A.K Kraipak V. Union Of India – A Case Study
It is generally accepted that there are three categories of governmental functions- (i) Legislative; (ii) executive; and (iii) judicial which are usually performed by three main organs of the government in a state viz. (i) Legislature; (ii) executive; and (iii) judiciary. The legislature enacts a law, the executive administers it and the judiciary interprets and declares what the law is. The difficulty lies in distinguishing these functions from one another especially where, in a single proceeding there is a overlapping of more than one function. This difficulty arises in applicability of the rules of natural justice too. The rules of natural justice are presumed to apply to bodies entrusted with judicial or quasi-judicial bodies. There is no such presumption with regards to bodies performing administrative functions. Decisions, which are purely administrative, stand on a wholly different footing from judicial as well as quasi-judicial functions. Identifying the rules of natural justice in the varied circumstances which confront administrative decision makers, has proven to be a formidable task for such bodies themselves as well as the Courts charged with supervising and controlling their decisions. Administrative authorities are being entrusted with the “duty to act fairly” in arriving at decisions which may have a serious adverse effects on someone’s rights, interests or status.
Keeping in mind the above-made observations, the author has tried to analyze whether there exists any dividing line between quasi-judicial and administrative actions and the applicability of rules of natural justice to Administrative Actions through the case of A.K Kraipak v. Union of India.
Statement of Facts
In 1966, a service called The Indian Forest Service was constituted, the selection for which was to be made from among the officers serving in the forest department of the state. Section 3 of the All India Services Act, 1951 provides that the Central Government shall after consulting the Government of the States concerned including that of Jammu and Kashmir to make rules for the regulation of recruitment and the conditions of the service of persons appointed to those All India Services.
In pursuance of the power given under Section 3, Indian Forest Service (Recruitment) Rules, 1966 were made. The Rule 4(1) of the above mentioned Rules reads as-
“As soon as may be, after the commencement of these rules, the Central Government may recruit to the service any person from amongst the members of the State Forest Service adjudged suitable in accordance with such regulations as the Central Government may make in consultation with State Governments and the Commission.” (emphasis laid)
Now the regulation 3 of Indian Forest Service (Initial Recruitment) Regulations, 1956 framed under Rule 4(1) of the Indian Forest Service (Recruitment) Rules, 1966 provided for the Constitution of a Special Selection Board. It provided that for the purpose of making selection to any State Cadre, the Central Government shall constitute a special selection board consisting of:
1. The Chairman of UPSC or his nominee.
2. Inspector General of Forests of the Government of India.
3. Joint Secretary. UOI.
4. Chief Secretary of the concerned State Government.
5. Chief Conservator of Forest of the concerned State Government.
Regulation 5 dealt with the preparation of the list of suitable candidates. It reads as “The Board shall prepare, in order of preference, a list of such officers of the State Forest Service who satisfy the conditions specified in Regulation 4 and who are adjudged by the Board suitable for appointment to posts in the senior and junior scales of the service.”
The selection Board was to be headed by the Chief Conservator of the Forest of the State while the final selections were to be made by the Union Public Service Commission (U.P.S.C).
In the State of Jammu and Kashmir, a person by the name of Naquishbund was appointed as the acting Chief Conservator of forest. He had been appointed to the said post by overlooking the seniority of three officers – Basu, Baig and Kaul. They had filed petitions against their supersession to the higher authorities. In the meantime, when the selection Board for recommending the names of officers for All India Forest Service was formed, Naquishbund came to be appointed as its ex-officio chairman. The Board recommended the names of the persons including Naquishbund but excluding the other three officers who had been superseded. Thereafter the selection board reviewed the cases of officers not selected earlier as a result of which a few more officers were selected. The selections as finally made by the board were accepted by the Commission. On the basis of the recommendations of the Commission, the impugned list was published. Even After review Basu, Baig and Kaul were not selected. Another noteworthy point here is that Naquishbund’s name was placed at the top of the list of selected officers.
It must be noted that Naquishbund was also one of the candidates seeking to be selected to the All India Forest Service. Though he did not sit in the selection board at the time his name was considered for selection but admittedly he did sit in the board and participated in its deliberations when the names of Basu, Baig and Kaul were considered for selection and was also involved while preparing the list of selected candidates in order of preference, as required by Regulation 5. However the list prepared by the selection board was not the last word in the matter of selection in question. That list along with the records of the officers in the concerned cadre selected as well as not selected had to be sent to the Ministry of Home Affairs. The Ministry of Home Affairs had forwarded that list with its observations to the Commission and the Commission had examined the records of all the officers afresh before making its recommendation.
Aggrieved, The Gazetted Officers Association, Jammu and Kashmir along with the interested parties brought a petition to the Court challenging the selections notified in the impugned notification as being violative of Articles 14 and 16 of the Constitution and on the further ground that the selections in question were made in contravention of the Principles of Natural Justice.
The petitioners as well as the respondents raised arguments with respect to the nature of the power conferred on the selection board.
The petitioners contended that Rule 4 as well as Regulation 5 prescribes that the selections should be made after ‘adjudging’ the suitability of the officers belonging to the State service. The word ‘adjudge’ the meaning of which is ‘to judge or decide’ indicates that the power conferred on the selection board was a quasi-judicial power. It was contended on their behalf that such a power is a judicial power not an administrative one and it has to be exercised in accordance with the well accepted Rules of Natural Justice, the violation of which has been rightly claimed. Naquishbund, being a candidate for Indian Forest Service cannot be an adjudicator of the same.
On the other hand, the learned Attorney General on behalf of the respondents argued that the power exercised by the selection board is not a quasi-judicial power but an administrative power. To support this contention, it was further admitted that the proceedings before the selection board were not quasi-judicial because the board was not required to decide about any ‘right’. The duty of the board was merely to select officers who in its opinion were suitable for Indian Forest Service. He interpreted the word ‘adjudge’ as being ‘found worthy of selection’.
It was also contended by the learned Attorney General that after all the selection board was only a recommendatory body. Its recommendations had first to be perused by the Home Ministry and then by the U.P.S.C. The final recommendations were made by the U.P.S.C. Therefore, grievances of the petitioners have no real basis. Keeping in mind the validity of the administrative actions taken, all that has to be seen is whether the final decision is just or not. And finally, in the form of arguendo, it was also contended by the learned Attorney General that the mere fact that one of the members of the board was biased against some of the petitioners cannot vitiate the whole selection process.
Issues Involved: Applicability of Principles of Natural Justice
In order to understand the arguments raised by both the parties, it is necessary to understand the scope of principles of natural justice. In a phrase it can be described as “judicial fairness in decision making” and its main aim is to secure justice or prevent miscarriage of justice. It is a branch of public law and is held to be a very formidable weapon that can be wielded to secure justice. The definition of the term ‘natural justice’ is difficult to be given but its essential characteristics can be enumerated in two maxims namely- (i) audi alteram partem and (ii) nemo judex in causa sua .
The first maxim literally meaning ‘hear the other side’ provides that before taking a decision other party must be heard. De Smith says- “No proposition can be more clearly established than that a man cannot incur the loss of liberty or property until he has a fair opportunity of answering the case against him”.
The right to fair hearing has always been used as a base onto which a fair administrative procedure comparable with due process of law can be built. In Ridge v. Baldwin , the House of Lords held by majority that the power of dismissal of an employee couldn’t be exercised without giving reasonable opportunity of being heard and without observing the principles of natural justice.
The second phrase literally means that “No man shall be a judge in his own cause”. This maxim ensures that the adjudicator must not have any interest or bias in the case which he is deciding. As the famous saying goes “justice should not only be done but must be seen to have been done” In case of a judicial body, the independence and impartiality of the judge is an absolute condition, because without these qualities the public confidence which is their real strength would weaken.
In the opinion of the Apex Court, a precondition to decide for or against one party without proper regard to the true merits is bias. Bias can be of three type’s i.e. personal bias, pecuniary bias or official bias. In the cases of bias what the aggrieved party has to prove is the likelihood of bias and not the real existence of the same. In the case of Ashok Kumar Yadav v. State of Haryana Bhagwati, CJ, observed, “we agree with the petitioners that it is one of the fundamental principles of our jurisprudence that no man can be a judge in his own cause and that if there is a likelihood of bias it is in accordance with natural justice and common sense that the Judge likely to be biased should be incapacitated from sitting.” The Court in Manak lal v. Dr. Prem Chand held, “the test is not whether in fact, a bias has affected the judgement, the test always is and must be whether a litigant could reasonably apprehend that a bias attributable to a member of the tribunal might have operated against him in the final decision of the tribunal. In the case of State of U.P v. Mohammed Nooh, the officer who held departmental inquiry and passed the order, himself gave evidence and thus acted as prosecutor and the judge. Das C.J delivering the majority judgement said that the rules of natural justice were grossly violated. Similarly, in the case of Rattan lal v. Managing Committee, x was a witness as well as one of the three members of an inquiry committee against Rattanlal. The Court set aside the dismissal order of Rattanlal on the ground that the proceedings were vitiated because of bias of one of the members.
Now, that we have discussed in general about the concept and applicability of Principles of Natural Justice, we can analyze the judicial interpretation that took place in the present case.
Analyzing the Judgment
A five judge bench of the Apex Court comprising of Hidyatullah, CJ and Grover, Shelat, Bhargava and Hegde, JJ. through Hegde, J. held that the selections made by the selection committee were in violation of principles of natural justice.
The Hon’ble Court found the power exercised by the Selection Board as an administrative one and tested the validity of the selections on that basis. It held that the concept of rule of law would lose its importance if the instrumentalities of the State are not charged with the duty of discharging their functions in a fair and just manner. Also, it is a must to charge administrative authorities with the duty of discharging their functions in a fair and just manner in a Welfare State like India, where the jurisdiction of the administrative bodies is increasing at a rapid rate. In the words of Hegde, J.-
“The requirement of acting judicially in essence is nothing but to act justly and fairly and not arbitrarily or capriciously. The procedures which are considered inherent in the exercise of a judicial power are merely those which facilitate if not ensure a just and fair decision.”
It further observed that the dividing line between an administrative power and quasi-judicial power is being gradually obliterated.
The Court held that the basic principle of nemo judex in causa sua was violated by appointing Naquishbund as a member of the selection board. Though he did not participate in the deliberations of the board when his name was being considered yet the very fact that he was a member of the selection board and that too holding the post of the post of the Chairman had a significant impact on the decision of the selection board. Also, he participated in the deliberations when the claims of his rivals i.e. Basu, Baig and Kaul were considered. He was also present when the list of selected candidates in order of preference was being made. Hence, it is very clear that from the very inception of the selection process, at every stage of his participation in the selection process, there was a conflict between his interest and duty. Under such circumstances, the Court could not believe that Naquishbund could have been unbiased.
Further the Court observed that the question is not whether Naquishbund was actually biased or not. The real question is whether there is a reasonable ground for believing that he was likely to have been biased. As discussed earlier in Manaklal’s case the Court had made it clear that the test was not actual bias but a reasonable apprehension of bias. It held that it is difficult to prove the state of mind. Therefore in deciding the question of bias ordinary course of human conduct is taken into consideration. Owing to this, the Court observed that there was a personal interest on part of Naquishbund to keep out his rivals in order to secure his position without further challenge and so he cannot said to be impartial, fair and just while making the selection.
The Court while making this judgment took assistance of certain other landmark judgments which are discussed as below-
The Court observed that in In Re H.K (An Infant) the validity of the action taken by an Immigration Officer came up for consideration. Lord Parker, C.J observed thus:
“I myself think that even if an immigration officer is not in a judicial or quasi-judicial capacity, he must at any rate give the immigrant an opportunity of satisfying him of the matters in the subsection, and for that purpose let the immigrant know what his immediate impression is so that the immigrant can disabuse him. That is not, as I see it, a question of acting or being required to act judicially, but of being required to act fairly.”
Also, in the case of State of Orissa v. Dr. (Miss)Binapani Dei. , Shah, J. speaking for the Court, dealing with an enquiry made as regards the correct age of a government servant, observed thus –
“We think that such an enquiry and decision were contrary to the basic concept of justice and cannot have any value. It is true that the order is administrative in character, but even an administrative order which involves civil consequences as already stated, must be made consistently with the rules of natural justice after informing the first respondent of the case of the State…Often times it is not easy to draw the line that demarcates administrative enquiries from quasi-judicial enquiries. Enquiries which were considered administrative at one time are now being considered as quasi judicial in character. Arriving at a just decision is the aim of both quasi-judicial enquiries as well as administrative enquiries. An unjust decision in an administrative enquiry may have more far reaching effect than a decision in a quasi-judicial enquiry. ”
In this case, for the first time, without the assistance of any foreign judgement, the Supreme Court had decided that Principles of Natural Justice were applicable not only to judicial and quasi-judicial functions, but also to administrative functions. The present case has made the position more clear.
In Suresh Koshy George v. The University of Kerala , the Court observed that the rules of natural justice are not embodied rules. What particular rule of natural justice should apply to a given case must be depend to a great extent on the facts and circumstances of that case, the framework of the law under which the enquiry is held and the constitution of the tribunal or body of persons appointed for that purpose. Whenever a complaint is made before a Court that some principle of natural justice had been contravened the Court has to decide whether the observance of that was necessary for just decisions on the facts of that case.
Hence, taking all the above decisions as well as some other English decisions into consideration, the Court declared that Principles of Natural Justice are applicable to Administrative functions also and struck down the selection process on the ground of violation of principles of natural justice.
Therefore what emerges from this case is that although the Courts are making distinctions between the Quasi-Judicial and Administrative powers but at the same time there is one common element of fair procedure in both the cases which can be referred to as the ‘duty to act fairly’. This duty arises from the same general principles, as do the rules of natural justice.
In England, as discussed earlier the case of Ridge v. Baldwin has been characterized as the “The Magna Carta of Natural Justice” as it gave a new orientation to the concept of quasi-judicial with a view to facilitate the application of natural justice to administrative functions. Similarly, the preceding pages show that the case of A. K Kraipak v. Union of India is a landmark judgement in the development of administrative law in India and has strengthened the rule of law in this country. Though the applicability of rules of natural justice to administrative functions had already been made in Dr Binapani’s case, it had not gained as much importance as it deserved. In the present case while extending the application of these principles to administrative function as well, Hedge, J. observed that - “If the purpose of the rules of natural justice is to prevent miscarriage of justice one fails to see why those rules should be made inapplicable to administrative inquiries”
A mere perusal of the above given view shows that this case was successful in attributing the due importance which lacked previously, and gave finality to the fact that rules of justice applied to administrative functions too.
In the words of Krishna Iyer, J.- “Once we understand the soul of the rule as fairplay in action – and it is so- we must hold that it extends to both the fields. After all administrative power in a democratic set-up is not allergic to fairness in action and discretionary executive justice cannot degenerate into unilateral injustice.”
The author agrees with such a proposition because many a times the impact of administrative decision can be far greater than that of a judicial decision. As in the present case, the decision made with bias and without the applicability of rules of justice would have adversely affected the careers of the officers not selected. In such circumstances leaving the administrative actions out of the clutches of rules of justice would undermine rule of law. Hence, in conclusion it is observed that-
“No authority can absolve itself from the liability to act in a lawful manner.”
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2. De Smith’s Judicial Review of Administrative Action; 6th ed.; Sweet & Maxwell, 2007.
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5. Jain M.P, Treatise on Administrative Law; 1996 ed.; Wadhwa and Company Nagpur, 1996.
6. Massey I.P, Administrative Law; 7th ed.; EBC, 2008.
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8. Sathe S.P, Administrative Law, 7th ed.; LexisNexis Butterworth’s Wadhwa Nagpur, 2008.
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1. C K Thakkar, “From Duty To Act Judicially To Duty To Act Fairly”, (2003) 4 SCC Journal, 1.
2. Ranka N.M, “Principles of Natural Justice”, Vol.168,Current Tax Reporter, 2001.
# C K Thakkar, “From Duty To Act Judicially To Duty To Act Fairly”, (2003) 4 SCC Journal, 1, p.1.
# AIR 1970 SC 150.
# M.P Jain,, Cases and Materials on Indian Administrative Law, Wadhwa and Company Law Publishers, Nagpur, First Edn., 1994, Vol. 1, P. 504-506.
# T N Pandey, “Rule of Natural Justice in the Administration of Law”, Taxman, 2003, Vol. 131, p.212, 213.
# Per Chinappa Reddy J., Swadeshi Cotton Mills v. Union of India, AIR 1977 SC 1267.
# This maxim has not been discussed elaborately as it is out of the scope of the project.
# N M Ranka, “Principles of Natural Justice”, Current Tax Reporter, 2001, Vol.168, p. 19, 20.
# C K Takwani, Lectures on Administrative Law, Eastern Book Company, Lucknow, 2001, p.159.
# Supra nt. 6.
#  A.C. 40.
# Supra, nt. 7, p. 149.
# Secretary to Government Transport Department v. Munuswamy, AIR 1988 SC 2232.
# (1985) 4 SCC 417.
# AIR 1957 SC 425.
# AIR 1986 SC 86.
# AIR 1993 SC 2155.
# Supra, n.2 , para 14.
# Supra, n.2 , para 13.
# Supra, n.2, para 15.
# See Supra nt. 13. Also refer to M.P Jain, Treatise on Administrative Law, Wadhwa and Company, Nagpur,Vol. 1, pg. 410.
# Supra, n.2, para 15.
#  1 All E.R. 226. Also see M.P Jain, Cases and Materials on Indian Administrative Law, Wadhwa and Company Law Publishers, Nagpur, First Edn., 1994, Vol. 1, P. 480.
# AIR 1967 SC 1269. See M.P Jain, Cases and Materials on Indian Administrative Law, Wadhwa and Company Law Publishers, Nagpur, First Edn., 1994, Vol. 1, P. 501. Also see S.P Sathe, Administrative Law, Lexis Nexis Butterworth’s, Wadhwa, Nagpur, 7th Edn. , p. 148.
# (1969) 1 SCR 317.
# M.P Jain, Cases and Materials on Indian Administrative Law, Wadhwa and Company Law Publishers, Nagpur, First Edn., 1994, Vol. 1, P. 479 and 480.
# S.P Sathe, Administrative Law, Lexis Nexis Butterworth’s, Wadhwa, Nagpur, 7th Edn., p. 150.
# Mohinder Singh Gill v. Chief Election Commissioner, (1978) 1 SCC 405.
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