Chapter A Study of Public Administration With Reference to Administrative Law 1.1 Introduction ‘The institution of Administrative Tribunals is unique in its kind because it is not confined in the limits of one academic discipline but is an essential element of two subjects simultaneously i.e. the Public Administration and the Law. The law that governs the administrative tribunals is called Administrative Law. In the words of Hamson (1954: 131) an important purpose of Administrative Law is to enable these tribunals to keep control of the administration. On the one hand the administrative tribuaals are aimed at to regulate the administrative behavior, on the other hand these tribunals are the creature of Administrative Law. It is, therefore, felt desirable to discuss both the subjects in a concise and precise manner in the beginning of the study. This Chapter consists of three parts, Part-l is embodied with an elaborate discussion on the subject of Public Administration, Part Il contains a sizeable material on the subject of Administrative Law and Part LHI consists of material that establishes relationship between Administrative Law and the Public Administcation. This part is embodied with discussion about Restraints on Discretionary Powers. The last part of the chapter ts concluded with a general discussion about the overall role of judiciary in streamlining administrative process. 16Part-I 1.1.1 Introduction to Public Administration In the ancient ages when the population of each country consisted of few millions, in some cases even less than a million, and the greater portion of population was of farmers and relatively self-subsistent. The community did not need to have an organized and controlled adrninisteation, Whenever the community intended to initiate any activity for the procurement of their livelihood or for the development of infrastructure the same could be accomplished with a minimum of organization, The basic needs of modern age ie. water supply schemes, electricity supply, pavements of roads, health facilities, communication system, revenue collection, country defence, education, sewage system and maintenance of law and order were unknown to them, The very growth in size of population, advances in technology and a heap of basic needs, which are required for the modern social life, have changed the whole scenario. Most of the activities or events that could have been accomplished without any organized public authority must now be handled by the government. In the old ages most of the community problems that could be solved by their mutual cooperation, now require a highly organized cooperation of professional experts. The man of present age is no longer self-subsistent, for most of his daily requirements he depends upon government. A complete diversion and specialization of modern life has led 19 increase the governmental activities. Simon, Smithburg and Thompson (1974: 3) explained the term administration; according to them it consists of two elements, namely a purpose and the cooperative action. in a precise way it is said as @ cooperative group activity towards the accomplishment of a common goal, However, the cooperative activities of a modern community are needed to be within a much more formal structure than before Thus formal structure means aplanned system of cooperative effort in which the role and duty of each participant is specified to play and perform respectively. The problem of administration arises whenever and wherever men live together. The activities of man, being a social animal, need to be properly organized and managed, because in the absence of such organization and management of human activities the creation of a social and orderly society may not be possible. In this regard Bhagwan (1987: 4) writes that administration is a necessary activity of every human grouping, He, therefore, call it a ‘technology of social relationship’, which involves rational organization and management of men and material. So any human activity that involves the conscious cooperation towards one another can be called organized activity. Simon, ‘Smithburg and Thompson (1974: 6) have further elaborated the fore cited lines from Bhagwan in such words, “since administration is concerned with all patterns of cooperative behavior, it is obvious that any person engaged in any activity in cooperation, with other person is engaged in administratton.” For thousand of years, since long before the inception of recorded history the administration has been the essential feature of human society. Administration was never an alien term for the individuals of a society, because man himself for the smooth runsing, of daily and routine affairs of a community devised the administrative system. Administration is divided in two major partions, public administration and private administration. Both the kinds have some similarities but going through various definitions one can presume that the administration, which deals with public matters or applicable to public at large is pubhe administration. The administration that is of personal, non-political and business nature is called private administration. Prof. Simon and others (1974: 8) have explained this distinction in a much precise way, in their own words, “in the popular imagination, goversmental administration is “bureaucratic”; private administration is “business-like”, governmental administration is political, private administration is non-political, governmental administration is characterized by “red tap”; while private administration is not”. 18In this part of the study the main focus remains on the former type of administration, i.e. the public administration, The public administration, as Basu (1990: 5) enumerates, lends itself to two meanings, first, it stands for the activity of administering governmental affairs and secondly it is an academic discipline. Public administration as an activity has existed in human society {rom the time when men started living in organized society. As an academic discipline its emergence is quite recent. According to Prof. Sheikh (1990: 2) and Tiyagi (1999: 17), the very term ‘public administration’ does not appear to have come into use until the 17" century. Mr. Hamilton, an American author defined the meaning and scope of public administration, for the first time at the end of 18" century the tecm was further goes on elaborating the historical background of public administration as a discipline, In France this discipline first appeared in 1812, when Charles Jean Bounin wrote a separate treatise on the subject of public administration, its title was ‘principles d’ administration publique.” If the public administration's activity is so old, what then is new that may differentiate the modern public administeation from the ancient system of administration? The contemporary administrative system is distinguished in three areas from the old one, i.e. in its purposes, its functions and in its methodology (U.N. Handbook of public administration, 1961 part-1) The purposes of modem administration have been completely changed with the revolutionized objectives of the welfare state. The state is no longer just the preserver of internal law and order situation nor is only obliged to protect its citizens from external aggression but is rather expected to be the accelerator of economic and social change, The government is further expected to spread the benefits of economic and social progress to the community as a whole as opposed to the old practice of pleasing a small privileged class. The functions of the prevailing administrative system have also been enormously increased in its number, variety and complexity. This increase in the function is due theunlimited services which the state is called upon to perform. Describing the role of public administration, Barber (1983: 4) writes, “The role of the state has developed far beyond the basic activities of external defence and internal law and order, to an interventionist and active planning role”. The combination of various factors ¢.g. the industrial and commercial revolution, increasing population, urbanization, market inadequacies, political demands and public communication have widened the scope of state functions. The expansion in the role of the state has increased the value of public administration The statement by Tyagi (1999: 15) seems quite appropriate to be laid down here. He says, “In fact the administration of a country reflects the genius of its people and embodies all their qualities, desires and inspirations. In this sense it is not merely a preserver of the status quo but is actually an agent of social change and progress.” ‘As to methodology, the modern administrative set up is well organized, disciplined and is a body of knowledge and experience. The concept of a service state has been universally accepted. The government of the modern service state is responsible for the demands of its people and particularly the governments of developing countries are expected to devise a new form of public administration that could overcome social and economic deficiencies. The administrative organization of a government is not an end in itself but a means for the achievement of national objectives 1.1.2. Definitions Man being a social animal cannot live in a state of solitude. His nature and needs compel him to join the society of his fellow creatures where he has to live and work with the community as a member To keep the community intact, disciplined and organized the environment must be congenial So that there may be a harmony among the members of the community and their collective effort towards the achievement of any goal is effective. For the success of any collective effort whether that is ina community or in any organization the combination of men and material must be in a harmonious atmosphere. Rodee, Anderson and Christol (967° $52) have portrayed the situation in these words, “good human relations benveen supervisat and the supervised are now recognized as 20essential to good administration”, Congenial and friendly relationship in a pleasant environment adds up to good moral, which is indispensable if an organization is to operate successfully. Tyagi (1999: 4) has expressed his views regarding this like situation and has said, “it is the technology of this harmonious combination of men and material that is called administration” Marx FM, (1965: 3) defined administration as a systematize ordering of affairs and the calculated use of resources, aimed at making those things happen which we want to happen and simultaneously preventing developments that fail to square with our intentions, The statement may not be correct wherein every collective activity is named as admit istration because, “administration is only that type of collective activity which involves rational organization and management of man and material” said Tyagi (1999 4). Therefore administration may be termed as a generalized human activity concerned with ordering, the man and materials required achieving collective social ends, Gladden (1957: 18) has elaborated the meaning of administration in somewhat generalized manner, “administration is a long and slightly pompous word but it has a humble meaning, for it means to care for or to look after people, to manage affairs”, In simple language it means the management of affairs or looking after the people The activities, which involve organization and management, can be found only in human societies everywhere. If such activities are performed by a club, in association of any particular community or by a private company or corporation etc. is called private administration. Public administration on the other hard involves all those activities that are performed by the state, central, provincial and loca! governments. Public administration is often, defined as the art and science of designing and carrying out public policies, the policies that are designed by their elected masters. This body is also concerned with the institutional framework of government, with its socio-economic and political environmentMany writers who are concerned with the subject of public administration have attempted to define it in a precise and comprehensive manner. Going through various definitions, it appears that each writer has defined the term for different usages. Some of them are of the opinion that public administration includes all the activities of the government whether these activities fall within the sphere of legislative side or these activities are related to executive and judicial branches of the government. Some scholars have restricted the jurisdiction of public administration; according to thern it is concerned with the activities of executive branch only Prof Tyagi (1999: 4) uses the term public administration in two senses; first he takes the term as a work that is involved in the actual conduct of governmental affairs. In this sense public administration covers all the branches of government. The second opinion in this regard is that public administration denotes the operat n of a particular administrative branch onty, Public administration is a body that carries out the policy decisions of a government, plans are made for the work 10 be done and it exercises control over the functionaries of government, regarding their functions and performance. Barber (1983: 1) has also supported the view of those writers, who restrict the function of public administration to the executive branch of government, He, therefore, declared that public administration is basically the administrative side of government, a pact of the executive, as opposed to the legislative and judicial power. While defining the term public administration J. W. Davis (1974: 4), too, enunciates that public administration can best be identified with the executive branch of government. He adds few lines more to the definition and says, “Public administration can be defined as the formulation, implementation, evaluation and modification of public policy.” Prof. L.D.White (1955: 1) observes,” Public administration consists of all those operations having for their purpose the fulfillment or enforcement of public policy,” Similarly, according to Dimock (1937: 31), “public administration is the fulfillment or enforcement of public policy as declared by the competent authorities.” According toLuther Gulick, quoted by Bhagwan (1987: 5), “Public administration is that part of the science of administration which has to do with government and thus concerns itself primarily with the executive branch where the work of the government is done.” There are writers like Herbert Simon, Smithburg and Thompson (1974: 7), who are very much particular in this context and have defined the scope of public administration in such a way as, have made it coincide with the activities of the executive or administrative branch only. According to them, “by public administration is meant, in common usage, the activities of the executive branches of national, state and local governments.” Mc Curdy (1997: 70) has defined public administration in a very particular style, “modern public administration is practically synonymous with bureaucratic management.” It is still true that the public bureaucracy is most often an instrument for the implementation of government policies and the public administration is also concerned with the institutional framework of government, so one can define public administration as that aspect of administration occurring under the formal patronage of government at every level, Basu (1990: 4) is also of the view that public administration is the non-political bureaucratic machinery of a government for implementing its laws and policies in action. He further goes on saying that public administration is the means by which the objectives and goals of government are determined. Robert Presthus (1975: 3-13) gives a fairly elaborated definition to the term ‘public administration’, This is perhaps a more practical definition of public administration, He writes, “Public administration is a common social process involving eertain common activities, which usually include policy making, programming, staffing, budgeting and supervision under the formal patronage of government at every level.” At another instance he defines the term by saying that it may be defined as the art and science of designing and carrying out public policies. \n another place he writes that public administration is a generalized human activity concerned with ordering the men and materials required to achieve collective social ends. At the last he says that in its Rmost basic sense, public administration, involves the coordination and mobilization of individual and group efforts with a view towards the implementation of public policy”. Rodee, Anderson and Thompson (1967: 544) have stated, “a major principle of public administration concerns the responsibility of executive officers.” So is the opinion of Gladden (1957: 16), who gives a brief definition of public administration and says that it is concerned with the adwinistration of the government.” Thinkers like Pfiffner (1960: 6), lay more emphasis on the coordinating role of administration, in his opinion “public administration consists of getting the work of government done by coordinating the efforts of the people so that they can work together to accomplish their set tasks.” Nigro, F.A. and L.G, Nigro’s (1973: 18) definition is more comprehensive one, which also includes in addition to the aforementioned aspects, the relationship between public administration and the political and social systems as well. They admit that after traveling a long way in the search for a satisfactory definition of public administration, no condensed definition was found that could cover all the foregoing points, They have presented all the points in the form of a brief summary that constitutes the definition. According to them Public administration: 1- Is cooperative group eftart in a public setting 2+ Covers all three branches of government and their interrelationships, 3- Has an important role in the formulation of public policies and is thus a part of political process. 4- Is different in significant ways from private administration S- Is closely associated with numerous private groups and individuals in providing services to the community Keeping in view the nature of responsibilities and the common practice of public administration besides the viewpoints of various writers, one can easily draw the conclusion that the term public administration stands for the administrative and executive organ of government. Vishnoo Bhagwan (1987. 5) after giving the detail of variousdefinitions by different authors concludes that by common usage and practice the term public administration is restricted to the organization and operations of the executive branch only Public administration as an executive organ of the yovernment is quite visible due to its pragmatic functions. The majority of legislations that are done by the legislature represents the will of the people, public administration have the assignment of administering these laws with in its true spirit, It can, therefore, be assumed that the duty of public administration is the execution of the will of the people, Governmental policies are expressed in the form of laws, regulations and official pronouncement by authorized official, It is in their administration that these policies become apparent to most citizens. Public policies axe only word until they are not administered, so it is the executive branch of government that gives life to the words of public policy by their acts. Justice Khalilur- Rehman (1983; 194), therefore, attributes a momentous role to public administration in a single line, “a government of a given time is judged by the performance of its executive.” 1.1.3 Nature and Scope The differences between the social and economical conditions of the presem day and those of the pre twentieth century era have placed a considerable pressure on democratic governments of the world. The changing attitude of its societies appears to be the main reason of pressure upon the governments and the attitude of general public is mostly influenced by the rapid urbanization, industrialization and technological revolution. The science of public administration emerged out of the fore-cited developments. The government after assuming its novel and many kinds of functions, creating new entities and expanding the strength of employees, felt it essential that an improved administrative organization be created to cope with the complexities of present day, It was thought that the new device should not merely be a preserver of the civilized life but also the great instrument of social change and improvement, becauise, according to Tiyagi (1999:15) the individual in the modern society depends upon administration at every turn of life 25.Regarding the nature of public administration two different views exist among the writers of this discipline. According to Tyagi, (1999: 5) the first view is that the public administration is conceived a comprehensive sense to include all the activities of government functionaries in pursuit of and in fulfillment of public policy. These activities include not only managerial and technical but also manual and clerical. This view is called the integral view, which is based on the idea of multiple operations of the public administration and the activities of all state employees, whether they belong to the legislature, executive os judicial branch of the government. The second view is known as managerial view, According to this concept public administration is concerned with such activities of the executive branch of government that are involved in organizational and managerial techniques. The fore-cited views. regarding the nature and scope of public administration, are different from each other, A consolidated statement by Vishnoo Bhagwan and Vidya Bushan (1987; 6-7) is being summarized here: the integral view includes the activities of all persons from top to bottom, engaged in government administration where as the managerial view covers the adiivities of only those persons who are at the top. The former view includes in the administrative orbit all the activities from manual to managerial and from technical to non-technical whereas the latte view considers only the managerial activities in an organization After studying the relevant material on this particular subject one can easily deduce the outcome that public administration being an activity or a body deals with all the activities of state owned functionaries. Being an executive organ, it controls and supervises the whole machinery of government Dr. Sheikh (1998: 16) has attempted to make the above mentioned statements clear of any ambiguity. According to his clarification, “the distinction between the works of two categories is related to the difference between management and operation. According to managerial theory, only managerial or supervisory activities constitute administration, 26not the operation, In ordinary words administration is not doing things but getting things done. An administrator is a functionary who gets things done by others by directing and supervising their work.” Looking into the aforementioned statements the task of public administration seems to be confined within the limits of supervision and management. As up to the words of ‘supervision’ and ‘management’ an ordinary citizen may take it an easy job in fact it is not so simple, The scope of public administration is vast and includes varied forms of activities. According to Rodee, Anderson and Thompson (1967: $48), “Public administration activities fall into four main categories, I- the protection of society as a whole, 2- promotional activities or assistance to a particular economic and social group, 3- proprietary activities, where a government owns and operates enterprises that serve the people and 4- regulation of a particular business or activities.” The categorization, expressed by Rodee and Anderson, explains to great extent the nature and scope of public administration. The first category of activities includes the job of protection through police, fire brigade, providing medical care and educational facilities, protection of civilians through national defence during any calamity or disaster and the conservation of natural resources. The second category consists of various promotional and service providing activities. Through this responsibility the public administration of a democratic government is assigned with the job to assist and support the farmers of a country so as to promote the agriculture, to make sure that good working conditions are available to factory workers, the creation of friendly environment for business and industrial community, providing financial support for elderly and un-employed citizens from the Government treasury or Baitulmal, Third category of the activities deals with public administration's responsibility where it provides social facilities and services to the citizens’ eg. postal services, railways, water and electric supplies, telecommunications, roads and canals etc. The forth class of activity is concerned with collection of revenue through different agenciesThe statement would be reasonable if it is said that the ambit of public administration covers the entire area of governmental activities. Though the established usage of the term and various definitions in most of the materials on the subject reveals that public administration is the executive branch of government, which activities are limited to the extent of supervision and management of civilian functions entrusted to them, Bhagwan and Bushan (1987: 8) have, also, emphatically stated that public administration, as such, is not concerned with all the acts of the three branches of the government. But a thorough perusal of literature on this subject shows that a modern public administration has extended its range of activities Public administration of the present day not only supervises the genecal affairs of government but is also empowered to make rules and at the same time is authorized to adjudicate departmental disputes. The former activity of making rules is known as “delegated legislation’ and the later activity of decision-making is known as ‘administrative adjudication.’ Barber (1987: 1) has described in a very obvious manner that public administration is basically the administrative side of government, a part of the executive, as opposed to the legislative and judicial powers, But at the same page after few lines he admits the expansion of administrative functions and says, “However it will be seen that the administration effectively exercises what can properly be described as legislative as well as executive functions.” In the words of Schwartz (1977, p-74), “it can hardly be denied that the administrative agency \oday is a law making agency. More and more the legislature has delegated significant powers of law making 10 agencies. ‘The modern administrative agency is, therefore, characterized by its possession of authority to make ules and regulations having the force of aw.”