Full Judgment Text
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PETITIONER:
JYOTI PROKASH MITTER
Vs.
RESPONDENT:
HON’BLE MR. JUSTICE HIMANSU KUMAR BOSE, CHIEFJUSTICE, HIGH
DATE OF JUDGMENT:
09/11/1964
BENCH:
GAJENDRAGADKAR, P.B. (CJ)
BENCH:
GAJENDRAGADKAR, P.B. (CJ)
WANCHOO, K.N.
HIDAYATULLAH, M.
DAYAL, RAGHUBAR
MUDHOLKAR, J.R.
CITATION:
1965 AIR 961 1965 SCR (2) 53
CITATOR INFO :
RF 1971 SC1093 (4)
D 1974 SC2192 (143)
ACT:
Constitution of India, Art. 217 as amended by Constitution
(Fifteenth Amendment) Act, 1963-Dispute as to age of sitting
High Court Judge Decision taken by Home Minister and
approved by President-Evidence of appellant not before
President--chief Justice of India not formally consulted
-Decision whether satisfies terms of Art. 217(3).
HEADNOTE:
There was divergence between the appellant’s date of birth
as given at the time of his appointment as Judge of the
Calcutta High Court and as found in the records of the
public examinations at which he had appeared. The Union
Home Minister after correspondence with the parties
concerned including the Chief Justice of India and the
appellant determined the appellants date of birth to be
December 27, 1901 as found in the records of the appellant’s
Matriculation Examination. The President, by order passed
on May 15, 1961, approved the decision and the consequent
order that the appellant be asked to emit his office on
December 26, 1961 when be would reach the age of
superannuation. The Punjab High Court dismissed the
appellant’s writ petition challenging the order and the
Supreme Court dismissed in limine the petition for special
leave to appeal. Pursuant to the orders of the Union
Government the Chief Justiceof the Calcutta High Court
asked the appellant to demit his office on December 26,
1961, and after that date did not allot him any work. The
appellant thereupon filed a writ petition before the
Calcutta High Court under Art. 226 of the Constitution which
was dismissed. The Supreme Court granted him special leave
to appeal.
The appellant in his appeal contended that the age of a
Judge given by him at the time of appointment once accepted
by Government, could not again be called in question and in
any case could not be determined again by the Government by
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Executive order. The complexion of the controversy the
passing of the Constitution by adding cl. (3) to Art. 217
provided that any dispute as to the ago of a Judge of a High
Court would be decided exclusively and finally by the
president of India in consultation with the chief justice of
India. The Amendment Act also provided that the provision
shall be deemed always to have been in the Constitution.
The parties agreed that after the retrospective amendment
the main question for consideration was whether the order of
the Union Government determining the appellant’s age and
date of superannuation was an order which could be deemed to
have been passed under Art. 217(3).
HELD : (i) If a dispute is raised about the age of a sitting
Judge then it is desirable that the matter should be decided
by the President. Whether the dispute is genuine or not is
to be considered by the President in consultation with the
Chief Justice of India. But it is certainly in the
interests of the Judge himself, as much as in the interests
of the purity and
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reputation of the administration of justice that the dispute
should be settled. it could not be held that the age of a
Judge given by him at the time of ,,appointment could never
again be called in question. (65 E-F]
(ii)The Chief Justice of the Calcutta High Court was
justified in not allotting any work to the appellant after
December 26, 1961, as any judgments delivered by him after
the date would have been open to question as to their
validity. [66 B-C]
(iii)The judgment of the Punjab High Court dismissing
appellant’s ,writ petition did not operate as res judicata
as it was not on merits. [71 A]
(iv)Article 217(3) gave to the President exclusive power to
determine ,the age of a sitting Judge and divested the
courts of jurisdiction in this regard. The procedure to be
adopted was in the discretion of the President ,but the
provision to formally consult the Chief Justice of India was
man Also implicit in the Article, was the requirement that
the Judge concerned should have a reasonable opportunity to
give his version and ’Produce his evidence. [64 B-D]
(v)The provision having been expressly made retrospective
the appeal had to be decided on the basis that the order
passed by the President in the appellant’s case could be
treated as a decision under Art. 217(3), if, on merits, such
a conclusion was justified. [65 A]
(vi)The order of the Union Government passed on May 15,
1961 did not satisfy the requirements of Art. 217 (3) and
could not be held to be ,an order passed under the
provisions of that Article. The decision had been taken by
the Home Minister and that plainly was not a decision of the
President. The offer to allow the matter to be decided by
arbitration, and reopening of the matter after the decision
had been taken, cannot be ,easily assimilated to the
requirements of the Article. The informality of the
consultation with the Chief Justice of India also did not
squarely fit, in ,with the formal consultation which is
mandatory. [67 B-C, G-H; 68 A]
Srinivas Mail Bairoltva v. King Emperor, I.L.R. 26 Pat. 460
and Alexander Brogden and others v. The Directors of the
Metropolitan Rail.way Company (1876-7) 11 A.C. 666, referred
to.
(vii)The order was also not a proper order under Art.
217(3) because -the requirements of natural justice had not
been satisfied inasmuch as the President did not have before
him when he made the decision the evidence of the appellant.
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It is true that the appellant had refused to produce the
evidence on the ground that the Executive had no
jurisdiction to call into question and determine his age.
This contention of the appellant when raised was fully
justified as such a dispute in the legal situation which
them existed had normally to be determined by judicial
proceeding before the High Courts of competent jurisdiction,
and therefore his failure or refusal -to produce his
evidence could not be fairly pressed into. service against
’him. [69 D-F; 70 B]
The Court held that the appellant was entitled to a decision
by the President of India as to his age under Art. 217(3)
and passed orders in terms agreed to by both parties. [71 B-
F]
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 856 of 1964.
Appeal by special leave from the judgment and order dated
May 21/22, 1964 of the Calcutta High Court in Matter No. II
of 1962.
Me appellant appeared in person.
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C.K. Daphtary, Attorney-General, Ranadeb Choudhury, P. K.
Chatterjee, Somendra Chandra Bose and P. K. Bose, for
respondent No. 1.
C. K. Daphtary, Attorney-General, N. C. Chatterjee and R.
H. Dhebar, for respondent No. 2.
The Judgment of the Court was delivered by
Gajendragadkar, C.J. The short question which arises in this
appeal by special leave is whether the order passed by the
President of India on May 15, 1961, approving the action
which was proposed to be taken against the appellant, Jyoti
Prokash Mitter, amounts to a decision on the question about
the appellant’s age as a Judge of the Calcutta High Court
under Art. 217(3) of the Constitution. In the note placed
before the President along with its accompaniments it was
proposed that the appellant should be informed that his
correct date of birth had been determined to be December 27,
1901, and so, he should demit his office of puisne Judge of
the Calcutta High Court on December 26, 1961 on which date
he would attain the age of 60. The draft of the letter
which was intended to be sent to the appellant in that
behalf was also placed before the President. On the file,
the President made an order, "approved"; and the question is
whether this is an order which can be related to Art. 217
(3). It is true that this order was passed on May 15, 1961,
whereas clause (3) of Art. 217 which was added in the
Constitution by the Constitution (Fifteenth Amendment) Act,
1963, came into force on October 5, 1963. Section 4(b) of
the Amendment Act, however, provides that the said clause
shall be inserted and shall be deemed always to have been
inserted in the Constitution. In other words, in terms, the
insertion of the relevant clause is made retrospective in
operation. That is how it has become necessary to enquire
whether the order passed by the President on May 15, 1961
can be said to amount to a decision within the meaning of
the said clause.
Writ Petition No. 13 of 1962 from which this appeal arises
was filed by the appellant in the Calcutta High Court on
January 2, 1962. By his petition, the appellant claimed a
writ in the nature of mandamus and/or appropriate
directions, order or writs under Art. 226(1) against
respondent No. 1, the Chief Justice of the Calcutta High
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Court, requiring him to recall the order passed by him by
which he had decided that the appellant had retired from his
post as a Judge with effect from December 27, 1961. This
writ petition has had a checkered career. Banerjee, J.
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before whom it came for the issue of a Rule Nisi, was not
satisfied that it was necessary to issue Rule Nisi on it,
and so, he dismissed the appellant’s writ petition in limine
on January 3, 1962.
The appellant challenged the correctness of this decision by
preferring an appeal under Letters Patent before a Division
Bench of the said High Court. Mitter and Laik JJ. who
constituted this Bench, however, differed, and so, the
learned Chief Justice bad to constitute a Special Bench of
three learned Judges to deal with the appeal. P. N.
Mookerjee, Sankar Prasad Mitra and R. N. Dutt, JJ. who
constituted this Special Bench, heard the matter and
delivered three concurring judgments. They were, however,
unanimous in holding that Banerjee J. was in error in
refusing to issue a Rule Nisi, and so, they allowed the
appeal preferred by the appellant and directed that a Rule
Nisi in terms of prayer (1) of the petition should be
issued.
Against this order, respondent No. 1 came in appeal to this
Court by special leave. By its judgment pronounced on the
14th October, 1963, this Court held that the Special Bench
was right in directing a Rule Nisi to be issued on the writ
petition filed by the appellant, and so, the appeal
preferred by respondent No. 1 was dismissed. The writ
proceedings thus went back to the Calcutta High Court for
disposal on the merits in accordance with it.
At this stage, a Special Bench consisting of five learned
Judges of the High Court heard the matter. The area covered
by the controversy between the parties was very wide and
several constitutional questions of law were exhaustively
argued before this Special Bench. All the learned Judges
constituting the Bench have delivered separate judgments
each one elaborately dealing with the points urged before
the Court. P. N. Mookerjee J. in substance, accepted the
main pleas raised by the appellant and directed that an
appropriate writ or an appropriate order or direction in the
nature of a Writ do issue against respondent No. 1 calling
upon him to forbear from giving effect to the impugned order
until a proper determination by the President that the
appellant has attained the age of superannuation. He,
however, added that the operation of the order which he
proposed to issue should remain stayed for three months to
enable respondent No. 1, if he was so advised, to obtain the
President’s determination in the matter of the appellant’s
age and act upon the same in accordance with law.
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The four other learned Judges, Mallick, Banerjee, Das Gupta
and Chatterjee J., however, took a different view. They
held that the appellant was not entitled to any writ or
order against respondent No. 1 as claimed by him. The
approach adopted by these learned Judges is not uniform,
but. on the whole, their final conclusion was against the
appellant. In the result, in accordance with the majority
decision, the writ petition filed by the appellant has been
dismissed. It is against this decision that the appellant
has come to this Court by special leave which was granted to
him on August 24, 1964. On September 21, 1964, upon an oral
prayer made by the Attorney-General for India, the Court
allowed the Attorney-General to intervene in this matter,
and by consent of parties, the Court directed that the
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appeal should be set down for hearing on the 26th October,
1964, subject to any part-heard matter. On the 26th
October, 1964, when the appeal was called out for hearing,
the Court allowed the appellant’s prayer for adding the
Union of India to the appeal as respondent No. 2. The
Attorney-General of India who had already been allowed to
intervene in the proceedings, accepted notice of the motion
made by the appellant for joining the Union of India and
agreed to appear for the Union of India. At his request,
the appeal was adjourned to the 29th October, 1964 in order
to enable him to file an affidavit on behalf of respondent
No. 2. That is how this appeal came on for final hearing on
the 29th October, 1964. At the hearing, both parties
conceded that the only question which called for our
decision is whether the order of the President passed on May
15, 1961, could be said to be a decision on the point about
the age of the appellant within the meaning of Art. 217 (3).
In view of the fact that the Amendment Act, 1963 inserted
clause (3) in Art. 217 retrospectively during the pendency
of the present writ proceedings, all other questions which
had been argued between the parties before the said
Amendment, have now become immaterial and that has naturally
narrowed down the scope of the present controversy.
Though the controversy between the parties thus lies within
narrow limits, it is necessary to set out the material facts
in some detail in order to appreciate the background of the
present dispute, because it is only in the light of the said
background that the problem posed for our decision can be
seen in its proper perspective. The appellant who was
enrolled as a Barrister of’ the Calcutta High Court on May
5, 1931, was appointed an Additional Judge of the said High
Court on February 11, 1949. In January, 1950, he became a
permanent Judge of the said High Court. At the time of his
appointment, the appellant had given
Sup./65-5
58
the date of his birth as December 27, 1904. It appears that
some time in 1959, the attention of the Home Minister of the
Government of India was drawn to an extract from the Bihar
and Orissa Gazette of June 26, 1918 containing the results
of the Matriculation Examination held by the Patna
University in April, 1918. The relevant information
contained in the said extract showed the age of the
appellant at the date of the examination as 16 years and 3
months. This would indicate that the appellant was born on
December 27, 1901. It also appears that later, the Home
Minister came to know that when the appellant appeared at
the open competitive examination for the I.C.S. in
July/August, 1923, the date of his birth was given and shown
as December 27, 1901. That is why the Home Minister raised
the question about the correctness of the date of birth
given by the appellant at the time of his appointment. As a
result of the correspondence carried on between the Union
Home Minister, the Chief Minister of West Bengal, the Chief
Justice of the Calcutta High Court, and the appellant, the
Government of India ultimately decided that the appellant’s
date of birth was December 27, 1901; and so, the file
containing the said correspondence and other relevant
material was placed before the President on May 15, 1961.
Noting made on this file indicated that the Government of
India intended to ask the appellant to demit his office on
December 26, 1961, after court hours. After this proposal
was approved by the President, the Government of India asked
the Chief Minister of West Bengal to communicate this
decision to the appellant through the Chief Justice of the
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Calcutta High Court.
At that stage, the appellant moved the Punjab High Court
under Art. 226 of the Constitution by a writ petition filed
on November 15, 1961, against the Union of India, praying
that an appropriate writ or order should be issued against
the Union of India restraining it from giving effect to its
impugned order. The said High Court, however, dismissed the
appellant’s writ petition on December 4, 1961. The
appellant then moved this Court for special leave to appeal
against the decision of the Punjab High Court, but his
petition was rejected in limine.
In due course, when occasion arose to give effect to the
decision of the Government of India, respondent No. 1 passed
an order directing that the appellant will demit his office
of a puisne Judge of the Calcutta High Court on December 26,
1961 after Court hours. It is the validity of this order
which has been impeached by the appellant in the present
writ proceedings. The
59
appellant contended that respondent No. 1 was patently in
error in seeking to enforce an order passed by the
Government of India as an executive order by which they
purported to determine his age. On this basis, he claimed
an appropriate writ or order against respondent. No. 1; and
that raised several constitutional questions. But, as we
have already indicated, the introduction of cl. (3) in Art.
217 has completely changed the complexion of the controversy
and all that we are now required to consider is whether the
approval given by the President can fall within the purview
of Art. 217(3).
Let us now examine the correspondence that took place bet-
ween the parties in order to ascertain the procedure adopted
by the Government of India in obtaining the approval of the
President, and the pleas taken by the appellant during the
course of these proceedings. On April 9, 1959, G. B. Pant,
the Home minister, wrote to the Chief Minister, West Bengal,
informing him that his attention had been drawn to the fact
that the relevant extract from the Bihar and Orissa Gazette
indicated that the date of birth given by the appellant at
the time -of his appointment as an Additional Judge of the
Calcutta High Court, was not accurate. In this letter. the
Home Minister suggested to the Chief minister that he should
arrange to have necessary enquiries made in that regard and
let him know the result of the said enquiry.
The Chief Minister got in touch with Chief Justice K. C. Das
Gupta on the is point, and the Chief Justice wrote to the
appellant on April 17, 1959, sending him a copy of the
letter which he had received from the Chief Minister. In
this letter, the Chief Justice requested the appellant to
furnish him with a full statement on all the points involved
and inform him at the same time of any other material which
may be relevant on the correct ascertainment of the date of
his birth, and the consequential ascertainment of the date
of his retirement. On the same day, the Chief Justice wrote
another note to the appellant inviting him to meet him in
order that be should be able to talk to him about a matter
which vitally concerned the appellant. The appellant was
asked to meet the Chief Justice at 4 P.m. that day.
On May 27, 1959, the appellant wrote to Chief Justice Das
Gpta suggesting that the date of his birth shown in the
relevant extract from the Gazette was obviously incorrect.
He expressed his satisfaction that the question of his age
had not been raised directly by either the State Government
or the Government of India, but had been raised at the
instance of some mischievous person. He emphasised that
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there was hardly any reason for him
60
to give an inaccurate date of his birth when he accepted
appointment.
Chief Justice Das Gupta again wrote to the appellant on July
6, 1959 informing him about the report from the Civil
Service Commission, London, regarding the date of birth
given by the appellant to the Commission when he appeared
for the I.C.S. Competitive Examination. A copy of the said
report was forwarded to the appellant. The Chief Justice
asked the appellant to send Ms comments on the said report.
On August 12, 1959 the appellant sent a reply to this
letter, and he pleaded that he did not recollect at that
distance of time whether he had himself given to the Civil
Service Commission the date of his birth. He was, however,
certain that being then an undergraduate at Oxford, he did
not obtain any certificate of age in terms of clause 4 of
the Regulations concerning Examinations for the Indian Civil
Service. In this letter, the appellant protested that he
saw no valid reason for any further enquiry as to his
identity with the examine and he urged that the question
sought to be raised was one of principle. According to him,
the date of birth given by him at the time of his
appointment could not be questioned.
After these letters of the appellant were forwarded by the
Chief Justice of the Calcutta High Court to the Government
of India, the matter was sent to S. R. Das, the Chief
Justice of India for his opinion. Chief Justice Das
considered the material forwarded to him and expressed his
definite view that the date of birth of the appellant should
be taken to be December 27, 1901. In this connection, Chief
Justice Das observed that in such matters they had always
been insisting that the date of birth given in the birth
register or school register or Matriculation Certificate
should be conclusive. This opinion was expressed by Chief
Justice Das on September 9, 1959.
Thereupon, Chief Justice Lahiri of the Calcutta High Court
intimated to the appellant on September 21, 1959, that he
has been asked by the Chief Minister, West Bengal, to inform
him that the Home Minister, Government of India, had
considered the explanation given by him about his age and
had decided, with the concurrence of the Chief Justice of
India, that the age stated in his Matriculation Certificate
would be treated as final and the will have to retire on the
basis of the age as recorded therein. It appears that the
Home Minister, Government of India, had written to the Chief
Minister, West Bengal, on September 14, 1959, intimating to
him that he had consulted the Chief Justice of India in
61
regard to the question of the appellant’s age and that he
entirely agreed with the advice given by the Chief Justice
of India; and he suggested that the appellant should be
informed accordingly through the Chief Justice of the
Calcutta High Court. That is how the appellant came to know
about this decision through his chief Justice.
After the appellant received intimation about the decision
of the Government of India, he wrote to Chief Justice Lahiri
expressing his emphatic disapproval of the said decision,
and he made litter comments against the views expressed by
Chief Justice Das in the note made by him while giving his
advice to the Government of India in this matter, vide his
letter of September 30, 1959. in his letter of April II,
1960, the appellant wrote to Chief Justice lahiri that he
had repeatedly pointed out to Government that the
controversy as to his superannuation involved a principle
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affecting the judiciary as a whole, and so, there could be
no question of submitting to arbitration. He had already
made it clear in his letter of September 30, 1959, that the
procedure adopted by the Government of India from beginning
to end was unwarranted and that he was not bound by the
decision communicated to him by the Chief Justice of the
Calcutta High Court on September 21, 1959. further
correspondence went on between the parties, but it is not
necessary to refer to it, because it does not give any
further material which is relevant for our decision.
That takes us to May 12, 1961, on which date the Ministry of
Home Affairs prepared a note setting forth the history of
the dispute as to the correct date of the appellant’s birth.
This note shows that the Government of India had consulted
Chief Justice Sinha who succeeded Chief Justice S. R. Das;
Chief Justice Sinha had so taken the same view as had been
taken earlier by Chief justice Das. The note also points
out that when an offer was made to the appellant to have the
issue tried by arbitration, he had rejected the offer, and
so, after considering all relevant facts, it was proposed to
send a formal communication to him asking him to demit his
office on December 26, 1961. This note has been signed by
the Secretary to the Ministry of Home Affairs. In this
note, the Secretary had stated that both the Law Minister
and the Home Minister had approved of the note. This note
was submitted to the Prime Minister who, on the same day,
agreed with the course of conduct proposed to be adopted,
and then it went to the President who expressed his approval
on May 15, 1961. That the genesis of the impugned order.
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It appears that in the morning of July 30, 1961, the
appellant saw Prime Minister Nehru and complained against
the order which had been passed in respect of his age. The
Prime Minister wrote to the appellant the same day that he
had told the appellant that he proposed to consult the Chief
Justice of India and the appellant had agreed to that
course. The appellant appeal to have requested the Prime
Minister that he should be Given chance to place his
viewpoint before the Chief Justice of India and the Prime
Minister had assured him that he could meet the Chief
Justice and place his case before him. In this letter, the
Prime Minister has also stated that he had spoken to the
Chief Justice of India that evening and that he was told
that some time back a rule had been framed to determine the
age of sitting Judge of High Courts and that rule had been
followed in his case. The letter also added that the Chief
Justice of India had mentioned the Prime Minister that there
had been some serious complain about the manner in which
judicial work had been transacted the appellant. In the
end, the Prime Minister advised the appellant to get in
touch with the Chief Justice of India. It is true that in
dealing with the question about the appellant’s age, refer-
ence to the quality of his judicial work was irrelevant; but
the general tone and content of the Prime Minister’s letter
clear indicate that the Prime Minister had adopted a
flexible, inform fair and sympathetic approach to the
appellant’s grievance and he was willing to re-examine the
matter if it was found necessary to do so.
Accordingly, the appellant met the Chief Justice of India on
July 31, 1961. It appears that when the appellant met Chief
Justice Sinha, the latter advised him to retire on December
2, 1961 on the basis of the date of birth disclosed by his
Matriculation Certificate. The appellant was told that was
in consonance with the policy adopted by the Government of
India recent cases. The Chief Justice assured the appellant
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that was not the intention of the Government of India to do
anything to cast aspersions on the veracity of a Judge of a
High Court, and he indicated that without going into the
correctness of the a given by the appellant, it was
desirable that he should retire the basis that the
Matriculation Certificate correctly represent, his age. "I
am glad", said Chief Justice Sinha, "that you have taken my
assurance in the spirit in which it was given, namely to
save you and to save the Government from any embarrassment
in connection with such a controversy. This is the
substance the letter which Chief Justice Sinha wrote to the
appellant
63
August 22, 1961. This letter also indicates that Chief
Justice Sinha assured the appellant that no aspersion was
intended to be cast on the veracity of his statement as to
his age presumably because the appellant had indicated to
him that he would be willing to retire in case it was made
clear that no aspersion was cast on his veracity. As Chief
Justice Sinha explained in a note made by him on a later
occasion, the background of his letter clearly suggests that
the conversation between the Chief Justice and the appellant
was of an informal character and the Chief Justice was
naturally willing to assure the appellant that if he quits
office on the 26th December, 1961, it would save
embarrassment both to the appellant and the Government.
This approach again was flexible, fair and sympathetic to
the appellant. As we have already seen, in due course
before the 26th December, 1961 arrived respondent No. 1
passed an order directing the office to treat the appellant
as having retired on December 26, 1961; and that has given
rise to the present controversy.
Let us now revert to Art. 217(3) and ascertain its true
scope and effect. Art. 217(3) provides that if any question
arises as to the age of a Judge of a High Court, the
question shall be decided by the President after
consultation with the Chief Justice of India and the
decision of the President shall be final. We have already
noticed that this provision has been expressly made
retrospective in operation, so that whenever a question
arises as to the age of a sitting Judge of a High Court,
that question has to be decided by the President in the
manner prescribed by Art. 217(3). The retrospective
operation of this provision postulates that this provision
must be read in the Constitution as from January 26, 1950;
and so, it will apply even in regard to the determination of
the ages of Judges of High Courts who had been appointed to
their office before the actual provision was inserted in the
Constitution by the Amendment Act of 1963. This provision
vests the jurisdiction to determine the question about the
Judge’s age exclusively in the President, and so, it follows
that in the presence of this provision, no court can claim
jurisdiction to deal with the said question. It is true
that before this provision was inserted in the Constitution,
the question about the age of a sitting Judge of a High
Court could have been theoretically brought before the High
Court in a proceeding by way of a writ for Quo Warranto
under Art. 226. But now there can be no doubt that the
question about the age of a Judge of a High Court has to be
determined only in one way, and that is the way prescribed
by
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Art. 217(3). This position is not disputed by the appellant
before us.
It is also clear that the decision of the President
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under Art. 217 (3) is final, and its propriety,
correctness, or validity is beyond the reach of the
jurisdiction of courts. What procedure should be followed
in deciding the age, what opportunity should be given to the
Judge whose age is being decided, and other allied questions
pertaining to the decision, are entirely within the
discretion of the President. The provision requires that
before the President reaches his decision, he has to consult
the Chief Justice of India; consultation with the Chief
Justice of India is clearly a mandatory requirement of
clause (3). It is thus clear that while leaving the
decision of the relevant question to the President, the
Parliament thought it necessary to provide that having
regard to the gravity of the problem covered by the said
provision, it is essential that the President should have
the assistance of the advice given by the Chief Justice of
India. It is also implicit in this provision that before
the President reaches his decision on the question, he ought
to give the Judge concerned a reasonable opportunity to give
his version in support of the age stated by him at the time
of his appointment and produce his evidence in that behalf.
How this should be done, is, of course, for the President to
decide; but the requirement of natural justice that the
Judge must have a reasonable opportunity to put before the
President his contention, his version and his evidence, is
obviously implicit in the provision itself. These aspects
of the matter are not disputed by the teamed Attorney-
General before us. It is in the light of this position that
we must now proceed to consider the question as to whether
the decision of the President on which the Union of India
relies can be said to be a decision under Art. 217 (3).
The first point which arises in this connection is whether
an earlier decision reached by the President when the
provision in question was not factually included in the
Constitution, can be treated as a decision under the said
provision as a matter of law. It is well-known that where
legislation makes retrospective provisions, it sometimes
expressly provides that orders passed earlier under some
other provisions should be deemed to have been passed under
the subsequent provision retrospectively introduced. Such a
provision has not been made by the Amendment Act, 1963 which
inserted clause (3) in Art. 217. But in dealing with the
present appeal, we are proceeding on the basis that an order
passed by the President on May 15, 1961, can be treated as a
decision
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under Art. 217(3) if, on the merits, such a conclusion is
justified, because, in terms, the said provision is made
retrospective.
Before dealing with this question, there are some incidental
matters which must be considered. The appellant has urged
before us that Art. 217(3) can come into play only if and
when a genuine or serious question about the age of a Judge
arises. He contends that if any person frivolously or
maliciously and without any justification whatever raises a
dispute about the correctness of the age given by a Judge at
the time of his appointment, Art. 217 (3) should not be
allowed to be invoked. It is true that it is only where a
genuine dispute arises as to the age of a Judge that Art.
217(3) would be allowed to be invoked; but that is a matter
for the President to consider. Under Art. 217(3) the
President should, and we have no doubt that he will, in
every case, consult the Chief Justice of India as to whether
a complaint received in respect of the age of a sitting
Judge of any High Court should be investigated, and it is
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with such consultation that he should decide whether the
complaint should be further investigated and a decision
reached on the point. We think it is clear that if a
dispute is raised about the age of a sitting Judge and in
support of it, evidence is adduced which prima facie throws
doubt on the correctness of the date of birth given by a
Judge at the time of his appointment, it is desirable that
the said dispute should be dealt with by the President,
because it is of utmost importance that in matters of this
kind, the confidence of the public in the veracity of a
statement made by a Judge in respect of his age must be
scrupulously maintained, and where a challenge is made to
such a statement, it is in the interests of the dignity and
status of the Judge himself as much as in the interests of
the purity and reputation of the administration of justice
that the dispute should be resolved and the matter cleared
up by the decision of the President.
The appellant, however, contends that pending the decision
of the dispute, the Judge concerned continues to be a Judge
and should not be required to step down from his office. As
a matter of law, the appellant is right when he contends
that a Judge cannot cease to be a Judge merely because a
dispute has been raised about his age and the same is being
considered by the President; but in dealing with this legal
position, considerations of prudence and expediency cannot
be ignored. If a dispute arises about the age of a Judge,
any prudent and wise Chief Justice would naturally think of
avoiding unnecessary complications by refusing to assign
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any work to the sitting Judge if at the time when the
dispute had been raised, it appears that the allegation is
that at the relevant time the Judge in question has reached
the age of superannuation. In such a case, if the decision
of the President goes against the date of birth given by the
appellant, a serious situation may arise, because the cases
which the said Judge might have determined in the meanwhile
would have to be rehealed, for the disability imposed by the
Constitution when it provides that a Judge cannot act as a
Judge after he attains the age of superannuation, will
inevitably introduce a constitutional invalidity in the
decisions of the said Judge, and it is plain that it would
be the duty of the Chief Justice to avoid such a
complication. Therefore, we do not think the appellant is
entitled or justified in making a grievance of the fact that
respondent No. 1 refused to assign any work to him after the
26th December 1961.
That takes us to question as to whether the impugned order
can be said to fall under Art. 217(3). The Attorney-General
has contended that the approval expressed by the President
on May 15, 1961, in law amounts to a decision under Art.
217(3), because it satisfies all the requirements of the
said provision. The Government of India had consulted Chief
Justice S. R. Das as well as his successor, Chief Justice
Sinha, the Government had asked the appellant to make his
comments on the material which showed that the appellant was
born on the 27th December 1901; a large volume of
correspondence proceeded between the parties and it is only
after the appellant had set out his contentions and his
points that the Government ultimately came to a conclusion
against the appellant and placed before the President the
whole file containing all the material including the advice
received from Chief Justice S. R. Das and Chief Justice
Sinha. The Attorney-General has urged that it is not
necessary that the President should himself write an
elaborate order incorporating his decision on the question
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referred to him; the word "approved" used by him while
signing the file amounts to his decision. In support of
this argument, he has referred us to two decisions :
Srinivas Mall Bairoliva v. King Emperor(1), and Alexander
Brogden and Others v. The Directors, & c., of the
Metropolitan Railway Company (2) . He has also urged that
the procedure followed by the Ministry of Home Affairs in
placing the file before the President is in accordance with
the rules of business prescribed in that behalf, and so, the
decision of the President should be held to be a decision
under Art. 217(3).
(1) (1947) I.L.R. 26 Pat. 460.
(2) (1876-7) 11 A.C. 666.
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Prima facie, there appears to be substance in this argument;
but on a closer examination of the material produced before
us, we find that there are several difficulties in upholding
it. Let us first enquire as to when this decision was
reached and by whom ? We have already seen that in his
letter of September 14, 1959 G.B. Pant, the then Home
Minister, wrote to the Chief Minister, West Bengal, that he
had consulted the Chief Justice of India and he agreed with
the advice given to him by the Chief Justice, and so, he had
decided that the date of birth of the appellant was December
27, 1901. It is this decision which was, in due course,
communicated to the appellant. Now, if this be held to be
the decision of the Government of India, then, of course,
Art. 217(3) is inapplicable. The decision was reached by
the Home Minister, no doubt after consulting the Chief
Justice of India; but that plainly is not the decision of
the President.
What happened subsequent to this decision also doe-, not
assist the Attorney-General’s contention. It is true that
the attitude adopted by the Government of India was, on the
whole, very fair. They were anxious to consider what the
appellant had to say in respect of this dispute. They were
also anxious to take into account whatever pleas the
appellant might have to raise in favour of the date of birth
given by him. They consulted Chief Justice S. R. Das as
well as Chief Justice Sinha who followed him. They offered
to take the question to an ’arbitrator of the choice of the
parties, and when they found that the appellant was not
agreeable to adopt any such course, they considered the
matter and placed the file before the President. There is
little doubt that this flexible and informal approach
adopted by the Government in dealing with this question was
inspired by a desire to be fair to the appellant; but the
flexibility and the informality of the approach thus adopted
by the Government out of a sense of fairness themselves tend
to introduce an infirmity in the procedure when it is sought
to be co-related. With the requirements of Art. 217(3). It
is difficult to imagine that if the President were to act
under Art. 217(3) he could or would ask the Judge concerned
to go to arbitration. It is because of this flexible and
sympathetic approach adopted by the Government that even
after the Home Minister had come to a definite decision
against the appellant, the matter was allowed to he reopened
and the whole question was considered afresh. That, again,
would not be quite consistent with the requirements of Art.
217(3). In this connection, it is hardly necessary to
emphasise that when at the relevant time the Government were
considering this matter and they consulted the Chief Justice
of India, the
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informality of the said consultation does not squarely fit
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in with the formal consultation which is now made mandatory
by Art. 217(3). Therefore, having regard to the procedure
followed by the Government in dealing with this question, we
feel some hesitation in accepting the Attorney-General’s
argument that what has been done prior to the decision of
May 15, 1961, can be easily assimilated to the requirements
of Art. 217(3).
There is one more objection which is fatal to the Attorney-
General’s contention. and that must now be considered. It
is true that at all material stages, the appellant had taken
an alternative stand in support of his case that the date of
birth given by him was correct and could not be challenged.
His first contention was that where a lawyer gives the date
of his birth on the occasion of his appointment as a Judge
of the High Court and the said date is accepted by the
Government and entered in official records, its correctness
cannot be impeached at any time. This contention is clearly
not well-founded. Whether or not the Government of India
accept the date of birth given by a lawyer before he is
appointed, it is difficult to hold that a litigant would be
precluded from putting that question in issue in a
proceeding taken by him under Art. 226 for the issue of a
writ of Quo Warranto. It is true that no such applications
are known to have been made; and that naturally speaks for
the respect in which Judges of High Courts are held by the
litigants and the public in this country. But speaking
constitutionally prior to the insertion of cl. (3) in Art.
217, it would have been open to a litigant, if he has
material in his possession in that behalf, to apply to a
High Court and urge that a particular Judge is not competent
to act as a Judge, because, according to him, he has already
reached the age of superannuation. Therefore. we are
satisfied that the stand taken by the appellant that the
statement made by him as to the date of his birth before he
took office can never be questioned, is not well-founded.
The alternative stand which the appellant took was that the
Executive was not entitled to determine his age; and it must
be remembered that this stand was taken before Art. 217 (3)
was inserted in the Constitution, the appellant was
undoubtedly justified in contending that the Executive was
not competent to determine the question about his age,
because that is a matter which would have to be tried
normally in judicial proceedings instituted before High
Courts of competent jurisdiction. There is considerable
force in the plea which the appellant took at the initial
stages of this controversy that if the Executive is allowed
to determine the
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age of a sitting Judge of a High Court, that would seriously
affect the independence of the Judiciary itself. Basing
himself on this ground, the appellant did not produce his
evidence in the proceedings taken by the Government of India
before the impugned order was passed. The appellant stated
before us and he apparently suggested this fact even to the
Punjab High Court when he moved that Court under Art. 226
that he had in his possession evidence which supported the
date of birth given by him before he was elevated to the
Bench. It is true that he did not produce this evidence,
though Chief Justice Das Gupta had asked him to do so. We
are not impressed by the appellant’s plea that he had not
received the letter of Chief Justice Das Gupta written on
April 17, 1959, in which he had been asked to communicate to
the Chief Justice what material he had in support of the
date of birth given by him; and so, we proceed on the basis
that the appellant did not produce his evidence, though he
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was called upon to do so. He also refused to go to
arbitration. But the question which arises for our decision
is : can the appellant’s failure or refusal to produce
evidence be fairly pressed into service against him when
basically he was right in contending that the Executive
cannot decide the issue of his age by itself ? If the
appellant was right in this contention, then no adverse
inference can be drawn against him because he failed or
refused to adduce evidence before the Executive. We are
satisfied that having regard to the circumstances in which
the enquiry was made, and bearing in mind the fact that the
appellant was justified in contending that his age could not
be determined by the Executive in proceedings initiated by
it, the impugned order passed by the President must be held
to suffer from the serious infirmity that the evidence of
the appellant was not available to the President when he
reached his decision. The question concerning the age of
the appellant on which a decision was reached by the
President on May 15. 1961, affects the appellant in a very
serious manner; and-so, we think considerations of natural
justice and fair-play require that before this question is
determined by the President, the appellant should be given a
chance to adduce his evidence. That is why we think that,
on the whole, it would not be possible to accept the
Attorney-General’s contention that the order passed by the
President on May 15, 1961, can be treated as a decision
within the meaning of Art, 217 (3). We ought to make it
clear that in dealing with the grievance of the appellant
that his evidence was not before the President at the
relevant time, we are not prepared to hold that his failure
or refusal to produce evidence at that stage should be
judged in the
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light of the retrospective operation of Art. 217(3); such a
consideration would be totally inconsistent with the concept
of fair play and natural justice which ought to govern the
enquiry contemplated by Art. 217(3). In dealing with this
aspect of the matter, it would be unreasonable, unjust and
unfair to refuse to recognise the position of law as it
actually and in fact existed at the relevant time merely
because by the fiction introduced by the retrospective
operation of the constitutional amendment, the said position
cannot now be deemed. to have then existed in the eyes of
law.
The Attorney-General faintly attempted to argue that the
decision of the Punjab High Court in the writ petition filed
by the appellant in that Court in 1961 (Civil Writ No. 479-
D/ 1961) amounts to res judicata on the question about the
appellant’s age. In his judgment, Chief Justice Khosla has
no doubt observed that he was convinced upon all the
material which had been produced before the Court including
the horoscope and the entry in the almanac that the Home
Ministry was not wrong in accepting the correct age of the
appellant as that given in the Bihar & Orissa Gazette and in
the certificate which the appellant had filed with, his
application when he sat for the I.C.S. Examination. This
argument is obviously misconceived. First and foremost, if
Art. 217 (3) is retrospective in operation, any decision of
the Court on this question must be deemed to be without
jurisdiction, because from January 26, 1950 itself this
question must be deemed to have fallen within the exclusive
Jurisdiction of the President. Since the plea of res
judicata on which the Attorney-General relies is a plea of
law, the appellant is entitled to repel the said plea on the
legal ground that the constitutional amendment in question
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is retrospective, and at the relevant time the High Court
had no jurisdiction to decide this point. But quite apart
from this technical constitutional position, it is
impossible to hold that the observation on which the
Attorney-General relies can be said to be ’a decision which
can operate as res judicata in law. Chief Justice Khosla,
in substance, dismissed the writ petition of the appellant
on the around that it was premature, and so, he expressly
observed that the question about the age of the appellant
was of an academic nature. He also seemed to rely on the
doctrine of approbate and reprobate. Besides, it does not
appear that the documents to which he refers were formally
proved before the Court in those proceedings and had been
the subject-matter of any argument before it. Under these
circumstances, the plea that
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this judgment creates a bar of res judicata must be rejected
without any hesitation. We ought to add that if this Court
had felt inclined to treat this decision as a decision on
the merits of the appellant’s age, it would certainly not
have dismissed in limine the appellant’s application for
special leave to appeal to this Court against that judgment.
That raises the question as to the proper order which should
be passed in the present proceedings. The appellant has
contended before us that if we hold that the impugned
decision of the President does not amount to a decision
under, Art. 17(3), he is entitled to have a formal decision
of the President in terms of the said provision. The
Attorney-General has conceded that this contention of the
appellant is well-founded. He, therefore, stated to us on
behalf of the Union of India that in case our decision on
the main point is rendered against the Union of India, the
Union of India will place the matter before the President
within a fortnight after the pronouncement of our judgment
inviting him to decide the question about the appellant’s
age under Art. 217(3). Both parties have agreed before us
that in case the decision of the President is in favour of
the appellant, the appellant will be entitled to claim that
he has continued to be a Judge notwithstanding the order
passed by the Chief Justice of the Calcutta High Court and
will continue to be a Judge until he attains the acre of
superannuation. On the other hand, if the decision of the
President goes against the appellant, the said order of the
Chief Justice of the Calcutta High Court would be held to be
valid and proper. Having regard to the circumstances of
this case, we think that the present appeal should be
disposed of in terms of this order. There would be no order
as to costs.
Ordered accordingly.
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