JYOTI PRAKASH MITTER Vs. UNION OF INDIA

JUDGEMENT

(1.) THIS case has assumed historic importance for reasons more than one. This is the first case where the president's power under clause (3) of article 217 has been exercised to determine the age of a High Court Judge, after the insertion of that clause by the fifteenth Amendment of the Constitution, and the first case where the interpretation of that provision has been called far.

(2.) THE instant case has a long history behind it, travelling through various courts and Benches, over a controversy which arose in the year 1961, in this way : the petitioner was appointed an additional Judge of the Calcutta High court in 1949 and made permanent on 21. 1. 50. He then gave his date of birth as the 27th December 1904, and in 1956, he declared it formally. In 1959, the Government of India, in pursuance of an annoymous letter, sought to re-open the question of the petitioner's age, pointing out that a higher age than that which had been declared by the petitioner, was stated in his Certificate for the Matriculation Examination. Thereafter, the Government of India held the petitioner's correct date of birth to be the 27th December 1901, and, in pursuance of that decision, the Home Secretary to that Government wrote to the petitioner on 16. 5. 61, asking him to demit his office after Court hours on the 26th december 1961 [vide text of the order at page 179 of (1) AIR 1963 Cal 178 and p. 490 of (2) AIR 1963 Cal. 483], in accordance with the decision of the government of India as to the age of the petitioner, on the basis of his Matriculation certificate granted by the Patna University and as published in the bihar and Orissa Gazette of 26. 6. 18; and the records of the U. K. Civil Service commission relating to the Indian civil Service Examination of 1923. This opened what I call the first chapter of the litigation, leading up to (3) AIR 1965 SC 961. We are now on the second chapter, starting from after the said decision of the Supreme Court, the stages in the first chapter were as follows: (i) A proceeding under article 226 of the Constitution before the Punjab high Court in November, 1961. In this petition, the petitioner prayed for a declaration against the Union of India that he was entitled to hold his office till 27. 12. 64 (when he would attain 60 years, according to the date of birth declared by himself) and a writ in the nature of Mandamus to restrain the respondent not to give effect to its decision conveyed by the Home Secretary's letter of 16. 5. 61, referred to earlier. The Punjab High Court issued Rule on 16. 11. 61 but discharged it as not maintainable on 4. 12. 61. (ii) Failure of the petitioner to obtain special leave from the Supreme court to appeal against the preceding order of the Punjab High Court [vide (4) AIR 1964 SC 1636 (1638)]. (iii) A petition under article 226 before banerjee, J. , of the Calcutta High court under article 226, presented on 2. 1. 62 (Matter No. 11 of 1962 ). It appears that a copy of the letter of the Home Secretary of 16. 5. 61 had been forwarded to the Chief Justice of the Calcutta High Court and, in pursuance thereof, the latter withdrew the orderlies of the petitioners and gave directions that no cases would appear in the Daily List in the petitioner's court from after the Christmas Vacation, on the assumption that the petitioner retired on 27. 12. 61, as directed by the Government of India [vide (1)AIR 1963 Cal. 178 (181)]. This led the petitioner to bring the petition under article 226 before banerjee, J. , asking for appropriate writs to compel the Chief Justice of the High court (who was the sole respondent)to treat him as continuing in office even after 27. 12. 61 and to allocate judicial work to the petitioner, urging that the decision of the Government of India, in pursuance of which the Chief Justice had been so acting, was illegal, arbitrary and unconstitutional, and that the chief Justice had no jurisdiction to act upon the same in the manner he had done. Banerjee, J. , however, dismissed the petition in limine on 3. 1. 62, by a judgment, reported as (1) J. P. Mitter v. H. K. Base, AIR 1963 Cal. 178 : 66 cwn 211. (iv) Appeal against the order of banerjee, J. , to a Divisional Bench of this High Court, under the Letters Patent. There was difference of opinion between the two learned Judges (G. K. Mitter and Laik, JJ.- vide (5) AIR 1963 Cal. 183 : 67 CWN 662 ). (v) The said appeal was, accordingly, referred to a Special Bench of three judges. The Special Bench of three judges (P. N. Mookerjee, S. P. Mitra and R. N. Dutt, JJ.) allowed the appeal and directed that a Rule should issue in favour of the petitioner [vide (2) 67 cwn 664 (691) : AIR 1963 Cal. 483]. (vi) Appeal before the Supreme court against the preceding decision of the Special Bench, by the Chief Justice of the Calcutta High Court, which was dismissed by the Supreme Court on 14. 10. 63 [vide (4) Himansu v. Jyoti prakash, AIR 1964 SC 1636]. At this stage, I must mention a change in the constitutional background which took place when the appeal before the Supreme Court was being argued [vide p. 1642 of (4) AIR 1964 SC 1636 : 1 SCA 347]. On the 6th of Oct, 1963 i. e. , only a week before the Supreme court could pronounce its judgment on the appeal from the decision of the Special bench in the matter of Rule nisi, the Constitution (Fifteenth Amendment)Act, 1963 was passed and assented to by the President, by which was inserted clause (3) to article 217, in the following terms:

(3.) THE instant petition before me opens the second Chapter, - being a sequel of the decision of the Supreme court, reported in (3) AIR 1965 SC 961,- a decision to which I shall have to refer frequently in course of my judgment, with reference to pages of the 1965 Supreme Court Volume of the All india Reporter. In pursuance of the direction in (3)AIR 1965 SC 961, the Home Ministry initiated the steps for placing the matter over again before the President. Since the relevant File of the Home Ministry (Judl. I/3/10/64) has been produced before me at the hearing, it would be convenient to refer to the important steps appearing from this File (hereinafter referred to as 'the File' with reference to pages of this File)-though, it must be said at the outset, all of the relevant materials contained herein were not disclosed to the petitioner until the File was produced in Court. (a) On 17. 11. 64, the Secretary of the Home Ministry drew up a note (pages 1-2), stating the history of the litigation up to the decision of the Supreme court in (3) AIR 1965 SC 961, and invited the President to determine the age of the petitioner, under art. 217 (3), as a first step towards such determination, the President was requested to -"authorise the Secretary, Ministry of Home Affairs, to issue notice in the matter to Sri J. P. Mitter as in the draft attached. " the draft referred to is to be found at pages 2-3n of the File. The note of the Secretary, with the request was submitted to the President through the home Minister and the Prime Minister and on 21. 11. 64, the President acceded to the request by signing the order at p. 1n. , by which he directed the Secretary of the Home Ministry to call upon the petitioner to make "such representation as he may wish to make in the matter and produce such evidence as he may desire to produce in support of his claim that his correct age should be determined on the basis of his date of birth being taken as 27th December 1904. " (b) In compliance with the notice issued, accordingly, by the Home Ministry, on 24. 11. 64 (pages 60-62 of the petition), the petitioner, on 7. 12. 64, submitted his representation (pages 65-82 of the petition), with the forwarding letter at p. 5/c of the File. With the representation, he annexed photostat copies of the documents on which he relied namely, an almanac and a horoscope and some affidavit (vide p. 19 of the File ). In the forwarding letter, the Petitioner prayed for an oral hearing before the President - (i) to adduce his evidence and to produce, in original, the documents in the Annexures ; and (ii) to make submissions in support of his case. He repeated these prayers in a letter addressed to the Secretary to the president the same day (p. 9n. of the file ). (c) On 9. 12. 64, the Secretary of home Ministry wrote to the petitioner to send the originals of the annexures to his representation, for being placed before the President (p. 7n ). On the same date, the Home Secretary also supplied to the petitioner a copy of his note of 17. 11. 64, seeking the determination of the President, and copy of the President's directive dated 21. 11. 64, in compliance with the request made by the petitioner on 1. 12. 64 (p. 4n.), for copies of these documents. (d) On receipt of the copies just mentioned, the petitioner, on 10. 12. 64, submitted an additional representation (pp. 94-101 of the petition ; pp. 13-18n. of the File), stating that he had to make this additional representation inasmuch as the copies in question were not supplied to him when he was originally called upon to submit his representation (p. 99 of the petition ). On the same date, the petitioner also submitted to the Home Secretary originals of the documents relied upon by him in his original representation. (e) On 14. 12. 64, the petitioner addressed a letter to the Secretary to the president, forwarding a copy of his additional representation, for being placed before the President, with a request that the original documents, which he had handed over to the Ministry of Home affairs, should be called for from that ministry for being placed before the president (p. 100 of the petition ). (f) On 21. 12. 64, the Secretary to the Home Ministry sent a reply (p. 20/c of the File) to the letter addressed by the petitioner to the Secretary to the president on 7. 12. 64. The draft of the letter was, of course, shown to the Secretary of the President and the Chief justice of India before issue. In this letter, the petitioner was directed to send all the evidence that he wanted to rely upon, to the Home Secretary. It was also indicated that no oral evidence of witnesses would be received but that the petitioner was free to submit the affidavits of witnesses he relied upon. As to the personal hearing sought for by the petitioner, the reply was as follows :