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TMI Blog1964 (1) TMI 68X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to be quashed. 5. This averment assumes that such an order was made. In the counter-affidavit filed by Dr. Dharmaraj, Dean, Medical College, and Chairman of the selection committee for admission to Medical Colleges, it is stated that the Government by its letter directed that the said selection committee shall interview candidates and allot marks the maximum of which shall be 25 per cent of the maximum marks for the optional subjects and laid down the criteria for allotting marks in the interview. In the paper-book as typed the description of the letter is omitted. But the learned Attorney-General stated that in the original the description is given and that is, PLM 531 MNC 63 dated 12th July, 1963. In the counter-affidavit filed by B. R. Verma, Deputy Secretary to the Government of Mysore, Education Department, Bangalore, after referring to Annexure IV, it is stated that a similar letter was sent by the Government to the Selection Committee for admission to Medical Colleges. It does not appear from the judgment of the High Court that learned counsel for the appellants denied the existence of such a communication in respect of Medical Colleges, but proceeded with his argument ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed 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 1952CriLJ955 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........................................ Article 166 directs all executive action to be expressed and authenticated in the manner therein laid down but an 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 Government must take a decision as to whether the detention order should be confirmed or not under section 11(1). 9. The same view was reiterated by this Court in The State of Bombay v. Purshottam Jog Naik 1952CriLJ1269 , where it was pointed out that though ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... niversity 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 ((1963) Supp. 1 S.C.R. 112). 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 an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wer. It is true that under s. 23 of the Mysore University Act, 1956, the Academic Council shall have the power to prescribe the conditions for admission of students to the University and, in exercise of its power, it has prescribed the percentage of marks which a student shall obtain for getting admission in medical or engineering colleges. The orders of the Government do not contravene the minimum qualifications prescribed by the University; what the Government did was to appoint a selection committee and prescribe rules for selection of students who have the minimum qualifications prescribed by the University. The Government runs most of the medical and engineering colleges. Excluding the State aided colleges for a moment, the position is as follows : The Colleges run by the Government, having regard to financial commitments and other relevant considerations, can only admit a specific number of students to the said Colleges. They cannot obviously admit all the applicants who have secured the marks prescribed by the University. It has necessarily to screen the applicants on some reasonable basis. The aforesaid orders of the Government only prescribed criteria for making admissions ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onists were appointed to the selection committee for the Engineering Colleges. By notification dated July 6, 1963, in respect of the Engineering Colleges and a similar notification issued in respect of the Medical Colleges, the Government prescribed that in addition to the examination marks in optional subjects there should be an interview of students for which the maximum mark prescribed shall be 25 per cent of the maximum marks of the optional subjects. The selection committee has to allot marks, having regard to general knowledge, aptitude and personality, previous academic career, including special distinctions etc., N.C.C., A.C.C., etc., extra-curricular activities including sports, social service, debating, dramatics etc. It is, therefore, clear that the Government by its order not only laid down a clear policy and prescribed definite criteria in the matter of giving marks at the interview but 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. 19. But learned counsel for the appellants raised a larger question that selection by interviews is inherently repugnant to the do ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ical board or a psychiatrist and should not be left to a body like the selection committee which cannot possibly arrive at the correct conclusion in a short time that would be available to it. This criticism does not affect the validity of the criteria, but only suggests a different method of applying the criteria than that adopted by the Committee. It is not for us to say which method should be adopted : that must be left to the authority concerned. If in any particular case the selection committee abuses its power in violation of Art. 14 of the Constitution, that may be a case for setting aside the result of a particular interview, as the High Court did in this case. We cannot, therefore, hold without better and more scientific material placed before us that selection by interview in addition to the marks obtained in the written examination is itself bad as offending Art. 14 of the Constitution. 21. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he State will make a more appropriate classification lest its bona-fides should be questioned. 22. Learned counsel contends that these observations are not supported by the decision in Balaji's 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 on the petitioners therein that the impugned 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 educa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sis 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ause (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. 29. 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 pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that in the absence of any Government order three 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 Government 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 b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 candidates seeking admission to Medical Colleges in the State. I am directed to state that Government have decided that 25 per cent of the maximum marks for the examination in the optional subjects taken into account for making the selection of candidates for admission to Medical Colleges, shall be fixed as interview marks. I am further to state that the Selection Committee is authorised to allot marks for the interview of the candidates as fixed above, having re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 no power to order that to be done de hors an order of the Government. It is for this reason that he has made a reference to such an order. But that order is not before us. It was said by the learned Attorney-General that the existence of the order was not denied by the appellants. But that is not correct. Right from the beginning they have been saying that there was no Government Order in so far as admission to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 form 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 wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s. v. The King-Emperor ((1947) F.C.R. 141, 154-9). 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 had 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. 38. 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 i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Hon'ble Court may be pleased to send for the same, as the order falls to be quashed. In reply to these averments a counter-affidavit was filed by Dr. J. J. Dharmaraj, Dean, Medical College and Chairman of the Selection Committee for admission to Medical Colleges. In para 4 thereof he has stated as follows : The Government by its letter No. PLM 531 MMC 63 dated the 12th July, 1963 directed that the Selection Committee shall interview the candidates and allot marks the maximum of which shall be 25 per cent of the maximum marks for optional subjects and laid down the criteria for allotting marks in the interview. 42. It is abundantly clear from this that reliance was placed not upon any order of the Governor but upon a direction contained in a certain communication addressed to the Selection Committee. Mr. Varma, Deputy Secretary to the Governmen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... act 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 all that there is on the subject is the aforesaid letter of the Secretary to the Selection Committee and nothing more. In no case has this Court held that such a document can be treated as the Governor's order or even evidence of the existence of the Governor's order. 45. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 11 of List II has no force......... Item 11 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 II. It is manifest that the excluded heads deal primarily with education in i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns. 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 I. 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 II. 50. I may quote a part of paragraph 24 of the majority judgment which my learned brother has quoted. It r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere 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 impugned enactment,......... the validity of State legislation would depend upon whether it prejudicially affects co-ordination and determination of standards, but not upon the existence of some definite Union legislation directed to achieve that purpose. (p. 716). 52. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ram Jawaya Kapur Ors. v. The State of Punjab [1955]2SCR225 that the power of the State is not confined to matters over which legislation has 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 AIR1951All257 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 legisl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nterview marks must also be treated as marks given to a subject. 59. 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. 60. 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 himself excepting one, that is, as to the relevance of the consideration of caste in determining the classes which are socially and educationally backward. I would only say this that it would not be in accordance either with clause (1) of Art. 15 or clause (2) of Art. 29 to require the consideration of the castes of persons to be born in mind for determining what are socially and educationally backward classes. It is true that clause (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 clause (1) of A ..... X X X X Extracts X X X X X X X X Extracts X X X X
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