October 3, 2022

Ajay Hasia v. Khalid Mujib Seharvardi- An analysis

The case of ‘Ajay Hasia’ is considered an important case in two aspects,

First, it is an authoritative decision to the different aspects that may arise in regard to an authority to be recognized as a state under Article 12,

Second, it also has a strong authority on the ‘maximization of interviews’ marks’ as deciding factor.

Facts of the case

Background of the Case

Some writ petitions were filed under Article 32 of the Constitution challenging 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) was (now as NIT) one of the fifteen Engineering Colleges in the country sponsored by the Government of India.
  • The College was established and its administration and management were carried on by a Society registered under the Jammu and Kashmir Registration of Societies Act, 1898.
  • Vide sub clause (i). The Society is empowered by clause 3 sub- clause (ii) of the Memorandum of Association to make rules for the conduct of the affairs of the Society and to add to, amend, vary or rescind them from time to time with the approval of the Government of Jammu and Kashmir State and the Central 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.
  • There was 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 administration and assets of the college with the prior approval of the Central Government.
  • The founding members of the Society were 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.

The procedure for admission process

  • 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.
  • Under this Resolution admission 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.
  • 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 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.

The bone of Contention

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 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 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.

Respondent Contention- Society is not an authority under Article 12

The respondent raised an objection 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.
  • Because, 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.

Answer of the court

While approving the following tests laid down by the supreme court in R.D. Shetty v. international Airport authority [1],  

  • “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.”
  • “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.”
  • “It may also be a relevant factor…….whether the corporation enjoys monopoly status which is the State conferred or State protected.”
  • “Existence of deep and pervasive State control may afford an indication that the Corporation is a State agency or instrumentality.”
  • “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.”
  • “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.”

The court concluded on the issue that in the given case, society is under control to the government and comply all tests laid down by the court in ‘Shetty case’. Therefore, the society in the present case is an authority under article 12.

Petitioners’ Contention- the admission procedure was arbitrary and against Article 14

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

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.

The answer of the court on the question

The court concluded on this issue that,

  • As 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.

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. On this, the court said that 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.

The court pointed 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, 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 court while agreeing with the contention said that,

“Now there can be no doubt that, 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 is significant to note that even for selection of candidates for the Indian Administrative Service, the Indian Foreign Service and the Indian Police Service, where the personality of the candidate and his personal characteristics and traits are extremely relevant for the purpose of selection, the marks allocated for oral interview are 250 as against 1800 marks for the written examination, constituting only 12.2% of the total marks taken into consideration for the purpose of making the selection.

We must, therefore, regard the allocation of as high a percentage as 33 1/3 of the total marks for the oral interview as infecting the admission procedure with the vice of arbitrariness and selection of candidates made on the basis of such admission procedure cannot be sustained.

Decision of the Court

The court, however, denied to cancel the admission of those candidate who got admission on this criteria of qualification because it might affect their study, but the court cautioned the government that 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.

Therefore, the court decided 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.

Crux of the case

The final crux of the case is that,

“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.

The court also suggested that 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.”

Reference

Ajay Hasia Etc vs Khalid Mujib Sehravardi; 1981 AIR 487,


[1]1979 AIR 1628