JUDGMENT Khan, J.
1. These two appeals involving identical question of fact and law are directed against order dated 27-7-99 passed in CWP 2670/99 and order dated 7-8-99 made in Review application 56/99 and are being disposed of by this common order.
2. Dr. Satpal Singh (one of the Appellants) and Dr. Kanwaljeet Singh (writ petitioner) are fighting it out for one seat in a two year M.C.H. Super Speciality Post Doctoral Course in Gastroenterology discipline for the Session 1999-2001. Both took entrance examination comprising written test and viva voce carrying 300 total marks. Former scored higher marks in viva and the other in written examination but both obtained 184 marks in aggregate out of 300 resulting in a tie.
3. Dr. Satpal Singh was, however, selected and Kanwaljeet dropped. He felt aggrieved and filed CWP 2670/99 claiming that he was more meritorious and possessed better experience and yet Delhi University (the other Appellant) had excluded him from selection without recourse to any criteria or guideline and that he was meted out differential treatment in violation of his rights under Article 14. He accordingly prayed for a mandamus to the University to admit him to the course and did not seek quashment of selection of Satpal Singh.
4. Respondents were put on notice on 30-4-99 and the selected candidate Dr. Satpal Singh was allowed to join the course subject to the further orders of the Court by an interim order. The University resisted the petition disclosing that Dr. Satpal Singh was selected on the basis of a laid down criteria which provided for breaking the tie by determination of the inter se ranking on the basis of higher marks obtained by a candidate in the final M.B.B.S. examination. In other words, it was projected that where two candidates obtained equal marks, one securing higher marks in M.B.B.S. final examination would rank higher to the other for admission to the course. It was also pointed out that such a criteria was prevalent in other Institutions like PGI, Chandigarh also.
5. Writ petitioner, Dr. Kanwal Jeet Singh filed a rejoinder to this contending that the criteria projected by the University was not based on any guideline or rules, nor was it published in any Brochure or disclosed to the petitioner and was arbitrary, unreasonable and invalid. No foundation was, however, laid by him to support this.
6. Writ Court, on consideration of the matter, took the view that the University had relied upon a criteria which could not apply to the writ petitioner's case. It accordingly proceeded to examine the reasonableness of the decision taken by the University of its own and concluded that it had acted in an unreasonable manner by selecting Dr. Satpal Singh "who was unequal to writ petitioner, Dr. Kanwal Jeet Singh". It consequently quashed the selection and issued a mandamus to the University to admit Dr. Kanwal Jeet Singh, writ petitioner in the course.
7. Dr. Satpal Singh thereafter filed review application No. 56/99 urging that his selection was set aside at his back. He also reiterated that he possessed far superior merit and that the MS degree of writ petitioner was not recognised by Medical Council. Upon this, writ Court again embarked upon an exercise to evaluate the merit of contenders and declared that writ petitioner was a better candidate possessing more experience and that the criterion adopted by the University in selecting Dr. Satpal Singh was not a rational criteria. The Court, accordingly, dismissed the review petition by order dated 7-8-99.
8. It is these two orders which arc under challenge before us and all that remained to be examined was whether the Writ Court was within its competence to declare the adopted criterion irrational and unreasonable when it was not assailed by the writ petitioner in his writ petition and when no reasons were assigned for it in the impugned judgment. Mr. Mariaputham representing Delhi University submitted that there was no occasion for the writ Court to do so, more particularly when writ petitioner had not chosen to question the criterion in his petition, and had failed to seek setting aside of selection on this count. He also urged that writ Court had introduced its own criteria related to experience of two candidates and had proceeded to evaluate their comparative merit in a suo motu exercise which was beyond its competence.
9. Mr. Nayar, Sr. Advocate appearing for appellant, Dr. Satpal Singh justified the adopted criteria which he claimed was in vogue in other institutions also including PGI, Chandigarh. He also complained that writ Court had set aside selection in flagrant violation of principles of natural justice.
10. Learned Counsel for writ petitioner, Mr. Amit Chadha, on the other hand, took pains to highlight the claimed superior merit of the writ petitioner with reference to his better experience and submitted that his exclusion was discriminatory and violative of equality clause guaranteed under Article 14 of the Constitution. He also urged that criteria adopted was liable to be disregarded in the face of writ petitioner's superior merit. The writ petitioner had questioned the reasonableness and irrationality of the criterion in his rejoinder and writ Court had proceeded on that basis to declare it unreasonable and to quash the selection. He placed reliance on a Division Bench judgment of M.P. High Court in Dr. Nirmal Lakhotiya v. State of M.P., , besides judgments of the Supreme Court in Dr. Dinesh Kumar v. Motilal Nehru Medical College, Allahabad, and of Kerala High Court in State of Kerala v. Miss Rafia Rahim, .
11. It is in this background that we are called upon to test validity of the orders passed by the writ Court quashing the selection of Dr. Satpal Singh and directing admission of writ petitioner. Dr. Kanwaljeet Singh. For so doing, it becomes necessary to broadly indicate the common ground to facilitate and ensure better appreciation of the issues involved.
12. It is a matter of record that both contenders obtained 184 marks resulting in a tie. It is also not in dispute that University applied a criterion, whatever its worth, which provided for selection of a candidate obtaining higher marks in M.B.B.S. Final examination, to break the tie. It is also admitted that Dr. Satpal Singh had secured 66.6% marks in his final M.B.B.S. as against 64.33% marks of writ petitioner, Dr. Kanwaljeet Singh leading to selection of former on the basis of adopted criterion. There is also no denial to the fact that this criteria was not questioned by the writ petitioner in his writ petition either initially or subsequently by amending his position. Even when it was meekly attacked by him in his rejoinder, no worthwhile foundation was laid to show how and in what manner it could be treated unreasonable or irrational warranting to be declared invalid.
13. In the given situation, therefore, there was nothing before the writ Court to declare the criteria adopted as unreasonable and to set aside the selection. It could neither have done so on the basis of any new plea taken by writ petitioner in his rejoinder nor in any suo motu exercise, more so when no basis whatever was available on record.
14. Writ Court finding that adopted criteria did not apply to the facts of the case is neither here nor there because it was unsupported by any reason. Merely holding that it was inapplicable was not enough. Its exclusion, if warranted, was required to be substantiated. Otherwise, it would remain enforceable to break a tie unless shown and proved to be unreasonable and irrational.
15. We are at odds to appreciate how the Writ Court had evolved its own criterion referable to comparative experience possessed by the two candidates and had proceeded to evaluate their rival merit. It is no more res integra that it falls within the domain of Selection Authority to fix and adopt a rational and reasonable criterion for selection which is presumed to be valid unless proved otherwise. The Courts normally refrain from entering such arena unless the exercise is shown to be perverse, mala fide or in breach of Rules or law. It is also not for the Court to evolve and Introduce its own criterion/guideline and to ignore and discard that of Selection Authority and that too without assigning any reasons. That is what was done in the present case with the Writ Court introducing requirement of experience which was not contemplated by laid down criteria and which would have to be treated extraneous and irrelevant for purposes of Selection.
16. Mr. Chadha's reliance on a DB judgment of the M.P. High Court and the Supreme Court judgment in (supra) is misplaced. Both judgments are distinguishable, on facts and law. The M.P. High Court's judgment deals with the terms of the advertisement notice providing for preference to be given to the candidates with house job in the local Medical College and the Supreme Court judgment frowns upon the practice of making selection on the basis of different qualifying examinations held by different State Governments and Universities. There could be no quarrel with the propositions laid down in these judgments but these unfortunately do not advance the case of writ petitioner in any manner.
17. We accordingly hold that the selection of Dr. Sat Pal Singh could not be invalidated so long as it was made on the basis of a criterion/guideline which stood the ground for writ petitioner's failure to prove it invalid. The impugned orders setting aside his selection are, therefore, quashed.
18. But all this cannot detract from the fact that writ petitioner Dr. Kanwaljeet Singh had lost the game on a throw of dice, so to say. There was no denying the fact that he possessed equal merit and perhaps more experience as found by Writ Court and had even outscored his rival in the written test of entrance examination. The criterion adopted on the spur of moment by the University to break the tie was in the realm of unknown and lacked the sanction and sanctity of a rule/regulation. It was known to anyone, much less to the writ petitioner whose fate was sealed by it for good. He, therefore, deserved to be granted some relief to meet the ends of justice. Appellant-University is, accordingly, directed to consider him for admission to ongoing course on the basis of his secured merit position in accordance with rules/regulations, if any. The process of consideration shall be completed in one month from receipt of order and requisite orders passed. The appeals are disposed of accordingly.