# UNION OF INDIA v. JYOTI PRAKASH MITTER

- **Citation:** [1971] 3 S.C.R. 483
- **Court:** Supreme Court of India
- **Decided:** 1971-01-21
- **Case number:** Civil Appeal No. 52 of 1968
- **Bench:** J. c. SHAH, s. M. SIKRI, v. BHARGAVA, K. s. HEGDE, A. N. Grover, I. D. Dua
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/union-of-india-v-jyoti-prakash-mitter-5170
- **Pages:** 23

## Headnote

Cvnstitution of India, 1950, Arts. 132(1) & 2t1(3)~rant of leave
to Supreme Court agains~ judgment of single Judge of High Court-When
permissible--Procedure to be followed by President when acting under
A'rt. 217(3).
Ne.rural Justice-If party effected entitled to personal hearing.
Article 217(3) of the Constitution incorporated by the 19th Amend·
ment Act, was given retrospective effect from January 26, 1950, and
hence, all questions relating to the age of a Judge of a High Court had
to be decided by the President after consultation with the Chief Justice
of India. The respondent raised a dispute regalrding his age claiming that
his date of birth was December 27, 1904, and not December 27, 1901.
The Secretary of the Ministry of Home Affairs drew up a note tracing
the history of the dispute and invited the President to determine the age
of the respondent.
The note was submitted through the Minister of
Home Affairs, and Prime Minister .. The President then called upon the
respondent to make such representation as he may wish to make and to
produce such evidence as he may desire.
Thereafter, all communication
to and from the respondent, his representations to the President and documentary evidence on which he relied, were all submitted through the
Secretary of the Ministry of Home Affairs.
The respondent made a
request for oral hearing in his various communications.
He protested
against the reference bv the Ministry of Home Affairs to the Director
of the Central Forensic Institute of the documents submitted by him
and requested that the originals may be returned to him to enable him
to have them examined by an independent expert. In reply to that letter
the Secretary of Ministry of Home Affairs wrote that the procedure to
be followed and the opportunities to be given to the respondent depended
entirely upon the discretion of the President and the question of returning
the documents produced by the respondent did not arise at that stage.
The respondent was also informed that the question whether he should
have an oppdrtunity of filing expert evidence will be considered later and
that he would be given an opportunity to put forward his case about the
evidcntiary value of the documents produced by him and that any decision thereon would be arrived at by the President after affording him
reasonable opportunity in that behalf.
After receiving the report of the
Director of the Central Forensic Institute the Pre>ident referred the question to the Chief Justice of India for his advice on the procedure to be
adopted and the Chief Justice gave his advice to the President.
jfhe
copies of the reports of the Director, Central Forensic Institute, Were
forwarded by the Home Secretary to the respondent with a forwarding
letter by which the respondent was informed that if he bad any comments
to make on the opinion expressed by the Director they may be submitted
and if the respondent desired he may also adduce evidence in rebuttal in
the for;n of expert opinion supported by appropriate affidavits within one
484
SUPREME COURT REPORTS
(1971) 3 S.C.R.
month.
The respondent submitted that the evidence tendered was con-
.cl'!sive in his favour. and .there was no question. of adducing any further
evidence or any evidence 1n rebuttal.
He also requested the President to
_grant him an audience for the purpose of deciding the question of his age.
The President then referred the matter to the Chief Justice of India
asking him for his advice and the Chief Justice of India, after considering the evidence in the matter, recommended that the age of the respondent be decided on the basis that the respondent was born on December 27, 1901.
The file relating to the matter was received in the
President's Secretariat and was sent to the Secretary, Ministry of Home
Affairs.
The Secretary recorded a note requesting the Minister of Home
Affairs, to recommend to the President that the age of the respondent
!Ilay be determined in accordance v.itb the advice of the Chief J

## Text

_Characters 0–39,680 of 65,980. This is a partial read: ask again with offset=39680 for what follows._

A
B
c
D
E
F
G
H
483
UNION OF INDIA
v.
JYOTI PRAKASH MITTER
January 21, 1971
[J. c. SHAH, C.J., s. M. SIKRI, v. BHARGAVA, K. s. HEGDE,
A. N. GROVER AND I. D. DUA, JJ.]
Cvnstitution of India, 1950, Arts. 132(1) & 2t1(3)~rant of leave
to Supreme Court agains~ judgment of single Judge of High Court-When
permissible--Procedure to be followed by President when acting under
A'rt. 217(3).
Ne.rural Justice-If party effected entitled to personal hearing.
Article 217(3) of the Constitution incorporated by the 19th Amend·
ment Act, was given retrospective effect from January 26, 1950, and
hence, all questions relating to the age of a Judge of a High Court had
to be decided by the President after consultation with the Chief Justice
of India. The respondent raised a dispute regalrding his age claiming that
his date of birth was December 27, 1904, and not December 27, 1901.
The Secretary of the Ministry of Home Affairs drew up a note tracing
the history of the dispute and invited the President to determine the age
of the respondent.
The note was submitted through the Minister of
Home Affairs, and Prime Minister .. The President then called upon the
respondent to make such representation as he may wish to make and to
produce such evidence as he may desire.
Thereafter, all communication
to and from the respondent, his representations to the President and documentary evidence on which he relied, were all submitted through the
Secretary of the Ministry of Home Affairs.
The respondent made a
request for oral hearing in his various communications.
He protested
against the reference bv the Ministry of Home Affairs to the Director
of the Central Forensic Institute of the documents submitted by him
and requested that the originals may be returned to him to enable him
to have them examined by an independent expert. In reply to that letter
the Secretary of Ministry of Home Affairs wrote that the procedure to
be followed and the opportunities to be given to the respondent depended
entirely upon the discretion of the President and the question of returning
the documents produced by the respondent did not arise at that stage.
The respondent was also informed that the question whether he should
have an oppdrtunity of filing expert evidence will be considered later and
that he would be given an opportunity to put forward his case about the
evidcntiary value of the documents produced by him and that any decision thereon would be arrived at by the President after affording him
reasonable opportunity in that behalf.
After receiving the report of the
Director of the Central Forensic Institute the Pre>ident referred the question to the Chief Justice of India for his advice on the procedure to be
adopted and the Chief Justice gave his advice to the President.
jfhe
copies of the reports of the Director, Central Forensic Institute, Were
forwarded by the Home Secretary to the respondent with a forwarding
letter by which the respondent was informed that if he bad any comments
to make on the opinion expressed by the Director they may be submitted
and if the respondent desired he may also adduce evidence in rebuttal in
the for;n of expert opinion supported by appropriate affidavits within one
484
SUPREME COURT REPORTS
(1971) 3 S.C.R.
month.
The respondent submitted that the evidence tendered was con-
.cl'!sive in his favour. and .there was no question. of adducing any further
evidence or any evidence 1n rebuttal.
He also requested the President to
_grant him an audience for the purpose of deciding the question of his age.
The President then referred the matter to the Chief Justice of India
asking him for his advice and the Chief Justice of India, after considering the evidence in the matter, recommended that the age of the respondent be decided on the basis that the respondent was born on December 27, 1901.
The file relating to the matter was received in the
President's Secretariat and was sent to the Secretary, Ministry of Home
Affairs.
The Secretary recorded a note requesting the Minister of Home
Affairs, to recommend to the President that the age of the respondent
!Ilay be determined in accordance v.itb the advice of the Chief Justice
of InCia, and the Home Minister and the Prime Minister countersigned
that endorsement.
The file then was pfaced before the President and on
the same day he recorded his decision that he accepted the advice tendered
by the Chief Justice of India and decided that the age of the respondent
should be determined on the basis that be was born on 27th December
1901.
The decision was co:nmunicated to the respondent by the Secretary, Ministry of Home Affairs.
The respondent then moved a writ petition in the High Court and
.a single Judge of the High Court allowed the petition on the grounds :
( l) that the function of President was quasi-judicial and be was not
,given sufficient time and opportunity to exercise his independent judgment on the question before him; (2) that the President had not given
a persona! hearing to the petitioner; (3) that the President had taken
,into account extraneous matters viz., the recommendation of the Ho1ne
.Minister and the Prime Minister.
The appellant then BSked for a certificate and a certificate was granted
under Art. 132(1) of the Constitution.
Jn appeal to this Court,
HELD :
(1) A single Judge of a High Co•Jrt may, in
appropriate
cases, certify that the case involves a substantial question of la\v as to
the interpretation of the Constitution.
But su~h a certificate is intended
to be given in very exceptional case·s where a direct appeal is necessary
in view of the grave importance of the cose 01 an early decision of the
ca.:;e must, in the larger interest of public or for sin1ilar reasons. he
reached.
The present case was not one in which a certificate should
have been asked for or granted by the single Judge. Against the deci-;ion
of the single Judge, an appeal lay to the Divisional Bench of the High
Court under Letters Patent; and, the respondent could not, on the dare
of the order be reinstated because he l}ad already passed 62 years of age.
[496 G-H; 497 A-Bl
[The n1atter was however examined on merits since the appeal \VJs
before this Court.]
(2) The President in performing the functions under Art. 217(3) is
invested with the judicial po"°'·er of great significance \1,·hich has a h~arA
B
c
D
E
F
G
ing on the independence of judges of the High Courts.
ln the exercise
H
of this power even the slightest suspicion or appearance of misuse of that
power Should be avoided.
Even in the mutter of serving nOticcs and
asking for representation fro n1a judge of the High Court, \vhcn question of his age is r<\isc<l. the President's Secretariat should ordinarilv be
A
B
c
I
D
E
F
G
H
UNION V. J. P. MITTER (Shah, C./.)
485
the channel and the President should have consultation with the Chief
Justice of India as required by the Constitution; and there must be no
interposition of any other body or authority in the consultation between
the President and.the Chief Justice.
Further. normally, an opportunity
for an oral hearing should be given to the judge whose age is in question,
though there is nothing in the Article which requires that the Judge should
be given a personal hearing by the Preiiaent and it is in the President's
discretion to do so in appropriate cases. The question should be decided
by the President on consideration of such materials as may be placed by
the Judge concerned and the evidence against him after the same is
disclosed to him.
In such a matter the President cannot act on the advice
of his Ministers.
Notwithstanding the declared finality of the order of
the President, this Court has jurisdiction in appropriate cases to set aside
the order, if it appears that it was passed on collateral considerations or
the rules of natural justice were not ob.served, or that the President's
judgment was coloured by, the advice or representation made by the
executive or if it was founded on no evidence. Appreciation of the evid·
ence however is entirely left to the President and it is not for the courts
to substitute their view. [504 F·H; 505 A-El
( 3) There is no substance in the contention of the respondent that
the decision was in truth rendered by the Chief Justice of India and no-I
by the President. The President acted on the advice of the Chief Justice.
He did not surrender his judgment to the Chief Justice. [497 E-FJ
( 4) It is not a condition of the validity of the decision by the President that the President and Chief Justice should meet and discuss acro!ili
a table the pros and cons of the proposed action or the value to be
attached to any piece of evidence laid -before the President and made
available to the Chief Justice.
Consultation contemplated by the Article
is not a dialogue. The President must, before deciding the age of a Judge
obtain the advice of the Chief Justice and for that purpose he must
make available all the evidence in his possession to the Chief Justice and
the Chief Justice has to submit his advice to the President on that
evidence.
The procedure followed in the present case of se'lding to the
Chief Justice of India the file relating to the evidence against the respondent and in his favour, and of obtaining the advice of the Chief
Justice, fully complied with the constitutional requirements as to consultation with the Chief Justice. [499 C-F]
(5) Merely because the President was assisted by the machinery of
the Ministry of Home Affairs in serving notices and receiving communications addressed to him it could not be inferred that he was guided
by that Ministry.
No rules had been framed regarding the inquiry to
be made by the President of India under Art. 217(3), and the President
had no secretarial facilities for serving notices and for taking other steps
in regard to the inquiries to be made under the Article.
( 6) There is nothing in the order to indicate that the Minister of
Home Affairs acted upon the request made by the Secretary; he and
the Prime Ministe'r merely countersigned the note.
The argument that
the Home ·Minister and the Prime Minister signified their assent and
thereafter the President acted as if he was exercising his executi\'e at.:tho-
:·ity on the advice of the Ministers has no force.
The President was not i
swayed by anything which the Secretary to the Minisfry of Home Affairs :
had nc•ted or by the signatures of the Minister or the Prime Minister.
The order shows that the President was acting only on the advice of the
Chief Justice and he decided the age of the respondent on that basis.
486
SUPREME COURT REPORTS
(1971]3 S.C.R.
Any irregularity in the procedure followed by the Secretariat of the Pre4
sident and the Secretary of the Ministry in sending the papers through.
the Ministers d.id not affect the validity of the order made oy President.
[4~8 G-H; 499 A-Bl
, (7) In the present case, the President had given ample opportunities
at vabous stages to the respondent to make his representation. All evid·
ence placed before the President and considered by him was disclosed to
the respondent and he was given opportunity to make his representation.
U.
The respondent cannot claim that the order made without affording him
an opportunity of pmonal heariμg is invalid, because, though the Presi.
dent is pertorming a judicial £Unction when he determines a dispute as
to the age of a Judge he is not a 'court, Moreover, there, was no like\ihood
of any bias or prejudice as no evidence was placed before the President
or considered by him which was not disclosed to the respondent.
.
[499 F-G; 500 A-0]
q
Surender Singh Kanda v. Govt. of the Federati!m of Malaya [1962]
A.C. 322, referred to.
( 8) There is no substance in the claim of the respondent that his
request for an oral hearing was granted and that therefore the order passed
without an opportunity of oral representation was contrary to the rules
of natural justice. In the present case the record supports the view that
the President did not deem it necessary to give an oral hearing.
There
were no complicated questions to be decided by the President.. The truth
of the statements made by the respondent had to be judged in the light
of his past conduct at various stages when he gave no evidence of the
date of his birth. If upon such evidence the President was of the view
that the disputed question may be decided without giving him an oppor'
!unity of personal hearing this Court cannot set aside the order on the
ground that the order was made without following rules of natural
justice. f500 H; 501 A-Gl
(9) There is no reliable evidence that the President trtated the matter
as fo!lllal . and allowed himself to be guided by the advice of the Home
Minister or that he mechanically accepted the advice of the Chief Justice
and surrendered his own judgment to the Chief Justice of India.
No
D.
F.
attempt was made to have the matter investigated in the
High Court
F
,,.,
as to when the papers were submitted to the President and what con-
'""
sideration he gave to the advice, whether (he made only a mechanical
approach believing that he was bound to accept the advice of his ministc'rs.
These are matters which cannot be convassed for the first time in
this Court. [502 A-Fl
(10) There is no evidence that beside tendering advice to the Pre.
sidcnt in matters of procedure and final decision the Chief Justice of
G
India had given any advice to the Ministry of ~ome. Affairs J?rivately
or otherwise.· The argument that the Chief Justice m tendermg the
advi~e was influenced by extraneous corisiderations is not founded upao
any materials placed before this Court. f502 F-Hl
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 52 of
1968.
H
Appeal from the judgment and order dated August 7, 8, 1967
of the Calcutta High Court in Civil Rule No. 1798(W) of 1966.
.A
B
c
D
E
F
G
H
UNION v. J. P. MITTER (Shah, C.J.)
487
Jagadish Swarup, Solicitor-General, Ram Panjwani and S. P.
Nayar, for the appellant.
The respondent appeared in person.
The Judgment of the Cqurt was delivered by
Shah, C. J. Joyti Prakash Mitter-hereinafter called
'the
respondent-was a candidate for the matriculation certificate exa·
mination of the Bihar University, held in April, 1918. In the
Bihar Government Gazette declaring him successful the age of the
i
es ondent was shown to be 16 years 3 months in April 1918.
respondent offered himself as a candidate for admission to
· :(ndian Civil .Service at an examination held in 1963 by the
United Kingdom Civil Service Commission.
On that occasion
he declared that his date of birth was December 27, 1901.
The
respondent joined the High Court Bar at Calcutta in May 1931.
On February 11, 1949 the respondent was appointed an Additional Judge .and on December 26, 1949 he was recommended
for appointment as a permanent Judge.
He then declared that
he was 45 years of age.
In 1956 the Government of India collected information relating to the educational and other qualifications of the Judges of
the High Courts and their respective dates of birth.
The declaration made by the respondent that his date of birth was December 27, 1904 was accepted.
The Government of India having
received information that the true date of birth of the respondent
was December 27,
1901 commenced an enquiry.
On April
17, 1959 the Chief Justice of the High Court of Calcutta asked
the respondent to make a formal statement relating to his date of
birth. On May 27, 1959 the responden\ wrote to the Chief Justice
of the High Court, Calcutta that his age entered in the matriculation certificate was incorrect, and that he
was shown
to
be
three years older than he actually was, because a true delaration of his age
would
have prevanted him from
appearing
for
the
matriculation
examination
in
1918.
The
respondent also tendered an affidavit of one Panchakari Banerjee
that the question of his age was discussed with Sir Arthur Trevor
Harries who was in 1949 the Chief Justice of the High Court of
Calcutta.
A suggestion made by the Chief Minister of West BenaaJ that
the respondent may agree to abide by the decision of th~ Chief
Justice of India on the question of his true date of birth was not
accepted by him. The respondent also did not furnish any material in support of his ca1.~ that he was born in December 1904. By
order dated May 15, 1961 the President of India on the recommendation of the Minister of Home Affairs directed that the age
488
SUPREME COURT REPORTS
[1971]3 S.C.R.
cf the respondent be determined on the basis of the date of birth
declared in the matriculation certificate.
The respondent then moved a petition in the High Court of
Punjab at Delhi for a declaration that he was entitled to hold
office till December 27, 1964 and for a writ of mandamus restraining the Union of India from giving effect to the order of the
President.
The petition was dismissed.
The respondent then
filed a petition on January 2, 1962 in the High Court of Calcutta
impleading the Chief Justice of the Court of Calcutta as a party
respondent praying for an order directing the Chief Justice to
treat him as continuing in office till December 27, 1964 and "to
assign judicial work" to him.
He urged that the decisi,on of the
Government of India in pursuance of which the Chief Justice
of the High Court had acted was "illegal, arbitrary and unconstitutional" and that the Chief Justice had no Jurisdiction to act
upon that decision.
That petition was dismissed in limine. But
a Special Bench of the High Court in appeal filed by the respondent directed that rule nisi be issued.
This Court dismissed an
appeal against the order of the High Court: Hon'ble Mr.
Justice
Himansu Kumar Bose, Chief Justice, High Court, Calcutta and
another v. Jyoti Prakash Mitter('). A Special Bench of five Judges
of the Calcutta High Court then heard the petition. The petition
filed by the respondent was ordered to be dismissed and the rule
was discharged.
This Court in appeal against the order of the
High Court : Jyofi Prakash Mitter v. Hon'ble Mr. Justice Himansu
Kumar Bose, Chief Justice, High Court, Calcutta and Another(2 )
_gave certain directions.
To appreciate the reasons for making
those directions it is necessary to take into account certain developmettts.
When the appeal was pending in 1his Court, Art. 217 of the
Constitutio'n was amended by the Constitution (Fifteenth Amendment) Act, 1963 and cl. ( 3) was added thereto to the following
effect with retrospective effect :
"If any question arises as to the age of a Judge of a
High Court, the question shall be decided by the Presi.,
dent after consultation with the Chief Justice of India
and 'the decision of the President shall be final."
Clause (1) of Art. 217 was also amended by !he Constitution
(Fifteenth Amendment) Act, 1963, with effect from October 5.
1963 and the age of superannuation of Judges of the High Court
was fixed at sixty-two yea rs.
<I) A.1.R. [1>61] S.C. 1636
(2) [1%5) 2 S.C.R. 5.1.
A
B
c
D
E
F
G
H
A
B
c
D
E
F
G
H
UNION v. J. P. MITTER (Shah, C.J.)
48&
This Court held that cl. (3) of Art. 217 having retrospective
operation, validity of the order passed by the President must bo
adjudged in the light of cl. (3) of Art. 217 and since the Ministry
of Home Affairs had placed the file
before the President in
accordance with the rules of business, the procedure could not be
assimilated to the requirements of Art.
217 ( 3) . The Court
observed:
"The question concerning the age of the appellant
(respondent herein) on which a decision was Teached
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 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 out to govern the
enquiry contemplated b~· Art. 217 (3);"
and that:
"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. 217 (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). Hoth 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
'490
SUPREME COURT REPORTS
(1971) 3 S.C.R.
and will continue to be a Judge until he attains the age
of superannuation."
Thereafter the President of India directed the Secretary.
Ministry of Home Affairs, to call upon the· respondent to "make
such representation as he may wish to make in the matter and
,produce such evidence as he may desire to produce in support of
his claim that his correct age should be determined on the basis
of his date of·birth being taken as December 27, 1904", and after
consulting the Chief Justice of India by order dated September
29, 1965, determined the date of birth of the respondent as
December 27, 1901.
The legality of the procedure followed by the President in
making the order is challenged by the respondent. It is, therefore,
necessary to set out in some detail the various steps taken before·
passing that order. On November 17; 1964 the Secretary of the
w:nistry of Home Affairs drew up a note tracing the history of the
l~igation upto the decision of this Court, and invited the President
to determine the age of the respondent under Art. 217 ( 3). The
note of the Secretary was submitted to the President through the
Minister of Home Affairs and the Prime Minister. On November 21, 1964 the Presid~l)t signed an order calling upon the respondent to make such representation as he may wish to make in
the matter and to produce such evidence as he may d(!sire. The
respondent submitted h:s representation on December 7,
1964
.and annexed therewith photostat copjes of two documents an
almanac and a horoscope on which he relied and certain affidavits. By his forwarding letter the respondent prayed for an oral
hearing before the President to e.nable him "to adduce his evidence and to produce in original the documents in the Annexures
and to make submissions in support of his ca>e". The respondent
repeated his request for oral hearing by a letter addressed to the
Secretary to the President on !he same day. On December 9,
1964 the Secretary to the Ministry of Home Affairs wrote to the
respondent asking him to send the original documents copies of
which were annexures to his representation to enable him-the
Secretary to place them before the President.
On the same date,
the Secretary to the Ministry of Home Affairs also supplied to the
respondent a copy of his note dated November 17, 1964, seeking
the determination of the President, and copy of the President's
directive dated November 21, 1964. After receiving the copies
the respondent by letter dated December 10, 1964 submitted an
additional representation. On the same date the respondent submitted to the Secretary, Ministry of Home Affairs, docume!lots in
original relied upon by him in his representation. On December
14, 1964 the respondent addressed a letter to the Secretary to the
President, forwarding a copy of his additional representation, with
B
c
D
E
F
G
H
UNION \'. J. P. MITTER (Shah, C.J.)
491
A
a request that representation together with the original documents,
which he had handed over to the Ministry of Home Affairs, be
calkd for from that Ministry and be placed before the President.
On December 21, 1964 the Secretary, Ministry of Home Affairs
sent a reply to the letter directing the respondent to send all the
evidence that he desired to rely upon and informing him that no
B
oral evidence of witnesses will be received, the respondent being
free to submit affidavits of witnesses. Referring to his request for
personal hearing it was stated in the letter that the· J:>resident will
decide after considering the evidence produced by the respondent
whether any personal hearing would be necessary, and that "should
he decide that you should be heard in person, you will
be inc
formed in due course". On December 31, 1964 the originals of
the horoscope and the almanac submitted by the respondent were
sent to the Director of the Central Forensic Institute, Calcutta by
the Ministry of Home Affairs with the request that the hori>scope
and the entry in ink in the margin of the almanac be examined
"with. a view to determine its genuineness with particular reference
D
to the age of the paper on which the horoscope had been prepared;
the age of the ink used; and the age of the writing ''with a similar
repryrt as to the genuineness of the entry in ink in the alman3c.
On January 4, 1965 the respondent submitted four additional
affidavits including his own affidavit affim1ing that the writing on
the margin of the almanac against the date 12 Paus, 1311 B.S ..
was that of his maternal uncle. Jadunath Bose. who had died \\·hen
E
he the respondent was a student of Oxford. By his letter dated
February 3, 1965 addressed to the Secretary. Ministry of Home
Affairs, the respondent protested against the reference of the documents to the expert. contending that the documents were obtained
from him on the representation that they "were required to bC
placed before the President".
The respondent demanded that ·; .
F
he be supplied a copy of the order of the President· by which such
reference to the expert had been made and also copies of the
correspondence between the Home Ministry aru:t the forensic expert.
He also requested that the originals of the documents be
returned to him so that he might have them ellamined b~· an
independent expert. who would, after his examination. give evid-
·G
ence as to his opinion. by ~ffidavit or otherwise. Jn reply 10 that
letter, the Secretary. Mm1stry of Home Affairs wrote that the
procedure to be followed and the opportunities to be given to the
respondent depended entirely upon the discietion of the President
and the question of re!uri~g the documents produced by the r~s
pon~ent bef?re deten!itnatton of the matter. pending before the
H
~resident, did not ans~ at that sta)?e,
The respondent was also
mfo;1~1ed that the ~ucstmn ~·hether he should have an opportunity
of filmg .expert evidence will be considered in due course.
He
was also informed that the respondent will be given an opportun:ty
2-918 Sur. c I 71
49Z
SUPREME COURT REPORTS
[1971]3 S.C.R.
to put forward his case about the evidentiary value of the document\ produced by him and any decision thereon would be arrived
at b\' the President after affording him reasonable opportunities in
that· behalf.
There was some correspondence between the Director of the
Central Forensic Institute, Calcutta and the Ministry . of Home
Affairs.
Thi: Commandant of the Iristitute opined that it was
"extremely difficult to solve dating problems in a completely
satisfactory manner". He initially sought instructions whether he
was at liberty to deface or mutilate the documents, because the
"test required :could not be made without extracting parts of the
documents, but later wrote that the mutilation of documents by
the chemical test was not desirable and moreover that by such
application it would not be possible to give an absolute date to
the document.
Thereafter the Director reported on a "limited
examination" that could be carried out that it was not possible
to give any opinion relating to the age of the ink writing on the
almanac", but in his view the horoscope could not have been
written earlier than 1909, because the paper on which it was
written c,mtained bamboo pulp which was not brought into the
use by the Titaghur Mills in the manufacture of paper before 1912.
The Director said nothing about the age of the ink in which the
horoscope had been written.
AJter consultations between the Ministry of Home Affairs and
the :\!inistry of Law, the Home Ministry sent certain old writings
of the year 1904, 1949, 1950 and 1959, and requested the Director :a determine the age of the writing of the disputed horoscope
and marginal note in the almanac by comparison. The Director
on . .\pri! 17, 1965 wrote that it "was impossible to give any definite opinion by such comparisons particularly when the comparison writings were not mad~ with the same ink on similar paper
and not 'stored under the same conditions as the docume,nts under
examination", and that it "will not be possible for a document
expert. however reputed he might be, anywhere in the world, to
give any definite opinion on the probable date of the horoscope
and the ink writing in the margin of the almanac"
After receiving the second report from the Director, the Ministry of Law raised the question about the opportunity to be given
to the respondent before the President in the enquiry for determinin.z the age of the respondent under Art. 217(3). It was then
decided to refer the question to the Chief Justice of India for
his advice. On July 24, 1965 the Chief Justice of India advised
the President about the procedure to be adopted in the determination of the age of the respondent.
Thereafter pursuant to
a
A
B
c
F
G
H
A
B
c
D
E
F
G
H
UNION V. J. P. MITTER (Slzah, C.J,)
' 493
suggestion made by the Law MiniHer , "
, .,,L .ry o~ . Home
Affairs wrote to the respondent on July 31, 1965 reqwnng him
to state the date or year of the horoscope.
The respondent by
his letter dated August 4, 1965, stated that it was not possible for
him to give definitely the date or year of the horoscope but he
asserted that it was at least in existence in the year 1921 when
it was consulted on the occasion of his marriage. On February
23, 1965 the respondent addressed a telegram to the President
requesting that an early decision of the question of his age may
be reached. On March 15, 1965 he addressed another telegram
to the President requesting leave to produce other documentary
evidence which he claimed may be available in East Pakistan,
but sometime thereafter he informed the Secretary, Ministry of
Home Affairs, that owing to lack of co-operation on the part of
the people in East Pakistan it was not possible to get the evidence
which was mentioned in his letter to the President and that he must
content himself with the evidence he bad already produced and
which in his view was "overwhelming". He furthei: stated :
"You can, therefore, take it that I have no further
evidence to P.roduce on the subject of my age, unless I
am driven to call an expert or experts as indicated by me
in my letter to you, dated 3rd February, 1965".
On August 13, 1965, copies of the reports of the Director of
the Forensic Science Laboratory were forwarded by the Home
Secretary to the respondent with a forwarding letter by which
the respondent was informed that if he had any comments to make
on the opinion expressed by the Director they may be submitted
and that if the respondent desired he m8y also adduce evidence
in rebuttal in the form of expert opinion supported by proper
affidavit, and that the commen1s, evidence and affidavits, if any,
may be sent within one month of the letter. On receipt of the
letter of the Home Secretary the respondent sent a telegram addressed to the Home Secretary on September 1, 1965, praying that
the President may call for all papers and documents, if not already
sent for and grant him an audience, "If at all necessary''. The respondent also wrote a letter 011 that day submitting that the evidence tendered by him was "conclusive" and there was no question
of adducing any further evidence or any evidence in rebuttal. He
also submitted that the entry in the Bihar and Orissa Gazette (de"
claring him successful at the
matriculation examination)
was
erroneous and concluded the letter that all relevant documents be
placed before the President, and that the President "may be
graciously pleased to grant "him" an audience for the purpose of
deciding the question of his age"
The file of the respondent's case was then submitted to the
President.
On September 16, 1965 the President referred the
494
SUPREME COURT REPORTS
[197 l J3 S.C.R.
matter to the Chief Justice of India asking him for his advice. On
September 28, 1965 the Chief Justice recommended that the age
of the respondent be decided on the basis that the respondent was
born on December 27, 1901.
The Chief Justice set out in detail
all the evidence including the reports of Dr. Iyengar, Director of
the Central Forensic Science Laboratory, Calcutta bearing on the
dispute as to 'the true date of birth of the respondent. The Chief
Justice of India thereafter observed :
" ........ the question which the President has to
.decide is whether the date of Mr. Milter's birth mentioned
on the occasions when he appeared for the Matriculation Examination as well as for the Indian Civil Service
Examination. is incorrect; and that would naturally turn
upon whether it is shown that the entry in ink on the
margin of the almanac showing that Mr. Mitter was
born on 27-12-1904, was contemporaneously made and
is correct as alleged by him. The horoscop.~ on which
Mr. Mittet relies, refers to the date and time of his
birth, but that do~s not help Mr. Mitter very much, because it is obviously based upon information given
to
J yotish-Sastri Shri J ogesh Chandra Deba Sarma on the
basis of the entry in the almanac. I have carefully considered the reports made by Dr. Iyengar. the comments
on them made by Mr. Mitter, the affidavits on which Mr.
Mitter relies, and the almanac and the horoscop.~ on
which he bases his case. I have also taken into account
all the other relevant facts. relating to the pL>r history
of this dispute, the conduct of Mr. Mitter, the grounds
on which he challenged the earlier orders passed in this
matter, and I have come to the conclusion that it is not
shown satisfactorily that the entry in ink on the margin
of the almanac was made contemporaneously and
is
correct as alleged by Mr. Mitter.
1 am, therefore, unable to accept his case that the date of his birth which
was shown at the ti.me when he appeared for the Matriculation Examination as well as.for the T.C.S. Examination "was exa~gerated".
I would, therefore. advised the President to hold
that Mr. Mitter has failed to show that he was born on
27-12-1904 and not on 27-12-1901; and that the question about his age should be decided on the bash that
he was born on 27-12-1901".
The file containing the advice was then returned to the Pre-
<idcnt. It appears however that after the file was received in the
·President's Secretariat, it was sent to the Secretary, Ministry of
A
B
c
D
E
F
G
H
..
A
B
c
•
D
E
F
G
H
UNION r. J. P. MITTER (Shah, C.J.)
49:<
Home Affairs for putting it up before the Home Minister before
submitting it to the President. The Home Secretary on September
29. 1965 put up the matter before the Home Minister with th<!
following endorsement :
"A summary of the case will be found at slip ·z·.
The Chief Justice of India has offered hi1 advice in his
minute. . . . . . . . after going into the relevant material.
H.M. (Horne Minister) may recommend to the President
•that the age Shri J. P. Mitter may be determined in 3C·
cordance with the advice of th~ Chief Justice of India."
The Home Minister and the Prime Minister countersigned
that endorsement. The file was then placed before the President
on the same day i.e. September 29, 1965. The President recorded
his decision that he accepted "the advice tendered by th,e Chief
Justice of India and "decided" that the age of Sri Jyoti Parkash
Mitter should be determined on the basis that he was born on
the twenty-seventh December nineteen hundred and one" .
The Secretary, Ministry of Home Affairs communicated the
decision of the President to the respondent.
On October
15,
1965 the respondent addressed a letter to the President praying
that the decision which had been ,made without affording him an
audience should be reopened and that he should be granted an
audience in the presence of the Chief Justice of India and a representative of the Home Ministry. The Home Secretary inform·
ed the respondent that the President's
decision was final and
could not be reopened.
He also pointed out that though the
respondent was offered the opportunity of commenting on the
opinion of the Government expert, he-the respondent-had by
his letter of September 1, I 965 declined that offer.
On August 3, 1966 the respondent moved tht.: petition out of
which this appeal arises claiming a writ in the n~ture of mandamlls
commandin11 the Union of India ( i) to act and proceed in ac·
cordance with law, (ii) to rescind, recall and withdraw the purported decision of the President conveyed to him by the Secretary
to the Government of India in his letter dated October 13, 1965
and (iii) to forbear from giving effect or further effect to the
purported decision of the President.
The petition was heard by D. D. Basu, J. After an elaborat~
discussion of the history of the dispute and decisions of the Courts
in India and abroad, under diverse heads, the learned Judge concluded:
that " ........ the impugned order of the President,
the purport of which was communicated to the petitioner
496
SUPREME COURT REPORTS
(1971 J 3 S.C.R.
(respondent) by the letter of the Home Secretary, dated
13-10-1965 is not a 'decision' of the President in term of
An. 217 (3), because--
A. Whether the function is quasi-judicial or administrative he acted as recommended by the Home Minister
and the Prime Minister, who are extraneous to the function under Art. 217 (3);
B. The function being quasi-judicial-
(i) the President was not given su.fficient time and
opportunity to exercise his independent judgA
B
ment on the question before him;
c
(ii) the petitioner was not given a personal hearing
before the President, as called for by. the circumstances of the case.
C. The jurisdiction of this Court to interfere on the
above grounds is not barred by the finality under
Art. 217 (3)".
He directed the Union of India not to give effect to the order
of the President as communicated by the letter of the Home Secretary dated October 13, 19.65. The learned Judge observed that
the Union of India, may, if so advised, place the matter before the
President again, within two months from the date -0f the judgment, inviting him to decide the age of .the respondent in ac·
<:ordance with Art.
217 ( 3) .
On behalf of the Union of India a prayer for a certificate
under Art. 112( 1) of the Constitution was made. Observing that
the case involved a substantial question of law as to the inter-
-pretation of article 217(3) of the Constitution, D.b. Basu,
J.
granted the certificate prayed for under Art. 132 ( 1) of the Constitution.