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PETITIONER: STATE OF JAMMU KASHMIR

       Vs.

RESPONDENT: MIR GULAM RASUL.

DATE OF JUDGMENT: 23/02/1961

BENCH: SARKAR, A.K. BENCH: SARKAR, A.K. GAJENDRAGADKAR, P.B. WANCHOO, K.N. GUPTA, K.C. DAS AYYANGAR, N. RAJAGOPALA

CITATION:  1961 AIR 1301            1961 SCR  (3) 969  CITATOR INFO :  RF         1975 SC1208  (16)

ACT: 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, 32(2A).

HEADNOTE: 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.

JUDGMENT: 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 1955.

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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 Engineer. 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

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(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 these terms:               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  rights. 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

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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. Appeal allowed. 974