M.H. Beg, C.J.
1. Each of the two petitioners before us complains of denial, on similar grounds, of admission into the Medical College. Simla, run by the Government of Himachal Pradesh (hereinafter referred to as the College). As questions of fact and law common to both the cases arose, they were connected and argued together, and will be disposed of by a single judgment.
2. Both petitioners, about 17 years In age at the time of applying for admission, submitted that they had complied with the conditions given in the Rules contained in the prospectus of the college for the year 1970-71 so that they were entitled to be considered for admission by the Selection Board.
3. The prospectus for 1970-71 gives the objectives of the teaching programme of the college as follows:--
'1. To enable the students to prepare for general practice of medicine together with an understanding of the patient as an individual who is an integral part of the society.
2. To help develop firm foundations of scientific medicine so that students are enabled to continue self education throughout their professional career.
3. To encourage inquisitive attitude and foster a desire to advance knowledge as well as to apply it.' This statement of objectives will have to be borne in mind in judging whether the criteria framed for admission to the College were reasonably connected with the objectives aimed at by the teaching programme. The legality of other objectives, which may be gathered from the affidavits filed on behalf of the College and the Government of Himachal Pradesh, will also be considered by us.
4. Part B of the prospectus deals with admission of candidates and states that conditions given therein should be carefully studied by them before submitting their applications and that these will govern admissions. The relevant Rules contained here are:--
Admission to this College will be done according to the conditions given below which should be carefully gone through by the desirous candidates while submitting their applications.
Subject to any special order of the Himachal Pradesh Government, the total seats in the College is limited to 60. This number will be increased when the buildings are ready. Students of the following categories will be eligible to compete:
(a) Permanent residents of Himachal Pradesh.
(b) Children of Himachal Pradesh Government employees. Note-- (1) Candidates with rural bias will be preferred. (2) Children of Non-Himachal Central Govt. employees serving in Himachal Pradesh are not eligible for admission into H. P. Medical College, Simla.
Against the total number of 60 seats, the admissions will be done as under:
(a) Scheduled Castes 15% Inter--(b) Scheduled Tribes 5% changeable(c) Backward Classes 2%(d) Son(s) daughter (s) ofDefence Service Personnel of HimachalPradesh who distinguish- ed themselves in theNational Emergency One(e) Women students Twelve(f) Remaining seats to befilled on merit. 34 Note: Remaining unfilled seats from thecategories (a), (b), (c) & (d) mentioned above will be treated asunreserved provided the required number of eligible candidatesdo not come forward and will befilled on merit.
Admission of women candidates against twelve seats will be done purely on open merit. No special teaching arrangements exist for them. Their teaching and study arrangements are the same as for the male students, with whom they have to work.
2. The minimum qualification for admission is F. Sc. (Medical Group) or pre-Medical or equivalent examination as recognised by the Punjab University in 2nd Division, which for this purpose will be 50% of total marks obtained in compulsory subjects viz. English, Physics. Chemistry (including Organic Chemistry) and Biology only, of the qualifying examination, after deducting the marks. if any, obtained in the optional subjects.
3. Every candidate for admission to this College must complete the age of 17 years on the 1st October, for the admission year.
4. All applications for admission must be addressed to the Principal of the College by designation and to be submitted in his Office by the date, which may be notified in the Press, in 'Appendix A' of this prospectus. It should be attested by a person of known respectability and must be accompanied by a crossed Indian Postal Order for Re. 1/-only drawn in favour of Principal, Himachal Pradesh Medical College. Simla, being the registration fee and copies of the following certificates duly attested by a Magistrate 1st Class or a Gazetted Government Officer:--
(i) A certificate of having passed the qualifying examination as noted in paragraph 2.
(ii) A certificate of good conduct and character from the Principal of the College where the candidate studied last.
(iii) Matriculation or its equivalent certificate showing the date of birth.
(iv) A certificate from the Registrar of the Punjab University or other recognised University/Board showing the total number of marks allotted and obtained in each of the subjects of the Pre-Medical or F. Sc. (Medical Group) or 1st Year of T. dC. (Medical); and B. Sc. examination passed in case of graduates.
(v) Certificate of being a permanent resident of Himachal Pradesh from the Magistrate 1st Class of the area to which the candidate belongs, on the prescribed pro forma provided with the descriptive roll (Appendix 'A'). This certificate other than on the prescribed form will not be accepted or considered at all or
A certificate from the Head of Office/ Department in case of children of Government employees and that their father/ mother is in employment of Himachal Government.
(vi) In case of candidates seeking admission against reserved seats for Scheduled castes/Scheduled Tribes/Backward Classes -- A certificate of belonging to Scheduled Castes/Scheduled Tribes/Backward Classes from the Magistrate of the area concerned, in the prescribed form provided in the descriptive roll (Appendix 'A').
(vii) Two spare copies of the latest pass port size photographs.
Note-- (a) Candidates, while submitting their applications to the Principal, should not forward original certificates but must produce them before the Selection Board at the time of interview.
(b) The form of descriptive roll and the copies of the certificates will not be returned.
5. The form of descriptive roll/applications/documents of any kind received after the specified date for their receipt will not ordinarily be entertained. The name of a candidate whose application form is received incomplete, will not be registered for consideration of admission to this College. Application for admission supported by the required certificates does not in itself confer a right to be admitted to the College.
6. The selection of the candidates for admission will be made by the Selection Board duly constituted by the Himachal Pradesh Government, after interviewing the candidates. The Board will take into consideration the marks obtained in the four compulsory subjects as mentioned in para 2 of the qualifying examination and the performance at the interview. Those who have not passed in these four subjects in the qualifying examination will not be considered.
The Board for selecting candidates for admission to be constituted by the Himachal Pradesh Government the Principal will ordinarily be the Chairman. The Principal may call as many candidates registered for admission, as he may consider necessary against the seats to be filled by Himachal Pradesh Government. The candidates called for interview will not be entitled to any expenses incurred by them in connection with their admission and interview etc.
7. Selection will be done by the Board in the following order:--
(i) In case of B. Sc. candidates, they should have passed in 1st Class securing 60% and more marks in compulsory subjects and performance at interview provided:
(a) They have passed B. Sc. with English as one of their subjects, according to old regulation or any of the three subjects viz. Botany, Zoology. Chemistry, Physics, Physiology. Human Anatomy and Biochemistry according to the new regulation, and
(b) They have passed F. SectionC. (Medical Group) examination or Pre-Medical Examination or an equivalent examination of recognised University.
(ii) F. Sc. (Medical Group) or Pre-Medical students will be admitted according to the marks obtained by them in four compulsory subjects in their qualifying examination and at interview.
8. The candidates who have passed their qualifying examination in the second attempt, 2% marks will be deducted from the aggregate marks (excluding optional). The candidates appearing in part of qualifying examination will be treated as a failure (attempt). The candidates of improved division from other University/Board will not be allowed admission in this Institution, in view of the decision of the Punjab University reproduced below. However, applications for admission of such candidates will only be considered on their first success in the qualifying examination.
'The Punjab University do not recognise the Pre-Medical certificate of other Universities and Boards in respect of the following categories of the students and that in no case such students should be allowed to join the M. B. B. SectionCourse and B. D. Sectioncourses in July, 1969 and subsequent years.
(a) A student who has passed Pre-Medical or an equivalent examination from another University or Board by taking the examination privately i.'e. neither as a regular student nor as a late College student.
(b) A student who has passed Pre-Medical examination from this University and has re-appeared and again qualified in that examination from another University or Board with higher marks.
The candidates passing the qualifying examination in more than two attempts will not be considered for admission.
9. Every candidate, coming from other Universities/Board for admission to 1st year of M. B. B. SectionCourse in this College, has to produce an Eligibility certificate, obtainable from the Punjab University, like students coming from foreign Universities, at the time of admission, but if in a particular case that may not be possible, he/she must produce it within two weeks of his/her admission, failing which his/her admission shall be invalid and such students will not be allowed to continue their studies.
10. The decision of the Selection Board for admission of candidates to the College will be displayed on the College Notice Board. It will be final and binding on the parties concerned and no appeal against their decision will lie to any authority whatsoever.' Rule 12. which is also relevant reads:
'If a candidate is admitted on the basis of statement made in the form of descriptive roll but at a subsequent time it is discovered that any of the statements was false, the student shall be removed from the College and all the fees and all other dues paid-up-to the date of such removal shall be confiscated. The Principal may take any further action against the candidate and his/her guardian that may be considered suitable.'
5. Before considering the question whether the petitioners were qualified for admission in the year 1970-71, in accordance with the Rules contained in the prospectus, we may dispose of a preliminary question relating to the binding force of these Rules. Neither side has placed before us any statutory provision under which these Rules could have been framed, although it is stated that the College is affiliated to the University of Himachal Pradesh. But, both sides have proceeded on the assumption that these Rules are binding upon them and govern admissions of students to the College.
6. There is no doubt that Rule making power is, strictly speaking, a legislative power, as Professor S.A. de Smith has observed, in 'Judicial Review of Administrative Action' 1968 ed. p. 57:
'The distinction between legislative and administrative acts is usually expressed as being a distinction between the general and the particular. A legislative act is the creation and promulgation of a general Rule of conduct without reference to particular cases; an administrative act is making and issue of a specific direction, or the application of a general Rule to a particular case in accordance with the requirements of policy.'
6-A. In R. Chitralekha v. State of Mysore. (AIR 1964 SC 1823), it was held that a direction given by the Government of Mysore, under Article 162 of the constitution, evidenced by a letter written by an Under Secretary on behalf of the Government, could be used to support the validity of the Rules laying down the criteria for admission to a Medical College. It was held there that the executive power under Article 162 was coextensive with the power of the State legislature to legislate. The limitation was that it could not be exercised in derogation of any statutory provision. In that case, the question did arise whether the criteria for admission framed by the Government of Mysore did or did not conflict with the provisions of the Mysore University Act. In the case before us, as no statutory provision, under which the Rules in the prospectus could be made, was cited, no question of any conflict with such a provision could arise.
7. In Chitra Ghosh v Union of India, (AIR 1970 SC 35) one of the reasons given by the Supreme Court, for not going into the validity of the Rules contained in the prospectus of a medical college and the conditions relating to admission to that college, was that, before the Supreme Court as well as the High Court, both sides had argued on the footing that the Rules contained in the prospectus had statutory sanction and were not of a purely administrative nature, although reference was also made there to the provisions of the Delhi University Act and the Ordinances framed thereunder to indicate the statutory basis on which the conditions contained in the prospectus could rest. Before us also, both sides agree that Rules in the prospectus are binding on them.
8. In M.R. Balaji v. State of Mysore. (AIR 1963 SC 649) the Supreme Court held that special provisions under Article 15 (4) of the Constitution for admissions to a College could be made by means of an 'executive order' given by the Government. In Moti Lal v. State of U. P.. (AIR 1951 All 257) (FB), a Full Bench of the Allahabad High Court held that executive power embraced 'More than merely executing laws.'
9. We find it stated in the replies filed on behalf of the respondents that admission in the first year M. B. B. S. course in Medical College, Simla, takes place in accordance with the Rules and regulations given in the College prospectus of 1970. 'duly approved by the Himachal Pradesh Government.' Although, it has not been shown to us what authority or person actually framed these Rules, yet inasmuch as every institution for the education of students has to have a set of Rules regulating admission and other matters connected with imparting of education, we think we will be justified in presuming that some person or body had with the authority and sanction of the Government concerned behind it, made the Rules in the prospectus which are of the nature of bye-laws.
10. In Yabbicom v. The King, (1899-1 QB 444), it was held that
'bye-laws properly made have the effect of laws and a public body cannot, any more than private persons, dispense with the laws that have to be administered; they have no dispensing power whatever.'
In other words, the college and the Government which runs the college cannot go behind the Rules and observe some procedure or apply some Rules or criteria for admission not found in these Rules.
11. Again, on the principle that the Rules contained in the prospectus were representations to the public, or to individuals seeking admissions, on which reliance could be placed by candidates, it would not be open to those who make such representations, even as a result of executive orders, to apply some other Rules or criteria not contained in these Rules. In support of such a principle, the authority cited was: Union of India v. Anglo Afghan Agencies, (AIR 1968 SC 718).
12. Right of admission to an educational institution, run either by the State or by a State aided institution, is considered sufficiently important to be classified as a fundamental right in Article 29 (2) of our Constitution. We may also refer here to the term 'State' as used in Article 12 for the purposes of Part III of the Constitution, which would include, for the purposes of enforcing fundamental rights, institutions such as medical colleges run by the State which do not have legally separate entities. The Rules made by such a college, or on its behalf, by the State Government would be law. Law, as defined by Article 12. 'includes any ordinance, order, bye-law, Rule, regulation, notification, custom or usage having in the territory of India the force of law.'
13. We, therefore, conclude that we are justified in treating the Rules laid down in the prospectus as having the force of law governing the rights of applicants for admission, the power and obligations of the college, its Selection Board, and the Government, in dealing with the cases of the petitioners for admission which we now proceed to examine.
14. Kumari Manju Baweja claimed to be a permanent resident of Himachal Pradesh and the daughter of an employee of the H. P. Government. It was admitted, in paragraph 4 of the reply filed on behalf of the opposite parties, that the application of the petitioner duly completed was received before the scheduled dates along with her admission form for admission to first year of M. B. B. Sectioncourse in H. P. Medical College, Simla. This meant that the petitioner had correctly asserted, in para 4 of the petition, that her application was accompanied, as required by Rule 4 of the prospectus with:--
(i) A certificate of having passed the qualifying Pre-medical examination from the University of Punjab in April. 1970 in which she secured 60.5% marks in the four compulsory subjects, namely, English, Physics, Chemistry, and Biology as disclosed by the copy of the certificate of the Registrar of the University (An-nexure PD);
(ii) A certificate of good conduct and character from the Principal of the College where the candidate last studied;
(iii) A Matriculation certificate or its equivalent showing the date of birth;
(iv) A certificate of the Registrar of the University concerned showing the marks obtained by the candidate in each of the subjects of Pre-medical examination;
(v) a certificate from the Executive Engineer Mandi Division, H. P. P. W. D., Who is the Head of the Office of the petitioner's father, certifying that he was a Himachal Pradesh Government employee; and
(vi) two passport size photographs of the candidate.
15. Rajesh Kumar Abbey had set up a similar case of due compliance with the provisions relating to admission of candidates to the college by satisfying the six conditions laid down. In his case also, in paragraph 4 of the reply filed by the opposite parties, formal compliance with the Rules for admission was admitted, but, in his case, just as in the case of Kumari Manju Baweja, the opposite parties claimed to go behind the certificate filed and to determine the question Whether the candidate had really satisfied the eligibility test prescribed for a child of a Himachal Government employee.
16. It may be mentioned here that, after the petitioners had been interviewed by the Selection Board, the father of Kumari Baweja was informed, on 1st August, 1970, that the certificate of Executive Engineer was not acceptable for reasons which were not disclosed. The father of R. K. Abbey also learnt, from the Chief Engineer, that certification by the Executive Engineer was not enough for his son. As a consequence, each petitioner had submitted another certificate from the Deputy Accountant General, dated 3-8-1970, that the father of each petitioner was a Divisional Accountant, 'borne on the H. P. cadre of Divisional Accountants and is a State Employee of Himachal Pradesh for all purposes' and that 'only the administrative control of the Divisional Accountants rests with the Accountant General, Himachal Pradesh.' As will be seen later, the Government had not accepted the correctness of these certificates of the Accountant General also.
17. The powers possessed and the procedure followed by the Selection Board and the Government as well as the conclusions reached by them are assailed by each petitioner. Before considering these aspects of the attack of the petitioners on such decisions of the opposite parties as we may be able to discover here, an account of the manner in which the disputed questions were dealt with by the opposite parties may be given.
18. It will be noticed that neither of the two petitioners had claimed, at the time of applying for admission, as a candidate belonging to the category of permanent residents of Himachal Pradesh. Both had come exclusively on the ground that they belonged to the second class of children of Himachal Pradesh Government employees. Both had attached the required certificate showing that, on the face of the certificate, the condition in Rule 4 (v) (b) had been fulfilled. In each case, the certifying officer had stated his conclusion that the person concerned was a Himachal Pradesh Government employee. But, in the case of Kumari Manju Baweja, it appears that, after her interview by the Selection Board, her father received a letter dated 1st of August. 1970, (Annexure PE) from the Principal of the College, informing him that his daughter could not be considered on the basis of the certificate furnished by him. It went on to say:
'I am, therefore, directed by the Government to request you to submit a certificate of being a permanent resident of Himachal Pradesh for the purpose, so as to enable this office to proceed further in the matter. It must reach this office before 5 p.m., Thursday, the 6th August, 1970.'
It was, therefore, fair to infer that, from Kumari Manju Baweja, an alternative claim on the ground of a possibly permanent residence, was invited and was also under consideration.
19. It was in response to the above mentioned letter that the petitioner's father had submitted a residence certificate also purporting to fulfil the requirements of Rule (v). That Rule lays down the condition that there should be a certificate of being a permanent resident of Himachal Pradesh from a Magistrate First Class 'of the area to which the candidate belonged' on the prescribed from with a descriptive roll. The certificate submitted is in the prescribed form, but. as the petitioner's father was a displaced person from Pakistan, who had no domicile of origin in India, he could not give the village or tahsil of the district in which he could be said to have his permanent residence. All that was stated there was that he was a 'Divisional Accountant in Mandi, Himachal Pradesh Division, and a permanent resident as intended by him in his affidavit.' It was certified that he belonged to an urban area. It is evident that the particulars relating to the village and tahsil could only be given by a person residing in a rural area. The certificate clearly stated that it was based ' on an affidavit of the petitioner's father showing his intention to reside permanently in Himachal Pradesh. There was no ambiguity about the basis on which this certificate was given
20. The above mentioned certificate did not satisfy the opposite parties which, according to the affidavit of Shri H. R. Mahajan. Secretary to the Himachal Pradesh Government, filed on 10th December. 1970, conducted enquiries of their own through the C. I. D. and other sources. These revealed that the petitioner Kumari Manju Baweja, when applying to the Maulana Azad Medical College and Associated Urban and G. B. Pant Hospitals in Delhi for the same session, commencing from July. 1970, had indicated, against the column of residence, that she was 'a displaced person registered in Delhi under registration office No. T. 3378, dated 18-11-1947.' It was also found that she had given in her application as her permanent address 'C/22-24 Karbala, New Delhi.' It also appeared that no domicile certificate was submitted by her in Delhi.
21. It is stated in the last affidavit, dated 9th September, 1971, filed on behalf of opposite parties, that the case of Kumari Manju Baweja was dealt with on the footing that she had 'never filed a certificate of being a permanent bona fide resident of Himachal Pradesh as required', and that her case was considered on the assumption that she had only filed a certificate of the Executive Engineer, Mandi Division, Head of the P. W. D. Office in which the petitioner's father worked. This meant that, although Kumari Manju Baweja had been asked to put forward her claim on the basis of a certificate of her permanent residence, this claim was presumably rejected, No intimation of rejection of this alternative claim or its grounds had been given, to her or her father.
22. The affidavit of 9-9-1971, on behalf of opposite parties indicates that the certificate of the Executive Engineer was not accepted as it contained references to certain letters showing that the petitioner's father M.L. Baweja was allocated to the 'Himachal Pradesh cadre' and was working as Divisional Accountant in the office of the P. W. D. at Mandi. The Executive Engineer had reached the definite conclusion and certified that M. L. Baweja was 'a Himachal Government Employee', but he had added that his conclusion was based on the terms of certain letters seeking thereby only to fortify his conclusion. The affidavit of 9-9-1971, filed on behalf of the opposite parties, shows that, as the Principal was not satisfied about the correctness of the basis of the Executive Engineer's certificate, he enquired from the office of the Accountant General, Himachal and Chandigarh, about the letters mentioned by the Executive Engineer, but these were not available there. It also appears that, on 4th of August, 1970, the Chief Engineer sent a letter to the Principal, Medical College, Simla, showing that he did not have any orders to treat persons posted by the Accountant General. Himachal Pradesh, as Divisional Accountants in H. P. P. W. D. as 'State Employees.' He had, however, referred the Principal to the Accountant General. The view and the decision of the Accountant General was also made known to the Principal. That view, contained in the certificates dated 3-8-1970, submitted to the Principal, was that the father of each petitioner was a Himachal Pradesh Government employee.
23. It thus appears that, even before the letter from the Chief Engineer dated 4th August. 1970, (Annexure 23 to the affidavit of 9-9-1971) or the Accountant General's certificate of 3-8-1970, was received by the Principal, a letter had been sent to Km. Baweja's father that the petitioner's admission to the course could not be considered on the basis of the certificate furnished and that the Principal had been directed by the Government to request M. L. Baweja to submit a certificate that he was a permanent resident of Himachal Pradesh. In other words, before the material could be obtained to enable the Selection Board or the Government to decide whether the petitioner's father was or was not a Himachal Government employee, the Prinicpal had already taken the decision on the basis of some alleged communication from the Government of which no copy was placed before us.
24. The petitioner complained that enquiries were conducted, on the questions both of the permanent residence of the petitioner's father and his status as a Himachal Pradesh Government employee, behind the back of the petitioner and her father and that some secret decisions were taken, for unknown reasons, which were not communicated to them. As the authorities may have been unable to make up their minds in time, on the difficult questions raised, it appears that no names were notified in accordance with Rule 10. Our conclusion that at least the Selection Board was unable to make up its mind, even if these questions were placed before it or it had any jurisdiction to consider and decide these matters, quasi-judicially or otherwise, is supported by references to the proceedings before the Selection Board, the record of which was examined by us. The recorded proceedings of the Board, at page 121 of the record, show that, against the name of Kumari Manju Baweja, the note in column 10, meant for remarks where the conclusions were presumably to be recorded, runs as follows:--
'Referred to Investigation Department for her claim being a daughter of Himachal Government employee.'
25. This indicated that the petitioner's claim, on the alternative footing that she was a permanent resident of Himachal Pradesh, was not even placed before the Selection Board, although it was invited and made to appear that the authorities concerned will consider and decide it, and the other claim was 'referred to the Investigation Department.' No other decision of the Selection Board about Kumari Baweja was pointed out to us.
26. So far as Rajesh Kumar Abbey is concerned, the affidavit of 9-9-1971, filed on behalf of opposite parties, contains the assertion that his case was not put by him, at the time of applying for admission, on the basis that he claimed to be a permanent resident of Himachal Pradesh. It was, however, urged on behalf of this petitioner, that just as Kumari Manju Baweja had been asked to submit her case, if possible, on the alternative basis that she was a permanent resident of Himachal Pradesh, although this was not the footing on which she had applied, an identically similar situation of R.K. Abbey, who is also the son of a displaced person, settled in Himachal Pradesh, entitled him to a similar opportunity, so that Article 14 of the Constitution is not infringed, even if he did not. when making his application for admission, depend on any such a claim. Another complaint was that other candidates similarly situated had been admitted after accepting affidavits of their guardians so that Article 14 was infringed. It was submitted that the opposite parties had exercised a power to pick and choose arbitrarily.
27. It was also pointed out that, when this petitioner's father had been granted an interview on 10-8-1970, accompanied by two local leaders, by the Hon'ble Health Minister, at which the Principal of the College was also present, the petitioner's 'eligibility certificate' was asked for from the petitioner's father who had, accordingly, submitted one. This certificate (Annexure PL) from the Additional District Magistrate of Bilaspur, headed 'Certificate of Eligibility', was given, in accordance with Rules 3 and 4 of the Himachal Pradesh, etc. Public Employment (Requirement of Residence) Rules, 1959, and only stated that S.K. Abbey, 'having furnished the necessary proof' is 'eligible to hold any post included in the first schedule to the Rules.' It was, therefore, contended that the petitioner's father was actually misled by having been asked for the wrong certificate which he submitted to the Principal, on 12-8-1970, with a letter stating that he had complied with the additional requirement even though this was not relevant for considering the petitioner's case for admission to the College.
28. The certificate dated 20-6-1970 (Annexure .PE) furnished by R. K. Abbey with his application for admission is from the Executive Engineer, Bilaspur Division No. 1 of the H. P. P. W. D., and runs as follows:--
'Certified that as per his service records, Shri Krishan Lal Abbey. Divisional Accountant has been in the service of Himachal Pradesh, P. W. D. since 28-11-1958, and has served his terms at Simla, Solan, Nahan and is at present posted in Bilaspur Division No. 1, H. P. P, W. D. Bilaspur, since 19-5-1968.'
29. We have been referred to the definition in Clause 10 (2), Chapter I of the G. F. R. of the Central Government which lays down that head of office means a gazetted officer declared as such under Rule 10 (A) of the Delegation of Financial Powers Rules, 1958. It is not disputed that, in accordance with paragraphs 15(a), 17 and 44 of the General Public Works Account Code, which were applicable at the relevant time, the Executive Engineer was the head of the office in which the petitioner's father was working, so that the certificate on the face of it, was quite alright.
30. As enquiries were undertaken in the similar case of Shri M. L. Baweja father of Kumari Manju Baweja, it appears that further enquiries were made in the case of R. K. Abbey also as his father was also a Divisional Accountant. A letter of 4-8-1970 (Annexure ZIII) to affidavit dated 9-9-1971, of Shri P. Singh, (the Administrative officer of the College) shows that the Chief Engineer wrote to the Principal of the College that he had no information that he should treat persons posted by the Accountant General, Himachal Pradesh, as Divisional Accountants in Himachal Pradesh, as State employees. The Principal was, however, referred to the Accountant General for further clarification, just as had happened in Kumari Manju Baweja's case. And, just as in the case of Kumari Baweja, the Deputy Accountant General had given his view in the form of a certificate dated 3-8-1970, that R. K. Abbey's father was a Himachal Government employee 'for all purposes', although the Accountant General exercised 'Administrative control over him.'
31. The proceedings of the Selection Board indicate that the cases of the two petitioners were placed for consideration before it on 22nd and 23rd July, 1970. Against the claim of the petitioner R. K. Abbey, we find in column 11, intended for indicating deficiencies, three letters and a question mark were put originally as follows: 'H. G. E.?' Apparently the meaning was that the claim of the petitioner as a son of a Himachal Pradesh Government employee was questioned. We find from the record that the three letters are crossed out in green ink and a cross in red ink is placed in the column. But, there is no date against any entry. One could, therefore, only guess that the claim of R. K. Abbey was perhaps decided by the Selection Board on the assumption that he was not eligible for admission as a son of a Himachal Government employee even before the Principal's correspondence on the subject was complete, or, alternatively, as there is no date showing when the three letters and the question mark were crossed out and the red cross put against the name, that this question was left undecided by the Selection Board on 22nd and 23rd July, 1970. The record does not show any actual consideration or decision in writing by the Selection Board on the question. The Principal's affidavit does not say who actually decided this question and precisely when.
32. Our attention has been invited by the learned counsel for the Opposite Parties to a reference which was apparently made to the Government of Himachal Pradesh in the case of the two petitioners jointly. There is a note by the Principal, Dr. Sinha, on the record of the proceedings before the Selection Board, showing that the Principal had come to the conclusion, on 12-8-1970, after the proceedings of the Selection Board, that neither of the two petitioners could be considered eligible for admission as they could not be treated as children of Himachal Government employees as claimed by them. The note ends as follows:--
'Judicial Secretary may kindly see the above decision so that further action may be taken in the matter.'
33. The record examined by us thus indicates that the decision to exclude the petitioners from admission on the ground that they had not furnished the required certificates, and to admit certain other candidates who, on the basis of marks obtained, were below the petitioners, was perhaps that of the Principal of the College himself. We cannot be certain whether he had received any extraneous suggestions or guidance from any authority or source, but it is clear that the names of the selected candidates were, for some unknown reason, not put up on the notice board as required by Rule 10, and that the Principal referred the matter to the Judicial Secretary in the Law Department of the Government for final approval before taking the 'further action' he may have intended. If by 'further action' the Principal meant that he was going to inform the petitioners of the grounds on which their names for admission had been rejected, that action was never taken either before the petitioners filed their applications in this Court under Article 226 of the Constitution, on 24-9-1970, or after the filing of the petitions.
34. The record of the proceedings also discloses that the opinion given by the Judicial Secretary in the Law Department, on 18-8-1970, after considering whether the Divisional Accountants concerned were on a Himachal cadre, the authority which could transfer them and the fund from which they received their salaries, came to the conclusion:--
'These persons are employees oi Himachal Government, and the certificate of the Accountant General is very clear in this regard. The Executive Engineer of the P. W. D. has also given a similar, opinion. I do not think any further clarification is needed.'
35. The matter then, for some unexplained reason, went to the Finance Department, and, on 28-8-1970, an Under Secretary (Finance) gave his opinion as follows:--
'The Law Department have in their note indicated certain tests, which, though relevant are inconclusive. In the circumstances, the cadre of Divisional Accountants used in the certificate given by the Accountant General is not in order. The Accountant General is the appointing authority, controlling authority, and presumably also the disciplinary authority in respect of Divisional Accountants. They are deputed to serve in Himachal Pradesh P. W. D. and remain there during the pleasure of the Accountant General, who may order their transfer/replacement. But, so long as they serve in Himachal Pradesh P. W. D., their salaries have to be paid out of the budget of Himachal Pradesh P. W. D. The Divisional Accountants, are therefore, to my mind, Central Government employees serving in Himachal Pradesh and as such in terms of note 2 referred above, their children do not seem to be eligible for admission to Himachal Pradesh Medical College.'
36. After that, the Under Secretary (Finance) noted that the Principal of the Medical College had favourably recommended the cases of sons and daughters of employees of the office of the Accountant General, Punjab and Himachal Pradesh and that of Shri Devinder Kumar Arora on account of their long stay in Himachal Pradesh and their 'bona fide interest in permanently settling here.' The Under Secretary's opinion, on this question, was then given as follows:--
'The relevant instructions in the prospectus quoted above, however, speak of permanent residence and not mere residence. So far as my opinion is concerned, permanent residents are sons of the soil. Proof of permanent residence lies in a person having landed property etc. so far as my knowledge goes. I do not know how they have been held to have passed this test. But, the proposal as approved by the Revenue Minister is subject to their producing affidavits.'
37. On 29th August, 1970, the Law-cum-Finance Minister indicated his agreement with the opinion given by the Under Secretary Finance in the following terms:--
'I agree with the above views of the Finance Department. Employees of the Accountant General are not and cannot be considered the employees of Himachal Pradesh even if they are serving with Himachal Government as officers on deputation. Long stay in Simla in rented buildings also does not entitle one to be defined as permanent residents.'
38. On 2nd of September. 1970, the Chief Minister merely endorsed the word 'seen' and signed in the margin. The Health Minister then signed above it on 4th September, 1970. It therefore, appears that the cases had been the subject-matter of consideration at the highest governmental levels although the Rules found in the prospectus contained no procedure whatsoever for such a reference to the Government or indication of the manner in which it was to be dealt with. Before proceeding further, we may also note that, although the Law Department had not considered the question of permanent residence, yet, the Under Secretary in the Finance Department had given his opinion on that matter also and this seems to have been accepted by the Law-cum-Finance Minister.
39. If the claim of the petitioners for admission was not considered at all on the footing that they may be permanent residents of Himachal Pradesh, as is suggested by the affidavit filed by Sri Pritpal Singh, the Administrative Officer of the College, on 9-9-1971, it is difficult to understand why the alternative case was mentioned at all in the opinion given by the Under Secretary (Finance). In paragraph 6 of the earlier affidavit of 23-11-1970, filed by Sri B.P. Sinha, the Principal, in reply to the petition of Kumari Baweja, it was stated:--
'............ the certificate of being permanent resident of Himachal Pradesh produced by the petitioner was not in order and as such he was not considered eligible for admission into 1st year of M. B. B. S. Course in H. P. Medical College, Simla, beginning from August. 1970 as she was not eligible according to the Rules of admission to the College.' This version is more in conformity with the record of the proceedings in the Finance Department. In the case of R. K. Abbey, in paragraph 6 of the affidavit of the Principal dated 23-11-1970, it was stated:--
'............ since the applicant could not produce certificate of his being permanent resident of Himachal Pradesh and a ward of the employee of Himachal Pradesh Government, he was not considered eligible for admission into 1st year of M. B. B. S. Course in H. P. Medical College, Simla, beginning from August, 1970.' This also indicates that perhaps even the case of R. K. Abbey was considered on a possible alternative footing that he may be a permanent resident of Himachal Pradesh although the affidavit of the Administrative Officer in his case, filed on 9-9-1971, correctly states this candidate had 'never applied on the basis of his being a permanent resident of Himachal Pradesh.'
40. The above mentioned confusion, on the question whether the only basis on which the petitioner had originally applied or some other basis was also taken into account in refusing admission to the petitioners, has given rise to the submission before us that the petitioners were refused admission really on the footing that they were erroneously not considered to be bona fide residents of Himachal Pradesh. It was urged that this consideration was extraneous to the decision of the actual claim of the petitioners on merits, that they were children of Himachal Pradesh Government employees, and, therefore, such decisions as might be there against them, were vitiated in law.
41. The confusion was certainly not clarified by the filing of affidavits, dated 10-12-1970, in both the cases, by Shri H. R. Mahajan, a Secretary to the Himachal Pradesh Government, asserting:
'1. That the criteria for determining the bona fide Himachali or permanent resident of Himachal Pradesh is that a person should have been living in Himachal Pradesh from generation to generation and wedded to the soil of Himachal Pradesh and having no connection, as such, with any other State or territory excepting Himachal Pradesh. Mere residence in Himachal Pradesh or being in Government service or semi-Government service as such does not entitle to a certificate of permanent resident or being a Himachali. Being a permanent resident or bona fide Himachali it implies that the person concerned has his permanent home in Himachal Pradesh.
In determining the question of permanent residence or being bona fide Himachali one has to consider all the factors given above.'
42. If no question or occasion for determining whether the petitioners were permanent residents of Himachal Pradesh or not arose on their claims for admission on another ground altogether, the criteria set out on 10-12-1970, for judging an alternative claim as permanent residents of Himachal Pradesh, were not relevant. If, however, these criteria had been really applied for judging the claims of the petitioners as children of Himachal Pradesh Government servants, we think that the decisions would be vitiated on the ground that matters extraneous or irrelevant to the consideration of the real question had affected the decision. Moreover, these criteria, for determining Hima-chali domicile seemed to us to extend considerably beyond the criteria actually laid down in the Rules. It does not seem necessary for us to decide now the question whether these criteria were also actually used. The question appears to have crept in somehow when the matter went to the Finance Department, but, the opinion given by the Finance Under Secretary, and also that expressed by the Law-cum-Finance Minister do seem to keep the two questions apart though this is not explicitly stated.
43. As these cases have come up after the expiry of the year for which admission to the Medical College was sought, it was contended before us that, whatever may have been the decisions last year, the Rules in the prospectus having been changed, we could not give relief to the petitioners even if we came to the conclusion that the decisions taken last year were erroneous. It was admitted that the petitioners had applied afresh on both footing i. e. permanent residents and children of H. P. employees, for admission this year (i. e. 1971-72). But, according to the opposite parties, the changes made in the prospectus placed new obstacles in the way of the petitioners by clearly laying down, in the form of amendments to the prospectus together with the appended notes, new criteria for determining what a bona fide Himachali or a permanent resident of Himachal Pradesh is, and, at the same time, gave them scope for admission if they were to admit and apply on the footing that they are children of a Central Government employees for whom two seats out of 60 are now allotted. On these grounds, it was submitted that the writ petitions had become infructuous. It was urged that the petitioners could apply again to this Court if admissions to them in the quota of two for children of Central Government employees was refused for the year 1971-72.
44. In reply, it was contended, on behalf of the petitioners, that the quota reserved for children of Central Government employees was unreasonably low. and that an admission by them that they were only entitled to places there would defeat the just claims of the petitioners which had been put forward for admission for the current year on other grounds. As the petitioners challenged the constitutional validity of the new classification and criteria, and a postponement of decisions by this court, on the fresh questions raised before it, by dismissing the writ petitions on the ground that the petitions had become infructuous, was fraught with possibilities of unmerited hardship to the petitioners permission was given to amend their petitions and to add grounds. Affidavits showing the fresh facts and amended Rules were allowed to be exchanged. The father of each petitioner was also allowed' to be cross-examined by the learned counsel for opposite parties on facts relating to his domicile and employment contained in his affidavit.
45. The amended Rules for 1971-72 add Clauses (c) and (d) to the two former categories of eligible candidates: (a) children of permanent residents of Himachal Pradesh, and (b) children a Himachal Pradesh Government employees. These added categories are split up into groups (d), (f) and (g) in the distribution of 60 seats together with three for nominees of the Chief Minister making up 63 altogether. The relevant Rules and notes are stated as follows:--
'Against the total No. of 60 seats, the admissions will be done as under:--
(a) Scheduled Caste 15%
(b) Scheduled Tribes 5%
(c) Backward Classes 2%
(d) Son(s)/daushter(s) of defenceService person-nels of Himachal Pradesh who distinguished themselves in the NationalEmergency
(e) Candidates who have passedMatriculation orHigher Secondary Exa-mination from the schools located in the ruralareas
(f) Sons(s)/daushter(s) ofDefence Service person-nels posted in Himachal Pradesh during the sub-missionof application of the candidates and till his/her admission is finalised
(g) Son(s) and daughter (s) ofthe Central Government -employees posted in Himachal Pradesh during the submissionof the applications of the candidates and till their admissions are finalised
(h) Sonfs)/daughter(s) of political sufferersand persons ofHimachal Pra-desh with outstanding social background
(i) Women students
(j) Remaining seats to be filled on merit
Note:-- (1) Remaining unfilled seats from the categories (a), (b), (c), (d), (e), (f), (g), (h) and (i) mentioned above will be treated as unreserved provided the required number of eligible candidates do not come forward and will be filled on merit. Such seats will be filled from the categories other than those mentioned at (f) and (g) above.
Note:-- (2) The criteria for determining the bona fide Himachali or permanent resident of Himachal Pradesh is that a person should have been living in Himachal Pradesh from generation to generation and wedded to the soil of Himachal Pradesh and having no connection, as such, with any other State or Territory excepting Himachal Pradesh. Mere residence in Himachal Pradesh or being in Government service or semi-Government service as such does not entitle to a certificate of permanent residence or being a Himachali. Being a permanent resident or bona fide Himachali it implies that the person concerned has his permanent home in Himachal Pradesh.
Admissions against the reserved seats will also be done on merit.
Nomination:-- The Chief Minister will nominate 3 candidates at his discretion over and above the prescribed quota of admissions, for candidates from outside Himachal Pradesh.
No special teaching arrangements exist for women students. Their teaching and study arrangements are the same as for the male students, with whom they have to work.'
There appeared another amendment even during the hearing of the petition in this Court shown by the affidavit filed on 16-8-1971. where the Administrative Officer of the College stated that the Himachal Pradesh Government have decided to add as follows in paragraph 2 of the prospectus:--
'All the seats in Himachal Pradesh Medical College are to be filled up from amongst the bona fide Himachalis excepting categories (f) and (g) in whose case the condition of their being bona fide Himachalis has been waived as a special case.'
46. Having given a fairly detailed account of the way in which the questions raised by the claims of the petitioners to the College were considered, and of the applicable Rules for admission to the College, with amendments brought uptodate. we turn now to the question whether the Selection Board appointed by the Government or the Principal, who is the Chairman of the Board, or members of Government, who appear to have been determining the Rules of admission and how they are to be applied, act in purely administrative capacity, taking decisions on matters of policy only, which are non-justiciable, or they have to act quasi-judicially. There is a whole host of authorities on such a question and quite a number of decisions have been cited before us. We will however, after mentioning cases cited, deal only with those cases which explain our lines of reasoning.
47. No decision has been placed before us dealing directly with the nature of functions of a Selection Board for admitting students to a College. The authorities relied upon on behalf of the petitioners are mainly four: 1. Board of High School and Intermediate Education U. P. Allahabad v. G. D. Gupta, (AIR 1962 SC 1110); 2. Jaswant Sugar Mills v. Lakshmi Chand. (AIR 1963 SC 677); 3. State of Orissa v Dr. (Miss) Binapani Dei (AIR 1967 SC 1269) and (4) A. K. Kraipak V. Union of India, (AIR 1970 SC 150).
48. On the other hand, learned counsel for the respondents relies on the principles laid down in Province of Bombay v. Khushaldas SectionAdvani. (AIR 1950 SC 222); Virindar Kumar Satyawadi v. State of Punjab, (AIR 1956 SC 153); Shivji Nathubhai v. Union of India, (AIR 1960 SC 606); Nagendra Nath Bora v. Commr. of Hills Division and Appeals, Assam. (AIR 1958 SC 398); and Sadhu Singh v. Delhi Administration. (AIR 1966 SC 91). Reference has also been made by the learned counsel for the opposite parties to Prabhat Chandra Deka v. K. C. Barua, (AIR 1960 Assam 1); Thiruven-gadam v. Muthu Chettiar. (AIR 1970 SC 34) & Testeels Ltd. v. N M Desai, Conciliation Officer. (AIR 1970 Guj 1) (FB).
49. The decisions cited by learned counsel for the opposite parties may be considered first, as they lay down principles formulated before the somewhat wider scope given to these very principles in the later cases. In the first of these. Khushaldas S. Advani's case. AIR 1950 SC 222 (supra), reliance was placed upon the well known English. Case. The King v. Electricity Commrs., (1924) 1 KB 171, where Atkin, L. J. laid down the following tests:
'Wherever any body of persons having legal authority to determine questions affecting the rights of subjects, and having the duty to act judicially act in excess of their legal authority they are subject to the controlling jurisdiction of the King's Bench Division exercised in these writs.'
50. This test requires: firstly, that there must be a power or legal authority to determine questions which affect individual rights given by the law; and, secondly, that the authority concerned must be under a duty to act judicially or quasi-judicially. These two requirements have been elaborated in subsequent decisions, such as Rex v. London County Council. (1931) 2 KB 215 at p. 243, where four conditions, on the strength of the decision in the Electricity Commissioner's case (supra), were laid down before interference by a Court with such a decision is possible. These were:--
(1) there must be a body of persons,
(2) it must have legal authority to determine questions affecting the rights of subjects.
(3) it has the duty laid upon it to act judicially, and
(4) it acts in excess of its legal authority.
51. Another principle relied upon by the opposite parties was laid down in cases such as V.K. Satyawadi's case. AIR 1956 SC 153 (supra). This was that the provisions of law prescribing the powers and procedure must be closely examined in order to determine the nature of the functions and the duties imposed upon the authority which decides before deciding whether the power vested in the authority is judicial or quasi-judicial or purely administrative.
52. A primary distinction, to our mind, between a judicial or quasi-judicial decision and a purely administrative act. is that, whereas purely administrative and executive action may spring from considerations of policy, which are not justiciable ordinarily, a quasi-judicial proceeding becomes imperative when a matter can only be decided with reference to legally defined rights, after an objective and impartial ascertainment of facts. A judicial decision postulates that the empowering and the procedural provisions of regular courts or tribunals are there to warrant it. A quasi-judicial decision also means that the power to decide is there, but the Rules of procedure even though not found incorporated specifically in statutory provisions or Rules, are those of natural justice, the varying requirements of which in differing settings, are determined ultimately by Courts if disputes arise.
53. In the latter type of cases, the duty to act quasi-judicially is inferred primarily from the nature of the right to be adjudicated upon coupled with the question whether a dispute or a lis had arisen between parties affected. In both types of cases, the rights of parties interested must have been defined by law. They are determined after ascertaining the relevant facts impartially and objectively. Whether the decision is judicial or quasi-judicial. the authorities concerned cannot act on irrelevant considerations, because the criteria or the principles, according to which rights are to be determined, are laid down by law, or are objective and not subjective, and the material to be considered must be relevant to a decision on such a question. Strictly judicial decisions are given after following the provisions contained in the procedural codes and the Evidence Act prescribing Rules of relevancy and admissibility of evidence. Where the decision is quasi-judicial, the Rules of relevancy are merely Rules of justice, reason, and logic which are not laid down rigidly in a procedural code. Even the exercise and vires of completely executive dr administrative power could be assailed if it is capable of being shown to be quite capricious, or unrelated to the purposes for which it is conferred, or dishonest, or designed to serve some object which could not have been within the intendment of those who made the law vesting the power to act. Whereas quasi-judicial decisions are open to correction by courts even if there are errors apparent upon the face of the record in reaching them, purely administrative action, resting on matters of policy, can be challenged only on very limited grounds by establishing excess of power, or mala fides, or a fraud upon powers conferred.
54. The requirements of implied just and reasonable procedure, in deciding questions of right were considered as long ago as A.K. Gopalan v. State of Madras, (AIR 1950 SC 27), where, in the course of a comprehensive survey of the fundamental rights contained in Arts. 19. 21 and 22. the procedural requirements of 'due process', as found in American Law and summarised in Willis' 'Constitutional Law', were noticed as follows:
2. Opportunity to be heard,
3. An impartial tribunal, and
4. An ordinary course of procedure.' 55. In Ghanshyam Das's case AIR 1962 SC 1110 (supra), their Lordships of the Supreme Court said, after referring to their earlier decisions in four cases beginning with Nagendra Nath's case, AIR 1958 SC 398 (supra):
'Now it may be mentioned that the statute is not likely to provide in so many words that the authority passing the order is required to act judicially that can only be inferred from the express provisions of the statute in the first instance in each case and no one circumstance alone will be determinative of the question whether the authority set up by the statute has the duty to act judicially or not. The inference whether the authority acting under a statute where it is silent has the duty to act judicially will depend on the express provisions of the statute read along with the nature of the rights affected, the manner of the disposal provided, the objective criterion if any to be adopted, the effect of the decision on the person affected and, other indicia afforded by the statute. A duty to act judicially may arise in widely different circumstances which it will be impossible and indeed inadvisable to attempt to define exhaustively; (vide observations of Parker. J., in R. v. Manchester Legal Aid Committee, (1952-2 QB 413).' In that case, their Lordships inferred that the Examinations' Committee of the Board of High School and Intermediate Education, appointed under Sec. 13 of the U. P. Intermediate Education Act of 1921, when dealing with cases of candidates accused of having used unfair means in the examination hall, had to act quasi-judicially and observe the principles of natural justice which required that the party affected must be heard before a decision is given on the question involved.
56. We then come to the latest decision, (AIR 1970 SC 150) cited before us on this question. Here, their Lordships of the Supreme Court observed:
'The dividing line between an administrative power and a quasi-judicial power is quite thin and is being gradually obliterated. For determining whether a power is an administrative power or a quasi-judicial power one has to look to the nature of the power conferred, the person or persons on whom it is conferred, the framework of the law conferring that power, the consequences ensuing from the exercise of that power and the manner in which that power is expected to be exercised ............... In recent years the concept of quasi-judicial power has been undergoing a redical change. What was considered as an administrative power some years back is now being considered as a quasi-judicial power.'
Their Lordships also observed:
'With the increase of the power of the administrative bodies it has become necessary to provide guidelines for the just exercise of their power. To prevent the abuse of that power and to see that it does not become a new despotism, Courts are gradually evolving the principles to be observed while exercising such powers. In matters like these public good is not advanced by a rigid adherence to precedents. New problems call for new solutions. It is neither possible nor desirable to fix the limits of a quasi judicial power. But, for the purpose of the present case, we shall assume that the power exercised by the selection board was an administrative power and test the validity of the impugned selections on that basis.'
In that case, the decision of a Special Selection Board for selecting officers for the Indian Forest Service was quashed on the ground that, although one of the members, who was himself a candidate, did not take part in the proceedings when his own selection was made, yet. he had participated in decisions about rival candidates so that the whole proceeding was vitiated. In other words, the duty of a Selection Board was to act justly and fairly and without the appearance of a ground for bias. Although, the proceeding of the Selection Board could not be classified as judicial or quasi judicial, tested by the criteria of a 'lis' or the need to observe the 'audi alteram partem Rule', yet. other requirements of such decisions, such as freedom from bias and an actually as well apparently honest conclusion had to be satisfied.
57. We may also mention the four useful tests given in Professor SectionA. De Smith's Judicial 'Review of Administrative Action' (2nd Edn. pages 64 to 76), which may be summarised as: firstly, whether the performance of the function terminates in an order which has a conclusive effect or the force of law or is merely advisory, deliberative, investigatory, or conciliatory in character which has to be confirmed by another authority before acquiring a binding force; secondly, whether there are prescribed procedural attributes of the proceeding, such as its initiation by a party opposed to another, so that there is a lis or dispute, a public hearing, a power to compel attendance of witnesses, prescribed Rules of evidence and modes of relief; thirdly, whether the decision imposes obligations by defining, conferring, varying, extinguishing, or recognising rights and liabilities; and, fourthly whether the function involves application of objective criteria defined by law to impartially ascertained facts or is merely the exercise of a subjective power to act without reference to justiciable standards. Cases where valuable rights of individuals are affected by decisions of administrative authorities, even in the course of carrying out a scheme embodying a policy, may have to be decided quasi judicially, or, in other words, as though the basic norms of judicial action are applicable by implication.
58. We now turn to the Rules contained in the prospectus to ascertain whether the Selection Board or the Principal or the Government are vested with any quasi judicial power to entertain and decide a claim to admission which may involve a consideration of disputed questions of fact and law. Rule 6 seems to lay down that the Principal has a complete discretion to call or not to call 'as many candidates' as he 'considers necessary against seats to be filled up by the Government', but this aspect will be examined in greater detail later when considering the validity of a part of this Rule. The Board can make selections in accordance with Rules 6 to 9. Matters contained in Rule 4 are presumably to be examined, in the first instance, by the Principal to whom applications are addressed. Rule 12 authorises the Principal to take action by expulsion of the student and confiscation of fee paid by a student admitted on the basis of a false statement made in the form of a descriptive roll and discovered afterwards. We find that this descriptive 'roll is mentioned in Rule 4. Sub-rule (5) and its form is given in Appendix A. Although the Principal is not specifically required by any Rule to refer any question to the Government, Rule 6 seems to place him in the position of an agent of the Government. The Selection Board is given no specific power to go into questions of correctness or validity of certificates although Note (a) to Rule 4 indicates that the original certificates are to be produced only before the Selection Board.
59. The function of the Board in making selections is primarily to decide the order of admissions on merits subject to the distribution of the 60 seats as laid down in Rule 1. Its true functions, as a body of experts, is to assess merits honestly on the basis of marks assigned and other reasonable criteria which may be adopted by it at the interviews. It could even be considered as a body analogous to the Selection Board whose proceedings were held to be vitiated in A. K. Kraipak's case, AIR 1970 SC 150 (supra) because one of the members was a candidate, and, therefore, presumed to be biased in that case. In other words, although the function of the Board may be classified as administrative, yet. it pannot act on considerations which do not justly and properly appertain to merits for purposes of admission. Of course, the Selection Board can, if the compartmentalisa-tion is correct, judge merit compartment-wise.
60. We do not find any procedure prescribed by the Rules for obtaining decisions from the Government or from any of its members on questioned claims. Even if we were to assume that either the Principal, as the executive head of the College, or the Government, as the authority which frames Rules and runs the institution on behalf of the State, had an implied power to decide questions of disputed claims for admission, we have no doubt that questions of such importance for the future of the petitioners, as their eligibility for admission to Medical College are, could only be decided in a quasi-judicial manner. Neither the Principal nor the Government could, like private clubs, arbitrarily deny claims oi eligibility for admission for reasons which needed no disclosure. This means that, before a valid decision could be taken on a disputed claim, the candidate concerned had to be informed of the nature of the objection so that he or she or the guardian may be able to give an appropriate explanation or reply if possible. Otherwise, the decision, if any, on such a disputed question, would be vitiated for contravening a basic Rule of natural justice.
61. We may also observed that, in the case before us, there was no communication sent to the candidate concerned or the guardian containing the reasons for the rejection of the claim put forward. No doubt there is no Rule providing for such a communication and there could be no such Rule when there is no Rule providing specifically for reference of any claim to the Government or to any member of the Government. Nevertheless, if governmental authorities, in exercise of a presumed right to control and decide any matters relating to admissions to the institution, had taken upon themselves the obligation to decide these, the requirements of justice could not be fulfilled without communicating the decisions and its reasons to the parties affected and aggrieved. A decision and its reasons kept buried in official files without communication to the party affected could, we think, be treated as non-existent in the eye of law so far as the person aggrieved is concerned. Moreover a decision on behalf of the Government has to be evidenced by an order in a particular form. The communications by the Principal were also of no effect as they neither contained any reason nor were preceded by a quasi-judicial procedure. The power of the Principal to call only such candidates for selection by the Board as he finds necessary and also of the Government to determine claims for admission even if implied by Rule 6, could only be exercised reasonably, and in those cases where it was sought to exclude a candidate from consideration on the ground that his certificate was invalid, this power could only be exercised quasi-judicially.
62. We are not oblivious of the difficulties of the College and the Government. It was pointed put to us that there were cases in which certificates have been obtained by fraud, cases in which persons had passed off as children of members of the Scheduled castes by fictitious adoptions, and cases in which persons residing outside had posed as permanent residents of Himachal Pradesh. It was submitted that, unless the authorities concerned were held to be invested with sufficient power to decide such cases, it would open the flood gates of fraud and falsehood to enable admissions of persons who were not entitled to it. Keeping these difficulties in view, we do not think that the Principal or the Government should be precluded from considering disputed claims for admission although we find that the Rules do not contain any provision specifying that some authority will enquire into alleged spurious or incorrect certificates given contrary to the provisions of law. Governmental authorities did go into the question whether the petitioners were children of Himachal Pradesh Government employees. They did consider the conflicting points of view put forward by the Law Department and the Finance Department. The Law-cum-Finance Minister decided to accept the view of the Finance Department in preference to the views of the Law Department, overriding also the views of two certifying authorities and declared the certificates submitted by the candidates to be ineffective. We think that, although such decisions may be properly taken, this can be done only quasi-judicially. The reasons for rejecting a claim should be supplied to the party aggrieved.
63. We are also aware of the criticism which are directed against what was described by Sir C. K. Alien in 'Law And Orders' 2nd Edn. at page 389 as the 'Ghost-Land of the Quasi.' The learned author observed:
It was perhaps with satirical intent that Cohen, L. J.. remarked on the unlimited imaginative possibilities of the 'quasi' in Johnson & Co. v. Minister of Health. (1947) 2 All ER 395 at p. 405; 'Counsel for the respondents would seek to make him (the Minister) not only a quasi-judge, but a quasi litigant, bound to give quasi discovery to each of the parties to the quasi lis. Logically, on this kind of argument he would be bound to supply copies of all relevant documents and to answer quasi interrogatories.' That much decried unruly horse, public policy, is a tame back compared with the 'quasi' which, like the cowboy hero, 'rides off in all directions'. Scott. L. J., discovered a new breed of the quasi plus; as we need now is a quasi-minus -- or, shall we say. a quasi-quasi?'
64. Without minimising the difficulties which are bound to present themselves when appropriate law or Rules to meet conceivable situations which may arise and have arisen, have not been framed, we think that certain well established and widely known Rules of natural iustice must be observed to meet the needs of fair play and justice. And. of course, the decision taken on matters which have to be decided quasi-judically have to be free from errors apparent on the face of the record or patent unreasonableness. We may also observe that the procedural Rules to be observed are not uniform in all cases. In cases, such as the one before us, it is enough if the Rule laid down in Local Govt. Board v. Arlidge. (1915 AC 120), is observed. This means that a personal hearing need not be given to the party affected, but at least a right of representation in writing against objections to a claim, of which the claimant must be apprised, must be given in such cases. In that case Viscount Haldane, L. C. observed:--
'I agree with the view expressed in an analogous case by my noble and learned friend Lord Loreburn. In Board of Education v. Rice. 1911 AC 179. he laid down that, in disposing of a question which was the subject of an appeal to it, the Board of Education was under a duty to act in good faith, and to listen fairly to both sides, inasmuch as that was a duty which lay on every one who decided anything. But he went on to say that he did not think it was bound to treat such a question as though it were a trial. The Board had no power to administer an oath, and need not examine witnesses. It could, he thought, obtain information in any way it thought best, always giving a fair opportunity to those who were parties in the controversy to correct or contradict any relevant statement prejudicial to their view. If the Board failed in this duty, its order might be the subject of certiorari and it must itself be the subject of mandamus.'
65. We will now consider the validity of the test of a bona fide Himachali introduced into the Rules by the purported amendment which is said to bar the admission of the petitioners into the college unless they were to fall in the newly created head (g) for children of the Central Government employees posted in Himachal Pradesh. This test appears to have been in existence even before it was attempted to be inserted in the Rules in the form of a note, which turns out, upon an examination, to be nothing less than an exposition of the meaning of the first of the four categories of eligibility, that is to say, that of permanent residents of Himachal Pradesh as set out in the prospectus originally which is still there. This note looks more like a judgment than a definition. It seeks to interpret without amending a category which is already there. This unusual mode of what appears to us to be an attempt to amend the first category seems to have been adopted only in order to give a retrospective effect to a new purported definition. Interpretation, however, is clearly a judicial function. In the instant case the interpretation is not given even in language which could make the meaning of the note clear to us.
66. It is difficult to understand how any person could live beyond his own generation, although it is quite easy to conceive that his family may be living in Himachal Pradesh from generation to generation. The definition, however, says that the permanent resident himself has to be a person who should be living in Himachal Pradesh from generation to generation. This is a physical impossibility. If one applies the literal Rule of construction, which is still a cardinal Rule of interpretation, the words 'generation to generation', used with reference to the life of the person whose permanent residence has to be determined, make no sense. We have, therefore, naturally to turn to another Rule of construction in an attempt to find out what the intention of those who used this language could be. We think that the intention could only be that it is not merely the residence of the person who is said to be a permanent resident, but also the character of the residence of his preceding generations which should be taken into account. In other words, without showing that the preceding generations, the number of which is not specified, had also been permanent residents of Himachal Pradesh, no individual can be a permanent resident. This narrows down the meaning of 'a permanent resident.' The real intention, put directly and explicitly, seemed to be to say:
'A mere permanent resident is not a permanent resident. In order to be a permanent resident he must show that his ancestors were also permanent residents.'
67. Another element introduced in this most unsual interpretation of the term 'permanent resident' is that he must be 'wedded to the soil of Himachal Pradesh' whatever this may mean. The apparent meaning is that he must have some connection with the soil as a cultivator or owner of some land in Himachal Pradesh. This is also an obyious addition to the requirement of a mere 'permanent resident.' In plain and simple language it means:
'A permanent resident cannot be a permanent resident of Himachal Pradesh unless he acquires some parmanent right in land in Himachal Pradesh.'
68. The next feature of this extraordinary exposition of the meaning of the term 'permanent resident' is that even a person whose family may have been living in Himachal Pradesh since time immemorial and for generations which cannot be counted and who may have quite a number of properties in Himachal Pradesh, will cease to be a bona fide Himachali if he has any connection 'with any other State or territory excepting Himachal Pradesh.' We are quite unable to see what difference the addition of the words 'as such' could make to the meaning, as the learned counsel for the opposite parties has tried to make out. Whether these words had any reference to the connection of the individual concerned with persons of another State or territory, by marriage or friendship or other kind of relationship, or. to a similar wedding to the soil of a State other than Himachal Pradesh, this condition is patently unreasonable and difficult to understand. It would, if attempted to be introduced in any sphere of life, tend to make people of Himachal Pradesh a class of persons who may become psychologically and culturally retarded, or, at any rate, isolated from the rest of the country.
69. We should not forget, in our attempts to protect any regional or local claims or interests, the effect of our Constitution, described as follows in Virendra Singh v. State of U. P., (AIR 1954 SC 447 at p. 454).
'At one stroke all other territorial allegiances were wiped out and the past was obliterated except where expressly preserved; at one moment of time the new order was born with its new allegiance springing from the same source for all. grounded on the same basis; the sovereign will of the peoples of India with no class, no caste, no race, no creed, no distinction, no reservation.' Both the letter and the spirit of our Constitution militate with the erection of those 'narrow domestic walls' which Rabindra Nath Tagore wanted to see demolished so that the people of our country could realise their dream of a freedom born of that unity without which no part of the country can be strong.
70. Learned counsel for the opposite parties has drawn our attention to D.P. Joshi v. State of Madhya Bharat, (AIR 1955 SC 334). where the well-known distinction between an individual's political status, which binds him to a particular country by the tie of political allegiance, and his civil status, determined by his domicile, which subjects him to the law of the locality in which he resides permanently. The passage on which the learned counsel specially relied was:--
'Domicile has reference to the system of law by which a person is governed, and when we speak of the domicile of a country, we assume that the same system of law prevails all over that country. But. it might well happen that laws relating to succession and marriage might not be the same all over the country, and that different areas in the State might have different laws in respect of those matters. In that case, each area having a distinct set of laws would itself be regarded as a country for the purpose of domicile.'
71. We do not think that the case cited helps the opposite parties beyond showing that an Indian citizen can have his domicile in a particular State. This is also an Indian domicile as the State is a part of the whole country. The question before us just now is not whether there can or cannot be a State domicile, which is also an Indian domicile, but, what the meaning of the term 'domicile' is. There is no doubt that the term domicile stands for a person's permanent residence in Private International Law. It is clear from a perusal of numerous authorities on Private International Law, some of which are cited in D. P. Joshi's case, AIR 1955 SC 334 (supra), that a permanent resident is merely that person who has proved his intention to live permanently at the place which is then spoken of as his domicile. The unit, for the purposes of domicile, can very Well be, consistently with Indian citizenship, a particular State. The question before us. however, is whether a permanent resident can be reasonably defined as a person who has not merely an intention to reside permanently where he has his domicile, but must also prove the other criteria sought to be introduced by the note under consideration.
72. The definition of a permanent resident given in the note mentioned above would, if it were enforced, make it impossible for an Indian Citizen with a domicile in a State other than Himachal Pradesh to acquire a domicile of choice in Himachal Pradesh by the well known tests for such acquisition. In Cheshire's 'Private International Law,' 6th Edn. at page 173, we find:--
'The two requisites for the acquisition of a fresh domicile are residence and intention. It must be proved that the person in question established his residence in a certain country with the intention of remaining there permanently.' It is also observed there, at page 174: 'This much is clear, however, that a person's residence in a country is prima facie evidence that he is domiciled there. There is a presumption in favour of domicile which grows in strength with the length of the residence. Indeed, a residence may be so long and so continuous that, despite declarations of a contrary intention, it will raise a presumption that is rebuttable only by actual removal to a new place.' It was, however, pointed out there that neither mere long residence, without the necessary intent, could constitute domicile, nor brief residence, with the necessary intention, negatived domicile. What Was required was a qualitative as well as a quantitative test. But, in no case has it, ever been laid down, within our knowledge in any country, that a domicile of choice or permanent, residence cannot be acquired by a person unless and until he proves that not only he but one or more of his ancestors also had the same intention or that intention to reside permanently could not exist without establishing a permanent connection with the soil of a State.'
73. In Dicey's 'Conflict of Laws', 6th Edn. at page 89, we find the Rule relating to the acquisition of domicile thus stated:--
'Every independent person can acquire a domicile of choice, by the combination of residence (factum). and intention of permanent or indefinite residence (animus manendi), but not otherwise.' In Bell v. Kennedy, (1868) 1 Sc & Div 307, 319 Lord Cranworth observed:
' 'It may', it has been said, 'be conceded that, if the intention of permanently residing in a place exists, a residence In Bell v. Kennedy, (1968) 1 Sc & Div 307, 319 Lord Cranworth observed:
In Udny v. Udny. (1869) 1 Sc & Div 441. 449 Lord Chelmsford said: 'A change of the domicile of origin can only be effected animo et facto --that is to say, by the choice of another domicile evidence by residence within the territorial limits to which the jurisdiction of the new domicile extends. A person in making this change does an act which is more nearly designated by the word 'settling', than by any one word in our language.'
74. If acquisition of a domicile or a permanent residence involves 'settling', which begins by residence and is proved by establishing in a legally recognised mode, an intent to reside permanently (animus manendi), can a State organ alter this well recognised concept and right of acquisition of domicile of choice by a citizen in any part of India which is found in and protected by Article 19 (1) (e) of the Constitution? The fundamental right guaranteed to all Indian citizens is that they can reside and settle in any part of the territory of India. The restrictions which a State organ can impose under Article 19 (5) of the Constitution on this guaranteed fundamental right cannot go beyond those which are reasonably necessary 'either in the interests of the general public or for the protection of the interests of any Scheduled Tribe.' We are unable to hold that the alteration in the very concept of permanent residence or domicile, attempted by means of the note, said to have been inserted under the orders' of the Government of Himachal Pradesh. can conceivably be considered a reasonable restriction on the rights of Indian citizens under Article 19 (1) (e) of the Constitution if it were directed against such a right. We do not see what interest of the general public or that of any Scheduled tribe such a restriction could protect. As we have already pointed out. it would unreasonably restrict the rights of Himachalis themselves whose families have been attached to the soil and living in Himachal Pradesh for generations. If the note were to be given its literal and natural meaning, as Courts are bound to give it, before any other can be resorted to, Himachali residents Will have to either refrain from beneficial contacts or relations with Indian citizens living outside Himachal Pradesh or not get their children admitted into the Medical College. Again, if a Himachali acquired any property outside Himachal Pradesh, he and his children would be disqualified for admission into the College. It is difficult to think of a restriction which could be more unreasonable. It would, if upheld. discriminate against those very valuable and enlightened Himachalis who are enterprising and capable and patriotic enough to have advantageous, and fruitful relations with their countrymen outside Himachal Pradesh.
75. It could, however, be urged that the added definitive note in the prospectus of the College does not impair or restrict any right of Indian citizens to reside or settle in Himachal Pradesh, but, it only prevents candidates who do not come within the added definition from seeking admission to the College. The view was certainly expressed in A. K. Gopalan's case, AIR 1950 SC 27 (supra) that, before an alleged restriction upon a right guaranteed under Article 19 of the Constitution can be considered restrictive of the right at all it must directly and not merely indirectly affect the exercise of that right. This doctrine, laid down in Gopalan's case, AIR 1950 SC 27 (supra), has been considerably watered down and displaced by the view expressed in the recent decision of the Supreme Court in R.C. Cooper v. Union of India, (AIR 1970 SC 564), that the totality of the effects of a provision on a right conferred by Article 19 must be considered. It is true that the narrowed and the rather abstruse definition of a Himachali is not directly aimed at the right of residence or settlement in Himachal Pradesh. But, as pointed out above, it discriminates between permanent residents of Himachal Pradesh In a manner which is not at all reasonably related to either the objectives of the educational programme given in the beginning of the prospectus or to any other object outside it which could conceivably benefit the people of Himachal Pradesh. Hence, this restrictive definition must, in any case, be struck down for violating Article 14. But, we have referred to the provisions of Article 19 (1) (e) of the Constitution also as we think that the definition is inconsistent with Article 19 (1) (e) as well. A provision may be inconsistent with a fundamental right, without operating as a direct fetter upon that right, and, therefore, void to the extent of this inconsistency as laid down by Article 13 (1).
76. The next question which arises is whether any part of the fresh definition is valid and can be separated from the remaining invalid part. We think that the last line of the note could, if interpreted as we are doing it here, be separated and held to be valid. This part reads as follows:--
'Being a permanent resident or bona fide Himachali it implies that the person concerned has his permanent home in Himachal Pradesh.'
If this part connotes nothing more than the natural and ordinary and well recognised elements of acquisition of a domicile, by applying the test of concurrence of residence with the intention of permanent or indefinite residence, it could be sustained. In Dicey's Conflict of Laws (6th Edn. at p. 90), we find:--
'The acquisition, in short, of a domicile of choice is nothing more than the technical expression for settling in a new home or country, and therefore, involves the existence of precisely those conditions of act and intention which we have seen to be requisite for the acquisition of a home.'
But, if that sentence is intended to debar Indian citizens or their children from entry into the Medical College even though they may have acquired a new domicile of choice in Himachal Pradesh in accordance with the well recognised meaning of acquisition of a domicile of choice, consistently with the guaranteed fundamental right under Article 19 (1) (e) of the Constitution, this part would also be invalid. If, however, we give the first meaning, which sustains its validity. it does not amount to an amendment of what is already contained in the un-amended prospectus. As we should prefer a mode of interpretation which sustains rather than one which invalidates a provision, we need not, subject to the interpretation given above, strike down the last sentence of this note. But, as the remaining part of note (2) of the amended prospectus is neither reasonably connected with any object of the teaching programme at the College nor is consistent with the constitutional provisions it must be and is hereby declared invalid and struck down.
77. Another question argued before us was whether the compartment-wise distribution of 60 seats and the second amendment made by the Government reserving all the seats except one in category (f) for the children of the Defence Service personnel and two in category (g) for children of Central Government employees were valid. Quite a number of authorities were cited before us on the extent to which such reservations could be made under Article 15 (4) o the Constitution. It was urged that any reservations sought to be made under this provision could not cover more than 50 per cent, of the total number of seats available. As the affidavit filed on behalf of the opposite parties tried to justify the reservations made of all the seats, except the three, as indicated above, for permanent residents of Himachal Pradesh, on the ground that all bona fide Himachalis could be classed as socially, economically, and educationally backward people, who had to be especially provided for, learned counsel for the petitioners urged that the entire scheme of such a reservation was vitiated by applying the principles laid down by their Lordships of the Supreme Court in M. R. Balaii v. State of Mysore, (AIR 1963 SC 649). which was followed in T. N. Tiku v. State of Jammu and Kashmir, (AIR 1967 SC 1283).
78. Although learned counsel for the opposite parties had tried initially to justify the stand taken, that all the permanent residents of Himachal Pradesh could be classed as backward, on the strength of some very general assertions about the industrial, economic, and educational conditions in Himachal Pradesh. so that they could be presumed to be entitled to protection under Article 15 (4) of the Constitution, he gave up this stand when confronted with the difficulties created in his way by the decisions of the Supreme Court in Balaji's case. AIR 1963 SC 649 (supra) and T. N. Tiku's case, AIR 1967 SC 1283 (supra). Indeed, if that argument had been persisted in, on behalf of the opposite parties, it could be repelled on the ground that the material placed before us was not sufficient, as held by the Supreme Court in State of Andhra Pradesh v. P. Sagar. (AIR 1968 SC 1379), affirming a decision of the Andhra Pradesh High Court reported in AIR 1968 Andh Pra 165, to show that all the permanent residents of Himachal Pradesh could be classified as 'Backward'.
79. The test of what could constitute a 'socially and educationally' backward 'class' of persons, entitled to be protected under Article 15 (4), have been discussed very fully by their Lordships of the Supreme Court in Balaji's case, AIR 1963 SC 649 (supra) & Chitra Lekha's case, AIR 1964 SC 1823 (supra) and P. Sagar's case, AIR 1968 SC 1379 (supra). Even if residents of a whole region could be found to be 'educationally and socially backward' due to poverty or other reasons indicated in Balaii's case, it was doubtful how far exclusion from education in medical or technical colleges of those who may be able to profit more and give better service to their compatriots in return for education, due to their superior merit, could help in removing educational and social backwardness for which other methods may be more effective. It was, however, recognised that this was permissible within the reasonable limits contemplated by Article 15 (4) of the Constitution. But, it was pointed out. in Chitralekha's case, AIR 1964 SC 1823 (supra), that Article 15 (4), being an exception engrafted on the prohibitions contained in Article 15 (1). those who claimed to be authorised to impose this exception had to prove their claim strictly.
80. In our opinion, there is no need for the opposite parties to seek the aid of Article 15 (4) of the Constitution at all here to justify the classification adopted in the distribution of seats because we do not find any prohibition here struck by Article 15 (1) of the Constitution despite the strenuous efforts of the learned counsel for the petitioners to convince us that the test of a bona fide Himachali, sought to be introduced by the amended definition, was 'racial', because it was based on residence from 'generation to generation.' It is, in our opinion, not possible to hold that this test could be anything more than a residential one. We have struck down the amended test for a violation of Article 14 and not of Article 15 (1) of the Constitution because it discriminates ' between permanent residents or Himachalis themselves without a reasonable or legally justifiable nexus for it. As the Supreme Court pointed out. in D. P. Joshi's case, AIR 1955 SC 334 (supra), a residential restriction cannot be equated with one based on a 'place of birth' struck by Article 15 (1) of the Constitution. We find that there is no restriction, in the classification or distribution of seats, which could be held to be struck by either Article 15 (1) or 29 (2) of the Constitution.
81. One of the contentions on behalf of the opposite parties was that the only Article which could be considered in deciding the validity of restrictions on admissions to educational institutions is Article 29 (2) of the Constitution which lays down:--
'No citizen shall be denied admission into any educational institution maintained by the State or receiving aid out of State funds on grounds only of religion, race, caste, language or any of them.' The contention was that this specific provision relating to admissions into such institutions, prevents the use of Arts. 15 and 14 of the Constitution for considering the validity of restrictions on admissions to such Colleges. Article 29 (2) restricts bars struck by it to those on one of the four grounds mentioned there or to a combination of these only. Hence, it was submitted, bars could be imposed, without any let or hindrance, by the State Government, on grounds such as residence or sex or nature of service of the parents could, as Article 14 or 15 (1) did not come into play at all in such cases.
82. We are unable to accept the correctness of this extreme submission, placed before us on behalf of the opposite parties, relying on the maxim; Generalia specialibus non derogant which was thus explained in Barker v. Edger, 1898 AC 748, 754 (PC):--
'When the Legislature has given its attention to a separate subject and made provision for it. the presumption is that a subseauent general enactment is not intended to interfere with the special provision unless it manifests that intention very clearly.'
It will be seen that this statement puts the principle on no higher footing than that of a presumption of non-interference with the special provision and that too where the general enactment is subsequent to the special enactment. This is not the position here on the provisions we have to construe.
83. We may also point out that in P. Rajendran v. State of Mysore. (AIR 1968 SC 1012) although the district-wise distribution of seats was held not to violate Article 15 (1) of the Constitution, yet. it was held that it was struck by Article 14 of the Constitution. Similarly, in D. P. Joshi's case, AIR 1955 SC 334 (supra), it was held that Article 14 and not Article 15 (1) of the Constitution was violated. In Km. Chitra Ghosh's case. AIR 1970 SC 35 (supra), the question whether the reservations on residential grounds were struck by any of the three Articles 14, 15 or 29 of the Constitution, was considered and decided on the assumption that each of these three Articles could be separately applied and that the restrictions under consideration were not to be judged merely by reference to Article 29 (2) of the Constitution. Furthermore, we may Doint out that Article 15 (4) of the Constitution, introduced by the Constitution (First Amendment) Act of 1951, as a result of the decision of the Supreme Court in State of Madras v. Smt. Champakam, (AIR 1951 SC 226), deals with both Article 29 (2) and Article 15(1) of the Constitution together. Hence, the principle of interpretation applicable here is obyiously that the provisions of Articles 14 and 15 and 29 (2) must be read together and as a whole. In other words, Article 14 lays down a principle of general application in all cases. Articles 15 (1) and 29 (2) were to be considered as merely amplifications or special applications of the general principle contained in Article 14 of the Constitution, but they do not displace or exclude a test by applying Article 14 in those cases which fall outside Article 29 (2) of the Constitution. This means, in our opinion, that the protections conferred by Article 29(2) of the Constitution do not exhaust those conferred upon citizens seeking entry into educational institutions mentioned there. The result is that even though a bar to admission to such an educational institution may not be struck by Article 29 (2), yet, it may have to pass the tests imposed by Arts. 14 and 15 (1) of the Constitution also before it can be held to be valid.
84. The question was also argued whether, apart from the amended test of a bona fide Himachali. which contravenes Article 14. there was any other restriction in the Rules or conditions of the prospectus which infringes Article 14. We think that the learned counsel for the opposite parties correctly submitted that reservations of most of the seats for permanent residents of Himachal Pradesh by the State Government could be justified on the strength of recent Supreme Court decisions. It was contended that it was the duty of the State Governments to be concerned primarily with the needs and welfare of the inhabitants of their own States. In such cases, the discrimination is not based on any protection conferred under Article 15 (4), but, on a reasonable classification, based on other considerations some of which may be similar to those for which special provisions can be made under Article 15 (4). These justifiable grounds take into account the rights of the State which bears the expenses of running an educational institution and the needs of those who pay the taxes to it.
85. In (AIR 1970 SC 351 the reservation of all the places to certain categories only for admission of students, primarily on residential basis, was held to be justifiable and not struck by either Article 14 or 15 or 29 of the Constitution. That was a case of a Medical College run by the Central Government. It was observed there:--
'It is the Central Government which bears the financial burden of running the medical college. It is for it to lav 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 source the admission will be made. That essentially is a question of policy and depends inter 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 facilities 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.'
We may observe that, in this case, the Supreme Court considered the contention whether the classification made there was hit either by Article 14 or by Article 15 (1) or by Article 29 (2) of the Constitution and held that the requirements of none of these three Articles were violated.
86. In Km. N. Vasundara v. State of Mysore. (AIR 1971 SC 1439) Chitra Ghosh's case (supra) was followed in holding that, although, the object of selection could only be to secure the best possible material for admission to Colleges, subject to the provision of socially and educationally backward classes, as was laid down by the Supreme Court in (AIR 1968 SC 1012), yet, the laying down of the sources or the distribution into classes within which the selection of the best material was to take place, was a matter of policy with which the Courts will not interfere if a rational basis could be found for it.
A Rule laying down domicile as a basis of classification was justified in that case on the following grounds:--
'In our view the word 'domicile' as used in Rule 3 in the present case is also used to convey the idea of intention to reside or remain in the State of Mysore. If classification based on residence does not impinge upon the principle of equality enshrined in Article 14 as held by this Court in the decision already cited which is binding upon us. then the further condition of the residence in the State being there for at least ten years would also seem to be equally valid unless it is shown by the petitioner that selection of the period of ten years makes the classification so unreasonable as to render it arbitrary and without any substantial basis or intelligible differentia. The object of framing the impugned Rule seems to be to attempt to impart medical education to the best talent available out of the class of persons who are likely, so far as it can reasonably be foreseen, to serve as doctors, the inhabitants of the State of Mysore. It is true that it is not possible to say with absolute certainty that all those admitted to the medical colleges would necessarily stay in Mysore State after qualifying as doctors: they have indeed a fundamental right as citizen to settle anywhere in India and they are also free, if they so desire and can manage, to go out of India for further studies or even otherwise. But, these possibilities are permissible and inherent in our constitutional set-up, and these considerations cannot adversely affect the constitutionality of the otherwise valid Rule. The problem as noticed in P, Rajendran's case. (1968) 2 SCR 786 = (AIR 1968 SC 1012) and as revealed by a large number of cases which have recently come to this Court is that the number of candidates desirous of having medical education is very much larger than the number of seats available in medical colleges. The need and demand for doctors in our country is so great that young boys and girls feel that in medical profession they can both get gainful employment and serve the people. The State has therefore to formulate with reasonable foresight a just scheme of classification for imparting medical education to the available candidates which would serve the object and purpose of providing broad-based medical aid to the people of the State and to provide medical education to those who are best suited for such education. Proper classification inspired by this consideration and selection on merits from such classified groups therefore cannot be challenged on the ground of inequality violating Article 14.'
87. In view of the last two decisions of the Supreme Court, which we are bound to follow, it is not necessary for us to refer to a large number of cases from the States of Andhra Pradesh. Assam, Bombay, Calcutta. Jammu and Kashmir. Kerala Madhya Bharat. Madras, Mysore and Punjab which were cited before us. All we need say is that the domicile or the needs of the inhabitants of a particular State can be made the basis of reservation of seats by the Government of the State concerned without infringing the principles contained in Articles 14, 15 and 29 of the Constitution.
88. The petitioners, for reasons to be given in dealing with the merits of their claims for admission to the College, are not hurt if they could secure consideration for the year 1970-71 on the basis that they were children of Hima-chal Pradesh Government employees. We, therefore, need not consider further all the attacks of the distribution of seats made by the amendment for the year 1971-72. All we need observe here is that the subsequent bar. confining admissions to permanent residents of Himachal Pradesh for all seats except three and the actual distribution of the seats made by this amendment, has not been shown to us to be unreasonable or mala fide upon the facts and circumstances placed before us. The presumption of constitutionality, the manner in which it is to be repelled, by showing prima facie unreasonableness or by proving facts which . establish a discrimination struck by Article 14, and the principles to be applied in deciding whether this basic constitutional provision is infringed, have been repeatedly laid down by the Supreme Court. We will only refer to the two decisions cited before us on this aspect of the case. They are: R. K. Dalmia v. Justice Tendolkar, (AIR 1958 SC 538); Kanghshari Haldar v. State of West Bengal, (AIR 1960 SC 457). These two cases were relied upon by one of us in SectionC. Anand v. State of U. P. (AIR 1969 All 317 (FB) at 'pp. 330 to 331) to reject pleas of unreasonable classification, mala fides, and fraud upon the Constitution which have to be substantiated by those who advance them.
89. The validity and meaning of Rule 6 of the prospectus may now be considered. If the second sentence in the last paragraph of this Rule could only be interpreted so as to invest the Principal or the Government with an arbitrary or unrestricted power to pick and choose, on any ground whatsoever and irrespective of the constitutional mandates, this part of Rule 6 may also have to be struck down. This sentence is certainly ambiguous. Learned counsel for the petitioners urged that this provision may imply application of selective tests, on grounds of eligibility, before a candidate is called for an interview by Selection Board, but it does not apply once a candidate is called for an interview by the Selection Board for appraisement of merits of his case as both the petitioners had been called. But. we find that the candidates are required to produce the originals of their certificates before the Selection Board only so that, presumably, in cases of doubt, the Selection Board may also be satisfied that they are. prima facie in order and valid, before assessing merits.
90. This part of Rule 6 does not specifically confer any power on the Government or the Principal, as an agent of the Government, to go behind the certificates. If there is an implied power, even outside these Rules, to investigate or decide on disputed claims on the basis of questioned certificates which are, prima facie, shown to be correct, that power, as we have already held, can only be exercised quasi judicially.
91. This part of Rule 6 gives the Principal power to call 'as many' registered candidates (the emphasis is on the number to be called) 'as he may consider necessary against seats to be filled by Himachal Pradesh Government.' But, the distribution of quotas of seats to be filled, contains no category of seats 'to be filled by the Himachal Pradesh Government.' It is difficult to see what residue of power to fill seats could be left with the Government after it had sanctioned Rules fixing the quotas of seats for different categories and prescribing the procedure for assessment of merits by the Selection Board within each category.
92. Well established canons of construction lay down that we should prefer. where po.ssible, a construction which does not make any part of Rules or provisions made therein either meaningless or redundant or invalid. We are, therefore, inclined to hold that this part of Rule 6, which confines the power of the Principal to call only registered candidates for assessment of their merits by the Selection Board, was meant to enable the Principal to call an increased or a reduced total number of registered candidates, having regard to any change of circumstances, making it necessary to alter this number, on some general direction of the Government, about the total number of seats which could be filled. Of course, such a decision could only be taken reasonably on facts and circumstances justifying the alteration of the total number of seats available after registration of candidates.
93. An interpretation recognising the power of the Principal, as an agent of the Government or otherwise, to call or not to call any registered candidate on any ground whatsoever, protected from disclosure or scrutiny, would frustrate the whole purpose of making Rules for admission, conflict with provisions there for consideration of merits and would invalidate this part of R. 6 itself. We, therefore, refrain from adopting such an interpretation.
94. It is more reasonable to hold that this part of Rule 6 relates to a decision about the total number of candidates who could be admitted pursuant to some general direction of the Government on this matter having regard to the needs and contingencies which may have arisen. It does not seem to us to refer to any power to deal with individual cases. All that can be decided here is: How many registered candidates can be called? This question has not arisen in the cases before us, and therefore, deserves no fur-their consideration.
95. We may now take up the merits of the claims of the petitioners under the Rules which were binding on both sides to the extent they are valid. The Rules were meant for the public and the term 'Himachal Government employee' must be presumed to have been used in the sense in which it was to be understood by the general public of Himachal Pradesh, or, at any rate, by the prospective candidates. The meaning which the terms used in the Rules have for the public or for prospective candidates, in ordinary parlance, must prevail in such cases. It appears that this aspect of the matter was not considered by the two Departments of the Government of Himachal Pradesh which examined the two questions which arose relating to the claims of the petitioners on which both sides have sought our decisions.
96. The petitioners tried to iustify their claim as children of Himachal Pradesh Government employees on the Strength of the following facts about the father of each petitioner:--
1. He is employed, in a permanent post sanctioned by the Government of Himachal Pradesh in the P. W. D. Department.
2. He is in what is described as Himachal Pradesh cadre of the Divisional Accountants which according to the letter dated. l0th June. 1954. from the office cf the Accountant General, Punjab (Annexure P-l to the affidavit of Sri Baweja dated 24-7-1971) was to be 'transferred to the State Government concerned with effect from 15th March, 1954 on functional basis' so that further correspondence regarding their postings and other administrative matters was to be addressed to the Finance Departments of che Governments concerned.
3. He does not perform any function connected with the affairs of the Union but works exclusively for the State of Himachal Pradesh under the directions of the P. W. D. officials.
4. His salary is to be paid out of the funds of the State of Himachal Pradesh although it is charged on the consolidated fund.
5. He will, after retirement, get pension from the funds of the State of Himachal Pradesh.
6. He has no lien on any service under the Central Government, but. in fact, has been deprived of chances for consideration to other posts outside the Himachal cadre under a letter of the Accountant General.
7. His head of office is the Executive Engineer who has certified that he is a Himachal Pradesh Government employee.
8. The Accountant General also gave a certificate that he is on the Himacnal Government cadre of Divisional Accountants working in the P. W. D.
9. The budget on which his salary is shown is passed by the Himachal Pradesh State Legislature.
10. It is understood that he would not be transferred outside Himachal Pradesh ordinarily.
11. The Confidential Reports are given by the head of the office who is the Executive Engineer.
12. It was urged that Rules relating to his service could be framed by the Governor under Article 309 of the Constitution.
97. Against this, learned counsel for the opposite parties relied on ihe following facts:--
1. A Divisional Accountant is appointed by the order of the Accountant General for Himachal Pradesh and Punjab.
2. The punishing and the dismissing authority is the Accountant General cf Punjab and Himachal Pradesh.
3. He can be transferred outside the Himachal Pradesh if the Accountant General so decides.
4. The Confidential Reports are sent to the Accountant General by the Executive Engineer.
5. The audit of the accounts of the Union as well as of the States is a Central subject under Entry No. 76 of the Union list I under the control of the Comptroller and Auditor General appointed under Article 149 of the Constitution of India.
98. The facts are not disputed before us. The question is whether the Divisional Accountants in the pay of and working in the offices of the P. W. D. and carrying out functions assigned to them by their heads of office in the P. W. D. and in connection with the accounts of the Government of Himachal Pradesh could, upon some other facts and circumstances brought out by the opposite parties, te held to be Central Government servants and not State Government servants or employees in common parlance. If the authorities concerned had some tests of their own, at the back of their minds, which were not revealed by the Rules as they stood, they could not be applied against those who. quite naturally, understood these Rules to be free from such hidden import. It is only the ostensible and apparent meaning, therefore, with which we should be concerned. The plain ordinary meaning to plain people or laymen should prevail here.
99. We have not been referred to any definition of an employee of a particular State Government or of the Central Government. On the general principles on which the question has to be determined two authorities were cited before us. In the first of these. K.C. Deo Bhanj v. Raghunath Misra, (AIR 1959 SC 589), the Supreme Court pointed out that there was a distinction between a per son 'serving under the Government' and another 'in the service of the Government.' Reliance was placed there on a passage from Batt's book on 'Master and Servant' which said:--
'It is this right of control or interference, of being entitled to tell the servant when to work (within the hours of service) or when not to work, and what work to do and how to do it (within the terms of such service), which is the dominant 'characteristic in this relation and marks off the servant from an independent contractor, or from one employed merely to give to his employer the fruits or results of his labour. In the latter case, the contractor or performer is not under his employer's control tn doing the work or effecting the service; he has to shape and manage his work so as to give the result he has contracted to effect.'
This passage dealt with the well known distinction between a servant and an independent contractor who undertakes the performance of a particular piece of work but is free to choose his own means of executing that work. A servant, on the other hand, has to serve in accordance with the requirements laid down by the master. Applying this test, their Lordships pointed out that the relation between the State Government and the Gram Panchayat was such that, although the State Government exercised a control and supervision over the functions of the Gram Panchayat and its Surpanch, yet, neither the Gram Panchayat nor its Surpanch could be said to be in the service of the Government. Hence, it was held that the Surpanch of the Gram Panchayat could not be held to be a person in the service of the Government.
Applying the general principle contained here, it seems to us that the Divisional Accountants, although under the administrative control of the Accountant General, for certain purposes, are under the immediate control of the head of his office who assigns the work to them and determines when and what work has to be done. It is true that neither the head of the office nor the State Government can ask the Divisional Accountants to function contrary to the provisions of law. but. that is a condition which applies to all Government servants. Indeed, neither a Government nor a private Master can ask the servant to act against the law. The mere fact that the Comptroller and Accountant General keeps a watch over and supervises the work of keeping and auditing of accounts, through the State Accountant General, who is the transferring and punishing authority for Divisional Accountants of the State cadre, does not convert the supervising authority into the employer. The employer must, on general principles, be still deemed to be the authority under whose immediate control the servant works. For the Divisional Accountant this authority is the head of the office in which he works. The supervisory function of the Accountant General and the independence of the manner in which the Divisional Accountants may be expected to function, in accordance with the Rules, should not be enough, we think, to deprive them of a status of Himachal Pradesh Government servants.
100. Another case cited before us was Kapur Singh v. Union of India. (AIR 1960 SC 493) where their Lordships of the Supreme Court held:--
'There is no foundation for the submission that members of the Indian Civil Service, because they hold office during the pleasure of the President since the commencement of the Constitution, are employees of the President. They are and continue to remain employees of the Union or the State under which they are employed. By the Constitution, the executive power of the Union is conferred upon the President, and it is in exercise of that executive power that the President may dismiss a member of the Civil Service of the Union or of an all India service from his appointment. Members of the Indian Civil Service are accordingly not liable to be dismissed from their appointment without the sanction of the Government and are not excluded from the purview of the Public Servants (Inquiries) Act, 1850.'
Hence, it was held that a State Government could institute an enquiry into charges against a member of the I. C. SectionThe importance of this decision is that even a member of the I. C. Sectionwas described as 'an employee of the State' under which he was employed. Therefore, the public could also reasonably understand, from the Rules. that employees in the departments of the State of Himachal Pradesh and performing duties assigned to them by the heads of their offices, who work under the orders of the Himachal Pradesh Government, are for all practical intents and purposes. Himachal Government employees. This is also what the Deputy Accountant General had, in our opinion, rightly opined.
101. Lastly, coming to the question whether the petitioners were the children of permanent residents of Himachal Pradesh. we think that an essential point overlooked in denying them that legal status was that they could not possibly retain either the citizenship or the domicile of their origins as they were displaced persons from Pakistan governed by special constitutional provisions. It was, therefore, not enough, in their cases, to invoke the doctrine of Private International Law that the domicile of origin adheres to a person until and unless a domicile of choice is acquired. Even if that principle of law were applied in the case of the father of each of the two petitioners, we think that, on the facts deposed by each of them, unshaken by cross-examination, coupled with their long services in Himachal Pradesh and the unlikelihood of their transfer outside, it could not be said that they had not settled in Himachal Pradesh or had not acquired a Himachali domicile merely because they were not well enough to acquire any landed property here. They had each unequivocally declared their intentions to reside permanently in Himachal Pradesh and no facts which conflicted with their declared present intentions could be brought out. The domicile of their minor children would also follow their domicile.
102. We think that the learned counsel for the petitioners rightly pointed out that, so far as displaced persons from Pakistan were concerned, their position was governed by the special provisions of Articles 6 and 7 of the Constitution of India. In Kulathil Mammu v. State of Kerala, (AIR 1966 SC 1614) the Supreme Court had held that, even though such persons may have left Pakistan without intending to abandon their homes and had not settled in India by acquiring a domicile of choice anywhere, yet, they would be Indian citizens under the provisions of Article 6 of the Constitution, if they had left Pakistan before 19th July, 1948. and had resided in India since that time upto the commencement of the Constitution. The term 'migration' was given a wider import than it has in the Private International Law. Such persons acquired Indian citizenship by reason of our special constitutional provisions.
103. It is not denied that the father of each of the two petitioners had acquired Indian citizenship by migrating to India within the meaning of Article 6 of the Constitution. Nevertheless, it was contended, on behalf of the opposite parties, that they could not be deemed to have acquired Himachali domicile until and unless they could show that they had settled here by acquiring some landed property. We are unable to accept this view about the acquisition of a Himachali domicile having regard to both the provisions of Article 19 (1) (e) of the Constitution, which confers upon Indian citizens the right to reside and settle wherever they like, subject to such restrictions as may be imposed under Article 19 (1) (6) of the Constitution, and, also because of the special position of such displaced persons recognised by the Government of Himachal Pradesh itself on 26-1-1954.
104. A Government Memorandum dated 26-1-1954, No. G.50-11/47-II (An-nexure PRJ to the petition of Km. Manju) was relied upon by both the petitioners. This reads:--
All Heads of Dapartments and Offices in Himachal Pradesh. Dated Simla-4 the 26th January, 1954. Subject:-- Relaxation of domicile qualifications in respect of refugees.
Himachal Pradesh Government have already accepted the recommendations made by the Standing Advisory Committee for the Ministry of Relief and Rehabilitation, Government of India, of the Constituent Assembly (Legislative) to the effect that refugees from Pakistan should be deemed to be domiciled in the Province or State in which they wish to settle or seek employment. The Rules pertaining to domicile have also been relaxed in their case.
Sd. Assistant Secretary
(General) to Government,
105. We have not been referred to any law or order or communication issued by the present Govt. of Himachal Pradesh which withdraws the recognition of the mode of acquisition of a Himachali domicile contained in the above-mentioned communication. We think that this recognition was in complete conformity with the provisions of Arts. 6 and 19 (1) (e) of our Constitution. No provision restricting the rights of such individuals covered by Article 19 (6) of the Constitution was placed before us. Therefore, upon the facts asserted by the father of each petitioner, we have no doubt in our minds that each of them was a permanent resident of Himachal Pradesh.
106. We have already struck down that part of the amended definition of a permanent resident of Himachal Pradesh which, in our opinion, contravenes constitutional provisions and could not be enforced at all against the petitioners. At the time when the petitioners had applied for admission to the College, the purported amendment, by means of a note attempting to define a bona fide Himachali. was not there at all. However, the petitioners not having applied at that time on this basis, as their guardians' seemed confident that their claim as Himachal Pradesh Government emplovees was sufficient, we think that the legality of their claim for admission should be determined only on the basis on which they had originally themselves placed it. On the findings given above, we think that they were entitled to admission on the footing on which they had claimed it, that is to say, as children of Himachal Pradesh Government employees.
107. For the reasons given above, we have come to the conclusion that the petitioners applications, duly accompanied by the necessary certificates, entitled them to be considered for selection by the Board, and that it had wrongly failed to consider their cases for admission on the principles laid down in Rules 6, 7, 8 and 9. It is pointed out that, under the amended Rules, candidates who may qualify and compete may have obtained higher marks now, so that the petitioners may, if they are to be considered for admission this year, not be entitled to admission within the quota of 60 seats, allotted for candidates to be selected in accordance with the Rules this year, excluding 3 seats which are reserved for the exercise of a discretionary power of the Chief Minister himself to nominate. We think that, without disturbing this year's quota of 60. it is possible to accommodate the petitioners in the quota of 3 additional students which may be or may not be filled up by nomination. There is no right in any one to demand admission in this special quota of 3. If, however, it is possible for the College and the Government to give the petitioners admission even without disturbing the nomination quota, to which, as we have already held, no candidate has a right, we leave the opposite parties free to increase the number by two under Rule 6 so as to accommodate sixty five students this year. We are fortified in the view we are taking by a decision of the Andhra Pradesh High Court in V. Raghuramulu v. State of Andhra Pradesh. (AIR 1958 Andh Pra 129) where an order was made by a Division Bench of that Court to the following effect:--
'However, the fact that selections have been made could not affect the right of the petitioners. The applications of the two petitioners may now be considered by the respondent and if they have preferential claims over others who have already been selected they may be provided for by creating two additional seats.'
108. The result is that we direct the Principal and the Selection Board of the College to consider the cases of the petitioners on merits and to admit them to the College, if. upon a consideration of the merits of their cases as compared with those who had sought admission in competition with them last year, they would have been entitled to obtain admission. It is not the fault of the petitioners if they were wrongly considered ineligible last year. The least that the opposite parties can do to repair the damage done is to do what they should have done in the case of the petitioners last year. Accordingly, we direct them to do what should have been really done in the cases of the petitioners last year.
We allow these writ petitions in the terms indicated above. The petitioners are entitled to their costs. We assess counsel's fee at Rs. 200/- in each case.
Chet Ram Thakur, J.
109. I agree.