JAGDISH SAHAI, J. : This criminal revision was listed for hearing before Satish Chandra, J. who along with Capoor and Tripathi, JJ., was appointed to be an Additional Judge of this Court in the beginning of October 1963. All of the three made and subscribed to the following oath in the presence of the Chief Justice of the Court on 7-10-1963 :

"I _____, having been appointed Additional Judge of the High Court of Judicature at Allahabad do swear in the name of God that I will bear true faith and allegiance to the Constitution of India as by law established, that I will duly and faithfully to the best of my ability, knowledge and Judgment perform the duties of my office without fear or favour, affection or ill-will and that I will uphold the Constitution and the laws."

2. The Chief Justice purported to act under a letter of authority, dated August 25, 1963 addressed to him by the Governor of Uttar Pradesh. That letter reads as follows :

"Governor

Uttar Pradesh. Governor's Camp,

Uttar Pradesh, Allahabad

August 25, 1963.

My dear Chief Justice,

Thanks for your letter of the 24th August. In exercise of the power conferred by Article 219 of the Constitution of India, I appoint the Chief Justice, or the Acting Chief Justice, Uttar Pradesh and during his absence from Allahabad, the senior-most puisne Judge available at the moment at Allahabad as the person in whose presence every person appointed to be a Judge of the High Court of Uttar Pradesh, before he enters upon his office, makes and subscribes oath or affirmation according to the form set out for the purpose in the Third Schedule of the Constitution of India.

Yours sincerely,

Sd/- Bishwanath Das.

(Bishwanath Das).

Mr. M.C. Desai,

Chief Justice,

High Court, U.P.

Allahabad."

3. On 18th October, 1963, it was discovered that the Constitution Sixteenth Amendment Act (hereinafter referred to as the Amending Act), 1963 had received the assent of the president on 5th October, 1963 and by means of Section 5 of that Act, the form of the oath required to be made by a person appointed to be a Judge of a High Court had been slightly amended. Consequently, the same day, in the afternoon, the three judges mentioned above, made and subscribed oath in the presence of the Chief Justice in the following amended form :

"I______, having been appointed an Additional fudge of the High Court of Judicature at Allahabad do swear in the name of God that I will bear true faith and allegiance to the Constitution of India as by law established, that I will uphold the sovereignty and integrity of India, that I will duly and faithfully and to the best of my ability, knowledge and judgment perform the duties of my office without fear or favour or ill-will and that I will uphold the Constitution and the laws."

The revision application came up for heaving before Satish Chandra, J. on 23rd October, 1963, when a preliminary objection was taken that not having taken the oath in the correct form, he could not act as a Judge and the oath that he made and subscribed on 18th October, 1963, was bad as the Chief Justice could not have acted for the Governor without there being a fresh and specific appointment of the Chief Justice by the Governor to be present and witness the oath being made and subscribed by Satish Chandra, J. Satish Chandra, J. then made

a reference saying "I refer these questions to a larger bench for decision" without framing the questions. The matter has now been placed before us.

4. The oath that the learned Judges mentioned above made on 7th October, 1963, would have been correct if the Amending Act had not been passed or had not received the assent of the President before 7th October, 1963. Three submissions have been made before us by Sri S.N. Misra. They are :

1. That the Amending Act having received the assent of the President on 5th October, 1963, all persons who took oath of of