Principle Involved in A.K.Kraipak v.

Union of India: A Critical Analysis

6.2 Administrative Law

Submitted by:

DIWAKAR CHIRANIA

SM0116018

3rd year, VI semester

B.A.LL.B (Hons.)

Faculty in Charge

Dr. Diptimoni Boruah

Associate Professor of Law

National Law University and Judicial Academy, Assam

6th May, 2019

 CONTENTS

1. Introduction ................................................................................................................................. 3

1.2 Research Questions: .............................................................................................................. 4

1.3 Literature Review: ................................................................................................................ 5

1.4 Scope and Objectives: ........................................................................................................... 5

1.5 Research Methodology: ........................................................................................................ 5

2. Facts of the Case ......................................................................................................................... 6

2.1 Arguments made by both the parties involved in the case.................................................... 8

3. Issued Involed: Applicability of the Principles of Natural Justice ............................................. 9

4. Critical Analysis of the Judgement ........................................................................................... 11

5. Conclusion ................................................................................................................................ 14

Bibliography ................................................................................................................................. 15

2
 1. INTRODUCTION

Natural justice has been defined as a pervasive facet of secular law, making fairness a creed of
life.1 These principles have been described as judge made rules or an example of judicial activism.2
It was seen to be developed by the courts to prevent accidents in exercise of outsourced power of
adjudication to administrative authorities. The principles of natural justice are not new age terms
but have been a part of legal world for a long period now. The principles embody the rule of law
that our Constitution enshrines in its basic structure. These principles are, however, not codified
and can be attributed to judicial activism at times. They are seen to imbibe fairness, reasonableness,
equity and equality3 and to refer to the higher procedural principles developed by judges which
every administrative agency must follow in taking any decision adversely affecting rights of a
private individual. The Supreme Court with regard to natural justice has held the following:

“It has many colours and shades, many forms and shapes and, save where valid law excludes, it
applies when people are affected by acts of authority. It is the bone of healthy government,
recognised from earliest times and not a mystic testament of judge-made law. Indeed from the
legendary days of Adam-and of Kautllya's Arthashastra-the rule of law has had this stamp of
natural justice, which makes it social justice. We need not go into these deeps for the present except
to indicate that the roots of natural justice and its foliage are noble and not new-fangled."4

The necessity to follow such rules arose from the fact that in India, no minimum guidelines were
prescribed for administrative bodies for exercising their decisions-making power. The principles
therefore became the basis on which acts of administrative bodies were to be judged and the
administrative bodies were required to comply with these principles in order to be reasonable while
making its decisions. This was emphasized by the Hon’ble Apex Court in the case of A. K. Kraipak
v. Union of India5 wherein they emphasized that the consequences of administrative actions, be it
quasi-judicial or purely administrative in nature, can have varied impact on the rights of private
persons and so the same should be exercised while following the basic principles of natural justice
to ensure that the actions so undertaken are reasonable and fair. The case laid down the law with

1
(1978) AIR 851
2
I. P. Massey, Administrative Law, 195 (Eastern Book Company, 9th ed, 2018).
3
Ibid at 196.
4
Supra note 1
5
(1970) AIR 150

3
regard to the maxim of nemo judex in causa sua, i.e., no man will be a judge in his own cause. One
important aspect of this maxim is fairness and the absence of biasness. This rule ensures that a
judge, while deciding on any matter, should be impartial and without bias. However, in order to
determine whether biasness exists in the mind of a judge or not, one should be well versed with
the meaning of the term ‘bias’. Bias has been defined as an operative prejudice, whether conscious
or unconscious. The requirement of this rule denotes that the judge must be impartial and must
decide the case objectively on the basis of the evidence on record.6 Therefore, if a person cannot
take an objective decision for whatever reason, he shall be held to be biased. The rule therefore
comes into play if it is shown that the officer concerned has a personal connection or personal
interest or has personally acted in the matter concerned and/or has already taken a decision one
way or the other which he may be interested in supporting.7 Since it is nearly impossible to prove
without any reasonable doubt the existence of biasness or mala fide intentions, the Court
propounded that existence of real likelihood of biasness which can be inferred from mere suspicion
of biasness would be a contributing factor in vitiating the decision so taken by the person in
question. Hence, it has now become settled law that any show of favour or disfavour, antagonism,
hostility, spite, prepossession which has the power to sway the mind will lead to violation of
principles of natural justice. The rule of natural justice disqualifies the judge and any decision
made by him if he is found to be biased in any manner. However, the critical point of how to
determine existence of biasness was another issue propounded by the Court in the Kraipak case.
The case therefore focuses on the intricacies involved in exercising administrative functions and
the laws required to regulate the same. The five-judge bench very aptly decided the case in a
manner that the mischief was remedied and future mischief would have been suppressed and the
purpose of ensuring fairness in actions of government was encouraged.

1.2 Research Questions:

• What are the principles involved in the case of A.K.Kraipak v. Union of India?
• How does violation of the principles of natural justice affect this particular case?
• Can a person be a judge in his own case?

6
Supra note 2, 201
7
(2006) 6 SCC 25.

4
1.3 Literature Review:

1. Prof. (Dr) I.P. Massey, Administrative Law, Eastern Book Company, Ninth Edition, 2018.

One of the most renounced books of administrative law, the book gives a complete and structured
idea about the central vigilance commission in chapter 13 of the book. The information present in
the chapter provided the base idea for the research paper and helped in the formation of the
structure of the paper. It provided with the primary idea about the central vigilance commission of
India.

2. C.K. Takwani, Lectures on Administrative Law, Eastern Book Company, Sixth edition, 2016.

Another renounced administrative book. The book provided with the initial concepts of CVCs in
India, and also threw light upon the needs and requirements of the CVCs in India. The book helped
in crating skeleton of the paper, by providing all the initial knowledge required to start with the
research.

1.4 Scope and Objectives:

The research paper aims at dealing with the following objectives:

1. To look into The Indian Forest Services (Recruitment) Rules Act, 1966.

2. To look into the powers of the members of the selection committee.

3. To understand the role of the principles of natural justice in the present case.

1.5 Research Methodology:

The methodology used in this project is of doctrinal research. Doctrinal research is basically library
- based research where the resources available in the library have been used.

The nature of research is descriptive. Sources of data collection: Data has been collected from both
primary and secondary sources likewise.

a. Primary Sources: Bare Acts and Case Laws.

b. Secondary Sources: Books, reports, articles.

A uniform methodology of citation has been followed in the research article

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 2. FACTS OF THE CASE

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.”8

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

8
The Indian Forest Service (Recruitment) Rules, 1966. (http://ifs.nic.in/web/rec.htm)

6
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.”9

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

9
Ibid.

7
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.

2.1 Arguments made by the parties of the case

The petitioners as well as the respondents raised arguments with respect to the nature of the power
conferred on the selection board.10

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’.11

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.

10
Supra note 5.
11
Ibid.

8
 3. 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.12

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

12
(1964) AC 40.

9
should be incapacitated from sitting.”13 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. 14 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.

13
(1987) AIR 454.
14
(1957) AIR 425.

10
 4. CRITICAL ANALYSIS OF THE JUDGEMENT

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.15

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.”16

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

15
Supra note 5.
16
Ibid.

11
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.”17

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.”18

17
(1967) 2 QB 617 (1967) 1 All ER 226, (https://www.refworld.org/cases,GBR_HC_QB,3ae6b6d74.html).
18
1967 AIR 1269.

12
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
clearer.

In Suresh Koshy George v. The University of Kerala,19 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.

19
1969 AIR 198.

13
 5. 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”20

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 fair-play 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.”21

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.”

20
Supra note 5.
21
(2003) 4 SCC (Jour) 1

14
 BIBLIOGRAPHY

Books:

• Basu Durga Das, Administrative Law, 6th ed.; Kamal Law House, Kolkatta, 2005.
• Massey I.P, Administrative Law; 9th ed.; EBC, 2018.
• Pandey T.N, “Rule of Natural Justice in the Administration of Law”, Vol. 131, Taxman,
2003.
• Takwani C.K, Lectures on Administrative Law; 6th ed.; EBC, 2016.

Article:

• C K Thakkar, “From Duty To Act Judicially To Duty To Act Fairly”, (2003) 4 SCC
Journal

Web Sources-

• http://www.ebc-india.com/lawyer/articles/71v1a13.htm
• https://lawbriefs.in/there-is-a-thin-line-of-difference-between-administrative-acts-and-quasi-
judicial-acts-sc-case-brief/
• https://www.refworld.org/cases,GBR_HC_QB,3ae6b6d74.html
• http://ifs.nic.in/web/rec.htm

15