ISHAR DASS Vs. INCOME TAX OFFICER

JUDGEMENT

(1.) THE petitioner in this writ petition Shri Ishwer Dass, who is a permanent resident of the State of Jammu and Kashmir and a citizen of India having been born at village Birpur, Tehsil Samba, on November 18, 1911, entered the Service of the Income Tax Department of the Jammu and Kashmir State, as a clerk in the grade of 20 -1 -35 on October 19, 1937. He was holding a substantive post of a clerk in the grade of 70 -6 -130 on October 8, 1954, when the Income Tax Department of the State was amalgamated with the Central set up due to financial integration and he was taken as an Upper Division clerk on a permanent basis in the grade of 80 -5 -120 -8 -200 -10 -220. He was promoted as Head Clerk on April 26, 1962, and as a Supervisor, Grade II (i. e. 335 -15 -425) on September 3, 1966, and was transferred and posted as such to Jammu on October 9, 1967. When he was about to complete the age of 58 years the Income Tax Commissioner, Patalia, vide his No. Pen -9/ID/69/12190 directed the Income Tax Officer, Jammu, to submit the pension case of the petitioner. On getting scent of the matter, the petitioner made a representation to the Income Tax Officer, Jammu on September 15, 1969, contending that he had to retire on completing the age of 60 years and requesting that clarification of his compulsory retirement be made before the submission of his pension case. This representation was forwarded by the Income Tax Officer, Jammu, to the Income Tax Commissioner, Patalia, for clarification. The Commissioner vide his No. PF -III(I) -l -2/14720 dated October 10, 1969, wrote back to the Income Tax Officer, Jammu, intimating to him that the petitioner had to retire at the age of 58 years in view of the orders contained in the Ministry of Finance OM Nos. P -5(14) -E -III/51, dated November 8, 1951 and December 10, 1951 and it was not feasible to retain him any -further. He further directed the Income Tax Officer, Jammu, to send the pension case of the petitioner without any delay. The petitioner thereupon made another representation to the Income Tax Officer, Jammu, on October 21, 1969, praying that he be retained in Service till he completed the age of 60 years. This representation was also forwarded to the Income Tax Commissioner, Patalia, who rejected the same vide his No. PE III(I)/l -2/16744 dated October 31, 1969, observing that the transferred employees of the Jammu and Kashmir State being governed by the same rules as were applicable in the case of Part "B" states transferred employees the contention of the petitioner that he had to be retained in service till he attained the age of 60 years was not tenable. The petitioner was thereupon asked by the Income Tax Officer, Jammu, to hand over the charge of his office on November 17, 1969 (afternoon) and treat himself as retired from service with effect from that date. Aggrieved by this order, the petitioner served a notice on the Income Tax Commissioner, Patalia, calling upon him to reinstate and retain him in service until he completed the age of 60 years in view of Government Order Nos. OM 33/18/62 -Ests (A), 33/62/63 -Ests (A) and 33/15/15/66 -Ests (A) dated November 30, 1962, December 31, 1963, and November 10, 1966, respectively and Article 459 of the Civil Service Regulations or give him two years pay failing which he would seek his remedy in a court of law. As the notice did not evoke a favourable response, the petitioner filed the present petition on April 27, 1970, challenging the order of his retirement.

(2.) AT the hearing of the petition, which initially came up before Honble Bhat J. it appears to have been contended on behalf of the respondent that the petition was not maintainable as it sought the issuance of a writ against an authority whose seat or office was situate beyond the territorial jurisdiction of this court. It seems to have been on the other hand, submitted by Mr. I. D. Grover, appearing on behalf of the petitioner that the High Court could issue the writ in view of Article 226(1 -A) introduced in the Constitution by the Constitution (Fifteenth Amendment) Act, 1963, which ipso facto applied to the State of Jammu and Kashmir. As the Honble Judge considered that the point raised by Mr. Grover required an authoritative pronouncement he referred the case to a Division Bench. This is how the petition has been placed before us.

(3.) AT the hearing of the petition before us, the learned counsel for the parties have reiterated the submissions made by them before Honble Bhat J. elaborating his submissions Mr. Grover has urged that Article 226(1 -A) introduced in the Constitution by the Constitution (Fifteenth Amendment) Act, 1963 which came into force on October 5, 1963, applies pro -porio vigore to the State because the Parliament had power to legislate with regard to the jurisdiction of the State High Court in consequence of the application of entries 78, 79 and 95 of List 1 of the 7th Schedule of the Constitution.