The Scope of Statutory and Non-Statutory Rules to Maintain Constitutional Petitions in Service Matters: A Judicial Perspective

Abstract

In the past, the courts observed that where the services of a government servant or an employee of a statutory body are terminated, the civil courts have jurisdiction to examine whether their services were validly terminated. In this regard, the primary limitation was that the enforcement of the contract of appointment must not involve the personal service of an employee or servant. The presence of adequate monetary compensation in cases of non-performance of the contract was taken as another limitation. Thus, the courts enforced the contracts in terms of the relevant provisions of the Specific Relief Act, 1877, for which the major determining aspects were the nature of the contract and the existence of some statutory office. In this regard, the question to be determined was whether functions assigned to an employee under a contract have some statutory backing. Subsequently, constitutional protection was extended to the prescribed categories of posts, while excluding the category of employees working in public corporations or entities, who were divested of such protection. To fill this gap, the courts held that if the terms and conditions of service are statutory, the same can be set aside through constitutional petitions. However, where such terms and conditions were found to be non-statutory or governed by such regulations, instructions or directions, which were meant for the internal use of an institution or body, any violation thereof was held not enforceable through constitutional petitions as the principle of master and servant was applied in such case. The judicial perspective again took another diversion when statutory limitations upon employers were considered as an extended protection to employees, entitling them to maintain their constitutional petitions. Subsequently, to limit such a perspective, the function test was adopted as an approach to consider whether a statutory body is a ‘Person’ under Article 199 of the Constitution, to maintain a writ petition in service matters. Thus, the function test gradually replaced various limitations for maintaining constitutional petitions as a preferred approach to address the need for statutory rules of service. The development of the case law relevant to maintaining constitutional petitions needs to be studied to assess the judicial perspective for better legal and professional understanding.