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 researcher 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.

Arguments Advanced

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.

Conclusion

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.”

BIBLIOGRAPHY

1. Basu Durga Das, Administrative Law, 6th ed.; Kamal Law House, Kolkatta, 2005.

2. De Smith’s Judicial Review of Administrative Action; 6th ed.; Sweet & Maxwell, 2007.
3. Jain M.P& Jain S.N, Principles of Administrative Law; 6th Enlarged ed.; Vol. I ; Wadhwa Nagpur,
2010.

4. Jain M.P, Indian Administrative Law: Cases and Materials; Vol. I.1994; Wadhwa and Company
Nagpur, 1994, 1996.

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.

7. Pandey T.N, “Rule of Natural Justice in the Administration of Law”, Vol. 131, Taxman, 2003.

8. Sathe S.P, Administrative Law, 7th ed.; LexisNexis Butterworth’s Wadhwa Nagpur, 2008.

9. Takwani C.K, Lectures on Administrative Law; 4th ed.; EBC, 2011.

10. Wade H.W.R & Forsyth C.F, Administrative Law; 10th edn.; Oxford, 2009.