1.

Introduction

There are three organs of government: 1) Legislature, 2) Executive, and 3) Judiciary. These
three organs essentially perform three classes of governmental functions: 1) legislative, 2)
executive or administrative, and 3) judicial. The function of legislature is to enact the law; the
function of executive is to administer the law; and the function of judiciary is to interpret the
law and to declare what the law is.

Today, the executive performs variegated functions, viz. to investigate, to prosecute, to

prepare and to adopt schemes, to issue and cancel licences, etc. (administrative); to make
rules, regulations, and bye-laws, to fix prices, etc. (legislative); to adjudicate on disputes, to
impose fine and penalty, etc. (judicial). 1 Schwartz rightly states that rule-making (quasi-
legislative) and adjudication (quasi-judicial) have become the chief weapons in the
administrative armoury.2 Quasi is a smooth cover which we draw over our confusion as we
might use a counterpane to conceal a disordered bed.3

Acts of an administrative authority may be purely administrative or may be legislative or

judicial in nature. Decisions which are purely administrative stand on a wholly different
footing from judicial as well as quasi-judicial decisions and they must be distinguished. This
is a very difficult task. “Where do the administrative end and the judicial begin? The problem
here is one of demarcation and the courts are still in the process of working it out.” 4 This
difficulty arises in applicability of the rules of natural justice too. The rules of natural justice
are presumed to apply to bodies entrusted with judicial or quasi-judicial bodies. There is no
such presumption with regards to bodies performing administrative functions. Decisions,
which are purely administrative, stand on a wholly different footing from judicial as well as
quasi-judicial functions. Identifying the rules of natural justice in the varied circumstances
which confront administrative decision makers, has proven to be a formidable task for such
bodies themselves as well as the Courts charged with supervising and controlling their
decisions. Administrative authorities are being entrusted with the “duty to act fairly” in

1
C.K. THAKKER & M.C. THAKKER, LECTURES ON ADMINISTRATIVE LAW 44 (6 th ed. 2017).
2
BERNARD SCHWARTZ, FRENCH ADMINISTRATIVE LAW AND THE COMMON LAW WORLD 89
(1954).
3
Federal Trade Commission v. Ruberoid Co., 343 US 470, 488 (1952).
4
MACDERMOTT, cited by BASU and THAKKER, COMMENTARY ON THE CONSTITUTION OF INDIA,
Vol. B 151 (1975).

1
arriving at decisions which may have a serious adverse effects on someone’s rights, interests
or status.

In the case of A.K. Kraipak v. Union of India5, the question of classification between pure
administrative functions and quasi-judicial function came up before the Supreme Court and it
is an important case of precedence because it affirms that no authority can be absolved of
their duty to act fairly.

2. Facts of the Case

In 1966, 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. The rule made under
Section 2(A) of the All India Services Act, 1951 by the Central Government provided for
recommendation of officers for selection to the central service by a Special Selection Board.
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 consisting of the Chairman of UPSC or his
nominee, Inspector General of Forests of the Government of India, Joint Secretary of Union
of India, Chief Secretary of the concerned State Government and Chief Conservator of Forest
of the concerned State Government.

Regulation 5 dealt with the preparation of the list of suitable candidates. It reads as “The
Board shall prepare, in order of preference, a list of such officers of the State Forest Service
who satisfy the conditions specified in Regulation 4 and who are adjudged by the Board
suitable for appointment to posts in the senior and junior scales of the service.” The 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 Union Public Service Commission examined the records of the
officers afresh and made its recommendations. The Government of India thereafter notified
the list.

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
5
A.I.R. 1970 S.C. 150.

2
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 then forwarded the
list of names with its observations to the Commission and the Commission had examined the
records of all he officers afresh before making its recommendations.

Aggrieved, The Gazetted Officers Association, Jammu and Kashmir along with the interested
parties brought a petition to the Court challenging the selections notified in the impugned
notification as being violative of Articles 14 and 16 of the Constitution and on the further
ground that the selections in question were made in contravention of the Principles of Natural
Justice.

3. Issues Raised

Following issues were raised before the Court:

a. Whether the present proceedings were administrative or quasi- judicial in nature?

There was considerable controversy as to the nature of the power conferred on the selection
board under rule 4 read with Regulation 5 as petitioners had contended that the power was a
quasi-judicial power whereas respondents contested that was that it was a purely
administrative power. In support of the contention that the power in question was a quasi-

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judicial power emphasis was laid on the language of rule 4 as well as Regulation 5 the word
‘adjudge' had been used which meant "to judge or decide". It was contended that such a
power is essentially a judicial power. On the other hand it was contended by the learned
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".
b. Assuming that the proceedings in the present case were administrative proceedings,
whether principles of natural justice applied to them;
Another issue was that principles of natural justice will not apply in the current proceedings
because of being administrative in nature as principles of natural justice apply only to judicial
or quasi-judicial proceedings.
c. Whether there was a violation of such principles of natural justice in the present
case;
Since principles of natural justice do not apply in the current administrative proceedings,
violation of these principles does not come into picture at all.
d. Since the recommendations of the Board were first considered by the Home
Ministry and the final recommendations were made by the U.P.S.C., whether there
was any basis for the petitioners' grievances;
The list prepared by the selection board was not the last word in the matter of the selection in
question. The 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.

4. Analysis

Principles of natural justice are an expression used for describing the criteria of procedural
fairness in the administrative process. They ensure that the decisions are taken objectively,
impartially, without prejudice and aims at securing and imparting justice. Natural justice is a
branch of the public law and is a formidable weapon which can be wielded to secure justice
to the citizen. The principles of natural justice occupy a unique place particularly in the field
of administrative law because they provide the standards which focus attention on the

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important question that how far is it right for the courts to try to impart their own standards of
justice to the administration. The two basic postulates of principles of natural justice are:
Nemo debet esse judex in propia causa (no one can be judged in his own case) and audi
alteram partem (Right to fair hearing) however it is important to remember that the rules of
natural justice are not embodied rules.

In the instant case, the Court held that the basic principle of nemo judex in causa sua was
violated as Naquishbund was a member of the selection board and though he did not
participate in the deliberations of the board when his name was being considered, the very
fact that he was a member of the selection board, nevertheless, holding the post of Chairman
must have had a significant impact on the decision of the selection board and it is only logical
to assume that he would have participated in the deliberations when the claims of his rivals,
the senior officers, were considered. On this account, the Court concluded that Naquishbund
could not have been unbiased and as bias vitiates equal opportunities, the recommendations
of the committee were invalidated. With regards to the nature of the function that the
Selection Boar has exercised, it is often difficult to demarcate administrative inquiries from
quasi-judicial inquiries but it should be remembered that arriving at a just decision is the aim
of any adjudicating and decision making authority. In the case of State of Orissa v. Dr. (Miss)
Binapani Dei 6 , it was observed that 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. It was in this case that 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 for the first time. The ruling in the instant case
reflects significant change in the judicial thinking on the classification between
administrative actions and quasi-judicial actions and that the requisites of fair hearing would
also be applicable to administrative functions. It is irrefutable that there is a line of
distinction, howsoever thin, between quasi-judicial and administrative powers; however there
is one element which ought to be applicable in both cases - that is, the duty to act fairly.
Principles of natural justice of which the main constituents are that a person interested in the
disposal of a matter one way or another should not act as a judge in his own case and that no

6
1967 SCR (2) 625.

5
one should be condemned unheard are applicable to the administrative actions in the same
way that they are applicable to the as quasi-judicial actions. As the court rightly observed in
the instant case, there is simply no reason why these principles of natural justice shouldn’t be
applicable to administrative inquiries and it is simple illogical to allow administrative
inquiries to be shielded from the application of principles of natural justice and allow the
authorities to act arbitrarily. This court has rightly held that the administrative authorities also
ought to comply with certain rules and principles of natural justice to lend credence to his
decision.

The Court went on to develop administrative law by answering all the issues raised. To the
first issue they said that 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.

To the second issue, the Supreme Court held that with the growth of administrative law, the
old distinction between judicial act and administrative act has withered away. Hence, even a
pure administrative action entailing civil consequences must be consistent with the rules of
natural justice.

Addressing the third issue, the court observed:

“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 a party to the preparation of the list of selected candidates in order of preference. At

6
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.”

The Selection Board was undoubtedly a high powered body, and its recommendations must
have had considerable weight with the Union Public Service Commission. The
recommendation made by the Union Public Service Commission could not be dissociated
from the selection made by the Selection Board which was the foundation for the
recommendations of the Union Public Service Commission Therefore, if the selection by the
Selection Board was held to be vitiated, the final recommendation by the Union Public
Service Commission, must also be held to have been vitiated.

5. Ratio Laid Down

A five judge bench of the Apex Court comprising of Chief Justice Hidyatullah and Justices
Grover, Shelat, Bhargava and Hegde.

The Honourable 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 Justice Hegde, “The requirement of acting
judicially in essence is nothing but to act justly and fairly and not arbitrarily or capriciously.
The procedures which are considered inherent in the exercise of a judicial power are merely
those which facilitate if not ensure a just and fair decision.”

It further observed that the dividing line between an administrative power and quasi-judicial
power is being gradually obliterated. The Court held that the basic principle of nemo judex in
causa sua was violated by appointing Naquishbund as a member of the selection board.
Though he did not participate in the deliberations of the board when his name was being
considered yet the very fact that he was a member of the selection board and that too holding

7
the post of the post of the Chairman had a subtle yet significant impact on the decision of the
Selection Board.

Further the Court observed that the question is not whether Naquishbund was actually biased
or not. The real question is whether there is a reasonable ground for believing that he was
likely to have been biased. 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 below:

The Court observed that in In Re H.K (An Infant)7 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.”

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.

In Suresh Koshy George v. The University of Kerala8, 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.

7
[1967] 2 QB 617 [1967] 1 All ER 226.
8
1969 SCR (1) 317.

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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.

6. 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.
The case of A.K. Kraipak v. Union of India9 is a landmark judgment 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, Justice
Hedge, 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.”
The author agrees with such a proposition because many a times the impact of administrative
decision can be far greater than that of a judicial decision. As in the present case, the decision
made with bias and without the applicability of rules of justice would have adversely affected
the careers of the officers not selected. In such circumstances leaving the administrative
actions out of the clutches of rules of justice would undermine rule of law.
The researcher concludes with the words of Krishna Iyer J. – “Once we understand the soul
of the rule as fairplay in action – and it is so- we must hold that it extends to both the fields.
After all administrative power in a democratic set-up is not allergic to fairness in action and
discretionary executive justice cannot degenerate into unilateral injustice.”10

9
A.I.R. 1970 S.C. 150.
10
Mohinder Singh Gill & Anr v. The Chief Election Commissioner, 1978 SCR (3) 272.

9
 REFERENCES
Books
1. BERNARD SCHWARTZ, FRENCH ADMINISTRATIVE LAW AND THE COMMON
LAW WORLD 89 (1954).
2. C.K. THAKKER & M.C. THAKKER, LECTURES ON ADMINISTRATIVE LAW 44
(6th ed. 2017).
3. D.D. BASU, ADMINISTRATIVE LAW (6th ed. 2005)
4. D.D. BASU, COMMENTARY ON THE CONSTITUTION OF INDIA, Vol. B 151
(1975).
Journal Articles
1. Deepika S., Case Commentary on A.K. Kraipak v. Union of India, 8 THE WORLD
JOURNAL ON JURISTIC POLITY, (2018).
Internet Sources
1. Anon, A.K. Kraipak Case, PhD ESSAY (Feb. 21, 2019, 08:33 PM),
https://phdessay.com/ak-kraipak-vrs-union-of-india-a-case-study/.
2. Shyama Nai, A.K Kraipak v. Union of India – a Case Study, LEGAL SERVICES INDIA
(Feb. 21, 2019, 10:04 PM), http://www.legalservicesindia.com/article/1162/A.K-Kraipak-
v.-Union-of-India.html.

List of Cases Referred

a) Indian Cases

S. No. Name of the Case Citation

1. A.K. Kraipak v. Union of A.I.R. 1970 S.C. 150
India
2. Mohinder Singh Gill & Anr 1978 SCR (3) 272.
v. The Chief Election
Commissioner,
3. Suresh Koshy George v. The 1969 SCR (1) 317
University of Kerala
4. State of Orissa v. Dr. (Miss) 1967 SCR (2) 625
Binapani Dei
b) U.K. Cases

S. No. Name of the Case Citation

1. Re H.K (An Infant) [1967] 2 QB 617 [1967] 1
All ER 226

c) U.S. Cases

S. No. Name of the Case Citation

1. Federal Trade Commission v. 343 US 470, 488 (1952)
Ruberoid Co.