Judgment

SHAH. C.J.I. : - Jyoti Prakash Mitter hereinafter called the respondent - was a candidate for the matriculation certificate examination of the Bihar University held in April, 1918. In the Bihar Government Gazette declaring him successful the age of the respondent was shown to be 16 years 3 months in April 1918. The respondent offered himself as a candidate for admission to the Indian Civil Service at an examination held on 1923 by the United Kingdom Civil Service Commission. On that occasion he declared that his date of birth was December 27, 1901. The respondent joined the High Court Bar at Calcutta in May 1931. On February 11, 1949 the respondent was appointed as Additional Judge and on December 26, 1949 he was recommended for appointment as a permanent Judge. He then declared that he was 45 years of age.

2. In 1956 the Government of India collected information relating to the educational and other qualifications of the Judges of the High Courts and their respective dates of birth. The declaration made by the respondent that his date of birth was December 27, 1904 was accepted. The Government of India having received information that the true date of birth of the respondent was December 27, 1901 commenced an enquiry. On April 17, 1959 the Chief Justice of the High Court of Calcutta asked the respondent to make a formal statement relating to his date of birth. On May, 27, 1959 the respondent wrote to the Chief Justice of the High Court, Calcutta that his age entered in the matriculation certificate was incorrect, and that he was shown to be three years older than he actually was, because a true declaration of his age would have prevented him from appearing for the matriculation examination in 1918. The respondent also tendered an affidavit of one Panchakari Banerjee that the question of his age was discussed with Sir Arthur Trevor Harries who was 1949 the Chief Justice of the High Court of Calcutta.

3. A suggestion made by the Chief Minister of West Bengal that the respondent may agree to abide by the decision of the Chief Justice of India on the question of his true date of birth was not accepted by him. The respondent also did not furnish any material in support of his case that he was born in December 1904. By order dated May 15, 1961 the President of India on the recommendation of the Minister of Home Affairs directed that the age of the respondent be determined on the basis of the date of birth declared in the matriculation certificate.

4. The respondent then moved a petition in the High Court of Punjab at Delhi for a declaration that he was entitled, to hold office till December 27, 1964 and for a writ of mandamus restraining the Union of India from giving effect to the order of the President. The petition was dismissed. The respondent then filed a petition on January 2, 1962 in the High Court of Calcutta impleading the Chief Justice of the High Court of Calcutta as a party respondent praying for an order directing the Chief Justice to treat him as continuing in office till December 27, 1964 and assign judicial work" to him. He urged that the decision of the Government of India in pursuance of which the Chief Justice of the High Court had acted was "illegal arbitrary and unconstitutional" and that the Chief Justice had no jurisdiction to act upon that decision. That petition was dismissed in limine. But a Special Bench of the High Court in appeal filed by the respondent directed that rule nisi be issued. This Court dismissed an appeal against the order of the High Court Hon ble Mr. Justice Himansu Kumar Bose. Chief Justice, High Court. Calcutta v. Jyoti Prakash Mitter, AIR 1964 SC 1636. A Special Bench of five Judges of the Calcutta High Court. then heard the petition. The petition filed by the respondent was ordered to be dismissed and the rule was discharged. This Court in appeal against the order of the High Court: Jyoti Prakash Mitter v. Hon ble Mr. Justice Himansu Kumar Bose. Chief Justice, High Court, Calcu