TMI Blog1964 (11) TMI 100X X X X Extracts X X X X X X X X Extracts X X X X ..... fore the President. On the file, the President made an order, approved ; and the question is whether this is an order which can be related to Art. 217 (3). It is true that this order was passed on May 15, 1961, whereas clause (3) of Art. 217 which was added in the Constitution by the Constitution (Fifteenth Amendment) Act, 1963, came into force on October 5, 1963. Section 4(b) of the Amendment Act, however, provides that the said clause shall be inserted and shall be deemed always to have been inserted in the Constitution. In other words, in terms, the insertion of the relevant clause is made retrospective in operation. That is how it has become necessary to enquire whether the order passed by the President on May 15, 1961 can be said to amount to a decision within the meaning of the said clause. Writ Petition No. 13 of 1962 from which this appeal arises was filed by the appellant in the Calcutta High Court on January 2, 1962. By his petition, the appellant claimed a writ in the nature of mandamus and/or appropriate directions, order or writs under Art. 226(1) against respondent No. 1, the Chief Justice of the Calcutta High Court, requiring him to recall the order passed by him ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... operation of the order which he proposed to issue should remain stayed for three months to enable respondent No. 1, if he was so advised, to obtain the President s determination in the matter of the appellant s age and act upon the same in accordance with law. The four other learned Judges, Mallick, Banerjee, Das Gupta and Chatterjee J., however, took a different view. They held that the appellant was not entitled to any writ or order against respondent No. 1 as claimed by him. The approach adopted by these learned Judges is not uniform, but. on the whole, their final conclusion was against the appellant. In the result, in accordance with the majority decision, the writ petition filed by the appellant has been dismissed. It is against this decision that the appellant has come to this Court by special leave which was granted to him on August 24, 1964. On September 21, 1964, upon an oral prayer made by the Attorney-General for India, the Court allowed the Attorney-General to intervene in this matter, and by consent of parties, the Court directed that the appeal should be set down for hearing on the 26th October, 1964, subject to any part-heard matter. On the 26th October, 1964, wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ame to know that when the appellant appeared at the open competitive examination for the I.C.S. in July/August, 1923, the date of his birth was given and shown as December 27, 1901. That is why the Home Minister raised the question about the correctness of the date of birth given by the appellant at the time of his appointment. As a result of the correspondence carried on between the Union Home Minister, the Chief Minister of West Bengal, the Chief Justice of the Calcutta High Court, and the appellant, the Government of India ultimately decided that the appellant s date of birth was December 27, 1901; and so, the file containing the said correspondence and other relevant material was placed before the President on May 15, 1961. Noting made on this file indicated that the Government of India intended to ask the appellant to demit his office on December 26, 1961, after court hours. After this proposal was approved by the President, the Government of India asked the Chief Minister of West Bengal to communicate this decision to the appellant through the Chief Justice of the Calcutta High Court. At that stage, the appellant moved the Punjab High Court under Art. 226 of the Constituti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... il 17, 1959, sending him a copy of the letter which he had received from the Chief Minister. In this letter, the Chief Justice requested the appellant to furnish him with a full statement on all the points involved and inform him at the same time of any other material which may be relevant on the correct ascertainment of the date of his birth, and the consequential ascertainment of the date of his retirement. On the same day, the Chief Justice wrote another note to the appellant inviting him to meet him in order that be should be able to talk to him about a matter which vitally concerned the appellant. The appellant was asked to meet the Chief Justice at 4 P.m. that day. On May 27, 1959, the appellant wrote to Chief Justice Das Gpta suggesting that the date of his birth shown in the relevant extract from the Gazette was obviously incorrect. He expressed his satisfaction that the question of his age had not been raised directly by either the State Government or the Government of India, but had been raised at the instance of some mischievous person. He emphasised that there was hardly any reason for him to give an inaccurate date of his birth when he accepted appointment. Chief ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ngal, on September 14, 1959, intimating to him that he had consulted the Chief Justice of India in regard to the question of the appellant s age and that he entirely agreed with the advice given by the Chief Justice of India; and he suggested that the appellant should be informed accordingly through the Chief Justice of the Calcutta High Court. That is how the appellant came to know about this decision through his chief Justice. After the appellant received intimation about the decision of the Government of India, he wrote to Chief Justice Lahiri expressing his emphatic disapproval of the said decision, and he made litter comments against the views expressed by Chief Justice Das in the note made by him while giving his advice to the Government of India in this matter, vide his letter of September 30, 1959. in his letter of April II, 1960, the appellant wrote to Chief Justice lahiri that he had repeatedly pointed out to Government that the controversy as to his superannuation involved a principle affecting the judiciary as a whole, and so, there could be no question of submitting to arbitration. He had already made it clear in his letter of September 30, 1959, that the procedure ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat the Chief Justice of India had mentioned the Prime Minister that there had been some serious complain about the manner in which judicial work had been transacted the appellant. In the end, the Prime Minister advised the appellant to get in touch with the Chief Justice of India. It is true that in dealing with the question about the appellant s age, reference to the quality of his judicial work was irrelevant; but the general tone and content of the Prime Minister s letter clear indicate that the Prime Minister had adopted a flexible, inform fair and sympathetic approach to the appellant s grievance and he was willing to re-examine the matter if it was found necessary to do so. Accordingly, the appellant met the Chief Justice of India on July 31, 1961. It appears that when the appellant met Chief Justice Sinha, the latter advised him to retire on December 2, 1961 on the basis of the date of birth disclosed by his Matriculation Certificate. The appellant was told that was in consonance with the policy adopted by the Government of India recent cases. The Chief Justice assured the appellant that was not the intention of the Government of India to do anything to cast aspersions o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the ages of Judges of High Courts who had been appointed to their office before the actual provision was inserted in the Constitution by the Amendment Act of 1963. This provision vests the jurisdiction to determine the question about the Judge s age exclusively in the President, and so, it follows that in the presence of this provision, no court can claim jurisdiction to deal with the said question. It is true that before this provision was inserted in the Constitution, the question about the age of a sitting Judge of a High Court could have been theoretically brought before the High Court in a proceeding by way of a writ for Quo Warranto under Art. 226. But now there can be no doubt that the question about the age of a Judge of a High Court has to be determined only in one way, and that is the way prescribed by Art. 217(3). This position is not disputed by the appellant before us. It is also clear that the decision of the President under Art. 217 (3) is final, and its propriety, correctness, or validity is beyond the reach of the jurisdiction of courts. What procedure should be followed in deciding the age, what opportunity should be given to the Judge whose age is being dec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rovision is made retrospective. Before dealing with this question, there are some incidental matters which must be considered. The appellant has urged before us that Art. 217(3) can come into play only if and when a genuine or serious question about the age of a Judge arises. He contends that if any person frivolously or maliciously and without any justification whatever raises a dispute about the correctness of the age given by a Judge at the time of his appointment, Art. 217 (3) should not be allowed to be invoked. It is true that it is only where a genuine dispute arises as to the age of a Judge that Art. 217(3) would be allowed to be invoked; but that is a matter for the President to consider. Under Art. 217(3) the President should, and we have no doubt that he will, in every case, consult the Chief Justice of India as to whether a complaint received in respect of the age of a sitting Judge of any High Court should be investigated, and it is with such consultation that he should decide whether the complaint should be further investigated and a decision reached on the point. We think it is clear that if a dispute is raised about the age of a sitting Judge and in support of it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fall under Art. 217(3). The Attorney-General has contended that the approval expressed by the President on May 15, 1961, in law amounts to a decision under Art. 217(3), because it satisfies all the requirements of the said provision. The Government of India had consulted Chief Justice S. R. Das as well as his successor, Chief Justice Sinha, the Government had asked the appellant to make his comments on the material which showed that the appellant was born on the 27th December 1901; a large volume of correspondence proceeded between the parties and it is only after the appellant had set out his contentions and his points that the Government ultimately came to a conclusion against the appellant and placed before the President the whole file containing all the material including the advice received from Chief Justice S. R. Das and Chief Justice Sinha. The Attorney-General has urged that it is not necessary that the President should himself write an elaborate order incorporating his decision on the question referred to him; the word approved used by him while signing the file amounts to his decision. In support of this argument, he has referred us to two decisions : Srinivas Mall ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt out of a sense of fairness themselves tend to introduce an infirmity in the procedure when it is sought to be co-related. With the requirements of Art. 217(3). It is difficult to imagine that if the President were to act under Art. 217(3) he could or would ask the Judge concerned to go to arbitration. It is because of this flexible and sympathetic approach adopted by the Government that even after the Home Minister had come to a definite decision against the appellant, the matter was allowed to he reopened and the whole question was considered afresh. That, again, would not be quite consistent with the requirements of Art. 217(3). In this connection, it is hardly necessary to emphasise that when at the relevant time the Government were considering this matter and they consulted the Chief Justice of India, the informality of the said consultation does not squarely fit in with the formal consultation which is now made mandatory by Art. 217(3). Therefore, having regard to the procedure followed by the Government in dealing with this question, we feel some hesitation in accepting the Attorney-General s argument that what has been done prior to the decision of May 15, 1961, can be ea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the independence of the Judiciary itself. Basing himself on this ground, the appellant did not produce his evidence in the proceedings taken by the Government of India before the impugned order was passed. The appellant stated before us and he apparently suggested this fact even to the Punjab High Court when he moved that Court under Art. 226 that he had in his possession evidence which supported the date of birth given by him before he was elevated to the Bench. It is true that he did not produce this evidence, though Chief Justice Das Gupta had asked him to do so. We are not impressed by the appellant s plea that he had not received the letter of Chief Justice Das Gupta written on April 17, 1959, in which he had been asked to communicate to the Chief Justice what material he had in support of the date of birth given by him; and so, we proceed on the basis that the appellant did not produce his evidence, though he was called upon to do so. He also refused to go to arbitration. But the question which arises for our decision is : can the appellant s failure or refusal to produce evidence be fairly pressed into service against him when basically he was right in contending that the Ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as no doubt observed that he was convinced upon all the material which had been produced before the Court including the horoscope and the entry in the almanac that the Home Ministry was not wrong in accepting the correct age of the appellant as that given in the Bihar Orissa Gazette and in the certificate which the appellant had filed with, his application when he sat for the I.C.S. Examination. This argument is obviously misconceived. First and foremost, if Art. 217 (3) is retrospective in operation, any decision of the Court on this question must be deemed to be without jurisdiction, because from January 26, 1950 itself this question must be deemed to have fallen within the exclusive Jurisdiction of the President. Since the plea of res judicata on which the Attorney-General relies is a plea of law, the appellant is entitled to repel the said plea on the legal ground that the constitutional amendment in question is retrospective, and at the relevant time the High Court had no jurisdiction to decide this point. But quite apart from this technical constitutional position, it is impossible to hold that the observation on which the Attorney-General relies can be said to be a decisi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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