Mitter, J. - (1.) The appellant, first appointed an Additional Judge of this Court on February 11, 1949 and later confirmed as a permanent Judge in January 1950, claims to be in office still. He has preferred this appeal from an order of Banerjee, J. dismissing his application under Article 226 of the Constitution for the issue of a Rule on the Chief Justice to show cause why the latter should not give directions recalling some orders made by him allegedly Interesting with the discharge of his duties and functions of Judge of this Court.
(2.) Since no Rule was issued on the appellant's writ petition no affidavit-in-opposition was used and the materials before us are the said petition of the appellant with annexures thereto and the Judgment of 3 Division Bench of the Punjab High Court which has a very important bearing on the question before us.
(3.) It is not disputed that If the appellant is still a Judge he must be held entitled to the rights and privileges of the office and be allowed to discharge the duties attendant thereon. The controversy about the appellant's claim to continue in office arises out of certain proceedings had regarding the determination of his age. If he has not attained the age of 60 years -- the limit fixed under Article 217(1) of the Constitutions of India, for retirement of Judges of High Courts --his claim to the office must be upheld. In order to be entitled to the issue of a Rule the appellant must show that his assertion that he has not attained the age of superannuation is prima facie not open to question. Article 217(1) of the Constitution of India bearing on the question of a Judge's age is as follows: "Every Judge of a High Court shall be appointed by the President by warrant under his hand and seal after consultation with the Chief Justice of India, the Governor of the State, and, in the case of appointment of a Judge other than the Chief Justice, the Chief Justice of the High Court, and shall hold office, x x x x until he attains the age of 60 years.";