Topic: A.K Kraipak v. Union of India

A. K. Kraipak & Ors.Etc vs Union Of India
DATE OF JUDGMENT: 29/04/1969

Act:
Natural Justice-Applicability of principles to Administrative proceedings-Violation of principles by first authority-Effect on ultimate decision.

Headnote:

In pursuance    of the     Indian     Forest     Service (Initial Recruitment) Regulation, 1966, framed under r. 4(1) of     the Indian Forest Service (Recruitment) Rules made under the All India Services     Act, 1951, a Special Selection Board     was constituted for selecting officers to     the Indian Forest Service     in the senior and junior scales from officers serving     in the forest department of the State of Jammu     and Kashmir. One    of the members of the Board was the Chief Conservator of     Forests of the State, as )required by     the Regulations. He was a Conservator of forests appointed as Acting Chief Conservator superseding another Conservator of Forests     whose    appeal to the State Government against     his supersession was pending at the time the selections by     the Board were made. The Acting Chief Conservator was also     one of the     candidates seeking to be selected to     the Indian Forest Service. The Board made the 'selection of officers in the senior and junior scales.     The Acting Chief Conservator's name was at the top of the list    of selected officers, while the names of three conservators, (including the officer who was superseded), who were the Acting Chief Conservator's rivals,    were omitted.     The Acting Chief Conservator did not sit in the Selection Board at the    time his name was considered, but participated in     the deliberations when the names of his rivals were considered. He -also participated in the Board's    deliberations while preparing the    list of selected candidates in order of preference. The list     and the records were sent to     the Ministry of Home Affairs and the Ministry of Home Affairs forwarded the list with its observations to the Union Public Service Commission, as required by the Regulations, and     the U.P.S.C. examined the records of the officers     afresh     and made its recommendations.    The Government     of India thereafter notified the list. The three conservators, whose names were not included in the list, and other aggrieved officers filed a petition in this Court under Art. 32     for quashing the notification.

On the questions : (1) Assuming that the proceedings in     the present     case    were administrative proceedings, whether principles of natural justice applied to them; (2) Whether there was a violation of such principles of natural justice in the present case; (3) Since the recommendations of the Board were first considered by the Home Ministry and     the final recommendations    were made by the U.P.S.C., whether there was any basis for the petitioners' grievances;     (4) Whether     there were grounds for setting aside the selection of all the officers including those in the junior scales, HELD : (1) The rules of natural justice operate in areas not covered     by any law validly made, that is, they do     not supplant the law of the land but supplement it. They     are not embodied rules and their aim is to secure justice or to prevent     miscarriage of justice. If that is their purpose, there is no reason why they should not be    made applicable to    administrative proceeding also, especially when it is not easy to draw the line that 458

demarcates administrative enquiries from quasi-judicial ones, and an unjust decision in an administrative enquiry may have a more far-reaching effect than a decision in a quasi-judicial enquiry. [468F-G; 469B-D]

Suresh    Koshy George v. The University of Kerala, [1969] 1 S.C.R.    317, State of Orissa v. Dr., (Miss) Binapani     Dei [1967]    2 S.C.R. 625 and In re : H. K. (An Infant) [1967] 2 Q.B. 617, 630, referred to.

(2) The concept of natural justice has undergone a great deal of change in recent years. What particular rule of natural justice should apply to a given case must 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 the 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 rule was necessary for a just decision on the facts of that case. The rule that enquiries must be held in good faith and without bias, and not arbitrarily or unreasonably, is now    included among     the principles of natural justice. [468G-H; 469D-L-]

In the     present case. at the time of selection, the other members     of the Board did not know that the appeal of     the superseded conservator was pending    before     the State Government and     hence    there was no occasion for them to distrust the opinion of the Acting Chief Conservator. There was a conflict between his interest and duty and he was a judge in his own cause. Taking into consideration human probabilities and the ordinary course     of human conduct, there was reasonable ground for believing that     the Acting Chief Conservator was likely to have been biased. He     did not participate in some of the deliberations of the Board, but the facts that he was a member of the Board and that he participated in the deliberations when the claims of     his rivals    were considered and in the preparation of the list, must have had its impact on the selection, as the Board, in making the selection, must necessarily have given weight to his opinion. In judging the suitability of the candidates the members of the Board must have had     mutual     discussions and though the other members filed affidavits stating    that the Acting Chief Conservator in no manner influenced their decision, in group discussions, each member was bound to influence the others in a subtle manner and without their being aware of such influence. [466D-G; 467A-D] In the     circumstances    of the case, the selection by     the Board, could not be considered to have been taken fairly and justly as it was influenced by a member who was biased. [470 C-E]

(3) The Selection Board was undoubtedly a high powered body, and its recommendations must have had    considerable weight    with the U.P.S.C. The recommendation made by     the U.P.S.C. could not be dissociated from the selection made by the Selection    Board which was the    foundation for     the recommendations of the U.P.S.C. Therefore, if the selection by the Selection Board was held to be vitiated, the final recommendation    by the U.P.S.C, must also be held to    have been vitiated. [462 G-H; 469G-H]

Regina    v. Criminal Injuries Compensation Board, Ex Parte Lain, [1967] 2 Q.B. 864, 881, applied.

Sumer Chand Jain v. Union of India W.P. No. 237 of 1966, dated 4-5-1967, distinguished.

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(4) The selections to both senior and junior    scales    were made from the     same pool and so, it was not possible to separate the two sets of Officers. Therefore, it was     not sufficient to merely direct the Selection Board to consider the cases of the three conservators who were excluded,     but all the selections had to be set aside. [470 G-H; 471A]

JUDGMENT:

ORIGINAL JURISDICTION:     Writ Petitions Nos. 173 to 175 of 1967.

Petition under     Art. 32 of the Constitution of India     for enforcement of the fundamental rights.

A. K.     Sen -and E. C. Agrawala, for the petitioners     (in W.P. No. 173 of 1967).

Frank Anthony, E. C. Agrawala and A. T. M. Sampat, for     the petitioners (in W.P. No. 174 of 1967).

C. K.     Daphtary, E. C. Agrawala, A. T. M. Sampat, S. R. Agarwala and Champat Rai, for the petitioners (in W.P.     No. 175 of 1967).

Niren De, Attorney-General, N. S. Bindra and R. N. Sachthey, for respondents Nos. 1 to 6 (in all the petitions). H. R.     Gokhale and Harbans Singh, for respondents Nos. 7 and 26 (in all the petitions).

The Judgment of the Court was delivered by Hegde, J. These petitions are brought by some of the Gazet- ted Officers serving in the forest department of the State of Jammu and    Kashmir. Some     of them are    serving     as Conservators of Forests, some as Divisional Forest Officers and others as Assistant Conservators of Forests. All of them feel aggrieved by the selections made from among the officers serving in the forest department of the State of Jammu and Kashmir to the Indian Forest Service, a service constituted in 1966 under s. 3(1) of the All India Services Act, 1951 and the rules framed thereunder. Hence they    have moved this Court to quash notification No. 3/24/66-A-15(IV) dated the 29th July 1967 issued by the Government of India, Ministry of Home Affairs, as according to them     the selections notified in the said notification are violative of Arts. 14 and 16 of the Constitution and on    the further ground    that the selections in question are vitiated by     the contravention of the principles of natural justice.    They are also challenging the vires of s. 3 of the All India Services Act, rule 4 of the rules framed under that Act     and Regulation 5    of the     Indian     Forest Service (Initial Recruitment)    Regulations 1966, framed    under     the aforementioned rule 4.

Section 2(A) of the All India Services Act, 1951 authorises the Central Government to constitute three new All India Services

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including the    Indian Forest Service.    Section     3 provides that the Central Government shall after consulting     the Government of    the States concerned including that of     the State of -Jammu and Kashmir to make rules for the regulation of recruitment     and the conditions of    service     of persons appointed to those All India Services.     Sub-s. (2) of S. 2 prescribes that all rules made under that section "shall be laid for not less than fourteen days before Parliament as soon as possible after -they are made, and shall be subject to such modifications, whether by    way of     repeal     or amendment, as Parliament may make on a motion    made during the session in which they are so laid."

In pursuance of the power given under S. 3, rules for     the recruitment to the Indian Forest Service were made in 1966- Indian    Forest Service (Recruitment) Rules, 1966. The    only rule relevant    for our present purpose is rule     4(1) which reads :

"As soon as may be, after the commencement of these rules, the     Central Governme

nt '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 the State Governments and the Commission."

The Commission referred to in the above rule is the Union Public Service Commission. The Proviso to that sub-rufe is not relevant for our present purpose.    We may next come to the

Regulations framed under rule 4(1). Those Regulations     are known as the Indian Forest Service (Initial    Recruitment) Regulations, 1966. They are deemed to have come into force on July 1, 1966. Regulation 2 defines certain    expressions. Regulation 3 provides for the constitution of a special selection board. It    says that the     purpose of making selection to State cadre, the Central Government shall constitute a special    selection board     consisting of     the Chairman of the Union Public Service     Commission or     his nominee, the Inspector General of Forests of the Government of India, ad officer of the Government of India not below the rank of Joint Secretary, the Chief Secretary to the State    Government concerned or the    Secretary of    that Government dealing with the forests and the Chief Conservator of Forests of the State Government concerned. Regulation 4 prescribes the conditions of eligibility.    That Regulation contemplates the formation of a service in     the senior scale and a service in the junior scale.     Regulation 5 is important for our present purpose. It deals with     the -preparation of the list of suitable candidates. It reads : "(1) The Board shall prepare, in the order of preference, a list of such officers of State Forest Service who

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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.

(2) The     list prepared in accordance    with sub-regulation (1) shall then be referred to the Commission for advice, by    the Central Government along with :-

(a) the     records of all officers of State Forest Service

included     in the list;

(b) the     records of all other eligible officers of the

State Forest Service who are not adjudged suitable    for inclusion in the list, together with the reasons as recorded by the Board     for their non-inclusion in the list; and

(c) the     observations,     if any, of     the Ministry     of    Home    Affairs     on     the

recommendations of the Board.

3. On    receipt of the list, along with     the other documents    received from    the Central Government the Commission shall    forward     its recommendations to that Government."

Regulation 6 stipulates that the officers recommended by the Commission under sub-r. (3)    of Regulation    5 shall be appointed to the service by the Central Government subject to the     availability of vacancies in the State cadre concerned.

In pursuance of the Regulation mentioned above, the Central Government constituted a special selection board for select- ing officers to the Indian Forest Service in     the senior scale as well as in the junior scale from those serving in the forest department of the State of Jammu and Kashmir. The nominee of the Chairman of the Union Public Service Commission, one M. A. Venkataraman was the Chairman of     the board.     The other members of the board were the Inspector General     of Forests of the Government of India, one of     the Joint Secretaries in the Government of India, the Chief Secretary to the State Government of Jammu and Kashmir     and Naqishbund, the Acting Chief Conservator of Forests of Jammu and Kashmir.

The selection    board met at Srinagar in May, 1967 and     se- lected respondents 7 to 31 in Writ Petition No. 173 of 1967. The cases of respondents Nos. 32 to 37 were reserved     for further consideration.    The selections in question are    said to have been made solely on the basis of the records     -of officers. Their suitability     was not tested by     any examination, written or oral., Nor were they    interviewed. For several years before that selection the adverse entries made in the character rolls of the officers had not been 462

communicated to them and their explanation called for.     In doing so quite clearly the    authorities concerned     had contravened the instructions issued by the Chief Secretary of the State. Sometime after the afore-mentioned selections were made, at the instance of the Government of India,     the adverse     remarks made in the course of years against those officers who had not been selected were communicated to them and their explanations called for. Those explanations    were considered by the State Government and on the basis of     the same, some of the adverse remarks made against some of     the officers were    removed. 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 the review    Basu, Baig and Kaul were not selected.    It may    also be noted that Naqishbund's name is placed at the top of     the -list of selected officers.

Naqishbund had been promoted as Chief Conservator of Forests in the year 1964. He is not yet confirmed in that post. G. H. Basu, Conservator of Forests in the Kashmir Forest    Ser- vice who is admittedly senior to Naqishbund had appealed to the State Government    against his supersession and    that appeal was pending with the State Government at the time the impugned selections were made.     M. I. Baig and A. N.    Kaul Conservators of Forests also claim that they are seniors to Naqishbund but that fact is denied by Naqishbund. Kaul     had also appealed    against his alleged supersession but it is alleged     that    appeal    had been rejected by     the State Government.

Naqishbund was     also one of the candidates seeking to be selected to the All India Forest Service. We were told     and we take it to be correct that 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 participate in     its deliberations when the names of Basu, Baig and Kaul, his rivals, were considered for selection. It is further     admitted that he did    participate in     the deliberations of the    board while preparing the list of selected candidates in order of preference, as required by Regulation 5.

The selection    board was undoubtedly a high powered body. That much was conceded by the learned Attorney-General     who appeared for the Union Government as well as the State Government. It is true that the list prepared by     the selection board was not the last word in the matter of     the 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 Minis- 463

try of Home Affairs. We shall assume that as    required by Regulation 5,    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. But it is obvious that the recommendations made by the selection board should have weighed with the Commission. Undoubtedly the adjudging of the merits of the candidates by the selection board     was an extremely important step in the process. It was     contended before us that s. 3     of the All India Services Act,    rule 4 of the rules framed thereunder     and Regulation 5    of the     Indian     Forest     Service (Initial Recruitment) Regulations 1966 are void as those provisions confer    unguided, uncontrolled and uncanalised power on     the concerned delegates.    So far as the vires of s. 3 of     the Indian Administrative Act is concerned, the question is no more res integra. It is concluded by the decision of    this Court in D. S. Garewal v. The State of Punjab and Anr.(1) We have not thought it necessary to go into the question of the vires of rule 4 and Regulation 5, as we have come to     the conclusion that the impugned selections must be struck    down for the reasons to be presently stated.

There was considerable controversy before us     as to     the nature    of the power conferred on the selection board under rule 4 read with Regulation 5. It was contended on behalf of the petitioners that that power was a quasi-judicial power whereas the case for the contesting respondents was that it was a    purely    administrative power.    In support of     the contention that the power in question was a quasi-judicial power emphasis was laid on the language of rule 4 as well as Regulation 5 which prescribe that the selections should be made after adjudging    the suitability of the officers belonging to the State service.     The word 'adjudge' we    were told means "to judge or decide". It was contended that such a power is essentially a judicial power and the same had to be exercised in accordance with the well accepted rules relating to the exercise of such a power. Emphasis was also laid on the fact that the power in question was exercised by a statutory body and a wrong exercise of that power is likely    to affect adversely the careers of the officers     not selected. On the other hand it was contended by the learned Attorney-General that    though    the selection board was a statutory body, as it was not required to decide about     any right, the proceedings before it cannot be considered quasi- judicial; its duty was merely to select officers who in     its opinion     were suitable     for being absorbed in     the Indian Forest Service.     According to him the word 'adjudge' in rule 4 as well as Regulation 5 means "found worthy of selection". (1) [1959] 1 Supp. S.C.R. 792.

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The dividing line between an administrative power and a quasi-judicial    power is quite thin and is being gradually obliterated. For determining     whether a power is     an administrative    power or a quasi-judicial power one has to look to the nature of the power conferred, the person or persons     on whom it is conferred, the framework of the     law conferring that power, the consequences ensuing from     the exercise of that power and the manner in which that power is expected to be exercised. Under our Constitution the    rule of law     pervades over the entire field     of administration. Every organ of the State under our Constitution is regulated and controlled by the rule of law. In a welfare State like ours it is inevitable that     the jurisdiction of     the administrative    bodies is increasing at a rapid rate.     The concept     of rule of law would lose its vitality if     the instrumentalities of the State are not charged with the duty of discharging their functions in a fair and just manner. The requirement of acting judicially in essence is nothing but a    requirement to act justly and fairly and not arbi- trarily 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. In    recent years the concept of quasi-judicial power has been undergoing a    radical     change. What     was considered as an administrative power some years back is now being considered as a quasi-judicial power. 'Me following observations of Lord    Parker C.J. in    Regina    v. Criminal Injuries Compensation     Board,     Ex. Parte Lain(1)     are instructive.

"With regard to Mr. Bridge's second point I cannot think that Atkin, L.J.    intended to confine his principle to cases in which     the determination affected rights in the sense of enforceable rights. Indeed,     in     the Electricity Commissioners case,     the rights determined were at any rate not immediately enforceable rights since the scheme laid    down by the commissioners had to be approved by the Minister    of Transport and by resolutions of Parliament. The     commissioners nevertheless were held amenable to the jurisdiction of this court. Moreover, as can be seen from Rex. v. Postmaster-General, Ex-parte Carmichael (2 ) and Rex. v. Boycott Ex parte Keasley(3)     the remedy is available even though the decision is merely a step as a result of which legally enforceable rights may be affected.

The position as I see it is that the exact limits of the ancient    remedy    by way     of certiorari have never been and ought not to be specifically defined. They have varied

(1) [1967] 2 Q.B. 864, 881.

(2) [1928] 1 K.B.291.

(3) [1939] 2 K.B. 651.

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from time to time being extended to    meet changing    conditions. At one time the    writ only went to an inferior court.     Later     its ambit was extended to    statutory tribunals determining a lis inter parties. Later again it extended to cases where there was no lis in the strict sense of the word     but where immediate     or subsequent rights of a citizen were affected.    The only constant limits throughout were that it     was performing -a public duty. Private or     domestic tribunals have always been outside the scope     of certiorari since their authority     is derived solely from contract, that is, from the agree- ment of the parties concerned.

Finally, it is to be observed that the remedy has now been extended, see Reg. v. Manchester Legal Aid Committee, Ex parte R. A. Brand & Co. Ltd.(1) to cases in which the decision of an administrative officer is only arrived at after an inquiry or process of a judicial or quasi-judicial character.     In such a case this court has jurisdiction    to supervise    that process.

We have as it seems to me reached the position when the ambit of certiorari can be said to cover every case in which a body of persons of a     public     as opposed to a purely     private or domestic character has to determine matters affecting subjects provided always that it has a     duty to act judicially. Looked at in    this way the board in my judgment comes fairly     and squarely,     within     the jurisdiction of    this court. It is as Mr. Bridge said, 'a servant of the Crown charged by the Crown, by execu- tive instruction, with the     duty     of distributing the bounty of the Crown.

' It is

clearly, therefore, performing public duties." The Court of Appeal of New Zealand has held that the power to make a zoning order under Dairy Factory Supply Regulation 1936 has to be exercised judicially, see New    Zealand     and Dairy Board v. Okita Co-operative Dairy Co. Ltd. (2).    This Court in The Purtabpore Co. Ltd. v. Cane Commissioner of Bihar and Ors.(3) held that the power to alter the area reserved under     the Sugar Cane (Control) Order     1966 is a quasi-judicial power. With the increase of the power of the administrative    bodies    it has become necessary     to provide guidelines for the just exercise of their power. To prevent the abuse of that power and to see that it does not become a new despotism, courts are gradually evolving (1) [1952] 2 Q.B. 413;

(2) [1953] New Zealand Law Reports p. 366. (3) [1969] 2 S.C.R. 807.

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the principles to be observed while exercising such powers. In matters like these, public good is not advanced by a rigid adherence to precedents.     New problems call for     new solutions. It is neither possible nor desirable to fix     the limits    of a quasi-judicial power. But for the     purpose of the present case we shall ,assume that the power exercised by the selection board was an administrative power and    test the validity of the impugned selections on that basis. It is unfortunate that Naquishbund was appointed as one of the members of the selection board.     It is true    that ordinarily the     Chief Conservator of Forests    in a State should    be considered as the most -appropriate person to be in the selection board. He must be expected to know     his officers thoroughly, their weaknesses as well as their strength. His     opinion as regards their suitability     for selection to the All India Service is     entitled to great weight.     But then under the circumstances it was improper to have included    Naquishbund as a member of the selection board.     He was one of the persons to     be considered     for selection. It is against all canons of justice to make a man judge in his own cause. It is true that    he did     not participate in the deliberations of the committee when     his name was considered. But then the very fact that he was a member    of the selection board must have had its own impact on the decision of the selection board.     Further admittedly he participated in the deliberations of the selection board when the claims of his rivals particularly that of Basu     was considered. He was also party to the preparation of     the list of selected candidates in order    of preference.     At every stage of this participation in the deliberations of the selection    board there was a conflict    between     his interest and duty.    Under those circumstances it     is difficult to believe that he could have been impartial.     The real question is not whether he was biased. It is difficult to prove the state of mind of a person. Therefore what we have to see is whether there     is reasonable     ground     for believing that he was likely to have been biased. We agree with the learned Attorney General that a mere suspicion of bias is not sufficient. There must be a     reasonable likelihood of    bias. In deciding the question of bias we have to take into consideration human probabilities     and ordinary course of human conduct. It was in the interest of Naqishbund to    keen out his rivals in order to     secure     his position from    further challenge. Naturally he was    also interested in safeguarding his position while preparing     the list of selected candidates.

The members of the selection board other than     Naqishbund, each one of them separately, have filed affidavits in    this Court swearing that Naqishbund in no manner influenced their decision in making the selections. In a group    deliberation each member

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of the group is bound to influence the others, more so, if the member concerned is a person with special knowledge. Ms bias is likely to operate in a subtle manner.     It is no wonder    that the other members of the selection board     are unaware of the extent to which his opinion influenced their conclusions. We are unable to accept the contention that in adjudging the suitability of the candidates the members of the board did not have any mutual discussion. It is not as if the     records spoke of themselves.     We are unable to believe that the members of selection board functioned    like computers. At this stage it may also be noted that at     the time the selections were made, the members of the selection board other than Naqishbund were not likely to     have known that Basu had appealed against his supersession and that his appeal    was pending before the State Government. Therefore there was no    occasion for them to distrust    the opinion expressed by Naqishbund. Hence the board in     making     the selections must necessarily have given weight to the opinion expressed by Naqishbund.

This takes us to the question whether     the principles of natural justice apply to administrative proceedings similar to that with    which we are    concerned in these cases. According to the learned Attorney General those principles have no bearing in determining the validity of the impugned selections. In support of his contention he    read to us several     decisions. It is not necessary to examine those decisions as there is a great deal of fresh thinking on     the subject. The    horizon     of natural justice is constanlty expanding. The question how far the principles of natural justice     govern administrative enquiries came up     for consideration before the Queens Bench Division in In re : H. K. (An     Infant) (1). Therein the validity of     the action taken by an Immigration Officer came up for consideration. In the     course of his judgment Lord Parker, C.J. observed thus :

"But at    the same time, 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.    Good administration and an honest or bona    fide decision must, as it seems to me, require     not merely impartiality, nor merely bringing one's mind to    bear on the problem,     but acting fairly; and to the limited extent that     the circumstances of any particular    case allow, and within the legislative frame work under (1) [1967] 2 Q.B. 617, 630.

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which the administrator is working, only to that limited extent do the so-called rules of natural justice apply, which in a case such as this is    merely    a duty    to act     fairly. I appreciate that in saying that it may be    said that one is going further than is permitted on the decided cases because heretofore at     any rate the decisions of the courts do seem to have drawn a strict line in these matters according to whether there is or is not a duty to act judicially or quasi-judicially."

In the same case Blain, J. observed thus

"I would only say that an immigration officer having assumed the jurisdiction     granted by those provisions is in a position where it is his duty to exercise that assumed jurisdiction whether it be administrative, executive or quasi-judicial,    fairly,     by which I    mean applying    his mind dispassionately to a    fair analysis    of the particular problem and     the information available to him in analysing     it. If in any hypothetical case, and in any    real case, this court was    satisfied that     an immigration officer was not so doing, then in my view mandamus would lie."

In State of Orissa v. Dr. (Miss) Binapani     Dei and Ors.(1) 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

The aim of the rules of natural justice is to secure justice or to put it negatively to prevent miscarriage of justice. These rules can operate only in areas not covered by any law validly     made. In other words they do not supplant the     law of the     land but supplement it.-The    concept     of natural justice     has undergone     a great deal of change in recent years.    In the past it was thought that it included just two rules namely (1) no one shall be a judge in his own    case (Nemo debet esse judex propria causa) and (2)    no decision shall be given against a party without affording him a reasonable hearing (audi alteram partem). Very soon there- after a third rule was envisaged and that is    that quasi- judicial enquiries must be held in good faith, without    bias and not arbitrarily

(1) [1967] 2 S.C.R. 625.

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or unreasonably. But     in the course of years many    more subsidiary rules came to be added to the rules     of natural justice. Till     very recently it was the opinion of     the courts    that unless the authority concerned was required by the law under which it functioned to act judicially there was no     room for the application of the rules     of natural justice. The validity of that limitation is now questioned. 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 enquiries. 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 quasijudicial 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 decison in a quasi-judicial enquiry. As observed by this Court in Suresh Koshy George v. The University of Kerala and Ors.(1) the rules of natural justice     are not embodied rules. What particular rule of natural justice should apply to a given case must 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 cornplaint is    made before    a court that some principle of natural    justice     had been contravened the court has to decide whether the obser- vance of that was necessary for a just decision on the facts of that case.

It was next urged by the learned Attorney-General that after all the selection board was only a recommendatory body.     Its recommendations     had first to be considered by the    Home Ministry and *.hereafter by     the U.P.S.C.     The final recommendations     were made by the U.P.S.C. Hence grievances of the     petitioners have no real basis. According to     him while considering the validity of administrative actions taken,    all that we have to see is whether the ultimate decision is just or not. We are unable to agree with     the learned     Attorney-General that the recommendations made by the selection board were of little consequence.     Looking at the composition of the board and the nature of     the duties entrusted to it we have no doubt that    its recommendations should have carried considerable weight with the U.P.S.C. If the decision of the selection board is held to have    been vitiated, it    is -clear to    our mind that     the final recommendation    made by the Commission must also be held to have been vitiated. The recommendations made by the Union Public    Service Commission cannot be disassociated from     the selections made by the selection board which (1) [1969] 1 S.C.R. 317.

470

is the     foundation for the recommendations of the Union Public Service Commission. In this connection reference may be usefully made to the decision in    Regina    v. Criminal Injuries Compensation Board Ex.     Parte Lain(1). It was next urged 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 entire proceedings. In this connection he invited our attention to the decision of this Court in Sumer Chand Jain v. Union of India and another(2).     Therein the    Court repelled     the contention that the proceedings of a departmental promotion committee were     vitiated as one of the members of    that committee was    favourably disposed towards one of     the selected candidates.    The question before the Court     was whether     the plea of mala fides was established. The Court came to the conclusion that on the material on record it was unable    to uphold that plea.    In that case there was no question of any conflict between duty and interest nor     any members of the departmental promotion committee was a judge in his own case. The only thing complained of was that     one of the members of the promotion committee was favourably disposed towards one    of the    competitors. As mentioned earlier     in this case we are essentially concerned with     the question whether the decision taken by the board can be considered as having been taken fairly and justly. One more argument of the learned Attorney-General remains to be considered.     He urged that even if we are to hold    that Naqishbund should not have participated in the deliberations of the selection board while it considered the     suitability of Basu, Baig and Kaul, there is no ground to set aside     the selection of other officers. According to him it will be sufficient in the interest of justice if we direct that     the cases of Basu, Baig and Kaul be reconsidered by a Board of which Naqishbund is not a member. Proceeding     further he urged that under any circumstance no case is made out     for disturbing the selection of the officers in     the junior scale.    We are unable to accept either of these contentions. As seen earlier Naqishbund was a party to the preparation of the select list in order of preference and that he is shown as No. 1 in the list.    To that extent he was undoubtedly a judge in his own case, a circumstance which is abhorrent to our concept of justice.     Now coming to the selection of     the officers in the. junior scale service, the selections to both senior scale service as well as junior scale service were made from the same pool. Every officer who had put in a service of 8 years or more, even if he was    holding     the post of an Assistant Conservator of Forests was eligible for being selected for the senior scale service. In fact some (1) [1967] 2 Q.B. 864.

(2) Writ Petition No. 237/1966 decided on 4-5-1967. 471

Assistant Conservators     have been selected for     the senior scale service.     At the same time some of the officers     who had put in more than eight years of service had    been selected for the junior scale service. Hence     it is     not possible to separate the two sets of officers. For the reasons mentioned above these petitions are allowed and the impugned selections set aside.    The Union Government and the State     Government shall pay     the costs of     the petitioners.

V.P.S.    Petitions allowed.

Re: A.K Kraipak v. Union of India

Detailed explanation of the landmark Judgment is available here:
written by Shyama Nair

http://legalservicesindia.com/article/a … 162-1.html