R. Chitralekha & ANR Vs. State of
Mysore & Ors [1964] INSC 20 (29 January 1964)
29/01/1964 SUBBARAO, K.
SUBBARAO, K.
SINHA, BHUVNESHWAR P.(CJ) DAYAL, RAGHUBAR
AYYANGAR, N. RAJAGOPALA MUDHOLKAR, J.R.
CITATION: 1964 AIR 1823 1964 SCR (6) 368
CITATOR INFO:
F 1967 SC1145 (16) R 1967 SC1283 (7) F 1968
SC1379 (6) R 1970 SC 679 (17) R 1971 SC1731 (14) RF 1971 SC2303 (14,16,24) R
1971 SC2560 (10) R 1972 SC1375 (80,93) RF 1973 SC 930 (22,25) RF 1975 SC 563
(33,34) R 1975 SC2299 (485) R 1976 SC2381 (21) RF 1976 SC2482 (5) F 1980 SC 383
(3) RF 1980 SC1975 (12) RF 1981 SC 487 (18) R 1984 SC 873 (7) O 1985 SC1495
(11,13,59,63,67,99,118,147) R 1987 SC 400 (20) RF 1987 SC2034 (18)
ACT:
Constitution of India, 1950, Art. 166--If
mandatory-List I Entry 66--scope of--Viva Voce test for admission in
college--If violation of Art. 14--Article 15(4)--Classification of backward
classes--Validity.
HEADNOTE:
The Government of Mysore by an order defined
backward classes and directed that 30 per cent of the seats in professional and
technical colleges and institutions shall be reserved for them and 18 per cent
to the Schedule castes and Scheduled Tribes. It was laid down that
classification of socially and educationally backward classes should be made on
the basis of economic condition and occupation. By a letter the Government
informed the Director of Technical Education that it had been decided that 25%
of the maximum marks for the examination in optional subjects shall be fixed as
interview marks. The selection will be conducted by a committee composed of
Heads of Technical Institutions aid in allotting marks for interview factors
like general knowledge, personality and extracurricular activities of the
candidates should be' taken into consideration.
On the basis of the above criteria selections
were made for admission to Engineering and Medical Colleges. Thereupon some of
the candidates whose applications for admission were rejected filed writ
petitions before the High Court of Mysore for quashing the orders issued by the
Government and for directing that they shall be admitted in the colleges
strictly in the order of merit. The High Court rejected the contentions raised
on points of law but found that the selection committee has abused its power
and directed that the petitioners be interviewed afresh and admissions be made
in accordance with the Government Order and letter which were declared valid.
Before this Court it was contended that the
Government letter was invalid inasmuch as it did not comply with the provisions
of Art. 166 of the Constitution. The next contention was that the Government
had no power to appoint a selection committee for admitting students to
colleges on the basis of higher or different qualifications than those
prescribed by the University. Another contention was that selection by viva
voce examination was illegal by reason of the fact that it enables the
interviewers to act arbitrarily and therefore it contravenes Art. 44 of the
Constitution.
Lastly it was contended that unless the
observation of the High Court that the classification was not perfect since the
Government has not applied the caste test as well as the economic test is
corrected it will mislead the Government.
Held: (Per B. P. Sinha, C.J., Subba Rao,
Raghubar Dayal and Rajagopala Ayyangar JJ.) (i) The provisions of Art. 166 of
the Constitution are only directory and not mandatory and, if they are not
complied with, it can be established as a question of fact that the impugned
order was issued in fact by the State Government or the Governor. In the
present case the impugned order though it does not conform to the provisions of
Art. 166 ex facie says that an order to the effect mentioned therein was issued
by the Government and it is not denied by the appellants that the order was made
by the Government and neither it is denied that it was communicated to the
selection committee.
Therefore it is valid.
134-159 S.C.-24 370 Dattatraya Moreshwar
Pangarkar v. State of Bombay [1952] S.C.R. 612, State of Bombay v. Purushottam
log Naik, [1952] S.C.R. 74, Ghaio Mall & sons v. State of Delhi, [1959]
S.C.A. 1424 and Bachittar Singh v. State of Punjab, [1962] Supp. 3 S.C.R. 713,
referred to.
(ii) If the impact of the State law providing
for standards of education on entry 66 of List I is so heavy and devastating as
to wipe out or appreciably abridge the Central field it may be struck down. But
that is a question of fact to be ascertained in each case. If a State law
Prescribes higher percentage of marks for extra-curricular activities in the matter
of admission to colleges it cannot be said that it would be directly
encroaching on the field covered by entry 66 of List I. The Government Orders
do not contravene the minimum qualification prescribed by the Mysore
University; what the Government did was to appoint a selection committee and
prescribe for selection of students who have the minimum qualifications
prescribed by the University. Since they cannot admit all the students who have
secured the minimum marks prescribed by the University they had necessarily to
select the applicants on some reasonable basis. The State Government is
therefore entitled to prescribe a machinery and also the criteria for admission
of qualified students to medical and engineering colleges run by the Government
and with the consent of the management of the Government aided colleges, to the
said colleges also.
Gujarat University v. Shri Krishna, [1963]
Supp. 1 S.C.R.
112, distinguished.
(iii) The selection by viva voce is one of
the methods suggested by modern authorities on education in preference to
written tests. It is no', for the court to say which method should be adopted,
it should be left to the authorities concerned. The fact that one particular
method is capable of abuse is not sufficient ground for quashing it as being
violative of Art. 14. If in a given case the selection committee abuses its
powers in violation of Art.
14 the selection will be held invalid and
will be set aside as the High Court has done in the present case.
(iv) A classification of backward classes
based on economic conditions and occupation is not bad and does not offend Art.
15(4). The caste of a group of citizens may be a relevant circumstance in
ascertaining their social backwardness and though it is a relevant factor to
determine social backwardness of a class, it cannot be the sole or dominent
test in that behalf. If in a given selection caste is excluded in ascertaining
a class within the meaning of Art. 15(4) it does not vitiate the classification
if it satisfied other tests. The inference to the contrary which may be drawn
from the observation of the High Court in the impugned judgment will not be
correct in law or a correct reading of the observations of this Court in M. R.
Balaji v. State of Mysore, [1963] Supp. 1 S.C.R. 439.
(v) Various provisions of the Constitution
like Arts. 15, 29, 46, 341 and 342 which recognise the factual existence of
backward classes in our 371 country and which make a sincere attempt to promote
the welfare of the weaker sections thereof should be construed to effectuate
that policy and not to give weightage to progressive sections of the society
under the false colour of caste to which they happen to belong. Under no
circumstances a "class" can be equated to a "caste" though
the caste of an individual or group of individuals may be a relevant factor in
putting him in a particular class. If in a given situation caste is excluded in
ascertaining a class within the meaning of Art. 15(4) it would not violate the
classification if it satisfied other tests. If an entire sub-caste by and
large, is backward, it may be included in the Scheduled Castes by following the
appropriate procedure laid down by the Constitution.
Per Mudholkar, J. (dissenting): (i) The
decisions of this Court dealing with Art. 166 of the Constitution have
definitely held that where the' existence of a Government Order itself is
challenged by a person who is affected by it the burden is upon the Government
to establish that an order was in fact made by the Governor in the manner
provided for in the rules of business framed by the Governor under cl.
(3) of Art. 166.
(ii) It is not correct to say, in this case,
that the appellants have not denied the existence of the order.
Right from the beginning they have been
saying that there was no "Government Order" in so far as admission to
the Medical College was concerned. Since both the appellants were concerned
only with the admission to a Medical College they had no necessity to deny the
existence of the Government Order regarding admission to an Engineering
College. The document which is relied on the State to establish that there was
a Government Order is nothing but a communication from the Secretary to
Government of Mysore addressed to the selection committee and Deans Medical
College Mysore. It is thus not an order of the kind contemplated by Art. 166.
Except a statement in that communication that the Under Secretary is
"directed to state" that the Government has taken a decision there is
no evidence or averment that the Governor has made an order providing for
interview. In no case has this Court held that such a document. can be treated
as the Governor's Order or even evidence of the existence of the Governor's
Order.
(iii) The decision of this Court in Gujarat
University v. Shri Krishna, [1963] Supp. 1 S.C.R. 112, establishes that the
power to provide for coordination and determination of standards in certain
institutions like the medical colleges is vested in the Parliament and even
though Parliament may not have exercised that power the State Legislature
cannot step in and provide for the determination and coordination of standards
by requiring that marks on the basis of interviews be awarded to the applicants
for admission of candidates to,-such institutions as is done in the present
case. It constitutes an interference with the standards of admission laid down
by the University.
(iv) The executive power of the State which
is co-extensive with legislative power under Art. 162 of the Constitution
cannot be exercised where such exercise is contrary to law or where it has been
assigned to 372 other authorities or bodies. Section 23 of the Mysore
University Act, provides that the Acadamic Council shall have power to
prescribe the conditions of admission to the University and therefore the executive
cannot encroach on this power.
Rai Sahib Ram Jawaya Kapur v. State of
Punjab, [1955] 2 S.C.R. 225 and Motilal v. Government of State of Uttar
Pradesh, A.I.R. 1951 All 259 (F.13.).
(v) It would not be in accordance with cl.
(1) of Art. 15 or cl. (2) of Art. 29 to require the consideration of the caste
of persons to be borne in mind for determining what are socially and
educationally backward classes.
CIVIL APPELLATE JURISDICTION: Civil Appeals
Nos. 1056 and 1057 of 1963.
Appeals by special leave from the judgment
and order dated September 30, 1963 of the Mysore High Court in Writ Petitions
Nos. 1592 and 1522 of 1963.
S. K. Venkataranga Iyengar and R.
Gopalakrishnan, for the appellants (in both the appeals).
C. K.. Daphtary, Attorney-General, B. R. L.
lyengar and B. R. G. K. A char, for the respondents (in both the appeals)
January 29, 1964. The Judgment of B. P. Sinha, C.J., K. Subba Rao, N.
Rajagopala Ayyangar and Raghubar Dayal JJ. was delivered by Subba Rao J.
Mudholkar J. delivered a dissenting opinion.
SUBBA RAO J.-These two appeals raise the
question of the validity, of the orders made by the Government of Mysore in
respect of admissions to Engineering and Medical Colleges in the State of
Mysore. The facts may be briefly stated: in the State of Mysore there are a
number of Engineering and Medical Colleges-most of them are Government Colleges
and a few of them are Government aided Colleges. The State Government appointed
a common selection committee for settling admissions to the Engineering Colleges
and another common selection committee for settling admissions to Medical
Colleges. The Government by an order dated July 26, 1963, marked as Ex. C in
the 373 High Court, defined backward classes and directed that 30 per cent of
the seats in professional and technical colleges and institutions shall be
reserved for them and 18 per cent.
to the Scheduled Castes and the Scheduled
Tribes. On July 6, 1963, the Government sent a letter to the Director of
Technical Education in Mysore, Bangalore, informing him that it had been
decided that 25 per cent of the maximum marks for the examination in the
optional subjects taken into account for making the selection of candidates for
admission to Engineering Colleges shall be fixed as interview marks;
it also laid down the criteria for allotting
marks in the interview. It appears that a similar order was issued in respect
of Medical Colleges. The selection committee converted the total of the marks
in the optional subjects to a maximum of 300 marks and fixed the maximum marks
for interview at 75. On the basis of the marks obtained by the candidates in
the examination and those -obtained in the interview, selections were made for
admission to Engineering and Medical Colleges. Some of the candidates whose
applications for admission to the said colleges were rejected filed petitions
under Art. 226 of the Constitution in the High Court of Mysore for quashing the
orders issued by the Government in the matter of admissions to the said
Colleges and for a direction that they shall be admitted in the Colleges
strictly in the order of merit. The High Court, after considering the various
contentions raised by the petitioners, held that the orders defining
backwardness were valid and that the criteria laid down for interview of students
were good; but it held that -the selection committee had abused the powers
conferred upon it and on that finding set aside the interviews held and
directed that the applicants shall be interviewed afresh in accordance with the
scheme laid down by the Government in Exs. C and D and in Annexure IV, subject
to the directions given by it.
Two of the petitioners have filed the present
appeals against the said order of the High Court.
We shall now proceed to deal with the various
contentions raised by learned counsel for the appellants.
Learned counsel for the appellants contends
that the Government did not issue any order to the selection committee in
charge of admissions to Medical Colleges prescribing the marks for interview or
fixing the criteria for allotting the said marks. Annexure IV dated July 6,
1963, relates to award of marks for the interview of candidates, seeking
admission to Engineering Colleges and Technical Institutions. It was a letter
written by the Secretary to the Government of Mysore, Education Department, to
the Director of Technical Education in Mysore Bangalore.
Therein the Government fixed the percentage
of marks to be allotted at the interview. The selection committee was
authorised to allot marks to the candidates, having regard to the following
factors:
(1) General Knowledge.
(2) Aptitude and personality.
(3) Previous academic career, including
special distinctions, etc.
(4) N . C.C., A.C.C., etc.
(5) Extracurricular activities including
sports, social service, debating, dramatics, etc.
But at the time of arguments no letter
written by the Government in respect of admissions to Medical Colleges was
placed before us. There is no definite allegation in either of the two
affidavits filed by the appellants that no such order was issued by the
Government in respect of Medical Colleges. But, in the petition filed by
Chitralekha in para 22 the following statement is found:
"As the order empowering them to award
75 marks as interview marks has so far remained secret in that it has not been
made available, this Hon'ble Court may be pleased to send for the same, as the
order falls to be quashed." This averment assumes that such an order was
made. In the counter-affidavit filed by Dr. Dharmaraj, Dean, Medical College,
and Chairman of the selection committee for admission to Medical Colleges, it
is stated that the Government by its letter directed that the said selection
committee shall interview candidates and allot marks the maximum of which shall
be 25 per cent of the maximum marks for the optional subjects and laid down the
criteria for allotting marks in the interview. In the paper-book as typed the
description of the letter is omitted. But the learned;
Attorney-General stated that in the original
the description is given and that is, PLM 531 MNC 63 dated 12th July, 1963.
In the counter-affidavit filed by B. R.
Verma, Deputy Secretary to -the Government of Mysore, Education Department,
Bangalore, after referring to Annexure IV, it is stated that a similar letter
was sent by the Government to the Selection Committee for admission to Medical
Colleges.
It does not appear from the judgment of the
High Court that learned counsel for the appellants denied the existence of such
a communication in respect of Medical Colleges, but Proceeded with his argument
on the basis that a communication similar to Annexure IV issued in connection
with admissions to Engineering Colleges existed in the case of Medical Colleges
also. But before us the learned counsel for the appellants heavily relied upon
the fact that the said order was not filed in the court and was not willing to
accept the assurance given by the Attorney-General on instructions that such an
order existed. In the circumstances we directed the Attorney-General to file the
said order. A copy of the letter written by the Government has since be-en
filed and it clearly shows that the relevant instructions were issued in,
respect of admission to Medical Colleges also. We, therefore, hold that the
Government sent a letter similar in terms. to annexure IV to the selection
committee for admission to, Medical Colleges.
The next contention advanced is that Annexure
IV was invalid as it did not conform to the requirements of Art. 166 of the
Constitution. As the argument turns upon the for= of the said annexure it will
be convenient to read the material part thereof.
"sir, Sub : Award of marks for the
"interview" of the candidates seeking admission to Engineering
Colleges and Technical Institutions.
With reference to your letter No. AAS.
4.ADW/63/2491, dated the 25th June, 1903, on the subject 376 Mentioned above, I
am directed to state that Government have decided that 25 per cent of the
maximum marks Yours faithfully, Sd/S. NARASAPPA, Under Secretary to Government,
Education Department." Ex facie this letter shows that it was a
communication of he order issued by the Government under the signature of the
Under Secretary to the Government, Education Department.
Under Art., 166 of the Constitution an
executive action of the Government of a State shall be expressed to be taken in
the name of the Governor, and that orders made in the name of the Governor
shall be authenticated in such, manner as may be specified in rules to be made
by be Governor and the validity of an order which is so authenticated shall not
be called in question on the ground hat it is not an order made by the
Governor.
If the conditions laid down in this Article
are complied with, the order cannot be called in question on the ground hat it
is not an order made by the Governor. It is contended that as the order in
question was not issued in the name of the Governor the order was void and no
interviews could be held pursuant to that order. The law on the subject is
well-settled. In Dattatreya Moreshwar Pangarkar v. The State of Bombay (1) Das
J., as he then was, observed:
"Strict compliance with the requirements
of article 166 gives an immunity to the order in that it cannot be challenged
on the ground that it is not an order made by the Governor.
If, therefore, the requirements of that
article are not complied with, the resulting immunity cannot be claimed by the
State.
This, however, does not vitiate the order
itself action to be expressed and authenticated in the manner therein laid down
but an (1) [1952] S.C.R. 612, 625.
377 omission to comply with those provisions
does not render the executive action a nullity.
Therefore' all that the procedure established
by law requires is that the appropriate Govermnent must take a decision as to
whether the detention order should be confirmed or not under section
11(1)." The same view was reiterated by this Court in The State of Bombay
v. Purshottam Jog Naik(1), where it was pointed out that though the order in
question then was defective in form it was open to the State Government to
prove by other means that such an order had been validly made. This view has
been reaffirmed by this Court in subsequent decisions: see Ghaio Mall and Sons
v. The State of Delhi (2), and it is, therefore, settled law that provisions of
Art. 166 of the Constitution are only directory and not mandatory in character
and, if they are not complied with, it can be established as a question of fact
that the impugned order was issued in fact by the State Government or the
Governor. The judgment of this Court in Bachhittar Singh v. The State of
Punjab(3) does not help the appellants, for in that case the order signed by
the Revenue Minister was not communicated to the party and, therefore, it was
held that there was no effective order.
In the light of the aforesaid decisions, let
us look at the facts of this case. Though Annexure IV does not conform to the
provisions of Art. 166 of the Constitution, it ex facie says that an order to
the effect mentioned therein was issued by the Government and it is not denied
that it was communicated to the selection committee. In neither of the
affidavits filed by the appellants there was any specific averment that no such
order was issued by the Government.
In the counter-affidavit filed by B. R.
Varma, Deputy Secretary to the Government of Mysore, Education Department,
there is a clear averment that the Government gave the direction contained in
Annexure IV and a similar letter was (1) [1952] S. C. R. 674. (2)[1959] S. C.
R. 1424.
(3) [1962] SUPP. 3 S. C. R. 713.
378 issued to the selection committee for
admissions to Medical Colleges and this averment was not denied by the
appellants by filing any affidavit. In the circumstances when there are no
allegations at all in the affidavit that the order was not made by the
Government, we have no reason to reject the averment made by the Deputy
Secretary to the Government that the order was issued by the Government. There
are no merits in this contention.
It is then contended that the Government has
no power to appoint a selection committee for admitting students to colleges on
the basis of higher or different qualifications than those prescribed by the
University and, therefore, the orders made by the Government in respect of
admission were illegal. The first argument is. that co-ordination and
determination of standards of a university is a Union subject and, therefore,
the State Legislature has no constitutional competency to make a law for
maintaining the standards of university education. As the State Government's
executive power extends to matters with respect to which the Legislature of the
State has power to make laws, the argument proceeds, the Government of the
State cannot make an order or issue directions for maintaining the standards of
the University. The further argument is that prescribing higher marks for
admission to a College is for the purpose of maintaining the standards of
University education and therefore the State Government is not empowered to do
so. In support of this contention reliance is placed upon the judgment of this
Court in Gujarat University v. Shri Krishna(1). There, one of the questions
raised related to alleged conflict between entry 11 of List II and entry 66 of
List I of the Seventh Schedule to the Constitution. By item No. 11 of List II
of the Seventh Schedule to the Constitution, the State Legislature has power to
legislate in respect of education including Universities subject to the
provisions of items 63, 64, 65 and 66 of List I and 25 of List III. By item 66
power is entrusted to Parliament to legislate on co-ordination and
determination of standards in institutions for higher education or research and
scientific and technical institutions.
(1) [1963] SUPP. 1 S.C. R. 112 379 The
question was whether medium of instruction was comprehended by either of those
entries or whether it fell under both. In that context it was observed at p.
715-716:
"The State has the power to prescribe
the syllabi and courses of study in the institutions named in entry 66 (but not
falling within entries 63 to 65) and as an incident thereof it has the power to
indicate the medium in which instruction should be imparted. But the Union
Parliament has an overriding legislative power to ensure that the syllabi and
courses of study prescribed and the medium selected do not impair standards of
education or render the co-ordination of such standards either on an All India
or other basis impossible or even difficult." This and similar other
passages indicate that if the law made by the State by virtue of entry II of
List II of the Seventh Schedule to the Constitution makes impossible or
difficult the exercise of the legisiative power of the Parliament under the
entry "Co-ordination and determination of standards in institutions for
higher education or research and scientific and technical institutions"
reserved to the Union, the State law may be bad. This cannot obviously be
decided on speculative and hypothetical reasoning. If the impact of the State
law providing for such standards on entry 66 of List I is so heavy or
devastating as to wipre out or appreciably abridge the central field, it may be
struck down. But that is a question of fact to be ascertained in each case. It
is not possible to hold that if a State legislature made a law prescribing a
higher percentage of marks for extracurricular activities in the matter of
admission to colleges, it would be directly encroaching an the field covered by
entry 66 of List I of the Seventh Schedule to the Constitution. If so, it is
not disputed that the State Government would be within its rights to prescribe
qualifications for admission to colleges so long as its action does not
contravene any other law.
It is then said that the Mysore University
Act conferred power to prescribe rules for admission to Colleges on the
University and the Government cannot exercise that power.
380 It is true that under s. 23 of the Mysore
University Act, 1956, the Academic Council shall have the power to prescribe
the conditions for admission of students to the University and, in exercise of
its power, it has prescribed the percentage of marks which a student shall
obtain for getting admission in medical or engineering colleges. The orders of
the Government do not contravene the minimum qualifications prescribed by the
University; what the Government did was to appoint a selection committee and
prescribe rules for selection of students who have the minimum qualifications
prescribed by the University. The Government runs most of the medical and
engineering colleges. Excluding the State aided colleges for a moment, the
position is as follows: The Colleges run by the Government, having regard to
financial commitments and other relevant considerations, can only admit a
specific number of students to the said Colleges.
They cannot obviously admit all the
applicants who have secured the marks prescribed by the University. It has
necessarily to screen the applicants on some reasonable basis. The aforesaid
orders of the Government only prescribed criteria for making admissions to
Colleges from among 'students who secured the minimum qualifying marks
prescribed by the University. Once it is conceded, and it is not disputed
before us, that the State Government can run medical and engineering colleges,
it cannot be denied the power to admit such qualified students as pass the
reasonable tests laid down by it. This is a power which every private owner of
a College will have, and the Government which runs its own Colleges cannot be
denied that power.
Even so it is argued that the same power
cannot be exercised by the Government in respect of private Colleges though
they are receiving aid from the State. But the management of aided institutions
have not raised any objections. Indeed, from the year 1960 admissions were made
to the Colleges by the selection committees constituted by the Government. The
High Court, after considering the material placed before it, held that, with
the consent of the management of the various professional and technical
colleges, the Government took over the responsibility of regulating admission
of students to the colleges in question.
381 Nothing has been placed before us to
prove that the selection committees were constituted against the wishes of the
management of the aided colleges. In the circumstances. we cannot disturb the
finding of the High Court in this regard.
We, therefore, hold that the Government has
power to prescribe a machinery and also the criteria for admission of qualified
students to medical and engineering colleges run by the Government and, with
the consent of the management of the Government aided colleges, to the said
colleges also.
It is then contended that the system of
selection by interviews and viva voce examination is illegal inasmuch as it
enables the interviewers to act arbitrarily and to manipulate the results and,
therefore, it contravenes Art. 14 of the Constitution. To appreciate this
contention it is necessary to notice how the interview is held and the criteria
laid down for the selection committee to adopt.
The Government by its order dated May 17,
1963 constituted a committee consisting of the following members for selection
to Government Medical Colleges:
(1) The Dean, Medical College,
Mysore--Chairman.
(2) The Dean, Medical College, Bangalore Member.
(3) The Dean, Medical College, Hubli--Member.
So too, highly qualified educationists were
appointed to the selection committee for the Engineering Colleges. By
notification dated July 6, 1963, in respect of the Engineering Colleges and a
similar notification issued in respect of the Medical Colleges, the Government
prescribed that in addition to the examination marks in optional subjects there
should be an interview of students for which the maximum mark prescribed shall
be 25 per cent of the maximum marks of the optional subjects. The selection
committee has to allot marks, having regard to general knowledge, aptitude and
personality, previous academic career, including special distinctions etc.,
N.C.C., A.C.C. etc., extra-curricular activities including sports, social
service, debating, dramatics etc. It is, therefore, clear that the Government
by its order not only laid down a clear policy and prescribed definite criteria
in the matter of giving marks at the interview but 382 also appointed,
competent men to make the selection on that basis. The order of the Government
does not in any way contravene Art. 14 of the Constitution.
But learned counsel for the appellants raised
a larger question that selection by interviews is inherently repugnant to the
doctrine of equality embodied in Art. 14 of the Constitution, for, whatever may
be the objective test laid down, in the final analysis the awarding of marks is
left to the subjective satisfaction of the selection committee and, therefore,
it gives ample room for discrimination and manipulation. We cannot accept such
a wide contention and condemn one of the well-accepted modes of selection in
educational institutions. James Hart in his "An Introduction to
Administrative Law" observes, at p. 180 thus:
"A test or examination, to be competitive,
must employ an objective standard of measure.
Where the standard or measure is wholly subjective
to the examiners, it differs in effect in no respect from an uncontrolled
opinion of the examiners and cannot be termed competitive." In the field of
education there are divergent views as regard the mode of testing the capacity
and calibre of students in the matter of admissions to colleges. Orthodox
educationists stand by the marks obtained by a student in the annual
examination. The modern trend of opinion insists upon other additional tests,
such as interview, performance in extra-curricular activities, personality
test, psychiatric tests etc. Obviously we are not in a position to judge which
method is preferable or which test is the correct one. If there can be
manipulation or dishonesty in allotting marks at interviews, there can equally
be manipulation in the matter of awarding marks in the written examinations. In
the ultimate analysis, whatever method is adopted its success depends on the
moral standards of the members constituting the selection committee and their
sense of objectivity and devotion to duty. This criticism is more a reflection
on the examiners than on the system itself.
The scheme of selection, however perfect it
may be on paper, may be abused in practice. That it is capable of abuse is 383
not a ground for quashing it. So long as the order lays down relevant objective
criteria and entrusts the business of selection to qualified persons, this
Court cannot obviously have any say in the matter. In this case the criteria
laid down by the Government are certainly relevant in the matter of awarding
marks at the interview. Learned counsel contends that the ability of a student
on the basis of the said criteria can be better judged by other methods like
certificate from the N.C.C. Commander or a medical board or a psychiatrist and
should not be left to a body like the selection committee which cannot possibly
arrive at the correct conclusion in a short time that would be available to it.
This criticism does not affect the validity of the criteria, but only suggests
a different method of applying the criteria .than that adopted by the
Committee. It is not for us to say which method should be adopted: that must be
left to the authority concerned. If in any particular case the selection
committee abuses its power in violation of Art. 14 of the Constitution, that
may be a case for setting aside the result of a particular interview, as the
High Court did in ,this case. We cannot, therefore, hold without better and
more scientific material placed before us that selection by interview in
addition to the marks obtained in the written examination is itself bad as
offending Art. 14 of the Constitution.
Lastly it is contended that though the High
Court did not quash the order of the Government embodied in Ex. C, it held that
it was not a perfect classification and also indicated its mind that the
Government should have adopted the caste test as well as the residence test in
making the classification. If the observations of the learned Judge, the
argument proceeds, are not corrected, the State may be bound by such
observations in the matter when it finally prescribes the criteria for
ascertaining the backward classes under Art. 15 (4) of the Constitution. In Ex.
C the Government laid down that classification of socially and educationally
backward classes should be made on the following basis: (1) economic condition;
and (2) occupation.
According to that order a family whose income
is Rs. 1,200 per annum or less and persons or classes following occupations of
agriculture petty business, inferior services, crafts or other 384 occupations
involving manual labour. are in general, socially, economically and
educationally backward. The Government lists the following occupations as
contributing to social backwardness: (1) actual cultivator; (2) artisan;
(3) petty businessmen; (4) inferior services
(i.e., Class IV in Government services and corresponding class or service in
private employment) including casual labour; and (5) any other occupation
involving manual labour. It is, therefore, manifest that the Government, as a
temporary measure pending an elaborate study, has taken into consideration only
the economic condition and occupation of the family concerned as the criteria
for backward classes within the meaning of Art.
15 (4) of the Constitution. The order does
not take into consideration the caste of an applicant as one of the criteria
for backwardness. Learned counsel does not attack the validity of the said
order. But in the High Court conflicting arguments were advanced in support of
this order as well as against it. The High Court heavily relied upon the
decision of this Court in M. R. Balaji v. The State of Mysore(1) and came to
the conclusion that, the scheme adopted by the State was a very imperfect
scheme and that in addition to the occupation and poverty tests, the State
should have adopted the "caste" test as well as the 'residence"
test in making the classification. It also observed that the decision in
Balaji's case says that "the `caste' basis is undoubtedly a relevant, nay
an important basis in determining the classes of backward Hindus but it should
not be made the sole basis". It concluded that part of the discussion with
the following observation:
"But I earnestly hope that soon the
State will make a more appropriate classification lest its bonafides should be
questioned." Learned counsel contends that these observations are not
supported by the decision in Balajis case, and that they are in conflict with
the observations made therein. We shall, therefore, consider the exact scope of
the observations in the said decision of this Court. There, 68 per cent of
seats in Colleges were reserved for the alleged backward communities. It was
argued before this Court on behalf of the petitioners (1) [1963] Supp. 1 S. C.
R. 439.
385 therein that the impunged order, which
was passed under Art. 15(4) of the Constitution, was not valid because the
basis adopted by the order in specifying and enumerating the socially and
educationally backward classes of citizens in the State was unintelligible and
irrational, and the classification made on the said basis was inconsistent with
and outside the provisions of Art. 15 (4) of the Constitution. In considering
the said question, Gajendragadkar J., speaking for the Court, made the
following observations, at p. 658:
"The backwardness under Art. 15 (4) must
be social and educational. It is not either social or educational, but it is
both social and educational; and that takes us to the question as to how social
and educational backwardness has to be determined." Adverting to the
expression "classes" of citizens in Art.
15(4) of the Constitution, the learned Judge
proceeded to state:
The group of citizens to whom Art. 15(4)
applies are described as "classes of citizens not as castes of citizens. A
class according to the dictionary meaning, shows division of society according
to, status, rank of caste............
to whether any class of citizens is socially
backward or not, it may not be irrelevant to consider the case of the said
group of citizens. In this connection it is, however, necessary to bear in mind
that the special provision is contemplated for classes of citizens and not for
individual citizens as such, and so, though the caste of the group of citizens
may -be relevant, its importance should not be exaggerated. If the
classification of backward classes of citizens was based solely on the caste of
the citizen, it may not always be logical and may perhaps contain the vice of
perpetuating the castes themselves.
134-159 S.C.--25 386 Besides, if the caste of
the group of citizens was made the sole basis for determining the social
backwardness of the said group that test would inevitably break down in
relation to many sections of Indian Society which do not recognise castes in
the conventional, sense known to Hindu society..............
That is why we think that though castes in
relation to Hindus may be a relevant factor to consider in determining the
social backwardness of groups Or classes of citizens, it cannot be made the
sole or the dominant test in that behalf." Two principles stand out
prominently from the said observations, namely, (i) the caste of a group of
citizens may be a relevant circumstance in ascertaining their social backwardness;
and (ii) though it is a relevant factor to determine the social backwardness of
a class of citizens, it cannot be the sole or dominant test in that behalf. The
observations extracted in the judgment of the High Court appear to be in
conflict with the observations of this Court. While this Court said that caste
is only a relevant circumstance and that it cannot be the dominant test in
ascertaining the backwardness of a class of citizens, the High Court said that
it is an important basis in determining the class of backward Hindus and that
the Government should have adopted caste as one of the tests. As the said
observations made by the High Court may lead to -some confusion in the mind of
the authority concerned who may be entrusted with the duty of prescribing the
rules for ascertaining the backwardness of classes of citizens within the
meaning of Art. 15(4) of the Constitution, we would hasten to make it clear
that caste is only a relevant circumstance in ascertaining the backwardness of
a class and there is nothing in the judgment of this Court which precludes the
authority concerned from determining the social backwardness of a group of
citizens if it can do so without reference to caste. While this Court has not
excluded caste from ascertaining the backwardness of a class of citizens, it
has not made it one of the compelling circumstances affording a basis for the
ascertainment of backwardness of a class. To put it differently, the authority
concerned may take caste into consideration in ascertaining 387 the
backwardness of 'a group of persons; but, if it does not, its order will not be
bad on that account, if it can ascertain the backwardness of a group of persons
on the basis of other relevant criteria.
The Constitution of India promises Justice,
social, economic and political; and equality of status and of opportunity,.
among others. Under Art. 46, one of the
Articles in Part IV headed "Directive Principles of State Policy",
the State shall promote with special care the educational and economic
interests of the weaker sections of the people, and, in particular, of the
Scheduled Castes and the Scheduled Tribes, and shall protect them from social
injustice and all forms of exploitation. Under Art. 341, "The President may
with respect to any State or Union territory, and where it is a State after
consultation with the Governor thereof, by public notification specify the
castes, races or tribes or parts of or groups within castes, races or tribes
which shall for the purposes of this Constitution be deemed to be Scheduled
Castes in relation to that State or Union territory, as the case may be."
Under Art. 342, in the same manner, the President may specify the tribes or
tribal communities as Scheduled Tribes. Article 15(4) says:
"Nothing in this article or in clause
(2) of article 29 shall prevent the State from making any special provision for
the advancement of any socially and educationally backward classes of citizens
or for the Scheduled Castes and the Scheduled Tribes." These provisions
form a group of Articles which have relevance in the making of a special
provision for the advancement of any socially and educationally backward
classes of citizens in the matter of admissions to colleges.
These provisions recognize the factual
existence of backward classes in our country brought about by historical
reasons and make a sincere attempt to promote the welfare of the weaker
sections thereof. They shall be so construed 388 as to effectuate the said
policy but not to give weight age to progressive sections of our society under
the false colour of caste to which they happen to belong. The important factor
to be noticed in Art. 15 (4) is that it does not speak of castes, but only
speaks of classes. If the makers of the Constitution intended to take castes
also as units of social and educational backwardness, they would have said so
as they have said in the case of the Scheduled Castes and the Scheduled Tribes.
Though it may be suggested that the wider expression 'classes" is used in
cl. (4) of Art. 15 as there are communities without castes, if the intention
was to equate classes with castes, nothing prevented the makers of the
Constitution from using the expression "backward classes or castes".
The juxtaposition of the expression "backward classes" and
"Scheduled Castes" in Art. 15 (4) also leads to a reasonable
inference that the expression "classes" is not synonymous with
castes. It may be that for ascertaining whether a particular citizen or a group
of citizens belong to a backward class or not, his or their caste may have some
relevance, but it cannot be either the sole or the dominant criterion for
ascertaining the class to which he or they belong.
This interpretation will carry out the
intention of the Constitution expressed in the aforesaid Articles. It helps the
really backward classes instead of promoting the interests of individuals or
groups who, though they belong to a particular caste a majority whereof is
socially and educationally backward, really belong to a class which is socially
and educationally advanced. To illustrate, take a caste in a State which is
numerically the largest therein.
It may be that though a majority of the
people in that caste are socially and educationally backward, an effective
minority may be socially and educationally far more advanced than another small
sub-caste the total number of which is far less than the said minority. If we
interpret the expression "classes" as "castes", the object
of the Constitution will be frustrated and the people who do not deserve any
adventitious aid may get it to the exclusion of those who really deserve. This
anomaly will not arise if, without equating caste with class, caste is taken as
only one of the considerations to ascertain whether a person belongs to a backward
389 class or not. I On the other hand, if the entire sub-caste, by and large,
is backward, it may be included in the Scheduled Castes by following the
appropriate procedure laid down by the Constitution.
We do not intend to lay down any inflexible
rule for the Government to follow. The laying down of criteria for
ascertainment of social and educational backwardness of a class is a complex
problem depending upon many circumstances which may vary from State to State
and even from place to place in a State. But what we intend to emphasize is
that under no circumstances a "class" can be equated to a
"caste", though the caste of an individual or a group of individual
may be considered along with other relevant factors in putting him in a
particular class. We would also like to make it clear that if in a given
situation caste is excluded in ascertaining a class within the meaning of Art.
15(4) of the Constitution, it does not
vitiate the classification if it satisfied other tests.
In the result, the appeals fail and are
dismissed. There will be no order as to costs.
MUDHOLKAR I.-The appellants in these appeals
had challenged before the High Court of Mysore the validity of the mode of
selection of candidates for admission to the Medical Colleges in that State by
preferring petitions before the High Court under Art. 226 of the Constitution.
They pointed out in their petitions that the selection committee, instead of
selecting persons for admission on the basis of merit, chose to interview the
candidates and made the ultimate selection by adding marks upto 75 to the marks
actually secured by the candidate at the Pre-University Course examination
(herein referred to as P.U.C. Examination) on the basis of the interview. Their
contentions are that in the absence of any Government order there was no basis
upon which marks at the interview could be added to the marks secured in the
P.U.C. examination, that the so-called order on which reliance was placed on
behalf of the State is not a Government order at all as the document produced
does not comply with the requirements of Art. 166 of the Constitution, that no
criteria were laid down for allotting marks TO the candidates at the interview,
that this was a violation of Art. 14 of the Constitution, that the Govern390
ment was constitutionally incompetent to prescribe qualifications for admission
to Colleges under the University different from those prescribed by the
University and that under the Mysore University Act the University alone had
the power to prescribe rules for admission to Colleges affiliated to the
University. The High Court held against the appellants on all these points. But
upon the view that the Selection Committee had "misused" the powers
conferred upon it and had wrongly interpreted the Government Order, quashed the
results of the interview and directed that after interviewing the petitioners
before it afresh their cases should be considered for admission by the
Selection Committee in accordance with the Government Order.
In the course of its order the High Court has
found fault with the Government for not taking the castes of the candidates
into consideration while exercising its powers under Art. 15(4) and making
provision for the advancement of backward classes and made certain remarks to
which objection has been taken on behalf of the appellants.
My learned brother Subba Rao J. whose
judgment I have had the opportunity of seing has upheld the judgment of the
High Court but has not agreed with the observations made by it suggesting that
the caste of candidates should also have been taken into consideration while
determining the social and educational backwardness of a class. I regret my inability
to agree with many of the conclusions reached by my learned brother and I am of
opinion that the appeals ought to be allowed.
Even assuming for the time being that the
Government of Mysore had the power both under the Constitution and under a law
enacted by the Legislature to prescribe qualifications for admission to any
Colleges in the State, including colleges imparting technical or professional
education, the first question is whether there was in fact a Government Order
justifying the course adopted by the Selection Committee. It may be mentioned
that the document which was filed in the High Court as being the Government
Order was merely a communication addressed on behalf of the Government by one
of its Secretaries to the selection Committee and signed by an Under Secretary.
But this document only 391 refers to the interview prescribed for making
selections of candidates for admission: to Engineering Colleges. At the hearing
in this Court the Attorney-General who appeared for the State of Mysore stated
that there was a Government.
Order also as regards admission to Medical
Colleges that it was actually brought to the notice of the High Court and that
he may be permitted to produce that order. Leave was granted by us to him to do
so. On December 20, 1963, that is, after judgment had been reserved Mr. Achar,
Assistant Government Advocate, placed on record, what according to the State,
is the Government Order. This document, however, was not a part of the record
of the writ petitions and the only manner in which the so-called Government
Order relating to admission to Medical Colleges was brought to the notice of
the High Court was by specifying in Dr. Dharmaraj's affidavit, the number of
the letter addressed by a Secretary to the Government to the Selection
Committee dealing with admissions to the Medical Colleges. It is desirable to
reproduce in extenso the document which has been filed now in this Court. It
runs thus:
"GOVERNMENT OF MYSORE CONFIDENTIAL:
No. PLM 351 MMC 63 Mysore Government
Secretariat, Vidhana Soudha, Bangalore, dated 12th July, 1963 SE 1885 From The
Secretary to Government of Mysore, PH. Labour & Munl. Admn. Department,
Bangalore.
TO The Chairman, Selection Committee &
Dean, Medical College, Mysore.
Sir, SUBJECT.--Award of marks for the
interview of the 392 candidates seeking admission to Medical Colleges in the
State.
I am directed to state that Government have
decided that 25 per cent of the maximum marks for the examination in the
optional subjects taken into account for making the selection of candidates for
admission to Medical Colleges, shall be fixed as interview marks.
I am further to state that the Selection
Committee is authorised to allot marks for the interview of the candidates as
fixed above, having regard to the following factors:
1. General Knowledge.
2. Aptitude and personality.
S. Previous academic career including special
distinctions, etc.
4. N.C.C., A.C.C., etc.
5. Extracurricular activities including
sports, social service, debating, dramatics, etc.
I am also to state that Government have
decided that students with exceptional merit in games and sports--State and
inter-State standard-may be selected upto a maximum of two per cent of the
total number of seats.
Yours faithfully, Sd./L. G. DESAI, Under
Secretary to Government, PH. Labour & Munl. Admn. Dept.
Attested Sd./H. L. LINGARAJ URS, Dy. Secretary
to Government, PH.
Lb. & M1. Admn.
393 This is nothing more than a communication
emanating from a secretary to the Government of Mysore to the Chairman, and
addressed to the Selection Committee and Dean, Medical College, Mysore. It is
thus not an order of the kind contemplated by Art. 166 of the Constitution.
That Article lays down that all executive actions of the Government of a State
shall be expressed to be taken in the name of the Governor and that the orders
made and executed in the name of the Governor shall be authenticated in such
manner as may be specified in the rules made by the Governor. It further
provides that where an order is authenticated in the manner prescribed in the
rules made by the Governor, its validity shall not be called in question on the
ground that it is not an order made by the Governor. The essence of Art. 166,
however, is that executive action of the Government of a State shall be
expressed to be taken in the name of the Governor. The document placed before
us does not show that the action, to wit, prescribing an interview, allotting
marks for it and laying down the criteria to be observed by the Selection
Committee in allotting marks even purports to emanate from the Governor. All
that the Secretary on whose behalf some Under Secretary has signed, says is
that he is "directed to state" that the Government has taken a
certain decision. This document thus is not that decision. What that decision
is, how it is worded, when it was taken and whether it is expressed in the name
of the Governor, we do not know. The cases in which it has been held by this
Court that the provisions of Art. 166(2) are directory and not mandatory are of
no help because here what we are concerned with is about the actual existence
of an order made by the Governor. No doubt, where there is merely
non-compliance with the provisions of Art. 166(1) or of the rules framed by the
Governor in the matter of authentication of an order, evidence aliunde could be
led to establish that in fact an order was made by the Governor. This clearly,
does not mean that the existence of a Government order need not be established.
On the contrary these decisions accept the position that the making of a
Government Order is sine qua non for justifying any action which is purported
to be taken by an officer of the Government on its behalf. Here the Secretary
has said a certain procedure. was to be followed by the Selection Committee. He
has himself 394 no power to order that to be done de hors an order of the
Government. It is for this reason that he has made a reference to such an
order. But that order is not before us. It was said by the learned
Attorney-General that the existence of the order was not denied by the
appellants. But that is not correct. Right from the beginning they have been
saying that there was no "Government Order" in so far as admission to
the Medical Colleges was concerned. What was relied on behalf of the State was
the letter addressed to the Selection Committee concerned with the applications
of persons for admission to Engineering Colleges. But since both the appellants
were applicants for admission to a Medical College it was not necessary for
them to say further that what was relied on was not a Government Order--even in
regard to Engineering Colleges. In reply to the appellants' averment reliance
was placed upon an affidavit by Dr. Dharamraj in which reference is made to the
very communication which I have reproduced earlier as being the "Govemor's
Order". If that is what is claimed to be the Govemor's Order, then the
State must fail on the short ground that it is not expressed to be made in the
name of the Governor and is thus prime facie not the Governors Order. In
Bachittar Singh v. The State of Punjab(1) one of the questions which arose for
consideration was whether what a Minister wrote on the file of a case and
initialled amounted to an Order of the Governor within the meaning of Art. 166.
This Court negatived the contention on the ground that since what he had said
there was not expressed in the name of the Governor, it cannot be regarded as
the Govemor's Order.' It is true that in that case there was no communication
of the Minister's so-called order to the party in whose favour it was made but
mention was made of this fact in the judgment only to emphasise that what was
said in the note of the Minister had not attained any finality. The view taken
in Bachittar Singh's(1) case does not run counter to any decisions of this
court; but on the other hand is supported by that taken in the State of Punjab
v. Sodhi Sukhdev Singh(2). The appellant's s first contention must succeed and
it must be held that the addition of (1)[1962] Supp. 3 S.C.R. 713.
(2)[1962] 2 S. C. R. 371.
395 marks for interview by the Selection
Committee was without any validity or legal authority.
Learned Attorney-General seemed to suggest
that the decision of this Court in Bachittar Singh's case is contrary to at
least three other decisions of this Court. The first of them is Dattatraya
Moreshwar Pangarkar v. The State of Bombay and Ors.(1). In that case the
petitioner who had been detained under the Preventive Detention Act, 1950 had
challenged the legality of the detention on two grounds.
One of those grounds was that the order of
confirmation of detention under s. 11(1) was not expressed to be made in the
name of the Governor as required by Art. 166(1) of the Constitution. Dealing
with the argument Das J. (as he then was) with whom Patanjali Sastri C.J. agreed
has observed as follows at p. 623:
"Section 11(1) plainly requires an
executive decision as to whether the detention order should or should not be
confirmed. The continuation of the detention as a physical fact automatically
follows as a consequence of the decision to confirm the detention order and for
reasons stated above, does not require any further executive decision to
continue the detention. It follows, therefore, that the Preventive Detention
Act contemplates and require the taking of an executive decision either for
confirming the detention order under s. 11(1) or for revoking or modifying the
detention order under section 13. But the Act is silent as to the in which the
executive decision, whether it is described as an order or an executive action
is to be taken. No particular form is prescribed by the Act at all and the
requirements of the Act will be fully satisfied if it can be shown that the
executive decision has in fact been taken. it is at this stage that learned
counsel for the petitioner passes on to Article 166 of the Constitution and
contends that all executive action of the Government of a State must be
expressed (1)[1952] S.C.R. 612.
396 and authenticated in the manner, therein
provided. The learned Attorney-General points out that there is a distinction
between the taking of an executive decision and giving formal expression to the
decision so taken.
Usually executive decision is taken on the
office files by way of nothings or endorsements made by the appropriate
Minister or officer.
If every executive decision has to be given a
formal expression the whole governmental machinery, he contends, will be
brought to a standstill. I agree that every executive decision need not be
formally expressed and this is particularly so when one superior officer
directs his subordinate to act or forbear from acting in a particular way, but
when the executive decision affects an outsider or is required to be officially
notified or to be communicated it should normally be expressed in the form
mentioned in Article 166(1) i.e, in the name of the Governor." Thus
according to the learned Judge where an order affects an outsider it must
normally be made in the name of the Governor. Here, what is said to be an order
is intended to affect outsiders in that the selection committee was required to
hold interviews and allot marks to the candidates under different heads.
Further it affects the candidates seeking admission to the Medical College.
Moreover this 'order' has not remained merely
on the files of the Government for enabling its officers to take certain action
but was specifically intended to govern the actions of the Selection Committee.
That is an additional reason why it was necessary to express it in the name of
the Governor. After saying what I have already quoted, they learned Judge
proceeded to observe in his judgment:
"Learned Attorney-General then falls
back upon the plea that an omission to make and authenticate an executive
decision in the form mentioned in Article 166 does not make the decision itself
illegal, for the provisions of that Article, like their counterpart in the
Government of India 397 Act, are merely directory and not mandatory as held in
J. K. Gas Plant Manufacturing Co.
(Rampur) Ltd., and Ors. v. The King Emperor(1).
In my opinion, this contention of the learned
Attorney-General must prevail. It is wellsettled that generally speaking the
provisions of a statute creating public duties are directory and those
conferring private rights are imperative. When the provisions of a statute
relate to the performance of a public duty and the case is such that to hold
null and void acts done in neglect of this duty would work serious general
inconvenience or injustice to persons who have no control over those entrusted
with the duty and at the same time would not promote the main object of the
legislature, it has been the practice of the Courts to hold such provisions to
be directory only, the neglect of them not affecting the, validity of the acts
done." Thus, even upon the view taken by him that the provisions are
merely directory the learned Judge has clearly taken the view that it has to be
shown that the decision upon which reliance is placed on behalf of the Government
was in fact taken. In the case before him he found as a fact that such a
decision had been taken. There is no material in this case on the basis of
which it could be said that in the present case any decision had at all been
taken by the Government in so far as interviews for admission to Medical
Colleges were concerned.
According to Mukherjea J. (as he then was)
with whom Chandrasekhara Aiyar J., agreed, while cl. (1) relates to the mode of
expression of an executive order, cl. (2) lays down the manner in which such
order is to be authenticated and that when both the requirements are complied
with the order would be immune from challenge in a court of law on the ground
that it had not been made or executed by the Governor. Also, according to him,
the provisions of (1) [1947] F. C. R. 141,,154-9.
398 cl. (1) are directory and not imperative
in their character.
In the course of the judgment the learned
Judge observed:
".............. I agree with the learned
Attorney-General that non-compliance with the provisions of either of the
clauses would lead to this result that the order in question would lose the
protection which it would otherwise enjoy, had the proper mode for expression
and authentication been adopted.
It. could be challenged in any court of law
even on the ground that it was not made by the Governor of the State and in
case of such challenge the onus would be upon the State authorities to show
affirmatively that the order was in fact made by the Governor in accordance
with the rules framed under Article 166 of the Constitution" (p. 632).
Mahajan J., (as he then was) expressed no
opinion upon this point, which was the second point raised in the case, as
according to him, the detention was invalid because the Government had at the
time of confirming the order omitted to specify the period during which the
detention should continue.
It will thus be clear that all the teamed
Judges who have dealt with, the provisions of Art. 166 of the Constitution have
definitely held that where the existence of a Government Order is itself
challenged by a person who is affected by it the burden is upon the Government
to establish that an order was in fact made by the Governor in the manner
provided for in the rules of business framed by the Governor under cl. (3) of
Art. 166. Even my learned brother does not say that in a case like the present
the existence of the Governor's order is not required to be established by the
State. But according to him here the petitioners have not in fact denied the
existence of the Governor's Order. In para 20 of the writ petition of
Chitralekha she has definitely averred: "Even the Government Order
enabling them to award 75 marks is not made available"; and again in para
22 she stated: "As the order, empowering them to award 75 marks as
interview marks has so far remained secret in that is has not been made
available, this 399 Hon'ble Court may be pleased to send for the same, as the
order falls to be quashed." In reply to these averments a
counter-affidavit was filed by Dr. J. J. Dharmaraj, Dean, Medical College and
Chairman of the Selection Committee for admission to Medical Colleges. In para
4 thereof he has stated as follows:
"The Government by its letter No. PLM
531 MMC 63 dated the 12th July, 1963 directed that the Selection Committee
shall interview the candidates and allot marks the maximum of which shall be 25
per cent of the maximum marks for optional subjects and laid down the criteria
for allotting marks in the interview." It is abundantly clear from this
that reliance was placed not upon any order of the Governor but upon a
direction contained in a certain communication addressed to the Selection
Committee. Mr. Varma, Deputy Secretary to the Government also filed a
counter-affidavit in para 36 of which he has stated as follows:
"The Government gave a direction by its
letter No. SD 25 THL 63, dated 6th July, 1963 to the Director of Technical
Education (copy of which is marked as, Annexure IV) that in addition to the
examination marks in the Optional subjects, there should be an interview of
candidates in which the maximum marks allotted would be 25 per cent of the
maximum for the optional subjects. A similar letter was sent by the Government
to the Selection Committee for admission to Medical Colleges." Thus, here
again, there is no positive averment that the Governor had made an order
providing for interview of candidates who, had applied for admission to Medical
Colleges. The only other place where the appellants' allegations are dealt with
is para 44 of Mr. Varma's a affidavit:
"The Allegations made in some of the
petitions that only the first Government Order embodied the decision of the
Government and the second Government Order did not embody the decision 400 of
the Government but only the decision of the Minister for Education, is
untenable. When an order is issued in the name of the Governor, I submit it is
not permissible to enquire whether any advice, and if so, what advice, was
tendered by any Minister to the Governor." Here, what the Deputy Secretary
has done is merely to state the legal position without affirming definitely
that an order had in fact been made in the name of the Governor. It may be
mentioned that the two orders dealing with the classification of backward
classes and reserving seats in technical institutions were in fact issued in
the name of the Governor on July 26, 1963 and copies of those orders have been
placed on record. They are in the appropriate form. If a similar order had
actually been made by the Governor there is no reason why it should not have
been filed. Even in this Court the Assistant Government Advocate has filed on
behalf of the State only a copy of the letter sent by a Secretary to the
Government and has not only not produced a copy of the Governor's Order but has
not even alleged that such order exists. Nor again, during the arguments did
the learned Attorney-General make a categorical statement that the Governor had
made an order in regard to the interviews. That may be because he has not been
instructed to say that such order in fact exists. We have given no opportunity
to the appellants to file any further affidavit after the production before us
of the Secretary's letter. In this state of the material on record can it then
be said that the burden which was upon the State to establish the existence of
an order of the Governor has been discharged? I do not think that we can ignore
the omission of the State to aver categorically that there is in existence an
order of the Governor or to make any attempt to produce it or to seek an
opportunity to establish its existence by other evidence. If there is an order
of the Governor dealing with the matter nothing would have been easier than
saying so and either to produce the original or its copy or to establish its
existence by other evidence.
The whole tenor of the affidavits filed on
behalf of the State as well as of the argument advanced before us leaves no
doubt in my mind that an that there is on the subject is the aforesaid letter
of the 401 Secretary to the Selection Committee and nothing more. In no case
has this Court held that such a document can be treated as the Governor's order
or even evidence of the existence of the Govrnor's order.
The two other cases of this Court on which
reliance was placed are: The State of Bombay v. Purshottam Jog Naik(1) and
Ghaio Mail and Sons v. The State of Delhi (2) which purport to follow
Pangarkar's case(3) also underline the necessity of proof of the existence of
the Governor's Order when what is relied upon is defective in form. It is these
reasons which impel, me to differ from my learned brother on the second point
dealt with by him in his judgment.
What I have said above is sufficient for the
purpose of disposing of both the appeals. But in view of the importance of one
of the other points on which my learned brother has expressed his opinion, I
would say a few words.
That point concerns the power of the
Government of a State to prescribe by an executive order the standards for
selection of candidates for admission to technical institutions affiliated to a
university. In Gujrat University v. ShriKrishna(4) the question which was
raised in this Court was whether the Gujrat University could lay down and
impose Gujrati and/or Hindi in Devnagari script as exclusive media of instruction
and examination in institutions other than those maintained by the University
and institutions affiliated to the University and Constituent colleges. One of
the important arguments raised in that case was that under Entry 166 of List 1
of the Seventh Schedule the power of co-ordination and determination of
standards in institutions for higher education or research in scientific and
technical institutions. was conferred upon Parliament and that these matters
must be regarded as having been excluded from entry 11 of List 11 of that
schedule, which runs thus:
"Education, including universities,
subject to the Provisions of Entries 63, 64, 65 and 66 of List 1 and Entry 25
of List III." (1) [1952] S. C. R. 674. (2) [1959] S.C.R.1424.
(3) [1952] S. C. R. 612.
(4) [1963] Supp. 1 S.C.R.112.
134-159-S.C.-26 402 In the course of his
judgment, Shah Y., speaking for the majority (my learned brother Subba Rao J.,
dissenting) observed:
"It is manifest that the extensive power
vested in the Provincial Legislatures to legislate with respect to higher
scientific and technical education and vocational and technical training of
labour, under the Government of India Act is under the Constitution controlled
by the five items in List 1 and List III mentioned in item II of List H. Items
63 to 66 of List I are carved out of the subject of education and in respect of
these items the power to legislate is vested exclusively in the Parliament
Power of the State to legislate in respect of education including Universities must
to the extent to which it is entrusted to the Union Parliament, Whether such
power is exercised or not, be deemed to be restricted. If a subject of
legislation is covered by items 63 to 66 even if it otherwise falls within the
larger field of 'education including universities power to legislate on that
subject must lie with the Parliament. The plea raised by counsel for the
University and for the State of Gujarat that legislation prescribing the medium
or media in which instruction should be imparted in institutions of higher
education and in other institutions always falls within item II of List II has
no force Item II of List II and item 66 of List I must be harmoniously
construed. The two entries undoubtedly overlap: but to the extent of
overlapping, the power conferred by item 66 of List I must prevail over the
power of the State under item 11 of List 11. It is manifest that the excluded
heads deal primarily with education in institutions of national or special
importance and institutions of higher education including research, sciences,
technology and vocational training of labour............. Power to legislate in
respect of 403 medium of instruction is, however not a distinct legislative
head; it resides with the State legislatures in which the power to legislate on
education is vested, unless it is taken away by necessary intendment to the
contrary. Under items 63 to 65 the power to legislate in respect of medium of
instruction, having regard to the width of those items, must be deemed to vest
in the Union. Power to legislate in respect of medium of instruction, in so far
it has a direct bearing and impact upon the legislative head of co-ordination
and determination of standards in institutions of higher education or research
and scientific and technical institutions, must also be deemed by item 63 of
List I to be vested in the Union." (p. 715). (italics mine) What I have
quoted above and particularly the words occurring in the earlier part of the
quotation and those in italics would make it clear that this Court has
emphatically laid down that where the question of co-ordination and
determination of standards in certain institutions like a medical college is
concerned the power is vested in the Parliament and even though Parliament may
not have exercised that power the State Legislature cannot step in and provide
for the determination and co-ordination of standards. It seems to me that by
requiring the Selection Committee to add to the marks secured by the candidates
at the P.U.C.
Examination the marks awarded by the
Selection Committee for the interviews and prepare a fresh order of merit on
the basis of the total marks so arrived at the State would be quite clearly
interfering with the standards for admission laid down by the University. It
seems to me that the standard of any educational institution would certainly be
affected by admitting to it candidates of lower academic merit in preference to
those with higher academic merit by using the devious method of adding to the
qualifications of less meritorious candidates marks at the discretion of the
selectors on the basis of interviews. This is not a universal practice in
institutions of higher or technical education in the country and by adopting it
the State of Mysore has provided 404 a standard of its own for admission of
students to such institutions. It is evidently with a view to prevent the
happening of such things that our Constitution has excluded matters pertaining
to standards in institutions of higher education and some other institutions
from the purview of the State legislatures. The second portion in italics by me
in the above quotation makes it clear that according to the majority of this
Court the power to legislate in respect of matters such as the medium of
instruction which have a direct bearing and impact upon the legislative head of
coordination and determination of standards in the institutions referred to in
item 66 of List I is vested in the Union. Therefore, in each case it will be
for the Court to consider whether what is being sought to be done by a State
legislature will have a direct impact upon entry 66 of List 1. In my judgment
where any law of the State legislature seeks to vary academic standards for
admission to institutions of the kind referred to in Entry 66 its action has a
direct bearing upon that entry and the power in this regard is excluded from
the purview of entry 11 of List 11.
I may quote a part of paragraph 24 of the
majority judgment which my learned brother has quoted. It reads thus:
"The State has the power to prescribe
the syllabi and courses of study in the institutions named in entry 66 (but not
falling within entries 63 to 65) and as an incident thereof it has the power to
indicate the medium in which instruction should be imparted. But the Union Parliament
has an over-riding legislative power to ensure that the syllabi and courses of
study prescribed and the medium selected do not impair standards of education
or render the co-ordination of such standards either on an AllIndia or other
basis impossible or even difficult." Can it be said that this and other
passages in this judgment show that according to the majority the law made by
the State Legislature by virtue of entry 1 1 of List II would be bad only if it
makes it impossible or difficult for Parliament to exercise its legislative
power under entry 66 of List I? Does the judgment mean that it has to be
ascertained in each case whether the impact of the State law providing for such
standards is so great on entry 66 of List I as to abridge appreciably the
central field or, does it not follow from the judgment that if a State
Legislature has made a law prescribing a different, even higher, percentage of
marks or prescribing marks for extra-curricular activities, it would be
directly encroaching on the field covered by entry 66 of List I ? The majority
judgment after saying what has been quoted above proceeds thus:
"Though the powers of the Union and the
State are in the exclusive lists, a degree of overlapping is inevitable. It is
not possible to lay down any general test which would afford a solution for
every question which might arise on this head. On the one hand, it is certainly
within the province of the, State Legislature to prescribe syllabi and courses
of study and of course to indicate the medium or media of instruction. On the
other hand, it is also within the power of the Union to legislate in respect of
media of instruction so as to ensure co-ordination and determination of
standards, that is, to ensure maintenance or improvement of standards. The fact
that the Union has not legislated, or refrained from legislating to the full
extent of its power does not invest the State with the power to legislate in
respect of a matter assigned by the Constitution to the Union. It does not,
however, follow that even within the permitted relative fields there might not
be legislative provisions in enactments made each in pursuance of separate
exclusive and distinct powers which may conflict. Then would arise the question
of repugnancy and paramountcy which may have to be resolved on the application
of the 'doctrine of pith and substance of the impunged enactment............
the validity of State legislation would depend upon whether it prejudicially
affects co-ordination and determination of standards, but not upon the
existence 406 of some definite Union legislation directed to achieve that
purpose." (p. 716).
These observations do not seem to justify the
conclusion that it is only where the State law makes it impossible or difficult
for Parliament to exercise its legislative power under entry 66 that the State
law would be bad. According to the decision of the majority the validity of a
State legislation would depend upon whether it prejudicially affects the
coordination and determination of standards and that if it does so, that is
enough to invalidate that legislation. Interference with academic standards
would of necessity affect coordination and determination of standards amongst
institutions of similar type all over the country and, therefore, upon the view
taken in the Gujarat University case(1) State legislation embodying previsions
of the kind referred to in the letter of the Secretary to the Government to the
Selection Committee would be bad.
As I understand the decision what it means
when it says that regard must be had to the pith and substance of a State law
to see whether it is in conflict with the powers of Parliament is that conflict
must be the direct result of the State law and not one which is merely
incidental. It does not mean that for ascertaining whether there is a conflict
one has to gauge the force of the impact of a State law on Parliament's power.
Thus where a law is in pith and substance ,one which will directly affect
Parliament's power to coordinate and determine standards in the institutions
comprised in entry 66 of List I it will be directly in conflict with it and the
extent or force of such conflict will make no difference. Now just as
prescribing a medium of instruction for being adhered to in those institutions
would, if it has the effect of affecting the standards, which must mean, the
academic standard of their institutions, produce a direct impact on
Parliament's power under the aforesaid entry, so would prescribing interviews
for admissions to these institutions, since admissions would thereby be made to
depend on standards other than purely academic. I fail to see how else can the
impact of the State law on Parliament's power can be characterised. The fact
that raising of the interview marks from 25 in the.
past to 75 now (which we are told (1) [1963]
SUPP. 1. S.C.R. 112.
407 represents 25% of the total marks for the
P.U.C. Examination) has raised a furore, only highlights the directness of the
impact which was there even when the interview marks were 25%. To hold
otherwise would mean that where interview marks are low in comparison with the
total marks for the P.U.C. Examination the impact would be merely oblique or
indirect but by some process it will become direct, if the marks are raised to
a higher percentage, say 50 per cent or even 100 per cent of the P.U.C.
Examination marks. Surely the directness of the impact would not depend upon
its intensity.
Again, the addition of interview marks to the
marks secured at the P.U.C. examination by a candidate for admission to an
institution of the kind comprised in entry 66 of List I cannot but be said to
affect the standard in such institution. An illustration would make it clear.
Suppose the maximum P.U.C. -marks are 300 and interview marks are 600. Could
there be a doubt that the academic standard of the institution would remain
unaffected and that the impact on entry 66 is direct ? Now, instead of 600, if
the, interview marks are only 30, would not the standard still be affected? May
be that the effect on academic merit would be much less than when the maximum
interview marks were 600 but still there would be some effect. In ,either case
the effect is the direct consequence of the additional requirement of an
interview and therefore the impact of the State law would be direct in both
cases. It is not as if a consequence which is direct can be regarded as oblique
or indirect just because it is less significant by reason of the fact that the
proportion of interview marks to the P.U.C. marks is low. Therefore, whether the
State law affects the standards of such institutions materially or only
slightly has no relevance for the purpose of determining whether it operates in
an excluded field or not.
The only test is whether or not the effect it
has on the standards is direct. That is how I understand the majority decision
of this Court.
Even upon the view that for a State law to be
bad, its impact must be "so heavy or devastating as to wipe out the
central field", I think that it is in fact of that kind in this 408 case.
Already by reserving 48 per cent of the total number of seats for scheduled
castes and tribes and backward classes the seats available for meritorious
candidates have been reduced to 52 per cent. By providing in addition, for
dilution of -academic merit by bringing in considerations of the kind set out
in the Secretary's letter, meritorious candidates are likely to be placed in a
further disadvantageous position. According to that letter the matters to be
considered at the interview are:
(1) General knowledge.
(2) Aptitude and personality.
(3) Previous academic career, including
special distinctions, etc.
(4) N.C.C., A.C.C. etc.
(5) Extra curricular activities including
sports, social service, debating, dramatics, etc.
While the first and the third of these
matters would be of some relevance in deciding who should be allowed a chance
to be future doctors what relevance the other three matters have it is
difficult to appreciate. Further "aptitude and personality" would be
a matter entirely for the subjective satisfaction of the selectors and is in
itself quite vague.
Then again the total marks under these heads
are as high as 75 and there is no allocation of marks under the different
heads. Thus if the selectors choose to allocate say 30 or 40 marks for
"personality" many meritorious candidates may go far down in the list
prepared on the basis of the total of marks at the interview and the P.U.C.
Examination. Since the number of marks for the interview is high and according
marks for interviews and allocating marks under different heads is left
entirely for the Selection Committee to decide, the impact of the alleged
directive on the central field must necessarily be regarded as heavy. For, its
effect would be to lower further the already alarmingly low standards in our
educational institutions.
Again, here what we have is not a State law
but merely what is claimed to be an -executive fiat. It is true that Art.
162 says that the executive power of the
State is co-extensive with the power of the legislature to legislate and 409
this Court has held in Rai Sahib Ram Jawaya Kapur & Ors. v. The State of
Punjab (1) that the power of the State is not confined to matters over which
legislation his already been passed. But neither Art. 162 nor the decision of
this Court goes so far as to hold that the State's power can be exercised in
derogation of a law made by a competent legislature. On the other hand the
Court appears to have approved of the view taken by two learned Judges of the
Allahabad High Court in Motilal v. The Government of the State of Uttar Pradesh
(2) that an act would be within the executive power of the State if -it is not
an act which has been assigned by the Constitution to other authorities or
bodies and is not contrary to the provisions of any law and does not encroach
on the legal rights of any member of the public. Here we have the Mysore
University Act, s. 23 of which provides that the Academic Council shall have
power to prescribe the conditions for admission of students to the University.
Now since a competent legislature has conferred this power on a particular body
the State cannot encroach upon that power by its executive act. Thus this is a
case where there is not merely an absence of legislative sanction to the action
of the State but there is an implied limitation on its executive power in
regard to this matter.
Moreover, while the Constitution permits the
State without the necessity of any law empowering it to do so to make
reservations of seats for the benefit of backward classes and scheduled castes
and tribes there is no provision either in the Constitution or in any other law
which empowers the State Government to issue directions to selection committees
charged with the consideration of applications for admission to any colleges as
to what should be the basis of making admissions. It was said that most of the
medical Colleges are owned by the State and the State as the owner of those
Colleges was entitled to give directions to its officers as to the mode of
selection of persons for admission to those Colleges. But it seems to me that
the matter is not quite as simple as that. Educational institutions which are
affiliated to the University must conform to the pattern evolved by the
University and the proprie(1) [1955]2 S. C. R. 225 (2) A. I. R. 1951 All. 257
(F. B) 410 tors or the governing bodies of those institutions can claim no
right to adopt a different pattern. The pattern set by the University would
necessarily be affected if the standards of admission, teaching, etc., are varied
by those who run those institutions. It is not material to consider whether
either the object or effect of the addition of an interview for selecting
candidates for admission to the institutions is to improve upon the standards
fixed by the Academic Council For, it is to that body to which the legislature
has entrusted the whole matter. It was said that no objection to the
Government's action was taken by the University. What is important is not
whether no objection was taken by the University but whether it consented to
the action of the Government. That it did not consent would appear from the
consent memo filed. in the High Court on behalf of the University a copy of
which has been filed in this Court after our judgment was reserved.
Therein the counsel for the University has
stated;
"Under section 23(b) and section 43 of
the Mysore University Act read with section 2(a) of the same Act, the Academic
Council alone can prescribe qualifications for admission.
'Me University is not consulted about either
Exhibit 'D' or increasing the interview marks to 25 per cent as per letter
dated 6.7.1963.
Interview marks must also be treated as marks
given to a subject." There is thus no substance in the plea made on behalf
of the, State. This is an additional reason why I think that the provision for
interviews is not valid.
My learned brother has dealt at length with
the question as to the value of interviews in the matter of making admissions
to educational institutions. I do not think it necessary to pronounce any
opinion upon that question in this case and would reserve it for a future
occasion. I would also likewise reserve my opinion on the other points upon
which he has expressed him-self excepting one, that is, as to the relevance of
the consideration of caste in determining the classes which are socially and
educationally backward. I would only say this that it would not be in
accordance 411 either with cl. (1) of Art. 15 or cL (2) of Art. 29 to require
the consideration of the castes of persons to be borne in mind for determining
what are socially and educationally backward classes. It is true that cl. (4)
of Art. 15 contains ,a non-obstante clause with the result that power conferred
by that clause can be exercised despite the provisions of cl. (1) of Art. 15
and cl. (2) of Art. 29.
But that does not justify the inference that
castes have any relevance in determining what are socially and educationally
backward ,communities. As my learned brother has rightly pointed out the
Constitution has used in cl. (4) the expression "classes" and not
"castes".
Upon the view which I have taken on the two
points I have discussed the appeals must be allowed and a direction be issued
to the Selection Committee to make the selection ,of candidates solely on the
basis of the result of P.U.C.
examination. I would allow them with costs
here as well as in the High Court.
ORDER BY COURT In view of the judgment of the
majority, the appeals fail and are dismissed. There will be no order as to
costs.
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