( 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".

( 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. In support of t