SUITS BY AND AGAINST THE STATE

Subject Law of Torts

Submitted to Prof.M.Sridhar Acharyulu Professor of Law

Submitted by Pallavi Dutta Roll no ! "st #ear$ "st Semester

%ational Academy for Le&al Studies and Research 'niversity of Law$ (yderabad

TABLE OF CONTENTS

)."%TR*D'+T"*%,,,,,,,,,,,,,,,,,,,,,,,,,,,,,) !.R-S-AR+( M-T(*D*L*.#,,,,,,,,,,,,,,,,,,,,,,,.! /.0AST'R"LAL RAL"A RAM 1A"% v. STAT- *2 'TTAR PRAD-S(,,,,,,,.../ . STAT- *2 A%D(RA PRAD-S( v. +(ALLA RAM0R"S(%A R-DD# 3 *RS,,, 4.%.%A.-%DRA RA* 3 +*.v. STAT- *2 A%D(RA PRAD-S(,,,,,,,,,.. 5.A+('TRA* (AR"6(A' 0(*D7A A%D *T(-RS v. STAT- *2 MA(ARAS(TRA A%D *T(-RS,,,,,,,,,,,,,,,,,,,,,,,,,,,,,, 8. STAT- *2 RA1AST(A% v. MST 9"D(#A7AT" A%D A%R,,,,,,,,,, :.+*%+L'S"*%,,,,,,,,,,,,,,,,,,,,,,,,,,,,,, ;.6"6L"*.RAP(#,,,,,,,,,,,,,,,,,,,,,,,,,,,,,

1. Introduction

*ne of the oldest and most fundamental <rinci<les of -n&lish +ommon Law was that the 0in& could do no wron&. A correct inference to this would be that neither could his servants i.e. servants of the State. 6ut in subse=uent years the duties dischar&ed by the State rose in number and eventually the +rown Proceedin&s Act was <assed by which now the State could be held liable for the torts committed its servants. "n "ndia tortious liability of the State is elucidated in Article />>. of the +onstitution of "ndia$ which says that the 'nion of "ndia and States of the 'nion are juristic <ersons and that they can sue and be sued.)

Article />> reads as? (1) The Government of India may sue or be sued by the name of the Union of India and the Government of a State may sue or be sued by the name of the State any may, subject to any provision which may be made by Act of ar!iament or of the "e#is!ature of such State enacted by virtue of powers conferred by this $onstitution, sue or be sued in re!ation to their respective affairs in the !i%e cases as the &ominion of India and the correspondin# provinces or the correspondin# Indian States mi#ht have sued or been sued if this $onstitution had not been enacted' (() If at the commencement of this $onstitution ) (a) any !e#a! proceedin#s are pendin# to which the &ominion of India is party, the Union of India sha!! be deemed to be substituted for the &ominion in those proceedin#s* and (b) any !e#a! proceedin#s are pendin# to which a rovince or an Indian State is a party, the correspondin# State sha!! be deemed to be substituted for the province or the Indian State in those proceedin#s'

1.1 Researc !et odo"o#$

)

Ratanlal and Dhirajlal$ @T+, "A- ./ T.0TS,1 ! T( edition$ 7adhwa 3 co$ <. !

The researcher has ado<ted the doctrinal form of research in com<letin& this <roject. As the <roject is <rimarily a case study on Suits 6y and A&ainst the State$ the doctrinal form of research was most a<<ro<riate. Primary as well as secondary sources of information have been used from the %ALSAR Law Library. The above cate&ory of material consists of law re<orters such as A"R and S++ .Also$ secondary soft co<y sources of information have been <erused from online database Manu<atra$. %o <art of this <roject is <la&iariAed and it is the ori&inal worB of the researcher.

%. &ASTURILAL RALIA RA! 'AIN (. STATE OF UTTAR )RADESH AIR 1*+, SC 1-.*

%.1 L-.AL PR"%+"PL- / Acts done in the course of em<loyment by officers and servants of the .overnment are <rotected from claims of tortious liability by the Doctrine of Soverei&n "mmunity.

%.% 2A+TS / The a<<ellant was a <artner in a firm that dealt in bullion and other &oods in Amritsar$re&istered under the "ndian Partnershi< Act. *n the !>th Se<tember$ ); 8 Ralia Ram arrived at Meerut by the 2rontier Mail about midni&ht. (is object in &oin& to Meerut was to sell &old$ silver and other &oods in the Meerut marBet. (ere he was taBen into custody by three <olice constables and his belon&in&s searched$ after which he was confined to a <olice locB u< and his belon&in&s which consisted of &old$ wei&hin& )>/ tolas 5 mashas and ) ratti$ and silver wei&hin& ! maunds and 5 )C! seers$ were seiAed from him and Be<t in <olice custody.*n !)st Se<tember$ ); 8 the a<<ellant was released on bail and his silver was returned to him.The a<<ellant then made re<eated demands for the &old which had been seiAed from or its e=uivalent <ecuniary com<ensation. This claim was however resisted by the res<ondent on several &rounds. "t was made Bnown that neither the &old nor its monetary e=uivalent could be &iven. The res<ondent alle&ed that the &old in =uestion had been taBen into custody by one Mohammad Amir$ who was then the (ead +onstable$ and it had been Be<t in the <olice MalBhana under his char&e. Mohd. Amir$ however$ misa<<ro<riated the &old and filed away to PaBistan on the )8th *ctober$ ); 8. (e had also misa<<ro<riated some other cash and articles de<osited in the MalBhana before he left "ndia. The res<ondent further alle&ed that a case under section >; of the "ndian Penal +ode as well as s. !; of the Police Act had been re&istered a&ainst Mohd. Amir$ but nothin& effective could be done in res<ect of the said case because in s<ite of the best efforts made by the <olice de<artment$ Mohd. Amir could not be a<<rehended.This led to the <resent suit bein& filed by the a<<ellant.

%.. "SS'-S / ). 7ere the <olice officers in =uestion &uilty of ne&li&ence in the matter of taBin& care of the &old which had been seiAed from Ralia RamD

!. 7as the res<ondent liable to com<ensate the a<<ellant for the loss caused to him by the ne&li&ence of the <ublic servants em<loyed by the res<ondentD

%.0 +*%T-%T"*%S / ). The a<<ellant ar&ued that it was im<ossible to deny the ne&li&ence of the <olice officers in their handlin& of the seiAed <ro<erty. %ot only was the <ro<erty not Be<t in safe custody in the treasury$ but the manner in which it was dealt with at the MalBhana shows &ross ne&li&ence on the <art of the <olice officers. A list of articles seiAed does not a<<ear to have been made and there is no evidence that they were wei&hed either. "t is true that the res<ondentEs case is that these &oods were misa<<ro<riated by (ead +onstable Mohd. AmirF but that would not assist the res<ondent in contendin& that the manner in which the seiAed <ro<erty was dealt with at the <olice station did not show &ross ne&li&ence.

!. The res<ondent challen&ed the correctness of this alle&ation by statin& that no ne&li&ence had been established a&ainst the <olice officers in =uestion and that even if it was assumed that the <olice officers were ne&li&ent and their ne&li&ence led to the loss of &old$ that would not justify the a<<ellantEs claim for a money decree a&ainst the res<ondent.

%., 1'D.-M-%T : ). The (i&h +ourt reversed the jud&ement of the trial court by dismissin& the a<<ellantGs a<<eal and not awardin& him any dama&es on the &rounds that the <ower to arrest a <erson$ to search him$ and to seiAe <ro<erty found with him$ are <owers conferred on the s<ecified officers by statute and in the last analysis$ they are <owers which can be <ro<erly characterised as soverei&n <owersF and so$ there is no difficulty in holdin& that the act which &ave rise to the <resent claim for dama&es has been committed by the em<loyee of the res<ondent durin& the course of its em<loymentF but the em<loyment in =uestion bein& of the cate&ory which can claim the s<ecial characteristic of soverei&n <ower$ the claim cannot be sustained.

.. STATE OF ANDHRA )RADESH (. CHALLA RA!&RISHNA REDDY 1 ORS. AIR 1*2* A) %.,

..1 L-.AL PR"%+"PL- / The 2undamental Ri&ht to Life under Article !) of the +onstitution is &uaranteed to every citiAen includin& <risoners and convicts and cannot be contravened by the Doctrine of Soverei&n "mmunity.

..% 2A+TS / The res<ondent$ +halla RamBrishna Reddy and his father$ +halla +hinna<<a Reddy were involved in +riminal +ase %o. ):C);;8 of *wB Police Station in 6a&ana<alle TaluB of 0urnool District.They were remanded in judicial custody on !5th A<ril );88 after bein& arrested on !4th A<ril of the same year$ and were lod&ed in +ell %o. 8 of SubHjail$ 0oilBuntla. "n the ni&ht between 4th and 5th of May$ );88$ at about /./> A.M.$ some <ersons entered the <remises of SubHjail and hurled bombs into +ell %o. 8 as a result of which +halla +hinna<<a Reddy sustained &rievous injuries and died subse=uently in .overnment hos<ital$ 0urnool. (is son +halla RamaBrishna Reddy who was also lod&ed in +ell %o. 8$ however$ esca<ed with some injuries.+onse=uently$ the a<<ellant$ his mother and his other four brothers filed a suit a&ainst the State of Andhra Pradesh. The contentions were acce<ted by the trial court and the suit was dismissed. *n a<<eal$ the suit was decreed by the (i&h +ourt for a sum of Rs. )$ jud&ment which is challen&ed in this a<<eal. $>>>CHwith interest at the rate of 5 <er cent <er annum from the date of the suit till realisation. "t is this

... "SS'-S / ). To what eItent was the State immune from liability with res<ect to its soverei&n actsD !. Since <risons are maintained by the State in lieu of maintainin& law and order$ are suits for com<ensation in case of custodial deaths unH maintainableD

..0 CONTENTIONS / ). The +ounsel for the State of Andhra Pradesh contended that the suit was barred by time as the <eriod of limitation$ as <rovided by Article 8! of the Limitation Act$ );5/ was only one year and since the act com<lained of tooB <lace in the ni&ht intervenin& 4th and 5th of May$ );88$ the suit which was instituted on ;th of 1une$ );:>$ was barred by time. !. +ounsel a<<earin& on behalf of the res<ondents on the other hand$ contended that the <eriod of limitation would be &overned by Article ))/ of the Limitation Act$ );5/ which <rescribed a <eriod of three years from the date on which the ri&ht to sue accrued. "t is contended that Article ))/ was the residuary Article and since the nature of the <resent suit was not covered by any other Article of the Limitation Act$ it would be &overned by the residuary Article $ namely$ Article ))/ and$ therefore$ the suit$ as held by the (i&h +ourt$ was within limitation. /.4 'UDGE!ENT ? ). The +ourt while &ivin& the jud&ement stated that$ there had been a number of cases where com<ensation had been awarded to those who had suffered <ersonal injuries at the hands of &overnmental officers includin& the <olice. The learned jud&es also said that the instance of 0AST'R"LAL RAL"A RAM 1A"% v. STAT- *2 'TTAR PRAD-S(! was now re&arded as an eIam<le of miscarria&e of justice was no lon&er of a bindin& value. Therefore$ barrin& functions such as administration of justice$ maintenance of law and order and re<ression of crime etc. which are amon& the <rimary and inalienable functions of a constitutional .overnment$ the State cannot claim any immunity. "n lieu of the aforementioned reasons$ the a<<eal was dismissed.

A"R );54 S+ )>/;

0. N.NAGENDRA RAO 1 CO.(. STATE OF ANDHRA )RADESH AIR 1**0 SC %++.

0.1 L-.AL PR"%+"PL- / "f a citiAen is injured$ when <ublic servants are eIercisin& their statutory duty$ the state would be held liable.

0.% 2A+TS / The a<<ellant traded in fertiliser and food&rains$ and had the necessary licences issued.2ollowin& a re<ort by a <olice ins<ector of the 9i&ilance +ell$ lar&e stocBs of fertilisers$ food&rains and non essential commodities were seiAed from his <remises on the <reteIt that it should be distributed to needy ryots and the food&rains and non essential &oods should be Be<t in custody of the Assistant A&ricultural *fficer for immediate dis<osal and the sale <roceeds should be Be<t in the treasury.The a<<ellant <leaded that the &oods seiAed would <erish and would result in &reat loss.0ee<in& this in mind the +ollector <assed an order$ orderin& the release of the &oods.The same was u<held by the Sessions 1ud&e$ however des<ite the +ollectorGs order and the *rder <assed in a<<eal by the Sessions 1ud&e the Assisstant A&ricultural *fficer refused to release the &oods.

0.. "SS'-S / ). 7as the State vicariously liable for the ne&li&ence of its officers in dischar&e of their statutory dutiesD

0.0 +*%T-%T"*%S / ). The state <ut forward the defence of soverei&n immunity wherein$ the state in durin& the dischar&e of its statutory duties could not be held liable by way of a tortious act.

0., 1'D.-M-%T / ). The Su<reme +ourt in this case a<<lied the <rinci<le of <ublic <olicy whereby the +ourt

is re=uired to eIercise its <ower to com<ensate owners of &oods where loss or dama&e has occurred due to la<se on <art of its officers.-Itendin& the doctrine of vicarious liability in torts to the state$ the +ourt refused to acce<t the defence of soverei&n immunity as <ro<ounded by the res<ondent and ruled in favour of the a<<ellant.

,. ACHUTRAO HARIBHAU &HOD3A AND OTHERS (. STATE OF !AHARASHTRA AND OTHERS AIR 1**+ SC %.44

,.1 L-.AL PR"%+"PL- / The State is not <rotected by the defence of Soverei&n "mmunity in the case of establishments where it derives commercial benefits such as hos<itals.

,.% 2A+TS / The case of the a<<ellants was thus$ the deceased$ one +handriBabai was admitted in the +ivil (os<ital$ Auran&abad on )>th 1uly$ );5/$ for delivery of a child. This maternity hos<ital is attached to the Medical +olle&e at Auran&abad and res<ondent %o. ! was worBin& in the de<artment of *bstetrics and .ynaecolo&y as a doctor and it is she who attended on +handriBabai. Res<ondent %o. / was the Medical *fficer of the said hos<ital while res<ondent %o. was the Dean of Medical +olle&e$ Auran&abad. +handriBabai delivered a male child on )>th 1uly$ );5/. As she had &ot herself admitted to this hos<ital with a view to under&o a sterilisation o<eration after the delivery$ the said o<eration was <erformed by res<ondent %o. ! on )/th 1uly$ );5/. Soon thereafter +handriBabai develo<ed hi&h fever and also had acute <ain which was abnormal after such a sim<le o<eration. (er condition deteriorated further and on )4th 1uly$ );5/ a<<ellant %o. ) a<<roached res<ondent %o. / and one Dr. Divan$ P7H!$ who was a wellHBnown sur&eon and was attached to the hos<ital$ but was not directly connected with the .ynecolo&ical de<artment. At the insistence of a<<ellant %o. ) Dr. Divan eIamined +handriBabai on )4th 1uly );5/$ and seein& her condition$ he is alle&ed to have su&&ested that the sterilisation o<eration which had been <erformed should be reHo<ened. This su&&estion was not acted u<on by res<ondent %os. ! and / and the condition of +handriBabai become very serious. *n );th 1uly$ );5/$ Dr. Divan$ on bein& called once a&ain$ reHo<ened the wound of the earlier o<eration in order to ascertain the true cause of the seriousness of the ailment and to find out the cause of the worsenin& condition of +handriBabai. Accordin& to the a<<ellants$ res<ondent %os. ! and / assisted Dr. Divan in this o<eration. Dr. Divan$ as a result of the second o<eration$ found that a mo< JtowelK had been left inside the body of +handriBabai when sterilisation o<eration was <erformed on her. "t was found that there was collection of <us and the same was drained out by Dr. Divan. Thereafter$ the abdomen was closed and the second o<eration com<leted. -ven$ thereafter the condition of +handriBabai did not im<rove and ultimately she eI<ired on ! th 1uly );5/. Alle&in& that +handriBabai was worBin& as a teacher

in a &overnment school and her salary au&mented the total income of the family$ it was <leaded that the death of +handriBabai was caused due to the ne&li&ence of res<ondent %o. ! who had <erformed the sterilisation o<eration on )/th 1uly );5/$ as well as the irres<onsible behavior of res<ondent %o. /. The a<<ellants also alle&ed that the hos<ital lacBed ade=uate medical aid and <ro<er care and there was &ross dereliction of duty on the <art of the officers of the .overnment +ivil (os<ital which directly resulted in the death of +handriBabai and$ therefore$ the a<<ellants were entitled to recover dama&es from the .overnment of Maharashtra Jres<ondent %o. )K as well as res<ondent %os. ! to .

,.. "SS'-S /

). Do <laintiffs <rove that the defendant %o. ! <erformed the o<eration without due care$ attention and caution and in the most ne&li&ent manner D !. Do <laintiffs <rove that a mo< was left in the abdomen of the deceased +handriBabai durin& the first o<eration$ and if so$ do <laintiffs further <rove that it was so left as a result of ne&li&ence$ lacB of care and insufficient dili&ence in the o<eration <erformed by defendant %o. ! D /. Do <laintiffs <rove that as a result of the mo< remainin& inside the body of +handriBabai durin& the first o<eration by defendant %o. !$ a severe <ain was caused to her deterioratin& her health and that the said mo< disturbed the internal or&anism of the body and resulted ultimately in the death of +handrBabai on ! th 1uly );5/.L . Do <laintiffs <rove that the defendants %o. ! and / did not taBe <ro<er care of +handriBabai in the <ost o<eration sta&eD 4. Do <laintiffs <rove that the defendant %o. also did not taBe any <ro<er and necessary ste<s

when he was instructed about the <ain received by +handriBabai D 5. Do they <rove that there was mismana&ement and careless behaviour in the hos<ital and ne&li&ence by defendant %o. / in the removal of the same and that it a&&ravated the situation resultin& in the death of +handriBabai D 8. Do the <laintiffs <rove that the death of +handriBabai was caused due to failure of duty on the <art of hos<ital authorities and their dereliction of duty and hence all defendants are liable for the same D

:. Do <laintiffs <rove the various details of com<ensationD ;. To what amount are <laintiffs entitled on account of dama&esD

,.0 +*%T-%T"*%S / ). "n su<<ort of their case$ the a<<ellants relied u<on the evidence of one $Dr. Divan$ who said that +handriBabaiGs condition was attributed to <ost o<erative <eritonitis which was due to a mo< left inside the <eritoneal cavity and caused inflammation$ from which recovery was difficult. !. All alle&ations of ne&li&ence were s<ecifically denied. "n addition thereto$ res<ondents ! and / filed se<arate written statements in which they also denied any ne&li&ence on their <art. Res<ondent %o. ! denied havin& left any mo< in the abdomen of +handriBabai and$ in the alternative$ <leaded$ that even if such a mo< was left inside the body$ the same could not have$ either directly or remotely$ caused the death. Res<ondent %o. / also denied the recovery of the mo< from the abdomen and &enerally su<<orted the case of the other res<ondents.

,., 1'D.-M-%T / The Su<reme +ourt said the claim of the a<<ellants cannot be defeated merely because it may not have been conclusively <roved as to which of the doctors em<loyed by the State in the hos<ital or other staff acted ne&li&ently which caused the death of +handriBabai. *nce death by ne&li&ence in the hos<ital is established$ as in the case here$ the State would be liable to <ay the dama&es. "n our o<inion$ thereforeF the (i&h +ourt clearly fell in error in reversin& the jud&ment of the trial court and in dismissin& the a<<ellantsE suit. 2or the aforesaid reasons$ this a<<eal was allowed$ the jud&ment of the (i&h +ourt of 6ombay under a<<eal is set aside and the jud&ment and decree of the trial court is restored. The a<<ellants were also be entitled to costs throu&hout.

+. STATE OF RA'ASTHAN (. !ST 5IDHYA3ATI AND ANR AIR 1*+% SC *..

+.1 L-.AL PR"%+"PL- / The eItent of the vicarious liability of .overnment for the tortious acts of its em<loyees$ actin& in the course of their em<loyment as such.

5.! FACTS ? The first defendant LoBumal$ was a tem<orary em<loyee of the a<<ellant State$ as a motor driver on <robation. "n 2ebruary$ );4!$ he was em<loyed as the driver of a .overnment jee< car$ re&istered as %o. R'M ;$ under the +ollector of 'dai<ur. The car had been sent to a worBsho< for necessary re<airs. After re<airs had been carried out$ the first defendant$ while drivin& the car bacB alon& a <ublic road$ in the evenin& of 2ebruary ))$ );4!$ BnocBed down one 1a&dishlal$ who was walBin& on the foot<ath by the said of the <ublic road in 'dai<ur city$ causin& him multi<le injuries$ includin& fractures of the sBull and bacBbone$ resultin& in his death three days later$ in the hos<ital where he had been removed for treatment. The <laintiffs who are 1a&dishlalEs widow and a minor dau&hter$ a&ed three years$ throu&h her mother as neIt friend sued the said LoBumal and the State of Rajasthan for dama&es for the tort aforesaid. They claimed the com<ensation of Rs. !4$>>>CH from both the defendants. The first defendant remained eIH<arte. The suit was contested only by the second defendant on a number of issues. The Trial +ourt dismissed the claim for com<ensation as a&ainst the State of Rajasthan$ which was the second defendant in the suit for dama&es for tortious act of the first defendant.This is an a<<eal a&ainst the decree of the Trial +ourt.

+.. "SS'-S 6 ). 'nder Art. />> of the +onstitution$ the State of Rajasthan$ was not liable as the corres<ondin& "ndian State would not have been liable if the case had arisen before the +onstitution came into force.

!. That the jee< car$ the rash and ne&li&ent drivin& of which led to the claim in the suit was bein& maintained Lin eIercise of soverei&n <owerL and not as <art of any commercial activity of the StateD

+.0 +*%T-%T"*%S / ). The <laintiffs demanded com<ensation from the State of Rajasthan on the &round that first defendant was rash and ne&li&ent in the act of drivin& which ultimately resulted in the death of the <laintiffGs husband$ in lieu of the first defendant bein& an em<loyee of the &overnment. !. The res<ondents ar&ued that thou&h the car in =uestion was in the service of the +ollector$ who ha<<ens to be an em<loyee of the State$ at the time of the accident the car was not bein& used to dischar&e any duties of the State.

+., 1'D.-M-%T / ). The A<<eal was dismissed by the Rajasthan (i&h +ourt on the &rounds that the State should be as much liable for tort in res<ect of a tortious act committed by its servant within the sco<e of his em<loyment and functionin& as such as any other em<loyer.

4. )USH)A THA&UR (. UNION OF INDIA AIR 1*2+ SC 11**

8.) L-.AL PR"%+"PL- ? +arryin& on of war is a soverei&n function it is incorrect to say that in all cases when a tort is committed by a member of the defence services in the course of em<loyment$ the State would succeed in <leadin& its immunity.

8.! 2A+TS ? A military trucB comin& from Delhi went to the wron& side of the road and hit a culvert because of the ne&li&ence of the driver. 2our <eo<le who were seated on the culvert sustained severe injuries$ the <laintiff an unmarried &irl of !/ fractured both her le&s and had had to have the ri&ht one am<utated. The trucB belon&ed to the 2irst Division which had been stationed at 2eroAe<ur durin& the "ndo PaB war of );8)."t was on its ways bacB to 1hansi when the accident occurred. The <laintiff conse=uently sued for dama&es.

8./ "SS'-S ? ). The trucB belon&ed to the military whose <rimary function is that of defense of the State which is a soverei&n function. "n such a case the defense of soverei&n immunity could be invoBedD 8. +*%T-%T"*%S ? ). The res<ondents ar&ued on &rounds of soverei&n immunity$ whereby since the trucB was in the course of duty carryin& out the orders of the State$ it was <rotected from all liability. 8.4 1'D.-M-%T ? The (i&h +ourt dismissed the claim of the <laintiff on &rounds of soverei&n immunity and did not hold the state liable. The Su<reme +ourt ne&atived this and held that the trucB was not <erformin& a routine duty directly connected to the function of defence$ a traditional soverei&n function$ hence the <lea of soverei&n immunity was rejected and com<ensation amountin& to the sum of )$>>$>>> was &ranted to the <laintiff alon& with interest.

2. NALINI &ANT SINHA (. STATE OF BIHAR AND OTHERS AIR 1**. SC 1.,2 :.) L-.AL PR"%+"PL- ? The State is liable to com<ensate for the wron&ful denial of claims but is not liable to com<ensate for mental an&uish suffered as it is not a le&al claim allowable in law. :.! 2A+TS ? The <laintiff was a De<uty Secretary to the .overnment of 6ihar. (owever he was denied <romotion to the <ost of 1oint Secretary and a junior was <romoted in his <lace and was &iven the salary that the <ost had to offer. The .overnment later realised its mistaBe and <romoted the <laintiff but refused to <ay him the difference in salary$ as they ar&ued that rules did not <ermit the award of difference as the <laintiff had not worBed on the <ost of <romotion before his actual <romotion. (ence the <romotion was only notional. The <laintiff conse=uently sued the res<ondent State for com<ensation on this account and also for com<ensation for the mental an&uish he suffered because of the wron&ful denial of <romotion. :./ "SS'-S ? ). +ould the .overnment deny the <laintiff the difference in salary on &rounds of such rulesD !. +ould the <laintiff recover dama&es not only on &rounds of denial of salary but also for the mental an&uish he suffered on account of itD :. +*%T-%T"*%S ? ). The <laintiff demanded the difference in salary that was denied to him alon& with additional com<ensation for his state of mind that followed the denial of that difference. !. The res<ondents ar&ued that statutory rule do not <ermit the <ayment of the difference of salary in such cases on retros<ective notional <romotion. -I<lainin& the circumstances under which the said junior em<loyee was <aid$ it was stated$ that the <ayment was the result of a mistaBe and that$ havin& re&ard to the circumstances of the case$ the .overnment did not initiate <roceedin&s for the recovery of the amount. :.4 1'D.-M-%T ? The +ourt in this case directed the res<ondent State to <ay the <etitioner the actual =uantum of the difference but the claim for com<ensation with res<ect to the alle&ed mental a&ony suffered that arose from the denial of <romotion was dismissed on &rounds of there bein& no le&al claim.

2. CONCLUSION ?

To conclude it would be correct to say that in the s<here of tortious acts the State can be held liable and made to <ay dama&es in the ca<acity of a juristic <erson a stated above.Thou&h the State can claim soverei&n immunity$ but this defence holds no water if actions of the State come into conflict with an individualGs 2undamental Ri&hts. -ven in those cases where the State is <rotected from vicarious liability on the doctrine of soverei&n immunity$ the <ublic servant committin& the tort is not."t is also no defence for the <ublic servant to say that the wron& was committed in the course of dischar&in& some statutory function or carryin& out the orders of su<eriors. Section :> of the +ivil Procedure +ode states that ? Save as otherwise provided in sub)section ((), no suits sha!! be instituted a#ainst the Government (inc!udin# the Government of the State of 2ammu 3 4ashmir) or a#ainst a pub!ic officer in respect of any act purportin# to be done by such officer in his officia! capacity, unti! the e5piration of two months ne5t after notice in writin# has been de!ivered to, or !eft at the office of6 (a) in the case of a suit a#ainst the $entra! Government, e5cept where it re!ates to a rai!way, a Secretary to that Government* (b) in the case of a suit a#ainst the $entra! Government where it re!ates to rai!way, the Genera! 7ana#er of that rai!way* (bb) in the case of a suit a#ainst the Government of the State of 2ammu and 4ashmir the $hief Secretary to that Government or any other officer authorised by that Government in this beha!f* (c) in the case of a suit a#ainst any other State Government, a Secretary to that Government or the $o!!ector of the district* and, in the case of a pub!ic officer, de!ivered to him or !eft at this office, statin# the cause of action, the name, description and p!ace of residence of the p!aintiff and the re!ief which he c!aims* and the p!aint sha!! contain a statement that such notice has been so de!ivered or !eft' The two months notice is &iven so that the a&&rieved individuals may sort out their differences with the State so as to <revent them from &oin& to +ourt.

*.BIBLIOGRA)HY

). Ratanlal and Dhirajlal$ @T+, "A- ./ T.0TS,1 ! T( edition$ 7adhwa 3 co. !. RaBesh 0umar$ LL.M.$ @Doctrine *f +onstitutional Tort ? -volution And -valuationM /. Dr.M.Sridhar Acharyulu$ @Materials and +ases on ).! Law of TortsM$ 6A$ LL6 J(onsK 7ebsites? ). www.manu<atra.com !. www.&oo&le.com /.www.le&alservicesindia.com