BLS LLB 5 Years Sem 7 Administrative Law 2024-25 - ATKT 60/40 Question Paper with Solutions

Ivor Jennings: "Administrative law is the law relating to the administration. It determines the organisation, powers and duties of administrative authorities."

K.C. Davis: the law concerning the powers and procedures of administrative agencies, including especially the law governing judicial review of administrative action.

Sir William Wade, shortest: "the law relating to the control of governmental power".

A Henry VIII clause is a provision in a statute empowering the executive to modify or adapt the Act itself, usually in the form of a power to make such provision as appears necessary "for removing any difficulty" in giving effect to the Act.

It is named after King Henry VIII, who by the Statute of Proclamations, 1539 was empowered to legislate by proclamation, and the name is used as a symbol of executive absolutism in law-making.

A speaking order is an order that speaks for itself, that is, one which records the reasons on which it is based. It is also called a reasoned decision, and the duty to pass one is now the third principle of natural justice.

Prohibition is a writ issued by a superior court to an inferior court or tribunal, commanding it to stop proceedings which are in excess of its jurisdiction or in violation of the principles of natural justice.

It is preventive: it issues while the proceeding is still pending, before the inferior body has made its order.

The three organs are:

1. the legislature, which makes the law (Parliament under Articles 79 to 122, the State legislatures under Articles 168 to 212);
2. the executive, which enforces and administers it (the President, the Council of Ministers and the services, under Articles 52 to 78 and 153 to 167); and
3. the judiciary, which interprets it and adjudicates disputes (the Supreme Court under Articles 124 to 147, the High Courts under Articles 214 to 231).

3. The criticism. The first would make modern government impossible, since discretion is unavoidable; Dicey confused arbitrary power with discretionary power. The second rested on a misreading of droit administratif, whose control over the administration is in some respects stricter than the English courts'. The third describes English history rather than a universal principle, and India's reverse arrangement, rights guaranteed by a written Constitution, is the stronger one.

4. In India. It is embodied in the Preamble; Article 13 (inconsistent laws void); Article 14 (equality before the law, and after E.P. Royappa v. State of Tamil Nadu, 1974, a guarantee against arbitrariness); Article 19 (restrictions must be reasonable and by law); Article 21 (procedure established by law, which after Maneka Gandhi, 1978, must be right, just and fair); Articles 265 and 300A (no tax and no deprivation of property except by authority of law); Articles 32 and 226 (enforceable remedies); Article 300 (the State may be sued); and the independence of the judiciary.

5. The Indian cases.

1. Kesavananda Bharati v. State of Kerala (1973): the rule of law is part of the basic structure and beyond the amending power.

1. The doctrine. Montesquieu, L'Esprit des Lois (1748): the legislative, executive and judicial powers should be vested in three separate organs; no organ should exercise the functions of another; and no person should be a member of more than one organ. The object is liberty, because concentrated power is abused.

2. Comparative. The United States applies it strictly by constitutional text, tempered by checks and balances. England has never applied it. India takes a middle position: the functions are differentiated but the organs are not insulated.

3. What reflects the doctrine in India. Article 50 (separation of the judiciary from the executive, a Directive Principle); Articles 53 and 154 (executive power vested in the President and Governors); Articles 121 and 211 (no discussion of a Judge's conduct); Articles 122 and 212 (courts may not inquire into legislative procedure); Article 361 (immunity of the President and Governors); and the independence of the judiciary under Articles 124 to 147 and 214 to 231.

6. Conclusion. In India separation of powers is a principle of interpretation and a basic feature, not a rule of the text. What is forbidden is not overlap but the assumption by one organ of the essential function of another.

3. Composition. A Central Vigilance Commissioner as chairperson and not more than two Vigilance Commissioners, appointed by the President on the recommendation of a committee consisting of the Prime Minister, the Minister of Home Affairs and the Leader of the Opposition in the Lok Sabha. Term: four years or until the age of 65, whichever is earlier. Removal is by the President on the ground of proved misbehaviour or incapacity, after a reference to the Supreme Court, which is the same protection given to the judges, and this is what secures its independence.

4. Functions and powers.

1. Superintendence over the vigilance administration of the ministries and departments of the Union, and over the CBI in respect of Prevention of Corruption Act offences, with power to review its progress;
2. to inquire or cause an inquiry into a complaint that a public servant has committed an offence under the Prevention of Corruption Act, and to give directions to the CBI in that behalf;
3. to tender advice to the Union and its authorities on vigilance matters, first-stage advice before departmental proceedings and second-stage advice on the penalty;

6. Limitations, to be stated honestly. Its advice is advisory only and the disciplinary authority is not bound by it, although departure must be recorded and reported. It has no power to register a criminal case or to investigate directly; it must act through the CBI or the departmental vigilance machinery. It has no jurisdiction over State Government servants, who fall under the State Vigilance Commissions. And it depends on the Government for its staff.

3. Selection: by the President on the recommendation of a Selection Committee of the Prime Minister as chairperson, the Speaker of the Lok Sabha, the Leader of the Opposition in the Lok Sabha, the Chief Justice of India or a Judge nominated by him, and an eminent jurist nominated by the President on the recommendation of the other four; assisted by a Search Committee. Term five years or until the age of seventy.
4. Jurisdiction, Section 14: the Prime Minister, subject to exclusions for international relations, external and internal security, public order, atomic energy and space, and subject to the requirement that an inquiry be approved by a full Bench of not less than two-thirds of the members in a sitting held in camera; Ministers and members of Parliament, save in respect of anything said or any vote given in Parliament, which preserves Article 105(2); all groups of central Government officials, A, B, C and D; and the officers of bodies established by an Act of Parliament, bodies financed or controlled by the Union, and societies and trusts receiving foreign contribution or public donations above the prescribed limits.
5. Inquiry Wing (Section 11) headed by a Director of Inquiry, and Prosecution Wing (Section 12) headed by a Director of Prosecution.

12. Financial independence, Section 18: the expenses of the Lokpal are charged on the Consolidated Fund of India.
13. Amendment to the Prevention of Corruption Act and to the declaration of assets by public servants under Section 44.

3. Criticism. The appointment of the first Lokpal took five years; the Inquiry and Prosecution Wings were slow to be constituted; several States have still not appointed a Lokayukta; the Lokpal cannot itself punish; and the exclusion of anything said in Parliament, though constitutionally required, narrows the jurisdiction over legislators.

But the Director made an invariable rule that he will grant exemption only if the person has completed thirteen years of age.

(a) What is the meaning of Administrative discretion?

Administrative discretion is the power of an authority to choose between courses of action, or to decide whether to act at all, where the law leaves the choice to its own judgment. Statutes confer it in words such as "if the Government is satisfied", "as it thinks fit", "in deserving cases", "where it appears to the authority", and "in the public interest".

1. He has converted a discretion into a rule. The parent rule gave him power to exempt "under certain circumstances in deserving cases", which is a power to consider each case on its own facts. By declaring that he will exempt only where the applicant has completed thirteen years, he has laid down an inflexible rule and has shut out from consideration every applicant below that age, however deserving.
2. This is the recognised head of "self-imposed fetter" or "acting under a rigid rule", a form of failure to exercise discretion. The law does not forbid an authority from adopting a policy; consistency is a virtue and guidelines are proper. What it forbids is the authority closing its mind. The classic statement is R. v. Port of London Authority, ex parte Kynoch (1919), and it was put beyond doubt in British Oxygen Co. v. Board of Trade (1971), where Lord Reid said that an authority may have a general policy provided it "is always willing to listen to anyone with something new to say".
3. It is also substantive ultra vires. A subordinate rule that narrows a benefit conferred by the parent rule is inconsistent with it and void: State of Karnataka v. H. Ganesh Kamath (1983); General Officer Commanding-in-Chief v. Dr. Subhash Chandra Yadav (1988). A delegate cannot amend the instrument under which it acts.

(a) Can anyone oppose such appointment? Explain.

Yes. Any member of the public acting bona fide may oppose it, by a petition for a writ of quo warranto under Article 226. He need not have been a candidate and need show no personal right.

1. The nature of the defect. Where a post carries prescribed qualifications, fixed by statute, by rules made under Article 309, or by the recruitment rules, the appointment of a person who does not possess them is made without authority of law. The appointing authority had no power to appoint such a person at all, so the appointment is void and not merely irregular.
2. The writ is quo warranto, "by what authority", which calls on the holder of a public office to show by what authority he holds it and ousts him if he cannot.

5. Govinda Rao is closely in point: the appointment of a Research Assistant as a University Reader was quashed because he did not possess the prescribed qualification. The Court also drew the limit: it will interfere where the prescribed qualification has been ignored, but it will not sit in appeal on the comparative merits of candidates who were all qualified.
6. Other grounds available. A challenge under Articles 14 and 16, since an appointment made in disregard of the prescribed qualification denies equality of opportunity in public employment to those who were qualified; certiorari to quash the order of appointment; and, where the facts warrant it, a vigilance complaint against the officers responsible.

(b) Explain the remedy available in these circumstances.

Quo warranto in detail:

1. Meaning and object. "By what authority." Its object is to prevent a person from usurping a public office and to protect the public from the exercise of authority by someone with no title to it.
2. Forum. The High Court under Article 226, which extends to "any other purpose" and is the ordinary forum; the Supreme Court under Article 32 only where a fundamental right is involved.

These are the facts of E.P. Royappa v. State of Tamil Nadu, (1974) 4 SCC 3, one of the most important cases in Indian constitutional and administrative law.

(a) Is the order arbitrary and so hit by Article 14 of the Constitution guarantying equality before the law?

The legal proposition is that arbitrariness is a breach of Article 14, and if the transfer is shown to be arbitrary it is void. But on the facts of Royappa itself the Supreme Court held the challenge was not made out, and the petition was dismissed.

3. But the decision on the facts went the other way. The Court held that the posts were not shown to be inferior, the Government having asserted that they were of equal status and the officer having accepted the first posting; and that mala fides had not been established. The Court emphasised that the burden of proving mala fides is heavy, that the charge is easy to make and difficult to prove, that it must be pleaded with particulars and supported by clear material, and that a mere assertion of political displeasure will not do.
4. The applicable principles for any transfer case.
5. Transfer is an incident of service. A civil servant has no vested right to remain in a particular post, and the courts do not ordinarily interfere with transfers, which are matters of administrative convenience.
6. A transfer is not a punishment unless it amounts to a reduction in rank, in which case Article 311(2) is attracted and an inquiry is required.
7. A transfer can be challenged where it is mala fide, where it is made in violation of a statutory rule or of a binding guideline, or where it is by way of punishment without the safeguards.

3. The illustrative case on the other side. S. Pratap Singh v. State of Punjab (1964), where the record showed that action against a civil surgeon had been taken out of the personal hostility of the Chief Minister, and the Supreme Court quashed it. State of Punjab v. Gurdial Singh (1980) is the classic statement of malice in law: the use of a power for an unauthorised purpose is itself legal malice, and land acquisition pressed against a political opponent was struck down.
4. The court's approach. Where the file discloses no reason, where the timing is suspicious, where the officer has recently acted against the interest of the person in power, or where the post created is plainly a sinecure, the court may draw an inference. Where, as in Royappa, the Government files an affidavit asserting the equivalence of the posts and administrative reasons for the change, and there is no material to contradict it, the challenge fails.
5. Conclusion to write. The transfer is liable to be quashed if the petitioner establishes that the new posts were inferior in status and responsibility, so that the transfer was in substance a reduction in rank made without an inquiry under Article 311(2), or that it was actuated by personal hostility. Absent such proof, the transfer is an ordinary incident of service and the court will not interfere.

1. Vicarious liability. A master answers for the tort of his servant committed in the course of employment. The driver was the State's servant and was driving the jeep back from the workshop in the course of his duty, so the State answers for his rash and negligent driving.
2. The constitutional provision. Article 300(1) permits the State to be sued "in the like cases" as the corresponding Province could have been sued before the Constitution. That carries the liability back through Section 176 of the Government of India Act, 1935 and Section 32 of the 1915 Act to Section 65 of the Government of India Act, 1858, and so to the liability of the East India Company.
3. The sovereign and non-sovereign test. From P and O Steam Navigation Co. v. Secretary of State (1861): the State is not liable for acts done in the exercise of sovereign powers, but is liable for acts done in the conduct of undertakings which a private person might also carry on. Maintaining and driving a motor vehicle is plainly of the second kind.

3. In Vidyawati the Supreme Court said in terms that the maxim has no place in a republic with a written Constitution which by Article 300 expressly permits the State to be sued, and which runs railways, transport, factories and hospitals.
4. All that survives is the narrow sovereign function immunity, and even that has been cut down. N. Nagendra Rao and Co. v. State of Andhra Pradesh (1994) confined it to inalienable functions, those no private person can perform at all, and held that Kasturilal has lost much of its relevance. State of Andhra Pradesh v. Challa Ramkrishna Reddy (2000) held that sovereign immunity is no defence where Article 21 is violated.
5. On these facts the function was not sovereign at all, so no question of immunity arises.

For full marks, cover: the meaning; why it matters, since the question asks for importance; the two rules with their components and cases; the third rule of reasoned decisions; the exceptions; and the effect of a breach.

1. Meaning. Natural justice is the procedural fairness the law requires of anyone deciding a matter that affects another's rights or legitimate interests. It has no fixed content: what it requires depends on the nature of the power, the framework of the statute and the consequences to the individual. In India it rests on Articles 14 and 21, so a breach is a constitutional wrong.

2. Its importance in administrative law.

1. It supplies the procedure that no Indian statute provides. There is no general Administrative Procedure Act in India. Natural justice supplies, case by case, the procedure the legislature did not write, and the courts read it into every statute that does not exclude it: Cooper v. Wandsworth Board of Works (1863), where Byles J. said "the justice of the common law will supply the omission of the legislature".

7. It reaches administrative and not merely quasi-judicial action, since A.K. Kraipak v. Union of India (1970), so it now covers selections, licences, permits, allotments, blacklisting and every decision affecting a person.
8. It reaches private bodies performing public functions: Andi Mukta Sadguru Trust v. V.R. Rudani (1989), so its reach is wider than the State itself.
9. It creates rights of audience the statute omitted: National Textile Workers' Union v. P.R. Ramakrishnan (1983), where workers were held entitled to be heard in a winding-up petition although the Companies Act named only the company, its creditors and its contributories.

3. The first rule: nemo judex in causa sua, the rule against bias. The test is a real likelihood of bias, because justice must not only be done but be seen to be done. Its forms:

1. Pecuniary, where any financial interest disqualifies automatically: Dr. Bonham's Case (1610), Dimes v. Grand Junction Canal (1852);
2. Personal, from relationship, friendship or hostility: A.K. Kraipak (1970), Manak Lal v. Dr. Prem Chand (1957), Mineral Development Ltd. v. State of Bihar (1960);

Landmarks: Cooper v. Wandsworth (1863); Ridge v. Baldwin (1964), where the House of Lords held the duty to hear does not depend on classifying the decision as judicial; Maneka Gandhi (1978); Swadeshi Cotton Mills v. Union of India (1981), where the post-decisional hearing was called a "poor substitute"; Mohinder Singh Gill v. Chief Election Commissioner (1978); Olga Tellis v. Bombay Municipal Corporation (1985).

5. The third rule: the reasoned or speaking order. Siemens Engineering v. Union of India (1976): recording reasons is "a basic principle of natural justice". S.N. Mukherjee v. Union of India (1990): reasons must be recorded unless expressly or by necessary implication dispensed with.

6. Exceptions. Statutory exclusion; emergency, subject to a post-decisional hearing; impracticability (Bihar School Examination Board v. Subhas Chandra Sinha, 1970); legislative action; confidentiality and the security of the State; the narrow "useless formality" exception; purely administrative or contractual matters; interim preventive measures; waiver; and the second proviso to Article 311(2) as construed in Union of India v. Tulsiram Patel (1985).

For full marks, cover: the definition with Justice Douglas; the characteristics; the kinds with real Indian examples; the reasons for creating them; then the four heads of control in detail, with the Article 12 case law under judicial control; and a conclusion on the autonomy-accountability tension.

1. Definition. A public corporation is a body corporate created by a special statute, or registered under the Companies Act with a controlling Government shareholding, to carry on a commercial, industrial, developmental or regulatory undertaking on behalf of the State, having a separate legal personality, its own funds, and freedom from ordinary departmental and budgetary procedure.

Justice Douglas of the United States Supreme Court described it as a device combining "the public ownership, public accountability and devotion to public purpose of a governmental agency, with the flexibility and initiative of a private enterprise".

5. Control.

A. Parliamentary control.

1. Questions, discussions and motions in the House, subject to the convention that day-to-day management is not questioned;
2. the annual report and audited accounts, which the constituting Act requires to be laid before Parliament or the State legislature;
3. the Committee on Public Undertakings, constituted in 1964, which examines the reports and accounts of public undertakings and whether their affairs are being managed in accordance with sound business principles and prudent commercial practices;
4. the Public Accounts Committee and the Estimates Committee;
5. audit by the Comptroller and Auditor General under Article 149, whose report goes to the legislature; and
6. the ultimate control, amendment or repeal of the constituting statute.

B. Governmental or executive control.

1. Appointment and removal of the chairman and directors;

3. Fundamental rights, through Article 12. Rajasthan State Electricity Board v. Mohan Lal (1967) held a statutory corporation to be "other authorities" under Article 12. Sukhdev Singh v. Bhagatram (1975) applied it to ONGC, LIC and the Industrial Finance Corporation and held their regulations to have the force of law. Ramana Dayaram Shetty v. International Airport Authority of India (1979) developed the test of instrumentality, and Ajay Hasia v. Khalid Mujib Sehravardi (1981) collected it into six factors: the entire share capital held by the Government; financial assistance meeting almost the whole expenditure; a monopoly conferred or protected by the State; deep and pervasive State control; functions of public importance closely related to governmental functions; and a Government department transferred to the corporation. Pradeep Kumar Biswas v. Indian Institute of Chemical Biology (2002), seven judges, restated it as functional, financial and administrative domination by the Government.

6. Conclusion. The design problem of the public corporation is that the two things asked of it pull against each other. Autonomy is the reason for creating it; accountability is the reason it exists at all. Too much control and it becomes a department under another name; too little and public money is spent without answer. The Indian settlement has been to leave management free and to control policy, appointments, finance and legality, with the Article 12 line of cases ensuring that a corporation cannot escape the fundamental rights merely by taking a company's form.

2. Excessive delegation. The legislature cannot delegate its essential legislative function, the laying down of policy: In re Delhi Laws Act, 1912 (1951). Hamdard Dawakhana v. Union of India (1960) applied it: a power to add "any other disease" to a statutory list, with no standard, was struck down. Ajoy Kumar Banerjee v. Union of India (1984) restated the rule.
3. The rule exceeds or contradicts the parent Act. The commonest and most successful ground: General Officer Commanding-in-Chief v. Dr. Subhash Chandra Yadav (1988), a rule must be within the rule-making power and consistent with the Act; State of Karnataka v. H. Ganesh Kamath (1983), a rule-making power does not carry the power to make a rule the Act forbids.
4. The rule violates the Constitution. Delegated legislation is "law" under Article 13(3)(a): Air India v. Nergesh Meerza (1981) struck down under Article 14 a regulation terminating an air hostess on first pregnancy, and also struck down a power to extend the retiring age "at the option of the Managing Director" as an unguided discretion; Narendra Kumar v. Union of India (1960) under Article 19.

1. Prior publication of the draft and consideration of objections; Section 23 of the General Clauses Act, 1897 prescribes the standard procedure.
2. Consultation of an affected interest or a named body: Raza Buland Sugar Co. v. Municipal Board, Rampur (1965), where the test was said to be the object of the provision and the consequences of non-compliance; compare Banwarilal Agarwalla v. State of Bihar (1961).
3. Publication in the Official Gazette, generally mandatory: Harla v. State of Rajasthan (1951), where an unpublished resolution of the Council of Ministers of the former Jaipur State was held unenforceable; State of Maharashtra v. Mayer Hans George (1965) on sufficiency of publication.
4. Laying before the legislature: directory unless made a condition of validity, Atlas Cycle (1979).

4. The presumption of validity and the limits of review. Subordinate legislation is presumed valid and the burden lies on the challenger. The court will not strike a rule down because it thinks it unwise, harsh or capable of improvement; it is not a court of appeal on policy. It reviews legality, not merit.

For full marks, cover: the definitions briefly; the nature in five features; eight reasons for growth, each with a concrete illustration, since the question puts growth third and expects it to be substantial; the scope under ten heads; and the relation to constitutional law.

1. Definitions, briefly. Ivor Jennings: "the law relating to the administration; it determines the organisation, powers and duties of administrative authorities." K.C. Davis: the law concerning the powers and procedures of administrative agencies, especially the law governing judicial review. Sir William Wade: "the law relating to the control of governmental power."

2. Nature. A branch of public law; judge-made and uncodified in India, since there is no Administrative Procedure Act and natural justice, ultra vires and abuse of discretion are all creations of case law; functional rather than conceptual, which is why the judicial and administrative labels lost their force after A.K. Kraipak (1970); dynamic, growing with each new function of the State; and organised around power and its control.

3. Reasons for its growth.

5. Industrialisation, urbanisation and planning. Land acquisition, slum clearance, zoning, rationing, price control and industrial licensing each created new powers and new occasions for review.
6. Emergencies. War, partition, famine, epidemic and economic crisis have repeatedly required rapid executive law-making. The rules made under the Disaster Management Act, 2005 and the Epidemic Diseases Act, 1897 during the COVID-19 pandemic are the most recent instance.
7. The value of experiment. A new social scheme cannot be got right at once; rule-making allows the administration to try, observe and adjust, which an Act cannot do.
8. The growth of enforceable social rights and public interest litigation. Maneka Gandhi (1978) expanded Article 21, and S.P. Gupta v. Union of India (1981) relaxed locus standi, so that administrative action could be challenged by persons other than those directly affected. That multiplied both the occasions for review and the reach of the subject.