JYOTI PROKASH MITTER versus HONBLE MR. JUSTICE HIMANSU KUMAR BOSE, CHIEF JUSTICE, HIGH COURT, CALCUTTA AND ANOTHER

Citation: [1965] 2 S.C.R. 53 · Decided: 09-11-1964 · Supreme Court of India · Bench: P.B. GAJENDRAGADKAR

Cited by 3 judgment(s) · see the full citation network in Lexace

Judgment (excerpt)

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53 
JYOTI PROKASH MITfER 
v. 
HON'BLE MR. JUSTICE llIMANSU KUMAR ~OSE, CHIEF 
JUSTICE, IDGH CO\JRT, CALCUTTA AND ANOTHER 
November 9, 1964 
[P. B. GA.JENDRAGADKAR, C.J., K. N. WANCHOO, 
M. HlDAYATULLAH, RAGHUBAR DAYAL AND 
]. R. MUDHOLKAR JJ.J 
Constitution of India, Art. 217 as amended by Constitution (Fifteenth 
Amendment) Act, 1963-Dispute as to age of sitting High Court Judge-
Decision taken by Home Mini.>ter and approved by President-Evidence of 
appellant not before President-Chief Justice of India not formally consulted 
-Decision whether satisfies terms of Art. 217(3). 
There was divergence between the appellant's date of birth as given 
at the time of bis appointment as Judge of the Calcutta High Court and 
as found in the records of the public examinations at which be bad 
appeared. The Union Home Minister after correspondence with the parties 
concerned including the Chief Justice of India and . the appellant deter-
mined the appellants date of birth to be December 27, 1901 as found in 
the records of the appellant's Matriculation Examination. The President, 
by order passed on May 15, 1961, approved the·decision and the conse-
quent order that the appellant be asked to demit his office on December 
26, 1961 when be would reach the age of superannuation. The Punjab 
High Court dismissed the appellant's writ petition challenging the order 
and the Supreme Court dismissed in limine the petition for special leave to 
appeal. 
Pursuant to the orders of the Union Government the Chief 
Justice of the Calcutta High Court asked the appellant to demit his office 
on December 26, 1961, and after that date did not allot him any work. 
The appellant thereupon filed a writ petition before the Calcutta High Court 
under Art. 226 of the Constitution which was dismissed. 
The Supreme 
Court granted him special leave to appeal. 
The appellant in his appeal contended that the age of a Judge given 
by him at the time of appointtnent once accepted by Government, could 
not again be called in question and in any case could not be determined 
again by the Government by Executive order. The complexion of the con-
troversy was however completely changed by the passing of the Constitution 
(Fifteenth Amendment) Act 1963 which by adding cl. (3) to Art. 217 
provided that any dispute as to the age of a Judge of a High Court would 
be decided exclusively and finally by the President of India in consultation 
with the Chief Justice of India .. The Amendment Act also provided that 
the provision shall be deemed always to have been in the Constitution. The 
parties agreed that after the retrospective amendment the main question 
for consideration was whether the order of the Union Government deter-
mining the appellant's age and date of superannuation was an order which 
could be deemed to have been passed under Art. 217(3). 
HELD: (i) If a dispute is raised about the age of a sitting Judge then 
it is desirable that the matter should be decided by the President. Whet-
her the dispute is genuine or not is to be considered by the President in 
consultation with the Chief Justice of India. But it is certainly in the 
interests of the Judge himself, as much as in the interests of the purity and 
54 
SUPREME COURT REPORTS 
[1965] 2 S.C,R. 
reputation of the admmistration of justice that the dispute should be settled. 
A 
It could not be held that the age of a Judge given by him at the time of 
appointment could never again be called in question. [65 E-F] 
(ii) The Chief Justice of the Calcutta High Court was justified .in not 
allo:ting any work to the appellant after December 26, 1961, as -any 
judgments delivered by him after the date would have been open to question 
.as to their validity. 
[66 B-C] 
(iii) The judgment of the Punjab High Court dismissing appellant's 
B 
writ petition did not operate as res judicata as it was not on merits. [71 A) 
(iv) Article 217(3) gave to the President exclusive power to determine 
the age of a sitting Judge and divested the courts of jurisdiction in this 
regard. The procedure to be adopted was in the discretion of the President -
but the prov is ion to formally consult the Chief Justice of India was man-
datory. Also implicit in the Article, was the requirement that the Judge 
concerned should have a reasonable opportuility to give his version and 
C 
produce his evidence. [64 B-D] 
(v) The provision having been expressly made retrospective the appeal 
had to be decided on th

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