M L KALIA Vs. UNION OF INDIA

JUDGEMENT

(1.) Petitioner was appointed Income-tax Inspector in the Department of Income-tax on 4-2-1949. He was later on confirmed against this post. On 18-9-1958 he was promoted as officiating temporary Income-tax Officer in Class II service. He was, however, not confirmed as Income-tax Officer nor was permitted to cross efficiency bar in that grade. Petitioner made a visit to Kashmir, where he stayed with an assessee and presumably at his (assessee's) cost. On this charge, an inquiry was held against the petitioner. Disciplinary Authority found him guilty and by order dated 15th Nov. 1969, imposed upon him penalty of reduction of his pay for four years. The petitioner's appeal against this order before the Central Board of Direct Taxes of New Delhi succeeded and order passed by the Disciplinary Authority was set aside. It was found that although the petitioner stayed with an assessee during his visit to Kashmir, the charges could not be proved beyond doubt. The petitioner then continued to serve as Income-tax Officer class II. By order dated 22/23-12-1975 passed by Commissioner of Income-Tax, M. P. (Appropriate Authority) (Annexure-M), the petitioner was compulsorily retired from service in exercise of powers conferred under Fundamental Rule 56 (j) (Central). The order recites that an amount equal to three month's pay and allowances shall be paid to the petitioner. The petitioner was paid a sum of Rs. 2705/- alongwith the order directing; his compulsory retirement. A sum of Rs. 970/- was further paid to the petitioner on 24-1-1976 during the pendency of this petition. The petitioner's representations against his compulsory retirement did not bear any fruit. Petitioner then has come up before this Court and challenges the order of his compulsory retirement by this writ petition under Art. 226 of the Constitution of India.

(2.) First contention raised by Shri Nair, learned counsel for the petitioner, is that Fundamental Rule 56 applies only to permanent employees and since the petitioner was only officiating against the Class II post and was not thus "In Class I or Class II service", action could not be taken against him under Fundamental Rule 56 to compulsorily retire him from the post of Income-tax Officer, Class II, against which post he was only officiating. He tried to support his sub-mission by a decision of the Delhi High. Court in K. R. Tahiliani V/s. Union of India Civil Writ No. 1311 of 1975, D/- 23-5-1977. We are unable to accept this contention advanced by the learned counsel. Fundamental Rule 56 in so far as is relevant for the purposes of this case is reproduced below:

(3.) Learned counsel for the petitioner then urged that if applied to officiating for temporary Government servant, Fundamental Rule 56 (j) (ii) can be misused. According to the learned counsel, it shall give a handle to the appropriate authority to discriminate. We do not agree. Sub-rule (j) requires an appropriate authority to first form an opinion that retention of Government servant after he has attained the age of fifty years or fifty-five years but before fifty eight years is in the public interest. It is the formation of such opinion that clothes the authority with a right to exercise powers under Fundamental Rule 56 (j). The contention of the learned counsel, therefore, is without any foundation. Learned counsel then submitted that Fundamental Rule 56 lays no guidelines for its application. In absence of guidelines, according to the learned counsel, instructions issued from time to time by the Government shall be binding. He referred to us certain instructions for application for Fundamental Rule 56 (j). Relying upon instruction No. 3 (iii) learned counsel urged that since the petitioner was being compulsorily retired on the ground that he was not found suitable to continue in his officiating post, he should not have been made to retire from his service. The relevant instruction reads as follows: