Full Judgment Text
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 13
PETITIONER:
A. K. KRAIPAK & ORS. ETC.
Vs.
RESPONDENT:
UNION OF INDIA & ORS.
DATE OF JUDGMENT:
29/04/1969
BENCH:
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the officer who was superseded), who were the Acting Chief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
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 13
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
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 13
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.
459
(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
460
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
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 13
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
461
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
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 13
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
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 13
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
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 13
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.
464
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.
465
from time to time being extended to meet
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 13
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.
466
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
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 9 of 13
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
467
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
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 10 of 13
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.
468
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
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 11 of 13
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.
469
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
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 12 of 13
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
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 13 of 13
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.
472