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1971 Supreme(J&K) 45
IN THE HIGH COURT OF JAMMU AND KASHMIR AT SRINAGAR
S. Murtaza Fazl Ali,Janki Nath Bhat,Mian Jalal-ud-Din, JJ.
State Of J&K & Anr. - Appellant
Versus
Raj Mohd. & Ors. - Respondent
LPA No. 13/1970
Decided On : 23 August, 1971
Advocate For Appellant: Amar Chand Vaid
Advocate For Respondent: S.A. Salaria
The expression "authority subordinate to that by which he was appointed" in Section 126 of the Jammu and Kashmir Constitution refers to the rank of the authority and not to his functions.
Headnote:
CONSTITUTIONAL LAW - ARTICLE 126 OF THE JAMMU AND KASHMIR CONSTITUTION - INTERPRETATION - "AUTHORITY SUBORDINATE TO THAT BY WHICH HE WAS APPOINTED" - REFERS TO RANK AND NOT TO FUNCTIONS - SUBSEQUENT AUTHORITY WITH SAME POWERS BUT INFERIOR RANK CANNOT DISMISS CIVIL SERVANT APPOINTED BY SUPERIOR AUTHORITY.
Fact of the Case:
Three constables, appointed by the Deputy Inspector General of Police, were dismissed by the Superintendent of Police. The constables challenged the dismissal orders, arguing that the Superintendent of Police was an authority subordinate to the Deputy Inspector General of Police and therefore could not dismiss them, and that they were not given an opportunity to defend themselves as required by Section 126 of the Jammu and Kashmir Constitution.
Finding of the Court:
The court held that the expression "authority subordinate to that by which he was appointed" in Section 126 of the Jammu and Kashmir Constitution refers to the rank of the authority and not to his functions. The court further held that the Superintendent of Police, although vested with the powers of appointment and dismissal of constables, could not exercise those powers in the case of the respondents because they were appointed by the Deputy Inspector General of Police, an officer superior in rank to the Superintendent of Police. Therefore, the orders of dismissal by the Superintendent of Police were invalid.
Issues: 1. Whether the Superintendent of Police was competent to dismiss the constables who were appointed by the Deputy Inspector General of Police? 2. Whether the constables were given an opportunity to defend themselves as required by Section 126 of the Jammu and Kashmir Constitution?
Ratio Decidendi: 1. The court interpreted the expression "authority subordinate to that by which he was appointed" in Section 126 of the Jammu and Kashmir Constitution to mean that the authority dismissing or removing a civil servant must be of equal or superior rank to the appointing authority. The court held that subordination is to be understood with reference to rank and not with reference to the control exercisable by an authority. 2. The court did not address the issue of whether the constables were given an opportunity to defend themselves as required by Section 126 of the Jammu and Kashmir Constitution, as it found that the Superintendent of Police lacked the authority to dismiss them in the first place.
Final Decision: The court dismissed the appeals filed by the State of Jammu & Kashmir against the judgments of the Single Judge quashing the dismissal orders of the Superintendent of Police.
1. This judgment will dispose of three Letters Patent Appeals preferred by the State of Jammu & Kashmir, Inspector General of Police, Commandant, J&K Armed Police, Jammu, Superintendent of police, Poonch etc. against the three judgments delivered by a Single Judge of this court Mr. Justice Jaswant Singh J. on January 8, 1970. These appeals arise out of writ petition Nos. 37, 38 and 50 instituted by Nazir Hussain, Raj Mohd and others, and Mohammad Majid constables. The brief facts necessary for the disposal of these appeals are that the respondents were appointed as constables by the Deputy Inspector General of Police, Jammu but were ultimately dismissed by the Superintendent of Police, Poonch. The legal and constitutional grounds taken in the writ petitions, apart from the factual were, that as the petitioners-respondents were appointed by the Deputy Inspector General of Police, Jammu, they could not be dismissed by the Superintendent of Police, who was an authority subordinate to the D. I. G. Police ; and secondly that they were not afforded an opportunity of being heard ; the orders of dismissal, therefore, violated the principles of natural justice ; that there was a discrimination between the respondents and others similarly situated. The respondents therefore prayed for the quashing of the order of the Superintendent of Police, Poonch, in writ petition No. 37 of 1969 order No. 191 of 1966 dated 3-3-1966 and D. O. No. 538-CS dated 3-4-1969; in writ petition No. 38 Order No. 95 of 1966 dated 25-1-1966 and D. O. No. 538-CS dated 3-4-1969, and in writ petition No. 50 Order No. 271 of 1966 dated 8-4-1968 and D. O. No. 538-CS dated 3-4-1969.
2. The learned Judge who heard these petitions issued writs in all the three cases on 8-1-1970 relying on a previous decision of his dated 3-5-1969 in writ petitions Nos. 168 and 169 of 1969 Mohammad Maqbool & ors Vs. State holding that the Superintendent of Police was not competent to issue the orders of dismissal of the respondents when they had been appointed by the D.I.G. and further that the respondents had not been given an opportunity to defend themselves as envisaged under section 126 of the Constitution of Jammu & Kashmir. Against these orders of the learned Single Judge which are all dated 8th of January 1970, the present appeals have been filed.
3. The appeals came up before a Division Bench of this court which by means of its order dated 17-12-1970 felt that important points of the interpretation of the Constitution were involved in these cases and a judicial pronouncements on the point of the various courts were not uniform, referred it to the Full Bench.
4. We have heard the learned counsel for the parties.
5. The only point that was debated before us was about the competence of the Superintendent of Police to pass the impugned orders of dismissal of the respondents who were constables. We have gone through the judgments of the learned Single Judge and we feel that the judgments under appeals are very elaborate and lay down the correct law on the subject. Many authorities have been discussed by the learned Single Judge, and we shall refer to those authorities and to some others also to elucidate the points. The learned counsel for the appellants relied on AIR 1958 AP 240, AIR 1970 SC 1263, and AIR 1970 SC 122 and on Rules 172 and 335 made under the Police Act and published in the Government Gazettee of December 1960. The learned counsel for the respondents referred us to AIR, 1955 SC 70, AIR 1970 Punjab 459 and referred to a passage from Servants Constitutional Law of India, (1968 ED) page 1066.
6. We have given our careful consideration to the points involved in these cases. It is admitted that the appointments of the respondents as Constables were made by D. I. G. Police, Jammu Province. It is also admitted that they were dismissed from service after some enquiry by the Superintendent of Police, Poonch. Mr. Amarchands argument is that when the appointment of the
