A. K. Kraipak & Ors. Etc. v. Union Of. India & Ors.

Judgment

Hegde, J. These petitions are brought by some of the Gu.et· ted Officers serving in the forest department of the State of I ammu and Kashmir. Some of th.:m are serving as Conservators of Forests, some as Divisional Forest Officers and others as Assistant Conser vators of Forests. All of them feel aggrieved by the selections made from among the officers serving in the forest department of the State of Jammu and Kashmir to the Indian Forest Service, a service constituted in 1966 under s. 3(1) of the All India Services Act, 1951 and the rules framed thereunder. Hence they have moved this Court to quash notification No. 3/24/66-A-15(1V) aated the 29th July 1967 issued by the Government of India, Ministry of Home Mairs, as according to them the selections noti fied in the said J!lotification are violative of Arts. 14 and 16 of the Constitution and on the further ground that the selections question are vitiated by the contravention of the principles of natural justice. They are also challenging the vires of s. 3 of the All India Services Act, rule 4 of the rules framed under that Act and Regulation 5 of the Indian Forest Semce (Initial Recruitment) Regulations 1966, framed under the aforementioned rule 4.

Section 2(A) of the All India Services Act, 1951 authorises the Central Government to constitute three new All India Services Cmtral Government shall after consulting the Government of the States concerned including that of the State of-Jammu and Kash mir to make rules for the regulation of recruitment and the con ditions of service of persons appointed to those All In~ia Services. Sub-s. ~2) of s. 2 prescn1>es that all rules made under that ~ "shall be laid for no< less than fourt,een days before Parliament '!I as soon as possible a!ter Jhey are mide. and shall_ be subject to such modificatiOns, whether by way pf repeal or amendment, as Parliament may make on a motion ·made during the se,,sion in which they are so laid."

In punuance of the power given under s. 3, rules for the :re cruitment to the Indian Forest Senjce were made In 1966- Indian Forest Service (Recruitment) Rules, 1966. The only role relevant for our present purpose is rule 4(1) which reads :

"As soon w; may be. after the commencement of these rules, the Central Government may recruit to the service any person from amongst the members o( the State Forest Service adjudged suitable in accordance with such Regulations as the Central Government may make in consultation with the State Governments and the Commission."

The Commission referred to in the above rule is the Union Public Service. C".ommission. The Proviso to that sub-rufe is not relevant for our present purpose. We may next come to the Regulations framed under rule 4(1 ). Those Regulations are known as the Indian Fqrest Service (Initial Recruitment) Regu lations, 1966. The}' are ileemed to have come into" force on July 1, 1966. Regulation 2 .defines certain expressions. Regiilation 3 provides for the constitution of a special selection board. It says that the purpose of 111aklng selection to State cadre, the Cen tral Government shall constitute a special selection board consist ing of the Chairman of the Union Public Service CC1mmission or hii noini¥e, the lnSpector General of Forests of the Government

ao of India, 6fficer of the G~mment of Tndia not below the rank of Joint Secfetary, the Chief Secretary t<I the State Gov'i°.ment concerned or the Secretary of that Govemment dealing with the forests and the Chief Conservator of Forests of the State Govern ment concerned. Reguiation 4 prescribes the condition• of eligi

a bility. That Regulation contem~lates the formation of Service in the sen;or.scale and a service m the junior scale. Regulation 5 is important: for our present purpose. It deals with the prepara tion of the list of suit:ible candidates. It t'eads :

"(1) The Board shall prepare, in the order of prefer ence, a list of such 'officers of State Forest Service who posts in the senior and junior scales of the Service.

(2) The list prepared in accordance with sub-regu lation ( 1) shall then be referred to the Commission for advice, by the Central Government along with :- (a) the records of all officers of State Forest !trv ice included in the list;

(b) the records of all other eligible officers_ of the State Forest Setvice who are not adjudged suitable for inclusion in the list, together with the reasons .as relist; corded by the Board for their non-inclusion in tile and (c) the observations, if any, of the Ministry of Home Affairs on the recommendations of the Board.

3. On tecc!ipt of the list, along witil the other docu ments receiVed from the Central Government the Com mission shall forward its recommendations to that Gov ernment."

Regulation 6 stipulates that the officers recommended by th!l Commission under sqi>-r. (3) of Regulation 5 shall be appoint ed to the service bfthl' Ctntral Government subject to the avail

.ability of vacancies in !he State cadre concerned.

In pursuance of the Regulation mentioned above, the Cen tral Government ,collstituted a special selection board for select ing officers to the nt(!i{ln Forest Service in the senior _scale as well as in tlie junior si;ale from . tho~e serving in the forest department of the State otJ alflmu add Kashmir. The nominee of the Chair

of the Union Public Service Commission, one M. A. Ven ltataraman was, the {::hairman of the board. The other members · of the board were· .the Inspector General of Forests of the Gov ernment of India, one of the Joint Secretaries fo the Government of India, the Chief Secretary to the St!llle G<>veminent cif Jammu and Kas!l!Dir and Naqishbund, the Acting Chief Con

servator of Forests ,of Jarnmu 'and Kashmir.

The selection board met at Srinagar in May, 196 7 and se lected respondents 7 to 31 in Wtit Petition No. 173 of 1967. . The cases of respondents Nos. 32 to 3 7 were reserved for further con sideration. The selectio.ns in question are said to have been made solely on the basis of the r~cords of officers. Their suitability-:was not tested by any examination, written or oral:. Nor were tliey interviewed. For several years before that selection the ad\>crse entries made in the. character rolls of the officers had not been structions issued by the Chief Secretary of the State. Sometime after the afore-mentioned selections were made, at the instance of the Government of India, the adverse remarks made in the course of years against those officers who had not been selected were communicated to them and their explanations called for. Those explanations were considered by the State Government and on the basis of the same, some of the adverse remarks made against some of the officers were removed. Thereafter the selec tion board reviewed the cases of officers not selected earlier as a result of #hich a few more officers were selected. The selections as finally made by the board were accepted by the Commission. c On the basis of the recommendations of the Commission, the impugned list was published. Even after the revieYt Basu, Baig and Kaul were not selected. It may also be noted that Naqish bund's name is placed at the top of the list of selected offi cers.

Naqishbund had been j>l'Omoted as Chief Conservator of Fo rests in the year 1964. He is not yet confirmed in that post.

G. H. Basu, Conservator of Forests in the Kashmir Forest Ser vice who is admittedly senior to Naqishbund had appealed to the State Government against his supersession and that appr.al was pending with the State Government at the time the impugned se lections were made. M. I. Baig and A. N. Kaul Conservators of Forests also claim that they are seniors to Naqishbund but that fact is denied by Naqishbund. Kaul had also appealed against his alleged supersession but it is alleged that appeal had been rejected by the State Government.

Naqishbund was also one of the candidates seeking to be 5Clected to the All India Forest Service. We were told aod we take it to be correct that he did not sit in the selection board at the time his name was considered for seleCtion but admittedly he did sit in the board and paltlcipate in its deliberations when the names of Basu, Baig and Kaul, his rivals, were considered for selection. It is further admitted that he did participate in the deliberations of the board while · preparing the list of selected candidates in order of preference, as required by Regulation 5.

The selection board was undoubtedly a high powered body. That much was conceded by the learned Attorney-General who appeared for the Union Government as well as the State Govern ment. It is true that the list prepared by the selection board was not the last word in the matter of the selection in ·question. That list alongwith the records of the oflicers in the concerned cm.Ire selected us well as not selected h:id lo be sent to the Miniswith its observations to the Commission and the Commission b.ld examined the recorlls of all the officers afresh before making .its ·recommendation. But it is obvious that the recommendations made by the selection board should have weighed with the Com mission. · Undoubtedly the adjudging of the merits Of the candi dates by the selection board was an extremely important step in !he process.

It was contended before us that s. 3 of the All India Services Act, rule 4 of the rules framed thereunder and Regulation 5 of the Indian Forest Service (Initial Recruitment) Regulations 1966 are void as those provisions confer unguided, uncontrolled and un capalised power on the concerned delegates. So far as the vires of s. 3 of the Indian Administrative Act is concerned, the ques tion is no more res integra. It is concluded by the decision of this Court in D. S. Garewal v. The State of Punjab and Anr. (') We have not thought it necessary to go into the question of the vires of rule 4 aiDd Regulation ~ as we have come to the con clusion that the impugned selections must be struck down for the reasons to be presently stated.

There was considerable controversy before us as to the nature of the power conferred on the selection board under rule 4 read with Regulation S. It was contended on behalf of the petitioners

that that power was a quasi-judicial power whereas the case for the contesting respondemts was that it was a purely administrative power. In support of the contention that the power in question was a quasi-judicial power emphasis was laid on the language of rule 4 as well as Regulation 5 which prescribe that the selections should be made after adjudging the suitability of the officers

belonging to the State service. The word 'adjudge' we were told means "to judge or dec;ide". It was contended that such a power is essentially .a judicial power and the same had to be exercised in accordance with' the well accepted rules relating to the exercise of such a power. Emphasis was also laid on the fact that the power in question was exercised· by a statu!ory body and a wrong exercise of that power is likely to affect adversely the careers of the officers not selected. On the other hand it was contended by the learned Attorney-General that though the selection board was a statutory body, as it was not required to decide about any right, the proceedings before it cannot be considered quasi-judic:ial; its duty was merely to select officers who in its opinion were suitable for being absorbed in the Indian Forest Service. According to

him the word 'adjudg'' in rule 4 as well as Regulation 5 means ''found worthy of selei:tion".

quui-judicial power is quite thin aad is bein~~~ulllly obli!C'Za! ed. For determining whether a power is an ' istrative power or a quasi-judicial power one hu to look to the nature of the power conferred, the perSOll or penona on whom it i.s conferred, the.framework of the law conferring that power, the consequen ces ensuing from the exercise of that power and the mllllJler in which that powei; is expected to be exercised. Under our, Con stitution the rule of law pervades over the entire field of adminis trltion, Every organ of the State under our Constitution is regulated and controlled by the rule of law, ln a 11·elfa!e State like ova, it is inevitable that the jlll'5idiction of the admjnistraiite bodie. is incceasing at a rapid rate. The concept ol nlle at law would lose its vitality if the instrumentalities of the State are not charged with the duty of discharging their functions in a fair and just manner. The requirement of acting judicially in essence is DOlhing but a requirement to act justly and fairly and not :ubi trarily or capriciously. The procedures which are considered in herent in the exercise of a judicial power are mercl y th Ole which facilitate if not ensure a just and fair decision. In recent ye&r$ the concept of quasi-judicial power has been undergoing a radical change. What was considered as an administrative power sollle Yl*J back is now being considered as a quasi-judicial power. n.e

following oblervations of Lord Parker C.I. in Rtf[na Y. Cri "'""" 11J/11Tits Compmsation Bliard, E:c. Plll1t IAl11(') are iilatructive.

"With regard to Mr. Bridge's second point I cannot think that Atkin, L.1. intended to confine his principle to cases in which the determination affected rights in the aense of enforceable rights. Indeed, ill the Electricity Commissioners case, the rights determined were at any rate not immediately enforceable rights since the scheme laid down by the commissioners had to be approved by the Minister of Transport and by resolutions of Parlia ment. The commissioners nevertheless were held amenable to tlle jurisdiction of this court. Moreover, as can be seen from Re:c. v. PO/ftmasttr-Gentral, E:c-partt Car michatl (1) and Rtx. v. Boycott E:c parte Keasley(•) the remedy is available even though the decision is merely a step as a result of which legally enforceable rights may be affected. , The position as I sec it is that the exact limits of the ancient remedy by way of ctrtlorari have never been and ought not to be specifically defined, They have varied court. Later its ambit was extended to statutory tri bunals determining a /is inter parties. Later again it extended to cases where there was no /is in the strict sense of the word but where immediate or subsequent rights of a citizen were· affected. The only canstant limits throughout were that it was performing a public_ duty. Private or domestic tribunals have always been outside the scope of certiorari since their authority is derived solely from contract, that is, from the agree ment of the parties concerned.

Finally, it is: to be observed that the remedy has now been extended, see Reg, v. Manchester Legal Aid Committee, Ex parte R. A. Brand & Co. Ltd.(') to cases in which the decision of an administrative officer is ooly arrived at after an inquiry or process of a judi cial or quasi-judicial character. In such a case this court has jurisdiction to supervise that process.

We have as it seems to me reached the position whe• the ambit of certiorari can be said to cover every caae in which a body of persons of a public· as opposed to a purely private or domestic character has to determine matters affectillg subjects provided always that it ha! , a duty to act judicially. Looked at in this way the board comes fairly .and square!)'., withi? the ~)'. j~dgment 1unsdiction of· this court. It 1s as Mr. Bndge said, 'a servant of the Crown charged by the Crown, by execu tive instruction, with the duty of distributing the bounty of the Crown.' It is clearly, therefore, performing public duties."

The Court of Appeal of New Zealand has held that the power · to make a wning order under Dairy Factory Supply Regulation 1936 has to be exetc~d judicially, see New Zealand and Dairy Board v. Okita Co-operative Dairy Co. Ltd.('). This Court in The Purtabpore Co. Ltd. v. Cane Commissioner of Bihar and Ors.(³ held that the power to alter the area reserved under the Sugar Cane (Control) Order 1966 is a qnasi-judicla! power. With the increase of the power of the administrative bodies it has be come necessary to provide guidelines for the just exercise of their power. To prevent the abuse of that power and to see that it does not become a new despotism, courts are gradually evolving ence to precedents. New problems call for new solutions. It is neither possible nor desirable to fix the limits of a quasi-judicial power. But for the purpose of the present case we shall assume that the power exercised by the selection board was an administrative power and test the validity of the impugned seleclions on that basis.

It is unfortunate that Naquishbund was appointed as one of the members of the selection board. It is true that ordinarily the Chief Conservator of Forests in a State should be considered - as the most appropriate person to be iJl the selection board. He must be expected to know his officers thoroughly, their weaknesses as well as their strength. His opinion as regards their suitability for selection to the All India Service is entitled to great weight. But then under the circumstances it was improper to have included Naquishbund as a member. of the selection board. He was one of the persons to be considered for selection. It is against all can0ns of justice to make a man judge in his own cause. It is true that he did not participate in the deliberations of the com mittee when his name was considered. But then the very fact that he was a member of the selection board must have had its own impact on the decision of the selection board. Further ad mittedly he participated in the deliberations of the selection board when the claims of his rivals particularly that of Basu was consi dered He was also party to the preparation of the list of selected candidates in order of preference. At every stage of this parti cipation in the deliberations of the selection board there was a conflict between his interest and duty. Under those circumstances it is difficult to believe that he could have been impartial. The real question is not whether he was biased. It is difficult to prove the state of mind of a person. Therefore what we have to see is whether there is reasonable ground for believing that he was likely to have been biased. We agree with the learned Attomcy General that a mere suspicion of bias is not sufficient. There must be a reasonable likelihood of bias. In deciding the question of bias we have to take into consideration human probabilities and ordinary course of human conduct. It was in the inlerest of Naqisbbund to keep out his rivals in order to secure his position from further challenge. Naturally he was also interested in safe guarding his position while preparing the fat of selected candi dates.

The members of the selection board other than Naqishbund. each one of. them separately, have filed affidavits in this Court !'WCaring that Naqishbund in no manner inftuenced their decision in .m aking the selections. In a group deliberation each member is likely to operate in a subtle manner. It is no wonder that the other members of the seiection board are unaware of the extent to which his opinion influenced their conclusions. We are unable to accept the contention that in adjudging the suitability of the

candidates the members of the board did not ha~e any mutual discussion. It is not as if the records snoke of themselves. We are unable to believe that the members· 0! selection board func tioned like computers. At this stage it may alo,) b~. noted that at the time the selections were made, the members of the selection board other than Naqishbund were not likely to have known that

c Basu had appealed against his supersession an:l that bi' _1ppeal was pending before the State Government. Therefore there was no occasion for them to dbtrust the opinion expressed by Naqishbund. Hence the board iin making the selections must necessarily have given weight to the opinion expressed· by Naqishbund.

This takes us to the question whether the principles of natural

justice apply to administrative proceedings similar to that with which we are concerned in these cases. According to the learned Attorney General those principles have no bearing in determining the validity of the impugned selections. In support of his conten tion he read to us several decisions. It is not necessary to exa mine those decisions as there is a great deal of fresh thinking on

. -the subject. The horizon of natural justice is constanlty expand ing. The question how far the principles of natural justice govern administrative enquiries came up for consideration before the Queens Bench Division in In re : H.K. (An Infant)('). There in the validity of the action taken by an Immigration Officer came up for consideration. In the course of his judgment Lord Parker, C.J. observed thus :

"But at-the same time, I myself think that even if an immigration officer is not in a judicial or quasi-judi cial capacity, he must at any rate give the immigrant an' opportunity of satisfying him of the matters in the subsejZtion, and for that purpose let the immigrant know what .his immediate impression is so that the immigrant can disabuse him. That is not, as I see it, a question of acting or being required to act judicially, but of being required to act fairly. Good administration and an hon est or bona fide decision must, as it seems to me, require not merely impartiality, nor merely bringing one's mind to bear on the problem, but acting fairly; and to the limited extent that the circumstances of any particular case allow, . and within the legislative framewotls: under extent do the so-called rules of natural justice apply, which in a c~se such as this is merely a duty to act fairly. I ap;:ireciate that in saying that it may be said that one is going further than is pcrmittt:d on the decided cases because heretofore at any rate the decisions of the courts do seem to have drawn a strict line in these matters according to whether there is or is not a duty to act judicially or quasi-judicially."

In the same case Blain, J. observed thus :

"I would only say that an imllligration officer having ~ssumed the jurisdiction grantct! by those provisions is in a position whe~e it is his duty to exercise that assum ed jurisdiction whether it be administrative, executive or quasi-j~dicial, fairly, by \\·hkh I mean applying his mind di;pas,;ionately to a fair analysis of the particular problem and the information available to him in analysing it. I( in any hypothetical case, and in any real case, this cnurt was satisfied that an immigration officer was not so doing, then in my vie·.v mandamus would lie."

In State of Orissa v. Dr. (Miss) Binapan; Dei and Ors.I') Shah,

J. speaking for the CDurt. dealing with an enquiry made as re gards the curre~t age of a gcivernment servant, observed thus :

"We think that such an equiry and decision were contrary to the basic concept of justice and cannot have any value. It is true that the order is administrative in character, but even an administrative order which in volves civil consequences as already stated, must be J[)ade consistently with the rules of natural justice after informing the first respondent of the case of the State "

The aim of the rules of natural justice is to secure justice or to put it negatively to prevent miscarriage of justice. These rules can operate only in areas not covered by any law validly made. In other words they do not supplant the law of the land but supplement it. The concept of natural justice has undergone a great deal of change in recent years. In the past it was thought that it included just two rules namely (l) no one shall be a judge in his own case (Nemn debet esse judex propria causa) and ('.!) no decision shall be given against a party without affording him a reasonable hearing (audi alteram partem). Very soon there after a third rule was envisaged and that is that quasi-judicial en· quirics must be held in good faith, v·ithout bias and not arbitrarily concerned was required by the law under which it functioned to act judicially there was no room for the application of tbe rules of natural justice. The validity of that limitation is now ques

tioned. If tbe Plll1><* of tbe rules of natural justice is to prevent miscarriage of justice 11ne fails to see why those rules should be made inapplicable to administrative enquiries. Often times it is not easy to draw the line tbat demarcates administrative enquiries from quasi-judicial enquiries. Enquiries which were considered administrative at <.>ne ~ime are now being considered as quasi

c judicial in charact«. ·Arriving at a just decision is the aim of both quasi-judicial enquiries as ·well as administrative enquiries. An unjust decision in an administrative enquiry may have more far reaching effect tban a decision in a quasi-judicial enquiry. As observed by this Coun in Suresh Koshy George v. The University of Kera/a and Ors. (¹} the rules of natural justice are not em bodied rules. What pl!fticular rule of natural justice should apply

to a given case must depend to a great extent on tbe facts and circumstances of lhat case, the framework of the law under which the enquiry is .. held and ti1c constitution of tbe Tribunal or body of persons appointed for that purpose. Whenever a com plaint is made before a court .tbat some principle of natural justice had been contravened tbe coun has to decide whether tbe obser

vance of that rule was necessary for a just decision on the facts of that case. .

I

It was next urged .b y the learned Attorney-General that after all tbe selection board was only a recomendatory body. Its .re commendations had filst to be considered by the Home Ministry and thereafter by the U.P.S.C. The final recommendations were made by the U.P.S.C. Hence grievances of the petitioners have no real .basis. ACcording to him while considering the validity of administrative actions taken, all that we have to see is whether the ultimate decision is just or not. We are unable to agree \\'ith the learned Attorney-General that the recommendations made by the selection board '\\lere of little consequence. Looking at the composition of the bqerd and the nature of the duties entrusted to it we have no dOl.lbt that its recommendations should have carried considerable ~ight with the U.P.S.C. If the decision of the selection board is held. to have been vitiated, it is -clear to our mind that the final recommendation made by the Commission must also be held to have been vitiated. The recommendations made by the Union :Public Service Commission cannot be dis associated from the selections made by the selection board which made to tbe decision in Regina v. Criminal Injuries Compensation Board Ex. Parle Lain(').

It was next urged by the learned Attorney-General that the mere fact that one of the members of the Board was biased against some of the petitioners cannot vitiate the entire proceedings. In this :onnection he invited our attention to the decision of this Court in Sumer Chand Jain v. Union of India and another(' J. Ther.:in the Court repelled the contention that the procedings of a departmental promotion committee w~re vitiated as one of the m~ml>~rs of that committee was favourab:y disposed towards one c of the selected candidates. The CjUestion before the Court was whether the plea of mala fides was established. The Court came to the conclusion that on the material on record it was unable to uphold that plea. In that case there was no question of any conflict between duty and interest nor any members of the depart mental promotion committee was a judge in his own case. The J)tlly thing complained of was that one of the members llf the promotion committee was favourably disposed towards one of the competitors. As mentioned earlier in this case we arc essentially concerned with the question whether the decision taken by the board can be considered as having been taken fairly and justly.

One more argument of the learned Attorney-General remains to be considered. He urged that even if we arc to hold that Naqishbund should not have participated fn the clcliberations of . the selection board while it considered the suitability of Basu, Baig and Kaul, there is no ground to set aside t!ie selection of other officers. According¹⁰ him it will be sufficient in the interest of justice if we direct that the cases of Basu, Baig and Kaul be re considered by a Board of which Naqishbund is not a member. Proceeding further he urged that under any circumstance no case is made out for disturbing the selection of the officers in the junior scale. We arc unable to accept either of these contentions. As seen earlier N aqishbund was a party to the preparation of the Select list in order of preference and that he is shown as No. I in the list. To that extent he was undoubtedly a judge in his own case, a circumstance which is abhorrent to our concept of justice. Now coming to the selection of the officers in the junior scale service, the selections to both senior sc.ale service as well as junior scale service were made from the same pool. Every offi. c« who had put in a service of 8 years or more, even if he was holding the post of an Assistant Conservator of Forests was eli gible for being selected for the senior scale service. In fact some than eight years of service had been selected for the junior scale · service. Hence it is not possible to separate the two sets of offi· cers.

For the reasons mentioned above these petitions are allowed and the impugned select·ions set aside. The Union Government and the State GovernmerJt shall pay the costs of the petitioners. V.P.S. Petitions.allowed.