P.N. Mookerjee, J.
1. A simple question 'whether a Rule Nisi should issue in the instant case' has assumed intriguing importance. The Rule was refused by our learned brother Banerjee, J. (see : AIR1963Cal178 ), and on appeal, G. K. Mitter and Laik, JJ., differed, the former holding that Banerjee, J. was right in refusing the Rule, the latter holding the contrary (see : AIR1963Cal183 ). This difference led to the present reference, presumably under Clause 36 of the Letters Patent, and, apparently, the importance of the matter impressed the learned Chief Justice to constitute eventually a Special Bench -- this Bench of three Judges, -- to hear and determine the reference.
2. The constitution of the Special Bench and the reference were made by the following order of the learned Chief Justice :
'Let this matter be placed for disposal before a
Bench consisting of:
Mr. Justice P. N. Mookerjee,
Mr. Justice Sankar Prasad Mitra and
Mr. Justice R. N. Dutt.'
Following upon a minuted order of the Appeal Court (G. K. Mitter and Laik, JJ.) in the wake of their differing judgments, that minuted order running as follows:
'As there has been a difference of opinion between us, the matter will be placed before the learned Chief Justice to be dealt with according to law.'
3. I have set out above the relevant orders, on which are founded this instant reference and the Constitution of this Special Bench for the hearing and determination of the same, with a view to study them in the context of Clause 36 of the Letters Patent, to which ultimately one must turn in such matters for necessary legal sanction and for ascertaining the scope of the reference and the extent and implication of the authority of the Bench, constituted to hear and determine the same.
4. That Clause (Clause 36), to Quote its relevant part, stands as follows:
'any function which is hereby directed to be perform-ed by the High Court in the exercise of its appellate jurisdiction may be performed by any Division Court thereof, appointed or constituted for such purpose in pursuance of Section 108 of the Government of India Act, 1915; and if such Division Court is composed of two or more Judges and the Judges are divided in opinion as to the decision to be given on any point, such point shall be decided according to the opinion of the majority of the Judges, if there shall be a majority, but if the Judges should be equally divided they shall state the point upon which they differ and the case shall then be heard upon that point by one cr more of the other Judges and the point shall be decided according to the opinion of the majority ot the Judges who have heard the case including those who first heard It.'
5. A look at the above extract is enough to convince one that it requires, in a case like the present, the learned Judges, differing in opinion, to state their point ot difference and the Judge or Judges, to whom the reference is ultimately made, are required to state his or their opinion on that point, which will then be decided in accordance with the opinion of the majority of the Judges, who have heard the case including those who first heard it.
6. Strictly, then, under the law, the point of ditter-ence should be stated by the learned differing Judges and, upon that point, the case should be heard by the referee Judge or Judges, who shall express his or their opinion, as the case may be, upon the said point. In actual practice, however, the learned differing Judges have not always stated their point of difference and, sometimes, that has made the reference abortive or infructuous, necessitating a remit to the learned differing Judges for regularising matters for an appropriate reference. On certain occasions, however, when the point of difference was apparent or manifest on the face of the differing judgments and/or was reasonably certain or readily ascertainable, the inconvenience of a remit was avoided and the defect or irregularity was ignored or waived and, on the point of difference, formulated by the referee Judge or Judges and the parties, the reference was allowed to proceed and taken to a determination. This happened in the Full Bench case of the Lahore High Court, Mt. Sardar Bibi v. Haq Nawaz Khan, AIR 1934 Lah 371, where (vide p. 379} the learned Judges, with the assistance and concurrence of the parties before them, formulated the point of difference and decided the reference upon it. In view of that judicial precedent, we, with the concurrence of the parties before us, decided to adopt a similar course in the instant case and heard this reference on an agreed broad statement of the point if difference between our learned brothers G. K. Mitter and Laik, JJ., which statement may be succinctly put as follows:
'Whether, on the materials in the petition and the annexures thereto, a Rule Nisi should or should not issue.'
7. A more or less similar situation arose recently in another reference in this Court under the above Clause 36 of the Letters Patent in the matter of the Great Eastern Shipping Co. Ltd. v. Travancore Bank Ltd., O. S. Appeal No. 219 of 1958, arising out of O. S. Suit No. 4124 of 1953 (Cal), where on a difference of opinion between P. B. Mukharji, J. and Bose, J., as he then was, in the Appellate Court, recorded under a joint minute, as follows:
'We are equally divided in our opinion on all points of fact and law including interpretation of the Bill ot Lading in this Appeal. Our respective judgments state and record all the points upon which we differ. Having regard to the commercial and legal importance of the points, upon which we differ, we suggest that they be decided by a larger Bench under Clause 36 of the Letters Patent.'
Bachawat, J., Sinha, J. and myself were constituted a Special Bench to hear and determine the reference under the following order of the learned Chief Justice :
'Let the reference in the matter come on for hearing before a Bench consisting of:
(1) Mr. Justice Bachawat,
(2) Mr. Justice Sinha and
(3) Mr. Justice P. N. Mookerjee.'
and we adopted a more or less similar course, which, eventually, led to the recording of our opinion on the merits of the entire appeal and on all the points of law and fact, involved therein.
8. The above course has thus some judicial sanc-tion but, even then, it is obviously desirable and certain-ly preferable that the strict letter of the law should be followed and the point of difference should be stated by he learned differing Judges under the Clause in question and, in the light of the several opinions on the point, as envisaged in Clause 36 of the Letters Patent, the same should be ultimately decided in terms of the said Clause.
9. I have deemed it necessary to draw attention to the above aspect of the matter as, in recent times at least, not very infrequently, it has been overlooked, not only in reference under Clause 36 of the Letters Patent but also in Full Bench and Special Bench References under Rules, containing more or less similar provisions. The reference, or, reference of 'the matter', is not of much help, unless the point under reference is expressly stated, or, unless, at least, the context is sufficiently clear to make it plain, apparent or manifest or readily ascertain-able and, accordingly, the Referee Bench is sometimes obliged to return the Reference as incompetent. This embarrassing situation, which is not always without grave consequences to the parties, may easily be avoided, if attention is drawn, at the proper time, to the relevant rules or provisions to ensure that the strict letter of the law is followed, or, at least, that it is substantially complied with.
10. To turn now to the instant reference.
11. The point for consideration is, as I have stated above, 'whether on the materials in the petition and tne annexures thereto, A Rule Nisi should or should not issue'. On that point, my learned brother Mitra, J. has prepared a well-written and elaborate judgment, which I have nad the opportunity of seeing in advance. With his conclusion or final opinion, I am in complete agreement. His reasonings also substantially accord with mine and his statemenf of the basic or material facts renders it unnecessary for me to repeat the same. As, however, the instant case has evoked considerable public interest, I would add a few words of my own to indicate, in brief, my own approach to the problem before us and to supplement, in some measure, my learned brother's reasonings for our final conclusion.
12. Before proceeding further, I would like to utter a word of caution, lest we be misunderstood. The litigation before us is somewhat extraordinary, -- possibly, unparalleled in the history of the world -- but that is wholly irrelevant for our present purpose. It is important, however, to bear in mind certain fundamental considerations. The case is now before us in a delicate form and at a very delicate stage. We have oniy to see whether there is a 'prima facie' case for a Rule or a case tor a Rule Nisi, as it is usually called, and none of our observations, findings or expressions of opinion in the matter should be taken to be final except the ultimate conclusion that a Rule Nisi should issue in the instant case, all our supporting findings being made only 'prima facie' just for showing that, on the appellant's petition and its annexures, debatable questions of sufficient importance have arisen and there is a 'prima facie' case for a Rule and a Rule Nisi should issue and the petition should not be rejected 'in limine' or at this stage. Beyond that and save as aforesaid, we express no final opinion.
13. As I have said above, the matter is now before us in a delicate form and at a very delicate stage. We have seen also that the scope of this Reference is limited. We have only to see whether there is a 'prima facie' case for a Rule Nisi on the appellant's application [including its annexures) and to answer the question whether a Rule Nisi should or should not issue in the instant case, upon which, broadly put, our learned brothers G. K. Mitter and Laik, JJ. differed in appeal. The situation is somewhat unique -- possibly, unprecedented in the history of this Court, to put it at the mildest, -- and it demands of us to be cautious in our approach and restrained in our thoughts and expressions.
14. With these preliminary remarks I proceed to the consideration of the problem before us.
15. Upon the arguments, addressed to us, and upon the materials for consideration as they are now on record, namely, the appellant's petition for Rule and its annexures, two fundamental questions arise, upon which must depend, ultimately, the fate of the controversy in this Reference. These two questions may be broadly put as follows :
(a) whether the appellant is still a Judge of thus Court and has the legal right to act as such and to demand and enjoy the rights and prv attached to that high office; and
(b) whether the respondent, as the Chief Justice ot this Court, is under a legal duty or obligation to aid or implement the appellant's exercise and enjoyment of the said right or rights and privileges.
On these, as we shall see presently, grave issues arise of sufficient and far-reaching constitutional and legal importance and implication to satisfy the 'prima facie' requirements of a Rule Nisi and to justify its issue, unless the appellant's claim, as involved in either of the above two questions (a) and (b), is 'prima facie' devoid of substance, or, unless there is anything in law shutting out consideration of the said claim either absolutely or in this writ proceeding.
16. Of the grave issues -- legal and constitutional -- to which I have just referred above, -- it will be anough, at this stage, to recall and set out --
(i) who, under the law, is the authority to determine a Judge's age when a dispute on the point arises;
(ii) what is the position and what are the powers and duties of the Chief Justice in relation to hist companion Judges -- generally, and, also, in particular vis-a-vis the Central Government; and
(iii) what, if any, is the extent of security of tenure, of a High Court Judge under the Constitution ana what is the meaning and implication of independence of the Judiciary, if the same is envisaged in our Constitution.
17. I am not unmindful that the instant Is a writ proceeding and, if the appellant's claim, underlying the two fundamental questions, enumerated in (a) and (b) above, be 'prima facie' unfounded or untenable, no Rule should issue. I am also alive to the fact that if there be any legal bar, either of general application or applicable to writ proceedings in particular, to the consideration of the appellant's above claim, he must fail here, no matter that he may nave a very good case on the merits and, howsoever much, grave and difficult questions may otherwise arise. Indeed, the arguments before us proceeded upon the above footing and that has been suffi-ciently recognised by me and indicated hereinbeiore,
18. On the point of legal obligation of the Chief justice, as envisaged in question (b) above, the learned Advocate General started with an extreme submission. He contended that the obligation, on which a Writ -- a writ of Mandamus, in particular, -- is to be founded must be statutory or under a statute and, in support of this contention, he relied upon Article 1303, Vol. 9, Halsbury (Hatlsham Edition). The passage cited, however, does not, at least 'prima facie', support his said extreme contention. It only excludes equitable obligations as distinguished from legal obligations which, of course, include statutory obligation too. Any other view would be opposed to the leading authority, cited by the learned Advocate General himself, namely, Ex parte Napier (Ex parte Sir Charles James Napier), (1852) 18 QB 692 : 118 ER 261.
19. Be that as it may, so far as the present case is concerned, the Chief Justice may well be said, at least prima facie, to have a statutory obligation in the matter of the appellant's right, if any, as a Judge ana there is hardly much scope for controversy on the point. This is apparent from, in any event, prima facie implicit in, Section 108 of the Government of India Act, 1915, to which the learned Advocate General very fairly drew our attention and which corresponds to the older Section 14 of the Charter Act (Indian High Courts Act), 1861, and which--it is perfectly clear--has been preserved by the Constitution (vide Article 225), following the earlier constitutional enactment, the Government of India Act, 1935 (Sec. 223) and which appears to impose, at least prima facie, a duty upon the Chief Justice to allocate work to his Judges existing Judges, no doubt, as Banerjee J. has said in this very proceeding, tut that only presses into consideration the other question, namely (a), as formulated above. Indeed, the learned Advocate General practically conceded that, if the appellant is a Judge, the Chief Justice has towards him a legal duty or obligation, enforceable even in a writ proceeding, or, in other words, if question (a) can be found in favour of the appellant, question (b) would admit of an affirmative answer on the merits and, prima facie at least, no plea would bar the same.
20. This brings us to the crucial question (a), round which revolves the central dispute. The controversy on this point is widespread, though, undoubtedly, very acute, but its salient features will be apparent from the follow ing:
21. It is the common case before us that, on the present materials, that is, as they exist on the record, the appellant would be prima facie a Judge and would have, at least prima facie, the legal right to act as such and to demand and enjoy the rights and privileges, attached to that high office, until he attained the age of 60 (sixty) years. That, indeed, is clear on the Constitution (Vide Article 217(1)). Then starts the dispute. The appellant claims that he has not attained the age of 60 (sixty) years. The respondent contends and that was his contention before G.K. Mitter and Laik JJ. too, that the appellant has passed that superannuation age. Upon this contention, the learned Advocate General made a two-fold submission:
(1) That a disputed question of fact, namely, as to the appellant's age, has arisen and that is enough for the rejection of this instant application as the writ jurisdiction under Article 226 of the Constitution cannot be invoked at any rate, it is not appropriate, where a disputed question of fact is involved and requires to be investigated and determined;
(2) that, even assuming that the said dispute can be decided in the instant proceeding, the verdict must still be against the appellant upon the materials, furnished by his own application and its annexures.
22. On the first of the above two submissions, I have very little to add to the exhaustive and illuminating discussion, made by my learned brother Mitra, J. in his judgment, and I would only say that the matter is realty one of discretion or convenience and not of jurisdiction and that, even if a dispute of fact is to be held sufficient to disentitle the applicant to relief by way of a writ, it must be such a dispute as will require detailed investigation into serious and complicated questions of fact, which would not be possible without going into elaborate evidence. The materials, now before us, do not prims facie involve a dispute of fact of such magnitude of complication and the instant application, as it now stands cannot be thrown out in limine on the ground that it in volves any such dispute. This is apart from the large question whether a disputed question of fact, whatever be its nature, may at all be gone into in a proceeding under Article 226 of the Constitution, on which, as my learned brother has pointed out in his judgment, there is considerable scope for difference of opinion in view, particularly, of the recent decision of the Supreme Court in what has new become widely known as the second Kochunni case, namely, Kavalappara Kottarathil Kochunni v. State of Madras : AIR1959SC725 . This, indeed, is well illustrated by the subsequent decisions of two of the High Courts on the point -- the first, of the Jammu and Kashmir High Court in the case of Caltex India Ltd v. Excise and Taxation Officer, AIR 1962 J and K 48 and the second, of the Rajasthan High Court in the case of Tilkayat Govindlalji v. State , and it may well be said that, at the moment, the second Kochunni case : AIR1959SC725 has -- seemingly, at least -- cast to the shadow or background the earlier pronouncements on the subject and has made the point sufficiently open for fresh consideration. Prima facie, again, the above position does not seem to have been altered or affected by the two recent deci-sions of the Supreme Court, reported in : AIR1959SC942 Moti Das v. S.P. Sahi and : 1961CriLJ703 The Union of India v. Ghaus Mohammad, the first, given about a month after the second Kochunni case : AIR1959SC725 and the second about two years later, of which reference was given to us on behalf of the respondent, as, in the second of the said two cases, their Lordships proceeded more or less on concession of the parties and without reference to the second Kochunni case : AIR1959SC725 and, although, in the former, there are certain observations, which may suggest that the above question is not open, at least, in its entirety, and disputed questions of fact, involving complicated investigation or elaborate consideration of evidence, could not be gone into in writ proceedings, those observations lose much of their torce, when read in the light of the concluding lines of their Lordships' judgment, where their Lordships expressly say:
'The fate of these cases must depend on the sole question whether the Act is constitutionally valid or not', and in the significant context that, here too, there is no reference to the second Kochunni case, decided about a month earlier, where, as stated above, the point was expressly left open after a long discussion on the subject under the allied Article 32, on reasons which, as my learned brother Mitra, J. has pointed out and with his said observations I respectfully agree may not be wholly inapplicable to Article 226. This also appears to have been the view of the Jammu and Kashmir High Court in the case AIR 1962 J and K 48 already cited. In the premises, this itself seems to be a matter of sufficient prima facie importance, which requires closer and fuller consideration, for winch the appropriate occasion will be, not this initial stage, when the issue is only of a prima facie case for a Rule or a Rule nisi but the final stage or the final hearing of the Rule. The above divergence of judicial opinion, which has already manifested itself on the effect of the second Kochunni case, so far as this particular point is concerned, would thus support the grant of a Rule nisi in the instant case, unless the same is barrred on some other ground.
23. The second submission of the learned Advocate-General touches the merits of the disputed question of the appellant's age. We were pressed hard to hold that, even on the appellant's own application and its annexures, he must be taken to have attained the age of sixty years on 27-12-1961. Reliance for this submission was placed on the statement or entry of the appellant's age in his Matriculation Certificate, as appearing from the relative Bihar and Orissa Gazette Notification, and in the Certificate, alleged to have been in the records of the Indian Civil Service Examinations in London, as also upon tne judgment (Annexure to the present Rule petition) of the Punjab High Court, dismissing his (the appellant's) writ application against the Union Government and it was submitted on behalf of the respondent that, in the face of the above documents, the appellant's declaration of age at the time of his appointment as a Judge of this Court, which would make him attain the age of sixty years on 27-12-1964 is of no value, particularly when it was not accepted by the appointing authority, it was submitted further that the question of the appellant's age was liable to be reopened and it has been rightly reopened and held against the appellant on the strength of the above documents, namely, the Matriculation Certificate or the relative Gazette Notification and the Certificate in the records of the Indian Civil Service Examinations and that, in any event, the Home Ministry's decision on the point was prima facie binding on all concerned and the Chief Justice of this Court was bound to give effect to it and he could not do otherwise. It was lastly submitted on this pan of the case that the matter of the appellant's age is concluded -- at any rate, prima facie well established against him, -- by the judgment of the Punjab High Court (Annexure E.). These aspects have been sufficiently dealt with by my learned brother Mitra, J. in his judgment and, so completely do I find myself in agreement with his discussion of the matter, that all I need here to do is to express my respectful concurrence with his approach and point of view and to repeat and stress only that the effect of the appellant's declaration of age and its acceptance, as it now prima facie appears from the sworn paragraph 4 of the petition, not yet controverted by any relevant material, the weight of the same vis-a-vis the Gazette Notification and the Certificates, relied on by the respondent, particularly in view of the appellant's explanation as to the discrepancy or fliscon-formity between the rival statements of age in his aforesaid declaration and the said other documents, the evidentiary value, if any, of the opinion, based on information as to the Certificate said to be in the records of the Indian Civil Service Examinations, the validity of the plea of res judicata, or of any bar otherwise, founded upon the judgment of the Punjab High Court (Annexure E), so far as the instant proceeding is concerned, the effect of that judgment on the present dispute and the rights of the parties before as and last but not the least the none too easy task of ascertaining its effective findings are all matters sufficient to raise serious questions which cannot all at once be held to be unarguable or of no substance. The point also remains, as stated by my learned brother Mitra, J. and also by me earlier, as to how far the Chief Justice of this Court in relation to the Judges is bound by and bound to carry out the directions and orders of the Central Government and what, if any, is the latter's authority or power in that behalf. Who, again, is the authority to determine a Judge's age, when a dispute on the point arises, and whether there has been, in the instant case, any such determination by the Central Government or for the matter of that by anybody else. And, lastly, whether the discrimination alleged by the appellant in paragraph 13 of his petition, Is true and, if so, whether it is of any relevance ot significance to aid the appellant in obtaining the relief or reliefs, claimed by him in the present proceeding, particularly in view of the attitude, taken up by the Union Government before the Punjab High Court on this particular point. So far as it is material for our present purpose, discussion on all these aspects is to be found in the judgment of Mitra, J. That discussion substantially accords with my own point of view and it needs no further elaboration or addition at this stage. I would, however, add just a few words of my own on some of the other submissions of the learned Advocate General.
24. To his objection that this Writ petition should not be entertained as the Appellant has an alternative remedy by way of a suit, it may well be a sufficient answer at this stage that that remedy may not be quite adequate or convenient -- at any rate, it will not be equally efficacious -- in the instant case. Indeed, it may be too prolonged to be appropriate or of any real or effective use. The learned. Advocate General's rejoinder that, even then, the Appellant may be well compensated in damages does not sound to be quite happy, as, to a High Court Judge, unceremoniously turned out or retired prematurely, damages would be a poor recompense.
25. To the further objection of the learned Advocate General that, in the absence of the Union Government, the present proceeding is not maintainable, it is enough to say that, prima facie at least, this objection would be untenable in view of the Musaiiar case (A. Thangal Kunju Musaiiar v. M. Venkatachalam Potti, (S) : 29ITR349(SC) . No doubt, it may well be true that this Court cannot issue a Writ against the Union Government ana so trie said Government cannot be effectively impleaded in this proceeding, Vide It. Col. Khajoor Singh v. The Union of India : 2SCR828 but that is no ground for throwing out the present ap-plication in limine as, in view of the Musaiiar case : 29ITR349(SC) supra, a Writ, if otherwise claimable I against the Chief Justice, may still issue, notwithstanding the absence of the Union Government. I may respectfully add that there is, prima facie at least, no conflict between the above two decisions of the Supreme Court and, even if there be any conflict between them, the eftect thereof would require much closer consideration and deep, detailed and careful study and scrutiny, which would be more appropriate at the stage of the final hearing ot the Rule.
26. Possibly, because of the Supreme Court deci-sion in Pradyat Kumar's case (Pradyat Kumar Bose v. The Hon'ble Chief Justice of Calcutta High Court : 2SCR1331 ) and the view, taken of that decision in the Special Bench case of Pramatha Nath Miner v. The Hon'ble the Chief Justice of the High Court at Calcutta : AIR1961Cal545 , the learned Advocate General did not argue that no Writ lies in this court against the Chief Justice and we were not called upon to consider any such objection.
27. It is well that it is so. It Is an emphatic vindication of the powers of this Court, an eloquent recognition that the judicial power of its Puisne Judges is above the Chief Justice, no less important than the traditional saying of this Court that 'the judicial powers of the Chief Justice are in no way greater than its Puisne Judges'. My only regret is that it required the Supreme Court to make this pronouncement.
28. The two other submissions of the learned Advocate General, namely, that the appellant is guilty ot suppression of certain materials and that his application has not been properly verified need not detain us long, as, prima facie, on matters as they stand, they do nol appear to be of much significance or substance, The suppression alleged is, primarily, of the appellant's two letters to the Chief Justice, dated May 27 and August 12, 1959, and, incidentally, reference was also made in this connection to the certificate of the appellant's age, alleged to have been in the records of the Indian Civil Service Examinations. The clue to this submission was taken from the Punjab High Court judgment (Annexure E to the Rule petition) and paragraph 24 of this Rule petition itself, where these documents are referred to. Apart, however, from anything else, this charge of suppression is prima facie unsustainable even on the said materials themselves, on which reliance was placed for the purpose, as the Rule petition, read with or in the light of Its annexures, -- particularly, Annexure E (the Punjab High Court judgment) and Annexura B (the Home Ministry's letter, dated May 16, 1961), -- appears to contain sufficient particulars of the contents of the so-called suppressed documents. Indeed, the trend of the Punjab High Court judgment (Annexure E) sufficiently indicates that, in its reference to the appellant's above two letters in question, nothing material or of importance was omitted; which would have supported its ultimate refusal of reliet to the appellant and, similarly, the Home Ministry's letter (Annexure B) also may, from its trend, well be taken to contain everything from the disputed certificate, of which suppression is alleged before us, which might have gone against the appellant, tn the circumstances, I am unable to hold that there has been any suppression, -- far less any material suppression -- which would Justify rejection of the appellant's application in limine. The English case of Rex v. Kensington Income-tax commissioners, Ex parte Polignac, (1917) 1 KB 486, cited by the learned Advocate General in the above connection, would not help him at all. To say the least, it is distinguishable, as, there, the fact of the applicant's residence which was of paramount consideration and importance and upon which, practically, the whole case turned, had been suppressed by the applicant. No wonder that in such circumstances, the application was held liable to be thrown out on the ground of material suppression My learned brother Mitra, J. has made an exhaustive analysis of the above case in his judgment, which substantially reflects my own reading of the same. I do not, therefore, propose to say anything more on this subject.
29. Lastly comes the point of defective verifica-tion. This objection does not impress me. In the first place, a close reading of the verification may well show that it is sufficient in substance, though certainly somewhat irregular and defective In form. This, again, is not a ground, which any of the learned Judges, who dealt with this case before us, considered fatal to the appellant's application. Moreover, this formal defect was certainly curable by re-verification and the appellant offered to re-verify his application, if necessary, before G.K. Mitter and Laik JJ. and also before us. In the circumstances, I am not inclined to throw out the present application at this stage on the ground of alleged defective verification.
30. In my opinion, then, the appellant has made out a prima facie case for the issue of a Rule Nisi on his application under Article 226 of the Constitution, as prayed for in the relevant prayer (i) of the said application.
31. I have practically finished but, before I conclude, I deem it my duty to make one more observation,
32. If the Chief Justice of this Court is in a position of such utter subordination to the Executive as is contended for by the learned Advocate General and it the Judges of this Court are so much at the mercy of the Executive that an Executive fiat would be enough to retire them and to terminate their tenure, that would mean the end of judicial independence in this country. Independence of the Judiciary would then be a thing of the past and the cherished safeguards of the age, so fondly enshrined in the Constitution in that behalf would become useless and unmeaning and would be reduced to a mockery. I shudder to think of such consequences. I was, therefore, immensely relieved, when I found that the learned Advocate General could not lay his hand on any provision of law -- either statutory or constitutional --to support his above extreme contentions. All he could do was to place reliance on so-called rules of prudence and public policy. Such rules, however, are, to say the least, utterly inappropriate, irrelevant and insufficient to sustain such arguments, which, I am constrained to hold, would be destructive of the very foundation of judicial independence and of the security of tenure of the Judges, so essential for upholding the laws and the Constitution, I am glad that the learned Advocate Genera) could not draw any better material to his assistance on this point.
33. In the premises, I would answer the question before us in the affirmative and hold that, in the instant case, a Rule Nisi should issue, This Rule, of course, would bee in terms of prayer (i) of the application, which is the relevant prayer in that behalf. My learned brothers also hold the same view and so our unanimous opinion is that, on the appellant's application under Article 226 of the Constitution, a Rule Nisi should issue in terms of its prayer (i).
34. We also agree that there will be no order as to costs in this Reference.
Sankar Prasad Mitra, J.
35. I agree with the observations which have just been made by my learned brother P. N. Mookerjee, J.
36. This appeal has been preferred against an order of Banerjee, J. dismissing the appellant's ex parte application for a rule nisi upon the Hon'ble the Chief Justice to show cause why a Writ in the nature of Madamus or appropriate, directions, orders or Writs under Article 226(1) of the Constitution of India should not issue directing his lordship to recall his orders 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 High Court and to restore to the appellant his said duties and functions as well as his rights and privileges.
37. It appears from the petition and tha annexures thereto that the appellant was appointed an additional Judge of this Court on February 11, 1949. He was matte a permanent Judge on January 21, 1950. At or about the time of his appointment he gave to the then Chief Justice the late Sir Arthur Trevor Harris, December 27, 1904 as his date of birth. On the 9th April, 1959, the Home Minister, Government of India, wrote to the Chief Minister of West Bengal seeking to reopen the age of the appellant on the basis of a certificate granted, to him of the passing of the Matriculation Examination of the Patna University. His name was published in the Bihar and Orissa Gazette and from this publication it seems that, he was born on December 27, 1901. The Home Ministry, Government of India also ascertained that the appellant appeared at the examination for the Indian Civil Service in 1923 and at that time also he gave December 27, 1901 as date of birth. On April 17, 1959 the Chief Justice of this Court wrote to the appellant to send a full statement as early as possible on all the points, involved and also to inform the Chief Justice as to whether there was any other material for a correct ascertainment of the appellant's date of birth. On May 27, 1959 the appellant repudiated the suggestion that he had made a false declaration of his age and asserted that the matter could not in any event be reopened. In July 1959 Chief Justice Harris died. On August 12, 1953 the appellant wrote a letter attempting to explain the discrepancy of his age given at the time of the Civil Service Examination. He said that it must have been obtained in England from his relations in India and was presumably based on his Matriculation Certificate. He did not recollect alter 36 years as to what had actually happened. He reiterated, however, that the matter could not be reopened. On September 29, 1959 the Chief justice of this Court wrote to the appellant that the Home Ministry, Government of India had decided with the concurrence of the Chief Justice of India to treat the age of the appellant as stated in his Matriculation Certificate as final. The appellant immediately challenged the authority of the Home Minister to determine the age of a High Court Judge. On September 30, 1959 the appellant made accusations against the then Chief Justice of India for taking adverse views against iiim for ulterior reasons, Thereafter, there was an offer of arbitration by the Home Minister to the appellant. The appellant did not give any reply in spite of a reminder. On November 1, 1960, the Home Minister, Government of India, wrote that the appellant should be definitely told that December 27, 1901 was his date of birth and that he would have to retire on December 27, 1961 on attain-ing the age of 60.
38. Then comes the most important communication for the purpose of this application. On May 16, 1961, the Secretary to the Government of India, Ministry of Home Affairs addressed a letter to the appellant inter alia, as Follows:
'It was brought to the notice of the Government of India that your age at the time of passing the Matriculation Examination of the Patna University held in April 1918, was 16 years 3 months, according to the entry against your name in the results of that examination published in the Bihar and Orissa Gazette, dated the 26th June, 1918. The Government of India have also received information that your date of birth was recorded as 27th December, 1901, when you sat at the open competitive examination in July/ August, 1923, held by the U. K. Civil Service Commission for appointment to the Indian Civil Service. The date namely 27th December, 1901 tallies with the entry regardhg your age at the time of your passing the Matriculation Examination appearing in the Bihar and Orissa Gazette referred to above. In the statement of particulars furnished by you in the year 1936, you have given your date of birth as 27th December, 1904. There was thus a discrepancy between the two dates. You were asked, through the Chief Justice of the Calcutta High Court, to explain this discrepancy.
The Government of India, having given their mostcareful consideration to the explanation given by you, havedecided, in consultalion with the Chief Justice of India,that your age as given in the Bihar and Orissa Gazettedated the 26th June, 1918, should be taken as the correctage and that the date of birth namely 27th December, 1901,as recorded at the time you appeared at the I. C. S. Competitive Examination, London, which tallies with the entryin the said Gazette regarding your age, should be takenas the correct date of birth. You should, therefore, demityour office of Puisne Judge of the Calcutta High Court onthe 26th December, 1961, after Court hours.....'
39. It appears that the appellant after receiving this letter saw the Prime Minister of India on July 30, 1961. The Prime Minister also addressed a letter to the appellant on the same day. The last but two paragraphs of this letter are as follows:
'I have spoken to the Chief Justice of India about this matter this evening. He told me that some time back 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. However, he said that if you wished to see him he was prepared to give an interview.
'The Chief Justice also mentioned to me that therehad been some serious complaints about the manner inwhich judicial work had been transacted by you.'
40. It also appears that the appellant saw the Chief Justice of India and on the 22nd August 1961 the Chief Justice of India wrote to the appellant replying to the appellant's letters of the 7th and 19th August 1961 as follows :
'Yes, I confirm what I told you in the course of the talk I had with you a few weeks ago that it was decided that you should retire some time in December next on your superannuation, according to your age in the Matriculation Certificate, witnout 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. Neither the Government cf India, nor anybody, far less the Supreme Court, would do anything to detract from the prestige of a High Court which must depend upon the respect in which the Judges of the Court are held by all concerned. Certainly we would not do anything to cast aspersions on the veracity of a Judge of a High Court, but in order to save the Judge himself and the Government from any embarrassment in Court and out of Court this policy has been adopted. In pursuance of this policy, I understand, all those who have been appointed as High Court Judges in recent years have been asked to submit their Matriculation Certificate, or any other evidence of age, as it appears in the University records.
'I am glad to note that you have taken my assurance, in the spirit in which it was given, namely, to save you and to save the Government from any embarrassment in connection with such a controversy.'
41. On November 15, 1961 the appellant 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 was entitled to hold office as a Judge of this Court till December 27, 1964, and for the issue of a Writ in the nature of Mandamus upon the Union of India directing the Union not to give effect to its decisions contained in the said letter of the 16th May, 1961 and not in any way to interfere with the duties and functions as well as with the enjoyment of the rights and privileges of the appellant as a Judge of this Court until the date of his retirement on December 27, 1964. Their Lordships of the Punjab High Court after hearing the appellant and the Union of India, dismissed the application on December 4, 1961. The Judgment of the Punjab High Court has been annexed to the petition herein and marked Exhibit 'E'. Against this judgment the appellant applied for special leave to appeal to the Supreme Court of India which was refused.
42. Thereafter on December 22, 1961 the appellant wrote to the Hon'ble the Chief Justice of this Court asking His Lordship not to interfere with his duties and functions as well as his rights and privileges as a Judge of this Court after December 26, 1961 and to afford him the protection which a Judge was entitled to expect from his Chief Justice. There was no reply to this letter. Then, on December 31, 1961, the appellant addressed another letter to His Lordship the Chief Justice as follows:
'I have had no answer to my letter to you of 22nd December, 1961. Meanwhile, my direction given to my Court Officer on the same day to have two cases placed in my list for judgment on 2nd January, 1962, has not been carried out owing, as I understand, to a subsequent order by you not to print or publish any cause list for ma for the 2nd January, 1962. I also understand that under your order my orderlies were withdrawn from their duties with effect from 27th December,
'In these circumstances, I must respectfully protest against what I consider to be an unjust interference on your part with my duties and functions as well as my rights and privileges as a Judge of the High Court and must demand that justice be done to me by recalling forth-with your said order and/or directions and by affording me all such facilities as are necessary to enable me to carry out my duties and functions as a Judge.
If, unfortunately, I should be denied the justice I am asking for before the reopening of the Court and 2nd January, 1962, 1 shall be reluctantly compelled to seek it from Court.'
43. There was no reply to this letter either.
44. The appellant has also drawn our attention to Exhibit 'F' to his petition at page 49 of the Paper Book which is as follows:
Registrar, A. S.,
The Government of India have decided, on the question of the date of retirement of the Hon'ble Mr. Justice J. P. Mitter, that his Lordship will 'demit his office of puisne Judge of the Calcutta High Court on the 26th December, 1961, after Court hours', which means that his Lordship retires with effect from the 27th December, 1961, A copy of Government of India's letter No. 3/3/59-Judl. I, dated 16-5-1961, from the Secretary in the Ministry of Home Affairs to the Hon'ble Mr. Justice J. P. Mittar, conveying the above decision of the Government has been forwarded to the Hon'ble the Chief Justice for his information.
The Accountant and the Librarian may kindly be informed.
B. K. Sinha,
Secretary to the Chief Justice.'
45. On the 2nd of January 1962 the appellant applied to Banerjee J. for a rule nisi. His Lordship on the 3rd January 1962 dismissed the application. The appellant preferred an appeal which was ultimately heard by G. K. Witter J. and Laik, J. Their Lordships delivered two separate Judgments on the 22nd November, 1962. G. K. Mitter J. was of the view that the appeal should be dismissed; but Laik, J. was of opinion that it should be allowed and a rule nisi should be issued. In view of the difference of opinion between the two learned Judges the matter has been referred to us under Clause 36 of the Letters Patent (1865).
46. Now, Clause 36 provides, inter alia, that if a Division Court is composed of two or more Judges, and the Judges are equally divided they shall state the point upon which they differ and the case shall then be heard upon that point by one or more of the other Judges and tha point shall be decided according to the opinion of the majority of the Judges who have heard the case including those who first heard it.
47. In the instant case our difficulty is that G. K. Mitter J. and Laik, J. have not been pleased to state the point upon which their Lordships differ. A similar situation arose in AIR 1934 Lah 371 (FB). This is a decision of the Full Bench of the Lahore High Court. The differences between the learned Judges of the Division Bench were not stated expressly. They were apparent, however, from the respective judgments. Counsel for both sides agreed before the Full Bench that it was unnecessary to remit the case to the Division Bench to have the question formally drawn up. Accordingly at the commencement of the hearing the points requiring decision were formulated by the Full Bench with the concurrence of both the parties.
48. At the commencement of the hearing of this appeal as well with the concurrence of the appellant who is appearing in person and the learned Advocate-General who appears on behalf of the respondent we have formulated the following point requiring our decision :
'Whether on the materials in the petition and the annexures thereto a rule nisi should or should not issue.'
49. The learned Advocate-General contends that the appellant has no legal right to apply for writ. The existence of a legal right or obligation, it is well-known, is the foundation of every writ of mandamus: Ex parte, Napier, (1852) 18 QBD 692 at p. 695. The applicant for an order of mandamus must show that there resides in him a legal right to the performance of a legal duty by the party against whom the mandamus is sought; 11 Halsbury, 3rd Edition, Article 194, at page 104.
50. Article 217(1), the learned Advocate-General has argued, of the Constitution of India prescribes that, a Judge of a High Court shall hold office until he attains the age of 60 years. The appellant must first establish that he has not yet attained that age and until he does that, he has no right to apply for a writ in the nature of mandamus. It is apparent from the petition that the appellant has not established his correct age. In paragraph 4 of the petition it is stated that both before and after the Constitution of India, came into force, the dates of births as well as the dates of retirements of all the Puisne Judges including the appellant, as had been accepted, were published by order of the Chief Justice. True copies of three such publications have been annexed to the petition and collectively marked with the letter 'A'. According to these publications the appellant's date of birth is the 27th of December, 1904. But from the subsequent paragraphs In the petition it appears that, the date given by the appellant at the time he sat for the Matriculation Examination or the Civil Service Examination was the 27th December, 1901. The date referred to in paragraph 4 of the petition is not, therefore, correct taking the subsequent paragraphs into consideration.
51. With great respect, I am unable to accept this argument. In paragraph 4 of the petition the appellant's definite case is that his date of birth is the 27th of December, 1904. This date was accepted by Government and was published by orders of the Chief Justice. The appellant's case is that the date fixed in accordance with the Matriculation Certificate or the records of the Civil Service Examination, is not correct nor was it ever given by him but by his relations. So long as paragraph 4 of the petition stands uncontroverted or uncontradicted in an ex parte application for a rule nisi the Court has to assume the correctness of the statements made In the said paragraph. It may be that at the final hearing, if other materials be available to the Court, the Court will come to the conclusion that the appellant has not established his legal right. But at the moment he has made out a 'prima facie' case that he has not yet attained the age of 60 years and is entitled to hold the office of a Judge of this Court. The publications referred to in paragraph 4 contain the dates of appointment, birth and retirement not only of the appellant but also of a large number of Judges of this Court both past and present. It would not be proper to hold at this stage that no sanctity can be attached to these publications made under orders of the Hon'ble the Chief Justice.
52. The next contention of the learned Advocate-General is that this appeal involves decision on disputed questions of fact as to the correct age of the appellant. In, Union of India v. T. R. Varma, (S) : (1958)IILLJ259SC , and in many other reported decisions it has been repeatedly pointed out that where there is a question on which there is a serious dispute, that cannot be satisfactorily decided without taking evidence it is not the practice of Courts to decide it in a writ petition. Reference may also be made in this connection, inter alia, to Sohanlal v. Union of India, (S) : 1SCR738 ; Gulabdas and Co. v. Asst. Coilectof of Customs, (S) : 1983ECR1618D(SC) ; : AIR1959SC942 ; : 1961CriLJ703 ; Workmen of K. B. Co., Ltd. v. K. B. and Co. Ltd. : (1960)IILLJ189Cal and Ganesh Nayak v. L. A. Collector, 65 Cal WN 908.
53. To my mind the real question for decision in this application is whether the rights and privileges of the appellant as a Judge of this Court, can be denied to him until a final determination of or adjudication on his correct age. I shall discuss this point more fully later in this judgment.
54. But assuming that there are seriously disputed facts the Supreme Court of India in : AIR1959SC725 , has held that an application under Clause (2) of Article 32 cannot be refused merely on the ground that it involves determination of disputed questions of fact. At pages 734 and 735 S. R. Das, C. J. on behalf of himself, and N. H. Bhagwati, B. P. Sinha and K. Subba Rao, JJ. observas as follows:
'Clause (2) of Article 32 confers power on this Court to Issue directions or orders or writs of various kinds referred to therein. This Court may say that a particular writ ashed for is or is not appropriate or it may say that the petitioner has not established any fundamental right or any breach thereof and accordingly dismiss the petition. In both cases this Court decides the petition on merits. But we do not countenance the proposition that, on an application under Article 32, this Court may decline to entertain the same on the simple ground that it Involves the determination of disputed questions of fact or on any other ground. If we were to accede to the aforesaid contention of learned counsel, we would be failing in our duty as the custodian and protector of the fundamental rights. We are not unmindful of the fact that the view that this Court is bound to entertain a petition under Article 32 and to decide the same on merits may encourage litigants to file many petitions under Article 32 instead of proceedings by way of a suit. But that consideration cannot, by itself, be a cogent reason for denying the fundamental right of a person to approach this Court for the enforcement of his fundamental rights which may, prima facie, appear to have been infringed. Further, questions of fact, can and very often are dealt with on affidavits. In Chiranjit-lal Chowdhury v. Union of India : 1SCR869 , this Court did not reject the petition in limine on the ground that it required the determination of disputed questions of fact as to there being other Companies equally guilty of mis-management. It went into the fact on the affidavit and held, inter alia, that the petitioner had not discharged the onus that lay on him to establish his charge of denial of equal protection of the laws. That decision was clearly one on merits and is entirely different from a refusal to entertain the petition at all. In Kathi Raning Rawat v. State of Saurashtra : 1952CriLJ805 , the application was adjourned in order to give the respondent in that case an opportunity to adduce evidence before this Court in the form of an affidavit. An affidavit was filed by the respondent setting out facts and figures relating to an increasing number of incidents of looting, robbery, dacoity, nose-cutting and murder by marauding gangs of dacoits in certain areas of the State in support of the claim of the respondent State that 'the security of the State and public peace were jeopardised and that it became impossible to deal with the offences that were committed in different places in separate Courts of law expeditiously.' This Court found no difficulty in dealing with that application on evidence adduced by affidavit and in upholding the validity cf the Act then under challenge. That was also a decision on merits, although there were disputed questions of fact regarding the circumstances in which the impugned Act came to be passed. There were disputed questions of fact also in the ease of Ramkrishna Dalmia v. S. R. Tendolkar, J. : 1SCR279 . The respondent State relied on the affidavit of the principal Secretary to the Finance Ministry setting out in detail the circumstances which led to the issue of the impugned notification and the matters recited therein and the several reports referred to in the said affidavit. A similar objection was taken by learned counsel for the petitioners in that case as has now been taken. It was urged that reference could not be made to any extraneous evidence and that the basis of classification must appear on the face of the notification itself and that this Court should not go into disputed questions of fact. This Court overruled that objection and held that there could be no objection to the matter brought to the notice of the Court by the affidavit of the principal Secretary being taken into consideration In order to ascertain whether there was any valid basis for treating the petitioners and their Companies as a class by themselves. As we have already said, it is possible very often to decide questions of fact on affidavits. If the petition and the affidavits in support thereof are not convincing and the Court is not satisfied that the petitioner has established his fundamental right or any breach thereof, the Court may dismiss the petition on the ground that the petitioner has not discharged the onus that lay on him. The Court may, in some appropriate cases, be inclined to give an opportunity to the parties to establish their respective cases by filing further affidavits of by issuing a commission or even by setting the application down for trial on evidence, as has often been done on the Original Sides of the High Courts of Bombay and Calcutta, or by adopting some other appropriate procedure. Such occasions will be rare indeed and such rare cases should not, in our opinion, be regarded as a cogent reason for refusing to entertain the petition under Article 32 on the ground that it involves disputed questions of fact.'
55. These observations of the Supreme Court in Kochunni's case : AIR1959SC725 , have given rise to serious controversy as to whether an application under Article 226 for issue of a writ should be thrown out only on the ground that disputed questions of fact have to be gone into. (Indeed, the Supreme Court has expressly left this question open : Vide : AIR1959SC725 ). One view is that the observations should be restricted to applications under Article 32 of the Constitution. The other view is that they should be extended to applications under Article 226 as well. And so far as this Court is concern-ad the matter has not yet been finally decided. This aspect of the case has been elaborately dealt with by my learned brother P. N. Mookerjee, J. and I respectfully express my concurrence with his view. It would not therefore be proper for us in these circumstances to refuse a rule nisi inasmuch as the application involves investigation of disputed questions of fact as to the age of the appellant.
56. The next contention is that the appellant has suppressed in his petition certain material documents and this suppression is enough for the purpose of dismissing this application. Our attention was invited to certain obser-vations of the Punjab High Court at pages 37 and 38 of the paper book. They relate to the reply which the appellant gave to the Chief Justice's letter of the 17th April, 1959 asking him to send a full statement on the materials relevant for the correct ascertainment of the appellant's date of birth. The observations are as follows:
'The petitioner sent a reply to it on the 27th May, 1959. He explained the entry in the Gazette by saying that since he was a precocious boy and was ready to sit for the Matriculation Examination long before he had attained the mirimum age at which candidates, according to University Regulations, were allowed to sit for that examination, an exaggerated age was at that time given. The inference was that although he was only 13 years of age when he sat for the Matriculation Examination, he or his guardian stated his age to be 16. He went on to say that he had, when the Judgeship of the Calcutta High Court was offered to him given his 'real age'. He went on to say that since the age given by him then had been accepted the matter could not be re-opened, in the meantime, however, the Home Ministry had been making other enquiries. The petitioner had, while he was in Oxford in 1923 sent an application to the Civil Service Commission and has sat for the competitive examination for the Indian Civil Service. He had, according to Civil Service Regulation furnished a certificate of his age, and according to that certificate his date of birth was 27th December, 1901. This corresponded with the age given in the above mentioned Gazette. The fresh evidence received from England was brought to the notice of the petitioner. The petitioner did not produce any evidence before the Chief Justice of the Calcutta High Court, but on 12th August, 1959 he wrote a letter in which he dealt with the two pieces of evidence which he had been asked to explain. With regard to the certificate which he had furnished to the Civil Service Commission in London he stated:'I do not recollect at this distance of time now upwards of 36 years, what age, if any, I myself gave to the Civil Service Commission: I am, however, certain that being an under-graduate at Oxford I myself did not obtain any certificate of age in terms of cl. 4 of the Regulation concerning examinations for the Indian Civil Service. If such a certificate had been obtained for the purpose of the examination concerned ft must have been obtained by any of my relations in India on the basis, presumably, of the Matriculation age.' '
57. The learned Advccate-General has urged that the appellant has suppressed before us his letters of the 27th May, 1959 and the 12th August, 1959 as well as the certificate of his age which he furnished under the Civil Service Regulations. Reliance was placed on the decision in (1917) 1 KB 486. It has been decided in this case that if on the argument showing cause against a rule nisi the Court comes to the conclusion that the rule was granted upon an affidavit which was not candid and did not fairly state the facts, but stated them In such a way as to mislead and deceive the Court, there is power inherent in the Court, in order to protect itself and prevent an abuse of its process, to discharge the rule nisi and refuse to proceed further with the examination of the merits. In this case the Income Tax Commissioners made an additional assassment upon the applicant for profits arising from foreign possessions. The applicant obtained a rule nisi directed to the Commissioners to show cause why a writ of prohibition should not be awarded on the ground that the applicant was not a subject of the King nor resident within the United Kingdom and had not been in the United Kingdom except for temporary purposes, nor with a view or intent of establishing her residence therein nor for a period equal to six months in any one year. She stated in her affidavit that she was 3 French subject and resident in France; that during the year under review she was in the United Kingdom for temporary purposes on visits for 68 days; she spent some of the days at her brother's house and generally in the company of other guests cf her brother; that she was also in the United Kingdom during the next year for temporary purposes on a similar visit and spent a part of the time at her brother's house; and that since November, 1914 she had not been in the United Kingdom at all. From the affidavit filed on behalf of the respondents find also the affidavit of the applicant in reply it appeared that, in February, 1909, a leasehold house had been taken by the applicant in the name of her brother The purchase money for the lease and the furniture in the house was paid by the applicant out of her own money. The accounts of the household expenses ware paid by the applicant's brother and subsequently adjusted between him and the applicant. The Divisional Court discharged the rule on the ground that the applicant had suppressed or misrepresented the facts material to tier application. It was held on appeal that the Rule of the Court requiring 'uberrima fides' on the part of an applicant for an ex parte injunction applied equally to the case of an application for a rule nisi for a writ of prohibition.
58. This decision can be clearly distinguished from the facts in the present case. Here the certificate of age furnished to the authorities of the Civil Service Examination is not in the possession of the appellant and he could not have disclosed it. And the two letters dated the 27th May, 1959 and the 12th Aueust, 1959 were addressed to the then Chief Justice of this Court. In any event the entire judgment of the Punjab High Court has been annexed to the petition and marked Ext. 'E'. And all the material facts that appear in the said two letters and the certificate have been discussed by the Punjab High Court at pages 37 and 38 of the Paper Book. In the premises I am of opinion thai this application should not be dismissed an the ground of suppression of material facts as urged en behalf of the respondent.
59. The next argument by the learned Advocate-General has been that the appellant's contention before this Court that he has not yet attained the age of 60 is barred by the principles of 'res judicata'. This point was raised before the Punjab High Court; a fair opportunity was given to the appellant to prove his case; and ultimately Chief Justice Khosla pronounced judgment in these words:
'I am also convinced upon all the materials which have 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 for the Indian Civil Service Examination' (vide pages 46 and 47 of the paper back).
60. The rule of 'res judicata', it is urged, Is not merely a technical rule but is based on public policy and can be invoked against a petition under Articles 32 and 226 of the Constitution of India ; vide Daryao v. State of U. P.. : 1SCR574 .
61. The difficulty in accepting this argument in the instant case is that Chief Justice Khosla before making the observations quoted above has been pleased to state as follos:
'..... the 'ratio decidendi' must be that an enquiry 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 he chose not to avail of it, he cannot ask us to give relief which is a matter of discretion. The petitioner has, on previous occasions, according to his cwn professions, made use of a false date of birth to suit himself and that being so, the granting of the present relief would be putting a premium of falsehood. On this ground alone I would dismiss the petition .....'
62. The 'ratio decidendi' of the Punjab High Court was that it should not use its discretion in favour of the appellant inasmuch as he did not avail himself of the opportunity given to him by the Government of India to prove his age and he had previously given a false date of birth, I do not see how in these circumstances the subsequent finding of Chief Justice Khosla can operate as 'res judicata' against the appellant. In any event the Chief Justice of this Court was not a party to the application before the Punjab High Court.
63. The learned Advocate-General then drew our attention to some of the salient facts in this case. On the I6th May, 19S1 (Ext. 'B') the Secretary to the Government of India addressed a letter to the appellant that he should demit his office on the 26th December, 1961. On July 30, 1961 the appellant receives a letter from the Prime Minister (Ext. 'C'). On August 22, 1961 the Chief Justice of India wrote to him (Ext. 'D'). The appellant moved the Punjab High Court on the 15th November 1961. The Punjab High Court delivered its judgment on the 4th December, 1961 (Ext. 'E'). Ext. F is the communication of the Secretary to the Chief Justice of this Court to the Registrar Appellate Side which is being challenged by the appellant 'n this appeal. There is no date of this exhibit. After the Punjab High Court gave its decision the appellant started writing letters to the Chief Justice of this Court. His first letter is dated the 22nd December, 1961 and his second letter is dated the 31st December, 1961. This Court was moved on the 2nd January, 1962.
64. The learned Advocate-General wants us to draw the inference from these dates that the Chief Justice while taking his Lordship's decision lo withdraw from the appellant his rights and privileges as a Judge of this Court had not only taken into consideration the. Government's letter of the 16th May, 1961 but also the points raised before the Punjab High Court and the decisions of that Court on those points. G. K. Milter, J. has also held that the learned Chief Justice 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.
65. On the materials at pressnt available to us it is not possible to come to the conclusion that the Chief Justice of this Court at the time of making his Lordship's order or giving his directions interfering with the duties and functions of the appellant had before him any material other than the Government's latter of the 16th May, 1961. Ext. 'F' bears no date. We do not knew when the order or direction of His Lordship was communicated by his Secretary to the Registrar Appellate Side. The only docu-ment which Ext. 'F' refers to is the Government's letter of the 16th May, 1961, and it has been observed both by the Punjab High Court and G. K. Mitter, J. that ascertainment of age by the Home Ministry has no legal force or effect. If at the final hearing of this application it appears that the learned Chief Justice had various other materials before His Lordship or had applied his mind to the entire history of this case ever since the dispute between the appellant and the Government had arisen different considerations may arise. But at the moment the appellant's contention that the Chief Justice has acted only on the Government's letter of the 16th May, 1961 which has no legal effect cannot be brushed aside. In other words this is a contention which, in my opinion, cannot be summarily disposed of.
66. The last point raised on behalf of the respondent is that the petition has not been properly verified in accordance with Rule 14 of the rules prescribed for applications under Article 226 of the Constitution. As the application was moved 'ex parte' this point did not arise before Banerjee, J. The appellant tells us that as soon as the defect was pointed out to the Appellate Bench he had volunteered to re-verify the petition; and he is still willing to do so. The Appellate Bench has not dismissed the application on the ground that the petition has not been properly affirmed. We should not therefore, in my view, hold at this stage that the petition should be thrown out on this ground but merely say that the appellant will have liberty to re-verify the petition if so advised.
67. With respect to the legal obligation of the Chief Justice to allocate judicial work to the appellant reliance has been placed on Section 14 of the Act Establishing High Courts, 1861, (24 and 25 Vict. Cap. 104), Section 108(2) of the Government of India Act, 1915, Section 223 of the Government of India Act, 1935 and Article 225 of the Constitution of India and it was contended that it was the duty of the Chief Justice to determine what Judge was to sit alone and what Judges were to constitute the Division Courts. The learned Advocate-General conceded that if the appellant was entitled to hold the office of a Judgs cf this Court under Article 217(1) of the Constitution, the Chief Justice had a statutory duty to allocate judicial work to him.
68. The appellant's contention before us has been that it is inherent in Article 217 that the age of a Judge is to be determined when a person is appointed. And on:e a Judge was appointed on the basis of age declared by him which was either accepted or not objected to there was no power in the Government to curtail the tenure of his office. The Government in the instant case have circumvented the provisions of Article 217. The appellant has contended further that Article 221(2) of the Constitution provides that every Judge shall be entitled to such allowances and to such rights in respect of leave of absence and pension as may from time to time be determined by or under law made by Parliament and, until so determined, to such allowances and rights as are specified in the second schedule : provided that neither the allowances of a Judge nor his rights in respect of leave of absence or pension shall be varied to his disadvantage after his ap-pointment. The action of the Government of India, the appellant has submitted, violates the provisions of this article as well.
69. It may be that the appellant is not right in contending that the declared age of a Judge at the time of appointment cannot be re-opened. Supposing, the Government subsequently come across materials, which seem to suggest, as in the present case, that the declaration made by the Judge is not correct. Can it be said that the Government are not entitled to ash the Judge to produce materials in support of his declaration? To my mind, such an extreme proposition is wholly untenable, and I shall not be prepared to uphold it. But in the instant case 'prima facie' it appears that, there are many obstacles in the way of implementation of the Government's decision contained in the letter of the 16th May, 1981.
70. Firstly, our attention has not been drawn to any-legal or constitutional provision conferring power or authority on the Ministry of Home Affairs, Government of India, to determine finally the age of a High Court Judge. The learned Advocate-General contended that a High Court Judge was appointed by the President under Article 216. By implication, therefore, the President has also the power of removal. But in the present case there is nothing to show in the letter of the 16th May, 1961 that any decision was given by the President of India. Moreover, the argument of the appellant that proviso (b) to Article 217(1) which prescribes that a High Court Judge may be removed, from his office by the President in the manner provided in Clause (4) of Article 124 for the removal of a Judge of the Supreme Court excludes any other mode or manner of removal also deserves careful consideration at the final hearing of this application. The appellant has placed before us certain amendments to the Constitution introduced in the Lok Sabha on the 23rd November, 1962. One of these amendments is that if any question arises as to the age of a Judge of a High Court, the question shall, be decided by the President after making such enquiry as he may deem necessary and his decision shall be final. Similar provisions have also been introduced with regard to Supreme Court Judges; but with this difference that for High Court Judges the relevant provision has been made retrospective. The appellant says that this retrospective operation has been proposed merely to meet his case. It is not for me to express any opinion as to the propriety of this amendment. It is for the members of Parliament to consider how far such an amendment would be consistent with the dignity, the impartiality and the independence of the Judiciary which is charged with the responsibility of protecting the rights and liberties of the citizens of the Republic of India. One may very well urge that, the President acts on the advice of his Ministers and the Ministers in the discharge of their functions are assisted by their Secretaries. And it would indeed be a sad day for our country if the tenure of office of a Judge cf the Supreme Court or cf a High Court depended on the opinion-of a Secretary to the Government of India approved by his Ministers rather than of an independent judicial authority or the required majority of elected representatives of the people. In any event this very proposal for amendment raises doubts as to whether in ihe Constitution as it stands today even the President has been vested with the power of removing a Judge of a High Court except by resorting to proviso (b) to Article 217. The position, there- fore, apparently seems to be that, in the event of a dis-pute as to age between the Home Ministry and the Judge concerned the matter may be brought to a competent Court of law which will determine on the evidence adduced before it the correct age of the judge. It may also be open to the Government to bring the case before Parliament as urged by the appellant, in accordance with the provisions of Article 124 (4) and (5) read with proviso (b) to Article 217 1. I am not expressing any opinion on the procedure to be adopted; but it is clear to me that until a determina-tion in accordance with law has taken place, by an Executive Order of the Home Ministry of the Government of India, a High Court Judge cannot be removed from his office.
71. Secondly, it appears from the letter of the Prime Minister dated July 30, 1961 (Ext. 'C') and the letter of the Chief Justice of India dated the 22nd August, 1951 (Ext. 'D') that the Government of India have not in fact determined or ascertained the correct age cf the appellant. I have set out the relevant contents of these two letters earlier in this judgment. The Prime Minister says 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 Chief Justice of India has said that,
'it was decided that you should retire sometime m 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.'
If the letter of the Secretary to the Government of India dated the 16th May, 1961 is construed in the light of the observations made by the Prime Minister and the Chief Justice of India it becomes abundantly clear that the Government of India did not determine the correct date of birth of the appellant. It was merely a rule recently framed or a change of policy recently adopted that was sought to be implemented. In my opinion until there is a determination of the appellant's correct age contrary to the age declared by him at or about the time of his appointment he cannot be asked to demit his office on a particular date as has been done in his case.
72. Thirdly, it is stated in paragraph 15 of the petition that at the hearing of the application under Article 226 to the Punjab High Court, the Union of India used an affidavit-in-opposition by Shri V. Viswanathan, Secretary to the Government of India, Ministry of Home Affairs and conceded (through its learned Solicitor-General) that its purported decision as to the appellant's age was a mere opinion and that the direction in the said letter of the 16th May, 1961 was no order but a mere suggestion which was in any event unenforceable. These statements remain uncontradicted. There are also observations in the judgment of Khosla, C. J. which run thus:
'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 choose, 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 bs 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 mer-tioned it is because I do not feel that this Court should give the sort of remedy which is being praved 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 to whom it is addressed and there is no reason why we should be asked to issue a mandamus in respect of the letter of the 16th May, 1961 sent by the Home Secretary to the petitioner.'
73. I find that certain portions of these remarks ofKhosla, C. J. have been quoted by the appellant in hisletter to the respondent herein dated the 22nd December,1961. If therefore, the letter of the 16th of May, 1951contains a mere suggestion of the Home Ministry the argument that the respondent should not have acted on thisletter and refused to assign judicial work to the appellant cannot in my view be ignored without proper consideration or investigation.
74. Fourthly, it is stated in paragraph 13 of the petition that the appellant pointed out many other casjs where there was a considerable discrepancy between the age given by a Judge at the time of his appointment and the age appearing in the Matriculation record, including at least two cases where the Judges concerned, still in force, should have retired long ago on the basis of their Matriculation certificate. The policy of the Government of India, mentioned in the letter of the Chief Justice of India dated the 22nd August, 1961, was not being applied uniformly or at all and that therefore the decision concerning the appellant was also discriminatory. This point also, raised in paragraph 13 of the petition should, in my judgment, be given due consideration at the final hearing of this application to determine the validity or legal effect of the Home Ministry's letter of the 16th May, 1961.
75. For reasons aforesaid, I have come to the conclusion that, the appellant has succeeded in raising serious doubts as to whether the respondent should have acted -on the decision or suggestion of the Home Ministry contained in the letter of the 16th May, 1961 and withdrawn from the appellant his rights and privileges as a Judge of this Court and as such this is a fit case for issue of a Rule Nisi as prayed for. It may be that the appellant was wrongly advised in taking up the attitude, when the Home Ministry tried to re-open his declared age that the age once accepted could not be re-opened and was not even justiciable. It may be that his declaration will ultimately be found to be incorrect. (In fact, he was complaining that the Punjab High Court did not even lock into the evidence he intended to produce in support of his declaration). But it would neither be right nor proper for us to express any opinion one way or the other till all the materials are placed before this Court. Uptil now no affidavit has been filed by or on behalf of the respondent. As 1 have already said we simply do not know what were the considerations that prevailed upon the respondent in deciding that no judi- cial work should be given to the appellant on the expiry of the 27th December, 1961 apart from what appears from page 49 of the paper book. In these circumstances refusal of a Rule nisi does not appear to me to be justifiable.
76. Moreover, this application raises points of great public importance. The security of tenure of a High Court Judge is one of the most essential elements to ensure the independence of the Judiciary. Whether or not that tenure can be affected by decisions or suggestions of the Ministry of Home Affairs of the Government of India without going to a competent Court of law or to the Parliament is the question that this Court has been invited to determine in the present application. In the premises it is only proper that a final hearing ought to be given to the appellant after all the relevant materials are duly brought to the notice of this Court.
77. In my view, therefore, a Rule nisi should be Issued in this case in terms of Clause (i) of the prayers in the petition.
R.N. Dutt, J.
78. The appellant, Jyoti Prakash Mitter, was appointed an Additional Judge of this Court on 11th February, 1949, and a permanent Judge on 21st January, 1950. Before his appointment in 1949, he had declared his date of birth as 27th December, 1904. Under Article 217(1) of the Constitution his retirement in accordance with this date of birth would be due on 26th December, 1964. Sometime in April, 1959, the Ministry of Home Affairs, which is the Administrative department of the Government of India in respect of High Court Judges, raised the question of the correctness of the appellant's age because the Matriculation certificate issued to him by the Patna University indicated his date of birth as 27th December, 1901. The appellant was requested through the Chief Justice of this Court on 17th April, 1959 to send a full statement about his age and the materials which might be relevant for the ascertainment of the actual date of his birth and the consequential ascertainment of the date of his retirement. The appellant informed through the Chief Justice on 27th May, 1959 that he sat for the Matriculation examination at the age of 13 years but as at that time no candidate was allowed to sit for the Matriculation examination before the age of 16 years, his guardian must have given an incorrect date of birth so as to enable him to sit for the Matriculation examination at the age of 13 and contended that since the date of birth declared by him before his appointment had been accepted by the Government, the matter could not be reopened. The Home Ministry had in the meantime ascertained that when the appellant sat for the Civil Service Examination in England he furnished a certificate that his date of birth was 27th December, 1901. This was also brought to the notice of the appellant and the appellant in his reply dated 12th August, 1959 said that before he declared his date of birth he had discussed the matter with Sir Trevor-Harris, the Chief Justice of this Court at that time. He persisted in his contention that his date of birth having been once accepted, the matter could not be re-opened by the Government. The appellant was however informed on 21st September, 1959 through the Chief Justice of this Court that the Government of India had decided to treat the appellant's age as disclosed in the Matriculation certificate as final and ihe appellant was told that he would, have to retire on the basis of that age. The appellant replied the same day denying the Home Minister's authority to determine the appellant's age or the date of his retirement. Soma further correspondence followed and the Government of India made an offer if arbitration but this was not accepted by the appellant. The appellant was thereafter informed through the Chief Justice of this Court that he would have to retire on 27th December, 1961 as his date of birth should be calculated on the Basis of his Matriculation Certificate. The appellant continued his protests. But on 16th May, 1961 the Secretary to the Government of India, Ministry of Home Affairs finally informed the appellant that since he was born on 27th December, 1901, he should demit his office on 26th December, 1961. The appellant thereafter saw the Prime Minister of India and the Chief Justice of India and then addressed a representation dated October 7, 1961, to Ihe Secretary to the Government of India, Ministry of Home Affairs and demanded that justice be done to him by recalling the decision of the Government of India that he should demit office with effect from 27th December, 1961. Since this request was not conceded, the appellant filed an application under Article 226 of the Constitution on 15th November, 1961 before the Punjab High Court against the Union of India for issue of Writ in the nature of Mandamus and/or for the issue of appropriate direction, order or Writ not to give effect to its decision and/or direction contained in the said letter of the Government of India datad 16th May, 1361. The appellant further sought for a declaration that he was entitled to hold office as a Judge of the High Court at Calcutta until December 26, 1964. The Union of India contested this application and the Punjab High Court after hearing the appellant and the union of India dismissed the application on 4th December, 1961. The appellant moved the Supreme Ccurt but with no effect. On 22nd December, 1961, he wrote to the Chief justice of this Court informing him that he would not demit office as a Judge of this Court in pursuance of the Government of India's letter dated 16th May, 1961 and hoped that the Chief Justice would not interfere with his duties and functions as well as his rights and privileges as a Judge of this Court and would afford him necessary protection. Before the Court closed for the Christmas Holidays on 22nd December, 1961, the appellant directed his Court Officer to place two cases in his list for judgment on 2nd January, 1962. On 31st December, 1961 the appellant wrote a further letter to the Chief Justice of this Court saying that he had come to know that the Chief Justice has directed not to print or publish any cause list for the appellant for the 2nd January, 1962 and that the appellant's orderlies were withdrawn from their duties with effect from 27th December, 1961. He protested against what he considered to be an unjust interference with his duties and functions as well as his rights and privileges and demanded that Justice be done to him by recalling the aforesaid orders of the Chief Justice. No list was published in his name for the 2nd January, 1962 and the appellant filed an application under Article 226 of the Constitution against the Chief Justice of this Court on 2nd January, 1962 for a Rule nisi upon him to show cause why a Writ in the nature of mandamus and/or appropriate directions, orders or Writs should not issue directing the Chief Justice to recall his orders and/or directions and to restore to the appellant his duties and functions as well as his rights and privileges as a Judge of this Cou'rt. This application was dismissed. The Appellant preferred an appeal which was heard by two Judges of this Court, but the Judges differed in their opinion as to whether a Rule nisi should issue or not. The matter has thereafter come to us for our opinion as to whether a Rule nisi should issue or not.
79. The matter before us is of very limited scope. The only question for determination at this stage is if in the facts disclosed in the application and the annexures thereto, there is a prima facie case for a Rule nisi against the Chief Justice.
80. The appellant has raised several contentions to make out a prima facie case for a Rule nisi. His first contention is that since the age declared by him was accepted by the Government before his appointment, the question of his age could not be reopened by the Government. The appellant declared his age before his appointment in 1949. There is no Constitutional provision under which such declaration is made by the Judge to be appointed or taken by the Government. But such declaration is in fact taken. During the acpellant's tenure as a Judee, some lists were printed in the office of this Court containing the dates of appointment, the dates of birth and the dates of retirement of the Judges of this Court. These lists recorded the date of birth of the appellant as 27th December, 1904 and the date of retirement, as 27th December, 1964. But these lists do not appear to have been issued by the Government, and there does not appear to be any statutory basis for issue of such lists. Prima facie there was no formal acceptance of the age declared by the appellant on behalf of the Government. It is argued that there was at least indirect acceptance. The fact remains that no question about the correctness of the age of the appellant was raised for more than 10 years and all concerned proceeded on the basis of the age declared by the appellant. It will be a nice question for consideration if such conduct on the part of the Government debars it from reopening the question of the appellant's age.
81. The appellant's next contention is that even it the question of his age can be reopened, the Government of India has no power to determine his date of birth and/or his date of retirement by an administrative order. Neither the Constitution nor the other laws of the land contain any provision empowering the Government of India to determine the date of birth and/or the date of retirement of a High Court Judge. It will be an interesting question for determination if the Government of India has any legal authority to make such a determination in the case of the appellant.
82. The appellant's next contention is that once a High Court Judge is appointed on the basis of the age declared by him before his appointment, the question of his age ceases to be justiciable and cannot be redetermin-ed even in a Court of law. The independence of the Judiciary is said to be a first principle in a democratic State and this principle has been enshrined in our Constitution. It is argued that unless the High Court Judges have a fixity of tenure, the independence of the Judiciary will lose its meaning. Once a person is appointed a High Court Judge on the basis of a certain age declared by him, the question of his age can never again be questioned even In a Court of law. This is an extreme proposition and much may be said against it. But this is certainly an Important point for consideration.
83. The appellant's next contention is that the Government decision is unconstitutional. He develops his argument thus: It is unconstitutional firstly because it amounts to removal of the appellant from the office of a High Court Judge, but without following the procedure provided for in Article 124(4) of the Constitution which is made applicable to the High Court Judges by proviso (b) to Article 217(1) of the Constitution. On the face of it, this is not a case of removal but a case of determination as to when the appellant is to retire in accordance with the provisions of Article 217(1) of the Constitution as having attained the age of 60 years. It is unconstitutional secondly because it violates the provisions of the proviso to Article 221(2) of the Constitution. It is argued that the Government decision has varied to his disadvantage his leave and/or pension. Prima fade this question depends on the main ques-tion involved in this case viz. the real age of the appellant. Under the Constitution a High Court Judge is entitled to remain a High Court Judge from the time of his appointment till he attains the age of 60 years, and on that premises he is entitled to certain leave and pension. If the appellant has attained the age of 60 years with effect from 27th December, 1961, he has ceased to be a High Court Judge and there can be no question of varying to his disadvantage his leave or pension. But if he has not attained the age of 60 years, the appellant need not come under the proviso to Article 221(2) to prove that the Government decision is unconstitutional. The Government decision is in that case unconstitutional because of the provisions of Article 217(1) as the appellant has the right to remain a High Court Judge till he attains the age of 60 years. It is unconstitutional thirdly because it discriminates, between the appellant and some other High Court Judges. He alleges that there are some other High Court judges who have declared their age which are not in conformity with their Matriculation age, but no action determining their age in accordance with their Matriculation age has been taken in respect of the said other Judges. It will be a question of much constitutional importance to consider if the Government decision requiring the appellant to demit office with effect from 27th December, 1961 is against the provisions of the Constitution.
84. Some of these contentions made by the appellant have considerable force in them but it is neither necessary nor desirable to determine these questions at this stage. Suffice it to say that these are contentions which are-prima facie sufficient for a Rule nisi.
85. The learned Advocate-General, who appears for the Chief Justice in this appeal argues that no Rule nisi should be issued on the basis of this application because the verification has not been in accordance with Rule 14 of the Rules framed by the Court relating to applications under Article 226 of the Constitution. Clearly enough the verification has not been in order, but I find that the application was not thrown out by Banerjee, J. on that ground. Had it been thrown out on that ground, the appellant might have filed a fresh application. I do rot, therefore, think that Rule nisi should be refused merely on this ground.
86. The learned Advocate-General next argues that no Rule nisi should be issued as the appellant has suppressed relevant materials. It appears that the appellant has referred to certain letters received by him from the Government of India through the Chief Justice or sent by him to the Government of India through the Chief Justice and to a representation sent by him to the Government of India in October, 1961, but none of these letters or copies thereof have been annexed to the application under Article 226. Some of these letters were annexed to the application file* before the Punjab High Court. The appellant should nave annexed these documents or copies thereof to his application or at leSt explained why he was not in a position to annex them. But I do not think that a Rule nisi should be refused merely because these were not annexed as these were disclosed before the Punjab High Court and the Judgment of the Punjab High Court which has been annexed to the appellant's application here, contains references to the contents of these letters. The learned Advocale-General has referred to the case of (1917) 1 KB 486. But in this case there was wilful suppression and total non-disclosure-of materials which are not only relevant but vital for a proper decision in the case.
87. The learned Advocate-General next argues that no Rule nisi should be issued as the appellant has no legal right which can be said to have been infringed. The appellant claims legal right as a Judge of this Court. He has the right to continue as a Judge of this Court if he has not as yet attained the age of 60 years. That is the main question for determination in this proceeding. Prima facie therefore, it cannot be said at this stage that Rule nisi should be refused as the appellant has no legal right.
88. The learned Advocate-General next refers to the Supreme Court decision in Raja Ram Chandra Reddy v. Rani Shankararamma, reported in : AIR1956SC319 and argues that no Rule nisi should be issued against the Chief Justice as there was no statutory obligation of the Chief Justice to the appellant. But prima facie under Section 108(2) of the Government of India Act, 1919 read with Section 223 of the Government of India Act, 1935 and Art 225 of the Constitution, the Chief Justice has the statutory obligation to provide work to the Judges of High Courts. The appellant claims that he is still a Judge of this Court. If he can establish that claim, the Chief Justice will have the statutory obligation to provide him work. Tne question if the appellant still continues to be a Judge of this Court is the main question to be determined in this application and so Rule nisi should not be refused at this stage on the finding that the Chief Justice has no statutory obligation to provide work to the appellant.
89. The learned Advocate-General next argues that Rule nisi should be refused as no disputed question of fact can be decided in this writ proceeding. For this Court to give relief to the appellant it will have to be decided that the appellant has not as yet attained the age of 60 years. This is, however, a question of fact. It may be argued that unless the Chief Justice appears and disputes the age of the appellant, it cannot be said that the question of his age is disputed. But from the statements made in the application itself it will appear that the age is in dispute as between the appellant and the Government of India. Moreover, there has been appearance on behalf of the Chief Justice before us anil we cannot shut our eyes to the fact that the question of the appellant's age has been disputed. A long series of cases previous to March, 1959 held that no complicated disputed question of fact should be decided in proceedings under Article 32 or Article 226 of the Constitution. (Thakur Amar Singhji V. State of Rajasthan (S) : 2SCR303 ; (S) : 1SCR738 ; (S) : 1983ECR1618D(SC) ; (S) : (1958)IILLJ259SC .) In : AIR1959SC725 , the Supreme Court has however held that the Supreme Court could decide such questions in proceedings under Article 32 of the Constitution. The question if the High Courts could decide such questions in proceedings under Article 226 of the Constitution was however left open. But the Supreme Court has subsequently held In : AIR1959SC942 , that such questions should not be decided in proceedings under Article 226 of the Constitution. This view was later affirmed by the Supreme Court in : 1961CriLJ703 . Neither of these cases however made any reference to Kochuni's case : AIR1959SC725 and neither can be said to have been disposed of strictly on this point. Since Kochuni's case : AIR1959SC725 the Jammu and Kashmir High Court has in the case of AIR 1962 J. and K. 48, held that such questions can in suitable cases be decided in proceedings under Article 226 of the Constitution but the Rajasthan High Court has in held that such questions should not be decided in proceedings under Article 226 of the Constitution and our own High Court has in 65 Cal WN 908 held that such questions should not be decided In proceedings under Article 226 of the Constitution. Our High Court made no reference to Kochuni's case : AIR1959SC725 but the Rajasthan and the Jammu and Kashmir High Courts had considered Kochuni's case : AIR1959SC725 . The point of law involved may .still require consideration and prima facie Rule nisi should not be refused at this stage because disposal of the application on merits may Involve decision of disputed questions of fact. It will be for the Court hearing the application to decide if in view of the aforesaid decisions and the legal position flowing therefrom, it will decide the questions of fact involved or throw out the application on that ground.
90. The learned Advocate-General lastly contends that the decision of Punjab High Court operates as res judicata. The Supreme Court has in : 1SCR574 held that decisions in proceedings under Article 226 of the Constitution cart operate as res judicata even in a proceeding under Article 32 of the Constitution. Prima facie, therefore, decisions of one High Court in a proceeding under Article 226 of the Constitution may operate as res judicata in a proceed ing under Art 226 of the Constitution in some other High Court. Let us now consider the facts of this case. The decision about the date of retirement of the appellant was made by the Government of India and the appellant's contention is that the Government of India has no power or authority to make such a decision. He filed an application under Article 226 of the Constitution against the Government of India in the Punjab High Court. The application was dismissed. Subsequently the appellant requested the Chief Justice of this Court to give him facilities to continue to function as a Judge of this Court. Such facilities are said to have been refused. It is argued that the Chief Justice should not have refused such facilities. But the Chief Justice of this Court has certain administrative functions to perform. When he sits in Court, he acts Judicially but apart from his judicial functions he has certain administrative functions. The Government of India took a decision that the appellant was to retire with effect from 27th December, 1961. This decision was communicated to the Chief Justice as the administrative head of this Court. When he gave effect to it he acted in his administrativa capacity. The decision was the decision of the Administrative department of the Government of India in regard to the High Court Judges and as the administrative head of this Court the Chief Justice was bound to give effect to it. While acting in his administrative capacity he could not have enquired into or considered the propriety or the legality of the Government decision. If the Chief Justice had allowed the appellant to function as a Judge in spite of the decision of the Government of India, it would have resulted in chaos in administration. This does not, however, mean that the Court acting judicially is powerless against the decision of the Government of India. The Court acting judicially can certainly consider the Iegality, the propriety or the constitutionality of the Government decision. Here the appellant prays for certain reliefs against the Chief Justice of this Court for certain adminis-frative orders based on the decision of the Government of India. For the grant of such reliefs, the Court will have to consider the legality, the propriety and the constitutionality of the Government decision. The learned Advocate-General argues that these questions have been decided by the Punjab High Court and no Rule nisi should be issued as the same questions cannot be re-agitated in this case. The Punjab High Court has no doubt held that the appellant's age could be reopened by the Government of India and its decision that the appellant should demit office with effect from 27th December, 1961 is not illegal or improper. But the Punjab High Court has also said that the letter of the Government of India dated 16th May, 1961 was a suggestion which the appellant could ignore. Finally the Punjab High Court has said that in view cf the previous conduct of the appellant, relief under Article 226 of the Constitution which was a matter of discretion, was refused. On the face of it, it should not be finally held at this stage that this decision operates as res judicata because there are at least prima facie arguments against this view which will require detailed consideration when the application will be heard. Rule nisi should not therefore, be refused now on the ground of res judicata.
91. Before parting with this case, I should like to refer to two other points -- though not raised by the learned Advocate-General -- which may become pertinent for consideration at the time of the final hearing of this application. The first point is as follows: the appellant has sought for a Mandamus against the Chief Justice ot this Court in respect of his administrative orders. A Special Bench of this Court in the unreported case of Prod-yut Kumar Bose v. The Chief Justice (Matter No. 139 of 1952 D/- 27-10-1953 (Cal)) held that no mandamus lies against the Chief Justice of this Court in respect of his administrative orders. The matter went up in appeal to the Supreme Court which, though specifically saying that the question was left open, -- observed in the course of its judgment that mandamus may lie against the Chief Justice in respect of his administrative orders in appropriate cases. ( : 2SCR1331 ) Subsequently in : AIR1961Cal545 two of the Judges of this Court, in view of this observation of the Supreme Court, proceeded on the footing that mandamus may lie against the Chief justice in respect of his administrative orders in appropriate cases. The Judge hearing the application may have to decide if the present case can be said to be an appropriate case in view of the fact that the Chief Justice is not strictly speaking the author of the order which has stood in the way of the appellant continuing to function its a Judge of this Court and the legality of which is the real point in issue in this case, but has merely given effect to that order. The second point is as follows : relief in a Writ jurisdiction is a matter of discretion. The Judge hearing the application may have to consider if the appellant should be given such relief in this second Writ application in view of the fact that an earlier Writ application has been dismissed against the Government of India and the Government of india cannot be made a party in this proceeding and particularly in view of the fact that the appellant has an alternative remedy by way of a suit wherein all the Questions involved can be determined in an appropriate Court and in presence of all persons concerned. I express no opinion on these points but I refer to them as, though these points may have to be considered at the final hearing of the application, I have not considered them sufficient for refusing a Rule nisi at this stage,
92. The result therefore, comes to this that In myopinion a Rule nisi should issue in this case.