Judgment

SINHA, C.J.I. (For himself and Kapur, Gajendragadkar, Wanchoo and J. C. Shah JJ.) : This appeal on a certificate of fitness granted by the High Court of Judicature, Jammu and Kashmir, is directed against the judgment and order dated December 7, 1954, in an application under Art. 32(2A) of the Constitution for issue of a writ, directions or order against the Union of India, through the Secretary, Ministry of Defence, New Delhi, as the first respondent and the State of Jammu and Kashmir through the Chief Secretary, Jammu and Kashmir State, as the second respondent.

2. The petition is based on the following allegations. The petitioner will be referred to as the appellant in the course of this judgment. He was aged 45 years 262 days on August 12, 1954. He was holding a regular commission in the Jammu and Kashmir State Forces, which were amalgamated with the Defence Forces of the Union with effect from September 1, 1949. The appellants holding the substantive rank of Lieut. Col, in the amalgamated forces had the right to continue in service until he attained the age of 53 years, which event will happen on November 20, 1961. The Government of India issued a letter dated July 31, 1954, retiring the appellant from the service with effect from August 12, 1954. This decision of the Government of India is not based on any allegations or charge of inefficiency, indiscipline or any other irregularity on the part of the appellant. The aforesaid decision of the Government of India prematurely retiring the appellant is impugned as illegal, unwarranted and discriminatory and as having been made in contravention of Art. 16(1) of the Constitution.

3. The petition was opposed on behalf of the respondents aforesaid on a number of preliminary grounds of which it is only necessary to mention the first, namely, that the authority against whom the writ is sought, that is to say, respondent No. 1, being outside the territorial limits of the jurisdiction of the Jammu and Kashmir High Court, the same was not maintainable. This preliminary objection was heard by a Division Bench, (Janki Nath Wazir, C. J. and M. A. Shahmiri, J.), Jammu and Kashmir High Court. By its judgment dated December 7, 1954, the High Court upheld the preliminary objection. The High Court, relying upon the decisions of this Court in Election Commission, India v. Saka Venkata Subba Rao, 1953 SCR 1144 and K. S. Rashid and son v. The Income Tax Investigation Commission etc., 1954 SCR 738 held that it had no jurisdiction to issue a writ against the first respondent and, therefore, dismissed the petition, but the High Court granted the necessary certificate under Art. 132 of the Constitution; hence this appeal.

4. The matter was first heard by a Bench of five judges. In the course of hearing it became clear to us that the appellant not only sought to distinguish the two decisions aforesaid of this Court, but questioned the correctness of those decisions. Hence this larger Bench was constituted in order to examine the correctness of the decisions aforesaid of this Court on the strength of which the High Court had refused to entertain the appellant s petition, on merits.

5. It has been argued on behalf of the appellant, in the first instance, that the previous decisions of this Court were distinguishable on the ground that they did not, in terms, consider the question whether the Government of India was amenable to the jurisdiction of the High Court under Art. 226 or of the Jammu and Kashmir High Court under Art. 32(2A) of the Constitution; that those provisions, on a true construction, would not stand in the way of the appellant, inasmuch as the Government of India has no location and its authority is present throughout the Union territory: that the correct test is whether or not the cause of action arose within the territorial limits of the High Courts jurisdiction; that the High Court was in error in holding that the term "authority" included a Government.

6. In answer to these conte