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PETITIONER: AJAY HASIA ETC.

       Vs.

RESPONDENT: KHALID MUJIB SEHRAVARDI & ORS. ETC.

DATE OF JUDGMENT13/11/1980

BENCH: BHAGWATI, P.N. BENCH: 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

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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 incharge  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

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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

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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 agency 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

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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. 365; Sabhajit  Tewary v.  Union of  India &  Ors., [1975] 3, S.C.R. 616  and Sukhdev Singh v. Bhagat Ram, [1975] 3 S.C.R. 619, 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

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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. 348; 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 &

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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]

JUDGMENT:      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

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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 subclause (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

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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

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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

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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

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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

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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

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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

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    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

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    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

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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

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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

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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

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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

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    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 though 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

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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 predelictions 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

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    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 quali- 106      fied 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

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    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

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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,

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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

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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. 111