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“The dividing line between an administrative power and a quasijudicial power is quite thin and is being gradually obliterated.”
(Section 2(a) of the All India Services Act, 1951(the Act), authorises the Central
Government to constitute three new All India Services including the Indian Forest Service.
Section 3 provides that the Central Government shall after consulting the Government of the
States concerned including that of the State of Jammu and Kashmir to make rules for the
regulation of recruitment and the conditions of service of persons appointed to those All India
Services.
In exercise of powers given under Section 3, the Indian Forest Service (Recruitment)
Rules, 1966 (the rules) for recruitment to the Indian Forest Service were framed.
Rule 4(1): “As soon as may be, after the commencement of these rules, the Central
Government may recruit to the service any person from amongst the members of the State
Forest Service adjudged suitable in accordance with such Regulations as the Central
Government may make in consultation with the State Governments and the Commission.”
The Indian Forest Service (Initial Recruitment) Regulations, 1966 were framed under
rule 4(1).
Regulation 5: “(1) The Board shall prepare, in the order of preference, a list of such
officers of State Forest Service who satisfy the conditions specified in Regulation 4 and
who are adjudged by the Board suitable for appointment to posts in the senior and junior
scales of the service.
(2) The list prepared in accordance with sub-regulation (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 Service included in the list;
(b) the records of all other eligible officers of the State Forest Service who are
not adjudged suitable for inclusion in the list, together with the reasons as recorded by the
Board for their non-inclusion in the list; and
(c) the observations, if any, of the Ministry of Home Affairs on the
recommendations of the Board.
(3) On receipt of the list, along with the other documents received from the Central
Government the Commission shall forward its recommendations to that Government.”
In pursuance of the above Regulation, the Central Government constituted a special
selection board for selecting officers to the Indian Forest Service in the senior scale as well as
in the junior scale from those serving in the forest department of the State of Jammu and
Kashmir. The nominee of the Chairman of the Union Public Service Commission, one M. A.
Venkataraman was the Chairman of the board. The other members of the board were the
Inspector General of Forests of the Government of India, one of the joint Secretaries in the
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Government of India, the Chief Secretary to the State Government of Jammu and Kashmir
and Naqishbund, the Acting Chief Conservator of Forests of Jammu and Kashmir.
The selection board met at Srinagar in May, 1967 and selected Respondents 7 to 31 in
W.P. No. 173/1967. The cases of respondents Nos. 32 to 37 were reserved for further
consideration. The selections in question were made solely on the basis of the records of
officers. Their suitability was not tested by any examination, written or oral. Nor were they
interviewed. For several years before that selection the adverse entries made in the character
rolls of the officers had not been communicated to them and their explanation called for. In
doing so quite clearly the authorities concerned had contravened the instructions issued by
the Chief Secretary of the State. Sometime after the aforementioned 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 selection board reviewed the cases of officers not selected earlier as
a result of which a few more officers were selected. The selections as finally made by the
board were accepted by the Commission. On the basis of the recommendations of the
Commission, the impugned list was published. Even after the review, Basu, Baig and Kaul
were not selected. It may also be noted that Naqishbund’s name is placed at the top of the list
of selected officers.
Naqishbund was promoted as Chief Conservator of Forests in the year 1964. He is not yet
confirmed in that post. G. H. Basu, Conservator of Forests in the Kashmir Forest Service
admittedly senior to Naqishbund had appealed to the State Government against his
supersession and that appeal was pending with the State Government at the time the
impugned selections were made.
Naqishbund was also one of the candidates seeking to be selected to the All India Forest
Service. The court was informed 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 participated 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.
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 along with the records of the officers in the concerned
cadre selected as well as not selected had to be sent to the Ministry of Home Affairs. The
court assumed that as required by Regulation 5, the Ministry of Home Affairs had forwarded
that list with its observations to the Commission and the Commission had examined the
records of all the officers afresh before making its recommendation. But the
recommendations made by the selection board should have weighed with the Commission,
the court held. Undoubtedly the adjudging of the merits of the candidates by the selection
board was extremely an important step in the process.
The petitioners serving as Conservators of Forests, Divisional Forest Officers and
Assistant Conservators of Forests were 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. They had moved to the Supreme Court to quash notification No. 3/24/66-A-
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15(iv), dated the 29th July, 1967, issued by the Government of India, Ministry of Home
Affairs, as according to them, the selections notified in the notification were violative of
Articles 14 and 16 of the Constitution and that the selections in question were vitiated by the
contravention of the principles of natural justice. They also challenged the vires of Section 3
of the Act, Rule 4 and Regulation 5).
K.S. HEGDE, J. – 11. It was contended before us that Section 3 of the All India Services Act,
Rule 4 of the rules framed there under and Regulation 5 of the Indian Forest Service (Initial
Recruitment) Regulations, 1966, are void as those provisions confer unguided, uncontrolled
and uncanalised power on the concerned delegates. So far as the vires of Sections 3 of the
Indian Administrative Act is concerned, the question is no more res integra. We have not
thought it necessary to go into the question of the vires of Rule 4 and Regulation 5 as we have
come to the conclusion that the impugned selections must be struck down for the reasons
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 5. It was contended on behalf of the
petitioners that power was a non-judicial power whereas the case for the contesting
respondents was that it was purely an administrative power. In support of the contention that
the power in question was a part-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 decide”. 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 statutory body and a wrong exercise of that power is likely to adversely affect
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, it was not required to
decide about any right, the proceedings before it cannot be considered quasi-judicial; its duty
was merely to select officers who in its opinion were suitable for being absorbed in the Indian
Forest Service. According to him the word -adjudge’ in Rule 4 as well as Regulation 5 means
“found worthy of selection”. - The dividing line between an administrative power and a quasi-judicial power is quite
thin and is being gradually obliterated. For determining whether a power is an administrative
power or a quasi-judicial power, one has to look to the nature of the power conferred, the
person or persons on whom it is conferred, the framework of the law conferring that power,
the consequences ensuing from the exercise of that power and the manner in which that power
is expected to be exercised. Under our Constitution the rule of law pervades over the entire
field of administration. Every organ of the State under our Constitution is regulated and
controlled by the rule of law. In a welfare State like ours it is inevitable that the jurisdiction of
the administrative bodies is increasing at a rapid rate. The concept of rule of law would lose
its vitality if the instrumentalities of the State are not charged with the duty of discharging
their functions in a fair and just manner. The requirement of acting judicially in essence is
nothing but a requirement to act justly and fairly and not arbitrarily or capriciously. The
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procedures which are considered inherent in the exercise of a judicial power are merely those
which facilitate if not ensure a just and fair decision. In recent years the concept of ^nonjudicial power has undergone a radical change. What was considered as an administrative
power some years back is now being considered as a quasi-judicial power.
With the increase of the power of the administrative bodies it has become 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 the principles to
be observed while exercising such powers. In matters like these, public good is not advanced
by a rigid adherence 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 selections on that basis. - It is unfortunate that Naqishbund 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 in 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 Naqishbund as a member of
the selection board. He was one of the persons to be considered for selection. It is against all
canons of justice to make a man judge in his own cause. It is true that he did not participate in
the deliberations of the committee when his name was considered. But then the very fact that
he was a member of the selection board must have had its own impact on the decision of the
selection board. Further admittedly he participated in the deliberations of the selection board
when the claims of his rivals particularly that of Basu was considered. He was also party to
the preparation of the list of selected candidates in order of preference. At every stage of his
participation in the deliberations of the selection board there was a conflict between his
interest and duty. Under those circumstances it is difficult to believe that he could have been
impartial. The real question is not whether he was biased. It is difficult to prove the state of
mind of a person. Therefore what we have to see is whether there is reasonable ground for
believing that he was likely to have been biased. We agree with the learned Attorney-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 interest of Naqishbund to keep out his rivals
in order to secure his position from further challenge. Naturally he was also interested in
safeguarding his position while preparing the list of selected candidates. - The members of the selection board other than Naqishbund, each one of them
separately, have filed affidavits in this Court swearing that Naqishbund in no manner
influenced their decision in making the selections. In a group deliberation each member of the
group is bound to influence the others, more so, if the member concerned is a person with
special knowledge. His bias is likely to operate in a subtle manner. It is no wonder that the
other members of the selection board were 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 have any mutual discussion. It
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is not as if the records spoke of themselves. We are unable to believe that the members of
selection board functioned like computers. At this stage it may also be 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 Basu had appealed against his supersession and that his appeal was
pending before the State Government. Therefore there was no occasion for them to distrust
the opinion expressed by Naqishbund. Hence the board in 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 contention he read to us several
decisions. It is not necessary to examine those decisions as there is a great deal of fresh
thinking on the subject. The horizon of natural justice is constantly expanding. - 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: (1) no one shall be a judge in his own case
(Nemo debet esse judex propria causa) and (2) no decision shall be given against a party
without affording him a reasonable hearing (audi alteram partem). Very soon thereafter a
third rule was envisaged and that is that quasi-judicial enquiries must be held in good faith,
without bias and not arbitrarily or unreasonably. But in the course of years many more
subsidiary rules added to the rules of natural justice. Till very recently it was the opinion of
the courts that unless the authority concerned was required by the law under which it
functioned to act judicially there was no room for the application of the rules of natural
justice. The validity of that limitation is now questioned. If the purpose of the rules of natural
justice is to prevent miscarriage of justice, one fails to see why those rules should be made
inapplicable to administrative enquiries. Often times it is not easy to draw the line that
demarcates administrative enquiries from quasi-judicial enquiries. Enquiries which were
considered administrative at one time are now being considered as quasi-judicial in character.
Arriving at a just decision is the aim of both quasi-judicial enquiries as well as administrative
enquiries. An unjust decision in an administrative enquiry may have far more reaching effect
than a decision in a quasi-judicial enquiry. What particular rule of natural justice should apply
to a given case must depend to a great extent on the facts and circumstances of that case, the
framework of the law under which the enquiry is held and the constitution of the Tribunal or
body of persons appointed for that purpose. Whenever a complaint is made before a court that
some principle of natural justice had been contravened the court has to decide whether the
observance of that rule was necessary for a just decision on the facts of that case. - It was next urged by the learned Attorney-General that after all the selection board
was only a recommendatory body. Its recommendations had first 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
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ultimate decision is just or not. We are unable to agree with the learned Attorney-General that
the recommendations made by the selection board were of little consequence. Looking at the
composition of the board and the nature of the duties entrusted to it we have no doubt that its
recommendations should have carried considerable weight 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 disassociated
from the selections made by the selection board which is the foundation of the
recommendations of the Union Public Service Commission. - 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 - One more argument of the learned Attorney-General remains to be considered. He
urged that even if we are to hold that Naqishbund should not have participated-in the
deliberations of the selection board while it considered the suitability of Basu, Baig and Kaul,
there is no ground to set aside the selection of other officers. According to him it will be
sufficient in the interest of justice if we direct that the cases of Basu, Baig and Kaul be
reconsidered 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 are unable to accept either of these contentions. As seen earlier
Naqishbund was a party to the preparation of the select list in order of preference and that he
is shown as No. 1 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 the senior scale service as well as
junior scale service were made from the same pool. Every officer who had put in service of 8
years or more, even if he was holding the post of an Assistant Conservator of Forests was
eligible for being selected for the senior scale service. In fact some Assistant Conservators
have been selected for the senior scale service. At the same time some of the officers who had
put in more than eight years of service had been selected for the junior scale service. Hence it
is not possible to separate the two sets of officers. - For the reasons mentioned above these petitions are allowed and the impugned
selections are set aside.
