Harish Kumar Malhotra vs State

D.B. Lal, J.—Harish Kumar Malhotra a candidate for admission to Medical College, Simla, has filed this writ petition and has called in question the decision of the Selection Board set up for making admission, whereby he has been rejected and has not been admitted for the first year Medical Course for the year 1970.

The contentions made on behalf of the Petitioner are, that a prospectus was issued by the State Government for admission to candidates to the first year Medical Course of 1970 and in pursuance to the instructions contained in the prospectus, the Petitioner applied for admission. The Petitioner had passed Pre-Medical examination of the Punjab University in the year 1970 and he obtained 384 marks out of a total of 650 marks and thus the percentage of marks which he obtained was 59.6% in the compulsory subjects, i.e. English, Physics, Chemistry and Biology. The Petitioner had also appeared in the Pre-Medical examination of that University in the year 1969 but could not appear in Biology Practical examination because of acute dysentery for which he obtained a medical certificate. He was, accordingly, placed in the compartmental list and was required to appear in supplementary examination. However, he did not appear in such supplementary examination and rather chose to appear afresh in the Pre-Medical examination of 1970 and obtained the marks stated above. According to Petitioner, his non-appearance in the Pre-Medical examination of 1969 was for the reasons beyond his control and he should not be made subject to any disqualification because of that. According to the terms and conditions laid down in the prospectus, a candidate seeking admission should have obtained 50% of the total marks in the compulsory subjects. Such a candidate could have passed Pre-Medical examination from a recognised college, and the Petitioner fulfilled this condition. As such, he was qualified for selection, but the Selection Board deducted 2% of the total marks of the Petitioner because under para 8 of Part-B(I) of the prospectus such a deduction was to be made because the Petitioner was held to have passed the qualifying examination in the second attempt. According to Petitioner, this provision in para 8 was arbitrary, discriminatory and against principles of nautral justice. After such a deduction of the marks, the Petitioner was placed much below in the list of successful candidates. Although his marks before deduction exceeded the marks obtained by the Respondents 6 to 9, yet they were admitted in the College, while the Petitioner was not admitted. According to Petitioner, the rules and regulations that were enforced in Panjab University were applicable to the admission for Himachal Medical College. This was so, because before 22nd July, 1970, the Himachal Pradesh University Act, 1970, was not in force. Thereafter by a notification the State Government had applied the rules and regulations of the Punjab University to the admissions in Himachal Pradesh University. This they did, because the Ordinances which should contain the rules and regulations for admission, have not yet been made for Himachal Pradesh University. The contention of the Petitioner is, that the 2% deduction rule is not to be found in the rules and regulations of the Punjab University and therefore this rule is ultra vires the Panjab University Act and its regulations. The Petitioner was interviewed on 23rd July, 1970 by the Selection Board which, according to him, was not properly constituted and could not make the selection. Besides this, the various lists of selected condidates were put on the notice board in an illegal manner and these lists did not contain the name of the Petitioner. According to Section 4 of the Himachal Pradesh University Act, 1970, it has been provided that the University shall be open to all persons of either sex and of whatever race, creed, caste or class. Since the Petitioner has been refused admission, there is a violation of this provision contained in Section 4. According to Petitioner, there is no law, rule or regulation which gives sanction to para 8 of Part-B(I) of the prospectus. The said provision is, therefore, unjust and arbitrary and without sanction of a statute. It has definitely prejudiced the Petitioner and should be quashed. At any rate, the Petitioner should not be penalised because he could not appear in the Pre-Medical examination of 1969 due to sudden illness and in the special circumstances, he should not be considered to have passed the qualifying examination in second attempt. In fact, such a concession was granted to a few candidates who sought admission during the year 1967-68 and Miss Hari Priya and Vijay Kumar Kapur are such of the candidates. On these facts and allegations, the Petitioner asked for a writ of certiorari quashing the impugned decision of Respondents 1 to 5 who are the State Government and the Members of the Selection Board. He also asked for a writ of mandamus directing these Respondents to admit him to the first year course of the M.B.B.S. during the current session of the academic year. Further the Petitioner wanted a direction to the Respondents or any other competent authority to make selection of candidates in order of merit without 2% deduction so that admissions are assured to deserving candidates.

The Respondents 2 to 5 who are Members of the Selection Board, have filed a common return and their allegations are, that the rejection of the Petitioner was made in accordance with rules and regulations and the decision cannot be considered without jurisdiction. According to Respondents, the Selection Board was constituted by the Government. Similarly the prospectus was also approved by the Government. Para 8 of Part-B(I) was based on instructions that were received from the Director-General, Health Services, New Delhi. This para provided for 2% deduction rule which cannot be considered arbitrary or discriminatory. There could be a valid discrimination between candidates who passed in first attempt and those who passed in second attempt. There is a rational basis for this discrimination. Besides this, the discrimination has a reasonable nexus with the object in view, namely, the selection of suitable candidates for a Medical College. The lists of selected candidates were legally put on the notice board and since the Petitioner was rejected, his name did not appear on such lists. After 2% deduction, the marks of the Petitioner were less than the marks of the Respondents 6 to 8 and so the Petitioner could not be selected. The Respondent No. 9, however, possessed more marks as compared to Petitioner even if such a deduction was not made. Therefore, the Petitioner could have no grievance for the admission that was given to Respondents 6 to 9. Regarding the selection that was made in 1967-68, it was governed by the rules and regulations prevailing at that time. The Petitioner cannot take advantage of those rules and regulations. Thus, the admission of Miss Hari Priya or Vijay Kumar Kapur cannot be called in question to benefit the Petitioner. According to para 8, if a candidate appeared in part of qualifying examination, it was to be treated as a failure attempt. Obviously the Petitioner appeared in part of the qualifying examination of 1969. As such, he exhausted his first attempt. When he passed the qualifying examination in 1970 that was definitely a second attempt and 2% deduction was rightly made in the marks. This rule, contained in para 8, is not ultra vires the rules and regulations of the Panjab University. The Government could lay down a further condition for a better selection of candidates. While applying these rules and regulations of the Panjab University, the power to make just exceptions in rules and regulations was made available and as the prospectus was sanctioned by the Government, it could be taken that the 2% deduction rule was imposed by the Government in addition to the rules and regulations of Punjab. It is immaterial that the Petitioner had fallen suddenly sick, as that would not change the character of his attempt for the qualifying examination. Para 8 is abundantly clear on this and no exception is provided therein for such a contingency. Therefore, it is urged that the Petitioner is not entitled to any writ or direction as claimed by him.

Before I advert to the respective contentions made by the learned Counsel, it is appropriate to point out certain facts which have remained uncontroverted. It can admit of no doubt that the institution is a Government Medical College and that it was affiliated with the Panjab University upto 22nd July, 1970. With effect from that date, however, the Himachal Pradesh University Act, 1970, came into force and this institution was affiliated with the Himachal Pradesh University. There is a notification dated 22nd July, 1970 to this effect at annexure P.F. of the petition. u/s 40 of the Himachal Pradesh University Act, 1970, Ordinances were required to be made and these Ordinances had to provide for the admission of students to affiliated colleges and the qualifications for such admission. It is admitted that no Ordinance has yet been made under this section. The question naturally arose for admission to colleges and to facilitate the authorities in the matter of admissions etc., a removal of difficulty order u/s 48 of the Act was issued by the State Government. This order is dated 29th August, 1970 and provided, inter alia, that the regulations and rules made by the Panjab University, which were in force immediately prior to the commencement of the Act, were applicable to the Himachal Pradesh University in respect of admission etc. of students to the courses of study, "except where the State Government directed otherwise". By virtue of this notification, the rules and regulations of the Panjab University became applicable and the regulations referred to by the Petitioner, contain provisions for admission to first year Medical Course of the University. The prospectus was issued and a Selection Board was appointed. It is, however, contended by the Petitioner that the prospectus as well as the Selection Board did not have the proper sanction of the State Government. The interviews of the candidates took place on 22nd and 23rd July, 1970. Accordingly the Petitioner was also interviewed on one of these dates. It is also admitted that the first list of successful candidates was fixed on the notice board on 31st July, 1970, while the last list of such candidates was displayed on the notice board on 29th September, 1970. It is also admitted that after deduction of 2% marks, the Petitioner can only be placed below Respondents 6, 7 and 8. It is not disputed that the marks of Respondent No. 9 were already more as compared to the Petitioner even before such 2% deduction. It is also not disputed that a letter containing instructions was issued by the Director-General of Health Services, and based on such instructions, the 2% deduction rule was evolved. However, it is contended that such instructions were neither applicable nor the suggestion made therein could have been adopted on principles of natural justice.

It would then be proper at this stage to elaborate the statutory provisions which have a bearing in the case. Paras 2, 6, 7 (ii), 8 and 10 of the ''prospectus'' would be relevant. These are reproduced below:

The minimum qualification for admission is F. Sc. (Medical Group) or pre-Medical or equivalent examination as recognised by the Panjab 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.

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.

Selection will be done by the Board in the following order:

(i) ....................

(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.

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, University, reproduced below. However, applications for admission of such candidates will only be considered on their first success in the qualifying examination.

The Panjab 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 MBBS Course and Courses in July, 1969 and subsequent year.

(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.

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.

The ''prospectus'' was approved by the Government and the following letter would indicate that:

No. 19-1/70-H&FP. GOVERNMENT OF HIMACHAL PRADESH HEALTH AND FAMILY PLANNING DEPARTMENT

To

The Principal, H.P. Medical College, Simla-1.

Simla-2, the 30th May, 1970 Subject.--College Prospectus for the year 1970-71--Approval thereof.

MEMO

Reference your letter No. MCG-45/70, dated the 12th February, 1970, on the subject cited above.

Government hereby approve the Prospectus of H.P. Medical College, Simla, for the year 1970-71, with the minor additions and alterations proposed by you in your letter under reference with the object of improving the contents of the above prospectus.

The enclosures received with your letter under reference are returned herewith.

Sd/- Under Secretary (Health and F.P.).

The approval order of the Selection Board is in the following terms:

The Lieut. Governor, Himachal Pradesh, is pleased to constitute a Selection Board consisting of the following for interviewing/ selecting candidates for admission into First Year M.B.B.S. Course commencing from August, 1970, in H.P. Medical College, Simla:

Dr. B.P. Sinha, Principal, H.P. Medical College, Simla Chairman

Dr. Krishan Swarup, Director of Health Services, H.P. Member

Dr. M.N. Gosh, Professor of Pharmacology, H.P. Medical College, Simla Member

Dr. O.P. Bhargava, Professor of Anatomy, H.P. Medical College, Simla Member

The meetings of the Selection Board will be held at 10 A.M. on 22nd and 23rd July, 1970, onwards in the office room of the Principal, H.P. Medical College, Simla.

The letter of the Director-General of Halth Services dated 31st March, 1967 which contains the 2 % deduction rule, is in the following terms:

No. 19551/66-ME.

from

The Director-General of Health Services.

To

The Principal, H.P. Medical College, Simla. New Delhi, the 31st March, 1967

Subject.--Admission in the Himachal Pradesh Medical College, Simla.

Sir,

With reference to your letter No. MCG-59/66-1525, dated 21-3-1967, on the above subject, I am to inform you that admissions to medical colleges in India are governed by the rules and regulations framed for the purpose by the authorities of the medical colleges concerned and the Universities to which such institutions are affiliated.

In the case of nomination of candidates against the seats reserved in various medical colleges in India for Government of India''s nominees the selection is made by a Central Selection Committee. Criteria for admission is merit which is determined on the following basis:

1.B. Sc. I Division candidates to be admitted without any further formalities (provided they have passed I Sc. (Medical Group)/Pre-Medical Exam, with minimum requirements).

2.B. Sc. II Division candidate to be judged on the basis of their I. Sc./Pre-Medical marks. These candidates are not given any preference over I. Sc. Pre-medical students.

3.I. Sc./Pre-Medical candidates to be admitted on the basis of their University/Board marks.

In the case of candidates who pass qualifying examination in 2nd attempt 2 % marks are deducted from the aggregate in the determination of merit. In the case of candidates passing qualifying examination in more than two attempts, the consideration of such cases is at the discretion of the Selection Committee provided no such conditions are levied by the rules for admission to medical colleges where seats are reserved. While making selection of candidates, the Selection Committee also take into account the requirements for admission in the respective medical colleges.

I am further to add for your information that from the perusal of the prospectus of the Lady Harding Medical College, New Delhi, for 1966-67, it is observed that students who pass the I. Sc. Medical Group or Pre-Medical examination in the 2nd attempt have 3% marks deducted from the aggregate to determine their position in the merit list and students who fail the Pre-Medical I. Sc. (Medical Group) on more than two occasions are not eligible for admission to M.B.B.S. Course in that college.

Yours faithfully, Sd/- (R.B. TAMPI) for Director-General of Health Services.

The notification regarding the enforcement of the Himachal Pradesh University Act, 1970 is reproduced below:

EDUCATION DEPARTMENT NOTIFICATION Simla-2, the 22nd July, 1970

No. 4-2/69. Sectt. Edu. I.--In exercise of the powers conferred by Sub-section (2) of Section 1 of the Himachal Pradesh University Act, 1970 (Act No. 17 of 1970), the Administrator (Lieutenant Governor), Himachal Pradesh hereby appoints the 22nd day of July, 1970 as the date on which date the said Act shall come in to force in the whole territory of Himachal Pradesh.

By order, R.V. GUPTA, Secretary.

Section 6, 40 and 48 of the Himachal Pradesh University Act will also be relevant and parts of these sections which can be referred to are reproduced below:

Section 6. The University shall have the following powers, namely:

(II) to determine and provide for examinations for admission into the University;

Section 40(I) Subject to the provisions of this Act and the statutes, the Ordinances may provide for all or any of the following matters, namely:

(a) the admission of students, the courses of study and the fees therefor, the qualifications,..............

Section 48. If any difficulty arises in giving effect to the provisions of this Act, the State Government may, by order published in the ''Rajpatra, Himachal Pradesh'', make such provisions, not inconsistent with the provisions of this Act as appear to it to be necessary for the purpose of removing the difficulty:

Provided that no such order shall be made after the (sic) of two years from the commencement of this Act.

The removal of difficulty order, dated 29th August, 1970 may also be seen and it is in the following terms:

Whereas difficulty has arisen in the matter of implementation of Section 40 of the Himachal Pradesh University Act, 1970 (Act No. 17 of 1970) in that the first Ordinances of the University have not yet been made by the State Government, the Lieutenant Governor, Himachal Pradesh in exercise of the powers conferred by Section 48 of the Himachal Pradesh University Act, 1970 (Act No. 17 of 1970) is pleased to order that the Regulations/Rules made by the Panjab University, Chandigarh, which were in force immediately prior to the commencement of the said Act in respect of the following matters, except where the State Government directs otherwise, shall apply till such time as the first Ordinances of the Himachal Pradesh University are made by the State Government:

(a) the admission and migration of students, the courses of study and the fees therefor, the qualifications pertaining to degrees, diplomas, certificates;

(b) the conduct of examinations, including the term of office and appointment of examiners, and conditions of residence of students and their general discipline;

(c) the managements of colleges and institutions maintained by the University and the affiliated colleges in so far as the Regulations/Rules are not inconsistent with the Statutes of the Himachal Pradesh University;

(d) the supervision and inspection of colleges and other institutions, admitted to the privileges of the University.

By order, R.V. GUPTA, Secretary (Education) to Govt. Himachal Pradesh.

Regulation No. 6 of the Panjab University Calendar, 1970, Vol. II, (page 370) would be pertinent and this Regulation provides for first professional examination for the Faculty of Medical Sciences. Relevant part of this Regulation is reproduced below:

The examination shall be opened to any student, who--(iii) has passed not less than 18 months, previously, one of the following examinations:

...

(4) Any examination recognised by the Syndicate as equivalent to the Pre-medical examination, with at least 50 per cent marks in English, Physics; Chemistry and Biology, provided that--

(a) no one will be admitted to the medical course on the basis of--

(i) Pre-medical Certificate obtained as a result of second attempt, after first having passed this examination from this or any other recognised University.

(ii) Pre-Medical Certificate obtained after appearing in the examination as a private candidate, i.e., other than as a regular student or a late college student.

(ii) Pre-medical Certificate obtained after having passed the Pre-engineering or equivalent examination (in such a case, marks obtained in Biology might be added to the marks obtained in English, Physics and Chemistry obtained at the Pre-engineering examination.

(b) A person who has passed the Pre-medical or equivalent examination with less than 50 per cent marks and if he has passed in the first division the B. Sc. examination with any three subjects out of Physics, Chemistry, Botany and Zoology or M. Sc. examination in first division in any of these four subjects.

The Petitioner claimed that he had fallen suddenly sick and hence could not appear in the Biology practical examination which was held on 10th and 12th May, 1969. The medical certificate as well as the certificate issued by the Principal in that connection, are reproduced below:

Certified that Sh. Harish Kumar s/o Sh. Roop Chand was suffering from acute bacillary dysentery and was under my treatment from 9-5-1969 to 14-5-1969.

Sd/- 25-6-1970 C.A.S. Grade I (Gazetted) Civil Hospital, Mandi district, Mandi (Himachal Pradesh).

Countersigned. Sd/- 25-6-1970 District Medical Officer (C.S.) Mandi district, Mandi (H.P.)

Certified that Harish Kumar Malhotra, son of Shri Rup Chand Malhotra and a regular student of Pre-medical Class of my college appeared in Pre-medical Examination of Panjab University held in April, 1969 from this college. His University Roll No. was 7860. His Biology practical for the above University examination was to be held on the following dates as prescribed by the University:

Botany Practical on: 10th May, 1969.

Zoology Practical on: 12th May, 1969.

And also this Biology practical was the very last practical to be taken by this candidate. He could not appear in this Biology practical examination and his result was declared as compartment in Biology that year by the University as indicated in his University detail marks card.

Sd/- Principal, Government Degree College, Mandi (H.P.).

Dated 26-6-1970.

The foremost contention of the learned Counsel for the Petitioner is, that 2% deduction rule is ultra vires the rules and regulations as well as the provisions of the Constitution and should be struck down as unjust and discriminatory. The entire basis of argument is in the Regulation No. 6 of the Panjab University as well as paras 2 and 7 of the ''prospectus''. As evident, Regulation No. 6 applies to first professional examination of the Faculty of Medical Sciences. It means, this Regulation does not apply to any test or selection that might take place for the purpose of admission of students to any medical college. Regulation 6 shall, therefore, not apply in this case. No other rule or regulation or Ordinance of the Panjab University has been pointed out, which may be relevant in this connection. On this short ground, the Petitioner''s case does not stand, inasmuch as he seeks to question to validity of the 2% deduction rule with reference to Rules and Regulations of the Panjab University. The argument that the conditions laid down for admission to first professional examination should equally apply to admission to a Medical College, and any condition in addition to conditions so laid down is not sustainable will not hold good because conditions which should prevail for selecting candidates to a medical college may be more strict than the conditions which may otherwise be laid down for permitting them to appear in the first professional examination which is decidedly a step subsequent to the admission in the college. Besides this, it is urged that until and unless Ordinance is not issued u/s 40 of the Himachal Pradesh University Act, no such restrictive rule can be prescribed. It is, no doubt, true that 2% deduction rule is not to be found in the Regulation No. 6 of the Panjab University, but from this it cannot be inferred that the said rule is violative of such regulation. In fact, that would be a condition in addition to what has been provided in the Regulation and that too for the purpose of admission to a Medical College. It is manifest, the 2% deduction rule does not militate against the existing provisions of Regulation No. 6.

Para 2 of the ''prospectus'' prescribed for the minimum qualification which a candidate had to possess before he could seek admission. From this it cannot be inferred that in order to succeed in selection he is not required to possess any further qualification when his case is sought to be compared with other candidates. Paras 7 and 8 of the ''prospectus'' are meant to be read together. It is true that admission was to be made according to the marks obtained by the candidates in four compulsory subjects in their qualifying examination and at interview. But that does not indicate that such marks were not open to 2% deduction when a distinction is to be made between candidates who passed in first attempt and those who passed in second attempt. The objective behind the rule was to select best candidates available for admission to a professional college. There was thus a rationale in the discrimination and the object was also laudable and there is decidedly a relationship between the distinction and the object in view. Therefore, whatever distinction has been prescribed, it is rationally based and the nexus is there with the objective of the statute. It cannot, therefore, be held that paras 2 and 7 of the prospectus have been violated in any manner by para 8. Similarly Section 4 of the Himachal Pradesh University Act has not been impinged in any manner. The distinction in the two classes that has been made according to their attempt in the qualifying examination, is a reasonable distinction and should be upheld. There is no question of denial of admission to any deserving candidate. In order to obviate the difficulty of Ordinance, the Regulations of the Panjab University were made applicable and the notification dated 29th August, 1970 was issued by the Government. It is even contended that such a notification could not be issued u/s 48 of the Himachal Pradesh University Act. This contention is without any foundation. The difficulty naturally arose in the way of the Government because Ordinance could not be issued in time. The admissions to affiliated colleges were to be made. As such, to remove the difficulty, the said notification was issued. It is significant that in this very notification, exceptions were made where the State Government could direct otherwise than what has been provided in the Rules and Regulations of the Panjab University in the matter of admission and qualifications for admission to affiliated colleges. The 2% deduction rule would be covered under such an exception. As I have stated before, this rule was an additional condition that was prescribed in para 8 of the ''prospectus''. Every candidate seeking admission was subject to this additional condition and no case of discrimination against any one can be made out. It is, therefore, difficult to hold that the said rule is arbitrary or discriminatory or even against the principle of natural justice.

It is then contended by the learned Counsel that the letter of the Director-General of Health Services, dated 31st March, 1967, reproduced above, did not prescribe for such a rule for admission. The learned Counsel founded his argument by saying that the 2% deduction rule, according to instructions, only applied to nomination of candidates against the seats reserved in various medical colleges in India for Government of India''s nominees. That being the position, the said rule cannot be extended to the case of admission to a medical college. I do not think, any distinction can be drawn on this ground. The 2% deduction rule was provided as one of the criteria for admission on the ground of merit and the Central Government followed this rule in order to have the best qualified candidates. If the Government adopted this rule and applied it to admission to this Medical College, I do not think any wrong has been committed by it.

It may then be considered that the impugned 2% deduction rule has a statutory sanction, with reference to the notification of the Government dated 29th August, 1970. Even otherwise, where no rule or statute exists, the Government is not prohibited from giving administrative instructions. The only legitimate handicap that can be placed in the way of the Government is, that such administrative instructions should not prejudice the rights of others and if such a prejudice results, the instructions are required to have a statutory sanction. Apart from this, the administrative instructions should not obviously run counter to already existing statutory rules or to any provision of the Constitution. In the instant case, the administrative instruction of 2% deduction of marks cannot be stated to run counter to any existing rule or regulation, nor can it be stated to have prejudiced the case of any candidate. Similarly, there is no violation of any provision of the Constitution. There is no bar for making admission under State''s executive power without framing of statutory rules (see AIR 1966 Supreme Court 1942-- B.N. Nagarajan v. State of Mysore). In Satwant Singh Sawhney Vs. D. Ramarathnam, Assistant Passport Officer, Government of India, New Delhi and Others, the doctrine of equality before law was propounded by the Supreme Court. One of the aspects of rule of law is that every executive action, if it is to operate to the prejudice of any person, must be supported by some legislative authority. Secondly, such a law would be void, if it discriminates or enables an authority to discriminate between the persons without just classification. What a legislature could not do, the executive could not obviously do. In view of the facts of that case, respectfully, the Supreme Court held that the executive instruction was not sustainable. However, in the facts of the present case, it cannot be held that the executive action or instruction operates to the prejudice of any person or it discriminates or enables an authority to discriminate between persons without just classification. In Sant Ram Sharma Vs. State of Rajasthan and Another, their Lordships were considering a case of promotion to selection grade post on the basis of ranking in gradation list, and observed that it cannot be said that till statutory rules governing promotion to selection grade posts are framed, Government cannot issue administrative instructions regarding principles to be followed. If cases of all eligible candidates are considered before appointment to such posts, no violation of Articles 14 and 16 occurs. Similarly in the instant case, administrative instructiors could be issued and 2% deduction rule was such an administrative instruction, at any rate. There has been no violation of Articles 14 and 16 of the Constitution. The classification in respect of candidates having passed in first attempt or second attempt is based on intelligible differentia and the distinction made between the two groups was not violative of Article 14 of the Constitution. This is based on a well recognised principle (see AIR 1970 Supreme Court 35--Kumari Chitra Ghosh v. Union of India).

It was then urged, rather strenuously, by the learned Counsel that the Petitioner cannot be stated to have passed the qualifying examination in second attempt. This argument too is devoid of any merit. As evident from para 8, no provision was made for the contingency of any student falling sick during the previous examination. If any student fails to take complete examination due to sickness, as the rule provides, he would be deemed to have appeared in part of the examination and that would be a failure attempt. The logical inference is that the examination of the subsequent year would be a second attempt in his case and the 2% deduction rule shall apply. In this connection, the learned Counsel atempted to utilise what he called "beyond control rule" and stated that the Petitioner had fallen sick and it was beyond his control to appear in the part of the examination. Be it as it may, para 8 is clear on the point. Even if it was beyond the control of the Petitioner to appear in part of the examination, nonetheless he appeared only in part of qualifying examination and, according to para 8, that will be treated as a failure attempt. It is then pointed out that odinarily after compartment in one subject, the candidate is allowed to appear in supplementary examination. Thus the Petitioner himself could appear in supplementary examination and if he did not appear in such examination and chose to appear in complete examination of subsequent year, he should not be treated to have passed the qualifying examination in second attempt. This reasoning also cannot be sustained. The Petitioner could appear in the supplementary examination and he would have been declared passed and in that contingency his total percentage of marks for that attempt would have been taken into considration. It is the Petitioner who chose to appear in the second attempt and therefore, the 2% deduction rule was applied in his case.

The learned Counsel rather feebly contended next, that the prospectus as well as the Selection Board could not be stated to have been duly prescribed or appointed. As evident from the letter of the Under Secretary (Health) dated 30th May, 1970, the Government had approved the ''prospectus'' of the Medical College for the year 1970-71. Therefore, the rules contained in the prospectus were, in fact, rules made by the Government and these rules, obviously, also related to admission to the Medical College. Similarly, the Selection Board was also appointed by the Government which is clear from the office order dated 15th July, 1970, reproduced above. The Respondents 2 to 5 were nominated as Members of the Selection Board. In the Himachal Pradesh University Act, there is a provision for constitution of such boards and authorities and this Board constituted by the Government certainly derived authority from the Act. Besides this, a selection board was a sine qua non before admissions could be made. I do not think the Government committed any mistake in constituting the Selection Board which consisted of qualified doctors who were the best persons to judge the merit of any candidate. Therefore, the ''prospectus'' was duly prescribed and the Selection Board was properly constituted. The rules contained in the prospectus were binding upon candidates. Similarly the decision of the Selection Board that was approved by the Government, was final and no body could question it.

It was also contended by the Petitioner that the lists of selected candidates were not properly displayed on the notice board. This is also an incorrect assertion. The lists were duly displayed and the last list that was displayed was dated 29th September, 1970. It is obviously correct that the Himachal Pradesh University Act, 1970 had come into force by this date and the notification dated 29th August, 1970, which applied the Rules and Regulations of the Panjab University, was also in force on that date. As I have stated before, these Rules and Regulations coupled with the said notification as well as the provisions of the Himachal Pradesh University Act, 1970, lent statutory support to the 2% deduction rule contained in para 8 of the ''prospectus''. An intelligible differentia has been maintained while taking 2% deduction rule and the said differentia having a rational relation to the object sought to be achieved by the University, cannot be struck down as ultra vires to any provision of the Constitution.

In this view of the matter, the Petitioner has not made out any case in his favour. The petition is, therefore, dismissed with costs to the Respondents 1 to 5. Counsel fee to be assessed at Rs. 100/-.