29 January 1964
Supreme Court


Case number: Appeal (civil) 1056 of 1963






DATE OF JUDGMENT: 29/01/1964


CITATION:  1964 AIR 1823            1964 SCR  (6) 368  CITATOR INFO :  F          1967 SC1145  (16)  R          1967 SC1283  (7)  F          1968 SC1379  (6)  R          1970 SC 679  (17)  R          1971 SC1731  (14)  RF         1971 SC2303  (14,16,24)  R          1971 SC2560  (10)  R          1972 SC1375  (80,93)  RF         1973 SC 930  (22,25)  RF         1975 SC 563  (33,34)  R          1975 SC2299  (485)  R          1976 SC2381  (21)  RF         1976 SC2482  (5)  F          1980 SC 383  (3)  RF         1980 SC1975  (12)  RF         1981 SC 487  (18)  R          1984 SC 873  (7)  O          1985 SC1495  (11,13,59,63,67,99,118,147)  R          1987 SC 400  (20)  RF         1987 SC2034  (18)

ACT: Constitution  of India, 1950, Art. 166--If mandatory-List  I Entry   66--scope  of--Viva  Voce  test  for  admission   in college--If      violation     of      Art.      14--Article 15(4)--Classification of backward classes--Validity. 369

HEADNOTE: The  Government  of  Mysore by  an  order  defined  backward classes  and  directed  that 30 per cent  of  the  seats  in professional  and technical colleges and institutions  shall be reserved for them and 18 per cent to the Schedule  castes and Scheduled Tribes.  It was laid down that  classification of  socially  and educationally backward classes  should  be made on the basis of economic condition and occupation.   By a  letter the Government informed the Director of  Technical Education  that it had been decided that 25% of the  maximum marks  for  the examination in optional  subjects  shall  be



fixed  as interview marks.  The selection will be  conducted by  a committee composed of Heads of Technical  Institutions aid  in allotting marks for interview factors  like  general knowledge, personality and extracurricular activities of the candidates should be’ taken into consideration. On the basis of the above criteria selections were made  for admission  to Engineering and Medical  Colleges.   Thereupon some of the candidates whose applications for admission were rejected  filed  writ  petitions before the  High  Court  of Mysore for quashing the orders issued by the Government  and for  directing that they shall be admitted in  the  colleges strictly in the order of merit.  The High Court rejected the contentions  raised  on  points of law but  found  that  the selection  committee has abused its power and directed  that the petitioners be interviewed afresh and admissions be made in  accordance  with the Government Order and  letter  which were declared valid. Before  this  Court  it was contended  that  the  Government letter  was invalid inasmuch as it did not comply  with  the provisions  of  Art.  166 of  the  Constitution.   The  next contention was that the Government had no power to appoint a selection  committee for admitting students to  colleges  on the  basis of higher or different qualifications than  those prescribed  by the University.  Another contention was  that selection by viva voce examination was illegal by reason  of the fact that it enables the interviewers to act arbitrarily and  therefore it contravenes Art. 44 of  the  Constitution. Lastly  it was contended that unless the observation of  the High Court that the classification was not perfect since the Government  has  not applied the caste test as well  as  the economic test is corrected it will mislead the Government. Held:     (Per B. P. Sinha, C.J., Subba Rao, Raghubar  Dayal and Rajagopala Ayyangar JJ.) (i) The provisions of Art.  166 of  the  Constitution are only directory and  not  mandatory and, if they are not complied with, it can be established as a  question  of fact that the impugned order was  issued  in fact  by  the  State Government or  the  Governor.   In  the present  case the impugned order though it does not  conform to the provisions of Art. 166 ex facie says that an order to the  effect mentioned therein was issued by  the  Government and  it is not denied by the appellants that the  order  was made by the Government and neither it is denied that it  was communicated to the selection committee. Therefore it is valid. 134-159 S.C.-24 370 Dattatraya  Moreshwar  Pangarkar v. State of  Bombay  [1952] S.C.R. 612, State of Bombay v. Purushottam log Naik,  [1952] S.C.R.  74,  Ghaio  Mall & sons v. State  of  Delhi,  [1959] S.C.A.  1424 and Bachittar Singh v. State of Punjab,  [1962] Supp. 3 S.C.R. 713, referred to. (ii) If the impact of the State law providing for  standards of  education  on  entry  66  of List  I  is  so  heavy  and devastating  as  to  wipe out  or  appreciably  abridge  the Central field it may be struck down.  But that is a question of  fact  to be ascertained in each case.  If  a  State  law Prescribes  higher percentage of marks for  extra-curricular activities in the matter of admission to colleges it  cannot be  said that it would be directly encroaching on the  field covered by entry 66 of List I. The Government Orders do  not contravene  the  minimum  qualification  prescribed  by  the Mysore University; what the Government did was to appoint  a selection committee and prescribe for selection of  students who  have  the  minimum  qualifications  prescribed  by  the University.   Since they cannot admit all the  students  who



have secured the minimum marks prescribed by the  University they  had  necessarily  to select  the  applicants  on  some reasonable   basis.   The  State  Government  is   therefore entitled to prescribe a machinery and also the criteria  for admission  of qualified students to medical and  engineering colleges  run by the Government and with the consent of  the management  of  the Government aided colleges, to  the  said colleges also. Gujarat  University v. Shri Krishna, [1963] Supp.  1  S.C.R. 112, distinguished. (iii)     The  selection by viva voce is one of the  methods suggested  by modern authorities on education in  preference to  written  tests.  It is no’, for the court to  say  which method  should  be  adopted,  it  should  be  left  to   the authorities concerned.  The fact that one particular  method is capable of abuse is not sufficient ground for quashing it as  being  violative  of Art. 14.  If in a  given  case  the selection  committee abuses its powers in violation of  Art. 14 the selection will be held invalid and will be set  aside as the High Court has done in the present case. (iv) A classification of backward classes based on  economic conditions  and  occupation is not bad and does  not  offend Art.  15(4).   The  caste of a group of citizens  may  be  a relevant   circumstance   in   ascertaining   their   social backwardness and though it is a relevant factor to determine social  backwardness  of a class, it cannot be the  sole  or dominent test in that behalf.  If in a given selection caste is  excluded in ascertaining a class within the  meaning  of Art.  15(4)  it does not vitiate the  classification  if  it satisfied other tests.  The inference to the contrary  which may  be drawn from the observation of the High Court in  the impugned  judgment will not be correct in law or  a  correct reading of the observations of this Court in M. R. Balaji v. State of Mysore, [1963] Supp.  1 S.C.R. 439. (v)  Various  provisions of the Constitution like Arts.  15, 29, 46, 341 and 342 which recognise the factual existence of backward classes in our  371 country  and  which make a sincere attempt  to  promote  the welfare  of the weaker sections thereof should be  construed to  effectuate  that  policy and not to  give  weightage  to progressive  sections of the society under the false  colour of  caste  to  which  they  happen  to  belong.   Under   no circumstances  a "class" can be equated to a "caste"  though the caste of an individual or group of individuals may be  a relevant factor in putting him in a particular class.  If in a given situation caste is excluded in ascertaining a  class within  the meaning of Art. 15(4) it would not  violate  the classification  if it satisfied other tests.  If  an  entire sub-caste  by and large, is backward, it may be included  in the Scheduled Castes by following the appropriate  procedure laid down by the Constitution. Per  Mudholkar, J. (dissenting): (i) The decisions  of  this Court  dealing  with  Art.  166  of  the  Constitution  have definitely  held that where the’ existence of  a  Government Order itself is challenged by a person who is affected by it the burden is upon the Government to establish that an order was in fact made by the Governor in the manner provided  for in  the rules of business framed by the Governor  under  cl. (3) of Art. 166. (ii) It  is  not  correct to say, in  this  case,  that  the appellants  have  not  denied the existence  of  the  order. Right  from the beginning they have been saying  that  there was  no  "Government Order" in so far as  admission  to  the Medical  College was concerned.  Since both  the  appellants



were concerned only with the admission to a Medical  College they  had  no  necessity  to  deny  the  existence  of   the Government  Order  regarding  admission  to  an  Engineering College.   The  document  which is relied on  the  State  to establish that there was a Government Order is nothing but a communication  from  the Secretary to Government  of  Mysore addressed  to  the  selection committee  and  Deans  Medical College  Mysore.   It  is  thus not an  order  of  the  kind contemplated  by  Art.  166.  Except  a  statement  in  that communication  that  the  Under Secretary  is  "directed  to state" that the Government has taken a decision there is  no evidence  or  averment that the Governor has made  an  order providing  for  interview.  In no case has this  Court  held that such a document. can be treated as the Governor’s Order or even evidence of the existence of the Governor’s Order. (iii)     The  decision of this Court in Gujarat  University v.  Shri  Krishna, [1963] Supp.  1 S.C.R.  112,  establishes that the power to provide for coordination and determination of  standards  in  certain  institutions  like  the  medical colleges  is  vested  in  the  Parliament  and  even  though Parliament  may  not  have exercised that  power  the  State Legislature cannot step in and provide for the determination and coordination of standards by requiring that marks on the basis  of  interviews  be  awarded  to  the  applicants  for admission of candidates to,-such institutions as is done  in the  present case.  It constitutes an interference with  the standards of admission laid down by the University. (iv) The executive power of the State which is  co-extensive with  legislative power under Art. 162 of  the  Constitution cannot  be exercised where such exercise is contrary to  law or where it has been assigned to 372 other  authorities  or  bodies.  Section 23  of  the  Mysore University  Act,  provides that the Acadamic  Council  shall have  power to prescribe the conditions of admission to  the University  and therefore the executive cannot  encroach  on this power. Rai  Sahib  Ram Jawaya Kapur v. State of  Punjab,  [1955]  2 S.C.R.  225  and  Motilal v. Government of  State  of  Uttar Pradesh, A.I.R. 1951 All 259 (F.13.). (v)  It  would not be in accordance with cl. (1) of Art.  15 or  cl. (2) of Art. 29 to require the consideration  of  the caste  of persons to be borne in mind for  determining  what are socially and educationally backward classes.

JUDGMENT: CIVIL  APPELLATE JURISDICTION: Civil Appeals Nos.  1056  and 1057 of 1963. Appeals  by special leave from the judgment and order  dated September  30,  1963  of  the  Mysore  High  Court  in  Writ Petitions Nos. 1592 and 1522 of 1963. S.   K.  Venkataranga Iyengar and R. Gopalakrishnan, for the appellants (in both the appeals). C.   K.. Daphtary, Attorney-General, B. R. L. lyengar and B. R. G.  K. A char, for the respondents (in both the appeals) January  29,  1964.  The Judgment of B. P. Sinha,  C.J.,  K. Subba Rao, N. Rajagopala Ayyangar and Raghubar Dayal JJ. was delivered   by  Subba  Rao  J.  Mudholkar  J.  delivered   a dissenting opinion. SUBBA  RAO  J.-These two appeals raise the question  of  the validity, of the orders made by the Government of Mysore  in respect of admissions to Engineering and Medical Colleges in



the  State of Mysore.  The facts may be briefly  stated:  in the  State of Mysore there are a number of  Engineering  and Medical Colleges-most of them are Government Colleges and  a few  of  them  are Government  aided  Colleges.   The  State Government  appointed  a  common  selection  committee   for settling admissions to the Engineering Colleges and  another common  selection  committee  for  settling  admissions   to Medical Colleges.  The Government by an order dated July 26, 1963, marked as Ex.  C in the 373 High  Court, defined backward classes and directed  that  30 per cent of the seats in professional and technical colleges and institutions shall be reserved for them and 18 per cent. to  the Scheduled Castes and the Scheduled Tribes.  On  July 6,  1963,  the Government sent a letter to the  Director  of Technical Education in Mysore, Bangalore, informing him that it  had been decided that 25 per cent of the  maximum  marks for  the  examination in the optional  subjects  taken  into account for making the selection of candidates for admission to  Engineering Colleges shall be fixed as interview  marks; it  also laid down the criteria for allotting marks  in  the interview.   It appears that a similar order was  issued  in respect  of  Medical  Colleges.   The  selection   committee converted the total of the marks in the optional subjects to a  maximum  of  300 marks and fixed the  maximum  marks  for interview at 75.  On the basis of the marks obtained by  the candidates  in  the examination and those -obtained  in  the interview, selections were made for admission to Engineering and   Medical  Colleges.   Some  of  the  candidates   whose applications  for  admission  to  the  said  colleges   were rejected filed petitions under Art. 226 of the  Constitution in  the High Court of Mysore for quashing the orders  issued by  the Government in the matter of admissions to  the  said Colleges and for a direction that they shall be admitted  in the  Colleges  strictly  in the order of  merit.   The  High Court,  after considering the various contentions raised  by the petitioners, held that the orders defining  backwardness were valid and that the criteria laid down for interview  of students  were  good;  but  it  held  that  -the   selection committee  had  abused the powers conferred upon it  and  on that finding set aside the interviews held and directed that the  applicants  shall be interviewed afresh  in  accordance with the scheme laid down by the Government in Exs.  C and D and  in Annexure IV, subject to the directions given by  it. Two  of  the  petitioners have  filed  the  present  appeals against the said order of the High Court. We  shall now proceed to deal with the  various  contentions raised by learned counsel for the appellants. Learned  counsel  for  the  appellants  contends  that   the Government did not issue any order to the selection corn- 374 mittee in charge of admissions to Medical Colleges prescrib- ing  the  marks  for interview or fixing  the  criteria  for allotting  the said marks.  Annexure IV dated July 6,  1963, relates  to award of marks for the interview of  candidates, seeking  admission  to Engineering  Colleges  and  Technical Institutions.   It was a letter written by the Secretary  to the  Government  of  Mysore, Education  Department,  to  the Director   of  Technical  Education  in  Mysore   Bangalore. Therein  the Government fixed the percentage of marks to  be allotted  at  the interview.  The  selection  committee  was authorised  to allot marks to the candidates, having  regard to the following factors:               (1)   General Knowledge.               (2)   Aptitude and personality.



             (3)   Previous   academic  career,   including               special distinctions, etc.               (4)   N . C.C., A.C.C., etc.               (5)   Extra  curricular  activities  including               sports,  social service, debating,  dramatics,               etc. But  at  the  time of arguments no  letter  written  by  the Government in respect of admissions to Medical Colleges  was placed before us.  There is no definite allegation in either of  the two affidavits filed by the appellants that no  such order  was  issued by the Government in respect  of  Medical Colleges.  But, in the petition filed by Chitralekha in para 22 the following statement is found:               "As  the  order empowering them  to  award  75               marks  as interview marks has so far  remained               secret in that it has not been made available,               this Hon’ble Court may be pleased to send  for               the same, as the order falls to be quashed." This  averment assumes that such an order was made.  In  the counter-affidavit  filed  by Dr.  Dharmaraj,  Dean,  Medical College,  and  Chairman  of  the  selection  committee   for admission to Medical Colleges, it is stated that the Govern- ment  by  its  letter  directed  that  the  said   selection committee  shall  interview candidates and allot  marks  the maximum  of which shall be 25 per cent of the maximum  marks for  the  optional subjects and laid down the  criteria  for allotting marks  in  the interview.  In the paper-book  as  typed  the description  of  the letter is omitted.   But  the  learned; Attorney-General stated that in the original the description is given and that is, PLM 531 MNC 63 dated 12th July,  1963. In  the  counter-affidavit  filed by  B.  R.  Verma,  Deputy Secretary  to -the Government of Mysore,  Education  Depart- ment,  Bangalore,  after  referring to Annexure  IV,  it  is stated  that a similar letter was sent by the Government  to the  Selection Committee for admission to Medical  Colleges. It does not appear from the judgment of the High Court  that learned  counsel for the appellants denied the existence  of such  a  communication in respect of Medical  Colleges,  but Proceeded  with  his argument on the basis that  a  communi- cation  similar  to Annexure IV issued  in  connection  with admissions  to Engineering Colleges existed in the  case  of Medical  Colleges also.  But before us the  learned  counsel for  the  appellants heavily relied upon the fact  that  the said order was not filed in the court and was not willing to accept  the  assurance  given  by  the  Attorney-General  on instructions   that   such  an  order   existed.    In   the circumstances  we directed the Attorney-General to file  the said order.  A copy of the letter written by the  Government has since be-en filed and it clearly shows that the relevant instructions were issued in, respect of admission to Medical Colleges also.  We, therefore, hold that the Government sent a  letter similar in terms. to annexure IV to the  selection committee for admission to, Medical Colleges. The next contention advanced is that Annexure IV was invalid as it did not conform to the requirements of Art. 166 of the Constitution.   As the argument turns upon the for=  of  the said  annexure  it will be convenient to read  the  material part thereof. "sir,               Sub  : Award of marks for the  "interview"  of               the    candidates   seeking    admission    to               Engineering     Colleges     and     Technical               Institutions. With reference to your letter No. AAS. 4.ADW/63/2491,  dated



the 25th June, 1903, on the subject 376 Mentioned above, I am directed to state that Government have decided that 25 per cent of the maximum marks                      Yours faithfully,                      Sd/- S. NARASAPPA, Under Secretary to Government, Education Department." Ex facie this letter shows that it was a communication of he order  issued by the Government under the signature  of  the Under  Secretary  to the Government,  Education  Department. Under  Art., 166 of the Constitution an executive action  of the Government of a State shall be expressed to be taken  in the  name of the Governor, and that orders made in the  name of  the Governor shall be authenticated in such,  manner  as may be specified in rules to be made by be Governor and  the validity of an order which is so authenticated shall not  be called in question on the ground hat it is not an order made by the Governor.  If  the conditions laid down in this Article  are  complied with,  the order cannot be called in question on the  ground hat  it  is not an order made by the Governor.  It  is  con- tended  that as the order in question was not issued in  the name  of the Governor the order was void and  no  interviews could  be  held  pursuant to that order.   The  law  on  the subject is well-settled.  In Dattatreya Moreshwar  Pangarkar v.   The  State  of  Bombay  (1) Das J.,  as  he  then  was, observed:               "Strict  compliance with the  requirements  of               article 166 gives an immunity to the order  in               that  it  cannot be challenged on  the  ground               that it is not an order made by the  Governor.               If,   therefore,  the  requirements  of   that               article  are not complied with, the  resulting               immunity  cannot  be  claimed  by  the  State.               This,  however,  does not  vitiate  the  order               itself               action  to be expressed and  authenticated  in               the manner therein laid down but an               (1)   [1952] S.C.R. 612, 625.                                    377               omission to comply with those provisions  does               not  render  the executive action  a  nullity.               Therefore’ all that the procedure  established               by  law requires is that the appropriate  Gov-               ermnent must take a decision as to whether the               detention  order  should be confirmed  or  not               under section 11(1)." The  same view was reiterated by this Court in The State  of Bombay  v. Purshottam Jog Naik(1), where it was pointed  out that though the order in question then was defective in form it was open to the State Government to prove by other  means that  such  an order had been validly made.  This  view  has been  reaffirmed by this Court in subsequent decisions:  see Ghaio  Mall and Sons v. The State of Delhi (2), and  it  is, therefore,  settled law that provisions of Art. 166  of  the Constitution  are  only  directory  and  not  mandatory   in character and, if they are not complied with, it can be  es- tablished as a question of fact that the impugned order  was issued in fact by the State Government or the Governor.  The judgment  of this Court in Bachhittar Singh v. The State  of Punjab(3) does not help the appellants, for in that case the order signed by the Revenue Minister was not communicated to the  party  and, therefore, it was held that  there  was  no effective order.



In the light of the aforesaid decisions, let us look at  the facts of this case.  Though Annexure IV does not conform  to the provisions of Art. 166 of the Constitution, it ex  facie says  that  an  order to the effect  mentioned  therein  was issued  by the Government and it is not denied that  it  was communicated to the selection committee.  In neither of  the affidavits  filed by the appellants there was  any  specific averment  that no such order was issued by  the  Government. In the counter-affidavit filed by B. R. Varma, Deputy Secre- tary  to  the Government of  Mysore,  Education  Department, there  is  a  clear averment that the  Government  gave  the direction contained in Annexure IV and a similar letter was (1) [1952] S. C. R. 674.           (2)[1959] S. C. R. 1424. (3)  [1962] SUPP. 3 S. C. R. 713. 378 issued to the selection committee for admissions to  Medical Colleges and this averment was not denied by the  appellants by  filing any affidavit.  In the circumstances  when  there are  no allegations at all in the affidavit that  the  order was not made by the Government, we have no reason to  reject the averment made by the Deputy Secretary to the  Government that  the order was issued by the Government.  There are  no merits in this contention. It  is  then contended that the Government has no  power  to appoint  a  selection committee for  admitting  students  to colleges on the basis of higher or different  qualifications than those prescribed by the University and, therefore,  the orders  made by the Government in respect of admission  were illegal.   The  first argument is.  that  co-ordination  and determination  of  standards  of a  university  is  a  Union subject  and,  therefore,  the  State  Legislature  has   no constitutional competency to make a law for maintaining  the standards   of   university   education.    As   the   State Government’s executive power extends to matters with respect to  which  the Legislature of the State has  power  to  make laws,  the  argument proceeds, the Government of  the  State cannot make an order or issue directions for maintaining the standards  of the University.  The further argument is  that prescribing  higher marks for admission to a College is  for the  purpose  of  maintaining the  standards  of  University education   and  therefore  the  State  Government  is   not empowered to do so.  In support of this contention  reliance is  placed  upon  the  judgment of  this  Court  in  Gujarat University v. Shri Krishna(1).  There, one of the  questions raised related to alleged conflict between entry 11 of  List II  and  entry 66 of List I of the Seventh Schedule  to  the Constitution.   By  item No. 11 of List II  of  the  Seventh Schedule  to  the Constitution, the  State  Legislature  has power  to  legislate  in  respect  of  education   including Universities  subject to the provisions of items 63, 64,  65 and  66 of List I and 25 of List III.  By item 66  power  is entrusted  to Parliament to legislate on  co-ordination  and determination  of  standards  in  institutions  for   higher education   or   research  and  scientific   and   technical institutions. (1)  [1963] SUPP. 1 S.C. R. 112                             379 The   question  was  whether  medium  of   instruction   was comprehended  by either of those entries or whether it  fell under both.  In that context it was observed at p. 715-716:               "The  State  has the power  to  prescribe  the               syllabi   and   courses  of   study   in   the               institutions  named  in  entry  66  (but   not               falling  within  entries 63 to 65) and  as  an               incident thereof it has the power to  indicate



             the  medium  in which  instruction  should  be               imparted.   But  the Union Parliament  has  an               overriding  legislative power to  ensure  that               the  syllabi and courses of  study  prescribed               and   the  medium  selected  do   not   impair               standards of education or render the  co-ordi-               nation  of  such standards either  on  an  All               India  or  other  basis  impossible  or   even               difficult." This  and  similar other passages indicate that if  the  law made  by the State by virtue of entry II of List II  of  the Seventh  Schedule  to the Constitution makes  impossible  or difficult  the  exercise  of the legisiative  power  of  the Parliament under the entry "Co-ordination and  determination of  standards  in  institutions  for  higher  education   or research and scientific and technical institutions" reserved to  the  Union,  the  State law may  be  bad.   This  cannot obviously   be  decided  on  speculative  and   hypothetical reasoning.   If  the impact of the State law  providing  for such  standards  on  entry  66 of List  I  is  so  heavy  or devastating  as  to  wipre out or  appreciably  abridge  the central  field,  it  may  be struck down.   But  that  is  a question of fact to be ascertained in each case.  It is  not possible  to  hold that if a State legislature  made  a  law prescribing   a  higher  percentage  of  marks  for   extra- curricular   activities  in  the  matter  of  admission   to colleges,  it  would be directly encroaching  an  the  field covered by entry 66 of List I of the Seventh Schedule to the Constitution.   If  so, it is not disputed  that  the  State Government   would  be  within  its  rights   to   prescribe qualifications  for  admission to colleges so  long  as  its action does not contravene any other law. It  is  then said that the Mysore University  Act  conferred power  to prescribe rules for admission to Colleges  on  the University and the Government cannot exercise that power. 380 It  is true that under s. 23 of the Mysore  University  Act, 1956, the Academic Council shall have the power to prescribe the  conditions for admission of students to the  University and,  in  exercise  of  its power,  it  has  prescribed  the percentage of marks which a student shall obtain for getting admission in medical or engineering colleges.  The orders of the Government do not contravene the minimum  qualifications prescribed by the University; what the Government did was to appoint  a  selection  committee  and  prescribe  rules  for selection  of students who have the  minimum  qualifications prescribed  by the University.  The Government runs most  of the  medical and engineering colleges.  Excluding the  State aided colleges for a moment, the position is as follows: The Colleges  run by the Government, having regard to  financial commitments  and  other relevant  considerations,  can  only admit  a specific number of students to the  said  Colleges. They  cannot  obviously admit all the  applicants  who  have secured  the  marks prescribed by the  University.   It  has necessarily  to  screen the applicants  on  some  reasonable basis.    The  aforesaid  orders  of  the   Govemment   only prescribed  criteria for making admissions to Colleges  from among  ’students  who secured the minimum  qualifying  marks prescribed  by the University.  Once it is conceded, and  it is not disputed before us, that the State Government can run medical  and engineering colleges, it cannot be  denied  the power   to  admit  such  qualified  students  as  pass   the reasonable  tests  laid down by it.  This is a  power  which every  private  owner  of  a  College  will  have,  and  the Government which runs its own Colleges cannot be denied that



power. Even so it is argued that the same power cannot be exercised by the Government in respect of private Colleges though they are  receiving  aid from the State.  But the  management  of aided institutions have not raised any objections.   Indeed, from  the year 1960 admissions were made to the Colleges  by the selection committees constituted by the Government.  The High Court, after considering the material placed before it, held that, with the consent of the management of the various professional  and  technical colleges, the  Government  took over the responsibility of regulating admission of  students to the colleges in question. 381 Nothing  has been placed before us to prove that the  selec- tion  committees were constituted against the wishes of  the management of the aided colleges.  In the circumstances.  we cannot disturb the finding of the High Court in this regard. We,  therefore,  hold  that  the  Government  has  power  to prescribe a machinery and also the criteria for admission of qualified  students to medical and engineering colleges  run by the Government and, with the consent of the management of the Government aided colleges, to the said colleges also. It  is  then  contended  that the  system  of  selection  by interviews and viva voce examination is illegal inasmuch  as it enables the interviewers to act arbitrarily and to  mani- pulate the results and, therefore, it contravenes Art. 14 of the  Constitution.   To  appreciate this  contention  it  is necessary  to  notice  how the interview  is  held  and  the criteria  laid  down for the selection committee  to  adopt. The Government by its order dated May 17, 1963 constituted a committee consisting of the following members for  selection to Government Medical Colleges:               (1)   The      Dean,     Medical      College,               Mysore--Chairman.               (2)   The  Dean, Medical  College,  Bangalore-               Member.               (3)   The      Dean,     Medical      College,               Hubli--Member. So too, highly qualified educationists were appointed to the selection  committee  for  the  Engineering  Colleges.    By notification dated July 6, 1963, in respect of the Engineer- ing Colleges and a similar notification issued in respect of the  Medical  Colleges, the Government  prescribed  that  in addition to the examination marks in optional subjects there should  be  an interview of students for which  the  maximum mark prescribed shall be 25 per cent of the maximum marks of the optional subjects.  The selection committee has to allot marks,  having  regard to general  knowledge,  aptitude  and personality,  previous  academic career,  including  special distinctions  etc.,  N.C.C., A.C.C.  etc.,  extra-curricular activities  including  sports,  social  service,   debating, dramatics etc.  It is, therefore, clear that the  Government by  its  order  not  only  laid  down  a  clear  policy  and prescribed  definite criteria in the matter of giving  marks at the interview but 382 also appointed, competent men to make the selection on  that basis.   The  order of the Government does not  in  any  way contravene Art. 14 of the Constitution. But  learned  counsel  for the appellants  raised  a  larger question   that  selection  by  interviews   is   inherently repugnant to the doctrine of equality embodied in Art. 14 of the  Constitution, for, whatever may be the  objective  test laid  down, in the final analysis the awarding of  marks  is left  to  the  subjective  satisfaction  of  the   selection



committee   and,   therefore,  it  gives  ample   room   for discrimination  and manipulation.  We cannot accept  such  a wide  contention and condemn one of the well-accepted  modes of selection in educational institutions.  James Hart in his "An Introduction to Administrative Law" observes, at p.  180 thus:               "A  test  or examination, to  be  competitive,               must employ an objective standard of  measure.               Where  the standard or measure is wholly  sub-               jective to the examiners, it differs in effect               in no respect from an uncontrolled opinion  of               the    examiners   and   cannot   be    termed               competitive." In  the  field  of education there are  divergent  views  as regard  the  mode  of testing the capacity  and  calibre  of students in the matter of admissions to colleges.   Orthodox educationists  stand by the marks obtained by a  student  in the annual examination.  The modern trend of opinion insists upon other additional tests, such as interview,  performance in    extra-curricular   activities,    personality    test, psychiatric  tests etc.  Obviously we are not in a  position to  judge  which method is preferable or which test  is  the correct one.  If there can be manipulation or dishonesty  in allotting   marks  at  interviews,  there  can  equally   be manipulation in the matter of awarding marks in the  written examinations.  In the ultimate analysis, whatever method  is adopted  its success depends on the moral standards  of  the members constituting the selection committee and their sense of objectivity and devotion to duty.  This criticism is more a  reflection  on the examiners than on the  system  itself. The scheme of selection, however perfect it may be on paper, may be abused in practice.  That it is capable of abuse is                             383 not  a  ground for quashing it.  So long as the  order  lays down  relevant objective criteria and entrusts the  business of  selection  to  qualified  persons,  this  Court   cannot obviously  have  any say in the matter.  In  this  case  the criteria laid down by the Government are certainly  relevant in  the matter of awarding marks at the interview.   Learned counsel contends that the ability of a student on the  basis of  the said criteria can be better judged by other  methods like  certificate  from the N.C.C. Commander  or  a  medical board or a psychatrist and should not be left to a body like the selection committee which cannot possibly arrive at  the correct  conclusion in a short time that would be  available to  it.  This criticism does not affect the validity of  the criteria,  but only suggests a different method of  applying the criteria .than that adopted by the Committee.  It is not for  us to say which method should be adopted: that must  be left to the authority concerned.  If in any particular  case the  selection  committee abuses its power in  violation  of Art. 14 of the Constitution, that may be a case for  setting aside  the  result of a particular interview,  as  the  High Court did in ,this case.  We cannot, therefore, hold without better  and more scientific material placed before  us  that selection by interview in addition to the marks obtained  in the  written examination is itself bad as offending Art.  14 of the Constitution. Lastly  it is contended that though the High Court  did  not quash  the  order of the Government embodied in Ex.   C,  it held  that  it  was not a perfect  classification  and  also indicated  its mind that the Government should have  adopted the  caste test as well as the residence test in making  the classification.   If the observations of the learned  Judge, the  argument proceeds, are not corrected, the State may  be



bound  by  such observations in the matter when  it  finally prescribes  the  criteria  for  ascertaining  the   backward classes  under Art. 15 (4) of the Constitution.  In  Ex.   C the Government laid down that classification of socially and educationally  backward  classes  should  be  made  on   the following basis: (1) economic condition; and (2) occupation. According  to that order a family whose income is Rs.  1,200 per   annum  or  less  and  persons  or  classes   following occupations   of   agriculture  petty   business,   inferior services, crafts or other 384 occupations   involving  manual  labour.  are  in   general, socially,  economically  and  educationally  backward.   The Government  lists the following occupations as  contributing to social backwardness: (1) actual cultivator; (2)  artisan; (3) petty businessmen; (4) inferior services (i.e., Class IV in Government services and corresponding class or service in private  employment)  including casual labour; and  (5)  any other occupation involving manual labour.  It is, therefore, manifest that the Government, as a temporary measure pending an  elaborate study, has taken into consideration  only  the economic condition and occupation of the family concerned as the criteria for backward classes within the meaning of Art. 15  (4) of the Constitution.  The order does not  take  into consideration  the  caste  of an applicant  as  one  of  the criteria for backwardness.  Learned counsel does not  attack the  validity  of  the said order.  But in  the  High  Court conflicting arguments were advanced in support of this order as  well as against it.  The High Court heavily relied  upon the  decision of this Court in M. R. Balaji v. The State  of Mysore(1)  and  came  to the  conclusion  that,  the  scheme adopted by the State was a very imperfect scheme and that in addition  to  the occupation and poverty  tests,  the  State should  have  adopted  the  "caste"  test  as  well  as  the ’residence"  test  in making the  classification.   It  also observed  that the decision in Balaji’s case says that  "the ‘caste’  basis is undoubtedly a relevant, nay  an  important basis  in determining the classes of backward Hindus but  it should not be made the sole basis".  It concluded that  part of the discussion with the following observation:               "But I earnestly hope that soon the State will               make  a more appropriate  classification  lest               its bonafides should be questioned." Learned  counsel  contends that these observations  are  not supported by the decision in Balajis case, and that they are in  conflict with the observations made therein.  We  shall, therefore,  consider the exact scope of the observations  in the  said  decision of this Court.  There, 68  per  cent  of seats  in  Colleges were reserved for the  alleged  backward communities.   It was argued before this Court on behalf  of the peti-  (1) [1963] Supp. 1 S. C. R. 439. 385 tioners  therein that the impunged order, which  was  passed under Art. 15(4) of the Constitution, was not valid  because the basis adopted by the order in specifying and enumerating the socially and educationally backward classes of  citizens in  the  State was unintelligible and  irrational,  and  the classification made on the said basis was inconsistent  with and   outside  the  provisions  of  Art.  15  (4)   of   the Constitution.     In   considering   the   said    question, Gajendragadkar   J.,  speaking  for  the  Court,  made   the following observations, at p. 658:               "The  backwardness under Art. 15 (4)  must  be               social  and  educational.  It  is  not  either



             social  or educational, but it is both  social               and  educational;  and that takes  us  to  the               question  as  to how  social  and  educational               backwardness has to be determined." Adverting  to the expression "classes" of citizens  in  Art. 15(4)  of the Constitution, the learned Judge  proceeded  to state:               The  group  of  citizens to  whom  Art.  15(4)               applies are described as "classes of  citizens               not as castes of citizens.  A class  according               to  the dictionary meaning, shows division  of               society   according   to,  status,   rank   of               caste............               to  whether any class of citizens is  socially               backward  or not, it may not be irrelevant  to               consider  the  caste  of  the  said  group  of               citizens.  In this connection it is,  however,               necessary  to  bear in mind that  the  special               provision  is  contemplated  for  classes   of               citizens  and not for individual  citizens  as               such, and so, though the caste of the group of               citizens  may  -be  relevant,  its  importance               should    not   be   exaggerated.    If    the               classification of backward classes of citizens               was based solely on the caste of the  citizen,               it  may not always be logical and may  perhaps               contain  the vice of perpetuating  the  castes               themselves. 134-159 S.C.--25 386               Besides, if the caste of the group of citizens               was  made the sole basis for  determining  the               social  backwardness  of the said  group  that               test  would inevitably break down in  relation               to  many sections of Indian Society  which  do               not  recognise  castes  in  the  conventional,               sense  known  to  Hindu  society..............               That  is  why we think that though  castes  in               relation to Hindus may be a relevant factor to               consider    in    determining    the    social               backwardness of groups Or classes of citizens,               it  cannot  be made the sole or  the  dominant               test in that behalf." Two  principles stand out prominently from the  said  obser- vations, namely, (i) the caste of a group of citizens may be a  relevant circumstance in ascertaining their social  back- wardness;  and  (ii)  though  it is  a  relevant  factor  to determine the social backwardness of a class of citizens, it cannot  be  the sole or dominant test in that  behalf.   The observations  extracted  in the judgment of the  High  Court appear  to  be  in conflict with the  observations  of  this Court.  While this Court said that caste is only a  relevant circumstance  and  that it cannot be the  dominant  test  in ascertaining  the backwardness of a class of  citizens,  the High Court said that it is an important basis in determining the class of backward Hindus and that the Government  should have  adopted  caste  as  one of the  tests.   As  the  said observations  made  by  the High Court  may  lead  to  -some confusion in the mind of the authority concerned who may  be entrusted  with  the  duty  of  prescribing  the  rules  for ascertaining the backwardness of classes of citizens  within the  meaning  of Art. 15(4) of the  Constitution,  we  would hasten  to  make  it clear that caste  is  only  a  relevant circumstance in ascertaining the backwardness of a class and there  is  nothing  in  the judgment  of  this  Court  which



precludes  the  authority  concerned  from  determining  the social  backwardness of a group of citizens if it can do  so without  reference  to  caste.  While  this  Court  has  not excluded caste from ascertaining the backwardness of a class of  citizens,  it  has not made it  one  of  the  compelling circumstances  affording  a basis for the  ascertainment  of backwardness  of  a  class.   To  put  it  differently,  the authority  concerned  may take caste into  consideration  in ascertaining 387 the  backwardness  of ’a group of persons; but, if  it  does not,  its order will not be bad on that account, if  it  can ascertain  the  backwardness of a group of  persons  on  the basis of other relevant criteria. The Constitution of India promises Justice, social, economic and  political; and equality of status and of  opportunity,. among others.  Under Art. 46, one of the Articles in Part IV headed  "Directive  Principles of State Policy",  the  State shall promote with special care the educational and economic interests  of  the weaker sections of the  people,  and,  in particular,  of  the  Scheduled  Castes  and  the  Scheduled Tribes, and shall protect them from social injustice and all forms of exploitation.  Under Art. 341,               "The  President may with respect to any  State               or  Union territory, and where it is  a  State               after consultation with the Governor  thereof,               by  public  notification specify  the  castes,               races  or tribes or parts of or groups  within               castes,  races or tribes which shall  for  the               purposes of this Constitution be deemed to  be               Scheduled Castes in relation to that State  or               Union territory, as the case may be." Under  Art.  342,  in the same  manner,  the  President  may specify  the  tribes  or  tribal  communities  as  Scheduled Tribes.  Article 15(4) says:               "Nothing  in this article or in clause (2)  of               article 29 shall prevent the State from making               any  special provision for the advancement  of               any   socially  and   educationally   backward               classes  of  citizens  or  for  the  Scheduled               Castes and the Scheduled Tribes." These  provisions  form  a  group  of  Articles  which  have relevance  in  the  making of a special  provision  for  the advancement  of  any  socially  and  educationally  backward classes of citizens in the matter of admissions to colleges. These provisions recognize the factual existence of backward classes  in our country brought about by historical  reasons and  make  a sincere attempt to promote the welfare  of  the weaker sections thereof.  They shall be so construed 388 as  to effectuate the said policy but not to give  weightage to  progressive  sections  of our society  under  the  false colour  of  caste  to  which they  happen  to  belong.   The important  factor  to be noticed in Art. 15 (4) is  that  it does  not speak of castes, but only speaks of  classes.   If the makers of the Constitution intended to take castes  also as units of social and educational backwardness, they  would have said so as they have said in the case of the  Scheduled Castes and the Scheduled Tribes.  Though it may be suggested that  the wider expression ’classes" is used in cl.  (4)  of Art.  15  as there are communities without  castes,  if  the intention  was  to  equate  classes  with  castes,   nothing prevented  the  makers of the Constitution  from  using  the expression "backward classes or castes".  The  juxtaposition of the expression "backward classes" and "Scheduled  Castes"



in Art. 15 (4) also leads to a reasonable inference that the expression "classes" is not synonymous with castes.  It  may be  that for ascertaining whether a particular citizen or  a group of citizens belong to a backward class or not, his  or their caste may have some relevance, but it cannot be either the  sole  or the dominant criterion  for  ascertaining  the class to which he or they belong. This  interpretation  will carry out the  intention  of  the Constitution expressed in the aforesaid Articles.  It  helps the  really  backward  classes  instead  of  promoting   the interests  of individuals or groups who, though they  belong to  a  particular caste a majority whereof is  socially  and educationally  backward, really belong to a class  which  is socially and educationally advanced.  To illustrate, take  a caste  in a State which is numerically the largest  therein. It may be that though a majority of the people in that caste are  socially  and  educationally  backward,  an   effective minority may be socially and educationally far more advanced than  another small sub-caste the total number of  which  is far  less  than  the said minority.   If  we  interpret  the expression   "classes"  as  "castes",  the  object  of   the Constitution  will be frustrated and the people who  do  not deserve any adventitious aid may get it to the exclusion  of those  who really deserve.  This anomaly will not arise  if, without  equating caste with class, caste is taken  as  only one  of  the considerations to ascertain  whether  a  person belongs to a backward 389 class or not.  I On the other hand, if the entire sub-caste, by  and  large,  is  backward, it may  be  included  in  the Scheduled Castes by following the appropriate procedure laid down by the Constitution. We  do  not intend to lay down any inflexible rule  for  the Government  to  follow.   The laying down  of  criteria  for ascertainment  of social and educational backwardness  of  a class is a complex problem depending upon many circumstances which  may vary from State to State and even from  place  to place  in a State.  But what we intend to emphasize is  that under  no  circumstances  a  "class" can  be  equated  to  a "caste",  though  the caste of an individual or a  group  of individual  may  be  considered along  with  other  relevant factors in putting him in a particular class.  We would also like to make it clear that if in a given situation caste  is excluded in ascertaining a class within the meaning of  Art. 15(4)   of  the  Constitution,  it  does  not  vitiate   the classification if it satisfied other tests. In  the result, the appeals fail and are  dismissed.   There will be no order as to costs. MUDHOLKAR I.-The appellants in these appeals had  challenged before the High Court of Mysore the validity of the mode  of selection  of  candidates  for  admission  to  the   Medical Colleges  in that State by preferring petitions  before  the High Court under Art. 226 of the Constitution.  They pointed out in their petitions that the selection committee, instead of  selecting persons for admission on the basis  of  merit, chose  to  interview the candidates and  made  the  ultimate selection  by  adding marks upto 75 to  the  marks  actually secured  by  the  candidate  at  the  Pre-University  Course examination  (herein referred to as P.U.C.  Examination)  on the  basis of the interview.  Their contentions are that  in the absence of any Government order there was no basis  upon which  marks  at the interview could be added to  the  marks secured in the P.U.C. examination, that the so-called  order on which reliance was placed on behalf of the State is not a Government  order at all as the document produced  does  not



comply   with   the  requirements  of  Art.   166   of   the Constitution, that no criteria were laid down for  allotting marks  TO the candidates at the interview, that this  was  a violation of Art. 14 of the Constitution, that the Govern- 390 ment   was   constitutionally   incompetent   to   prescribe qualifications   for   admission  to  Colleges   under   the University different from those prescribed by the University and  that  under the Mysore University  Act  the  University alone  had  the power to prescribe rules  for  admission  to Colleges affiliated to the University.  The High Court  held against  the appellants on all these points.  But  upon  the view  that the Selection Committee had "misused" the  powers conferred upon it and had wrongly interpreted the Government Order,  quashed  the results of the interview  and  directed that  after  interviewing the petitioners before  it  afresh their  cases  should  be considered  for  admission  by  the Selection Committee in accordance with the Government Order. In  the course of its order the High Court has  found  fault with  the  Government  for  not taking  the  castes  of  the candidates  into consideration while exercising  its  powers under Art. 15(4) and making provision for the advancement of backward classes and made certain remarks to which objection has been taken on behalf of the appellants. My  learned brother Subba Rao J. whose judgment I  have  had the opportunity of seing has upheld the judgment of the High Court  but has not agreed with the observations made  by  it suggesting  that  the caste of candidates should  also  have been  taken into consideration while determining the  social and  educational backwardness of a class.  I regret  my  in- ability to agree with many of the conclusions reached by  my learned  brother and I am of opinion that the appeals  ought to be allowed. Even  assuming  for the time being that  the  Government  of Mysore had the power both under the Constitution and under a law  enacted by the Legislature to prescribe  qualifications for  admission  to  any Colleges  in  the  State,  including colleges imparting technical or professional education,  the first  question  is whether there was in fact  a  Government Order  justifying the course adopted by the  Selection  Com- mittee.   It  may be mentioned that the document  which  was filed  in the High Court as being the Government  Order  was merely a communication addressed on behalf of the Government by  one  of its Secretaries to the selection  Committee  and signed by an Under Secretary.  But this document only                             391 refers to the interview prescribed for making selections  of candidates  for admission: to Engineering Colleges.  At  the hearing in this Court the Attorney-General who appeared  for the  State  of Mysore stated that there  was  a  Government. Order also as regards admission to Medical Colleges that  it was  actually  brought to the notice of the High  Court  and that  he may be permitted to produce that order.  Leave  was granted  by us to him to do so.  On December 20, 1963,  that is,  after judgment had been reserved Mr.  Achar,  Assistant Government Advocate, placed on record, what according to the State, is the Government Order.  This document, however, was not a part of the record of the writ petitions and the  only manner  in which the so-called Government Order relating  to admission  to Medical Colleges was brought to the notice  of the  High  Court  was  by  specifying  in  Dr.   Dharmaraj’s affidavit, the number of the letter addressed by a Secretary to  the Government to the Selection Committee  dealing  with admissions  to  the Medical Colleges.  It  is  desirable  to reproduce  in extenso the document which has been filed  now



in this Court.  It runs thus: "GOVERNMENT OF MYSORE CONFIDENTIAL: No. PLM 351 MMC 63 Mysore Government Secretariat,      Vidhana Soudha, Bangalore, dated 12th July, 1963 SE 1885 From               The Secretary to Government of Mysore,               PH. Labour & Munl.  Admn.  Department,               Bangalore. TO               The Chairman,               Selection  Committee & Dean, Medical  College,               Mysore. Sir,               SUBJECT.--Award of marks for the interview  of               thE               392               candidates  seeking admission to Medical  Col-               leges in the State. I am directed to state that Government have decided that  25 per  cent  of the maximum marks for the examination  in  the optional   subjects  taken  into  account  for  making   the selection  of candidates for admission to Medical  Colleges, shall be fixed as interview marks. I  am  further  to state that  the  Selection  Committee  is authorised   to  allot  marks  for  the  interview  of   the candidates  as fixed above, having regard to  the  following factors:               1.    General Knowledge.               2.    Aptitude and personality.               S.    Previous   academic   career   including               special distinctions, etc.               4.    N.C.C., A.C.C., etc.               5.    Extra  curricular  activities  including               sports,  social service, debating,  dramatics,               etc. I  am  also  to  state that  Government  have  decided  that students  with exceptional merit in games and  sports--State and  inter-State standard-may be selected upto a maximum  of two per cent of the total number of seats.                      Yours faithfully,                      Sd./- L. G. DESAI,              Under Secretary to Government,              PH. Labour & Munl.  Admn.  Dept. Attested Sd./-  H. L. LINGARAJ URS, Dy. Secretary to Government,  PH. Lb. & M1.  Admn. 393 This  is nothing more than a communication emanating from  a secretary  to the Government of Mysore to the Chairman,  and addressed  to  the  Selection Committee  and  Dean,  Medical College,  Mysore.   It  is thus not an  order  of  the  kind contemplated by Art. 166 of the Constitution.  That  Article lays down that all executive actions of the Government of  a State  shall  be expressed to be taken in the  name  of  the Governor  and that the orders made and executed in the  name of the Governor shall be authenticated in such manner as may be specified in the rules made by the Governor.  It  further provides that where an order is authenticated in the  manner prescribed  in the rules made by the Governor, its  validity shall not be called in question on the ground that it is not an  order  made by the Governor.  The essence of  Art.  166,



however,  is  that executive action of the Government  of  a State  shall  be expressed to be taken in the  name  of  the Governor.  The document placed before us does not show  that the  action,  to wit, prescribing  an  interview,  allotting marks for it and laying down the criteria to be observed  by the Selection Committee in allotting marks even purports  to emanate from the Governor.  All that the Secretary on  whose behalf  some Under Secretary has signed, says is that he  is "directed to state" that the Government has taken a  certain decision.   This document thus is not that  decision.   What that  decision is, how it is worded, when it was  taken  and whether  it is expressed in the name of the Governor, we  do not know.  The cases in which it has been held by this Court that  the  provisions of Art. 166(2) are directory  and  not mandatory are of no help because here what we are  concerned with  is about the actual existence of an order made by  the Governor.   No doubt, where there is  merely  non-compliance with the provisions of Art. 166(1) or of the rules framed by the  Governor in the matter of authentication of  an  order, evidence  aliunde could be led to establish that in fact  an order was made by the Governor.  This clearly, does not mean that  the  existence  of  a Government  order  need  not  be established.   On  the contrary these decisions  accept  the position  that the making of a Government Order is sine  qua non for justifying any action which is purported to be taken by  an  officer of the Government on its behalf.   Here  the Secretary  has said a certain procedure. was to be  followed by the Selection Committee.  He has himself 394 no  power to order that to be done de hors an order  of  the Government.  It is for this reason that he has made a refer- ence to such an order.  But that order is not before us.  It was said by the learned Attorney-General that the  existence of the order was not denied by the appellants.  But that  is not correct.  Right from the beginning they have been saying that there was no "Government Order" in so far as  admission to  the Medical Colleges was concerned.  What was relied  on behalf  of  the  State  was  the  letter  addressed  to  the Selection  Committee  concerned  with  the  applications  of persons  for admission to Engineering Colleges.   But  since both the appellants were applicants for admission to a Medi- cal  College  it was not necessary for them to  say  further that what was relied on was not a Government Order--even  in regard to Engineering Colleges.  In reply to the appellants’ averment  reliance  was  placed upon  an  affidavit  by  Dr. Dharamraj  in  which  reference is made  to  the  very  com- munication  which  I have reproduced earlier  as  being  the "Govemor’s  Order".   If that is what is claimed to  be  the Govemor’s  Order,  then  the State must fail  on  the  short ground  that it is not expressed to be made in the  name  of the  Governor  and  is thus prime facie  not  the  Governors Order.  In Bachittar Singh v. The State of Punjab(1) one  of the questions which arose for consideration was whether what a  Minister  wrote  on the file of  a  case  and  initialled amounted  to an Order of the Governor within the meaning  of Art. 166.  This Court negatived the contention on the ground that  since what he had said there was not expressed in  the name of the Governor, it cannot be regarded as the Govemor’s Order.’  It  is  true  that  in  that  case  there  was   no communication of the Minister’s so-called order to the party in  whose  favour it was made but mention was made  of  this fact in the judgment only to emphasise that what was said in the note of the Minister had not attained any finality.  The view taken in Bachittar Singh’s(1) case does not run counter to  any  decisions of this court; but on the other  hand  is



supported  by  that taken in the State of  Punjab  v.  Sodhi Sukhdev  Singh(2).  The appellant’s s first contention  must succeed and it must be held that the addition of (1)[1962] Supp. 3 S.C.R. 713. (2)[1962] 2 S.  C. R. 371. 395 marks  for interview by the Selection Committee was  without any validity or legal authority. Learned Attorney-General seemed to suggest that the decision of  this Court in Bachittar Singh’s case is contrary  to  at least  three  other decisions of this Court.  The  first  of them  is  Dattatraya  Moreshwar Pangarkar v.  The  State  of Bombay and Ors.(1). In that case the petitioner who had been detained  under  the  Preventive  Detention  Act,  1950  had challenged  the  legality of the detention on  two  grounds. One  of those grounds was that the order of confirmation  of detention under s. 11(1) was not expressed to be made in the name  of  the  Governor as required by Art.  166(1)  of  the Constitution.  Dealing with the argument Das J. (as he  then was) with whom Patanjali Sastri C.J. agreed has observed  as follows at p. 623:               "Section  11(1) plainly requires an  executive               decision  as  to whether the  detention  order               should  or  should  not  be  confirmed.    The               continuation  of the detention as  a  physical               fact automatically follows as a consequence of               the  decision to confirm the  detention  order               and for reasons stated above, does not require               any further executive decision to continue the               detention.   It follows, therefore,  that  the               Preventive  Detention  Act  contemplates   and               require  the taking of an  executive  decision               either  for  confirming  the  detention  order               under  s. 11(1) or for revoking  or  modifying               the detention order under section 13. But  the               Act is silent as to the in which the executive               decision, whether it is described as an  order               or  an  executive action is to be  taken.   No               particular  form is prescribed by the  Act  at               all  and the requirements of the Act  will  be               fully  satisfied if it can be shown  that  the               executive decision has in fact been taken.  it               is at this stage that learned counsel for  the               petitioner  passes  on to Article 166  of  the               Constitution  and contends that all  executive               action  of the Government of a State  must  be               expressed                (1)[1952] S.C.R. 612. 396               and authenticated in the manner, therein  pro-               vided.   The learned  Attorney-General  points               out  that there is a distinction  between  the               taking  of  an executive decision  and  giving               formal  expression to the decision  so  taken.               Usually  executive  decision is taken  on  the               office files by way of notings or endorsements               made  by the appropriate Minister or  officer.               If every executive decision has to be given  a               formal   expression  the  whole   governmental               machinery,  he contends, will be brought to  a               standstill.   I  agree  that  every  executive               decision  need not be formally  expressed  and               this  is  particularly so  when  one  superior               officer  directs  his subordinate  to  act  or               forbear  from acting in a particular way,  but



             when   the  executive  decision   affects   an               outsider  or  is  required  to  be  officially               notified  or  to  be  communicated  it  should               normally be expressed in the form mentioned in               Article  166(1)  i.e,  in  the  name  of   the               Governor." Thus  according to the learned Judge where an order  affects an  outsider  it must normally be made in the  name  of  the Governor.  Here, what is said to be an order is intended  to affect  outsiders  in  that  the  selection  committee   was required   to  hold  interviews  and  allot  marks  to   the candidates  under different heads.  Further it  affects  the candidates   seeking  admission  to  the  Medical   College. Moreover  this ’order’ has not remained merely on the  files of the Government for enabling its officers to take  certain action  but was specifically intended to govern the  actions of  the Selection Committee.  That is an  additional  reason why  it  was  necessary to express it in  the  name  of  the Governor.   After  saying what I have  already  quoted,  the learned Judge proceeded to observe in his judgment:               "Learned Attorney-General then falls back upon               the   plea  that  an  omission  to  make   and               authenticate an executive decision in the form               mentioned  in  Article 166 does not  make  the               decision itself illegal, for the provisions of               that  Article, like their counterpart  in  the               Government of India                                    397               Act, are merely directory and not mandatory as               held  in  J. K.  Gas Plant  Manufacturing  Co.               (Rampur) Ltd., and Ors. v. The KingEmperor(1).               In my opinion, this contention of the  learned               Attorney-General  must prevail.  It  is  well-               settled that generally speaking the provisions               of  a  statute  creating  public  duties   are               directory and those conferring private  rights               are  imperative.   When the  provisions  of  a               statute relate to the performance of a  public               duty  and the case is such that to  hold  null               and  void  acts done in neglect of  this  duty               would  work serious general  inconvenience  or               injustice to persons who have no control  over               those entrusted with the duty and at the  same               time would not promote the main object of  the               legislature,  it has been the practice of  the               Courts to hold such provisions to be directory               only,  the neglect of them not affecting  the,               validity of the acts done." Thus,  even upon the view taken by him that  the  provisions are merely directory the learned Judge has clearly taken the view  that it has to be shown that the decision  upon  which reliance  is placed on behalf of the Government was in  fact taken.  In the case before him he found as a fact that  such a  decision  had been taken.  There is no material  in  this case  on  the basis of which it could be said  that  in  the present  case  any  decision had at all been  taken  by  the Government in so far as interviews for admission to  Medical Colleges were concerned. According  to  Mukherjea  J.  (as he  then  was)  with  whom Chandrasekhara  Aiyar J., agreed, while cl. (1)  relates  to the  mode of expression of an executive order, cl. (2)  lays down  the manner in which such order is to be  authenticated and  that when both the requirements are complied  with  the order  would be immune from challenge in a court of  law  on the  ground  that it had not been made or  executed  by  the



Governor.  Also, according to him, the provisions of (1)  [1947] F. C. R. 141,,154-9. 398 cl. (1) are directory and not imperative in their character. In the course of the judgment the learned Judge observed:               "..............  I  agree  with  the   learned               Attorney-General that non-compliance with  the               provisions of either of the clauses would lead               to  this  result that the  order  in  question               would  lose  the  protection  which  it  would               otherwise  enjoy,  had  the  proper  mode  for               expression  and authentication  been  adopted.               It.  could be challenged in any court  of  law               even on the ground that it was not made by the               Governor  of  the State and in  case  of  such               challenge  the  onus would be upon  the  State               authorities  to  show affirmatively  that  the               order  was  in fact made by  the  Governor  in               accordance with the rules framed under Article               166 of the Constitution" (p. 632). Mahajan J., (as he then was) expressed no opinion upon  this point,  which  was the second point raised in the  case,  as according  to  him, the detention was  invalid  because  the Government  had at the time of confirming the order  omitted to specify the period during which the detention should con- tinue. It  will thus be clear that all the teamed Judges  who  have dealt  with, the provisions of Art. 166 of the  Constitution have   definitely  held  that  where  the  existence  of   a Government  Order  is itself challenged by a person  who  is affected  by  it  the  burden  is  upon  the  Government  to establish that an order was in fact made by the Governor  in the  manner provided for in the rules of business framed  by the  Governor  under cl. (3) of Art. 166.  Even  my  learned brother  does  not say that in a case like the  present  the existence  of  the Governor’s order is not  required  to  be established  by  the State.  But according to him  here  the petitioners  have  not in fact denied the existence  of  the Governor’s  Order.   In  para 20 of  the  writ  petition  of Chitralekha she has definitely averred: "Even the Government Order   enabling  them  to  award  75  marks  is  not   made available"; and again in para 22 she stated: "As the  order, empowering them to award 75 marks as interview marks has  so far remained secret in that is has not been made  available, this                             399 Hon’ble  Court may be pleased to send for the same,  as  the order  falls to be quashed." In reply to these  averments  a counter-affidavit  was filed by Dr. J. J.  Dharmaraj,  Dean, Medical College and Chairman of the Selection Committee  for admission  to  Medical Colleges.  In para 4 thereof  he  has stated as follows:               "The Government by its letter No. PLM 531  MMC               63 dated the 12th July, 1963 directed that the               Selection Committee shall interview the candi-               dates  and  allot marks the maximum  of  which               shall be 25 per cent of the maximum marks  for               optional  subjects and laid down the  criteria               for allotting marks in the interview." It  is abundantly clear from this that reliance  was  placed not upon any order of the Governor but upon a direction con- tained in a certain communication addressed to the Selection Committee.   Mr. Varma, Deputy Secretary to  the  Government also  filed a counter-affidavit in para 36 of which  he  has stated as follows:



             "The Government gave a direction by its letter               No. SD 25 THL 63, dated 6th July, 1963 to  the               Director of Technical Education (copy of which               is marked as, Annexure IV) that in addition to               the  examination  marks in the  Optional  sub-               jects,   there  should  be  an  interview   of               candidates in which the maximum marks allotted               would  be 25 per cent of the maximum  for  the               optional subjects.  A similar letter was  sent               by  the Government to the Selection  Committee               for admission to Medical Colleges." Thus,  here  again, there is no positive averment  that  the Governor  had  made  an order  providing  for  interview  of candidates  who, had applied for admission to  Medical  Col- leges.   The only other place where the appellants’  allega- tions are dealt with is para 44 of Mr. Varma’s a affidavit:               "The Allegations made in some of the petitions               that only the first Government Order  embodied               the decision of the Government and the  second               Government Order did not embody the decision               400               of the Government but only the decision of the               Minister for Education, is untenable.  When an               order is issued in the name of the Governor, I               submit  it  is  not  permissible  to   enquire               whether  any advice, and if so,  what  advice,               was tendered by any Minister to the Governor." Here, what the Deputy Secretary has done is merely to  state the  legal  position without affirming  definitely  that  an order had in fact been made in the name of the Governor.  It may  be  mentioned  that the two  orders  dealing  with  the classification  of backward classes and reserving  seats  in technical  institutions were in fact issued in the  name  of the  Governor  on July 26, 1963 and copies of  those  orders have  been  placed on record.  They are in  the  appropriate form.   If  a similar order had actually been  made  by  the Governor  there  is no reason why it should  not  have  been filed.  Even in this Court the Assistant Government Advocate has  filed on behalf of the State only a copy of the  letter sent  by a Secretary to the Government and has not only  not produced  a  copy of the Governor’s Order but has  not  even alleged  that  such  order exists.  Nor  again,  during  the arguments   did   the  learned   Attorney-General   make   a categorical statement that the Governor had made an order in regard  to the interviews.  That may be because he  has  not been  instructed to say that such order in fact exists.   We have  given  no opportunity to the appellants  to  file  any further  affidavit  after the production before  us  of  the Secretary’s letter.  In this state of the material on record can it then be said that the burden which was upon the State to  establish the existence of an order of the Governor  has been  discharged?   I do not think that we  can  ignore  the omission of the State to aver categorically that there is in existence an order of the Governor or to make any attempt to produce  it  or  to seek an  opportunity  to  establish  its existence  by other evidence.  If there is an order  of  the Governor  dealing  with the matter nothing would  have  been easier than saying so and either to produce the original  or its  copy or to establish its existence by  other  evidence. The  whole  tenor of the affidavits filed on behalf  of  the State  as well as of the argument advanced before us  leaves no doubt in my mind that an that there is on the subject  is the aforesaid letter of the                             401 Secretary  to the Selection Committee and nothing more.   In



no  case  has this Court held that such a  document  can  be treated as the Governor’s order or even evidence of the  ex- istence of the Govrnor’s order. The  two  other cases of this Court on  which  reliance  was placed  are: The State of Bombay v. Purshottam  Jog  Naik(1) and  Ghaio  Mail and Sons v. The State of  Delhi  (2)  which purport  to  follow Pangarkar’s case(3) also  underline  the necessity of proof of the existence of the Governor’s  Order when what is relied upon is defective in form.  It is  these reasons which impel, me to differ from my learned brother on the second point dealt with by him in his judgment. What  I  have said above is sufficient for  the  purpose  of disposing  of both the appeals.  But in view of the  import- ance of one of the other points on which my learned  brother has expressed his opinion, I would say a few words. That  point concerns the power of the Government of a  State to  prescribe  by  an  executive  order  the  standards  for selection   of   candidates  for  admission   to   technical institutions   affiliated  to  a  university.    In   Gujrat University  v. ShriKrishna(4) the question which was  raised in  this Court was whether the Gujrat University  could  lay down and impose Gujrati and/or Hindi in Devnagari script  as exclusive   media   of  instruction   and   examination   in institutions  other than those maintained by the  University and   institutions   affiliated  to   the   University   and Constituent colleges.  One of the important arguments raised in  that  case  was that under Entry 166 of List  1  of  the Seventh   Schedule   the   power   of   co-ordination    and determination  of  standards  in  institutions  for   higher education   or   research  in   scientific   and   technical institutions.  was conferred upon Parliament and that  these matters must be regarded as having been excluded from  entry 11 of List 11 of that schedule, which runs thus: "Education,  including  universities, subject  to  the  Pro- visions of Entries 63, 64, 65 and 66 of List 1 and Entry  25 of List III." (1) [1952] S. C. R. 674.   (2) [1959] S.C.R.1424. (3) [1952] S. C. R. 612. (4)  [1963] Supp. 1 S.C.R.112. 134-159-S.C.-26 402 In  the  course of his judgment, Shah Y., speaking  for  the majority  (my  learned  brother Subba  Rao  J.,  dissenting) observed:               "It  is  manifest  that  the  extensive  power               vested  in  the  Provincial  Legislatures   to               legislate  with respect to  higher  scientific               and  technical  education and  vocational  and               technical   training  of  labour,  under   the               Government   of   India  Act  is   under   the               Constitution  controlled by the five items  in               List  1 and List III mentioned in item  II  of               List  H. Items 63 to 66 of List I  are  carved               out of the subject of education and in respect               of  these  items  the power  to  legislate  is               vested exclusively in the Parliament Power  of               the State to legislate in respect of education               including  Universities must to the extent  to               which it is entrusted to the Union Parliament,               Whether  such  power is exercised or  not,  be               deemed  to  be restricted.  If  a  subject  of               legislation is covered by items 63 to 66  even               if it otherwise falls within the larger  field               of ’education including universities power  to               legislate  on that subject must lie  with  the



             Parliament.   The plea raised by  counsel  for               the  University and for the State  of  Gujarat               that  legislation  prescribing the  medium  or               media in which instruction should be  imparted               in  institutions  of higher education  and  in               other institutions always falls within item II               of  List II has no force  Item II of  List  II               and  item  66 of List I must  be  harmoniously               construed.    The  two   entries   undoubtedly               overlap: but to the extent of overlapping, the               power  conferred  by item 66 of  List  I  must               prevail over the power of the State under item               11  of  List  11.  It  is  manifest  that  the               excluded  heads deal primarily with  education               in   institutions  of  national   or   special               importance   and   institutions   of    higher               education   including   research,    sciences,               technology   and   vocational   training    of               labour.............  Power  to  legislate   in               respect of               403               medium  of  instruction  is,  however  not   a               distinct legislative head; it resides with the               State  legislatures  in  which  the  power  to               legislate on education is vested, unless it is               taken  away  by necessary  intendment  to  the               contrary.   Under items 63 to 65 the power  to               legislate in respect of medium of instruction,               having  regard  to the width of  those  items,               must be deemed to vest in the Union.  Power to               legislate in respect of medium of instruction,               in  so far it has a direct bearing and  impact               upon the legislative head of co-ordination and               determination of standards in institutions  of               higher  education or research  and  scientific               and  technical  institutions,  must  also   be               deemed  by item 63 of List I to be  vested  in               the Union." (p. 715). (italics mine) What  I have quoted above and particularly the words  occur- ring  in  the  earlier part of the quotation  and  those  in italics would make it clear that this Court has emphatically laid  down  that  where the question  of  co-ordination  and determination  of standards in certain institutions  like  a medical  college  is concerned the power is  vested  in  the Parliament and even though Parliament may not have exercised that power the State Legislature cannot step in and  provide for  the determination and co-ordination of  standards.   It seems to me that by requiring the Selection Committee to add to  the  marks  secured  by the  candidates  at  the  P.U.C. Examination the marks awarded by the Selection Committee for the  interviews  and prepare a fresh order of merit  on  the basis  of the total marks so arrived at the State  would  be quite  clearly interfering with the standards for  admission laid  down  by  the University.  It seems  to  me  that  the standard  of any educational institution would certainly  be affected  by  admitting to it candidates of  lower  academic merit  in preference to those with higher academic merit  by using the devious method of adding to the qualifications  of less  meritorious candidates marks at the discretion of  the selectors  on  the  basis  of interviews.   This  is  not  a universal  practice in institutions of higher  or  technical education  in  the country and by adopting it the  State  of Mysore has provided 404 a standard of its own for admission of students to such ins-



titutions.   It  is  evidently with a view  to  prevent  the happening of such things that our Constitution has  excluded matters  pertaining to standards in institutions  of  higher education  and some other institutions from the  purview  of the State legislatures.  The second portion in italics by me in the above quotation makes it clear that according to  the majority of this Court the power to legislate in respect  of matters  such  as  the medium of instruction  which  have  a direct  bearing  and  impact upon the  legislative  head  of coordination   and   determination  of  standards   in   the institutions  referred to in item 66 of List I is vested  in the Union.  Therefore, in each case it will be for the Court to  consider  whether what is being sought to be done  by  a State legislature will have a direct impact upon entry 66 of List  1.  In  my  judgment  where  any  law  of  the   State legislature  seeks to vary academic standards for  admission to  institutions  of the kind referred to in  Entry  66  its action has a direct bearing upon that entry and the power in this regard is excluded from the purview of entry 11 of List 11. I may quote a part of paragraph 24 of the majority  judgment which my learned brother has quoted.  It reads thus:               "The  State  has the power  to  prescribe  the               syllabi   and   courses  of   study   in   the               institutions  named  in  entry  66  (but   not               falling  within  entries 63 to 65) and  as  an               incident thereof it has the power to  indicate               the  medium  in which  instruction  should  be               imparted.   But  the Union Parliament  has  an               over-riding  legislative power to ensure  that               the  syllabi and courses of  study  prescribed               and   the  medium  selected  do   not   impair               standards of education or render the  co-ordi-               nation  of  such standards either on  an  All-               India  or  other  basis  impossible  or   even               difficult." Can it be said that this and other passages in this judgment show  that  according to the majority the law  made  by  the State Legislature by virtue of entry 1 1 of List II would be bad  only  if  it  makes  it  impossible  or  difficult  for Parliament to exercise its legislative power under entry  66 of List I? Does the judgment mean that it has to be ascertained in each case whether the impact of the State law providing for  such standards  is so great on entry 66 of List I as  to  abridge appreciably  the central field or, does it not  follow  from the  judgment  that if a State Legislature has  made  a  law prescribing a different, even higher, percentage of marks or prescribing marks for extra-curricular activities, it  would be directly encroaching on the field covered by entry 66  of List  I ? The majority judgment after saying what  has  been quoted above proceeds thus:               "Though the powers of the Union and the  State               are  in  the  exclusive  lists,  a  degree  of               overlapping is inevitable.  It is not possible               to  lay  down  any general  test  which  would               afford  a  solution for every  question  which               might arise on this head.  On the one hand, it               is certainly within the province of the, State               Legislature  to prescribe syllabi and  courses               of study and of course to indicate the  medium               or  media of instruction.  On the other  hand,               it  is also within the power of the  Union  to               legislate  in respect of media of  instruction               so    as   to   ensure    co-ordination    and



             determination of standards, that is, to ensure               maintenance or improvement of standards.   The               fact  that  the Union has not  legislated,  or               refrained from legislating to the full  extent               of  its power does not invest the  State  with               the power to legislate in respect of a  matter               assigned by the Constitution to the Union.  It               does not, however, follow that even within the               permitted  relative fields there might not  be               legislative provisions in enactments made each               in   pursuance  of  separate   exclusive   and               distinct  powers  which  may  conflict.   Then               would  arise  the question of  repugnancy  and               paramountcy  which may have to be resolved  on               the  application of the ’doctrine of pith  and               substance        of        the        impunged               enactment............  the validity  of  State               legislation  would  depend  upon  whether   it               prejudicially   affects   co-ordination    and               determination  of standards, but not upon  the               existence               406               of some definite Union legislation directed to               achieve that purpose." (p. 716). These  observations  do not seem to justify  the  conclusion that  it is only where the State law makes it impossible  or difficult  for Parliament to exercise its legislative  power under  entry 66 that the State law would be bad.   According to  the  decision of the majority the validity  of  a  State legislation  would  depend  upon  whether  it  prejudicially affects the coordination and determination of standards  and that  if  it  does so, that is  enough  to  invalidate  that legislation.  Interference with academic standards would  of necessity affect coordination and determination of standards amongst  institutions of similar type all over  the  country and,   therefore,  upon  the  view  taken  in  the   Gujarat University case(1) State legislation embodying previsions of the  kind referred to in the letter of the Secretary to  the Government to the Selection Committee would be bad. As I understand the decision what it means when it says that regard must be had to the pith and substance of a State  law to see whether it is in conflict with the powers of  Parlia- ment is that conflict must be the direct result of the State law  and  not one which is merely incidental.  It  does  not mean  that for ascertaining whether there is a conflict  one has  to  gauge  the force of the impact of a  State  law  on Parliament’s  power.   Thus  where  a law  is  in  pith  and substance ,one which will directly affect Parliament’s power to  coordinate and determine standards in  the  institutions comprised  in  entry  66 of List I it will  be  directly  in conflict  with it and the extent or force of  such  conflict will  make no difference.  Now just as prescribing a  medium of  instruction for being adhered to in  those  institutions would,  if  it has the effect of  affecting  the  standards, which   must   mean,   the  academic   standard   of   their institutions, produce a direct impact on Parliament’s  power under  the aforesaid entry, so would prescribing  interviews for admissions to these institutions, since admissions would thereby  be  made to depend on standards other  than  purely academic.   I  fail to see how else can the  impact  of  the State  law on Parliament’s power can be characterised.   The fact  that  raising of the interview marks from 25  in  the. past to 75 now (which we are told (1)  [1963] SUPP. 1. S.C.R. 112. 407



represents  25% of the total marks for the  P.U.C.  Examina- tion) has raised a furore, only highlights the directness of the  impact  which was there even when the  interview  marks were 25%.  To hold otherwise would mean that where interview marks  are  low in comparison with the total marks  for  the P.U.C.  Examination  the impact would be merely  oblique  or indirect  but by some process it will become direct, if  the marks are raised to a higher percentage, say 50 per cent  or even  100 per cent of the P.U.C. Examination marks.   Surely the  directness  of  the impact would not  depend  upon  its intensity. Again, the addition of interview marks to the marks  secured at the P.U.C. examination by a candidate for admission to an institution  of  the kind comprised in entry 66  of  List  I cannot   but  be  said  to  affect  the  standard  in   such institution.  An illustration would make it clear.   Suppose the  maximum P.U.C. -marks are 300 and interview  marks  are 600.   Could there be a doubt that the academic standard  of the institution would remain unaffected and that the  impact on  entry  66  is  direct ? Now, instead  of  600,  if  the, interview marks are only 30, would not the standard still be affected?  May be that the effect on academic merit would be much less than when the maximum interview marks   were   600 but still there would be some effect.  In ,either case   the effect   is  the  direct  consequence  of   the   additional requirement of an interview and therefore the impact of  the State law would be direct in both cases.  It is not as if  a consequence  which is direct can be regarded as  oblique  or indirect  just because it is less significant by  reason  of the  fact  that  the proportion of interview  marks  to  the P.U.C.  marks  is  low.  Therefore, whether  the  State  law affects  the  standards of such institutions  materially  or only   slightly  has  no  relevance  for  the   purpose   of determining whether it operates in an excluded field or not. The  only  test is whether or not the effect it has  on  the standards is direct.  That is how I understand the  majority decision of this Court. Even  upon  the  view that for a State law to  be  bad,  its impact  must be "so heavy or devastating as to wipe out  the central  field", I think that it is in fact of that kind  in this 408 case.  Already by reserving 48 per cent of the total  number of  seats  for  scheduled castes  and  tribes  and  backward classes the seats available for meritorious candidates  have been reduced to 52 per cent.  By providing in addition,  for dilution of -academic merit by bringing in considerations of the  kind  set out in the  Secretary’s  letter,  meritorious candidates   are   likely  to  be  placed   in   a   further disadvantageous  position.   According to  that  letter  the matters to be considered at the interview are:               (1)   General knowledge.               (2)   Aptitude and personality.               (3)   Previous   academic  career,   including               special  distinctions, etc.               (4)   N.C.C., A.C.C. etc.               (5)   Extra  curricular  activities  including               sports,  social service, debating,  dramatics,               etc. While  the first and the third of these matters would be  of some relevance in deciding who should be allowed a chance to be  future  doctors what relevance the other  three  matters have  it is difficult to appreciate.  Further "aptitude  and personality"  would be a matter entirely for the  subjective satisfaction of the selectors and is in itself quite  vague.



Then again the total marks under these heads are as high  as 75  and there is no allocation of marks under the  different heads.   Thus if the selectors choose to allocate say 30  or 40  marks for "personality" many meritorious candidates  may go  far down in the list prepared on the basis of the  total of marks at the interview and the P.U.C. Examination.  Since the number of marks for the interview is high and  according marks  for interviews and allocating marks  under  different heads  is  left  entirely for  the  Selection  Committee  to decide,  the impact of the alleged directive on the  central field  must  necessarily  be regarded as  heavy.   For,  its effect would be to lower further the already alarmingly  low standards in our educational institutions. Again, here what we have is not a State law but merely  what is  claimed to be an -executive fiat.  It is true that  Art. 162 says that the executive power of the State is  co-exten- sive with the power of the legislature to legislate and 409 this Court has held in Rai Sahib Ram Jawaya Kapur & Ors.  v. The  State of Punjab (1) that the power of the State is  not confined to matters over which legislation his already  been passed.  But neither Art. 162 nor the decision of this Court goes  so  far  as  to hold that the  State’s  power  can  be exercised  in  derogation  of  a law  made  by  a  competent legislature.   On the other hand the Court appears  to  have approved  of  the view taken by two learned  Judges  of  the Allahabad  High  Court in Motilal v. The Government  of  the State  of Uttar Pradesh (2) that an act would be within  the executive power of the State if -it is not an act which  has been  assigned by the Constitution to other  authorities  or bodies and is not contrary to the provisions of any law  and does  not encroach on the legal rights of any member of  the public.   Here we have the Mysore University Act, s.  23  of which provides that the Academic Council shall have power to prescribe  the conditions for admission of students  to  the University.  Now since a competent legislature has conferred this  power on a particular body the State  cannot  encroach upon  that power by its executive act.  Thus this is a  case where there is not merely an absence of legislative sanction to  the  action  of  the  State  but  there  is  an  implied limitation on its executive power in regard to this matter. Moreover,  while the Constitution permits the State  without the  necessity  of any law empowering it to do  so  to  make reservations  of seats for the benefit of  backward  classes and scheduled castes and tribes there is no provision either in  the Constitution or in any other law which empowers  the State Government to issue directions to selection committees charged with the consideration of applications for admission to  any  colleges as to what should be the basis  of  making admissions.   It was said that most of the medical  Colleges are  owned by the State and the State as the owner of  those Colleges was entitled to give directions to its officers  as to  the mode of selection of persons for admission to  those Colleges.   But it seems to me that the matter is not  quite as  simple  as  that.  Educational  institutions  which  are affiliated  to  the University must conform to  the  pattern evolved by the University and the proprie- (1) [1955]2 S. C. R. 225 (2) A. I. R. 1951 All. 257 (F.  B) 410 tors or the governing bodies of those institutions can claim no  right to adopt a different pattern.  The pattern set  by the   University  would  necessarily  be  affected  if   the standards of admission, teaching, etc., are varied by  those who run those institutions.  It is not material to  consider whether  either the object or effect of the addition  of  an



interview  for  selecting candidates for  admission  to  the institutions  is to improve upon the standards fixed by  the Academic  Council  For,  it is to that  body  to  which  the legislature  has  entrusted the whole matter.  It  was  said that  no objection to the Government’s action was  taken  by the  University.   What  is  important  is  not  whether  no objection  was  taken  by  the  University  but  whether  it consented to the action of the Government.  That it did  not consent  would  appear from the consent memo filed.  in  the High  Court on behalf of the University a copy of which  has been  filed in this Court after our judgment  was  reserved. Therein the counsel for the University has stated;               "Under  section  23(b) and section 43  of  the               Mysore  University Act read with section  2(a)               of  the same Act, the Academic  Council  alone               can  prescribe qualifications  for  admission.               ’Me  University is not consulted about  either               Exhibit ’D’ or increasing the interview  marks               to  25 per cent as per letter dated  6.7.1963.               Interview marks must also be treated as  marks               given to a subject." There  is  thus no substance in the plea made on  behalf  of the,  State.  This is an additional reason why I think  that the provision for interviews is not valid. My learned brother has dealt at length with the question  as to  the  value  of  interviews  in  the  matter  of   making admissions  to educational institutions.  I do not think  it necessary  to  pronounce any opinion upon that  question  in this  case  and would reserve it for a future  occasion.   I would  also likewise reserve my opinion on the other  points upon which he has expressed him-self excepting one, that is, as to the relevance of the consideration of caste in  deter- mining  the  classes which are  socially  and  educationally backward.   I  would only say this that it would not  be  in accordance 411 either  with  cl.  (1) of Art. 15 or cL (2) of  Art.  29  to require  the  consideration of the castes of persons  to  be borne  in  mind  for  determining  what  are  socially   and educationally backward classes.  It is true that cl. (4)  of Art. 15 contains ,a non-obstante clause with the result that power conferred by that clause can be exercised despite  the provisions  of  cl. (1) of Art. 15 and cl. (2) of  Art.  29. But that does not justify the inference that castes have any relevance in determining what are socially and educationally backward  ,communities.  As my learned brother  has  rightly pointed  out  the  Constitution  has used  in  cl.  (4)  the expression "classes" and not "castes". Upon  the view which I have taken on the two points  I  have discussed  the  appeals must be allowed and a  direction  be issued to the Selection Committee to make the selection  ,of candidates  solely  on  the basis of the  result  of  P.U.C. examination.  I would allow them with costs here as well  as in the High Court.                        ORDER BY COURT In  view of the judgment of the majority, the  appeals  fail and are dismissed.  There will be no order as to costs.