The Chief Justice is not bound to disregard the decision of the Ministry of Home Affairs determining the retirement age of a Judge and it is not his duty to determine the retirement age of a Judge.

B. N. BANERJEE, J.

( 1 ) THE petitioner was appointed an Additional Judge of this Court on February 11, 1949. He was made permanent on January 23, 1950.

( 2 ) UNDER Section 220 of the Government of India Act, 1935 and its corresponding article in the Constitution, Article 217 the petitioner was to bold office until he attained the age of 60 years.

( 3 ) ACCORDING to the petitioner he was born on December 27, 1904 and the age that he gave out, at the time of his appointment as a Judge, was based on the aforementioned date. The petitioner, therefore, takes the stand that he is not required to demit his office earlier than December 27, 1964.

( 4 ) IN April 1959, after the petitioner had been in office for upwards ten years, the Home Minister, Government of India, tried to reopen the question of the petitioner's age, on the ground that there was a disconformity between the petitioner's age as declared and his Matriculation age, as appearing in the Bihar and Orissa Gazette. I need not concern myself, in this petition, with the attempts made by the petitioner to dissuade the persons or authorities concerned either from reopening his age of from proceeding on the basis of his age, as appearing in the Bihar and Orissa Gazette (that is to say, his Matriculation age ). Ultimately, however, the Secretary, Ministry of Home Affairs wrote a letter, dated May 16, 1961, to the petitioner the material portion of which is set out below :"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 and 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 yon 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. This date viz. , 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 tile 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 viz. 27th December, 1901, as recorded at the time yon 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 boors. "

( 5 ) THE petitioner disliked the suggestion contained in the letter and took up the matter with the Chief Justice of India. He received the following reply from the Chief Justice of India, dated August 22, 1961 :" Yes, I confirm what I told you in the course of the talk I had with yon a few weeks ago that it was decided that yon 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 this 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

Click Here to Read the rest of this document