Tag Archives: Constitution of India

Public Law Function – Concept of

The concept of public law function is yet to be crystallised. Concededly, however, the power of judicial review can be exercised by the Supreme Court under Article 32 and by the High Courts under Article 226 of the Constitution of India only in a case where the dispute involves public law element as contradistinguished from a private law dispute.

        General view, however, is that whenever a State or an instrumentality of a State is involved it will be regarded as an issue within the meaning of public law but where individuals are at loggerheads, the remedy therefore has to be resorted in private law field. Situation, however, changes with the advancement of the State function particularly when it enters in the fields of commerce, industry and business as a result thereof either private bodies take up public functions and duties or they are allowed to do so which primarily is a State function. The distinction has narrowed down but again concededly such a distinction still exists. Drawing inspiration from the decisions of the Supreme Court as also other courts, it may be safely inferred that when essential Governmental functions are placed or allowed to be performed by a private body they must be held to have undertaken a public duty or public function.

        When the ‘State’ merely authorizes a given ‘private’ action that action cannot automatically become one taken under ‘State Authority’. Private action would not be a public function. Which authorisations would have that Constitution triggering effect will necessarily turn on the character of the decision making responsibility placed in private hands. However described, there must exist a category of responsibilities regarded at any given time as so ‘public’ or ‘Governmental’ that their discharge by private persons, pursuant to state authorization even though not necessarily in accord with state direction, is subject to the Constitutional norms that would apply to public officials discharging those same responsibilities.         Governmental functions are multifacial. There cannot be a single test for determining public functions. Such functions are performed by a variety of means. Furthermore, even when public duties are expressly conferred by the statute, the powers and duties do not thereunder limit the ambit of a Statute, as there are instances when the conferment of powers involves the imposition of duty to exercise it, or to perform some other incidental act, such as obedience to the principles of natural justice. Many public duties are implies by the Courts rather than commanded by the legislature; some can even be said to be assumed voluntarily. There are, however, public duties which arise from sources other than a Statute. Roychan Abraham v. State of U.P., (2019) 2 UPLBEC 1148 (FB).

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Minority Institutions – Appointment Against Vacancies

The freedom of the minorities institution in making selection and appointment against the vacancies in the institution has come to be considered in many cases by the Hon’ble Apex Court. In Manager, Corporate Educational Agency v. James Mathew, (2017) 15 SCC 595 it was held that the emerging position is that, once the management of a minority educational institution makes a conscious choice of a qualified person from the minority community to lead the institution, either as the Headmaster or Principal, the court cannot go into the merits of the choice or the rationality or propriety of the process of choice. In that regard, the right under Article 30(1) of the Constitution of India is absolute.  Hari Om Yadav v. State of U.P., 2020 (1) AWC 940.

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Exceptions – From Holding An Inquiry

Clause (1) of Article 311 of the Constitution of India states that persons employed in civil services or posts under the Union or the States or members of the All India Service shall not be dismissed, removed or reduced in rank by an authority subordinate to that by which he/she was appointed. Clause (2) provides that such a person could be dismissed or removed or reduced in rank only after an inquiry in which he has been informed of the charges against him and after being afforded a reasonable opportunity of being heard in respect of those charges. The second proviso incorporates exceptions when the need for holding an inquiry under clause (2) can be dispensed with. Clause (b) of the Second Proviso to Article 311(2) can be invoked to impose a punishment of dismissal, removal or reduction in rank on the satisfaction, to be recorded in writing, that it is not reasonably practicable to conduct an inquiry before imposing the punishment. The Hon’ble Apex Court in Jaswant Singh v. State of Punjab, (1991)1 SCC 362, relying on an earlier decision in Union of India v. Tulsiram Patel, (1985) 3 SCC 398, has affirmatively held that the obligation of the competent authority to record reasons when passing an order under clause (b) to the second proviso to Article 311(2) is mandatory, and it was inter alia observed:

        “It was incumbent on the respondents to disclose to the court the material in existence at the date of the passing of the impugned order in support of the subjective satisfaction recorded by Respondent No. 3 in the impugned order. Clause (b) of the Second Proviso to Article 311(2) can be invoked only when the authority is satisfied from the material placed before that it is not reasonable practicable to hold a departmental enquiry. It was observed as under: “A disciplinary authority is not expected to dispense with a disciplinary inquiry lightly or arbitrarily or out of ulterior motives or merely in order to avoid the holding of an inquiry or because the Department’s case against the Government servant is weak and must fail.” Hari Niwas Gupta v. State of Bihar, (2020) 3 SCC 153.

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Indian Citizen – Rights of

In Sielmakh Leonid Lullia v. Secretary to the Ministry of External Affarirs, Government of India (W.P. No. 1648 of 2010) decided on 25.11.2010 while relying on Chairman, Railway Board v. Mrs. Chandrima Das¸ AIR 2000 SC 988, it was observed as under:
“In the aforesaid case, a Bangladeshi woman was subjected to rape by an accused in India. A writ petition was filed by a practicing advocate under Article 226 of the Constitution of India for paying compensation to the victim. The Supreme Court has considered the applicability of Articles 21 and 14 of the Constitution in such cases.
The Fundamental Rights are available to all the citizens of the country but a few of them are also available to “persons”. While Article 14, which guarantees equality before law or the equal protection of laws within the territory of India, is applicable to “person” which would also include the “citizen” of the country and “non-citizen” both. Article 15 speaks only of “citizen” and it is specifically provided therein that there shall be no discrimination against any “citizen” on the ground only of religion, race, caste, sex, place of birth or any of them nor shall any citizen be subjected to any disability, liability, restriction or condition with regard to access to shops, public restaurants, hostel and places of public entertainment, or the use of wells, tanks, bathing ghats, roads and place of public resort on the aforesaid grounds. Fundamental Rights guaranteed under Article 15, is therefore, restricted to “citizen”. So also, Article 16 which guarantees equality of opportunity in matters of public employment is applicable only to “citizens”. The Fundamental Rights contained in Article 19, which contains the right to “Basic Freedoms”, namely, freedom of speech and expression; freedom to assemble peaceably and without arms; freedom to form associations or unions; freedom to move freely throughout the territory of India; freedom to reside and settle in any part of the territory of India and freedom to practice any profession, or to carry on any occupation, trade or business, are available only to “citizens” of the country.
The word “citizen” in Article 19 has not been used in a sense different from that in which it has been used in Part II of the Constitution dealing with “citizenship”. It has also been held that the words “all citizens” have been deliberately used to keep out all “non-citizens” which would include aliens.
Thus, Government service is strictly restricted to the persons who are natural citizens of India or have acquired Indian Citizenship. A person who is not an Indian citizen cannot take a regular or permanent job with the Government, either Central or State. Raj Kumari v. State of U.P., 2017 (1) AWC 873.

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Doctrine of Equal Pay for Equal Work – When can be invoked

In Deb Narayan Shyam v. State of West Bengal, (2005) 2 SCC 286, the Court summarized as to when doctrine of equal pay for equal work would apply:
“Large number of decisions have been cited with regard to the principle of ‘equal pay for equal work’. The principle is settled that if the two categories of posts perform the same duties and function and carry the same qualification then there should not be any distinction in pay scale between the two categories of posts similarly situated. But when they are different and perform different duties and qualifications for recruitment being different, then they cannot be said to be equated so as to qualify for equal pay for equal work.”
In State of Madhya Pradesh v. Ramesh Chandra Bajpai, 2009 (11) SCALE 619, the court said that it is well settled that the doctrine of equal pay for equal work can be invoked only when the employees are similarly situated. Similarity in designation or nature or equation of work is not determinative for equality in the matter of pay scales. The court has to consider the factors like the source and mode of recruitment/appointment, qualifications, nature of work, the value thereof, responsibility, reliability, experience, confidentiality, functional need, etc., In other words the equality clause can be invoked in the matter of pay scale only when there is a wholesale identity between the two posts.
That doctrine of equal pay for equal work can be invoked only when the employees are similarly situated and that similarity of the designation or nature or quantum of work is not determinative of equality in the matter of pay scales and that the court has to consider several factors and only when there was wholesale identity between the holders of two posts, equality clause can be invoked and not otherwise. Vishal Chand v. State of U.P., 2017 (1) AWC 841.

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Transfer of Land – By Government

Articles 294 to 296 of the Constitution of India provide for vesting or property (which includes land) and assets in the Union of India and various States. Article 294 deals with the development of the property and assets which vested (prior to the coming into force of the Constitution) in His Majesty for the purposes of the Government of the Dominion of India and for the purposes of the Government of each Governor’s Province. Article 295 provides for the succession to the property and assets which vested prior to the commencement of the Constitution in any Indian State. Article 296 deals with accrual of properties by escheat or lapse or as bona vacantia. The Imperial Legislature recognized the need of a law to regulate the method and manner by which the Governments could transfer or create any interest in the land vested in the Government. Section 2 of the Government Grants Act declares that “nothing contained in the Transfer of Property Act, 1882 applies to any grant or other transfer of land or any interest therein” made by or on behalf of the Government either prior to or after the commencement of the said Act. In other words, when the Government transfers land or any interest therein to any person, such a transfer is not governed by the Transfer of Property Act, 1882. The rights and obligations flowing from the transfer of either a piece of land or an interest therein by the Government cannot be determined on the basis of the rights and obligations specified under the Transfer of Property Act, 1882. They are to be ascertained only from the tenor of the document made by the Government evidencing such a transfer. Tata Steel Ltd. v. State of Jharkhand, (2015) 15 SCC 55.

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