Ajay Hasia Vs. Khalid Mujib Sehravardi
& Ors [1980] INSC 219 (13 November 1980)
BHAGWATI, P.N.
BHAGWATI, P.N.
CHANDRACHUD, Y.V. ((CJ) KRISHNAIYER, V.R.
FAZALALI, SYED MURTAZA KOSHAL, A.D.
CITATION: 1981 AIR 487 1981 SCR (2) 79 1981
SCC (1) 722
CITATOR INFO:
R 1981 SC1009 (11,12) D 1981 SC1771 (3,6,9) F
1983 SC 130 (14) R 1983 SC 580 (9) F 1984 SC 363 (20) F 1984 SC 541 (8,13,14) F
1984 SC 873 (7,9,11) D 1984 SC1056 (7) RF 1984 SC1361 (19) F 1985 SC 364 (8) R
1985 SC1416 (94) R 1986 SC 596 (2) RF 1986 SC1370 (101) R 1986 SC1571
(59,69,105) E&D 1987 SC 454 (22,25) RF 1987 SC1086 (17,26) APL 1988 SC 469
(9,10,11,12) R 1988 SC1369 (11) R 1988 SC1451 (8) APL 1989 SC 88 (7) RF 1989 SC
341 (14) R 1989 SC 903 (32) F 1989 SC1642 (25) E 1989 SC1977 (7) APL 1990 SC 334
(104) R 1990 SC1031 (12) RF 1990 SC1277 (46) R 1990 SC1402 (29) RF 1991 SC 101
(32) RF 1992 SC 76 (2,8) F 1992 SC1858 (19)
ACT:
Admission to Engineering College-Jammu &
Kashmir Regional Engineering College, Srinagar, registered as a society under
the Jammu & Kashmir Registration of Societies Act, 1898-Whether a
"State" under Article 12 of the Constitution and amenable to writ
jurisdiction.
Viva voce test-Interview of each of the
candidates lasting only two or three minutes asking formal questions relating
to the candidates parentage and residence and without any relevance to the
subject for which marks were allocated, whether arbitrary-Allocation of 1/3 of
the total marks required for the qualifying examination for the viva
voce-Whether bad, unreasonable and arbitrary-Whether prescribing different
admission procedures for candidates belonging to the State of Jammu &
Kashmir and candidates belonging to other State is violative of the Equality
Clause under Article 14.
HEADNOTE:
Dismissing the writ petitions, the Court
HELD : (1). Having regard to the Memorandum
of Association and the Rules of the Society, the respondent college is a State
within the meaning of Article 12. The composition of the Society is dominated
by the representatives appointed by the Central Government and the Governments
of Jammu & Kashmir, Punjab, Rajasthan and Uttar Pradesh with the approval
of the Central Government. The monies required for running the college are
provided entirely by the Central Government and the Government of Jammu &
Kashmir and even if any other monies are to be received by the Society, it can
be done only with the approval of the State and the Central Governments. The
Rules to be made by the Society are also required to have the prior approval of
the State and the Central Governments and the accounts of the Society have also
to be submitted to both the Governments for their scrutiny and satisfaction.
The Society is also to comply with all such
directions as may be issued by the State Government with the approval of the
Central Government in respect of any matters dealt with in the report of the
Reviewing Committee. The control of the State and the Central Governments is
indeed so deep and pervasive that no immovable property of the Society can be
disposed of in any manner without the approval of both the Governments. The
State and the Central Governments have even the power to appoint any other
person or persons to be members of the Society and any member of the Society
other than a member representing the State or the Central Government can be
removed from the membership of the Society by the State Government with the
approval of the Central Government. The Board of Governors, which is in-charge
of general superintendence, direction and control of the affairs of the Society
and of its income and property is also largely controlled by nominees of the
State and the Central Governments. The State Government and by reason of the
provision for approval, the Central Government also thus have full control of
the work- 80 ing of the Society and therefore, the Society is merely a
projection of the State and the Central Governments. The voice is that of the
State and the Central Governments. The Society is an instrumentality or the
agency of the State and the Central Governments and it is an
"authority" within the meaning of Article 12. If the Society is, an
"authority" and, therefore, the "State" within the meaning
of Article 12, it must follow that it is subject to the constitutional
obligation under Article 14. [99F-H, 100 K-F] (2) The expression "other
authorities", in Article 12 must be given an interpretation where
constitutional fundamentals vital to the maintenance of human rights are at
stake, functional realism and not facial cosmetics must be the diagnostic tool,
for constitutional law must seek the substance and not the form. The Government
may act through the instrumentality or agency of juridical persons to carry out
its functions, since, with the advent of the welfare State its new task have
increased manifold. [90B-D] It is, undoubtedly, true that the corporation is a
distinct juristic entity with a corporate structure of its own and it carries
on its functions on business principles with a certain amount of autonomy which
is necessary as well as useful from the point of view of effective business
management, but behind the formal ownership which is cast in the corporate
mould, the reality is very much the deeply pervasive presence of the
Government. It is really the Government which acts through the instrumentality
or agency of the corporation and the juristic veil of corporate personality
worn for the purpose of convenience of management and administration cannot be
allowed to obliterate the true nature of the reality behind which is the
Government. It is clear that if a corporation is an instrumentality or agency
of the Government, it must be subject to the same limitations in the field of
constitutional law as the Government itself, though in the eye of the law it
would be a distinct and independent legal entity. If the Government acting
through its officers is subject to certain constitutional limitations, it must
follow a fortiorari that the Government acting through the instrumentality or
agency of a corporation should equally be subject to the same limitations. If
such a corporation were to be free from the basic obligation to obey the
Fundamental Rights, it would lead to considerable erosion of the efficiency of
the Fundamental Rights, for in that event the Government would be enabled to
override the Fundamental Rights by adopting the stratagem of carrying out its
functions through the instrumentality or agency of a corporation, while
retaining control over it. The Fundamental Rights would then be reduced to
little more than an idle dream or a promise of unreality. [91B-F] The Courts
should be anxious to enlarge the scope and width of the Fundamental Rights by
bringing within their sweep every authority which is an instrumentality or
agency of the Government or through the corporate personality of which the Government
is acting, so as to subject the Government in all its myriad activities,
whether through natural persons or through corporate entities, to the basic
obligation of the Fundamental Rights. The constitutional philosophy of a
democratic socialist republic requires the Government to under take a multitude
of socioeconomic operations and the Government, having regard to the practical
advantages of functioning through the legal device of a corporation, embarks on
myriad commercial and economic activities by resorting to the instrumentality
or agency of a corporation, but this contrivance of carrying on such activities
through a corporation cannot exonerate the Government from implicit obedience
to the Fundamental Rights. To use the 81 corporate methodology is not to
liberate the Government from its basic obligation to respect the Fundamental
Rights and not to override them. The mantle of a corporation may be adopted in
order to free the Government from the inevitable constraints of red-tapism and
slow motion but by doing so, the Government cannot be allowed to play truant
with the basic human rights, otherwise it would be the easiest thing for the
government to assign to a plurality of corporations almost every State business
such as Post and Telegraph, TV, Radio, Rail, Road and Telephones-in short every
economic activity-and thereby cheat the people of India out of the Fundamental
Rights guaranteed to them. That would be a mockery of the Constitution and
nothing short of treachery and breach of faith with the people of India,
because though apparently the corporation will be carrying out these functions,
it will in truth and reality be the Government which will be controlling the
corporation and carrying out these functions through the instrumentality or
agency of the corporation. Courts cannot by a process of judicial construction
allow the Fundamental Rights to be rendered futile and meaningless and there by
wipe out Chapter III from the Constitution. That would be contrary to the
constitutional faith of the post-Menaka Gandhi era. It is the Fundamental
Rights which along with the Directive Principles constitute the life force of
the Constitution and they must be quickened into effective action by meaningful
and purposive interpretation. If a corporation is found to be a mere agency or
surrogate of the Government, "in fact owned by the Government, in truth
controlled by the government and in effect an incarnation of the
government," the court must not allow the enforcement of Fundamental
Rights to be frustrated by taking the view that it is not the government and,
therefore, not subject to the constitutional limitations. Therefore, where a
corporation is an instrumentality or agency of the Government, it is an
authority within the meaning of Article 12 and, hence, subject to the same
basic obligation to obey the Fundamental Rights as the government. [91G-H,
92A-G] R. D. Shetty v. The International Airport Authority of India & Ors.,
[1979] 1 S.C.R. 1042 and U.P. Warehousing Corporation v. Vijay Narain, [1980] 3
S.C.C. 459, followed.
(3) The test for determining as to when a
corporation can be said to be an instrumentality or agency of Government may be
culled out from the judgment in the International Airport Authority's case.
They are not conclusive or clinching, but they are merely indicative indicia
which have to be used with care and caution, because while stressing the
necessity of a wide meaning to be placed on the expression "other
authorities", it must be realised that it should not be stretched so far
as to bring in every autonomous body which has some nexus with the Government
with the sweep of the expression. A wide enlargement of the meaning must be
tempered by a wise limitation. The relevant tests gathered from the decision in
the International Airport Authority's case may be summarized as: (i) "One
thing is clear that if the entire share capital of the corporation is held by
Government it would go a long way towards indicating that the Corporation is an
instrumentality or agency of Government. (ii) 'Where the financial assistance
of the State is so much as to meet almost entire expenditure of the
corporation, it would afford some indication of the corporation being
impregnated with governmental character.' (iii) 'It may also be a relevant
factor...... whether the corporation enjoys monopoly status which is the State
conferred or State protected.' (iv) 'Existence of 'deep and pervasive State
control may afford an indication that the Corporation is a state 82 agencies or
instrumentality.' (v) 'If the functions of the corporation of public importance
and closely related to governmental functions, it would be a relevant factor in
classifying the corporation an instrumentality or agency of Government.' (vi)
'Specifically, if a department of Government is transferred to a corporation,
it would be a strong factor supportive of this inference" of the
corporation being an instrumentality or agency of Government."[96F-H,
97A-D] It is immaterial for this purpose whether the corporation is created by
a statute or under a statute. The test is whether it is an instrumentality or
agency of the Government and not as to how it is created. The enquiry has to be
not as to how the juristic person is born but why it has been brought into
existence. The corporation may be a statutory corporation created by a statute
or it may be a Government company or a company formed under the Companies Act,
1956 or it may be a society registered under the Societies Registration Act,
1860 or any other similar statute. Whatever be its genetical origin, it would
be an "authority" within the meaning of Article 12 if it is an
instrumentality or agency of the Government and that would have to be decided
on a proper assessment of the facts in the light of the relevant factors. The
concept of instrumentality or agency of the Government is not limited to a
corporation created by a statute but is equally applicable to a company or
society and in a given case it would have to be decided, on a consideration of
the relevant factors, whether the company or society is an instrumentality or
agency of the Government so as to come within the meaning of the expression
"authority" in Article
12. [97F-H, 98A-B] (4) Merely because a
juristic entity may be an "authority" and, therefore,
"State" within the meaning of Article 12, it may not be elevated to
the position of "State" for the purpose of Articles 309, 310 and 311
which find a place in Part XIV. The definition of "State" in Article
12 which includes an "authority" within the territory of India or
under the control of the Government of India is limited in its application only
to Part III and by virtue of Article 36, to Part IV and it does not extend to
the other provisions of the Constitution and, hence, a juristic entity which
may be "State" for the purpose of Parts III and IV would not be so
for the purpose of Part XIV or any other provision of the Constitution. [98B-D]
S. L. Aggarwal v. Hindustan Steel Ltd., [1970] 3 S.C.R.Sabhajit Tewary v. Union
of India & Ors., [1975] 3, S.C.R. 616 and Sukhdev Singh v. Bhagat Ram,
[1975] 3 S.C.R.
explained and distinguished.
(5) Article 14 must not be identified with
the doctrine of classification. What Article 14 strikes at is arbitrariness
because any action that is arbitrary, must necessarily involve negation of
equality. The doctrine of classification which is evolved by the courts is not
para- phrase of Article 14 nor is it the objective and end of that Article. It
is merely a judicial formula for determining whether the legislative or
executive action in question is arbitrary and therefore constituting denial of
equality. If the classification is not reasonable and does not satisfy the two
conditions, namely, (1) that the classification is founded on an intelligible
differentia and (2) that differentia has a rational relation to the object
sought to be achieved by the impugned legislative or executive action, the
impugned legislative or executive action, would plainly be arbitrary and the
guarantee of equality under Article 14 would be breached. Wherever, therefore,
there is arbitrariness in State action whether it be the 83 legislature or of
the executive or of an "authority" under Article 12, Article 14
immediately springs into action and strikes down such State action. In fact,
the concept of reasonableness and non-arbitrariness pervades the entire constitutional
scheme and is a golden thread which runs through the whole of the fabric of the
Constitution. [100G, 102D-F] E.P. Royappa v. State of Tamil Nadu, [1974] 2
S.C.R.
Maneka Gandhi v. Union of India, [1978] 2
S.R. 621 and R. D. Shetty v. The International Airport, Authority of India,
& Ors., [1979] 1 S.C.R. 1042, applied.
(6) The procedure adopted by the respondent
Society cannot be regard as arbitrary merely because it refused to take into
account the marks obtained by the candidates at the qualifying examination but
chose to regulate the admissions by relying on the entrance test. The entrance
test facilitates the assessment of the comparative talent of the candidates by
application of a uniform standard and is always preferable to evaluation of comparative
merit on the basis of marks obtained at the qualifying examination, when the
qualifying examination is held by two or more different authorities, because
lack of uniformity is bound to creep into the assessment of candidates by
different authorities with different modes of examination. [103A-B, D-F] (7)
The oral interview test is undoubtedly not a very satisfactory test for
assessing and evaluating the capacity and calibre of candidates, but in the
absence of any better test for measuring personal characteristics and traits,
the oral interview test must, at the present stage, be regarded as not
irrational or irrelevant though it is subjective and based on first impression,
its result is influenced by many uncertain factors and it is capable of abuse.
In the matter of admission to college or even in the matter of public
employment, the oral interview test as presently held should not be relied upon
as an exclusive test, but it may be resorted to only as an additional or
supplementary test and, moreover, great care must be taken to see that persons
who are appointed to conduct the oral interview test are men of high integrity,
calibre and qualification. [106C-E] R.Chitra Lakha and Others v. State of
Mysore and Others, [1964] 6 S.C.R. 368, followed.
(8) Having regard to the drawbacks and
deficiencies in the oral interview test and the conditions prevailing in the
country, particularly when there is deterioration in moral values and
corruption and nepotism are very much on the increase, allocation of a high
percentage of marks for the oral interview as compared to the marks allocated
for the written test, is not free from the vice of arbitrariness.
The allocation of as high a percentage as 33
1/3 of the total marks for oral interview suffers from the vice of
arbitrariness. [107A-D] The court, however, to avoid immense hardship being
caused to those students in whose case the validity of the selection cannot
otherwise be questioned and who have nearly completed three semesters and
taking into consideration the fact that even if the petitioners are ultimately
found to be deserving of selection on the application of the proper test, it
would not be possible to restore them to the position as if they were admitted
for the academic year 1979-80, which has run out long since declined to set
aside the selection made. The Court was, however, of the view that under the
existing circumstances.
84 allocation of more than 15% of the total
marks for the oral interview would be arbitrary and unreasonable. [107G-H,
108A-F] A. Peeriakaruppan v. State of Tamil Nadu, [1971] 2 S.C.R. 430; Miss
Nishi Meghu v. State of Jammu & Kashmir & Ors., [1980] 3 S.C.R. p.
1253, applied.
(9) There can be no doubt that if the
interview did not last for more than two or three minutes on an average and the
questions asked had no bearing on the factors required to be taken into account
the oral interview test would be vitiated, because it would be impossible in
such an interview to assess the merit of a candidate with reference to these
factors. Here the absence of proper affidavit by the members of the committee
to the contrary leads to the only conclusion that the selection made on the
basis of such test must be held to be arbitrary. However, if the marks
allocated for the oral interview do not exceed 15% of the total marks and the
candidates are properly interviewed and relevant questions are asked with a
view to assessing their suitability with reference to the factors required to
be taken into consideration, the oral interview test would satisfy the
criterion of reasonableness and non- arbitrariness. Further it would be
desirable if the interview of the candidates is tape-recorded, for in that
event there will be contemporaneous evidence to show what were the questions
asked to the candidates by the interviewing committee and what were the answers
given and that will eliminate a lot of unnecessary controversy besides acting
as a check on the possible arbitrariness of the interviewing committee.
[109A-B, D-E, F-H]
ORIGINAL JURISDICTION: Writ Petition Nos.
1304, 1262, 1119, 1118, 1574-75, 1373-74, 1244-45, 1230, 1494-97, 1566- 67,
1143, 1440, 1586, 1420-23, 1441-43, 1389, 1144, 1461, 1437-39, 1431, 1268,
1145, 1263 and 1331 of 1979.
(Under Article 32 of the Constitution) Anil
Dev Singh, Lalit Kumar Gupta, Subhash Sharma, C.P. Pandey and S. K. Sabharwal
for the Petitioners in W.PS.1389, 1437-39, 1262, 1497, 1586, 1230 and 1263 of
1979.
Y. S. Chitale, P. N. Duda, V. K. Pandita, R.
Satish and E. C. Agarwala for the Petitioners in W.P. Nos. 1241-43, 1495-96,
1566-67, 1423, 1143-44,1118-19,1494, 1145 and 1331 of 1979.S. K. Bisiaria for
the Petitioner in W.P. 1461/79.
Rishi Kesh and B. Datta for the Petitioner in
W.Ps.1373-74, 1304 and 1431/79.
Y. S. Chitale, D. N. Tiku, E. C. Agarwala, M.
Mudgal, Ashok Kaul and Vineet Kumar for the Petitioners in W.Ps.1244-45,
1420-22 and 1440/79.
S.S. Khanduja for the Petitioners in W.Ps.
1268, 1574- 75/79.
S. N. Kacker and Altaf Ahmed for the
appearing Respondents.
85 The Judgment of the Court was delivered by
BHAGWATI, J. These writ petitions under Article 32 of the Constitution
challenge the validity of the admissions made to the Regional Engineering
College, Srinagar for the academic year 1979-80.
The Regional Engineering College, Srinagar
(hereinafter referred to as the College) is one of the fifteen Engineering
Colleges in the country sponsored by the Government of India. The College is
established and its administration and management are carried on by a Society
registered under the Jammu and Kashmir Registration of Societies Act, 1898. The
Memorandum of Association of the Society in clause 3 sets out the objects for
which the Society is incorporated and they include amongst other things
establishment of the college with a view to providing instruction and research
in such branches of engineering and technology as the college may think fit and
for the advancement of learning and knowledge in such branches. Vide sub-clause
(i). The Society is empowered by clause 3 sub- clause (ii) of the Memorandum of
Association to make rules for the conduct of the affairs of the Society and to
add to, amend, vary or rescind them from time to time with the approval of the
Government of Jammu and Kashmir State (hereinafter referred to as the State
Government) and the Central Government. Clause 3 sub-clause (iii) of the
Memorandum of Association confers power on the Society to acquire and hold
property in the name of the State Government. Sub-clause (v) of clause 3 of the
Memorandum of Association contemplates that monies for running the college
would be provided by the State and Central Governments and sub-clause (vi)
requires the Society to deposit all monies credited to its fund in such banks
or to invest them in such manner as the Society may, with the approval of the
State Government decide. The accounts of the Society as certified by a duly
appointed auditor are mandatorily required by sub- clause (ix) of clause 3 of
the Memorandum of Association to be forwarded annually to the State and Central
Governments.
Clause 6 of the Memorandum of Association
empowers the State Government to appoint one or more persons to review the
working and progress of the Society, or the college and to hold inquiries into
the affairs thereof and to make a report and on receipt of any such report, the
State Government has power, with the approval of the Central Government, to
take such action and issue such directions as it may consider necessary in
respect of any of the matters dealt with in the report and the Society or the
College, as the case may be, is bound to comply with such directions. There is
a provision made in clause 7 of the Memorandum of Association that in case the
Society or the college is not functioning properly, the State Government will
have the power to take over the 86 administration and assets of the college
with the prior approval of the Central Government. The founding members of the
Society are enumerated in clause 9 of the Memorandum of Association and they
are the Chairman to be appointed by the State Government with the approval of
the Central Government, two representatives of the State Government, one
representative of the Central Government, two representatives of the All India
Council for Technical Education to be nominated by the northern Regional
Committee, one representative of the University of Jammu and Kashmir, one
non-official representative of each of the Punjab, Rajasthan, U.P. and Jammu
and Kashmir States to be appointed by the respective Governments in
consultation with the Central Government and the Principal who shall also be
the ex-officio Secretary.
The Rules of the Society are also important
as they throw light on the nature of the Society. Rule 3 clause (i) reiterates
the composition of the Society as set out in clause 9 of the Memorandum of
Association and clause (ii) of that Rule provides that the State and the
Central Governments may by mutual consultation at any time appoint any other
person or persons to be member or members of the Society. Rule 6 vests the
general superintendence, direction and control of the affairs and its income
and property in the governing body of the Society which is called the Board of
Governors. Rule 7 lays down the constitution of the Board of Governors by
providing that it shall consist of the Chief Minister of the State Government
as Chairman and the following as members : Three nominees of the State
Government, three nominees of the Central Government, one representative of the
All India Council for Technical Education, Vice-Chancellor of the University of
Jammu and Kashmir, two industrialists/technologists in the region to be
nominated by the State Government, one nominee of the Indian Institute of
Technology in the region, one nominee of the University Grants Commission two
representatives of the Faculty of the College and the Principal of the college
as ex-officio member-Secretary. The State Government is empowered by rule 10 to
remove any member of the Society other than a member representing the State or
Central Government from the membership of the Society with the approval of the
Central Government. Clause (iv) of Rule 15 confers power on the Board to make
bye-laws for admission of students to various courses and clause (xiv) of that
Rule empowers the Board to delegate to a committee or to the Chairman such of
its powers for the conduct of its business as it may deem fit, subject to the
condition that the action taken by the committee of the Chairman shall be
reported for confirmation at the next meeting of the Board. Clause (xv) of Rule
15 provides that the Board shall 87 have power to consider and pass resolution
on the annual report, the annual accounts and other financial estimates of the
college, but the annual report and the annual accounts together with the
resolution passed thereon are required to be submitted to the State and the
Central Governments. The Society is empowered by Rule 24, clause (i) to alter,
extend or abridge any purpose or purposes for which it is established, subject
to the prior approval of the State and the Central Governments and clause (ii)
of Rule 24 provides that the Rules may be altered by a Resolution passed by a
majority of 2/3rd of the members present at the meeting of the Society, but
such alteration shall be with the approval of the State and the Central
Governments.
Pursuant to clause (iv) of Rule 15 of the
Rules, the Board of Governors laid down the procedure for admission of students
to various courses in the college by a Resolution dated 4th June, 1974. We are
not directly concerned with the admission procedure laid down by this Resolution
save and except that under this Resolution admissions to the candidates
belonging to the State of Jammu and Kashmir were to be given on the basis of
comparative merit to be determined by holding a written entrance test and a
viva voce examination and the marks allocated for the written test in the
subjects of English, Physics, Chemistry and Mathematics were 100, while for
viva voce examination, the marks allocated were 50 divided as follows: (i)
General Knowledge and Awareness-15; (ii) Broad understanding of Specific
Phenomenon-15; (iii) Extra-curricular activities-10 and (iv) General
Personality Trait-10, making up in the aggregate-50. The admissions to the
college were governed by the procedure laid down in this Resolution until the
academic year 197980, when the procedure was slightly changed and it was
decided that out of 250 seats, which were available for admission, 50% of the
seats shall be reserved for candidates belonging to the Jammu & Kashmir
State and the remaining 50% for candidates belonging to other States including
15 seats reserved for certain categories of students. So far as the seats
reserved for candidates belonging to States other than Jammu & Kashmir were
concerned, certain reservations were made for candidates belonging to Scheduled
Castes and Scheduled Tribes and sons and wards of defence personnel killed or
disabled during hostilities and it was provided that "inter se merit will
be determined on the basis of marks secured in the subjects of English,
Physics, Chemistry and Mathematics only". The provision made with regard
to seats reserved for candidates belonging to Jammu & Kashmir State was
that "apart from 2 seats reserved for the sons and daughters of the
permanent college employees, reservations shall be made in accordance with the
88 Orders of Jammu and Kashmir Government for admission to technical
institutions and the seats shall be filled up on the basis of comparative merit
as determined under the following scheme, both for seats to be filled on open
merit and for reserved seats in each category separately; (1) marks for written
test-100 and (2) marks for viva voce examination-50, marking up in the
aggregate-150. It was not mentioned expressly that the marks for the written
test shall be in the subjects of Physics, English, Chemistry and Mathematics
nor were the factors to be taken into account in the viva voce examination and
the allocation of marks for such factors indicated specifically in the
admission procedure laid down for the academic year 1979-80, but we were told
and this was not disputed on behalf of the petitioners in any of the writ
petitions, that the subjects in which the written test was held were English,
Physics, Chemistry and Mathematics and the marks at the viva voce examination
were allocated under the same four heads and in the same manner as in the case
of admissions under the procedure laid down in the Resolution dated 4th June,
1974.
In or about April 1979, the college issued a
notice inviting applications for admission to the first semester of the B.E. course
in various branches of engineering and the notice set out the above admission
procedure to be followed in granting admissions for the academic year 1979-80.
The petitioners in the writ petitions before us applied for admission to the
first semester of the B.E. course in one or the other branch of engineering and
they appeared in the written test which was held on 16th and 17th June, 1979.
The petitioners were thereafter required to appear before a Committee
consisting of three persons for viva voce test and they were interviewed by the
Committee. The case of the petitioners was that the interview of each of them
did not last for more than 2 or 3 minutes per candidate on an average and the
only questions which were asked to them were formal questions relating to their
parentage and residence and hardly any question was asked which would be
relevant to any of the four factors for which marks were allocated at the viva
voce examination. When the admissions were announced, the petitioners found
that though they had obtained very good marks in the qualifying examination,
they had not been able to secure admission to the college because the marks
awarded to them at the viva voce examination were very low and candidates who
had much less marks at the qualifying examination, had succeeded in obtaining
very high marks at the viva voce examination and there by managed to secure
admission in preference to the petitioners. The petitioners filed before us a
chart showing by way of comparison the marks obtained by the petitioners on the
one hand and some of the successful candidates on the other at the qualifying
examination, in the written test and at the viva voce exami- 89 nation. This
chart shows beyond doubt that the successful candidates whose marks are given
in the chart had obtained fairly low marks at the qualifying examination as
also in the written test, but they had been able to score over the petitioners
only on account of very high marks obtained by them at the viva voce
examination. The petitioners feeling aggrieved by this mode of selection filed
the present writ petitions challenging the validity of the admissions made to
the college on various grounds. Some of these grounds stand concluded by the
recent decision of this Court in Miss Nishi Maghu v. State of Jammu &
Kasmir & Ors. and they were therefore not pressed before us. Of the other
grounds, only one was canvassed before us and we shall examine it in some
detail.
But before we proceed to consider the merits
of this ground of challenge, we must dispose of a preliminary objection raised
on behalf of the respondents against the maintainability of the writ petition.
The respondents contended that the college is run by society which is not a
corporation created by a statute but is a society registered under the Jammu
& Kashmir Societies Registration Act, 1898 and it is therefore not an
'authority' within the meaning of Art. 12 of the Constitution and no writ
petition can be maintained against it, nor can any complaint be made that it
has acted arbitrarily in the matter of granting admissions and violated the
equality clause of the Constitution. Now it is obvious that the only ground on
which the validity of the admissions to the college can be assailed is that the
society adopted an arbitrary procedure for selecting candidates for admission
to the college and this resulted in denial of equality to the petitioners in
the matter of admission violative of Art. 14 of the Constitution. It would
appear that prima facie protection against infraction of Art. 14 is available
only against the State and complaint of arbitrariness and denial of equality
can therefore be sustained against the society only if the society can be shown
to be State for the purpose of Art. 14. Now 'State' is defined in Art. 12 to
include inter alia the Government of India and the Government of each of the
States and all local or other authorities within the territory of India or
under the control of the Government of India and the question therefore is
whether the Society can be said to be 'State' within the meaning of this
definition. Obviously the Society cannot be equated with the Government of
India or the Government of any State nor can it be said to be a local authority
and therefore, it must come within the expression "other authorities"
if it is to fall within the definition of 'State'. That immediately leads us to
a consideration of the question as to what are the "other
authorities" contemplated in the definition of 'State' in Art. 13.
90 While considering this question it is
necessary to bear in mind that an authority falling within the expression
"other authorities" is, by reason of its inclusion within the
definition of 'State' in Article 12, subject to the same constitutional
limitations as the Government and is equally bound by the basic obligation to
obey the constitutional mandate of the Fundamental Rights enshrined in Part III
of the Constitution. We must therefore give such an interpretation to the
expression "other authorities" as will not stultify the operation and
reach of the fundamental rights by enabling the Government to its obligation in
relation to the Fundamental Rights by setting up an authority to act as its
instrumentality or agency for carrying out its functions. Where constitutional
fundamentals vital to the maintenance of human rights are at stake, functional
realism and not facial cosmetics must be the diagnostic tool, for
constitutional law must seek the substance and not the form. Now it is obvious
that the Government may act through the instrumentality or agency of natural
persons or it may employ the instrumentality or agency of juridical persons to
carry out its functions. In the early days when the Government had limited
functions, it could operate effectively through natural persons constituting
its civil service and they were found adequate to discharge governmental
functions which were of traditional vintage. But as the tasks of the Government
multiplied with the advent of the welfare State, it began to be increasingly
felt that the frame work of civil service was not sufficient to handle the new
tasks which were often specialised and highly technical in character and which
called for flexibility of approach and quick decision making. The inadequacy of
the civil service to deal with these new problems came to be realised and it
became necessary to forge a new instrumentality or administrative device for
handing these new problems. It was in these circumstances and with a view to
supplying this administrative need that the corporation came into being as the
third arm of the Government and over the years it has been increasingly
utilised by the Government for setting, up and running public enterprises and
carrying out other public functions. Today with increasing assumption by the
Government of commercial ventures and economic projects, the corporation has
become an effective legal contrivance in the hands of the Government for
carrying out its activities, for it is found that this legal facility of
corporate instrument provides considerable flexibility and elasticity and
facilitates proper and efficient management with professional skills and on
business principles and it is blissfully free from "departmental rigidity,
slow motion procedure and hierarchy of officers". The Government in many
of its commercial ventures and public enterprises is resorting to more and more
frequently to this resourceful legal contrivance of a corporation because it
has many practical advantages and at the 91 same time does not involve the
slightest diminution in its ownership and control of the undertaking. In such
cases "the true owner is the State, the real operator is the State and the
effective controllorate is the State and accountability for its actions to the
community and to Parliament is of the State." It is undoubtedly true that
the corporation is a distinct juristic entity with a corporate structure of its
own and it carries on its functions on business principles with a certain
amount of autonomy which is necessary as well as useful from the point of view
of effective business management, but behind the formal ownership which is cast
in the corporate mould, the reality is very much the deeply pervasive presence
of the Government. It is really the Government which acts through the
instrumentality or agency of the corporation and the juristic veil of corporate
personality worn for the purpose of convenience of management and
administration cannot be allowed to obliterate the true nature of the reality
behind which is the Government. Now it is obvious that if a corporation is an instrumentality
or agency of the Government, it must be subject to the same limitations in the
field of constitutional law as the Government itself, though in the eye of the
law it would be a distinct and independent legal entity. If the Government
acting through its officers is subject to certain constitutional limitations,
it must follow a fortiorari that the Government acting through the
instrumentality or agency of a corporation should equally be subject to the
same limitations. If such a corporation were to be free from the basic
obligation to obey the Fundamental Rights, it would lead to considerable
erosion of the efficiency of the Fundamental Rights, for in that event the
Government would be enabled to over-ride the Fundamental Rights by adopting the
stratagem of carrying out its functions through the instrumentality or agency
of a corporation, while retaining control over it. The Fundamental Rights would
then be reduced to little more than an idle dream or a promise of unreality. It
must be remembered that the Fundamental Rights are constitutional guarantees
given to the people of India and are not merely paper hopes or fleeting
promises and so long as they find a place in the Constitution, they should not
be allowed to be emasculated in their application by a narrow and constricted
judicial interpretation. The courts should be anxious to enlarge the scope and
width of the Fundamental Rights by bringing within their sweep every authority
which is an instrumentality or agency of the Government or through the
corporate personality of which the Government is acting, so as to subject the
Government in all its myriad activities, whether through natural persons or
through corporate entities, to the basic obligation of the Fundamental Rights.
The constitutional philosophy of a democratic
socialist republic requires 92 the Government to undertake a multitude of
socioeconomic operations and the Government, having regard to the practical
advantages of functioning through the legal device of a corporation, embarks on
myriad commercial and economic activities by resorting to the instrumentality
or agency of a corporation, but this contrivance of carrying on such activities
through a corporation cannot exonerate the Government from implicit obedience
to the Fundamental Rights. To use the corporate methodology is not to liberate
the Government from its basic obligation to respect the Fundamental Rights and
not to over-ride them. The mantle of a corporation may be adopted in order to
free the Government from the inevitable constraints of red-tapism and slow
motion but by doing so, the Government cannot be allowed to play truant with
the basic human rights. Otherwise it would be the easiest thing for the
government to assign to a plurality of corporations almost every State business
such as Post and Telegraph, TV and Radio, Rail Road and Telephones-in short
every economic activity-and there by cheat the people of India out of the
Fundamental Rights guaranteed to them. That would be a mockery of the
Constitution and nothing short of treachery and breach of faith with the people
of India, because, though apparently the corporation will be carrying out these
functions, it will in truth and reality be the Government which will be
controlling the corporation and carrying out these functions through the
instrumentality or agency of the corporation. We cannot by a process of
judicial construction allow the Fundamental Rights to be rendered futile and
meaningless and thereby wipe out Chapter III from the Constitution. That would
be contrary to the constitutional faith of the post- Menaka Gandhi era. It is
the Fundamental Rights which along with the Directive Principles constitute the
life force of the Constitution and they must be quickened into effective action
by meaningful and purposive interpretation. If a corporation is found to be a
mere agency or surrogate of the Government, "in fact owned by the
Government, in truth controlled by the government and in effect an incarnation
of the government," the court must not allow the enforcement of
Fundamental Rights to be frustrated by taking the view that it is not the
government and therefore not subject to the constitutional limitations. We are
clearly of the view that where a corporation is an instrumentality or agency of
the government, it must be held to be an 'authority' within the meaning of Art.
12 and hence subject to the same basic obligation to obey the Fundamental
Rights as the government.
We may point out that this very question as
to when a corporation can be regarded as an 'authority' within the meaning of
Art. 12 arose for consideration before this Court in R. D. Shetty v. The
International 93 Airport Authority of India & Ores. There, in a unanimous
judgment of three Judges delivered by one of us (Bhagwati, J) this Court pointed
out:
"So far as India is concerned, the
genesis of the emergence of corporations as instrumentalities or agencies of
Government is to be found in the Government of India Resolution on Industrial
Policy dated 6th April, 1948 where it was stated inter alia that
"management of State enterprises will as a rule be through the medium of
public corporation under the statutory control of the Central Government who
will assume such powers as may be necessary to ensure this." It was in
pursuance of the policy envisaged in this and sub-sequent resolutions on
Industrial policy that corporations were created by Government for setting up
and management of public enterprises and carrying out other public functions.
Ordinarily these functions could have been carried out by Government
departmentally through its service personnel but the instrumentality or agency
of the corporation was resorted to in these cases having regard to the nature
of the task to be performed. The corporations acting as instrumentality or
agency of Government would obviously be subject to the same limitations in the
field of constitutional and administrative law as Government itself, though in
the eye of the law, they would be distinct and independent legal entities. If
Government acting through its officers is subject to certain constitutional and
public law limitations, it must follow a fortiori that Government acting
through instrumentality or agency of corporations should equally be subject to
the same limitations." The Court then addressed itself to the question as
to how to determine whether a corporation is acting as an instrumentality or
agency of the Government and dealing with that question, observed:
"A corporation may be created in one of
two ways. It may be either established by statute or incorporated under a law
such as the Companies Act 1956 or the Societies Registration Act 1860. Where a
Corporation is wholly controlled by Government not only in its policy making
but also in carrying out the functions entrusted to it by the law establishing
it or by the Charter of its incorporation, there can be no doubt that it would
be an instrumentality or agency of Government. But ordinarily where a
corporation 94 is established by statute, it is autonomous in its working,
subject only to a provision, often times made, that it shall be bound by any
directions that may be issued from time to time by Government in respect of
policy matters. So also a corporation incorporated under law is managed by a
board of directors or committee of management in accordance with the provisions
of the statute under which it is in corporated. When does such a corporation
become an instrumentality or agency of Government? Is the holding of the entire
share capital of the Corporation by Government enough or is it necessary that
in addition there should be a certain amount of direct control exercised by
Government and, if so what should be the nature of such control? Should the
functions which the Corporation is charged to carry out possess any particular
characteristic or feature, or is the nature of the functions immaterial? Now,
one thing is clear that if the entire share capital of the corporation is held
by Government, it would go a long way towards indicating that the corporation
is an instrumentality or agency of Government. But, as is quite often the case,
a corporation established by statute may have no shares or shareholders, in which
case it would be a relevant factor to consider whether the administration is in
the hands of a board of directors appointed by Government though this
consideration also may not be determinative, because even where the directors
are appointed by Government, they may be completely free from governmental
control in the discharge of their functions. What then are tests to determine
whether a corporation established by statute or incorporated under law is an
instrumentality or agency of Government ? It is not possible to formulate an
inclusive or exhaustive test which would adequately answer this question. There
is no cut and dried formula, which would provide the correct division of
corporations into those which are instrumentalities or agencies of Government
and those which are not." The Court then proceeded to indicate the
different tests, apart from ownership of the entire share capital:
" .... if extensive and unusual
financial assistance is given and the purpose of the Government in giving such
assistance coincides with the purpose for which the corporation is expected to
use the assistance and such purpose is of 95 public character, it may be a
relevant circumstance supporting an inference that the corporation is an
instrumentality or agency of Government..... It may therefore be possible to
say that where the financial assistance of the State is so much as to meet
almost entire expenditure of the corporation, it would afford some indication
of the corporation being impregnated with governmental character ..........But
a finding of State financial support plus an unusual degree of control over the
management and policies might lead one to characterise an operation as State
action-Vide Sukhdev v. Bhagatram [1975] 3 SCR 619 at 658. So also the existence
of deep and pervasive State control may afford an indication that the
Corporation is a State agency or instrumentality. It may also be a relevant
factor to consider whether the corporation enjoys monopoly status which is
State conferred or State protected. There can be little doubt that State
conferred or State protected monopoly status would be highly relevant in
assessing the aggregate weight of the corporation's ties to the State."
"There is also another factor which may be regarded as having a bearing on
this issue and it is whether the operation of the corporation is an important
public function. It has been held in the United States in a number of cases
that the concept of private action must yield to a conception of State action
where public functions are being performed. Vide Arthur S. Miller: "The
Constitutional Law of the Security State" (10) Stanford Law Review 620 at
664)." "It may be noted that besides the so-called traditional
functions, the modern state operates as multitude of public enterprises and
discharges a host of other public functions. If the functions of the
corporation are of public importance and closely related to governmental
functions, it would be a relevant factor in classifying the corporation as an
instrumentality or agency of Government. This is precisely what was pointed out
by Mathew, J., in Sukhdev v. Bhagatram (supra) where the learned Judge said
that "institutions engaged in matters of high public interest of
performing public functions are by virtue of the nature of the functions
performed government agencies. Activities which are too fundamental to the
society are by definition too important not to be considered government
functions." 96 The court however proceeded to point out with reference to
the last functional test:
"......... the decisions show that even
this test of public or governmental character of the function is not easy of
application and does not invariably lead to the correct inference because the
range of governmental activity is broad and varied and merely because an
activity may be such as may legitimately be carried on by Government, it does
not mean that a corporation, which is otherwise a private entity, would be an
instrumentality or agency of Government by reason of carrying on such activity.
In fact, it is difficult to distinguish between governmental functions and non-
governmental functions. Perhaps the distinction between governmental and
non-governmental functions is not valid any more in a social welfare State
where the laissez faire is an outmoded concept and Herbert Spencer's social
statics has no place. The contrast is rather between governmental activities
which are private and private activities which are governmental.
[Mathew, J. Sukhdev v. Bhagatram (supra) at
p. 652].
But the public nature of the function, if
impregnated with governmental character or "tied or entwined with
Government" or fortified by some other additional factor, may render the
corporation an instrumentality or agency of Government. Specifically, if a
department of Government is transferred to a corporation, it would be a strong
factor supportive of the inference." These observations of the court in
the International Airport Authority's case (supra) have our full approval.
The tests for determining as to when a
corporation can be said to be a instrumentality or agency of Government may now
be called out from the judgment in the International Airport Authority's case.
These tests are not conclusive or clinching, but they are merely indicative
indicia which have to be used with care and caution, because while stressing
the necessity of a wide meaning to be placed on the expression "other
authorities", it must be realised that it should not be stretched so far
as to bring in every autonomous body which has some nexus with the Government
within the sweep of the expression. A wide enlargement of the meaning must be
tempered by a wise limitation. We may summarise the relevant tests gathered
from the decision in the International Airport Authority's case as follows (1)
"One thing is clear that if the entire share capital of the corporation is
held by Government it would go a long 97 way towards indicating that the
corporation is an instrumentality or agency of Government." (2)
"Where the financial assistance of the State is so much as to meet almost
entire expenditure of the corporation, it would afford some indication of the
corporation being impregnated with governmental character." (3) "It
may also be a relevant factor.......whether the corporation enjoys monopoly
status which is the State conferred or State protected." (4)
"Existence of deep and pervasive State control may afford an indication
that the Corporation is a State agency or instrumentality." (5) "If
the functions of the corporation of public importance and closely related to governmental
functions, it would be a relevant factor in classifying the corporation as an
instrumentality or agency of Government." (6) "Specifically, if a
department of Government is transferred to a corporation, it would be a strong
factor supportive of this inference of the corporation being an instrumentality
or agency of Government." If on a consideration of these relevant factors
it is found that the corporation is an instrumentality or agency of government,
it would, as pointed out in the International Airport Authority's case, be an
'authority' and, therefore, 'State' within the meaning of the expression in
Article 12.
We find that the same view has been taken by
Chinnappa Reddy, J. in a subsequent decision of this court in the U.
P. Warehousing Corporation v. Vijay Narain
and the observations made by the learned Judge in that case strongly reinforced
the view we are taking particularly in the matrix of our constitutional system.
We may point out that it is immaterial for
this purpose whether the corporation is created by a statute or under a
statute. The test is whether it is an instrumentality or agency of the
Government and not as to how it is created.
The inquiry has to be not as to how the
juristic person is born but why it has been brought into existence. The
corporation may be a statutory corporation created by a statute or it may be a
Government Company or a company formed under the Companies Act, 1956 or it may
be a society registered under the Societies Registration Act, 1860 or any other
similar statute. Whatever be its genetical origin, it would be an
"authority" within the meaning of Article 12 if it is an
instrumentality or agency of the Government and that would 98 have to be
decided on a proper assessment of the facts in the light of the relevant
factors. The concept of instrumentality or agency of the Government is not
limited to a corporation created by a statute but is equally applicable to a
company or society and in a given case it would have to be decided, on a
consideration of the relevant factors, whether the company or society is an
instrumentality or agency of the Government so as to come within the meaning of
the expression "authority" in Article 12.
It is also necessary to add that merely
because a juristic entity may be an "authority" and therefore
"State" within the meaning of Article 12, it may not be elevated to
the position of "State" for the purpose of Articles 309, 310 and 311
which find a place in Part XIV. The definition of "State" in Article
12 which includes an "authority" within the territory of India or
under the control of the Government of India is limited in its application only
to Part III and by virtue of Article 36, to Part IV: it does not extend to the
other provisions of the Constitution and hence a juristic entity which may be
"State" for the purpose of Parts III and IV would not be so for the
purpose of Part XIV or any other provision of the Constitution. That is why the
decisions of this Court in S. L. Aggarwal v. Hindustan Steel Ltd. and other
cases involving the applicability of Article 311 have no relevance to the issue
before us.
The learned counsel appearing on behalf of
the respondents Nos. 6 to 8, however, relied strongly on the decision in
Sabhajit Tewary v. Union of India & Ors(2) and contended that this decision
laid down in no uncertain terms that a society registered under the Societies
Registration Act, 1860 can never be regarded as an "authority" within
the meaning of Article 12. This being a decision given by a Bench of five
Judges of this Court is undoubtedly binding upon us but we do not think it lays
down any such proposition as is contended on behalf of the respondents.
The question which arose in this case was as
to whether the Council of Scientific and Industrial Research which was
juridically a society registered under the Societies Registration Act, 1860 was
an "authority" within the meaning of Article 12. The test which the
Court applied for determining this question was the same as the one laid down
in the International Airport Authority's case and approved by us, namely,
whether the Council was an instrumentality or agency of the Government. The
Court implicitly assented to the proposition that if the Council were an agency
of the Government, it would undoubtedly be an "authority". But,
having regard to the various 99 features enumerated in the judgment, the Court
held that the Council was not an agency of the Government and hence could not
be regarded as an "authority". The Court did not rest its conclusion
on the ground that the Council was a society registered under the Societies
Registration Act, 1860, but proceeded to consider various other features of the
Council for arriving at the conclusion that it was not an agency of the
Government and therefore not an "authority". This would have been
totally unnecessary if the view of the Court were that a society registered
under the Societies Registration Act can never be an "authority"
within the meaning of Article 12.
The decision in Sukhdev Singh v. Bhagat Ram
(1975) 3 SCR 619 was also strongly relied upon by the learned counsel for
respondents Nos. 6 to 8 but we fail to see how this decision can assist the
respondents in repelling the reasoning in the International Airport Authority's
case or contending that a company or society formed under a statute can never
come within the meaning of the expression "authority" in Article 12.
That was a case relating to three juristic bodies, namely, the Oil and Natural
Gas Commission, the Industrial Finance Corporation and the Life Insurance
Corporation and the question was whether they were "State" under
Article 12. Each of these three juristic bodies was a corporation created by a
statute and the Court by majority held that they were "authorities"
and therefore "State" within the meaning of Article 12. The Court in
this case was not concerned with the question whether a company or society
formed under a statute can be an "authority" or not and this decision
does not therefore contain anything which might even remotely suggest that such
a company or society can never be an "authority". On the contrary,
the thrust of the logic in the decision, far from being restrictive, applies to
all juristic persons alike, irrespective whether they are created by a statute
or formed under a statute.
It is in the light of this discussion that we
must now proceed to examine whether the Society in the present case is an
"authority" falling within the definition of "State" in
Article 12. Is it an instrumentality or agency of the Government? The answer
must obviously be in the affirmative if we have regard to the Memorandum of
Association and the Rules of the Society. The composition of the Society is dominated
by the representatives appointed by the Central Government and the Governments
of Jammu & Kashmir, Punjab, Rajasthan and Uttar Pradesh with the approval
of the Central Government. The monies required for running the college are
provided entirely by the Central Government and the Government of Jammu &
Kashmir and even if any other monies are to be received by the 100 Society, it
can be done only with the approval of the State and the Central Governments.
The Rules to be made by the Society are also required to have the prior
approval of the State and the Central Governments and the accounts of the
Society have also to be submitted to both the Governments for their scrutiny
and satisfaction. The Society is also to comply with all such directions as may
be issued by the State Government with the approval of the Central Government
in respect of any matters dealt with in the report of the Reviewing Committee.
The control of the State and the Central Governments is indeed so deep and
pervasive that no immovable property of the Society can be disposed of in any
manner without the approval of both the Governments. The State and the Central
Governments have even the power to appoint any other person or persons to be
members of the Society and any member of the Society other than a member
representing the State or the Central Government can be removed from the
membership of the Society by the State Government with the approval of the
Central Government. The Board of Governors, which is in charge of general superintendence,
direction and control of the affairs of Society and of its income and property
is also largely controlled by nominees of the State and the Central
Governments. It will thus be seen that the State Government and by reason of
the provision for approval, the Central Government also, have full control of
the working of the Society and it would not be incorrect to say that the
Society is merely a projection of the State and the Central Governments and to
use the words of Ray, C.J. in Sukhdev Singh's case (supra), the voice is that
of the State and the Central Governments and the hands are also of the State
and the Central Governments. We must, therefore, hold that the Society is an
instrumentality or agency of the State and the Central Governments and it is an
'authority' within the meaning of Art. 12.
If the Society is an "authority"
and therefore "State" within the meaning of Article 12, it must
follow that it is subject to the constitutional obligation under Article 14.
The true scope and ambit of Article 14 has
been the subject matter of numerous decisions and it is not necessary to make
any detailed reference to them. It is sufficient to state that the content and
reach of Article 14 must not be confused with the doctrine of classification.
Unfortunately, in the early stages of the evolution of our constitutional law,
Article 14 came to be identified with the doctrine of classification because
the view taken was that Article forbids discrimination and there would be no
discrimination where the classification making the differentia fulfils two
conditions, namely, (i) that the classification is founded on an intelligible
differentia which distinguishes persons or things 101 that are grouped together
from others left out of the group;
and (ii) that differentia has a rational
relation to the object sought to be achieved by the impugned legislative or
executive action. It was for the first time in E.P. Royappa v. State of Tamil
Nadu that this Court laid bare a new dimension of Article 14 and pointed out that
Article has highly activist magnitude and it embodies a guarantee against
arbitrariness. This Court speaking through one of us (Bhagwati, J.) said :
"The basic principle which therefore
informs both Articles 14 and 16 is equality and inhibition against
discrimination. Now, what is the content and reach of this great equalising
principle ? It is a founding faith, to use the words of Bose, J., "a way
of life", and it must not be subjected to a narrow pedantic or
lexicographic approach. We cannot countenance any attempt to truncate its
all-embracing scope and meaning, for to do so would be to violate its activist
magnitude. Equality is a dynamic concept with many aspects and dimensions and
it cannot be "cribbled, cabined and confined" within traditional and
doctrinaire limits. From a positivistic point of view, equality is antithetic
to arbitrariness. In fact, equality and arbitrariness are sworn enemies; one
belongs to the rule of law in a republic while the other, to the whim and
caprice of an absolute monarch.
Where an act is arbitrary it is implicit in
it that it is unequal both according to political logic and constitutional law
and is therefore violative of Art.
14, and if it affects any matter relating to
public employment, it is also violative of Art. 16. Articles 14 and 16 strike
at arbitrariness in State action and ensure fairness and equality of
treatment." This vital and dynamic aspect which was till then lying latent
and submerged in the few simple but pregnant words of Article 14 was explored
and brought to light in Royappa's case and it was reaffirmed and elaborated by
this Court in Maneka Gandhi v. Union of India where this Court again speaking
through one of us (Bhagwati, J.) observed :
"Now the question immediately arises as
to what is the requirement of Article 14 : what is the content and reach of the
great equalising principle enunciated is this article ? There can be no doubt
that it is a founding faith of the 102 Constitution. It is indeed the pillar on
which rests securely the foundation of our democratic republic.
And, therefore, it must not be subjected to a
narrow, pedantic or lexicographic approach. No attempt should be made to
truncate its all-embracing scope and meaning for, to do so would be to violate
its activist magnitude. Equality is a dynamic concept with many aspects and
dimensions and it cannot be imprisoned within traditional and doctrinaire
limits...............Article 14 strikes at arbitrariness in State action and
ensures fairness and equality of treatment. The principle of reasonableness,
which legally as well as philosophically, is an essential element of equality
or non-arbitrariness pervades Article 14 like a brooding omnipresence."
This was again reiterated by this Court in International Airport Authority's
case (supra) at page 1042 of the Report.
It must therefore now be taken to be well
settled that what Article 14 strikes at is arbitrariness because any action
that is arbitrary, must necessarily involve negation of equality. The doctrine
of classification which is evolved by the courts is not para-phrase of Article
14 nor is it the objective and end of that Article. It is merely a judicial
formula for determining whether the legislative or executive action in question
is arbitrary and therefore constituting denial of equality. If the
classification is not reasonable and does not satisfy the two conditions
referred to above, the impugned legislative or executive action would plainly
be arbitrary and the guarantee of equality under Article 14 would be breached.
Wherever therefore there is arbitrariness in State action whether it be of the
legislature or of the executive or of "authority" under Article 12,
Article 14 immediately springs into action and strikes down such State action.
In fact, the concept of reasonableness and non- arbitrariness pervades the
entire constitutional scheme and is a golden thread which runs through the
whole of the fabric of the Constitution.
We may now turn to the merits of the
controversy between the parties. Though several contentions were urged in the
writ petitions, challenging the validity of the admissions made to the college,
they were not all pressed before us and the principal contention that was
advanced was that the society acted arbitrarily in the matter of granting of
admissions, first by ignoring the marks obtained by the candidates at the
qualifying examination; secondly by relying on viva voce examination as a test
for determining comparative merit of the candidates; thirdly by allocating as
many as 50 marks for the viva voce examination as against 100 marks allocated
for the written test and 103 lastly, by holding superficial interviews lasting
only 2 or 3 minutes on an average and asking questions which had no relevance
to assessment of the suitability of the candidates with reference to the four
factors required to be considered at the viva voce examination. Now so far as
the challenge on the first count is concerned, we do not think it is at all
well-founded. It is difficult to appreciate how a procedure for admission which
does not take into account the marks obtained at the qualifying examination,
but prefers to test the comparative merit of the candidates by insisting on an
entrance examination can ever be said to be arbitrary. It has been pointed out
in the counter affidavit filed by H. L. Chowdhury on behalf of the college that
there are two universities on two different dates and the examination by the
Board of Secondary Education for Jammu is also held on a different date than
the examination by the Board of Secondary Education for Kashmir and the results
of these examinations are not always declared before the admissions to the
college can be decided. The College being the only institution for education in
engineering courses in the State of Jammu & Kashmir has to cater to the
needs of both the regions and it has, therefore, found it necessary and
expedient to regulate admissions by holding an entrance test, so that the
admission process may not be held up on account of late declaration of results
of the qualifying examination in either of the two regions. The entrance test
also facilitates the assessment of the comparative talent of the candidates by
application of a uniform standard and is always preferable to evaluation of
comparative merit on the basis of marks obtained at the qualifying examination,
when the qualifying examination is held by two or more different authorities,
because lack of uniformity is bound to creep into the assessment of candidates
by different authorities with different modes of examination. We would not,
therefore, regard the procedure adopted by the society as arbitrary merely
because it refused to take into account the marks obtained by the candidates at
the qualifying examination, but chose to regulate the admissions by relying on
the entrance test.
The second ground of challenge questioned the
validity of viva voce examination as a permissible test for selection of
candidates for admission to a college. The contention of the petitioners under
this ground of challenge was that viva voce examination does not afford a
proper criterion for assessment of the suitability of the candidates for
admission and it is a highly subjective and impressionistic test where the
result is likely to be influenced by many uncertain and imponderable factors
such as predilections and prejudices of the interviewers, his attitudes and
approaches, his pre-conceived notions and idiosyncrasies and it is also capable
of abuse because it leaves scope 104 for discrimination, manipulation and
nepotism which can remain undetected under the cover of an interview and
moreover it is not possible to assess the capacity and calibre of a candidate
in the course of an interview lasting only for a few minutes and, therefore,
selections made on the basis of oral interview must be regarded as arbitrary
and hence violative of Art. 14. Now this criticism cannot be said to be wholly
unfounded and it reflects a point of view which has certainly some validity. We
may quote the following passage from the book on "Public Administration in
Theory and Practice" by M. P. Sharma which voices a far and balanced
criticism of the oral interview method :
"The oral test of the interview has been
much criticised on the ground of its subjectivity and uncertainty. Different
interviews have their own notions of good personality. For some, it consists
more in attractive physical appearance and dress rather than anything else, and
with them the breezy and shiny type of candidate scores highly while the rough
uncut diamonds may go unappreciated. The atmosphere of the interview is
artificial and prevents some candidates from appearing at their best. Its
duration is short, the few questions of the hit-or-miss type, which are put,
may fail to reveal the real worth of the candidate. It has been said that God
takes a whole life time to judge a man's worth while interviewers have to do it
in a quarter of an hour. Even at it's best, the common sort of interview
reveals but the superficial aspects of the candidate's personality like
appearance, speaking power, and general address. Deeper traits of leadership,
tact, forcefulness, etc. go largely undetected. The interview is often in the
nature of desultory conversation. Marking differs greatly from examiner to
examiner. An analysis of the interview results show that the marks awarded to
candidates who competed more than once for the same service vary surprisingly.
All this shows that there is a great element of chance in the interview test.
This becomes a serious matter when the marks assigned to oral test constitute a
high proportion of the total marks in the competition.
01 Glenn Stahl points out in his book on
"Public Personnel Administration" that there are three disadvantages
from which the oral test method suffers, namely, "(1) the difficulty of
developing valid and reliable oral tests; (2) the difficulty of securing a
reviewable record on an oral test; and (3) public suspicion of the oral test as
a channel 105 for the exertion of political influence" and we may add,
other corrupt, nepotistic or extraneous considerations. The learned author then
proceeds to add in a highly perceptive and critical passage :
"The oral examination has failed in the
past in direct proportion to the extent of its misuse. It is a delicate
instrument and, in inexpert hands, a dangerous one. The first condition of its
successful use is the full recognition of its limitations. One of the most
prolific sources of error in the oral has been the failure on the part of
examiners to understand the nature of evidence and to discriminate between that
which was relevant, material and reliable and that which was not. It also must
be remembered that the best oral interview provides opportunity for analysis of
only a very small part of a person's total behaviour.
Generalizations from a single interview
regarding an individual's total personality pattern have been proved repeatedly
to be wrong." But, despite all this criticism, the oral interview method
continues to be very much in vogue as a supplementary test for assessing the
suitability of candidates wherever test of personal traits is considered
essential. Its relevance as a test for determining suitability based on
personal characteristics has been recognised in a number of decisions of this
Court which are binding upon us. In the first case on the point which came
before this Court, namely, R. Chitra Lekha and Others v. State of Mysore and
Others this Court pointed out :
"In the field of education there are
divergent views as regards the mode of testing the capacity and calibre of
students in the matter of admissions to colleges. Orthodox educationists stand
by the marks obtained by a student in the annual examination. The modern trend
of opinion insists upon other additional tests, such as interview, performance
in extra- curricular activities, personality test, psychiatric tests etc.
Obviously we are not in a position to judge which method is preferable or which
test is the correct one....................................................
..... The scheme of selection, however,
perfect it may be on paper, may be abused in practice. That it is capable of
abuse is not a ground for quashing it. So long as the order lays down relevant
objective criteria and entrusts the business of selection to qualified persons,
this Court cannot obviously have any say in the matter.
and on this view refused to hold the oral
interview test as irrelevant or arbitrary. It was also pointed out by this
Court in A. Peeriakaruppan v. State of Tamil Nadu & Ors :
"In most cases, the first impression
need not necessarily be the past impression, but under the existing conditions,
we are unable to accede to the contentions of the petitioners that the system
of interview as in vogue in this country is so defective as to make it
useless." It is therefore not possible to accept the contentions of the
petitioners that the oral interview test is so defective that selecting
candidates for admission on the basis of oral interview in addition to written
test must be regarded as arbitrary. The oral interview test is undoubtedly not
a very satisfactory test for assessing and evaluating the capacity and calibre
of candidates, but in the absence of any better test for measuring personal
characteristics and traits, the oral interview test must, at the present stage,
be regarded as not irrational or irrelevant though it is subjective and based
on first impression, its result is influenced by many uncertain factors and it
is capable of abuse. We would, however, like to point out that in the matter of
admission to college or even in the matter of public employment, the oral
interview test as presently held should not be relied upon as an exclusive
test, but it may be resorted to only as an additional or supplementary test
and, moreover, great care must be taken to see that persons who are appointed
to conduct the oral interview test are men of high integrity, calibre and
qualification.
So far as the third ground of challenge is
concerned, we do not think it can be dismissed as unsubstantial. The argument
of the petitioners under this head of challenge was that even if oral interview
may be regarded in principle as a valid test for selection of candidates for
admission to a college, it was in the present case arbitrary and unreasonable
since the marks allocated for the oral interview were very much on the higher side
as compared with the marks allocated for the written test. The marks allocated
for the oral interview were 50 as against 100 allocated for the written test,
so that the marks allocated for the oral interview came to 33 1/3% of the total
number of marks taken into account for the purpose of making the selection.
This, contended the petitioners, was beyond all reasonable proportion and
rendered the selection of the candidates arbitrary and violative of the
equality clause of the Constitution. Now there can be no doubt that, 107 having
regard to the drawbacks and deficiencies in the oral interview test and the
conditions prevailing in the country, particularly when there is deterioration
in moral values and corruption and nepotism are very much on the increase,
allocation of a high percentage of marks for the oral interview as compared to
the marks allocated for the written test, cannot be accepted by the Court as
free from the vice of arbitrariness. It may be pointed out that even in
Peeriakaruppan's case (supra), where 75 marks out of a total of 275 marks were
allocated for the oral interview, this Court observed that the marks allocated
for interview were on the high-side. This Court also observed in Miss Nishi
Maghu's case (supra): "Reserving 50 marks for interview out of a total of
150... does seem excessive, especially when the time spent was not more than 4
minutes on each candidate". There can be no doubt that allocating 33 1/3
of the total marks for oral interview is plainly arbitrary and unreasonable. It
is significant to note that even for selection of candidates for the Indian
Administrative Service, the Indian Foreign Service and the Indian Police
Service, where the personality of the candidate and his personal
characteristics and traits are extremely relevant for the purpose of selection,
the marks allocated for oral interview are 250 as against 1800 marks for the
written examination, constituting only 12.2% of the total marks taken into
consideration for the purpose of making the selection. We must, therefore,
regard the allocation of as high a percentage as 33 1/3 of the total marks for
the oral interview as infecting the admission procedure with the vice of
arbitrariness and selection of candidates made on the basis of such admission
procedure cannot be sustained. But we do not think we would be justified in the
exercise of our discretion in setting aside the selections made for the
academic year 1979-80 after the lapse of a period of about 18 months, since to
do so would be to cause immense hardship to those students in whose case the
validity of the selection cannot otherwise be questioned and who have nearly
completed three semesters and, moreover, even if the petitioners are ultimately
found to be deserving of selection on the application of the proper test, it
would not be possible to restore them to the position as if they were admitted
for the academic year 1979-80, which has run out long since. It is true there
is an allegation of mala fides against the Committee which interviewed the
candidates and we may concede that if this allegation were established, we
might have been inclined to interfere with the selections even after the lapse
of a period of 18 months, because the writ petitions were filed as early as
October-November, 1979 and merely because the Court could not take-up the
hearing of the writ petitions for such a long time should be no ground for
denying relief to the petitioners, if they are otherwise so entitled. But we do
not think that on the material placed before us we can 108 sustain the
allegation of mala fides against the Committee.
It is true, and this is a rather disturbing
feature of the present cases, that a large number of successful candidates
succeeded in obtaining admission to the college by virtue of very high marks obtained
by them at the viva voce examination tilted the balance in their favour, though
the marks secured by them at the qualifying examination were much less than
those obtained by the petitioners and even in the written test, they had fared
much worse than the petitioners. It is clear from the chart submitted to us on
behalf of the petitioners that the marks awarded at the interview are by and
large in inverse proportion to the marks obtained by the candidates at the
qualifying examination and are also, in a large number of cases, not
commensurate with the marks obtained in the written test.
The chart does create a strong suspicion in
our mind that the marks awarded at the viva voce examination might have been
manipulated with a view to favouring the candidates who ultimately came to be
selected, but suspicion cannot take the place of proof and we cannot hold the
plea of mala fides to be established. We need much more cogent material before
we can hold that the Committee deliberately manipulated the marks at the viva
voce examination with a view to favouring certain candidates as against the
petitioners. We cannot, however, fail to mention that this is a matter which
required to be looked into very carefully and not only the State Government,
but also the Central Government which is equally responsible for the proper
running of the college, must take care to see that proper persons are appointed
on the interviewing committees and there is no executive interference with
their decision-making process. We may also caution the authorities that though,
in the present case, for reasons which we have already given, we are not
interfering with the selection for the academic year 1979- 80, the selections
made for the subsequent academic years would run the risk of invalidation if
such a high percentage of marks is allocated for the oral interview. We are of
the view that, under the existing circumstances, allocation of more than 15% of
the total marks for the oral interview would be arbitrary and unreasonable and
would be liable to be struck down as constitutionally invalid.
The petitioners, arguing under the last
ground of challenge, urged that the oral interview as conducted in the present
case was a mere pretence or farce, as it did not last for more than 2 or 3
minutes per candidate on an average and the questions which were asked were
formal questions relating to parentage and residence of the candidate and
hardly any question was asked which had relevance to assessment of the
suitability of the candidate with reference to any of the four factors required
to be considered by the Committee. When the time spent on each candidate was
not more 2 or 3 minutes on an average, 109 contended the petitioners, how could
the suitability of the candidate be assessed on a consideration of the relevant
factors by holding such an interview and how could the Committee possibly judge
the merit of the candidate with reference to these factors when no questions
bearing on these factors were asked to the candidate. Now there can be no doubt
that if the interview did not take more than 2 or 3 minutes on an average and
the questions asked had no bearing on the factors required to be taken into
account, the oral interview test would be vitiated, because it would be
impossible in such an interview to assess the merit of a candidate with
reference to these factors. This allegation of the petitioners has been denied
in the affidavit in reply filed by H. L. Chowdhury on behalf of the college and
it has been stated that each candidate was interviewed for 6 to 8 minutes and
"only the relevant questions on the aforesaid subjects were asked".
If this statement of H. L. Chowdhury is correct, we cannot find much fault with
the oral interview test held by the Committee. But we do not think we can act
on this statement made by H. L. Chowdhury, because there is nothing to show
that he was present at the interviews and none of the three Committee members
has come forward to make an affidavit denying the allegation of the petitioners
and stating that each candidate was interviewed for 6 to 8 minutes and only
relevant questions were asked.
We must therefore, proceed on the basis that
the interview of each candidate did not last for more than 2 or 3 minutes on an
average and hardly any questions were asked having bearing on the relevant
factors. If that be so, the oral interview test must be held to be vitiated and
the selection made on the basis of such test must be held to be arbitrary.
We are, however, not inclined for reasons
already given, to set aside the selection made for the academic year 1979-80,
though we may caution the State Government and the Society that for the future
academic years, selections may be made on the basis of observation made by us
in this judgment lest they might run the risk of being struck down. We may
point out that, in our opinion, if the marks allocated for the oral interview
do not exceed 15% of the total marks and the candidates are properly
interviewed and relevant questions are asked with a view to assessing their
suitability with reference to the factors required to be taken into
consideration, the oral interview test would satisfy the criterion of
reasonableness and non-arbitrariness. We think that it would also be desirable
if the interview of the candidates is tape-recorded, for in that event there
will be contemporaneous evidence to show what were the questions asked to the
candidates by the interviewing committee and what were the answers given and
that will eliminate a lot of unnecessary controversy besides acting as a check
on the possible arbitrariness of the interviewing committee.
110 We may point out that the State
Government, the Society and the College have agreed before us that the best
fifty students, out of those who applied for admission for the academic year
1979-80 and who have failed to secure admission so far, will be granted
admission for the academic year 1981-82 and the seats allocated to them will be
in addition to the normal intake of students in the College. We order
accordingly.
Subject to the above direction, the writ
petitions are dismissed, but having regard to the facts and circumstances of
the present cases, we think that a fair order of costs would be that each party
should bear and pay its own costs of the writ petitions.
S.R. Petitions dismissed.
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