R. Chitralekha and Anr vs State Of Mysore and Ors

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: Civil Appeals Nos. 1056 and 1057 of 1963

Decision Date: 29 January, 1964

Coram: B. P. Sinha, K. Subba Rao, N. Rajagopala Ayyangar, Raghubar Dayal, J. R. Mudholkar

In this matter the petition was styled R. Chitralekha and Anr versus State of Mysore and Others and the judgment was rendered on 29 January 1964 by the Supreme Court of India. The bench that heard the case consisted of Chief Justice Bhuvneshwar P. Sinha together with Justice Raghubar Dayal, Justice N. Rajagopala Ayyangar and Justice J.R. Mudholkar, and the case was also noted in the report of Justice Subbarao K. The official citation of the decision appears as 1964 AIR 1823 and 1964 SCR (6) 368, and the decision has been referenced in numerous subsequent reports identified by various reporter abbreviations. The headnote summarises the factual and legal background. By an order the Government of Mysore identified certain backward classes and directed that thirty per cent of the seats in professional and technical colleges and institutions be reserved for those classes, while eighteen per cent of the seats were to be allocated to the Scheduled Castes and Scheduled Tribes. The order further stipulated that the classification of socially and educationally backward classes should be determined on the basis of economic condition and occupation. Subsequently, the Government sent a letter to the Director of Technical Education stating that twenty‑five per cent of the maximum marks in the examination for optional subjects would be fixed as interview marks. The selection process was to be carried out by a committee composed of heads of technical institutions, and the committee was instructed to allot interview marks for factors such as general knowledge, personality and extracurricular activities of the candidates. Using those criteria the committee made selections for admission to engineering and medical colleges. A number of candidates whose applications for admission were rejected filed writ petitions before the High Court of Mysore seeking to set aside the Government orders and to compel admission strictly according to merit. The High Court dismissed the parties’ contentions on points of law but concluded that the selection committee had abused its power. Accordingly, the High Court directed that the petitioners be interviewed anew and that admissions be made in conformity with the Government order and the accompanying letter, both of which the High Court held to be valid. Before this Court the petitioners contended that the Government’s letter was invalid because it did not comply with the provisions of article 166 of the Constitution, and they further argued that the Government lacked authority to appoint a selection committee for admitting students to colleges on the basis

The petitioners further contended that the Government had created a selection committee which was empowered to admit candidates whose qualifications were either higher than or different from those prescribed by the University. They argued that this power exceeded the statutory limits. Another ground raised by the petitioners was that the method of selection by viva‑voce examination was illegal because it permitted interviewers to exercise arbitrary discretion, thereby contravening Article 44 of the Constitution. Finally, the petitioners submitted that the observation of the High Court, which held that the classification of applicants was not perfect because the Government had failed to apply both the caste test and the economic test, must be corrected; otherwise the Government would be misled by an erroneous classification. The Court, speaking for a bench comprising Chief Justice B. P. Sinha, and Justices Subba Rao, Raghubar Dayal, and Rajagopala Ayyangar, delivered its judgment as follows. First, the Court held that the provisions of Article 166 of the Constitution are directory rather than mandatory; non‑compliance with them does not automatically invalidate an order. When the order in question, although not strictly complying with Article 166, expressly indicates that it was issued by the Government, and when the appellants do not deny that the Government made the order or that it was communicated to the selection committee, the order must be considered valid. The Court referred to several authorities, including Dattatraya Moreshwar Pangarkar v. State of Bombay [1952] S.C.R. 612, State of Bombay v. Purushottam Log Naik [1952] S.C.R. 74, Ghai Mall & Sons v. State of Delhi [1959] S.C.A. 1424 and Bachittar Singh v. State of Punjab [1962] Supp. 3 S.C.R. 713. Second, the Court observed that a State law affecting standards of education under entry 66 of List I would be struck down only if its impact is so heavy as to wipe out or appreciably abridge the Central field, a determination that is factual and must be made case by case. A State provision that prescribes a higher percentage of marks for extra‑curricular activities in college admissions does not directly encroach upon the field covered by entry 66. The Government Orders did not violate the minimum qualifications prescribed by Mysore University; instead, the Government appointed a selection committee and set criteria for selecting students who met those minimum qualifications. Because the number of seats was limited, the Government was obliged to select applicants on a reasonable basis. Consequently, the State Government was entitled to establish both the mechanism and the criteria for admitting qualified students to government‑run medical and engineering colleges, with the consent of the management of government‑aided colleges. The Court distinguished Gujarat University v. Shri Krishna [1963] Supp. 1 S.C.R. 112. Third, the Court noted that selection by viva voce is a method recommended by contemporary educational authorities as an alternative to written examinations. The Court emphasized that the mere possibility of abuse does not, by itself, render the method unconstitutional under Article 14, and that only an actual abuse of power by the selection committee would justify setting aside the selection, as the High Court had done in the present case.

In this matter, the Court observed that it was not the role of the judiciary to prescribe a particular selection method for admission; rather, that decision must be left to the competent authorities. The Court held that the mere possibility that a specific method could be misused does not, by itself, justify its invalidation on the ground that it violates Article 14 of the Constitution. Accordingly, if a selection committee were to exercise its powers in a manner that breaches Article 14, the resulting selection would be deemed void and would be set aside, which is precisely the course of action taken by the High Court in the case before it. The Court further examined the constitutionality of classifying backward classes on the basis of economic status and occupation. It concluded that such a classification is permissible and does not contravene Article 15(4). While the caste of a group of citizens may be a relevant consideration in evaluating their social backwardness, the Court emphasized that caste cannot be the sole or dominant criterion for determining backwardness. Consequently, if a particular selection process omits caste as a factor in identifying a class within the meaning of Article 15(4), the classification remains valid provided it satisfies other established criteria. The Court rejected the inference suggested by the High Court that the omission of caste would invalidate the classification, stating that such an inference is not legally sound and does not align with the Court’s earlier pronouncement in M. R. Balaji v. State of Mysore, [1963] Supp. 1 S.C.R. 439.

The Court also reflected on several constitutional provisions—namely Articles 15, 29, 46, 341 and 342—that acknowledge the factual reality of backward classes in the country and aim to promote the welfare of their weaker sections. It urged that these provisions be interpreted to advance that policy rather than to afford undue advantage to more progressive sections of society merely because of the caste to which they belong. The Court stressed that a “class” should never be equated with a “caste,” although an individual’s or group’s caste may be a relevant factor in placing them within a particular class. Accordingly, if caste is excluded when ascertaining a class under Article 15(4), the classification does not become unlawful so long as it meets other statutory tests. Moreover, the Court noted that an entire sub‑caste that is, on the whole, backward may be incorporated into the Scheduled Castes following the constitutional procedure prescribed for such inclusion. In a dissenting note, Justice Mudholkar reiterated that, under Article 166, when the existence of a Government Order is contested by an affected person, the onus lies on the Government to demonstrate that an order was indeed issued by the Governor in accordance with the rules of business under clause (3) of Article 166. Justice Mudholkar further observed that it was inaccurate to claim that the appellants had not denied the existence of the order; from the outset, they asserted that no “Government Order” concerning admission to the Medical College existed.

Since the two appellants focused solely on admission to a medical college, they had no reason to dispute the existence of any Government Order that dealt with admission to an engineering college. The State relied upon a document to prove that a Government Order existed; that document was merely a communication from the Secretary to the Government of Mysore addressed to the selection committee and the deans of the Medical College, Mysore. Consequently, the communication could not be described as an order of the type contemplated by Article 166 of the Constitution. Apart from a sentence in the same communication stating that the Under‑Secretary was “directed to state” that the Government had taken a decision, there was no evidence or assertion that the Governor had issued an order providing for an interview. No judgment of this Court has ever treated such a communication as the Governor’s Order, nor even as proof of the existence of a Governor’s Order.

(iii) The Court’s decision in Gujarat University v. Shri Krishna, [1963] Supp. 1 S.C.R. 112, clarified that the power to provide for coordination and to determine standards in certain institutions, including medical colleges, resides with Parliament. Even if Parliament has not exercised that power, a State Legislature may not step into that field and prescribe coordination and standards by, for example, requiring that interview marks be awarded to candidates for admission, as was attempted in the present case. Such a step would interfere with the admission standards that the University itself has established.

(iv) The executive power of the State, which is co‑extensive with the legislative power under Article 162 of the Constitution, cannot be exercised in a manner that is contrary to law or in a sphere that has been assigned to other authorities or bodies. Section 23 of the Mysore University Act provides that the Academic Council has the authority to prescribe the conditions of admission to the University; therefore, the executive may not encroach upon that authority. This principle is supported by the decisions in Rai Sahib Ram Jawaya Kapur v. State of Punjab, [1955] 2 S.C.R. 225, and Motilal v. Government of State of Uttar Pradesh, A.I.R. 1951 All 259.

(v) Moreover, requiring consideration of a person’s caste when determining socially and educationally backward classes would not be consistent with clause (1) of Article 15 or clause (2) of Article 29.

The matter before the Court arose as civil appeals numbered 1056 and 1057 of 1963, filed by special leave against the judgment and order dated 30 September 1963 of the Mysore High Court in writ petitions 1592 and 1522 of 1963. Counsel for the appellants appeared for both appeals, while counsel for the respondents, including the Attorney‑General, represented the State. The judgment was delivered on 29 January 1964 by the Chief Justice and several puisne judges, with the opinion written by Justice Subba Rao, and a dissent presented by Justice Mudholkar.

Subba Rao J delivered a dissenting opinion. The two appeals concerned the legality of orders issued by the Government of Mysore that regulated admissions to engineering and medical colleges within the State. At the relevant time the State contained several engineering and medical colleges, the majority of which were fully Government‑run while a smaller number received Government assistance. The State Government had established a common selection committee to handle admissions to the engineering colleges and a separate common selection committee for admissions to the medical colleges. By an order dated 26 July 1963, recorded as Exhibit C in the High Court proceedings, the Government defined the categories of backward classes and stipulated that thirty per cent of the seats in professional and technical institutions should be reserved for those classes and that an additional eighteen per cent should be reserved for Scheduled Castes and Scheduled Tribes.

Subsequently, on 6 July 1963, the Government sent a letter to the Director of Technical Education in Mysore, Bangalore. In that letter the Government announced that twenty‑five per cent of the maximum marks obtainable in the optional subjects for the engineering‑college entrance examination would be fixed as interview marks, and it also laid down the criteria to be used for assigning those interview marks. The record indicated that a comparable order had been issued for the medical colleges. The respective selection committees translated the total marks obtained in the optional subjects into a maximum of three hundred marks and fixed the maximum interview score at seventy‑five marks. Using the aggregate of examination marks and interview marks, the committees made selections for admission to the engineering and medical colleges.

A number of candidates whose applications for admission were rejected filed petitions under Article 226 of the Constitution in the Mysore High Court, seeking to have the Government’s admission orders set aside and to obtain a direction that admissions be made strictly in order of merit. After hearing the petitioners’ arguments, the High Court held that the Government’s definition of backward classes was valid and that the criteria laid down for the interviews were satisfactory. However, the Court concluded that the selection committee had exceeded the authority conferred upon it, and on that basis it set aside the interview results that had been conducted. The High Court further directed that the applicants be interviewed anew in accordance with the scheme detailed in Exhibits C and D and Annexure IV, subject to the Court’s own directions.

Two of the petitioners appealed the High Court’s order, and those appeals formed the subject of the present proceedings. The Court then turned to consider the contentions raised by counsel for the appellants. Counsel for the appellants argued that the Government had failed to issue any order to the selection committee responsible for admissions to the medical colleges that prescribed the interview marks or fixed the criteria for allocating those marks.

In the matter of admissions to the Medical Colleges, the Court noted that no official order issued by the Government prescribing interview marks or fixing the criteria for allocating those marks had been produced before it. By contrast, Annexure IV dated 6 July 1963 related to the award of marks for interviews of candidates seeking admission to Engineering Colleges and Technical Institutions. That document was a letter from the Secretary of the Government of Mysore, Education Department, addressed to the Director of Technical Education in Mysore‑Bangalore. In that letter the Government fixed the percentage of marks to be allotted at the interview and authorised the selection committee to assign marks to candidates on the basis of several factors, namely general knowledge; aptitude and personality; previous academic career, including special distinctions; NCC, ACC, etc.; and extra‑curricular activities such as sports, social service, debating and dramatics.

The Court observed, however, that at the time of the arguments no comparable letter concerning admissions to Medical Colleges was placed on record. The appellants had filed two affidavits, but neither contained a definite allegation that the Government had failed to issue any order for Medical Colleges. Nevertheless, in the petition filed by Chitralekha, paragraph 22 stated that “the order empowering them to award 75 marks as interview marks has so far remained secret in that it has not been made available, this Hon’ble Court may be pleased to send for the same, as the order falls to be quashed.” That assertion presupposed the existence of such an order. In response, the counter‑affidavit of Dr Dharmaraj, Dean of the Medical College and Chairman of the selection committee for Medical College admissions, claimed that the Government, by its letter, directed the selection committee to interview candidates and to allot marks, the maximum of which would be twenty‑five per cent of the maximum marks for the optional subjects, and also laid down the criteria for interview marks. The description of that letter was omitted from the typed paper‑book, but the Attorney‑General informed the Court that the original description existed and was identified as PLM 531 MNC 63 dated 12 July 1963.

Further, the counter‑affidavit of B R Verma, Deputy Secretary to the Government of Mysore, Education Department, Bangalore, after referring to Annexure IV, asserted that a similar letter had been sent by the Government to the selection committee for admissions to Medical Colleges. The Court noted that the High Court’s judgment did not indicate that counsel for the appellants denied the existence of such a communication with respect to Medical Colleges; rather, the argument was advanced on the basis that a communication analogous to Annexure IV, which applied to Engineering College admissions, also existed for Medical College admissions. Nonetheless, counsel for the appellants heavily relied on the fact that the alleged order had not been filed in the Court and expressed unwillingness to accept the assurance given by the Attorney‑General that such an order existed.

The Court directed the Attorney‑General, acting on the instruction that the order in question existed, to cause the filing of the order. Consequently, a copy of the Government’s letter was filed, and the Court observed that the letter plainly demonstrated that the same type of instructions had also been issued with respect to admissions to Medical Colleges. On the basis of that evidence, the Court held that the Government had indeed dispatched a letter, similar in form to Annexure IV, to the selection committee responsible for admissions to Medical Colleges.

The next issue raised before the Court concerned the validity of Annexure IV on the ground that it did not meet the formal requirements prescribed by Article 166 of the Constitution. To examine the contention, the Court read the material portion of the annexure, which read as follows: “Sir, Sub: Award of marks for the ‘interview’ of the candidates seeking admission to Engineering Colleges and Technical Institutions. With reference to your letter No. AAS. 4.ADW/63/2491, dated the 25th June, 1903, on the subject mentioned above, I am directed to state that Government have decided that 25 per cent of the maximum marks. Yours faithfully, Sd/‑ S. Narasappa, Under Secretary to Government, Education Department.” The Court noted that, on its face, the letter was a communication of an order issued by the Government and bore the signature of the Under‑Secretary of the Education Department. Article 166 requires that an executive action of a State be expressed to be taken in the name of the Governor, and that any order made in the Governor’s name be authenticated in the manner prescribed by rules framed by the Governor. The Constitution further provides that the validity of an order so authenticated cannot be challenged on the ground that it is not an order made by the Governor, provided the procedural conditions of the article are satisfied. The appellants argued that because the order was not issued in the name of the Governor, it was void and therefore no interviews could be conducted under it. The Court, however, referred to settled authority, particularly the decision in Dattatreya Moreshwar Pangarkar v. State of Bombay, where Justice Das observed that strict compliance with the requirements of Article 166 grants an order immunity from challenge on the basis that it was not made by the Governor. He further explained that where the requirements are not complied with, the State cannot claim such immunity, but the failure to comply does not render the executive action a nullity; the essential requirement is that the appropriate Government must have taken a decision. Accordingly, the Court concluded that non‑compliance with the formalities of Article 166 does not, by itself, invalidate the order, and that the order under consideration remained effective despite the absence of the Governor’s name.

In this matter the Court considered whether the detention order issued under section eleven of the statute should be confirmed. The Court recalled the decision in State of Bombay v. Purshottam Jog Naik, where it was observed that although the order then before the Court was defective in its form, the State Government retained the ability to establish the validity of the order by presenting other evidence. The same principle was later reiterated in Ghaio Mall and Sons v. State of Delhi, and consequently it is now settled law that the provisions of article one hundred and sixty‑six of the Constitution are merely directory and not mandatory. When the requirements of that article are not satisfied, the question of whether the impugned order was in fact issued by the State Government or by the Governor may be resolved as a factual issue. The judgment in Bachhittar Singh v. State of Punjab does not assist the appellants, because in that case the order signed by the Revenue Minister was never communicated to the affected party, and therefore the Court held that no effective order existed.

Having set out the relevant precedents, the Court then turned to the facts of the present case. Although Annexure four does not comply with the formal requirements of article one hundred and sixty‑six, the document, on its face, declares that an order of the kind described therein was issued by the Government and that it was communicated to the selection committee. Neither of the affidavits filed by the appellants contains any specific allegation that such an order was not issued by the Government. By contrast, the counter‑affidavit submitted by B R Varma, Deputy Secretary to the Government of Mysore, Education Department, expressly affirms that the Government gave the direction recorded in Annexure four and dispatched a similar letter to the selection committee for admissions to the medical colleges. The appellants have not contested that averment by filing any affidavit to the contrary. In the absence of any allegation that the order was not made by the Government, the Court found no reason to reject the Deputy Secretary’s statement that the order originated with the Government, and consequently held that the contention raised by the appellants lacks merit.

The appellants further argued that the Government lacks authority to constitute a selection committee for admitting students to colleges on the basis of qualifications that exceed those prescribed by the University, and therefore claimed that the admissions orders were illegal. Their first line of argument asserted that coordination and determination of university standards constitute a Union subject, rendering the State Legislature incompetent to enact any law for maintaining university education standards. The appellants maintained that the executive power of the State Government extends only to matters over which the State Legislature may legislate, and consequently the State Government cannot issue directions for preserving university standards. The second line of argument contended that prescribing higher marks for college admission is aimed at maintaining university standards, a matter which, according to the appellants, the State Government is not empowered to regulate. To support this position the appellants relied upon the decision of this Court in Gujarat University v. Shri Krishna, wherein a question was raised about a possible conflict between entry eleven of List II and entry sixty‑six of List I of the Seventh Schedule of the Constitution.

In this case the Court examined the contention that the State Government could not issue any order or direction for maintaining university standards because the power to legislate on such matters belonged exclusively to the State Legislature. The argument was further advanced that setting higher marks as a condition for admission to a college was undertaken for the purpose of preserving university‑level standards, and consequently the State Government lacked the authority to do so. To support this position reliance was placed on the earlier decision of this Court in Gujarat University v. Shri Krishna. In that precedent one of the issues raised concerned a possible conflict between entry 11 of List II and entry 66 of List I of the Seventh Schedule to the Constitution. Entry 11 of List II authorises the State Legislature to make laws in the field of education, including universities, subject to the limitations imposed by entries 63, 64, 65 and 66 of List I and entry 25 of List III. By contrast entry 66 of List I vests Parliament with the power to legislate on the coordination and determination of standards in institutions of higher education, research, and scientific and technical institutions. The Gujarat University judgment considered whether the medium of instruction fell within either of those entries or both, and observed at pages 715‑716 that the State may prescribe syllabi, courses of study and even the medium of instruction for institutions that are not covered by entries 63 to 65. However, the Union Parliament possesses an overriding legislative power to ensure that the syllabi, courses of study and chosen medium do not impair educational standards or render the coordination of such standards on an all‑India or any other basis impossible or difficult. The Court noted that these passages indicate that a State law made under entry II of List II would be invalid only if it made it impossible or substantially difficult for Parliament to exercise its legislative authority under entry 66 of List I. Such a determination cannot be based on speculative or hypothetical reasoning. Only when the effect of a State law on the field reserved to Parliament is so heavy‑handed or devastating that it wipes out or materially curtails the central field may the law be struck down. This is a factual question that must be assessed in each case. Accordingly, the Court held that it is not appropriate to conclude that a State legislature, by enacting a provision that prescribes a higher percentage of marks for extracurricular activities in college admissions, automatically encroaches upon the field reserved to Parliament under entry 66 of List I.

In this case, the Court observed that the matter fell within entry 66 of List I of the Seventh Schedule to the Constitution. The Court noted that, consequently, there was no dispute that the State Government possessed the authority to prescribe qualifications for admission to colleges, provided that such action did not conflict with any other law. The Court then addressed the contention that the Mysore University Act had granted the University the exclusive power to make rules for college admission, thereby extinguishing any authority of the Government to do so. The Court affirmed that, under section 23 of the Mysore University Act, 1956, the Academic Council was indeed empowered to prescribe the conditions for admission of students to the University, and that the Council had, in the exercise of that power, fixed the percentage of marks required for admission to medical or engineering colleges. The Court further held that the Government orders did not violate the minimum qualifications set by the University; rather, the Government had created a selection committee and had issued rules for selecting those students who already satisfied the University‑prescribed minimum qualifications. The Court observed that the Government operated the majority of the medical and engineering colleges. Excluding, for the moment, the State‑aided colleges, the Court explained that the Government‑run colleges, because of financial commitments and other relevant considerations, could admit only a limited number of students and therefore could not admit every applicant who had attained the marks prescribed by the University. Consequently, the colleges had to screen applicants on a reasonable basis. The Court stated that the Government orders merely set criteria for admitting students from among those who had secured the minimum qualifying marks prescribed by the University. The Court accepted that the State Government was entitled to run medical and engineering colleges and could not be denied the power to admit those qualified students who passed the reasonable tests laid down by the Government. The Court likened this power to the authority that any private owner of a college possessed, and emphasized that the Government, as the operator of its own colleges, could not be denied the same authority. The Court then considered the argument that the Government could not exercise this power in relation to private colleges that received State aid. The Court noted that the management of the aided institutions had raised no objection, and that, since 1960, admissions to the colleges had been carried out by selection committees appointed by the Government. The Court referred to the decision of the High Court, which, after examining the material before it, had held that, with the consent of the management of the various professional and technical colleges, the Government had assumed responsibility for regulating admissions to the colleges in question. The Court observed that nothing had been presented to show that the selection committees had been formed against the wishes of the management of the aided colleges. In view of these circumstances, the Court declined to disturb the finding of the High Court. Accordingly, the Court concluded that the Government possessed the power to prescribe the machinery and also the criteria for

In this case the Court noted that the Government possessed authority to admit qualified students to medical and engineering colleges that it directly administered and, with the consent of the management of the colleges that received Government aid, to admit students to those aided institutions as well. It was then contended that the method of selection based on interviews and viva‑voce examinations was unlawful because it purportedly allowed interviewers to act arbitrarily, to manipulate results, and consequently to violate Article 14 of the Constitution. To evaluate that contention the Court examined the manner in which interviews were conducted and the criteria that the selection committees were required to follow. By an order dated 17 May 1963 the Government constituted a selection committee for admission to Government Medical Colleges comprising the Dean of the Medical College at Mysore as Chairman, the Dean of the Medical College at Bangalore as a member, and the Dean of the Medical College at Hubli as a member; similarly, highly qualified educationists were appointed to the committee for Engineering Colleges. Subsequently, by a notification of 6 July 1963 concerning Engineering Colleges and a comparable notification for Medical Colleges, the Government prescribed that, in addition to the marks obtained in optional subjects, each candidate would undergo an interview whose maximum weight would be twenty‑five percent of the total marks for the optional subjects. The order required the committee to assign interview marks taking into account general knowledge, aptitude, personality, previous academic record including special distinctions, participation in National Cadet Corps, Air Cadet Corps, extra‑curricular activities such as sports, social service, debate and dramatics. The Court therefore found that the Government, through its order, had not only articulated a clear policy and set definite criteria for awarding interview marks but had also appointed competent persons to apply those criteria. Consequently, the Court held that the Government’s order did not contravene Article 14. Nonetheless, counsel for the appellants raised a broader issue, arguing that a selection system based on interviews was intrinsically inconsistent with the equality principle embodied in Article 14 because, irrespective of any objective test, the ultimate allocation of marks rested on the subjective satisfaction of the committee, thereby creating scope for discrimination and manipulation. The Court could not accept such a sweeping contention and refused to condemn a mode of selection that was widely accepted in educational institutions. Referring to James Hart’s observation in “An Introduction to Administrative Law” (page 180) that a competitive test must employ an objective standard and that a wholly subjective standard reduces the test to an uncontrolled opinion, the Court acknowledged the existence of divergent views in the field of education regarding the appropriate method for assessing the capacity and calibre of applicants. Traditional educationists favoured reliance solely on marks obtained in annual examinations, whereas contemporary opinion advocated the inclusion of additional assessments such as interviews, performance in extra‑curricular activities, personality tests and psychiatric evaluations.

In the matter before the Court, the discussion turned to the use of additional assessments such as interviews, performance in extra‑curricular activities, personality tests and psychiatric examinations. The Court observed that it could not declare any one of these methods preferable to another, nor could it identify a single correct test. It noted that the possibility of manipulation or dishonesty in awarding marks during an interview was no different from the potential for similar misconduct in the written examinations. Ultimately, the effectiveness of any chosen method depended upon the moral standards, sense of objectivity and devotion to duty of the members of the selection committee. The Court regarded this criticism as a reflection on the examiners rather than on the selection system itself. While acknowledging that even a perfectly drafted scheme could be abused in practice, the Court held that the mere possibility of abuse did not justify its annulment. So long as the order prescribed relevant objective criteria and entrusted the selection process to qualified persons, the Court could not intervene. In the present case, the criteria laid down by the Government were deemed certainly relevant for assigning marks during the interview stage.

The counsel for the petitioners argued that a student’s ability, as measured by the stated criteria, could be more accurately assessed through alternative means such as a certificate from the N.C.C. commander, a medical board, or a psychiatrist, and that reliance on the selection committee might not yield correct conclusions within the limited time available to it. The Court responded that this criticism did not invalidate the criteria themselves; it merely suggested a different method of applying those criteria, a matter that should be left to the appropriate authority. The Court affirmed that if, in any specific instance, the selection committee exercised its power in violation of Article 14 of the Constitution, the result of that particular interview could be set aside, as the High Court had done in this case. However, without more scientific material before it, the Court could not declare that the inclusion of interview marks alongside written examination scores was inherently unconstitutional. Finally, the Court addressed the observation that the High Court, while not striking down the Government’s order in Exhibit C, had remarked that the classification was imperfect and had hinted that the Government should have incorporated both caste and residence tests. The Court noted that if the learned Judge’s observations remained uncorrected, they might bind the State when it eventually framed criteria for identifying backward classes under Article 15(4). In Exhibit C, the Government had specified that classification of socially and educationally backward classes should be based on economic condition and occupation.

According to the order that was examined, the Government identified two principal factors for classifying a family as socially, economically and educationally backward. First, the family’s annual income had to be Rs. 1,200 or less. Second, the members of the family had to be engaged in occupations such as agriculture, petty business, inferior services, crafts or any other work involving manual labour. The order further listed specific occupations that were deemed to contribute to social backwardness. These occupations were: (1) actual cultivator; (2) artisan; (3) petty businessman; (4) inferior services, which the order defined as Class IV in Government services and the corresponding class in private employment, including casual labour; and (5) any other occupation involving manual labour. From these provisions, it was clear that the Government, acting as a temporary measure pending a more elaborate study, relied solely on the economic condition of the family and the nature of its occupation as the criteria for identifying backward classes within the meaning of Art. 15 (4) of the Constitution. The order did not include the caste of an applicant among the criteria for backwardness. Counsel for the parties did not challenge the validity of this order directly. However, before the High Court, opposing arguments were presented both in support of and against the order. The High Court placed heavy reliance on the decision of this Court in M. R. Balaji v. The State of Mysore (1) and concluded that the scheme adopted by the State was very imperfect. The High Court held that, in addition to the occupation and poverty tests, the State should also have incorporated a “caste” test as well as a “residence” test when making its classification. The High Court further observed that the Balaji decision stated 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.” The High Court added a comment expressing hope that the State would soon adopt a more appropriate classification lest its bonafides be questioned. Counsel for the respondents argued that these observations were not supported by the Balaji decision and were, in fact, inconsistent with the observations made in that case. Consequently, the Court decided to examine the exact scope of the observations in the Balaji judgment. In that case, sixty‑eight per cent of seats in colleges were reserved for the alleged backward communities. It was argued before this Court on behalf of the petitioners that the impugned order, issued under Art. 15(4) of the Constitution, was invalid because the basis used by the order to specify and enumerate the socially and educationally backward classes of citizens in the State was unintelligible and irrational, and that the classification derived from that basis was inconsistent with, and outside, the provisions of Art. 15 (4) of the Constitution. While considering this question, Justice Gajendragadkar, speaking for the Court, observed at page 658 that “The backwardness under Art. 15 (4) must be social and educational. It is not either social or educational.”

The Court observed that the concept of backwardness under Article 15(4) must include both social and educational dimensions, and that this dual requirement raises the question of how such backwardness should be measured. Referring to the term “classes” of citizens used in Article 15(4), the learned Judge explained that the provision is intended to apply to “classes of citizens” rather than to “castes of citizens.” A class, according to the dictionary, signifies a division of society based on status or rank, which may be related to caste but is not limited to it. Consequently, when determining whether a particular class of citizens is socially backward, the caste of that group cannot be dismissed as irrelevant. At the same time, the Judge emphasized that the special provision of the Constitution is designed for groups of citizens and not for individuals, and therefore the relevance of caste should not be overstated. If the identification of backward classes were based solely on caste, such a classification might be illogical and could risk perpetuating caste divisions. Moreover, relying exclusively on caste would fail in portions of Indian society that do not recognize caste in the conventional Hindu sense. For these reasons, the Court held that while caste may be a factor in assessing the social backwardness of Hindu groups, it cannot serve as the sole or dominant criterion.

From these observations two principal points emerge: first, that caste may be a relevant circumstance in ascertaining the social backwardness of a group of citizens; second, that caste, although relevant, must not be the exclusive or controlling test for determining the backwardness of a class. The Court noted that the observations extracted from the High Court’s judgment appear to contradict the Supreme Court’s earlier pronouncements. The Supreme Court had stated that caste is only a relevant circumstance and cannot be the dominant test, whereas the High Court had described caste as an important basis for identifying backward Hindus and suggested that the Government should have adopted caste as one of the tests. To avoid confusion for the authority charged with formulating rules to determine backwardness under Article 15(4), the Court clarified that caste is merely a relevant circumstance and that nothing in its own judgment precludes an authority from assessing backwardness without reference to caste, provided other relevant criteria are considered.

The Court clarified that the legal provision does not bar the competent authority from determining the social backwardness of a group of citizens even when the authority chooses to do so without referring to caste. The Court further explained that, although it has not removed caste entirely from consideration in assessing the backwardness of a class, it has not elevated caste to the status of a compulsory or decisive factor that must form the basis of such determination. In other words, the authority may consider caste as one of the elements while evaluating whether a particular group is socially and educationally backward; however, the authority is not required to do so. If the authority decides not to rely on caste and instead bases its assessment on other relevant criteria, the resulting order will not be deemed faulty merely because caste was omitted, provided that the authority is still able to establish the backwardness of the group by using those alternative criteria.

The Constitution of India guarantees justice that is social, economic, and political, together with equality of status and equality of opportunity among its citizens. Article 46, which is part of Part IV of the Constitution under the heading “Directive Principles of State Policy,” directs the State to promote with special care the educational and economic interests of the weaker sections of the people, particularly the Scheduled Castes and the Scheduled Tribes, and to protect them from social injustice and all forms of exploitation. Article 341 empowers the President, after consulting the Governor of a State when the matter concerns a State, to issue a public notification that specifies which castes, races, tribes, or parts or groups within those castes, races, or tribes shall be deemed, for constitutional purposes, to be Scheduled Castes in relation to that State or Union Territory. In a similar manner, Article 342 authorises the President to specify, by public notification, the tribes or tribal communities that shall be recognised as Scheduled Tribes.

Article 15(4) declares that nothing in that article or in clause (2) of Article 29 shall prevent the State from making special provisions for the advancement of any socially and educationally backward classes of citizens, or for the Scheduled Castes and the Scheduled Tribes. These constitutional provisions together constitute a set of Articles that are relevant when the State formulates special measures for the advancement of socially and educationally backward classes, especially in matters such as admissions to colleges. The provisions acknowledge the factual existence of backward classes in the country, a circumstance that has arisen due to historical causes, and they represent a genuine effort to promote the welfare of the weaker sections. While these provisions must be interpreted to give effect to the constitutional policy, they should not be used to give undue advantage to socially progressive sections of society merely because those sections happen to belong to a particular caste.

The essential observation in Article 15(4) is that the text refers to “classes” rather than to “castes.” If the framers of the Constitution had intended to treat castes as units of social and educational backwardness, they would have expressed that intention explicitly, as they have done in the provisions dealing with Scheduled Castes and Scheduled Tribes. Consequently, caste may be relevant as one factor in determining whether an individual or a group belongs to a backward class, but it cannot be the sole or dominant criterion for that determination.

In the Court’s analysis, the term “classes” that appears in clause (4) of Article 15 was used because there exist communities in the country that are not organised on the basis of caste. The Court observed that, had the Constitution’s framers intended to make “classes” identical with “castes,” they could have written the expression as “backward classes or castes.” The fact that the Constitution juxtaposes the phrase “backward classes” with the specific reference to “Scheduled Castes” within the same provision leads to a reasonable conclusion that “classes” does not mean the same thing as “castes.” The Court further noted that, when determining whether a particular citizen or a group of citizens belongs to a backward class, the caste of the person or group may have some relevance, but it cannot be the only factor, nor can it be the dominant factor, for establishing the class to which that person belongs. This interpretation, the Court said, gives effect to the purpose of the constitutional provisions, because it assists those who are truly socially and educationally backward, rather than advancing the interests of individuals or groups who, although they belong to a caste that is largely backward, actually form a socially and educationally advanced class.

To illustrate the point, the Court described a hypothetical situation in which a particular caste is numerically the largest in a State. In such a case, it may happen that the majority of the members of that caste are socially and educationally backward, yet a substantial minority within the same caste may be far more advanced than a much smaller sub‑caste whose total population is less than that minority. If the word “classes” were interpreted as “castes,” the purpose of the Constitution would be frustrated, because aid intended for the truly backward would be diverted to those who do not merit it. The Court explained that this undesirable result would be avoided if caste were considered only as one of several relevant factors in deciding whether a person belongs to a backward class, without equating caste with class. Conversely, if an entire sub‑caste is, by and large, backward, it may be placed in the Scheduled Castes after following the constitutional procedure. The Court stressed that it does not wish to impose a rigid rule on the Government, recognizing that establishing criteria for social and educational backwardness is a complex problem that varies from State to State and even within different areas of a State. Nonetheless, the Court emphasized that under no circumstances may “class” be equated with “caste,” although caste may be taken into account along with other relevant factors. The Court also clarified that excluding caste from the assessment of a class under Article 15(4) does not invalidate the classification if the other criteria are satisfied. Accordingly, the Court held that the appeals fail and are dismissed, with no order as to costs. MUDHOLKAR I.-The appellants in these appeals

In this matter, the appellants had filed petitions before the High Court of Mysore under Article 226 of the Constitution challenging the validity of the method used to select candidates for admission to the State’s medical colleges. They asserted that the selection committee, rather than admitting candidates solely on the basis of merit, conducted interviews and then added up to seventy‑five marks to the scores that candidates had actually obtained in the Pre‑University Course examination, the addition being based on the interview performance. The appellants contended that, in the absence of any authoritative Government order, there was no legal foundation for appending interview marks to the examination scores; that the document relied upon by the State was not a proper Government order because it failed to satisfy the requirements of Article 166 of the Constitution; that no criteria had been established for allocating interview marks; that this procedure violated Article 14 of the Constitution; that the Government lacked constitutional competence to prescribe admission qualifications for colleges under the University that differed from those prescribed by the University itself; and that, under the Mysore University Act, only the University possessed the authority to formulate rules governing admission to its affiliated colleges. The High Court rejected the appellants’ contentions on each of these points. Nevertheless, the Court held that the selection committee had misused the powers conferred upon it and had wrongly interpreted the Government order, and consequently it set aside the results of the interviews. The Court directed that the appellants be re‑interviewed and that, after such fresh interviews, their applications be considered by the selection committee in accordance with the Government order. In its judgment, the High Court also criticized the Government for failing to consider the castes of candidates while exercising its powers under Article 15(4) and for not providing for the advancement of backward classes, observations to which the appellants objected. The learned judge, Subba Rao J., whose judgment the Court had examined, affirmed the High Court’s decision but dissented from the observations suggesting that caste should have been taken into account in determining the social and educational backwardness of a class. The Court expressed regret at being unable to concur with many of the conclusions reached by Subba Rao J. and stated that it was of the opinion that the appeals should be allowed. Assuming, for the sake of argument, that the Government of Mysore possessed both constitutional and legislative authority to prescribe admission qualifications for any college in the State, including technical or professional institutions, the first issue to be addressed was whether a valid Government order actually existed to justify the selection committee’s adopted procedure.

In examining whether a valid Government Order existed that could justify the procedure adopted by the Selection Committee, the Court observed that the document presented in the High Court as a Government Order was, in reality, merely a communication from a Government Secretary addressed to the Selection Committee and signed by an Under‑Secretary. This communication referred solely to the interview process prescribed for selecting candidates for admission to Engineering Colleges. During the hearing before this Court, the Attorney‑General appearing on behalf of the State of Mysore asserted that a separate Government Order concerning admissions to Medical Colleges also existed and that he should be allowed to produce that order. The Court granted leave for the Attorney‑General to tender the said order. Subsequently, on 20 December 1963, after the judgment had been reserved, Mr Achar, Assistant Government Advocate, placed on the record a document the State described as the Government Order. However, this document had never formed part of the writ petitions’ record, and the only manner in which the alleged Government Order relating to Medical College admissions had been brought to the High Court’s attention was through Dr Dharmaraj’s affidavit, which identified the letter number addressed by a Government Secretary to the Selection Committee regarding those admissions. The Court therefore deemed it appropriate to reproduce the entire document now before it. The document read as follows: “GOVERNMENT OF MYSORE CONFIDENTIAL: Mysore Government Secretariat, Vidhana Soudha, Bangalore, dated 12th July 1963, SE 1885. From the Secretary to Government of Mysore, PH. Labour & Municipal Administration 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 twenty‑five per cent of the maximum marks for the examination in the optional subjects taken into account for making the selection of candidates for admission to Medical Colleges shall be fixed as interview marks. I am further to state that the Selection Committee is authorised to allot marks for the interview of the candidates as fixed above, having regard to the following factors: (1) General Knowledge; (2) Aptitude and personality; (3) Previous academic career including special distinctions, etc.; (4) N.C.C., A.C.C., etc.; (5) Extra‑curricular activities including sports, social service, debating, dramatics, etc. I am also to state that Government have decided that students with exceptional merit in games and sports – State and inter‑State standard – may be selected up to a maximum of two per cent of the total number of seats. Yours faithfully, Sd./‑ L. G. Desai, Under Secretary to Government, PH. Labour & Municipal Administration Department. Attested Sd./‑ H. L. Lingraj Urs, Deputy Secretary to Government, PH. Labour & Municipal Administration.” The Court noted that this document constituted nothing more than a communication issued by a Government secretary to the Chairman of the Selection Committee and the Dean of the Medical College, Mysore, rather than an order of the type envisaged under the constitutional provisions governing executive actions.

The communication was addressed to the Chairman, the Selection Committee and the Dean of the Medical College in Mysore. The Court observed that this communication could not be classified as an order within the meaning of Article 166 of the Constitution. Article 166 requires that every executive action of a State Government be expressed to be taken in the name of the Governor, and that any order made and executed in the Governor’s name be authenticated in the manner prescribed by rules made by the Governor. The provision further states that if an order is authenticated according to those rules, its validity cannot be challenged on the ground that it was not made by the Governor. Consequently, the essential requirement of Article 166 is that executive action must be expressed to be taken in the Governor’s name. The document placed before the Court did not demonstrate that the action—namely, the prescription of an interview, the allocation of marks for that interview, and the criteria for the Selection Committee to award those marks—was purported to emanate from the Governor. The document merely recorded that the Secretary, on whose behalf an Under‑Secretary had signed, was “directed to state” that the Government had taken a particular decision. The Court noted that this communication was not the decision itself. The Court further remarked that it was unclear what the decision was, how it was worded, when it was taken, or whether it was expressed in the Governor’s name.

The Court then considered earlier decisions in which it had held that the provisions of Article 166(2) are directory rather than mandatory, and found those precedents not applicable because the present issue concerned the very existence of an order made by the Governor. The Court affirmed that where there is a mere failure to comply with the authentication requirements of Article 166(1) or the Governor’s rules, evidence from other sources may be introduced to prove that an order was in fact made by the Governor. However, this does not dispense with the need to establish the existence of a Government order. In fact, the Court explained that prior decisions accept that the making of a Government order is a condition precedent for justifying any action claimed to be taken by a Government officer on the Government’s behalf. In the present case, the Secretary had prescribed a procedure to be followed by the Selection Committee, but the Secretary possessed no authority to impose that procedure without a supporting Government order. For that reason, the Secretary referred to such an order, which was not produced before the Court. The learned Attorney‑General had contended that the appellants had not denied the existence of the order, but the Court rejected that contention, noting that the appellants had consistently maintained from the outset that there was no “Government Order” concerning admission to the Medical Colleges.

The State's reliance was placed on a letter addressed to the Selection Committee that dealt with applications for admission to Engineering Colleges. Because the two appellants were seeking admission to a Medical College, they were not required to argue that the letter was not a Government Order even with respect to Engineering Colleges. In response to the appellants’ claim, the State introduced an affidavit of Dr Dharamraj in which the document reproduced earlier was referred to as the “Governor’s Order.” If that document is asserted to be a Governor’s Order, the State must fail on the simple ground that the document is not expressed to have been made in the name of the Governor and therefore, prima facie, does not qualify as a Governor’s Order. The Court previously considered a similar question in Bachittar Singh v. State of Punjab, where it was examined whether a note written and initialled by a Minister on a case file could be treated as an order of the Governor within the meaning of Article 166. The Court rejected that contention because the note was not expressed to be issued in the Governor’s name, and consequently it could not be deemed a Governor’s Order. The judgment noted that, although the Minister’s note was not communicated to the party for whose benefit it was made, the lack of communication was mentioned only to emphasize that the note had not attained any finality. The view expressed in Bachittar Singh is consistent with earlier authorities and is supported by the decision in State of Punjab v. Sodhi Sukhdev Singh. Accordingly, the appellant’s first contention must succeed, and the addition of marks for interview by the Selection Committee must be held to be without any validity or legal authority. The Learned Attorney‑General suggested that the ruling in Bachittar Singh conflicted with at least three other decisions of this Court. The first of those cases is Dattatraya Moreshwar Pangarkar v. State of Bombay and Ors., in which a petitioner detained under the Preventive Detention Act, 1950 challenged the legality of his detention on two grounds. One ground alleged that the order confirming detention under section 11(1) was not expressed to have been made in the name of the Governor as required by Article 166(1) of the Constitution. In addressing that argument, Justice Das, joined by Chief Justice Patanjali Sastri, observed at page 623 that “Section 11(1) plainly requires an executive decision as to whether the detention order…”.

The Court explained that the question under consideration was whether a detention order ought to be confirmed or not. It observed that once the authority decides to confirm a detention order, the actual continuation of the detention follows automatically as a factual consequence of that decision. No additional executive act is required to keep the detention in force. Consequently, the Preventive Detention Act is understood to require an executive decision either to confirm the detention under section 11(1) or to revoke or modify it under section 13. However, the Act does not specify the particular form in which that executive decision must be recorded, nor does it dictate whether the decision must be described as an “order” or as an “executive action.” The statute imposes no specific format, and its requirements are deemed satisfied once it can be shown that the executive decision has in fact been taken.

The learned counsel for the petitioner then invoked Article 166 of the Constitution, contending that every executive action of a State government must be expressed and authenticated in the manner prescribed by that article, citing the authority found at (1)[1952] S.C.R. 612. The Attorney‑General responded by distinguishing between the act of taking an executive decision and the formal expression of that decision. He explained that ordinarily an executive decision is recorded in office files through notations or endorsements by the responsible minister or officer, and that insisting on a formal expression for every decision would paralyse the entire governmental machinery. The Court concurred that not every executive decision needs to be formally expressed, particularly when a superior officer simply instructs a subordinate to act or refrain from acting. Nevertheless, the Court held that when an executive decision impacts an external party or must be officially notified, it should normally be expressed in the form required by Article 166(1)—that is, in the name of the Governor. Applying this principle, the Court noted that the order in question was intended to affect outsiders, namely the candidates who were to be interviewed and graded by the selection committee for admission to the medical college. Moreover, the order was not merely a private filing to enable officers to act; it was expressly designed to direct the actions of the selection committee. For these reasons, the Court found it necessary that the order be expressed in the Governor’s name. The judgment further quoted the learned Judge’s observation that the Attorney‑General’s argument—that the failure to make and authenticate the decision in the prescribed form does not render the decision itself illegal—was being relied upon.

In this case the Court observed that the provision of Article 166, like its counterpart in the Government of India Act, is merely directory and not mandatory, as previously held in J. K. Gas Plant Manufacturing Co. (Rampur) Ltd., and Ors. v. The King‑Emperor(1). The Court expressed the view that the learned Attorney‑General’s contention must therefore prevail. It reiterated the settled principle that, as a general rule, statutory provisions that create public duties are understood to be directory, whereas those that confer private rights are imperative. When a statutory provision relates to the performance of a public duty, and when declaring acts done in breach of that provision null and void would cause serious general inconvenience or injustice to persons who have no control over the officials entrusted with the duty, and would not further the legislature’s main purpose, the Courts have traditionally treated such provisions as directory, meaning that neglect of the formal requirements does not affect the validity of the acts performed.

The Court noted that, even when a provision is regarded as merely directory, the learned Judge had required proof that the governmental decision on which reliance was placed had actually been taken. In the case before him, the Judge found as a matter of fact that such a decision had indeed been taken. However, the Court pointed out that there is no material in the present proceedings to suggest that any decision was taken by the Government with respect to interviews for admission to Medical Colleges. Referring to the observations of Mukherjea J., with whom Chandrasekhara Aiyar J. agreed, the Court explained that clause (1) of Article 166 prescribes the mode of expression of an executive order, while clause (2) specifies the manner of authentication. When both requirements are satisfied, the order is insulated from challenge on the ground that it was not made or executed by the Governor. The Court further clarified that, according to Mukherjea J., the provisions of clause (1) are directory rather than imperative.

Quoting the learned Judge, the Court stated: “I agree with the learned Attorney‑General that non‑compliance with the provisions of either of the clauses would lead to the result that the order in question would lose the protection which it would otherwise enjoy, had the proper mode for expression and authentication been adopted. It could be challenged in any court of law even on the ground that it was not made by the Governor of the State and, in case of such challenge, the onus would be upon the State authorities to show affirmatively that the order was in fact made by the Governor in accordance with the rules framed under Article 166 of the Constitution.” The Court also recorded that Mahajan J., as he then was, expressed no opinion on this point.

In this case the Court considered the second argument raised, namely that the detention was invalid because, when the Government confirmed the order, it failed to specify the period for which the detention was to continue. The Court observed that all earlier judgments dealing with the provisions of Article 166 of the Constitution have consistently held that when a person affected by a Government Order challenges its existence, the burden of proof lies on the Government to demonstrate that the order was actually made by the Governor in the manner prescribed by the rules of business framed by the Governor under clause (3) of Article 166. The Court noted that the learned brother did not suggest that, in the present case, the State was relieved of the duty to establish the existence of a Governor’s order. Rather, the learned brother stated that the petitioners had not expressly denied the existence of such an order. The petition filed by Chitralekha, in paragraph 20, specifically alleged that “the Government Order enabling them to award 75 marks is not made available,” and in paragraph 22 she further urged that, because the order authorising the award of 75 marks as interview marks remained secret and had not been produced, the Court should direct that the order be produced and thereafter be set aside. In response to these allegations a counter‑affidavit was filed by Dr J J Dharmaraj, the Dean of the Medical College and Chairman of the Selection Committee for admission to Medical Colleges. In paragraph 4 of that affidavit he stated that the Government, by its letter No PLM 531 MMC 63 dated 12 July 1963, directed the Selection Committee to interview the candidates and to allot interview marks not exceeding twenty‑five per cent of the maximum marks for optional subjects, and that the criteria for allocating such marks were also laid down. The Court found that this statement relied solely on a directive contained in a communication addressed to the Selection Committee and did not refer to any order issued by the Governor. Similarly, a counter‑affidavit filed by Mr Varma, Deputy Secretary to the Government, in paragraph 36 asserted that the Government, by its letter No SD 25 THL 63 dated 6 July 1963, gave a direction to the Director of Technical Education that, in addition to examination marks in optional subjects, an interview should be conducted in which the maximum marks allotted would be twenty‑five per cent of the maximum for optional subjects, and that a comparable letter was sent to the Selection Committee for admission to Medical Colleges. The Court concluded that, once again, there was no explicit affirmation that the Governor had issued an order providing for the interview of candidates who had applied for admission to medical colleges.

In this case, the Court noted that the only other passage where the appellants’ allegations were addressed occurred in paragraph forty‑four of the affidavit filed by Mr Varma, a Deputy Secretary.

In that paragraph, Mr Varma asserted that the claim made in some petitions – that the first Government Order alone reflected the Government’s decision while the second Order represented solely the decision of the Minister for Education – was untenable, and he further stated that when an order is issued in the name of the Governor, it is not permissible to inquire whether any advice was given by a Minister to the Governor.

The Court observed that the Deputy Secretary’s statement merely articulated a legal principle and did not affirm definitively that an order had actually been issued in the Governor’s name on the matter of interviews.

The Court then pointed out that two separate orders dealing with the classification of backward classes and the reservation of seats in technical institutions were indeed issued in the Governor’s name on 26 July 1963, and that copies of those orders had been placed on record and were in the proper form.

Consequently, the Court reasoned that if a similar order concerning interview procedures had been made by the Governor, there would have been no reason for it not to have been filed with the Court.

Nevertheless, the Court observed that the Assistant Government Advocate, appearing for the State, had produced only a copy of the letter sent by the Secretary to the Government and had neither produced a copy of any Governor’s order nor even alleged that such an order existed.

Moreover, during the oral arguments, the learned Attorney‑General did not make a categorical statement that the Governor had issued an order relating to the interviews, a circumstance the Court attributed to the possibility that the Attorney‑General had not been instructed to make such a claim.

The Court further noted that no opportunity had been afforded to the appellants to file any additional affidavit after the Secretary’s letter had been produced before the Court.

In light of the material on record, the Court asked whether the State had thereby discharged its burden of proving the existence of a Governor’s order.

The Court expressed the view that the State’s omission to categorically aver the existence of such an order, or to attempt its production, or to seek any other evidence establishing its existence, could not be ignored.

It held that if a Governor’s order concerning the interview process did exist, the State could have easily satisfied the burden by simply stating its existence and producing either the original document, a copy, or other evidence confirming it.

The Court concluded that the overall tenor of the affidavits filed by the State and the arguments advanced before it left no doubt that the only document concerning the subject matter was the Secretary’s letter to the Selection Committee and nothing beyond that.

Finally, the Court emphasized that no precedent existed in this Court for treating such a letter as a substitute for, or as evidence of, a Governor’s order.

In this judgment the Court observed that the material placed on record did not establish the existence of a Governor’s order, nor did it provide any evidence that such an order existed. The Court noted that the two authorities cited by the State – State of Bombay v. Purshottam Jog Naik¹ and Ghaio Mail and Sons v. State of Delhi² – both follow the decision in Pangarkar’s case³ and each emphasise the need for proof of the Governor’s order when the document relied upon is defective in form. Because of this requirement, the Court found it necessary to differ from the learned brother on the second point he had addressed in his judgment. The Court stated that the observations made above were sufficient to dispose of both appeals. However, the Court also wished to comment on another point raised by the learned brother, namely the power of a State Government to prescribe, by an executive order, the standards for selecting candidates for admission to technical institutions affiliated to a university. The Court referred to the case of Gujarat University v. Shri Krishna⁴, in which the issue was whether Gujarat University could impose Gujarati and/or Hindi in Devanagari script as the exclusive medium of instruction and examination in institutions that were not maintained by the University but were affiliated with it or were constituent colleges. One of the principal arguments in that case was that Entry 166 of List I of the Seventh Schedule confers on Parliament the power of coordination and determination of standards in institutions of higher education or research in scientific and technical fields, and that this power is excluded from Entry 11 of List II of the same schedule. The Court reproduced the wording of Entry 11, which reads: “Education, including universities, subject to the provisions of Entries 63, 64, 65 and 66 of List I and Entry 25 of List III.” The Court then quoted the observations of Justice Shah Y., speaking for the majority, while noting that Justice Subba Rao J. dissented. Justice Shah explained that the extensive power given to Provincial Legislatures to legislate on higher scientific and technical education and vocational and technical training of labour, as provided under the Government of India Act, is now governed by the Constitution and is limited to the five items in List I and List III mentioned in item II of List H. He further explained that Items 63 to 66 of List I are carved out of the subject of education and that, with respect to those items, the power to legislate is vested exclusively in Parliament. Accordingly, the State’s power to legislate on education, including universities, is to the extent that it is entrusted to the Union Parliament and, whether or not that power is exercised, must be considered restricted. Justice Shah concluded that if a subject of legislation falls within Items 63 to 66, the exclusive legislative competence lies with Parliament.

In this case the Court explained that even when a subject falls within the broader field of “education including universities,” the power to legislate on that subject belonged to Parliament if it was covered by item 66 of List I. The Court rejected the argument made by counsel for the University and for the State of Gujarat that legislation prescribing the language or medium in which instruction should be given in higher education institutions always fell within item 11 of List II. The Court held that item 11 of List II and item 66 of List I had to be read together in a harmonious way. Although the two entries overlapped, the Court said that to the extent of the overlap the power granted by item 66 of List I prevailed over the power of the State under item 11 of List II. The Court observed that the excluded subjects mainly dealt with education in institutions of national or special importance, including higher education, research, science, technology and vocational training of labour. The Court further noted that the power to legislate on the medium of instruction was not a separate head of legislation; it fell within the State’s power to legislate on education unless Parliament expressly removed that power. Because items 63 to 65 of List I were very wide, the Court held that the power to legislate on the medium of instruction, insofar as it related to the coordination and determination of standards in institutions of higher education, research, scientific and technical institutions, was deemed to be vested in the Union. The Court quoted earlier language to emphasise that, where coordination and standards in institutions such as a medical college were at issue, the Parliament possessed the power, and even if Parliament had not exercised that power, a State Legislature could not step in to set standards. Applying this principle, the Court found that requiring the Selection Committee to add marks obtained in interviews to the marks earned by candidates in the P.U.C. Examination and to prepare a new merit list effectively allowed the State to interfere with the standards for admission fixed by the University. The Court expressed that admitting candidates of lower academic merit by inflating their marks through discretionary interview scores would undermine the standard of any educational institution. This method, the Court said, was not a universal practice in higher or technical education across the country and represented a State‑created standard for admission, contrary to the constitutional intention to keep standards of higher education outside the domain of State legislatures.

In the judgment the Court observed that the practice of allowing a selection committee to add interview marks to the scores obtained by candidates in the pre‑university examination was not a universal practice in institutions of higher or technical education across the country. By adopting such a practice, the State of Mysore had effectively created its own standard for admission to those institutions. The Court explained that the Constitution deliberately excluded matters relating to standards in institutions of higher education, and certain other institutions, from the authority of State legislatures in order to prevent the kind of interference that Mysore had attempted. The Court further noted that the portion of the earlier quotation set in italics clarified the position taken by the majority of the Court: the power to legislate on matters such as the medium of instruction, which directly affect the constitutional head of coordination and determination of standards in institutions listed in entry 66 of List I, belongs to the Union. Consequently, the Court stated that each case requires an examination of whether a State legislative measure would directly impact entry 66 of List I. The Court held that whenever a State law seeks to alter academic standards for admission to institutions covered by entry 66, the law necessarily touches that entry, and therefore the power to do so is excluded from the scope of entry 11 of List II. Referring to paragraph 24 of the majority opinion, the Court quoted: “The State has the power to prescribe the syllabi and courses of study in the institutions named in entry 66 (but not falling within entries 63 to 65) and as an incident thereof it has the power to indicate the medium in which instruction should be imparted. But the Union Parliament has an overriding legislative power to ensure that the syllabi and courses of study prescribed and the medium selected do not impair standards of education or render the coordination of such standards either on an All‑India or other basis impossible or even difficult.” The Court then considered whether these passages indicated that a State law made under entry 11 of List II would be invalid only when it made it impossible or difficult for Parliament to exercise its legislative authority under entry 66 of List I. It questioned whether the judgment required a case‑by‑case determination of whether the impact of a State law on the standards prescribed in entry 66 was so substantial as to appreciably abridge the central field, or whether any State enactment that prescribed a different, even higher, percentage of marks or assigned marks for extracurricular activities would automatically constitute an encroachment upon the field governed by entry 66 of List I.

In the passage that had been quoted earlier, the Court explained that although the Union and the State each possessed powers that were listed in exclusive entries, some overlap between those powers was unavoidable. The Court observed that it was impossible to formulate a universal test that would resolve every question that might arise on this point. On one side, the Court noted that it was certainly within the province of the State Legislature to prescribe syllabi, to determine courses of study, and also to specify the medium or media of instruction. On the other side, the Court held that it was equally within the Union’s power to legislate concerning the media of instruction so as to secure coordination and the determination of standards, meaning to maintain or improve educational standards. The Court further stated that the fact that the Union had either not legislated at all or had refrained from using the full extent of its power did not confer upon the State the authority to legislate on a matter that the Constitution assigned to the Union. However, the Court warned that this principle did not preclude the possibility that legislative provisions made under separate exclusive powers could nevertheless clash with one another. Where such a clash occurred, the question of repugnancy and paramountcy would arise and would have to be resolved by applying the doctrine of the pith and substance of the impugned enactment. The Court then observed, quoting at length from page 716, that the validity of State legislation depended on whether it prejudicially affected coordination and the determination of standards, and that this assessment was not contingent on the existence of a specific Union law aimed at the same purpose. The Court’s observations, the judgment continued, did not support the view that a State law would be invalid only when it rendered it impossible or difficult for Parliament to exercise its legislative power under entry 66 of List I. According to the majority opinion, a State law would be invalid whenever it prejudicially impacted coordination and the determination of standards; such prejudice alone was sufficient to strike down the legislation. The Court explained that interference with academic standards would inevitably disturb coordination and the determination of standards among institutions of a similar character throughout the country. In line with the view expressed in the Gujarat University case (1), the Court concluded that State legislation containing the provisions referred to in the Secretary’s letter to the Selection Committee would be invalid. The Court clarified that when it required regard to be given to the pith and substance of a State law to see whether it conflicened with Parliament’s powers, the conflict must be a direct result of the State law and not merely incidental. The Court further explained that this did not mean that, in order to determine whether a conflict existed, one had to gauge the magnitude of the State law’s impact on Parliament’s power. Accordingly, where a law, in its pith and substance, directly affected Parliament’s power to coordinate and determine standards, that law would be in direct conflict, irrespective of the extent or force of the conflict.

The Court observed that any law made by a State that imposed conditions on institutions falling within entry sixty‑six of List I would clash directly with the Parliament’s authority, and that the magnitude of the clash was irrelevant. It explained that just as a State rule fixing a language of instruction for those institutions would affect the academic standards of the institutions and thus directly impinge on the Parliament’s power under the same entry, a rule requiring an interview for admission would also have a direct effect because admission would then depend on criteria beyond pure academic merit. The Court could not conceive of any other way to describe the impact of such a State law on the Parliament’s competence.

The Court noted that the recent increase of interview marks from twenty‑five to seventy‑five—an amount representing twenty‑five percent of the total marks for the P.U.C. examination—had caused controversy, but this controversy merely underscored the directness of the impact that existed even when the interview marks were only twenty‑five percent. To suggest otherwise would mean that a low proportion of interview marks, when compared with the total P.U.C. marks, created only an indirect or oblique effect, which would become direct only if the interview weight were raised to a higher percentage such as fifty or even one hundred percent. The Court rejected that view, stating that the directness of the impact did not depend on its intensity.

Furthermore, the Court held that adding interview marks to the marks obtained in the P.U.C. examination for admission to an institution covered by entry sixty‑six of List I inevitably affected the standard of that institution. To illustrate, it proposed a hypothetical where the maximum P.U.C. marks were three hundred and interview marks were six hundred. In such a case there could be no doubt that the institution’s academic standard would be altered and that the impact on entry sixty‑six was direct. Even if the interview marks were reduced to thirty, the Court reasoned that the standard would still be affected, albeit to a lesser extent. In both scenarios, the effect stemmed directly from the additional interview requirement, making the impact of the State law direct in each case.

The Court emphasized that a consequence that is direct cannot be re‑characterised as oblique or indirect merely because its significance is smaller due to a low proportion of interview marks relative to the P.U.C. marks. Consequently, whether the State law altered the standards of the institutions only slightly or materially was irrelevant for the purpose of deciding if the law operated in a field excluded for State legislation. The sole test, the Court concluded, was whether the effect on academic standards was direct, and it found that this was indeed the case.

In referring to the majority decision of this Court, the Court observed that even if one accepted the proposition that a State law may be regarded as improper only when its impact is “so heavy or devastating as to wipe out the central field,” the present measure unquestionably satisfies that description. The Court noted that by reserving forty‑eight percent of the total seats for scheduled castes, scheduled tribes and backward classes, the proportion of seats available for candidates who qualify on merit alone is reduced to merely fifty‑two percent. Moreover, the Court explained that the additional dilution of academic merit created by introducing the considerations enumerated in the Secretary’s letter is likely to place meritorious candidates in an even more disadvantageous position.

The letter sets out five matters to be examined during the interview: (1) General knowledge; (2) Aptitude and personality; (3) Previous academic career, including special distinctions; (4) N.C.C., A.C.C., etc.; and (5) Extracurricular activities, including sports, social service, debating, dramatics, etc. The Court held that while the first and third matters possess some relevance to the selection of future doctors, the relevance of the remaining three categories is difficult to appreciate. The Court further observed that “aptitude and personality” is a wholly subjective criterion that depends on the personal satisfaction of the selectors and is intrinsically vague.

According to the Court, the total marks assigned to these five heads may be as high as seventy‑five, yet no specific allocation of marks is prescribed for each head. Consequently, if the selectors were to allocate, for example, thirty or forty marks to “personality,” many deserving candidates could be pushed far down the ranking that is prepared on the basis of the aggregate of interview marks and the P.U.C. Examination results. Because the interview carries a substantial weight of marks and because the discretion to allocate those marks among the different heads is left entirely to the Selection Committee, the Court concluded that the effect of the alleged directive on the central educational field must be considered heavy. Such an effect, the Court said, would further lower the already alarmingly low standards prevailing in the nation’s educational institutions.

The Court emphasized that what is being challenged is not a formally enacted State law but what is presented as an executive fiat. While acknowledging that Article 162 declares the executive power of the State to be co‑extensive with the legislative power, the Court recalled its earlier decision in Rai Sahib Ram Jawaya Kapur & Ors. v. The State of Punjab (1), which held that the State’s power is not limited to matters for which legislation has already been passed. Nonetheless, the Court observed that neither Article 162 nor the cited decision extends to permit the State to act in derogation of a law made by a competent legislature. Finally, the Court noted that it appears to have accepted the view expressed by two learned Judges of the Allahabad High Court in Motilal v. The Government of the State of Uttar Pradesh (2), namely that an act would be within the executive power of the State only if it does not contravene constitutional assignments, existing statutes, or the legal rights of members of the public.

In this case the Court explained that the executive power of the State could be exercised only when the action was not assigned by the Constitution to another authority, did not contravene any existing law, and did not infringe the legal rights of any member of the public. The Court then turned to the Mysore University Act, noting that section 23 of that Act expressly gave the Academic Council the authority to prescribe the conditions for admission of students to the University. Because a competent legislature had vested this particular power in the Academic Council, the Court held that the State could not intrude upon that power by means of an executive order. Accordingly, the situation was not merely one of an absent legislative sanction for the State’s action; rather, there was an implied limitation on the State’s executive power concerning this specific matter.

The Court further observed that, although the Constitution allowed the State to make reservations of seats for the benefit of backward classes, scheduled castes and scheduled tribes without requiring a specific empowering law, the Constitution and no other statute granted the State Government authority to direct the selection committees that examined applications for admission to any college as to the basis on which admissions should be made. It was contended that most medical colleges were owned by the State and that, as owner, the State could instruct its officers regarding the mode of selection for admission. The Court remarked, however, that the issue was not so simple. Educational institutions affiliated to the University were required to follow the pattern developed by the University, and the governing bodies of those institutions could not adopt a different pattern. The Court stressed that any variation by the institutions in standards of admission or teaching would necessarily affect the pattern set by the University. Whether the addition of an interview aimed to improve the standards fixed by the Academic Council was considered irrelevant; the matter was within the exclusive domain of the Academic Council, to which the legislature had assigned the entire responsibility. The Court noted that it had been claimed that the University raised no objection to the Government’s action. The Court clarified that the crucial question was not the absence of objection but whether the University had actually consented to the Government’s action. The Court found that consent was lacking, as demonstrated by a consent memorandum filed in the High Court on behalf of the University, a copy of which was later filed in this Court after the judgment had been reserved. In that memorandum, the counsel for the University stated that under section 23(b) and section 43 of the Mysore University Act, read together with section 2(a) of the same Act, only the Academic Council could prescribe the qualifications for admission. The memorandum further noted that the University had not been consulted about Exhibit ‘D’ or about increasing interview marks to twenty‑five percent, as indicated in a letter dated 6 July 1963, and that interview marks should be treated as marks awarded for a subject.

The Court observed that, pursuant to clause 2(a) of the Mysore University Act, only the Academic Council possessed the authority to prescribe the qualifications required for admission. Accordingly, the University had not been consulted regarding either Exhibit D or the proposal to raise the interview marks to twenty‑five per cent, as indicated in the letter dated 6 July 1963. The Court further noted that interview marks were intended to be treated in the same manner as marks awarded for an academic subject. In view of these observations, the Court held that the plea presented on behalf of the State lacked any substantive merit. This conclusion formed an additional basis for the Court’s view that the provision permitting interviews was invalid. The learned brother had extensively addressed the issue of the value of interviews in the context of admissions to educational institutions; however, the Court deemed it unnecessary to pronounce on that matter in the present case and indicated that such a discussion would be reserved for a later occasion. Likewise, the Court chose to defer its opinion on the other points raised by the learned brother, except for one issue concerning the relevance of caste considerations in identifying socially and educationally backward classes. The Court stated that it would be inconsistent with clause (1) of Article 15 and clause (2) of Article 29 to require that caste be taken into account when determining such classes. Although clause (4) of Article 15 contains a non‑obstante clause permitting the exercise of power despite the provisions of clause (1) of Article 15 and clause (2) of Article 29, the Court clarified that this does not imply that caste has any relevance in defining socially and educationally backward communities. The Court agreed with the learned brother’s observation that the Constitution uses the term “classes” rather than “castes” in clause (4). Accordingly, based on the Court’s reasoning on the two points discussed, the appeals were allowed and a direction was issued to the Selection Committee to make selections of candidates solely on the basis of the results of the P.U.C. examination. The Court also ordered that costs be awarded to the appellants, both in this Court and in the High Court. In the subsequent order, the Court noted that, in view of the majority judgment, the appeals failed and were dismissed, with no order as to costs.