T.N. Singh, J.

Two learned Judges of this Court who heard this petition, having disagreed on a vital question of constitutional import, this matter has come up before me to resolve the conflict, on an order passed by the Honble the Chief Justice in that regard. The Presiding Judge (K. M. Agrawal, J.) has dismissed, by his order dated 26-3-1991, the writ petition holding that by efflux of time, the petition had become infructuous and further that in the changed circumstances, alternative remedy of civil suit was available. His Companion Judge (K. M. Pandey, J.), on the other hand, by his order dated 27-3-1991, held that the preliminary objection to the maintainability of the petition had no force and the petition should be heard on merits. Accordingly, the learned Judges recorded jointly the order that they had reached different conclusions in their separate orders on the preliminary objection about maintainability of the petition and as such the controversy needed to be resolved by a Third Judge or by Larger Bench, as may be ordered by the Honble the Chief Justice.

Deceptively simple though the controversy may appear, during the course of hearing the matter, I found it impregnated with wider ramification of crucial import. Before I proceed to grapple with the constitutional issue, few facts giving rise to petitioners grievance and also some facts relevant to the petitioners life in this Court may be set out first.

On 16-5-1990, this writ petition was filed for issuance of a suitable writ/order and/or direction under Article 226 of the Constitution to respondents prohibiting them from terminating the services of the petitioner who was, on that date, functioning as a Government Pleader and Public Prosecutor at Gwalior. He relied on order, Annexure P/6, dated 23-2-1988 to contend that his appointment was for a period of three years from 26-12-1987 and that had been made under Rules 18 and 19 of Law Department Manual. His tenure was jeopardised as a result of orders, Annexures P/7 and P/8, issued by the State Government on 15-3-1990 and 22-3-1990 by deciding to constitute panels for fresh appointments of Public Prosecutors and Additional Public Prosecutors in the State. Respondents impleaded, among others, are the Chief Secretary and the Secretary, Law Department of the Government of Madhya Pradesh, as also the District Magistrate and Collector, Gwalior. On 3-8-1990, the Court passed an order on the prayer made by the petitioner for interim relief. Shri N. C. Jain, Advocate, appeared in Court on that date and submitted that State Government had passed an order dated 26-6-1990 and he had been appointed as the Government Pleader and was asked to take over charge from the petitioner. The court heard him and also heard counsel for the petitioner and the Government Advocate, for the respondents, in passing the order that the petitioner shall not discharge any function of Government Pleader or Public Prosecutor, but he shall enjoy the status of "Government Pleader" under the order of his appointment until further orders. It was further directed that the State Government shall not give effect to its order dated 26-6-1990 until further orders and that in the meantime, the District Magistrate shall make ad hoc arrangement for pursuing the pending cases and also all litigations in which the State is involved, past, present and future, through such counsel as may enjoy the confidence of the District Magistrate. On behalf of the respondents, Government Advocate had submitted to the Court that one months notice was served on the petitioner asking him to vacate office and the notice period was expiring on 5-8-1990.

On 14-12-1990, the petitioner made a prayer for certain amendments to be made in the writ petition and that was allowed. However, the Court also allowed on 18-2-1991, prayer for a second dose of amendments which indeed was a massive one; new paras 12 and 13 were added and new grounds (XV) to (XX) were added, Annexures N/7 to N/9 were also brought on record and among those was included the order dated 26-6-1990 (N/9) by which petitioner was informed that on expiry of a month of that notice, his services would no longer be necessary. A copy of the amended petition was filed on 26-2-1991, the new prayer made is for declaring void orders. Annexures N/7 to N/9 as "unconstitutional" and for a direction to the respondents that the petitioner be allowed to continue in service by extending his tenure for the period for which he was not allowed to work and that on the expiry of the tenure, he be considered for renewal and/or reappointment for a further period of three years as Public Prosecutor and Government Pleader.

Petitioners counsel, Shri Dubey, when he addressed me lastly in this matter on 10-9-1991, confessed that inspiration for the amendment was provided by Apex Courts decision in Kumari Shrilekha Vidyarthis case, decided by Apex Court on 20-9-1990, reported subsequently in : AIR 1991 SC 537 , and earlier in (1990) 4 JT (SC) 211 on which my learned Brother, K. M. Pandey, J., relied in passing his order. It was submitted to me by Shri Dubey, which I recorded in my order dated 10-9-1991, that in Kumari Shrilekhas case, their Lordships had held, under similar circumstances in a similar case, that the termination under Uttar Pradesh Governments Law Department Manual, of appointments made of District Government counsel, without assigning any reason, had to be tested with reference to Article 14 of the Constitution irrespective of the right being either contractual or statutory.

Because hearing before me was piecemeal and protracted, I found it profitable to record on 10-9-1991, when the hearing concluded, the thrust of petitioners case. As a nodal point of controversy in the context, indeed, of the conflicting views expressed by my learned Brothers, it appears to me that the conflict can be best resolved by answering the question, if the High Court in, hearing a petition under Article 226 of the Constitution has any discretion to refuse to declare void any State action violating any fundamental right guaranteed under Part III Of the Constitution. On a priori considerations, therefore, would it not be the duty of the High Court to decide the merits of the grievance made in any writ petition of the infringement by the State of petitioners fundamental rights This duty, in my view, is not to be confused with the discretion which the Court may finally exercise in fashioning the relief to be granted if the grievance is found justified and the order impugned is declared void. The difficulty, in my view, arises when the dividing line between the duty and the discretion is lost sight of and the two are confused and clubbed together. That, according to me, is the essence of the whole matter. Because, in his opinion,. K. M. Agrawal,J. has observed that it was not necessary to decide various legal points raised in the petition as the petition had become infructuous due to expiry of the period of appointment and the questions raised had assumed only "academic" importance. Though my learned Brother, Pandey, J. has spoken of likelihood of "principles of natural justice" being defeated because of denial in the midstream hearing to the petitioner on his grievances, it is undisputed that the petitioner did challenge the several orders he impugned as "unconstitutional" and that challenge is to be related to Article 14 of the Constitution. Evidently, Pandey, J. was handicapped because in the amended writ petition even, there is no specific mention of Article 14 of the Constitution though generally the impugned orders are challenged as "arbitrary" and "discriminatory" and, therefore, "unconstitutional". Law as expounded by their Lordships is clear that Article 14 hits any State action which is "arbitrary" and/or "discriminatory". Mere omission of specific reference to Article 14, in my view, is not fatal. (See in this connection, Shrilekha, (: AIR 1991 SC 537 ) (supra) but importantly, E. P. Royappa, AIR 1974 SC555).

Our Constitution is a modern one, enacted on the 26th day of November, 1949. Our founding fathers had the double benefit of following the lessons of Constitutional history in global perspective and of the vanguard view of emerging constitutionalism due to dichotomisation taking place in different parts of the world. They saw the Charter of the United Nations drawn up and in 1948 the Universal Declaration of Human Rights made to usher in a new World Order. Article 8 of the Declaration contemplates, "everyone has a right to an effective remedy by the com petent national tribunals for acts violating the fundamental rights granted to him by the Constitution or by law"; and under Article 7, it has been envisaged, "all are equal before the law and are entitled without any discrimination to equal protection of the law". The principles of the unwritten British Constitution and the provisions of the charismatic Federal Constitution of United States were also known to them. By defining the fundamental rights with particular care in Part 111 of the Constitution and envisaging simultaneously the consequence of infringement of those rights, under Article 13, they clearly intended that the Indian Constitutional Bill of Rights was not mere rhetoric. For enforcement of those rights, they devised high profile engines, High Courts and the Supreme Court, to provide effective remedy, matching the high-voltage aspirations of a vibrant and throbbing democracy of their contemplation. Although Article 32 is embedded in Part III of the Constitution while Article 226 is hot, that difference does not affect even marginally the common basic characteristic of the same remedy available at two forums. By guaranteeing the "right to move" the Supreme Court for enforcement of fundamental rights, it was not meant that the two forums would dissimilarly value, by different standards, the guarantee contemplated in respect of the several fundamental rights or freedoms. Article 359 contemplating suspension during Proclamation of Emergency "right to move any Court" for enforcement of any fundamental right (now Articles 20 and 21 excluded) fulfilled the object of Article 32(2) and also brought about parity in the efficacy of the same remedy available simultaneously at two forums.

Article 226(1) is as follows :

"Notwithstanding anything in Article 32, every 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, 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 Part III and for any other purpose."

In Articles 32 and 226, there is no express mandate indicated for exercise in any particular manner of "jurisdiction" contemplated thereunder, while "power" is vested simultaneously in those Courts to issue writs or make "appropriate" orders/directions as the circumstances of the case may warrant for redressing any grievance of infringement of any fundamental right. The only basic difference between the two jurisdictions, contemplated under Articles 32 and 226 is quantitative and not qualitative. High Courts only, and not the Supreme Court, can exercise its writ power for "any other purpose" besides enforcing the fundamental rights and can hear and decide complaints of infringement of legal rights also. The common expression "shall have power" used in Article 32(2) and Article 226(1), over the years, has unfortunately been taken for granted to mean that the power is "discretionary" even in respect of its motive force, on the assumption that the nature, of jurisdiction is "equitable" descending from the alien territory of British Constitutional history. The Constitutional position that Article 13 envisages in respect of any State action inconsistent with any fundamental right being "void" has not been given due importance.

Clear mandate of Article 13(2) makes ipso facto "void" such "law" which "takes away or abridges the rights conferred by Part III, the terms "law" and "laws in force" are defined in Clause (3). Any State action, in exercise of executive power of a State which, Vide Article 162, is traceable to the power of the State to make laws, is obviously included within, the ambit of Article 13 for the additional reason that Article 77 provides for conduct of business of the Government of India and similarly, Article 166 makes similar provision in case of the Government of a State. When an order is passed, whether under Article 77(2) or 166(2), expressed in the name of either the President or the Governor, such an order, in any case, would be "void" if it is hit by Article 13(2) and when a complaint in that regard is made to the High Court or the Supreme Court, the petitioner is constitutionally entitled to have the declaration contemplated under Article 13(2). For, those constitutional forums are devised with deliberate care as adjudicatory machinery to discharge that function effectively so that Article 13(2) does not become dead letter. Those forums are trustees of peoples confidence reposed in them, as guardians of the guaranteed civil liberties enshrined in the Constitution.

As the sole repositories of the "power" contemplated under Articles 32 and 226, High Courts and the Supreme Court, under the Constitutional scheme, are required to act as sentinel qua vive of citizens inalienable and immutable liberties guaranteed by Part III. Such Courts have been contemplated as the proper and appropriate forum for ventilating any grievance of infringement of any fundamental right and as such, the High Court is constitutionally bound to hear and decide the merit of the grievance made. Only at the forum of the High Court or, for that matter, of the Supreme Court, a truly effective and efficacious remedy is available for enforcement of a fundamental right and indeed, it has been so contemplated under the Constitutional scheme by our founding fathers, Advisedly, with deliberate care, in Article 32(2) and Article 226(1), the expression used is, "including writs in the nature of......" while prefacing that expression by the words, "directions or orders or writs". Care was taken, by using the words "in the nature of to insure against colonial legacy permeating insidiously the Constitutional scheme because the ancient English writs were named, "habeas corpus, mandamus, quo warranto and certiorari". Professor Wade has successfully exploded the myth that surrounds these English writs in his Administrative Law, Fifty Edition, at p. 539, having observed that the so-called "Prerogative" writs, were originally available only to the Crown, but by the end of the 16th Century, these remedies had become generally available to ordinary litigants. He adds, "by a process of evolution characteristic of our legal, history, the Crowns prerogative powers have been converted into machinery for the protection of the subject". Learned author, however, adds further that even today, as in the past, remedies are "discretionary" with the exception of habeas corpus. More detailed historical account of the evolutionary process is to be read in Professor DC Smiths Judicial Review of Administrative Action, Fourth Edition, at p. 584 et. seq. Evidently, in England, now, the "discretionary" nature of such writs is relatable to the procedure prescribed under Administration of Justice Act, 1960, for exercise of jurisdiction by the High Court there to grant such writs. Our Writ Courts were destined since inception to act differently in an unfettered manner but they still found it useful to adhere closely to the rules of convenience evolved by the English Writ Court.

I may profitably, at this stage, refer also to the American experience and Constitutional Scheme. English Constitutional lawyers have always been wary of written Bills of Rights which Jeremy Bentham (Prof. Diccys mentor) described as "nonsense upon stilts". United States Federal Constitution was, therefore, a charismatic parchment exuding new confidence albeit cautiously, in its pithy postulates. Article 111 vests tersely "judicial power" in the Supreme Court and other Courts to be ordained and established to deal with and decide "cases" or "controversies" specified in Section 2. It is only in respect of "the privilege of habeas corpus" that provision is made in Section 9(2) of Article I that the said writ shall not be suspended unless "when in cases of Rebellion or Invasion, the public safety may require it" Amendments V (1791) and XIV (1868) are the cornerstone of U.S. Federal Constitution introducing the "Due Process" concept in the Constitutional system of the country for making it easy and effective for the citizens to enforce vigorously their constitutionally guaranteed rights. Amendment XIV contemplates, "nor shall any Slate deprive any person of life, liberty or properly, without due. process of taw; nor deny to any person within its jurisdiction the equal protection of the laws". Chief Justice Marshalls historic judgment in Marbury v. Madison, 2 L Ed 60, delivered in 1803, made meaningful the exercise of constitutionally entrenched judicial power in American Courts when writ of mandamus was issued by him, obviously exercising the jurisdiction contemplated under the Judiciary Act of 1789. He made history for eternity when he declared: "it is emphatically the province and duty of the judicial department to say what the law is. . Those who apply the rule to particular cases, must of necessity expound and interpret that rule. If two laws conflict with each other, the Courts must decide on the operation of each.. .. .This is of the very essence of judicial duty".

My attention is drawn by Shri Dubey to a juristical opinion on the ramification of Marburys decision noted in the Constitutional Law, jointly authored by Profs. W. B. Lockhart, Yale Kamisar and J. II. Choper, 1980 Edition, What the learned author Prof. Choper describes at p. 27 as "the great justification for the power of judicial review, the wisdom of Marbury" is that it is Courts role in deciding issues of alleged governmental infringement of individual rights protected by the Constitution, Courts are required to act "forcefully" in such situations, "by creating a presumption against the validity of a contested action". At p. 509 ibid, another passage is cited with great confidence. The decision in Skinnerv. Oklahoma (1941) 316 US 535, is commented upon for imaginative handling of the situation; for saving a single litigant from sterilisation the Court voided the relevant statute for violating "equal protection" clause through an invidious ethnic discrimination. Reference may also be made to Shelley v. Kraemer (1947) 334 US 1, of dual significance in expounding the scope of, the 14th Amendment. Judicial decisions too, it was held, were vulnerable to the challenge thereunder. It was held to he the "duty" of the Federal Supreme Court to declare void even such "State action". Evidently, notwithstanding the vast distinction underlying the schemes of our Constitution and that of United States, the Courts there too have been exercising its Constitutional power of judicial review in 9 manner as behaves a guardian of citizens civil liberties, constitutionally entrenched.

In the domestic context, it is significant that legislative adventure to tinker with the entrenched fundamental rights was forcefully rebuffed judicially at the apex level. By Section 35 of the Constitution (42nd Amendment) Act, 1976, clauses (4) and (5) were inserted in Article 368 of the Constitution to enlarge the scope Of Parliaments amending power. Clause (4) contemplated that any amendment of the Constitution, "including the provisions of Part III" whether made before or after the commencement of the said amending Act, was not liable to be "called in question in any Court on any ground"; that provision was struck down as invalid in Minerva Mills case, : AIR 1980 SC 1789 . Evidently, that misconceived legislative experiment purported to sap the vital power of judicial review whereas in the celebrated Keshavanands case, : AIR 1973 SC 1461 , it had already been held that Parliament was debarred from altering the basic structure or frame-work of the Constitution. Their Lord-ships took the view that Article 13 will become a "dead letter" and the Courts will be deprived of their power of judicial review resulting in destruction of the basic structure of the Constitution if the newly-introduced Clause (4) of Article 368 was not struck down. That Article 13 manifested patently the potent power of judicial review and that the power was of the very essence of the Constitutional basic structure postulating a limited Government and Parliaments limited amending power under the Constitution are now accepted as basic tenets of Indian Constitutionalism.

Long ago too, another Constitution Bench in E..P. Royappa (: AIR 1974 SC 555 ) (supra) through Bhagwati, J. (as he then was), for the majority, declared that there is nothing like unreviewable discretion under our Constitution; it was held, "when an Act is arbitrary, it is implicit in it that it is unequal both according to political logic and constitutional law and, is, therefore, violative of Article 14." Recently, in Harminder Singh, : AIR 1986 SC 1527 , which was a case of a contract with Government and of dismissal in limine of the writ petition by Bombay High Court, their Lordships, in appeal against that judgment, held that the action of the Government department being arbitrary and being violative of Article 14, was liable to be quashed. They observed, "the High Court, in our opinion, was not justified in dismissing writ petition in limine by saying that the question relates to the contractual obligation and the policy decision cannot be termed as unfair or arbitrary."

Viewing the jural controversy from another angle, it can be said that if the High Court is supposed to have discretion to dismiss in limine a writ petition despite grievance made being of violation of petitioners fundamental right, the decision of the High Court may itself be subject-matter of the same grievance of the High Court acting arbitrarily and violating Article 14 of the Constitution. Judicial opinion at the apex level has so far been vacillating and hesitant, as projected in Budhan Choudhry, : AIR 1955 SC 191 and Naresh Mirajkar . On this point too, of late the trend has positively changed and the jural controversy appears to have been affirmatively resolved. In A. R. Antulay v. R. S. Nayak, : AIR 1988 SC 1531 , their Lordships reviewed their own order which they found had given rise to a complaint of infringement of the appellants fundamental right guaranteed by Arts. 14 and 21 of the Constitution. They held that the power could be exercised under Articles 136 or 32 or under any provision of the Constitution because their own direction had resulted in deprivation of the fundamental right of the citizen; even the rule of res judicata would not prevent the Supreme Court from entertaining the grievance and redressing the wrong.

One constitutional imperative of paramount importance, according to Krishna Iyer, J. is:

"The tycoon, the communalist, the parochialist; the faddist, the extremist and radical reactionary lying coiled up and subconsciously shaping judicial mentations are menaces to judicial independence when they are at variance with Parts 111 and IV of the Paramount parchment". (See K. Veeraswami v. Union oflndia (: 1991 (3) SCC655 : at p. 678, extract in B. C. Ray, J.s opinion).

To fulfil the Constitutional aspirations, according to him, "Judges should be of stern stuff and tough fibre, unbending before power, economic or political, and they must uphold the core principle of the rule of law which says, Be you ever so high, the law is above you. This is the principle of independence of judiciary which is vital for the establishment of a real participatory democracy. ......." (ibid). Indeed, allowing discretion to refuse declaration voiding an unconstitutional State action would be impairing the hallowed concept of independence of Judiciary. Public confidence is apt to be shaken if Judiciary is insensitive to any complaint of violation of fundamental rights; High Courts and the Supreme Court are expected to function constitutionally as dynamos of judicial energy and they have a duty, therefore, to be vocal when such a complaint is made and not to so act as to gag the complainant which may results in perpetration of constitutional sin.

It would indeed be denial to the petitioner of an effective and efficacious remedy if he is, at the threshold, put off and his grievance on merit is not heard to reach the constitutionally mandated conclusion on his complaint of infraction of fundamental right. That would tantamount, truly speaking, to breach of constitutional trust because Article 226 invests "power" in the High Court to make appropiate orders/directions when case is made out for enforcement of any petitioners fundamental right and it does not inhibit expressly that "power" of the Court in the exercise of its jurisdiction allowing it to act in a manner that may be detrimental to petitioners case. Reference, in this connection, may be made to the decision in Ram and Shyam Co.s case MR 1985 SC 1147 . Their Lordships made considerable efforts in that case to explode the myth that the rule which requires exhaustion of alternative remedy was a rule of law and that rule fettered High Courts jurisdiction contemplated under Article 226; they held that a rule of law and that rule fettered High Courts jurisdiction contemplated under Article 226; they held that the rule was one of convenience and discretion only. In that case, complaint was not of infraction of any fundamental right, but of Interpretation of a statutory rule and of violation of that rule. High Court had refused to interfere under Article 226 on the ground that right of statutory appeal was available and their Lordships, though they did not refer expressly to Article 14 of the Constitution, still held that the impugned action of the Chief Minister "would certainly amount to arbitrary action in the matter of distribution of State largesse, which is impermissible". In the celebrated Kochunnis case, : AIR 1959 SC 725 , the Constitution Bench was deciding a writ petition when their Lordships observed: "We do not countenance the proposition that, on an application under Article 32, this Court may decline to entertain the same on the simple ground that it involves the determination of disputed questions of fact or on any other ground. If we were to accede to the aforesaid contention of learned counsel, we would be failing in our duty as the custodian and protector of the fundamental rights". Relying on that, recently in Laxmi Shankar Pandey, : AIR 1991 SC 1070 , their Lordships even examined the grievance of denial of principles of natural justice in the writ petition by delving deep into factual morass though eventually reached the conclusion that the petitioner had no case on merit.

As hinted earlier, our Courts have been generally conscious by and large of the common law heritage pervading our legal system. The same position arose in the United States wherein, in the case of Grossman, ex parte (1924) 69 L Ed 527, it was held: "The language of the Constitution cannot be interpreted except by reference to the common law to British institutions as they were when the instrument was framed and adopted. The statesman and lawyers of the convention ...... were born and brought up in the atmosphere of the common law......" Self-imposed rules of English Judges on their exercise of writ jurisdiction used to be followed evidently in our country, but the trend is changing as noted earlier. For issuance of English writs, designated desperately, English Courts had devolved desperate rules inhibiting exercise of their writ power to deny relief giving matching reasons for the writ prayed, such as certiorari or mandamus or quo warranto. On the other hand, the modern judicial trend in our country is to promote distributive justice and rules even of locus standi have been bidden good-bye and public interest litigation is encouraged when complaint of breach of any fundamental right is made. (See in this connection, M. H. Hoskot, : AIR 1978 SC 1548 ; Sunil Batra, AIR 1978 SC 1675 and : AIR 1980 SC 1579 ; Asian Games case, AIR 1982 SC 1473 ; Sheela Barse, : AIR 1983 SC 378 ; Bandhua Mukti Morchas case, AIR 1984 SC 802 ; Olga Tellis, : AIR 1986 SC 180 ; Sodan Singh, AIR 1989 SC 1988 (1989) etc. etc.). The watershed in the Indian constitutionalism is obviously Maneka Gandhis case, : AIR 1978 SC 597 introducing "due process" concept from which so long Indian Courts have shied away. Due hearing or proper hearing at proper forum of a complaint violation of fundamental rights by Courts has obviously become a Constitutional imperative. Indeed, Beg, C. J., who had spoken in Maneka Gandhi was a party also to the decision in A.D.M., Jabalpur v. Shivkant Shukla (habeas corpus case), : AIR 1976 SC 1207 , and he had earlier observed in that case, "the most important object of making certain basic rights fundamental by the Constitution is to make them enforceable against the State and its agencies through the Court" and added that the protection of enforceability can only be validly suspended during emergency.

Reference may also be made to decisions cited by Shri Dubey. Counsel has submitted that time and again the Apex Court has spoken about High Courts and Supreme Court possessing "concurrent jurisdiction" in writ matters and ex hypothesi, both Courts being required to exercise the jurisdiction on similar lines. He drew my attention to para 5 of the Report in Romesh Thappar, : AIR 1950 SC 124 and Kochunnis case (: AIR 1959 SC 725 ) (supra) para 8. In Ujiam Bais case : AIR 1962 SC 1621 , a detailed hearing, resulting in a massive judgment, the petitioner was given though eventually the majority held that petition was not maintainable because there was no violation of any fundamental right inasmuch as the order of assessment under the U.P. Sales Tax Act was assailable in appeal. In Prem Chand Garg, : AIR 1963 SC 996 , the Court struck down Rules which the Court had itself framed for conduct of its business exercising its jurisdiction under Article 32. In State of Rajasthan v. Karamchand, : AIR 1965 SC 913 , in appeal against High Courts judgment, the contention agitated was that High Court should not have granted relief under Article 226 of the Constitution because of statutory remedy being available to the petitioner under the Sales Tax Act. That was rebuffed holding that the petitioner had "averred in its petition that he had a fundamental right of free trade and any such imposition infringed that right of the petitioner". In Coffee Boards case, : AIR 1971 SC 870 , similarly, existence of other remedies was held as no bar to petitioner approaching the Supreme Court under Article 32. The Court also held that when action is taken under an ultra vires statute, Supreme Court can be moved under Article 32. That was stated in dealing with vires of provisions of the Central Sales Tax Act.

The upshot of the discussion aforesaid is that in our Constitutional scheme, as evolved and interpreted judicially, the High Court is not empowered to act arbitrarily by dismissing: a writ petition in limine when petitioner complains that one or more of his fundamental rights, constitutionally guaranteed are infringed. The Court is bound to hear him on the merits of the grievance to reach an affirmative finding that the petition is not maintainable because he had failed to establish infringement of his fundamental rights before the petition its dismissed. Indeed, should it be found that petitioner has established his case, the High Court will be dally-bound to declare void the State action infringing any fundamental right of the petitioners The question to what relief the petitioner will be entitled, will be a different question and only in that regard, the Court can exercise its discretion to fashion the relief. Constitutional mandate itself in that regard is clear that "appropriate" order, direction or writ may be issued by the Court for the enforcement of any fundamental right and language in that regard is clear in both, Arts. 32 and 226. Principles of civil litigation which apply also in a Constitutional lis authorise the Court to do justice to the parties in the manner that best suits the facts and circumstances of the case. No cut and dried rule, no strait-jacket formula, no predisposed notion of justice can fetter courts jurisdiction in the matter of grant of relief, Issues are struck on pleadings of parties in a Civil Court and upon evidence adduced by parties, for final disposal, the trial Court is required to pronounce on all issues. Indeed, for the disposal of the suit, the finding upon any one or more issues would be sufficient for the purpose of giving the relief due and when the decree is drawn up, that must agree with the judgment. (See Order VII Rule l(g), Order XIV Rule 2 and Order XX Rules 5 and 6, CPC). Without trial, decision even on any issue of law, such as of maintainability, is not to be anticipated in a civil suit. Writ Courts would evidently possess no competence, exhypothesi, to conjecture without full hearing decision to be reached on the merit of the grievance of petitioner of infraction of his fundamental right and to fancy further non availability to him of any kind of relief eventually,

Government Advocate, Shri Roman, did not advance arguments separately, but submitted that he would adopt those to be advanced by Shri N.K. Jain, who appeared for intervener, Nemi Chand Jain. Indeed, when the hearing was concluded, Shri N.K. Jain was not available and he filed, therefore, written arguments as late as on 3-10-1991. That is one of the reasons for belated delivery of this judgment. The crux of Shri Jains argument is that on merit eventually, the petitioner would not get any relief and, therefore the view expressed by K.N. Agrawal, J. is the correct view. He has made a laboured effort to distinguish the decision in ShrilekhaVidyarthis case (: AIR 1991 SC 537 ) (supra), but for reasons stated earlier, I need not hazard a decision on that contention of learned counsel. Whether the petitioner held a "civil post" or not and whether he was entitled to the protection, whether of Article 14 or Article 311 and indeed whether his statutory right contemplated under Rules 18 and 19, M. P. Law Department Manual are infringed are all questions, the answer to which may be provided possibly by deciding if petitioner has been treated unfairly and arbitrarily and he is entitled to invoke Article 14 of the Constitution. The arguments which Shri Jain has advanced in writing obviously make no dent on the view, I have taken.

For all the reasons aforesaid, I am of the view that the instant writ petition complaining infraction of petitioners fundamental right under Article 14 on account of alleged arbitrary State action, is not liable to be dismissed in limine. I agree with the conclusion reached by my learned Brother, K.M. Pandey, J. that the petitioner is to be heard on merit of his grievance. I have found myself unable to agree with the contrary view expressed by my learned Brother K.M. Agrawai, J.

As a result, I direct the petition to be listed for hearing on merits before the appropriate Bench.