C.P. Sen, J.
1. In this petition, the three petitioners challenge the declaration of the result, the valuation made for the Pre Medical Test Examinations held in the year 1983 by the respondents and also challenge the constitution of the Madhya Pradesh Vvavasavik Pathvakram Pravesh Pareeksha Mandal, respondent No. 1 (hereinafter referred to as the 'Mandal') and Rule No. 1.8.10 framed by it, barring any application for revaluation of the papers.
2. The respondent No. 1 Mandal is a body constituted under the executive powers of the State Government to hold entrance examinations for professional courses in Medical and Engineering Colleges in the State of Madhya Pradesh. For this purpose the Mandal framed certain rules and is conduction annual examinations for admission to these colleges every year. These three petitioners -- Sahastra Pal Singh, Kumari Anita Tiwari and Saniay Kumar -- appeared in the 1983 Pre-Medical Test Examination but none of them were declared successful. The petitioners' case is that the petitioner No. 1 is a science graduate and he was confident of clearing the examination but he was surprised to find that he was given only 187 marks out of total marks of 400. Although petitioner No. 2 appeared in all the papers but when she applied for the mark-sheet, she was shown absent in all the four papers against roll No. 110125 which was not her roll number; she obtained a certificate from the Dean, Medical College. Jabalpur from which centre she had appeared and sent it to the Mandal but with no result and subsequently she Hot the mark-sheet showing total marks of 203 against roll No. 510969. although her roll No. was 520550. The petitioner No. 3 is a first class science graduate from the Meerut University but he has got less than 50 per cent marks. One Ku. Vineeta Khurana did not appear in all the papers in the said examination, she received a mark-sheet showing her marks in the physics paper. The petitioners sent representations against the valuation of their papers but received no response from the Mandal. There is no provision for scrutiny or review in the rules of Mandal and Rule No. 1.8.10 prescribes that no application for revaluation of papers will be entertained under any circumstances whatsoever. This confers an arbitrary power on the Mandal without any guidelines. This rule is also discriminatory and violates Article 14 of the Constitution, under Section 27 (1) of the M. P. Vishwa Vidvalaya Adhinivam. 1973, the Universities are empowered to have faculties amongst other medicine, under Section 37 (1) of the Adhinivam the ordinances framed by the Universities may provide for the admission of students to colleges, teaching departments, schools of studies and laboratories and levy of fees and their enrolment. The term 'Colleges' include medical colleges. Ordinance No. 7 has been framed by the University of Jabalpur for regulating the admission to colleges. The executive power of the State thouah extends to matters with respect to which the State Legislature has power to make laws, yet the limitation to the exercise of such executive powers by the State Govt. is restricted if any Act or law has been made by the State Legislature conferring any function on any other authority, in that case the Governor is not empowered to make any order in regard to that matter in exercise of his executive power. Therefore, the constitution of the Mandal by the respondent No. 2 is illegal and invalid and violative of Articles 154 and 162 of the Constitution.
3. The respondents in their return denied that the constitution of the Mandal is violative of any provisions of the Constitution: there is no bar in constituting a Mandal for conducting examinations for entrance to professional courses: neither the regulation of the Medical Council of India nor the M. P. Vishwa Vidvalava Adhinivam. 1973 or its ordinances govern the subject of entrance to the medical colleges: the method of examination is a device to select candidates for the admission to medical colleges: the marks obtained by each of these three petitioners were much below the minimum marks at which admissions have been given to other candidates: the rules framed by the Mandal do permit supply of mark-sheets to the candidates and of re-totalling of the marks but not revaluation of the papers which is impracticable in view of large number of candidates appearing in the examinations, the valuations are done carefully by competent professors: Rule 1.8.10 is not arbitrary nor it gives unguided power to the Mandal: petitioner No. 2. Ku. Anita Tiwari, applied to appear at the examination from Gwalior centre, hence she was allotted roll No. 110125 but later on she changed her mind and decided to appear from Jabalpur centre and she was given roll No. 510969 at Engineering College. Jabalpur, however, she presented herself at the Medical College centre. Jabalpur and the Dean out of compassion allotted a new roll No. 520550 and allowed her to take the examination and naturally in the mark-sheets against her roll Nos. 110125 and 510969 she was shown absent in all the papers but her correct marks have been given against roll No. 520550: similarly, by mistake Ku. Vineeta Khurana was shown as having appeared in the physics paper due to mistake in the digit of the computer: this was subsequently corrected and she was shown absent in the paper: the petitioners could have applied for re-totalling under the rules: in some cases there may be mistake due to human error or mechanical failure but there is no deliberate error committed and the admissions have been rightly given to the deserving candidates.
4. Since the petitioners got less marks than those who have been given admission in the medical colleges, the only questions that survive are: (i) whether the M. P. Vyavsayik Pathyakram Pravesh Pareeksha Mandal, respondent No. 1, has been validly constituted and whether this constitution is hit by Articles 154 and 162 of the Constitution: and (ii) whether Rule 1.8.10 is discriminatory and confers arbitrary and unaulded poweron the Mandal.
5. There are in all nine Universities in the State of Madhya Pradesh, besides, the Khairagarh University of Music and five Medical Colleges, which are run by the State Government. There are 720 seats in all in these Medical Colleges. The State Government, in exercise of its executive power, by order dated 16-3-1982, made rules for admission to Medical. Dental and Avurvedic Colleges in Madhya Pradesh and constituted the M. P. Vyavsavik Pathyakram Pravesh Pareeksha Mandal for conducting tests for admissions to these colleges. The question is whether the Mandal has been validly constituted by the State Government. Article 154 of the Constitution is as under:
'154. (1) The executive power of the State shall be vested in the Governor and shall be exercised by him either directly or through officers subordinate to him in accordance with this Constitution.
(2) Nothing in this article shall--
(a) be deemed to transfer to the Governor any functions conferred by any existing law on any other authority; or
(b) prevent Parliament or the Legislature of the State from conferring by law functions on any authority subordinate to the Governor.'
Under Article 161 of the Constitution the executive power of the State shall extend to the matters with respect to which the Legislature of the State has power to make laws. The Supreme Court in Bishamber Dayal Chandra Mohan v. State of U. P., AIR 1982 SC 33 it has been held--
'The State in exercise of its executive power is charged with the duty and the responsibility of carrying on the general administration of the State. So long as the State Government does not go against the provisions of the Constitution or any law, the width and amplitude of its executive power cannot be circumscribed. If there is no enactment covering a particular aspect, certainly the Government can carry on the administration by issuing administrative directions or instructions, until the legislature makes a law in that behalf.'
Under Entry No. 66 of List I of the Seventh Schedule to the Constitution co-ordination and determination of standards in institutions for higher education or research and scientific and technical institutions vest in the Union Government, but Entry No. 25 in List III to the said Schedule provides for education, including technical education, medical education and education in Universities which is in the concurrent list. Recently the Supreme Court in State of M. P. v. Nivedita Jain, AIR 1981 SC 2045 fat p. 2057) has held:--
'Entry 66 in List I (Union List) of the 7th Schedule to the Constitution by itself does not have any bearing on the question of selection of candidates to the Medical Colleges from amongst candidates who are eligible for such admission. On the other hand. Entry 25 in List II (Concurrent List) of the same Schedule is wide enough to include within its ambit the question of selection of candidates to Medical Colleges and there is nothing in the Entries 63. 64 and 65 of List I to suggest to the contrary. Therefore the Regn. II which is merely directory and in the nature of a recommendation has no such statutory force as to render the order in question which contravenes the said regulation illegal, invalid and unconstitutional. Under Article 162 of the Constitution the executive power of a State, extends to the matter with regard to which the legislature of a State has power to make laws. As there is no legislation covering the field of selection of candidates for admission to medical colleges, the State Government would, undoubtedly, be competent to pass executive orders in this regard.'
6. The Madhya Pradesh Vishwavidyalaya Adhiniyam, 1973 has been enacted to consolidate and amend the law relating to Universities and to make better provision for the organisation and administration of Universities in Madhya Pradesh. Section 37 (i) provides that subject to the provisions of this Act and the Statutes, the ordinances may provide for all or any of the following matters, the admission of students to colleges,
Teaching Departments. Schools of Studies and laboratories and lew of fees and their enrolment. The Executive Council of a University has been empowered under Section 38 of the Act to make ordinances. Ordinance No. 7 of the Jabalpur University fat present Rani Durgawati University) provides for admission of students to a College. University Teaching Department or School of study, transfer of students and maintenance of discipline. Neither the Adhiniyam nor the ordinance provides for selection of candidates by holding examinations for admission to Medical Colleges in the State. Therefore, according to us there was no impediment for the State in constituting the Mandal for holding Pre-Medical Examination test for admission to Medical Colleges. It has to be realised that there are several Universities and five Medical Colleges in the State and a uniform test had to be laid down for admission to these Medical Colleges, This may not be possible in case each University makes its own ordinance regarding holding of examination for admission to those Medical Colleges, though such a power has not been given to the Universities under the Adhinivam. Under the Adhiniyam the Universities have been empowered to provide for instruction in different branches of education to establish, maintain and manage colleges, teaching departments, schools of studies, centre of studies and halls, to institute professorship, to recognise teachers as qualified to give instructions in colleges, to lay down courses of instructions for various examinations and to institute degrees, diplomas, certificates and other academic distinction.
7. A single Bench of the Calcutta High Court in Jitendra Nath v. W. B. Board of Examination. AIR 1983 Cal 275 held that the Executive Order of State Government constituting a special examination Board to conduct competitive test for admission to Medical/Engineering/Technological Colleges is illegal. But the case is clearly distinguishable. In that case it was found that the cower to hold examinations for admission to medical and technological decree colleges affiliated to the Calcutta University vested in the University and its council for undergraduate studies for medical and dental science and the council for undergraduate studies in engineering and technology under the Calcutta University Act, 1979. That is not the case here. The Universities here are not empowered to conduct such entrance examination for admission to Medical Colleges. Therefore, it has to be held that the Mandal has been validly constituted.
8. Now the question remains whether Rule 1.8.10 framed by the Mandal is ultra vires the Constitution and whether it gives arbitrary and unguided power to the Mandal. The rule provides that no application for revaluation of papers will be entertained under any circumstances whatsoever. However, the rules framed by the Mandal provide for re-totalling of the marks on the application of any candidate. There is also no bar under the rules for permitting a candidate to examine his papers in order to verify whether his papers have been valued and the totalling has been done correctly. It has been explained in the return of the respondents that in view of the large number of candidates appearing in the Pre-Medical Test Examination, it is not practicable and possible to provide for revaluation of the papers. The examinations are conducted by senior and experienced professors. In the year in question, the Mandal consisted of the Directors of Public Health. Medicine. Technical Education and Agriculture and Deans of Medical Colleges and other Colleges. It is expected that the valuation of the papers of the candidates are done carefully and correctly and chance of wrong valuation is practically remote. There was checking and cross-checking. Moreover the identity of the candidate is kept secret and only roll number is given. Therefore, the rule is intra vires and is valid: it is neither arbitrary nor discriminatory nor opposed to the concept of fair examination and necessary guidelines have been laid down in the rules for conducting the examination. The decision of the Bombay High Court in Paritosh v. M.S.B.S. & H. S. Education. AIR 1981 Bom 95 is clearly distinguishable. There the Regulation No. 104 (3) of the Maharashtra Secondary Education Board was held to be ultra vires and unreasonable as it prohibits disclosure and inspection of the answer books and other connected documents on the ground of confidentiality. It was observed that an access of the student to the answer books would enable him to verify (1) if the papers are his own. (2) supplementary answer papers are duly tagged (3) all answers are evaluated. (4) totals are correct. (5) marks to his practicals or internal assessment are included therein, and (6) his adverse results are not due to any error or manipulation. Here the rules framed by the Mandal provide the safeguard Similar is the decision of the Calcutta High Court in Jitendra Nath's case (AIR 1983 Cal 275) (supra). There also the rules did not provide for publication of the result with marks obtained by individual candidates nor for post-publication review or scrutiny. So it was held that the rules are arbitrary, discriminatory and opposed to very concept of fair examination. But here the results are duly published, mark-sheets are supplied to individual candidates and re-totalling is permissible.
9. With the result, the petition fails and it is dismissed. There shall be no order as to costs. The outstanding amount of security be refunded to the petitioners.