Himansu Kumar Bose vs Jyoti Prokash Mitter

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: Appeal (civil) 485 of 1963

Decision Date: 14 October 1963

Coram: P.B. Gajendragadkar, K. Subbarao, K.N. Wanchoo, M. Hidayatullah, J.C. Shah

In the appeal titled Himansu Kumar Bose versus Jyoti Prokash Mitter, the petitioner's name was recorded as Himansu Kumar Bose and the respondent’s name as Jyoti Prokash Mitter, both identified as Chief Justices of High Courts. The judgment was rendered on 14 October 1963 by a bench consisting of P.B. Gajendragadkar, K.N. Wanchoo, M. Hidayatullah, K. Subbarao, and J.C. Shah, and it was reported in AIR 1964 SC 1636. The case, numbered Appeal (Civil) 485 of 1963, began with a preliminary question concerning the propriety of issuing a rule nisi on a petition filed by the respondent, who was a Judge of the Calcutta High Court, against the appellant, the Chief Justice of that same High Court. This question produced a discordant view among the judges of the Calcutta High Court. The respondent’s petition sought a writ of mandamus or any appropriate direction under Article 226(1) of the Constitution, asking that the order issued by the appellant, which declared the respondent retired from judicial service effective 27 December 1961, be recalled. He also asked that he be reinstated to his duties, functions, rights, and privileges as a High Court judge. The petition was lodged on 2 January 1962. Acting as the trial judge, B.N. Banerjee held, citing the 1962 (1) LLJ 708 decision, that a rule nisi was unnecessary, and consequently dismissed the petition in limine on 3 January 1962. The respondent appealed this dismissal before a Division Bench composed of Judges Mitter and Laik. Judge Mitter affirmed the trial judge’s refusal to issue a rule nisi, whereas Judge Laik took the opposite view, leading to a split decision. Because of this divergence, the learned Chief Justice formed a Special Bench of three judges—P.N. Mookerjee, Sankar Prasad Mitra, and R.N. Dutta—to consider the appeal. The Special Bench heard the arguments, each judge delivering a concurring opinion, and together concluded that the trial judge had erred in refusing the rule nisi. Accordingly, they allowed the respondent’s appeal and directed that a rule nisi be issued in accordance with the first prayer of the original petition. The appellant then sought special leave to approach this Court, challenging the Special Bench’s reversal of the trial judge’s decision. The sole question presented for determination before the Supreme Court was whether the Special Bench was justified in overturning the trial judge’s refusal to issue a rule nisi.

The petition submitted by the respondent sets out his grievance that the impugned order relies on an incorrect date of birth. He asserts that he was born on 27 December 1904, whereas the order assumes his birth to have occurred on 27 December 1901. Under article 217(1) of the Constitution a judge must retire upon attaining the age of sixty years, and the respondent claims that he would reach that age only on 27 December 1964. The record shows that he was enrolled as a barrister of the Calcutta High Court on 5 May 1931, appointed an additional judge of that High Court on 11 February 1949, and became a permanent judge in January 1950. At the time of his appointment he furnished the date of birth as 27 December 1904. In April 1949 the Ministry of Home Affairs of the Government of India questioned the correctness of the age he had declared, after noting an extract from the Bihar and Orissa Gazette dated 26 June 1918. That extract recorded the results of the Patna University matriculation examination held in April 1918 and listed the respondent’s age as sixteen years and three months, which points to a birth date of 27 December 1901. Further, the Home Minister learned that when the respondent sat for the Indian Civil Service competitive examination in July‑August 1923, the birth date recorded there was also 27 December 1901. Consequently the Home Minister raised the issue of the respondent’s age with respect to his appointment as an additional judge. Subsequent correspondence took place between the respondent and the Ministry of Home Affairs, culminating in a letter dated 16 May 1961 from the Secretary of the Ministry. In that communication the Government, after careful consideration of the respondent’s explanation and in consultation with the Chief Justice of India, decided that the age shown in the Bihar and Orissa Gazette of 26 June 1918 should be treated as the correct age. Accordingly, the Government directed that the respondent vacate his position as a puisne judge of the Calcutta High Court on 26 December 1961, after court hours. Throughout his correspondence with the Government, however, the respondent maintained that his true date of birth is 27 December 1904 and contested the Government’s conclusion.

In his writ petition the respondent asserted that his true date of birth was 27 December 1904, a claim he later supported by referring to his horoscope and an entry in an almanac. On the basis of these facts the respondent contended that the Home Minister lacked the authority to determine his age and that the birth date he had supplied at the time of his appointment as an Additional Judge in 1949 had been accepted by the Government of India and therefore could not be subsequently challenged. Relying principally on the conclusiveness of the birth date he had given and which the Government had accepted, the respondent sought a writ of mandamus against the appellant. He argued that the direction issued by the appellant, which was predicated on the respondent’s retirement being deemed to have occurred on 27 December 1961, should be set aside and that he should be recognised as having remained a Judge of the High Court until 27 December 1964. This formulation summarises the principal contentions advanced by the respondent in his writ petition and outlines the scope of the enquiry that his pleadings would entail. Prior to filing the present petition in the Calcutta High Court, the respondent had approached the Punjab High Court with a writ petition against the Union of India on 15 November 1961. That petition was disposed of by a Division Bench consisting of Chief Justice G. D. Khosala and Justice Bedi on 4 December 1961, the bench dismissing the petition. The respondent subsequently applied to this Court for special leave to appeal the Punjab High Court’s decision, but that application was dismissed at the threshold. At the trial stage, Justice Banerjee, acting as the trial judge, declined to issue a writ. He reasoned that it was unnecessary to involve the appellant because there was no substantive merit in the respondent’s contentions. Justice Banerjee appeared to hold that the Punjab High Court’s dismissal of the earlier writ petition operated as a matter of res judicata. He further concluded that the appellant was under no obligation to accept the respondent’s statement of his age, even though that statement had been accepted at the time of his appointment as an Additional Judge and recorded in the official record. Justice Banerjee also noted that the Ministry of Home Affairs, Government of India, had not been impleaded in the present writ petition and expressed the view that, unless the Ministry’s position were reversed, the respondent could obtain no relief. From that reasoning he inferred that the non‑joinder of the Union of India constituted a defect in the petition, and he consequently refused to issue a rule nisi.

The Court observed that the failure to join the Union of India in the respondent’s writ petition constituted an infirmity in the petition. The learned Judge noted that the appellant had not taken a decision regarding the respondent’s date of retirement. He further held that the Government of India’s decision on that matter was, in effect, binding upon the appellant. Referring to the observation of the Chief Justice, the learned Judge quoted, “The Chief Justice of this Court has merely taken note of that decision,” and added that this was the only action the Chief Justice could undertake under the circumstances of the case. In view of these findings, the learned Judge Banerjee declined to issue a rule nisi.

When the appeal was heard before Judges Mitter and Laik, Judge Mitter dismissed the respondent’s claim that his declaration of date of birth made at the time of his appointment as an Additional Judge was conclusive. He therefore framed three questions for consideration in the respondent’s writ petition and subsequently reached findings largely adverse to the respondent, concluding that Judge Banerjee’s refusal to issue a rule nisi was justified. The first question addressed whether the Government of India possessed the authority to reopen the issue of the respondent’s age and to determine it anew. The second question examined whether exercising such authority would amount to an intrusion upon the powers of Parliament protected by Article 124 of the Constitution. The third question considered whether the age of a Judge was a matter justiciable in a Court of Law. The learned Judge did not elaborate the reasons supporting these conclusions. Judge Laik, taking a contrary perspective, held that the sole issue to be decided in the writ petition was whether the appellant was correct in deeming the respondent retired as of 27 December 1961 based on the Ministry of Home Affairs’ decision, and he concluded that a summary dismissal, as effected by Judge Banerjee, would be improper.

The divergence of opinion between the two judges on the Appellate Bench led to the referral of the matter to a Special Bench consisting of three learned Judges. In his judgment, Judge Mookerjee examined the matters raised before the Special Bench and endorsed the detailed judgment delivered by his colleague, Judge Mitra. Judge Mookerjee observed that the material before the Court did not, at first glance, present a factual dispute of such magnitude or complexity as to warrant dismissal of the writ petition at the outset. He also noted that the learned Advocate General had not contended before the Special Bench that no writ lay against the appellant. Finally, Judge Mookerjee addressed two arguments presented on behalf of the appellant concerning the irregular presentation of the respondent’s writ petition and the alleged suppression of material facts, and he rejected both contentions, thereby supporting the issuance of a rule nisi.

In this case the Court observed that the two contentions raised by the appellant—namely the alleged irregular presentation of the respondent’s writ petition and the alleged suppression of material facts—were both rejected, and it was held that a rule nisi should be issued. The judgment of Mitra, J., which was elaborate, arrived at the same conclusion although for somewhat different reasons. Mitra, J., held that the decision of the Punjab High Court did not create a bar of res judicata, and he noted that the possible existence of disputed questions of fact in the present proceedings did not constitute a reason to refuse the issuance of a rule nisi. In reaching this view he examined several relevant decisions and expressed serious doubt as to whether the appellant ought to have acted upon the decision or suggestion of the Ministry of Home Court; for that reason he also directed the issuance of a rule nisi. The judgment of Dutt, J., characterized the matter before the Special Bench as having a very limited scope. He explained that the sole question for consideration at that stage was whether, on the basis of the facts disclosed in the respondent’s writ petition and its annexure, there existed a prima facie case for the issuance of a rule nisi against the appellant. He observed that some of the respondent’s contentions appeared prima facie to have considerable force; although it was neither necessary nor desirable to determine those questions at that stage, it was clear that the case warranted the issuance of a rule nisi. Consequently, the Special Bench reversed the earlier decision of Banerjee, J., and directed that a rule nisi be issued. The Court further noted that the respondent’s extreme position—that the declaration of his date of birth made before his appointment as an Additional Judge of the Calcutta High Court, and entered in official records, conclusively settled the matter and barred any later challenge—could not be justified. It was pointed out that a High Court Judge must satisfy the constitutional requirement of not having attained the age of sixty years, and it would be unreasonable to hold that the question of his age could not be raised merely because of a prior declaration accepted by the Government of India. Moreover, the Court recognized that any litigant could, in principle, raise a question regarding the competence of a Judge to hold office on the ground that he has reached the age of sixty years.

The respondent could be challenged on the ground that he had reached the age of sixty years, and a serious allegation of this nature would have to be resolved by a proper judicial proceeding. Nevertheless, the respondent may also argue that the Government of India lacked authority to decide the question administratively because no constitutional provision authorized such a determination. On that basis, he would be entitled to request that the High Court examine the matter judicially. He would seek appropriate relief if he can satisfy the Court that his true date of birth is 27 December 1904, not the 27 December 1901 date recorded by the Government. The Court indicated that the present appeal would be dealt with on this foundation, considering the alleged discrepancy in the respondent’s birth date. For clarity, the Court referred to the constitutional position that existed at the time the writ petition was filed. The learned Attorney‑General submitted that the Special Bench was not justified in overturning the trial Judge’s order refusing to issue a rule nisi. He contended that issuing a rule nisi on a writ petition under article 226(1) is discretionary, and the appellate Court should not have interfered with the trial Judge’s discretion. The Court identified two clear responses to this contention, each addressing a different aspect of the appellate review. First, it observed that both the Special Bench’s order and the trial Judge’s order are interlocutory. Although article 136 confers broad powers on this Court, it normally refrains from disturbing interlocutory orders issued by High Courts. It further noted that although the trial Judge exercised discretion against the respondent, the Special Bench, on appeal, exercised its own discretion in favor of the respondent and against the appellant. Consequently, the order under review merely commands that a rule nisi be issued to the parties. It also mandates that the substantive questions raised by the respondent be finally determined after the appellant has been given an opportunity to respond to the material allegations in the writ petition. In view of this procedural landscape, the Court saw no reason to intervene under article 136. Beyond this technical consideration, the Court found the trial Judge’s reasons for refusing a rule nisi to be unsatisfactory. The Court will presently explain that the trial Judge’s view of the effect of the Punjab High Court judgment is prima facie open to criticism for not properly appreciating its legal effect. Moreover, the Court noted additional deficiencies in the trial Judge’s reasoning, which will be addressed in the following discussion. Besides, the

The trial judge had ruled that an administrative decision of the Government of India, which could be taken after consultation with the Chief Justice of India, settled the question of the respondent’s age. In his view, the appellant was not permitted to revisit that decision on his own and was obliged to accept the government’s determination as the final resolution of the matter. Concerning the absence of the Union of India as a party, the trial judge noted that no pleading had been presented by the appellant on that issue; consequently, the judge held that it would be unfair to treat the Union’s non‑joinder as a fatal defect in the respondent’s writ petition that would justify refusing to issue a rule nisi. After a careful review of the trial judge’s reasons for refusing to issue a rule nisi, the Special Bench concluded that the trial judge’s approach was unsatisfactory and unsound. The Court observed that, in practice, writ petitions filed in High Courts under Article 226 that raise merely arguable matters of limited importance are ordinarily met with the issuance of a rule nisi. By contrast, the present petition presented questions of considerable significance, and there was no reasonable basis for declining to follow the usual procedure. The Attorney‑General for the Union contended that four specific questions needed to be addressed on appeal and suggested that the answers to those questions would inevitably favour the appellant and disfavor the respondent, thereby justifying the trial judge’s refusal to issue a rule nisi. The Court was not persuaded by that argument. It clarified that, while it would not express an opinion on the substantive merits of the four points raised, each point merited careful examination, and such scrutiny would itself demonstrate the merit of the respondent’s request for a rule nisi. The first of those points related to the competence of a High Court to issue a writ against its own Chief Justice. On that issue, the Advocate‑General had previously made a concession in favour of the respondent before the Special Bench. The Attorney‑General argued that he should not be bound by that concession, claiming that the concession had been made only because the question of a writ’s competence against a High Court’s Chief Justice had already been settled, as far as the Calcutta High Court was concerned.

In this case the Court observed that the Calcutta High Court had recently decided the matter in Pramatha Nath Mitter v. Chief Justice of the High Court, Calcutta, reported in 1961 AIR (Cal) 545 (Special Bench). The Court also noted that a Special Bench of the same High Court had taken a contrary view in Pradyat Kumar Bose v. Chief Justice of the High Court, Calcutta, identified as Matter No. 189 of 1952 and dated 27 October 1953 (Cal.) (Special Bench). When that latter decision was later placed before this Court in Pradyat Kumar Bose v. Chief Justice of the High Court, Calcutta, reported in 1956 AIR (SC) 285, the Supreme Court expressly left the question open for future determination. On the merits of the appeal, the Supreme Court confirmed the earlier decision of the Calcutta High Court that was then under appeal and stated that, as far as the competence of a writ petition against the Chief Justice of the High Court was concerned, it did not feel required to examine the substantive merits of that issue. Justice Jaganathadas, speaking for the Court, added that the power to dismiss a civil servant is an administrative power and that this fact “may not necessarily preclude the availability of a remedy under Article 226 of the Constitution in an appropriate case,” but he carefully qualified the remark by declaring that the Court expressed no definitive opinion on the matter either way.

The Court further explained that the Special Bench of the Calcutta High Court, in the Pramatha Nath Mitter case (1961 AIR (Cal) 545), had read Justice Jaganathadas’s observations as constituting a decision that a writ of habeas corpus or a similar judicial remedy could lie against the Chief Justice of the High Court. The learned Attorney‑General contended that this point nevertheless required a decision of this Court and that the appellant should not be considered bound by the concession that the learned Advocate‑General had been compelled to make before the Special Bench of the Calcutta High Court. The respondent concurred that the question ought to be decided by this Court on its merits. Nevertheless, the Attorney‑General clarified that, should this Court be inclined to affirm the view expressed by the Special Bench, it would be appropriate to leave the ultimate determination of the question to the Calcutta High Court as the court of first instance. The Attorney‑General’s submission was therefore that the matter, if accepted in the manner suggested, should be remitted for fresh consideration by the High Court rather than being finally resolved at the Supreme Court level.

The Court reminded that, as a general principle, it prefers that disputes of this nature first be resolved by the trial court and, where an appeal is permissible, by the appellate court, so that the conclusions of the High Court judges can be examined before a final determination is made by this Court. In accordance with that practice, and having regard to the conclusion reached in the present proceedings, the Court decided to accede to the request made by the learned Attorney‑General and therefore refrained from dealing with the merits of the point in question.

The Court stated that it would not consider the merits of the first issue presented. It added that this issue had not been argued before the learned trial judge because the trial judge had not issued a rule nisi, and consequently the appellant had not been required to file a proper return to the respondent’s writ petition. The second issue raised by the learned Attorney‑General concerned the effect of the judgment of the Punjab High Court that had dismissed the respondent’s writ petition. On this point the Court again chose to express no opinion, but it observed that the Punjab High Court’s decision was founded on two separate grounds. The first ground, set out clearly by the learned Chief Justice in the division‑bench judgment, was that when the respondent filed the writ petition no order removing him from his post had been passed; therefore the respondent could not simply disregard the opinion of the Home Ministry but could be removed only by an address of each House of Parliament as required by proviso (b) to Article 217(1) of the Constitution. The Chief Justice said that on that ground alone the writ petition should be dismissed. The judgment also appeared to comment on the merits by stating that the learned Chief Justice was convinced, on material placed before the Court, that the Home Ministry was correct in accepting the respondent’s age as recorded in the Bihar and Orissa Gazette and in the certificate filed by the respondent with his Indian Civil Service application. The Court noted that it must be examined whether this latter finding operates as res judicata. To determine that, the whole judgment and the effect of both findings would have to be considered, a matter that unquestionably requires argument. Accordingly, the Court observed that the trial judge’s incidental reference to the Punjab High Court decision and the use of that reference as a reason for refusing to issue a rule nisi did not appear to be justified.

The third ground advanced by the learned Attorney‑General was that the Union of India was not a party to the present proceedings. The Court indicated that this point could be pleaded by the appellant and then examined. If the respondent could not satisfy the Court that it was unnecessary to join the Union of India to the writ proceedings, the respondent could seek liberty to add the Union of India as a party. The Court would then have to consider whether to grant such permission. Thus, while the Court expressed no opinion on the substantive merits of this ground, it outlined the procedural steps that could be taken should the necessity of adding the Union of India be established.

The reference to India indicates that, in the absence of a return being filed by the appellant, the trial judge ought not to have dismissed the respondent’s writ petition. The final ground raised contended that the issue of the respondent’s date of birth constituted a disputed question of fact and therefore should not be tried within writ proceedings. The Court observed that, on this point, arguments might need to be heard and the impact of the relevant judicial decisions would have to be examined. In this regard, Justice Mitra, who served on the special Bench, cited several decisions of this Court to support his preliminary view that, even where questions of fact are disputed, a writ petition may, in appropriate circumstances, address those factual issues. The Court expressly refrained from adopting any opinion on this specific matter, yet referenced Justice Mitra’s position to underline that when a writ petition is likely to raise questions of law of this nature, it constitutes a clear basis for issuing a rule nisi, thereby ensuring that the parties receive a full hearing before such questions are judicially determined. Consequently, the four contentions articulated by the learned Attorney‑General themselves demonstrate that the matters to be considered on the respondent’s petition are, in effect, triable issues, making it inappropriate to dismiss the petition at the outset. As previously noted, the central question around which the entire controversy revolves concerns the competence of the Home Minister to determine the correct age of a High Court judge. This issue is of paramount importance because its resolution is intimately connected with the status, dignity and independence of the judiciary in this country, and it brings with it several ancillary points that have already been mentioned. Accordingly, the Court is satisfied that the Special Bench was correct in concluding that the trial judge should have issued a rule nisi and should have called upon the appellant to file his return, so that the disputed points between the parties could be clearly defined and the matter could be decided in accordance with law after allowing the parties to submit to the Court any material permissible under Article 226. The Court expressed regret that the matter had to proceed through three hearings without a return from the appellant. In the result, the Court found no reason to interfere with the order made by the Special Bench. When the appeal was argued, it was reported that the Fifteenth Constitution Amendment Act had been signed by the President, and the Court enquired of the learned Attorney‑General whether he wished to raise any argument based on the relevant provision of that Act, which addresses, among other matters, the determination of a High Court judge’s age if

In this matter, the Court noted that a dispute might arise concerning the provision of the Fifteenth Constitution Amendment Act that dealt with determining the age of a High Court or Supreme Court judge. The Court indicated to the learned Attorney‑General that, should he wish to rely on that newly‑signed provision, it would be necessary to allow the respondent time to consider the issue because the Amendment had been signed only a day before the appeal was called before the Court. The respondent, Sri Mittar, who appeared in person, replied that he required no additional time and that he would be ready to meet any argument the Attorney‑General might raise under the said provision. Nevertheless, at the hearing, the learned Attorney‑General neither referred to the specific provision of the Amendment Act nor advanced any argument based on it. Consequently, the Court proceeded to decide the appeal without reference to the Fifteenth Constitution Amendment Act, applying the law as it stood at the time the original writ petition was filed. The Court also observed, in passing, that it would have been preferable if the judges of the Special Bench, when dealing with the matter, had refrained from criticizing the manner in which the reference to the Special Bench was made and had avoided commenting on the policy underlying the amendment that sought to prescribe the method for determining a judge’s age when a dispute arose on that point. For these reasons, the Court concluded that the appeal failed and ordered its dismissal, and it made no order as to costs.