Judgment

GAJENDRAGADKAR, J. : The short and initial question as to whether a Rule Nisi should be issued on the petition filed by the respondent Jyoti Prokash Mitter, a Judge of the Calcutta High Court, against the appellant the Chief Justice of the said High Court, has given rise to a difference of opinion amongst the Judges of the Calcutta High Court who have dealt with it. By his petition, the respondent has claimed a writ in the nature of mandamus and/or appropriate directions, order or writs under Art. 226(1) of the Constitution recalling the order passed by the appellant by which he has decided that the respondent has retired from his post as a Judge with effect from December 27, 1961. The respondent also claims an appropriate order or direction restoring to him his duties and functions as well as his rights and privileges as a Judge of the said High Court. This petition was filed by the respondent on January 2, 1962. B. N. Banerjee, J. who heard this petition held that it was not necessary to issue a Rule Nisi on it, and so, on January 3, 1962, he dismissed the petition in limine.

2. The respondent then took the matter before a Division Bench by an appeal. Mitter and Laik JJ. who constituted the Appellate Bench differed; Mitter J. held that the trial Judge was right in refusing to issue a Rule nisi, whereas Laik J. took a contrary view. On this difference between the two learned Judges, the learned Chief Justice constituted a Special Bench of three learned Judges to deal with the appeal, P. N. Mookerjee, Sankar Prasad Mitra and R. N. Dutta JJ. who constituted the Special Bench heard the matter and delivered three concurring judgements. They unanimously came to the conclusion that the trial Judge was in error in refusing to issue a Rule nisi, and so, they allowed the appeal preferred by the respondent and directed that a Rule nisi in terms of prayer (1) of the petition should be issued. It is against this order that the appellant has come to this Court by special leave; and the only question which is sought to be raised for our decision is whether the Special Bench which heard the appeal was justified in reversing the decision of the trial Judge by which he refused to issue a Rule nisi on the respondent s petition.

3. The respondent s case as set out in the petition shows that the main basis of his grievance is that whereas he was born on December 27, 1904, the impugned order passed by the appellant proceeds on the basis that he was born on December 27, 1901. There is no doubt that under Art. 217(1) of the Constitution, the respondent would not be entitled to hold office as a Judge on attaining the age of 60 years; but he contends that he would attain the age of 60 years on December 27, 1964. It appeals that the respondent who was enrolled as a Barrister of the Calcutta High Court on May 5, 1931, was appointed an Additional Judge of the said High Court on February 11, 1949 and became a permanent Judge in January, 1950. At the time of his appointment the respondent had given the date of his birth as December 27, 1904. In April, 1959, the Ministry of Home Affairs in the Government of India raised the question about the correctness of the respondent s age as stated by him at the time of his appointment and as entered in the High Court s records. It would appear that the attention of the Home Minister, Government of India, was drawn to an extract from the Bihar and Orissa Gazette of June 26, 1918 which contained the results of the Matriculation Examination held by the Patna University in April, 1918. The relevant information contained in the said extract showed the age of the respondent at the date of the examination as 16 years and 3 months. This would tend to show that the respondent was born on December 27, 1901. It also appears that the Home Minister came to know that when the respondent sat at the open competitive examination for the I. C. S. in July/August, 1923, the date of the respondent s birth was given and shown as De