Dear Sir, Following are the some legal points which I hope will assist us in the pending case of promotional hierarchy. 1. aequitas est quase aequalitas (Equality is equity) means if there are no reasons for any discrimination those are entitled to it shell get equally. 2. Contra proferentum :- The principal that ambiguities in documents should be construed against the drafter. 3. LEGITIMATE EXPECTATION :- It is an expectation induced by public authority that an individual will be granted or retain substantive benefit. A failure on the part of the public authority to act accordance with the expectation is considered to be a breach of the rule of law that required predictability an certainty and is therefore (ultra vires). The land mark decided case on this principle is R v North and East Devon health Authority, ex p coughlan (2001) QB 213(CA). The expectation must based on either an express undertaking or arise from past conduct on the part of the public authority in order for it to be recognized as legitimate or reasonable (AG for Hong Kong v Ng Yuen shiu (1983) 2AC629(PC). 4. retrospective legislation:- Legislation that operate on matters taking place before its enactment, e.g. by penalizing conduct that was lawful when it occurred. There is a presumption that statutes are not intended to have retroactive effect unless they merely change legal procedure. 5. Beside these principles I like to mention some provisions of the Indian Constitution No. 1, Article 14 which says equality before law or equal protection of law ( the State shell not deny to any person equality before the law. The expression equality before law is similar to Rule of law. If the state action is arbitrary or irrational, it would be treated as being against Article 14. In E.P Royappa v.State of Tamil Nadu AIR 1974 SC 555, the Supreme Court has made it clear that from a positivistic point of view, equality is antithetic to arbitrariness. In fact equality an arbitrariness are sworn enemies, one belong to the rule of law in a republic while the other to the whim and caprice of an absolute monarch. Where an act is arbitrary, it is implicit in it that it is unequal both according to political logic and constitutional law and it is therefore violative of Article 14. 6. The Preamble of Indian Constitution also promises about equality of status and opportunity to all it’s citizen. Article 39[d] which talks about EQUAL PAY FOR EQUAL WORK. In Randhir Singh v. Union of India, AIR 1982 SC 879 the Supreme Court has held that the principle of ,” EQUAL PAY FOR EQUAL WORK though not a fundamental right,” is certainly a constitutional goal and, therefore, capable of enforcement through constitutional remedy under Article 32 of the constitution. SUBMITTED FOR YOUR KIND CONSIDERATION, AND REPLY IF ANY. Your Ashok Sharma
Dear Sir,
ReplyDeleteFollowing are the some legal points which I hope will assist us in the pending case of promotional hierarchy.
1. aequitas est quase aequalitas (Equality is equity) means if there are no reasons for any discrimination those are entitled to it shell get equally.
2. Contra proferentum :- The principal that ambiguities in documents should be construed against the drafter.
3. LEGITIMATE EXPECTATION :- It is an expectation induced by public authority that an individual will be granted or retain substantive benefit. A failure on the part of the public authority to act accordance with the expectation is considered to be a breach of the rule of law that required predictability an certainty and is therefore (ultra vires).
The land mark decided case on this principle is R v North and East Devon health Authority, ex p coughlan (2001) QB 213(CA). The expectation must based on either an express
undertaking or arise from past conduct on the part of the public authority in order for it to be
recognized as legitimate or reasonable (AG for Hong Kong v Ng Yuen shiu (1983) 2AC629(PC).
4. retrospective legislation:- Legislation that operate on matters taking place before its enactment, e.g. by penalizing conduct that was lawful when it occurred. There is a presumption that statutes are not intended to have retroactive effect unless they merely change legal procedure.
5. Beside these principles I like to mention some provisions of the Indian Constitution No. 1, Article 14 which says equality before law or equal protection of law ( the State shell not deny to any person equality before the law. The expression equality before law is similar to Rule of law. If the state action is arbitrary or irrational, it would be treated as being against Article 14.
In E.P Royappa v.State of Tamil Nadu AIR 1974 SC 555, the Supreme Court has made it clear that from a positivistic point of view, equality is antithetic to arbitrariness. In fact equality an arbitrariness are sworn enemies, one belong to the rule of law in a republic while the other to the whim and caprice of an absolute monarch. Where an act is arbitrary, it is implicit in it that it is unequal both according to political logic and constitutional law and it is therefore violative of Article 14.
6. The Preamble of Indian Constitution also promises about equality of status and opportunity to all it’s citizen. Article 39[d] which talks about EQUAL PAY FOR EQUAL WORK. In Randhir Singh v. Union of India, AIR 1982 SC 879 the Supreme Court has held that the principle of ,” EQUAL PAY FOR EQUAL WORK though not a fundamental right,” is certainly a constitutional goal and, therefore, capable of enforcement through constitutional remedy under Article 32 of the constitution.
SUBMITTED FOR YOUR KIND CONSIDERATION, AND REPLY IF ANY.
Your Ashok Sharma