G. K. MITTER, J. ( 1 ) THE appellant, first appointed as an Additional Judge of this Court on February 11, 1949 and later confirmed as a permanent Judge in January 1950, claims to be in office still. He has preferred this appeal from an order of Banerjee, J. , dismissing his application under Article 226 of the construction for the issue of a Rule on the Chief Justice to show cause why the latter should not give direction recalling some orders made by him allegedly interfering with the discharge of his duties and functions of a Judge of this Court. ( 2 ) SINCE no Rule was issued on the appellant's writ petition no affidavit-in-opposition was used and the materials before us are the said petition of the appellant with annexures thereto and the Judgment of a Division Bench of the Punjab High Court which has a very important bearing on the question before us. ( 3 ) IT is not disputed that if the Appellant is still a Judge he must be held entitled to the rights and privileges of the office and be allowed to discharge the duties attendant thereon. The controversy about the appellant's claim to continue in office arises out of certain proceedings had regarding the determination of his age. If he has not attained the age of 60 years - the limit fixed under Article 217 (1) of the Constitution of India, for retirement of Judges of High Courts - his claim to the office must be upheld. In order to be entitled to the issue of the Rule the appellant must show that his assertion that he has not attained the age of superannuation is prima facie not open to question. Article 217 (1) of the Constitution of India bearing on the question of a Judge's age is as follows: "every Judge of a High Court shall be appointed by the President by warrant under his hand and seal after consultation with the Chief Justice of India, the Governor of the State, and, in the case of appointment of a Judge other than the Chief Justice, the Chief Justice of the High Court, and shall hold office,. . . . . . until he attains the age of sixty years". . . . . . until he attains the age of sixty years". ( 4 ) IT will be noted from the above, that any one who is below the age of 60 years can be appointed a Judge of a High Court but he must demit his office when he attains the said age. Further a person appointed a Judge of a High Court can hold the office for a few days only or for more than two decades if he is sufficiently young when appointed. The only limit imposed is that he must be below 60 years of age when he is appointed. ( 5 ) THE of the appellant seems to have engaged the attention of the Home Ministry of the Government of India early in 1959 and an enquiry was launched about it in April 1959. The persons taking part in such enquiry included the then Chief Justice of India and the then Chief Justice of this Court. The position taken up by the appellant at that stage was that the investigation was incompetent and that according to the age given by him at the time of his appointment and accepted by the Government his retirement would not be due before December 27, 1964. This was however rejected by the Government of India after enquiry and the appellant was informed in May 1961 that he should demit his office on December 26, 1961, The appellant moved the Punjab High Court by a writ petition against the Government of India, so that effect could not be given to the direction of May 1961. The said High Court held against him and the Supreme Court of India refused to give him special leave to appeal. ( 6 ) IN this petition the appellant states that at the time of his appointment he had given his real age to the Chief Justice Harries and appraised him of his disconformity between his real age and his age as borne on the Matriculation Certificate. According to the appellant Harries, C. J. , accepted the appellant's real age and forwarded the same to Government and a like communication was made to the authorities again in or about January 1950 prior to this appointment as Puisne Judge of this Court. According to the appellant Harries, C. J. , accepted the appellant's real age and forwarded the same to Government and a like communication was made to the authorities again in or about January 1950 prior to this appointment as Puisne Judge of this Court. In support of the above the appellant relies on publication made by orders of different Chief Justices of this Court showing the dates of birth as well as the date of retirement of all the Puisne Judges including the appellant both before and after the coming into force of the Constitution of India. Copies of three of such publications annexed to the petition all go to show that the appellant was born on December 27, 1904 and the date of his retirement was to be December 27, 1964. In April 1959, the Home Minister, Government of India, started the enquiry about the age of the appellant in view of the discrepancy between his age reckoned on the basis of that published in the Bihar and Orissa Gazette in connection with the Matriculation examination taken by the appellant in 1918 and his age as given by him at the time of his appointment. The discrepancy is exactly one of three years. It appears that the petitioner sent in a reply to the letter of inquiry dated April 9, 1959 stating that an exaggerated age had been given at the time of the Matriculation examination because of the limit imposed by University regulations prescribing the minimum age of appearance at the said examination. The Home Ministry appears to have received corroboration evidence of the petitioner's age as given in the Matriculation Certificate from the Civil Service Commission in London. The Ministry relied on a certificate which had been filed before the Civil Service Commissioners on behalf of the appellant showing his age to be in consonance with that published in the Bihar and Orissa Gazette. Some explanation about the discrepancy in his age was put forward by the appellant. The Ministry relied on a certificate which had been filed before the Civil Service Commissioners on behalf of the appellant showing his age to be in consonance with that published in the Bihar and Orissa Gazette. Some explanation about the discrepancy in his age was put forward by the appellant. In or about May 1951 the appellant received a letter from a Secretary to the Government of India, Ministry of Home Affairs, in which after referring to the inquiry mentioned above, it was stated:"the Government of India, having given their most careful consideration to the explanation given by you, have decided, in consultation with the Chief Justice of India, that your age as given in the Bihar and Orissa Gazette dated June 26, 1918 should be taken as the correct age and that the date of birth, viz. , 27th December, 1901, as recorded at the time you appeared at the I. C. S. competitive examination, London, which tallies with the entry in the said Gazette regarding your age, should be taken as the correct date of birth. You should, therefore, demit your office of puisne Judge of the Calcutta High Court on the 26th December, 1961 after Court hours. " ( 7 ) BEING aggrieved by the above direction the appellant moved the Punjab High Court on November 15, 1961 for the issue of a writ in the nature of Mandamus under Article 226 of the Constitution of India directing the Union of India not to give effect to its purported decision and/or direction contained in the said letter of May 16, 1961 and not to interfere in any way with the discharge of the duties and function as well as with the enjoyment of the rights and privileges of the petitioner as a Judge of the High Court until the date of his retirement in December 27, 1964. According to the petition before this Court he had, previous to this application, demanded justice from the Government of India. An affidavit-in-opposition affirmed by the Secretary to the Government of India, Ministry of Home Affairs, was issued in opposition to the said application. According to the petition before this Court he had, previous to this application, demanded justice from the Government of India. An affidavit-in-opposition affirmed by the Secretary to the Government of India, Ministry of Home Affairs, was issued in opposition to the said application. ( 8 ) BEFORE the Punjab High Court the appellant asked for two reliefs : (1) A declaration that he was entitled to hold office as a Judge of the High Court of Calcutta until December 27, 1964 and (2) a writ or a direction in the nature of Mandamus directing the Union of India not to give effect to the letter of May 16, 1961 mentioned above. The Punjab High Court went into the question of the petitioner's age, examined the propriety of the enquiry relating thereto by the Ministry of Home Affairs, adverted the fact that the petitioner did not produce or refer to any evidence in his possession which might disprove the correctness of the age given on the Matriculation certificate and held: "in the circumstance, the determination of his age had perforce to be made upon the material which was available with the Home Ministry, and this consisted of two previous statements made by or on behalf of the petitioner. " ( 9 ) DELIVERING the main judgment of the Division Bench Khosla, Chief Justice observed:"there was nothing illegal or unjust in the Home Ministry reopening the matter of the petitioner's age on getting reliable information of an inaccuracy in the High Court records in this respect. Adequate opportunity was given to the petitioner to produce evidence and to represent his case. He did not choose to avail himself of the opportunity and merely contended himself by challenging the right of the Home Ministry to reopen the matter at all. " ( 10 ) EARLIER the Chief Justice had remarked:"the reopening of the question of age is certainly not an incursion into the rights of the judiciary, nor is it calculated to endanger its independence, provided, of course, the enquiry is made according to law and according to the rules of evidence. " ( 10 ) EARLIER the Chief Justice had remarked:"the reopening of the question of age is certainly not an incursion into the rights of the judiciary, nor is it calculated to endanger its independence, provided, of course, the enquiry is made according to law and according to the rules of evidence. * * * * * * * Such an enquiry can be started by anyone, but because the administration of justice, in so far as it relates the High Courts, is part of the business transacted by the Ministry of Home Affairs, such an inquiry would well come within the scope of the Ministry's business. " ( 11 ) THE learned Chief Justice concluded that there was no justification whatsoever for holding that any injustice of any kind had been done to the appellant and the petitioner was not, in his Lordship's view, entitled to any relief. Before the Punjab High Court the appellant sought to rely on a horoscope of his and an endorsement on an old almanac in corroboration of the statement of his age given at the time of his appointment. The Punjab High Court placed no reliance on this evidence mainly on the ground of non-production of the same at the enquiry stage. Doubts were also expressed about the genuineness of the communication alleged by the appellant to have been made to Harries, C. J. at the time of his appointment. ( 12 ) AFTER recording the above finding the learned Chief Justice went on to observe that the matter had another aspect in that no order removing the petitioner from his post had been made and he had merely been informed that his date of birth would be taken to be the 27th December, 1961. ( 12 ) AFTER recording the above finding the learned Chief Justice went on to observe that the matter had another aspect in that no order removing the petitioner from his post had been made and he had merely been informed that his date of birth would be taken to be the 27th December, 1961. According to the learned Chief Justice,"the petitioner can, if he chooses, 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 be 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 mentioned it is because I do not feel that this Court should give the sort of remedy which is being prayed for in this case. . . . . . The ratio decidendi must be that an inquiry 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 can not ask us to give him relief which is a matter of discretion I am also convinced upon all the material which has 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 at the Indian Civil Service Examination. " ( 13 ) BEFORE us the appellant contended that his petition raised serious question of law which should not have been dealt with summarily as had been done by Banerjee, J. , and that the proper course to adopt would be to issue a Rule calling upon the respondent to file an affidavit if he chose to do so and then hear the matter on its merits. The points formulated by him are as follows: (1) As he had given his age at the time of his appointment and this had been accepted, it was not open to the Government of India to redetermine his age or to reopen the same. Such a power would be detrimental to a Judge's administering justice without fear or favour and would put him in perpetual peril of his position thereby undermining his independence. (2) The exercise of such power would in effect be an invasion of the rights of Parliament under Article 124 of the Constitution as it is Parliament along before whom the removal of a Judge can be mooted. (3) The question of a Judge's age is not justiciable in a Court of law. ( 14 ) WITH regard to the first point I find myself unable to accept the appellant's contention that his age as disclosed by him at the time of his appointment was accepted by the Government of India or any authority competent to do so. Under Article 217 (1) of the Constitution the appointing authority of a High Court Judge is the President of India. No doubt it is his duty to consult the Chief Justice of India, the Governor of the State concerned and the Chief Justice of High Court of the particular State. But such consultation is limited to the fitness of the person to be appointed a Judge and all that the President is concerned with after satisfying himself of the fitness of the person selected is to see that the appointee has not attained the age of 60 years. As a matter of practice however the person selected is asked to state his age and the medical practitioner examining him has to make an estimate thereof and state the same in the certificate of physical fitness signed by him. As a matter of practice however the person selected is asked to state his age and the medical practitioner examining him has to make an estimate thereof and state the same in the certificate of physical fitness signed by him. The law does not prescribe that the person to be appointed should give his age or that it should be accepted by or on behalf of the President of India. The publications annexed to the petition made by the orders of different Chief Justices of this Court were based on the age given by the appellant and the other Judges of this Court. Such publications were not made under any statutory power nor are they binding on anybody. ( 15 ) UNDER Article 74 (1) of the Constitution of India the Council of Ministers with the Prime Minster at the head is to aid and advise the President in the exercise of his functions. In the discharge of such functions under Article 217 (1) the President may take the aid and advice of his Ministers, which in the case of the appointment of Judges would be the Home Minister but nevertheless Article 217 (1) vests the President alone with the power of appointment. Under Article 224 of the Constitution it is the President who can appoint additional Judges when it appears to him that by reason of temporary increase in the business of a High Court the number of Judges of that Court should be for the time being increased. Again under Article 222 of the Constitution it is the President who is empowered to transfer a Judge from one High Court to any other High Court after consultation with the Chief Justice of India. Under Article 124 (4) the power of removal of a Judge after the presentation of the address of each House of Parliament with the requisite majority rests with the President. Here too the President may be guided by the advice of his Ministers but the Ministry can only act in an advisory capacity. ( 16 ) IT will thus be noticed that the Constitution vests the President alone with the powers of appointment, transfer and removal of High Court Judges. Here too the President may be guided by the advice of his Ministers but the Ministry can only act in an advisory capacity. ( 16 ) IT will thus be noticed that the Constitution vests the President alone with the powers of appointment, transfer and removal of High Court Judges. In exercising the first two of the above powers he has to consult several persons while the power of removal can only be made use of after an address to that effect is presented to him by Parliament. Except giving advice to the President in the exercise of these powers the Central Ministers have no duties to perform which may in any way affect the office of a High Court Judge. The administration of justice being in charge of the Home Ministry it may be open to the latter to go into the question of a Judge's age for ascertaining the date of his retirement and such ascertainment has no legal force or effect. Further the Constitution, in my opinion, does not warrant any direction being given by the said Ministry to the effect that a Judge should retire on a particular day. In my judgment leaving out of consideration the jurisdiction of Courts of law it is the President alone who can hold or direct an enquiry as to the real age of a particular Judge giving the latter the fullest opportunity of putting forward such evidence of his age, as may be available to him and it is only the President who can record a finding as to the date of superannuation of a Judge. ( 17 ) IT should be noted that the above is not binding on the President or the Government of India since they are not parties to this appeal but it became necessary to examine the provisions of the Constitution in order to test the contention of the appellant that his age cannot be determined by any body and that the age as given by him at the time of his appointment had been accepted. ( 18 ) AS there is no provision for determination of a Judge's age at the time of his appointment either in the Constitution or in any other Law of compelling authority a question may arise as to the time when a particular Judge should retire. ( 18 ) AS there is no provision for determination of a Judge's age at the time of his appointment either in the Constitution or in any other Law of compelling authority a question may arise as to the time when a particular Judge should retire. As a matter of practice the age of retirement is reckoned according to the age declared by a Judge at the time of his appointment but this is not conclusive and can be investigated into, should occasion arise. It would have been better if the Constitution had made some provision for the determination of a Judge's age at the time of his appointment so as to put the matter beyond controversy. For instance, the person chosen might be called upon to furnish evidence of his age and the determination thereof by the President at the time of the appointment might have been made final. This would have put a stop to any inquiry thereafter and would certainly have avoided the inglorious spectacle of a person who had acted as a Judge for many years litigation for continuing in office when his probity is openly questioned in Court. ( 19 ) THERE is a good deal of force in the appellant's contention that if the Government of India had the power to determine a Judge's age at any time, it might be improperly used to get rid of a Judge whom the executive did not like. It would certainly be a sad day for the country if the Government had such a power and the same was misused. In my view however no such power has been given to the executive by the law of the land. Our Constitution has rightly placed the Judges in a position from where they can act without fear of interference from any quarter. Under Article 121 of the Constitution even Parliament is precluded from discussing the conduct of a Judge in the discharge of his duties except upon a motion for presenting an address to the President praying for his removal under the provisions of Article 124 (4) of the Constitution. Under Article 121 of the Constitution even Parliament is precluded from discussing the conduct of a Judge in the discharge of his duties except upon a motion for presenting an address to the President praying for his removal under the provisions of Article 124 (4) of the Constitution. Under the latter provision such removal can only take place by an order of the President passed after an address by each House of Parliament supported by a majority of tenant less than two thirds of the members of that House present and voting after the same has been presented to the President in the same session on the ground of proved misbehaviour or incapacity of the Judge. ( 20 ) IT would indeed be deplorable if the tenure of High Court Judges depended on the caprices of certain Ministers as argued by the appellant but there is no need to go into the question in this case because the appellant has not been able to establish what according to him is his real age and has not been able to show that such real age was ever accepted by the appointing authority, namely, the President, at any time. ( 21 ) THE second point of the appellant is equally unsustainable. No doubt it is for Parliament alone to initiate proceedings for the removal of a Judge but the determination of a Judge's age for finding the date of superannuation can hardly by equated with removal. Retirement is not removal. Under Article 124 (4) removal must be based on proved misbehaviour or incapacity. Anybody appointed as a Judge must retire when he attains the age of 60 years. If his age is not determined at the time of his appointment there is no bar to having his date of retirement fixed later on. I can see no reason why in a case where a Judge had not declared his real age at the time of appointment through bonafide mistake or otherwise the President cannot determine his age of superannuation later on. There seems to be nothing in law to preclude a Judge from getting a declaration as to his age in a competent Court of law although in my opinion litigation of this kind is hardly consistent with the dignity of the office. There seems to be nothing in law to preclude a Judge from getting a declaration as to his age in a competent Court of law although in my opinion litigation of this kind is hardly consistent with the dignity of the office. ( 22 ) ON the third point raised by the appellant it is enough to say that if the question of a Judge's age is a question of fact, as it must be held, it is justiciable in a Court of law. So long as the law does not provide for the determination of a Judge's age in a particular manner of the same being made conclusive it cannot be canvassed at anytime provided it is done bonafide and by an authority or a tribunal competent to do it. ( 23 ) IN paragraph 21 of his petition the appellant replied on certain observations of the Punjab High Court to the effect that the letter of May 16, 1961, sent by Home Secretary to him only contained a suggestion and that there was no order removing him from office and as such the same could be disregarded by the appellant. With great respect to the learned Chief Justice of the Punjab High Court I fail to see how the matter can be so treated. The said letter clearly contains a direction that the appellant should demit his office after Court hours on December 26, 1961. The text of it does not lend itself to the construction that the Government of India was only expressing an opinion. There was a clear order defining the expiration of the appellant's office and a direction upon him not to exercise the functions of a Judge thereafter. Before us the appellant sought to argue that if the said letter be treated as merely indicative of the opinion of the Government of India there had been no determination of the duration of his office and as such the Chief Justice of this Court was bound to assign some work to him. Before us the appellant sought to argue that if the said letter be treated as merely indicative of the opinion of the Government of India there had been no determination of the duration of his office and as such the Chief Justice of this Court was bound to assign some work to him. If the Punjab High Court had dismissed the appellant's application merely on the ground that there was an expression of opinion by the Government of India about the duration of his office, the appellant might well have argued that there having been no binding adjudication about the date of his superannuation the Chief Justice of this Court must treat him as still in office. But that is not the real position. ( 24 ) THE appellant did not succeed in his application before the Punjab High Court in showing that his age as given by him had been accepted at any time so as to be beyond question. The question of a person's real age is one of fact and in view of the material produced in the affidavit-in-opposition before it the Punjab High Court might well have dismissed the appellant's application on the ground that there being a dispute as to a vital question of fact no relief could be given on a writ petition. But the High Court went further than that and as already noted came to the finding that the appellant had failed to produce any evidence to contradict the statement in the Bihar and Orissa Gazette or that contained in the certificate before the Civil Service Commissioners in London. In effect the High Court held that the appellant had failed to establish that he would attain the age of 60 years on December 27, 1964 and refused to give him a declaration that he was entitled to hold office as a Judge of this Court until that date. In my view the Chief Justice of this Court 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. ( 25 ) IN the result I find myself unable to hold that Banerjee, J. should have issued a Rule as asked for by the appellant. The appeal should therefore be dismissed but without any order as to costs. ( 25 ) IN the result I find myself unable to hold that Banerjee, J. should have issued a Rule as asked for by the appellant. The appeal should therefore be dismissed but without any order as to costs. ( 26 ) THIS appeal is directed against an order of our learned brother Banerjee, J. , by which the application of the appellant Sri Jyoti Prokash Mitter (hereinafter called Mitter) was dismissed at the first hearing before the issue of the Rule. The application was under Article 226 of the Constitution, praying for a rule nisi upon the Hon'ble the Chief Justice of this Court to show cause why a writ in the nature of mandamus and/or proper directions, should not be issued directing his Lordship to recall his orders 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 Court and to restore to the appellant his duties and functions, as well as his rights and privileges as a Judge of this Court. ( 27 ) ON May 5, 1931 Mitter was enrolled as an Advocate. On February 11, 1949, he was appointed as an Additional Judge of this Court and on January 21, 1950 he was made permanent when Sir Arthur Trevor Harries was the Chief Justice. Mitter then gave December 27, 1904 as the date of his birth. On April 9, 1959, the then Home Minister, Government of India, wrote a letter to the then Chief Minister of West Bengal, seeking to re-open the age of Mitter on the basis of a certificate granted to him of the passing of his Matriculation Examination in the Patna University, published in the Bihar and Orissa Gazette, which fixes December 27, 1901 as the date of his birth instead of December 27, 1904. It appears that during the enquiry, the Home Ministry of the Government of India ascertained that Mitter applied in the year 1923 to the Civil Service Commission at the United Kingdom also giving December 27, 1901 as his date of birth. It appears that during the enquiry, the Home Ministry of the Government of India ascertained that Mitter applied in the year 1923 to the Civil Service Commission at the United Kingdom also giving December 27, 1901 as his date of birth. It is stated that on April 17, 1959 there is a letter, addressed by the then Chief Justice of this Court to Mitter to "send me at your earliest possible convenience a full statement on all the points involved and inform me at the same time that any other material which may be relevant on the correct ascertainment of your date of birth and the consequential ascertainment of the date of retirement". The said letter containing the said statements was stoutly denied by Mitter before us but the said quotation appears in the judgment of Khosla, C. J. of the Punjab High Court which I will have occasion to refer to hereafter. On May 27, 1959 Mitter replied, repudiating the suggestion about his giving a false date of birth at the time of his appointment as a Judge and asserted that the matter could not now be reopened. In July, 1959 Harries C. J. died. On August 12, 1959, Mitter wrote a letter attempting to explain about the discrepancy of his age given at the time of the Civil Service Examination to the effect that it must have been obtained at England from his relations at India, which again was presumably based upon the Matriculation Certificate and he did not recollect after 36 years as to how it happened, but Mitter reiterated that the matter could not be re-opened now. The name of Harries, C. J. , was not mentioned in the letter of May 27, but for the first time in this letter, i. e. , after the death of Harries, C. J. On September 21, 1959 the then Chief Justice of this Court wrote a letter to Mitter informing that the Home Ministry, Government of India, had decided with the concurrence with the Chief Justice of India to treat the age of Mitter as stated in his Matriculation Certificate as final. Mitter replied on that very day challenging the authority of the Home Minister for determining the age of a Judge and suggested an agreed Tribunal for the decision in the matter. Mitter replied on that very day challenging the authority of the Home Minister for determining the age of a Judge and suggested an agreed Tribunal for the decision in the matter. On September 30, 1959 Mitter wrote a letter of protest, accusing the then Chief Justice of India for taking adverse views against him for ulterior reasons. Thereafter, there was an offer of arbitration by the Home Minister to Mitter. No reply was given to the same and also not to its reminder sent by the Home Minister thereafter. On November 1, 1960 the Home Minister wrote a letter that Mitter to be told definitely that December 27, 1901 is his date of birth and that he would have to retire on December 27, 1961 on attaining the age of 60. ( 28 ) ON May 16, 1961 the Secretary to the Government of India, Ministry of Home Affairs, addressed a letter (which is Ext. B to the application) to Mitter to demit his office of a puisne Judge on December 26, 1961 after Court hours. It appears from a letter dated July 30, 1961 of Shri Jawaharlal Nehru, the Prime Minister of India, to Mitter (Ext. C) that Mitter came to see him on the morning of the said date and he was informed that Mitter might get in touch with the Chief Justice of India. There is a reference in the said letter that the Prime Minister had been informed by the Chief Justice of India that a "rule had been framed" which was probably applicable to such cases in accordance with this rule, action had been taken in regard to Judges of several High Courts. The Prime Minister also stated in the said letter "the Chief Justice also mentioned to me that there had been some 'serious complaints' in the manner in which judicial work had been transacted by you". On the next day, i. e. , July 31, 1961 Mitter saw the Chief Justice of India and on August 7, 1961 Mitter wrote a letter to him. Again on August 19, 1961 another letter was written to the Chief Justice of India to which he replied on August 22, 1961 (Ext. On the next day, i. e. , July 31, 1961 Mitter saw the Chief Justice of India and on August 7, 1961 Mitter wrote a letter to him. Again on August 19, 1961 another letter was written to the Chief Justice of India to which he replied on August 22, 1961 (Ext. D) stating "that it was decided that you should retire sometime in 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". The Chief Justice of India also stated that "in order to save the Judge himself and the Government from any embarrassment in Court and out of Court this policy has been adopted". On October 7, 1961 Mitter wrote a letter to the Secretary to the Government of India Ministry of Home Affairs, enquiring as to the existence of the said policy and the reply was to the effect that the matter was being considered and according to Mitter there was no further communication. ( 29 ) ON November 15, 1961 Mitter 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 is entitled to hold office as a Judge of the High Court at Calcutta until December 27, 1964 and for the issue of a writ in the nature of Mandamus upon the sole Respondent, i. e. , the Union of India, directing it not to give effect to its decision contained in the said letter dated May 16, 1961 and not in any way to interfere with the discharge of the duties and functions as well as with the enjoyment of the rights and privileges of him as a Judge of the High Court at Calcutta until the date of his retirement on December 27, 1964 and for further, proper or consequential directions or orders. To this application an affidavit-in-opposition 'or return' (as it is called) was filed by the Home Secretary, Government of India, which is not before us. The matter was heard and on December 4, 1961 their Lordships of the Punjab High Court, dismissed the application (Judgment - Ext. E ). To this application an affidavit-in-opposition 'or return' (as it is called) was filed by the Home Secretary, Government of India, which is not before us. The matter was heard and on December 4, 1961 their Lordships of the Punjab High Court, dismissed the application (Judgment - Ext. E ). Against the said judgment or order, Mitter applied for special leave to the Supreme Court of India, which was not granted. ( 30 ) THEREAFTER on December 22, 1961 Mitter wrote a letter to the Chief Justice of this Court (Annexure G) asking his Lordship not to interfere with his duties and functions as well as with his rights and privileges as a Judge of this Court after December 26, 1961 and to afford him the protection which a Judge is entitled to expect from his Chief Justice. On December 31, 1961 Mitter wrote another letter to the Chief Justice of this Court asking his Lordship to recall the order and to afford him all such facilities as are necessary to enable him to carry out his duties and functions as a Judge. According to Mitter, no reply has been given by the Chief Justice of this Court to the said two letters. On two days, viz. , on January 2 and on January 3, 1962 Mitter moved the said application under Article 226 (1) of the Constitution in person, directed against the Chief Justice of this Court being the sole Respondent, which was dismissed by Banerjee, J. on January 3, 1962, against which the present appeal has been preferred. ( 31 ) THE aforesaid statements of facts are taken either from the statements made in the application and/or in the annexures thereto, but I must note that there is a serious dispute raised by the appellant as to the existence of the letter dated April 17, 1959. Besides, the five letters dated May 16, 1961; July 30, 1961; August 22, 1961; December 22, 1961 and December 31, 1961 and the judgment of the Punjab High Court, which have been annexed to the writ application, the appellant also annexed copies of three official publications (Ext. A) showing dates of birth, dates of appointment and dates of retirement of Hon'ble Judges of this Court printed at the Press of the West Bengal Government from time to time. A) showing dates of birth, dates of appointment and dates of retirement of Hon'ble Judges of this Court printed at the Press of the West Bengal Government from time to time. ( 32 ) AT the beginning of the hearing, the appellant took objection as to myself being a member of the Bench on the ground that my tenure of office (being an Additional Judge) is dependent on the recommendation of the Chief Justice of this Court who is a party respondent in this appeal. However, as I did not feel embarrassed to hear the appeal, the appellant proceeded to argue the same in person subject to the above objection. ( 33 ) THE appellant made it abundantly clear that the scope of the appeal was very much limited, viz. , that whatever or not a rule nisi is to issue on such an application. However, as I did not feel embarrassed to hear the appeal, the appellant proceeded to argue the same in person subject to the above objection. ( 33 ) THE appellant made it abundantly clear that the scope of the appeal was very much limited, viz. , that whatever or not a rule nisi is to issue on such an application. He also made it clear that he advanced no arguments on merits before Banerjee, J. ( 34 ) I have not taken note of the arguments of the appellant to the effect that it is an ancient malpractice where the executive consults and seeks the advice of the Judges beforehand in coming to a decision as in the present case; that the present case is a case showing the worst form of discrimination, as several Judges are still continuing and functioning as Judges in more than one High Court, though their respective ages have exceeded 60 years on the basis of their Matriculation Certificates; that the Matriculation Certificates also prove that at least 90 per cent of the boys who appear at the Matriculation examination are born on a particular day of a year, i. e. , 1st of March of each and every year which is absurd; that the enquiry by the Central Government as to the appellant's age without giving him an opportunity and without considering the horoscope and the almanac being never produced before it, is illegal; that no suggest that an enquiry as to the age of a Judge can be started at any time by any person including the litigant public at any stage, is to exhibit utter ignorance of the law on the subject; that to argue that the High Court Judges are paid servants of the Government who are bound to carry out the mandate in the nature of decisions, orders and directives of the executing and that to argue further that the tenure of the office of a Judge can be questioned by the Executive will be nothing but to secure absolute dependence of the Judiciary to the Executive which is against the letter and spirit of the oath taken, or affirmation made by the Judge at the time of his appointment to the effect that he would perform the duties of his office without fear or favour, affection or ill-will and would uphold the Constitution. ( 35 ) I have not also taken note of the argument, viz. , that Judges should have certain durable estate or places so settled as not to hold the same precariously or determinable upon will and pleasure, so that they might act in them without fear of losing them and such places also would be "only determinable upon misbehaviour" as Holt, C. J. , put it more than 250 years ago in (1) Harcourt against Fox, (89 ER at p. 734), the term 'misbehaviour' having been defined later by both Todd and Anson. Similar arguments, viz. , that Judges should be, 'free from any fear of dismissal by the persons whom they may be asked by a litigant to control', as put by Wade and Phillips in Constitutional Law (4th Edition) at p. 235, do not arise for determination now but the following points do arise for determination, viz. , (1) Whether the Ministry of Home Affairs, Government of India or for the matter of that, any executive authority has any jurisdiction whatsoever to determine and/or re-determine the age of a Judge of Allahabad High Court. or to question the correctness of his age as given by him at the time of his appointment. (2) If it could be done at the time and on as many occasions as the executive authority might choose, whether it would make the provision of Article 217 (1) (b) proviso of the Constitution nugatory or would violate the provisions of Article 221 (2) of the Constitution and the provisions of the High Court Judges (Conditions of Service) Act, 1954 and thereby would vary the rights of a Judge in respect of his leave or absence, pension and allowance to his disadvantage after his appointment. (3) Whether the purported power of the executive Government to re-open the age of a Judge invades the right of the Parliament by circumventing the provisions of Article 124 read with Article 217 of the Constitution. (4) Whether the instant case is to be taken a case of retirement or vacating the office on superannuation, there being no bar in the Constitution for the executive authority to investigate the age of a Judge or whether it is a case of removal on the ground of misbehaviour for giving a false age. (4) Whether the instant case is to be taken a case of retirement or vacating the office on superannuation, there being no bar in the Constitution for the executive authority to investigate the age of a Judge or whether it is a case of removal on the ground of misbehaviour for giving a false age. (5) Whether the fixation of age was incumbent at the time of appointment or at least at the time of a Judge being made permanent, in order to avoid a person of more than 60 years, being appointed as a Judge at the beginning. (6) Whether the Chief Justice could or should ignore the decision of the Central Government in view that his Lordship has acted on the given age through official publications or whether the Chief Justice might be asked to face the peril of having judicial work done by a retired Judge by ignoring the same. (7) Whether the matters of 'policy', 'rule', 'precedents' and " 'serious complaints' about the appellant's manner of judicial work" are extraneous considerations which have influenced the decision of the executive authority as noticed in the case of (2) Province of Bombay v. K. S. Advani and Ors. , ( 1950 SCR 621 at p. 670 ). (8) Whether the writ at all would be available against the Chief Justice and whether such action or administrative order of the Chief Justice by not allotting the duties and functions to a Judge is amenable to the provisions of Article 226 of the Constitution (Vide (3) Pradyut K. Bose v. The Hon'ble Chief Justice of Calcutta High Court, (1955) 2 SCR 1331 at p. 1352 ). (9) Whether the slip-shod verification by the appellant himself in the writ application, being stated to be not in accordance with Rule 14 of the Rules relating to such applications, framed by the High Court, could lead to rejection of the application in limine or whether the same might be saved on the principles laid down in (4) State of Bombay v. Purushottam Jog Naik, ( 1952 SCR 674 (681 ). (10) Whether the form of relief prayed for in the application could be granted in the absence of the Union of India being made a party and whether the petition should be thrown out simply on the ground that the proper writ or direction had not been prayed for or whether the application would still be maintainable as laid down in the case of (5) Chiranjitlal Chowdhury v. The Union of India, 1950 SCR 869 at pp. 900 and 901 (per Mukherjea, J. ). (11) Whether the decision of the Punjab High Court (against which no leave was granted by the Supreme Court) would create a bar of res judicata to the present application on the principles laid down in the case of (6) Daryao and others v. The State of U. P. and others, (1962) 1 SCR 574 or whether it would be singularly inappropriate to whittle down the fundamental right by putting it in the straight jacket of the technical rules of res judicata. (12) Whether there is a waiver on the part of the appellant by agreeing to abide by the decision of the agreed tribunal or whether the same question might be reagitated on this application, there being no waiver in enforcement of fundamental right as laid down in (7) Basheshwar Nath v. Commissioner of Income-tax, Delhi and Rajasthan, (1959) Supp. 1 SCR 528. (13) Whether the appellant's remedy in filing a suit would be erroneous one, being not an adequate alternative remedy, on the principles laid down in the case of (8) H. H. Mehta v. State of Madhya Pradesh, 1954 SCR 1122 . (14) Whether rights in favour of third parties have arisen in the meanwhile, and if so, whether the same would be allowed to be affected by the present application. ( 36 ) AFTER giving anxious consideration in the matter and keeping the contentions of the appellant and the learned Advocate-General, appearing on behalf of the Respondent, in mind it appears to me that the only question to be decided by this Court is whether the Hon'ble Chief Justice was right in treating that the appellant had retired from service on and from December 27, 1961 on the basis of the decision of the Ministry of Home Affairs as stated above. In my opinion, it is beyond the scope of this Court, exercising jurisdiction under Article 226 of the Constitution, to decide the disputed question of fact, viz. , in this case whether the appellant attained the age of 60 years on December 26, 1961. The real question is whether the appellant's age as given by him at the time of his appointment as a Judge of this Court, can be the subject of scrutiny by the Central Government during the tenure of his service as a Judge in this Court. ( 37 ) THERE cannot be any doubt that the questions involved in this case are of great importance and never became the subject matter of any judicial decision of this country. I am not also aware of any decision in other countries, viz. , Great Britain, United States, Australia, Canada and Japan or of any convention in other parliamentary democracies. Like any other citizen, a High Court Judge has a right to come to the Court and seek his protection against any infringement of his fundamental right to continue in his occupation as a Judge. There is no provision in the Constitution either empowering the Central Government to investigate or debar it from making such an investigation as to the correctness or otherwise of the age of High Court Judge. It is sufficient for my purpose to say now and at this stage that the petitioner has made out a strong prima facie case for at least a Rule Nisi to be issued, as the contention of the appellant is not hindered at the very outset or in its face, by an express provision of the Constitution or by any other law. ( 38 ) TRUE that the Punjab High Court dismissed the writ petition of the appellant, but in my view, the said decision cannot stand in the way of the appellant's obtaining a rule on his petition. Khosla, C. J. , in dismissing the petition, inter alia, observed as follows: "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 the basis the petitioner ought to retire. He has, therefore, been asked to retire. Khosla, C. J. , in dismissing the petition, inter alia, observed as follows: "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 the 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 be 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 mentioned it is because I do not feel that this Court should give the sort of remedy which is being prayed 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 whom it is addressed and there is no reason why we should be asked to issue a mandamus in respect of the letter of 16th May, 1961 sent by the Home Secretary to the petitioner. " ( 39 ) EVEN after this, whether the said decision would be binding on the appellant so far as the present petition is concerned that question need not be decided for the present, as it required further consideration. Moreover, the petition before the Punjab High Court was directed against the said decision of the Ministry of Home Affairs and the sole respondent there was the Union of India. The present petition is directed against the action of the Chief Justice of this Court and the appellant prays for a writ upon his Lordship alone. All the circumstances which led the appellant to move the present application were not existing at the time the appellant moved the Punjab High Court. The present petition is directed against the action of the Chief Justice of this Court and the appellant prays for a writ upon his Lordship alone. All the circumstances which led the appellant to move the present application were not existing at the time the appellant moved the Punjab High Court. If, according to the Punjab High Court the appellant can ignore the decision of the Ministry of Home Affairs, the appellant may say that he has ignored the said decision but in view of the subsequent events affecting the continuity of his service as a Judge of this Court, he has a right to move the instant application. ( 40 ) THE judgment of Banerjee, J. , proceeds mainly relying on the judgment of the Punjab High Court and also on the assumption that the Chief Justice of this Court could not ignore the decision of the Ministry of Home Affairs. Whether the Chief Justice could or could not ignore is a matter which should not be decided summarily but requires further consideration. Banerjee, J. , also proceeds on the ground that the Chief Justice cannot or has no duty to arrive at a decision as to the age of the appellant and that the duty of the Chief Justice is a duty in respect of "existing Judges" which again is begging the question itself. Moreover, it is not known from what materials Banerjee, J. , found that the Chief Justice had merely taken note of the communication and that the facts were unknown to his Lordship, though it might be that the Hon'ble Chief Justice have many things viz. , decisions to bring to the notice of this Court in opposing the petitioner's application and the reliefs claimed by him. ( 41 ) THE order of Banerjee, J. , is practically voicing the opinion of Punjab High Court which is hardly a satisfactory way of dealing with the matter. Though it is of course true that we cannot sit in appeal over the judgment of the Punjab High Court and the same must be treated with respect but the same is not binding on us and the same is necessary to be considered at the time of the hearing of the application. Though it is of course true that we cannot sit in appeal over the judgment of the Punjab High Court and the same must be treated with respect but the same is not binding on us and the same is necessary to be considered at the time of the hearing of the application. ( 42 ) BEFORE parting with this matter I may note that the appellant referred in details as to what happened in the Court of Banerjee, J. , and as to what his Lordship said in course of his argument and the appellant sought to make the same also a ground for rehearing of the application. In my view it is highly improper on the part of the appellant. (Vide (9) M/s. Associated Tubewells v. R. B. Gujriwall Modi, AIR 91957) SC 742 ). Again, in my view the plea raised by the appellant for the first time before us, that there is no letter of the Chief Justice dated April 17, 1959 containing the above allegations, should not be allowed to be raised (Vide (10) Associated Cement v. Shri P. D. Vyas, 1960 (2) SCR 974 ). ( 43 ) IN my view it is also not open to us, being the appellate Court, to consider a new case not argued before the Trial Court and to give our judgment. [vide (11) Narayan Bhagwantrao Gosavi Balajiwale v. Gopal Vinayak Gosavi, 1960 (1) SCR 773 (789) and (12) Kedar Motani v. Prahlad Rai, 1960 (1) SCR 861 ]. ( 44 ) IT is not our function being the Appellate Court to substitute our wisdom and discretion fro that of the Trial Court to whose judgment the matter in question is entrusted. Their Lordships of the Supreme Court in the majority judgment in the case of (13) A. V. Venkateswaran, Collector of Customs, Bombay v. Ramchand Sobhraj Wadhwani, (1962) 1 SCR 753 (764) observed to the effect, that the question is not, whether, if the application were before us, we should have directed the rule or writ to issue, but whether the Court below having in its discretion made an order, there is justification for our interfering with it. In my view matters set out earlier, should suffice to show that interference is called for in this appeal. In my view matters set out earlier, should suffice to show that interference is called for in this appeal. ( 45 ) THE importance of the question is so patent and loudly obstrusive that it leaves an indelible stamp of a Rule Nisi being issued. As the application is dismissed summarily, it would be the duty of the Trial Court to issue a rule and to give a hearing to the parties on notice to the respondents and record its decision on consideration of all the circumstances. (Vide (14) British India Corporation v. Industrial Tribunal Punjab, AIR (1957) SC 354 ). The question had not been fully debated. Court is the protector and guarantor of fundamental rights. It cannot, consistently with the responsibility so laid upon it, refuse to entertain application seeking protection against infringement of such rights. ( 46 ) I am of opinion that it would not be proper to dismiss the petition summarily as has been done by Banerjee, J. It is desirable that the points raised by the petitioner should be debated fully and thereafter be decided finally by this Court. ( 47 ) I, therefore, set aside the order of Banerjee, J. , and allow this appeal. In view of the circumstances of the case I do not make any order for costs. ( 48 ) I regret, I cannot agree with the decision of my learned brother and I respectfully differ. ( 49 ) G. K. Mitter and Laik, JJ.- 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. ( 50 ) THE case was then laid before a Bench, consisting of P. N. Mookerjee, S. P. Mitra and R. N. Dutt, JJ. , P. N. Mookerjee, J. ( 51 ) 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. , 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. The Rule was refused by our learned brother Banerjee, J. , 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. 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. ( 52 ) 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 Sankar Prosad 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. " ( 53 ) 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. ( 54 ) THAT clause (Clause 36), to quote its relevant part, stands as follows:-"any function which is hereby directed to be performed 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 decisions to be given on any point, such point shall be decided according to the opinion order the majority of the Judges, if there shall be 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 or more of the other Judges and the point shall be decided according to the opinion order the majority of the Judges who have heard the case including those who first heard it. " ( 55 ) 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 of 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. ( 56 ) STRICTLY, then, under the law, the point of difference 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 regularizing matters for an appropriate reference. 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 regularizing 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 waived and, on the point of difference, formulated by the referring 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, (15) Mr. Sardar Bibi v. Haq Nawaz Khan and Anr. , AIR 1934 Lahore 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 of 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. " ( 57 ) 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 (16) The Great Eastern Shipping Company Ltd. v. Travancore Bank Limited and Ors. , O. S. Appeal No. 219 of 1958, arising out of O. S. Suit No. 4124 of 1953, 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 of Lading in this Appeal. Our respective judgments state and record all the points upon which we differ. 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. " ( 58 ) 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. ( 59 ) THE above course has thus some judicial sanction but, even then, it is obviously desirable and certainly preferable that the strict letter of the law should be followed and the point of difference should be stated by the 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. ( 60 ) 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 ascertainable and, accordingly, the reference 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, or 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. ( 61 ) TO turn now to the instant Reference. ( 61 ) TO turn now to the instant Reference. ( 62 ) THE point for consideration is, as I have stated above, "whether on the materials in the petition and the 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 had 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 statement of the basic or material facts renders it unnecessary for me to repeat the same. As however, the instant case house 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. ( 63 ) 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 only to see whether there is a prima facie case for a Rule or a case for 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 Nishi 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. ( 64 ) 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. Beyond that and save as aforesaid, we express no final opinion. ( 64 ) 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. ( 65 ) WITH these preliminary remarks I proceed to the consideration of the problem before us. ( 66 ) 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 controversy in this Reference. These two questions may be broadly put as follows:- (a) whether the appellant is still a Judge of this Court and has the legal right to act as such and to demand and enjoy the rights and privileges attached to that high office; and (b) whether the respondent, as the Chief Justice of 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. ( 67 ) 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. ( 68 ) OF the grave issues - legal and constitutional - to which I have just referred above, - it will be enough, 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 his Companion Judges - generally, and, also, in particular vis-a-vis Central Government; and (iii) what, if any, is the extent of security of tenure of a High Court Judge under the Constitution and what is the meaning and implication of independence of the Judiciary, if the same is envisaged in our Constitution. ( 69 ) 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 of applicable to writ proceedings in particular, to the consideration of the appellant's above claim, he must fail here, no matter that he may have a very good case on the merits and, however much, grave and difficult questions may otherwise arise. Indeed, the arguments before us proceeded upon the above footing and that has been sufficiently recognised by me and indicated hereinbefore. ( 70 ) 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 (Hailsham 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 obligations too. Any other view would be opposed to the leading authority, cited by the learned Advocate-General himself, namely, (17) Ex parte Napier (Ex parte Sir Charles James Napier), (1852) 18 QB 692 (118 ER 261 ). It only excludes equitable obligations as distinguished from legal obligations which, of course, include statutory obligations too. Any other view would be opposed to the leading authority, cited by the learned Advocate-General himself, namely, (17) Ex parte Napier (Ex parte Sir Charles James Napier), (1852) 18 QB 692 (118 ER 261 ). ( 71 ) 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 and 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 (Section 223) and which appears to impose, at least prima facie, a duty upon the Chief Justice to allocate work to this Judges - existing Judges, no doubt, as Banerjee, J. has said in this very proceeding, but 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 proceedings, 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. ( 72 ) THIS brings us to the crucial question (a), round which revolves the central dispute. ( 72 ) 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 following: ( 73 ) 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 the 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. ( 74 ) ON the first of the above two submission, 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 really 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 into serious and complicated questions of fact, which would not be possible without going into elaborate evidence. The materials, now before us, do not prima facie involve a dispute of fact of such magnitude or complication and the instant application, as it now stands, can not be thrown out in limine on the ground that it involves any such dispute. This is apart from the larger 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 now become widely known as the second Kochunni case, namely, (18) Kavalappara Kottarathil Kochunni and Ors. v. State of Madras and Ors. , AIR 1959 SC 725 . 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 (19) Caltex India Ltd. v. Excise Y Taxation Officer and Ors. , AIR 1962 J and K 48, and the second, of the Rajsthan High Court in the case of (20) Tilkayat Govindlalji and Ors. v. State and Ors. , AIR 1962 Raj. 196 , and it may well be said that, at the moment, the second Kochunni case has, seemingly, at least, cast to the shadow or background the earlier pronouncements on the subject and house 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 decisions of the Supreme Court, reported in (21) AIR 1959 SC 942 (Mahant Moti Das and Ors. v. S. P. Sahi and Ors.) and (22) AIR 1961 SC 1526 (The Union of India and Ors. Prima facie, again, the above position does not seem to have been altered or affected by the two recent decisions of the Supreme Court, reported in (21) AIR 1959 SC 942 (Mahant Moti Das and Ors. v. S. P. Sahi and Ors.) and (22) AIR 1961 SC 1526 (The Union of India and Ors. v. Ghaus Mohammad), the first, given about a month after the second Kochunni case, 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, 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 force, 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 (19) (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 which the appropriate occasion will be, not this initial stage, when the issue is only a prima facie case for a Rule or a Rule nisi but the final stage or the final hearing of the Rule. In the premises, this itself seems to be a matter of sufficient prima facie importance, which requires closer and fuller consideration, for which the appropriate occasion will be, not this initial stage, when the issue is only 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 barred on some other ground. ( 75 ) 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 December 27, 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 the judgment (annexure E 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 document, 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 December 27, 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 re-opened 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 part 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 disconformity 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 us 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 any body else. 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 any body 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 or significance to aid the appellant in obtaining the relief or reliefs, claimed by him in the present proceedings, 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, sufficient 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. ( 76 ) TO this 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 of 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. ( 77 ) 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 Musaliar case (A. Thangal Kunju Musaliar v. M. Venkatachalam Potti (23) AIR 1956 SC 246 ). No doubt, it may well be true that this Court can not issue a Writ, against the Union Government and so the said Government cannot be effectively impleaded in this proceeding (Vide Lt. Col. Khajoor Singh v. The Union of India and Anr. No doubt, it may well be true that this Court can not issue a Writ, against the Union Government and so the said Government cannot be effectively impleaded in this proceeding (Vide Lt. Col. Khajoor Singh v. The Union of India and Anr. , (24) (1961) 1 SCA 173) but that is no ground for throwing out the present application in limine as, in view of the Musaliar case supra, a Writ, if otherwise claimable 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 effect 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 of the Rule. ( 78 ) POSSIBLY, because of the Supreme Court decision in (3) Pradyat Kumar's case (Pradyat Kumar Bose v. The Hon'ble Chief Justice of Calcutta High Court, AIR 1956 SC 285 ) and the view, taken of that decision in the Special Bench case of (25) Pramatha Nath Mitter and Ors. v. The Hon'ble Chief Justice of the High Court at Calcutta, 65 CWN 920, the learned Advocate-General did not argue that no Writ lies in the Court against the Chief Justice and we were not called upon to consider any such objection. ( 79 ) 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. ( 80 ) THE two other submissions of the learned Advocate-General, namely, that the appellant is guilty of 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 not appear to be of much significance or substance. ( 80 ) THE two other submissions of the learned Advocate-General, namely, that the appellant is guilty of 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 not 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 Annexure 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 relief 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. In 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 (26) Rex v. Kensington Income Tax Commissioners, Ex parte Princess Edmond De 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. 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. ( 81 ) LASTLY comes the point of defective verification. 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. Miter 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. ( 82 ) 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. ( 83 ) I have practically finished but, before I conclude, I deem it my duty to make one more observation. ( 84 ) 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 if 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. 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 contention. 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-General could not draw any better material to his assistance on this point. ( 85 ) 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 be 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 ). ( 86 ) WE also agree that there will be no order as to costs in this Reference. 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 ). ( 86 ) WE also agree that there will be no order as to costs in this Reference. ( 87 ) SANKAR Prasad Mitra, J.- I agree with the observations which have just been made by my learned brother, P. N. Mookerjee, J. ( 88 ) THIS appeal has been preferred against an order of Banerjee, J. dismissing the appellant's exparte application for a rule nisi upon the Hon'ble the Chief Justice to show cause why a Writ in the nature f Mandamus 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 in his rights and privileges. ( 89 ) IT appears from the petition and the annexures thereto that the appellant was appointed an additional Judge of this Court on February 11, 1949. He was made 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 Harries, 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 his date of birth. 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 his 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 Harries died. On August 12, 1959 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 after 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 the High Court Judge. On September 30, 1959 the appellant made accusations against the then Chief Justice of India for taking adverse views against him 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 attaining the age of 60. ( 90 ) THE comes the most important communication for the purpose of this application. 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 attaining the age of 60. ( 90 ) THE 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 regarding 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 1956, 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 most careful consideration to the explanation given by you, have decided, in consultation with the Chief Justice of India, that your age as given in the Bihar and Orissa Gazette dated the 26th June, 1918, should be taken as the correct age 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 entry in the said Gazette regarding your age, should be taken as the correct date of birth. You should, therefore, demit your office of Puisne Judge of the Calcutta High Court on the 26th December, 1961, after Court hours. You should, therefore, demit your office of Puisne Judge of the Calcutta High Court on the 26th December, 1961, after Court hours. " ( 91 ) 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 there had been some serious complaints about the manner in which judicial work had been transacted by you. " ( 92 ) IT also appears that the appellant saw the Chief Justice of India and on the 23rd 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, 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. Neither the Government of 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. 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 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. " ( 93 ) 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. ( 94 ) 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. 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 laced 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 cause list for me 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 forthwith 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 on 2nd January, 1962, I shall be reluctantly compelled to seek it from Court. " ( 95 ) THERE was no reply to this letter either. ( 96 ) THE appellant has also drawn our attention to Exhibit 'f' to his petition at page 49 of the Paper Book which is as follows: -"f" copy "registrar, A. S. , ( 97 ) 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 hrs', 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. 61, from the Secretary in the Ministry of Home Affairs to the Hon'ble Mr. Justice J. P. Mitter, 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. I, dated 16. 5. 61, from the Secretary in the Ministry of Home Affairs to the Hon'ble Mr. Justice J. P. Mitter, 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. " ( 98 ) 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. Mitter, 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 ). ( 99 ) NOW, Clause 36 provides, inter alia, that if a division Court is composed of there was 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 justice and the 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. ( 100 ) 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 (15) Mt. Sardar Bibi v. Haq Nawaz Khan, AIR 1934 Lah 371. 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. 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. ( 101 ) 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?" ( 102 ) THE learned Advocate-General contends that the appellant has no legal right to apply for a writ. The existence of a legal right or obligation, it is well known, is the foundation of every writ of mandamus: (17) Exparte, Napier, 18 QBD 692 at page 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. ( 103 ) 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. 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. ( 104 ) 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 exparte 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. ( 105 ) 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. 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. ( 105 ) 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 (27) Union of India v. T. R. Varma, AIR 1957 SC 882 , 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 (28) Sohanlal v. Union of India, AIR (1957) SC 529; (29) Gulabdas and Co. v. Assistant Collector of Customs, AIR (1957) SC 733; (21) Moti Das v. S. P. Sahi, AIR (1959) SC 942; (22) Union of India v. Ghaus Mohammad, AIR 91961) SC 1526; (30) Workmen of K. B. Co. v. K. B. Co. , 64 CWN 950 and (31) Ganesh Nayak v. L. A. Collector, 65 CWN 908. ( 106 ) 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. ( 107 ) BUT assuming that there are seriously disputed facts the Supreme Court of India in (18) K. K. Kochunni v. State of Madras, AIR 1959 SC 725 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. Subbarao, JJ. observes 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 asked 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. This Court may say that a particular writ asked 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 don not countenance the proposition that, on a 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 Chiranjitlal Chowdhari's case, 1950 SCR 869 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 Katchi Raning Rawat v. State of Saurastra, (1952) SCR 435 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. That decision was clearly one on merits and is entirely different from a refusal to entertain the petition at all. In Katchi Raning Rawat v. State of Saurastra, (1952) SCR 435 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 p peace were jeopardized 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 of 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 case of Ramkrishna Dalmia v. S. R. Tendolkar, J. , AIR 1958 Supreme Court 538. 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 be 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. 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 or 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. " ( 108 ) THESE observations of the Supreme Court in Kochunni's case 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 (18) AIR (1959) SC 733-34 ). 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 concerned 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. ( 109 ) 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. ( 109 ) 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 observations 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 minimum 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 had 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. 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 undergraduate at Oxford I myself did not obtain any certificate of age in terms of clause 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 it must have been obtained by any of my relations in India on the basis, presumably of the Matriculation age. " ( 110 ) THE learned Advocate-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 (26) The King v. Kensington Income Tax Commissioners Exparte Princess Edmond De Polignac, (1917) 1 KB at page 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 assessment upon the applicant for profits arising from foreign possessions. In this case the Income Tax Commissioners made an additional assessment 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 except for temporary purposes, nor with a view or intent of establishing her residence therein nor for a period equal to six months in anyone year. She stated in her affidavit that she was a 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 and other guests of 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 and 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 were 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 her application. It was held on appeal that the rule of the Court requiring uberrima fides on the part of an applicant for an exparte injunction applied equally to the case of an application for a rule nisi for a writ of prohibition. ( 111 ) 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. ( 111 ) 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 August, 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 that this application should not be dismissed on the ground of suppression of material facts as urged on behalf of the respondent. ( 112 ) 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 book ). ( 113 ) 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 (6) Daryao v. State of U. P. AIR 1961 Supreme Court 1457. ( 114 ) 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 follows: -". . . . . . ( 114 ) 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 follows: -". . . . . . 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 own 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 on falsehood. On this ground alone I would dismiss the petition. . . . . . . " ( 115 ) 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. ( 116 ) THE learned Advocate-General then drew our attention to some of the salient facts in this case. On the 16th May 1961 (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 in this appeal. There is no date of this exhibit. 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 in 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 22 December, 1961 and his second letter is dated the 31st December, 1961. This Court was moved on the 2nd January, 1962. ( 117 ) THE learned Advocate-General wants us to draw the inference from these dates that the Chief Justice while taking his Lordship's decision to 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. Mitter, 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. ( 118 ) ON the materials at present 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 letter of the 16th May, 1961. Ext. 'f' bears no date. We do not know when the order or direction his lords was communicated by his Secretary to the Registrar, Appellate Side. The only document 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. 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. ( 119 ) THE lat 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. ( 120 ) 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 Judge of this Court under Article 217 (1) of the Constitution, the Chief Justice had a statutory duty to allocate judicial work to him. The learned Advocate-General conceded that if the appellant was entitled to hold the office of a Judge of this Court under Article 217 (1) of the Constitution, the Chief Justice had a statutory duty to allocate judicial work to him. ( 121 ) 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 once 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 appointment. The action of the Government of India, the appellant has submitted, violates the provisions of this Article as well. ( 122 ) 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 ask 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, 1961. ( 123 ) 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. ( 123 ) 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. 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 of the Supreme Court or of a High Court depended on the opinion of a Secretary to the Government of India approved by his minister 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 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 (1 ). The position, therefore, apparently seems to be that, in the event of a dispute 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 determination 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. ( 124 ) 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, 1961 (Ext. 'd') that the Government of India have not in fact determined or ascertained the correct age of 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. 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 in 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 can not be asked to demit his office on a particular date as has been done in his case. ( 125 ) THIRDLY, it is stated in paragraph 15 of the petition that at the hearing 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. 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 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 be 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 mentioned it is because I do not feel that this Court should give the sort of remedy which is being prayed 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. " ( 126 ) I find that certain portions of these remarks of Khosla, C. J. have been quoted by the appellant in his letter to the respondent herein dated the 22nd December, 1961. If therefore, the letter of the 16th of May, 1961 contains a mere suggestion of the Home Ministry the argument that the respondent should not have acted on this letter and refused to assign Judicial work to the appellant cannot in my view be ignored without proper consideration or investigation. If therefore, the letter of the 16th of May, 1961 contains a mere suggestion of the Home Ministry the argument that the respondent should not have acted on this letter and refused to assign Judicial work to the appellant cannot in my view be ignored without proper consideration or investigation. ( 127 ) FOURTHLY, it is stated in paragraph 13 of the petition that the appellant pointed out many other cases 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 office, 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. ( 128 ) 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 look 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. (In fact, he was complaining that the Punjab High Court did not even look 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 I have already said we simply do not know what were the considerations that prevailed upon the respondent in deciding that no judicial 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. ( 129 ) MOREOVER, this application raises points to 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 to 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. ( 130 ) IN my view, therefore, a Rule nisi should be issued in this case in terms of clause (i) of the prayers in the petition. ( 131 ) 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, 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 Harries, 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 the 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. Some further correspondence followed and the Government of India made an offer of 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. 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 swathe Prime Minister of India and the Chief Justice of India and then addressed a representation dated October 7, 1961, to the 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 a 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 dated 16th May, 1961. 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 Court 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. 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 Court. 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. ( 132 ) THE matter before us is of very limited scope. The only question for determination at this stage is if on the facts disclosed in the application and the annexures thereto, there is a prima facie case for a Rule nisi against the Chief Justice. ( 133 ) THE appellant has raised several contentions to make out a prima facie case for 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. ( 133 ) THE appellant has raised several contentions to make out a prima facie case for 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 appellant's tenure as a Judge, 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. ( 134 ) THE appellant's next contention is that even if 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. 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. ( 135 ) 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 redetermined even in a Court of law. The independence of the Judiciary is said to be a first 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. ( 136 ) 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 provision 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 facie this question depends on the main question 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. 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. ( 137 ) 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. ( 138 ) 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. 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 not, therefore, think that Rule nisi should be refused merely on this ground. ( 139 ) 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 filed before the Punjab High Court. The appellant should have annexed these documents or copies thereof to his application or at least 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 Advocate-General has referred to the case of (26) King v. Kensington Income Tax Commissioner, Ex parte Princes Edmund De Polignac, (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. ( 140 ) 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 proceedings. Prima facie therefore, it cannot be said at this stage that Rule nisi should be refused as the appellant has no legal right. 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 proceedings. Prima facie therefore, it cannot be said at this stage that Rule nisi should be refused as the appellant has no legal right. ( 141 ) THE learned Advocate-General next refers to the Supreme Court decision in Raja Ram Chandra Reddy and another v. Rani Shankararamma and others, reported in AIR 1956 SC 319 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 Article 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. The 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. ( 142 ) 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 and we cannot shut our eyes to the fact that the question of the appellant's age has been 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 and 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 Singji and others v. State of Rajasthan and others, reported in (33) AIR 1955 SC 504 ; (28) Sovanlal v. The Union of India, reported in AIR 1957 SC 529 ; (29) Gulabdas and Company and another v. Assistant Collector of Customs and others, reported in AIR 1957 SC 733 ; (27) Union of India v. T. R. Verma, reported in AIR 1957 SC 882 ). In the case of (18) Kavalappara Kattarathibi Kochuni v. The State of Madras and others, reported in AIR 1959 SC 725 , 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 the case of (21) Moti Das and others v. S. P. Sahi and another, reported in AIR 1959 SC 942 , 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 the case of (22) Union of India v. Ghoush Mohammad, reported in AIR 1961 SC 1526 . Neither of these cases however made by reference to (18) Kochuni's case and neither can be said to have been disposed of strictly on this point. This view was later affirmed by the Supreme Court in the case of (22) Union of India v. Ghoush Mohammad, reported in AIR 1961 SC 1526 . Neither of these cases however made by reference to (18) Kochuni's case and neither can be said to have been disposed of strictly on this point. Since Kochuni's case, the Jammu and Kashmir High Court has in the case of (19) Caltex India Ltd. v. Excise and Taxation officer and others, reported in 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 the case of (20) Tilkayat Govindalalji and others v. The State of Rajasthan and others, reported in AIR 1962 Rajasthan 196 held that such questions should not be decided in proceedings under Article 226 of the Constitution and our own High Court has in the case of (31) Ganesh Narayan and others v. Land Acquisition Collector, Calcutta, reported in 65 CWN 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 but the Rajasthan and the Jammu and Kashmir High Courts had considered Kochuni's case. 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 question of fact involved or throw out the application on that ground. ( 143 ) THE learned Advocate-General lastly contends that the decision of the Punjab High Court operates as res judicata. The Supreme Court has in the case of (6) Daryao and others v. State of Uttar Pradesh and others, reported in AIR 1961 SC 1457 held that decisions in proceedings under Article 226 of the Constitution can 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 proceeding under Article 226 of the Constitution in some other High Court. Prima facie, therefore, decisions of one High Court in a proceeding under Article 226 of the Constitution may operate as res judicata in a proceeding under Article 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 house 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 administrative 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 legality, 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 administrative orders based on the decision of the Government of India. The Court acting judicially can certainly consider the legality, 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 administrative 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 reagitated 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 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 of 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 the 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. ( 144 ) 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 of this Court in respect of his administrative orders. A Special Bench of this Court in the unreported case of Prodyut Kumar Bose v. The Chief Justice, held that no mandamus lies against the Chief Justice of this Court in respect of his administrative orders. A Special Bench of this Court in the unreported case of Prodyut Kumar Bose v. The Chief Justice, 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 [ (3) AIR 1956 SC 285 ]. Subsequently in the case of (25) P. N. Mitter and others v. The Chief Justice of the High Court at Calcutta and another, reported in 65 CWN 920 two of the Judges of this Court, in view of this observation of the Supreme Court, proceeded on 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 as 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. 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. ( 145 ) THE result therefore, comes to this that in my opinion a Rule nisi should issue in this case. Application allowed. Rule Nisi issued.