State of Jammu Kashmir Vs. Mir Gulam
Rasul  INSC 64 (23 February 1961)
GUPTA, K.C. DAS AYYANGAR, N. RAJAGOPALA
CITATION: 1961 AIR 1301 1961 SCR (3) 969
CITATOR INFO :
RF 1975 SC1208 (16)
Fundamental rights-Equality before law-Breach
of law, if amounts to violation of equal Protection of law-Writ Petition-No
fundamental right involved Duty of High Court- Constitution of India, Arts. 14,
The Government of Jammu and Kashmir on the
basis of the report of the commission of enquiry set up by it demoted the
respondent who had been suspended earlier. The respondent moved the Jammu and Kashmir High Court under Art. 32(2A) of the Constitution of India as applied to
the State of Jammu and Kashmir for a writ, inter alia, questioning the validity
of the order suspending and demoting him, alleging violation of rules of
natural justice by the commission of enquiry and breach of statutes and rules
of service. Articles 226 and 311(2) of the Constitution of India bad not been
applied to the State of Jammu 970 and Kashmir. The High Court acting under Art.
32(2A) set aside the orders suspending and demoting the respondent.
Held, that the High Court had no powers to
act under Art.
32(2A) of the Constitution of India as the
writ petition did not disclose a violation of any fundamental right.
Held, further, that the breach of a law by
the' Government, if any, did not amount to a denial of the equal protection of
the laws, as it had not ever been alleged by the respondent that the benefit of
that law had been designedly denied only to him.
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 31 of 1957.
Appeal from the judgment and order date September 27, 1955, of the Jammu and Kashmir High Court in Misc. Application No. 23 of
Jaswant Singh, Advocate-General for the State
of Jammu and Kashmir and R. H. Dhebar, for the appellant.
S. N. Andley, J. B. Dadachanji, Rameshwar
Nath and P. L. Vohra, for respondent.
1961. February 23. The Judgment of the Court
was delivered by SARKAR, J.-The respondent is a Civil Engineer who held various
positions under the appellant, the Government of the State of Jammu and
Kashmir. On September 8, 1954, while the respondent was holding the post of
Development Commissioner, he was placed under suspension by an order made by
the appellant on that date. Later, the appellant passed another order on
February 12, 1955, demoting the petitioner to the post of a Divisional
On May 12, 1955, the respondent moved the
High Court of Jammu and Kashmir under Art. 32(2A) of the Constitution of India
as applied to the State of Jammu and Kashmir, for a writ directing the
appellant not to give effect to the order dated February 12, 1955, and to recognise
him as the Chief Engineer, the substantive post held by him when he was
suspended, with effect from the date of suspension and with all the emoluments
of that office. The High Court issued the writ as prayed. The State appeals
from the judgment of the High Court, 971 In the view that, we think, must be
taken of this case, it is unnecessary to go into the facts a great deal. At one
stage of his career under the appellant, the respondent held a job of some
responsibility in what was called the Sindh Valley Hydro Electric Scheme. This
Scheme was for generating electric power by dams erected in the Sindyh water
course and for using the water for irrigation purposes. The work on this Scheme
seems to have commenced some time ago. The respondent was connected with the
Scheme from 1949 till he was transferred from the work in 1953. It appears that
the appellant was dissatisfied with the Progress of the work and the manner in
which it had been carried out and decided to establish a Commission of Inquiry
(a) to investigate into the reasons for (i) progressive rise in the estimates,
(ii) the defective planning and the delay in the execution of the work and
(iii) the other irregularities and (b) to fix responsibility upon the persons
concerned and make appropriate recommendations.
Pending the investigation various officers
associated with the planning and execution of the Scheme including the
respondent, were placed under suspension on September 8, 1954. Thereafter on
October 20, 1954, a commission was set up by the appellant consisting of
various persons. The Commission made certain enquiries and eventually submitted
its report to the appellant. The appellant then made the order demoting the
respondent purporting to act on the basis of the report. It is not necessary to
set out the facts any more.
The respondent, in his application for the
writ, questioned the validity of the orders suspending and demoting him on
these grounds. He alleged that the Commission did not conduct the enquiry
according to the rules of natural justice. He said that he was not even
informed of the charges against him nor given a proper hearing and that if he
had been given proper opportunity, he would have proved that he had not been at
fault at all. He also said that the appointment of the Commission could only
have been made under s. 2 of the Public Servants (Inquiries) Act, 1977 124 972
(Kashmir era), and must, therefore, be deemed to have been so made. He
complained that the provisions of this Act were not observed by the Commission
in making the enquiry.
Lastly, he said that the respondent could be
reduced in rank only in accordance with the procedure laid down in the Kashmir
Civil Service Rules passed by the State Council Order No. 81-C of 1939 and this
procedure had not been followed. In the High Court, the question as to whether
these Rules had the status of law seems to have been debated at great length.
The High Court took the view (that they had. We will proceed on the basis that
the High Court was right and the allegations made by the respondent in his
petition had been substantiated.
Now, the High Court was moved to exercise its
powers under Art. 32 (2A) of the Constitution. The order made by it cannot be
upheld if it was not justified by that provision.
This is not in dispute. That provision is in
Art. 32(2A). " Without prejudice to the
powers conferred by clauses (1) and (2), the High Court shall have power
throughout the territories in relation to which it exercises jurisdiction to
issue to any person or authority, including in appropriate cases any Government
within those territories, directions or orders or writs, including writs in the
nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, or
any of them, for the enforcement of any of the rights conferred by this
Part." The High Court can then exercise its powers under Art. 32 (2A) only
" for the enforcement of any of the rights conferred by this Part ".
The Part referred to is Part III and the rights conferred by it are the fundamental
Therefore, the High Court can act under cl.
(2A) of Art. 32 only to enforce a fundamental right.
The only fundamental right, however, on the
violation of which learned counsel for the respondent could rely in support of
the order of the High Court was that conferred by Art. 14, namely, the right to
the equal protection of the laws. He said that the 973 respondent was entitled
to have the procedure prescribed by the Kashmir Civil Service Rules followed
before the order demoting him could be made and as that procedure was not
followed, his client had been denied the equal protection of the laws. It seems
to us that even if the Rules are a law and the respondent has not been given
the benefit of them, all that can be said to have happened is that the appellant
has acted in breach of the law; But that does not amount to a violation of the
right to the equal protection of the laws. Otherwise, every breach of law by a
Government would amount to a denial of the equal protection of the laws. We are
not aware of any authority in support of that proposition and none has been
cited to us. Nor are we able to find any support for it in principle. It is not
the respondent's case that other servants of the appellant had been given the
benefit of those Rules and such benefit has been designedly denied only to him.
It seems to us that the appeal must be allowed on the simple ground that the
respondent's petition does not show a violation of any fundamental right. The
High Court had no power to act under Art. 32 (2A) at all.
We think it right to point out that Arts. 226
and 311(2) of the Constitution of India had not been applied to the State of Jammu and Kashmir at any material time. No question of the respondent's application being
maintainable in view of these articles, therefore, arises.
The appeal is accordingly allowed. There will
be no order as to costs.