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Jyoti Prokash Mitter Vs. Hon'ble Mr. Justice H.K. Bose, C.J. of the High Court, Calcutta (22.11.1962 - CALHC) - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtKolkata High Court
Decided On
Case NumberA.F.O.O. No. 56 of 1962
Judge
Reported inAIR1963Cal183
ActsConstitution of India - Articles 217 and 226
AppellantJyoti Prokash Mitter
RespondentHon'ble Mr. Justice H.K. Bose, C.J. of the High Court, Calcutta
Appellant AdvocateParty in person
Respondent AdvocateS.M. Bose, Adv. General and ;B. Das, Adv.
Cases Referred(Vide British India Corporation v. Industrial Tribunal Punjab
Excerpt:
- mitter, j. 1. the appellant, first appointed an additional judge of this court on february 11, 1949 and later confirmed as a permanent judge in january 1950, claims to be in office still. he has preferred this appeal from an order of banerjee, j. dismissing his application under article 226 of the constitution for the issue of a rule on the chief justice to show cause why the latter should not give directions recalling some orders made by him allegedly interesting with the discharge of his duties and functions of judge of this court.2. since no rule was issued on the appellant's writ petition no affidavit-in-opposition was used and the materials before us are the said petition of the appellant with annexures thereto and the judgment of 3 division bench of the punjab high court which has a.....
Judgment:

Mitter, J.

1. The appellant, first appointed an Additional Judge of this Court on February 11, 1949 and later confirmed as a permanent Judge in January 1950, claims to be in office still. He has preferred this appeal from an order of Banerjee, J. dismissing his application under Article 226 of the Constitution for the issue of a Rule on the Chief Justice to show cause why the latter should not give directions recalling some orders made by him allegedly Interesting with the discharge of his duties and functions of Judge of this Court.

2. Since no Rule was issued on the appellant's writ petition no affidavit-in-opposition was used and the materials before us are the said petition of the appellant with annexures thereto and the Judgment of 3 Division Bench of the Punjab High Court which has a very important bearing on the question before us.

3. It is not disputed that If the appellant is still a Judge he must be held entitled to the rights and privileges of the office and be allowed to discharge the duties attendant thereon. The controversy about the appellant's claim to continue in office arises out of certain proceedings had regarding the determination of his age. If he has not attained the age of 60 years -- the limit fixed under Article 217(1) of the Constitutions of India, for retirement of Judges of High Courts --his claim to the office must be upheld. In order to be entitled to the issue of a Rule the appellant must show that his assertion that he has not attained the age of superannuation is prima facie not open to question. Article 217(1) of the Constitution of India bearing on the question of a Judge's age is as follows:

'Every Judge of a High Court shall be appointed by the President by warrant under his hand and seal after consultation with the Chief Justice of India, the Governor of the State, and, in the case of appointment of a Judge other than the Chief Justice, the Chief Justice of the High Court, and shall hold office, x x x x until he attains the age of 60 years.'

4. It will be noted from the above, that any one who is below the age of 60 years can be appointed a Judge of a High Court but he must demit his office when he attains the said age. Further a person appointed a Judge of a High Court can hold the office for a few days only or for more than two decades if he is sufficiently young when appointed. The only limit imposed is that he must be below 60 years of age when he is appointed.

5. The age of the appellant seems to have engaged the attention of the Home Ministry of the Government of India early in 1959 and an enquiry was launched, about it in April 1959. The persons taking part in such enquiry included the then Chief Justice ot India and the then Chief Justice of this Court. The position taken up by the appellant at that stage was that the investigation was incompetent and that according to the age given by him at the time of his appointment and accepted by Government his retirement would not be due before December 27, 1964. This was however rejected by the Government of India after the enquiry and the appellant was informed in May 19G1 that he should demit his office on December 26, 1951. The appellant moved the Punjab High Court by a writ petition against the Government of India, so that effect could not be given to the direction of May 1961. The said High Court held against him and the Supreme Court of India refused to give him special leave to appeal.

6. The appellant however sought to continue in office after the last mentioned date. He informed the Chief Justice of this Court of his intention to do so by a letter dated December 22, 1961 and apparently gave, directions for certain causes appearing in the cause list of this Court to be published for January 2, 1962 for delivery of judgments by him. He complained to the Chief Justice again by letter dated December 31, 1961 that his direction had not been carried out owing to contrary orders passed by the Chief Justice himself and further indicated that on the reopening of the Court on January 2, 1962 he would seen relief from this Court unless he was allowed to function as a Judge on that date. On the said date he moved the petition out of which this appeal has been preferred. After giving him a hearing Banerjee, J. refused to issue a Rule and dismissed his application. Hence this appeal.

7. In his petition the appellant states that at the time of his appointment he had given his real age to the then Chief Justice Harries, C. J. and appraised him of the disconformity between his real age and his age as borne on the Matriculation certificate. According to the appellant Harries C. J. accepted the appellant's real age and forwarded the same to Government and a like communication was made to the authorities again in or about January 1950 prior to his appointment as Puisne Judge of this Court. In support of the above the appellant relies on publications made by orders of different Chiaf Justices of this Court showing the dales of birth as well as the dates of retirement of all the Puisne Judges including the appellant both before and after the coming into force of the Constitution of India. Copies of three such publications annexed to the petition all go to show that the appellant was born on December 27, 1904 and the date of his retirement was to be December 27, 1964. In April 1959 the Home Minister, Government of India started the enquiry about the age of the appellant in view of the discrepancy between his age reckoned on the basis of that published in the Behar and Orissa Gazette in connection with the Matriculation examination taken by the appellant in 1918 and his age as given by him at the time of his appointment. The discrepancy is exactly one of three years. It appears that the petitioner sent in a reply to the letter of inquiry dated April 9, 1959 stating that an exaggerated age had been given at the time of the Matriculation examination because of the limit Imposed by University regulations prescribing the minimum age for appearance at the said examination. The Home Ministry appears to have received corroborative evidence of the petitioner's age as given in the Matriculation certificate from the Civil Service Commission in London. The, Ministry relied on a certificate which had been filed before the Civil Service Commissioners on behalf of the appellant showing his age to be in consonance with that published in the Bihar and Orissa Gazette. Some explanation about the discrepancy in his age was put forward by the appellant. In or about May 1951 the appellant received a letter from a Secretary to the Government of India, Ministry of Home Affairs, in which after referring to the inquiry mentioned above. It was stated.

'The Government of India, having given their most careful consideration to the explanation given by you, have decided, in consultation with the Chief justice of India, that your age as given in the Bihar and Orissa Gazette dated June 26, 1918 should be taken as the correct age and that the date of birth viz., 27th December, 1901, as recorded at the time you appeared 8t the I. C. S. competitive examination, London, which tallies with the entry in the said Gazette regarding your age, should be taken as the correct date of birth. You should, therefore, demit your office of puisne Judge of the Calcutta High Court on the 26th December, 1961, after Court hours.'

8. Being aggrieved by the above direction the appellant moved the Punjab High Court on November 15, 1961 for the issue of a writ in the nature of mandamus under Article 226 of the Constitution of India directing the Union of India not to give effect to its purported decision and/or direction contained in the said letter of May 16, 1961 and not to interfere in any way with the discharge of the duties and functions as well as with the enjoyment of the rights and privileges of the petitioner as a Judge of the High Court until the date of his retirement i.e. December 27, 1964. According to the petition before this Court he had, previous to this application, demanded justice from the Government of India. An affidavit-in-opposition affirmed by the Secretary to the Government of India, Ministry of Home Affairs was used In opposition to the said application.

9. Before the Punjab High Court the appellant asked for two reliefs (1) A declaration that he was entitled to hold office as a Judge of the High Court of Calcutta until December 27, 1984 and (2) a writ or a direction in the nature of mandamus directing the Union of India not to give effect to the letter of May 16, 1961 mentioned above. The) Punjab High Court went into the question of the petitioner's age, examined the propriety of the inquiry relating thereto by the Ministry of Home Affairs, adverted to the fact that the petitioner did not produce or refer to any evidence in his possession which might disprove the correctness of the age given on the Matriculation certificate and held

'in the circumstance, the determination of his age had perforce to be made upon the material which was available with the Home Ministry, and this consisted of two previous statements made by or on behalf of the petitioner.'

Delivering the main Judgment of the Division Bench Khosia, C. J. observed

'there was nothing illegal or unjust in the Home Ministry reopening the matter of the petitioner's age on getting reliable information of an inaccuracy in the High Court records in this respect. Adequate opportunity was given to the petitioner to produce evidence and to represent his case., He did not choose to avail himself of the opportunity and merely contended himself by challenging the right of the Home Ministry to reopen the matter at all.'

Earlier the Chief justice had remarked

'the reopening of the question of age is certainly not an incursion into the rights of the judiciary, nor is it calculated to endanger its independence, provided; of course, the inquiry is made according to law and according to the rules of evidence, x x x x Such an Inquiry can be started by anyone, but because the administration of justice, in so far as it relates to High Courts, is part of the business transacted by the Ministry of Home Affairs, such an inquiry would well come within the scope of the Ministry's business.'

The learned Chief Justice concluded that there was no justification whatsoever for holding that any injustice of any kind had been done to the appellant and the petitioner was not, in his Lordship's view, entitled to any relief. Before the Punjab High Court the appellant sought to rely on a horoscope of his and an endorsement on an old almanac in corroboration of the statement of his age given at the time of his appointment. The Punjab High Court placed no reliance on this evidence mainly on the ground of non-production of the same at the inquiry stage. Doubts were also expressed about the genuineness of the communication alleged by the appellant to have been made to Harries C. J. at the time of his appointment.

10. After recording the above finding the learned Chief Justice went on to observe that the matter had another aspect i.e. that no order removing the petitioner from his post had been made and he had merely been informed that his date of birth would be taken to be 27th December, 1901. According to the learned Chief Justice

'the petitioner can, if he chooses, disregard this direction on the ground that he is not bound to accept a suggestion made by the Home Ministry and the only manner in which he can be made to leave his office is by means of an order passed after an address by each House of Parliament as laid down in proviso (b) to Article 217(1) of the Constitution and If that be so, then he need not seek any relief from this Court and there is no occasion for issuing a mandamus directing the Union of India not to give effect to its decision. This course, If carried to its logical conclusion may or may not lead to an impasse and the reason why I have mentioned it Is because I do not feel that this court should give the sort of remedy which is being prayed for in this case. **'***The ratio decidendi must be that an inquiry into a Judge's age is not barred by law and in the present case full opportunity to represent his case was given to the petitioner, since be chose not to avail of It, he can not ask us to give him relief which is a matter of discretion. * * * I am also convinced upon all the material which has been produced before us, including the horoscope and the entry in the almanac, that the Home Ministry was not wrong in accepting the correct age as that given in the Bihar and Orissa Gazette and In the certificate which the petitioner had filed with his application when he sat at the Indian Civil Service Examination.'

11. Before us the appellant contended that Ms petition raised serious questions of law which should not have been dealt with summarily as had been done by Banerjee J. and that the proper course to adopt would be to Issue a Rule calling upon the respondent to file an affidavit if he chose to do so and then hear the matter on its merits. The points formulated by him are as follows: (1) As he had given his age at the time of his appointment and this had been accepted it was not open to the Government of India to redetermine his age or to reopen the same. Such a power would be detrimental to a Judge's administering justice without fear or favour and would put him in perpetual peril of his position thereby undermining his independence. (2) The exercise of such power would in effect be an invasion of the rights of Parliament under Article 124 of the Constitution as it Is Parliament alone before whom the removal of a Judge can be mooted. (3) The question of a Judge's age is not justiciable in a court of law.

12. With regard to the first point I find myself unable to accept the appellant's contention that his age as disclosed by him at the time of his appointment was accepted by the Government of India or any authority competent to do so. Under Article 217(1) of the Constitution the appointing authority of a High Court Judge Is the President of India. No doubt it is his duty to consult the, Chief Justice of India, the Governor of the State concerned and the Chief Justice of High Court of the particular State. But such consultation is limited to the fitness of the person to be appointed a Judge and alt that the President is concerned with after satisfying himself of the fitness of the person selected is to sea that the appointee has not attained the age of 60 years. As a matter of practice however the person selected Is asked to state his age and the medical practitioner examining him has to make an estimate thereof and state the same in the certificate of physical fitness signed by him. The law does not prescribe that the person to be appointed should give his age or that it should be accepted by or on behalf of the President of India. The publications annexed to the petition made by the orders of different Chief Justices of this Court were based on the age given by the appellant and other Judges of this Court. Such publications were not made under any statutory power nor are they binding on anybody.

13. Under Article 74(1) of the Constitution of India the Council of Ministers with the Prime Minister at its head Is to aid and advise the President in the exercise of his functions. In the discharge of such functions under Article 217(1) the President may take the aid and advice of his Ministers, which in the case of the appointment of Judges this would be the Home Minister but nevertheless Article 217(1) vests the President alone with the power of appointment. Under Article 224 of the Constitution it is the President who can appoint additional Judges when it appears to him that by reason of temporary increase in the business of a High Court the number of Judges of that Court should be for the time being increased. Again under Article 222 of the Constitution it is the President who is empowered to transfer a Judge from one High Court to any other High Court after consultation with the Chief Justice of India. Under Article 124(4) the power of removal of a Judge after the presentation of the address of each House of Parliament with the requisite majority rests with the President. Here too the President may be guided by the advice of his Ministers but the Ministry can only act in an advisory capacity.

14. It will thus be noticed that the Constitution vests the President alone with the powers of appointment, transfer and removal of High Court Judges. In exercising the first two of the above powers he has to consult several persons while the power of removal can only be made use of after an address to that effect is presented to him by Parliament. Except giving advice to the President in the exercise of these powers the Central Ministers have no duties to perform which may in any way affect the office of a High Court Judge. The administration of justice being in charge of the Home Ministry it may be open to the latter to go into the question of a Judge's age for ascertaining the date of his retirement but such ascertainment has no legal force or effect. Further the Constitution, in my opinion, does not warrant any direction being given by the said Ministry to the effect that a Judge should retire on a particular day. In my judgment leaving out of consideration the jurisdiction of courts of law it is the President alone who can hold or direct an inquiry as to the real age of a particular Judge giving the latter the fullest opportunity of putting forward such evidence of his age as may tie available to him and it is only the President who can record a finding as to the date of superannuation of a Judge.

15. It should be noted that the above is not binding on the President or the Government of India since they are not parties to this appeal but it became necessary to examine the provisions of the Constitution in order to test the contention of the appellant that his age cannot be determined by any body and that the age as given fey him at the time of his appointment had been accepted.

16. As there is no provision for determination ot a Judge's age at the time of his appointment either in the Constitution or In any other law of compelling authority a question may arise as to the time when a particular Judge should retire. As a matter of practice the age of retirement is reckoned according to the are declared by a Judge at the time of his appointment but this is not conclusive and can be investigated into should occasion arise. It would have been better if the Constitution had made some provision for the determination of a Judge's age at the time of his appointment so as to put the matter beyond controversy. For instance the person chosen might be called upon to furnish evidence of his age and the determination thereof by the President at the time of the appointment might have bean made final. This would have put a stop to any Inquiry thereafter and would certainly have avoided the ingiorious spectacle of person who had acted as a Judge for many years litigating for continuing in office when his probity is openly questioned in court.

17. There is a good deal of force in the appellant's contention that if the Government of India had the power to determine a Judge's age at any time it might be improperly used to get rid of a Judge whom the executive did not like. It would certainly be a sac day for the country if the Government had such a power and the same was misused. In my view however no such power has been given to the executive by the law of the land. Our Constitution has rightly placed the Judges in a position from where they can act without fear of Interference from any quarter. Under Article 121 of the Constitution even Parliament is precluded from discussing the conduct of a Judge in the discharge of his duties except upon a motion for presenting an address to the President praying for his removal under the provisions of Article 124(4) of the Constitution. Under the latter provision such removal can only take place by an order of the President passed after an address by each house of Parliament supported by a majority of the total membership of that house and by a majority of not less than two thirds of the members of that house present and voting after the same has been presented to the President in the same session on the ground of proved misbehaviour or incapacity of the Judge.

18. it would indeed be deplorable If the tenure of High Court Judges depended on the caprices of certain Ministers as argued by the appellant but there Is no need to go into the question in this case because the appellant has not been able to establish what according to him is his real age and has not been able to show that such real age was ever accepted by the appointing authority, namely the President, at any time.

19. The second point of the appellant Is equally unsustainable. No doubt it is for Parliament alone to Initiate proceedings for the removal of a Judge but the determination of a Judge's age for finding the date of superannuation can hardly be equated with removal. Retirement is not removal. Under Article 124(4) removal must be based on proved misbehaviour or incapacity. Anybody appointed as a Judge must retire when he attains the age of 60 years. If his age is not determined at the time of his appointment there is no bar to having his date of retirement fixed later on. I can see no reason why In a case where a Judge has not declared his real age at the time of appointment through bona fide mistake or otherwise the President cannot determine his age or superannuation later on. There seems to be nothing in law to preclude a Judge from getting a declaration as to his age in a competent court of law although in my opinion litigation of this kind is hardly consistent with the dignity of the office.

20. On the third point raised by the appellant it is enough to say that if the question of a Judge's age is a question of fact, as it must be held, it is justiciable in a court of law. So long as the law does not provide for the determination of a Judge's age In a particular manner or the same being made conclusive it can be canvassed at any time provided it is done bona fide and by an authority or a tribunal competent to do it.

21. In paragraph 21 of his petition the appellant relied on certain observations of the Punjab High Court to the effect that the letter of May 16, 1961 sent by the Home Secretary to him only contained a suggestion and that there was no order removing him from office and as such the same could be disregarded by the appellant. With great respect to the learned Chief Justice of the Punjab High Court I fail to see how the matter can be so treated. The said letter clearly contains a direction that the appellant should demit his office after Court hours on December 26, 1961. The text of it does not lend itself to the construction that the Government of India was only expressing an opinion. There was a clear order defining the expiration of the appellant's office and a direction upon him not to exercise the functions of a Judge thereafter. Before us the appellant sought to argue that it the said letter be treated as merely indicative of the opinion of the Government of India there had been no determination of the duration of his office and as such the Chief Justice of this Court was bound to assign some work to him. If the Punjab High Court had dismissed the appellant's application merely on the ground that there was an expression of opinion by the Government of India about the duration of his office the appellant might well have argued that there having been no binding adjudication about the date of his superannuation the Chief Justice of this Court must treat him as still in office. But that is not the real position.

22. The appellant did not succeed in his application before the Punjab High Court in showing that his age as given by him had been accepted at any time so as to be beyond question. The question of a person's real age is one of fact and in view of the material produced in the affidavit-in-opposition before it the Punjab High Court might well have dismissed the appellant's application on the ground that there being a dispute as to a vital question of fact no relief could be given on a writ petition. But the High Court went further than that and as already noted came to the finding that the appellant had failed to produce any evidence to contradict the statement in the Bihar and Orissa Gazette or that contained in the certificate before the Civil Service Commissioners in London. In effect the High Court held that the appellant had failed to establish that he would attain the age of 60 years on December 27, 1964 and refused to give him a declaration that he was entitled to hold office as a Judge of this Court until that date. In my view the Chief Justice of this Court could not ignore the events which had occurred before December 1961 and allocate work to the appellant as if he was still a Judge of this Court.

23. In the result I find myself unable to hold that Banerjee, J., should have issued a Rule as asked for by the appellant. The appeal should therefore be dismissed but without any order as to costs.

Laik, J.

24. This appeal is directed against an order of our learned brother Banerjee J. by which the application of the appellant Sri Jyoti Prokash Mitter (hereinafter called Mitter) was dismissed at the first hearing before the issue of the Rule. The application was under Article 226 of the Constitution, praying for a rule nisi upon the Hon'ble the Chef Justice of this Court to show cause why a writ in the nature of mandamus and/or proper directions, should not be issued directing his Lordship to recall his orders and/or directions interfering with the discharge of the duties and functions as well as with the enjoyment of the rights and privileges of the appellant as a Judge of this Court and to restore to the appellant his duties and functions, as well as his rights and privileges as a Judge of this Court.

25. On May 5, 1931 Mitter was enrolled as an Advocate. On February 11, 1949, he was appointed as an Additional Judge of this Court and on January 21, 1950 he was made permanent when Sir Arthur Trevor Harries was the Chief Justice. Mitter then gave December 27, 1904 as the date of his birth. On April 9, 1959, the then Home Minister, Government of India, wrote a letter to the then Chief Minisier of West Bengal, seeking to re-open the age of Mitter on the basis of a certificate granted to him of the passing of his Matriculation Examination in the Patna University, published in the Bihar and Orissa Gazette, which fixes December 27, 1901 as the date of his birth instead of December 27, 1904. It appears that during the enquiry, the Home Ministry of the Government of India ascertained that Mitter applied in the year 1923 to the Civil Service Commission at the United Kingdom also giving December 27, 1901 as his date of birth. It is stated that on April 17, 1959 there is a letter, addressed by the then Chief Justice of this Court to Mitter to 'Send me at your earliest possible convenience a full statement on all the points involved and inform me at the same time that any other material which may be relevant on the correct ascertainment of your date of birth and the consequential ascertainment of the date of retirement.'

The said letter containing the said statements was stoutly denied by Mitter before us but the said quotation appears in the judgment of Khosla C. J. of the Punjab High Court which I will have occasion to refer to hereafter. On May 27, 1959 Mitter replied, repudiating the suggestion about his giving a false date of birth at the time of his appointment as a Judge and asserted that the matter could not now be re-opened. In July, 1959 Harries C. J. died. On August 12, 1959 Mitter wrote a letter attempting to explain about the discrepancy of his age given at the time of the Civil Service Examination to the effect that it must have been obtained at England from his relations at India, which again was presumably based upon the Matriculation Certificate and he did not recollect after 36 years as to how it happened, but Mitter reiterated that the matter could not be re-opened now. The name of Harries C. J. was not mentioned in the letter of May 27, but for the first time in this letter, i.e., after the death of Harries C. J. on September 21, 1959 the then Chief Justice of this Court wrote a letter to Mitter informing that the Home Ministry, Government of India, had decided with the concurrence with the Chief Justice of India to treat the age of Mitter as stated in his Matriculation Certificate as final. Mitter replied on that very day challenging the authority of the Home Minister for determining the age of a Judge and suggested an agreed Tribunal for the decision in the matter. On September 30, 1959 Mitter wrote a letter of protest, accusing the then Chief Justice of India for taking adverse views against him for ulterior reasons. Thereafter, there was an offer of arbitration by the Home Minister to Mitter. No reply was given to the same and also not to its reminder sent by the Home Minister thereafter. On November 1, 1960 the Home Minister wrote a letter that Mitter be told definitely that December 27, 1901 is his date of birth and that he would have to retire on December 27, 1961 on attaining the age of 60.

26. On May 16, 1961 the Secretary to the Government of India, Ministry of Home Affairs, addressed a letter (which is Ext. (B) to the application) to Mitter to demit his office of a puisne Judge on December 26, 1961 after Court hours. It appears from a letter dated July 30, 1961 of Shri Jawaharlal Nehru, the Prime Minister of India, to Mitter, Exhibit (C) that Mitter came to see him on the morning of the said date and he was informed that Mitter might get in touch with the Chief Justice of India. There Is a reference in the said letter that the Prime Minister had been informed by the Chief Justice of India that a 'rule had been framed' which was probably applicable to such cases and in accordance with this rule, action had been taken in regard to Judges of several High Courts. The Prime Minister also stated in the said letter, The Chief Justice also mentioned to me that there had been some 'serious complaints' in the manner in which Judicial work had been transacted by you.' On the next day, i.e., July 31, 1961 Mitter saw the Chief Justice of India and on August 7, 1961 Mitter wrote a letter to him. Again on August 19, 1961 another letter was written to the Chief Justice of India to which he replied on August 22, 1961 Exhibit (D) stating 'That it was decided that you should retire sometime in December next on your superannuation, according to your age in the Matriculation Certificate without going into the correctness of the age given by a Judge according to his horoscope or other documents. That was in consonance with the policy adopted by the Government of India In recent cases.' The Chief Justice of India also stated that 'In order to save the Judge himself and the Government from any embarrassment In Court and out of Court this policy has been adopted.' On October 7, 1961 Mitter wrote a letter to the Secretary to the Government of India, Ministry of Home Affairs, enquiring as to the existence of the said policy and the reply was to the effect that the matter was being considered and according to Mitter there was no further communication.

27. On November 15, 1961 Mitter moved an application before the Circuit Bench of the Punjab High Court at Delhi under the provisions of Article 226(1) of the Constitution praying for a declaration that he is entitled to hold office as a Judge of the High Court at Calcutta until December 27, 1964 and for the issue of a writ in the nature of Mandamus upon the sole Respondent, i.e., the Union of India, directing it not to give effect to Its decision contained in the said letter dated May 16, 1961 and not In any way to interfere with the discharge of the duties and functions as well as with the enjoyment of the rights and privileges of him as a Judge of the High Court at Calcutta until the dale of his retirement on December 27, 1964 and for further, proper or consequential directions or orders. To this application an affidavit-in-opposition 'or return' (as It is called) was filed by the Home Secretary, Government of India, which is not before us. The matter was heard and on December 4, 1961, their Lordships ot the Punjab High Court, dismissed the application (Judgment --Ext. E). Against the said judgment, or order, Mitter applied for special leave to the Supreme Court of India, which was not granted.

28. Thereafter on December 22, 1961 Hitter wrote a letter to the Chief Justice of this Court (Annexure G) asking his Lordship not to interfere with his duties and functions as well as with his rights and privileges as a Judge of this Court after December 26, 1961 and to afford him the protection which a Judge Is entitled to expect from his Chief Justice. On December 31, 1961 Mitter wrote another letter to the Chief Justice of 'this court asking his Lordship to recall the order and to afford him all such facilities as are necessary to enable him to carry out his duties and functions as a Judge. According to Mitter, no reply has been given by the Chief Justice of this Court to the said two letters. On two days, viz., on January 2 and on January 3, 1962 Mitter moved the said application under Article 226(1) of the Constitution in person, directed against the Chief Justice of this Court being the sole Respondent, which was dismissed by Banerjee J. on January 3, 1962, against which the present appeal has been preferred.

29. The aforesaid statements of facts are taken either from the statements made in the application and/or in the annexures thereto, not I must note that there is a serious dispute raised by the appellant as to the existence of the letter dated April 17, 1959. Besides, the five letters dated May 16, 1961, July 30, 1961, August 22, 1961, December 22, 1961 and December 31, 1961 and the judgment of the Punjab High Court, which have been annexed to the writ application, the appellant also annexed copies, or three official publications Exhibit (A) showing dates of birth, dates of appointment and dates of retirement ot Hon'ble Judges of this Court printed at the Press of the West Bengal Government from time to time.

30. At the beginning of the hearing, the appellant took objection as to myself being a member, of the Bench' on the ground that my tenure of office (being an Additional Judge) is dependant on the recommendation of the Chief Justice of this Court who is a party respondent in this appeal. However, as I did not feel embarrassed to hear the appeal, the appellant proceeded to argue the same in person subject to the above objection.

31. The appellant made it abundantly clear that the scope of the appeal was very much limited, viz., that whether or not a rule nisi is to issue on such an application. He also made It clear that he advanced no arguments on merits before Banerjee J.

32. I have not taken note of the arguments of the appellant to the effect that it is an ancient malpractice where the executive consults and seeks the advice of the Judges beforehand in coming to a decision as in the present case; that the present case is a case showing the worst form of discrimination, as several Judges are still continuing and functioning as Judges in more than one High Court, though their respective ages have exceeded 60 years on the basis of their Matriculation Certificates; that the Matriculation Certificates also prove that at least 90% of the toys who appear at the Matriculation examination are born on a particular day of a year, i.e. 1st of March of each and every year which is absurd; that the enquiry by the Central Government as to the appellant's age without giving him an opportunity and without considering the horoscope and the almanac being never produces before it, is illegal; that to suggest that an enquiry as to the age of a Judge can be started at any time by any person including the litigant public at any stage, is to exhibit utter ignorance of the law on the subject; that to argue that the High Court Judges are paid servants of the Government who are bound to carry out the mandate in the nature of decisions, orders and directives of the executive and that to argue further that the tenure of the office of a Judge can be questioned by the executive, will be nothing but to secure absolute dependence of the Judiciary to the Executive which is against the letter and spirit of the oath taken, or affirmation made, by the Judge at the time of his appointment to the effect that he would perform the duties of his office without fear or favour, affection or ill-will and would uphold the Constitution.

33. I have not also taken note of the argument, viz. that Judges should have certain durable estate or places so settled as not to hold the same precariously or determinate upon will and pleasure, so that they might act in them without fear of losing them and such places also would be 'only determinate upon misbehaviour' as Holt C. J. put it more than 250 years ago in Harcourt v. Fox, (1693) 89 ER 720 at p. 734, the term 'misbehaviour having been defined later by both Todd and Anson. Similar arguments, viz., that Judges should be 'free from any fear of dismissal by the persons whom they may be asked by a litigant to control,' as put by Wade and Phillips in Constitutional Law (4th Edition) at p. 235, do not arise for determination now but the following points do arise for determination, viz.,

1) Whether the Ministry of Home Affairs, Government of India or for the matter of that, any executive authority has any jurisdiction whatsoever to determine and/or re-determine the age of a Judge of a High Court or to question the correctness of his age as given by him at the time of his appointment.

2) if It could be done at any time and on as many occasions as the executive authority might choose, whether, it would make the provision of Article 217(1)(b) proviso, of the Constitution nugatory or would violate the provisions of Article 221(2) of the Constitution and the provisions of the High Court Judge's (Conditions of Service) Act, 1954 and thereby would vary the rights of a Judge in respect of his leave or absence, pension and allowance to his disadvantage after his appointment.

3) Whether the purported power of the executive Government to re-open the age of a Judge invades the right of the Parliament by circumventing the provisions of Article 124 read with Article 217 of the Constitution.

4) Whether the instant case is to be taken a case of retirement or vacating the office on superannuation, mere being no bar in the Constitution for the executive authority to investigate the age of a Judge or whether It is a case of removal on the ground of misbehaviour for giving a false age.

5) Whether the fixation of age was Incumbent at the time of appointment or at least at the time of a Judge being made permanent, in order to avoid a person of more than 60 years, being appointed as a Judge at the beginning.

6) Whether the Chief Justice could or should Ignore the decision of the Central Government in view that his Lordship has acted on the given age through official publications or whether the Chief Justice might be asked to face the peril of having Judicial work done by a retired Judge by ignoring the same.

7) Whether the matters of 'Policy,' 'Rule', 'Precedents' and ' 'serious complaints' about the appellant's manner of judicial work' are extraneous considerations which have Influenced the decision of the executive authority as noticed In the case of Province of Bombay v. Khushaidas S. Advani : [1950]1SCR621 .

8) Whether the writ at all would be available against the Chief Justice and whether such action or administrative order of the Chief Justice by not allotting the duties and functions to a Judge is amenable to the provisions of Article 226 of the Constitution (Vide Pradyat Kumar Bose v. Chief Justice of Calcutta High Court : [1955]2SCR1331 ).

9) Whether the slipshod verification by the appellant himself in the writ application, being stated to be not in accordance with Rule 14 of the Rules relating to such applications, framed by the High Court, could lead to rejection of the application in limine or whether the same might be saved on the principles laid down in State of Bombay v. Purushottam Jog Naik : 1952CriLJ1269 .

10) Whether the form of relief prayed for In the application could be granted in the absence of the Union of India being made a party and whether the petition should be thrown out simply on the ground that the proper writ or direction had not been prayed for or whether the application would still be maintainable as laid down in the case of Charanjitlal Chowdhury v. Union of India : [1950]1SCR869 (per Mukherjea J.).

11) Whether the decision of the Punjab High Court (against which no leave was granted by the Supreme Court) would create a bar of res judicata to the present application on the principles laid down In the case of Daryao v. State of U. P. : [1962]1SCR574 or whether it would be singularly inappropriate to whittle down the fundamental right by putting it in the straight jacket of the technical rules of res judicata.

12) Whether there is a waiver on the part of the appellant by agreeing to abide by the decision of the agreed tribunal or whether the same question might be reanimated on this application, there being no waiver In enforcement of fundamental right as laid down in Basheshwar Nath v. Commissioner of Income-tax, Delhi and Rajasthan : [1959]35ITR190(SC) .

13) Whether the appellant's remedy in filing a suitwould be onerous one, being not an adequate alternativeremedy, on the principles laid down in the case of Himmatlal Harilal Mehta v. State of Madhya Pradesh : [1954]1SCR1122 .

14) Whether rights in favour of third parties have arisen in the meanwhile, and if so, whether the same would be allowed to be affected by the present application.

34. After giving anxious consideration in the matter and keeping the contentions of the appellant and the learned Advocate General, appearing on behalf of the Respondent in mind, it appears tome that the only question to be decided by this Court is whether the Hon'ble Chief Justice was right in treating that, the appellant had retired from service on and from December 27, 1961 on the basis of the decision of the Ministry of Home Affairs as stated above. In my opinion, it is beyond the scope of this Court, exercising Jurisdiction under Article 226 of the Constitution, to decide the disputed question of fact, viz., in this case whether the appellant attained the age of 60 years on December 26, 1961. The real question Is whether the appellant's age as given by him at the time of his appointment as a Judge of this Court, can be the subject of scrutiny by the Central Government during the tenure of his service as a Judge In this Court.

35. There cannot be any doubt that the questions Involved in this case are of great importance and never became the subject matter of any Judicial decision of this country. I am not also aware of any decision in ether countries, viz., Great Britain, United States, Australia, Canada and Japan or of any convention In other parliamentary democracies. Like any other citizen, a High Court Judge has a right to come to the Court and seek his protection against any infringement of his fundamental right to continue in his occupation as a Judge. There is no provision In the Constitution either empowering the Central Government to investigate or debar it from making such an investigation as to the correctness or otherwise of the age of High Court Judge. It is sufficient for my purpose to say now and at this stage that the petitioner has made out a strong prima facie case for at least a Rule Nisi to be issued as the contention of the appellant is not hindered at the very outset or in its face, by an express provision of the Constitution or by any other law.

36. True that the Punjab High Court dismissed the writ petition of the appellant, but in my view, the said decision cannot stand in the way of the appellant's obtaining a rule on his petition. Khosla C. J. in dismissing the petition inter alia observed as follows:

'No order removing the petitioner from his post has been made. He has merely been informed that his date of birth will be taken to be 27th December, 1901; on this basis the petitioner ought to retire. He has, therefore, been asked to retire. The petitioner can, if he chooses, disregard this direction on the ground that he is not bound to accept a suggestion made by the Home Ministry and the only manner in which he can be made to leave his office is by means of an order passed after an address by each House of Parliament as laid down in proviso (b) to Article 217(1) of the Constitution, and if that be so, then he need not seek any relief from this Court and there is no occasion for issuing a mandamus directing the Union of India not to give effect to its decision. This course, if carried to its logical conclusion, may or may not lead to an impasse and the reason why I have mentioned it is because I do not feel that this Court should give the sort of remedy which is being prayed for in this case. An unlawful order can be set aside by this Court, but a finding which is followed by a suggestion can be disregarded by the person whom it is addressed and there is no reason why we should be asked to issue a mandamus in respect of the letter of 16th May, 1961 sent by the Home Secretary to the petitioner.'

37. Even after this, whether the said decision would be binding on the appellant so far as the present petition is concerned that question need not be decided for the present, as it required further consideration. Moreover, the petition before the Punjab High Court was directed against the said decision of the Ministry of Home Affairs and the sole respondent there, was the Union of India, The present petition is directed against the action of the Chief Justice of this Court and the appellant prays for a writ upon his Lordship alone. Ail the circumstances which lead the appellant to move the present application were not existing at the time the appellant moved the Punjab High Court If, according to the Punjab High Court the appellant can ignore the decision of the Ministry of Home Affairs, the appellant may say that he has ignored the said decision but in view of the subsequent events affecting the continuity of his service as a Judge of this Court, he has a right to move the instant application.

38. The Judgment of Banerjee J. proceeds mainly relying on the judgment of the Punjab High Court and also on the assumption that the Chief Justice of this Court could not ignore the decision of the Ministry of Home Affairs. Whether the Chief Justice could or could not ignore, is a matter which should not be decided summarily but requires further consideration. Banerjee J. also proceeds on the ground that the Chief Justice cannot or has no duty to arrive at a decision as to the age of the appellant and 'that the duty of the Chief Justice is a duty in respect of 'existing Judges,' which again to begging the question itself. Moreover, it is not known from what materials Banerjee J. found that the Chief Justice had merely taken note of the communication and that the facts were unknown to his Lordship, though it might be that the Hon'ble Chief Justice have many things, viz., other correspondences, orders or decisions to bring to the notice of this Court in opposing the petitioner's application and the reliefs claimed by him.

39. The order of Banerjee J. is practically voicing the opinion of Punjab High Court which is hardly a satisfactory way of dealing with the matter. Though it is of course true that we cannot sit in appeal over the judgment of the Punjab High Court and the same must be treated with respect but the same is not binding on us and the same is necessary to be considered at the time of the hearing of the application.

40. Before parting with this matter I may note that the appellant referred in details as to what happened in the Court of Banerjee J. and as to what his Lordship said in course of his argument and the appellant sought to make the same also a ground for re-hearing of the application. In my view it is highly improper on the part of the appellant. (Vide M/s. Associated Tubewells v. Gujarmal Modi, (S) : AIR1957SC742 ). Again, in my view the plea, raised by the appellant for the first time before us, that there is no letter of the Chief Justice dated April 17, 1959 containing the above allegations, should not be allowed to be raised (Vide Associated Cement Co Ltd. v. P. D. Vyas .).

41. In my view it is also not open to us, being the appellate Court, to consider a new case not argued before the Trial Court and to give our judgment. (Vide Narayan Bhagwantrao v. Gopal Vinayak : [1960]1SCR773 and Kedar Nath Motani v. Prahlad Rai : [1960]1SCR861 .

42. It is not our function being the Appellate Court to substitute our wisdom and discretion for that of the Trial Court to whose judgment the matter in question is entrusted. Their Lordships of the Supreme Court in the majority judgment in the case of A. V. Venkateswaran, Collector of Customs, Bombay v. Ramchand Sobhraj : 1983ECR2151D(SC) observed to the effect, that the question is not, whether if the application were before us we should have directed the rule or writ to issue, but whether the Court below having in its discretion made an order, there is justification for our interfering with It. In my view matters set out earlier, should suffice to show that interference is called for in this appeal.

43. The importance of the question is so patent and loudly obtrusive that it leaves an Indelible stamp of a Rule Nisi being issued. As the application is dismissed summarily, it would be the duty of the Trial Court to issue a rule and to give a hearing to the parties on notice to the respondents and record its decision on consideration of all the circumstances. (Vide British India Corporation v. Industrial Tribunal Punjab : AIR1957SC354 ). The question had not been fully debated. Court is the protector and guarantor of fundamental rights. It cannot, consistently with the responsibility so laid upon it, refuse to entertain application seeking protection against infringement of such rights.

44. I am of opinion that it would not be proper to dismiss the petition summarily as has been none by Banerjee J. It is desirable that the points raised by the petitioner should be debated fully and thereafter be decided finally by this Court.

45. I, therefore, set aside the order of Banerjee J. and allow this appeal. In view of the circumstances of the case I do not make any order for costs.

46. I regret, I cannot agree with the decision of my learned brother and I respectfully differ.


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