1. Pursuant to a notice issued by its Principal on 30-5-1977, the petitioner along with some others applied for being admitted to M.B.B.S. Course in Govt. Medical College, Jammu, as according to him, he fulfilled all the qualifications for admission prescribed in the said notice. The selection was to be made in terms of Govt. Order No. 1898-GD of 1973, dated 9-7-1973, according to which, 50% of the total seats were to be filled upon the basis of open merit in accordance with the criteria to be adopted by the concerned Selection Committee constituted by the Government for the purpose. The petitioner sought admision in this category, but was rejected, even though according to him, he was far superior to respondents 3 to 11 in merit, who were granted admission by the Selection Committee. He has, on a number of grounds, prayed for a twofold relief : one, that the selection of respondents 3 to 11 be quashed, and two, that he be admitted to the said course. It is not necessary to state herein all those grounds, as the grounds which were eventually pressed during arguments are only these:
(i) the selection was bad because the criteria adopted by the Selection Committee were not made known to the candidates,
(ii) the selection was bad because even the said criteria were not followed by the Selection Committee in adjudging the inter se merit of the candidates; and
(iii) the selection was bad becauseit was violative of Articles 14, 15 and29(2) of the Constitution of India.
2. While admitting that the petitioner fulfilled all the qualifications for seeking admission in terms of notice dated 30-5-1977, the respondents have resisted the petition inter alia on the grounds: that the criteria laid down by the Selection Committee were made known to all before interviewing the candidates; that the criteria were strictly followed in all the cases, and respondents 3 to 11 were found supe-rior in overall merit to the petitioner, that even if there was any violation of Govt. Order No. 1898-GD of 1973, it did not give any cause of action to the petitioner to file the petition as the Government Order had no statutory force and was merely an administrative order declaring the policy of the Government in regard to admission to educational institutions, which did not create any right in favour of the petitioner; and that no fundamental right of the petitioner had been taken away by not selecting him.
3. The petition was initially heard by a Division Bench. A preliminary objection was taken before it that Govt. Order No. 1898-GD of 1973 being merely administrative in character, it did not create any right in favour of the petitioner, and consequently the petitioner had no cause of action to file the petition on account of its alleged infraction. In support of the contention, reliance was strongly placed upon a Bench decision of this Court in Rattan Singh v. Hon'ble Chief Minister, Writ Petn. No. 138 of 1977 decided on 17-12-1977. The Division Bench, being of the opinion that the view taken by this Court in Rattan Singh's case (supra) was open to question, the petition as a whole has been placed before this Bench for its disposal on merits.
4. So long as vacancies exist, a candidate has a right to be considered for admission to an educational institution maintained by the State. To weed out surplus candidates in excess of the vacancies available, the Government may frame rules, or even issue executive instructions not having any statutory force, appointing bodies charged with the duty of judging thecomparative merit of the candidates, according to the criteria laid down by it The only object sought to be achieved by such selection is to identify and bring in the best talent. Holding an interview by a Committee consisting of highly qualified and conscientious persons, and adding the marks allotted at the interview to the aggregate secured by the candidate in the last qualifying examination, is one of the permissible methods of judging their respective merit, though much may still depend upon the honesty and fair-play of the members constituting the Committee. (See R. Chitralekha v. State of Mysore, AIR 1964 SC 1823 and Subash Mohan Jalali v. Principal, Medical College, 1967 Kash LJ 272 : (AIR 1967 J & K 106 (PB)). The Government may also make reservations for certain class or classes of candidates, provided such classification does not infringe any fundamental right guaranteed under the Constitution, e.g. classification on the ground of religion, race, caste, sex or place of birth prohibited under Article 15. Where, therefore, there is either no nexus between the criteria laid down and the object sought to be achieved thereby, or where such criteria operate differently in case of different candidates, who are otherwise similarly situated, the rule or executive instructions laying down the criteria shall be liable to be struck down as violative of Article 14. Where, however, there is nothing inherently wrong with the criteria but the same are mis-applied by the body charged with the duty of making selection, the act of the body, and not the criteria will be struck down by the Court. The rule, that an administrative or executive order or instructions issued by Govt. is not open to judicial scrutiny is not a rule of universal application. It is now well settled that any such rule, order or instruction, which infringes a right, fundamental or legal, or otherwise entails civil consequences is always amenable to judicial review. (State of Orissa v. Dr. (Miss) Binapani Dei, AIR 1967 SC 1269 and Harijander Singh v. Selection Committee, AIR 1975 Andh Pra 35 (FB)). Viewed thus, the observations made by their Lordships in Rattan Singh's case (supra), that no executive or administrative order of Government is open to challenge, if I may say so with respect, state the law much too widely.
5. Turning now to the facts of the case, the criteria adopted by the Selection Committee were made known to the candidates by its previous publication in Government Gazette. That was sufficient notice in any case.
6. Mr. Sethi's contention that the criteria were not correctly applied by the Selection Committee is also misconceived. 100 marks were kept for academic merit of a candidate and 50 marks were kept for his interview, 150 marks in all were thus kept for judging the overall merit of a candidate. In other words 100 marks were made equivalent to 550 marks i.e. the total marks of the last qualifying examination. On the very same equation, therefore, 275 marks were in effect kept for interview, being 50% of 550 marks, There is thus an apparent fallacy in the argument of Mr. Sethi that not 275 but only 50 marks were kept for interview, and that the marks obtained by a candidate at the interview were to be added to the marks which he had actually obtained in the last qualifying examination to judge his comparative merit. The marks obtained at the interview were to be added to the percentage of marks obtained by him in the last qualifying examination, the percentage to be worked out by applying the formula : 550 = 100. Calculated thus, respondents 3 to 11 had admittedly secured more marks than the petitioner. Obviously, therefore, the criteria were not applied wrongly in judging the comparative merit of the petitioner.
7. There is no averment that either Government Order No. 1898-GD of 1973 or the criteria adopted by the Selection Committee tended to create discrimination on the grounds of religion, race, caste, sex, or place of birth, or that the petitioner had been refused admission on any such ground. There is, thus, no infraction of either Article 15 or Article 29 (2) of the Constitution. The criteria whether good or bad, were uniformly applied in all the cases. The selection cannot, as such be said to be violative of Article 14. Mr. Sethi, however, argued that the criteria too were violative of Article 14. The criteria consisted of five heads, namely, aptitude, physical fitness, personality, general knowledge, and general intelligence; each carrying 10 marks. This contention is outside the scope ofthe petition. Whether the criteria lacked sense of objectivity, or whether the percentage of marks kept for interview was so high as could make it possible to convert merit into de-merit or vice versa, I am not inclined to consider, as no proper foundation for the plea has been laid in the petition, No challenge can, therefore, be thrown to the selection on this ground as well.
8. There being no merit in the petition, the same is dismissed accordingly, but in its peculiar circumstances without any order as to costs.
Mufti Baha-Ud-Din Farooqi, Actg. C.J.
9. I am in full agreementwith the lucid and elaborate judgmentof my learned brother, Kotwal, J.
Dr. A.S. Anand, J.
10. I also agree.