JYOTI PRAKASH MITTER Vs. UNION OF INDIA

JUDGEMENT

(1.) The plaintiff was appointed an additional Judge of tile High Court at Calcutta on February II, 1949 and a permanent Judge of the said court on 21st January, 1950. He gave his date of birth as 27th December, 1904. After the plaintiff had been in office for about ten years the Home Minister, Government of India purported to reopen the question of his age on the ground of discrepency between the age as stated in his certificate for the Matriculate Examination and the age given by him. The Government of India held the plaintiff's correct date of birth to be 27th December, 1901. This determination opened the gates of the litigation between the plaintiff and the Government. The plaintiff filed petition in the circuit bench of the Punjab High Court but it was dismissed as not maintainable. The plaintiff then filed a petition under Article 226 of the Constitution in the High Court at Calcutta. It was heard by a Special Bench of five judges and his petition was dismissed by a majority decision of four judges vide judgment dated 22nd May, 1964. The plaintiff filed an appeal to the Supreme Court by special leave which was allowed on 9th November, 1964 and this judgment is reported in AIR 1965 SC 961. The Supreme Court held that the purported decision of the Government of India determining the plaintiff's date of birth as 27th December, 1901 was no decision of the President within the meaning of article 217(3) of the Constitution. The Supreme Court while deciding the plaintiff's appeal gave certain directions. Persuant to these directions the Home Ministry on or about 17th November, 1964 made a reference to the President of India inviting him to decide the question of plaintiff's age under Article 217(3) of the Constitution. The President consulted the Chief Justice of India who on 28th September, 1965 advised him to hold that the plaintiff was born on 27th December, 1901 and not on 27th December, 1904. The President of India on 29th September, 1965 passed the following order :

(2.) The plaintiff by his letter dated 15th October, 1965 to the President prayed that his decision should be reopened and that he should be granted an audience in the presence of the Chief Justice of India and a representative of the Home Ministry. The plaintiff was told by the Home Ministry that the matter could not be reopened. The plaintiff on 3rd August, 1966 then moved the Calcutta High Court again under article 226 of the Constitution of India praying inter alia that the purported decision of the President of India be set aside or quashed or for other appropriate reliefs. The rule nisi issued on the said writ petition was made absolute by O. D. Basu, J. of the Calcutta High Court vide judgment dated 7th and 8th August, 1967. It was held that the order dated 29th September, 1965 of the President of India was not a decision of the President in terms of article 217(3) of the Constitution. The learned Single Judge of the Calcutta High Court, after the delivery of the judgment on a verbal prayer for a Certificate under article 132(1) of the Constitution on the ground that the case involved a substantial question of law as to the interpretation of Article 217(3) of the Constitution, granted the certificate asked for. The defendant, Union of India filed the petition of appeal in the Supreme Court and reiterated that the appeal involved a substantial question of law as to the interpretation of Article 217(3) of the Constitution. The Supreme Court accepted the appeal of the defendant and reversed the judgment of the Calcutta High Court. The Supreme Court Judgment : Union of India vs. Jyoti Prakash Mitter is reported in AIR 1971 SC 1093(1). The plaintiff filed an application before the Supreme Court for review of judgment dated 21st January, 1971 but his application was dismissed in limine. The plaintiff served a notice dated 10-1-1974 under section 80 of the Code of Civil Procedure upon the defendant and filed the present suit on 19th March, 1974 for a declaration that the judgment of the Supreme Court of India pronounced on 21st January, 1971 in Civil Appeal No. 52 of 1968 is without jurisdiction and nullity and not binding on him and that he is entitled to claim the status of a High Court Judge till 27th December, 1966.

(3.) The defendant in the written statement dated 24th July, 1975 pleads that (i) Suit is not maintainable in as much is the plaintiff is seeking a declaration of the judgment of the Supreme Court of India pronounced on 21st January, 1971 to be without jurisdiction and nullity; (ii) The suit is barred by limitation; (iii) The suit for mere declaration without consequential relief is not maintainable as required by section 34 of the Specific Relief Act; (iv) Even assuming the age of the plaintiff to be as claimed by him he cannot now be declared to be continuing as a Judge of Calcutta High Court as he has according to date of birth claimed by him, crossed the date of retirement and that the declaration sought for by the plaintiff even if granted would be futile and as such the suit is not maintainable and is liable to be dismissed on this ground. On merits it is stated by the defendant that the plaintiff was appointed as an Additional Judge of the High Court of Calcutta on 11th January, 1949 and a permanent Judge on 23rd January, 1950, that no document in support of his age was submitted by him, that the defendant in 1956 collected particulars with regard to educational qualifications, age etc. in order to compile information about High Court Judges, and the plaintiff disclosed Ins date of birth as 27th December, 1904, that in February, 1959 the defendant received information that the correct date of birth the plaintiff was 27th December, 1901 which was confirmed by the defendant from the Bihar and Orissa Gazette dated 26th June. 1918 containing the results of the Matriculation Examination of Patna University held during April, 1918. The written statement further pleads that on 17th November, 1964 in pursuance of the directions of the Supreme Court in its judgment dated 9th November, 1964 the matter was placed again before the President of India for decision on plaintiff's age under Article 217(3) of the Constitution of India, that the President decided the question strictly in accordance with the said article 217(3) of the Constitution and it is not open to the plaintiff, in the present suit, to challenge the validity of the decision of the President, that the question regarding decision of the President is beyond the scope of relief sought in the suit. The defendant denies that the President had not applied his mind while arriving at a decision and that after seeking the advice of the Chief Justice of India as required under Article 217(3) of the Constitution, the President decided on 29th September, 1965 that the age of the plaintiff should be determined on the basis of 27th December, 1901 as his date of birth, that the judgment dated 21st January, 1971 delivered by the Supreme Court is perfect, legal and valid. It is also denied by the defendant that the judgement of the Supreme Court is without jurisdiction or nullity. The receipt of notice under section 80 of the Code of Civil Procedure is not denied but its validity is denied on the ground that it does not confirm to the requirements of section SO of the Code of Civil Procedure. The jurisdiction of this court to interfere with the judicial Judgment dated 21st January, 1971 of the Supreme Court is also denied by the defendant.