09 November 1964
Supreme Court


Case number: Appeal (civil) 856 of 1964






DATE OF JUDGMENT: 09/11/1964


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



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 54 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.



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.  55 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



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. 56 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. 57 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



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



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



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



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. 62 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



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 64 Art. 217(3).  This position is not disputed by the appellant before 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 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  65 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



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 66 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



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.  67 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 68 informality  of the said consultation does not squarely  fit



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  69 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



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 70 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



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  71 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. 72