BLS LLB 5 Years Sem 7 Administrative Law 2024-25 - ATKT Set 2 60/40 Question Paper with Solutions

Official bias, also called subject-matter bias, arises where the deciding authority has a general interest in the subject matter of the dispute, as distinct from a personal or a financial interest in the parties, so that it cannot bring an open mind to bear.

The test, as with every form of bias, is a real likelihood of bias and not proof of actual bias.

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

Two functions, from Article 320 of the Constitution, are:

1. to conduct examinations for appointments to the services of the Union; and
2. to be consulted on all matters relating to methods of recruitment, principles to be followed in appointments, promotions and transfers, and on disciplinary matters affecting a person serving under the Government of India, including memorials and petitions relating to such matters.

Legitimate expectation is the doctrine that where a public authority has made an express promise, or has followed a regular and settled practice, a person affected may reasonably expect it to be honoured or continued, and that expectation cannot be defeated without fairness, which at the least means a hearing.

It is not an enforceable right to the benefit itself; it is a ground of judicial review, treated in India as an aspect of the non-arbitrariness required by Article 14.

Conditional legislation is legislation which is complete in itself but whose operation depends on a condition whose fulfilment the legislature leaves the executive to determine.

Its importance is threefold: it lets the legislature enact a law once and have it applied where and when conditions warrant, without a fresh Act for every area or occasion; it allows a law to be extended by stages to different regions or classes; and, most importantly for this subject, because no law-making power is transferred, it is not open to the objection of excessive delegation at all.

1. What it is. The Reserve Bank of India is the central bank of the country and the leading example in Indian administrative law of a statutory regulatory corporation: a body created by statute which not only conducts business but makes law, licenses, inspects, adjudicates and punishes in its sector.

2. Creation and status. Established by the Reserve Bank of India Act, 1934, and commencing operations on 1 April 1935; nationalised in 1949, so that the whole of its share capital is held by the Central Government. It is a body corporate with perpetual succession and a common seal, which may hold property, contract, and sue and be sued in its own name. It is "the State" within Article 12, satisfying the Ajay Hasia tests of complete Government shareholding, deep and pervasive control and functions of public importance, so it is bound by Articles 14 and 16 and is amenable to Article 226.

3. Its functions, which show every kind of administrative power.

5. Monetary and currency: issue of currency under Section 22 of the RBI Act, the sole right of note issue; the setting of the policy rate through the Monetary Policy Committee under Chapter IIIF, inserted in 2016; and the management of the public debt.
6. Banker to the Government and to banks, and lender of last resort; custodian of foreign exchange reserves; and the operator of the payment systems under the Payment and Settlement Systems Act, 2007.
7. Developmental and promotional work, including financial inclusion and priority sector lending norms.

4. Its control and accountability.

1. Governmental: the Central Government may issue directions in the public interest under Section 7 of the RBI Act after consultation with the Governor, a provision that is the constitutional pressure point of the Bank's autonomy; the Governor and Deputy Governors are appointed by the Central Government under Section 8;
2. Parliamentary: the Bank's annual report and accounts are laid before Parliament, and it is examined by the parliamentary committees;

1. Meaning. Droit administratif is the French system of administrative law: a body of rules developed by the administrative courts and not by the legislature, which governs the relations between the citizen and the administration, and the liability of the State and its officials, and which is applied by a separate hierarchy of courts headed by the Conseil d'Etat.

2. Its origin. It grew after the French Revolution out of a distrust of the ordinary courts, the parlements, which had obstructed reform. The law of 16 to 24 August 1790 forbade the ordinary courts from interfering with the administration. The Conseil d'Etat was created by Napoleon in 1799; at first it merely advised the head of State, and it acquired power to decide (justice deleguee) in 1872.

3. Its characteristics.

1. rules are judge-made by the administrative courts, developing case by case, and are not codified;
2. the ordinary civil courts have no jurisdiction over disputes between the citizen and the administration;
3. those disputes go to the administrative courts, with the Conseil d'Etat at their head;

2. its control over the administration is in several respects stricter than that of the English courts. It developed the liability of the State for the faults of its servants (faute de service) at a time when the English Crown could not be sued at all, and it annuls administrative acts for detournement de pouvoir, the use of power for an improper purpose, a doctrine English law reached much later;
3. the remedy is cheap and accessible, and the citizen's prospects of success are at least as good as before an ordinary court;
4. Dicey himself is said to have modified his views in later editions and in an article of 1915.

6. Why it matters to an Indian student. India follows the English model: there is no separate hierarchy of administrative courts, and the ordinary courts, through Articles 32 and 226, control the administration. But the Indian system has moved a long way towards the French in substance, by creating tribunals under Articles 323A and 323B for whole classes of dispute. The debate about tribunals in S.P. Sampath Kumar (1987) and L. Chandra Kumar (1997) is, at bottom, the same debate Dicey was having.

1. Simple laying: the rule is laid for information only and takes effect regardless;
2. Laying subject to negative resolution: the rule takes effect at once but ceases to have effect if the House annuls it, usually within thirty days on which the House sits. This is the commonest Indian form;
3. Laying subject to affirmative resolution: the rule has no effect until it is approved by the House. This is reserved for the most important powers, such as those affecting taxation or the amendment of a Schedule.

Atlas Cycle Industries Ltd. v. State of Haryana (1979) settles the effect: where the statute merely requires laying, the requirement is directory, so failure to lay does not invalidate the rule; where laying is expressed as a condition of validity, it is mandatory.

3. Scrutiny by committee. The Committee on Subordinate Legislation was constituted in the Lok Sabha in 1953 on the recommendation of the Committee on Petitions, and in the Rajya Sabha in 1964. Each has fifteen members, and no Minister may be a member. Their terms of reference are to examine whether the rules made under a statute are within the powers conferred, and in particular whether:

1. they impose a tax;

5. An honest assessment. The control is weak in practice and the answer should say so. Several thousand statutory instruments are laid every year and the time available for scrutiny is negligible; the negative resolution procedure requires a member to move a motion in a crowded House and it is almost never used successfully; the committees are under-resourced and can only report; and members rarely have the technical knowledge to test a rule. That weakness is precisely why judicial control carries the real weight in India.

3. Articles 121 and 211: no discussion in the legislatures of the conduct of a Judge in the discharge of his duties;
4. Articles 122 and 212: courts may not inquire into the validity of proceedings in the legislature on the ground of irregularity of procedure;
5. Article 361: the President and the Governors are not answerable to any court for the exercise of their powers;
6. the independence of the judiciary, under Articles 124 to 147 and 214 to 231: security of tenure, salaries charged on the Consolidated Fund, removal only by the process in Article 124(4), and the bar on practice after retirement.

4. What departs from it.

1. the executive is drawn from and collectively responsible to the legislature: Articles 74, 75, 163 and 164;
2. ordinance-making power of the President and the Governors under Articles 123 and 213, a legislative power in executive hands;
3. the legislature's judicial functions: punishment for its own contempt, impeachment of the President under Article 61, and addresses for the removal of judges;

5. State of Tamil Nadu v. State of Kerala (2014): a legislature cannot directly overrule a judicial decision, though it may retrospectively remove the basis on which the decision rested.
6. Supreme Court Advocates-on-Record Association v. Union of India (2015): the 99th Amendment creating the NJAC was struck down, the primacy of the judiciary in appointments being part of the independence of the judiciary.

6. Conclusion. In India separation of powers is a principle of constitutional 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.

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 above thirteen years, he has shut out from consideration every applicant below that age, however deserving, and has narrowed a benefit the parent rule conferred.
2. This is the head of "self-imposed fetter", a form of failure to exercise discretion. The law does not forbid an authority from adopting a policy, and consistency is a virtue. What it forbids is the authority closing its mind. R. v. Port of London Authority, ex parte Kynoch (1919) is the classic statement, and British Oxygen Co. v. Board of Trade (1971) settled it: Lord Reid held 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 inconsistent with the rule under which it is made is 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?

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, an appointment of a person who does not possess them is made without authority of law. The appointing authority had no power to make such an appointment, so it 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 removes him if he cannot.

5. Govinda Rao is closely in point: the appointment of a Research Assistant as a University Reader was quashed for want of the prescribed qualification. The Court also fixed the limit of the jurisdiction: it will interfere where the qualification prescribed has been ignored, but it will not sit in appeal on the comparative merits of candidates who were all qualified.
6. Other grounds. Articles 14 and 16, since an appointment made in disregard of the prescribed qualification denies equality of opportunity in public employment; and certiorari to quash the order of appointment.

(b) Explain the remedy available in these circumstances.

Quo warranto in detail:

1. Meaning and object. "By what authority." To prevent the usurpation of a public office and to protect the public from authority exercised without title. It is a public remedy.
2. Forum. The High Court under Article 226, whose jurisdiction extends to "any other purpose"; the Supreme Court under Article 32 only where a fundamental right is involved.

(a) Will be such dismissal valid? State reason

No. The dismissal is void, because it offends Article 311(1) of the Constitution.

1. The provision. Article 311(1): no person who is a member of a civil service of the Union or of an All India Service or of a civil service of a State, or who holds a civil post under the Union or a State, shall be dismissed or removed by an authority subordinate to that by which he was appointed.
2. Application to these facts. He was appointed by the Commissioner of Police and dismissed by the Deputy Commissioner of Police, who is subordinate in rank to the Commissioner. The constitutional bar is attracted on the face of the facts, and the dismissal is void.

5. Article 311(2) is a second and independent protection: he must be given an inquiry in which he is informed of the charges and given a reasonable opportunity of being heard. If no inquiry was held, that too is a violation, and the State would have to bring itself within the second proviso, that is, conviction on a criminal charge, a recorded satisfaction that an inquiry is not reasonably practicable, or the security of the State: Union of India v. Tulsiram Patel (1985).
6. The remedy. A petition under Article 226 for certiorari to quash the order of dismissal and mandamus for reinstatement with continuity of service. The doctrine of pleasure in Article 310 is no answer, because Article 310 opens with the words "except as expressly provided by this Constitution", and Article 311 is that express provision.

(b) State the constitutional safeguards provided to civil servants.

1. Article 311(1): no dismissal or removal by an authority subordinate to the appointing authority.

5. Article 309: recruitment and conditions of service are to be regulated by an Act of the appropriate legislature, and until then by rules made by the President or the Governor. Those rules are statutory and their breach is actionable.
6. Article 310, read with its own exceptions: although it states the doctrine of pleasure, the pleasure must be exercised in accordance with Article 311 and cannot be exercised arbitrarily.
7. Articles 14 and 16: equality before the law and equality of opportunity in public employment, which forbid arbitrary or discriminatory treatment in service matters, including transfer, promotion and seniority.
8. Articles 315 to 323: the Public Service Commissions, which must be consulted on disciplinary matters affecting a civil servant under Article 320(3), and whose own independence is secured by Article 317.
9. Natural justice, which supplements Article 311 and applies to every stage of a disciplinary inquiry, including the supply of the inquiry officer's report to the delinquent before the disciplinary authority acts on it: Managing Director, ECIL v. B. Karunakar (1993).
10. Article 226 and the Administrative Tribunals, which supply the forum in which all these safeguards are enforced.

2. Article 300(1) permits the State to be sued "in the like cases" as the corresponding Province could have been sued before the Constitution, which 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): no liability for acts done in the exercise of sovereign powers; liability for acts done in the conduct of undertakings a private person might also carry on. Maintaining and driving a motor vehicle is of the second kind.

3. In Vidyawati the Supreme Court held 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 confined. N. Nagendra Rao and Co. v. State of Andhra Pradesh (1994) restricted it to inalienable functions, those no private person can perform at all, holding that Kasturilal has lost much of its relevance; and 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 and why the rules have no fixed content; the rule against bias with its five forms, cases and the doctrine of necessity; the hearing rule with its seven components and cases; the reasoned-order rule; the exceptions; and the effect of a breach.

1. Meaning. Natural justice is the body of procedural fairness the law requires of anyone deciding a matter that affects another's rights or legitimate interests. It is not a code; what it requires depends on the nature of the power, the framework of the statute, and the consequences to the individual. In India it is anchored in Articles 14 and 21, so a breach is a constitutional wrong and not merely an irregularity.

The two classical rules are Latin maxims: nemo judex in causa sua and audi alteram partem. To them the modern law adds a third, the reasoned or speaking order.

2. First principle: nemo judex in causa sua, no man shall be a judge in his own cause.

4. Departmental or institutional bias, inherent in administrative adjudication and tolerated unless there is a personal interest.
5. Bias as to pre-judgment of the issue, where the mind is closed before the hearing.

Exceptions: statutory authorisation, where the legislature has itself entrusted the decision to an interested authority; and the doctrine of necessity, where the authority is the only one competent and the alternative is that no decision can be made at all: Charan Lal Sahu v. Union of India (1990); and see Ashok Kumar Yadav v. State of Haryana (1985), where a Public Service Commission member related to a candidate withdrew only from that candidate's assessment.

3. Second principle: audi alteram partem, hear the other side.

Its components:

1. Notice, adequate in time, stating the charge and the proposed action with sufficient particularity;
2. Opportunity of hearing, oral where credibility, complexity or a serious penalty is involved;
3. Disclosure of the material relied on: Dhakeswari Cotton Mills v. Commissioner of Income Tax (1955);

4. Third principle: the reasoned or speaking order. Siemens Engineering and Manufacturing Co. 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. Mohinder Singh Gill v. Chief Election Commissioner (1978): an order must be judged by the reasons it itself gives.

5. Exceptions to natural justice. Express or implied statutory exclusion; emergency, subject to a post-decisional hearing; impracticability (Bihar School Examination Board v. Subhas Chandra Sinha, 1970); legislative action, including subordinate legislation of a general character; confidentiality and security of the State; the "useless formality" exception, narrowly applied; purely administrative or contractual matters; interim preventive measures such as suspension pending inquiry; waiver by a party who participates without objection; 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; the four heads of control; the Article 12 case law; and the autonomy-accountability conclusion.

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: it combines "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. Questions, discussions and motions, subject to the convention that day-to-day management is not questioned; the annual report and audited accounts laid before the House; the Committee on Public Undertakings (1964), which examines whether the affairs are managed in accordance with sound business principles and prudent commercial practices; the Public Accounts and Estimates Committees; audit by the Comptroller and Auditor General under Article 149; and the ultimate control, amendment or repeal of the constituting Act.

B. Governmental. Appointment and removal of the chairman and directors; power to issue directions on questions of policy, by which the corporation is bound; approval of the budget, capital programme, borrowings and major contracts; approval of the regulations; inspection, inquiry and calling for returns; and supersession of the board on default.

C. Judicial.

1. Ultra vires: a statutory corporation may do only what its Act authorises;
2. Writ jurisdiction under Article 226 against a body performing a public duty: Andi Mukta Sadguru Trust v. V.R. Rudani (1989);

D. Public. The Right to Information Act, 2005, which applies to bodies owned, controlled or substantially financed by the Government; Reserve Bank of India v. Jayantilal N. Mistry (2015), where a regulator's plea of fiduciary confidentiality was rejected; consumer and user consultative councils; the press; the Central Vigilance Commission and the Lokpal, whose jurisdiction under Section 14 extends to the officers of such bodies; and the sectoral regulator.

6. Conclusion. The design problem is that the two things asked of a public corporation pull against each other. Autonomy is the reason for creating it; accountability is the reason it exists. Too much control and it becomes a department under another name; too little and public money is spent without answer. The Indian settlement leaves management free and controls policy, appointments, finance and legality, with the Article 12 cases preventing a corporation from escaping the fundamental rights merely by taking a company's form.

2. Excessive delegation: the essential legislative function, the laying down of policy, cannot be delegated. In re Delhi Laws Act, 1912 (1951) laid down the test; Hamdard Dawakhana v. Union of India (1960) struck down a power to add "any other disease" to a statutory list with no standard; Ajoy Kumar Banerjee v. Union of India (1984) restated it.
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); State of Karnataka v. H. Ganesh Kamath (1983).
4. The rule violates the Constitution, being "law" under Article 13(3)(a): Air India v. Nergesh Meerza (1981), where a regulation terminating an air hostess on first pregnancy was struck down under Article 14, and a power to extend the retiring age "at the option of the Managing Director" was struck down as an unguided discretion; Narendra Kumar v. Union of India (1960) under Article 19.

2. Consultation of an affected interest or a named body: Raza Buland Sugar Co. v. Municipal Board, Rampur (1965), the test being 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 former Jaipur State could not be enforced; 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. Presumption of validity and limits of review. Subordinate legislation is presumed valid, the burden lies on the challenger, and the court will not strike down a rule merely because it thinks it unwise or capable of improvement. It reviews legality, not merit, and will not sit in judgment on policy, expert opinion or the allocation of resources.

5. Effect of being held ultra vires. The rule is void and treated as never having been made. Severance is possible where the offending part can be separated. Acts already done under it may in some circumstances be protected, and the court may confine the effect of its declaration prospectively.

For full marks, cover: a one-line statement of what administrative law is; eight or nine reasons, each with a concrete illustration; the two institutional consequences of the growth, delegated legislation and tribunals; the position in England and India; and a short conclusion.

1. What is growing. Administrative law is, in Wade's phrase, "the law relating to the control of governmental power". It grows whenever the State acquires a new power over the citizen, because every new power creates a new occasion for control.

2. The reasons.

1. The change from the police State to the welfare State. The nineteenth-century State did three things: defence, law and order, and justice. The Indian State under the Directive Principles plans, licenses, allots, taxes, subsidises, employs, educates, houses and provides. Each of those is a power over the citizen, and each needed a law to control it. This is the first and largest reason, and every other is a consequence of it.

5. Industrialisation, urbanisation and planning. Land acquisition, slum clearance, town planning, zoning, rationing, price control and industrial licensing each created new powers, and each generated a body of case law: Olga Tellis on pavement dwellers, Ramana Dayaram Shetty on the allotment of contracts.
6. Emergency and crisis. War, partition, famine, epidemic and economic crisis have repeatedly required immediate executive law-making, which the law has then had to control after the event. The Defence of India Rules, and the rules made under the Disaster Management Act, 2005 and the Epidemic Diseases Act, 1897 during the COVID-19 pandemic, are the standard illustrations.
7. The value of experiment. A new social scheme cannot be got right at once. Rule-making lets the administration try, observe and adjust, which the legislative process cannot do at that speed.

4. In England and in India. Dicey, writing in 1885, denied that England had any administrative law at all, because in the laissez faire State there was little executive power to control. Within forty years the position was reversed: the Committee on Ministers' Powers (Donoughmore Committee), 1932, and the Franks Committee, 1957, examined delegated legislation and tribunals precisely because both had grown so large. In India the same growth was compressed into the years after 1950 and driven by the Directive Principles, and it was accompanied from the start by a written Constitution with enforceable rights and guaranteed remedies under Articles 32 and 226, which is why Indian administrative law is more constitutional in character than English.

5. Conclusion. Administrative law did not grow because lawyers wanted it. It grew because the State did. Every reason above is a description of the State taking on a new power, and the law followed to control it. The newest chapters, environmental regulation, competition, telecom, data protection, have exactly the same structure as the oldest, which is the surest sign that the subject's organising idea has not changed.