1964 could not be treated as withdrawal of the plaintiff's resignation; and further that although a government servant who resigns may request his appointing authority to permit him to withdraw the resignation, but it was entirely in the discretion of the appointing authority to allow or not to allow the government servant to withdraw his resignation, and in the instant case the withdrawal of the plaintiff's resignation was not accepted by the appointing authority. However, the lower appellate court found that the appointing authority could not have accepted the resignation with effect from 25th January, 1964 which was prior to the date on which the resignation was tendered, inasmuch as the appointing authority had no power to accept the resignation from a date prior to the date of the resignation itself. But that, according to the lower appellate court, did not vitiate the entire order, and that the plaintiff's resignation could be deemed to have been accepted with effect from 4th February, 1964. In the result, as already noticed above, the lower appellate court dismissed the suit except for modifying the date of resignation from 25th January, 1964 to 4th February, 1964 and holding the plaintiff entitled to his pay and allowance for the period 25th January, 1964 to 3rd February, 1964.
7. It was urged before me by the learned counsel for the plaintiff-appellant that the view of the lower appellate court that a resignation once tendered cannot be withdrawn without the permission of the appointing authority and that it was entirely in the discretion of the appointing authority whether to allow or not to allow the withdrawal of the resignation, was incorrect. Further, it was alleged that the letter of withdrawal of the resignation having been sent by the plaintiff-appellant the very next day by registered post acknowledgment due to the proper authority, the resignation must be deemed to have been withdrawn long before its acceptance by the Deputy Assistant Director, Malariology, Varanasi, even if it was assumed that the latter officer was the appointing authority vis-a-vis the plaintiff-appellant, and was as such authorised to accept the resignation. It was next urged that the view of the lower appellate court that although the acceptance of the resignation with effect from 25th January, 1964, a date prior to the date on which the resignation was tendered was bad yet it did not vitiate the acceptance of the resignation which could be deemed to have been accepted with effect from 4th February, 1964, is wholly unwarranted for once it is found that the impugned act of the administrative authority is bad or illegal, the court cannot substitute its own order for that illegal order,
8. Having heard learned counsel for the parties I find that the reasons given by the lower appellate court for the view taken by it are not sustainable in law, yet there are two insurmountable difficulties in the way of the plaintiff-appellant on account of which his appeal must fail, but before mentioning those difficulties I must first explain why I am of the view that the reasons given by the lower appellate court are bad in law,
9. In the absence of any statutory rules governing a matter, the submission of a resignation by an employee is like a proposal for bringing the contract of service to an end. According to Section 5 of the Indian Contract Act a proposal may be revoked at any time before the communication of its acceptance is complete as against the proposer, but not afterwards; and an acceptance may be revoked at any time before the communication of the acceptance is complete as against the acceptor, but not afterwards. According to Section 4 of the very same Act, the communication of a proposal is complete, when it comes to the knowledge of the person to whom it is made, the communication of an acceptance is complete, as against the proposer, when it is put in a course of transmission to him, so as to be out of the power of the acceptor and as against the acceptor, when it comes to the knowledge of the proposer. The communication of a revocation is said to be complete as against the person who makes it, when it is put into course of transmission to the person to whom it is made, so as to be out ofthe power of the person who makes it; and as against the person to whom it is made, when it comes to his knowledge. The plaintiff-appellant in the present case was a temporary employee of the Govt. of Uttar Pradesh. There does not appear to have been any rule regulating resignation from service by a temporary government servant. The only rule that I know of is the general rule relating to termination of service of a temporary government servant, published vide Notification No. 230/I I-B 1953, dated 30th Jan., 1953, under which notwithstanding anything to the contrary in any existing rules and orders on the subject the service of a government servant shall be liable to termination by notice in writing given either by the government servant to the appointing authority or by the appointing authority to the government servant, the period of such notice being one month, provided that in the case of a notice by the appointing authority it may substitute for the whole or part of the period of notice, pay, in lieu thereof; and further that it is always open to the appointing authority to relieve a government servant without any notice or accept notice for a shorter period without requiring the government servant to pay any penalty in lieu of notice.
10. Even if the resignation in question is equated with a notice by a temporary government servant under the said rule, all that the appointing authority could have insisted upon was to require the government servant to continue working for one month more or to insist that a resignation being not a proper notice under that rule it could not be acted upon as such and not to relieve him altogether. But since no form of notice is prescribed, a resignation of the kind submitted by the plaintiff-appellant in the present case could be treated by the appointing authority to be a notice under that rule and accepted forthwith without requiring the government servant to pay any penalty in lieu of notice and to relieve him forthwith from service. The rule does not make any provision for the contingency where a temporary government servant, having served such a notice wanted to withdraw the same, and that being so the matter would be governed by the general principles of law of contract referred to above. The appointing authority could not in a situation like that say that itwould not permit the government servant to withdraw the resignation once tendered; for, it is always open to the appointing authority even if the government servant withdraws the resignation, to terminate the services of the government servant, if he is unwanted, by serving the requisite notice under the very same rule. I do not, therefore, agree with the view of the lower appellate Court that it was in the discretion of the appointing authority to permit or not to permit the plaintiff appellant to withdraw his resignation. On the other hand I would hold that if the withdrawal of the resignation was proper, the appointing authority could not refuse permission to withdraw the resignation, if the withdrawal was received at any time before the acceptance of the resignation or before its being put in the course of transmission to the plaintiff-appellant so as to be out of its power to retract. The present case was not a case of that kind and the reason for holding that the acceptance of the resignation was valid and proper does not appear to be sound. However, one circumstance which must be noticed in this case is that according to the plaintiff's case as set out in the plaint, his appointing authority was the Additional Director of Health and Medical Services, U.P., Lucknow, who was impleaded as the fifth defendant in the suit. The letter dated 5th February, 1964, Ext. 20, which has been relied upon as the letter of withdrawal of the resignation, in the arguments before me, was addressed to the Deputy Director of Malariology, U.P., Lucknow. The resignation was accepted by the Deputy Assistant Director of Malariology, Varanasi Zone, Varanasi, according to the original letter dated 9th March, 1964 addressed to Anti-Malaria Officer, Azamgarh (East) by the Deputy Assistant Director of Malariology, Varanasi Zone, Varanasi, Ext. A-16, and the Post-card Ext. 8, whereby that order appears to have been communicated to the plaintiff-appellant with an endorsement dated 23rd October, 1964, which also shows that 'a copy of the acceptance of his resignation has already been sent on his home address vide this office letter endorsement No. E-4 dated 17-3-1964/ 14-4-1964', a copy of that communication referred to therein being Ext. A-17. From the endorsement of the Deputy Assistant Director, Malariology, Varanasi Zone, Varanasi, made in red ink at the back of the original letter of resignation.it does not appear that the plaintiff-appellant's letter dated 5th February, 1964 had been placed before him at least up to 17th February, 1974, the date on which that endorsement was made, for the Officer very fairly enquired from the Anti-Malaria Officer, Azamgarh (East), 'Seen. Enquire when work was not satisfactory why not recommended for termination.' Something must have passed between the Anti Malaria Officer, Azamgarh and the Deputy Assistant Director, Malariology, Varanasi between 17th February, 1964 and the 9th March, 1964. That is, however, not brought out from the record, but it also appears that the letter dated 5th Februar 1964, Ext. 20, purporting to be the withdrawal of his resignation by the plaintiff most probably never reached the Deputy Assistant Director, Malariology, Varanasi Zone. Varanasi. Jt was addressed to the Deputy Director of Malariology, U.P., Lucknow. The original of it is not on the record, and it was the case of the defendants that they could not trace out the same. The document that has been filed is said to be a copy of that letter and having been formally proved by the plaintiff-appellant, as also its despatch by registered post acknowledgment due, it has been marked Ext. 20. Now if the Deputy Director of Malariology, U.P., Lucknow was the plaintiff-appellant's appointing authority on the abolition of the post of the Additional Director of Medical and Health Services, U.P. with effect from July 7, 1961, as would appear from a letter dated 2nd June, 1966 which is paper No. 105-Ka on the record even the acceptance of the resignation had to be by that authority, in order to be valid, but the lower appellate court appears to have accepted the defendants' case that the Deputy Assistant Director of Malariology, Varanasi Zone, Varanasi, was the appointing authority of the plaintiff on the basis of an order passed on 8th January, 1962 by the Director of Medical Health Services, U.P., Lucknow. Under the circumstances it appears clear to me that the plaintiff-appellant's letter dated 5th February, 1964 was not addressed to the proper authority and since it has not been proved that it reached the hands of the Deputy Assistant Director of Malariology, Varanasi Zone, Varanasi, on any date before the communication of the acceptance of the resignation was complete against the plaintiff-appellant, the letter purportingto withdraw the resignation will have to be ignored. I may, however, add that here too I find myself unable to endorse the reasons given by the lower appellate court that it was not a letter of withdrawal of resignation. It does contain a complaint against the Anti Malaria Officer and the Senior Malaria Inspector, but it also does contain the sentence that the 'said resignation may not be treated as a resignation' which can reasonably be construed as withdrawal of the resignation, whatever the reasons for the withdrawal may be and howsoever ill drafted its language.
11. Even if the letter dated 5th February, 1964, is supposed to have reached the appointing authority before the communication of its acceptance of the plaintiff's resignation, the other insurmountable difficulty in the case is the fact, that the validity of the order of acceptance of the resignation has not been challenged in the notice under Section 80 and the relief proposed to be claimed in the suit, as specified in the notice does not mention the order accepting the resignation. The relief proposed to be claimed, as specified in the notice is that the so-called resignation dated 4-2-1964 be declared null and void, ineffective and illegal. The whole notice proceeds on the basis that the resignation had not been accepted till then. 7th November, 1964 is the date of the notice. Although the second and the third reliefs as specified in the notice and proposed to he claimed in the suit do talk of an award of arrears of salary and a declaration that the notice giver continues in service and entitled to his arrears of pay pen-dente lite and future, the cause of action or the foundation or ground for the claim of that relief, is not any invalidity of any order of acceptance of the resignation, but the invalidity of the resignation itself. Indeed, there is no mention of any withdrawal of the resignation. All that is said in paragraph 8 is that the notice giver lodged a complaint to 'D.D. Malaria Lucknow' with the request that he might not be relieved from his service and in paragraph 9 that after giving reminder no answer was given to the notice giver, It appears to me highly probable that the plaintiff-appellant evaded service of the communication accepting his resignation, vide-endorsement dated 17th March, 1964/14th April, 1964, copy of which is Ext. A-17. May be it was not received by him. Even so theplaintiff-respondent did receive the postcard dated 23rd October, 1964 which was sent to him by registered post. The several endorsements of the post Office show that the post-card remained in circulation in an attempt to deliver it to the plaintiff-appellant for quite some time and appeals to have been received by the plaintiff-appellant only after he had sent out the notice under Section 80. The plaintiff having received that communication he should have amended his notice under Section 80, C. P. C. by serving a fresh notice and also challenging the acceptance of his resignation by the order dated 9th March, 1964, of the Deputy Assistant Director, Malariology, Varanasi Zone, Varanasi, and specifying the ground on which he challenged its validity and making it the basic cause of action for the suit. But the plaintiff, who it may be observed had started practice as a lawyer by that time, did nothing of the kind and filed the suit on 27th February, 1965 and there too as already noticed in the recital of the facts of the case, the cause of action pleaded did not specify the order dated 9th March, 1964. All that was said was that after giving of the notice under Sec. 80, C.P.C. 'the plaintiff received a letter from the office of A.M.O. signed by defendant No. 3 accepting the resignation on behalf of the Deputy Assistant Director of Malaria. This is a deliberate misreading of the post-card and even the date of the endorsement of the Anti Malaria Officer which has been specified as the date of accrual of the cause of action for the suit has been given to be 24th October, 1964, when in fact the date of the endorsement of the post-card is 23rd October, 1964.
12. In view of these facts, even if the acceptance of the plaintiff's resignation by the Deputy Assistant Director of Malariology, Varanasi Zone, Varanasi, was bad on any such ground as discussed above, the suit cannot yet succeed for want of a valid notice under Section 80 C. P. C., for that order cannot be declared to be illegal unless a declaration was claimed to that effect, and a declaration to that effect could not be claimed in the suit unless it was specified in the notice as one of the reliefs proposed to be claimed in the suit, and the grounds on which or the cause of action of the same were duly specified in the notice; and if that declaration cannot be granted the relief for a declaration that theplaintiff continues to be in service or that he is entitled to any salary could not also be granted in face of that order, which very much existed although the plaintiff sought to make it out in his notice under Section 80, C. P. C. that his resignation had not till then been accepted. The cause of action pleaded was that the resignation was taken from the plaintiff by coercion and undue influence. That plea has been negatived by the lower appellate court, and it has not been shown to me that the finding of the lower appellate court on that point suffers from any error of law.
13. Further, it appears to me that the post which the plaintiff was holding was temporary post, carrying a basic pay of Rs. 62/- per month only. It is not clear whether the post exists. It may be that the post has been abolished and does not exist any longer. The plaintiff had already completed his LL. B. final and had already started practising as a lawyer, when the suit was filed, I have no reason to think that he has left his practice at the bar and wants to go back to the post of a House Visitor in the Malaria Eradication Programme even if the programme continues and the post continues to exist. I have grave doubts as to that.
14. I accordingly dismiss the appeal, but in the circumstance, I make no order as to costs.