# JYOTI PROKASH MITfER v. HON'BLE MR. JUSTICE llIMANSU KUMAR ~OSE, CHIEF JUSTICE, IDGH CO\JRT, CALCUTTA AND ANOTHER

- **Citation:** [1965] 2 S.C.R. 53
- **Court:** Supreme Court of India
- **Decided:** 1964-11-09
- **Case number:** Civil Appeal No. 856 of 1964
- **Bench:** P. B. Ga.Jendragadkar, K. N. Wanchoo, M. HlDAYATULLAH, Raghubar Dayal, ]. R. Mudholkar Jj
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/jyoti-prokash-mitfer-v-hon-ble-mr-justice-llimansu-kumar-ose-chief-justice-idgh-3425
- **Pages:** 19

## Headnote

Constitution of India, Art. 217 as amended by Constitution (Fifteenth
Amendment) Act, 1963-Dispute as to age of sitting High Court JudgeDecision taken by Home Mini.>ter 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).
There was divergence between the appellant's date of birth as given
at the time of bis appointment as Judge of the Calcutta High Court and
as found in the records of the public examinations at which be bad
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 demit 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
Justice of 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 appointtnent once accepted by Government, could
not again be called in question and in any case could not be determined
again by the Government by Executive order. The complexion of the controversy was however completely changed by the passing of the Constitution
(Fifteenth Amendment) Act 1963 which by adding cl. (3) to Art. 217
provided that any dispute as to the age 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
54
SUPREME COURT REPORTS
[1965] 2 S.C,R.
reputation of the admmistration of justice that the dispute should be settled.
A
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
allo:ting 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
B
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 prov is ion to formally consult the Chief Justice of India was mandatory. Also implicit in the Article, was the requirement that the Judge
concerned should have a reasonable oppor

## Text

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53
JYOTI PROKASH MITfER
v.
HON'BLE MR. JUSTICE llIMANSU KUMAR ~OSE, CHIEF
JUSTICE, IDGH CO\JRT, CALCUTTA AND ANOTHER
November 9, 1964
[P. B. GA.JENDRAGADKAR, C.J., K. N. WANCHOO,
M. HlDAYATULLAH, RAGHUBAR DAYAL AND
]. R. MUDHOLKAR JJ.J
Constitution of India, Art. 217 as amended by Constitution (Fifteenth
Amendment) Act, 1963-Dispute as to age of sitting High Court JudgeDecision taken by Home Mini.>ter 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).
There was divergence between the appellant's date of birth as given
at the time of bis appointment as Judge of the Calcutta High Court and
as found in the records of the public examinations at which be bad
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 demit 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
Justice of 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 appointtnent once accepted by Government, could
not again be called in question and in any case could not be determined
again by the Government by Executive order. The complexion of the controversy was however completely changed by the passing of the Constitution
(Fifteenth Amendment) Act 1963 which by adding cl. (3) to Art. 217
provided that any dispute as to the age 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
54
SUPREME COURT REPORTS
[1965] 2 S.C,R.
reputation of the admmistration of justice that the dispute should be settled.
A
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
allo:ting 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
B
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 prov is ion to formally consult the Chief Justice of India was mandatory. Also implicit in the Article, was the requirement that the Judge
concerned should have a reasonable opportuility to give his version and
C
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 Governrilent 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 bad
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 Mall Bairoliva v. King Emperor, I.L.R. 26 Pat. 460 and
A.ltxander Brogden and others v. The Directors of the Metropolitan Railway Company (1876-7) II 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 decisio!l the evidence of the appellanL 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 conte~tion of the appellant when
raised was fully justified as •uch a dispute in the legal situation which thee
existed had normally to be determined by judicbl proceeding before the
High Courts of comoetent jurisdiction, and therefore his failure or refusal
to produce his eviaence could not be fairly pressed into service against
him.
[69 D-F; 70 BJ
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 pa5'ed orders in
terms agreed to by both parties.
[71 B-F]
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. 11 of
1962.
The arpellant appeared in person.
D
E
F
G
H
:r. P. MITTBll v. CHD!l' .JUSTICE ( Gajendragadkar, C.J.)
5 s
A
C. K. Daphtary, Attorney-Genera/, Ranadeb Choudhury, P. K.
8
Chatterjee, Somendra Chandra Bose and P. K. Bose, for respor.
dent No. 1.
C. K. Daphtary, Attorney-Genera/, N. C. Chatterjee and R.H.
Dhebar, for respondent No. 2.
The Judgment of the Court was delivered by
Gajendragadlw, 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 proC posed 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
•D
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 all!O
placed before the President. On the file, the President made an
order, "approved"; and the question is whether this is an order
.E
which can be related to Art. 217 (3). It is true that this order was
~ed 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
1 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.
G
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
ef the Calcutta High Court, requiring him to recall the order
11
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 chequered career. Banerjee, J.
56
SUPREME COURT REPORTS
(1965) 2 S.C.R.
before whom it came for the issue of a Rule Nisi, was not satisA
fied 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 B
of the said High Court. Mitter and Laik JJ. who constituted this
Bench, however, differed, and so, the. learned Chief Justice had
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,
C
unanimous in holding that Banerjee J. was in error iri refusing
to issue a Rule N isi, and so, they allowed the appeal preferred by
the appellant and directed that a Rule Nlsi in terms of prayer (1)
of the petition should be issued.
Against this order, respondent No. 1 came in appeal to this D
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 E
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 l<!W were exhaustively argued before this r
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 G
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. l, if
he was so advised, to obtain the President's determination in the
H
matter of the appellant's age and act upon the same in accordance
with law.
'
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J. P. MITTER v. CHIEF JUSTICE (Gaiendragadkar, C./.)
ST
A
The four other learned Judges, Mallick, Banerjee, Das Gupta
and Chatterjee iJ., however, took a different vieW'.
They held
that the appellant was not entitled to any writ or order against
respondent No. l 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 accordB ance with the majority decision, the writ petition filed by the
a[Jpellant 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,
C and by consent of parties, the Court directed that the 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 ~o had already
D
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
E is how this appeal came on for final hearing on the 29th October,.
l 964.
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,
i.·
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
O 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 lig~t of the said background that
the pro~Iem posed for our decision can be seen 'in its proper
perspective.
The appellant who was enrolled as a Barrister of
H
the Calcutta High Court on May S, 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
C.ourt. At the time of his appointment, the appellant had given
LlSop./65-5
58
SUPREME COURT REPORTS
[1965] 2 s.c.R.
the date of his birth as December 27, 1904. It appears that A
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 examiB
nation 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 c
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 ultiD
mately 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 E
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 Calcutta High
Court.
At that stage, the appellant moved the Punjab High Court F
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 G
for special leave to appeal against the decision of the Punjab High
Court, but his petition was rejected iri 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 H
Judge of the Calcutta High Court on December 26, 1961 11fter
Court hours.
It is the validity of this order which has been
impeached by the appellant in the present writ proceedings. The
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J. P. MITTER v. CHIEF JUSTICE (Gajendragadkar, C.J.)
59
A 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
11
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 betC ween the parties in order to ascertain the procedure adopted by
the Governmeht 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 Ho'!1e
Minister, wrote to the Chief Minister, West Bengal, informing
him that his attention had been drawn to the fact that the relevant
l> 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
E
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 this 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 stateF ment on all the points involved and inform him at the same time
of any other material which may be relevant on the correct ascer
tainment 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 he should be able to talk to him about a matter
·G
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
Gupta suggesting that the date of his birth shown in the relevant
e~tract. fro~ the Gazette was. obviously incorrect. He expressed
B
hts 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 there was hardly any reason for him
110
SUPREME COUR'l' llBPORTS
(1965] 2 S.C.ll.
to give an inaccurate date of his birth when he accepted appointA
ment.
'
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 J.C.S.
B
Competitive Examination. A copy of the said report was forwarded to the appellant.
The Chief Justice asked the appellant
to send his 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
Cwas, 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 examinee
and he urged that the question sought to be raised was one of D
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,
E.
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 r·
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
G
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 he
will have to retire on the basis of the age as recorded therein. It
appears that the Home Minister, Government of India, had written
H
to the Chief Minister, West Bengal, on September 14, 1959, intimating to him that he had consulted the Chief Justice of India in
•
:r. P. MITTER v. CHIEF .JUSTICE (Gajendragadkar, C.I.)
61
A 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
so, he suggested that the appellant should be informed accordingly
th!ough the Chief Justice of the Calcutta High Court. That. is
how the appellant came to know about this decision th!ough his
B
Chief Iustice.
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
bitter comments against the views expressed by Chief Justice Das
in the note made by him while giving his advice to the GovemC ment of India in this matter, vide his letter of September 30, 1959.
In his letter of April 11, 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 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
! D 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
E
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
F
that the Government of India had consulted Chief Justice Sinha
who succeeded Chief Justice S. R. Das; Chief Justice Sinha had
also 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
G 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
H
course of conduct proposed to be adopted, and then it went to
the President who expressed his approval on May 15, 1961. That
is the genesis of the impugned order.
62
SUPREME COURT REPORTS
(1965) 2 S.C.R.
It appears that in the morning of July 30; 1961, the appellant A
saw Prime Minister Nehru and complained against the
ordey
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 appears
to have requested the Prime Minister that he should be given a B
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
C
back a rule had been framed to determine the age of sitting Judges
· of High Courts and that rule had been followed in his case. The
letter also added that the Chief Justice of India had mentioned to
the Prime Minister that there had been some serious complaints
about the manner in which judicial work had been transacted by
the appellant. In the end, the Prime Minister advised the appel0
!ant to get in touch with the Chief Justice of India. It is true
that in dealing with the question about the appellant's age, reference to the quality of his judicial work was irrelevant; but the
general tone and content .of the Prime Minister's letter clearly
indicate that the Prime Minister had adopted a flexible, informal,
fair and sympathetic approach to the appellant's grievance and E
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 26, F
1961 on the basis of the date of birth disclosed by his Matriculation Certificate. The appellant was told that that was in consonance with the policy adopted by the Government of India in
recent cases.
The Chief Justice assured the appellant that it
was not the intention of the Government of India to do anything
to cast aspersions on the veracity of a Judge of a High Cour!, and G
he indicated that without going into the correctness of the age
given by the appellant, it was desirable that he should retire on
the basis that the Matriculation Certificate correctly represented
his age.
"I am glad", said Chief Justice Sinha, "that you have
taket1 my assurance in the spirit in which it was given, namely,
.,_
to save you and to save the Government from any embarrassment H
in connection with such a controversy. This is the substance of
the letter which Chief Justice Sinha wrote to the appellant on.
•
J. P. MITTER v. CHIEF JUSTICE (Gajendragadkar, C./.)
63
A 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 exB plained 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
C 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 controD
versy.
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
E 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 mariner prescribed by Art.
217(3). The retrospective operation of this provision postulates
F that this provision must be read in the Constitution as from Jatiuary 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
G Judge's age exclusively in the President, and so, it follows that in
lhe 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
H Warranto under Art. ·226. But now there can be no doubt that
the question about the age of a JudJ(e of a High Court has to be
determined only in one way, and that is the way prescribed by
64
SUPREME COURT REPORTS
[196SJ 2 S.C.R.
Art 217 ( 3). This position is not disputed by the appellant before A
us.
It is also clear that the decision of the President 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 g1Ven
B
to the Judge whose age is being dceided, 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 requllement of clause (3). It is thus clear that while leaving the decision C
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 ~
.
Chief Justice of India. It is also implicit in this provision that D
before the President reaches his decision on the question, he ought
to give the Judge concerned a reasonable opportunity to give bis
version in support of the age stated by him at the time of bis
appointment and pr<iduce 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 reasonE
able 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 learned
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 F
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.
G
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 fa dealing with the
H
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
'
:s. P. MITTER v. CHIEF :SUSTICB (Gajendragadkar, C.J.)
65
.A
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
1J 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 An.
C 217(3) would be allowed to be invoked; but that is a matter for ·
the President to consider.
Under Art. 217(3) the President
sho11ld, 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
D be investigated, and it is 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
E his appointment, it is desirable that the said dispute should be
dealt with by the President, because it is of utmost importaoce
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
F .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
G
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
abcut his age and the same is being considered by t!:ie President;
but in dealing with this legal position, considerations of prudence
H
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
611
SUPREME COURT REPORTS
[1965] 2 S.C.R.
any work to the sitting Judge if, at the time when the dispute had A
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
B
determined in the meanwhile would have to be reheard, 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 c
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
0
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 coinments oil the material which
E
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 >ind 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
F
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
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
G
Emperor('), and Alexander Brogden and Others v. The Di•ectors,
& 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 H
the President should be held to be a decision under Art. 217(3).
----·-----
(I) (1947) I.L.R. 26 Pat. 460.
(2) (1876-7) U A.C. 666.
J. P. MITTER v. CHIEF JUSTICE (Gajendragadkar, C.l.)
67
A
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 Jetter of September 14, 1959
G.B. Pant, the then Home Minister, wrote to the Chief Minister,
B 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 courEe,
communicated to the appellant. Now, if this be held to be the
C decision.of the Government of India, then, of course, Art. 217(3)
is inapplicable.