Jyoti Prokash Mitter vs Honble Mr. Justice Himansu Kumar Bose

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

Court: Supreme Court of India

Case Number: Civil Appeal No. 856 of 1964

Decision Date: 9 November 1964

Coram: P.B. Gajendragadkar, K.N. Wanchoo, M. Hidayatullah, Raghubar Dayal, J.R. Mudholkar

In the matter of Jyoti Prokash Mitter versus Honorable Mr. Justice Himansu Kumar Bose, the Supreme Court of India rendered its judgment on 9 November 1964. The reasons were authored by Justice P.B. Gajendragadkar and the bench comprised Justices P.B. Gajendragadkar, K.N. Wanchoo, M. Hidayatullah, Raghubar Dayal and J.R. Mudholkar. The petitioner was Jyoti Prokash Mitter and the respondent was Hon’ble Mr. Justice Himansu Kumar Bose, then Chief Justice of the High Court. The judgment was reported in 1965 AIR 961 and 1965 SCR (2) 53, and it is also cited in later reports as RF 1971 SC 1093 (4) and D 1974 SC 2192 (143). The case arose under Article 217 of the Constitution of India as amended by the Constitution (Fifteenth Amendment) Act 1963, which deals with disputes concerning the age of a sitting High Court judge.

The factual controversy centred on a discrepancy between the date of birth that the appellant had provided at the time of his appointment as a Judge of the Calcutta High Court and the date recorded in the public examination records on which he had qualified. After receiving correspondence from the parties, including the Chief Justice of India and the appellant himself, the Union Home Minister examined the matter and concluded that the appellant’s correct date of birth was 27 December 1901, as shown in his Matriculation Examination record. By an order dated 15 May 1961, the President approved the Home Minister’s decision and directed that the appellant should vacate his office on 26 December 1961, which was the date on which he would attain the statutory retirement age.

The appellant challenged the order before the Punjab High Court, which dismissed his writ petition. He then sought special leave to appeal before the Supreme Court, but that application was initially dismissed in limine. Following the Union Government’s directive, the Chief Justice of the Calcutta High Court asked the appellant to demit his office on the specified date and thereafter did not assign him any judicial work. The appellant subsequently filed a writ petition under Article 226 of the Constitution before the Calcutta High Court, and that petition was also dismissed. The Supreme Court later granted him special leave to appeal.

In his appeal, the appellant argued that once his age had been accepted by the Government at the time of his appointment, it could not be reopened for dispute, and that the Government could not, by an executive order, determine his age anew. The controversy was framed by the constitutional amendment that added clause (3) to Article 217, providing that any dispute as to the age of a High Court judge shall be decided exclusively and finally by the President of India in consultation with the Chief Justice of India. The amendment also declared that this provision shall be deemed to have always been part of the Constitution. Both parties agreed that, after the retrospective effect of the amendment, the principal question for the Court was whether the order issued by the Union Government regarding the appellant’s age and his date of superannuation could be considered an order made under Article 217(3).

The Court held that the determination of the appellant’s age and the date of his superannuation could be treated as an order made under Article 217(3). It observed that when a question is raised concerning the age of a judge who is presently holding office, it is appropriate for the President to decide the matter. The President must consider, in consultation with the Chief Justice of India, whether the dispute is genuine. The Court emphasized that resolving such a dispute serves the interests of the judge himself and also safeguards the integrity and reputation of the administration of justice. Consequently, it could not be said that the age a judge states at the time of his appointment can never be questioned again (see paragraphs 65 E‑F).

The Court further concluded that the Chief Justice of the Calcutta High Court was correctly justified in refusing to assign any work to the appellant after 26 December 1961, because any judgments rendered by the appellant after that date would have been susceptible to challenge on the ground of doubtful validity (see paragraph 66 B‑C). Regarding the Punjab High Court’s dismissal of the appellant’s writ petition, the Court held that that dismissal did not operate as res judicata because it had not been decided on the merits (see paragraph 71 A).

Article 217(3) was interpreted as giving the President exclusive authority to determine the age of a sitting judge, thereby removing jurisdiction from the courts in this respect. While the President enjoys discretion in the procedure to be followed, the Article expressly requires a formal consultation with the Chief Justice of India. In addition, the Article implies that the judge concerned must be afforded a reasonable opportunity to present his version of events and to produce any evidence he wishes (see paragraph 64 B‑D).

The Court noted that the amendment making the provision retrospective required the appeal to be decided on the basis that, if on the merits the President’s decision was justified, the order could be regarded as a decision under Article 217(3) (see paragraph 65 A). However, the order issued by the Union Government on 15 May 1961 did not fulfil the requirements of Article 217(3) and therefore could not be characterised as an order made under that provision. The decision had been taken by the Home Minister, not by the President, and the offer to refer the matter to arbitration and the subsequent reopening of the issue did not conform to the statutory requirements. Moreover, the consultation with the Chief Justice of India was informal and did not meet the mandatory formal consultation stipulated by the Article (see paragraphs 67 B‑C, G‑H; 68 A). The Court referred to the authorities Srinivas Mail Bairoltva v. King Emperor, I.L.R. 26 Pat. 460 and Alexander Brogden and others v. The Directors of the Metropolitan Railway Company (1876‑7) 11 A.C. 666.

Finally, the Court held that the order was not a proper order under Article 217(3) because the requirements of natural justice had not been satisfied, since the President had not been provided with the opportunity to consider the appellant’s evidence.

When the President considered the matter, the appellant chose not to introduce any documentary proof concerning his own age. The appellant argued that the executive branch lacked the authority to examine or determine his age, and therefore any such request for evidence was improper. The appellant’s argument was accepted as well founded because, under the prevailing legal framework, a dispute regarding a judge’s age was required to be resolved through judicial proceedings before a High Court possessing the appropriate jurisdiction. Consequently, the appellant’s refusal to submit the evidence could not be used against him in an unfair manner. The Court noted that the appellant was therefore entitled to have his age decided by the President of India in accordance with Article 217(3) of the Constitution, and the Court subsequently issued orders that were mutually agreed to by the parties involved.

The appeal before this Court arose under Civil Appeal No. 856 of 1964, filed by special leave from a judgment and order dated 21–22 May 1964 of the Calcutta High Court in Matter No. II of 1962. The appellant appeared personally, while counsel representing respondent No. 1 included the Attorney‑General and other senior counsel, and counsel for respondent No. 2 also comprised the Attorney‑General and additional senior counsel. The judgment was delivered by Chief Justice Gajendragadkar. The central issue for determination was whether the President’s order dated 15 May 1961, which approved the proposed action against the appellant, Jyoti Prokash Mitter, constituted a decision on the question of the appellant’s age as required by Article 217(3). The President had received a note containing a proposal that the appellant’s correct date of birth be recognized as 27 December 1901, and that he should vacate his position as a puisne Judge of the Calcutta High Court on 26 December 1961, the day he would turn sixty. A draft of the intended letter to the appellant accompanied the note. On the official file, the President entered the order “approved.” The Court examined whether this approval fell within the scope of Article 217(3), noting that although the order was issued before the amendment adding clause (3) to Article 217 became effective on 5 October 1963, Section 4(b) of the Fifteenth Amendment declared the clause to be deemed as having always been part of the Constitution, thereby giving the amendment retrospective effect. Accordingly, the Court needed to consider whether the President’s 1961 order could be treated as a decision under the amended constitutional provision.

The writ petition numbered 13 of 1962, which gave rise to the present appeal, was filed by the appellant in the Calcutta High Court on 2 January 1962. In that petition the appellant sought a mandamus and/or appropriate directions, orders or writs under article 226(1) against respondent number one, the Chief Justice of the Calcutta High Court. The relief sought required the Chief Justice to recall the order that had declared the appellant retired from his judicial office effective 27 December 1961. The writ petition experienced a troubled procedural history. Before Banerjee, J., the petition was presented for issuance of a Rule Nisi. The judge concluded that a Rule Nisi was unnecessary and dismissed the petition in limine on 3 January 1962. The appellant challenged that dismissal by filing an appeal under the Letters Patent to a Division Bench of the High Court. The Division Bench, constituted by Mitter and Laik, JJ., was divided in opinion, prompting the Chief Justice to constitute a Special Bench of three judges to consider the appeal. The Special Bench, comprising P. N. Mookerjee, Sankar Prasad Mitra and R. N. Dutt, JJ., heard the case and each delivered a concurring judgment. All three judges agreed that Banerjee, J. had erred in refusing to issue a Rule Nisi. Consequently they allowed the appellant’s appeal and ordered that a Rule Nisi be issued in accordance with prayer (1) of the petition. Respondent number one appealed that order to this Court by obtaining special leave. By a judgment dated 14 October 1963, this Court affirmed that the Special Bench was correct in directing issuance of a Rule Nisi. Accordingly, the Court dismissed the appeal filed by respondent number one. Following that decision, the writ proceedings returned to the Calcutta High Court for final disposition on the merits, in accordance with the direction of this Court.

At the next stage, a Special Bench of five learned judges of the Calcutta High Court was constituted to consider the substantive issues raised in the writ petition. The controversy between the parties was extensive, involving numerous constitutional questions of law that were argued exhaustively before the Bench. Each of the five judges delivered a separate, detailed judgment addressing the points advanced by the parties. Each judge examined the arguments, applied the relevant constitutional provisions, and articulated his own reasoning. Justice P. N. Mookerjee, in his judgment, accepted the principal pleas advanced by the appellant. He directed that an appropriate writ, order or direction be issued against respondent number one, commanding him to refrain from giving effect to the impugned order. Additionally, he required that the President first make a proper determination of the appellant’s superannuation age before the order could be acted upon. He, however, added that the operation of the order which he proposed to. The direction sought to stay the effect of the retirement order pending a definitive presidential determination, thereby preserving the appellant’s position until the statutory age limit could be ascertained. Such a stay was intended to prevent any irreversible consequences until the President’s decision was final.

In the earlier judgment of the Calcutta High Court, Justice P. N. Mookerjee indicated that the order he proposed to issue should remain stayed for a period of three months, allowing respondent No. 1, if advised, to obtain a determination from the President concerning the appellant’s age and to act in accordance with that determination. By contrast, the four other judges on the bench—Justices Mallick, Banerjee, Das Gupta and Chatterjee—adopted a different stance. Although their reasoning was not uniform, they collectively concluded that the appellant was not entitled to any writ or order against respondent No. 1 as he had claimed. Consequently, the majority decision of the High Court dismissed the writ petition filed by the appellant. Dissatisfied with that dismissal, the appellant applied for special leave to approach the Supreme Court, and such leave was granted on 24 August 1964.

Subsequently, on 21 September 1964, the Attorney‑General for India made an oral request to intervene in the matter, and the Supreme Court permitted the Attorney‑General to do so. With the consent of the parties, the Court ordered that the appeal be set down for hearing on 26 October 1964, subject to any part‑heard issues that might arise. When the appeal was called on that date, the Court entertained the appellant’s petition to add the Union of India as respondent No. 2. The Attorney‑General, who had already been allowed to intervene, accepted notice of the appellant’s motion to join the Union of India and agreed to appear on behalf of the Union. At the request of the Attorney‑General, the Court adjourned the matter to 29 October 1964 so that an affidavit could be filed on behalf of respondent No. 2. The appeal therefore proceeded to a final hearing on 29 October 1964.

During the hearing, both parties agreed that the sole question requiring determination was whether the President’s order dated 15 May 1961 could be characterized as a decision on the appellant’s age within the meaning of Article 217(3) of the Constitution. The Court noted that the Amendment Act of 1963 had inserted clause (3) into Article 217 with retrospective effect while the writ proceedings were still pending. As a result, all other issues that had been argued before the amendment became immaterial, thereby narrowing the controversy to the single question concerning the President’s order. To provide a clear understanding of the dispute, the Court set out the relevant factual background. The appellant had been enrolled as a barrister of the Calcutta High Court on 5 May 1931. He was appointed an additional judge of that High Court on 11 February 1949 and, in January 1950, he became a permanent judge. At the time of his appointment, the appellant had stated his date of birth as 27 December 1904.

In this matter the factual record showed that the appellant was appointed as an Additional Judge of the Calcutta High Court on 11 February 1949 and that he became a permanent Judge of that Court in January 1950. At the time of his appointment he declared his date of birth to be 27 December 1904 in the official form Sup./65‑5. Subsequently, in 1959 the Union Home Minister became aware of a notice dated 26 June 1918 published in the Bihar and Orissa Gazette which contained the results of the Patna University Matriculation Examination held in April 1918. The notice indicated that the appellant’s age at the time of that examination was sixteen years and three months, a calculation that placed his birth on 27 December 1901. Further inquiry revealed that the appellant had entered his birth date as 27 December 1901 when he appeared for the open competitive Indian Civil Service examination in July–August 1923. On the basis of these findings the Home Minister questioned the correctness of the birth date that the appellant had supplied at the time of his judicial appointment.

Following this inquiry, a series of communications were exchanged among the Union Home Minister, the Chief Minister of West Bengal, the Chief Justice of the Calcutta High Court and the appellant himself. The Government of India eventually concluded that the appellant’s correct date of birth was 27 December 1901 and placed the relevant correspondence and supporting documents before the President of India on 15 May 1961. A note accompanying the file indicated that the Government intended to require the appellant to vacate his office on 26 December 1961, after the conclusion of the day’s court proceedings. After the President approved this proposal, the Government instructed the Chief Minister of West Bengal to convey the decision to the appellant through the Chief Justice of the Calcutta High Court. In response, the appellant filed a writ petition under article 226 of the Constitution in the Punjab High Court on 15 November 1961, seeking an order that would restrain the Union of India from implementing the proposed removal. The Punjab High Court dismissed the petition on 4 December 1961. The appellant then applied to the Supreme Court for special leave to appeal the Punjab High Court’s decision, but the application was rejected at the preliminary stage. When the time came to execute the Government’s decision, respondent No. 1 issued an order directing that the appellant retire from his position as a puisne Judge of the Calcutta High Court on 26 December 1961, after court hours. The appellant challenged the validity of this order in the present writ proceedings, contending that respondent No. 1 was fundamentally mistaken in attempting to give effect to an executive order of the Government of India which purported to determine his age, and that the order should be set aside.

In this matter the appellant argued that an executive order attempted to determine his age, and on that basis he sought a writ or order against respondent No 1, raising several constitutional questions. The Court noted, however, that the insertion of clause (3) in Article 217 had altered the nature of the dispute, and the issue now required examination of whether the President’s approval could be regarded as falling within the scope of Article 217(3). To resolve this question the Court turned to the correspondence exchanged between the parties in order to understand the procedure adopted by the Government of India in obtaining the President’s approval and to identify the pleas presented by the appellant throughout these proceedings. On 9 April 1959 the Home Minister, G B Pant, wrote to the Chief Minister of West Bengal indicating that a notice in the Bihar and Orissa Gazette suggested that the date of birth recorded by the appellant at the time of his appointment as an Additional Judge of the Calcutta High Court was inaccurate. In that letter the Home Minister requested that the Chief Minister arrange the necessary inquiries to verify the appellant’s birth date and report the findings. The Chief Minister subsequently contacted Chief Justice K C Das Gupta on the same issue, and the Chief Justice, on 17 April 1959, sent a copy of the Home Minister’s letter to the appellant. In his communication the Chief Justice asked the appellant to provide a full statement on all relevant points and to disclose any other material that might assist in correctly ascertaining his date of birth and, consequently, the date of his retirement. On that very day the Chief Justice also issued a separate note inviting the appellant to a meeting so that the Chief Justice could discuss a matter that was of vital importance to the appellant, specifying that the meeting should take place at four o’clock in the afternoon. The appellant replied on 27 May 1959, writing to Chief Justice Das Gupta and contending that the birth date appearing in the Gazette extract was plainly erroneous. He expressed satisfaction that neither the State Government nor the Government of India had directly raised the question of his age, suggesting instead that it had originated from a mischievous individual. The appellant emphasized that there was little reason for him to have supplied an incorrect date of birth when he accepted his judicial appointment. Subsequently, Chief Justice Das Gupta wrote to the appellant on 6 July 1959, informing him that the Civil Service Commission in London had prepared a report concerning the date of birth the appellant had provided to the Commission when he appeared for the Indian Civil Service examination.

In the matter of the competitive examination, a copy of the report prepared by the Civil Service Commission in London was sent to the appellant. The Chief Justice of the Calcutta High Court requested that the appellant forward his comments on that report. On 12 August 1959 the appellant replied, stating that, after the lapse of many years, he could not recall whether he had personally supplied his date of birth to the Commission. He asserted, however, that while he was an undergraduate at Oxford he had not obtained any certificate of age under clause 4 of the Regulations governing examinations for the Indian Civil Service. In his letter he protested that there was no valid reason for any further inquiry into his identity with the examination, and he maintained that the issue raised was one of principle. He further contended that the date of birth he had given at the time of his appointment could not be questioned.

Following the appellant’s correspondence, the Chief Justice of the Calcutta High Court forwarded the letters to the Government of India, which then referred the question to S. R. Das, the Chief Justice of India, for his opinion. After reviewing the material, Chief Justice Das expressed a definitive view that the appellant’s date of birth should be fixed as 27 December 1901. He observed that, in similar cases, the birth register, school register, or matriculation certificate had always been treated as conclusive evidence of a person’s date of birth. Chief Justice Das communicated this opinion on 9 September 1959.

Subsequently, Chief Justice Lahiri of the Calcutta High Court informed the appellant on 21 September 1959 that the Chief Minister of West Bengal had asked him to convey that the Home Minister of the Government of India, after considering the appellant’s explanation of his age and with the concurrence of the Chief Justice of India, had decided to accept the age shown in the appellant’s matriculation certificate as final. Accordingly, the appellant would have to retire on the basis of the age recorded therein. It emerged that the Home Minister had written to the Chief Minister of West Bengal on 14 September 1959, stating that he had consulted the Chief Justice of India on the appellant’s age, fully agreed with the Chief Justice’s advice, and recommended that the decision be communicated to the appellant through the Chief Justice of the Calcutta High Court. The appellant became aware of this decision through that communication. After receiving the notice of the Government of India’s decision, the appellant wrote to Chief Justice Lahiri expressing strong disapproval of the decision and made disparaging remarks about the views expressed by Chief Justice Das in his advisory note.

In a letter dated 30 September 1959, the appellant had expressed strong disagreement with the advice that the Chief Justice of India had given to the Government of India concerning his retirement. Subsequently, in a letter dated 11 April 1960, the appellant addressed Chief Justice Lahiri, stating that he had repeatedly urged the Government to recognise that the dispute over his superannuation raised a principle that affected the entire judiciary, and therefore he could not submit the matter to arbitration. The appellant reiterated in his September 1959 correspondence that the procedure adopted by the Government from the outset was unwarranted and that he was not bound by the decision communicated to him by the Chief Justice of the Calcutta High Court on 21 September 1959. Further exchanges between the parties continued, but the record indicated that those later communications did not contain any material relevant to the decision now before the Court.

On 12 May 1961, the Ministry of Home Affairs prepared a detailed note outlining the history of the disagreement regarding the appellant’s correct date of birth. The note disclosed that the Government had consulted Chief Justice Sinha, who had succeeded Chief Justice S. R. Das, and that Chief Justice Sinha had adopted the same view previously expressed by Chief Justice Das. The note further recorded that the appellant had been offered the opportunity to have the issue examined by arbitration, an offer he had rejected. After considering all relevant facts, the Ministry proposed to send a formal communication to the appellant requesting that he vacate his office on 26 December 1961. The note bore the signature of the Secretary to the Ministry of Home Affairs, who also affirmed that both the Law Minister and the Home Minister had approved its contents. The same day, the note was presented to the Prime Minister, who concurred with the proposed course of action, and it was subsequently forwarded to the President, who gave his approval on 15 May 1961. These steps constituted the origin of the order that was later impugned.

On the morning of 30 July 1961, the appellant met Prime Minister Nehru and lodged a complaint against the order relating to his age. On that very day, the Prime Minister wrote to the appellant, informing him that he intended to consult the Chief Justice of India and that the appellant had consented to this approach. The appellant requested that he be given an opportunity to present his viewpoint before the Chief Justice of India, and the Prime Minister assured him that such a meeting could be arranged. In the same letter, the Prime Minister indicated that he had spoken to the Chief Justice of India that evening and had been told that, some time earlier, a rule had been formulated to determine the age of sitting judges of High Courts, a rule that had been applied in the appellant’s case.

In the letter sent by the Prime Minister, it was stated that a rule governing the determination of the age of a sitting High Court judge had previously been framed and that this rule had been applied in the appellant’s case. The correspondence also reported that the Chief Justice of India had informed the Prime Minister of a serious complaint concerning the manner in which the appellant’s judicial work had been conducted. The Prime Minister concluded the letter by advising the appellant to make direct contact with the Chief Justice of India. Although the question of the appellant’s age was legally unrelated to the quality of his judicial performance, the overall tone and substance of the Prime Minister’s letter clearly demonstrated a flexible, informal and sympathetic attitude toward the appellant’s grievance. It further indicated the Prime Minister’s willingness to reconsider the matter should it become necessary.

The appellant therefore met Chief Justice Sinha on 31 July 1961. During that meeting, the Chief Justice recommended that the appellant retire on 2 December 1961, basing his advice on the date of birth shown on the appellant’s matriculation certificate. The Chief Justice explained that this recommendation corresponded with the policy recently adopted by the Government of India. He assured the appellant that the Government did not intend to cast any doubt on the veracity of a High Court judge’s age claim, and that, without adjudicating the correctness of the appellant’s stated age, retirement on the basis of the matriculation certificate would be appropriate. In a letter dated 22 August 1961, Chief Justice Sinha reiterated that his assurance was given in the spirit of protecting both the appellant and the Government from embarrassment arising from the controversy. He further emphasized that no aspersion was intended to be cast on the appellant’s truthfulness, noting the appellant’s willingness to retire provided that his integrity was not questioned. In a later note, Chief Justice Sinha described the conversation as informal and explained that his suggestion for the appellant to quit office on 26 December 1961 would spare both parties embarrassment. This approach, like that of the Prime Minister, was portrayed as flexible, fair and sympathetic. Before 26 December 1961 arrived, Respondent No 1 issued an order treating the appellant as having retired on that date.

The Court observed that the controversy originated from the question of a High Court judge’s age. It turned to Article 217(3) of the Constitution to determine the scope and effect of that provision. Article 217(3) stipulated that when any doubt arose concerning a High Court judge’s age, the matter must be decided by the President after consulting the Chief Justice of India, and that the President’s decision was final. The Court noted that the provision had been given retrospective effect, meaning that whenever an age question arose concerning a sitting High Court judge, the decision had to be made by the President in the manner prescribed by Article 217(3), irrespective of when the judge had been appointed. By reading the provision as operative from 26 January 1950, the Court explained that it applied even to judges who had taken office before the amendment that inserted the provision in 1963. The provision vested exclusive jurisdiction in the President to determine the age question, thereby precluding any court from claiming authority to entertain the issue. The Court acknowledged that before the amendment, a writ of quo warranto under Article 226 could theoretically have been used to raise the question, but now the only permissible method was the one prescribed by Article 217(3). This understanding was not contested by the appellant. The Court further clarified that the President’s decision under Article 217(3) was final and beyond judicial review concerning its propriety, correctness, or validity. All procedural matters—such as the method of deciding the age, the opportunity afforded to the judge concerned, and related issues— fell within the President’s discretion. Before reaching a decision, the President was obligated to consult the Chief Justice of India, a mandatory requirement of the clause. By assigning the decision to the President while mandating consultation with the Chief Justice, Parliament intended to ensure that the seriousness of the matter received informed advice. Implicitly, the provision required that the judge whose age was under consideration be given a reasonable chance to present his version and evidence before the President rendered its final determination.

The Court observed that a judge who wishes to support the age recorded at the time of his appointment must be allowed to present his evidence in that regard, and that the manner in which this presentation should occur was left to the President’s discretion. Nevertheless, the Court emphasized that the principle of natural justice required that the judge be given a reasonable opportunity to place before the President his contention, his version of events, and any supporting evidence, and that this requirement was clearly implicit in the statutory provision. The Court noted that these points were not contested by the Attorney‑General appearing for the Union of India. In view of this background, the Court proceeded to examine whether the decision taken by the President, upon which the Union relied, could be characterised as a decision made under Article 217(3) of the Constitution. The first issue identified was whether a decision rendered by the President before the insertion of clause (3) into Article 217 could, as a matter of law, be treated as a decision made under the said clause. The Court recalled that, when legislation incorporates retrospective effect, it sometimes expressly declares that earlier orders made under different provisions shall be deemed to have been made under the newly introduced provision. The Court pointed out that no such declaration was made by the Amendment Act 1963, which added clause (3) to Article 217. Nevertheless, for the purpose of deciding the present appeal, the Court accepted the proposition that an order issued by the President on 15 May 1961 could be regarded as a decision under Article 217(3) if, on the merits, such a characterization was justified, because the provision was understood to operate retrospectively. Before addressing that substantive question, the Court turned to several ancillary matters. The appellant argued that Article 217(3) should be invoked only when a genuine or serious question concerning a judge’s age arises, and that frivolous, malicious or baseless challenges to the age declared at appointment should not trigger the provision. The Court agreed that the provision would apply only to genuine disputes, but held that the determination of whether a dispute is genuine is a matter for the President. Accordingly, under Article 217(3) the President is required, and the Court had no doubt he would, in every instance, consult the Chief Justice of India to decide whether a complaint about the age of a sitting High Court judge merits investigation. Following such consultation, the President must decide whether the complaint should proceed to investigation and ultimately render a decision on the issue. The Court concluded that, where a dispute concerning a sitting judge’s age is raised and evidence is produced that prima facie casts doubt on the correctness of the age recorded at the time of appointment, it is appropriate for the President to address the dispute.

The Court observed that when there was a dispute concerning the date of birth that a Judge had given at the time of his appointment, it was appropriate for the President to resolve the dispute. The Court explained that public confidence in the truthfulness of a Judge’s statement about his age was of paramount importance. Accordingly, any challenge to such a statement had to be decided by the President so that the dignity and status of the Judge, as well as the purity and reputation of the administration of justice, could be protected. The appellant argued that, pending the President’s decision, the Judge in question should continue to remain in office and should not be forced to step down. The Court agreed that, as a matter of law, the appellant was correct in stating that a Judge did not automatically lose his office merely because a question about his age had been raised and was being examined by the President. However, the Court added that legal correctness could not be considered in isolation; considerations of prudence and expediency also had to be taken into account. The Court held that if a question about a Judge’s age arose, a sensible and prudent Chief Justice would normally avoid creating unnecessary complications by refraining from assigning any work to that Judge, especially when the allegation suggested that the Judge might already have attained the age of superannuation at the relevant time. The Court warned that, should the President later decide that the Judge’s claimed date of birth was inaccurate, a serious problem could emerge because any cases that the Judge had decided during the intervening period would have to be reheard. This was because the Constitution barred a Judge from acting after reaching the prescribed age of superannuation, and any judgments rendered after that point would be constitutionally infirm. The Court therefore concluded that it was the duty of the Chief Justice to prevent such a complication, and it held that the appellant was not entitled to complain that respondent No. 1 had stopped assigning work to him after 26 December 1961.

The Court then turned to the question of whether the order that was being challenged fell within the ambit of Article 217(3). The Attorney‑General contended that the President’s approval dated 15 May 1961 constituted a decision made under Article 217(3), because it satisfied every requirement of that provision. The Court noted that the Government of India had consulted Chief Justice S. R. Das as well as his successor, Chief Justice Sinha, and that the Government had invited the appellant to comment on the material indicating that the appellant was born on the date that was in dispute.

On the basis of the appellant’s claim that his date of birth was 27 December 1901, a substantial amount of correspondence was exchanged between the parties. The Government examined the appellant’s written contentions and arguments before forming its opinion. After reviewing the appellant’s submissions, the Government reached a conclusion adverse to the appellant’s claim. Consequently, the Government compiled a complete file that included every relevant document, together with the advice obtained from Chief Justice S. R. Das and his successor Chief Justice Sinha, and placed this file before the President for consideration.

The Attorney‑General argued that the President was not required to issue a detailed order setting out his decision on the question presented. He maintained that the President’s signature bearing the word “approved” on the file itself signified the President’s decisive act. To support this position, the Attorney‑General cited two earlier cases: Srinivas Mall Bairoliva v. King Emperor (1) and Alexander Brogden and Others v. The Directors, & c., of the Metropolitan Railway Company (2). He further asserted that the Ministry of Home Affairs had followed the applicable rules of business in transmitting the file to the President, and therefore the President’s act should be treated as a decision made under Article 217(3). The cited authorities were (1) (1947) I.L.R. 26 Pat. 460 and (2) (1876‑7) 11 A.C. 666. At first glance, this line of reasoning appeared to have merit; however, a more detailed examination of the material before the Court revealed several difficulties in sustaining the argument.

The Court first sought to determine the exact moment at which the decision was made and the identity of the decision‑maker. It noted that on 14 September 1959 the Home Minister, G.B. Pant, wrote to the Chief Minister of West Bengal stating that he had consulted the Chief Justice of India, that the Chief Justice’s advice had been accepted, and that, on that basis, the Home Minister had decided that the appellant’s date of birth was 27 December 1901. This determination was subsequently communicated to the appellant. If this determination is regarded as a decision of the Government of India, then Article 217(3) would not apply, because the provision governs decisions made by the President, not by a minister.

The Court observed that the decision was indeed taken by the Home Minister after consulting the Chief Justice of India, but that such a conclusion does not constitute a decision of the President. The subsequent steps taken by the Government did not bolster the Attorney‑General’s contention. The Court noted that the Government’s overall approach was genuinely fair. The authorities were eager to hear the appellant’s perspective on the dispute and were prepared to consider any arguments the appellant might raise in support of his claimed date of birth. Accordingly, they consulted both Chief Justice S.R. Das and his successor Chief Justice Sinha. The Government even proposed referring the matter to an arbitrator of the parties’ choosing. When the appellant declined to accept arbitration, the Government reassessed the issue and again placed the complete file before the President.

In this case, the Court observed that the Government had placed the file before the President for consideration. The Court noted that the Government’s flexible and informal method of handling the question appeared motivated by a desire to be fair to the appellant. However, the Court said that such flexibility and informality introduced a procedural weakness when the process was later compared with the requirements of Article 217(3). The Court explained that it was difficult to imagine a President acting under Article 217(3) directing the concerned judge to undergo arbitration. Because of the Government’s sympathetic approach, even after the Home Minister reached a definite decision against the appellant, the matter was allowed to be reopened and the entire issue was reconsidered anew. The Court observed that this reopening was not fully consistent with the standards set by Article 217(3) as required by the Constitution. The Court further remarked that at the time the Government was examining the matter, it had consulted the Chief Justice of India, but that informal consultation did not correspond with the formal consultation now mandated by Article 217(3). Accordingly, the Court expressed hesitation in accepting the Attorney‑General’s argument that the procedures followed before the May 15, 1961 decision could be readily equated with the requirements of Article 217(3). The Court then identified another objection that was fatal to the Attorney‑General’s contention and required a separate examination of the appellant’s claims concerning his date of birth. It acknowledged that the appellant, at every material stage, had maintained an alternative position asserting that his stated date of birth was correct and could not be challenged. The appellant’s initial claim was that when a lawyer supplies his date of birth at the time of appointment as a High Court judge, and the Government accepts and records that date, its correctness could never be impeached. The Court found this claim to be unfounded because the correctness of a recorded birth date could still be subject to judicial scrutiny. The Court held that regardless of whether the Government accepted the lawyer’s declared date of birth before appointment, it could not be said that a litigant would be barred from raising the question in a proceeding filed under Article 226 for a writ of quo warranto. The Court noted that no such applications were known, and that this absence reflected the high respect enjoyed by High Court judges among litigants and the public. Nonetheless, the Court stated that before the insertion of clause (3) in Article 217, a litigant possessing relevant material could have approached a High Court and urged that a

In this case, the Court noted that the appellant claimed a specific Judge was no longer competent to exercise judicial functions because, according to the appellant, the Judge had already attained the statutory age of superannuation. The Court therefore concluded that the appellant’s contention that a statement he had made regarding his own date of birth — a statement given before he entered judicial office — could never be questioned was not well‑founded. The appellant also advanced an alternative argument that the Executive was not authorized to determine his age; the Court observed that this argument had been raised before clause (3) of Article 217 was inserted into the Constitution. Consequently, the Court found that the appellant was, at that stage, justified in contending that the Executive lacked competence to decide the question of his age, since such a determination ordinarily required adjudication in proper judicial proceedings before a High Court of appropriate jurisdiction. The Court further recognized that the appellant’s early plea carried considerable weight, for it warned that allowing the Executive to decide the age of a sitting High Court Judge would seriously impair the independence of the judiciary. Relying on this line of reasoning, the appellant chose not to produce any documentary evidence in the proceedings initiated by the Government of India prior to the challenged order being issued. The appellant, however, asserted before the Court, and apparently also indicated to the Punjab High Court when he invoked Article 226, that he possessed evidence supporting the date of birth he had asserted before his elevation to the bench. Although Chief Justice Das Gupta had requested that the appellant submit the material in question, the appellant failed to produce it. The Court was not persuaded by the appellant’s claim that he had never received the letter dated 17 April 1959 from Chief Justice Das Gupta, which asked him to communicate any documents he held in support of his stated date of birth. Accordingly, the Court proceeded on the basis that the appellant, despite being invited, did not produce his evidence. In addition, the appellant declined to submit his dispute to arbitration. The pivotal issue before the Court was whether the appellant’s refusal or failure to present his evidence could justly be used against him, given that his principal argument was that the Executive alone could not decide the matter of his age. The Court held that if the appellant’s contention that the Executive should not decide his age was correct, then no adverse inference should be drawn from his refusal or failure to furnish evidence before the Executive. Considering the circumstances of the enquiry and accepting that the appellant was justified in arguing that his age could not be determined by the Executive in proceedings it initiated, the Court concluded that the order issued by the President suffered a serious infirmity because the appellant’s evidence had not been placed before the President at the time the decision was made.

The Court observed that the evidence of the appellant was not available to the President at the time the President rendered the decision on the appellant’s age on 15 May 1961. The question of the appellant’s age, which the President decided on that date, had a severe impact on the appellant. Consequently, the Court held that principles of natural justice and fairness required that, before the President could decide the matter, the appellant must be given an opportunity to present his own evidence. For this reason the Court concluded that the Attorney‑General’s submission that the President’s order of 15 May 1961 could be characterised as a “decision” within the meaning of Article 217(3) could not be accepted. The Court further clarified that, although the appellant complained that his evidence had not been before the President, the Court would not evaluate the appellant’s failure or refusal to produce evidence at that stage by applying the retrospective effect of Article 217(3). To do so would be wholly inconsistent with the requirements of natural justice and fair‑play that must govern the enquiry contemplated by Article 217(3). Moreover, the Court found it would be unreasonable, unjust and unfair to deny the law as it actually existed at the relevant time merely because a later constitutional amendment, applied retrospectively, created a legal fiction that the earlier position no longer existed in law.

The Court then turned to the Attorney‑General’s argument that the Punjab High Court’s decision in a writ petition filed by the appellant in 1961 (Civil Writ No. 479‑D/1961) operated as res judicata on the issue of the appellant’s age. The Court noted that Chief Justice Khosla, in his judgment, had expressed confidence in all material placed before the Court, including the appellant’s horoscope and an almanac entry, and had concluded that the Home Ministry was correct in accepting the appellant’s age as shown in the Bihar & Orissa Gazette and in the certificate the appellant submitted with his application for the I.C.S. examination. The Court described this line of argument as fundamentally flawed. It held that if Article 217(3) were to operate retrospectively, any High Court decision on the age question would be without jurisdiction, because from 26 January 1950 the matter fell within the exclusive jurisdiction of the President. Since the Attorney‑General relied on a plea of law—res judicata—the appellant was entitled to reject that plea on the ground that the constitutional amendment was retrospective and, at the relevant time, the High Court lacked jurisdiction to decide the question. Even setting aside this technical constitutional issue, the Court found it impossible to accept the High Court’s observation as a binding decision on the merits of the appellant’s age.

The Court observed that the submission advanced by the Attorney‑General could not be characterized as a decision capable of operating as res judicata in law. Chief Justice Khosla, in effect, dismissed the appellant’s writ petition on the ground that it was premature, and he expressly remarked that the issue concerning the appellant’s age was merely academic. The Chief Justice also appeared to invoke the doctrine of approbate and reprobate. Moreover, the Court noted that the documents relied upon by the Chief Justice had not been formally proved before the Court in those earlier proceedings, nor had they formed the subject‑matter of any argument before that Court. In view of these circumstances, the Court held that the contention that the earlier judgment created a bar of res judicata must be rejected without hesitation. The Court further added that, had it been inclined to treat the earlier decision as an adjudication on the merits of the appellant’s age, it would not have dismissed, in limine, the appellant’s application for special leave to appeal to this Court against that judgment. This observation gave rise to the question of the appropriate order to be passed in the present proceedings. The appellant contended before the Court that, if the Court were to hold that the impugned decision of the President does not constitute a decision under Article 17(3), he would be entitled to obtain a formal decision of the President in accordance with that provision. The Attorney‑General, on behalf of the Union of India, conceded that the appellant’s contention was well‑founded. He further stated that, should the Court’s decision on the principal issue be rendered against the Union of India, the Union would place the matter before the President within a fortnight of the pronouncement of the judgment, inviting the President to decide the question of the appellant’s age under Article 217(3). Both parties agreed that, if the President’s decision were favourable to the appellant, the appellant would be entitled to claim that he remained a Judge notwithstanding the order of the Chief Justice of the Calcutta High Court and would continue in office until he attained the age of superannuation. Conversely, if the President’s decision were adverse to the appellant, the order of the Chief Justice of the Calcutta High Court would be upheld as valid and proper. Having regard to the circumstances of the case, the Court concluded that the appeal should be disposed of in accordance with the foregoing order. No order as to costs was made, and the Court ordered accordingly.