Administrative Law

List of cases 4
BASICS 4
Historical development: 4
Attributes of Admin law: 5
Objectives of Administrative Law 6
Facets of admin law: 6
Sources of Admin law in India: 7
How do you identify administrative action? 9
State accountability in case of unlawful action: 9
Tribunals: 10
Control v Protection 11
Ranjit Thakur v UOI 1987 SC 11
Bhim Singh v J&K 1983 12
Rudul Shah v Bihar 1983 12
PUDR case (Asiad Games case) 12
UOI v Ram Pal Singh 12
Control over administrative actions 12
Associated Provincial Picture Houses Ltd v Wednesbury Corp case 12
Appointments: 13
UOI v Raghubar Pal Singh 3 judge bench Dipak Misra, Khanwilkar
(2018) 13
Jodhpur University Case: 13
Ganpat Singh Ganga Ram Singh v Gulbarga University 2 judges 13
Uma Devi v Secretary of State of Karnataka 2006 5 judge bench 13
Upendra Singh v State of Bihar (2018) Judgement delivered by A.K
Sikri 13
Theories of Control 14
Separation of powers: 15
Classification of Administrative Action 15
Quasi Judicial Action 17
Essential Requirements//Properties: 17
R v Electricity Commission 1924 1 KB 171- Lord Atkin 18
R v Legislative Committee of Church Assembly 1928 1 KB 411- Lord
Hewart 18
Important cases: 19
AK Kraipak v Union of India: 20
Diff bw QJA and Judicial Action 20
Pure Administrative Action 20
Without civil consequences 21
With CQ 21
Union of India and others v Ram Lakhan Sharma, 2nd July 2018, 2
judges, para 23. 21
State of Odisha v Bina Pani Dei 22
Mohinder Singh Gill v CEC case (para 71, 5 judges 1978) 22
State of Orissa v Dr. Bina Pani Dei 22
Devdutt v Union of India 22
Cases 23
Teghshri Gagh and others v Prakash Prishuram Patil and ors 23
2. Neelima Misra v Harvinder Kaur and ors 1992 24
Distinction bw Quasi Judicial Action v PAA w CQ 25
Judicial Review 25
Important Judgments: 25
Grounds of judicial review 26
Quasi Legislative Action: 26
DDA v CIC 27
Differences between QLA, QJA and PAA: 28
Discretionary power 29
Angad Das v Union of India (2010 3 SCC 463, 2 judges): 31
Clarient International v SEBI 2004 (AIR 2004 SC 4236, 3 judge bench,
Para 26-29) 31
Purtapore v Cane Commissioner 32
State of Punjab v Hari Kishan Sharma 1966 33
KP Krishnan 33
Muni Suvrat Swami Jain Sangh v Arun Nathu Ram Gaikwad and ors
AIR 2007 SC 38 2 judges 33
Union of India v Shri Gajanan Maharaj Sansthan SC 29 April 2002 34
HC Garge v State of Haryana 1987: 35
Rule of Law 36
Sheela Barse v Maharashtra (1983) 2 SCC 96 36
Madhya Pradesh v R Raghuvanshi 36
Dicey’s 3 principles 36
Namit Sharma v UoI 2012: 43
L Chandra Kumar v UOI 7 judges AIR 1997 SC 43
Delegated Legislation 45
Agriculture Market Committee v Shalimar Chemical Works 47
 St John’s Teacher Training Institute v NCTE 47
Gwalior Rayon Silk Manufacturing Co v Asst Commsr 1974 4 SCC 98
(5 judges bench) 48
Essential v non essential activities: 49
State of Rajasthan v Vasant Nahata AIR 2005 SC 3401 (2 judge bench)
para 19 and 20 49
Characteristics of DL: 51
Application of PNJ on DL: 52
Requirements for Valid DL: 55
Classification of DL: 55
AK Roy v State of punjab AIR 1986 SC 2160 (2J) 60
Avinder v State of Punjab 2J Krishna Iyer 61
Devidas Gopal Kishan v State of Punjab 1965 5 J 62
Harak Chand v UOI 1970 5J 62
State of Rajasthan v Basant Nahata 2J (2005) 62
Straw Products v Income Tax Officer AIR 1968 SC 5797 63
Vasudev Singh v Union of India 2006 para 2964
MP HC Bar Assn v UOI 2004 para 50 64
Tulsipur Sugar Company Limited v State of UP 1980 64
Control over Delegated Legislation 65
Hamdard Dawakhana v UOI, AIR 1960 SC 554 70
Dwarka Prasad v State of UP AIR 1953 SC 224 70
GOC v Dr Subhash Chand 1988 2J- 70
JB Chopra 1987 2j 71
Chintaman Rao v State of MP AIR 1951 SC 118 5j 71
Principles of Natural Justice 73
HEARING 95
Exceptions to PNJ: 108
RIGHT TO INFORMATION 114
Administrative tribunal 121

BASICS

Historical development:
Admin law does not stay static/constant. Admin law was recognized as a specialized
field of law only in the 19 century, but it did exist before that time. An example
th

would be the mention of fair justice by Austin. There is no one definition of admin
law; defined in different ways by different scholars.
Judicial review: Judicial review is a process under which executive or legislative
actions are subject to review by the judiciary.

William Marbury v James Madison- delivered by John Marshall, Chief Justice US

Supreme Court, the judgment has violated the principles of natural justice. This case
is specific to judicial review. There are 5 grounds for review- illegality,
irrationality/unreasonableness, procedural impropriety, proportionality, legitimate
expectations. Esprit de laws (The Spirit of the Laws) Book by Montesquieu.

Judicial review in administrative tribunals in India? Judicial review is part of the

basic structure of the Indian Constitution (IR Coehlo v State of Tamil Nadu).
Modes of judicial review in India: Article 226 (HC cannot dwell into merit of the
case; there is a difference between appeal and judicial review), 227, 32.
Codification of admin law: Uncodified in India but some facets have been codified
by other countries and international bodies. Eg: Tribunals, Courts and Enforcement
Act 2007 (UK).
Rule of law and admin law in Indian Constitution- Article 14, Article 21, Article 309,
Article 311. Principles of natural justice has thus been upheld in the Indian
constitution.

Origin:
1799: France- Droit Administratif- no judicial review, court cannot interfere with the
functioning in tribunals for service matters etc. That was the beginning of the setting
up of administrative tribunal.

Accountability of State/Monarchs: Origin of admin law. 1978- Maneka Gandhi v

Union of India (very important case). Admin deals with primary and secondary
legislation and it is a part of public law.
Defining the term ‘administrative law’ –
“branch of public law regulates action of three organs of the state (legislature,
judiciary, executive”) deals with their administrative actions in addition to executive
actions.
Some definitions:
Jenning: admin law is the law relating to administration.
Prof Wade: it is an instrument of control.

AV Dicey- civil liability in public officials in their dealings with the people and vice
versa. Determines the rights and liabilities of public officials and lastly, the procedure
to be followed. He is more concerned with individual rights.

Attributes of Admin law:

The objective of admin law is protection, control and good governance.
• In India, it is primarily judge made law, though this does not mean it is not
recognized by civil law countries)
• Part of public law
• Regulates relations between the state and the people
• Determines rights and liabilities of public officials

• Protect the rights of people (via judicial review, the principle of natural
justice, limited and controlled discretionary power)
• Accountability of the State for administrative action
• Regulates the administrative action of the three organs- this is the heart of
administrative law
• Lays down the procedure to be followed

Purposes of admin action: protect, promote, control.

Objectives of Administrative Law

1. Protection of the rights of people
2. Control and Regulation of actions of the 3 organs of State
3. Good Governance, Transparency and Accountability
Recognition of admin law in India and abroad:

UK and USA have specific statutes for regulating the acts of the state. UK: Crown
Proceeding act; USA: Federal Torts Claims Act. UK also has the T, C and E Act
of 2007 for regulation of tribunals. Separation of powers in the UK is also
codified. Now the supreme forum for appeal is not Judicial committee of the
House of Lords but the Supreme Court. USA: The Administrative Procedures Act,
codified some of the facets of admin law. Notice should be give- it should be
proper in nature. FOI Act, 2002 (UK): on transparency and accountability.
How far has USA’s constitution recognised separation of powers? Article 1, 2 and 3.
L(egislature)-E(xecutive)-J(udiciary). They have a clear demarcation of the organs. In
India, this doctrine of separation of powers has been slightly diluted by the judiciary.
France:
Droit Administratif. Can we apply this system to India?

Facets of admin law:

1. Rule of law: including criticism (Dicey and modern thinkers) and droit
administratif (can it be applied in India?)
 2. Separation of powers: Boding and Montesquieu (difference between
separation and concentration for the purpose of admin law; impact of
separation of power on rule of law;
3. Administrative discretion (includes judicial review—it always means
controlled judicial review. Dicey was against this discretionary power)

4. Delegation of power: control and limits on delegation of power-

retrospectively of sub-delegated legislation.
5. Principles of natural justice
6. Transparency and good governance
7. Judicial Review
All these facets are connected to each other.

Factors that are responsible for the advancement of admin law:

1. Involvement of the state in multifarious operations: trade, business, regulator,
controller, etc.
2. Failure of the organs of the state (i) judiciary: access to judiciary (ii) the
legislature: law making.
3. Demand for good governance: “king can do no wrong” and arbitrary rule by
the king. Refers to first case in vicarious liability in India. Sweden and its
advancements in lokpal etc. Includes the need of accountability and
transparency (includes e-governance). Demands of transparency have
developed because of the more public participation, eg is RTI.

There has been a lot of change in admin law before and after industrial revolution.
Substantial change in responsibility from welfare state to business acts and thus state
becomes a regulator and facilitator. Thus, in order to control the increased executive
activities there was a need of admin law. Eg: there is SEBI today that works on behalf
of the state.
Roles of three organs and why/how it has changed:

Judiciary: declare existing rights and liabilities. It failed to give speedy justice-
which resulted in establishment of tribunals. We have specialised tribunals under
statutory instruments, created for the purpose of sharing the burden with the
judiciary.
Legislature: create rights and liabilities. It did not meet the need of urgency as the
process is very tedious and cumbersome and the lawmakers are busy with other
activities. Eg, Lokpal was introduced in 1960s but then it was ultimately passed 2013.
In contrast, when the bill is of self interest to the lawmakers like their pensions it is
passed speedily. This results in the need of delegated legislation. Incidental and
ancillary powers are delegated. There are also the power to pass ordinances.
Executive: enforce existing rights and liabilities. Failure of executive has not been
given that much importance because before the nineteenth century, there was only the
king.

Constitution is the supreme in India.

Sources of Admin law in India:

1. Constitution:
Part III, Articles: 12, 14-32, 226, 227, 136, 323A & 323B, Schedule VII etc. Judicial
action is not covered under administrative action, the limit of administrative law is till
quasi- judicial action. L Chandra Kumar (1997) case on Article 323 clause 2(d).
Cannot claim admin law benefits against private bodies.
Article 14: how far does it have admin law principles? Terms like ‘reasonableness’,
arbitrary’. Article 16: ‘equal opportunity’. Article 19(1)(a): right to question and have
right to have access to information about the state. Thus, this article recognises
accountability and transparency.

Raj Narain, SP Gupta v UP case, privacy

19(1)(c): right to form association: reasonable restrictions can be imposed.

Instance: Employees at NLUJ formed an informal assn and they were issued with
notice to discontinue with the association. JSM advised them to challenge the action
on grounds of 19(1)(c) and workers won the case in HC. Court ordered the University
to withdraw the order, otherwise it would issue an order of contempt against NLUJ
VC.

Article 21 has the phrase ‘procedure established by law’. It is highly important

because due process. Wrongful appointment of unqualified person is violation of Art
21
Hypothetical 1: A professor is removed from University, no notice and no hearing is
conducted. Is Art 21 violated? First, look at the status of institution to see whether
institution is state or not. And then see what is the nature of action- quasi judicial,
pure adm w or w/o civil consequences
Hypothetical 2: NLU under an Act, professor is illegally appointed and she takes
some administrative action. What is her authority to take that action? Will the PhD
students’ degree will be under question too? It depends on the nature of facts. The
argument will run on the line that it is a public institution and thus bound by
principles of natural justice. Then look at whether the action was illegal or not. Nature
of action (pure administrative/quasi judicial etc) also to be looked at.
• Action taken by a person improperly appointed can be challenged and
set aside
• There cannot be any dilution of the procedure
 • There is a possibility of manipulation of the process, but in any case
the process must be followed. (Eg. during admissions, interview can be
manipulated etc.)
2. Primary Laws: made by Parliament.
3. Judicial pronouncements: admin law is a judge made law. Some landmark
cases for IR Coelho v State of TN, Charan Lal Sahu, Menaka Gandhi, Nagendra Rao
v AP.

(Dr. Bonham case- 1610- one of the first cases to have addressed lack of principles of
natural justice in an act)

How do you identify administrative action?

Administrative action is always performed by a public official/authority- all the
actions performed by the three organs of the state that is administrative in nature.
Therefore, it is not limited to the executive. Judicial function: adjudication of case.
Administrative action: transfer of judges.
Article 226 and 32 are part of the basic structure as judicial review. Article 136, also
deals with judicial review but it can be diluted as it is not part of basic structure.

State accountability in case of unlawful action:

• Art 299- Contracts by State- Regulated govt contracts- the process must be
transparent. This Article is the fountainhead of corruption in India.
• Article 300- Suits and Proceedings- The GOI may sue and be sued. This
Article ensures accountability of the State (secondary liability).

• Article 309: appointments and regulation of public servants. All

recruitment, dismissal etc regulated by service rules.
Personal accountability of the govt servants:
There exists the understanding that state resources should not be spent on public
servants’ fault, and should the public servant be asked to pay.
Lucknow Development Authority v MK Gupta case

The public official will be asked to pay compensation in cases of wrongful actions.
Person holding a specific post under the Govt cannot be dismissed unless principles of
natural justice are applied. Article 311(2)-- refers to the exceptions to this
requirement. There are broad exceptions like national security and larger public
good.

Hypothetical: Person is entitled to lower HRA and accidentally given higher HRA-
the amount is forcibly taken- this person will not have recourse to any remedy
because they were never entitled to that HRA in the first place. This is the
application of ‘cannot take benefit of your own wrong’ principle.
 Tribunals
Article 323A: Central Administrative Tribunal.
Administrative Tribunals Act 1985- 17 benches
CAT, SAT, and Joint AT (JAT)
State govts cannot create ATs
Article 323B: National Green Tribunal, Tax tribunal- other tribunals not dealing with
service matters. Tribunals perform quasi-judicial action.
Sch VII- Art 245,246,247

Power to create adm agencies as per Union List- Central Information commission;
authorities appointed by central govt. More than 100 tribunals created by State and
central govts
Judicial review: SEBI Act, FEMA (1999): these bodies have the discretion to frame
regulations and conduct inquiries. There is also the Securities Appellate tribunal. Art
226 for the purpose of judicial review is always available and it cannot be diluted by
any Act. Even if in relevant Admin Tribunal act, there is no provision of appeal, but
226 is available. (L. Chandra Kumar case). Thus we have followed combination of
RLT and GLT in form of ALT.
Difference between constitutional law and administrative law:

• Similarities: they are both public law and they both regulate state.
Constitutional law regulates all three organs and Admin law regulates only
admin action.
• Differences: codified- uncodified (in case of India); Constitutional law is
supreme and admin law is subordinate; admin law derives its power from
constitutional law.
Primary Law: examples, Competition Act 2002, National Law University Delhi Act,
MACT (Motor Accident Claims Tribunal), all institutions like RBI, SEBI have been
created by such primary legislation, consumer commissions.
Labour commissioners are appointed by presiding officers of labour courts.
Purposes of admin action: protect, promote, control.

Control v Protection
1. Preventive Control Mechanism
Administrative auths have to undergo certain procedures to prevent illegal acts:
a. following PNJ (principles of natural justice)
b. Rule of law (‘RoL’)
c. Control on Admin discretion
d. Delegated legislation- Give up some authority to others)
3. Curative
After the action has been taken, remedies available in form of judicial review of
Administrative Action
Properties of public servants can be attached

Ranjit Thakur v UOI 1987 SC

Employed as an army man, had grievances against CO, wrote a letter of grievance to
superior of CO. CO Chargesheeted the army man for not following process of channel
communications. Sentence to 28 days in army prison. During sentence, he refused to
eat, and was again chargesheeted for not following orders. Court martialled, with CO
being on bench. Dismissed from service and imprisonment for 1 year. After
imprisonment army man filed Supreme Court writ for gross violation of Principles of
Natural Justice.
1. Rule against bias (CO sat on the CM bench)
2. Proportionality (kind of punishment for not eating food)
Court held rule of law was to be upheld. Ranjit Thakur was reinstated along with all
benefits and the termination was set aside. No action taken against CO.

Hypothetical: Teacher ‘A’ appointed but was unqualified in 2013. There was a
backdoor appointment. Later regularised through interview. Asst Prof PhD or NET
are mandatory req. Associate Prof- PhD+8 years of experience. TA applied for higher
posts. Resolution passed in 2016 that his affidavit that he was a good teacher.
Committees reported that he wasn’t qualified to hold the post but by the time the
Admin officer heard the resolution, the Prof had completed all qualifications.
Can a person sit in appeal in his own decision? No.

SC violated Rule of Law:

1. Bhim Singh v J&K 1983

Rich person illegally arrested, judicial+police custody for 4 days. Comp awarded
50000.

2. Rudul Shah v Bihar 1983

Poor person illegally detained for 14 years. Simple comp of 35000.
In cases of violation of FR, exemplary damages are awarded (Nilabati Behra 1993-
Son of NB tortured in police custody. Police officers not held accountable tho). In
cases of Motor Vehicles, Consumer damages etc rarely exemplary damages are
awards
PUDR case (Asiad Games case)
Workers not paid wages, worked overtime. One worker wrote a postcard to Supreme
Court. Treated as PIL first time.

UOI v Ram Pal Singh

One person appointed as compounder backdoor. After 8 months, services terminated
without hearing without notice. He challenged termination Jodhpur HC< matter
brought to SC.
Can regular protection be accorded to persons of illegal appointment? SC approved
the action of State govt, since appointment was illegal.
Hypothetical: What if a person not qualified had received higher salary for higher
post?
Ans. Adm Auth can take back excess amount. RoL doesn’t discriminate between
status etc. If RoL wasn’t followed, appointment will be null and void.
With regard to the accountability of the person occupying the position which made
the appointment, India is gradually moving towards a personal accountability system.

Control over administrative actions

Associated Provincial Picture Houses Ltd v Wednesbury Corp case

Principle of unreasonableness is a ground for judicial review.

3 Tests:
• Administrative authority must take into account relevant matters and facts

• Administrative authority must exclude irrelevant facts

• AA must be reasonable
Public appointments-
• Relevant factors: Eligibility- qualified experience (in the case of teacher-
publications)
• Competency: very subjective. Competency is always assessed by the experts.
Quality research not sponsored research.
• Language skills alone may not be a true reflection of competency.
• Irrelevant factors: Popularity/ connections
UGC has prescribed minimum requirements for appointment of professors which
cannot be diluted, otherwise the appointment itself will be illegal.

Appointments:
UOI v Raghubar Pal Singh 3 judge bench Dipak Misra, Khanwilkar (2018)
Para 8: If someone is appointed through backdoor, must leave through backdoor.

Jodhpur University Case:

Professors appointed through backdoor; writ petition was filed and inquiry was
ordered. Now proceedings have been initiated against the VC and the Head of
Department.

Ganpat Singh Ganga Ram Singh v Gulbarga University 2 judges

The basic qualification was MCA but the said person had done M.Sc and they were
appointed. So this appointment was stuck down after 10 years.

Uma Devi v Secretary of State of Karnataka 2006 5 judge bench

Upendra Singh v State of Bihar (2018) Judgement delivered by A.K Sikri

If there is no control then arbitrariness is likely to affect people.
Hypotheticals:
1. Person eligible/qualified to hold a post, but appointed through backdoor
2. Person not qualified, but appointed because of connections
If there is an illegal appointment then for the purpose of tis termination procedures
need not be followed because there are no legal consequences and no deprivation of
the appointed person, and if there is no entitlement that they have to that position then
there is no requirement of principles of natural justice.
1. Protection
2. Control
3. Good governance

Theories of Control
1. Red light theory by Prof. Wade
Primary function of AL is to control A actions. Actionable control through judicial
review. This theory has emerged from the fear of state absolutism, basically absolute
power, corrupts absolutely. Judicial review in the form of writs etc. Specific writs and
specific directions. According to this theory, control and protection have a direct
connection.
Lokpal-
First bill introduced in 1968 in First Admin Law Reform Commission headed by
Morarji Desai.
Lokayukta can be used as a tool of actionable control.
Direct nexus between control and protection. This theory is not concerned with
internal control.
2. Green light theory
The main function of admin law is to facilitate admin authorities. Administration will
take care of all internal governance issues and according to it external control is not
required as internal governance is the best governance.
The tools of internal governance:
• Delegation of powers
• Discretionary power
Self governance, self reliance or otherwise. No external control is required. Theory
doesn't talk about control, but only about self governance. Limitation of theory: does
not take into account the value of sanction and control mechanisms.
3. Amber light theory
Propounded by Modern thinkers like Harlow, Rawlings etc.
They recognised the red and green light theory have limitations. According to Amber
theory, it requires both external control (judicial review) and internal governance (as
mentioned in GLT). Since in India, there is the power to conduct internal inquiries as
well as make an appeal through the process of judicial review, we follow ALT.

Separation of powers:
Whether one person can perform all admin actions?
• Does judiciary perform any administrative action? Yes. Supreme Court rules
and procedure Act 1966 under Article 145 of the Constitution (appointment of
employees, disciplinary action, etc)
• Does the legislature perform administrative actions? Yes. Appointment of
employees and officials, action taken against a Member of Parliament
Therefore, administrative action or AA can be performed by all three organs of the
state.

Classification of Administrative Action

1. Quasi Judicial Action (‘QJ’) [Example: Internal Complaints Committee]
2. Quasi Legislative Action (‘QL’) or delegated legislation
3. Pure Administrative Action (‘PAA’)
a. With civil consequences (difficult to distinguish from quasi judicial action)
b. Without civil consequences
We need to be able to identify where a certain action falls to determine the following
points:

• Whether there existed a substantive authority to take that action

• Which procedural requirements should have been followed
• If it unlawful exercise of authority on either of the two counts then what
are the remedies available (i.e what kind of writ can be filed)
o Eg. Writ of mandamus cannot be issued to direct authorities to do
what they should, it is adm discretion
It is also important to understand the different kinds of action from the point of view
of separation and concentration of powers. For example, SEBI has QJ, QL and pure
administrative action authority. Therefore, these three kinds of AA cannot be
performed at the same time by a single body and it has to follow PNJ throughout.
NLUD EC has power to promulgate regulations (exams etc.) which is QL. But this
exercise of QL cannot be diluted, for example by conducting special repeat exams etc.
The lawmaking power to undertake quasi legislative action of NLUs lies in the
Executive Action, and no one can dilute that authority. QLA cannot be undertaken to
overturn a Central Act or Central government rules. Eg. IP University has framed
regulations for inspection of answer sheets @Rs. 1200 etc, without the authority to do
so, since they are bound by Central Govt rules @Rs. 2/ Rs.5
Appointment of teachers is PAA with CQ. Illegal appointment cannot be regularised
because that would amount to the appointing authority sitting in appeal to its own
decision and as appointment is PAA with CQ, there has to be mandatory observance
of PNJ including not sitting in appeal to one’s own decision.
Rules/Regulations/Guidelines
This is an exercise of the quasi legislative authority which simply means that an
authority can frame them for internal matters as it has been empowered by the
enabling Act that set it up. Eg: The administration of NLUD passes circulars, notices,
rules and this power is arising (and limited by) by the NLUD Act.
Regulations can only be framed on certain specified points.
PNJ are a must in QJ and PAA with CQ (only on some aspects though) but not for
delegated legislation (‘DL’). However, there can be other requirements in the case of
DL such as holding consultations with the affected parties and approval from any
authority as may be required under the enabling Act, and sometimes there might be
other requirements such as publication. DLs are always controlled, never limitless. So
for example, a University cannot make a rule that its actions cannot be challenged in
any court in India.
According to JSM, the Moot Court Regulations have to be approved by the Executive
Council as per the NLUD Act and in the absence of approval, it has no legal
authority.
If there is a violation of the enabling Act in the DL then one can approach the court
for judicial review under the writ jurisdiction. Writ of prohibition during pendency
and writ of certiorari if its post-decision

Quasi Judicial Action

Quasi-judicial function is a legal fiction. Admin auth has duty to act judicially and
PNJ has to be followed. A simple way of understanding this is that wherever the
administrative authority has to determine the rights and liabilities of parties, it is QJ. It
is determination of lis. Mostly done by tribunals, sometimes committees (Eg.
Grievance Redressal Committees)
Appointment is not QJA, it is PAA with CQ. Here, PNJ does not have to be followed
strictly but some procedural requirements do exist so a hearing cannot be given but
there must be speaking order.

Essential Requirements//Properties:
1. There must be a lis (involving functioning of state organ)/ there must be a
demand which has been rejected

2. Determination of rights and interests of parties

3. Due process must be followed, PNJ it is a necessity. (there is no discretionary
power to the QJA to deviate from PNJ) Why do we apply PNJ to QJA?
Because there is determination of dispute- fair trial/fair justice, so parties
must be heard.
4. No delegation of this power allowed
For instance, can a VC delegate powers to registrar his/her decision making
powers? No. When power has been delegated, one can question that specific
action as there must be power to adjudicate in the first place.

5. It regulates its own process (informal and simple process). Not bound by CPC,
Evidence Act technicalities.

6. Objectivity (Some discretionary power only in cases of ex parte order, review

etc, but otherwise no discretionary power)

7. Some trappings of the fundamentals of CPC, CrPC etc. Eg Tribunals are

deemed to be courts and they can collect evidence and statements
Due Process means observing PNJ-
1. Hearing/ audi alterem partem/ notice
2. Rule Against Bias
3. Speaking Order/Reasoned Order
4. Good faith
 First case:

R v Electricity Commission 1924 1 KB 171- Lord Atkin

Body of persons having legal authority to determine questions affecting the rights and
liabilities of subjects and having the duty to act judicially.

R v Legislative Committee of Church Assembly 1928 1 KB 411- Lord Hewart

The body has to primarily have the duty to act judicially.
In India there was an analysis by J. SR Das in Province of Bombay v Kushal Das S.
Advani 1950 SC 6 judges (Read Para 16)
Facts: S.3 of the Act allowed State to acquire land. The land of respondents was
acquired and the process was challenged on grounds on non-observance of PNJ.
Prayed for writ of certiorari.
Issue: Was the act judicial, QJ, or administrative action?

The Supreme Court held that the governmental function of requisitioning property
was not quasi judicial as the decision was based on subjective satisfaction of the
government and it was not required to act judicially therefore there was no need of
following PNJ.
Court confused between PAA with CQ and QJA. The court had held that the admin
auth is required to act judicially and no legal or statutory right violated in PAA with
CQ
• There must be some deprivation or prejudice
• Affect prejudicially- to act judicially
• Termination- Ridge v Baldwin- police officer terminated- no notice no
hearing.
• But there is no involvement of lis

There are two ways in which QJA has to follow procedural requirements:
Test 1
1. Statute empowers an authority not being Court
2. To decide disputes/ Determine rights of contesting parties
a. Essentials of dispute
i. Facts
ii. Demand/request which is rejected (the contented issue)

3. Duty to act judicially

Test 2
Statutory Authority’s power to do any action which will prejudicially affect the
subjects but there are no parties. It is just the authority and the subject and even then
the statutory authority must act judicially.
Ridge v Baldwin- All adm actions affecting prejudicially will require PNJ.
According to JSM, the Province of Bombay case made a mistake of confusing PAA
with CQ with QJA.

Important cases:
• Mohinder Singh Gill v State of Orissa 1978 Krishna Iyer 5 judges
• Radhe Shyam Khare v State of MP 1958 5 judges para 4
• Shivji Nathubhai v UOI 1960
• State of Punjab v KR Erry 1973
• State of AP v SMK Parshurama Gurukul 1973 SCC 232, 2 judges para 3
The issue here was whether the appointment of non-hereditary trustees is QJ
or PAA-CQ? Held that appointment of non-hereditary trustees is PAA and therefore
there is no need of a speaking order.
This case did not discuss AK Kraipak case.

AK Kraipak v Union of India:

The candidate had sat in his own selection committee. He topped the list. There was a
clear violation of ‘rule against bias’. The action here involved civil consequences. In
appointments, there is a requirement of speaking order, no backdoor entry etc.
Court there had held that public appointments is PAA CQ and PNJ must be observed.
Speaking order is required stating reasons why a particular candidate was selected and
why another was rejected. Both appointments and termination do not involve lis, they
are cases of PAACQ.
Grounds for judicial review of quasi judicial action
1. Excess of jurisdiction,
2. Failure to exercise jurisdiction
3. Lack of jurisdiction

Diff bw QJA and Judicial Action

1. Formality of Procedure: Judicial actions are formal, CPC, Evidence Act
applies. QJAs are bound by PNJ and only some fundamentals of evidence
law etc.
2. Powers: certain trappings of CPC available to QJAs for enforcement, but not
all. They must confine their powers to enabling Act. Judicial Action on the
 other hand has so many powers- CPC, CrPC, review powers, inherent powers,
writs can be issued

3. Composition (Courts have judges, QJAs are composed of admin auths)

4. Enforcement(Tribunals lack effective enf of final orders. There are some
tribunals who can punish for contempt- s17 of Adm Tribunals Act 1985
(Rules of 1993) allows. ATs to punish for contempt. Regulated by Contempt
of Courts Act 1971, Armed Forces Tribunals can punish for contempt too).
HC has powers to punish for contempt, Art 215 HC, Art 129 SC. Enforcement
of QJA orders are rarely done by the same agency, but courts can enforce their
own orders.
The Supreme Court are a QLA, not QJA.
Similarly, if the SC fires an employee, it will be an adm action.

Pure Administrative Action

(can be divided into: with or without civil consequences)

1. Without civil consequences

• No determination of any dispute
• It might affect rights but there is no creation of rights
• No procedure requirements
• It can be sub-delegated
Eg: 1. Issuances of notification by NLUs. There is no creation or adjudication of
rights. This notification can be made by any department or by registrar or deputy
registrar.
2. Notification of public appointment: Pure AA without civil consequences.
3. Notification of end-term examinations, mid-term examinations, project submission
etc.

2. With CQ
For it to be with CQ, there must be some deprivation. There are some aspects of
PNJ/procedural requirements.
Devdut v Union of India (2008) and Sukhdev v Union of India (2013)- ACR must
be intimated whether it is favor of the public servant or not.
Disciplinary/domestic inquiry:
Will have to see if there is lis, if there is adjudication of dispute etc. Look at the
properties of the action. According to JSM, there are so many judgments of SC,
where the judges are confused between QJA and pure administrative action.
Union of India and others v Ram Lakhan Sharma, 2nd July 2018, 2 judges, para
23.
SC judgement where it was held that conducting inquiry is a quasi judicial action.
“The disciplinary proceedings are quasi-judicial proceedings and Inquiry Officer is
in the position of an independent adjudicator and is obliged to act fairly, impartially.
The authority exercises quasi-judicial power has to act in good faith without bias, in a
fair and impartial manner.” (Para 23)

In this case, the officer was asked to make note of facts only and according to JSM,
this do not involve quasi judicial action but Supreme Court ruled otherwise.
According to JSM, domestic inquiries are only fact finding machines and in any case
inquiry officer cannot be treated as an adjudicator.

State of Odisha v Bina Pani Dei

Domestic inquiries involves civil consequences.

Mohinder Singh Gill v CEC case (para 71, 5 judges 1978)

“Civil consequence' undoubtedly cover infraction of not merely property or

personal rights but of civil liberties, material deprivations and non-pecuniary
damages. In its comprehensive connotation, everything that affects a citizen in his
civil life inflicts a civil consequence.” (Para 71)

State of Orissa v Dr. Bina Pani Dei

It was held that inquiry involves PAA with civil consequences so there was a
requirement of PNJ which had not been followed. Conducting inquiry has all
requirements like notice, hearing etc and it involves adjudication, thus it must
have civil consequences.
Facts: Some anonymous complaints were submitted and she was not given a chance
to take part in the inquiry. She challenged the inquiry proceedings. Date of birth was
changed to make her retire early.
Neelima Mishra v Dr Harvindar Kaur: 1992 2 judges bench Section 31(8)(a) UP
State Universities Act.

Devdutt v Union of India

ACR (Annual Confidential Report): Should grading of ACR be intimated? ACR is
pure administrative action with CQ. If it is not conveyed to the parties then it can
affect the parties and therefore it involves civil consequences. All communications
wrt ACR must be communicated to the concerned party, since it is likely to affect
his/her opportunities.

Non-communication of entry in ACR of employee on pretext of any govt

memorandum amounts to arbitrariness + violation of PNJ. All entries, whether
they are poor, or good relating to employees under State or instrumentality must
be communicated to the employee within reasonable time limits. Reasons must be
given in case of poor entries, and outstanding entries. For poor entry, employee
must be given opportunity to justify his position (from the perspective of the
office), thus reasonable time limits are needed. He must have the opportunity to
improve his/her performance as well.
Instances of Pure Administrative Action with civil consequences:
1. Conducting Inquiry
2. Deletion of name
3. ACR
4. Promotion & Selection List: Rejection issue
5. Termination of employment/suspension
6. Transfer of a person to subordinate post
7. Cancellation of license, admission, certificate
8. Reference of Disputes by AG to Labour Court
Other examples:
Eg. Promotion of student from 3rd year to 5th year.

Eg. A student’s name is removed from University records and no notice is

provided. Amounts to PAACQ, and must have reasoned speaking order. Even
though all requirements of PNJ are not required, but some are.
Eg. Labour law case where manager manhandled by workers, employer-employee
dispute. Manager appointed as inquiry officer. Challenged because manager was
an interested party.
Eg. Reference of dispute to labour court: Section 10 of Industrial Disputes Act,
disputes have to be referred to the tribunal by appropriate government. Thus the
labour court derives power from the reference. A speaking order has to be issued
as to why the matter was not referred to the labour court as the matter involves
civil consequences.
Eg. Promotion- promotion is rejected and person is not promoted. Speaking order
is required as to why the person was not promoted.
Eg. Rejection of RTI Application. Under Section 7 of the RTI Act a PIO is
required to give a speaking order as to why the information was not supplied.
Whenever specific question is not supplied, there is a requirement of speaking
order
Eg. Cancellation of certificate/license/admission: Speaking order required because
involves CQ.

Cases


1. Teghshri Gagh and others v Prakash Prishuram Patil and ors

2007 2 judges bench SB Sinha and M Katju

Respondents were employees of the department of education in Maharashtra.
Positions were clubbed and provisional seniority list was prepared and they were
transferred to subordinate post and their salary was reduced. This action was
challenged before State of Maharashtra Adm Tribunal. The grounds were violation
of article 14 and 16, that is the actions were unreasonable. Matter reached the SC.
Nature of action clearly had civil consequences as there had been a reduction in
wages-- there was specific deprivation. Therefore, the employees had a right to be
heard.
Similarly, where transfer is detrimental to terms of employment it would amount
to deprivation. The appeal was dismissed by the SC because they were not
provided hearing. The moment a transfer is detrimental to terms and conditions of
employment, parties are required to be heard.

2. Neelima Misra v Harvinder Kaur and ors 1992

Lucknow University invited application for reader in psychology, specific

qualifications- phd or high quality publications. Appellant did not have a phd, had
high quality publications, selection committee recommended her name to
Executive Council. EC rejected application on grounds that she did not have a phd
degree. Provision S. 31(clause 8.a) of UP State Universities Act 1973. If there is a
dispute with the EC, matter must be referred to the Chancellor. Chancellor without
issuing any speaking order approved the decision of the selection committee. This
action was challenged.
The High Court set aside the Chancellor’s action on the ground that the decision
involved determination of rights and liabilities. Appellant reached the SC over the
nature of action. According to respondent the action was quasi judicial action
whereas the appellant said that it was pure adm action without CQ and thus there
were no procedural requirements. The Supreme Court said it was PAA without
CQ:
“An administrative function is called quasi-judicial when there is an obligation to
adopt the judicial approach and to comply with the basic requirements of justice.
Where there is no such obligation. The decision is called 'purely administrative'
and there is no third category.”
What about the misuse of power by the Chancellor? In this case, the writ was
admitted in 1979 and matter listed in 1989. Court case lasted 10 years. This goes
on to show that acts of the chancellor can be influenced.
“The power of the Chancellor under Section 31(8)(a) is purely of administrative
character and is not in the nature of judicial or quasi-judicial power. No judicial
or quasi-judicial duty is imposed on the Chancellor and any reference to judicial
duty, seems to be irrelevant in the exercise of his function. The function of the
Chancellor is to consider and direct appointment of a candidate on the basis of
the relative performance assessed by the Expert Selection Committee and in the
light of the opinion, if any, expressed by the Executive Council. His decision
nonetheless is a decision on the recommendation of the Selection Committee. Such
a power cannot be considered as a quasi-judicial power.”
According to JSM, since there was a diff between recommendations of Committee
and EC, there did exist a lis.
1986 All HC Full Bench Allen Mathur: Section 31.8(a) involved speaking order.

Distinction bw Quasi Judicial Action v PAA w CQ

• No lis is involved in PAA CQ
• Application of principles of natural justice and due process: Not needed in
PAA w CQ (PAACQ might require some aspects but not all, it depends on
the circumstances). For example, at the time of an appointment, a speaking
order will be needed but no hearing will be required to be given to the
eligible candidates. For example, in an inquiry there is no lis but due
process will have to be followed.
• In AK Kraipak, the distinction is withering away. Para 26 there is no
distinction wrt procedural requirements.

Judicial Review
Important Judgments:
United Kingdom: Dr. Thomas Bonham v College of Physicians (1610) Court of
Common Pleas
USA: Marbury v Madison (1803) US Supreme Court, CJ John Marshall
Both cases held that statutory enactments are subject to review by the courts.
India: Supreme Court
State of Orissa v Dr Beena Dey (1967)
AK Kraipak v UOI (1969/1970)
Mohinder Singh Gill v Chief Election Commissioner (1977)
Maneka Gandhi v UOI (1978)- post decisional hearing
IR Coelho v State of TN (2007)
State of UP v Raj Narain (1975)

L Chandra Kumar v UOI (1997)- sever judge bench- can appeal be entertained under
article 226?
All Administrative Action is subject to judicial review (art 226). Judicial scrutiny
of admin action has been upheld: Keshvanada Bharti, Sampath Kumar (1987), L
Chandra Kumar (1997), Madras Bar Association (2010).

Grounds of judicial review

• Illegality (there is no power), Excess of power
• Unreasonable (Wednesbury case)
• Procedural impropriety
• Proportionality
• Legitimate Expectation (still developing)

Quasi Legislative Action:

Quasi leg action is the law-making process carried out by admin authorities,
through which they create administrative legislation or delegated legislation.
Classification: rules, by-laws, regulations etc. There might be several issues on
which parliament does not have the time or the competency or expertise to decide
on.
The power to make law cannot be delegated (7th Schedule, Lists)
Classification of leg activity:
• Primary (performed by the legislature)
• Secondary (also called administrative legislation, performed by
administrative authorities and for this there has to be delegation of powers
from the parliament and state leg under the enabling Act).
Both primary leg or secondary are subject to judicial review.
Classification of primary legislative activities (which cannot be delegated):
• Passing statutory enactments (SEBI Act etc): Basically making law in the
form of statutes.
• Power to repeal/amend law is primary leg activity and thus cannot be
delegated.
Supreme Court of India also has the power of framing rules and this amounts to
adm action, not judicial function. However, it is important to note that the SC does
not get this power to make these rules from a statute as is usually the case, it gets it
from the Constitution itself.
Irrespective of this, the rules framed by SC will be delegated legislation as the SC
does not have power to legislate. The SC cannot make enforceable guidelines as
this goes beyond the mandate of the judiciary. It can only make suggestions.
Difference between rules and regulations?

1. Rules are framed by government. Regulations are framed by institutions,

provided they have the power to do so.
2. Control: rules are created for external regulation of the institutions.
Regulations are created for internal governance within the powers of those
institutions.
SEBI Act, ED, FEMA Act- power given to make regulations. SEBI is empowered to
frame regulations.

Does NLU Delhi have power to make rules and regulations? No, because only the
UGC can frame regulations and power is given to it by the central government. NLU
Delhi Act has no provision to that empowers NLU Delhi to make rules. But there is a
power to make regulations. JSM had questioned the nomenclature of examination
‘rules’ and it was modified and subsequently called examination ‘regulations’.

DDA v CIC
The CIC had made regulations which they did not have the power to make. Courts
struck down ‘regulations’ because ultra vires as they had no power to make the said
regulations.
UGC Guidelines: in case of guidelines, no legal sanction and thus not binding.
Sanction is only applicable for rules and regulations.

Attributes of delegation of leg powers to adm authorities:

• The power can be either Discretionary or mandatory:
Discretionary is where the institution may frame rules. But in other cases, it is
mandatory in nature such as UPSC creating a student redressal committee, where
it says that such committee shall be created and thus there is no option given to the
public authority. Similarly, the establishment of an ICC is also mandatory on the
public inst.
Instances of conferment of such power:
• Admin Tribunal Act 1985: Section 35: empowers the central govt to frame
rules. But in Section 36 it says ‘appropriate govt’ so that will include
central and state govt. Rules and regulations cannot have retrospective
effect but if there is a special provision it can be done, as has been laid
down in Section 36(a).
• Labour laws: power given to appropriate govt, for the purpose of fixation
of minimum wages and revision of wages. These provisions come under
delegated powers.
• ESI Act: Social security scheme. There is a provision Section 19, ESIC has
the power to make schemes so under this a Rajiv Gandhi unemployement
scheme was created wherein allowance is given and this scheme will be a
delegated legislation.
 Differences between QLA, QJA and PAA:
On their function:
• QLA: it creates rights and liabilities in the parties. Can be both procedural
or substantive rights. Such as a scheme is created.
• QJA: adjudicated rights and liabilities
• PAA: does not create/adjudicate but may affect rights and liabilities.
On sub-delegation:
• QLA: no sub-delegation of powers unless provided by specific act. If there
is a provision of sub legislation then can do.
• QJA: sub-delegation not possible
• PAA without CQ: can sub delegate
On due process and PNJ:
• QJA: due process is mandatory
• PAA without CQ: not required
• PAA With CQ: some elements might be required such as a speaking order
• QLA: there is no adjudication so no requirement of PNJ but there are other
procedural requirements are consultation or approval or notification in
official gazette, laying down before the Parliament. Official gazette:
ordinary gazette or extra ordinary gazette. In case that action, ie the specific
delegated leg is not given in the gazette, it will not be applicable. There is
an essential requirement of publication, this is to ensure sensitization and
authorisation/legal sanction. This notification in gazette is a function of
legal sanction.
• QLA: there must be some authorisation. In NLU Delhi, there is no
provision of special repeats and it should not be done because there is no
specific authorisation to make such rules.
Examples:
- Creation of student committees: can the supreme court direct an institution to
create a certain student committee? This action is quasi legislative activity but
there must be some authorization under the enabling act. The moment a committee
is created, rights and liabilities are also created.
- Creation of department in public inst or creation of Centres: these centres are
created through resolution of the executive council, it involves QLA.
- Creation of scheme- QLA
- EC resolution to supersede committee’s recommendation: what is the nature of
that activity? It is quasi legislative activity; it may involve some civil
consequences as well depending on the facts of the case.
- Fixation of minimum support price/ minimum wages/revision of wages: QLA.
The moment the MSP is set rights are created in favor of farmers. Union of India v
Cynamide India Limited AIR 1987 SC 1802: the court examined the nature of
price fixation. Price fixation is QLA.
- Fixation of fee: QLA. Requirement to pay admission fees of 3000 rs or for
revaluation 500 rs.
- Creation of some Corp. such as DDA, SBI, RBI, Food corporation of India,
CIC, Labour commissioner. QLA because rights and liabilities are also created.
Adjudication of disputes by SEBI will be QJA though. SEBI can do all actions,
QJA, QLA and PAA. 2017 Supreme Court para 33-36, to understand QLA v
PAA: Mangalam Organics Limited v Union of India 2017 7 SCC 221 2 judge
bench, Sikri and Ashok Bhushan.

Discretionary power
Admin discretion is not unlimited. The use of words like ‘shall’ shows that there is
no discretion given to the authority. The discretionary power has to be exercised
on certain grounds. DP is very pertinent to AA. DP is not independent, it always
exercised through AA.
Categorized into:
1. Narrow DP: framing of rules, for example in the RTI Act the state
government has the power to make some narrow rules like costs, so the
power is very narrow.
2. Broad DP: Industrial Disputes Act 1947- Adjudication, settlement of
industrial disputes. Section 10: The appropriate govt may refer dispute to
tribunal. The app govt may/may not make a reference at all. Discretionary
power in the form of reference. There is no suo motu power given to a
forum to adjudicate disputes. Eg: if an application for reference is
submitted to the state govt., the govt enjoys the discretion to decide
whether to make or not make any reference. The state is however required
to give justification and why the reference has not been made, this is
because this process involves civil consequences.
In QJA, there is some amount of DP for example in the power to set aside ex parte
order, review its own decisions. When it comes to procedural requirements like
PNJ, there is no DP given.
Historical development of DP:
Dicey, ‘Introduction of Law’: Criticised DP, this was mostly because he was
confused between arbitrary power and DP. In the 20th century, discretionary
power’s significance has increased.
Administrative discretion: Role is to facilitate internal governance of
administration. (reference to the green light theory)
1. Attributes of DP (if there is provision for DP, then DP must be exercised)
• Bangalore Medical Trust 1991: SC looked at the importance of DP. the
admin discretion is an effective tool which gives the authority the choice
whether to take/not take an action. DP if given can be exercised, but if
there is no such power endowed in the first place then it cannot be used.
Hypothetical: Special repeat exams in NLU Delhi:
Examination Regulations 2011 do not give any discretion wrt something like
special repeats. In reference to the NLU-D Act that gives power to VC to take
steps as she ‘deems fit’ in emergency times. The administrator (VC) is an officer
of the university and is bound by the rules framed by the Executive Council. There
already exists a regulation given by the executive council and that regulation has
nothing to authorize special repeats.
Are there civil consequences involved in this matter if the college decides one year
to randomly discontinue with the practice of special repeat? No remedy would be
available to the students if the University was to do that because they are not
legally entitled to such special repeats. The argument of legitimate expectations
can not be made either as this is not available in statutory provisions.

Angad Das v Union of India (2010 3 SCC 463, 2 judges):

Related to authorization of power.

Facts: Constable in CRPF, issues with the date of birth and it was found to be
false. The commandant ordered the compulsory retirement of the constable with
pension benefits. He submitted his request application to DIG of CRPF requesting
him to reconsider his termination taking into account of his five unmarried
daughters, and the DIG converted that application to appeal and modified it to no
pension. Preferred appeal to HC, dismissed and finally it reached the SC.
Issue: What was the authority of the DIG to convert the application into an
appeal? There was no DP available. Application could not have been converted to
appeal by DIG. SC set aside the modification by the DIG of removing pension
benefits
Can this discretionary power by sub-delegated further?
Eg. Can Executive Council delegate their functions?
Eg. In RTI, PIO has the discretion to furnish information or not do so. Is the PIO
supposed to take permission from her superior officer? Is surrendering DP
acceptable? It cannot be surrender, it cannot be abdicated and an Adm authority
cannot act on the dictation of higher authorities.
Example, a PIO received an application. The PIO transferred it to the Directorate
of Education. The deadline expired and the fine was imposed on the PIO. The PIO
was required to vet, not surrender the power. The surrendering of the DP is seen as
failure on part of the PIO. Case reported by SIC Haryana
Factors taken into consideration for exercise of DP:

Clarient International v SEBI 2004 (AIR 2004 SC 4236, 3 judge bench, Para 26-
29)

Supreme court examined such factors which are: (factors to be regarded during
exercise of discretionary power)
1. Purpose behind the discretionary power
2. Objectives sought to be achieved
3. Reasons for the grant of discretion
4. Parameters of the discretion
Can discretionary power be discarded?
DP cannot be exercised to violate the rule of law.
Example, increase in intake for LLM course in NLU-D.
Two types of control: parliamentary and judicial.
Parliamentary control over DP:
• Limit or define the DP. it is the legislature which is the originator of the
DP. Through it, DP can be amended, repealed etc, and this done through
the process of making the laws.
• Made at the time of framing laws
Judicial Control:
• Can be used when there is a failure to exercise of DP (such as surrender,
based on dictation of other authority).
Failure to exercise discretion:
1. Non application of mind
a. Refusal to use its discretion (Padfiled case HOL 1968)
b. Refusal to make reference: Industrial Disputes Act, 1947-Section 10 (KP
Krishnan case 1965 5 judges)
 2. Surrendering: delegation/transfer
a. Commr of Police v Gordhan Das
b. RTI Act, Duties of PIO etc
3. Use of discretion on dictation

Purtapore v Cane Commissioner

Exercising DP under dictation of the CM when the Act gives the decision making
power to the Commissioner.
First issue was abdication of the discretionary power by the commissioner.
Second issue was on application of PNJ- nature of role was quasi judicial. Some
areas were excluded from reserved. The CM did not take into account the
grievances of the particular company despite the company raising them in front of
the CM office.
Can SC or HC direct the admin authority to exercise the DP to a particular
manner? No.
Similarly, the Chancellor makes dictation of appointment of a faculty is not valid.

State of Punjab v Hari Kishan Sharma 1966

• Punjab cinema regulation act 1952- Licensing Auth had to grant licenses,
not supposed to transfer/surrender power to the State govt.
• No scope of surrendering DP and it cannot be delegated either
--
Delhi HC has constituted a committee of judges to whom the PIO has to report.
But there is no power of the Delhi HC to do so under the RTI Act, and hence this
committee is illegal. In case of non-compliance, the penalty will be suffered by
PIO only, their responsibility cannot be delegated.
DP under the NLU Delhi Act- The administrator does not have unlimited
discretion. For the purpose of conducting examination, releasing notification, it is
PAAwoCQ.
Hypothetical- Notification passed that actions by VC cannot be challenged under
any law. Is it a valid power? No.
Notification referred to 40 seats for LLM, but intake was 80 seats. Violative of Art
14.

KP Krishnan

Labour Commissioner did not make a reference of labour dispute because the
workers were themselves engaged in illegal activities. But the main issue-
existence of dispute- was not taken into account and SC held the refusal to refer
was invalid.
Chancellor makes dictation of appointment of a faculty.

Muni Suvrat Swami Jain Sangh v Arun Nathu Ram Gaikwad and ors AIR 2007 SC
38 2 judges

• Under the Mumbai Municipal Corp Act

• Temple constructed in residential area and no permission was obtained.
Local residents were affected by that.
• Filed complaint before municipal commsr, no action was taken
• Writ petition filed before HC.
• HC directed demolition.
• Matter reached SC, the main issue was whether HC can direct Commsr to
exercise DP in a particular manner.
• Demolition of building would be PAA-CQ
• SC held that the judiciary cannot dictate admin auth to exercise DP in a
particular manner. The judiciary can step in if the procedural requirements
such as PNJ are not followed, by directing the admin auth to follow the
process but other than that, the court cannot make orders as to which
decision should be made by the executive authority.

Union of India v Shri Gajanan Maharaj Sansthan SC 29 April 2002

• Some provisions of the amended Industrial Disputes Act were not brought
into force until 1982.
• Writ filed to direct central govt to bring the specific Act into force.
• But the process required creation of a system first and then enacting the
provision.
• The SC held that the HC could not order the Government to implement the
Act and neither could it set a date on its own for the same
--
If there is an abuse of power in exercise of DP then action can be set aside by the
court. Depends on the facts and circumstances of each case (eg. Neelima Misra v
Harvinder Kaur)
Misuse/Abuse of Discretion
1. Improper Use/ Different Purposes
 • Eg. Land Acquisition- land acquired for public purposes, not for
commercial purposes.
• RL Arora v State of UP- land acquisition was later converted to land
for commercial purposes, acquisition
2. Irrelevant Considerations
• Associated Provincial Picture v Wednesbury Corp 1948 Court of Appeal
• The case gave the Wednesbury reasonableness standard and the three limbs
of this were:
• The authority should take into consideration the relevant factors
• Should exclude the irrelevant factors
• The decision should not be so unreasonable that no reasonable
authority would ever consider imposing it.

• HC Garge v State of Haryana 1987:

Officer forced to retire on the grounds that he was a man of doubtful integrity,
even though he was not involved in any charge relating to moral turpitude.
Grounds were based on ACR and performance of the official, and doubtful
integrity cannot be inferred from it. Action set aside since there was an irrelevant
consideration.
3. Non-Compliance of Process
4. Ultra Vires-
• Excess of Power
• No power (Eg, No power to any NLU for Executive Council to grant
extension of tenure)- but so many extensions have been granted eg NUJS,
RGNUL, other colleges
5. Unreasonable
• Eg. Appointment of unqualified persons for purpose of furtherance and
promotion of legal education
6. Mala fide
• State of Punjab v Gurdyal 1979
• State of Punjab v VK Khanna
• Pratap Singh v State of Punjab 1964 (medical officer victimised by CM
because he refused to entertain political demands)
 Rule of Law
1. Standard of legality-
• Whatever action has been taken is in line with the mandate given
• Eg. Police starts seizing public vehicles operating without a license, but are
needed for poor people. How does state ensure welfare of people in such a
scenario?

Sheela Barse v Maharashtra (1983) 2 SCC 96

• Fairness to women in police lock up and prisons- women need to take care
of their children, what happens to the child?
• Freelance journalist wanted to review prison conditions, denied
permissions because she was not a research scholar or affiliate journalists
can. The restriction was held to be unreasonable
• Later in Prabha Dutt case it was held that the prison cannot make blanket
restrictions, but they do have power to deny specific individuals from
interviewing prisoners.
• Women can be arrested by male officers as well but the arrest has to be
justified why a female officer was not present.

Madhya Pradesh v R Raghuvanshi

• Fairness in public employment, no undue reliance on police verification for

jobs
• In earlier days, members of hardline groups were not considered for govt
jobs Eg. in cases of hiring interpreters/translators between diplomats. The
ideologies of such translators is very important, as how they communicate
things to the visiting dignitary.
What is ROL?
Rule according to certain standards. Dicey- Introduction of the Study of Law of
the Constitution.
RoL in UK was put forward by the judiciary.

Dicey’s 3 principles
Principle 1: Supremacy of law (everybody is bound to follow ROL)
If activity is not a crime, person should not be punished. A person can be punished
if there is a law on it.
He was against retrospectivity of law. How far has this been recognized by the
Indian Constitution? Article 20, but retrospective laws can be implemented in civil
matters.
Discretionary power: he was dead against it. According to him, granting of
discretion would lead to arbitrariness.

Principle 2: Equality: no preferential treatment to anyone.
Also against providing immunity to executives
He was against the droitt administrative (adm system of France)- he was against
adm tribunals. Everyone should be subject to the juris of ordinary courts.
Principle 3: Enforcement
Judiciary which is supposed to protect rights. But, this is not applicable to India.
Judiciary has in India as well on different times engaged in judicial legislation.
Related to the functional responsibility of the judiciary.
Judiciary cannot legislate but it has on so many occasions. Judiciary may come out
with new dimensions though (Bangalore water supply case). Judiciary, cannot
dictate the leg to create certain rules but the jud has done this several times,
because judiciary has no measure make this come into force.
RoL is applicable to all three organs of the state; judiciary is not supreme. Only
the Const. of India is supreme.
RoL (supremacy, equality, recognition of rights by jud (in india, it is the leg)
Criticism of Dicey wrt (1)admin authority cannot survive without exercise of
discretionary power- he was confused between discretionary power and arbitrary
exercise of power. Read green light theory.
Some tools to facilitate internal governance and discretionary power is inevitable
and it is a necessity in case of admin law.
(2) He said there is no requirement of special tribunals. According to him, creation
of specific tribunals would negate equality. Can justice survive without tribunals
in India?
He realised his mistake wrt to tribunals.
(3) According to him, there should not be any special privileges to public servants;
but can any government survive without granting certain privileges to the
servants? Certainly not. Now, adm agencies need some protection and it has
become a necessity.
How far these principles of RoL have been recognised in India?
• Supremacy (Retrospectivity Art 20)
 • Equality (article 14, 15)
• Recognition of rights by Courts (article 32, 226)
Required to exhaust other remedies, before filing a writ in front of a HC.
Eg NLU Delhi releases a scheme which is discriminatory. File a petition with the
CEO, then approach HC. That takes months on its own, plus very technical
process. Mostly, these rights are confined to books.
To approach HC, SC, you need 50k-1 lakh.
There should be sensitisation, empowerment, enforcement of rights of the people.
Modern concept of ROL:
Prof Wade, Jennings
Modern principles of RoL:
• Supremacy of law
• Equality
• Limited discretionary power
• Delegated legislation
• Principles of natural justice
• Judicial review
• Separation of power
Espirit de loyes (Montesquieu)
Necessities of strict compliance with RoL: sensitisation, empowerment and
enforcement.
Origins of ROL: Bonham case (1610)- Sir Edward Coke
Interface b/w Ro2L and other facets of Admin Law
1. Judicial Review and RoL
When there is a violation of RoL, then we make use of the JR process.

2. Separation of power (SoP) and RoL
Related to 3 organs of State.
Judiciary must take care of rights and liabilities of people
ROL takes care of concentration of powers.
The judiciary takes care of PNJ in administrative actions of 3 organs of state.
Montesquieu in his book also focused on the concentration of power.

RoL in practice:

Supremacy of Law:
• Power corrupts- arrogance of power coupled with ignorance= disaster
Equality
• Preferential Treatment- police, courts
• Eg. IP University represented by relative of Supreme Court judge, so
judiciary was not willing to listen to arguments concerning secrecy of
IPU’s admission question papers.
Impediments in ROL
• Hypocrisy and sycophancy in governance
• Lack of personal accountability (institutions are accountable not the public
servant)
• Reluctance of people to question illegality/abuse of public resources
• High degree of opportunism (??)
• Court process is costly and complicated
• Disregard to ethical
• Protection to corrupt public officials (no inquiry/investigation is possible
without sanction)
Principle “SEE” (Sensitization, Empowerment, Enforcement)
Droit Administrative
• Civil law countries, especially France, Italy, Germany
• Separate system of admin courts
• European system has more court related resources
• 2 judges- one assists the police in collection of evidence
• Common law- judicial review happens on a case to case basis
Common Law Systems
• Role of admin is limited to rule making power
• Adjudication of admin cases (quasi judicial functions)
 • Manner/procedure of exercising these powers (
• US- due process/
• UK- Wednesbury Principles Unreasonableness
• India- Legitimate expectation/ proportionality
• Eg. Can you approach court for non-fulfillment of promises by admin
regarding laying down water pipeline in remote areas? It is not for state to
say they do not have money, once considerable time has passed and the
people have been communicated.
Droit administrative:
Napoleon started this system. An individual's rights cannot be harmed. Law can’t
favour any single person. There was a tussle between the judiciary and the
executive about who should be given more powers.
How can an action of the state be best controlled? (advantages of the french
system)
• The three tier system of france has created a very heavy and rich
jurisprudence of adm law.
• They have been able to give rich case-law on adm law, especially because
it is unwritten in so many countries including India.
• Types of cases the courts take up:
• Damages for wrongful acts of public servants
• disputed elections
• personal claims raised by civil servants
• taxation issues.
All these matters are taken care of by these three tiers. Whatever case law has
come from france has helped us in develop other continental legal systems on adm
law. India has also tried to move in this direction of france’s system. The only
problem is that of review option to tribunal’s decision, so the process ultimately is
still lengthy. Even these tribunals have to be adequately staffed to ensure the path
to HC/SC from tribunals is less used.
Distinction:
• When ordinary courts decide the validity of adm action, it is likely they go
in govt’s favour.
• Enforcement is strict, penalties can be enforced.
• Deciding of disputes
Main features:
• Appointment
• Dismissal
• Salary issues
• Duty conditions
In those kind of system (France) a better system of work place and inquiry are
given, and the person can approach the court to complain about the work
conditions. So their body of rules also largely deal with the following:

• Public utility
• Schools and education
• Electricity
• Heaters
These above issues are dealt with strictly by the french system. There is a lot of
difference in regulating the relation of the adm with the individual. The highest
court is that of Conseil D’Etat.
Rules developed by the adm courts: most imp jurisprudence on protection of
environment.
Separation of Powers (JSM)

Mandate of SoP:
• No transgression by any organ
• No concentration of power
• Checks and balances
• Clear demarcation of the power
• Judiciary must execute existing rights and liabilities
How far is SoP recognized in India? Article 50 of the Const.
2007 IR Coelho (9 judges) judgment- separation of powers is part of basic
structure (para 69)
See para 9 here
https://www.casemine.com/judgement/in/5609ae61e4b0149711413ab6
Indira Gandhi v Raj Narain (1975): parl tried to amend the const wrt 39th
amendment act. Sought for no JR of election to office of PM. The provision was
struck down by the jud.
What is the remedy available if the jud violates SoP?

Namit Sharma v UoI 2012:

Issues were related to functions performed by CIC.

• Initial judgement passed by Swatanter Kumar and AK Pattnaik-
• Acc to Supreme Court, CIC performs judicial function, so it held that must
be occupied by retd judges. This was a way of creating post-retirement
positions for judges.
• Post this judgement, a lot of public criticism followed and this led to
recalling of the judgment. Subsequently, a review petition was filed by
Union of India.

L Chandra Kumar v UOI 7 judges AIR 1997 SC

Certain Tribunals had been set up under the provisions of Articles 323A and 323B
of the Constitution.
Issues:
• Can the Parliament exclude the power of judicial review under Artilcle 226
and only restrict judicial review to Art 136 to the Supreme Court?
• Whether these Tribunals can be said to be effective substitutes for the High
Courts in discharging the power of judicial review?
• Whether tribunals can hold provisions of statutes as unconstitutional?
Held:
• The power of judicial review over legislative action vested in the High
Court under Article 226 and in Supreme Court under Article 32 is an
integral and essential feature of the Constitution, constituting part of its
basic structure. Clause 2(d) of Article 323A of the Constitution, and Clause
3 (d) of Article 323B, to the extent they exclude the jurisdiction of the High
Courts and the Supreme Court under Articles 226/227 and 32 of the
Constitution, respectively, are unconstitutional.
• Section 28 of the Administrative Tribunals Act, 1985, and the “exclusion
of jurisdiction” clauses in all other legislations enacted under the aegis of
Article 323A and 323B would, to the same extent, be unconstitutional.
• The Tribunals are competent to hear matters where the vires of statutes are
questioned but they cannot act as substitutes for the HCs and the SC and
their function is only supplementary and all such decisions of the Tribunals
will be subject to scrutiny before a Division Bench of the respective High
Courts.
 • Tribunals shall not entertain any question regarding the vires of their own
parent statutes.
• All decisions of the Tribunals would be subject to scrutiny before Division
Bench of their respective High Courts under Arts. 226/227. No appeal
would lie directly to Supreme Court under Article 136 from the decision of
the Tribunal.

December 2008 Law Commision Report 215- main recommendation is that there
is a need to revisit L Chandra Kumar.
What can be done when there are cases like L Chandra Kumar and Namit
Sharma?
What if Delhi HC violates SoP?
What is the remedy available? Impeachment will never happen.
• Eg. aggrieved person is denied promotion, knows the HC judge, and solely
on that basis the HC directs for promotion of the person.
• Whether HC can direct promotions/appointment of certain people? What is
the remedy available against the HC and the SC?
• High Court: Article 22- appeal to division bench, which is review. The
second option is appeal to SC.
• Supreme Court: review petition and thereafter curative petition. In case of
7 judge bench? There is discretion of the CJI as to whether they wants to
refer to a larger bench or not.
Rule against bias and separation of powers:
Can one person perform 3 functions of state?
• One institution can perform all 3 functions (eg SEBI)
• One person can also perform as long as there is no violation of PNJ
• How can Jeet Singh Mann appeal to his own decisions? There will be a
clear violation of PNJ.
• Impact of SoP on RoL: If no SoP, then no RoL. there should not be
concentration of power and one organ must respect the other organ of the
state.
The rule against bias is applicable to individual decision and not institutional
decision. Similarly, if there is conflict, such as the party involved is a relative of
the authority, it will amount to violation of RoL.
In order to protect your interest from abuse of power, you need to know
administrative principles.
One person taking care of all 3 functions is not expected.

Delegated Legislation
Cyanamide case
• Price Fixation Drugs (Price Control) Order 1979- legislative activity
• The distinction between legislation/administration is disappearing into
illusion. Proliferation of delegated legislation.
• Delhi HC said you cannot change the price.
Legislative Act merely creates and promulgates a general rule without reference to
particular cases. An administrative act involves making or issuing a specific
direction in application of the general rule.
Price Fixation assumes legislative character if viewed from the angle of general
application, prospectiveness of effect. Where certain duties are to be imposed
upon certain goods (eg. petrol), which results in price fixation. This is a legislative
decision, but mostly fixed by administrative authorities. Legislative activity is not
subject to natural justice. But Parl may provide for statute for notice/hearing.
Eg. Electricity Regulatory Commission Act 2002 provides for hearing consumer
grievances on tariffs.
Eg. TRAI also must hear stakeholders before raising base rates.
Weaker section assn v state of karnataka
Where slum dwellers have not been given a right to hearing they have been denied
some basic rights. What does it mean when we say there is slum development?
The problem is that the vacant land might belong to some govt authority-- so they
try to develop that area of slums itself without displacing the people. Karnataka
Slum Areas Improvement and Clearance Act- so either you improve or clear the
slums. Under Section 3, there was a notification. Two questions are raised before
the SC, on one hand slum dwellers contend that they are not being treated equally
and they are not being heard. The power to withdraw this notification is with the
govt and the govt relied on a scheme to withdrawing it under s.11 as they have the
power under the General Clauses Act which gives the power to amend, add et in
section 21 of the Act.

The Court held that when the previous scheme was altered and then withdrawn it,
the authority should give an opportunity to be heard to the people.
Similar displacement happened in delhi in 1975 during emergency. Slums were
removed and the inhabitants were given alternate plots. The court does not go into
the question of what is the kind of this action, as in the nature, the court questions
it only on the principles of natural justice.
There are very few judgments that take this view of adm and leg action.
Classification of adm action and what is the purpose of this classification?
1. Legislative act: Motor Vehicles Act, Essential Commodities Act, Export
Import Act 1948, Env Protection Act, DDA Act.
2. Adm leg activity:
• Publication- has to be published in the gazette so that there is general
application throughout the country. In comparison to quasi judicial orders,
which have to specifically communicated and not generally.
• Procedure: QJA also observe natural justice. Adm authority also perform
leg functions. QJA, as in, should tribunals follow PNJ? Have to look at the
enabling act. An adequate notice has to be given to the parties. Finality of
the decision: the whole procedure is in the parent statute. Don’t go to the
general idea of PNJ, the parent statute will provide for a procedure in itself
and that has to be followed.
• Knowing the classification of leg v administrative action is important,
because otherwise it cannot be known which kind of writ can be filed. So
this classification will never go away, as it is important to know whether
PNJ has to be followed or not and what is the kind of writ to be followed.
• Requirement of prior publication.
• Can judicial functions be delegated? No. Adm can be delegated but not
judicial.
Principle Legislature must lay down guidelines + principles of policy for the
authority to whom power is entrusted to formulate the delegated legislation.

Agriculture Market Committee v Shalimar Chemical Works

Law making is an expertise and it is a technical process, it is not that easy. It can
get too burdensome for the legislature to keep on making rules as new things in
different fields of law come up. Import Export Order 1948, has about 6 sections--
leg just passes it and leaves it and details can be worked whenever there is a
requirement. There has been a large scale increase in delegated legislation.

St John’s Teacher Training Institute v NCTE

It is important to realise that leg does not enjoy the expertise and technical
knowledge to make rules on a variety of subject matter.
Whatever delegated legislation is made, it will be subject to the power of the
legislature. That exercise of leg power which is subordinate to leg, it like transfer
of power down the ladder.
We have to see whether the power has been given correctly, are the rules fair to
people, are there adequate control mechanisms in the rules and is the delegation of
power constitutional. Whether the rules themselves valid in law? For example,
under the labour act, some rules were made saying that women will not do late
night shifts. So these rules will change when they are challenged before the court
of law
--
Technical matters which do not affect policy of legislations are included in
regulations. Better management of traffic is a scheme. Moto Vehicle for example
gives only a general policy-- but doesn't stop the authority from making rules
about new emerging concerns like seatbelt, traffic hours for big trucks etc.
Reasons behind growth of DL:
• Parliamentarians should be among their people and ensure proper work is
done and so majority of the time should be spent with the people in their
constituencies. There are two views on this limiting parliamentarians time:
(1) that accessibility should be there between the people and the elected
representatives. (2) another view is that law making suffers as
parliamentarians don't work, they walk out etc-- a no. of bills are pending
for years because there is no time. The Waqf bill for example has not come
for any scrutiny/discussion. Lok Sabha had only 57 days of business in
2017. So by promoting delegated legislation, pressure on the
parliamentarians has been reduced and it is important to recognize that
parliament cannot decide on all matters ever.
• Technical nature of matters
• Allows flexibility. Especially when commercial matters are involved-- the
international market for example might be seeing ups and downs. This
requires India to also make urgent rules and for that power can be given to
RBI to decide on issues like floating rate of interest. Foreign exchange
rates etc-- parl will take forever to update these things.
• Emergency situations: there has to be speedy and appropriate action.
Requisition of Property Act, Drugs Act-- devised with the view that adm
will act in emergency like floods.
There cannot be delegation of essential legislative functions. Delegated legislation
is delegation of legislative activities. There should be control and limitation on
such leg powers. Otherwise it would amount to abdication of primary legislative
responsibilities.
Primary v Secondary
1. Primary: parliament is the master and secondary leg is the servant
 2. Primary includes power to make laws and the power to amend/repeal laws,
whereas in secondary it includes supplementing laws as in rules/regulations
and notifications.
3. Primary legislation is subject to judicial review if it violates Part III.
grounds of review are different for these two types of legislation.
4. Only incidental powers can be given as delegated powers. The secondary
legislation cannot supersede the parent act or any other act.
5. Abdication of leg activities: powers of making law cannot be given to any
other authority.

Gwalior Rayon Silk Manufacturing Co v Asst Commsr 1974 4 SCC 98 (5 judges

bench)

The court has discussed abdication of leg duties. Abdication means abandonment
of sovereignty where the parliament does not legislate and entrusts its primary
function to the executive or an outside agency.
Abdication may be partial or total. Power to delegate is subject to the limitation
that parl does not set up a parallel legislature. So the servant cannot supervise the
master-- wherein the executive is a servant in so far as law making is considered.
Only incidental or ancillary powers can be delegated. Power to legislate includes
power to delegate incidental and ancillary powers. The legislature cannot delegate
its legislative functions but it can make a law to delegate its powers to make a law.
Powers are limited. NLUD execs have power to frame regulations.

Essential v non essential activities:

It is important to know this for the purpose of DL.
Essential: Law making, power to amend and repeal-- cannot be delegated.
Non-essential: can only be delegated to adm authorities. Power to make rules,
regulations, orders, notifications etc. Power to remove difficulties.
There has to controlling mechanism, which is necessary to prevent abuse of
power. The power in DL is controlled, otherwise it will be abused. The Supreme
Court has discussed the necessity of control. Mechanisms of control: DL will be
subject to some procedural requirements like consultation or publication in
gazette. On the other hand, saying something like adm authority will deal with
everything is too broad and vague.
In re Delhi Laws Act 1912 Case (1951) (important case)

State of Rajasthan v Vasant Nahata AIR 2005 SC 3401 (2 judge bench) para 19
and 20
They relied upon various judgments-- principle was reiterated that:
“The legislature while delegating such power is required to lay down the criteria
or standard so as to enable the delegatee to act within the framework of the statute.
The principle on which the power of the legislature is to be exercised is required to
be disclosed. It is also trite that essential legislative functions cannot be
delegated.”
“A subordinate legislation which is not backed up by any statutory guidelines
under the substantive law and opposed to the enforcement of a legal right, in our
opinion, thus, would not be valid.”
There must be some mechanism, some process, some guidelines, whenever
legislative powers are delegated.
Power to impose tax, power to decide the terms and conditions of employees,
power to promote a person from first to fifth year- can all these powers be
delegated?
Why can’t unlimited powers be delegated?
• Liable for abuse, misuse.

Delegation of power and exercise of discretionary power: availability of disc
power.
Disc power: difference between may and shall.
Is there any causal connection?
• Framing rules and regulations are discretionary power
• Discretionary delegated legislation- Rules may be framed
• Mandatory delegated legislation- Rules shall be created.
Is there any statutory instrument regulating delegation of powers in all respects?
No.
Policy developed by the Ministry of Parliamentary Affairs. Manual by Parl
Committee, chapter 11 is on how to frame delegation of legislative powers. It is
only a policy though, not a legislation.
India does not have a specific legislation. UK does (Statutory Instruments Act)
and there are some provisions in US (Administrative Procedures Act) as well.
Examples of two activities:
1. Notifications for conducting exams for the purpose of admission
2. Notifications for LLB courses, i.e final list
How do we identify the status of particular actions- whether it is QLA or PAA?
Notification for the purpose of admission: PAA without civil consequences, there
is no adjudication and there is no creation of rights.
What if two universities conduct exam on the same day? Such kind of activities
have to reasonable. But in terms of legal consequences, there is not much we can
do. Legitimate expectations are not a ground in India.
Example 2 which is the final list of who will get admission-- do not go by the
nomenclature. Delegated legislation creates rights.

Characteristics of DL:

1. Creation of rights and liabilities. Social security scheme are made for
workers and unemployed people and through this scheme some rights are
created, such as allowance to the unemployed people. EPFO similarly has
created schemes, and such schemes are a part of DL. And the Acts that
create these insts. that further make schemes grant them the power to make
such schemes. Through the enabling Act, various schemes have been
created to provide certain rights and benefits. Do not go by the
nomenclature of the action, look at whether rights have been created.
Delegated Legislation includes both substantive and procedural rights.
Creation of NLUs, SEBI, RBI, LCI, IDBI: these are statutory insts that
have been created by parliament or state leg. Another example is labour
courts.
It is essential that there is some power granted in the first place.
2. General rule is that there is no further delegation allowed, permitted only in
exceptional cases where there is a statutory provision to the effect of the same.
Difference between surrendering of power and subdelegation? Powers are
generally surrendered to the superior, but subdelegation is done to subordinate
authority-- basic difference.

Hypothetical: Power is given to ‘A’ who has the power to suspend a student, now
this is delegated to ‘B’. Let’s say this B exercises this power through
subdelegation. What will be the legal status of this action-- 1. Suspension 2.
Imposition of fine
How can we challenge this action of ‘B’?
1. Action is illegal: because there was no power and there was no
subdelegation was permitted. This action will therefore be subject of
judicial review. Eg: RTI Act, it is for the PIO to decide whether to furnish
the information or not- it is her discretion. In a particular case, the
application for information was just forwarded. SIC case from Haryana.
The officer was held liable for forwarding the application to the director.
Power has to be exercised by the authority who is vested with such power,
otherwise it will be case of ultra vires.
 2. What was the source of authority
3. Whether due process was followed

Application of PNJ on DL:

PNJ does not have to be followed because it creates rights and liabilities and does
not adjudicate or affect the rights and liabilities. But there are other procedural
requirements such as consultation, prior approval, publication, holding meetings
etc and these have to be followed at the time of framing DL. Consultation is
different from consent. Land Acquisition Act, 2013: farmers of some percent must
give consent. For eg, for the purpose of labour reforms, the govt will consult
NGOs and Unions etc. If there is a requirement of consultation, then it must be
done at the framing of DL.
What if the creation of rights and liabilities affects existing rights and liabilities?
Does PNJ have to be followed? Is the govt supposed to take suggestions from
everyone before they make delegated legislation? There is no such provision for
this India, there is such a right in other countries like South Africa, that is there is
no right to participate on law making process. If there is no such right to
participate, how can there be a demand for PNJ in DL. We can still challenge the
action after it has been enacted. Law making agency is not under any obligation to
hear the people.
Some examples of different actions and how to identify their nature:
Notification for conducting CLAT exam for the first time or Notification is issued
by CLAT for the year 2019 will be conducted by NLU Odisha. Do these
notifications amount to DL or PAA or QLA? Distinguish between the two actions.
How do we determine the nature of the particular activity in the two cases.
First one is a notice saying that NLU will conduct exam for the first time.
Second, there is a decision/ agreement between all the NLUs for LLMs and
diploma courses
Third, where is an advertisement or notification for appointment of the post of
assistant registrar. These three are different situations and are of diff nature of adm
action.
First case: PAA without civil consequences (when notification for first time
CLAT)
Second: agreement between NLUs: Delegated legislation because it creates rights
on NLUs to conduct such exams.
Increasing intake of a LLM course: QLA/Delegated legislation. Action is taken by
Executive Council wherein a resolution is passed for the purpose of increase
intake. Here rights are created, that the inst can admit more than 40 students and
rights are also created in favour of the students-- so this is creation of rights.
Rights are created as the inst has been empowered to increase intake by following
due process. It is common in medical colleges to take more students than listed on
paper and doing so is illegal.
Diff between DL and PAA w civil consequences:
• Rights and liabilities: PAA w CQ affects rights and liabilities and in case of
QLA it creates rights and liabilities.
• Procedural requirement/PNJ: DL no need to follow PNJ but some of the
facets of PNJ are required to followed in PAA w CC.
• Delegation and sub-delegation: delegation of civil consequences might be
possible but in case DL, no delegation or subdelegation is not permitted.
Only in exceptional cases, eg, essential commodities act: powers are
delegated to state and central govt, now these govt have the power to
further delegate
Delegated legislation: it includes many tools, it might have orders or decisions.
Distinction between rules and regulations?
1. Rules are framed by the appropriate govt, and in case of regulations,
framed by adm authorities.
2. Rules are for external governance and regulations are for internal
governance.
Difference between conditional legislation and delegated legislation?
How far is the ninth schedule immunity is available to secondary legislation?
Procedural Requirements
People’s participation in lawmaking activities is not a right. In EU, South Africa,
people are involved in legislative/lawmaking process. It becomes very costly to
hold so many referendums in India. There is no such people’s participation
requirement in India.
If any rights or liabilities are created, then the act is a delegated legislation.
Otherwise it may be PAA with CQ.
State is also required to provide justification for clauses, but they do not have to
give speaking order.
Supreme Court cannot direct any legislative authority to legislate.

Other procedural reqs-
• Consultation: In many cases, it may be necessary. Eg. Land Acquisition
Act (“shall consult”)- public, CJI, committee, Council, President
 • May consult otherwise too (“may consult”)
• Prior Approval: from higher agency (Eg Sec 150 of MCD Act 1957-
MCD shall get prior approval)
• Publication: Official Gazette, website,
• Why should a delegated legislation be notified in Official Gazette?
• Justification 1: Sensitisation of the people. They have right to know
the actions taken by the State
• Justification 2: Official Gazette is an instrument of State to provide
legal sanction. A statute acquires legal status only after publication
• Holding Meetings/Consent: Eg 50% farmers must consent under Land
Acquisition Act
• Sanction to make law: Eg under RTI Act, CIC is not empowered to make
regulations. But still CIC made regulations, struck down by the Delhi HC
in DDA v CIC
• Eg NLU Delhi has power to conduct special repeat? Special Special
Repeat? Special Special Special Repeat? Special special special special
repeat? Special special special special special repeat?
• If there is no power, can’t make DL
Rajya Sabha Committees on Subordinate Legislations 1964.
The Manual on Delegated Legislation Chapter 11 also deals with how to effect
delegated legislations

Requirements for Valid DL:

• Essential Legislative Activities cannot be delegated (power to make,
repeal, amend law) discussed by Supreme Court in 2 judges bench (Justice
VR Krishna Iyer) Avrinder v State of Punjab (1978- Para 12)
• There must be some legal sanction/provision that allows for such
delegation
• Controlled and limited delegation of powers; basically cannot give
uncontrolled power
• Legislature must provide guidelines/process to regulate for delegated
legislation
• The DL of powers must not be contrary to the enabling act/constitution/any
other provision of law
Is there scope for further delegation? There must be some statutory provision
providing for such delegation and there must be certain guidelines to provide
directions for DL.
Cases important for DL:
1. Arvinder v State of Punjab (Para 12- please read)
2. Keshav Lal Khemchand & Sons Pvt Ltd v Union of India 2015 4 SCC 770
(Para 51 to 54)
3. Cellular Operator of India v TRAI (2016 7 SCC 703) (deals with
procedural requirements and PNJ in DL)

Classification of DL:
1. Contingent or Conditional Leg.
• Legislature makes a law which complete and there is no legislative
function delegated to the executive. But the said Act can be brought
into force only by the executive and only on fulfillment of certain
conditions.
• There is some confusion whether conditional legislation is DL
• Payment of Gratuity Act 1972, EPF etc grant exemption if better
benefits are available.
• Through conditional delegation, the executive can also be granted
the power to include or exclude in form of exemptions. Eg. if better
benefits are available, exemption may be provided/ for
organisations with more than 20 people etc.
• Land Acquisition Act: powers given to the state government to
make rules for taking land and a process is laid down in the Act, this
amounts to DL (Do not go by the nomenclature). Similarly in labour
law, if better benefits given to the employees, then exemption can
be granted from the operations of the existing schemes. But the
point is that, for the exemption there has to be better benefits first.
Granting exemptions involves DL.
• Supreme Court is confused about when to bring the act into force,
power to extend tenure of the specific legislation.
• (7 judges) 1951 In re Delhi laws Act. Read Justice SR Das in this
case.
• SC has held that power to bring act into force is conditional
legislation. Is there a difference between conditional legislation and
DL in this case?
2. Supplementary DL
 • Objective is to supplement the legislature. In most cases, leg
provides for some skeleton and the power is given to executive to
fill in the gaps
• Involves the power to make rules (to support the enabling Act.) the
rules cannot supplant the enabling act.
• Power to make rules is not granted to the entire executive; it is
generally the central govt executive that enjoys such powers. Adm
tribunal Act: S. 35-36.
• Power to frame regulations: Eg, FEMA, SEBI etc.
• Distinction between rules and regulation is academic as in actual
application, these are used interchangeably by adm authorities.
Similarly, guidelines are also different
• Power to remove difficulties: available with SEBI, NLU etc. This
power however cannot be used to supersede the enabling Act. This
power can be classified into: with a stipulation (with a deadline, for
eg, has to be exercised within 2 years or 4 years etc) and without
stipulation (no deadline). Henry VIII clause- unlimited powers are
not available to the executive in order to take over the legislature.
• Can the power be used to amend enabling act? No, because the
power to repeal/amend would amount to essential legislative
activity which cannot be exercised by an executive authority. All
DLs are managed by the parental act.
3. Interpretative DL

• Executive are given power to clarify and explain provisions of the
specific Act. For eg, SEBI clarifies doubts regularly through
notifications, circulars, guidelines.
• This power cannot be used to create delegated legislation; it is
limited to clarifications. Cannot create additional rights and
liabilities.
• Should take into consideration the preamble, the objective of the
Act.
• There is hardly any express provision for this power; it is more of
an implied power. But the interpretation should be based on the
mandate given in the Act, so this power cannot be used to dilute the
mandate of the Act. Cannot be too unreasonable, for eg, cannot give
all five project exemptions to moot participants. Therefore, the
process has to be followed.
• Eg, RBI has issued many circulars clarifying doubts.
 • This classification can also be extended to primary legislation.
• Hypothetical problem: some institution with 20 works, EPF Act is
made applicable by a regional officer then that would amount to
DL.
• Regulation framed by Executive Council and there is Academic
Committee cannot go against that regulation. Cannot modify the
delegated legislation without proper process. So a random
department/ individual cannot dilute the DL without following the
process. Must understand the difference between administrative
activity and the execution of legislative activity.
Retrospectivity:
Dicey was against ipso facto laws. Article 20 prohibits criminal retrospectivity.
But in cases of civil matters it is.
According to RoL, no retrospectivity is allowed.
1. Powers of the legislature: several schemes and acts are amended if they are
social welfare measures but not possible if doing so will violate Part III of
the const or the basic structure.
2. Powers of the adm authority: Can DL be framed from retrospective date?
Section 36A Adm tribunal Act: power is given to the govt to make
retrospective rules and subjects included are matters like salaries, pension.
It would be unreasonable if tax, for instance, is increased retrospectively.
So wages increase (social welfare basically) retrospectivity is always
available.
Can this power however be used for illegal appointment?
Real-life example: Backdoor appointment-- some specific resolution was passed,
according to which a person who serves in the inst would be getting benefits from
the backdate, this resolution though implemented in 2016, it was applied from
2013 only to legalise the illegal appointment. This cannot be done. Retrospectivity
of some DL is possible.
BS Yadav v UoI (1980 judgment, 5 judges): Rules framed under 309 of the Const.
There was a dispute because the rules were made from the retrospective date. The
principle:
(1) There must be some provision for such retrospective application, like it is there
in Adm Tribunal Act. Such provisions is not found in the enabling Act of any
NLU. Retrospectivity is available only if there is an express provision. Even if it is
for social welfare measures...
(2) Retrospectivity must be justified and reasonable
(3) It should not be in violation of fundamental rights or any legal rights

Objections against Delegated Legislation
1. Doctrine of non-delegability of power (power delegated to one branch may
not be delegated to another)
2. Representative are elected > Knowledge/ ability
3. Objection: SOP- power once entrusted must be exclusively exercised by
that department.
4. Maxim: delegates postestas non potest delegari
• Delegate cannot further delegate his power
• In Indian and South Asian context
• Autowala is not aware of e-paper filing. New rules for motor
vehicles come in place requiring scanned copy submissions of all
documents. Autowala has to miss one or two days of earning
because he has to go to cyber shop to get his documents scanned.
Control Mechanism
1. Background
• Bureaucratic legislations are drafted in closed chambers by anonymous
civil servants, and the contents are made known to the public after they are
notified.
• No public discussion/no press analysis or public opinion will lead to
misuse of power. The bureaucracy should be mindful of realities of the
ground.
2. Procedures
a. Parliament itself- Subordinate Legislation Committee
b. Dwarka Prasad case- Rules can’t violate FRs
3. Scrutiny mechanism + publicity + consultation + effective legislative
supervision
4. Controls in the form of judicial review
Retrospectivity:
DL cannot be retrospective in nature. Look at the following instances (assuming
that the parent act allows for retrospective application in its provisions, but this
provision has not been used when DL was framed).
• Can a DL be made retrospective by adm order given by an executive
officer? (Not amending the DL; but rather issuing adm instructions or a
notification)
 • Can it be modified by an adm order?
• Can the DL be extended by an adm order?
Starting point of DL: an enabling provision
Process of framing DL and the authority given to the specific institution and
amendment to the DL should be given in the parent act, it cannot be modified by
an executive authority. For example in NLUs, Executive Council has the power to
make regulations, but a notification is issued to modify a DL by someone not
heading the Executive Council, then in that case the notification is not valid.
Therefore, DL cannot be modified or repealed by an executive order.
Union of India v Ashok Kumar Agarwal (2013) 16 SCC 147 (2J) administrative
action cannot supersede DL or cannot implement DL from backdate.
Retrospectivity/modification can be done only by the competent authority.
There must be a provision in the parent act providing for retrospectivity. And such
use of retrospective application cannot be unreasonable/ unjustified and it cannot
be in violation of fundamental/legal rights.
Eg: RTI empowers appropriate govt to frame rules to fix charges for RTI
applications. The power if exercised for fixing Rs. 500 or Rs 1000 for one page of
RTI application then that would amount to unreasonable use of the delegated
power as it violates the basic right to information.
Sub-delegation
Sub-delegation can never happen when there is no power to sub-delegate. There
must be express enabling provision.
Food Safety Act: Where power is given to the central government and the power
can be sub-delegated to food commissioners then this is valid. Therefore, there
must be a provision for sub-delegation in the parent Act. Sub-delegation is not
possible in case of personal accountability. Eg, PIO in the RTI Act is personally
accountable and he cannot sub-delegate liability be to a subordinate officer.

AK Roy v State of punjab AIR 1986 SC 2160 (2J)

Section 20 and 24 of Prevention of Food Adulteration Act. Section 24 empowers

state/central govt to frame rules. Section 20: powers are given to appropriate govt
to initiate proceedings for of the said Act. Thereafter, the specific state govt
framed rules in 1958, wherein Rule 3 empowered food inspectors to initiate
prosecution proceedings for violation of the Act. Then proceedings were initiated
against the petitioner and the matter reaches SC.
Issue: Whether prosecution proceedings initiated by the food inspector were valid?
Can powers be given in a way to supersede the enabling Act?
This involved sub-delegation by framing rules and sub-delegation through
delegated legislation is not possible, and it cannot be done if it contravenes the
enabling Act.
Moreover, delegation of powers cannot be done to an unqualified person. Eg, the
Act says that no one other than a Professor of Law should be appointed, but
someone who is not one is appointed. Such an action will be illegal.
Legal Fiction:
The use of the word ‘deemed’. For eg, if no reply to an RTI in 30 days then it is
‘deemed’ to be rejected. Such a legal fiction (a deeming provision) cannot be
created by a DL.
Delegation of ELA can be challenged on two grounds:
1. Abdication of Leg Powers
2. Excessive Delegation
1. Abdication of Leg powers
Only ancillary and incidental/supplementary powers can be delegated.
Abdication means abandonment of sovereignty wrt law making activities. When
leg entrusts primary function to executive. Surrendering that kind of power, the
mandate given to leg by constitution amounts to abdication. (Where there is no
power to delegate at all)
2. Excessive Delegation
There is a valid delegation, but delegation is excessive. No unlimited and
uncontrolled delegation can be allowed and legislature must come up with
guidelines and principles to guide the delegated leg.
Abdication is when sovereign function of leg to make laws is delegated, excessive
delegation is when there is no control mechanism on the exercise of powers under
delegated legislation.

Avinder v State of Punjab 2J Krishna Iyer

• Leg must provide guidelines and principles to regulate delegated

legislation.
• There is a power to delegate. It just cant be uncontrolled

Devidas Gopal Kishan v State of Punjab 1965 5 J

• Punjab and Sales Excise Tax Act- State had power to set any tax. No
scheme, guidelines

Harak Chand v UOI 1970 5J

• Gold Control Act 1958

• All powers under administrator can be authorised to be exercised by any
person who will have all relevant powers. Excessive delegation.
State of Rajasthan v Basant Nahata 2J (2005)

• Leg must set criteria or standard as to enable delegatee to act within

framework of statute
• DL not backed by any statutory provision will not be valid
What cannot be delegated:
• Power to make law- including subject matter, policy, framework? No,
because it involves essential legislative activity.
• Unqualified and independent authority cannot be delegated
• Power to modify/ power to add something to the existing enabling Act-
No.
• Power to repeal amending Act
• Essential cannot be delegated; only ancillary or incidental legislative
activity can be delegated
What can be delegated:
• Power to modify/repeal of the DL: Power to frame includes the power to
amend and repeal but if there are some specific restrictions, this will not
follow. The Parliament can come with restrictions, for example, any DL
before amendment should be brought before the Parliament.
• Power to include and exclude from application: where power is given to an
authority to include an employee under a particular scheme. For excluding
from a particular scheme Employee State Insurance, it would be necessary
that better benefits are given to the person for exclusion to happen.
Otherwise the employer will be covered under ESI.
In Industrial disputes Act, there is no scope for increase/wage limit while
determining workmen
• Power to remove difficulties: it is a part of supplementary delegated
legislation. It can be used when there is no stipulation for exercising this
power. And the other kind is without stipulation.
Section 34 NLU Delhi Act- Chancy can remove difficulties, within 5 years
of the Act. After 5 years there is no power to remove difficulties. But the
power cannot be exercised outside this ambit, because there is a stipulation.
• It cannot create rights and liabilities outside the scope of the enabling Act

Straw Products v Income Tax Officer AIR 1968 SC 5797

Difficulties regarding fixation of tax liabilities. Orders to remove difficulties were

passed by the Central Govt. Taxes were imposed through this power to remove
difficulties. Court found that such power could not be used to impose taxes as this
power cannot create some rights or supersede the parent Act. Court set aside the
Order. Similarly, this power cannot be used to supersede process. For example, it
cannot be used to appoint an unqualified professor.
• Power to bring Act into force:
If there is no provision to this effect, then there is no discretion, but if there is a
provision saying that ‘it will come into effect as and when notified by the Central
Government’ then this power to bring an act into force stands delegated.
Conditional legislation (‘CL’) is not a part of delegated legislation and it cannot be
challenged on account of excessive delegation. Justice Mukherjea in Re Delhi Law
Act- read for conditional legislation:
“Thus, conditional legislation has all along been treated in judicial
pronouncements not to be a species of delegated legislation at all. It comes under
a separate category, and, if in a particular case all the elements of a conditional
legislation exist, the question does not arise as to whether in leaving the task of
determining the condition to an outside authority, the legislature acted beyond the
scope of its powers.”
Whether the power to bring the Act into force is a part of delegated legislation or
conditional legislation? According to the Supreme Court, it is a part of conditional
legislation.

Vasudev Singh v Union of India 2006 para 29

• CL contains no elements of delegation of legislative powers, and thus

cannot be attacked on the grounds of excessive power.

MP HC Bar Assn v UOI 2004 para 50

• Held that the power to abolish a state tribunal, it was conditional

legislation, not excessive.

Tulsipur Sugar Company Limited v State of UP 1980

• Parameters of DL
• There must be authority to make delegated legislation
• ELA cannot be delegated
• Power to expand jurisdiction
• Section 3 of UP Town Act. Territorial jurisdiction was expanded.
• Challenged case on violation of PNJ because stakeholders were not heard.
Specific action was also beyond the scope of the main Act. Challenged
excessive delegation.
 • In DL, rights and liabilities are created, not adjudicated. There are no civil
consequences either, so PNJ not applicable. Can challenge the provision
itself if it violates any fundamental right
• SC held that power to extend territorial jurisdiction cannot be challenged
on grounds of excessive delegation. SC held that it was a case of CL not
DL and hence the ground of excessive delegation does not hold. JSM feels
it was DL.
They are not treating CL as part of ELA either.
Power to bring Act into force:
It is conditional legislation, the moment the Act leaves the legislative chamber it is
already complete. What are the distinction between conditional legislation and
delegated legislation for the purpose of bringing the Act into force, for extending
the tenure of the Act and extending the jurisdiction of the Act?
In re Delhi Laws Act (Justice Mukherjea, etc)
• Conditional legislation (CL) is not delegated legislation, and cannot be
challenged on the grounds of excessive delegation
• Power to bring an act into force is a part of DL? Or CL? CL.
• Eg. The Central govt may, by notification, bring the Act into force
(discretionary power by way of conditional legislation. The Central govt is
not bound
• Eg. The Act shall come into force on the 1st of October, 19xx
Power to expand jurisdiction (subject matter/territorial/pecuniary- within
preamble of statute) Subject matter jurisdiction can be extended if there is
jurisdiction (mentioned in the act) and while doing so the mandate of the act has to
be seen.
• Eg. NLU Delhi introduces Integrated PhD programme if there is a
provision
• Must still be within the mandate of the scheme. NLU Delhi cannot
extend to commercial activities
Power to extend duration
• Sunset clause- stipulation of tenure of the specific Act. Mostly to
tax/finance laws (applicable for specific years only)
Inder Singh v State of Rajasthan 19xx 5J
• Power to extend the duration of the statute is a non-essential
function.
 • Enabling Act’s mandate still applies to the conditional legislation. If
there is a provision, scheme may be extended beyond the stipulated
period.
• Eg. Creation of Review Commission after stipulated period to
decide whether to extend duration.
Tulsipur Sugar mills v.

Control over Delegated Legislation

Read 9 page summary of Delhi Laws Act judgment.

1. Why do we need control?
To prevent abuse of power with respect to essential and non-essential delegated
activity.
To ensure that the power that has been delegated is exercised within the four
corners of the parent/enabling Act. Abuse if different from regular use of the
delegated powers. Eg, if power is given to appoint someone, this power does not
imply that there can be a lack of process in such appointment. Process cannot be
misused (this involves some mala fide intention). It is not valid if the power which
is given for one specific purpose is used for another purpose or when an order or
notification is passed only to cater to one person.
When a person’s right is violated, the remedy is to avail judicial review.
2. Tools of control:
a. Control by the legislature (control by parliament is very limited). Includes
control by state legislature.
I. At the time of framing enabling Act. The legislature has the power to
curtail delegation of powers or repeal it. The master has all the power to
take care of delegated power. There is a specific provision where the
framing of rules and regulations are delegated and there are conditions laid
down for the same. Questions like who will frame the rules, how will the
rules be framed, how will the rules be controlled- it is all answered in the
enabling Act. Section 82 of the Arbitration and Conciliation Act: Power is
given to the HC to frame rules. These rules would amount to delegated
legislation. There are conditions laid down in this Act, such as, it is the
Central Govt has to make a notification in the official gazette, this will be
an essential requirement. Therefore, there has to be substantive provision in
the enabling Act as well as a procedural provision about the process to be
followed. In the Arbitration and Conciliation Act, rules if to be framed,
have to be put forth in the legislature to get approval. So here the power is
with the Central Govt and there is an additional procedural requirement
that the delegated legislation/ rules should be laid in front of the
Parliament.
 II. At the time of framing delegated legislation.
How that mechanism for framing delegated legislation is regulated. There
is a manual for framing, amending, repealing delegated legislation. Even
for enabling DL from retrospective date. Chapter 11 of the manual is
important . Available at mpa.nic.in/manual
• Modification of DL/ Implementing DL from retrospective date.
• Specific ministry has to provide justification. Needs to give reasons for the
retrospective application. Whether this application will affect rights and
liabilities of people has also to be looked.
• Such retrospective application also requires a specific express provision
providing for the same.
• In parliament, there are committees on subordinate delegation. First one
was established on 1st December 1953 in Lok Sabha and second one at
Rajya Sabha in 1964. These committees are supposed to scrutinize
subordinated delegation to see if the DL is contrary to the enabling Act or
to any other provision of law or whether it can be retrospective or not.
• Various grounds such as framing/amendment/repealing of DL is
scrutinized by the Committee. If there is no enabling Act, then the State or
agency cannot make rules. CIC does not have the authority to frame
regulations, but has still framed which CIC continues to follow despite a
court decision against the same (DDA v CIC, Delhi High Court). So here
the remedy that is left with the affected party is to initiate contempt
proceedings against CIC for not abiding by the Delhi HC judgment and for
using regulations that had been struck down by the Court. Maximum
punishment in contempt: Criminal and Civil. This case will be that of civil
contempt.
• Adm in practice and theory: the judicial review mechanism is not as
effective as it means. The committees in Lok Sabha and Rajya Sabha don’t
hold meetings regularly and neither are they experts in the different fields
of law. These are the problems we face in having effective control
mechanisms.
• The legislature can control all DL.
b. Control by the judiciary (Article 226, 227, 32)
• Grounds on which DL is subject to judicial review (JR): first, substantive
ultra vires (beyond the jurisdiction of the delegated legislation) and second,
procedural ultra vires.
• SC gave a checklist on judicial control: State of Tamil Nadu v P.
Krishnamurthy 2006 (4) SCC 317:
• Provides for grounds for control of delegated legislation
 • Lack of legislative competence to make the subordinated
legislation, i.e, there is no provision in the enabling Act. Here, the
action will be substantive ultra vires. There has to an enabling
provision, and such an enabling provision cannot come from a
delegated legislation itself.
• Violation of fundamental rights in the constitution. Ninth
schedule is not subject to judicial review. A delegated legislation
covered under an Act that comes under ninth schedule- can the DL
get the same protection from judicial review that the Act does? DL
is made only for supplementing the enabling Act and it cannot
supersede FR. Ninth schedule promotes Part IV over Part III.
Rajasthan Tenancy Act (an Act protected by the ninth schedule),
and the state of Rajasthan frames rules under this Act which violate
FR. The importance of the date of 24th April 1973, reiterated in
State of Tamil Nadu v IR Coelho. Read up on this, JSM isn’t
answering.
• Violation of any provision of the constitution. This is substantive
ultra vires. Employees of NLUJ formed a trade union and they were
served a notice to close the trade union, or otherwise their
employment would be terminated. So the specific matter was
brought before Jodhpur HC where the Court found that the right to
form association is a part of Article 19 and the employees cannot be
prohibited from doing the same.
• Failure to conform to the statute under which it is made or
exceeding the authority conferred by the enabling Act. This is also
substantive ultra vires.
• Repugnancy to the laws of the land. Registration Act 1908:
Registration under Section 17 is mandatory under certain cases.
This Section cannot be diluted by a delegated legislation under Land
Acquisition Act. DL cant be contrary to enabling act of another
statute on the relevant subject matter.
• Can PNJ be dispensed with a DL? Eg. Can DL say no speaking
order is required/no notice is required for an action? No, it cannot.
• Arbitrariness
• 2006, 2016, 2017 judgments
3. Grounds for challenging administrative action
Judicial Control of Delegated Legislation:
It is for the courts to decide what amounts to excessive delegation.
These are two key questions that judges answer in assessing cases. It depends on
the legislation that has been challenged and how much power has been delegated.
JSM: Classification of control:
1. Preventive control
2. detentive control
Can the Parl Committee adjudicate issues of DL? No.
In the enabling Act, there is a process given for laying down of rules in front of
the Parliament. That is a kind of preventive control. If this process is not followed,
then the judiciary will step in and that is referred to as the detective control.
Doctrine of ultra vires: it deals with jurisdiction: subject matter, territorial and
pecuniary. Lack of jurisdiction and excessive jurisdiction are the main grounds for
substantive ultra vires.

Court Approach to challenge to a DL:
1. Determine the meaning, scope, and extent of rule making power of the
concerned Act. Eg. Motor vehicles act.
2. Meaning and scope of the DL
3. Test the delegated legislation against the parent act to examine whether
rule in question has some nexus with underlying policy of the Act
4. Adjudicating: Not to make subjective evaluation policy underlying Act.
This is the reason the Court did not entertain the question of whether
demonetisation policy because that is the power of legislature.
5. Judges will not substitute the policy of the legislation with their own
opinion
6. Concern: whether the impugned DL falls within the rule making power as
conferred by the parent Act
Substantive ultra vires:
1. DL goes beyond the scope of authority conferred by the parent Act
2. Must confine to the provisions of the statute
3. Should come within the scope/ purview of the rule making power
Can court not assess/review any policy decision of legislature? Are all policy
matters beyond the scope of review? Eg, disinvestment in Air India. Yes (BALCO
v UoI)
Hypothetical: There is a specific legislation and there is no power granted to
delegate. Rules have been framed to extend the mandate of the parent Act through
creation of a scheme. There is an effective and beneficial scheme created but there
is no power to create it. Nature of action is quasi legislative action because it
creates rights and liabilities. The legal status of the scheme has to be determined.
It will be illegal altogether, irrespective of how reasonable or beneficial it is.

Hamdard Dawakhana v UOI, AIR 1960 SC 554

Section 3(d) of the Drugs and Magic Remedies (Objectionable Advertisements)

Act(1954). There was power given to include any disease and there was no
qualification given as to how that power was to be performed.
a. Excessive Delegation
b. Breach of fundamental rights
c. Any other ground (distribution of power between state and centre u/s)

Dwarka Prasad v State of UP AIR 1953 SC 224

Under cl. 4(3) of the Uttar Pradesh Coal Control Order, 1953, the
licensing authority has been given absolute power to grant or refuse to
grant, renew or refuse to renew, suspend, revoke, cancel or modify any
licence under this Order and the only thing he has to do is to record reasons
for the action he takes.

GOC v Dr Subhash Chand 1988 2J-

Central govt made rules in 1937

Cantonments Act 1994- Rules made- transfer provision was not mentioned in the
enabling Act, transfer procedure was mentioned in the rules. Transfer happened
accordingly, and the Resp challenged the transfer and it was held to be void.
DDA v Joint Action Committee- 2008- DDA 1957
Sec 5A empowered Chairman and Vice Chairman to take certain steps. But did
not allow creation of scheme, but VC made a scheme. Quasi legislative action.
Challenged, supreme court struck down the scheme because it was ultra vires.
Special repeats are not mentioned in the NLU Delhi Act or the Examination
Regulations.

JB Chopra 1987 2j

Central Govt framed recruitment rules as per directions of Art 309, which
empowers CG to frame rules and regulations of service. Under rules, 100% of
vacancies in certain posts were reserved for one specific category. Dealt with
reservation in promotion.
Struck down by Supreme Court under 16(1) for violating equality.
Principles of Natural Justice cannot be dispensed with even through provisions of
a legislation. (the DL cannot contain a provision which allows for non-observance
of PNJ at time of implementation. The framing of DL does not require observance
of PNJ itself)

Chintaman Rao v State of MP AIR 1951 SC 118 5j

Enabling Act struck down for violating Art 19(1)(g). DL did not have force
anymore.
Procedural Ultra Vires
First have to check whether process is discretionary or mandatory.
Some of the common procedural requirements are:
1. Consultation: “Shall consult” v “may consult”. Otherwise the DL framed
will be illegal.
2. Prior Approval: Eg. Sec 150 of MCD Act 1957- the corporation shall seek
approval before imposition of certain taxes etc.
• “Shall be approved”
• In case action is taken without prior approval, then DL is illegal
3. Publication:
• Eg. Notice on the gate is required under law during a strike.
• Publication in Official gazette
4. Laying before the Legislature:
Committee on Subordinate Legislation (Rajya Sabha/Lok Sabha)- Chapter
11 of the Manual
• Preventive control: whether the rules violate Constitution,
• whether there is retrospectivity,
• what is the justification for retrospectivity
These committees have very little practical knowledge of how real world problems
are. Members don’t attend meetings.

Post Mid Sems (JSM)

Principles of Natural Justice

Connection between nature of adm action and PNJ:
Functions performed by ICC: Whether ICC performs QJA or PAA with CQ?
In case of PAA, it may recommend to the specific agency what to do.
What are the PNJ for ICC proceedings?
(He won’t tell, find out)
All the facets of PNJ will not be available in PAA w CQ, but an exception to this
is inquiries, such as ICC.
PNJ is a tool of control, both preventive and detentive. PNJ is also called common
sense justice.
Facets of PNJ:
1. Audi alteram partem (proper and effective hearing)
2. Rule against bias- subject matter bias
3. Speaking order (what are the components)
4. Good faith (different from rule against bias, it means that the person must
rely on the facts and apply the right law. Judgement cannot be influenced
by emotions and biases.
In case of QJA and PAA with CQ- there is a requirement of PNJ.
*drumrolls*

Enter SIA
Can BCI suspend anyone’s license to practice?
Land Acquisition Act
Medical Council

PNJ: 1-11-18

Origin

Order of nature- human wants to distinguish between good or bad. When she
failed to do this, the concept of divine law was evolved to convince people what is
good and what is bad. The natural law theory relies on the concept of god to do
good things and be fair and just. Divine attributions to humans, an almighty was
created. Attributed certain good and bad practices.

Secondly, the age of reformation and enlightenment. 1500 onwards. Criminal law
process evolved because of the rational thinking that developed. Society started
thinking. Scholars and thinkers from that time had a huge role to play this. They
advocated that a chance of hearing should be given. Humans started thinking and
thinking rationally.

Aristotle and Socrates, Kautilya, Plato- the idea was that the person has to given
an opportunity to present their case. this was extended to a rule against bias and
now we have good faith. PNJ is very dynamic. We have developed these concepts
(such as speaking order) through judicial interpretations so credit should be given
to the judiciary. PNJ is a tool of accountability.

PNJ recognised by Indian Constitution:

PNJ is uncodified canons, so even if it is not expressly given, it will be applied.

Article 14, 21, 311(2), 309.

JR and PNJ- 32 and 226 are a part of basic structure. In case there is a violation of
PNJ, you can approach the court.

Purpose of PNJ:

1. secure justice or to prevent the miscarriage of justice. Mindblown.

Power given to the bureaucracy will never reduce, it will only increase with time.
That means that there is a need to build more procedural safeguards to ensure
process, reasonableness, good faith and fairness. As the amount of power
outsourced to adm authorities increases, need for procedural safeguards will also
increase. Iqbal is trying to make us understand.

Land Acquisition Act- the law tries to ensure transparency and procedural
fairness.

3/11/18
(SIA)

PNJ growing across other jurisdictions- good faith, reasonableness (who knows
what will be the principles of natural justice 50 years later?) Thomas Bonham case

Can a statutory provision curtail PNJ? Or can the judiciary curtail it?

Canara Bank v VK Awasthi (AIR 2005 SC 2050; Para 11)

“Natural justice is another name for commonsense justice. Rules of natural justice
are not codified canons. But they are principles ingrained into the conscience of
man. Natural justice is the administration of justice in a commonsense liberal way.
Justice is based substantially on natural ideals and human values. The
administration of justice is to be freed from the narrow and restricted
considerations which are usually associated with a formulated law involving
linguistic technicalities and grammatical niceties. It is the substance of justice
which has to determine its form.”

Canons recognised in Article 14,21- arbitrariness, due process
But PNJ can be done away with in exceptional cases. Art 311(2) does not require
PNJ.

Exceptions to application of PNJ- Article 311 of the Constitution.

Read AK Kraipak for the historical development of PNJ. PNJ are required only in
cases where there are civil consequences.

The remedies are: appeal, review, judicial review
All 3 are different.

Some exceptions:

There are strict liability offences too- TADA, POTA, NDPS. Eg. Even in cases of
possession of sensitive material, you will be deemed guilty.

(Back to SIA)

Applicability of PNJ:

There has been a change in application over time. 1964 case of Ridge v Baldwin,
one position came up that there was a need for procedural hearings with the
expanding power of the state. The question then was which cases should have
procedural hearings and which should not.

There is a growing trend of granting opportunity of hearing. For example, the
Telecom Regulatory Rules.

As more and more powers to the administration will result in more and more
procedural safeguards are needed as there is likelihood of abuse of the state power.
The attempt thus should be to minimize arbitrariness.

Any adm decision should be made with knowledge of the relevant facts and
issues. Eg: Land Acquisition Act, a public notification has to be made in the
newspaper. Objections, if any, are invited. The purpose is to provide fairness and
provide them with a chance to state their objections.

What is “decisions” wrt administrative law concerning PNJ? (Does it involve only
QJA or PAA too?) Do procedural safeguard include delegated legislation?

Courts- review of AA- beneficial to both. It can be beneficial for the state to gain
legitimacy by showing their justification for the admin action. And, it is beneficial
for the people, because they can approach the court.

Ridge v Baldwin:

Facts: appellant was a police officer engaged with a municipal corporation. He
was involved corrupt practices and during the pendency of the proceedings, he
was suspended. Subsequently, he was exonerated from all the charges. He
submitted an application for the reinstatement of his services. Instead of doing
this, the senior police officer terminated his services without a notice or a hearing.
Thereafter, he challenged the termination. House of Lords discussed the
application of PNJ. PNJ was extended to PAA with CQ.This was a time when
PAA with CQ was not clearly identified and demarcated, it is from this case that
the idea of ‘civil consequences’ was identified by the court.

Nature of AA- termination-- this amounts to CQ. Moreover, if the power is given
only to conduct an inquiry, the authority cannot adjudicate the matter.
How do you identify which administrative action?
Approach- HIRAC method

Followed by Beena Pani Dei case, recognised in AK Kraipak.

Application of PNJ in PAA with CQ cases in India- started with AK Kraipak.
Test is: examine the nature of function exercised and not the nature of authority
exercising it.

What can be CQ?

Revocation, stopping salary, denying seniority. Basically any consequences
suffered or prejudice suffered by an AA.

AK Kraipak para 13
The SC held (wrongly) that there is no difference between administrative order
and quasi judicial order wrt PNJ.

Rajesh Kumar v Dy CIT 2007

Bihar v PP Sharma (1992) SC
Person be heard at stage of formation of opinion regarding registering of FIR?
Power of search and seizure

Licensing/Commercial Regulation
• Grant, renewal, revocation
• Suspension of license
• Blacklisting of dealer- civil consequences (Eurasian Equipment CO v West
Bengal (1975)- give the dealer an opportunity to make representation

Cynamide case

Exam Results
Board of HS v Chitra 1970
• Expulsion or suspension or cancellation of exam result
• Notice- earliest opportunity- grounds are vague- how does student make
representn?

Hiranand Mishra case for educational institutions
• Some students ran away, did not appear before committee, no hearing
could be given

Courts review admin action. Protect legitimate interest of State

Cases which lay down PNJ description.
IS Kahlon v Punjab (2006)
RL Sharma v HR Sharma (1993)

Rule against bias -
a. preconceived notion, “operative prejudice” in mind
b. Not open to change - have already decided
c. No objective decision can be made

Rule Against Bias:
1. Personal
2. Pecuniary
3. Subject Matter

Why is it necessary to have a rule against bias?
• Authority concerned may have personal connection or personal interest
• Avoid possibility of partial/improper decision
• Public confidence and impartiality of process.
(Crawford Bayley Co. v Union of India (2006) 6 SCC 25)

Personal Bias
1. Relationship equation between the deciding authority and the party
concerned.
2. Forms personal or professional hostility or friendship.
Eg. How can Medical Council of India frame rules on medical negligence?

Can bias be seen? Is it apparent?
• Can be conscious or unconscious bias
Tests
1. Real likelihood of bias
2. Real suspicion of bias

Eg. Sheonandan Paswan v Bihar AIR 1983 SC 194
Withdrawal of criminal case (4 murders) held valid against former CM u/s 321
CrPC.
Deciding judge resigned 46 days prior to retirement date.
Nominated as election candidate, won, became minister in ruling govt.

AK Kraipak v UOI
• Selection board member also a candidate in Forest Service Promotions
• Did not participate in deliberation when his own name was being
considered, but participated in deliberations when rivals’ names were
considered.
• Members of board must have had impact? Naqshband would get to know
what deliberations were conducted
• Member was bound to influence others in a subtle manner
• Without being aware of such influence
• Supreme Court held that the aspect of human probabilities is relevant, that
other members must have been influenced and there is reasonable
likelihood to believe there was bias

Pecuniary Bias
Eg. I have shares in a company and I am going to judge a case of a company

Eg. Assessment committee recommends books
J Mohapatra and Co v Orissa AIR 1984 SC 1572

Pictures of two slides on Vishvesh’s phone

3) Official/ Departmental/ Institutional Bias
i) Inherent biases in the administrative process
ii) Functions are similar at times. Eg person who is transferring will be the one
hearing the appeal

Externment proceedings (where the DCP or SP has [Lower to send a person out
from a particular area at times like pickpocketer etc) challenged : Police initiated
proceedings + Decided appeal.

Initiation/decision: 2 different officers but belong to the same department:
Initiation of process and decision making process in same department. Although
two different officers but of the same department.

Hari v DCP, AIR 1956 SC 559

4) Pic on phone

Exclusion of Bias
1. Statute may exclude
2. Obligate: Official to adjudicate irrespective of own interest
3. Adjudicate if :
i) no other person competent is available
ii) quorum cannot be formed
iii) no other tribunal can be formed
(ECI v Subramaniam Swamy , (1996) 4 SCC 104)
Issue: Adjudication of disqualification of MLA, bias was alleged against CEC
close to complainant.
Court: If suspicious of bias, CEC, should excuse himself from participating, other
two EC’s decide.
Difference of opinion- two EC’s the CEC have to participate on grounds of
necessity.
Bias on account of obstinacy:
There is only one case on this. W.B v Shivananda Pathak. The deciding judge had
sat on the appeal also. The matter comes to the SC and the court holds that there is
bound to be bias.

(entry JSM)
Institutional decision and individual decision are different. Institutional decision
cannot be subjected to this bias test. In individual decision, the person deciding is
connected as a party themselves. For eg, VC reviewing his own decision-- can that
be done?
Classification of rule against bias-
1. Personal bias
 2. Pecuniary bias
3. Subject matter bias
One instance can obviously include more than one categories.
Hypothetical- Adm action is taken by a committee. A person is ex-officio part of
this committee and also an ex-officio part of the committee that hears the appeals
from the first committee. QJA is involved. Then here we need to look at attributes
of QJA.
In one case, workers manhandled a manager and they were terminated. Inquiry
was conducted by the manager. This manager was the inquiry officer and it was
him who recommended termination. Thereafter, the disciplinary authority of that
inst terminated the workers. Nature of AA has to be seen to determine the
procedural requirements. Here, it is PAA with CQ. Can hearing be conducted by
the manager? No. This case involved a subject matter bias and personal bias.

In case of RTI Act, there is PIO and the first appellate authority. Let’s say the RTI
itself deals with information about the first appellate authority. The information is
denied by PIO and appeal goes to the same authority about which information
sought in the RTI. Here, the Head of Department cannot decide on this appeal.
The specific bias has to be challenged, otherwise it will be waived off.
Good faith v Rule against bias:
There is a basic and fundamental difference between good faith and rule against
bias. The judiciary is also confused. Good faith means that decision should be
made solely on the basis of facts and law and the emotions of the person deciding
should not be reflected in the judgment.
19th November 2018
JSM on Audi Alterm Partem (AAP)
AAP essentials- the person has to be heard.
Why and when is notice required to be given, in relation of disciplinary
proceedings? Is notice required in all AA?
Notice is required only in QJA and PAA with CQ. When it comes to conducting
inquiries, it is PAA with CQ, but there are some SC judgements that hold it as
QJA. When it comes to QJA, it is essential to apply PNJ, i.e all the facets.
Why do we need prior notice?
• Need of communication of information to the party. Adm authority has to
intimate the concerned person.
• The person can prepare for defence
The notice has to be a proper notice. The notice must communicate the proposed
action and all the vital information such as details of date and time and all related
circumstances.
Process of domestic inquiry- this is different from tribunals. Process starts with the
issuance of a show cause notice and then in the proceedings there has to be
explanation of all the charges and there has to be fair process and fair hearing.
Modes of serving notice, there are various ways such CPC and even electronic
means.
Fair Hearing
When hearing is given, but fair hearing is not.
Olga Tellis v Bombay Municipal Corp
Personal hearing:
Excise duty imposed on company manufactured a particular chemical corporation.
When there is a profit of margin involved, there is a profit quotient, so if changes
to slab rates. Company was disputed but the govt. Did not give an opportunity for
personal hearing before upholding levy of duty. Action was quashed as it included
a technical question should have been decided by taking expert evidence.
(Travancore Rayons v UoI AIR 1971 SC 862)
BALCO employees case
1. In person hearing. Ministry decides citizenship issues, it is purely
administrative action. Personal hearing is necessary. (UOI v Chand Putli
AIR 1973 All 362)
2. Personal hearing is necessary in disciplinary actions against professionals by
their concerned association. Associations can be like that of chartered accountant
or a lawyer.
(Re an Advocate AIR 1989 SC 245)
(ICAI v LK Ratna AIR 1987 SC 71)
Contrast with Hiralal Mishra’s case.
3. Disclosure of materials/ supply of enquiry report (can there be a disclosure)
• Relevant materials were placed in consideration
• Was the affected person apprised
• Opportunity to rebut/explain actions
Article 311 of the constitution-- where any action has to be taken against the
public servant, a copy has to be given to the public servant.
UOI v Mohd Ramzan Khan
1. adjudicatory body: decide basis of relevant materials placed before it.
2. Affected person apprised and given opportunity to rebut+explain
3. Whether copies of material relied upon must be supplied
4. Whether to convey gist or allow inspection of material, depend on case?
Situations where information is not disclosed- preventive detention, economic
offences. In economic offences, the authority might have some material but it
cannot be disclosed. We start from the premise that information has to be placed
before the court. Whether only gist of material can be provided or inspection can
be allowed will depend on the nature of the case.
Basically in technical matters, in human rights issues, profit of margin involved.
Situations:
1. Enquiry report may indict- disciplinary authority may exonerate person.
2. Enquiry report may exonerate- disciplinary authority may indict
3. Enquiry report may indict- disciplinary authority also indicts
4. Enquiry report may exonerate- disciplinary authority may also exonerate
Crux of all hearing matters comes down to these questions. Question is here is
whether the report has to supplied or not. In the first and fourth situations, the
supplying of report is not necessary because the person has been let go of. Second
situation, here if report is not supplied along with comments of why the decision
was taken, it will violate PNJ. It depends on whether it is the report which is the
final word or not. Third situation, the report should be given because our core area
is that of fairness.
Right to cross examination:
1. Whatever information is obtained must be disclosed
2. Opportunity to rebut must be provided
It is an important of the component of hearing, but to what extent can it be
applied?
Hira N. Mishra v Principal, Rajendra Medical College
Issue:
1. Evidence taken at the back of student
2. Cross examination not allowed

Some boys entered the girls hostel and fled after that. Girls gave evidence and
even identified the boys who were involved. Court held that the taking of evidence
behind the back of the boys and denial of right to cross examination was valid.
Court says that there was an element of retaliation and risk which was there for the
girls. No girl would have come forward and give evidence publicly. Court also
took note of the fact that reasonable time had lapsed since the incident.
Cross-examination can be done away with in ICC proceedings. Because, an
exception can be made for larger public interest. For example, in a case of mass
cheating in an exam— a hearing and notice cannot be given to each and every
exam taker. One notification will be sufficient in this case.
Bar Council
Medical Council
Land Acquisition
Legal Representation
Is assistance of lawyers necessary? Mixed question
Sometimes the statute prohibits it (Eg. Industrial Disputes Act sec 36(2)(a) and sec
36(4))
Art 22(3)(b) Constitution
The process sometimes needs to be informal. Lawyers prolong and complicate
proceedings, which is against the interest of all the parties sometimes.
Eg. Factories would be closed till a dispute continues and legal proceedings go on.
Informal resolution can be later remedied through appeal through the Court.
Speaking/Reasoned Orders
Reason is a mandatory requirement
There should be a link between the fact and the decision.
Guard against non-application of mind
Helps in maintaining public confidence
In India, there is no statutory requirement. Interpreted by the courts only.
But if statute under which the agency is functioning requires reasoned decisions,
then courts consider it mandatory.
SN Mukherjee v Union of India 1990
1. Decision has to disclose reasons
2. Must be based on relevant considerations
3. Does not suffer from erroneous factual or legal foundations and
considerations
Allows aggrieved party to approach court.
Courts look at the process through which you have undergone before approaching
the court.
Maharashtra v Salem H Khan (1989)
Review of an externment order, reviewing authorities do not insist on reasons for
rejecting appeal as it would involve discussion of evidence and danger to witness
Post Decisional Hearing
Hearing can be given after the decision if the liberty, livelihood, property of a
person is at urgent stake.
Eg. In DDA Act, buildings are sealed first, and then after applications are received
and penalties are paid and the sealing is removed.
Administrative efficiency must be maintained in its own place.
Maneka Gandhi v Union of India (1978)
• Shah Commission set up to look at charges of violations during the
Emergency
• Wanted to interrogate Maneka Gandhi as she was related to the people
involved in Emergency
• Passport authority impounded the passport of Maneka Gandhi u/s10(3) of
Passport Act
• Held- must give hearing, must provide reasons, test of constitutionality
must be satisfied
• Passport Act had no provision for procedure for hearing
• But still it’s required
• Also laid down importance of post-decisional hearing
Jeet Singh Man

Ridge v Baldwin (HOL)
Natural
Para 20 of AK Kraipak
Maneka Gandhi case
Rules and principles of natural justice are uncodified canons. In India, even facets
of admin law are uncodified
Art 311(2)- PNJ can be diluted but still must stand the test of reasonability.
As a general rule PNJ will be applied.
Delhi Transport Corp v DTC Mazdoor Union
Reg 153(8) of Regulations- in case of termination of employee, 3 months notice or
wages in lieu of 3 months was required, but there was no need for providing
reasons for termination.
The regulation was struck down.
Rule Against Bias
Bias in general parlance and bias in PNJ. Bias is confined to only conflict of
interest, not subjectivity, in case of PNJ. Person is involved as a party or has an
interest in the outcome.
Psyche, passion etc will not be taken into account for administrative action.
Kinds:
• Personal
• Pecuniary
• Subject Matter
Need to prove these parameters:
• Outcome
• Interest
• Position of the authority
Person is member of the Company Law Board and holds shares in certain
company. If a dispute regarding that company comes up in front of the member,
then such a person cannot adjudicate upon the issues relating to that company
because of his/her pecuniary interest.
Audi Alteram Partem
1. Notice
2. Hearing
Joseph v Executive Engineer, PWD 1978

Conducting Enquiry
• Involves civil consequences
• UOI v Raghubar Pal Singh (2018)
 • Enquiry is not supposed to be conducted when facts are clear and there is
no doubt about the facts. Only in those cases where there is a doubt about
the facts.
• Would lead to useless formality
Useless Formality Theory
Unnecessary formalities are also not needed.
Hypothetical- There is an employee who is not entitled to HRA rate, only entitled
to 10%. The clerical staff accidentally gave 30%. The mistake is discovered the
amount is taken back without any notice. There was no PNJ. Nature of action?
PAA without CQ. Useless formality theory. PNJ can be done away with.
Therefore, no enquiry where facts are clear, no hearing when initial appointment
was illegal. It is the discretion of the enquiry officer whether to conduct or not
conduct enquiry, but it should not become a mere formality.
• Useful in PAA w/o CQ, since these actions do not require PNJ
Notice is given for one misconduct, hearing is conducted for a different
misconduct etc.
Delhi Road Corporation v DTC Mazdoor Congress case (AIR 1991 SC 101)-
Regulation 9B which curtailed the nature and scope of PNJ, as there was no
requirement of serving notice before termination of a permanent employee.
Are details of inquiry officer required to given in each notice?
The disciplinary authority decides whether to do enquiry or not cuz matter of
discretion. Where it does decide to hold an enquiry, information has to be given of
the officer. It must should also contain the proposed action.
Hypothetical- Student barred from writing in exams because she had less than
75% attendance, but she is not given any hearing. Can she challenge the action of
barring on the ground of violation of PNJ? Nature of AA has to be seen. Here, the
nature of action is PAA with CQ.
Hypothetical- Mobile phones are not permitted in class, and it is confiscated and
then disciplinary action is taken. Here it is a matter of strict liability.
Judgment of State of Karnataka v Mangalore University Non-Teaching
Employee Assn (AIR 2002 SC 1223, 2J) In this case, some workers were entitled
to a lower rate of HRA and CCA (City compulsator allowance). This excess
amount was recovered from them without giving any notice or hearing. The action
was challenged. There are civil consequences involved, even if any inquiry was
held, it would not have made any difference to the action. This is the useless
formality theory. There has to be a legitimate claim for application of PNJ.
Hypothetical- Illegal appointment- how can such a person take benefit of such
illegal action in order to claim PNJ subsequently?
Rule of law is available only to those who have abided by RoL.
Proper Notice:
There is no specific format for it. It must contain certain details wrt to the specific
misconduct, it must be clear and specific, date and particular place must be
provided. It must specify the action proposed to be taken. The person has to show
why this action should not be taken against the person. There should be therefore
adequate time to prepare defense. Notice must provide a reasonable time and
proposed action (eg. 30 days) To produce witnesses, documents, evidence in his
own favour.
In some cases, requirement of notice can be relaxed, but this cannot be done for
public notice.
Board of Directors HPRTC v KC Rahi (2008)
Case of waiver of right. The inspector was aware that a departmental enquiry was
initiated against him yet he chose not to participate in the enquiry proceedings at
his own risk. In such event plea of principle of natural justice is deemed to have
been waived and he is estopped from raising the question of non-compliance of
principle of natural justice.

--
Notice must be given for specific misconduct, it cannot be be used for two
different misconduct. PNJ are uncodified cannons, but in the case of USA there
are specific provisions, such as Section 554(a) of Administrative Procedure Act
1946 which discusses requirements of notice.
After notice, the next step is Hearing.

HEARING

There has to be prior hearing. Section 118AA of the Industrial development
Regulation Act 1951, there were some circumstances that allowed post decisional
hearing. Hearing has to be reasonable.
Important cases-
1. UoI v Tulsi Ram Patel case (1985)
2. Maneka Gandhi v UoI
3. IJ Rao Assnt Collector of customs v vibhuti bhushan and another AIR 1989
SC 1884 (post decisional hearing)
 4. DG RPFC v K. Raghuram Babu AIR 2008 SC 1598 (on the right to have a
legal practitioner in AAP)
Rights available to an affected person:
1. There should be an opportunity to be heard and this opportunity should be
reasonable
2. Right to deny the guilt
3. Right to produce evidence
4. Right to produce witnesses
5. Right to cross examination witnesses and wrt records. This right can
however be dispensed with in interest of public interest.
Union of India v TR Verma
The party should have the opportunity of adducing relevant evidence on which he
relies. There should also be an opportunity of cross examination. Hearing must be
connected to the specific conduct.
UoI v Tulsiram Patel
There should be an opportunity to deny his guilt and establish his innocence. An
opportunity to defend cross examination. An opportunity to make his
representation. Para 66.

The requirement of cross-examination can be done away with in selective cases,
where there is a possibility of threat to the victim, such as terror laws.
Hiralal v Rajendra Medical College case
The requirement of cross examination was done away with to protect the identity
of girls who had complained against boys for having entered the girls hostel.
Post decisional hearing and Maneka Gandhi case AIR 1978 SC 597:
Whether PDH is an extension or exception to PNJ- or both? (Find out)
Prior notice is not given and it is suspended because it might defeat the purpose of
the investigation. For example, in a food adulteration where a raid is going to take
place, informing the person about the raid will defeat the purpose. Similarly, prior
notice is not given in case of customs cases. In order to achieve desired result,
prior notice is given.
Hypothetical- Some students are drinking in the hostel. It will be unreasonable to
expect the wardens to give a prior notice before they visit the hostel.
Essential requirement for post decisional hearing-
 1. Pre-decisional hearing may be dispensed with in an emergent situation
where immediate action is required to prevent imminent danger, injury or
hazard to paramount public interest. Therefore, there has to some urgency
2. Mere urgency is however no reason for exclusion of Audi Alterm Partem
rule. The decision of post decisional hearing is justiciable. There has to be
a speaking order by the authority as to why pre decisional hearing was not
done.
3. Where pre decisional hearing is dispensed with, there must be a provision
for post decisional hearing.
In case of customs act and industrial development and regulation act, there are
express provisions for such post decisional hearing.
Right to represented by a legal practitioner during domestic inquiry part of
PNJ
HC Sarin v UoI: In domestic inquiry, the delinquent’s right to represented by a
counsel may be conceded where the charge is of a serious or complex nature.

Advocates cannot appear before family courts or labour courts. Domestic inquiry
is different from QJA. Conducting inquiry is an informal process. If there is
provision then have the right to counsel but otherwise there is discretion.
Is right to be represented by a lawyer a part of right to fair hearing? No, cuz
lawyers tend to complicate and make things formal, whereas enquiry is supposed
to be an informal process.
But if there is a statutory or constitutional provision regarding the same, then
representation must be allowed.
DG Railway Protection Force v K Raghuram Babu AIR 2008 SC 1958 (2
Judges)
Rule 153 of RPF Rules- Accused employee can engage a friend from the same
department (not legal practitioner) but the friend is not empowered to cross
examine.
Representation during domestic inquiry. The right to cross examination was
available only to the employee. The right to be represented by another person can
be modified and curtailed. Court upheld the constitutionality of the rule and held
that it was not against PNJ.
Principles
1. There is no vested or absolute right in an officer, employee or workman to
represent either through a counsel or through an agent unless the statute or
standing order recognize such a right. So, there has to be a provision.
 2. Right to representation through a counsel or an agent can be restricted,
controlled or regulated by statute or regulation as the case may be.
3. In absence of any provision, refusal to representation through a counsel or
an agent does not violate PNJ.
4. Even in case of only an option given to an employee to secure assistance of
counsel or agent, there is no vested or absolute right on the employee as
there is discretion on the inquiry officer to accept such request depending
on the facts of each case depending on the complex or serious nature of
issues raised.
Position in United Kingdom
R v Governors 2011 UKSC 30
• No right of representation part of right to fair hearing

United States
Administrative Procedures Act
Section 556- Representation by legal practitioner is a right
This right is a part of fair hearing in USA.

Right to copy of the inquiry report

Kailash Chandra v State of UP (1998, 3J)
• No right to copy of inquiry report
• Non supply of report would not ipso facto vitiate the punishment
UoI v Mohd Ramzan Khan (1991)
• Same as above, but did not discuss the judgment of 1998 judgment
• They held that it is a part of the right to fair hearing
Managing Director of ECIL v B Karunakar (1994, 5J)
• Right to copy of the report is a part of right to fair hearing
• There is restriction on this right.
• The doctrine of NJ requires supply of report of inquiry officer to the
delinquent employee
• The trial itself does not get vitiated merely by non-supply
 • The employee must prove that as a result of non-supply of the report, the
person will suffer.
Jammu and Kashmir Bank v BR Gupta (1994)
The person was dismissed only on the basis of the inquiry report and the copy was
not given. Court held that it should have been given and therefore the termination
was illegal.

The burden of proof is on the person to show that there is some prejudice.
J&K has different laws maybe jsm dk
Recognition of ‘one who decides must hear or one who hears must decide’
Whether the decision making and the hearing must be done by the same person
The person who conducts inquiry will be in a better position to decide the matter.
Gullapalli Nageshwar Rao v Andhra Pradesh State Road Corporation (1958) 5J
There was a scheme for nationalised transportation. The parties were heard by the
Secretary but the final decision was taken by the Minister.
The Supreme Court recognised this principle that hearing and decision making
must be done by the same person. Otherwise it would not be effective hearing and
the “personal hearing” would be reduced to an empty formality. However, this
judgment relates to policy decisions only.
This doctrine has not been recognised in the case of QJA: there are so many
practical difficulties. Trial, hearing etc cannot be conducted by the same authority
at all times.
Rule Against Bias
Impartial, no preference
Always a question of fact
Must be proved by the party who alleges bias
Secretary to Govt Transport Dept v Munnuswamy 2J 1998
Para 12
A predisposition to decide for or against a party without proper regard to the true
merit of the dispute is bias. The test for bias is whether a reasonable intelligent
man, fully apprised of the circumstances, would feel a serious apprehension of
bias.
Ranjit Thakur case
Please read from above

One person can perform all actions, as long as there is no bias or arbitrariness. It is
not a case of concentration of powers (earlier statement was different but follow
this now)
Bias in general parlance v bias in PNJ
PNJ- Specific conflict of interest.
Bias in general sense refers to subjectivity, feelings, emotions etc.
R v Mulvihill 1990s CoA
There must be connection between interest of the officer and the outcome of the
decision has affected the administrative officer.
Waiver of Bias and Disclosure of Interest
In case officer has some interest, required to recuse himself from the case.
In case there is no recusal, the case can be challenged for violation of Rule against
Bias.
Waiving objections against bias- Objections must be raise at the earliest-
whenever the party comes to know of the details of the interest. Later a party is
estopped from raising the objections.
Municipal Corporation Bombay v Dr Hakimwadi Tenants Assn 1988 SC 2J
para 14
Essential requirements for waiver against bias:
In order to constitute waiver, there must be voluntary and intentional
relinquishment of a right. The essence of a waiver is an estoppel and where there
is no estoppel, there is no waiver. Estoppel and waiver are questions of conduct
and must necessarily be determined on the facts of each case.
State of Punjab v Devendra Pal Singh Bhulla 2012
If waiver is not exercised, it would amount to acquiescence. Party must know of
all relevant facts and then must not exercise the right for it to constitute a waiver.
JSCBTA Bank v Mukhtar and ors 2012 Labour Appellate Tribunal
There must be some direct or indirect pecuniary interest. However small or
insignificant it will disqualify the person.

Person was employee of the company earlier. Aggrieved party got to know of this,
but did not let the Presiding Officer know. Later, decision was against the party,
and on appeal it was held that the objections had been waived off.
Outcome may be relevant, may not be relevant.
William Dimes v Proprietors of Grand Junction Canal HOL 1852
Shareholder was also appellate authority, passed judgment in favour of the
company. Set aside.
Lord Cottenham was disqualified from sitting as a judge in the cause because he
had an interest in the suit. There was no inquiry by the court as to whether a
reasonable man would consider Lord Cottenham to be biased and no inquiry as to
the circumstances which led to Lord Cottenham sitting.
Lord Campbell said: ‘No one can suppose that Lord Cottenham could be, in the
remotest degree, influenced by the interest he had in this concern; but, my Lords,
it is of the last importance that the maxim that no man is to be a judge in his own
cause should be held sacred. And that is not to be confined to a cause in which he
is a party, but applies to a cause in which he has an interest. Since I have had the
honour to be Chief Justice of the Court of Queen’s Bench, we have again and
again set aside proceedings in inferior tribunals because an individual, who had an
interest in a cause, took a part in the decision. And it will have a most salutary
influence on these tribunals when it is known that this high Court of last resort, in
a case in which the Lord Chancellor of England had an interest, considered that his
decree was on that account a decree not according to law, and was set aside. This
will be a lesson to all inferior tribunals to take care not only that in their decrees
they are not influenced by their personal interest, but to avoid the appearance of
labouring under such an influence.’
[JSM LOVES THIS CASE]
Meanglass Tea Estate
Manager manhandled by workers. Enquiry Committee formed, manager head of
that committee, recommended termination of all those employees.
Subject Matter Bias
Judge may have bias in the subject matter, by way of involvement in the dispute in
some way. Eg. May have been a part of the litigation process

Cantonment Board case (cantonment executive officer v vijay wani)
The question of bias is always based on the facts. Enquiry Committee formed with
3 members, recommended termination of employment of the gentleman. The
Board formed with 5 members including members who conducted the enquiry.
Court held that “once the disciplinary committee finds the incumbent guilty; they
cannot sit in the judgment to punish the man on the basis of the opinion formed by
them. The objectivity is the hallmark of a judicial system in our country. The very
fact is that the disciplinary committee who found the respondent guilty
participated in decision making process for finding the respondent guilty and to
dismiss him from service is bias which is apparent & real.”
Objections of bias have to be raised at the earliest. Duty of the administrative
authority to disclose the conflict.
1. Bias is a matter of facts.
2. Concentration of powers and bias
3. Which facts have to be looked at when deciding on bias?
Position of the authority, outcome and disregard of merit has to be seen.
Ranjit Thakur case- outcome was as per the whims and fancies of the
commanding officer. When he refused to take meal, he was chargesheeted but
how can something so small lead to court martial. This shows that merits of the
case were dismissed by the commanding officer. He was thrown out his job-
complete disregard of merit.
AK Kraipak- one of the applicants was a member of the selection committee.
Outcome: he topped the list. Disregard of merit- the committee did not consider
other senior members for that position. So the parameters that have to be looked at
are: position of the authority, outcome and disregard to merit.
Can the doctrine of bias be made applicable to policy making, QLA and primary
legislative activity?
Such bias can be challenged on the basis of arbitrariness and unreasonableness but
not on the basis of PNJ. The policy can be challenged on the basis that it violates
Part III of the Constitution. Application of PNJ- civil consequences and quasi-
judicial actions only.
In one case a person was ordered compulsory retirement, this committee was
headed by the secretary. This secretary became a member of the adm tribunal and
he ended up hearing the appeal on that matter and he dismissed the appeal. This
was challenged on the basis of bias. It clearly shows subject matter bias that he
took that decision when he was the secretary. When we look at the outcome- he
dismissed the appeal. It is fit case of subject matter bias because the same person
cannot sit in appeal of his own decision.
Speaking Order
It has its roots in the right to know of the people. Whenever AA performs QJA and
PAA with CQ, they are required to issue a speaking order. The necessity of having
these orders is to ensure control over exercise of adm discretion and arbitrariness.
The speaking order is a kind of safeguard.
Contents of the Speaking Order:
1. It must speak for itself
2. Provide all details wrt the misconduct, the parties involved, relevant
statutory provisions, factual matrix of the case, justification for arriving at
the decision.
 3. Must be supported by some documentary proof, statutory provisions.
Justification must be given.
Tarlochan Dev v State
SN Mukherjee v UoI (important judgment)
The requirement of recording reasons-
1. Guarantee consideration by the authority
2. Introduce clarity in decisions
3. Minimize the chances of arbitrary exercise of power
Issue in this case was whether appellate authority is supposed to issue a speaking
order. Facts- army officer was court martialed and he made an appeal to the chief
of army. Chief of army did not however issue any speaking order and approved
the order of court martial. The army officer challenged the absence of a speaking
order. Nature of action- PAA with CQ. Supreme Court held that whenever the
order is approved, no speaking order is required and whenever there is a
disagreement, then a speaking order has to be issued.
Similarly, in Neelima Mishra, the Court held that approval or disapproval of
recommendations as the appellate authority was PAA with CQ.

Good faith v rule against bias
Good faith states that an element of subjectivity should not be there in decision
making. According to the doctrine of good faith, the decision has to be made
according to the relevant law and keeping in mind the facts and circumstances.
QJA or PAA with CQ are bound by this principle of good faith. Rule against bias
in general falls under good faith.

Exceptions to PNJ:
1. Statutory exclusion- Article 311(2) of the constitution and Section 17 of the
land acquisition act. the exclusion clause must stand the test of reasonableness. In
case of DTC mazdoor congress case, the regulation was struck down because there
was no requirement for giving justification for termination of employment
2. Emergency- in exceptional cases of urgency or emergency, where prompt
and preventive action is required the principle of natural justice may not be
observed. If a smuggler is absent to abscond to another country, the passport may
be seized without PNJ. Where a building is dangerous to human lives is required
to be demolished. Maneka Gandhi case.
3. Legislative function and policy matters- BALCO case. It is well settled
principle that leg function, primary and secondary is not subject to PNJ. (Madras
City Wine Merchants Assn v State of TN) It is so because policy making only has
creation of right and liabilities, there is adjudication involved so no need of PNJ.
4. Public interest- Hiranath Mishra v Principal Rajendra Medical College
Patna. In this case, the requirement that was dispensed with was cross-examination
for promoting public interest by protecting students.
5. Pure administrative actions without CQ- which does not involve
determination of any rights or liability. Useless formality theory. If someone has
availed an illegal benefit, then PNJ need not be followed because doing so will not
change anything anyway. There is a direct connection between PAA without CQ
and useless formality theory. Notice- schedule of exams- dates for submission of
projects etc is PAA without CQ.
6. Contempt of Court: it may be civil or criminal. Civil basically means
disobedience. Criminal means disrespect of a judge or court. A judge has the
power to punish when her order is not followed. Right to review judgment- cannot
claim PNJ.
7. Impracticability- where the authority deals with a large no. of person, it is
not practicable to give all of them with an opportunity. R. Radhakrishna v
Osmania Uni and Bihar School Examination Board v Subash Chandra.
8. Academic Evaluation- where academic performance of a student is not
satisfactory- authority may order removal of such student from education
institution without following PNJ. Jawaharlal Nehru University v BS Narwal.
Iqbal
Self importance
Administrative law in action-
Deals with organisation. Prescribes rules and regulations for general public and
internal governance, undertakes actions on behalf of states to deal with public.
Administrative law- official action
• Related to rulemaking action, adjudicatory action, rule application action
• Emphasis on effectiveness of control mechanism by which administrative
agencies are kept within their bounds. Eg. Advisory boards, preventive
detention laws,art 32,226
• Incidental actions. Eg. FERA, EPA, etc
Control Mechanism
1. Legislative review
2. Judicial review
3. Constitutional review
4. Administrative action
Judicial Review
Doctrine of public accountability, legitimate expectation etc.
Eg. allocation of petrol pumps
Eg. if Aadhar data leaks who is responsible? There are Rules etc and there has to
be accountability for the data authority

Do not read too much into certain things. Classic Iqbal.
Judicial Review
Written Constitutions- any law inconsistent is void. Courts can strike it down
Means
1. Reconsideration of decree or sentence
2. Review of any decision in exercise of power by public authorities
3. Issue a prohibitive order or prerogative or writs

Idea (the fuck?)
• Decision making process should be sufficiently followed by the admin
authority
• Judiciary is independent etc, can take unbiased decisions uninfluenced
from other State organs
Minerva Mills- Judicial Review is part of basic structure.
L. Chandra Kumar ‘JR in India comprises of JR of legislative action, and JR of
adm action as well
Problems in JR:
1. Can wider power be given adm in terms of decision making- this is
important to note in light of recent new economic policies
2. Trends are changing and more public sector undertaking are being given to
private entities. There is laying off of public employees. Unless an adm
action is violative of constitution or arbitrary or mala fide, courts do not
interfere. Can we give that much power to private entities?
Administrative Action
Statutory or discretionary
Controls Inbuilts
Issues
1. Due deference- adm expertise. Can the specialist report on a particular
issue be set aside? For eg, a report on financial restructuring.
2. Paucity of time- should everything be decided by the courts? Can courts
decide everything? No, some deference has to given to the adm authority.
3. Judicial power to review: (i) stop unbridled executive function (ii) how
much of intervention
Purposes behind judicial review:
1. Has the authority exceeded its powers?
2. Commits any apparent error of law
3. Committed a breach of PNJ
4. Reached a decision which no reasonable tribunal would have reached
5. Abused its powers
BALCO case-
There was disinvestment of BALCO. The policy was of privatization and
liberalization.
1. Is it within the domain or scope of JR to embark upon an enquiry about
public policy?
2. Can’t strike down policy because it has urged that a different policy is
better.
3. Technical expertise- leave decision to those who are qualified to deal
4. Policy or action is inconsistent with the constitution
5. Rules framed which may be arbitrary or irrational or abuse of power,
proved.

Grounds of JR:
1. Illegality
2. Irrationality
3. Procedural impropriety
4. Proportionality
5. Legitimate expectations
6. Public accountability

Public accountability:
1. Check misuse of power by administration
2. Accountable: proper/efficient discharge of official duty
3. Premise: power given: authorities aspect of public trust doctrine
1. power: entrusted have checks and balances
2. govt property: subject to trust: used for public purpose
3. property not be sold: fair cash equivalent
4. property: maintained for particular types of uses
Forfeiture of properties earned by smuggling.
Accountability- doctrine of compensation (Nilabeti Bahera v Orissa)
S. 80 of CPC (Public accountability)
1. Notice to govt or a public offence if a suit instituted against them, in respect of
any acts done in official capacity
2. reconsider legal position or make amends without recourse to courts
3. public policy + advancement of justice
Aim should be to save public money and promote outside settlement instead of
coming to court.
- 2 months waiting period for govt to rethink+settle issues of anticipated
litigation
- Informally settle rather than contesting
- Avoid the cost on public exchanger
- Salem Adv Bar Assn v UoI

Doctrine of legitimate expectations
- Public: not able to justify claims on law
- Relies: Article 14 (abhors arbitrariness+insists on fairness in adm
decisions)
- Supplement: PNJ+checks abuse of adm powers+ unreasonableness


 RIGHT TO INFORMATION

Original authentic information can be sought under RTI. However, explanation of
acts or questions related to interpretation cannot be asked for. Questions of ‘why’
and ‘how’ cannot be answered. Only existing information can be supplied.
Historical perspective
Refers to various UN conventions and international agreement. Sweden is said to
be the source of this right where it was brought as freedom of information as early
as 1766. All SAARC countries other than Bhutan have implemented right to
information act. There are other conventions such as UN Conventions.
Essentials of RTI
1. Maximum disclosure
2. Obligation to publish- convenient dissemination of public information, it
could be through various modes
3. Promotion of open governance
4. Limited scope of exceptions (given in S.8, S.9 and S. 24 in RTI Act)
5. Process to facilitate access, the process should be very low and affordable.
Process should be simple. The cost right now is different in different states
even though the RTI Act states it to be 10 rs and even that is exempted for
BPL. In a lot of countries, information is cost free and available openly.
6. Disclosure takes precedence (overriding effect). RTI law must supersede
other statutory instruments, i.e it should have an overriding power.
7. Protection of whistleblowers. This is something we are still grappling with.
This kind of protection is not given in the RTI Act and even the
Whistleblower Protection Act does not provide effective protections.
Several instances of murders of RTI activists have come out.
In case of S. 8 and S.9, subject matter exceptions but in S. 24 there is exemption to
institutions. Right now, 26 institutions are protected and are given in the second
schedule.

Appropriate govt and specific institutions can frame rules under RTI Act.
State govt of West Bengal has fixed 300 rs for RTI application fee. Similarly,
Rajasthan has 500 Rs. This can be challenged in court for restricting access to
information and for being ultra vires the parent Act since RTI Act states 10 rs as
the fee. It can be challenged primarily on unreasonableness.
Constitutional Recognition
State of UP v Raj Narain (1975)- Right to information was held to be as an
essential part of Article 19(1)(a). The people are the master and they have a right
to know what their servant (the govt) actually does.
“The people of this country have a right to know every public act, everything, that
is done in a public way, by their public functionaries. They are entitled to know
the particulars of every public transaction in all its bearing. The right to know,
which is derived from the concept of freedom of speech, though not
absolute, is a factor which should make one wary, when secrecy is claimed for
transactions which can, at any rate, have no repercussion on public security.”
SP Gupta case- It was held that right to information is a part of article 21.
United Nations Convention against Corruption
It was approved by GA in 2003 and it provides for public reporting in Article 10.
Article 10 is the most imp article of the convention. Public reporting means the
availability of information in the public domain, as this would reduce the chances
of manipulation of information. It also talks about protection of whistleblowers. It
has been ratified by India but the Whistleblowers Act does not adequately reflect
this convention and India has thus failed on that front.
Aims of the RTI
1. To sensitize people about the functioning of government
2. To ensure transparency and accountability in governance of PA. RTI Act
ensures accountability of PIOs and other officers in CIC.
3. To eradicate corruption from governance. Can RTI alone can eliminate or
control corruption? Look at demand and supply, it is people who generate
corruption.
4. To provide congenial atmosphere for development
‘Public Authority’

Section 2 states that this Act is applicable only on a public authority. A lot of
countries however do extend this right to private entities also. It is the duty of the
HoD to ensure compliance with RTI Act. Role of public authority includes pro-
active disclosure of info under S.4, suo motto disclosure of info, designation of
PIOs and APIOs, acceptance of fee and cost of info material, compliance of the
orders of the information commission.
Roles of appropriate government: They have to appoint the state commission and
frame rules.
Who can avail RTI?
Section 3 of the Act. A citizen can file RTI, that is the only requirement. Again,
more than 50% of the total nations, this right to information is extended to non-
citizens also. A person means a legal person.
Non application of the Act
Private insts not covered and many security related insts are not covered.
What is information? Read section 2(f). It includes information relating to any
private body which can be accessed by a public authority under any other law. It
means existing information. For eg., CBSE keeps its answer sheets for just three
months and an RTI after that cannot ask for the answer sheets.
In case of creation of public records, it is the Public Records Act that regulates of
all this.
Rights under the RTI
Section 2 (j) Right to information" means (i) inspection of work, documents,
records; (ii) taking notes, extracts or certified copies of documents or records; (iii)
taking certified samples of material; (iv) obtaining information in the terms of
diskettes, floppies, tapes, video cassettes or in any other electronic mode or
through printouts where such information is stored in a computer or in any other
device
Khanapuram Gandaiah Administrative Officer & Ors
1. No info on justifictions from courts
2. No interpretation of info
3. No creation of info
4. No modification
5. No opinion can be sought
6. Existing information only, not ‘why’ and ‘how’ questions
Can compilation of information be done? Yes, and that will not amount to creation
of info, but only collection of info.
Format of RTI- according to central rules, there is no such format but there might
be state rules. Application cannot be rejected on the mere basis of format.
CBSE v Aditya Bandhopadhyay (Landmark case)
Allows for access to answer sheets provided they are available. Answer sheets
cannot be treated as confidential. There is a right to inspection. No re-evaluation is
allowed under RTI. Re-evaluation is a grievance and the RTI Act does not deal
with that. No details of the examiner can be sought.
The Institute of Chartered Accountants of India v Shaunak H. Satya
There is an express bar on the jurisdiction of civil court from entertaining issues
arising out of RTI Act.
How can RTI be availed?
Section 6. If the ID card is asked for, you have to submit it. There is no need to
give a justification by the RTI applicant as RTI is a fundamental right. There
cannot be a oral application.
Refusal to accept application
Accompanying fee has to be there.
Rule 5: exemption from payment of fee-- for BPL families. Certificate needed.
You can file for petition if information is not supplied within the specified
deadline and there is a right to file first appeal and writ petition.
Should always know the details of the PIO before filing RTI.
Third Party information
Section 2(n). In interest of larger public interest, individual interest can be
superseded. If you seek info about some third person, such info if has been
provided by third party and it has been treated as confidential then the route of
section 11 will be followed. Section 11 deals with the process when information
related to third party and treated as confidential.

There are Absolute exemption and qualified exemption. Read Section 8(1).
Absolute:
1. National security
2. Contempt of court or has been expressly denied by a court
3. Breach of privilege of the parliament or state leg
4. Would put the life of someone in danger eg an informant of the police
5. Impede investigation of prosecution of any offence
Qualified:
1. Trade secrecy
2. Fiduciary relation
In this one case, the PIO transferred the application to the senior. PIO does not
have any discretionary power, he is required to give justification for rejecting RTI
application.
 Administrative tribunal
They perform QJA.
Bharat Bank v Employees case- Supreme court discussed whether labour courts
are QJA?
Define ‘tribunal’: are adm bodies outside the hierarchy of courts for the purpose of
adm disputes.
Tribunals are always created under specific legislation. For example, Adm
Tribunal Act, 1985. These tribunals exercise jurisdiction on the basis of that parent
Act. They do not deal with disputes in general, but only specific disputes.
Bharat Bank Ltd v Employees of Bharat Bank (imp)
---
Proceedings in front of such tribunals are ‘deemed’ judicial proceedings. There are
powers under IPC that are available to the tribunals, and for the purpose of these
sections, a tribunal is a judicial body. For eg, Section 193 of IPC, Section 345, 346
of CrPC.
1. Legal status of Tribunals
A tribunal is only a quasi judicial authority. Cannot be treated as civil court in a
real sense.
Important cases for this difference:
• SP Sampath Kumar v UoI (read for the purpose of understanding this
distinction).
it was held that though judicial review is the basic feature of the
Constitution, the vesting of the power of judicial review in an alternative
Institutional Mechanism, after taking it away from the High Court, would
not be violative of the basic structure of the Constitution, so long it was
ensured that the alternative mechanism was an effective and real substitute
for the High Court.
• L. Chandra Kumar v UoI (same tribunal v civil court).
found that the Tribunals under Article 323A cannot be substitutes to the
High Court as their performance was not satisfactory and also because they
leave the litigants with only one remedy under 136 by the way of appeal to
the Supreme Court which is costly affair. It held that the jurisdiction of the
Tribunals would be subject to the review of the High Court under Articles
226/227. This would serve two purposes; one it will ensure that frivolous
claims would be filtered out through the process of adjudication in the
Tribunal and two, the High Court will not lose its power of judicial review.
They will function as a supplementary body and all such decisions of the
 Tribunals will be subject to the scrutiny before a Division Bench of the
respective High Courts.
• Para 12 of UoI v President, Madras Bar Assn.
2. How far are tribunals different from court
All tribunals are courts but all courts are not tribunals. Tribunals are courts in a
liberal sense.
There are more than 100 adm tribunals in India right now and most of them are
headed by retired judges. This is against the mandate of creation of these tribunals.
There is informal process in tribunals but judges when appointed become super
technical and defeat the purpose of the tribunal. There is judicialization of the
tribunals in India. Tribunals have become a post-retirement scheme for judges
basically. Instead, we should have professssssssssionals.
Namit Sharma v UoI (2013)- judges confused. According to the Court, CIC was a
judicial authority, so therefore, CIC was required to be headed by a Supreme
Court judge. This was an error committed by the court, wherein judges created
jobs for themselves.
The basic objective of creation for tribunals:
• Speedy and economical justice. For eg, application fee is around 50rs, there
is no requirement of a lawyer, there is informal process based on PNJ.
• Expertise adjudication
• Share the burden of courts. Without tribunals, the court system of India
would collapse. Law Commission however, this working on a report
recommending dissolution of such tribunals.
Classification of tribunal:
1. Domestic: created by insts to take care of internal disputes. For eg, Student
Grievance Redressal Committee.
2. Institutional/Administrative: created by the govt. to take care of specialised
subject matter. They are created outside the insts and they are not limited to
any specific insts.
Historical background:
Dicey was dead against tribunalisation because according to him such a system
would lead to discrimination. It would be against the mandate to rule of law,
which is everything should be subject to the court of law. He criticised the Droit
Administratiff system. However, we cannot survive without tribunals.
UK has Tribunals, Courts and Enforcement Act, 2007 which is a unique system
where one body regulates the appointment of all tribunals. In India, different
ministers are responsible for appointment of presiding officers. They have
employment tribunals and there is also employment appellate tribunal. Such
appellate system within tribunal system is not found in India.
France has the Droit Administratiff which takes care of the accountability of
public servants.
US has the Federal Administrative procedure Act, 1947.
Historical development of the Adm tribunal act, 1985
1. ARC, 1966: Adm Reforms Commission headed by Moraji Desai.
According to its recommendations, India should have specialised tribunals.
2. JC Shah Committee: also recommended independent tribunals for service
matter disputes
3. Siemens case (1976): recommended special tribunal for customs and excise
matters
4. Part XIVA was inserted by Const Amendment (1976), Article 323A and
323B. This constitutionalised the system of tribunals. However, tribunals
existed before this, eg Workers Compensation and Employees’ Insurance
tribunal.
Difference between Article 323A and 323B: Art 323A, adm tribunals only
for the purpose of service disputes and recruitment related matters. Article
232B is very wide on the other hand, it allows for tax tribunals, revenue
tribunals etc.
5. KK Dutta case: recommended specific tribunal for the purpose of service
matter
6. Adm Tribunals Act, 1985
How to read a statute:
1. Objective: to adjudicate disputes service and recruitment matters
2. Application and non-application
3. Jurisdiction: subject matter, territorial, pecuniary
4. Benefits
5. Violation
6. Powers and procedures
7. Miscellaneous
Process for the Adm tribunal Act is provided in Adm Tribunal Act Rules
Features:
 1. Composition: CAT (Central Adm Tribunal), SAT (state adm tribunal) and
JAT(Joint adm tribunal). Central govt is empowered to make these
tribunals. Different requirements for such different tribunals. For the SAT,
the State should make a recommendation to the central govt.
2. Jurisdiction:
a. Subject matter jurisdiction:
Section 3(p) along with Section 14 for CAT’s jurisdiction.
3(p)+S.15 for SAT and
3(p)+S. 16 for JAT.
Adm tribunals can decide on service matter has been defined under S. 3(p) and
recruitment matters. Disputes should be connected to appointment to a
state/central position.
CAT deals with disputes related to central govt posts. In case of service matter, a
person must hold a civil post. In recruitment related matter, there is no such need
of a civil post.
17 benches of CAT. In Assam we have Joint AT (JAT). Jurisdiction- Civil Courts
and overriding powers
SAT can be used to take care of matters of state govt employees and vice versa.
There should be a notification in the gazette before est of a tribunal. JAT for more
than one state.
Read Section 4, 5 and 6 of the Act.
Section 5: Composition of the tribunal. One judicial and one admin member
b. Territorial Jurisdiction
17 divisions of CAT. Chandigarh CAT takes care of J&K, Himachal Pradesh, etc.

Not applicable to J&K- Can central govt employees in J&K take benefit of this
Act and approach CAT Chd? CAT has all India jurisdiction and there is no
exception to J&K. The moment she fulfils the requirement of a civil post and the
dispute is related to service matter, she can approach CAT chd.
But SAT and JAT jurisdiction does not apply to J&K
KVS Sangathan v Shubas Sharma
It was clarified that a central govt employee employed in J&K is entitled to avail
the benefits of this Act.
Non application of the Act:
This Act is not applicable to armed and defense forces of the Union, i.e combatant
member.
Also not applicable to retired personnel.
It duration of the employment is irrelevant for the purpose of approaching an AT.
It is only important for determining damages etc.
There is also no such exclusion based on salary or designation.
The Act does not given a definition to ‘civil post’.
State of Assam v Kanik Chandra Dutta 1967 (5 judges)
There must be a civil post. Characteristics of a civil post:
• There must be power to select and appoint
• Obligation to pay for the remuneration. Remuneration must be paid from
the govt funds.
• Power to control (supervision)
• Power to dispense with the services (termination)
Contract of employment is a matter of fact. The facts are required to be proved.
Nature of employment, duration are not so relevant.
State of Gujarat v Ramanlal Keshavlal 1980

“...neither politic nor possible to lay down any definitive test to determine when a
person may be said to hold a civil post...Several factors may indicate the
relationship of master and servant...no single factor may be considered absolutely
essential. The presence of all or some of the factors, such as, the right to select for
appointment, the right to appoint, the right to terminate the employment, the right
to take other disciplinary action, the right to prescribe the conditions of service,
the nature of the duties performed by the employee, the right to control the
employee's manner and method of the work, the right to issue directions and the
right to determine and the source from which wages or salary are paid and a host
of such circumstances, may have to be considered to determine the existence of the
relationship of master and servant. In each case, it is a question of fact whether a
person is a servant of the State or not.”
Exceptions:
People who cannot approach ATs:
1. Members of armed forces/combatant members. This includes CRPF, BSF,
CISF, ITBP but does not include Delhi Police. Civilians employed in army
can approach (held so in Narrottam Das v UOI 1994 2j). Retired
 employees of armed forces are also barred from the scope of this Act. Ved
Anand v DG 1988
2. Officer or servant of the SC or HC or subordinate courts.
3. Secretarial staff of legislatures of State, UT, Centre. This because they
have specific schemes and because of security reasons they have been
excluded.
Sec 3(q)- Service Matters
1. Remuneration (including allowances, pension and retirement
benefits)
2. Tenure including confirmation, seniority, promotion, reversion,
premature retirement and superannuation
3. Leave of any kind
4. Disciplinary matters. Conducting inquiry, not following PNJ,
curtailing rights
5. Any other matters whatsoever
Siemens Engg. Manufacturing co v UOI 1976
Suggested by SC that we need to have special court to deal with excise and
customs laws (laid foundation of admin tribunals)

What is the remedy available to aggrieved persons?
L Chandra Kumar v UOI (Para 93-100)
Many tribunals have been closed down after this decision. Court held that
tribunals are not a replacement to courts, but are only aiding the courts and are
therefore subordinate to the high courts. The SC modified the Constitution of India
by this decision. Deviation from Sampath Kumar case, which held that these
tribunals are equal to HCs. Now the SC said in L Chandra Kumar that these
tribunals are subordinate to HCs.
There is no provision for appeal in Administrative Tribunals Act. SC judgement
says appeal shall lie to a division bench of HC under 226. Person cannot directly
approach SC under 136. Person has to go to the HC first. In this case, 136
becomes redundant and by laying down this route, the Court modified the route to
SC as was laid down by the constitution.
Modified Art 323A(2d) and Article 323x of the Constitution even though judicial
review is part of basic structure.
Sampath Kumar has held that tribunals had power to determine constitutionality of
statutory provisions including parent Act. According to L Chandra, AT can
determine the constitutionality of primary and secondary legislations but cannot
determine the constitutionality of its own parent Act. If such power is given to AT,
the rule against bias will be violated. This was the justification given in L.
Chandra Kumar.
Must compare historical development through these judgements.
Secretary CBDT v Shyam Sunder 2001
Reward under scheme: ex gratia payment. It was like a reward scheme started by
the department so the tribunal said that it would not fall under ‘remuneration’ for
the purpose of subject matter jurisdiction under Section 14.
Dr H Mukherjee v SK Bhargwa 1996 (Tortious liability of govt servants)
Claiming damages for victimisation is not a part of subject matter, civil court is
appropriate. For tortious liability cases, go to civil court.
Public funds-
It is an important necessity. Cases related to public/private funding:

1. UoI v Deep Chand Pandey 1992 3J
2. UoI v Chote lal and others 1998 2J
3. State of Karnataka v Ameerbi 2006 (related to angadwadi workers, whether
they can be treated as employees of the state. Similar question would come
up in MNREGA. Look at the requirements, such as there has to be a civil
post)
Civil post (requirements)- look at whether there is a contract of employment
between the person and the state. This is a matter of fact.
In a case where the CSD employees were paid out of local funds and employed by
the local unit, it was held that they did not hold a civil post.
Aslam judgment- the local canteen employees were employees of the government.
(overruled)
Main assessment is whether paid out of private or public fund.
c. Pecuniary jurisdiction
There is no specific restriction wrt pecuniary jurisdiction of an AT. It can award
any amount of back-wage.
Types of applications:
1. Original application
The process, who can file, the place of filing. Can a PIL be filed before an AT?
No, application can be filed only by the aggrieved person.
Dr. Duryodhan Sahu v Jitendra Mishra
Who can approach the AT?
Read Section 19 which says that a person aggrieved by the order passed by a
competent authority. The two main components: “aggrieved person” and “by an
order”.
Who is the aggrieved person?
A person who held a civil post.
“Against an order”- Read Section 3(p) to see what is a service matter related
dispute. It could be about change of date of birth, seniority etc.
Whether a single application can be filed by a group of affected parties?
Yes, and the requirements for the same: they should all be aggrieved and the
complaint should be against a common employee. Read Section 19 for the purpose
of filing original application. Read 4,5,6 for the format of the application.
Suo Motto issues:
No, cannot.
Appropriate place for filing of the application?
Should apply principles that regulate CPC. Read Rule 6.
Applications are filed before the registrar of the tribunal. When person is in
employment?
1. Where the person is in employment- the place of employment or where the
cause of action has partly or wholly arisen
2. When the person is not in employment (that is in case of termination)- the
place will be residence, i.e where he ordinarily resides
Read Section 20, 21 and 22.
Maintainability:
Should have exhausted alternative remedy as provided in S. 20. Read S. 20.
Time limit:
Read S. 21.
The tribunal has the discretionary power to condone the delay.
Conditions for condonation of delay-
1. Explanation should be there
2. The explanation should be reasonable.
Delegation of powers of CAT, SAT, JAT:
No, these powers can be abdicated or delegated.
DB Gohil v UoI (2010)- case deals with exhausting alternative remedy
The person shall ordinarily exhaust alternative remedy.
“Section 20(1) of the Administrative Tribunals Act, 1985 (`Act’ for short)
provides that the Tribunal shall not ordinarily admit an application unless it is
satisfied that the appellant had availed of all the remedies available to him under
the relevant service rules as to redressal of grievances.”
CAT. SAT. JAT deal with informal process. When the application is rejected, a
justification has to be given. There has to be a speaking order. PNJ have to
followed if the application is admitted. Legal practitioner are permitted to
participate.
Requirements:
1. Notice (asking the parties to submit necessary documents)
2. Hearing (involves cross examination and submission of the documents)
3. Can also hold an inquiry (this will be a part of adjudication)
Can the AT file an ex parte order? Yes. they can also set aside such an order. Read
S.22.
Power to review- on (i) procedure (ii) substantive, i.e, on merit.
There is a provision under S. 22 empowering them to review their decisions on
merit. The Act does not have any provision for appeal.
Grounds on which power to review is available:
1. Discovery of new and important facts
2. Mistake or error apparent on the face of record
Application of doctrine of res judicata to ex parte order? Find out.
Position for transfer: can be done through application under S. 25 and the tribunal
also has suo moto power.
Power to review is not available suo moto.
Contempt powers:
Read S. 17. There is express provision which allows the tribunal to exercise
contempt powers. This power was not discussed in L. Chandra Kumar.
There are five kind of applications that can be submitted.
1. Original
 2. Transfer
3. Review
4. Contempt
5. Miscellaneous
Suo Moto power is there in transfer and contempt but not in review.
Power to determine constitutionality
JB Chopra v UOI 2j
Upheld in SP Sampath Kumar v UOI
Modified in L Chandra Kumar 1987 7 judges
Issue
RR Pillai v Commanding Officer SC 2010
Employees of Army Canteen (Unit Run Canteen) were paid out of local fund
generated out of private resources. Held that they were not employees of UOI.
Contempt of Court power
CAT Contempt of Court Rules 1982
T Sudhakar Prasad v Govt of AP 2001 3j [2001 1 SC 204]
Court asked if L Chandra Kumar case diluted the power of ATs to punish for
contempt.
Court held that contempt powers had not been diluted.
Can civil court take cognisance of service matter dispute involving section 3p?
There is an express bar under Section 28. L Chandra Kumar held it unconst to the
extent that it barred juris of HCs under 226.
SS Rathore v State of MP 7j 1989
• For condonation of delay: There must be explanation
• Explanation must be reasonable
State of Karn v SM Kottaraiya 1996 (also upheld the same)
Section 21

• Condonation is available provided that conditions are fulfilled

Ex Parte Order
AT has power to pass ex parte orders (EPO) and set aside EPO. In case EPO is
passed on merit, where AT has all the documents, then there is an application of
doctrine of res judicata. Then AT cannot set aside the EPO, then it will be subject
to judicial review.

Saroja v Chinnusamy 2007 2j
Para 7
Annappa v State of Karnataka 1999 2j

Recruitment Related Issues
No civil post required in matters of recruitment/appointment related matter, only
in case of service related matters.
Govt of India v Ravi Prakash Gupta 2010 2j
• Civil services
• Benefits under disabled persons provisions

---------
Judicial Review
Mode of control

Review v JR: Review done by the same court, through some

JR is always done by higher courts. Appeal is also a part of JR.

Art 32 and 226 have been treated as part of basic structure.

Grounds for JR:
1. Illegality- excess of jurisdiction
2. Irrationality- Wednesbury test
3. Procedural Impropreity- non application of PNJ, non-adherence to process
etc
4. Proportionality (eg. Ranjeet Thakur case)
5. Legitimate expectation- India recognises only legitimate expectations in
procedural form, and not substantive form (eg. if some benefits to
 employees are discontinued, that is subs legit exp and that is not protected
in India, UK and US do)
Person may approach HC for action being unreasonable, but HC cannot
direct an agency to continue with a scheme.
Legitimate expectations not available wrt statutory provisions
There is a difference bw legitimate expectations and promissory estoppel

Paper
1-2 para brief intro of the concepts
List out requirements (all reqs) of the concept
And then explain and apply relevant requirements
Dont be casual - eg. I dont agree with this etc. State reasons for disagreement

Books- Thakker
Read pertinent judgments

For 10 mark questions, list all components

Name Year Content

Dr. Bonham v College 1610 one of the first cases to have addressed lack of
of Physicians Court of principles of natural justice in an act
Common Pleas

William Marbury v 1803 Delivered by John Marshall, Chief Justice US

James Marrison
US Supreme Court
Supreme Court. This case is specific to judicial
review.
There are 5 grounds for review- illegality,
irrationality/unreasonableness, procedural
impropriety, proportionality, legitimate
expectations.

CCSU v Minister for 1984 Legitimate Expectations ground for Judicial

Civil Services UK Review developed by UK House of Lords.
House of Lords
Menaka Gandhi v Union 1978 Administrative law deals with primary and
of India 7 judges secondary legislation and it is a part of public law.
(will add more)

Ridge v Baldwin UK 1963 All administrative actions affecting rights of

House of Lords individuals prejudicially will require observance of
PNJ. Material deprivation.

IR Coehlo v State of 2007 Judicial review is part of the basic structure of the
Tamil Nadu (9 judges) Indian Constitution

State of Orissa v Dr. 1967 It was held that inquiry involves civil consequences
Bina Pani Dei (2 so there was a requirement of PNJ which was not
judges) followed. Facts: Some anonymous complaints were
submitted and she was not given a chance to take
part in the inquiry. She challenged the inquiry
proceedings. Date of birth was changed to make her
retire early.

AK Kraipak v UoI: (5 1969 Selection committee member was also a candidate.

judges) He topped the list. There was a clear violation of
‘rule against bias’. The action here involved civil
consequences. In appointments, there is a
requirement of speaking order, no backdoor entry
etc.

Province of Bombay v 1950 Important judgement: Justice SR Das- (what is

Kushaldas S. Advani: quasi judicial action) para 160
(6 judges) 1. There must be a lis (involving functioning of state
organ)
2. Must have authority
3. Only adjudication can be done, not legislation
4. Due process must be followed
5. Duty to act judicially

Mohinder Singh Gill v VR Krishna Iyer (para 71)

CEC (5 judges) 1978

“ 'Civil consequence' undoubtedly cover
infraction of not merely property or personal
rights but of civil liberties, material deprivations
 and non-pecuniary damages. In its
comprehensive connotation, everything that
affects a citizen in his civil life inflicts a civil
consequence.”

State of AP v SMK 1973 para 3

Parshurama Gurukul
1973 SCC 232, 2 judges Appointment of non-hereditary trustees is QJ or
PAA-CQ?
What is nature of appointments to public service?
Held that appointment of non-hereditary trustees is
PAA. Speaking order is required in cases of QJA
not PAA.
The case did not discuss AK Kraipak, which
held that public appointments is PAA CQ and
PNJ must be observed. Speaking order is
required. Case is per incuriam.

UOI v Raghubar Pal 2018 Justice Khanwilkar (2018)

Singh 3 judge
Para 8: If someone is appointed through backdoor,
must leave through backdoor.

UoI and others v Ram 2018 “The disciplinary proceedings are quasi-judicial
Lakhan Sharma, (2 proceedings and Inquiry Officer is in the position of
judges) an independent adjudicator and is obliged to act
fairly, impartially. The authority exercises quasi-
judicial power has to act in good faith without bias,
in a fair and impartial manner.” (Para 23)

Neelima Mishra v Dr 1992 Section 31(8)(a) UP State Universities Act.

Harvindar Kaur: 2
judges Lucknow University invited application for
reader in psychology, specific qualifications- phd
or high quality publications. Appellant did not
have phd, had high quality publications, selection
committee recommended her name to Executive
Council. EC rejected application on grounds that
she had no phd degree. Provision s31(clause 8.a)
of UP State Universities Act 1973.
If there is a dispute with the EC, matter must be
referred to Chancellor.
Chancellor without issuing any speaking order
approved the decision of the selection
 committee.
This action of chancellor was challenged. The
High Court set aside the Chancellor’s action on
the ground that the decision involved
determination of rights and liabilities. Appellant
reached the SC over the nature of action-- does it
involve civil consequences?
The role of the chancellor is to take appropriate
action. According to respondent the action was
quasi judicial action whereas the appellant said
that it was pure adm action and thus there were
procedural requirement. The Supreme Court
said it was PAA without CQ:

“An administrative function is called quasi-
judicial when there is an obligation to adopt the
judicial approach and to comply with the basic
requirements of justice. Where there is no such
obligation. the decision is called 'purely
administrative' and there is no third category.”
para number

“The power of the Chancellor under Section
31(8)(a) is purely of administrative character and
is not in the nature of judicial or quasi-judicial
power. No judicial or quasi-judicial duty is
imposed on the Chancellor and any reference to
judicial duty, seems to be irrelevant in the
exercise of his function. The function of the
Chancellor is to consider and direct appointment
of a candidate on the basis of the relative
performance assessed by the Expert Selection
Committee and in the light of the opinion, if any,
expressed by the Executive Council. His decision
nonetheless is a decision on the recommendation
of the Selection Committee. Such a power cannot
be considered as a quasi-judicial power.” para
number

Ganpat Singh Ganga 2013 The basic qualification was MCA but the said
Ram Singh v Gulbarga person had done M.Sc and they were appointed. So
University 2 judges this appointment was stuck down after 10 years
 Teghshri Gagh and 2007
others v Prakash
Prishuram Patil and
ors 2 judges (Bench
SB Sinha and M Katju)

Mangalam Organics 2017

Limited v Union of
India 2017 7 SCC 221
2 judge bench

Angad Das v Union of 2010 Facts: Constable in CRPF, issues with the date of
India (2010) 3 SCC birth and it was found to be false. The
463 2 judges commandant ordered the compulsory retirement
of the constable with pension benefits. He
submitted his request application to DIG of CRPF
requesting him to reconsider his termination
taking into account of his five unmarried
daughters, and the DIG converted that application
to appeal and modified it to no pension. Preferred
appeal to HC, dismissed and finally it reached the
SC.

Issue: What was the authority of the DIG to
convert the application into an appeal? There was
no DP available. Application could not have been
converted to appeal by DIG. SC set aside the
modification by the DIG of removing pension
benefits

Clarient International 2004 Para 26-29

v SEBI (AIR 2004 SC
4236) 3 judge bench When any criteria is fixed by a statute or by a
policy, an attempt should be made by the
authority making the delegated legislation to
follow the policy formulation broadly and
substantially and in conformity thereof.

The modern sociological condition as also the
needs of the time have necessitated growth of
administrative law and administrative tribunal.
Executive functions of the State calls for exercise
 of discretion. The executive also, thus, performs
quasi judicial and quasi legislative functions and,
in this view of the matter, the administrative
adjudication has become an indispensable part of
the modern state activity.

Administrative Tribunals may be called a
specialized court of law, although it does not
fulfil the criteria of a law court as is ordinarily
understood inasmuch as it cannot like an ordinary
court of law entertain suits on various matters,
including the matter relating to the vires of
legislation. However, such a Tribunal like
ordinary law courts are bound by the rules of
evidence and procedure as laid down under the
law and are required to determine the lis brought
before it strictly in accordance with the law.

O. Hood Phillips in his 'Constitutional and
Administrative Law', Eight Edition, at page 686
under the Chapter "Tribunals" has stated as
follows :-

"These are independent statutory tribunals whose
function is judicial. The tribunals are so varied in
composition, method of appointment, functions
and procedure, and in their relation to Ministers
on the one hand and the ordinary courts on the
other, that a satisfactory formal classification is
impossible."