Judgment

GAJENDRAGADKAR C.J.I.: The short question which arises in this appeal by special leave is whether the order passed by the President of India on May 15, 1961, approving the action which was proposed to be taken against the appellant, Jyoti Prokash Mitter, amounts to a decision on the question about the appellant s age as a Judge of the Calcutta High Court under Art. 217(3) of the Constitution. In the note placed before the President along with its accompaniments it was proposed that the appellant should be informed that his correct date of birth had been determined to be December 27, 1901, and so, he should demit his office of puisne Judge of the Calcutta High Court on December 26, 1961 on which date he would attain the age of 60. The draft of the letter which was intended to be sent to the appellant in that behalf was also placed before the President. On the file, the President made an order "approved"; and the question is whether this is an order which can be related to Article 217(3). It is true that this order was passed on May 15, 1961, whereas clause (3) of Art. 217 which was added in the Constitution by the Constitution (Fifteenth Amendment) Act, 1963, came into force on October 5, 1963. Section 4(b) of the Amendment Act, however, provides that the said clause shall be inserted and shall be deemed always to have been inserted in the Constitution. In other words, in terms, the insertion of the relevant clause is made retrospective in operation. That is how it has become necessary to enquire whether the order passed by the President on May 15, 1961 can be said to amount to a decision within the meaning of the said clause.

2. Writ Petition No. 13 of 1962 from which this appeal arises was filed by the appellant in the Calcutta High Court on January 2, 1962. By his petition, the appellant claimed a writ in the nature of mandamus and/or appropriate directions, order or writs under Art. 226(1) against respondent No. 1, the Chief Justice of the Calcutta High Court, requiring him to recall the order passed by him by which he had decided that the appellant had retired from his post as a Judge with effect from December 27, 1961. This writ petition has had a chequered career. Banerjee J. before whom it came for the issue of a Rule Nisi, was not satisfied that it was necessary to issue Rule Nisi on it, and so, he dismissed the appellant s writ petition in limine on January 3, 1962.*

* Reported in AIR 1963 Cal 178.

3. The appellant challenged the correctness of this decision by preferring an appeal under Letters Patent before a Division Bench of the said High Court. Mitter and Laik JJ. who constituted this Bench, however, differed, and so, the learned Chief Justice had to constitute a special Bench of three learned Judges to deal with the appeal. P. N. Mookerjee, Sankar Prasad Mitra and R. Dutt, JJ. who constituted this special Bench, heard the matter and delivered three concurring judgments.** They were, however, unanimous in holding that Banerjee, J. was in error in refusing to issue a Rule Nisi, and so, they allowed the appeal preferred by the appellant and directed that a Rule Nisi in terms of prayer (1) of the petition should be issued.

** Reported in AIR 1963 Cal 483.

4. Against this order, respondent No. 1 came in appeal to this Court by special leave. By its judgment pronounced on the 14th October, 1963***, this Court held that the Special Bench was right in directing a Rule Nisi to be issued on the writ petition filed by the appellant, and so, the appeal preferred by respondent No. 1 was dismissed. The writ proceedings thus went back to the Calcutta High Court for disposal on the merits in accordance with it.

*** Reported in AIR 1964 SC 1636.

5. At this stage, a Special Bench consisting of five learned Judges of the High Court heard the matter. The area covered by the controversy between the parties was very wide and several constitutional questions of law were exhaustively argued before this Special Bench. All the learned