Revision as of 21:17, 21 October 2015 by Webgeek
Administrative Law is the law related with the administrative functions of the Administrative Agencies (the Government and its Departments). The Law involves the study of the following broad topics:
- Check abuse or detournment of administrative power
- Ensuring citizens an impartial determination of their disputes by officials
- Protect citizens from unauthorized encroachment on their rights and interests
- Make those who exercise public power be accountable to people
- 1 History, Evolution, Nature and Trends in Administrative Law
- 2 Tribunals & Tribunalization
- 3 Bureaucracy
- 4 Maladministration
- 5 Legislative Powers of Administration
- 6 Administrative Adjudicatory Process
- 7 Principles of Natural Justice
- 8 Judicial Control of Administrative Action
- 9 Administrative discretion and its judicial control
- 10 Liability for Wrongs
- 11 Corporations and Public Undertakings
- 12 Powers of Enquiry and Investigation of the Administration
- 13 Related Acts
- 14 Related Rules
- 15 Related Cases / Recent Cases / Case Law
- 16 Related Topics
History, Evolution, Nature and Trends in Administrative Law
- Evolution of Administrative Law
- Doctrine of Separation of Powers (des pouvoirs)
- Rule of Law and Administrative Law
- Scope of Administrative Law
- Source of Administrative Law
- Transformation from a Laissez Faire State to a Social Welfare State
- State as a regulator of primary interest
- State as a provider of services
- Other functions of modern state - relief, welfare.,
- Prof. Wade define Administrative Law as the 'law related to the control of governmental power'.
- Administrative Law is mostly judge-made law and is not contained in any single legislative enactments.
- Administration as the fourth branch of Government
- Necessity for delegation of powers on administration
- Evolution of agencies and procedures for settlement of dispute between individual and administration
- Regulatory agencies in the United States
- Relationship between Constitutional Law and Administrative Law
- Emerging trends in Administrative Law
Tribunals & Tribunalization
- Tribunal - a special court set up by Government to deal with specific type of cases
- Advantages of Tribunals - Tribunals have certain unique advantages of the traditional Court system.
- Conseild' state of France
- Droit Administratif
- Tribunalization in England: History of Tribunals in England
- Tribunalization in India
- Bureaucracy with special focus on the India Bureaucratic system
- Organisation of civil services
- Powers and functions
- Disciplinary proceedings
- Prosecutions under Prevention of Corruption Act
- Prevention of Corruption Act, 1988
- Ombudsman in England
- Ombudsman in USA
- Ombudsman in India
- Institution of Ombudsman in the States
- Right to Know and Right to Information
- Discretion to Disobey
- Parliamentary Commissioner
- Central Vigilance Commission (CVC)
- Congressional and Parliamentary Committees.
Legislative Powers of Administration
- Concept of Delegated legislation / Subsidiary legislation
- Delegation of legislative power
- Constitutionality of delegated legislation-powers of exclusion and inclusion and power to modify statute
- Requirements for the validity of delegated legislation
- Consultation of affected interests and public participation decision-making
- Publication of delegated legislation
- Administrative directions, circulars and policy statements
- Legislative control of delegated legislation
- Laying procedures and their efficacy
- Committees on delegated legislation - their constitution function and effectiveness
- Hearings before legislative committees
- Judicial control of delegated legislation
- Doctrine of ultra vires
- Sub-delegation of legislative powers
Administrative Adjudicatory Process
- Administrative tribunals and other adjudicating authorities their ad-hoc character
- Central Board of Customs and Excise
- MRTP Commission
- ESI Courts
- Service Tribunals
- Jurisdiction of administrative tribunal
- Distinction between Quasi-Judicial Function and administrative functions
- Legal Representation in Administrative proceedings
Principles of Natural Justice
- Principles of Natural Justice
- Principles of Natural Justice and India
- Right to hearing
- Essentials of hearing process
- Rule against bias - No one can be a judge in his own cause
- Oral hearing
- Right to counsel
- Institutional Decision
- Exception to the rule of Natural Justice
- Violation of principles of natural justice
- Administrative Appeals
- Council of Tribunals and Inquiries in England
- U.S. Regulatory Agencies
- Administrative Procedures Act 1946
- Exceptions to the rules of natural justice
- Violation of principles of natural justice
Judicial Control of Administrative Action
- Judicial Control of Administrative Action is the judicial review of the administration by the courts using principles developed by the courts themselves.
- The general trend is such that judicial review of administrative actions is widened and immunity restricting it is reduced
- Courts are empowered to take up action for the enforcement of Fundamental Rights
- Courts as final authority of determine legality of administrative action-problems and perspectives
- Exhaustion of administrative remedies
- Laches or unreasonable delay
- Res judicata says that the matter cannot be raised again, either in the same court or in a different court (of the same level).
- Grounds of Judicial Review of Administrative Action
- Jurisdictional error / ultra vires
- Abuse and non exercise of jurisdiction
- Error apparent on the face of the record
- Violation of principles of natural justice
- Violation of public policy
- Primary jurisdiction
- Doctrine of Legitimate Expectation
- Doctrine of public accountability
- Doctrine of proportionality
- Methods of Judicial Review
- Statutory appeals
- Public Interest Litigation
- Declaratory judgments and injunctions
- Specific performance and civil suits for compensation
- Fact-finding commissions
- Finality Clause - clauses that put acts outside judicial review
Administrative discretion and its judicial control
- Administrative discretion
- Administrative Discretion and Fundamental Rights
- Abuse of discretion in Administrative Law
- Administrative discretion and rule of law
- Male fide exercise of discretion
- Constitutional imperatives and use of discretionary authority
- Irrelevant considerations
- Non-exercise of discretionary power
- Discretion to prosecute or to withdraw prosecution
- Judicial control of Administrative discretion
- Confining and structuring discretion
- General discretion
- Technical discretion.
- Administrative discrimination
Liability for Wrongs
- In regard to Government liability in torts, the term Administration is synonymously used with State or Government
- Tortuous liability sovereign and non-sovereign functions
- Liability of Administration in Torts
- Crown Proceedings Act of U.K.
- Torts Claims Act of U.S.
- Statutory immunity
- Contractual liability of government
- Government privilege in legal proceedings-State
- Secrets, public interest, etc.,
- Right to information and open government
- Estoppel and Waiver
Corporations and Public Undertakings
- State Monopoly
- Remedies against arbitrary action
- Liability of public and private corporations of Departmental undertakings
- Legal Remedies
- Accountability - Committee on Public Undertakings, Estimates Committee, etc.
- Control of Statutory Corporations
- Parliamentary Control
- Governmental Control
- Judicial Control
- Public Control
- Government Companies
Powers of Enquiry and Investigation of the Administration
Related Cases / Recent Cases / Case Law
- Chandi Prasad Uniyal & Ors vs State of Uttarakhand & Ors., Civil Appeal No 5899 of 2012
- Excess payment made due to wrong/irregular pay fixation can always be recovered except few instances pointed out (such as the worker is a low-wage labourer or the employee has already retired or is about to retire etc.)
- ..the institution in which the appellants were working would be responsible for recovery of the amount received in excess from the salary/pension
- ..we order the excess payment made be recovered from the appellant’s salary in twelve equal monthly installments
- Shyam Babu Verma v. Union of India [(1994) 2 SCC 521]
- The higher pay scale was erroneously paid in the year 1973, the same was sought to be recovered in the year 1984 after a period of eleven years.
- Sudden deduction of the pay scale from Rs.330-560 to Rs.330-480 after several years of implementation of said pay scale had not *only affected financially but even the seniority of the petitioners.
- Court held that it would not be just and proper to recover any excess amount paid.
- Sahib Ram v. State of Haryana [1995 Supp (1) SCC 18]
- Appellants did not possess the required educational qualification and consequently would not be entitled to the relaxation but having granted the relaxation and having paid the salary on the revised scales, it was ordered that the excess payment should not be recovered applying the principle of equal pay for equal work.
- Yogeshwar Prasad and Ors v. National Institute of Education Planning and Administration and Ors. [(2010) 14 SCC 323]
- The grant of higher pay could be recovered unless it was a case of misrepresentation or fraud.
- On facts, neither misrepresentation nor fraud could be attributed to appellants therein and hence, restrained the recovery of excess amount paid.
- Col. B.J. Akkara (retd.) v. Government of India and Ors. [(2006) 11 SCC 709]
- A Government servant, particularly one in the lower rungs of service would spend whatever emoluments he receives for the upkeep of his family. If he receives an excess payment for a long period, he would spend it genuinely believing that he is entitled to it. As any subsequent action to recover the excess payment will cause undue hardship to him, relief is granted in that behalf.
- But where the employee had knowledge that the payment received was in excess of what was due or wrongly paid, or where the error is detected or corrected within a short time of wrong payment, Courts will not grant relief against recovery. The matter being in the realm of judicial discretion, courts may on the facts and circumstances of any particular case refuse to grant such relief against recovery.
- Syed Abdul Qadir and Ors. v. State of Bihar and Ors. [(2009) 3 SCC 475]
- Undoubtedly, the excess amount that has been paid to the appellants - teachers was not because of any misrepresentation or fraud on their part and the appellants also had no knowledge that the amount that was being paid to them was more than what they were entitled to.
- ..the Finance Department had, in its counter affidavit, admitted that it was a bona fide mistake on their part. The excess payment made was the result of wrong interpretation of the rule that was applicable to them, for which the appellants cannot be held responsible.
- Rather, the whole confusion was because of inaction, negligence and carelessness of the officials concerned of the Government..
- ..that majority of the beneficiaries have either retired or are on the verge of it.
- Keeping in view the peculiar facts and circumstances of the case at hand and to avoid any hardship to the appellants-teachers, we are of the view that no recovery of the amount that has been paid in excess to the appellants-teachers should be made.
- Varanaseya Sanskrit Vishwavidyalaya and Another v. Rajkishore Tripathi (Dr.), (1977) 1 SCC 279: In matters of discipline or administration of the internal affairs of a University, the courts should be most reluctant to interfere.
- S D Joshi vs High Court of Bombay (2011) 1 SCC 252, para 62: Judges are not employees of the State. As members of the judiciary, they exercise sovereign judicial powers of the State. The Judges, at whatever level they may be, represent the State and its authority unlike the bureaucracy or the members of other services.
- It is inappropriate for Courts to issue a mandate to legislate an Act and also to make a subordinate legislation in a particular manner
- Where the High Court issued directions for inserting certain additional words into a notification of exemption issued by the U.P. Government, it exceeded its jurisdiction in passing said directions -  10-344 (SC)
- Maharashtra v. Milind (2001) 1 SCC 4: The appellant was entitled to the protection of continuance in service (of being admitted into a Professional course), no matter ‘Halba-Koshtis’ were not recognised as ‘Halbas’.
- The Constitution Bench of this Court was examining whether Koshti was a sub-tribe within the meaning of Halba/Halbi as appearing in the Constitution (Scheduled Tribes) Order, 1950
- Respondent in that case had obtained a Caste Certificate from the Executive Magistrate to the effect that he belonged to ‘Halba’ Scheduled Tribe.
- He was on that basis selected for appointment to the MBBS Degree Course in the Government Medical College for the session 1985-86 against a seat reserved for Scheduled Tribe candidates. The certificate relied upon by the respondent-Milind was sent to the Scrutiny Committee, the Committee recorded a finding after inquiry to the effect that the respondent did not belong to Scheduled Tribe.
- In an appeal against the said Order, the Appellate Authority concurred with the view taken by the Committee and declared that the respondent-Milind belonged to ‘Koshti Caste’ and not to
‘Halba Caste’ Schedule Tribe.
- High Court held that it was permissible to examine whether any sub-division of a tribe was a part and parcel of the tribe mentioned therein and whether ‘Halba-Koshti’ was a sub-division of the main tribe ‘Halba’ within the meaning of Entry 19 in the Constitution (Scheduled Tribes) Order, 1950.
- The High Court further held that Halba-Koshti was indeed a sub-tribe of Halba appearing in the Presidential Order.