Tag Archives: Constitution of India

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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Filed under Employment Law, government service

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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Filed under Employment Law, Equal Pay for Equal Work

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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Filed under Civil Law, Transfer of Land by Government