{"id":174594,"date":"1964-01-29T00:00:00","date_gmt":"1964-01-28T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/r-chitralekha-anr-vs-state-of-mysore-ors-on-29-january-1964"},"modified":"2018-06-09T23:01:13","modified_gmt":"2018-06-09T17:31:13","slug":"r-chitralekha-anr-vs-state-of-mysore-ors-on-29-january-1964","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/r-chitralekha-anr-vs-state-of-mysore-ors-on-29-january-1964","title":{"rendered":"R. Chitralekha & Anr vs State Of Mysore & Ors on 29 January, 1964"},"content":{"rendered":"
Supreme Court of India<\/div>\n
R. Chitralekha & Anr vs State Of Mysore & Ors on 29 January, 1964<\/div>\n
Equivalent citations: 1964 AIR 1823, \t\t 1964 SCR (6) 368<\/div>\n
Author: K Subbarao<\/div>\n
Bench: Sinha, Bhuvneshwar P.(Cj), Subbarao, K., Dayal, Raghubar, Ayyangar, N. Rajagopala, Mudholkar, J.R.<\/div>\n
           PETITIONER:\nR.   CHITRALEKHA & ANR.\n\n\tVs.\n\nRESPONDENT:\nSTATE OF MYSORE & ORS.\n\nDATE OF JUDGMENT:\n29\/01\/1964\n\nBENCH:\nSUBBARAO, K.\nBENCH:\nSUBBARAO, K.\nSINHA, BHUVNESHWAR P.(CJ)\nDAYAL, RAGHUBAR\nAYYANGAR, N. RAJAGOPALA\nMUDHOLKAR, J.R.\n\nCITATION:\n 1964 AIR 1823\t\t  1964 SCR  (6) 368\n CITATOR INFO :\n F\t    1967 SC1145\t (16)\n R\t    1967 SC1283\t (7)\n F\t    1968 SC1379\t (6)\n R\t    1970 SC 679\t (17)\n R\t    1971 SC1731\t (14)\n RF\t    1971 SC2303\t (14,16,24)\n R\t    1971 SC2560\t (10)\n R\t    1972 SC1375\t (80,93)\n RF\t    1973 SC 930\t (22,25)\n RF\t    1975 SC 563\t (33,34)\n R\t    1975 SC2299\t (485)\n R\t    1976 SC2381\t (21)\n RF\t    1976 SC2482\t (5)\n F\t    1980 SC 383\t (3)\n RF\t    1980 SC1975\t (12)\n RF\t    1981 SC 487\t (18)\n R\t    1984 SC 873\t (7)\n O\t    1985 SC1495\t (11,13,59,63,67,99,118,147)\n R\t    1987 SC 400\t (20)\n RF\t    1987 SC2034\t (18)\n\n\nACT:\nConstitution  of India, 1950, Art. 166--If mandatory-List  I\nEntry\t66--scope  of--Viva  Voce  test\t for  admission\t  in\ncollege--If\t violation     of      Art.\t 14--Article\n15(4)--Classification of backward classes--Validity.\n369\n\n\n\nHEADNOTE:\nThe  Government\t of  Mysore by\tan  order  defined  backward\nclasses\t and  directed\tthat 30 per cent  of  the  seats  in\nprofessional  and technical colleges and institutions  shall\nbe reserved for them and 18 per cent to the Schedule  castes\nand Scheduled Tribes.  It was laid down that  classification\nof  socially  and educationally backward classes  should  be\nmade on the basis of economic condition and occupation.\t  By\na  letter the Government informed the Director of  Technical\nEducation  that it had been decided that 25% of the  maximum\nmarks  for  the examination in optional\t subjects  shall  be\nfixed  as interview marks.  The selection will be  conducted\nby  a committee composed of Heads of Technical\tInstitutions\naid  in allotting marks for interview factors  like  general\nknowledge, personality and extracurricular activities of the\ncandidates should be' taken into consideration.\nOn the basis of the above criteria selections were made\t for\nadmission  to Engineering and Medical  Colleges.   Thereupon\nsome of the candidates whose applications for admission were\nrejected  filed\t writ  petitions before the  High  Court  of\nMysore for quashing the orders issued by the Government\t and\nfor  directing that they shall be admitted in  the  colleges\nstrictly in the order of merit.\t The High Court rejected the\ncontentions  raised  on\t points of law but  found  that\t the\nselection  committee has abused its power and directed\tthat\nthe petitioners be interviewed afresh and admissions be made\nin  accordance\twith the Government Order and  letter  which\nwere declared valid.\nBefore\tthis  Court  it was contended  that  the  Government\nletter\twas invalid inasmuch as it did not comply  with\t the\nprovisions  of\tArt.  166 of  the  Constitution.   The\tnext\ncontention was that the Government had no power to appoint a\nselection  committee for admitting students to\tcolleges  on\nthe  basis of higher or different qualifications than  those\nprescribed  by the University.\tAnother contention was\tthat\nselection by viva voce examination was illegal by reason  of\nthe fact that it enables the interviewers to act arbitrarily\nand  therefore it contravenes Art. 44 of  the  Constitution.\nLastly\tit was contended that unless the observation of\t the\nHigh Court that the classification was not perfect since the\nGovernment  has\t not applied the caste test as well  as\t the\neconomic test is corrected it will mislead the Government.\nHeld:\t  (Per B. P. Sinha, C.J., Subba Rao, Raghubar  Dayal\nand Rajagopala Ayyangar JJ.) (i) The provisions of Art.\t 166\nof  the\t Constitution are only directory and  not  mandatory\nand, if they are not complied with, it can be established as\na  question  of fact that the impugned order was  issued  in\nfact  by  the  State Government or  the\t Governor.   In\t the\npresent\t case the impugned order though it does not  conform\nto the provisions of Art. 166 ex facie says that an order to\nthe  effect mentioned therein was issued by  the  Government\nand  it is not denied by the appellants that the  order\t was\nmade by the Government and neither it is denied that it\t was\ncommunicated to the selection committee.\nTherefore it is valid.\n134-159 S.C.-24\n370\nDattatraya  Moreshwar  Pangarkar v. State of  Bombay<\/a>  [1952]\nS.C.R. 612, State of Bombay v. Purushottam<\/a> log Naik,  [1952]\nS.C.R.\t74,  Ghaio  Mall & sons v. State  of  Delhi,  [1959]\nS.C.A.\t1424 and Bachittar Singh v. State of Punjab,  [1962]\nSupp. 3 S.C.R. 713, referred to.\n(ii) If the impact of the State law providing for  standards\nof  education  on  entry  66  of List  I  is  so  heavy\t and\ndevastating  as\t to  wipe out  or  appreciably\tabridge\t the\nCentral field it may be struck down.  But that is a question\nof  fact  to be ascertained in each case.  If  a  State\t law\nPrescribes  higher percentage of marks for  extra-curricular\nactivities in the matter of admission to colleges it  cannot\nbe  said that it would be directly encroaching on the  field\ncovered by entry 66 of List I. The Government Orders do\t not\ncontravene  the\t minimum  qualification\t prescribed  by\t the\nMysore University; what the Government did was to appoint  a\nselection committee and prescribe for selection of  students\nwho  have  the\tminimum\t qualifications\t prescribed  by\t the\nUniversity.   Since they cannot admit all the  students\t who\nhave secured the minimum marks prescribed by the  University\nthey  had  necessarily\tto select  the\tapplicants  on\tsome\nreasonable   basis.   The  State  Government  is   therefore\nentitled to prescribe a machinery and also the criteria\t for\nadmission  of qualified students to medical and\t engineering\ncolleges  run by the Government and with the consent of\t the\nmanagement  of\tthe Government aided colleges, to  the\tsaid\ncolleges also.\nGujarat\t University v. Shri Krishna, [1963] Supp.  1  S.C.R.\n112, distinguished.\n(iii)\t  The  selection by viva voce is one of the  methods\nsuggested  by modern authorities on education in  preference\nto  written  tests.  It is no', for the court to  say  which\nmethod\tshould\tbe  adopted,  it  should  be  left  to\t the\nauthorities concerned.\tThe fact that one particular  method\nis capable of abuse is not sufficient ground for quashing it\nas  being  violative  of Art. 14.  If in a  given  case\t the\nselection  committee abuses its powers in violation of\tArt.\n14 the selection will be held invalid and will be set  aside\nas the High Court has done in the present case.\n(iv) A classification of backward classes based on  economic\nconditions  and\t occupation is not bad and does\t not  offend\nArt.  15(4).   The  caste of a group of citizens  may  be  a\nrelevant   circumstance\t  in   ascertaining   their   social\nbackwardness and though it is a relevant factor to determine\nsocial\tbackwardness  of a class, it cannot be the  sole  or\ndominent test in that behalf.  If in a given selection caste\nis  excluded in ascertaining a class within the\t meaning  of\nArt.  15(4)  it does not vitiate the  classification  if  it\nsatisfied other tests.\tThe inference to the contrary  which\nmay  be drawn from the observation of the High Court in\t the\nimpugned  judgment will not be correct in law or  a  correct\nreading of the observations of this Court in M. R. Balaji v.\nState of Mysore,<\/a> [1963] Supp.  1 S.C.R. 439.\n(v)  Various  provisions of the Constitution like Arts.\t 15,\n29, 46, 341 and 342 which recognise the factual existence of\nbackward classes in our\n 371\ncountry\t and  which make a sincere attempt  to\tpromote\t the\nwelfare\t of the weaker sections thereof should be  construed\nto  effectuate\tthat  policy and not to\t give  weightage  to\nprogressive  sections of the society under the false  colour\nof  caste  to  which  they  happen  to\tbelong.\t  Under\t  no\ncircumstances  a \"class\" can be equated to a \"caste\"  though\nthe caste of an individual or group of individuals may be  a\nrelevant factor in putting him in a particular class.  If in\na given situation caste is excluded in ascertaining a  class\nwithin\tthe meaning of Art. 15(4) it would not\tviolate\t the\nclassification\tif it satisfied other tests.  If  an  entire\nsub-caste  by and large, is backward, it may be included  in\nthe Scheduled Castes by following the appropriate  procedure\nlaid down by the Constitution.\nPer  Mudholkar, J. (dissenting): (i) The decisions  of\tthis\nCourt  dealing\twith  Art.  166\t of  the  Constitution\thave\ndefinitely  held that where the' existence of  a  Government\nOrder itself is challenged by a person who is affected by it\nthe burden is upon the Government to establish that an order\nwas in fact made by the Governor in the manner provided\t for\nin  the rules of business framed by the Governor  under\t cl.\n(3) of Art. 166.\n(ii) It\t is  not  correct to say, in  this  case,  that\t the\nappellants  have  not  denied the existence  of\t the  order.\nRight  from the beginning they have been saying\t that  there\nwas  no\t \"Government Order\" in so far as  admission  to\t the\nMedical\t College was concerned.\t Since both  the  appellants\nwere concerned only with the admission to a Medical  College\nthey  had  no  necessity  to  deny  the\t existence  of\t the\nGovernment  Order  regarding  admission\t to  an\t Engineering\nCollege.   The\tdocument  which is relied on  the  State  to\nestablish that there was a Government Order is nothing but a\ncommunication  from  the Secretary to Government  of  Mysore\naddressed  to  the  selection committee\t and  Deans  Medical\nCollege\t Mysore.   It  is  thus not an\torder  of  the\tkind\ncontemplated  by  Art.\t166.  Except  a\t statement  in\tthat\ncommunication  that  the  Under Secretary  is  \"directed  to\nstate\" that the Government has taken a decision there is  no\nevidence  or  averment that the Governor has made  an  order\nproviding  for\tinterview.  In no case has this\t Court\theld\nthat such a document. can be treated as the Governor's Order\nor even evidence of the existence of the Governor's Order.\n(iii)\t  The  decision of this Court in Gujarat  University\nv.  Shri  Krishna, [1963] Supp.\t 1 S.C.R.  112,\t establishes\nthat the power to provide for coordination and determination\nof  standards  in  certain  institutions  like\tthe  medical\ncolleges  is  vested  in  the  Parliament  and\teven  though\nParliament  may\t not  have exercised that  power  the  State\nLegislature cannot step in and provide for the determination\nand coordination of standards by requiring that marks on the\nbasis  of  interviews  be  awarded  to\tthe  applicants\t for\nadmission of candidates to,-such institutions as is done  in\nthe  present case.  It constitutes an interference with\t the\nstandards of admission laid down by the University.\n(iv) The executive power of the State which is\tco-extensive\nwith  legislative power under Art. 162 of  the\tConstitution\ncannot\tbe exercised where such exercise is contrary to\t law\nor where it has been assigned to\n372\nother  authorities  or\tbodies.\t Section 23  of\t the  Mysore\nUniversity  Act,  provides that the Acadamic  Council  shall\nhave  power to prescribe the conditions of admission to\t the\nUniversity  and therefore the executive cannot\tencroach  on\nthis power.\nRai  Sahib  Ram Jawaya Kapur v. State of  Punjab,<\/a>  [1955]  2\nS.C.R.\t225  and  Motilal v. Government of  State  of  Uttar\nPradesh, A.I.R. 1951 All 259 (F.13.).\n(v)  It\t would not be in accordance with cl. (1) of Art.  15\nor  cl. (2) of Art. 29 to require the consideration  of\t the\ncaste  of persons to be borne in mind for  determining\twhat\nare socially and educationally backward\nclasses.\n\n\n\nJUDGMENT:\n<\/pre>\n
CIVIL  APPELLATE JURISDICTION: Civil Appeals Nos.  1056\t and
\n1057 of 1963.\n<\/p>\n
Appeals\t by special leave from the judgment and order  dated
\nSeptember  30,\t1963  of  the  Mysore  High  Court  in\tWrit
\nPetitions Nos. 1592 and 1522 of 1963.\n<\/p>\n
S.   K.\t Venkataranga Iyengar and R. Gopalakrishnan, for the
\nappellants (in both the appeals).\n<\/p>\n
C.   K.. Daphtary, Attorney-General, B. R. L. lyengar and B.
\nR. G.  K. A char, for the respondents (in both the appeals)
\nJanuary\t 29,  1964.  The Judgment of B. P. Sinha,  C.J.,  K.
\nSubba Rao, N. Rajagopala Ayyangar and Raghubar Dayal JJ. was
\ndelivered   by\tSubba  Rao  J.\tMudholkar  J.  delivered   a
\ndissenting opinion.\n<\/p>\n
SUBBA  RAO  J.-These two appeals raise the question  of\t the
\nvalidity, of the orders made by the Government of Mysore  in
\nrespect of admissions to Engineering and Medical Colleges in
\nthe  State of Mysore.  The facts may be briefly\t stated:  in
\nthe  State of Mysore there are a number of  Engineering\t and
\nMedical Colleges-most of them are Government Colleges and  a
\nfew  of\t them  are Government  aided  Colleges.\t  The  State
\nGovernment  appointed  a  common  selection  committee\t for
\nsettling admissions to the Engineering Colleges and  another
\ncommon\tselection  committee  for  settling  admissions\t  to
\nMedical Colleges.  The Government by an order dated July 26,
\n1963, marked as Ex.  C in the
\n373<\/span>
\nHigh  Court, defined backward classes and directed  that  30
\nper cent of the seats in professional and technical colleges
\nand institutions shall be reserved for them and 18 per cent.
\nto  the Scheduled Castes and the Scheduled Tribes.  On\tJuly
\n6,  1963,  the Government sent a letter to the\tDirector  of
\nTechnical Education in Mysore, Bangalore, informing him that
\nit  had been decided that 25 per cent of the  maximum  marks
\nfor  the  examination in the optional  subjects\t taken\tinto
\naccount for making the selection of candidates for admission
\nto  Engineering Colleges shall be fixed as interview  marks;
\nit  also laid down the criteria for allotting marks  in\t the
\ninterview.   It appears that a similar order was  issued  in
\nrespect\t of  Medical  Colleges.\t  The  selection   committee
\nconverted the total of the marks in the optional subjects to
\na  maximum  of\t300 marks and fixed the\t maximum  marks\t for
\ninterview at 75.  On the basis of the marks obtained by\t the
\ncandidates  in\tthe examination and those -obtained  in\t the
\ninterview, selections were made for admission to Engineering
\nand   Medical  Colleges.   Some\t of  the  candidates   whose
\napplications  for  admission  to  the  said  colleges\twere
\nrejected filed petitions under Art. 226 of the\tConstitution
\nin  the High Court of Mysore for quashing the orders  issued
\nby  the Government in the matter of admissions to  the\tsaid
\nColleges and for a direction that they shall be admitted  in
\nthe  Colleges  strictly\t in the order of  merit.   The\tHigh
\nCourt,\tafter considering the various contentions raised  by
\nthe petitioners, held that the orders defining\tbackwardness
\nwere valid and that the criteria laid down for interview  of
\nstudents  were\tgood;  but  it\theld  that  -the   selection
\ncommittee  had\tabused the powers conferred upon it  and  on
\nthat finding set aside the interviews held and directed that
\nthe  applicants\t shall be interviewed afresh  in  accordance
\nwith the scheme laid down by the Government in Exs.  C and D
\nand  in Annexure IV, subject to the directions given by\t it.
\nTwo  of\t the  petitioners have\tfiled  the  present  appeals
\nagainst the said order of the High Court.\n<\/p>\n
We  shall now proceed to deal with the\tvarious\t contentions
\nraised by learned counsel for the appellants.
\nLearned\t counsel  for  the  appellants\tcontends  that\t the
\nGovernment did not issue any order to the selection corn-\n<\/p>\n
374<\/span><\/p>\n
mittee in charge of admissions to Medical Colleges prescrib-
\ning  the  marks\t for interview or fixing  the  criteria\t for
\nallotting  the said marks.  Annexure IV dated July 6,  1963,
\nrelates\t to award of marks for the interview of\t candidates,
\nseeking\t admission  to Engineering  Colleges  and  Technical
\nInstitutions.\tIt was a letter written by the Secretary  to
\nthe  Government\t of  Mysore, Education\tDepartment,  to\t the
\nDirector   of  Technical  Education  in\t Mysore\t  Bangalore.
\nTherein\t the Government fixed the percentage of marks to  be
\nallotted  at  the interview.  The  selection  committee\t was
\nauthorised  to allot marks to the candidates, having  regard
\nto the following factors:\n<\/p>\n
\t      (1)   General Knowledge.\n<\/p><\/blockquote>\n
\t      (2)   Aptitude and personality.\n<\/p><\/blockquote>\n
\t      (3)   Previous   academic\t career,   including
\n\t      special distinctions, etc.
\n\t      (4)   N . C.C., A.C.C., etc.
\n\t      (5)   Extra  curricular  activities  including
\n\t      sports,  social service, debating,  dramatics,
\n\t      etc.\n<\/p><\/blockquote>\n
But  at\t the  time of arguments no  letter  written  by\t the
\nGovernment in respect of admissions to Medical Colleges\t was
\nplaced before us.  There is no definite allegation in either
\nof  the two affidavits filed by the appellants that no\tsuch
\norder  was  issued by the Government in respect\t of  Medical
\nColleges.  But, in the petition filed by Chitralekha in para
\n22 the following statement is found:\n<\/p>\n
\t      “As  the\torder empowering them  to  award  75
\n\t      marks  as interview marks has so far  remained
\n\t      secret in that it has not been made available,
\n\t      this Hon’ble Court may be pleased to send\t for
\n\t      the same, as the order falls to be quashed.”\n<\/p><\/blockquote>\n
This  averment assumes that such an order was made.  In\t the
\ncounter-affidavit  filed  by Dr.  Dharmaraj,  Dean,  Medical
\nCollege,  and  Chairman\t of  the  selection  committee\t for
\nadmission to Medical Colleges, it is stated that the Govern-
\nment  by  its  letter  directed\t that  the  said   selection
\ncommittee  shall  interview candidates and allot  marks\t the
\nmaximum\t of which shall be 25 per cent of the maximum  marks
\nfor  the  optional subjects and laid down the  criteria\t for
\nallotting
\nmarks  in  the interview.  In the paper-book  as  typed\t the
\ndescription  of\t the letter is omitted.\t  But  the  learned;
\nAttorney-General stated that in the original the description
\nis given and that is, PLM 531 MNC 63 dated 12th July,  1963.
\nIn  the\t counter-affidavit  filed by  B.  R.  Verma,  Deputy
\nSecretary  to -the Government of Mysore,  Education  Depart-
\nment,  Bangalore,  after  referring to Annexure\t IV,  it  is
\nstated\tthat a similar letter was sent by the Government  to
\nthe  Selection Committee for admission to Medical  Colleges.
\nIt does not appear from the judgment of the High Court\tthat
\nlearned\t counsel for the appellants denied the existence  of
\nsuch  a\t communication in respect of Medical  Colleges,\t but
\nProceeded  with\t his argument on the basis that\t a  communi-
\ncation\tsimilar\t to Annexure IV issued\tin  connection\twith
\nadmissions  to Engineering Colleges existed in the  case  of
\nMedical\t Colleges also.\t But before us the  learned  counsel
\nfor  the  appellants heavily relied upon the fact  that\t the
\nsaid order was not filed in the court and was not willing to
\naccept\tthe  assurance\tgiven  by  the\tAttorney-General  on
\ninstructions   that   such  an\torder\texisted.    In\t the
\ncircumstances  we directed the Attorney-General to file\t the
\nsaid order.  A copy of the letter written by the  Government
\nhas since be-en filed and it clearly shows that the relevant
\ninstructions were issued in, respect of admission to Medical
\nColleges also.\tWe, therefore, hold that the Government sent
\na  letter similar in terms. to annexure IV to the  selection
\ncommittee for admission to, Medical Colleges.
\nThe next contention advanced is that Annexure IV was invalid
\nas it did not conform to the requirements of Art. 166 of the
\nConstitution.\tAs the argument turns upon the for=  of\t the
\nsaid  annexure\tit will be convenient to read  the  material
\npart thereof.\n<\/p>\n
“sir,
\n\t      Sub  : Award of marks for the  “interview”  of
\n\t      the    candidates\t  seeking    admission\t  to
\n\t      Engineering     Colleges\t   and\t   Technical
\n\t      Institutions.\n<\/p>\n
With reference to your letter No. AAS. 4.ADW\/63\/2491,  dated
\nthe 25th June, 1903, on the subject
\n376<\/span>
\nMentioned above, I am directed to state that Government have
\ndecided that 25 per cent of the maximum marks
\n\t\t     Yours faithfully,
\n\t\t     Sd\/- S. NARASAPPA,
\nUnder Secretary to Government,
\nEducation Department.”\n<\/p>\n
Ex facie this letter shows that it was a communication of he
\norder  issued by the Government under the signature  of\t the
\nUnder  Secretary  to the Government,  Education\t Department.
\nUnder  Art., 166 of the Constitution an executive action  of
\nthe Government of a State shall be expressed to be taken  in
\nthe  name of the Governor, and that orders made in the\tname
\nof  the Governor shall be authenticated in such,  manner  as
\nmay be specified in rules to be made by be Governor and\t the
\nvalidity of an order which is so authenticated shall not  be
\ncalled in question on the ground hat it is not an order made
\nby the Governor.\n<\/p>\n
 If  the conditions laid down in this Article  are  complied
\nwith,  the order cannot be called in question on the  ground
\nhat  it\t is not an order made by the Governor.\tIt  is\tcon-
\ntended\tthat as the order in question was not issued in\t the
\nname  of the Governor the order was void and  no  interviews
\ncould  be  held\t pursuant to that order.   The\tlaw  on\t the
\nsubject is well-settled.  In Dattatreya Moreshwar  Pangarkar
\nv.   The  State\t of  Bombay<\/a>  (1) Das J.,  as  he  then\twas,
\nobserved:\n<\/p>\n
\t      “Strict  compliance with the  requirements  of
\n\t      article 166 gives an immunity to the order  in
\n\t      that  it\tcannot be challenged on\t the  ground
\n\t      that it is not an order made by the  Governor.
\n\t      If,   therefore,\tthe  requirements  of\tthat
\n\t      article  are not complied with, the  resulting
\n\t      immunity\tcannot\tbe  claimed  by\t the  State.
\n\t      This,  however,  does not\t vitiate  the  order
\n\t      itself
\n\t      action  to be expressed and  authenticated  in
\n\t      the manner therein laid down but an
\n\t      (1)   [1952] S.C.R. 612, 625.\n<\/p><\/blockquote>\n
\t\t\t\t   377<\/span><\/p>\n
\t      omission to comply with those provisions\tdoes
\n\t      not  render  the executive action\t a  nullity.
\n\t      Therefore’ all that the procedure\t established
\n\t      by  law requires is that the appropriate\tGov-
\n\t      ermnent must take a decision as to whether the
\n\t      detention\t order\tshould be confirmed  or\t not
\n\t      under section 11(1).”\n<\/p><\/blockquote>\n
The  same view was reiterated by this Court in The State  of
\nBombay\tv. Purshottam Jog Naik<\/a>(1), where it was pointed\t out
\nthat though the order in question then was defective in form
\nit was open to the State Government to prove by other  means
\nthat  such  an order had been validly made.  This  view\t has
\nbeen  reaffirmed by this Court in subsequent decisions:\t see
\nGhaio  Mall and Sons v. The State of Delhi<\/a> (2), and  it\t is,
\ntherefore,  settled law that provisions of Art. 166  of\t the
\nConstitution  are  only\t directory  and\t not  mandatory\t  in
\ncharacter and, if they are not complied with, it can be\t es-
\ntablished as a question of fact that the impugned order\t was
\nissued in fact by the State Government or the Governor.\t The
\njudgment  of this Court in Bachhittar Singh v. The State  of
\nPunjab<\/a>(3) does not help the appellants, for in that case the
\norder signed by the Revenue Minister was not communicated to
\nthe  party  and, therefore, it was held that  there  was  no
\neffective order.\n<\/p>\n
In the light of the aforesaid decisions, let us look at\t the
\nfacts of this case.  Though Annexure IV does not conform  to
\nthe provisions of Art. 166 of the Constitution, it ex  facie
\nsays  that  an\torder to the effect  mentioned\ttherein\t was
\nissued\tby the Government and it is not denied that  it\t was
\ncommunicated to the selection committee.  In neither of\t the
\naffidavits  filed by the appellants there was  any  specific
\naverment  that no such order was issued by  the\t Government.
\nIn the counter-affidavit filed by B. R. Varma, Deputy Secre-
\ntary  to  the Government of  Mysore,  Education\t Department,
\nthere  is  a  clear averment that the  Government  gave\t the
\ndirection contained in Annexure IV and a similar letter was
\n(1) [1952] S. C. R. 674.\t   (2)[1959] S. C. R. 1424.
\n(3)  [1962] SUPP. 3 S. C. R. 713.\n<\/p>\n
378<\/span><\/p>\n
issued to the selection committee for admissions to  Medical
\nColleges and this averment was not denied by the  appellants
\nby  filing any affidavit.  In the circumstances\t when  there
\nare  no allegations at all in the affidavit that  the  order
\nwas not made by the Government, we have no reason to  reject
\nthe averment made by the Deputy Secretary to the  Government
\nthat  the order was issued by the Government.  There are  no
\nmerits in this contention.\n<\/p>\n
It  is\tthen contended that the Government has no  power  to
\nappoint\t a  selection committee for  admitting\tstudents  to
\ncolleges on the basis of higher or different  qualifications
\nthan those prescribed by the University and, therefore,\t the
\norders\tmade by the Government in respect of admission\twere
\nillegal.   The\tfirst argument is.  that  co-ordination\t and
\ndetermination  of  standards  of a  university\tis  a  Union
\nsubject\t and,  therefore,  the\tState  Legislature  has\t  no
\nconstitutional competency to make a law for maintaining\t the
\nstandards   of\t university   education.    As\t the   State
\nGovernment’s executive power extends to matters with respect
\nto  which  the Legislature of the State has  power  to\tmake
\nlaws,  the  argument proceeds, the Government of  the  State
\ncannot make an order or issue directions for maintaining the
\nstandards  of the University.  The further argument is\tthat
\nprescribing  higher marks for admission to a College is\t for
\nthe  purpose  of  maintaining the  standards  of  University
\neducation   and\t therefore  the\t State\tGovernment  is\t not
\nempowered to do so.  In support of this contention  reliance
\nis  placed  upon  the  judgment of  this  Court\t in  Gujarat
\nUniversity v. Shri Krishna(1).\tThere, one of the  questions
\nraised related to alleged conflict between entry 11 of\tList
\nII  and\t entry 66 of List I of the Seventh Schedule  to\t the
\nConstitution.\tBy  item No. 11 of List II  of\tthe  Seventh
\nSchedule  to  the Constitution, the  State  Legislature\t has
\npower  to  legislate  in  respect  of  education   including
\nUniversities  subject to the provisions of items 63, 64,  65
\nand  66 of List I and 25 of List III.  By item 66  power  is
\nentrusted  to Parliament to legislate on  co-ordination\t and
\ndetermination  of  standards  in  institutions\tfor   higher
\neducation   or\t research  and\tscientific   and   technical
\ninstitutions.\n<\/p>\n
(1)  [1963] SUPP. 1 S.C. R. 112
\n\t\t\t    379<\/span>
\nThe   question\twas  whether  medium  of   instruction\t was
\ncomprehended  by either of those entries or whether it\tfell
\nunder both.  In that context it was observed at p. 715-716:\n<\/p>\n
\t      “The  State  has the power  to  prescribe\t the
\n\t      syllabi\tand   courses  of   study   in\t the
\n\t      institutions  named  in  entry  66  (but\t not
\n\t      falling  within  entries 63 to 65) and  as  an
\n\t      incident thereof it has the power to  indicate
\n\t      the  medium  in which  instruction  should  be
\n\t      imparted.\t  But  the Union Parliament  has  an
\n\t      overriding  legislative power to\tensure\tthat
\n\t      the  syllabi and courses of  study  prescribed
\n\t      and   the\t medium\t selected  do\tnot   impair
\n\t      standards of education or render the  co-ordi-
\n\t      nation  of  such standards either\t on  an\t All
\n\t      India  or\t other\tbasis  impossible  or\teven
\n\t      difficult.”\n<\/p><\/blockquote>\n
This  and  similar other passages indicate that if  the\t law
\nmade  by the State by virtue of entry II of List II  of\t the
\nSeventh\t Schedule  to the Constitution makes  impossible  or
\ndifficult  the\texercise  of the legisiative  power  of\t the
\nParliament under the entry “Co-ordination and  determination
\nof  standards  in  institutions\t for  higher  education\t  or
\nresearch and scientific and technical institutions” reserved
\nto  the\t Union,\t the  State law may  be\t bad.\tThis  cannot
\nobviously   be\tdecided\t on  speculative  and\thypothetical
\nreasoning.   If\t the impact of the State law  providing\t for
\nsuch  standards\t on  entry  66 of List\tI  is  so  heavy  or
\ndevastating  as\t to  wipre out or  appreciably\tabridge\t the
\ncentral\t field,\t it  may  be struck down.   But\t that  is  a
\nquestion of fact to be ascertained in each case.  It is\t not
\npossible  to  hold that if a State legislature\tmade  a\t law
\nprescribing   a\t higher\t percentage  of\t marks\tfor   extra-
\ncurricular   activities\t in  the  matter  of  admission\t  to
\ncolleges,  it  would be directly encroaching  an  the  field
\ncovered by entry 66 of List I of the Seventh Schedule to the
\nConstitution.\tIf  so, it is not disputed  that  the  State
\nGovernment   would  be\twithin\tits  rights   to   prescribe
\nqualifications\tfor  admission to colleges so  long  as\t its
\naction does not contravene any other law.\n<\/p>\n
It  is\tthen said that the Mysore University  Act  conferred
\npower  to prescribe rules for admission to Colleges  on\t the
\nUniversity and the Government cannot exercise that power.\n<\/p>\n
380<\/span><\/p>\n
It  is true that under s. 23 of the Mysore  University\tAct,
\n1956, the Academic Council shall have the power to prescribe
\nthe  conditions for admission of students to the  University
\nand,  in  exercise  of\tits power,  it\thas  prescribed\t the
\npercentage of marks which a student shall obtain for getting
\nadmission in medical or engineering colleges.  The orders of
\nthe Government do not contravene the minimum  qualifications
\nprescribed by the University; what the Government did was to
\nappoint\t a  selection  committee  and  prescribe  rules\t for
\nselection  of students who have the  minimum  qualifications
\nprescribed  by the University.\tThe Government runs most  of
\nthe  medical and engineering colleges.\tExcluding the  State
\naided colleges for a moment, the position is as follows: The
\nColleges  run by the Government, having regard to  financial
\ncommitments  and  other relevant  considerations,  can\tonly
\nadmit  a specific number of students to the  said  Colleges.
\nThey  cannot  obviously admit all the  applicants  who\thave
\nsecured\t the  marks prescribed by the  University.   It\t has
\nnecessarily  to\t screen the applicants\ton  some  reasonable
\nbasis.\t  The  aforesaid  orders  of  the   Govemment\tonly
\nprescribed  criteria for making admissions to Colleges\tfrom
\namong  ‘students  who secured the minimum  qualifying  marks
\nprescribed  by the University.\tOnce it is conceded, and  it
\nis not disputed before us, that the State Government can run
\nmedical\t and engineering colleges, it cannot be\t denied\t the
\npower\tto  admit  such\t qualified  students  as  pass\t the
\nreasonable  tests  laid down by it.  This is a\tpower  which
\nevery  private\towner  of  a  College  will  have,  and\t the
\nGovernment which runs its own Colleges cannot be denied that
\npower.\n<\/p>\n
Even so it is argued that the same power cannot be exercised
\nby the Government in respect of private Colleges though they
\nare  receiving\taid from the State.  But the  management  of
\naided institutions have not raised any objections.   Indeed,
\nfrom  the year 1960 admissions were made to the Colleges  by
\nthe selection committees constituted by the Government.\t The
\nHigh Court, after considering the material placed before it,
\nheld that, with the consent of the management of the various
\nprofessional  and  technical colleges, the  Government\ttook
\nover the responsibility of regulating admission of  students
\nto the colleges in question.\n<\/p>\n
381<\/span><\/p>\n
Nothing\t has been placed before us to prove that the  selec-
\ntion  committees were constituted against the wishes of\t the
\nmanagement of the aided colleges.  In the circumstances.  we
\ncannot disturb the finding of the High Court in this regard.
\nWe,  therefore,\t hold  that  the  Government  has  power  to
\nprescribe a machinery and also the criteria for admission of
\nqualified  students to medical and engineering colleges\t run
\nby the Government and, with the consent of the management of
\nthe Government aided colleges, to the said colleges also.
\nIt  is\tthen  contended\t that the  system  of  selection  by
\ninterviews and viva voce examination is illegal inasmuch  as
\nit enables the interviewers to act arbitrarily and to  mani-
\npulate the results and, therefore, it contravenes Art. 14 of
\nthe  Constitution.   To\t appreciate this  contention  it  is
\nnecessary  to  notice  how the interview  is  held  and\t the
\ncriteria  laid\tdown for the selection committee  to  adopt.
\nThe Government by its order dated May 17, 1963 constituted a
\ncommittee consisting of the following members for  selection
\nto Government Medical Colleges:\n<\/p>\n
\t      (1)   The\t     Dean,     Medical\t    College,\n\t      Mysore--Chairman.\n<\/pre>\n
\t      (2)   The\t Dean, Medical\tCollege,  Bangalore-
\n\t      Member.\n<\/p>\n
\t      (3)   The\t     Dean,     Medical\t    College,\n\t      Hubli--Member.\n<\/pre>\n
So too, highly qualified educationists were appointed to the
\nselection  committee  for  the\tEngineering  Colleges.\t  By
\nnotification dated July 6, 1963, in respect of the Engineer-
\ning Colleges and a similar notification issued in respect of
\nthe  Medical  Colleges, the Government\tprescribed  that  in
\naddition to the examination marks in optional subjects there
\nshould\tbe  an interview of students for which\tthe  maximum
\nmark prescribed shall be 25 per cent of the maximum marks of
\nthe optional subjects.\tThe selection committee has to allot
\nmarks,\thaving\tregard to general  knowledge,  aptitude\t and
\npersonality,  previous\tacademic career,  including  special
\ndistinctions  etc.,  N.C.C., A.C.C.  etc.,  extra-curricular
\nactivities  including  sports,\tsocial\tservice,   debating,
\ndramatics etc.\tIt is, therefore, clear that the  Government
\nby  its\t order\tnot  only  laid\t down  a  clear\t policy\t and
\nprescribed  definite criteria in the matter of giving  marks
\nat the interview but
\n382<\/span>
\nalso appointed, competent men to make the selection on\tthat
\nbasis.\t The  order of the Government does not\tin  any\t way
\ncontravene Art. 14 of the Constitution.\n<\/p>\n
But  learned  counsel  for the appellants  raised  a  larger
\nquestion   that\t selection  by\tinterviews   is\t  inherently
\nrepugnant to the doctrine of equality embodied in Art. 14 of
\nthe  Constitution, for, whatever may be the  objective\ttest
\nlaid  down, in the final analysis the awarding of  marks  is
\nleft  to  the  subjective  satisfaction\t of  the   selection
\ncommittee   and,   therefore,  it  gives  ample\t  room\t for
\ndiscrimination\tand manipulation.  We cannot accept  such  a
\nwide  contention and condemn one of the well-accepted  modes
\nof selection in educational institutions.  James Hart in his
\n“An Introduction to Administrative Law” observes, at p.\t 180
\nthus:\n<\/p>\n
\t      “A  test\tor examination, to  be\tcompetitive,
\n\t      must employ an objective standard of  measure.
\n\t      Where  the standard or measure is wholly\tsub-
\n\t      jective to the examiners, it differs in effect
\n\t      in no respect from an uncontrolled opinion  of
\n\t      the    examiners\t and   cannot\tbe    termed
\n\t      competitive.”\n<\/p><\/blockquote>\n
In  the\t field\tof education there are\tdivergent  views  as
\nregard\tthe  mode  of testing the capacity  and\t calibre  of
\nstudents in the matter of admissions to colleges.   Orthodox
\neducationists  stand by the marks obtained by a\t student  in
\nthe annual examination.\t The modern trend of opinion insists
\nupon other additional tests, such as interview,\t performance
\nin    extra-curricular\t activities,\tpersonality    test,
\npsychiatric  tests etc.\t Obviously we are not in a  position
\nto  judge  which method is preferable or which test  is\t the
\ncorrect one.  If there can be manipulation or dishonesty  in
\nallotting   marks  at  interviews,  there  can\tequally\t  be
\nmanipulation in the matter of awarding marks in the  written
\nexaminations.  In the ultimate analysis, whatever method  is
\nadopted\t its success depends on the moral standards  of\t the
\nmembers constituting the selection committee and their sense
\nof objectivity and devotion to duty.  This criticism is more
\na  reflection  on the examiners than on the  system  itself.
\nThe scheme of selection, however perfect it may be on paper,
\nmay be abused in practice.  That it is capable of abuse is
\n\t\t\t    383<\/span>
\nnot  a\tground for quashing it.\t So long as the\t order\tlays
\ndown  relevant objective criteria and entrusts the  business
\nof  selection  to  qualified  persons,\tthis  Court   cannot
\nobviously  have\t any say in the matter.\t In  this  case\t the
\ncriteria laid down by the Government are certainly  relevant
\nin  the matter of awarding marks at the interview.   Learned
\ncounsel contends that the ability of a student on the  basis
\nof  the said criteria can be better judged by other  methods
\nlike  certificate  from the N.C.C. Commander  or  a  medical
\nboard or a psychatrist and should not be left to a body like
\nthe selection committee which cannot possibly arrive at\t the
\ncorrect\t conclusion in a short time that would be  available
\nto  it.\t This criticism does not affect the validity of\t the
\ncriteria,  but only suggests a different method of  applying
\nthe criteria .than that adopted by the Committee.  It is not
\nfor  us to say which method should be adopted: that must  be
\nleft to the authority concerned.  If in any particular\tcase
\nthe  selection\tcommittee abuses its power in  violation  of
\nArt. 14 of the Constitution, that may be a case for  setting
\naside  the  result of a particular interview,  as  the\tHigh
\nCourt did in ,this case.  We cannot, therefore, hold without
\nbetter\tand more scientific material placed before  us\tthat
\nselection by interview in addition to the marks obtained  in
\nthe  written examination is itself bad as offending Art.  14
\nof the Constitution.\n<\/p>\n
Lastly\tit is contended that though the High Court  did\t not
\nquash  the  order of the Government embodied in Ex.   C,  it
\nheld  that  it\twas not a perfect  classification  and\talso
\nindicated  its mind that the Government should have  adopted
\nthe  caste test as well as the residence test in making\t the
\nclassification.\t  If the observations of the learned  Judge,
\nthe  argument proceeds, are not corrected, the State may  be
\nbound  by  such observations in the matter when\t it  finally
\nprescribes  the\t criteria  for\tascertaining  the   backward
\nclasses\t under Art. 15 (4) of the Constitution.\t In  Ex.   C
\nthe Government laid down that classification of socially and
\neducationally  backward\t classes  should  be  made  on\t the
\nfollowing basis: (1) economic condition; and (2) occupation.
\nAccording  to that order a family whose income is Rs.  1,200
\nper   annum  or\t less  and  persons  or\t classes   following
\noccupations   of   agriculture\tpetty\tbusiness,   inferior
\nservices, crafts or other
\n384<\/span>
\noccupations   involving\t manual\t labour.  are  in   general,
\nsocially,  economically\t and  educationally  backward.\t The
\nGovernment  lists the following occupations as\tcontributing
\nto social backwardness: (1) actual cultivator; (2)  artisan;
\n(3) petty businessmen; (4) inferior services (i.e., Class IV
\nin Government services and corresponding class or service in
\nprivate\t employment)  including casual labour; and  (5)\t any
\nother occupation involving manual labour.  It is, therefore,
\nmanifest that the Government, as a temporary measure pending
\nan  elaborate study, has taken into consideration  only\t the
\neconomic condition and occupation of the family concerned as
\nthe criteria for backward classes within the meaning of Art.
\n15  (4) of the Constitution.  The order does not  take\tinto
\nconsideration  the  caste  of an applicant  as\tone  of\t the
\ncriteria for backwardness.  Learned counsel does not  attack
\nthe  validity  of  the said order.  But in  the\t High  Court
\nconflicting arguments were advanced in support of this order
\nas  well as against it.\t The High Court heavily relied\tupon
\nthe  decision of this Court in M. R. Balaji v. The State  of
\nMysore<\/a>(1)  and\tcame  to the  conclusion  that,\t the  scheme
\nadopted by the State was a very imperfect scheme and that in
\naddition  to  the occupation and poverty  tests,  the  State
\nshould\thave  adopted  the  “caste”  test  as  well  as\t the
\n‘residence”  test  in making the  classification.   It\talso
\nobserved  that the decision in Balaji’s case says that\t“the
\n`caste’\t basis is undoubtedly a relevant, nay  an  important
\nbasis  in determining the classes of backward Hindus but  it
\nshould not be made the sole basis”.  It concluded that\tpart
\nof the discussion with the following observation:\n<\/p>\n
\t      “But I earnestly hope that soon the State will
\n\t      make  a more appropriate\tclassification\tlest
\n\t      its bonafides should be questioned.”\n<\/p><\/blockquote>\n
Learned\t counsel  contends that these observations  are\t not
\nsupported by the decision in Balajis case, and that they are
\nin  conflict with the observations made therein.  We  shall,
\ntherefore,  consider the exact scope of the observations  in
\nthe  said  decision of this Court.  There, 68  per  cent  of
\nseats  in  Colleges were reserved for the  alleged  backward
\ncommunities.   It was argued before this Court on behalf  of
\nthe peti-\n<\/p>\n
 (1) [1963] Supp. 1 S. C. R. 439.\n<\/p>\n
385<\/span><\/p>\n
tioners\t therein that the impunged order, which\t was  passed
\nunder Art. 15(4) of the Constitution, was not valid  because
\nthe basis adopted by the order in specifying and enumerating
\nthe socially and educationally backward classes of  citizens
\nin  the\t State was unintelligible and  irrational,  and\t the
\nclassification made on the said basis was inconsistent\twith
\nand   outside  the  provisions\tof  Art.  15  (4)   of\t the
\nConstitution.\t  In   considering   the   said\t   question,
\nGajendragadkar\t J.,  speaking\tfor  the  Court,  made\t the
\nfollowing observations, at p. 658:\n<\/p>\n
\t      “The  backwardness under Art. 15 (4)  must  be
\n\t      social  and  educational.\t It  is\t not  either
\n\t      social  or educational, but it is both  social
\n\t      and  educational;\t and that takes\t us  to\t the
\n\t      question\tas  to how  social  and\t educational
\n\t      backwardness has to be determined.”\n<\/p><\/blockquote>\n
Adverting  to the expression “classes” of citizens  in\tArt.
\n15(4)  of the Constitution, the learned Judge  proceeded  to
\nstate:\n<\/p>\n
\t      The  group  of  citizens to  whom\t Art.  15(4)
\n\t      applies are described as “classes of  citizens
\n\t      not as castes of citizens.  A class  according
\n\t      to  the dictionary meaning, shows division  of
\n\t      society\taccording   to,\t status,   rank\t  of
\n\t      caste…………\n<\/p><\/blockquote>\n
\t      to  whether any class of citizens is  socially
\n\t      backward\tor not, it may not be irrelevant  to
\n\t      consider\tthe  caste  of\tthe  said  group  of
\n\t      citizens.\t In this connection it is,  however,
\n\t      necessary\t to  bear in mind that\tthe  special
\n\t      provision\t is  contemplated  for\tclasses\t  of
\n\t      citizens\tand not for individual\tcitizens  as
\n\t      such, and so, though the caste of the group of
\n\t      citizens\tmay  -be  relevant,  its  importance
\n\t      should\tnot   be   exaggerated.\t   If\t the
\n\t      classification of backward classes of citizens
\n\t      was based solely on the caste of the  citizen,
\n\t      it  may not always be logical and may  perhaps
\n\t      contain  the vice of perpetuating\t the  castes
\n\t      themselves.\n<\/p><\/blockquote>\n
134-159 S.C.–25
\n386<\/span>
\n\t      Besides, if the caste of the group of citizens
\n\t      was  made the sole basis for  determining\t the
\n\t      social  backwardness  of the said\t group\tthat
\n\t      test  would inevitably break down in  relation
\n\t      to  many sections of Indian Society  which  do
\n\t      not  recognise  castes  in  the  conventional,
\n\t      sense  known  to\tHindu  society…………..
\n\t      That  is\twhy we think that though  castes  in
\n\t      relation to Hindus may be a relevant factor to
\n\t      consider\t  in\tdetermining    the    social
\n\t      backwardness of groups Or classes of citizens,
\n\t      it  cannot  be made the sole or  the  dominant
\n\t      test in that behalf.”\n<\/p>\n
Two  principles stand out prominently from the\tsaid  obser-
\nvations, namely, (i) the caste of a group of citizens may be
\na  relevant circumstance in ascertaining their social  back-
\nwardness;  and\t(ii)  though  it is  a\trelevant  factor  to
\ndetermine the social backwardness of a class of citizens, it
\ncannot\tbe  the sole or dominant test in that  behalf.\t The
\nobservations  extracted\t in the judgment of the\t High  Court
\nappear\tto  be\tin conflict with the  observations  of\tthis
\nCourt.\tWhile this Court said that caste is only a  relevant
\ncircumstance  and  that it cannot be the  dominant  test  in
\nascertaining  the backwardness of a class of  citizens,\t the
\nHigh Court said that it is an important basis in determining
\nthe class of backward Hindus and that the Government  should
\nhave  adopted  caste  as  one of the  tests.   As  the\tsaid
\nobservations  made  by\tthe High Court\tmay  lead  to  -some
\nconfusion in the mind of the authority concerned who may  be
\nentrusted  with\t the  duty  of\tprescribing  the  rules\t for
\nascertaining the backwardness of classes of citizens  within
\nthe  meaning  of Art. 15(4) of the  Constitution,  we  would
\nhasten\tto  make  it clear that caste  is  only\t a  relevant
\ncircumstance in ascertaining the backwardness of a class and
\nthere  is  nothing  in\tthe judgment  of  this\tCourt  which
\nprecludes  the\tauthority  concerned  from  determining\t the
\nsocial\tbackwardness of a group of citizens if it can do  so
\nwithout\t reference  to\tcaste.\tWhile  this  Court  has\t not
\nexcluded caste from ascertaining the backwardness of a class
\nof  citizens,  it  has not made it  one\t of  the  compelling
\ncircumstances  affording  a basis for the  ascertainment  of
\nbackwardness  of  a  class.   To  put  it  differently,\t the
\nauthority  concerned  may take caste into  consideration  in
\nascertaining
\n387<\/span>
\nthe  backwardness  of ‘a group of persons; but, if  it\tdoes
\nnot,  its order will not be bad on that account, if  it\t can
\nascertain  the\tbackwardness of a group of  persons  on\t the
\nbasis of other relevant criteria.\n<\/p>\n
The Constitution of India promises Justice, social, economic
\nand  political; and equality of status and of  opportunity,.
\namong others.  Under Art. 46, one of the Articles in Part IV
\nheaded\t“Directive  Principles of State Policy”,  the  State
\nshall promote with special care the educational and economic
\ninterests  of  the weaker sections of the  people,  and,  in
\nparticular,  of\t the  Scheduled\t Castes\t and  the  Scheduled
\nTribes, and shall protect them from social injustice and all
\nforms of exploitation.\tUnder Art. 341,
\n\t      “The  President may with respect to any  State
\n\t      or  Union territory, and where it is  a  State
\n\t      after consultation with the Governor  thereof,
\n\t      by  public  notification specify\tthe  castes,
\n\t      races  or tribes or parts of or groups  within
\n\t      castes,  races or tribes which shall  for\t the
\n\t      purposes of this Constitution be deemed to  be
\n\t      Scheduled Castes in relation to that State  or
\n\t      Union territory, as the case may be.”\n<\/p>\n
Under  Art.  342,  in the same\tmanner,\t the  President\t may
\nspecify\t the  tribes  or  tribal  communities  as  Scheduled
\nTribes.\t Article 15(4) says:\n<\/p>\n
\t      “Nothing\tin this article or in clause (2)  of
\n\t      article 29 shall prevent the State from making
\n\t      any  special provision for the advancement  of
\n\t      any   socially  and   educationally   backward
\n\t      classes  of  citizens  or\t for  the  Scheduled
\n\t      Castes and the Scheduled Tribes.”\n<\/p><\/blockquote>\n
These  provisions  form\t a  group  of  Articles\t which\thave
\nrelevance  in  the  making of a special\t provision  for\t the
\nadvancement  of\t any  socially\tand  educationally  backward
\nclasses of citizens in the matter of admissions to colleges.
\nThese provisions recognize the factual existence of backward
\nclasses\t in our country brought about by historical  reasons
\nand  make  a sincere attempt to promote the welfare  of\t the
\nweaker sections thereof.  They shall be so construed
\n388<\/span>
\nas  to effectuate the said policy but not to give  weightage
\nto  progressive\t sections  of our society  under  the  false
\ncolour\tof  caste  to  which they  happen  to  belong.\t The
\nimportant  factor  to be noticed in Art. 15 (4) is  that  it
\ndoes  not speak of castes, but only speaks of  classes.\t  If
\nthe makers of the Constitution intended to take castes\talso
\nas units of social and educational backwardness, they  would
\nhave said so as they have said in the case of the  Scheduled
\nCastes and the Scheduled Tribes.  Though it may be suggested
\nthat  the wider expression ‘classes” is used in cl.  (4)  of
\nArt.  15  as there are communities without  castes,  if\t the
\nintention  was\tto  equate  classes  with  castes,   nothing
\nprevented  the\tmakers of the Constitution  from  using\t the
\nexpression “backward classes or castes”.  The  juxtaposition
\nof the expression “backward classes” and “Scheduled  Castes”
\nin Art. 15 (4) also leads to a reasonable inference that the
\nexpression “classes” is not synonymous with castes.  It\t may
\nbe  that for ascertaining whether a particular citizen or  a
\ngroup of citizens belong to a backward class or not, his  or
\ntheir caste may have some relevance, but it cannot be either
\nthe  sole  or the dominant criterion  for  ascertaining\t the
\nclass to which he or they belong.\n<\/p>\n
This  interpretation  will carry out the  intention  of\t the
\nConstitution expressed in the aforesaid Articles.  It  helps
\nthe  really  backward  classes\tinstead\t of  promoting\t the
\ninterests  of individuals or groups who, though they  belong
\nto  a  particular caste a majority whereof is  socially\t and
\neducationally  backward, really belong to a class  which  is
\nsocially and educationally advanced.  To illustrate, take  a
\ncaste  in a State which is numerically the largest  therein.
\nIt may be that though a majority of the people in that caste
\nare  socially  and  educationally  backward,  an   effective
\nminority may be socially and educationally far more advanced
\nthan  another small sub-caste the total number of  which  is
\nfar  less  than\t the said minority.   If  we  interpret\t the
\nexpression   “classes”\tas  “castes”,  the  object  of\t the
\nConstitution  will be frustrated and the people who  do\t not
\ndeserve any adventitious aid may get it to the exclusion  of
\nthose  who really deserve.  This anomaly will not arise\t if,
\nwithout\t equating caste with class, caste is taken  as\tonly
\none  of\t the considerations to ascertain  whether  a  person
\nbelongs to a backward
\n389<\/span>
\nclass or not.  I On the other hand, if the entire sub-caste,
\nby  and\t large,\t is  backward, it may  be  included  in\t the
\nScheduled Castes by following the appropriate procedure laid
\ndown by the Constitution.\n<\/p>\n
We  do\tnot intend to lay down any inflexible rule  for\t the
\nGovernment  to\tfollow.\t  The laying down  of  criteria\t for
\nascertainment  of social and educational backwardness  of  a
\nclass is a complex problem depending upon many circumstances
\nwhich  may vary from State to State and even from  place  to
\nplace  in a State.  But what we intend to emphasize is\tthat
\nunder  no  circumstances  a  “class” can  be  equated  to  a
\n“caste”,  though  the caste of an individual or a  group  of
\nindividual  may\t be  considered along  with  other  relevant
\nfactors in putting him in a particular class.  We would also
\nlike to make it clear that if in a given situation caste  is
\nexcluded in ascertaining a class within the meaning of\tArt.
\n15(4)\tof  the\t Constitution,\tit  does  not  vitiate\t the
\nclassification if it satisfied other tests.
\nIn  the result, the appeals fail and are  dismissed.   There
\nwill be no order as to costs.\n<\/p>\n
MUDHOLKAR I.-The appellants in these appeals had  challenged
\nbefore the High Court of Mysore the validity of the mode  of
\nselection  of  candidates  for\tadmission  to  the   Medical
\nColleges  in that State by preferring petitions\t before\t the
\nHigh Court under Art. 226 of the Constitution.\tThey pointed
\nout in their petitions that the selection committee, instead
\nof  selecting persons for admission on the basis  of  merit,
\nchose  to  interview the candidates and\t made  the  ultimate
\nselection  by  adding marks upto 75 to\tthe  marks  actually
\nsecured\t by  the  candidate  at\t the  Pre-University  Course
\nexamination  (herein referred to as P.U.C.  Examination)  on
\nthe  basis of the interview.  Their contentions are that  in
\nthe absence of any Government order there was no basis\tupon
\nwhich  marks  at the interview could be added to  the  marks
\nsecured in the P.U.C. examination, that the so-called  order
\non which reliance was placed on behalf of the State is not a
\nGovernment  order at all as the document produced  does\t not
\ncomply\t with\tthe  requirements  of  Art.   166   of\t the
\nConstitution, that no criteria were laid down for  allotting
\nmarks  TO the candidates at the interview, that this  was  a
\nviolation of Art. 14 of the Constitution, that the Govern-\n<\/p>\n
390<\/span><\/p>\n
ment   was   constitutionally\tincompetent   to   prescribe
\nqualifications\t for   admission  to  Colleges\t under\t the
\nUniversity different from those prescribed by the University
\nand  that  under the Mysore University\tAct  the  University
\nalone  had  the power to prescribe rules  for  admission  to
\nColleges affiliated to the University.\tThe High Court\theld
\nagainst\t the appellants on all these points.  But  upon\t the
\nview  that the Selection Committee had “misused” the  powers
\nconferred upon it and had wrongly interpreted the Government
\nOrder,\tquashed\t the results of the interview  and  directed
\nthat  after  interviewing the petitioners before  it  afresh
\ntheir  cases  should  be considered  for  admission  by\t the
\nSelection Committee in accordance with the Government Order.
\nIn  the course of its order the High Court has\tfound  fault
\nwith  the  Government  for  not taking\tthe  castes  of\t the
\ncandidates  into consideration while exercising\t its  powers
\nunder Art. 15(4) and making provision for the advancement of
\nbackward classes and made certain remarks to which objection
\nhas been taken on behalf of the appellants.
\nMy  learned brother Subba Rao J. whose judgment I  have\t had
\nthe opportunity of seing has upheld the judgment of the High
\nCourt  but has not agreed with the observations made  by  it
\nsuggesting  that  the caste of candidates should  also\thave
\nbeen  taken into consideration while determining the  social
\nand  educational backwardness of a class.  I regret  my\t in-
\nability to agree with many of the conclusions reached by  my
\nlearned\t brother and I am of opinion that the appeals  ought
\nto be allowed.\n<\/p>\n
Even  assuming\tfor the time being that\t the  Government  of
\nMysore had the power both under the Constitution and under a
\nlaw  enacted by the Legislature to prescribe  qualifications
\nfor  admission\tto  any Colleges  in  the  State,  including
\ncolleges imparting technical or professional education,\t the
\nfirst  question\t is whether there was in fact  a  Government
\nOrder  justifying the course adopted by the  Selection\tCom-
\nmittee.\t  It  may be mentioned that the document  which\t was
\nfiled  in the High Court as being the Government  Order\t was
\nmerely a communication addressed on behalf of the Government
\nby  one\t of its Secretaries to the selection  Committee\t and
\nsigned by an Under Secretary.  But this document only
\n\t\t\t    391<\/span>
\nrefers to the interview prescribed for making selections  of
\ncandidates  for admission: to Engineering Colleges.  At\t the
\nhearing in this Court the Attorney-General who appeared\t for
\nthe  State  of Mysore stated that there\t was  a\t Government.
\nOrder also as regards admission to Medical Colleges that  it
\nwas  actually  brought to the notice of the High  Court\t and
\nthat  he may be permitted to produce that order.  Leave\t was
\ngranted\t by us to him to do so.\t On December 20, 1963,\tthat
\nis,  after judgment had been reserved Mr.  Achar,  Assistant
\nGovernment Advocate, placed on record, what according to the
\nState, is the Government Order.\t This document, however, was
\nnot a part of the record of the writ petitions and the\tonly
\nmanner\tin which the so-called Government Order relating  to
\nadmission  to Medical Colleges was brought to the notice  of
\nthe  High  Court  was  by  specifying  in  Dr.\t Dharmaraj’s
\naffidavit, the number of the letter addressed by a Secretary
\nto  the Government to the Selection Committee  dealing\twith
\nadmissions  to\tthe Medical Colleges.  It  is  desirable  to
\nreproduce  in extenso the document which has been filed\t now
\nin this Court.\tIt runs thus:\n<\/p>\n
“GOVERNMENT OF MYSORE
\nCONFIDENTIAL:\n<\/p>\n
No. PLM 351 MMC 63<\/span><\/p>\n
Mysore Government Secretariat,
\n     Vidhana Soudha,
\nBangalore, dated 12th July, 1963
\nSE 1885
\nFrom
\n\t      The Secretary to Government of Mysore,
\n\t      PH. Labour & Munl.  Admn.\t Department,
\n\t      Bangalore.\n<\/p>\n
TO
\n\t      The Chairman,
\n\t      Selection\t Committee & Dean, Medical  College,
\n\t      Mysore.\n<\/p>\n
Sir,
\n\t      SUBJECT.–Award of marks for the interview  of
\n\t      thE
\n\t      392<\/span>
\n\t      candidates  seeking admission to Medical\tCol-
\n\t      leges in the State.\n<\/p>\n
I am directed to state that Government have decided that  25
\nper  cent  of the maximum marks for the examination  in\t the
\noptional   subjects  taken  into  account  for\tmaking\t the
\nselection  of candidates for admission to Medical  Colleges,
\nshall be fixed as interview marks.\n<\/p>\n
I  am  further\tto state that  the  Selection  Committee  is
\nauthorised   to\t allot\tmarks  for  the\t interview  of\t the
\ncandidates  as fixed above, having regard to  the  following
\nfactors:\n<\/p>\n
\t      1.    General Knowledge.\n<\/p><\/blockquote>\n
\t      2.    Aptitude and personality.\n<\/p><\/blockquote>\n
\t      S.    Previous   academic\t  career   including\n\t      special distinctions, etc.\n\t      4.    N.C.C., A.C.C., etc.\n<\/pre>\n
\t      5.    Extra  curricular  activities  including
\n\t      sports,  social service, debating,  dramatics,
\n\t      etc.\n<\/p><\/blockquote>\n
I  am  also  to\t state that  Government\t have  decided\tthat
\nstudents  with exceptional merit in games and  sports–State
\nand  inter-State standard-may be selected upto a maximum  of
\ntwo per cent of the total number of seats.\n<\/p>\n
\t\t     Yours faithfully,
\n\t\t     Sd.\/- L. G. DESAI,
\n\t     Under Secretary to Government,
\n\t     PH. Labour & Munl.\t Admn.\tDept.\n<\/p>\n
Attested
\nSd.\/-  H. L. LINGARAJ URS, Dy. Secretary to Government,\t PH.
\nLb. & M1.  Admn.\n<\/p>\n
393<\/span><\/p>\n
This  is nothing more than a communication emanating from  a
\nsecretary  to the Government of Mysore to the Chairman,\t and
\naddressed  to  the  Selection Committee\t and  Dean,  Medical
\nCollege,  Mysore.   It\tis thus not an\torder  of  the\tkind
\ncontemplated by Art. 166 of the Constitution.  That  Article
\nlays down that all executive actions of the Government of  a
\nState  shall  be expressed to be taken in the  name  of\t the
\nGovernor  and that the orders made and executed in the\tname
\nof the Governor shall be authenticated in such manner as may
\nbe specified in the rules made by the Governor.\t It  further
\nprovides that where an order is authenticated in the  manner
\nprescribed  in the rules made by the Governor, its  validity
\nshall not be called in question on the ground that it is not
\nan  order  made by the Governor.  The essence of  Art.\t166,
\nhowever,  is  that executive action of the Government  of  a
\nState  shall  be expressed to be taken in the  name  of\t the
\nGovernor.  The document placed before us does not show\tthat
\nthe  action,  to wit, prescribing  an  interview,  allotting
\nmarks for it and laying down the criteria to be observed  by
\nthe Selection Committee in allotting marks even purports  to
\nemanate from the Governor.  All that the Secretary on  whose
\nbehalf\tsome Under Secretary has signed, says is that he  is
\n“directed to state” that the Government has taken a  certain
\ndecision.   This document thus is not that  decision.\tWhat
\nthat  decision is, how it is worded, when it was  taken\t and
\nwhether\t it is expressed in the name of the Governor, we  do
\nnot know.  The cases in which it has been held by this Court
\nthat  the  provisions of Art. 166(2) are directory  and\t not
\nmandatory are of no help because here what we are  concerned
\nwith  is about the actual existence of an order made by\t the
\nGovernor.   No doubt, where there is  merely  non-compliance
\nwith the provisions of Art. 166(1) or of the rules framed by
\nthe  Governor in the matter of authentication of  an  order,
\nevidence  aliunde could be led to establish that in fact  an
\norder was made by the Governor.\t This clearly, does not mean
\nthat  the  existence  of  a Government\torder  need  not  be
\nestablished.   On  the contrary these decisions\t accept\t the
\nposition  that the making of a Government Order is sine\t qua
\nnon for justifying any action which is purported to be taken
\nby  an\tofficer of the Government on its behalf.   Here\t the
\nSecretary  has said a certain procedure. was to be  followed
\nby the Selection Committee.  He has himself
\n394<\/span>
\nno  power to order that to be done de hors an order  of\t the
\nGovernment.  It is for this reason that he has made a refer-
\nence to such an order.\tBut that order is not before us.  It
\nwas said by the learned Attorney-General that the  existence
\nof the order was not denied by the appellants.\tBut that  is
\nnot correct.  Right from the beginning they have been saying
\nthat there was no “Government Order” in so far as  admission
\nto  the Medical Colleges was concerned.\t What was relied  on
\nbehalf\tof  the\t State\twas  the  letter  addressed  to\t the
\nSelection  Committee  concerned\t with  the  applications  of
\npersons\t for admission to Engineering Colleges.\t  But  since
\nboth the appellants were applicants for admission to a Medi-
\ncal  College  it was not necessary for them to\tsay  further
\nthat what was relied on was not a Government Order–even  in
\nregard to Engineering Colleges.\t In reply to the appellants’
\naverment  reliance  was\t placed upon  an  affidavit  by\t Dr.
\nDharamraj  in  which  reference is made\t to  the  very\tcom-
\nmunication  which  I have reproduced earlier  as  being\t the
\n“Govemor’s  Order”.   If that is what is claimed to  be\t the
\nGovemor’s  Order,  then\t the State must fail  on  the  short
\nground\tthat it is not expressed to be made in the  name  of
\nthe  Governor  and  is thus prime facie\t not  the  Governors
\nOrder.\tIn Bachittar Singh v. The State of Punjab(1) one  of
\nthe questions which arose for consideration was whether what
\na  Minister  wrote  on the file of  a  case  and  initialled
\namounted  to an Order of the Governor within the meaning  of
\nArt. 166.  This Court negatived the contention on the ground
\nthat  since what he had said there was not expressed in\t the
\nname of the Governor, it cannot be regarded as the Govemor’s
\nOrder.’\t It  is\t true  that  in\t that  case  there  was\t  no
\ncommunication of the Minister’s so-called order to the party
\nin  whose  favour it was made but mention was made  of\tthis
\nfact in the judgment only to emphasise that what was said in
\nthe note of the Minister had not attained any finality.\t The
\nview taken in Bachittar Singh’s(1) case does not run counter
\nto  any\t decisions of this court; but on the other  hand  is
\nsupported  by  that taken in the State of  Punjab  v.  Sodhi
\nSukhdev\t Singh<\/a>(2).  The appellant’s s first contention\tmust
\nsucceed and it must be held that the addition of
\n(1)[1962] Supp. 3 S.C.R. 713.\n<\/p>\n
(2)[1962] 2 S.\tC. R. 371.\n<\/p>\n
395<\/span><\/p>\n
marks  for interview by the Selection Committee was  without
\nany validity or legal authority.\n<\/p>\n
Learned Attorney-General seemed to suggest that the decision
\nof  this Court in Bachittar Singh’s case is contrary  to  at
\nleast  three  other decisions of this Court.  The  first  of
\nthem  is  Dattatraya  Moreshwar Pangarkar v.  The  State  of
\nBombay and Ors.<\/a>(1). In that case the petitioner who had been
\ndetained  under\t the  Preventive  Detention  Act,  1950\t had
\nchallenged  the\t legality of the detention on  two  grounds.
\nOne  of those grounds was that the order of confirmation  of
\ndetention under s. 11(1) was not expressed to be made in the
\nname  of  the  Governor as required by Art.  166(1)  of\t the
\nConstitution.  Dealing with the argument Das J. (as he\tthen
\nwas) with whom Patanjali Sastri C.J. agreed has observed  as
\nfollows at p. 623:\n<\/p>\n
\t      “Section\t11(1) plainly requires an  executive
\n\t      decision\tas  to whether the  detention  order
\n\t      should  or  should  not  be  confirmed.\t The
\n\t      continuation  of the detention as\t a  physical
\n\t      fact automatically follows as a consequence of
\n\t      the  decision to confirm the  detention  order
\n\t      and for reasons stated above, does not require
\n\t      any further executive decision to continue the
\n\t      detention.   It follows, therefore,  that\t the
\n\t      Preventive  Detention  Act  contemplates\t and
\n\t      require  the taking of an\t executive  decision
\n\t      either  for  confirming  the  detention  order
\n\t      under  s. 11(1) or for revoking  or  modifying
\n\t      the detention order under section 13. But\t the
\n\t      Act is silent as to the in which the executive
\n\t      decision, whether it is described as an  order
\n\t      or  an  executive action is to be\t taken.\t  No
\n\t      particular  form is prescribed by the  Act  at
\n\t      all  and the requirements of the Act  will  be
\n\t      fully  satisfied if it can be shown  that\t the
\n\t      executive decision has in fact been taken.  it
\n\t      is at this stage that learned counsel for\t the
\n\t      petitioner  passes  on to Article 166  of\t the
\n\t      Constitution  and contends that all  executive
\n\t      action  of the Government of a State  must  be
\n\t      expressed
\n\t       (1)[1952] S.C.R. 612.\n<\/p><\/blockquote>\n
396<\/span><\/p>\n
\t      and authenticated in the manner, therein\tpro-
\n\t      vided.   The learned  Attorney-General  points
\n\t      out  that there is a distinction\tbetween\t the
\n\t      taking  of  an executive decision\t and  giving
\n\t      formal  expression to the decision  so  taken.
\n\t      Usually  executive  decision is taken  on\t the
\n\t      office files by way of notings or endorsements
\n\t      made  by the appropriate Minister or  officer.
\n\t      If every executive decision has to be given  a
\n\t      formal   expression  the\twhole\tgovernmental
\n\t      machinery,  he contends, will be brought to  a
\n\t      standstill.   I  agree  that  every  executive
\n\t      decision\tneed not be formally  expressed\t and
\n\t      this  is\tparticularly so\t when  one  superior
\n\t      officer  directs\this subordinate\t to  act  or
\n\t      forbear  from acting in a particular way,\t but
\n\t      when   the  executive  decision\taffects\t  an
\n\t      outsider\tor  is\trequired  to  be  officially
\n\t      notified\tor  to\tbe  communicated  it  should
\n\t      normally be expressed in the form mentioned in
\n\t      Article  166(1)  i.e,  in\t the  name  of\t the
\n\t      Governor.”\n<\/p><\/blockquote>\n
Thus  according to the learned Judge where an order  affects
\nan  outsider  it must normally be made in the  name  of\t the
\nGovernor.  Here, what is said to be an order is intended  to
\naffect\toutsiders  in  that  the  selection  committee\t was
\nrequired   to  hold  interviews\t and  allot  marks  to\t the
\ncandidates  under different heads.  Further it\taffects\t the
\ncandidates   seeking  admission\t to  the  Medical   College.
\nMoreover  this ‘order’ has not remained merely on the  files
\nof the Government for enabling its officers to take  certain
\naction\tbut was specifically intended to govern the  actions
\nof  the Selection Committee.  That is an  additional  reason
\nwhy  it\t was  necessary to express it in  the  name  of\t the
\nGovernor.   After  saying what I have  already\tquoted,\t the
\nlearned Judge proceeded to observe in his judgment:\n<\/p>\n
\t      “Learned Attorney-General then falls back upon
\n\t      the   plea  that\tan  omission  to  make\t and
\n\t      authenticate an executive decision in the form
\n\t      mentioned\t in  Article 166 does not  make\t the
\n\t      decision itself illegal, for the provisions of
\n\t      that  Article, like their counterpart  in\t the
\n\t      Government of India
\n\t\t\t\t   397<\/span>
\n\t      Act, are merely directory and not mandatory as
\n\t      held  in\tJ. K.  Gas Plant  Manufacturing\t Co.
\n\t      (Rampur) Ltd., and Ors. v. The KingEmperor(1).
\n\t      In my opinion, this contention of the  learned
\n\t      Attorney-General\tmust prevail.  It  is  well-
\n\t      settled that generally speaking the provisions
\n\t      of  a  statute  creating\tpublic\tduties\t are
\n\t      directory and those conferring private  rights
\n\t      are  imperative.\t When the  provisions  of  a
\n\t      statute relate to the performance of a  public
\n\t      duty  and the case is such that to  hold\tnull
\n\t      and  void\t acts done in neglect of  this\tduty
\n\t      would  work serious general  inconvenience  or
\n\t      injustice to persons who have no control\tover
\n\t      those entrusted with the duty and at the\tsame
\n\t      time would not promote the main object of\t the
\n\t      legislature,  it has been the practice of\t the
\n\t      Courts to hold such provisions to be directory
\n\t      only,  the neglect of them not affecting\tthe,
\n\t      validity of the acts done.”\n<\/p><\/blockquote>\n
Thus,  even upon the view taken by him that  the  provisions
\nare merely directory the learned Judge has clearly taken the
\nview  that it has to be shown that the decision\t upon  which
\nreliance  is placed on behalf of the Government was in\tfact
\ntaken.\tIn the case before him he found as a fact that\tsuch
\na  decision  had been taken.  There is no material  in\tthis
\ncase  on  the basis of which it could be said  that  in\t the
\npresent\t case  any  decision had at all been  taken  by\t the
\nGovernment in so far as interviews for admission to  Medical
\nColleges were concerned.\n<\/p>\n
According  to  Mukherjea  J.  (as he  then  was)  with\twhom
\nChandrasekhara\tAiyar J., agreed, while cl. (1)\t relates  to
\nthe  mode of expression of an executive order, cl. (2)\tlays
\ndown  the manner in which such order is to be  authenticated
\nand  that when both the requirements are complied  with\t the
\norder  would be immune from challenge in a court of  law  on
\nthe  ground  that it had not been made or  executed  by\t the
\nGovernor.  Also, according to him, the provisions of
\n(1)  [1947] F. C. R. 141,,154-9.\n<\/p>\n
398<\/span><\/p>\n
cl. (1) are directory and not imperative in their character.
\nIn the course of the judgment the learned Judge observed:\n<\/p>\n
\t      “…………..  I  agree\t with  the   learned
\n\t      Attorney-General that non-compliance with\t the
\n\t      provisions of either of the clauses would lead
\n\t      to  this\tresult that the\t order\tin  question
\n\t      would  lose  the\tprotection  which  it  would
\n\t      otherwise\t enjoy,\t had  the  proper  mode\t for
\n\t      expression  and authentication  been  adopted.
\n\t      It.  could be challenged in any court  of\t law
\n\t      even on the ground that it was not made by the
\n\t      Governor\tof  the State and in  case  of\tsuch
\n\t      challenge\t the  onus would be upon  the  State
\n\t      authorities  to  show affirmatively  that\t the
\n\t      order  was  in fact made by  the\tGovernor  in
\n\t      accordance with the rules framed under Article
\n\t      166 of the Constitution” (p. 632).\n<\/p><\/blockquote>\n
Mahajan J., (as he then was) expressed no opinion upon\tthis
\npoint,\twhich  was the second point raised in the  case,  as
\naccording  to  him, the detention was  invalid\tbecause\t the
\nGovernment  had at the time of confirming the order  omitted
\nto specify the period during which the detention should con-
\ntinue.\n<\/p>\n
It  will thus be clear that all the teamed Judges  who\thave
\ndealt  with, the provisions of Art. 166 of the\tConstitution
\nhave   definitely  held\t that  where  the  existence  of   a
\nGovernment  Order  is itself challenged by a person  who  is
\naffected  by  it  the  burden  is  upon\t the  Government  to
\nestablish that an order was in fact made by the Governor  in
\nthe  manner provided for in the rules of business framed  by
\nthe  Governor  under cl. (3) of Art. 166.  Even\t my  learned
\nbrother\t does  not say that in a case like the\tpresent\t the
\nexistence  of  the Governor’s order is not  required  to  be
\nestablished  by\t the State.  But according to him  here\t the
\npetitioners  have  not in fact denied the existence  of\t the
\nGovernor’s  Order.   In\t para 20 of  the  writ\tpetition  of
\nChitralekha she has definitely averred: “Even the Government
\nOrder\tenabling  them\tto  award  75  marks  is  not\tmade
\navailable”; and again in para 22 she stated: “As the  order,
\nempowering them to award 75 marks as interview marks has  so
\nfar remained secret in that is has not been made  available,
\nthis
\n\t\t\t    399<\/span>
\nHon’ble\t Court may be pleased to send for the same,  as\t the
\norder  falls to be quashed.” In reply to these\taverments  a
\ncounter-affidavit  was filed by Dr. J. J.  Dharmaraj,  Dean,
\nMedical College and Chairman of the Selection Committee\t for
\nadmission  to  Medical Colleges.  In para 4 thereof  he\t has
\nstated as follows:\n<\/p>\n
\t      “The Government by its letter No. PLM 531\t MMC
\n\t      63 dated the 12th July, 1963 directed that the
\n\t      Selection Committee shall interview the candi-
\n\t      dates  and  allot marks the maximum  of  which
\n\t      shall be 25 per cent of the maximum marks\t for
\n\t      optional\tsubjects and laid down the  criteria
\n\t      for allotting marks in the interview.”\n<\/p><\/blockquote>\n
It  is abundantly clear from this that reliance\t was  placed
\nnot upon any order of the Governor but upon a direction con-
\ntained in a certain communication addressed to the Selection
\nCommittee.   Mr. Varma, Deputy Secretary to  the  Government
\nalso  filed a counter-affidavit in para 36 of which  he\t has
\nstated as follows:\n<\/p>\n
\t      “The Government gave a direction by its letter
\n\t      No. SD 25 THL 63, dated 6th July, 1963 to\t the
\n\t      Director of Technical Education (copy of which
\n\t      is marked as, Annexure IV) that in addition to
\n\t      the  examination\tmarks in the  Optional\tsub-
\n\t      jects,   there  should  be  an  interview\t  of
\n\t      candidates in which the maximum marks allotted
\n\t      would  be 25 per cent of the maximum  for\t the
\n\t      optional subjects.  A similar letter was\tsent
\n\t      by  the Government to the Selection  Committee
\n\t      for admission to Medical Colleges.”\n<\/p><\/blockquote>\n
Thus,  here  again, there is no positive averment  that\t the
\nGovernor  had  made  an order  providing  for  interview  of
\ncandidates  who, had applied for admission to  Medical\tCol-
\nleges.\t The only other place where the appellants’  allega-
\ntions are dealt with is para 44 of Mr. Varma’s a affidavit:\n<\/p>\n
\t      “The Allegations made in some of the petitions
\n\t      that only the first Government Order  embodied
\n\t      the decision of the Government and the  second
\n\t      Government Order did not embody the decision
\n\t      400<\/span>
\n\t      of the Government but only the decision of the
\n\t      Minister for Education, is untenable.  When an
\n\t      order is issued in the name of the Governor, I
\n\t      submit  it  is  not  permissible\tto   enquire
\n\t      whether  any advice, and if so,  what  advice,
\n\t      was tendered by any Minister to the Governor.”\n<\/p><\/blockquote>\n
Here, what the Deputy Secretary has done is merely to  state
\nthe  legal  position without affirming\tdefinitely  that  an
\norder had in fact been made in the name of the Governor.  It
\nmay  be\t mentioned  that the two  orders  dealing  with\t the
\nclassification\tof backward classes and reserving  seats  in
\ntechnical  institutions were in fact issued in the  name  of
\nthe  Governor  on July 26, 1963 and copies of  those  orders
\nhave  been  placed on record.  They are in  the\t appropriate
\nform.\tIf  a similar order had actually been  made  by\t the
\nGovernor  there\t is no reason why it should  not  have\tbeen
\nfiled.\tEven in this Court the Assistant Government Advocate
\nhas  filed on behalf of the State only a copy of the  letter
\nsent  by a Secretary to the Government and has not only\t not
\nproduced  a  copy of the Governor’s Order but has  not\teven
\nalleged\t that  such  order exists.  Nor\t again,\t during\t the
\narguments   did\t  the  learned\t Attorney-General   make   a
\ncategorical statement that the Governor had made an order in
\nregard\tto the interviews.  That may be because he  has\t not
\nbeen  instructed to say that such order in fact exists.\t  We
\nhave  given  no opportunity to the appellants  to  file\t any
\nfurther\t affidavit  after the production before\t us  of\t the
\nSecretary’s letter.  In this state of the material on record
\ncan it then be said that the burden which was upon the State
\nto  establish the existence of an order of the Governor\t has
\nbeen  discharged?   I do not think that we  can\t ignore\t the
\nomission of the State to aver categorically that there is in
\nexistence an order of the Governor or to make any attempt to
\nproduce\t it  or\t to seek an  opportunity  to  establish\t its
\nexistence  by other evidence.  If there is an order  of\t the
\nGovernor  dealing  with the matter nothing would  have\tbeen
\neasier than saying so and either to produce the original  or
\nits  copy or to establish its existence by  other  evidence.
\nThe  whole  tenor of the affidavits filed on behalf  of\t the
\nState  as well as of the argument advanced before us  leaves
\nno doubt in my mind that an that there is on the subject  is
\nthe aforesaid letter of the
\n\t\t\t    401<\/span>
\nSecretary  to the Selection Committee and nothing more.\t  In
\nno  case  has this Court held that such a  document  can  be
\ntreated as the Governor’s order or even evidence of the\t ex-
\nistence of the Govrnor’s order.\n<\/p>\n
The  two  other cases of this Court on\twhich  reliance\t was
\nplaced\tare: The State of Bombay v. Purshottam\tJog  Naik<\/a>(1)
\nand  Ghaio  Mail and Sons v. The State of  Delhi<\/a>  (2)  which
\npurport\t to  follow Pangarkar’s case(3) also  underline\t the
\nnecessity of proof of the existence of the Governor’s  Order
\nwhen what is relied upon is defective in form.\tIt is  these
\nreasons which impel, me to differ from my learned brother on
\nthe second point dealt with by him in his judgment.
\nWhat  I\t have said above is sufficient for  the\t purpose  of
\ndisposing  of both the appeals.\t But in view of the  import-
\nance of one of the other points on which my learned  brother
\nhas expressed his opinion, I would say a few words.
\nThat  point concerns the power of the Government of a  State
\nto  prescribe  by  an  executive  order\t the  standards\t for
\nselection   of\t candidates  for  admission   to   technical
\ninstitutions   affiliated  to  a  university.\t In   Gujrat
\nUniversity  v. ShriKrishna(4) the question which was  raised
\nin  this Court was whether the Gujrat University  could\t lay
\ndown and impose Gujrati and\/or Hindi in Devnagari script  as
\nexclusive   media   of\tinstruction   and   examination\t  in
\ninstitutions  other than those maintained by the  University
\nand   institutions   affiliated\t to   the   University\t and
\nConstituent colleges.  One of the important arguments raised
\nin  that  case\twas that under Entry 166 of List  1  of\t the
\nSeventh\t  Schedule   the   power   of\tco-ordination\t and
\ndetermination  of  standards  in  institutions\tfor   higher
\neducation   or\t research  in\tscientific   and   technical
\ninstitutions.  was conferred upon Parliament and that  these
\nmatters must be regarded as having been excluded from  entry
\n11 of List 11 of that schedule, which runs thus:
\n“Education,  including\tuniversities, subject  to  the\tPro-
\nvisions of Entries 63, 64, 65 and 66 of List 1 and Entry  25
\nof List III.”\n<\/p>\n
(1) [1952] S. C. R. 674.   (2) [1959] S.C.R.1424.
\n(3) [1952] S. C. R. 612.\n<\/p>\n
(4)  [1963] Supp. 1 S.C.R.112.\n<\/p>\n
134-159-S.C.-26
\n402<\/span>
\nIn  the\t course of his judgment, Shah Y., speaking  for\t the
\nmajority  (my  learned\tbrother Subba  Rao  J.,\t dissenting)
\nobserved:\n<\/p>\n
\t      “It  is  manifest\t that  the  extensive  power
\n\t      vested  in  the  Provincial  Legislatures\t  to
\n\t      legislate\t with respect to  higher  scientific
\n\t      and  technical  education and  vocational\t and
\n\t      technical\t  training  of\tlabour,\t under\t the
\n\t      Government   of\tIndia  Act  is\t under\t the
\n\t      Constitution  controlled by the five items  in
\n\t      List  1 and List III mentioned in item  II  of
\n\t      List  H. Items 63 to 66 of List I\t are  carved
\n\t      out of the subject of education and in respect
\n\t      of  these\t items\tthe power  to  legislate  is
\n\t      vested exclusively in the Parliament Power  of
\n\t      the State to legislate in respect of education
\n\t      including\t Universities must to the extent  to
\n\t      which it is entrusted to the Union Parliament,
\n\t      Whether  such  power is exercised or  not,  be
\n\t      deemed  to  be restricted.  If  a\t subject  of
\n\t      legislation is covered by items 63 to 66\teven
\n\t      if it otherwise falls within the larger  field
\n\t      of ‘education including universities power  to
\n\t      legislate\t on that subject must lie  with\t the
\n\t      Parliament.   The plea raised by\tcounsel\t for
\n\t      the  University and for the State\t of  Gujarat
\n\t      that  legislation\t prescribing the  medium  or
\n\t      media in which instruction should be  imparted
\n\t      in  institutions\tof higher education  and  in
\n\t      other institutions always falls within item II
\n\t      of  List II has no force\tItem II of  List  II
\n\t      and  item\t 66 of List I must  be\tharmoniously
\n\t      construed.    The\t two   entries\t undoubtedly
\n\t      overlap: but to the extent of overlapping, the
\n\t      power  conferred\tby item 66 of  List  I\tmust
\n\t      prevail over the power of the State under item
\n\t      11  of  List  11.\t It  is\t manifest  that\t the
\n\t      excluded\theads deal primarily with  education
\n\t      in   institutions\t of  national\tor   special
\n\t      importance   and\t institutions\tof    higher
\n\t      education\t  including   research,\t   sciences,
\n\t      technology   and\t vocational   training\t  of
\n\t      labour………….  Power  to  legislate\t  in
\n\t      respect of
\n\t      403<\/span>
\n\t      medium  of  instruction  is,  however  not   a
\n\t      distinct legislative head; it resides with the
\n\t      State  legislatures  in  which  the  power  to
\n\t      legislate on education is vested, unless it is
\n\t      taken  away  by necessary\t intendment  to\t the
\n\t      contrary.\t  Under items 63 to 65 the power  to
\n\t      legislate in respect of medium of instruction,
\n\t      having  regard  to the width of  those  items,
\n\t      must be deemed to vest in the Union.  Power to
\n\t      legislate in respect of medium of instruction,
\n\t      in  so far it has a direct bearing and  impact
\n\t      upon the legislative head of co-ordination and
\n\t      determination of standards in institutions  of
\n\t      higher  education or research  and  scientific
\n\t      and  technical  institutions,  must  also\t  be
\n\t      deemed  by item 63 of List I to be  vested  in
\n\t      the Union.” (p. 715). (italics mine)
\nWhat  I have quoted above and particularly the words  occur-\n<\/p><\/blockquote>\n
ring  in  the  earlier part of the quotation  and  those  in
\nitalics would make it clear that this Court has emphatically
\nlaid  down  that  where the question  of  co-ordination\t and
\ndetermination  of standards in certain institutions  like  a
\nmedical\t college  is concerned the power is  vested  in\t the
\nParliament and even though Parliament may not have exercised
\nthat power the State Legislature cannot step in and  provide
\nfor  the determination and co-ordination of  standards.\t  It
\nseems to me that by requiring the Selection Committee to add
\nto  the\t marks\tsecured\t by the\t candidates  at\t the  P.U.C.
\nExamination the marks awarded by the Selection Committee for
\nthe  interviews\t and prepare a fresh order of merit  on\t the
\nbasis  of the total marks so arrived at the State  would  be
\nquite  clearly interfering with the standards for  admission
\nlaid  down  by\tthe University.\t It seems  to  me  that\t the
\nstandard  of any educational institution would certainly  be
\naffected  by  admitting to it candidates of  lower  academic
\nmerit  in preference to those with higher academic merit  by
\nusing the devious method of adding to the qualifications  of
\nless  meritorious candidates marks at the discretion of\t the
\nselectors  on  the  basis  of interviews.   This  is  not  a
\nuniversal  practice in institutions of higher  or  technical
\neducation  in  the country and by adopting it the  State  of
\nMysore has provided
\n404<\/span>
\na standard of its own for admission of students to such ins-
\ntitutions.   It\t is  evidently with a view  to\tprevent\t the
\nhappening of such things that our Constitution has  excluded
\nmatters\t pertaining to standards in institutions  of  higher
\neducation  and some other institutions from the\t purview  of
\nthe State legislatures.\t The second portion in italics by me
\nin the above quotation makes it clear that according to\t the
\nmajority of this Court the power to legislate in respect  of
\nmatters\t such  as  the medium of instruction  which  have  a
\ndirect\tbearing\t and  impact upon the  legislative  head  of
\ncoordination   and   determination  of\tstandards   in\t the
\ninstitutions  referred to in item 66 of List I is vested  in
\nthe Union.  Therefore, in each case it will be for the Court
\nto  consider  whether what is being sought to be done  by  a
\nState legislature will have a direct impact upon entry 66 of
\nList  1.  In  my  judgment  where  any\tlaw  of\t the   State
\nlegislature  seeks to vary academic standards for  admission
\nto  institutions  of the kind referred to in  Entry  66\t its
\naction has a direct bearing upon that entry and the power in
\nthis regard is excluded from the purview of entry 11 of List\n<\/p>\n
11.
\nI may quote a part of paragraph 24 of the majority  judgment
\nwhich my learned brother has quoted.  It reads thus:\n<\/p>\n
\t      “The  State  has the power  to  prescribe\t the
\n\t      syllabi\tand   courses  of   study   in\t the
\n\t      institutions  named  in  entry  66  (but\t not
\n\t      falling  within  entries 63 to 65) and  as  an
\n\t      incident thereof it has the power to  indicate
\n\t      the  medium  in which  instruction  should  be
\n\t      imparted.\t  But  the Union Parliament  has  an
\n\t      over-riding  legislative power to ensure\tthat
\n\t      the  syllabi and courses of  study  prescribed
\n\t      and   the\t medium\t selected  do\tnot   impair
\n\t      standards of education or render the  co-ordi-
\n\t      nation  of  such standards either on  an\tAll-
\n\t      India  or\t other\tbasis  impossible  or\teven
\n\t      difficult.”\n<\/p><\/blockquote>\n
Can it be said that this and other passages in this judgment
\nshow  that  according to the majority the law  made  by\t the
\nState Legislature by virtue of entry 1 1 of List II would be
\nbad  only  if  it  makes  it  impossible  or  difficult\t for
\nParliament to exercise its legislative power under entry  66
\nof List I?\n<\/p>\n
Does the judgment mean that it has to be ascertained in each
\ncase whether the impact of the State law providing for\tsuch
\nstandards  is so great on entry 66 of List I as\t to  abridge
\nappreciably  the central field or, does it not\tfollow\tfrom
\nthe  judgment  that if a State Legislature has\tmade  a\t law
\nprescribing a different, even higher, percentage of marks or
\nprescribing marks for extra-curricular activities, it  would
\nbe directly encroaching on the field covered by entry 66  of
\nList  I ? The majority judgment after saying what  has\tbeen
\nquoted above proceeds thus:\n<\/p>\n
\t      “Though the powers of the Union and the  State
\n\t      are  in  the  exclusive  lists,  a  degree  of
\n\t      overlapping is inevitable.  It is not possible
\n\t      to  lay  down  any general  test\twhich  would
\n\t      afford  a\t solution for every  question  which
\n\t      might arise on this head.\t On the one hand, it
\n\t      is certainly within the province of the, State
\n\t      Legislature  to prescribe syllabi and  courses
\n\t      of study and of course to indicate the  medium
\n\t      or  media of instruction.\t On the other  hand,
\n\t      it  is also within the power of the  Union  to
\n\t      legislate\t in respect of media of\t instruction
\n\t      so    as\t to   ensure\tco-ordination\t and
\n\t      determination of standards, that is, to ensure
\n\t      maintenance or improvement of standards.\t The
\n\t      fact  that  the Union has not  legislated,  or
\n\t      refrained from legislating to the full  extent
\n\t      of  its power does not invest the\t State\twith
\n\t      the power to legislate in respect of a  matter
\n\t      assigned by the Constitution to the Union.  It
\n\t      does not, however, follow that even within the
\n\t      permitted\t relative fields there might not  be
\n\t      legislative provisions in enactments made each
\n\t      in   pursuance  of  separate   exclusive\t and
\n\t      distinct\tpowers\twhich  may  conflict.\tThen
\n\t      would  arise  the question of  repugnancy\t and
\n\t      paramountcy  which may have to be resolved  on
\n\t      the  application of the ‘doctrine of pith\t and
\n\t      substance\t       of\t the\t    impunged
\n\t      enactment…………  the validity  of  State
\n\t      legislation  would  depend  upon\twhether\t  it
\n\t      prejudicially   affects\tco-ordination\t and
\n\t      determination  of standards, but not upon\t the
\n\t      existence
\n\t      406<\/span>
\n\t      of some definite Union legislation directed to
\n\t      achieve that purpose.” (p. 716).\n<\/p><\/blockquote>\n
These  observations  do not seem to justify  the  conclusion
\nthat  it is only where the State law makes it impossible  or
\ndifficult  for Parliament to exercise its legislative  power
\nunder  entry 66 that the State law would be bad.   According
\nto  the\t decision of the majority the validity\tof  a  State
\nlegislation  would  depend  upon  whether  it  prejudicially
\naffects the coordination and determination of standards\t and
\nthat  if  it  does so, that is\tenough\tto  invalidate\tthat
\nlegislation.  Interference with academic standards would  of
\nnecessity affect coordination and determination of standards
\namongst\t institutions of similar type all over\tthe  country
\nand,   therefore,  upon\t the  view  taken  in  the   Gujarat
\nUniversity case(1) State legislation embodying previsions of
\nthe  kind referred to in the letter of the Secretary to\t the
\nGovernment to the Selection Committee would be bad.
\nAs I understand the decision what it means when it says that
\nregard must be had to the pith and substance of a State\t law
\nto see whether it is in conflict with the powers of  Parlia-
\nment is that conflict must be the direct result of the State
\nlaw  and  not one which is merely incidental.  It  does\t not
\nmean  that for ascertaining whether there is a conflict\t one
\nhas  to\t gauge\tthe force of the impact of a  State  law  on
\nParliament’s  power.   Thus  where  a law  is  in  pith\t and
\nsubstance ,one which will directly affect Parliament’s power
\nto  coordinate and determine standards in  the\tinstitutions
\ncomprised  in  entry  66 of List I it will  be\tdirectly  in
\nconflict  with it and the extent or force of  such  conflict
\nwill  make no difference.  Now just as prescribing a  medium
\nof  instruction for being adhered to in\t those\tinstitutions
\nwould,\tif  it has the effect of  affecting  the  standards,
\nwhich\tmust   mean,   the  academic   standard\t  of   their
\ninstitutions, produce a direct impact on Parliament’s  power
\nunder  the aforesaid entry, so would prescribing  interviews
\nfor admissions to these institutions, since admissions would
\nthereby\t be  made to depend on standards other\tthan  purely
\nacademic.   I  fail to see how else can the  impact  of\t the
\nState  law on Parliament’s power can be characterised.\t The
\nfact  that  raising of the interview marks from 25  in\tthe.
\npast to 75 now (which we are told
\n(1)  [1963] SUPP. 1. S.C.R. 112.\n<\/p>\n
407<\/span><\/p>\n
represents  25% of the total marks for the  P.U.C.  Examina-
\ntion) has raised a furore, only highlights the directness of
\nthe  impact  which was there even when the  interview  marks
\nwere 25%.  To hold otherwise would mean that where interview
\nmarks  are  low in comparison with the total marks  for\t the
\nP.U.C.\tExamination  the impact would be merely\t oblique  or
\nindirect  but by some process it will become direct, if\t the
\nmarks are raised to a higher percentage, say 50 per cent  or
\neven  100 per cent of the P.U.C. Examination marks.   Surely
\nthe  directness\t of  the impact would not  depend  upon\t its
\nintensity.\n<\/p>\n
Again, the addition of interview marks to the marks  secured
\nat the P.U.C. examination by a candidate for admission to an
\ninstitution  of\t the kind comprised in entry 66\t of  List  I
\ncannot\t but  be  said\tto  affect  the\t standard  in\tsuch
\ninstitution.  An illustration would make it clear.   Suppose
\nthe  maximum P.U.C. -marks are 300 and interview  marks\t are\n<\/p>\n
600.   Could there be a doubt that the academic standard  of
\nthe institution would remain unaffected and that the  impact
\non  entry  66  is  direct ? Now, instead  of  600,  if\tthe,
\ninterview marks are only 30, would not the standard still be
\naffected?  May be that the effect on academic merit would be
\nmuch less than when the maximum interview marks\t  were\t 600
\nbut still there would be some effect.  In ,either case\t the
\neffect\t is  the  direct  consequence  of   the\t  additional
\nrequirement of an interview and therefore the impact of\t the
\nState law would be direct in both cases.  It is not as if  a
\nconsequence  which is direct can be regarded as\t oblique  or
\nindirect  just because it is less significant by  reason  of
\nthe  fact  that\t the proportion of interview  marks  to\t the
\nP.U.C.\tmarks  is  low.\t Therefore, whether  the  State\t law
\naffects\t the  standards of such institutions  materially  or
\nonly   slightly\t has  no  relevance  for  the\tpurpose\t  of
\ndetermining whether it operates in an excluded field or not.
\nThe  only  test is whether or not the effect it has  on\t the
\nstandards is direct.  That is how I understand the  majority
\ndecision of this Court.\n<\/p>\n
Even  upon  the\t view that for a State law to  be  bad,\t its
\nimpact\tmust be “so heavy or devastating as to wipe out\t the
\ncentral\t field”, I think that it is in fact of that kind  in
\nthis
\n408<\/span>
\ncase.  Already by reserving 48 per cent of the total  number
\nof  seats  for\tscheduled castes  and  tribes  and  backward
\nclasses the seats available for meritorious candidates\thave
\nbeen reduced to 52 per cent.  By providing in addition,\t for
\ndilution of -academic merit by bringing in considerations of
\nthe  kind  set out in the  Secretary’s\tletter,\t meritorious
\ncandidates   are   likely  to  be  placed   in\t a   further
\ndisadvantageous\t position.   According to  that\t letter\t the
\nmatters to be considered at the interview are:\n<\/p>\n
\t      (1)   General knowledge.\n<\/p><\/blockquote>\n
\t      (2)   Aptitude and personality.\n<\/p><\/blockquote>\n
\t      (3)   Previous   academic\t career,   including
\n\t      special  distinctions, etc.
\n\t      (4)   N.C.C., A.C.C. etc.
\n\t      (5)   Extra  curricular  activities  including
\n\t      sports,  social service, debating,  dramatics,
\n\t      etc.\n<\/p><\/blockquote>\n
While  the first and the third of these matters would be  of
\nsome relevance in deciding who should be allowed a chance to
\nbe  future  doctors what relevance the other  three  matters
\nhave  it is difficult to appreciate.  Further “aptitude\t and
\npersonality”  would be a matter entirely for the  subjective
\nsatisfaction of the selectors and is in itself quite  vague.
\nThen again the total marks under these heads are as high  as
\n75  and there is no allocation of marks under the  different
\nheads.\t Thus if the selectors choose to allocate say 30  or
\n40  marks for “personality” many meritorious candidates\t may
\ngo  far down in the list prepared on the basis of the  total
\nof marks at the interview and the P.U.C. Examination.  Since
\nthe number of marks for the interview is high and  according
\nmarks  for interviews and allocating marks  under  different
\nheads  is  left\t entirely for  the  Selection  Committee  to
\ndecide,\t the impact of the alleged directive on the  central
\nfield  must  necessarily  be regarded as  heavy.   For,\t its
\neffect would be to lower further the already alarmingly\t low
\nstandards in our educational institutions.
\nAgain, here what we have is not a State law but merely\twhat
\nis  claimed to be an -executive fiat.  It is true that\tArt.
\n162 says that the executive power of the State is  co-exten-
\nsive with the power of the legislature to legislate and
\n409<\/span>
\nthis Court has held in Rai Sahib Ram Jawaya Kapur & Ors.  v.
\nThe  State of Punjab<\/a> (1) that the power of the State is\t not
\nconfined to matters over which legislation his already\tbeen
\npassed.\t But neither Art. 162 nor the decision of this Court
\ngoes  so  far  as  to hold that the  State’s  power  can  be
\nexercised  in  derogation  of  a law  made  by\ta  competent
\nlegislature.   On the other hand the Court appears  to\thave
\napproved  of  the view taken by two learned  Judges  of\t the
\nAllahabad  High\t Court in Motilal v. The Government  of\t the
\nState  of Uttar Pradesh (2) that an act would be within\t the
\nexecutive power of the State if -it is not an act which\t has
\nbeen  assigned by the Constitution to other  authorities  or
\nbodies and is not contrary to the provisions of any law\t and
\ndoes  not encroach on the legal rights of any member of\t the
\npublic.\t  Here we have the Mysore University Act, s.  23  of
\nwhich provides that the Academic Council shall have power to
\nprescribe  the conditions for admission of students  to\t the
\nUniversity.  Now since a competent legislature has conferred
\nthis  power on a particular body the State  cannot  encroach
\nupon  that power by its executive act.\tThus this is a\tcase
\nwhere there is not merely an absence of legislative sanction
\nto  the\t action\t of  the  State\t but  there  is\t an  implied
\nlimitation on its executive power in regard to this matter.
\nMoreover,  while the Constitution permits the State  without
\nthe  necessity\tof any law empowering it to do\tso  to\tmake
\nreservations  of seats for the benefit of  backward  classes
\nand scheduled castes and tribes there is no provision either
\nin  the Constitution or in any other law which empowers\t the
\nState Government to issue directions to selection committees
\ncharged with the consideration of applications for admission
\nto  any\t colleges as to what should be the basis  of  making
\nadmissions.   It was said that most of the medical  Colleges
\nare  owned by the State and the State as the owner of  those
\nColleges was entitled to give directions to its officers  as
\nto  the mode of selection of persons for admission to  those
\nColleges.   But it seems to me that the matter is not  quite
\nas  simple  as\tthat.  Educational  institutions  which\t are
\naffiliated  to\tthe University must conform to\tthe  pattern
\nevolved by the University and the proprie-
\n(1) [1955]2 S. C. R. 225 (2) A. I. R. 1951 All. 257 (F.\t B)
\n410<\/span>
\ntors or the governing bodies of those institutions can claim
\nno  right to adopt a different pattern.\t The pattern set  by
\nthe   University  would\t necessarily  be  affected  if\t the
\nstandards of admission, teaching, etc., are varied by  those
\nwho run those institutions.  It is not material to  consider
\nwhether\t either the object or effect of the addition  of  an
\ninterview  for\tselecting candidates for  admission  to\t the
\ninstitutions  is to improve upon the standards fixed by\t the
\nAcademic  Council  For,\t it is to that\tbody  to  which\t the
\nlegislature  has  entrusted the whole matter.  It  was\tsaid
\nthat  no objection to the Government’s action was  taken  by
\nthe  University.   What\t is  important\tis  not\t whether  no
\nobjection  was\ttaken  by  the\tUniversity  but\t whether  it
\nconsented to the action of the Government.  That it did\t not
\nconsent\t would\tappear from the consent memo filed.  in\t the
\nHigh  Court on behalf of the University a copy of which\t has
\nbeen  filed in this Court after our judgment  was  reserved.
\nTherein the counsel for the University has stated;\n<\/p>\n
\t      “Under  section  23(b) and section 43  of\t the
\n\t      Mysore  University Act read with section\t2(a)
\n\t      of  the same Act, the Academic  Council  alone
\n\t      can  prescribe qualifications  for  admission.
\n\t      ‘Me  University is not consulted about  either
\n\t      Exhibit ‘D’ or increasing the interview  marks
\n\t      to  25 per cent as per letter dated  6.7.1963.
\n\t      Interview marks must also be treated as  marks
\n\t      given to a subject.”\n<\/p><\/blockquote>\n
There  is  thus no substance in the plea made on  behalf  of
\nthe,  State.  This is an additional reason why I think\tthat
\nthe provision for interviews is not valid.
\nMy learned brother has dealt at length with the question  as
\nto  the\t value\tof  interviews\tin  the\t matter\t of   making
\nadmissions  to educational institutions.  I do not think  it
\nnecessary  to  pronounce any opinion upon that\tquestion  in
\nthis  case  and would reserve it for a future  occasion.   I
\nwould  also likewise reserve my opinion on the other  points
\nupon which he has expressed him-self excepting one, that is,
\nas to the relevance of the consideration of caste in  deter-
\nmining\tthe  classes which are\tsocially  and  educationally
\nbackward.   I  would only say this that it would not  be  in
\naccordance
\n411<\/span>
\neither\twith  cl.  (1) of Art. 15 or cL (2) of\tArt.  29  to
\nrequire\t the  consideration of the castes of persons  to  be
\nborne  in  mind\t for  determining  what\t are  socially\t and
\neducationally backward classes.\t It is true that cl. (4)  of
\nArt. 15 contains ,a non-obstante clause with the result that
\npower conferred by that clause can be exercised despite\t the
\nprovisions  of\tcl. (1) of Art. 15 and cl. (2) of  Art.\t 29.
\nBut that does not justify the inference that castes have any
\nrelevance in determining what are socially and educationally
\nbackward  ,communities.\t As my learned brother\thas  rightly
\npointed\t out  the  Constitution\t has used  in  cl.  (4)\t the
\nexpression “classes” and not “castes”.\n<\/p>\n
Upon  the view which I have taken on the two points  I\thave
\ndiscussed  the\tappeals must be allowed and a  direction  be
\nissued to the Selection Committee to make the selection\t ,of
\ncandidates  solely  on\tthe basis of the  result  of  P.U.C.
\nexamination.  I would allow them with costs here as well  as
\nin the High Court.\n<\/p>\n
\t\t       ORDER BY COURT
\nIn  view of the judgment of the majority, the  appeals\tfail
\nand are dismissed.  There will be no order as to costs.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India R. Chitralekha & Anr vs State Of Mysore & Ors on 29 January, 1964 Equivalent citations: 1964 AIR 1823, 1964 SCR (6) 368 Author: K Subbarao Bench: Sinha, Bhuvneshwar P.(Cj), Subbarao, K., Dayal, Raghubar, Ayyangar, N. Rajagopala, Mudholkar, J.R. PETITIONER: R. CHITRALEKHA & ANR. Vs. RESPONDENT: STATE OF MYSORE & ORS. […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-174594","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nR. 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