JUDGMENT 1. Petitioner in O.P. 9701 of 1988 is working as Consultant Grade I in the office of the first respondent Kerala Industrial and Technical Consultancy Organisation Ltd., which is a company registered under the Companies Act (for short 'KITCO Ltd.'). The petitioner was first appointed in the Company in July 1977 as a management trainee. On 23rd July 1979 he was appointed as Consultant Grade II. He was promoted as Consultant Grade I on 27th July 1984. Further promotion from the post of Consultant Grade I is to the post of Senior Consultant Grade II. Ext. P-3 is the recruitment and promotion policy for officers of the first respondent company. Case of the petitioner is that promotions are to be made on the basis of seniority cum performance, that he became eligible for promotion to the post of Senior Consultant Grade II in July 1987 having completed 3 years of service as Consultant Grade I and that on 21st October 1988 the Recruitment and Promotion Committee interviewed seven persons holding the posts of Consultants Grade I and selected three persons for promotion to the post of Senior Consultant Grade II overlooking the petitioner who is the seniormost Consultant Grade I. Petitioner contends that the first respondent was wholly unjustified in disregarding his seniority and arbitrarily superseded him. 2. Petitioner in O.P. 6504 of 1991 is working as Consultant Grade II in the office of the first respondent Company. His case is that his seniority was overlooked and promotion was denied to him though he became actually eligible for promotion to the post of Consultant Grade I in February 1990 on completion of three years service in the post of Consultant Grade II. . 3. Both the petitioners contended that they have unblemished service records and as no adverse remarks were noted in their confidential records to their knowledge they ought to have been promoted on the basis of their seniority especially when there is nothing adverse against their performance. 4. O. P. 7436 of 1991 is filed by the Kerala Industrial and Technical Consultancy Organisation Consultants Association. Petitioner in O.P. 6504 of 1991 has been impleaded as additional petitioner No. 2 in this Original Petition. Petitioners seek a writ of certiorari to quash Ext. P-l recruitment and Promotion policy of officers issued by the respondent company. 4. O. P. 7436 of 1991 is filed by the Kerala Industrial and Technical Consultancy Organisation Consultants Association. Petitioner in O.P. 6504 of 1991 has been impleaded as additional petitioner No. 2 in this Original Petition. Petitioners seek a writ of certiorari to quash Ext. P-l recruitment and Promotion policy of officers issued by the respondent company. A writ of mandamus is also prayed for directing the 'respondent company to frame proper service rules and guidelines for fair selection and promotion. 5. Maintainability of the writ petitions is challenged on the ground that the respondent company is not an authority coming within the purview of Art.12 of the Constitution of India. Alternatively, it is contended by the respondents that petitioners in O.P. 9701 of 1988 and O.P. 6504 of 1991 cannot challenge the selection made by the Recruitment and Promotion Committee before this Court under Art.226 of the Constitution of India. It is pointed out that the selection has been made by a properly constituted selection body and this Court cannot sit in appeal over its decision. 6. Whether the respondent company is" an authority coming within the purview of Art.12 of the Constitution of India will have to be considered in view of the challenge to the maintainability of the writ petitions. Contention of the petitioner is that respondent is a company with Industrial Development Bank of India having 49 per cent shares, Industrial Finance Corporation of India having 18 per cent shares, Industrial Credit and Investment Corporation of. India having 16 per cent shares and the balance 17 per cent shares being held by Kerala Government, Kerala Finance Corporation, Kerala State Industrial Development Corporation and Nationalised Banks viz, Union Bank of India, Canara Bank, Syndicate Bank, Indian Bank, State Bank of India, State Bank of Travancore and Indian Overseas Bank, that the first three organisations, which hold 83 per cent shares, function directly under the Ministry of Finance, Government of India and as the respondent company is carrying out functions under the guidance of the above three institutions which in turn carry out the industrial financing and development policies of the Ministry of Finance, Government of India the respondent squarely comes under Art.12 of the Constitution. It is also contended that the Managing Director of the respondent company is appointed by the Industrial Development Bank of India (for short IDBI), that IDBI has power to, appoint nominee directors also, that the over all control of the respondent company is with the Industrial Development Bank of India which is a statutory authority which also nominates the Chairman of the Board of Directors of the respondent, that the main objects of the respondent company are to render consultancy service for the purpose of promoting Industrial Units within the State and thus it implements the industrial promotion policy of Government' of India as well as Kerala. Petitioners assert that the respondent is an instrumentality of the State squarely coming under Art.12. 7. From the list of share holders it can be seen that Government of Kerala has only 3 per cent shares whereas the lion's share is held by Industrial Development Bank of India. So far as the respondent is concerned there is no State control and merely because nationalised banks are its share holders it is not possible to hold that the respondent would come within the purview of Art.12. The list of the Board of Directors, it is true, shows the member of the Board of Revenue, Government of Kerala as one of the directors. Counsel submitted that that by itself is not sufficient to hold that the respondent company is under the State supervision or control. 8. To ascertain whether the respondent company is an instrumentality of the State as envisaged under Art.12 of the Constitution it is necessary to consider the following tests laid down by the Supreme Court in the International Airport Authority's case AIR 1979 SC 1628 (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. (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 f actor............ whether the corporation enjoys monopoly status which is State conferred or State protected. (4) Existence or deep and pervasive State Control may afford an indication that the corporation is a State agency or instrumentality. (3) It may also be a relevant f actor............ whether the corporation enjoys monopoly status which is State conferred or State protected. (4) Existence or 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 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. (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," While considering whether the respondent is an instrumentality or agency of Government it is not very material that it is created by a statute or under a statute. The crucial factor is whether it is an instrumentality or agency of the Government and not as to how it is created. Whatever be the nature of the origin respondent would be an "authority" under Art.12 if it can be held that it is an instrumentality or agency of the Government. This will have to be decided primarily on a correct assessment of its aims, objects and other relevant factors. 9. Majority of the share capital of the respondent is not with the Government. Government of Kerala has only 3 per cent of the shares. State control cannot be discerned from the Memorandum and Articles of Association of the respondent. The functions of the respondent company are not subject to the directions of the Government. The Memorandum and Articles of Association do not 'show that the concurrence or approval of the Government for making rules and regulations are necessary. Accounts do not require scrutiny and satisfaction of the Government. Auditing is not done by State agency. Art.173 of the Memorandum and Articles of Association provides for the appointment of auditors to be decided by the Annual General Meeting of the Company. The Government has only one representative in the Board of Directors. If any rule is made by the respondent company, no Governmental concurrence is envisaged. There is no effective governmental control so far as the respondent is concerned. 10. Merely because nationalised banks have contributed to the share capital of the respondent it does not become an authority as provided under Art.12 of the Constitution. If any rule is made by the respondent company, no Governmental concurrence is envisaged. There is no effective governmental control so far as the respondent is concerned. 10. Merely because nationalised banks have contributed to the share capital of the respondent it does not become an authority as provided under Art.12 of the Constitution. Though the financial institutions who are the shareholders of the respondent by themselves are State instrumentalities, it cannot be said that the respondent company sponsored by them becomes an "authority" under Art.12. As the object of the respondent do not envisage governmental business or promote the policies of the State and as the main source of income of the respondent is not derived from any grant either of the Central or State Government, it cannot be considered as an instrumentality or agency of Government. Though there cannot be any straight jacket formula to be applied to decided whether respondent would be an authority under Art.12 and though wide meaning can be given to the expression "other authorities", in the said Article really a cautious approach is necessary as it has to be borne in mind that interpretation of the word other 'authorities' cannot be stretched to include every autonomous body or company which has some connection with the Government. Even if it is assumed that there is some element of Governmental control or supervision, we cannot jump to the conclusion that it is an authority under Art.12 as the possibility of organisations, companies and institutions receiving financial assistance from Government in a welfare state is the order of the day. What is important is whether the respondent company is controlled to a large extent by the Government. The Memorandum and Articles of Association will not show that there is any such control. 11. Respondent company is a public limited company registered under the Companies Act and its shares are held by Industrial Development Bank of India, Industrial Finance Corporation of India, Industrial Credit and Investment Corporation of India, Kerala State Industrial Development Corporation, Government of Kerala and various nationalised banks. It is governed by the Board of Directors, members of which are to be nominated by the shareholders. Industrial Development Bank of India being the holder of major shares has the right to appoint five directors including the Chairman and the Managing Director. It is governed by the Board of Directors, members of which are to be nominated by the shareholders. Industrial Development Bank of India being the holder of major shares has the right to appoint five directors including the Chairman and the Managing Director. The control of the company is vested with the Board of Directors as per Art.141 of the Memorandum and Articles of Association of the Company. The object of the respondent company is to serve the needs of small scale and medium scale industries in the State viz., to provide quality consultancy services at reasonable cost. It is run on commercial lines. Expenses are met from the income received for its services. These features sufficiently clearly show that the respondent is not an instrumentality of the State or authority under Art.12 of the Constitution. 12. Even assuming that the respondent company is an instrumentality of the State as provided under Art.12 the petitioners in O.P. 9701 of 1988 and O.P. 6504 of 1991 cannot challenge the decision of the Recruitment and Promotion Committee that they are not suitable for being promoted. Counsel for the petitioners pointed out that no adverse remarks regarding their services were communicated to them and so the failure to promote them cannot have any justification. When eligible officers are considered on merit in an objective manner no one has any legal right to insist upon his promotion unless he clearly establishes mala fides or bias in the selection process. 13. Petitioners in O.P. 9701 of 1988 and O.P. 6504 of 1991 have not attributed any acts "of mala fides against the Recruitment and Promotion Committee. If really any such allegation was made against the members of the Committee, they should have been made as respondents. The selection committee consists of outside experts. That has been done to ensure fairness and objectivity in the assessment. Inclusion of outside management experts in the promotion committee is a well recognised practice among public sector undertakings. The minutes of the selection committee produced before this Court shows that expert agency constituted the selection committee. 14. Contention of the petitioners is that they are seniors in the respective cadre and they ought to have been promoted on the basis of seniority is not tenable as the promotion depends upon seniority and performance. The minutes of the selection committee produced before this Court shows that expert agency constituted the selection committee. 14. Contention of the petitioners is that they are seniors in the respective cadre and they ought to have been promoted on the basis of seniority is not tenable as the promotion depends upon seniority and performance. As the Selection Committee constituting eminent persons including outside agency conducted the interview and selected persons out of the interviewed candidates and as there is nothing to show that they were biased against the petitioners, challenge against the selection by the interview board cannot be sustained. It has been held in Lila Dhar v. State of Rajasthan 1981-4-S.C.C. 159 that there cannot be any magic formula in these matters and courts cannot sit in judgment over the methods of marking employed by interviewing bodies unless it is proven or obvious that the method of marking was chosen with oblique motive. As the interviewing body can take decision of its own on an over all analysis of the performance of the candidates and as it normally takes decisions unbiased and without any prejudice, its decision cannot be interfered light heartedly. When promotion is based on seniority cum merit the officer cannot claim promotion as a matter of right on account of his seniority alone. It is always open to the Selection Committee to give promotion to a junior if the senior is found unfit to discharge the duties in the higher post. But that does not mean that the Selection Committee can act in an arbitrary manner. It is useful to refer to Dalpat Abasaheb Solunke v. B. S. Mahajan 1990 (1) SCC 305 , where the Supreme Court held: "It is not the function of the Court to hear appeals over the decisions of the Selection Committees and to scrutinize the relative merits of the candidates. Whether a candidates is fit for a particular post or not has to be decided by the duly constituted Selection Committee which has the expertise on the subject. The court has no such expertise. In the present case the University had constituted the Committee in due compliance with the relevant statutes. The committee consisted of experts and it selected the candidates after going through all the relevant material before it. The court has no such expertise. In the present case the University had constituted the Committee in due compliance with the relevant statutes. The committee consisted of experts and it selected the candidates after going through all the relevant material before it. In sitting in appeal over the selection so made and in setting it aside on the ground of the so called comparative merits of the candidates as assessed by the Court, the High Court went wrong and exceeded its jurisdiction." As the selection has been done by an expert committee and as no mala fides or partisanship is attributed to it, this Court cannot sit in appeal over its decision. 15. The challenge against Ext. P-2 in O.P. 6504 of 1991 is on the ground that there is possibility of it being abused or arbitrarily misused. The possibility of the powers conferred being improperly used is not a ground for condemning it in anticipation. As it has been already found that the respondent is not an authority coming under Art.12, the petitioners cannot challenge Ext. P-2 invoking Art.226 of the Constitution. Original Petitions are dismissed. No costs.