STATE OF A~DHRA PRADESH & ORS.

LAVU NARENDRANATH & ORS. ETC.

February 11, 1971

[S. M. SIKRI, C.J., G. K. MITTER, K. S. HEGDE AND

P. JAGANMOHAN REDDY, JJ.]

ConsUtution oj India, 1950, Arts. 21 162 and Entry 6G, Ll51 I, 'Sl:h •.

VII-Executive Power of State-Scope of-Entrance test tiFTnedical colleges-If affects personal liberty-Scope of Entry 66-1/ affects Govt.'s power to hold rm.

Andhra University Act (2 of 1926), "· 23 and 33-Government If obliged to make selection according to qualifying examination.

Education-Medical Colleges-Admission to according to Entrancir /est held by Government-If substitute of addition to qualifyinf? test.

In the Andhra area of the State of. Andhra Pradesh there are four medical collegts run by the State Government.

In July 1970, the .Government prescribed for the first time an Entrance test for admission to the colleges and also prescribed the standard of eligibility for the test.

A large number of candidates. far in excess of the seats available took the test. Some of the candidates, who were unsuccessful, filed writ peti tions challenging the validity of the test prescribed and the method of selection for admission. They contended that, (I) under the provisions of the Andhra University Act, 1926 it was only the Academic Council of the Andbra University th; lt was competent to prescribe qualifications for admission into all degree courses, includirig the M.B.B.S. course in Govt. Colleges; and it was not for the Government to substitute itself for the statutory _, Academic oody and test the academic standards of candidates; (2) , the holding of the Entrance Test and making selections on the basis thereof in disregard of the marks obtained at the public exantination held by the' University epcroached upon the central subject listed in Entry 66 of List I of VU. Schedule to the Constitution; nnd, (3) the test interfered with the personal liberty of the candidates violating Art. 21 . ef the Constitution. The Hiah Court allowed the petitions. In appeal to thi• Court, ·

HELD : ( 1) Under Art. 162 of the Constitution the executive power of a State extends to the matters with resp.ect to which the Leaislature !>f the Stata has power . to make la~. If there is no leaislatlen cover. ma the field the State qovernment would un.doubtedly be competent to

prtscribe a test itself IC) screen the best candidates. (703 FHl

. The Andhra. Univers!ty Act, 1926, prescribes the minimum. qualification for enfrv mto a higher course of study.

A candidate bas not an unq1:1alified. right .to a seat in a medical college merely because he has obmed his'!P, r marks tha_n another candidate at the qualifying examination. Secllons 23 and 33 of the Act do not make it incumbent upon the Government to make their selection in accordance with the marks obtained bv. applicant-candidates at the qualifying examination.. . Since

all the apphcants could not be admitted, the Government which ran the colleges; had a right to make a selection out of the Jrge number of.

candidates and for this purpose they could prescribe a test of their own which was not against any law and prescribe the minimum number of marks at the qualifyini: examination for eligibility tu the Entrance test.

Merely because the Government supplemented the eligibility rule by a writt.11 test in slihjects with which the candidates were already familiar, their action cannot be impeached nor was there anything unfair in the test prescribed.

The test was not in substitution of the University Examination but something 11dditional to that; and the mere fact that the test was introduced for the first time would be no ground for holding that the method of selection was invalid [704 D-F; 708 F-G; 709 A-R, Fl

(2) The test prescribed by the Government in no way militates against the power of Parliament under Entry 66 of List I of the Vil Schedule to the <:; onstitution The Entry gives Parliament power to make laws for

layin&. down bow stanards in an institutino for higher education are to be determined and how they can be co-ordinated.

It has no relation to a teat prescribed by Government or by a universiy for selection of a number of students from out of a large number applying for admission to a particular course of stllily. [705 B-D]

(3) The test in no way, affects the personal liberty of the candidates $CCUJed under Art. 21 of the Constitution.

Everybody, subject to the eligibility prescribed by the University was at liberty to apply for ad mission to the medical colleges. The number of scats being limited every candidate could not expect !(> be admitted. The deprivation of personal liberty, if any, in the matter of admission to a medical college was according to procedure established by law. [709 H; 710 A-BJ

R. Chltralekha v. Sate ofi Mysore, Ll964] 6 S.C.R. 368, Rajendran v.

State of Madras, [1968] 2 .S.C.R. '786 and Chitra Ghosh & Anr. v. Union of l11dla, (1970) 1 S.C.R. 413, followed.

Spottswood v. Sharpe, '1~ L.Ed. 884 and Stawant ingh v. Pa.Bport Ofjicer, L1967] 3 S.C.R. 525, 540, referred oo.

CIVIL APPELLATE Jujt!SDICTION: Civil Appeals Nos. 2161-A and 2161-B of 1970.

Appeals by special leave from the judgment and order dated September 18, 1970 of the Andhra Pradesh High Court in Writ Appeals Nos. 587 and 588 of 1970.

S. V. Gupte and P. Phrameshwara Rao, for the appellants (in both the appeals).

P.A. Chaudhury and~. Rajendra Chowdhary, for respondents Nos. 1 to 7 (in C.A. No. 2161-A of 1970) and respondent No. 1 (in C.A. No. 2161-B of i970).

The Judgment of the Court was delivered by

I K Mitter, J.

These two appeals are from a comon jud~ ment of the High Court of Andhra Pradesh rendered m two wnt appeals from the judgment and order of a learned Judge of the

same court dismissing the applications filed by the appellants in tl!e High Court and some others under Art. 226 of the Constitution.

The central question in these appeals is, whether the Entrance Test prescribed under notification o! the Government dated July 23, 1970 for selection of candidates in the four Medical Colleges run by the State in the Andhra area is justified in law.

The facts are as follows.

In the Andhra area of the State there are four Medical Colleges run by the Government and the total number of sats available for admission in the first year Integrated M.B., B.S. course in all the four colleges is 550. The State Government has been issuing rules every year after the publication of the results of the H.S.C. or S.S.L.C. Board of the University for selection of candidates for admission into the Medical Colleges.

The test which was prescribed in July 1970 was the first of its kin~. The test was duly held after the Additional Director of Medical and Health Services had issued a notification inviting applications from candidates for the purpose on July 31,

1970.

Any one desiring to enter any of these Medical Colleges had to complete and file his application in the prescribed form by August 14, 1970 and appear at the Entrance Test to be conducted by the Director of Medical and Health Services on 30th August,

1970 at any of the centres indicated in the rules. There was an exemption from appearance at such examination for candidates who had taken an M.Sc. or B.Sc. Degree. The6overnment notification of 23rd July prescribed inter a1ia the following standard of eligibility : (I) Candidates possessing the minimum qualification of H.Sc. (Multipurpose),

I.S.C.,

P.U.C., A.I.H.S.C. or equivalent qualifications were eligible to appear for the Entrance Test provided that :

(a) In the above qualifying examinations, the candidaites had ta.ken up Physical sciences and Biological sciences for study and examination.

. ()>) Candidates had passed the qualifying examination m one attempt.

( c) Candidates had obtained not less than 50% of the marks in Physical and Biological Sciences put together in their qualifying examination.

(2) The Entrance Test was to consist of four papers ?f 50 marks each of the following subjects in two sessions :

(a) The subject of Physical Sciences (Chemistry and Physics). ·

702 SUPREME cOURT REPORTS

[1971] 3 S.C.R.

(b) The subj•ct qf Biological Sciences (Zoology and Botany).

' The candidates had to appear and answer two papers i.e. Chemistry' and Physical Sciences in the morning session and the remaining two papers i.e.

Zoology and Botany , in the evening session.

The Entrance Test was t6, be conducted in a single day in two sessions eac)l' of two hours' duration.

( 3) The standard of the test was to be comparable to the standard of qualifying examinations referred to above. ·

' ( 4) The test wa~ to be partly objective and partly narrative.

5,137 candidates applied for the Entrance Test out of which 4,669 were accepted for the , test. 4,331 candidates actually took the test.

As the number of :seats were limited the majority of the candidates who appeared for the test failed to secure admission.

Several writ petitions were filed in the. Andhra Pradesh High Court challenging the validity of the Entrance Test pres- cribed and the method of selection for admission to the Medical Colleges. ·

Writ.Petition No. 3859 of 1970 was filed on August 6, 1970, the main prayer being tnat the State should be directed to withdraw the notification published by the Additional. Director of Medical and Health Services with a further direction to the State to admit the _petitioners into the first year Integrated M.B., B.S.

course on the basis of the marks which had been awarded to them in the public Examinations.

Reliance was placed by the petitioners on certain provisions of the Andhra University Act (II of

1926) under which inter alia the Andhra University had been constituted as a body corporate with powers to provide for instructions in such branches of learning as might be considered suitable and to make provision for research and for the advancement and dissemination of knowlege, to hold examinations, to confer degrees on persons who, had pursued courses of study in the Universrty and to institute and maintain colleges and hostels, .etc. ' ' The contention of the petitioners was that it was the Academic: Council of the University which was competent to prescribe qualifications for admission intQ all degree courses in the University and it was not for the Government to substitute itself for a statutory Academic body and test academic standards of candidates seeking admission iinto the Integrated M.B .. B.S. course by the notification of the 23rd July.

This was described as an attempt to assess the merits of the candidates on academic standards different from those fixed by the University.

Holding the Entrance Test and making selection on the basis thereof in disregard of the marks obtained at the public .examinations he:ld by the University was further said to constitute an encroachment upon the Central subject listed in Entry 66 of List I of the Seventh Schedule to the Constitution.

Besides the above1 other grounds were also tak~, namely, that the Government oroer was discriminatory, that it was not valid for want of publication-in the official gazette, that the candidates were handicapped by reason of the fact that they did not have sufficient time to prepare themselves for the test and lastly that the test held by the Government interfered with the personal liberty of the candidates violating Art. 21 of the Constitution.

The learned trial judge dismissed the Writ Petitions. In appeal, however, the appellate Bench took a different view. 1n substance the appellate court was of opinion that although the State Government had a right to prescribe rules and lay down its own criteria for making admissions into the colleges, it could not do so in total disregard of the marks obtained by the students at the University or other public examination necessary for eligibility and they could only .do so if their action did not contravene the University Act or any other law. It was also held that the Government could hold a "test" in order to supplement or add to the qualifications already prescribed by the University or other educational authority for the purpose of assessing merits of candidates but they could not hold a test in substitution for the qualifying examinations, as this would be encroaching upon the jurisdiction of the universities concerned in the matter of laying doY..11 academic standards of the students.

We have therefore to examine whether the Government had a right to prescribe a test for making a selection of a number of candidates from out of the large body of applicants for admission into the first year M.B., B.S. course and whether such action of the Government contravened any provision already made by the legislature in that respect.

Under Art. 162 of the Constitution the executive power of a State extends to the matters with respect to which the legislature of a State has power to make Jaws but this is subject to the provisions of the Constitution. As the Government runs these colleges, it undoubtedly has a right and a duty to make a selection from the number of applicants applying for admission if all could not be admitted. If there was no legislation covering this field Government would undoubtedly be competent to prescribe a test itself to screen the best candidates. We have next to scrutinile the urovisions of the Andhra Universify Act relied on by the High Court to see whether the action of the Government ran counter to any of those provisions. Under s. 23

[1971 J3 S.C.R.

-Of the Act it was a body 'known as the Academic Council of the

University which had the, power by regulations of prescribing all courses of study and of determining curricula and the general control of teaching within the university and was responsible for the mainten3nce of the standards thereof.

Under sub-s. (2) (h) of the Act these powers include the power to make regulations regarding the admission bf students to the university or pi; escribing examinations to be recognised as equivalent to university examinations or the further qualifications mentioned in sub-s. (1) of s. 33 for admission to' the degree courses of the university.

Under s. 33 no student was to be eligible for admission to a course of study qualifying for admission to a post-matriculation university examination unless he had passed the examination pres- .cribed as qualifying for itdlllission to such course or an examination recognised by the Academic Council with the previous sanction of the State Government as equivalent th.ereto and possessed such further qualifications, if any, as might be prescribed.

Sri Venkateswara Universityi the only other University functioning in this area, was constituted under a similar statute and had almost identical provisions as th0se mentioned above.

' The above provisions of law do not mak-e it incumbent upon the Government to make their selection in accordance with the marks obtained by the applicant-candidates at the qualifying examination.

Obtaining 50% of t!ie marks at the qualifying examinations was the fir5t hurdle to be crossed by any candidate before he could submit an application for admission into a medi cal college.

The Government which ran the colleges had the right to make a selection out of a large number of candidates and for this purpose they could prescribe! a test of their own which was not against any law.

Merely because they tried to supplement the eligibility rule' by a written test in subjects with which the candidates were already familiar, their action cannot be impeached nor was there anything unfair in the test prescribed.

The test prescribed by the Govrnment must be considered in the light of a second hurdle' for the purpose of a screening to find out who of all the candidates applying should be admitted and who

hould be rejected.

Merely because the University had made regulations regarding tb'.e admission of students to its deree courses, it did not mean that any one who had passed the qualifying examination such as the P.U.C. or H.S.C. was ipso facto to be entitled to admission' to such courses of study. If the number of candidates applying for such admission far exceeds the umber

of seats available the University will have to make its choice out of the applicants to finli out who should be admitted and . if instead of judging the cadidates y te number ?f m_arks ?blamed by them in the qualjfymg exa1!11i:iat1on the. Un_1vers1ty thmks fit to prescribe another test for adm1ss10n no ob1ection can be taken

,.-,

thereto. What the University can do in the matter of admissions to the degree courses can certainly be done by the Government in the matter of admission to the M.B., B.S. cours-~.

In our view the test prescribed by the Government in no way militates against the power of Parliamefa under Entry 66 of List B I of the Seventh Schedule to the Constitution.

The said entry provides:

"Co-ordination and determination of standards in institutions for higher education or research and scientific and technical institutions."

The aLove entry gives Parliament power to make laws for laying down how standards in an institution for higher education are to be determined and how they can be co-ordinated.

It has no relation to a test prescribe, d by a Government or by a University for selection of a number of students from out of a large number applying for admission to a particular course of study even if it be for higher education in any particular subject.

Several decisions of this Court were cited at the Bar which throw some light on the subject.

In R. Chftralakha v. State of Mysore(') one of the contentions urged before this Court was that the Government of Mysore had no power to appoint a selection committee for admitting students to colleges on the basis of higher or different qualifications than those prescribed by the University.

What the Government had done in that case was to appoint one common selection committee for settling admissions to the Engineering Colleges and another such committee for settling admissions to Medical Colleges.

The Government of Mysore had sent a letter to the Director of Technical Education informing him that it had been decided that 25 per cent of the maximum marks for the examination in the optional subjects taken into account for making the selection of candidates for admission to Engineering Colleges shall be fixed as interview marks; it also laid down the criteria for allotting marks in the interview.

The selection committee conver~d the total , of the marks in the opiional subjects to a maximum of 300 marks and fixed the minimum marks for interview at 75. On the basis of the marks obtained by the candidates in the examination and those obtained at the interview, selectiohs were made for admission to Enuineering. and Medica~ <; olleges.

Sme of the candidates whose" applic.attons for adm1ss10n to the said collees were rejected filed petitions under Art. 226 of the Constitution in the High Court of


Mysore for quashing the orders issued by th~ Government in the matter of admission to the said colleges and for a direction that they should be admitted

1 in the Colleges strictly in order of merit i.e. according to the marks obtained in the qualifying examinations.

The arguments advanced before this Court were similar to those advanced before us.

Referring to s. 23 of the Mysore Univer£ity Act which g11-ve the Academic Council the power to prescribe the conditions for admission of students to the University and in exercise of Which power, the University had prescribed the percentage of marks which a student had to obtain for getting admission in me\lical or engineering colleges it was observed by this Court :

"The order of the Government does not contravene the minimum qualifications prescribed by the University; what the Government did was to appoint a selection committee and prescribe rules for selection of students who have' the minimum qualifications prescribed by the UniverSity.

The Government runs most of the medical and engineering colleges. . . . The colleges run by the Goverqment, having regard to financial commitments ahd other relevant considerations, can only admit a specific number of students to the said colleges.

They cannot obviously admit all the applicants who have secured the

1 marks prescribed by the University.

It has neeessarily

1 to screen the applicants on some reasonable basis.

The aforesaid orders of the Government only prescribed criteria for making admissions to colleges from among s, udents who secured the minimum qualifying marks prescribed by the Universit'IJ.

Once it is conceded, and it is not disputed before us, that the State Government can run medical and engineering colleges, it cannot be denied the power to admit such qualified students as pass the reasonable tests laid down by it.

This is a power which every private owner of a college will have, and the Government which run its own colleges cannot be denied that power."

Referring to Entry 66 in List I it was said :

~1£ the impat of the State law providing for such standards on Entry 66 of List I is so heavy or devastating as to wipe out or appreciably abr!dgt~ th~ c.entral field, it may be truck down. But that 1~ a questJol! of fact to be ascertained in each case.

It 1s not possible to hold that if a State legislature made a law prescribin.g a higher percentage of marks for extra-cumcular acti-

G • H

vities in the matter of admission to colleges, it wo11Jd be

d1ectly encroaching on the field covered by Entry 66 of List) .of the Seventh Schedule to the Constitution. If so, zt. zs. n?t d!sputed that the State Government would b.e wJthm its rights to prescribe qualifications for admission to colleges so long as its action does not contravene any other law."

With regard to the scheme of selection in that case it was said :

. "SI? lo_ng as the order lays down a releant objective ntena and entrusts the business of selection to

qualfied persons, this Coiirt cannot obviously have any say m the matter.

In this case the criteria laid down by the G?vernment are certafoly relevant in the matter of awardmg marks at the interview."

With respect, it seems to us that the observations above quoted are equally applicable to the case before us, the only difference being that whereas in the Mysore case marks were awarded 011 the basis of the impression created at the interview and added in -'11 certain manner •to the marks obtained at the university examination in the case before us the marks obtained at the University only make candidates eligible to appear at the written test and it is the last test which is the determining factor as to who should be admitted and who should be 'rejected.

In Rajendran v. State of Madras(') the petitioners challenged an order of the State Government by which rules were promulgated for selection of candidates for admission to a medical course.

These rules inter alia provided for selection and classification of candidates including one for awarding a maximum of 75 marks for extra-curricular activities which had been.specified uader five heads.

Turning down the contention that there was no objective test laid down in the rules for the interview it was said : (p. 795)

"So far as admission is concerned, it has to be made by those who are in control of the Colleges,-in this case the Government, because the medical colleges are Government colleges affiliated to the Univetsity.

In these circumstances, the Government was entitled to frame rules for admission to medical colleges controlled by it subject to the rules of the university as to eligibility and qualifications.

This was what was done in these cases and therefore the selection cannot be challenged on the ground that it was not inaccordance with the University Act and the Rules framed thereunder."


In Chitra Ghosh & another v. Union of India and C!fhers(') the appellants who had passed the pre-medical examination of the Delhi University obtaining over 62 % marks were refused admission to the first year M.B., B.S. course at the Maulana Azad Medical College which was a constituent of the University of Delhi and was established by the Government of India.

The college prospectus contained certain rules relating to the admission of students which made reservations of places in the college in favour of various ca1egories of students and provided for nominations to be mad~ by the Central Government to fill some of the reservrd places.

The appellants challenged primarily the power of the Central Government to make the nominations and contended that nine students n, ominated by the Government had obtained lower marks than theirs in the pre-medical examination so that if they were to be excluded, the appellants would become entitled to be admitted in the college.

Rejecting this contention it was said :

"It is the Cen1ral Government which bears th~ financial burden of running the medical colleges. It is for it to lay down the criteria for eligibility.

From the very nature of things it is not possible to throw the admission open to students from all over the country.

The Government cannot be denied the right to decide from what sources the admissions will be made.

That essentially is a question of policy and depends iter alia on an overall assessment and survey of the requirements of residents of particular territories and other categories of persons for whom it is essential to provide fai Jities for medical education. If the sources are properly classified whether on territorial, geographical or other reasonable basis it is not for the courts to interfere with the manner and method of making the classification." The above case is not directly in point but it at least shows that a candidate has not an unqualif..d right to seat in a medical college merely because he has obtained higher marks than another candidate at the qualifying examinMion.

G Mr. Choudhury the learned advoc, ate for the respondents put before us his contentions with regard to the above in three propositions, namely,. ( l) The State has no power to trench upon the powers given to the University.

The test prescribed contravenes s. 23 of the Act. (2) Even if the matter is not covered by the Universities Act the executive cannot be allowed to usurp a Jaw-making power in prescribing a test" ( 3) The rule . affts prejudicially the right conferred on candidates by the Umvers1ty Regulations.

(1) [1970] I S.C.R. 413.

. In our view there is no substance in any of the contentions as will be apparent from our conclusions noted above and the decisions of this Court bearing on this point.

The University Act, as pointed out, merely prescribed a minimum qualification for entry into the higher courses of study.

There was no regulation to the effect that admission to higher course of study was guaranteed by the securing of eligibility.

The Executive have a power to make any regulation which would have the effect of a law so long as it does not contravene any legislation already covering the field and the Government order in this case in no way affected the rights of candidates with regard to eligibility for admission : the test prescribed was a further hurdle by way of competition when mere eligibility could not be made the determining factor.

Mr. Choudhury faintly tried to urge other points which may be briefly noted.

One of the grounds was that some of the questions were not covered b} the curricula by the P.U.C. or the S.S.L.C. examinatisms.

This was not a ground which has any merit. If some of the questions were outside the syllabi all the candidates were at an eqnal disadvantage.

Alternatively the questions might have been put to find out whether the candidate's knowledge was limited to the syllabus or whether he was sufficiently interested in the subjects so as to acquire knowledge beyond the prescribed curriculum.

The next ground urged was that the written test was in substitution of the University examination and was altogether a novel experiment, no such test having been held before.

In our view there is no substance in this contention either.

The written test was not in substitution of the University examination but it was something additional to that and the mere fact that a written test had been introduced in the year 1970 would be no ground for holding that the method of selection was invalid.

Further no complaint can be made that the notice of examination was all too short or that it was never published in the Gazette. If it was short it affected everybody equally adversely and the figures showing how many candidates had taken the test demonstrat~ v7ry

G. clearly that everybody who had cared t.o s!t for the exan_i.maon had an opportunity of doing so.

Pubhcahon of the notification in the Gazette was not called for by any law.

Lastly it was urged that such test affected the peson.al liberty of the candidates secured under Art. 21 of the Conshtuhon. We fail to see how refusal of an application to enter a medical college can be said to affect one's personal liberty guaranteed under that article.

Everybody, subject to the eligibili!Y _prescribed by .the University was at liberty to apply for adm1ss10n to the medical college. The number of seats being limited compared to the

number of applicants every candidate could not except to be ad1!1itted.

Once it is held that the test is not invalid the deprivation of personal, liberty, if any, in the matter of admission to a' medical college was according to procedure established by law. 9ur 8:tten.tio, n was drawn to the case of Spottswood v. Sharpe('1) m which It was held that due process clause of the Fifth Amendment of the American Constitution prohibited racial segregation in the District of Columbia.

Incidentally the court made a remark (at p. 887) :-

"Although the Court has not assumed to define 'liberty' with any great precision, that term is not confined to mere freedom from bodily restraint.

Liberty under law extends to the full range of conduct which the individual is free to pursue, and it cannot be restricted except for a proper govermnental objective.

Segregation in public education is not reasonably related to any proper governmental objective, and thus. it imposes on Negro children of the District of Columbia a burden that constitutes an arbitrary deprivation of !heir liberty in violation of the Due Process Clause."

The problem before us is altogether different.

In this case everybody subject to the minimum qualification prescribed was at liberty to apply for admission. The Government objective in selecting a. number of them was certainly not improper in the circumstances of the case.

Learned counsel also referred us to an observation of this Court in Satwant Singh v. Passport Officer(') that :

" 'liberty' in our Constitution bears the same comprehensive meaning as is given to the expression 'liberty' by the 5th and 14th Amendments to the U.S. Constitution and the expression 'personal liberty' in Art. 21 only excludes the ingredients of 'liberty' enshrined in Art. 19 of the Constitution."

We do not find it necessary to dilate on this point in view of our conclusion that even if personal liberty extends to such conduct G there has not been any deprivation thereof in violation of any procedure established by law.

In the resuit the appeals are allowed, but in the circumstances we leave the parties to bear their own costs.

V.P.S. . . Appeals allowed.

(!) 98 L.Ed. 884.


918 Sup.C.I.171-20/6/72--GIPF.