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Judgment
K. Govindarajan, J.—The Petitioner, a practising Advocate of this Court has filed the above W.P.S.R. No. 100460 of 1998 as a party-in-
person to issue a Writ of Quo-Warranto against the first Respondent, questioning the authority of the first Respondent to continue in his office
beyond 10.12.1998, as on the said date the first Respondent attains the age of superannuation.
The above unnumbered writ petition is posted before the Court to decide regarding maintainability of the petition.
According to the Petitioner, the first Respondent was born on 11.12.1936 in the State of Karnataka, and in the Secondary School Leaving
Certificate, his date of birth was given as 11.12.1936. Even while he had enrolled as an Advocate, he had given the date of birth only as
11.12.1936. When he was appointed as Government Pleader, he had given date of birth only as 11.12.1936, which reflects in the Gazette
published by the Government of Karnataka. Subsequently, the first Respondent has obtained a certificate from the Tahsildar, declaring that as per
G.O.ED.16 DTJ 85 dated 2.12.85, his date of birth is 11.12.1938. According to the Petitioner, there is no such Government Order in existence.
On the basis of the certificate the first Respondent got the School Certificate and records of the Bar Council, showing date of birth as 11.12.1938.
According to the Petitioner, according to the correct date of birth, the first Respondent can be in the office till 10.12.1998 and not later than that
date and so the first Respondent is continuing office without any legal authority.
There is no dispute in this case, the President of India while appointing the first Respondent as Judge of the Karnataka High Court under Article
217 of the Constitution of India accepted the date of birth given by the first Respondent based on records produced in support thereof as
11.12.1938. The said warrant issued under the hand and seal of the President in accordance with Article 217 of the Constitution of India is valid
and the first Respondent will continue till he attains the age of sixty two as per the said date of birth, until the President takes decision under Article
217(3) of the Constitution of India. In short there is no dispute about the first Respondent''s appointment as Judge and the dispute is only his
continuance in the office after 11.12.1998.
Under the guise of filing the present writ, the Petitioner is trying to question the warrant issued by the President appointing the first Respondent
as a Judge accepting his date of birth as 11.12.1938. On the other hand, the legality of the proceeding, acceptance of the records produced by the
first Respondent and of the recommendation of the Chief Justice on the basis of those records by the President in issuing the warrant is challenged
by the Petitioner. In my opinion the Petitioner has come to this Court by way of the above writ petition without appreciating the scope of Article
217(1)(b) and (3) of the Constitution of India. Once warrant is issued by the President, the Judge shall hold office until he attains the age of sixty
two years on the basis of date of birth given and considered for his appointment. So, this Court cannot now exercise powers under Article 226 of
the Constitution of India to sit on appeal on the decision of the President who appointed the first Respondent by issuing warrant on the basis that
his date of birth is 11.12.1938.
The Petitioner, to sustain his submission that the writ petition is maintainable, has relied on the decision in L. Chandra Kumar Vs. Union of India
and others, . According to the Petitioner, the power of judicial review over the legislative action vested in the High Court under Article 226 of the
Constitution of India and in the Supreme Court under Article 32 is an integral and essential feature of the Constitution, constituting its basic
structure.
In Union of India (UOI) Vs. Jyoti Prakash Mitter, , the Apex Court while dealing with the scope of proceedings under Article 217(3) of the
Constitution of India held that ""the President is performing a judicial function when he determines a dispute as to the age of a Judge"". Article 217(3)
is incorporated by fifteenth Amendment Act in the Constitution. Thereafter, any question about and on the basis of the age of a Judge of a High
Court has to be determined only in one way, and that is the way prescribed by Article 217(3) of the Constitution. In other words, Article 217(3)
has impliedly taken away the writ jurisdiction under Article 226 to raise doubt about the first Respondent''s right to continue after 11.12.1998.
If any dispute arises as to the age of the Judge of a High Court, power is given to the President to decide about the issue in consultation with the
Chief Justice of India under Article 217(3) of the Constitution of India which reads as follows:
If any question arises as to the age of a Judge of a High Court, the question shall be decided by the President after consultation with the Chief
Justice of India and the decision of the President shall be final.
In view of the said specific provision under the Constitution, it is for the President to decide about the issue regarding the age of a Judge of a
High Court and the said decision shall be final. So, this Court at this stage cannot entertain the writ petition as framed. While dealing with the similar
issue on an earlier occasion, the Division Bench of this Court in Writ Appeal No. 863 of 1991, based on the said Article has held that any question
as to the age of a High Court Judge can be decided only by the President and none else and no Court can claim jurisdiction to deal with that
question. The Division Bench has relied on the decision of the Supreme Court in Jyoti Prokash Mitter Vs. Hon''ble Mr. Justice Himansu Kumar
Bose, Chief Justice, High Court, Calcutta and Another, . Even with respect to the issue as to whether the President can be asked to deal with the
said issue, the said Division Bench, relying on Article 361 of the Constitution of India has held as follows:
A plain reading of the above Article will suggest that no Court can compel the President to exercise any power to perform any duty. Equally, the
Court cannot compel the President to forbear from exercising his power or performing his duties. In other words, the President is not amenable to
the Writs or directions issued by any Court.
The said Division Bench has further held as follows:
We have seen that a Constitution Bench has taken the view on the scope of Article 217(3) of the Constitution that the decision of the question of
age of a Judge of the High Court is left to be taken by the President by exercising his discretion subject to the condition contained in that Article
and subject to the genuineness and seriousness of the claim. If that be so, can a writ of mandamus be issued compelling the president to exercise
his power? In our view, on a reading of Article 217(3) read with Article 361 of the Constitution of India, the answer is in the negative.
Though in the recent judgment of the Apex Court in Special Reference No. 1 of 1998 under Article 143(1) of the Constitution of India,
reported in JT 1998 (7) SC 304, it is held that judicial review is also available when the appointee is found to lack eligibility, no such situation
arises in this case. As stated earlier, there is no dispute about the appointment of the first Respondent and the grievance is only with reference to
continuance of office after 11.12.1998.
In view of the abovesaid discussion, I find that this Court cannot entertain this writ petition, and so the W.P.S.R. No. 100460 of 1998 is
dismissed as not maintainable. Consequently, W.M.P.S.R. No. 100462 of 1998 is also dismissed.