# AJAY RASIA ETC v. KHALID MUJIB SEHRA VARDI & ORS. ETC

- **Citation:** [1981] 2 S.C.R. 79
- **Court:** Supreme Court of India
- **Decided:** 1980-11-13
- **Bench:** Y. V. Chandrachud, P. N. Bhagwati, V. R. Krishna Iyer, 8 s. MURTAZA FAZAL ALI, A. D. KosHAL
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/ajay-rasia-etc-v-khalid-mujib-sehra-vardi-ors-etc-7969
- **Pages:** 32

## Headnote

Adn1ission to Engineering College-Jammu & Kashmir Regional Engineering College, Srinagar, registered as a society under the Jam1nu & 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 thr candidates fa,Ning only two or
three minutes asking formal questions relating to the candidates parentage and
residence and without any relevance to the subject for which marks were alloc
cated, whether arbitrary-Allocation of 113 of the total marks required for the
qr1alifying examination for the viva
voce-Whcther bad, unreasonable
and
arbitrary-Whether prescribing different admission procedures for candidates
belonging to tlie State of Jammu & Kashmir and candidates belonging to other
D
States is violative of the Equality Clause under Article 14.
Dismissing the writ petitions, the Court
HELD: (!). Having regard to the Me.norandum 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 Jamrnu & Kashmir and
even if any other monies are to be received by the Society, it can be done only
v.ith 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 \vith 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 otlier 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 approve! of !he
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 ailso largely controlled by nominies of the State and the
Central Governments. The State Government and by reason of the provision
for epproval, the Central Government also thus have full control of the work-
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SUPREME COURT REPORTS
[1981] 2 S.C.R.
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 Centro1
Governments.
The Society is an instrun1ent'ality 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-FJ
(2) The expressi0n "other authorities'\ in Article 12 must be
given an
interpretation where constitutional fundamentals vital to the maintenance of
human rights are at stake, functional realism and not facial cosmetics must be
the diagnostic tool, for constitutional law must seek the substance and not the
form.
The Government may act through the instrumentality
or agency
of
juridical persons to carry out its f

## Text

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79
AJAY RASIA ETC.
A
v.
KHALID MUJIB SEHRA VARDI & ORS. ETC.
November 13, 1980
[Y. V. CHANDRACHUD, C.J., P. N. BHAGWATI, V. R. KRISHNA IYER,
8
s. MURTAZA FAZAL ALI AND A. D. KosHAL, JJ.]
Adn1ission to Engineering College-Jammu & Kashmir Regional Engineering College, Srinagar, registered as a society under the Jam1nu & 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 thr candidates fa,Ning only two or
three minutes asking formal questions relating to the candidates parentage and
residence and without any relevance to the subject for which marks were alloc
cated, whether arbitrary-Allocation of 113 of the total marks required for the
qr1alifying examination for the viva
voce-Whcther bad, unreasonable
and
arbitrary-Whether prescribing different admission procedures for candidates
belonging to tlie State of Jammu & Kashmir and candidates belonging to other
D
States is violative of the Equality Clause under Article 14.
Dismissing the writ petitions, the Court
HELD: (!). Having regard to the Me.norandum 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 Jamrnu & Kashmir and
even if any other monies are to be received by the Society, it can be done only
v.ith 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 \vith 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 otlier 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 approve! of !he
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 ailso largely controlled by nominies of the State and the
Central Governments. The State Government and by reason of the provision
for epproval, the Central Government also thus have full control of the work-
-.,,,.--
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IF ..
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SUPREME COURT REPORTS
[1981] 2 S.C.R.
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 Centro1
Governments.
The Society is an instrun1ent'ality 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-FJ
(2) The expressi0n "other authorities'\ in Article 12 must be
given an
interpretation where constitutional fundamentals vital to the maintenance of
human rights are at stake, functional realism and not facial cosmetics must be
the diagnostic tool, for constitutional law must seek the substance and not the
form.
The Government may act through the instrumentality
or agency
of
juridical persons to carry out its functions, since, with the advent of the welfare
State its new task have increased manifold.
[90B-D]
It is, undoubtedly, true that the corp0ration 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
\\'hich acts through the instrumentality or agency of t'he 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
cf 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 os the Government
itself,
though in the eye of the la.w it would be a distinct and independent legal entity.
H the Government acting through its officers is subject to certain constitutional
limit'ations, 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-FJ
The Courts should be anxious to enlarge the scope and width of the Fundamental Rights by bringing within their sweep every authority which
i•
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 t'hrough natural persons or through corporate
entities, to the basic oblig6tion of the Fundamental Rights.
The constitutional
philosophy of a democratic socialist republic requires the Government to undertake a multitude of socio..economic operations and the
Government,
having
regard to the practical advantages of functioning through the legal device of
e. corporation, embarks on myriad commercial and
economic activities
by
resorting to the instrumentality or agency of a corporation, but this contrivance
of ca1Tying on such activities through a corporation
cannot exonerate
the
Gov<:rnment from implicit obedience to the Fundamental Rights.
To use the
AJAY RASIA V. KHALID MUJIB
81
corporate methodology is not to liberate the Government from its basic obligaA
tion 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 plumlity of corporations almost every State business such as Post and Telegraph,
TV, Radio, Rail, Road and Telephones-in short every economic activity-and
B ·
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
Fundemental
C
Rights to be rendered futile and meaningless and thereby wipe out Chapter Ill
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 interpreta·
tion. 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
D
government and in effect an incarnation of the government,
11 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 constitu·
tional limitations.
Therefore, where a corporation is an instrumentality or
agency of the Government, it is an authority within the meaning of Article 12
end, hence, subject to the same basic obligation to obey the Fundamental Rights
as the government.
[91G-H, 92A-G]
E
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 s8.id to be
en 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 summarised as : (i) "One thing is clear that if the entire share capital
of the corporation is held by Government it would go a long woy towards indi·
eating that the Corporation is an instrumentality or agency of Government:
(ii) 'Where the financial assistance of the State is so much as to meet almoot
entire expenditure of the corporation1 it would afford some indication of the
'orporation be.ing 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
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SUPREME COURT REPORTS
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agency or instrumentality.' (v) 'If the functions of the corporation of public
importance and closely related to governmental functions, it would be a rele
4
vant factor in classifying the corporation an instrumentality
or
agency
of
Government.' (vi) 'Specifically, if a department of Government is transferrer!
to a corporation, it would be a strong factor supportive of this inference" of
the corporation being an instrumentality or agency of Governmenr." [96F-H,
97A-D]
Ir is immaterial for this purpose whether the corporation is created by a
statute or under 0 statute. The test is \vhether it is an instrumentaJit'y or agency
of the Government and· not as to how it is created. The enquir}' 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 corporat'ion created by a statute or it may
be a Government company or a company formed under the Companies Actt
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 \Vould 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 Governn1ent is not Jimited to a corporation
created by a statute but is equally applicable to a company er society nnd in
a given case it would have t'o be decided, on a considefation of the relevant
factors, 'vhether the company or society is an instrumentality or agency of the
Government so Gs to come within the meaning of the expression "authority" in
Article 12. [97F-H, 98A-BJ
( 4) Merely because a juristic entity may be an
11authority" and, therefore,.
"State," within the meaning of Article 12, it miay 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 virtueof Article 36, to Part IV and it does not extend to the other provisions of the
Constiiution 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; Sabha;it
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 inteIJigible differentkt 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, \t·ould pfr1inly
be arbitrary and the guarantee of equality under Article 14 \Vould be breached.
Where.v£r, therefore, there is arbitrariness in State action whether it be of the
AJAY HASIA V. KHALID MUJIB
83
legislaiure or of the executive or of an "authority" under Article 12, Article
A.
14 immediately springs into action and strikes down such State action. In fact,
the concept of reasonableness and non-arbitrariness pervades the entire consti·
tutional scheme and is a golden thread which runs through the whole of the
fabric of the Constitution.
[lOOG, 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.C.R. 621 and R. D. Shetty v. The International
B~
Airport Authority of India, & Ors., [1979] 1 S.C.R. 1042, applied.
(6) The procedure adopted by the respondent Society cannot be regarded
as arbitrary merely because it refused to take into account the marks obtained
by the candidates at the qualifying examination bur chose
to regulate
the
admissions by relying on the entrance test.
The entrance test facilitates
the
assessment of the comparative talent of the condidates by application
of a
c·
uniforril standard and is always preferable to evaluation of .::on1parative merit
on the basis of marks obtained at the qualifying examination, when the qualifyM
ing 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 n1odes of examination.
[103AMB, D-F]
(7) 'The oral interview test is undoubtedly not a very satisfactory test for
I)
assessing and evaluating the capacity and calibre of candidates, but
in the
absence of any better test for measuring personal charo.cteristics 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 fo.ctors 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,
E.
but it may be resorted to only as an additional or supplementary test and,
moreover, grel;lt care must be taken to see that persons who are appointed
to conduct the oral interview t'est are men of high integrity, calibre and quaJiftcation.
[106C-E]
R. Chitra Lckha and Others v. State of Mysore and Others, [1964] 6 S.C.R.
368, followed.
II'
(8) Having regard to the drawbacks rand deficiencies in the oral interview
test and the conditions prevailing in t'he country, particularly when
there
i~
d~terioration in moral values and corruption and nepotism are very much on
the increase, a11ocation of Q high percentage of marks for the oral intervie1N
a.s compared to the marks allocated for the \Vritt'en test, is not free from the
Yice 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. [I 07 A-D]
The court, however, to avoid immense hardship being
caused to
those
students in whose case the validity of the selection cannot otherwise be quesM
tioned und who have nearly completed three semesters and taking into consiM
demtion 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 'Nas, however, of the view that under the existing circumstances.
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SUPREME COURT REPORTS
[1981] 2 S.C.R.
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allocation of more than 15% of the total marks for the oral interview would
be arbitrary and unreasonable.
[107G-H, 108A-FJ
A. Peeriakaruppan v. State of Tamil Nadu, [1971] 2 S.C.R. 430; Miss Nishi
Meghu y. State of lammu & Kashmir & Ors., [1980] 3 S.C.R. p. 1253, applied.
(9) There can be no doubt that if the interview did not last for more thar.
R
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
viriated, 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 aJlocated for the oral interview do not exceed
C
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
10 the factors required to be taken into consideration, the oral interview test
\\'ould 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
\Vere
~be
questions asked to the candidates by the interviewing committee and what were
O
the answers given and that will eliminate ~ lot of unnecessary controYersy besides acting as a check on the possible arbitrariness
of the interviewing committee.
[109A-B, D-E, F-H]
E
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H
ORIGINAL JURISDICTION : Writ Petition Nos. 1304, 1262, 1119,
1118, 1574-75, 1373-74, 1244-45, 1230, 1494-97, 1566-67, 1143,
1440, 1586, 1420-23, 1441-43, 1389, 1144, 1461, 1437-39, 1431,
1268, 1145, 1263 and 1331 of 1979.
(Under Article 32 of the Constitution)
Anil Dev Singh, Lalit Kumar Gupta,
Subhash
Pandey and S. K. Sabharwal for the Petitioners in
1437-39, 1262, 1497, 1586, 1230 and 1263 of 1979.
Sharma,
W.Ps.
C. P.
1389,
Y. S. Chitale, P. N. Duda, V. K. Pandita, R. Sarish and E. C.
AgarwaTa for the Petitioners in W.P. Nos. 1241-43, 1495-96, 156667, 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. T1ku, E. C. Agarwala, M. Mudgal,
Ashok
Kaui and Vineet Kumar for the Petitio"ners 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.
.'r
AJAY HASIA v. KHALID MUJIB (Bhagwati, J.)
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
~egional Engiheering 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 e;tablished and its administration and management are carried on by a
Society registered under the Jammu and Kashmir Registration of
Societiecs Act, 1898. The Memorandum of Association of the Society
in c;ause 3 sets out the objects for which the Society is incorporanw
and they include amongst other things establishment of the college,
with a view to providing instruction and research in such branches of
engih,~ering 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 Associatioo 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 Gover'nment) 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) requiv~ 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 S.tate 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 rep<irt 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 ih case the Society or the college is not functioning proporly, the State Government will have the power to take
over the
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SUPREME COURT REPORTS
[1981] 2 S.C.R.
administration and assets of the college with the prior approval of
the Central Government.
The founding member~ of the Society are
enumerated in clause 9 ol 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
the ex-officio Secretary.
The Rules of the Society ar.e 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 Govenunents 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. Rnle 7
lays down the constitution of the Board of Governors by providing that
it shall consist of the Chief Minister of the State Government as Chairman and the following as members : Three nominees of the State
Government, fhree nominees of the Central Government, one representative of the All India Council for Technical Education, ViceChancellor of the University of Jammu1 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 o'f
the Faculty of the College and the Principal of the college as ex-officio
member-Sec1etary.
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.
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AJAY HASIA v. KHALID MUJIB (Bhagwati, J.)
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bmre power to consider and pass resolution on the annual report, the
A
annual accounts and other financial estimates of !he college, but the
annual report and the annual accounts together with the resolution
11assed thereon are required to be submitted to the State and the
Central Governments.
The Society is empowered by Rule 24, clause
(i) to alter, exteud or abridge any purpose or purposes for which it is
established, subject to the prior approval of the State and the Central
B
·Governments and clause (ii) of Rule 24 provides that the Rnles may
be altered by a Resolution passed
by a majotity 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 Cenrtal
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 colleg~ 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 Jammn 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 Knowedge and Awareness-15; (ii)
Broad understanding
of Specific Phenomenon-15;
(iii) Extra-curricular
activities-IO
and (iv) General Personality Trait-10, making up i:n the aggregate-SO. 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
caudidates 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 b~ made in accetrdance with tht;
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Orders of Jammu and Kashmir Government for admsision 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.
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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 tour
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 examhmtion, 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 thereby 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-
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AJAY HASIA v. KHALID MUJJB (Bhagwati, J.)
89
nation. This chart shows beyond doubt that the successful candidates
whose marks are given in the chart had obtained fairly low mark~ 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 vi Jammu
& Kashmir & Ors.(1) 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 slatute 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 grunting 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 tQ,include inter a/ia 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.
(I) [1980] 3 SCR p. 1253.
A.
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SUPREME COURT REPORTS
[J 98 lj 2 S.C.R.
While considering this question it is necessary to bear in mind ihat
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 Constimtion. 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 authonty to act
as its instrumentality or agency for carrying out its functions. Whe1.1e
constitutional fundamentals vital to the maintenance of human rights
are at stake, functional realism and not facial cosmetics must be the
diagnostic tool, for constitutional law must seek the substance and not
the form. Now it is obvious that the Government may act thrnugh 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 sc:rvice to
deal with these new problems came to be realised and it became
necessary to forge a new instrumentality or administrative device for
handling 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 selling up and
running public enterprises and carrying out other publio 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 advantage~ and at th~
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AJAY HASIA v. KHALID MUJIB (Bhagwati, J.)
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." n is undoubtedly true that the corpora
tion 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
th<> 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.