E S VELAYUDHAN Vs. COMMISSIONER OF INCOME-TAX

JUDGEMENT

(1.) This writ petition filed under Article 226 of the Constitution for the issue of a Writ in the nature of Certiorari or any other appropriate Writ quashing the notice dated 12-5-1964 and the order dated 31-8-1964 issued by the Commissioner of Income-tax, Andhra Pradesh (the first respondent) directing the petitioner to retire from 1-9-1964 was referred for disposal to a Bench by our learned brother Justice Gopal Rao Ekbote before whom it came up in the first instance.

(2.) The petitioner was originally recruited as a clerk in the Income-tax Officer's office, Cochin on 29-9-33 & was a permanent member of the public services of the erstwhile Cochin State till the date of formation of the United States of Travancore-Cochin on 1-7-1949 and since then a member of the Public Services of the Travancore Cochin State till the date of the federal financial integration of Part B States on 1-4-1950 pursuant to the agreement between the Rajpramukh of Travancore-Cochin and the President of India on 2-5-1950. Consequent on the integration and the financial integration, the members of the Public Services were given the guarantee that the permanent members of the Public Services of the erstwhile Part B State will be continued in service on terms not less advantageous than those existing on 30-6-1949 and 31-3-1950. The petitioner on the date of the financial integration and on the subsequent date of the merger of the State was an officiating Income-tax Inspector, but his claims for integration and absorption as an Income-tax Officer of the Central Services were overlooked and he was compelled to file a declaratory suit on 29-2-1956 which was substantially decreed on 25-9-1960 by the Sub Court at Ernakulam declaring him to be deemed to have been appointed as an I. T. O. with effect from 6-4-1951 on the date when there was a permanent vacancy, in the central scale of pay and partly decreeing the arrears of salary The decree of the Sub-Court it is alleged made the Commissioner of Income-tax. Kerala (respondent 2) and the Secretary, Central Board of Direct Taxes, New Delhi (respondent 3) to defeat the fruits of the decree by filing an appeal in the Kerala High Court and also initiating disciplinary proceedings against the petitioner. The appeal preferred by the Government was allowed and the decree of the Subordinate Judge was set aside by the High Court on 6-12-1962. The Commissioner of Income-tax, Kerala in the disciplinary proceedings initiated against the petitioner on 31-1-1961 charged him with having harassed the asses- sees and behaving badly towards the Assistant Commissioner. The petitioner filed his objections on 30th August, 1961 which were rejected on 28-10-1961. The petitioner then issued the suit notice to the Commissioner on 4-1-1962, and thereafter the petitioner was transferred on 19-1-1962 to Rajahmun-dry. He then proceeded on leave and took charge at Rajahmundry as Income-tax Officer on 1610- 1962 Subsequently on 31-1-1963, the petitioner made a request for transfer to Kerala State failing which he may be permitted to retire. This request for transfer to his native State and also for voluntary retirement was turned down on 28-31963. Two increments were refused to the petitioner by an order dated 9-12-1963 on the ground that he had not passed the Hindi and Marwadi tests required under the rules. Relating to the charges framed against him by the second respondent, the Commissioner of Income-tax, Kerala, he was asked to appear on 16-9-1963, but without appearing before the enquiry officer he sent his written objections on 14-11-1963. The enquiry officer who conducted the enquiry in his absence proposed compulsory retirement as punishment on proof of the charges. On the basis of the proposed punishment a second show cause notice was issued by the Commissioner of Income-tax, Andhra Pradesh (respondent 1) on 27-11-1963 to show cause why he should not be compul-sorily retired. The petitioner than approached the Kerala High Court by way of a Writ Petition O. P. 187/64 on 28th January, 1964 and his application for stay of passing of final orders by the Commissioner (first respondent) was dismissed on 7-3-1964 by the Kerala High Court On 13-3-1963, the first respondent the Commissioner of Income-tax, Andhra Pradesh passed final orders withholding two increments. The Kerala High Court on 14-7-1964 dismissed the writ petition filed by the petitioner as infructuous. On 10-4-1964. the first respondent it is said examined the petitioner and asked him whether he stood by his earlier request made in his letter dated 31-3-1963 for voluntary retirement and the pelitioner informed the Commissioner (first respondent) on 13-4-1964 that he was not willing to retire from service. Thereafter on 12-5-1964 a notice of retirement of the oetitioner with effect from 1-9-1964 was served on the ground that he had completed 30 years of service and an order was passed on 31-8-1964 re-tiring him from service.

(3.) It is the case of the petitioner that he has been retired against his will on the ground that he had completed 30 years of qualifying service applying the Liberalised Pension Rules, 1950 and that the relevant rule. Rule 2(2) or other liberalised pension rules have no legal effect and that they cannot override the fundamental rules and the Civil Service Regulations which derive theit authority under Article 309 of the Constitution It is also his case that permanent Govemment servant of the Public Services of Kerala who was later absorbed in the Central Services is governed by the Cochin Service Regulations and in the Cochin Service Regulations there is no provision for compulsory retirement and the Liberalised Pension Rules therefore can have no application to a person who is governed by the Cochin Service Regulations. It is also contended by him that he has not completed 30 years of qualifying service and that the certificate given by the Accountant General that he had completed 30 years of qualifying service is incorrect and that the compulsory retirement now sought against him is only a ruse for punishing him and depriving him of his emoluments. The im-qugned action thus contravenes the provisions of Article 311 of the Constitution. It is also alleged that his retirement has not been ordered in the interests of the public and in good faith.