C. S. Rowjee v. State of Andhra

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 l·rdcr 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 ad .. mission to an Engineering College. The document which is relied on by 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 state ment 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 Guiarat Univtrsity v. Shri Krishna, [1963] Supp. J S.C.R. 112, establishes that the power to provide for co ordination 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 admission of candidates to such institutions as is done in the present It constitutes an interference with the standards of admission laid case. down by the University. (iv) The executive power of the State which is co-extensive with legislative power under Art. 162 of the Constitution cannnt be exercised where such exercise is contrary to law or where it has been assipied to 372 SUPREME COURT REPORTS 1964 other authorities or bodies. Section 23 of the Mysore University Act, R. Chltraltkha provides that the Acadamic Council shall have power to prescribe the conditions of admission to the University and therefore the executive v. Slate of Mysort cannot encroach on this power. Rai Sahib Ram Jawaya Kapur v. State of Punjab, [1955) 2 S.C.R. 225 and Motl/a/ v. Government of State of Uttar Pradesh, A.I.R. 1951 All 259 (F.B.). (v) It would not be in aecor'dance with cl. (!) of Art. IS or cl. (2) of Art. 29 to require the consideration of the caste of persons to be home in mind for determining what are socially and educationally backward classes. CIVIL APPELLATE JURISDICTION: Civil Appeals Nos. 1056 and 1057 of 1963. Appeals by special !eave 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. Iyengar and B. R. G. K. A char, for the respondents (in both the appeals). Jaruary 29, 1964. The Judgment of B. P. Sinha, C.J., K. Sobba Rao, N. Rajagopala Ayyangar and Raghubar Dayal JJ. was delivered by Sobba Rao J. Mudholkar J. delivered a dissenting opinion. SUB BA RAo J .-These two appeJls 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 Statei of Mysore there are a number of Engineering and Medical Colleges-most of them are Gov ernment Colleges and a few of them are Government aided Colleges. The State Government appointed a common selection committee for settling admissions to the Engineer ing 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 $ubba Rao I. 1964 R. Chitraltkha v. State of My1oro Subba Rao /. 6 S.C.R. SUPREME COURT REPORT'. 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 maxi mum 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 inter view 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 C9lleges. 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 Engineering and Medical Colleges. Some of the candidates whose applications for admission to the said colleges were rejected filed petition> 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 petitioners, held that the orders defining backwardness were valid and that the criteria laid down for interview of student~ were good; but it held that the selection committee had abused the powers conferred upon it and on that find ing set aside the interviews held and directed that the appli cants shall be interviewed afresh in accordance with the s.cheme 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. for admission We shall now proceed _to deal with .the various conten· tions raised by learned counsel for the appellants. Learned counsel for the appellants contends that the Government did not issue any order to the selection com- 374 SUPREME COURT REPORTS [1964] 1964 R. Chitralekha v. 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 daited July 6, 1963, relates Sldte of Mysore to award of marks for the interview of candidates seeking admission to Epgineering Colleges and Technical Institu Subba R"" I. It was a letter written by the Secretary to the Gov tions. ernment of Mysore, Education Department, to the Director of Technical Education in Mysore, Bangalore. Therein the Government fixed the percentage of marks to be allotted nt 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 social service, debating, dramatics, etc. sports, But at the time of arguments no letter written by the Gov ernment in respect of admissions to Medical Colleges was pl!lced 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 pa•: 22 the following statement ~s 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, 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 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 196' R. Chitraltklut v. State of My1or Subba Rao J. 6 S.C.R. SUPREME COURT REPORTS 375 letter is omitted. But In the paper-book as typed the marks in the interview. learned description of the Attorney-General stated thaf in the original the description is given and that is, PLM 531 MNC 63 dated 12th July, In the counter-affidavit filed by B. R. Verma, Deputy 1963. 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 nroceeded 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 In the circumstances we directed that such an order existed. the Attorney-General to file the said order. A copy of th¢ letter written by the Government bas since been filed and it clearly shows that the relevant instructions were issued in respect of admission to Medical Colleges also. We, there fore, hold that the Government sent a letter similar in terms to annexure rv' 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 material part thereof. usir, Sub : Award of marks for ·the "interview" of the candi dates seeking admission ~o Engineering Colleges and Technical Institutions. With 63/2491, dated the 25th June, 1963, on reference to your letter No. AAS. 4.ADW I the subject 376 SUPREME COURT REPORTS [r¢4] l964 mentioned above, I am directed to state that Government R. c1111roltkha have decided that 2S per cent of the maximum marks ...... v. SI.,, of M710N .fu6611 Rao I. Yours faithfully, Sd/- S. NARASAPPA, Under Secretary to Government, Education Department." Ex facie tJ:iis letter shows that it was a communication of the order issued by the Government under the signature of the Under Secretary to the Government, Education Department. Under Art. 166 of the Constitution all exe cutive action of the Government of a State shall be expressed to be taken in th.e name of the· Governor, and that orders made in the name-Of the Governor shall be authenticated in such , manner as mlly be specified in rules to be made by the Governor and the validity of an order , which is au~enticated shall not be called in question on the ground that 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 that 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 that order. The law on the could be held pursuant to In Dattatreya Moreshwar Pangarkar subject is well-settled. v. The State of Bombay (1) Das 1., as he then was, observed: ·, "Strict compliance with the requirements of article 166 gives an immunity to the order in that it can not 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 al! executive action to be expressed and authenti cated in the manner therein laid down but an (') [1952] S.C.R. 612, 625. 1 r, S.C.R. SUPREME COURT REPORTS 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 ernment must take a decision as to whether the detention order should be confirmed or not under section 11 (I ) . " 1964 R. Chitraltkha v. State of Myio,. Subba Rao I. The same view was reiterated by this Court in The State of Bombay v. Purshottam Jog Naik('), 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 reaffi:/med by this Court subsequent decisions: see Ghaio ,.!all and Sons v. The State of Delhi( 2 ), ~nd 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 ) does not help the appellants, for in that case Pun;ab( 8 the order signed by the Revenue Minister was not commu nicated to the party and, therefore, it was held that 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 commu nicated to the selection committee. In neither of the affi davits filed by the 39pellants there was any specific aver In ment that no such order was issued by the_ Government. 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. (') f •9591 S. C. R. 1424. (') 1962) Supp, 3 S. C.R. 713. SUPREME COURT REPORTS 1964 - issued to the selection committee for admissions to Medical R. Chitralekha Colleges and this averment was not denied by the appel In the circumstances when State 0/· Mysore !ants by filing any affidavit. there are no allegations at all in the affidavit that the order Suhba Rao J. 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 commi~tee 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 exe cutive power extends to matters with respect to which the Legislature of the State has power to make laws, the argu- ment 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 ~dmission 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 t~Court in Gujarat University v. Shri Krishna('). · There, one of the questions raised related to alleged conflict between entry 1 l. 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 Cons- titution, the State Legislature has power to legislate in res- pect of education including Universities subject to the provisions of items 1, 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 ind technical institutions. (1) [1963) Supp. I S. C.R. 112. - 6 S.C.R. SUPREME COURT REPORTS 379 The question was whether medium of instruction wa> comprehended by either of those entries or whether it fell R. under both. In that context it was observed at p. 715-716: 1964 Chitralekha v. State of Mysor~ Subba Rtzo J. "The State has the power to prescribe the \ yllabi ana courses of study in the institutions named m entry 66 (but not falling within entries 63 thereof it has the to 65) and as an incident power to indicate the medium in which instruc tion should be imparted. But the Union Parlia ment has an overriding legislative ipower to en sure that the syllabi and courses of study pres cribed 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." institutions" This and similar other passages indicate that if the law made by the State by virtue of entry l l of List II of the Seventh Schedule to the Constitution makes impossible or difficult the exercise of the legi:;iativ0 power of the Parlia ment under the entry "Co-ordination and determination of standards in institutions for higher education or research and scientific and technical reserved to the Union, the State law may be bad. This cannot obviously If be decided on speculative and hypothetical reasoning. the impact of the State !aw providing for such standards on entrv 66 of List I is so heavy or deva1tating 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 It is not possible to hold that if a Staite legisla each case. ture made a law prescribing a higher percentage of marks for extra-curricular activities in the matter of admission to colleges, 1t would be directly encroaching on the field covered by entry 66 of List I of the Seventh Schedule to the Cons If <o, it is not disputccl that the State Govern titution. ment 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 SUPREME COURT REPORTS [rg64] 1964 'f• M It is true that under s. 23 · of the Mysore University Act, R. Chitralekha 1956, the Academic Council shall have the power to pres- cribe the conditions for admission of students to the Uni- 0 Stat• ~ ' ' " versity and, in exercise of its power, it has prescribed the percentage of marks which a student shall obtain for getting Subba Rao I. admission in medical or engineering colleges. The orders of the Government do not contravene the minimum quali fications prescribed by the University; what the Govern ment did was to appoint a selection committee and pres cribe rules for selection of students who have the minimum qualifications prescribed by the University. The Govern ment runs most of the medical ~nd engineering colleges. Excluding the State aided colleges for a moment, the po:H tion 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 It has necessarily to screen the applicants on University. some reasonable basis. The aforesaid orders of the Gov ernment 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 9rivate owner of a College will have, and the Government which runs its own Colleges cannot be denied that power. receiving aid Even so it is argued that the same power cannot be exer in respect of private Colleges cised by the Government from the State. But the though they are management of aided institutions have not raised any objec tions. 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 ot regulating admission of students to the colleges in question. 1964 R. Chitralek/u; y, State of My1ort Subba Rao I. 6 S.C.R. SUPREME COURT REPORTS • 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 qualifir.d 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 neces sary to notice how the interview is held and the criteria laid down for the selection committee to adopt. The Govern ment by its or~er dated May 17, 1963 constituted a com mittee consisting of the following members for selection to Government Medical Colleges: (I) The Dean, Medical College, Mysow-Chairman. (2) The Dean, Medical College, Bangalore-Member. (3) The Dean, Medical College, Hubli-Mem1Jer. Sq too, highly qualified edµc.ationists 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 option.al 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 acti vities including sports, social service, debating, dr:\matics etc. It is, therefore, clear thlt the Governme'lt by its order not only laid down a clear policy and prescribed definite criteria in the matter of giving marks at the interview but SUPREME COURT REPORTS 1964 selection on also appointed competent men to make the R. Chitra/ekha that basis. The order of the Government does not in any 5101, ~· Myior• way contravene Art. 14 of the Constitution. • Subb• Rao J. 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 Cons titution, for, whatever may be the objective test laid down, in the fiool analysis the awarding of marks is left to the subjective satisfaction of the selection committee and, there fore, it gives ample room for discrimination and manipula tion. We cannot accept such a wide contention and con . demn one of the well-accepted modes of selection in edu James Hart in his "An Introduction cational institutions. to Administrative Law" observes, at p. 180 thus: "A test or examination, to be competitive, must employ an objective standard of measure. Where the st3ndard or measure is wholly sulJ 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 edu cationists stand by the marks obtained by a student in the annual examination. The modern trend of opinion insists upon other addition.al tests, such as interview, performance in extra-curricular activities, personality test, psychiatric tests etc. Obviously we are not in a position to judge which If method is preferable or which test is the correct one. there can be manipulation or dishonesty in allotting marks at interviews, there can equally be manipulation 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 is ca?able of abuse in practice. That 1964 R. Chitralekha v. Stdte of Mysore Subba Rao 1. 6 S.C.R. SUPREME COURT REPORTS not a ground· for quashing it. So long as the order lays down relevant objective criteria and entrusts the business ol 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 con tends that the ability of a student on the basis of the said criteria can be better judged by other methods like certi ficate from the N.C.C. Commander or a medical board or a psychatrist and should not be left to a body like the selec tion 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. selection committee abuses its power in violation of Art. 14 of the Constitution, that may be a case for setting aside tile result of a particular interview, as the High Court did in this case. We cannot, therefore, hold without better anc! 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 Con stitution. If in any particular case 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 pro ceeds, are not corrected, the State may be bound by such observations in the matter when it finally prescribes 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 back ward 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 agri services, crafts or other culture petty business, inferior SUPREME COURT REPORTS [1g64] . ) d _ k "· State of Mysor• 1964 occupations involving manual Jabour. are in general, socially, R. Chitral•kha economically and educationally backward. The Govero- ment lists the following occupations as contributing to social . bac war ness: (1 actual cultivator; (2) artisan; (3) petty Subbn Ran I. businessmen; (4) inferior services (i.e., Class IV in Gov ernment services and corresponding class or service 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 conllicting arguments were advanced in support of this order as well as against it. The High Coul't heavily relied upon the decision of this Court in M. R. Balaji v. The State of Mysore(') and came scheme adopted by the State was a very imperfeot scheme and that in addition to the occupation and poverty tests, the State should have adopted the "caste" test as we!l 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: the conclusion "But I earnestly hope that soon the State will make a more appropriate classification lest its bona fides should be questioned." Learned counsel contends that these observations are not supported by the decision in Ba/aji' 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 communi It was argued before this Court on behalf of the peti· ties. ( 1) [196al Supp. I s. c. R. 439. 6 S.C.R. SUPREME COURT REPORTS 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 enumerat ing the socially and educationally backward classes of citizens in the State was unintelligible and irrational, and the classi· fication 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: 1964 -· R. ChttrakU. "· State of M71t1tS Subba Rao I. "The backwardness under Art. 15(4) must be social It is not either social or and educational. educational, but it is both' social and educa tional; 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 ........... . . . . . . . . . . . . . . . . . . . Therefore, in dealing with the question as to whether any class of citizens is socially backward or not, it may not be irrelevant to consider the caste of the said In this connection it is, how group of citizens. ever, 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 should not be be relevant, its importance If the classification of backward exaggerated. 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 themselve&. 134-159 S.C.-25 1964 R. C"itralekha y, 111111 of My1ore lubbo Rao 1. SUPREME COURT REPORTS [1g64J relation 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 to many inevitably break down in 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 deter mining 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 back wardness of a class of citizens, the High Court said that it is an imwrtant 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 backward ness of a class and there is nothing in the judgment of this Court which precludes the authority concerned from deter mining the social backwardness of a group of citizens if it can do so without reference to caste. While this Court has nc;it 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 6 S.C.R. SUPREME COURT REPORTS 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. 1964 R. Chitrakki.. Y. State of M1MIN Subba Rao/, The Constitution of India promises Justice, social, , economic and political; and equality of status and vf oppor tunity, among others. Under Art. 46, one of th: Articles in Part IV headed "Directive Principles of Sta'e Po!i;y", the Seate shall promote with special care the ~.:ucational 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 the puJ:1?oses of or tribes which shall for this Constitution be deemed to be Scheduled Castes in to that State or Union relation 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: "Nothi11g in this article or in clause (2) of article 291 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 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 back ward 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 - 196" lubba Rao I. SUPREME COURT REPORTS [r964] as to eff~ctuate the said policy but not to give weightage to R. Chitraldllo progressive sections of our society under the false colour of 1161, 0/· Myior1 caste to w?ich t~ey happen to belong. The important factor to be noticed m Art. 15 ( 4) is that it does not speak of If the makers of the castes, but only speaks of classes. 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 wi.th castes, nothing prevented the makers the expression "backward of the Constitution from using classes or castes". The juxtaposition of the expression "back ward 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 par\icular 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 the class to which he or they criterion for ascertaining 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 parti cular caste a majority whereof is socially and educationally backward, really belong to a class which is socially and educationally advanced. To illustrnte, 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 socially and educationally backward, an effective minority may be socially and educationally far more advanced than another sll).all sub-caste the total number of which is far less than the said minority. interpret the expression If we "classes" as "castes", the object of the Constitution will be frustrated and the people who do not deserve any adventi tious 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 considera tions to ascertain whether a person belongs to a backward 1964 R. Chltrald;,,. ... Stall of M,_. 8ub6a Rao J Jladlt..U. 1. 6 S.C.lt SUPREME COURT REPORTS 389 . On the other hand, if the entire sub-;aste, class or not. by and large, is backward, it may be included Scheduled Castes by following the appropriate procedure laid down by the Constitution. We do not intend to Jay down any inflexible rule for the laying down of criteria· for Government to follow. The ascertainment of social and educational backwardness of a class is a complex problem depending upon many circums· tances which may vary from State to State and even from place to plaC:e in a State. But what we intend to empha size 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 ma)ce it clear that if in a given situation caste is ex· cluded in ascertaining a class within the meaning of Art. 15 ( 4) of the Constitution, it does not vitiiµe the classifica tion if it satisfied other tests. In the result, the appeals fail and are dismissed. There will be ao order as to costs. MummLKAR J .-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 ulti mate selection by adding marks upto 75 to the marks ac tually 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 pl.aced on behalf of the State is not a Government order at all as the document produced does nut comply with the requirements of Art. 166 of the Constitution, that no criteria were laid down for allotting marks ro the candidates at the interview, that this was a violation of Art. 14 of the Constitution, that the Govem· 390 SUPREME COURT REPORTS [rg64] 1964 lt Chltraltkha "· • ~1ateofM11ore th M _ Mudho/kar J. a e 1 · A th U · U · ysore mvers1ty · e mvers1ty a one ment was constitutionally incompetent to prescribe qualifica- tions for admission to Colleges under the University diffe rent from those prescribed by the University and that under h d h t e power to prescribe rules for admission to Colleges affiliated to the University. The High Court held against the appel lants 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 tlt1t after interview· ing the petitioners before it afresh their cases should be considered for admission by the Selection· Committee in In the course of accordance with the Government Order. its order the High Court has found fault with the Govern· ment for not taking the castes of the candidates into consi· deration 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 I regret my in and educational backwardness of a class. 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 !tad the power both under the Constitution and under a law enacted by the Legislature to prescribe quali fications for admission to any Colleges in the State, includ· ing colleges imparting technical or professional education, the first question is whether there was in fact a Government Ofder justifying the course adopted by the Selection Com It may be mentioned that the document which was mittee. filed in the High Court as being the Government Order was merely a communication addressed on behalf of the Gov ernment by one of its Secretaries to the Selection Committee and signed by an Under Secretary. But this document only 1964 "· R. Chitrahklw State of M1_. Mudholkar /. 6 S.C.R. SUPREME COURT REPORTS 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, th.at is, after judgment had been reserved Mr. Achar, Assis· tant Government Advocate, placed on record, what accord· ing 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 Commit It is tee dealing with admissions to the Medical Colleges. 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 To Sii, The Secretary to Government of Mysore, PH. Labour & Munl. Admn. Department, Bangalore. The Chairman, Selection Committee & Dean, Medical College, Mysore. S-'JBJECT.-Award of marks for the interview of the 1964 '· R. Cllitraldha ~of M7rort Mudholkar /. 392 SUPREME COURT REPORTS (1964] candidates seeking admission to Medical Col leges in the St.ate. 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 mto account for making 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. Apti!Ude and personality.

3. Previous academio career including special dis tinctions, etc. 4'. N.C.C., A.C.C., etc. S. Extra curricular activities including sports, social service, debating, dramatics, etc. I am also to state that Government have decided 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. & MI. Admn. 6 S.C.R. SUPREME COURT REPORTS 39:! 1964 R. Chitrahklra State of 11.,_ "· Mudholkar I. This is nothing more than a communication emanating from a Secretary to the Government of Mysore to the Chair man, and addressed to the Selection Committee and Dean, It is thus not an order of the Medical College, Mysore. kind contemplated by Art. 166 of the Constitution. That Article lays down that all executive actions of the Govern ment of a State shall be expressed to b~ taken in the name of the Governor and that the orders made and executed in the name of the Governor sh.all be authenticated in such manner :as may be specified in the rules made by the Gover It further provides that where an order is authenticated nor. 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 Gov ernment 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 inter view, 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 sign ed, says 1s 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 ;he name of the Governor, we do not know. The cases in which it has been held by this Court that the provisions of Art. l 66 ( 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 ( l) or of the rules framed by the Governor in the matter of authentication of an order, evidence aliunde could he Jed to establish that in fact an order was made by the Governor. This clearly, does not mean that the existence of a Govern ment order need not be established. On the contrary these decisions accept the position that the making of a Govern ment 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 foll owed by the Selection Committee. He has himself 394 SUPREME COURT REPORTS [1g64] 1964 v. M ence to such an order. But that order is not before us. no power to order that to be done de hors an order of the It is for this reason that he has made a refer- R. ChitralekhtJ Government. s It tale.!!!__ 1"'" was said by the learned Attorney-General that the existence of the order was not denied by the appellants. But that is Mudlwlkar J. not correct. Right from the beginning they have been say ing that there was no "Government Order" in so far as ad mission 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 u;mn · an affidavit by Dr. Dharamraj in which reference is made to the very com munication which I have reproduced earlier as being the If that is what is claimed to be !he "Governor's Order". Governor's Order, theI!j 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 Governor's -Order. In Bachittar Singh v. The State of Punjab(') 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 Governor'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(') 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("). The appellant's first conten tion must succeed and it must be held that the addition of i 1962] Supp. 3 S.C.R. 713. (') [1962] 2 S. C.R. 371. 1964 R. Chitralekha v. State of Mysort Mudholkar I. 6 S.C.R. SUPREME COURT REPORTS 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 Stflte of the petitioner who had In that case Bombay and Ors. (1). been deta,ined 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: require any "Section 11 ( 1) plainly requires an executive deci sion 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 the detention order and, for reasons confirm stated above, does not 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 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 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 petitioner passes on to Article 166 of the Con stitution and contends that all executive actio• of the Government of a State must be expressci - - - - - (1) [1952] S.C.R. 612. 1964 R. Chitral•lt:ha v. Stat• of My1or. Mudholkar /. SUPREME COURT REPORTS 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 fo1mal expression to the decision so taken. Usually executive decision is taken on the office files by way of notings or endorsements made by the If every execu appropriate Minister or officer. tive 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 Qarticular 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 nece>sary 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 I 66 does not make the decision itself illegal, for the provisions of that Article, like their counterpart in the Government of India 6 S.C.R. SUPREME COURT REPORTS 397 1964 R. Chitrakkha v. State of Mysore Mudholkar I. Act, are merely directory and not mandatory as held in J. K. Gas Plant Manufacturing Co. (Rampur) Ltd., and Ors. v. The King Emperor('). In my opinion, this contention of the learned Attorney-General must prevail. It is well-settled that generally speaking the pro visions 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 the validity of the acts them not affecting 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 befQre 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 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 executiv~ order, cl. (2~ lays down the manner in which such order is to be a?then~1cated 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 exe:~ted b~ the Governor. Also, according to him, the provIS10ns o -·------ --- -·----- ') (1947] F. C.R. 141, 154-9. 1964 R. Chitralekha v. State of Mysore Mudho/kar J. SUPREME COURT REPORTS cl. ( l) 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 protec tion which it would otherwise enjoy, had the proper mode for expression and authentication It could be challenged in any been adopted. 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 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 learned Judges who have dealt with the provisions of Art. 166 of the Constitu tion have definitely held that where the existence of a Gov ernment Order is itself challenged by a person who is affect ed 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 Gover nor 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 hM definitely averred: "Even the Government Order enabling them to award 7 5 marks is not made available"; and again "As the order empowering them in para 22 she stated: to award 75 marks as interview marks has so far re mained secret in that is has not been made available, this' 6 S.C.R. SUPREME COURT REPORTS 399 Hon'ble Court may be pleased tc 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: 196' R. ChitralelM "· Stat~ of MyMJtt MudhoU:ar 1. "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 directi0n con tained in a certain communication addressed to the Selec tinn Committee. Mr. Varma, Deputy Secretary to the Gov ernment 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 Jetter was sent by Government to the Selection Committee adl)lission to Medical Colleges." Thus, here again, there is no positive averment 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 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 1964 R. Chitralelcha v. State of My1ore Mudholkar 1. SUPREME COURT REPORTS [1g64] 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." reserving 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 seats in classification of backward classes and technical institutions were in faci issued in the name of the Governor on July 26, 1963 and copies of those orders have been placed on record. Thev 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 state ment that the Governor had made an order in regard to thll interviews. That may be because he has not been instructed to say that such order in fact exists. We have given no op portunity to the appellants to file any further affidavit after the production before us of the Secretary's letter. Jn this state of the material on record can it then be said that the burden which was upon the State to establish the existence I do of an order of the Governor has been dischi:rged'l not think that we can ignore the omission of the State to aver categoric.ally 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 exist ence 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 -R. CllJtnildho "· -111111/lolUr 1. S111t1 of M7MO 6 S.C.R. SUPREME COURT REPORTS 401 Secretary to the Selection Committee and nothing more. In llO case has this Court held that such a document can bo trr:ated as the Governor's order or even evidence of the ex istence of ·.the Governor's order. The two other cases of this Court on which reliance was placed are: The State of Bombay v. Purshottam Jog Naik(') and Ghaio Mall and Sons v. The State of De!hi(') which to follow Pangarkar's case(') also underline purpllrt 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 judg ment. 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 In Gujrat University v. Shri afliliated to a university. Krishna'(') the question which was raised in this Court was whether the Gujrat University could lay down and impose Gujrati and/ or Hindi i.n Devnagari script as excl!-!sive media of instruction and examination in institutions other those maintained by the University and institutions affiliated to the University and Constituent colleges. One of important arguments raised in that case was that under Entry 66 of List l of the Seventh Schedule the power of co-ordina tion and cetermination of standards in institutions for higher education or research in scientific •md technical institutions was conferred upon Parliament and that these matters· must 11 of be regarded as having been excluded from entry List II of that schedule, which runs thus: the · "Education, including universities, subject to the pro visions of Entries 63, 64. 65 and 66 of List I and Entry 25 of List ID." <'l r1952] S. C.R. 674, (") 11~52] S. C. R 612, ( 1) [1959] S. C.R. 1424. ·(') (1!)63] Supp. 1 'S. C.R. n:z. tM-159-S.C.-26 402 SUPREME COURT REPORTS [ 1¢4J Jiff In the c:oune al. his judgment, Shah J., speaking for the It Cllllrokl:llo majority (my learned brother Subba Rao J., dissenting) ""' ;,· lb«m observed: ,.,,;;;;;;., l · "It is manifest that the extensive power vested in . the Provincial Legislatures legislate with respect to higher scientific and technical educa tion and vocational and technical training of labour, under the Government of India Act is under the Constitution controlled by the five items in List I and List III mentioned in item 11 of List II. Items 63 to 66 of List I are oarved 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 extent to which it is entrusted to the Unioti Parliament, Whether such power Is exercised If a subject or not, be deemed to be restricted. of legislation is covered by items 63 to 66 even if it otherwise falls within the larger field of 'education legislate on that subject must lie with the Par liament. The plea raised by counsel for th8 University and for the State of Gujarat that legis iD lation prescribing the medium or media which instruction should be imparted in institu tions of higher education and in other institu tions always falls within item 11 of List II h~ no force. .......... Item 11 of List II and item 66 of List I must be harmoniously con 'The two entries undoubtedly overlap: strued. ~ut to the extent of overlapping, the power con ferred by item 66 of List I must prevail over tb._o power of the State under item 11, of List IL It is manifest that the excluded beads deal institutions of primari!y with education national 0r special importance and institutiom of high~r education including research, sciences. technology and vocational training of labour • • • • • • . . . . . . . Power to legislate in respect of including universities' power 6 S.C.R. SUPREME COURT REPORTS 403 JHf R. CM!hi.k• ,., medium of instruction is, however not a dmiru:t legislative head; it resides with the State legi~la- tures in which the power to legislate on educa- tion is vested, unless it is taken away by neces· State ~'1#0" sary intendment to the contrary. Under items MudhOlk01 J. 63 to 65 the power to legislate in respect of medium of instruction, having regard to 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-ordinatjon and determination of standard5 in institrdions 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." (italics mine) (p. 715). 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 lJid down that where the ·question of co-ordination and deter mination 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 It seems tlie determilllltion and co-ordination of standards. to me that by requiring the Selection Committee to add to die marks secured by ihe candidates at the P. U. C. Examina tion 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 It seems to me that the standard down by the University. ot any educational institution would certainly be affected by admitting to it candidates of lower academic merit in pre ference to ·those with higher academic merit by us,ing the devious method of adding to the qualifications of. less meritorious candidates marks at the discretion of the selec· tors on the basis of interviews. This is not a universal prac tice in institutions of higher or technical education in tht; country and by adopting it the State of Mysore has provided for admission 404 SUPREME COURT REPORTS ['l:g64] 19641 Mn411olblr I. a. standard of its own for admission of students to such ins- It is evidently with a view to prevent the happen titutions. R. Cliill'llkkfra "'*. o'f 1.17;,,,, · ing 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 above quotation makes it clear that according to the majo rity of this Court the power to legislate in respect of matters such as the medium of instruction which have a direct bear ing .and impact upon the legislative he.ad of coordination and determination of standard~ 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 Coutit to consider whether what is being sought to be done by a. State legislature will have In my judgment a direct impact upon entry 66 of List I. where any law of the State legislature seeks to vary aca demic standards for admission to institutions of the kind refe~ to in· Entry 66 its action has a direct bearing upon that entry and the power in this regard is excluded fm;n the purview of entry 11 of List II. I may quote a part of paragraph 24 of the majority It reads Judgment which my learned brother has quoted. thus: "The State has the power to prescribe the syllabi and courses of study in th.~ imtitntiom 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 Parlia ment has an overriding legislative power to en sure that the syllabi and courses of study pres cribed 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 11 of List II would be bad oruy if it makes it impossible or difficult for Parliament to exercise its legislative power under entry 66 of List I? 6 S.C.R. SUPREME COURT REPO'RTS 405 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 activitie£, 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: 1964 R. Chitr•l1k1"' v. Stall of MylON Mwlholkar I. the State Legislature "Though the powers of the Union and the State are in the exclusive lists, a degree of overlapping is ine·1itable. It is not possible to Jay 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 pro vince of to prescribe sy ;\a bi and courses of study and of course t<J indicate the medium or media of instruction. On the other hand, it is also within the power of the Union to Jegisbte 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 refrain ed from legislating to the full extent of power does not invest the State with the power to legislate in respect of a matter assigned by It does not, the Constitution to the Union. however, follow that even within the pennitted relative fields there might not be JeglGJJtive provisions in enactments made each :r:t1 p.i~u­ ance of separate exclusive and distinct powers which may conflict. Then would arise the ques tion of repugnancy and paramountcy which may have to be resolved on the application af the 'doctrine of impunged enactment, . . . . . . . . . . the validity of State legislation would depend· upon whether it prejudicially affects co-ordination and determi nation of standards, but not upon the existence rpith and substance' of 406 SUPREME a>URT REPORTS (1964] ""'4holk"7 (p. 716). to exercise its 1• difficult for Parliament of some definite Union legislation directed to lltU achieve that purpose." R. Chllraldllo s1a11 ofMJ"'" These observations do not seem to justify the conclusion that it is only where the State law makes it impossible or legislative power under entry 66 that the State law would be bad. Accord ing 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 th at if it does so, that is enough to invalidate that legislation. Inter ference with academic standards would of necessity affect coordination and determination of standards amc1g<t insti tutions of similar type all over the country and, therefore, upon the view taken in the Gujarat University case(') State legislation embodying provisions of the kind referred to in the letter of the Secretary to the Government to the Sekc'.ion 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 Parlia ment's power. Thus where a law is in pith and substance one which will directly affect Parliament's power to coordi nate 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. N "W 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 stan dards other than purely academic. I fail to see how else can the impact of the State law on l>arliament'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 <') [1963! Supp. 1. s.c.R. n:z. '"' R.C~, -Miul/lolw

11. Stot• ti/ "1.- I. .6 S.C.R. SUPREME COURT REPORTS 4rYJ 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 253. 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 rais~ 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 de pend upon its intensity. Again, the addition of interview marks to the marks secured at the P.U.C. examination by a candidate for ad mission 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- stan dard of the institution would remain unaffected and that th~ 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 interview would be much less than when the maximum marks were 600 but still there would be some effect. either case the effect is the direct consequence of the addi tional 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 obll que 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 br 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 -.R. . Cliin.J.1:1"' -· .. 'v. 11141• of My,,,,, Jllldliolkar I. 408 SUPREME COURT REPORTS [:1964) 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- dilu tion of academic merit by bringing in considerations of the kind set out in the Secretary's Jetter, 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, distinctions, etc. ( 4) N.C.C., A.C.C. etc. ( S) Extra cU!Ticular activities including specia! including !lpO[tS. 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 mark:s under these beads are as high as 75 and there is no allocation of marks under the diffe rent beads. 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 tho total of marks at the interview and the P.U.C. Examination. the interview is high and Since the number of marks for according marks for interviews and allocating marks under different beads 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 stan• &eds in our educational institutions. Again, here what we have is not a State Jaw 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-ez:ten· sive with the power of ~he legislature to legislate and 196' R. Chi1ra/1ku Stall of MylOr< "· M udholkar Ji b S.C.R. SUPREME COURT REPORTS 409 this Court has held in Rai Sahib Ram Jawaya Kapur cl Ors. v. The State of Punjab(') 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 Jaw 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 Motilr.1 v. The Government of the State of Uttar Pradesh(2) that an act would be within the executive power of the St<ite if it is not an act which has been assigned by the Constitution to ether authorities or bodies and is not contrary to the provisions of any law and does not encroach on the legll rights of any member of the public. Here we have the Mysore University Act, s. 23 of which provides that ,!he Academic. Council shall have power to prescribe the conditions for admission of student! to the University. Now since a competent legislature bas 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 ab,ence of legislative sanction to the action of the State but there is an implied !imitation 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 em powers the State Government to issue directions to selec tion committees charged with the consideration of applica tions 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 ad mission to those Colleges. But it seems to me that the matter is not quite as simple as that. Educational institu tions which are affiliated to the University must conform to the pattern evolved by the University and the proprie- · ~') [1955) 2 S. C.R. 22' (') A. I. R. 19s1 All. 257 (F. B) I 410 SUPREME COURT REPORTS [1964] v. 19d4 J. those institutions. tors or the governing bodies of those institutions can claim R. Chitralekha no right to adopt a different pattern. The pattern set by the University would necessarily be affected if the standards 811111 of Myior• of ad.mission, teaching, etc., are varied by those who run It is not material to consider whether lludholkar 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 It was said that no objection to the the whole matter. Government's action was taken by the University. What is important is not whether no objection was t1ken 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. The Uµiversity is not ~onsulted 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 tho '?fOvision for interviews is not valid. My learned brother bas dealt at length with the ques tion 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 I 6 S.C.R. SUPREME COURT REPORTS 411 1964 It is true that cl. ( 4) of Art, 15 contains either with cl. (1) of Art. 15 or cL (2) of Art. 29 to require the consideration of the castes of persons tto be borne in R. Chilraleklw mind for determining what are socially and educationally Stat• ofM"Jton backward classes. a non-obstante clause with 1the result that power conferred Mudholkar 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 bas rightly i;iointed out the Constitution has used in cl. ( 4) the expression "classes" and not "castes".

1. 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. I would allow them with costs here as well examination. 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. INCOME-TAX OFFICER, A-WARD, SITAPUR v. MURLIDHAR BHAGWANDAS, LAKHIMPUR KHERl (B. P. SINHA, C.J., K. SUBBA RAO, RAGHUBAR DAYAL, N. RAJAGOPALA AYYANGAR AND J. R. MUDHOLKAR JJ.) lncome Tax-Assessment or reassts!ment made under order or direction from higher authority must relate to the assessment o/ tlae year under revfcw:....__Mear.ing of "finding", "direction." and "any person'' Decision of lncome~tax Officer for a particular year not res judicata for subsequent year-Indian Income-tax Act, 1922 (11 of 1922), s. 34(3), provi•o-M<aning and ico~ of. The respondent was a firm carrying on business in different Jines. It was .. sessed lo income-tax under s. 23 ( 4) of tho Income· lax Act, 1922 for the assessment year 1949-50 on the ground that notices issued under ~. 22(2) aud ( 4) bad not been complied with. Later on, that assessment 1964 January, 29