The dividing line between an administrative power and a quasi-judicial power is quite thin and is being gradually obliterated.


[CASE BRIEF] A. K. Kraipak & Ors. Etc vs Union Of India


Case name

A. K. Kraipak & Ors. Etc vs Union Of India

Case Number

Writ Petitions Nos. 173 to   175 of 1967

Court

The Supreme Court of India

Bench

Hidayatullah, M. (Cj), Shelat, J.M., Bhargava,   Vishishtha, Hegde, K.S., Grover, A.N.

Decided on

29/04/1969

Relevant Act/Sections

Principles of Natural Justice; Article 14,16 and 32   of the Constitution of India, 1950; Indian Forest Service (Initial   Recruitment) Regulation, 1966; Indian Forest Service (Recruitment) Rules made   under the All India Services Act, 1951.


· Brief Facts and Procedural History:-

1. 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.

2. 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was at the top of the list of selected officers, while the names of three conservators, (including the officer who was superseded), who were the Acting Chief Conservator’s rivals, were omitted.

3. 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.

4. 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.


· Issues before the Court:

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.

5. Whether the said notification is violative of Arts. 14 and 16 of the Constitution.


· Ratio of the Court:

1. 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 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."

2. 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 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.

3. 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.

4. 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.

5. Reliance was placed on the case of Reg. v. Manchester Legal Aid Committee, Ex parte R. A. Brand & Co. Ltd. [1952] 2 Q.B. 413 in which it was held that the decision of an administrative officer is only arrived at after an inquiry or process of a judicial or quasi-judicial character. 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 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.

6. 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 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. 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. Bias is likely to operate in a subtle manner.

7. In State of Orissa v. Dr. (Miss) Binapani Dei and Ors. [1967] 2 S.C.R. 625 it was held that even an administrative order which involves civil consequences must be made in compliance with the rules of natural justice. The aim of the rules of natural justice is to secure justice or to put it negatively to prevent miscarriage of justice.

8. 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)

(2) no decision shall be given against a party without affording him a reasonable hearing (audi alteram partem).

9. Very soon thereafter a third rule was envisaged and that is that quasi- judicial enquiries must be held in good faith, without bias and not arbitrarily.

10. In Suresh Koshy George v. The University of Kerala and Ors. [1969] 1 S.C.R. 317 it was observed that 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.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. An 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 the candidates, 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 candidates 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.

11. 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 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.


· Decision Held:

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.

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