President's Order Not Decision Under Constitution; Matter Referred for Formal Decision

The Supreme Court held that the President's order dated May 15, 1961, did not constitute a decision under Article 217(3) of the Constitution. The Court directed the matter to be formally decided by the President under Article 217(3), allowing the appellant to present evidence regarding his date of birth. The outcome depended on the President's decision, with the appellant either continuing as a Judge until superannuation if favored or upholding the Chief Justice's retirement order if not. The appeal was disposed of without costs.

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Issues Involved:
1. Whether the President's order dated May 15, 1961, constitutes a decision under Article 217(3) of the Constitution.
2. Whether the appellant's date of birth was correctly determined as December 27, 1901.
3. Whether the appellant was entitled to a writ or order against the respondent.
4. The procedural fairness in determining the appellant's age.

Issue-wise Detailed Analysis:

1. Whether the President's order dated May 15, 1961, constitutes a decision under Article 217(3) of the Constitution:
The core issue was whether the President's approval on May 15, 1961, amounted to a decision under Article 217(3) of the Constitution. Article 217(3) mandates that if any question arises regarding the age of a High Court Judge, it should be decided by the President after consulting the Chief Justice of India, and such a decision is final. The Amendment Act of 1963 made this provision retrospective. The Court examined whether the President's approval, given before the amendment, could be considered a decision under this Article. The Court concluded that the informal and flexible approach adopted by the Government, including the offer of arbitration and consultations with successive Chief Justices, did not align with the formal requirements of Article 217(3). Therefore, the President's approval on May 15, 1961, could not be treated as a decision under Article 217(3).

2. Whether the appellant's date of birth was correctly determined as December 27, 1901:
The appellant had initially declared his birth date as December 27, 1904. However, evidence from the Bihar and Orissa Gazette and the I.C.S. examination indicated that his birth date was December 27, 1901. The Government of India, after consulting Chief Justices S.R. Das and B.P. Sinha, concluded that the appellant's birth date was indeed December 27, 1901. The appellant disputed this determination, arguing that the Executive was not competent to decide his age and that he had not been given a fair opportunity to present his evidence. The Court acknowledged that the appellant had a legitimate basis for his contention that his age could not be determined by the Executive and that he should have been given a chance to present his evidence.

3. Whether the appellant was entitled to a writ or order against the respondent:
The appellant sought a writ of mandamus against the Chief Justice of the Calcutta High Court, challenging the order that he had retired on December 27, 1961. The Court noted that the introduction of Article 217(3) had changed the legal landscape, making the President's decision on a Judge's age final and beyond judicial scrutiny. Given that the President's order on May 15, 1961, did not meet the requirements of Article 217(3), the appellant was entitled to have the matter formally decided by the President under the said Article. Consequently, the Court directed that the matter be placed before the President for a formal decision.

4. The procedural fairness in determining the appellant's age:
The Court emphasized the importance of procedural fairness and natural justice in determining the age of a Judge. The appellant argued that he had not been given a fair opportunity to present his evidence before the President's decision. The Court agreed, noting that the appellant's refusal to produce evidence before the Executive was justified, given his contention that the Executive was not competent to decide his age. The Court held that the appellant should be given a chance to present his evidence before a formal decision is made by the President under Article 217(3).

Conclusion:
The Supreme Court concluded that the President's order dated May 15, 1961, did not constitute a decision under Article 217(3) of the Constitution. The Court directed that the matter be placed before the President for a formal decision under Article 217(3). Both parties agreed that if the President's decision favored the appellant, he would continue as a Judge until he attained the age of superannuation. If the decision went against the appellant, the order of the Chief Justice of the Calcutta High Court would be upheld. The appeal was disposed of accordingly, with no order as to costs.

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