What are various classifications of administrative actions.

Why is such aclassification

essential? Does it really exists? What is its Fecundity?
Introduction:
There are three organs of the Government the Legislature, the Executive and the Judiciary. The
function of the legislature is to enact the law; the executive is to administer the law and the
judiciary is to interpret the law and to declare what the law is. But as observed by the Supreme
Court in Jayantilal Amratlal v. F. N. Rana it cannot be assumed that the legislative functions are
exclusively performed by the legislature, executive functions by the executive and judicial
functions by judiciary.
In Halsbury's Laws of England also, it is stated that howsoever term the Executive or the
Administration is employed, there is no implication that the functions of the executive are
confined exclusively to those of executive or administrative character.
Today, the executive performs variegated functions, viz

to investigate, to prosecute, to prepare and to adopt schemes, to issue and cancel licenses,
(administrative);

to make rules, regulations and bye-laws, to fix prices, (legislative);

to adjudicate on disputes, to impose fine and penalty, etc. (judicial)

Schwartz rightly states that rule-making (quasi legislative) and adjudication (quasi-judicial)
have become the chief weapons in the administrative armory.
Classification of Administrative Actions
The classification of Administrative Actions is discussed below.

Legislative Functions

Legislative functions of the executive consist of making rules, regulations, bye-laws, etc. It is, no
doubt, true that any attempt to draw a distinct line between legislative and administrative
functions is difficult in theory and impossible in practice. Though difficult, it is necessary that
the line must be drawn as different legal rights and consequences ensue.

As Schwartz said, If a particular function is termed legislative or rule-making rather than

judicial or adjudication, it may have substantial effects upon the parties concerned. If the
function is treated as legislative in nature, there is no right to a notice and hearing unless a statute
expressly requires them.

In the leading case of Bates v. Lord Hailsham, Megary, J. observed that the rules of natural
justice do not run in the sphere of legislation, primary or delegated. Wade also said, There is no
right to be heard before the making of legislation, whether primary or delegated, unless it is
provided by statute.

Fixation of price, declaration of a place to be a market yard, imposition tax, establishment of

Municipal Corporation under the statutory provision, extension of limits of a town area
committee, etc. are held to be legislative functions.
Judicial Function
According to the Committee on Ministers Powers, a pure judicial function presupposes
an existing dispute between two or more parties and it involves four requisites

1. The presentation (not necessarily oral) of their case by the parties to the dispute;

2. If the dispute is a question of fact, the ascertainment of fact by means of evidence adduced by

the parties to the dispute and often with the assistance of argument by or on behalf of the parties,
on evidence;

3. If the dispute between them is a question of law, the submission of legal argument by the
parties; and

4. A decision which disposes of the whole matter by finding upon the facts in dispute and an
application of the law of the land to the facts found, including, where required, a ruling upon any
disputed question of law.

Thus, these elements are present, the decision is a judicial decision even though it might have
been made by any authority other than a court, e.g. by Minister, Board, Executive Authority,
Administrative Officer or Administrative Tribunal.

Quasi Judicial Functions

The word quasi means not exactly. Generally, an authority is described as quasi judicial
when it has some of the attributes or trappings of judicial functions, but not all.
In the words of the Committee on Ministers Powers, the word quasi, when prefixed to a legal
term, generally means that the thing, which is described by the word, has some of the legal
attributes denoted and connoted by the legal term, but that it has not all of them e.g. if a
transaction is described as a quasi-contract, it means that the transaction in question has some but
not all the attributes of a contract.

According to the Committee, a quasi-judicial decision equally presupposes an existing dispute

between two or more parties and involves (1) and (2) above but does not necessarily involve (3)
and never involves (4). The place of (4) is, in fact, taken by administrative action, the character
of which is determined the Minister's choice.
For instance, suppose a statute empowers a Minister to take action if certain facts are proved, and
in that event gives him an absolute discretion whether or not to take action.

In such a case, he must consider the representations of parties and ascertain the facts ,to that
extent the decision contains a judicial element.
But, the facts once ascertained, his decision does not depend on any legal or statutory direction,
for ex hypothesis he is left free within the statutory boundaries to take such administrative action
as he may think fit: that is to say that the matter is not finally disposed of by the process of (4).

This test has, however, been subject to criticism by jurists. It does not give a complete and true
picture. It is based on a wrong hypothesis. The Committee characterized the judicial function as
being devoid of any discretionary power but obliged to merely apply the law to the proved facts.
In reality, it is not so. The courts of law also exercise discretion. It may be more persuasive in
administrative actions than in judicial functions but the difference is of degree only. A quasi
judicial function stands mid-way between a judicial function and an administrative function. A
quasi-judicial decision is nearer the administrative decision in terms of its discretionary element
and nearer the judicial decision in terms of procedure and objectivity of its end-product.

It is also not true that in all quasi-judicial decisions, two characteristics are common

1. Presentation of their case by the parties; and

2. The decision on questions of fact by means of evidence adduced by the parties.

Firstly, in many cases, the first characteristic is absent and the authority may decide a matter not
between two or more contesting parties but between itself and another party, e.g. an authority
effecting compulsory acquisition of land. Here the authority itself is one of the parties and yet it
decides the matter. It does not represent its case to any court or authority. Secondly, there may be
cases in which no evidence is required to be taken and yet the authority has to determine the
questions of fact after hearing the parties, e.g. ratemaking or price-fixing. Thirdly, after
ascertainment of facts, unlike a regular court, an authority is not bound to apply the law to the
facts so ascertained, and the decision can be arrived at according to considerations of public
policy or administrative discretion, which factors are unknown to an ordinary court of law.
Administrative Functions Interpretation

Motilal v. Government of the State of UttarPradesh [AIR 1951 All. 257]. The point canvassed
there was whether the Government of a State has power under the Constitution to carry on the
trade or business of running a bus service in the absence of a legislative enactment authorising
the State Government to do so.
Different views were expressed by different Judges on this question.
Chief Justice Malik was of opinion that in a written Constitution like ours the executive power
may be such as is given to the executive or is implied, ancillary or inherent. It must include all
powers that may be needed to carry into effect the aims and objects of the Constitution. It must
mean more than merely executing the laws. According to the Chief Justice the State has a right to
hold and manage its own property and carry on such trade or business as a citizen has the right to
carry on, so long as such activity does not encroach upon the rights of others or is not contrary to
law. The running of a transport business therefore was not per se outside the ambit of the
executive authority of the State.

Sapru, J. held that the power to run a Government bus service was incidental to the power of
acquiring property which was expressly conferred by Article 298 of the Constitution.
Mootham and Wanchoo, JJ., who delivered a common judgment, were also of the opinion that
there was no need for a specific legislative enactment to enable a State Government to run a bus
service. In the opinion of these learned Judges an act would be within the executive power of the
State if it is not an act which has been assigned by the Constitution of India to other authorities
or bodies and is not contrary to the provisions of any law and does not encroach upon the legal
rights of any member of the public.

It may not be possible to frame an exhaustive definition of what executive function means and
implies. Ordinarily the executive power connotes the residue of governmental functions that
remain after legislative and judicial functions are taken away The executive indeed can
exercise the powers of departmental or subordinate legislation when such powers are delegated
to it by the legislature.
It can also, when so empowered, exercise judicial functions in a limited way. The executive
Government, however, can never go against the provisions of the Constitution or of any law.
This is clear from the provisions of Article 154 of the Constitution but, as we have already stated,
it does not follow from this that in order to enable the executive to function there must be a law
already in existence and that the powers of the executive are limited merely to the carrying out of
these laws.
The limits within which the executive Government can function under the Indian Constitution
can be ascertained without much difficulty by reference to the form of the executive which our
Constitution has set up.

Our Constitution, though federal in its structure, is modeled on the British parliamentary system
where the executive is deemed to have the primary responsibility for the formulation of
governmental policy and its transmission into law though the condition precedent to the exercise
of this responsibility is its retaining the confidence of the legislative branch of the State.
The executive function comprises both the determination of the policy as well as carrying it into
execution. This evidently includes the initiation of legislation, the maintenance of order, the
promotion of social and economic welfare, the direction of foreign policy, in fact the carrying on
or supervision of the general administration of the State.

In Ram Jawaya v. State of Punjab, the Supreme Court observed, It may not be possible to frame
an exhaustive definition of what executive function means and implies. Ordinarily the executive
power connotes the residue of governmental functions that remain after legislative and judicial
functions are taken away." Thus, administrative functions are those functions which are neither
legislative nor judicial in character. Generally, the following ingredients are present in
administrative functions:

1. An administrative order is generally based on governmental policy or expediency.

2. In administrative decisions, there is no legal obligation to adopt a judicial approach to the
questions to be decided, and the decisions are usually subjective rather than objective.
3. An administrative authority is not bound by the rules of evidence and procedure unless the
relevant statute specifically imposes such an obligation.
4. An administrative authority can take a decision in exercise of a statutory power or even in the
absence of a statutory provision, provided such decision or act does not contravene provision of
any law.
5. Administrative functions may be delegated and sub-delegated unless there is a specific bar or

prohibition in the statute.

6. While taking a decision, an administrative authority may not only consider the evidence
adduced by the parties to the dispute, but may also use its discretion.
7. An administrative authority is not always bound by the principles of natural justice unless the
statute casts such duty on the authority, either expressly or by necessary implication or it is
required to act judicially or fairly.
8. An administrative order may be held to be invalid on the ground of unreasonableness.
9. An administrative action will not become a quasi-judicial action merely because it has to be
performed after forming an opinion as to the existence of any objective fact.
10. The prerogative writs of certiorari and prohibition are not always available against
administrative actions.
Need for Classification
A question which arises for our consideration is whether the function performed by the executive
authorities are purely administrative, quasi-judicial or quasi-legislative in character. The answer
is indeed difficult, as there is no precise, perfect and scientific test to distinguish these functions
from one another. Administrative and quasi-judicial decisions tend to merge in legislative activity
and, conversely, legislative activity tends to fade into and present an appearance of an
administrative or quasi-judicial activity. A further difficulty arises in a case in which a single
proceeding may at times combine various aspects of the three functions. The courts have not
been able to formulate any definite test for the purpose of making such classification.

Yet, such classification is essential and inevitable as many consequences flow from it, e.g. if the
executive authority exercises a judicial or quasi-judicial function, it must follow the principles of
natural justice and is amenable to a writ of certiorari or prohibition, but if it is a legislative or
quasi-legislative function, natural justice has no application. If the action of the executive
authority is legislative in character, the requirement of publication, laying on the table, etc.
should be complied with, but it is not necessary in the case of a pure administrative action.
Again, if the function is administrative, delegation is permissible, but if it is judicial, it cannot be
delegated.

An exercise of legislative power may not be held invalid on the ground of unreasonableness, but
an administrative decision can be challenged as being unreasonable. It is, therefore, necessary to
determine what type of function the administrative authority performs.

Whether the order in question is a quasi-judicial order or an administrative or ministerial order?

Regina (John M'Evoy) v. Dublin Corporation(1), [1878] 2 L.R. Irish 371, 376. (2) [1926] A.C,
586.
May CJ. in dealing with this point observed as follows:-"It is established that the writ of certiorari does not lie to remove an order merely ministerial,
such as a warrant, but it lies to remove and adjudicate upon the validity of acts judicial. In this
connection, the term 'judicial' does not necessarily mean acts of a judge or legal tribunal sitting
for the determination of matters of law, but for the purpose of this question a judicial act seems
to be an act done by competent authority, upon consideration of facts and circumstances, and
imposing liability or affecting the rights of others."
This definition was approved by Lord Atkinson in

Frome United Breweries Co. v. Bath

Justices ) [1926] A.C, 586as the best definition of a judicial act as distinguished from an
administrative act.
The King v. London County Council [1931] 2 K.B. 215, 233. 631
Scrutton L.J. observed as follows :--"it is not necessary that it should be a court in the sense in
which this court is a court; it is enough if it is exercising, after hearing evidence, judicial
functions in the sense that it has to decide on evidence between a proposal and an opposition;
and it is not necessary to be strictly a court; if it is a tribunal which has to decide rights after
hearing evidence and opposition, it is amenable to the writ of certiorari."
Province Of Bombay vs Kusaldas S. Advani And Others 1950 AIR 222, 1950 SCR 621
Section 3 of the Bombay Land Requisition Ordinance (V of 1947) provided as follows:-" If in the opinion of the Provincial Government it is necessary or expedient to do so the
Provincial Government may, by order in writing requisition any land for any public purpose:

Provided that no land used for the purpose of public religious worship or for any purpose which
the Provincial Government may specify by notification in the Official Gazette shall be
requisitioned under this section."
The let respondent who was a refugee from Sind got an assignment of the tenancy rights in a flat
in Bombay and went into possession of the flat.
A few days later the Government of Bombay issued an order requisitioning the flat under s. 3 of
the above said Ordinance, allot-ted the same to another refugee and issued orders to an Inspector
to take possession of the same.
On an application under Art. 32 of the Constitution, a writ of certiorari was issued by the
Bombay High Court against the Province of Bombay and others and this order was confirmed on
appeal as against the Province of Bombay by a Division Bench of the said High Court
KANIA C.J.-Though a writ of certiorari may be issued where a body of persons having legal authority to
determine questions affecting the rights of subjects and having a duty to act judicially act in
excess of their legal authority, yet merely because an executive authority has to determine certain
objective facts affecting the rights of subjects as a preliminary step to the discharge of an
executive function it does not follow that it must determine those facts judicially.
On the contrary, when the executive authority has to form an opinion about an objective matter
as a preliminary step to the exercise of a certain power conferred on it, the determination of the
objective fact and the exercise of the power based thereon are alike matters of an administrative
character and are not amenable to the writ of certiorari.
It cannot be laid down broadly that ,in order that a determination may be a judicial or quasijudicial one, there must be a proposition and an opposition, or that a lis is necessary, or that it is
necessary that there should be right to examine, cross examine and reexamine witnesses. The
true test is whether the law, under which the authority is making a decision, itself requires a
judicial approach

FAZAL ALI J.
The mere fact that an executive authority has to decide something does not make the decision
judicial. It is the manner in which the decision has to be arrived at which makes the difference
and the real test is there any duty to decide judicially.
There is nothing in s. 3 or any other section of the Ordinance in question which imposes
expressly or impliedly a duty on the Provincial Government to decide the existence of a public
purpose judicially or quasi-judicially.
It is well settled that when an Act or regulation commits to an executive authority the decision of
what is necessary or expedient and that authority make the decision, it is not competent to the
courts to investigate the grounds or the reasonableness of the decision in the absence of an
allegation of bad faith, and the opinion formed by the Provincial Government whether it is
necessary or expedient to acquire land, given a public purpose, cannot therefore be questioned.
The same cannot be said with regard to the decision of the Provincial Government as to the
existence of a public purpose which is the foundation of its power and is a condition precedent to
its exercise.
The determination of the public purpose and the opinion formed as to the necessity or
expediency of requisition do not form one psychological process but are two distinct and
independent steps
and
if the executive authority requisitions land, under s. 3 without, there being a public purpose in
existence its action would be a nullity, and the person whose right is affected can go to the proper
court and claim a declaration that his rights cannot be affected.
An application for certiorari would not, however, lie in such a case , as the requisition of
premises under s. 3 of the Ordinance is a purely administrative act and does not involve any duty
to decide the existence of a public purpose or any other matter judicially or quasi-judicially.

MAHAJAN J.
The question whether an act is a judicial or a quasi-judicial one or a purely executive act depends
on the terms of the particular rule and the nature, scope and effect of the particular power in
exercise of which the act may be done and would therefore depend on the facts and
circumstances of each case.
The question whether a land is required for a public purpose or is being used for public worship
involves difficult questions of law and fact seriously affecting the rights of parties.
These are not questions for the mere determination of the Government subjectively by its own
opinion, but are matters for determination objectively and in a judicial manner, on materials
which the Government have sufficient power to call for under clauses. 10 and 12 of the
Ordinance after hearing any opposition to its proposal, and the High Court of Bombay had
therefore jurisdiction to issue a writ of certiorari.

MUKHERJEA J.
Under s. 3 of the Ordinance, the act of requisitioning land is left to the executive discretion of the
Provincial Government.
But
the section makes the existence of a public purpose an essential prerequisite to the taking of steps
by the Provincial Government in the matter of requisitioning any property and under the section
the essential fact on which the jurisdiction to proceed with the requisition is rounded is the
existence of a public purpose as an objective fact, and not the subjective opinion of the
Provincial Government that such fact exists.

Whether a public purpose exists or not has to be determined judicially as there is a lie or
controversy between the interest of the public on the one hand and that of the individual who
owns the property on the other hand, and the determination of the Government was therefore a
judicial act; the determination was further a collateral matter on which the jurisdiction to
requisition was rounded, and not a part of the executive act of requisitioning, and a writ of
certiorari could therefore be issued .

DAS J.-The words "to do so" in s. 3 of the Ordinance refer to the entire composite matter of
"requisitioning for a public purpose," not merely to the act of requisitioning simpliciter and the
existence of a public purpose was left as much to the subjective opinion of the Provincial
Government as the necessity or expediency for requisitioning a particular land.
As the formation of the opinion on the entire matter was purely subjective and the order of
requisition was to be rounded on this subjective opinion, it was not a judicial or quasi-judicial act
but a purely administrative act and consequently it was not a matter in respect of which a writ of
certiorari could be issued.
Even on the assumption that the question of the existence of a public purpose had not been left to
the subjective opinion of the Provincial Government and that the question had to be determined
by it, there was nothing in s. 3 to suggest that such determination had to be made judicially and a
writ of certiorari would not in any case lie.
Even if the existence of a public purpose was a collateral fact, then at best is was only a case of
an administrative body assuming jurisdiction to perform its administrative powers, and if it
assumes jurisdiction on an erroneous assumption it might be corrected by an action, but certiorari
cannot be an appropriate remedy; and assuming further that this collateral fact had to be decided
quasi-judicially and its decision might be quashed, the administrative act, namely the formation
of opinion and the order based thereon would still remain unaffected by certiorari.
In order that a body may be a quasi-judicial body it is not enough that it should have legal
authority to determine questions affecting the rights of subjects; there must be superadded to that
characteristic the further characteristic that the body has the duty to act judicially. If a statute
empowers an authority not being a court in the ordinary sense to decide disputes arising out of a

claim made by one party under the statute which claim is opposed by another party and to
determine the respective rights of the contesting parties who are opposed to each other, there is a
lis and prima facie, and in the absence of anything in the statute to the contrary, it is the duty of
the authority to act judicially and the decision of the authority is a quasi-judicial act.
If a statutory body his power to do any act which will prejudicially affect the subject, then
although there are not two parties apart from the authority, and the contest is between the
authority proposing to do the act and the subject opposing it, the final determination of the
authority will yet be a quasi-judicial act provided the authority is required by the statute to act
judicially.
A mere provision for an enquiry as a preliminary step to coming to a decision will not
necessarily make the decision a quasi-Judicial act, for, the purpose of the enquiry may only be to
enable the deciding authority to make up its mind to do what may be a purely administrative act.(
But this cannot be said to be a correct opinion)
Held, per KANIA C.J., FAZL ALI, PATANJALI SASTRI, and DAS JJ.
The powers given to the Provincial Government under ss. 10 and 12 of the Ordinance are only
enabling and in terms are not compulsory, and there is nothing in these sections which makes it
incumbent on the Government to set judicially in the matter of making an order for requisition
under s. 3.
Held Also, per MAHAJAN, and MUKERJEA JJ.
(i) that the immunity granted by s. 306 of the Government of India Act, 1935, related to the
Governor and not, to the Provincial Government and under the said Act the High Court of
Bombay had jurisdiction to issue a writ of certiorari against the Provincial Government of
Bombay;
(ii) that the word "sue" in s. 176 of the said Act meant the enforcement of a claim or a civil right
by means of legal proceedings and was wide enough to include an application for a writ of
certiorari.
(Though these two revered judicial authorities have not said anything as to carry out implied
application implication of judicial essentials necessarily but they can be taken understood So.)
Sundarjas Kanyalal Bhathija v. The Collector, Thane, Maharashtra, AIR 1990 SC 261.

In that case, Section 3(3)(2) of the Bombay Provincial Municipal Corporation Act, 1949 fell for
consideration.
In that case, the Government of Maharashtra issued a draft notification under Section 3(3) of the
Corporation Act proposing to form Kalyan Corporation suggesting merging of municipal areas of
Kalyan, Ambarnath, Dombivali and Ulhasnagar.
Objections were received. The Government finally decided to exclude Ulhasnagar from the
proposed Corporation and issued notification accordingly. Consequently Corporation was
constituted excluding Ulhasnagar area.
The other proposals continued as before. In the writ petition filed in the High Court against such
constitution of the Municipal Corporation, Kalyan. It was alleged by certain objectors that the
action of the Government affording an opportunity of being heard only to a federation of
residents of Ulhasnagar and not to other objectors, was contrary to Article 14.
They also alleged that exclusion of Ulhasnagar, having regard to its geographical continuity, was
unintelligible and incomprehensible. The High Court allowed the petition and directed the State
Government to reconsider the proposal. Certain persons who intervened in the High Court,
appealed to the Supreme Court against that order.
The Supreme Court set aside the order of the High Court and held that the function of the
Government in establishing a Corporation under the Act is neither executive or administrative.
The process indeed is legislative. Consequently no judicial duty is cast on the Government in the
discharge of that statutory function. The only question to be seen is if the statutory provisions
have been complied with. It was emphasised that the Government in exercise of its powers, is not
subject to the rules of natural justice any more than the itself.
The rules of natural justice are not applicable to the legislative action plenary or subordinate.
Procedural requirement of hearing is not implied in exercise of legislative powers unless hearing
was expressly prescribed. Relying upon the decision by Megarry, J. in Bates v. Lord Haitsham of
St. Marylebone (1972) 1 WLR 1373, the Court observed that it is only in the administrative or
executive field that there is a general duty of fairness, but such considerations do not seem to
affect the process of legislation whether primary or delegated.
Reference was also made to the Judicial Review of Administrative Action (3rd Edition) by Prof.
Section A. De Smith and the following was quoted with approval:

"However, the analytical classification of a function may be a conclusive factor in excluding the
operation of the audi alteram partem rule. It is generally assumed that in English law, the
making of a subordinate legislative instrument need not be preceded by notice or hearing unless
the parent Act so provides."
Km. Neelima Misra vs Dr. Harinder Kaur Paintal And Ors 1990 AIR 1402
The appellant and the respondents applied for the post of Reader in Psychology in Lucknow
University. Under the University Statute, the minimum qualification for the post was a Doctorate
degree or a published work of high standard in the subject. The respondents possessed Ph.D.
degree, while the appellant's thesis was nearing completion. On the basis of her experience,
performance at the interview and published work, which was found to be of high standard on the
subject, the Selection Committee recommended the appellant's appointment by grading her No.
1. 85
By a split of the majority, the Executive Council disa- greed with the recommendation of the
Selection Committee on the ground that the appellant did not possess the essential qualification
for the post of Reader and it preferred the appointment of respondent No. 2.
In view of the Council's disagreement, the matter was referred to the Chancellor for his decision
under Section 31(8)(a) of the U.P. State Universities Act, 1973. The Chancellor rejected the
opinion of Executive Council and accepted the recommendations of the Selection Committee and
directed that the appellant should be appointed as a Reader. Respondent No. 1 challenged the
Chancellor's order by filing a writ petition in the High Court, which following its earlier Full
Bench decision wherein it was held that the Chancellor must explicitly state the reasons for his
deci- sion and was enjoined by the Act to act quasijudicially quashed the Chancellor's order with
a direction to reconsid- er the matter.
In the appeal to this Court on the question of the nature of the Chancellor's power under Section
31(8)(a) of the U.P. State Universities Act, 1973 whether quasi judicial or purely Executive.
An administrative function is called quasi-judicial when there is an obligation to adopt the
judicial approach and to comply with the basic requirements of justice. Where there is no such
obligation, the decision is called 'purely administrative'The conclusiveness of the decision
without the need for confirmation or adoption by any other authority is generally regarded as one

of the features of judicial power. But the order made by a statutory authority even it is given
finality does not thereby acquire judicial quality if no other characteristic of judicial power is
present. Powers to make orders that are binding and conclusive are not, by itself a decisive factor
to hold that the power is judicial.
So far as the administrative officers are concerned, the duty is not so much to act judicially as to
act fairly. For this concept of fairness, adjudicative settings are not necessary, nor it is necessary
to have lis inter parties. There need not be any struggle between two opposing parties giving rise
to a 'lis'. There need not be resolution of lis inter parties. The duty to act judicially or to act fairly
may arise in widely different circumstances. It may arise expressly or impliedly depending upon
the context and con- siderations. All these types of non-adjudicative administrative decision
making are now covered under the general rubric of fairness in the administration. But then .even
such an administrative decision unless it affects one's personal rights or one's property rights, or
the loss of or prejudicially affects something which would juridically be called at least a privilege
does not involve the duty to act fairly consistence with the rules of natural justice.
In matters of appointment in the academic field the Court generally does not interfere. The
Courts should be slow to interfere with the opinion expressed by the experts in the absence of
mala fide alleged against the experts. When appointments are based on recommendations of
experts nominated by the Universities, the High Court has got only to see whether the
appointment had contravened any statutory or binding rule or ordinance. The High Court should
show due regard to the opinion expressed by the experts constituting the Selection Committee
and its recommendation on which the Chancellor has acted.
State Of Orissa vs Dr. (Miss) Binapani Dei & Ors1967 AIR 1269, 1967 SCR (2) 625
The first respondent joined the service of the State Government in 1938.
In 1961 the Govermment held an enquiry into her date of birth.
She was then asked to show cause why a certain date should not be taken as her date of birth.
The report of the enquiry officer was not disclosed, and the first respondent was not given an
opportunity to meet the evidence used against her.

The Government refixed the date of birth of the first respondent and ordered that she be
compulsorily retired. The first respondent then filed a writ petition in the High Court which was
allowed. The State appealed

It was contended on behalf of the appellant State that

(i) The High Court in dealing with a petition under Art. 226 of the Constitution ought not to have
proceeded to determine disputed questions of fact,
(ii) Order refixing the date of birth of the respondent was an administrative order and the High
Court had no power to sit in appeal over the decision of the State authorities.
The first respondent held office in the Medical Department of the Orissa Government. She as
holder of that office, had a right to continue in service according to the rules framed under Art.
309 and she could not be removed from office before superannuation except "for good and
sufficient reasons."
The State was undoubtedly not precluded, merely because of the acceptance of the date of birth
of the first respondent in the service register, from holding an enquiry if there existed sufficient
grounds for holding such enquiry and for refixing her date of birth.
But the decision of the State could be based upon the result of an enquiry in manner consonant
with the basic concept of justice.
An order by the State to the prejudice of a person in derogation of his vested rights may be made
only in accordance with the basic rules of justice and fairplay.
The deciding authority, it is true, is not in the position of aJudge called upon to decide an action
between contesting parties, and strict compliance with the forms of judicial procedure may not
be insisted upon. He is however under a duty to give the person against whom an enquiry is held
an opportunity to set up his version or defence and an opportunity of correct or to controvert any
evidence in the possession of the authority which is sought to be relied upon to his prejudice.
For that purpose the person against whom an enquiry is held must be informed of the case he is
called upon to meet, and the evidence in support thereof. The rule that a party to whose prejudice

an order is intended to be passed is entitled to a hearing applies to judicial tribunals and bodies of
persons invested with authority to adjudicate upon matters involving civil consequences. It is one
of the fundamental rules of our constitution 'setup that every citizen is protected against exercise
of arbitrary authority by the State or its officers. Duty to act judicially would therefore arise from
the very nature of the function intended to be perform; it need not be shown to be super-added. If
there is power to decide and determine to the prejudice of a person, duty to act judicially is
implicit in the exercise of such power. If the tails of justice be ignored and an order to the
prejudice of 'a person is made, the order is a nullity.

The State has undoubtedly authority to compulsorily retire a public servant who is
superannuated. But when that person disputes the claim he must be informed of the case of the
State and the evidence in support thereof and he must have a fair opportunity of meeting that
case before a decision adverse to him is taken.
Duty to act judicially would therefore arise from the very nature of the Function: it need not to be
shown to be super added.
Union of India v. Cynamide Ltd. Air 1987 SC
price fixation is more in the nature of a legislative activity than any other. It is true that, with the
proliferation of delegated legislation, there is a tendency for the line between legislation and
administration to vanish into an illusion. Administrative, quasi-judicial decisions tend to merge
in legislative activity and, conversely, legislative activity tends to fade into and present an
appearance of an administrative or quasi-judicial activity. Any attempt to draw a distinct line
between legislative and administrative functions, it has been said, is 'difficult in theory and
impossible in practice'
The distinction between the two has usually been expressed as 'one between the general and the
particular'.
'A legislative act is the creation and promulgation of a general rule of conduct without reference
to particular cases; an administrative act is the making and issue of a specific direction or the
application of a general rule to a particular case in accordance with the requirements of policy'

. 'Legislation is the process of formulating a general rule of conduct without reference to

particular cases and usually operating in future; administration is the process of performing
particular acts, of issuing particular orders or of making decisions which apply general rules to
particular cases.'
It has also been said "Rule making is normally directed toward the formulation of requirements
having a general application to all members of a broadly identifiable class" while, "an
adjudication, on the other hand, applies to specific individuals or situations". But, this is only a
bread distinction, not necessarily always true.
Administration and administrative adjudication may also be of general application and there may
be legislation of particular application only. That is not ruled out. Again, adjudication determines
past and present facts and declares rights and liabilities while legislation indicates the future
course of action. Adjudication is determinative of the past and the present while legislation is
indicative of the future. The object of the rule, the reach of its application, the rights and
obligations arising out of it, its intended effect on past, present and future events, its form, the
manner of its promulgation are some factors which may help in drawing the line between
legislative and non-legislative acts.
A price fixation measure does not concern itself with the interests of an individual manufacturer
or producer. It is generally in relation to a particular commodity or class of commodities or
transactions. It is a direction of a general character, not directed against a particular situation. It is
intended to operate in the future.
Conclusion:
Objectivity of law guides the Subjectivity of Administrative Function.