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"As the order empowering them to award 75 marks as interview marks has so far remained secret in that it has not been made available, this Hon'ble Court may be pleased to send for the same, as the order falls to be quashed."

This averment assumes that such an order was made. In the counter-affidavit filed by Dr. Dharmaraj, Dean, Medical College, and Chairman of the selection committee for admission to Medical Colleges, it is stated that the Govern- ment by its letter directed that the said selection committee shall interview candidates and allot marks the maximum of which shall be 25 per cent of the maximum marks for the optional subjects and laid down the criteria for allotting marks in the interview. In the paper-book as typed the description of the letter is omitted. But the learned; Attorney-General stated that in the original the description is given and that is, PLM 531 MNC 63 dated 12th July, 1963. In the counter-affidavit filed by B. R. Verma, Deputy Secretary to -the Government of Mysore, Education Depart- ment, Bangalore, after referring to Annexure IV, it is stated that a similar letter was sent by the Government to the Selection Committee for admission to Medical Colleges. It does not appear from the judgment of the High Court that learned counsel for the appellants denied the existence of such a communication in respect of Medical Colleges, but Proceeded with his argument on the basis that a communi- cation similar to Annexure IV issued in connection with admissions to Engineering Colleges existed in the case of Medical Colleges also. But before us the learned counsel for the appellants heavily relied upon the fact that the said order was not filed in the court and was not willing to accept the assurance given by the Attorney-General on instructions that such an order existed. In the circumstances we directed the Attorney-General to file the said order. A copy of the letter written by the Government has since be-en filed and it clearly shows that the relevant instructions were issued in, respect of admission to Medical Colleges also. We, therefore, hold that the Government sent a letter similar in terms. to annexure IV to the selection committee for admission to, Medical Colleges. The next contention advanced is that Annexure IV was invalid as it did not conform to the requirements of Art. 166 of the Constitution. As the argument turns upon the for= of the said annexure it will be convenient to read the material part thereof.

MUDHOLKAR I.-The appellants in these appeals had challenged before the High Court of Mysore the validity of the mode of selection of candidates for admission to the Medical Colleges in that State by preferring petitions before the High Court under Art. 226 of the Constitution. They pointed out in their petitions that the selection committee, instead of selecting persons for admission on the basis of merit, chose to interview the candidates and made the ultimate selection by adding marks upto 75 to the marks actually secured by the candidate at the Pre-University Course examination (herein referred to as P.U.C. Examination) on the basis of the interview. Their contentions are that in the absence of any Government order there was no basis upon which marks at the interview could be added to the marks secured in the P.U.C. examination, that the so-called order on which reliance was placed on behalf of the State is not a Government order at all as the document produced does not comply with the requirements of Art. 166 of the Constitution, that no criteria were laid down for allotting marks TO the candidates at the interview, that this was a violation of Art. 14 of the Constitution, that the Govern-
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This is nothing more than a communication emanating from a secretary to the Government of Mysore to the Chairman, and addressed to the Selection Committee and Dean, Medical College, Mysore. It is thus not an order of the kind contemplated by Art. 166 of the Constitution. That Article lays down that all executive actions of the Government of a State shall be expressed to be taken in the name of the Governor and that the orders made and executed in the name of the Governor shall be authenticated in such manner as may be specified in the rules made by the Governor. It further provides that where an order is authenticated in the manner prescribed in the rules made by the Governor, its validity shall not be called in question on the ground that it is not an order made by the Governor. The essence of Art. 166, however, is that executive action of the Government of a State shall be expressed to be taken in the name of the Governor. The document placed before us does not show that the action, to wit, prescribing an interview, allotting marks for it and laying down the criteria to be observed by the Selection Committee in allotting marks even purports to emanate from the Governor. All that the Secretary on whose behalf some Under Secretary has signed, says is that he is "directed to state" that the Government has taken a certain decision. This document thus is not that decision. What that decision is, how it is worded, when it was taken and whether it is expressed in the name of the Governor, we do not know. The cases in which it has been held by this Court that the provisions of Art. 166(2) are directory and not mandatory are of no help because here what we are concerned with is about the actual existence of an order made by the Governor. No doubt, where there is merely non-compliance with the provisions of Art. 166(1) or of the rules framed by the Governor in the matter of authentication of an order, evidence aliunde could be led to establish that in fact an order was made by the Governor. This clearly, does not mean that the existence of a Government order need not be established. On the contrary these decisions accept the position that the making of a Government Order is sine qua non for justifying any action which is purported to be taken by an officer of the Government on its behalf. Here the Secretary has said a certain procedure. was to be followed by the Selection Committee. He has himself no power to order that to be done de hors an order of the Government. It is for this reason that he has made a refer- ence to such an order. But that order is not before us. It was said by the learned Attorney-General that the existence of the order was not denied by the appellants. But that is not correct. Right from the beginning they have been saying that there was no "Government Order" in so far as admission to the Medical Colleges was concerned. What was relied on behalf of the State was the letter addressed to the Selection Committee concerned with the applications of persons for admission to Engineering Colleges. But since both the appellants were applicants for admission to a Medi- cal College it was not necessary for them to say further that what was relied on was not a Government Order--even in regard to Engineering Colleges. In reply to the appellants' averment reliance was placed upon an affidavit by Dr. Dharamraj in which reference is made to the very com- munication which I have reproduced earlier as being the "Govemor's Order". If that is what is claimed to be the Govemor's Order, then the State must fail on the short ground that it is not expressed to be made in the name of the Governor and is thus prime facie not the Governors Order. In Bachittar Singh v. The State of Punjab(1) one of the questions which arose for consideration was whether what a Minister wrote on the file of a case and initialled amounted to an Order of the Governor within the meaning of Art. 166. This Court negatived the contention on the ground that since what he had said there was not expressed in the name of the Governor, it cannot be regarded as the Govemor's Order.' It is true that in that case there was no communication of the Minister's so-called order to the party in whose favour it was made but mention was made of this fact in the judgment only to emphasise that what was said in the note of the Minister had not attained any finality. The view taken in Bachittar Singh's(1) case does not run counter to any decisions of this court; but on the other hand is supported by that taken in the State of Punjab v. Sodhi Sukhdev Singh(2). The appellant's s first contention must succeed and it must be held that the addition of (1)[1962] Supp. 3 S.C.R. 713.
Mahajan J., (as he then was) expressed no opinion upon this point, which was the second point raised in the case, as according to him, the detention was invalid because the Government had at the time of confirming the order omitted to specify the period during which the detention should con- tinue.
It will thus be clear that all the teamed Judges who have dealt with, the provisions of Art. 166 of the Constitution have definitely held that where the existence of a Government Order is itself challenged by a person who is affected by it the burden is upon the Government to establish that an order was in fact made by the Governor in the manner provided for in the rules of business framed by the Governor under cl. (3) of Art. 166. Even my learned brother does not say that in a case like the present the existence of the Governor's order is not required to be established by the State. But according to him here the petitioners have not in fact denied the existence of the Governor's Order. In para 20 of the writ petition of Chitralekha she has definitely averred: "Even the Government Order enabling them to award 75 marks is not made available"; and again in para 22 she stated: "As the order, empowering them to award 75 marks as interview marks has so far remained secret in that is has not been made available, this Hon'ble Court may be pleased to send for the same, as the order falls to be quashed." In reply to these averments a counter-affidavit was filed by Dr. J. J. Dharmaraj, Dean, Medical College and Chairman of the Selection Committee for admission to Medical Colleges. In para 4 thereof he has stated as follows: