Arvind Laxmanrao Kinge Vs. State of Maharashtra, Urban Development Public Health and Housing Department and ors. - Court Judgment

H.W. Dhabe, J.

1. All these writ petitions can conveniently be disposed of by this common judgment Broadly speaking, these writ petitions fall into two groups. The first group is of writ petitions in which the petitioners belongs to the other Medical Colleges affiliated to the Nagpur University itself to which the Medical College giving admissions to the post-graduate courses is affiliated. These writ petitions are Writ Petition No. 1707 of 1986, Writ Petition No. 1592 of 1986, Writ Petition No. 1921 of 1986 and the Writ Petition No. 2356 of 1986. The rest of the writ petitions belong to a group in which the petitioners do not belong to the Medical Colleges affiliated to the Nagpur University. Some of the petitioners in this group are from the colleges even outside the State of Maharashtra.

2. Briefly, the facts in these writ petitions are that an advertisement was issued on 28-7-1986 by the Dean of the Government Medical College Nagpur and on 31-7-1986 by the Dean of the Indira Gandhi Medical College, Nagpur for admission to the post-graduate degree and diploma courses in their respective Medical Colleges. A statement showing the distribution of seats for the various courses was also shown in the aforesaid advertisements issued by the Deans of the aforesaid Medical Colleges. It is not in dispute that the admissions to the post-graduates courses in the aforesaid medical colleges were made on the basis of the Rules No. MCT/2571 /24516/C dated 18-6-1971, as it stood amended by the G.R. No. MCG 1082/1812/MED-7 dated 20-8-1983.

3. The main grievance of the petitioners in these writ petitions is that admissions are given by the Deans of the aforesaid medical colleges to the institutional candidates only which is contrary to the interpretation put upon Rule 5 of the aforesaid Rules by this Court in the case of Abhay S. Darshane v. State of Maharashtra, 1985 Mh.L.J. 155. The submission on behalf of the petitioners is that according to Rule 5, as interpreted by this Court in the above decision, it is only when the institutional candidates as well as the outside candidates have equal corrected marks that the preference can be shown to the institutional candidates. The State Government, on the other hand, has urged that Rule 5, as amended in 1983, makes cent percent reservation in favour of the institutional candidates except to the extent as carved out for in service personnel and the Backward Classes. The alternate submission therefore, on behalf of the petitioners is that if it is held that there is cent percent reservation for institutional candidates in Rule 5, then the said Rule 5 is violative of Article 14 of the Constitution of India and needs to be struckdown. At any rate, the submission is that part of the above Rule 5 which is discriminatory should be struck down and the other part which is valid should be given effect to by applying the test of severability. It is also urged on behalf of some of the petitioners that if Rule 5(a) is construed to mean absolute reservation in favour of the institutional candidates, it is contrary to the statutory regulations framed by the Indian Medical Council with the approval of the Central Government under the Indian Medical Council Act, 1956, which regulations provide for admissions on merit only and Rule 5(a) being merely a rule framed under the executive power of the State, Rule 5(a) must yield to the above statutory Regulations.

4. In considering the rival submissions, it would be necessary to refer to the background of the impugned Rule 5 so as to understand the setting in which it is framed. As already pointed out, the rules for selection of candidates for admission to the post-graduate degree and diploma courses conducted at the Government Medical Colleges in the State of Maharashtra, were framed by the Government of Maharashtra under its Government Resolution No. MCT/2571/34316/C dated 18-6-1971. At this stage it would be convenient to have the brief survey of the relevant rules for admission framed under the aforesaid Government Resolution dated 18-6-1971. Rules 1 provides that admission to the post graduate medical courses for both degree and diploma of the University to which the particular medical college is affiliated are open to the medical graduates of the recognised Universities, who have registered themselves under the Maharashtra Medical Council Act, 1955. It is not in dispute that the petitioners in these writ petitions, some of whom have passed their qualifying examinations even from colleges/institutions outside the State of Maharashtra, have registered themselves under the Maharashtra Medical Council Act before applying to the post-graduate courses in question.

5. Rule 2 of the Government Resolution dated 18-6-1971 provides for the number of students who can be admitted for the post-graduate courses in the Medical College in question. Rule 3 provides of reservations in respect of Scheduled Castes, Scheduled Tribes, Denotified Tribes and Nomedic Tribe and other Backward classes. Rule 4 provides for the particulars to be notified in the notification to be issued for giving admissions to the post graduate courses. Rule 5 which is a crucial rule for the purpose of these petitions then provides for the mode and manner of selection of candidates. Rule 8 gives the method of calculating the marks knows as corrected marks for the purpose of preparing the merit list of the candidates. Rule 9 requires that the candidates should have completed the requirement of working in the resident post as provided under the rules of the University framed for giving registration to its post graduate courses.

6. It may be seen that Rule 5 of the aforesaid Government Resolution dated 18-6-1971 providing for selection of candidates was challenged in this Court in the case of Dr. Satish B. Deopujari v. State of Maharashtra, Writ Petition No. 1974/1981 on the ground that the wholesale reservation made therein except for the Backward Classes was violative of Article 14 of the Constitution of India. This Court upheld the above contention and struck down the aforesaid Rule 5 as violative of Article 14 of the Constitution by its judgment rendered on 11-11-1981. It thus became necessary for the State Government to amend suitable the said rule so as to remove the vice of discrimination in it and to bring it in accord with the equality clause enshrined in Article 14 of the Constitution. The State Government, therefore, issued Government Resolution (for short the G.R.) No. MCG-1082/1812/PH-7 dated 30-7-1982 to amend Rules 1 and 5 of the G.R. dated 18-6-1971.

7. A perusal of the aforesaid G.R. would show that by amending original Rule 1, the registration of the candidates outsides the State of Maharashtra under the State Medical Council Acts of the irrespective States was recognised. The original Rule 5 was completely substituted by the G.R. dated 30-7-1982. Under Rule 5 introduced by the G.R. dated 30-7-1982, the distribution of the total seats available for registration for post-graduate degree and diploma courses was made by classifying the candidates into different categories. It is material to see that under Clause (a) of the aforesaid Rule 5, reservation of 10% of the total seats was made for outside candidates who belonged to the Medical college situated outside the jurisdiction of the University to which the College giving admission was affiliated. Under Clause (b) of the aforesaid Rule 5, 10% of the seats were reserved for the candidates belonging to the other Medical Colleges affiliated to the same University to which the college giving admissions was affiliated. Under Clause (c) reservation of 15% was made for in service personnel. The seats in categories (a), (b) and (c) also included seats reserved in the prescribed proportions for Backward Classes belonging to the said categories. Under Clause (d), after deducing the seats reserved under Clauses (a), (b) and (c) all the remaining seats were made available to the institutional candidates of open and Backward Classes categories.

8. After amendment of the rules in 1982, as stated above, the Full Bench of this Court, which was constituted in the case of Dean, G.S. Medical College and another v. Dr. Samina Sehel Khatib and another, 1983 Mh.L.J. 771 for considering the question of the correctness of otherwise of the view taken in Dr. Satish B. Deopujari's case cited supra upheld the validity of the rule of institutional preference contained in the rules for admission to the post-graduate courses in the Medical Colleges conducted by the Municipal Corporation of Greater Bombay. The judgment of the Division Bench of this Court in Dr. Satish Deopujari's case, cited supra, in which the original Rule 5 framed under the G.R. dated 18-6-1971 for admissions to the post-graduates courses in the Government Medical Colleges was struck down on the ground that it made cent percent reservation for the institutional candidates was over-ruled and it was held that such a rule for institutional preference was valid and was permissible and was not violative of Article 14 of the Constitution.

9. In view of the above judgment of the Full Bench, presumably to give full weightage and preference to the institutional candidates, the State Government again amended the rules for admission to the post-graduate courses by the G.R. No. MCG/1082/1812/MED-7 dated 28-8-1983, although one should have thought that the rules for admission framed by it under the G.R. dated 30-7-1982 which considered the competing claims of the institutional and outside candidates in affair and just manner needed no change. By the aforesaid G.R. dated 20-8-1983, the original rule under the G.R. dated 18-6-1971 was restored by deleting the amendment made to it by the G.R. dated 30-7-1982 by which the registration of the candidates outside the State of Maharashtra under the Medical Council Acts applicable in their States was recognised. Rule 5, which was substituted by the G.R. dated 30-7-1982 was again recast and a new Rule 5 was introduced under the G.R. dated 20-1-1983, according to which the reservation of seats for admission to the post-graduate courses was only for the in service personnel and all the remaining seats were made available for institutional candidates of open and Backward Class categories, thus doing away with the reservations made for outside or non-institutional candidates in the Clauses (a) and (b) of Rule 5 framed under the G.R. dated 30-7-1982. As already stated the present admissions are made under Rule 5 of the G.R. dated 20-8-1983. It is, therefore, the construction of the present Rule 5 framed under the G.R. dated 20-8-1983, which is in issue in this petition.

10. In construing Rule 5 of the Government Resolution dated 20-8-1983, it is necessary to understand the above setting or the background in which it is framed. It would be worthwhile to reproduce for the sake of comparison the relevant portion of Rule 5 in the original G.R. dated 18-6-1971 under the G.R. dated 30-7-1982 and the present G.R. dated 20-8-1983.

(G.R. No. MCG/2571/24516-Q dated 18-6-1971)

'5. Selection of students amongst those who have applied for admission to the post-graduate degree or diploma will be on the basis of the marks obtained in the subject at University Examination modified with specified deduction for the number of attempts taken to pass that subject as well as the final M.B.B.S. Examination.

While selecting from amongst eligible candidates preference will be given to the students of that College, i.e. who passed their final M.B.B.S. Examination from that College in Broad specialities and their ancillary discipline. In the case of Super specialities candidates who have qualified from other colleges may also be registered upto a limit of 50% of the vacant seats, when selected candidates for super specialities, candidates from all Government Colleges in Maharashtra shall be considered with respect with their merit to be on par with each other on corrected marks (thus when a local candidate is of higher merit than the candidate from other Government Colleges in Maharashtra, he will be preferred for registration keeping 50% quota for the non-local candidates not be filled in.........'

(G.R. No. MCC-1082/1812/PH-7 dated 30-7-1982)

'Rule 5-Selection of the students amongst those who have applied for admission to the post graduate degree or diploma will be on the basis of the marks obtained in the subject at University Examination modified with specified deduction for the number of attempts taken to pass that subject as well as the final M.B.B.S. Examination.

Distribution of the total seats available for post graduate degree and diploma registration in an year will be as follows :

(a) 10% of the total seats available for registration for post graduate degree and diploma will be kept for the outside candidates who belong to medical colleges which are situated outside the jurisdiction of the University to which the Institution is affiliated. Out of these seats 70% seats will be released by the Dean at the time of registration for January term and 30% for July term.

(b) 10% of the total seats available for registration for post graduate degree and diploma will be kept for the candidates who pass from the other institutions which are affiliated to the same University to which the institution giving registration is affiliated. Out of these seats, 70% of the seats will be released by the Dean for January term and 30% will be released for July term. 15% of the total seats in post graduate degree and 25% of the total seats for post-graduate diploma registration available in a year will be reserved for in service personnel such as MM & HS and teaching staff in Medical Colleges. Out of these 70% seats will be released by the Dean at the time of registration for January term and 30% for July term, vacant seats will be divided to institutional candidates.

The percentage allotment stated in (a), (b) and (c) includes the Backward Class personnel for MM & HS and outsiders in the prescribed proportion i.e.

1. Scheduled Castes and Scheduled Casteconverts to Buddhism 13%2. Scheduled Tribes including thoseliving outside the specified areas 7%3. Denotified Tribes and Nomadic Tribes 4%4. Other Backward communities 10%------Total 34%-------Further the allotment of these seats in various subjects will be made only if the outside candidates of (a) & (b) categories come in the common merit list prepared for local and outside candidates. The candidates so selected will be given registration as per availability of registration in various subjects. There will be no guarantee of recommending registration in a particular speciality.

(d) The availability of post graduate seats will be worked out every seats in the beginning of the academic year. After deducting seats given to categories (a), (b) & (c), the remaining seats will be available to the institutional candidates of open and Backward Class categories 70% of these remaining seats will be released for the registration for the January term and 30% seats will be released for the July term.

(e) 34% of the total seats available for registration in a year will be reserved for Backward Classes in the prescribed proportion. This includes the students getting registration under Backward Class categories under sub-rule (a), (b), (c), and (d).

(f) In the event of seats for registration remaining vacant from (a), (b) and (c) categories the vacant seats will be filled in by the institutional candidates.'

(C.R. No. MCN 1082 - 1312/MED-7 dt. 20-8-1983)

'Rule 5 : Selection of the students amongst those who have applied for admission to the post graduate degree or diploma will be on the basis of the marks obtained in the subject at University Examination modified with specified-deduction for the number of attempts taken to pass that subject as well as the final M.B.B.S. Examination.

(a) While selecting from amongst eligible candidates preference will be given to the students of that college i.e. who passed their final M.B.B.S. Examination from that College in Board specialities and their ancillary discipline. In all super specialities candidates belonging to the institution wherein such courses are available will be given registration upto the limit of 50% of the total seats available in Super specialities 50% seats will be allotted to the candidates who qualify from the other Government Medical Colleges in the State of Maharashtra.

If there is only one seat in one particular super speciality when the allotment of seats will be made in alternate years between institutional and other Government Medical College candidates. The same procedure will be followed wherein the more than 2 seats are available but are available in odd numbers. In these cases that last odd number will have rotation as has been prescribed for one seat.

Board specialities for the purposes of these rules are medicine, Surgery, Obstetrics and Gynaecology and Paediatric, Super specialities will be Neurology, Cardiology, Neuro-Surgery, Plastic Surgery, Thoresis Survey etc., while Psychiatry, Ophthalmology, Orthopaedic, E.N.T., T.B., Radiology, Anaesthesia, Skin and V.D. shall be ancillary broad specialities. When further super specialities or broad specialities develop, the staff committee will notify the category to which new development is assigned.

(b) 15% of the total seats in Post-Graduate degree and 25% of the total seats for post-graduate diploma registration available in a year will be reserved for in service personnel such as MM & HS and teaching staff in Medical Colleges. Out of those 70% seats will be reserved by the Dean at the time of registration for January term and 50% for July term vacant seats will be diverted to institutional candidates. The teaching staff will be eligible for registration in the same subject in which they are holding the post.

(c) The availability of post-graduate seats will be worked out every year in the beginning of the academic year. After deduction seats for categories mentioned in (b), the remaining seats will be available to the institutional candidates of open and Backward Class categories. 70% of these remaining seats will be released for the registration for the January term and 30% seats will be released for July term.

(d) 34% of the total seats available for registration in a year will be reserved for Backward Classes in the prescribed proportion. This includes the candidates getting registration under Backward Class category under sub-rules (a) & (b).

(e) In the event of seats for registration remaining vacant from (b) category the vacant seats will be filled in by the institutional candidates.'

10-A Perusal of the present Rule 5 framed under the G.R. dated 20-8-1983 would show that the Clauses (a) and (b) of the G.R. dated 30-7-1982 relating to the reservation for outside candidates i.e. the candidates who passed their M.B.B.S. examination from the Medical College which were not affiliated to the University to which the college giving admissions was affiliated and the reservation made for the candidate who passed the examination from the other colleges affiliated to same University to which the college giving admission was affiliated were deleted and the remaining clauses of Rule 5 under the G.R. dated 30-7-1982 with suitable modifications were retained therein. It is clear from the present Rule 5 that the reservation therein was made for the in-service personnel under Clause (b) and all the remaining seats were made available to the institutional candidates under Clause (c). If any candidate belonging to the in-service personnel was not available, the seat was diverted to the quota of the institutional candidates. It is in this setting of the present Rule 5, that we are called upon to interpret the same.

11. Turning now to the submission made on behalf of the petitioners, it is necessary to see that strong emphasis is laid on their behalf upon the use to the world 'preference' in Clause (a) of the present Rule 5 i.e. the Rule 5 framed under the G.R. dated 20-8-1983 to construe the said clause to mean that if other things are equal, then the preference should be given to the candidates belonging to the same institution of the college giving admissions. In other words, the submission is that if the outside candidates are more meritorious on the basis of the criteria of selection laid down under the rules for admission as compared to the institutional candidates, then the preference cannot be given to the institutional candidates for admission to the post-graduate courses but the outside candidates who are more meritorious are entitled to get the admissions. In support of the above submission, heavy reliance is placed on behalf of the petitioners upon the judgment of this Court in the case of Abhay Darshane's case, cited supra.

12. A perusal of the judgment of this Court in Abhay Darshane's case would show that the argument in that case that the admissions in question in the said case would be governed by the Rules framed under the Government Resolution dated 30-7-1982, was rejected by this Court and it was held that since the admissions in the said case were prior to the said G.R. dated 30-7-1982, they would be governed by the rules framed under the original G.R. dated 18-6-1971. It is thus clear that in Abhay Darshane's case, this Court was called upon to interpret the original Rule 5 as it existed in the G.R. dated 18-6-1971. In interpreting the said rule, when the judgment of the Full Bench of this Court in the case of Dean G.S. Medical College and another, cited supra, was pressed into service, the Division Bench held that the decision in the said Full Bench case was no more a good law in view of the decision of the Supreme Court in the case of Pradeep Jain v. Union of India : (1984)IILLJ481SC in which it was held that the wholesale reservation in admission in favour of the institutional candidates was violative of Article 14 of the Constitution of India. Having held that the decision of the Full Bench was no more a good law, this Court proceeded to interpret the original Rule 5 independently of the aforesaid judgment of the Full Bench. It held that the word (preference) used therein for giving admission to the institutional candidates indicated that it was only when the merit of the competing candidates was equal that the preference could be given to the institutional candidates. It is this interpretation of Rule 5, which is relied upon on behalf of the petitioners.

13. It may be stated that the petitioners have relied upon some subsequent decisions of this Court also to which we shall later on advert and which according to them, have followed the judgment in Abhay Darshane's case. In particular they rely strongly upon the decision in the case of Rupkumar v. State 1986 Mh.L.J. 229. They have further sought to reinforce their submission by relying upon the meaning of the word 'preference' given by the Supreme Court to the said word used in section 47(1)(H) of the Motor Vehicles Act in the case of Sher Singh v. Union of India and others, : [1984]1SCR464 .

14. In examining the above submission on behalf of the petitioners, it must be seen that the present rule as framed under the G.R. dated 20-8-1983 is not the same as it existed in the original G.R. dated 18-6-1971. The decision of this Court in Abhay Darshane's case cannot, therefore, in terms be made applicable in construing the present Rule 5. It has been said long time ago that a case is only an authority for what it actually decides, and not for what logically follows from it. (Please see Lord Halsbury's judgment in Quinn v. Leathem (1901) A.C. 495. The actual observations of Lord Halsbury in the above case in this regard at page 509 reproduced below are worth noticing:

'The other is that a case is only an authority for what it actually decides. I entirely deny that it can be quoted for a proposition that may seem to follow logically from it. Such a mode of reasoning assumes that the law is necessarily a logical code, whereas every lawyer must acknowledge that the law is not always logical at all.'

15. The scheme of the present Rule 5 shows that although the language used in Clause (a) thereof is the same as in the original Rule 5 under the G.R. dated 18-6-1971, there are Clauses (b), (c), (d) and (e) introduced in the present Rule 5 which deal with the distribution of the total seats available for registration in the post graduate courses in the college giving admissions. It is, therefore, necessary to consider the effect of these Clauses (b), (c), (d) and (e) of the present Rule 5 in interpreting its Clauses (a) and in particular in ascertaining the meaning of the word 'preference' used therein.

16. It is a cardinal rule of interpretation of statute that a statute should be read as a whole in interpreting it or a part of it. Viscount Simonds described the following as an elementary rule :---

'No one should profess to understand any part of a statute or of any other document before he has read the whole of it. Until he has done so, he is not entitled to say that it, or any part of it is clear and unambiguous.'

Please See Attorney-General v. H.R.H. Prince Ernest Augustus of Ranover (1957)1 All.E.R. 49. It is also necessary to refer to the rule of harmonious construction which has bearing in construing the present Rule 5 in the instant case. The Supreme Court has described the rule of Harmonious construction in the following words in the case of Union of India v. Sankalchand, : [1978]1SCR423 :---

'But if the words of an instrument are ambiguous in the sense that they can reasonably bear more than one meaning that is to say, if the words are semantically ambiguous, or if a provision is patently incompatible with the other provisions of that instrument the Court would be justified in construing the words in a manner which will make the particular provision purposeful. That, in essence is the rule of harmonious construction' (Underlining ours).

17. Another principle of interpretation which needs to be noticed is that it is not possible to decide whether certain words used in the statute are plain or ambiguous unless they are studied in their context and construed. This is what Pearson, J., said in an American case :---

'It would obviously be impossible to decide that the language is 'plain' (more accurately that a particular meaning seems plain) without first construing it.

It...(Interpretation) involves for more than picking out dictionary definitions of words or expressions used. Consideration of the context and the setting is indispensable properly to ascertain a meaning. In saying that a verbal expression is plain or unambiguous, we mean little more than that we are convinced that virtually any one competent to understand it, and desiring fairly and impartially to ascertain its signification, would attribute to the expression in its context a meaning such as the one we derive rather than any other, and would consider any, different meaning by comparison, strained, or farfetched, or unusual, or unlikely... Implicit in the finding of a plain, clear meaning of an expression in its context, is a fidding that such meaning is rational and 'makes sense' in that context.' Hutton v. Phillips 45 Del. 156 .

18. Last but not the least important is the rule of interpretation that a statute should be interpreted according to the intent of them that make it and that must be gathered from the words actually used in the statute (Pl. see also (1975)1 All.E.R. 16 Maunsell v. Olins and another, page 19. The Supreme Court has referred to the above rule of interpretation in para 6 of its judgment in the case of R.N.D. Chamarbaugwalla and another v. Union of India and another, : [1957]1SCR930 in the following words :

'Now, when a question arises as to the interpretation to be put on an enactment, what the Court has to do is to ascertain 'the intent of them that make it.', and that must of course be gathered from the words actually used in the statute. That, however, does not mean that the decision should rest on a literal interpretation of the words used in disregard of all other materials' . The literal construction then', says Maxwell on Interpretation of Statutes, 10th Edn., p. 19. 'has, in general, but prima facie preference. To arrive at the real meaning, it is always necessary to get an exact conception of the aim, scope and object of the whole Act; to consider, according to Lord Coke : (1). What was the law before the Act was passed (2). What was the mischief or defect for which the law had not provided; (3) What remedy Parliament has appointed; and (4). The reason of the remedy'. The preference here is to Heydon's case (1584)3 CO REP 7 : 73 ER 637 .'

19. It is thus the duty of the Courts to act upon the true intention of the Legislature. It is held by the Supreme Court in the case of South Asia Industries Pvt. Ltd. v. Sarup Singh, : [1965]3SCR829 that an interpretation defeating the object of the statute is not permissible. If the statutory provision is open to more than one interpretation the Court has to choose that interpretation which represents the true intention of the Legislature. In gathering the intention of the Legislature, it is well settled that the intention has to be gathered from the words used in the statute and not from what the Government professes about it. : [1986]1SCR697 Kumari Suneeta Ramchandra v. State of Maharashtra. It is also clear from the above decision of the Supreme Court that in finding out and giving effect to the real meaning of the statute, the context and the background in which it is enacted can be seen.

19-A In the latest decision of the Supreme Court in Reserve Bank of India v. Peerless General Finance and Investment Co. Ltd. and others. Civil Appeals Nos. 3562 and 3563 of 1986 and 3564 , 3465, 3566, and 4459 of 1986 decided on January 22, 1987, the Supreme Court has pithily referred to the above principles of interpretation in these words :

'33. Interpretation must depend on the text and the context. They are the bases of interpretation. One may well say if the text is the texture, context is what gives the colour. Neither can be ignored. Both are important. That interpretation is best which makes the textual interpretation match the contextual. A statute is best interpreted when we know why it was enacted. With this knowledge, the statute must be read, first as a whole and then section by section, clause, by clause, phrase by phrase and word by word. If a statute is looked at, in the context of its enactment, with the glasses of the statute-maker, provided by such context, its scheme, the sections, clauses, phrases and words may take colour and appear different than when the statute is looked at without the glasses provided by the context. With these glasses we must look at the Act as a whole and discover what each section, each clauses, each phrase and each word is meant and designed to say as to tit into the scheme of the entire Act. No part of a statute and no word of a statute can be construed in isolation. Statutes have to be construed so that every word has a place and everything is in its place.'

20. It is by bearing the above principles of construction in mind that we have to approach the crucial question of construction of Clause (a) of the present Rule 5 substituted by the G.R. dated 20-8-1983. It may be seen that Clause (a) of the present Rule 5 deals with the question of giving preference to the eligible institutional candidates in admissions to the post-graduate courses. As regards the broad specialities and their ancillary disciplines, it is provided in Clause (a) of the present Rule 5 that while selecting from the eligible candidates, preference would be given to the institutional candidates and as regards the super specialities, it is provided therein that admissions would be given to the institutional candidates to the extent of 50% of the available seats in the super specialities and the remaining 50% of the seats would be allotted to the candidates who qualify from the other Government Medical Colleges in the State of Maharashtra. However, what is in question in these writ petitions is the rule of institutional preference in regard to admissions in broad specialities and their ancillary disciplines. As already pointed out, laying emphasis upon the word 'preference' and relying upon its interpretation in Abhay Darshane's case, it is the submission on behalf of the petitioners that the rule of institutional preference incorporated in Clause (a) of the present Rule 5 operates only when the merit of the out side as well as the institutional candidate is equal. It has, therefore, to be seen whether the above interpretation canvassed on behalf of the petitioners is in consonance with or is justified by the scheme of the present Rule 5 submitted by the G.R. dated 20-8-1983.

21. It is thus necessary to understand the scheme of the whole of the present Rule 5 for a proper understanding of its aforesaid relevant provision in Clause (a). It is clear that under Clause (b) of the present Rule 5 certain seats are reserved for the in-service personal and under Clause (c) thereof, all the remaining seats are made available for the institutional candidates. Clause (d) provides for reservation of seats for backward classes under Clauses (b) and (c) both. It is pertinent to see that if any in service candidate is not available, the vacant seat has to be filled in by an institutional candidate as provided in Clause (e). If the word 'preference' used in Clause (a) is construed as per the decision in Abhay Darshane's case to mean that if the merit is equal then only the preference should be given to the institutional candidates. As compared to an outside candidate, then full affect cannot be given to the requirement of Clause (c) that all the seats after deducting the seats reserved for in service personnel as per Clause (b) should be made available to the institutional candidates. It is, therefore, necessary to see whether any other meaning can be given to the relevant provision in Clause (a) dealing with the question of admissions in the board specialities and their ancillary disciplines.

22. A close perusal of the relevant provision in Clause (a) of the present Rule 5 dealing with the board specialities and their ancillary disciplines shows that the preference is given to the institutional candidates from amongst the eligible candidates and not from amongst the candidates whose merit is equal, the words used being 'while selecting candidates from amongst eligible candidates preference will be given to the students of that college.....' The expression 'eligible candidates' in our view would mean all those candidates, whether institutional or outside, who satisfy the eligibility criteria for admission for post graduate courses. The eligibility criteria laid down under Rule 1 is that a candidate should have passed the M.B.B.S. examination of a recognised University and that he should have registered himself as a registered medical practitioner under the Maharashtra Medical Council Act. The only other eligibility criteria laid down is under Rule 9 which requires the completion of the resident's job if so prescribed by the University. If these eligibility criteria are satisfied, then only a candidate is entitled to apply for admission to the post-graduate courses.

23. It is at this stage that in our view, Clauses (b), (c), and (d) of the present Rule 5 would operate so as to classify the candidates in various categories of in service, institutional and Backward Class candidates as provided therein. It is then that the criteria of selection viz. of higher marks in the subject of registration as evolved in Rule 5 read with Rule 8 would apply to the candidates in the same class for selecting them in their categories (b), (c) and (d). If any candidate belonging to the category in Clause (b) viz. of in service personnel is not available, the vacant seat has to be filled in by the institutional candidate as provided in Clause (e). It is clear from the scheme of Clauses (b), (c), (d) and (e) that except for the reservation made in favour of the in service personnel and the Backward Classes the rule for admission is heavily weighted in favour of the institutional candidates. As such, it is clear from the scheme of aforesaid clauses of the present Rule 5 that it is only when the institutional candidates are not available that the outside candidates can have the chance of the seats being available for them.

24. Much stress is laid on behalf of the petitioners upon the use of the word 'available' in Clause (c) of the present Rule 5 to urge that there is no reservation as such made therein in favour of the Institutional candidates. The submission is that even though the seats are available for the institutional candidates, if there are non institutional candidates who are more-meritorious, preference should be given to them in the seats made available for the institutional candidates, In our view, Clause (c) of the present Rule 5 has to be read in the context of Clause (b) under which 15% of the total seats are reserved for the in service personnel. The word used therein is 'reserved'. It is in the context of the said reservation for the in-service personnel that it is provided in Clause (c) that all the remaining seats would be available for the institutional candidates which would mean that so long as the institutional candidates are available, the seats would be given to them if they are otherwise eligible under the rules.

25. The ordinary meaning of the word 'available' given in Bouvier's Law Dictionary is capable of being used, valid or advantageous. In addition to the above meaning its meaning also is attainable or accessible as given in the New Webster's Dictionary. The various meanings given is the Stroud's Dictionary, Vol. 1 (Fourth Edn.) of the said expression occurring in different contexts would show that the said expression is capable of taking a meaning which is appropriate in the context in which it occurs. For instance, in section 192 of the Bankruptcy Act, 1861, applicable in England, the expression was 'no process be available against the debtor'. The word 'available' used therein was interpreted to mean either' put in force 'or' shall not have, and shall cease to have, effect against the debtor, per Hollroyd C. (Re Channdy) 5 L.T.J. 26; Marks v. Hall. L.R.2 Q.B. 31Looking, therefore, to the context in which the word 'available' is used in Clause (c) of the present Rule 5, it would mean that after deducting the seats mentioned in Clause (b), the remaining seats would be reserved or are meant for accommodating the institutional candidates. It is in this sense that the word 'available' is used in Dr. Pradeep Jain's case : (1984)IILLJ481SC while laying down the ratio for admission upon the principle of institutional preference and the principle of merit on all India basis and also in Dr. Dinesh Kumar's case A.I.R. 1986 S.C. 1877 while modifying the said rate.

25-A In our view, therefore, Clause (c) of the present Rule 5 would mean that so long as the institutional candidates who satisfy the eligibility criteria under the rules are available the seats would be allotted to them. It is only in the event of the non-availability of the Institutional candidates that the claims of the non-institutional candidates can be considered for admission. The interpretation sought to be put on behalf of the petitioners upon Clause (c) of the present Rule 5, therefore, cannot be accepted.

26. It is in the context of the scheme of the Clauses (b), (c), (d) and (e), more particularly Clause (c), that the relevant provision of Clause (a) in the present Rule 5 needs to be construed. The crucial word to be construed in regard to the selection from the eligible candidates in Broad specialities and their ancillary disciplines is the word 'preference' used in Clause (a) of the present Rule 5. In the case of Sher Singh v. Union of India : [1984]1SCR464 , relied upon on behalf of the petitioners, the Supreme Court had an occasion to consider the meaning of the word 'preference' while interpreting section 47(1)(H) of the Motor Vehicles Act in which it was used. In para 6 of the judgment, the Supreme Court has referred to the ordinary meaning of the word 'preference' which according to it, amongst other things means prior right, advantage, precedence etc. However, in examining the question how it would be possible to give precedence to one over the other, the Supreme Court held that the said word signifies that other things being equal one will have preference over others. After considering the provisions of the Motor Vehicles Act and in particular the requirement of Clauses (a) to (f) of section 47(1) of the said Act, the Supreme Court held that other things being equal qualitatively and quantitatively equal though not with mathematical accuracy the application of the State Transport undertaking should be given preference over the applications of the other private operators. In one ruling the word 'preference' in Miller (1893)1 Q.B. 327 Ester N.R. observed :

'That is an English idiom. When a man says that he will do one thing in preference to another, according to English idiom, the two things referred to are of the same kind.'

It is thus clear that in giving meaning to the word 'preference' the test of 'other things being equal' has to be applied.

27. The question which then arises is how the test of the 'other things being equal' should be made applicable in the instant case. According to the petitioners, relying upon Abhay Darshane's case the test should be that if the merit of the institutional and outside candidates is equal then the preference should be given to the institutional candidates. The above test, however, as shown by us earlier, does not give full effect to the requirement of Clause (c) of the present Rule 5, which provides that after deducing seats reserved for in-service personnel in Clause (b), all the remaining seats would be available for institutional candidates. The other test of the 'other things being equal' would be that if the candidates satisfied the eligibility criteria, as point out by us in para 22 above, preference from amongst them should be given to the institutional candidates. In the instant case, the above test is incorporated in Clause (a) itself when it uses the expression 'in selecting from amongst the eligible candidates' preference be given to the students of that college'. In our view, the above construction of Clause (a) would be an harmonious construction which would be in consonance with and give full effect to the intention and the requirement of Clause (c) that all the seats after deducting the seats reserved for the in service personnel should be made available for the institutional candidates.

28. There is an intrinsic evidence in Clause (a) of the present Rule 5 itself which would indicate that what is intended by Clause (a) of the present Rule 5 is to make total reservation for the institutional candidates so far as the broad specialities and their ancillary disciplines are concerned. It may be seen that in the present Rule 5 in the case of Super specialities, there is made a reservation of 50% for the institutional candidates and 50% seats are allotted to the candidates who qualify from the other Medical Colleges in the State of Maharashtra. Normally it would be expected that in the Super specialities there would be no reservation or if there is any reservation, it would be less than that provided for Broad specialities. However, if the construction canvassed on behalf of the petitioners were to be given effect to, then in the case of Broad specialities, there may be infiltration of more outside candidates than in the case of Super specialities where outsiders are restricted to 50% only. It cannot be said that such an anomalous effect is intended or contemplated under the present Rule 5(a).

29. It is, therefore, obvious that what is intended by the present Rule 5(a) is to make total reservation in favour of the institutional candidates in Board specialities and their ancillary disciplines and in Super specialities reservation for them is to the extent of 50% only. Even in regard to the Super specialities. It is pertinent to see that the remaining 50% seats are available for those candidates who pass the qualifying examination from other Medical Colleges in the State of Maharashtra and not the candidates outside the State. It is thus clear that under the present Rule 5, it is not intended to give admissions in broad Specialities and their ancillary disciplines to the outside candidates unless and until the eligible institutional candidates are all exhausted and the posts still remain vacant after admitting all such eligible institutional candidates.

30. The above construction of the relevant part of Clause (a) also gives effect to the intention of the rule framing authority as is clear from the genesis and the back ground after the setting in which the present Rule 5 is framed. It may be seen that Dr. Satish B. Deopujari's case cited supra, this Court struck down the original Rule 5 framed under the G.R. dated 18-6-1971, as violative of Article 14 of the Constitution on construing it as a rule providing for the wholesale reservation in favour of the Institutional candidates. In the Full Bench case cited supra, this Court also gave a similar meaning to the original Rule 5 but over-ruled the judgment in Dr. Satish B. Deopujari's case upon its view that the wholesale reservation in favour of the institutional candidates was permissible and was not violative of Article 14 of the Constitution.

31. It is worthwhile to notice that it is in view of the judgment at the Division Bench of this Court in Dr. Satish B. Deopujari's case that the original Rule 5 was substituted by the Government by a new Rule 5 under its G.R. dated 30-7-1982. The scheme of the said Rule 5 under the G.R. dated 30-7-1982 (reproduced above in para 10) would show that in order to provide for a valid rule not containing the vice of discrimination as pointed out in Dr. Satish B. Deopujari's case, separate reservations in admissions were provided thereunder for outside candidates belonging to the Medical colleges situated outside the jurisdiction of the University to which the college giving admission was affiliated, the candidate belonging to the other Medical Colleges affiliated to the same University to which the College institutions giving admission was affiliated, the in-service personnel and the institutional candidates and also for the Backward Classes in all the above categories. However, immediately after the decision of the Full Bench, cited supra, which over-ruled the decision in Dr. Satish B. Deopujari's case, the State Government again substituted the then existing Rule 5 under the G.R. dated 30-7-1982 by the present Rule 5 framed under the G.R. dated 20-8-1983. In replacing the Rule 5 under the G.R. dated 30-7-1982 by the present Rule 5, the purpose is clear that the State Government intends to give admissions to the institutional candidates only if they are otherwise eligible as per rules. It may be seen that the same scheme as under Rule 5 of the G.R. dated 30-7-1982 is retained in the present Rule 5 under the G.R. dated 20-8-1983, except that Clause (a) and Clause (b) of Rule 5 under the G.R. dated 30-7-1982 dealing with the reservation of seats for the outside candidates belonging to the medical colleges situated outside the jurisdiction of the University to which the college giving admission is affiliated and the candidates belonging to the other colleges affiliated to the same university to which the college giving admission is affiliated are omitted.

32. It is thus clear from the above background and the setting of the present Rule 5 that, save for the reservation made for the in-service personnel in Clause (b) and for the Backward Classes in Clause (d) thereof, its intention is to make the wholesale reservation in favour of the eligible institutional candidates so long as they are available. It may be that in the absence of Clauses (b) and (c) of the present Rule 5 the original Rule 5 under the G.R. dated 18-6-1971 was susceptible of a different construction as given in Abhay Darshane's case supra although it would appear that in Dr. Satish B. Deopujaris case as well as in the Full Bench case, the same rule was construed as a rule making wholesale reservation in favour of the institutional candidates. However, with the clear provisions in Clauses (b) and (c) of the present Rule 5, the present Clause (a) although similarly worded as the original Rule 5 under, G.R. dated 18-6-1971 has to be construed to mean that it is intended to give preference to the institutional candidates if they are eligible under the rules although there may be more meritorious non-institutional candidates. It is only when the institutional candidates are not available that the cases of non-institutional candidates for admission can be considered. The construction of Clause (a) of the present Rule 5 canvassed on behalf of the petitioners on the basis of Abhay Darshane's case, therefore, cannot be accepted.

33. Apart from the decision in Abhay Darshane's cited supra the learned Counsel for the petitioners have relied upon some subsequent decisions of this Court in support of their construction of the expression 'preference' occurring in Clause (a) of the present Rule 5. The decision of the Division Bench (Qazi and Khatri, JJ.) of this Court in the Writ Petition No. 274 of 1985 Dr. Jyoti Prasad Sharma v. State, rendered on 4-4-1985 which is a very short judgment, relies upon the decision of the Supreme Court in Dr. Pradeep Jain case, : (1984)IILLJ481SC for its view which would mean that the rule under consideration before them for admission to the post graduate courses was considered as void by them presumably on the ground that it provided for the wholesale reservation for the institutional candidate. The above decision, if at all, is against the petitioners. At any rate, it does not show that it has construed the word 'preference'. It is, therefore, of no assistance to the petitioners. Another decision of the Division Bench (Mohta & Deo, JJ.) of this Court in Writ Petition No. 1719 of 1985, rendered on 16-9-1985 in Deepak Sharma v. State, also does not consider the effect of the provisions like Clauses (b), (c) and (e) of the present Rule 5 but has merely followed the above decision of this Court and the decision of the Supreme Court is Dr. Pradeep Jain's case besides the decision of this Court in Abhay Darshane's case. Hence the above decision is also of no assistance to the petitioners. The next is the decision of the learned Single Judge of this Court in the case of Rupkumar v. State of Maharashtra 1986 Mh.L.J. 229 upon which heavy reliance is placed by the petitioners. The question in the said case was about the appointment to the post of the Registrar in Neurology i.e. a super speciality and the rule in question was rule V. It may be seen that the said rule (v) provides for a reference rule which is analogous to the original Rule 5 under the G.R. dated 18-6-1971 and not to the present Rule 5 relating to the admissions to the post-graduate courses. The said decision, therefore, is of no assistance to the petitioners in construing the present Rule 5.

33-A. There is one more point which is pressed before us on behalf of the petitioners in support of their construction of the present Rule 5. The submission is that for making the present admissions in July 1986 to the post-graduate courses as per the present Rule 5 the Government had issued the G.R. dated 4-7-1986 in which it had itself construed the present Rule 5 in the manner in which the original Rule 5 was interpreted in the decision of this High Court in Abhay Darshane's case and, therefore, we should also construe the present Rule 5 in the same manner. The learned Government Pleader for the State has, however, brought to our notice the subsequent G.R. dated 16-7-1986 by which the implementation of the above G.R. dated 4-7-1986 is stayed. Be that as it may, according to us, as per the well settled rule of interpretation, the construction of the present Rule 5 would not depend upon what the Government says about it but upon what it really is. Moreover, it appears that in issuing the G.R. dated 4-7-1986, the Government may be perhaps under the impression that the decision in Abhay Darshane's case is binding upon it in making admissions under the present Rule 5 also. However, as held by us the interpretation placed by this Court in Abhay Darshane's case upon the old Rule 5 as it was under the G.R. dated 18-6-1971 would not be applicable to the present Rule 5 as it is not in pari materia with the aforesaid old Rule 5. The above contention on behalf of the petitioners, therefore, deserves to be rejected.

34. It is then urged by the learned Counsel Shri S.V. Manohar, Advocate, appearing for some of the petitioners, that the present Rule 5 of the rules for admission to the post-graduate courses framed by the State Government in its executive power under Article 162 of the Constitution is violative of the Statutory regulations framed with the approval of the Central Government by the Indian Medical Council under the provisions of the Indian Medical Council Act, 1956, because under the said Regulations, the admissions to the post graduate courses have to be solely on the basis of the criteria of merit. In support of the submission that the criteria is solely of merit, he has drawn our attention to para 5 under the head 'General' and para (a) under the head 'criteria for the selection of candidates' of the recommendations of the Medical Council of Indian on post-graduate Medical Education approved as 'Regulations' under section 33 of the aforesaid Act by the Central Government. His contention thus is that the statutory regulations under section MOTOR V of the aforesaid Act must prevail over the present Rule 5 framed in its executive power by the State Government and the admissions must be made solely on the basis of the criteria of merit.

35. In order to appreciate the above contention, it may be seen that the Indian Medical Council Act, 1956 is passed by the Parliament by virtue of the legislative Entry No. 66 of the Union list in the Seventh Schedule of the Constitution, which is an exclusive List of the Parliament. The said Entry is as follows :

'Co-ordination and determination of standards in institutions for higher education or research and scientific and technical institutions.'

As regards the legislative power of the State Legislature in relation to the Medical Education, the said power exercised by it by virtue of the Entry No. 25 in the Concurrent List which is as follows:

'Education, including technical education, medical education and universities, subject to the provisions of entries 63, 64, 65 and 66 of List I, vocational and technical training of labour.'

It cannot be disputed that the State Government was executive power to frame rules in regard to the subject covered by the legislative Entry No. 25 of the Concurrent List as provided in Article 162 of the Constitution.

36. The Supreme Court has considered the relative scope of the aforesaid legislative entries in the case of State of M.P. and another v. Kumari Nivedita Jain, : [1982]1SCR759 . In fact, an identical contention based upon Regulation II of the Regulations framed by the Medical Council with the approval of the Central Government in regard to the selection of students for admissions to the M.B.B.S. degree providing solely the criteria of merit for such selection was raised in the aforesaid case before the Supreme Court. It is clear from the facts in the above decision of the Supreme Court that the State Government in its rules for admission to the medical colleges had relaxed the condition relating to the minimum qualifying marks in the pre-medical examination for selection of students to the medical colleges of the State in respect of the candidates belonging to the Scheduled Caste and the Scheduled Tribe categories, which provision was challenged as being violative of the aforesaid Regulation II.

37. After considering the relative scope of the aforesaid legislative entries, the Supreme Court held in para 21 of the judgment that the Entry No. 66 in List I, i.e. the Union List, in the Seventh Schedule to the Constitution by itself does not have any bearing on the question of selection of candidates to the Medical Colleges from amongst the candidates who are eligible for such admission as the said entry relates to 'co-ordination and determination of standard in institution for higher education or research and scientific and technical institutions.' On the other hand according to it, Entry 25 in List II (Concurrent List) of the same Schedule, which relates to education, including the technical education, medical education in Universities is wide enough to include within its ambit the question of selection of candidates to the medical colleges and there is nothing in the 63, 64, 65 and 66 of List to suggest to the contrary. The Supreme Court has made a distinction between the basic eligibility criteria and the process of selection in paras 18 to 20 of the said judgment. It is held therein that Regulation I, which lays down the basic eligibility criteria for admission to the M.B.B.S. courses is mandatory and it in the realm of maintaining standard in the medical colleges, whereas Regulation II relating to selection of candidates for admission to the M.B.B.S. degree course is not. It also held that Regulation II lays down merely the guidelines for selection of candidates and is, therefore, directory. According to the Supreme Court even the language of Regulation II beginning with the words' selection of students in a medical college should be based solely on merit.' It shows that it is directory. It held that the use of the words 'should be' in Regulation II is deliberate and is intended to indicate the intention of the medical Council that it is only in the nature of a recommendation.

38. The above judgment of the Supreme Court squarely covers the contention raised in these writ petitions because in the regulations about the post-graduation medical education referred to above, the language used therein is identical with the Regulation II framed for admission to the M.B.B.S. course. As held by the Supreme Court in the above judgment the regulations for selection of candidates for post-graduate courses referred to above would be directory and in the nature of a recommendation by the Medical Council. It is also clear that the State Government has power to frame rules in its executive power in relation to the question of selection of candidates for making admissions to the post graduate courses as the said subject is covered by Entry 25 of the Concurrent list and not by Entry 66 of the Union List which is an exclusive list of the Parliament. The above contention raised on behalf of the petitioners based upon the above regulations framed under the Indian Medical Council Act, 1956, by the Medical Council with the approval of the Central Government, therefore, cannot be accepted.

39. It is then urged on behalf of the petitioners that if it is held that under the present Rule 5 there is a who resale reservation for institutional candidates the said rule is violative of Article 14 of the Constitution of India in view of the decision of the Supreme Court in the case of Dr. Pradeep Jain v. Union of India : (1984)IILLJ481SC . It is true that once it is held that the present Rule 5 provides for the wholesale reservation in favour of the institutional candidates, it would be governed by the ratio of the decision in Dr. Pradeep Jain's case. The question, therefore, is what the ratio of the decision of the Supreme Court is in Dr. Pradeep Jain's case. Without going into the details at this stage, it may be stated that having held that the rule of institutional preference infringes Article 14 and is thus void, the Supreme Court itself laid down the principle for admission to the post graduate courses in the said judgment. The principle laid down is that the admission to the institutional candidates to the post graduate courses such as M.S., M.D.. etc. should not exceed 50% of the total number of open seats available for admission to the post-graduate courses in the broad specialities and ancillary disciplines and that all the remaining seats should be filled in on merit on all India basis. It is also directed by the Supreme Court that the above reservation for institutional candidates would not apply to the Super specialities in which the admission would be purely on merit on all India basis.

39-A. It is, however made clear that in the instant cases we are not concerned with admissions in post graduate courses in broad specialities and their ancillary disciplines and not in super specialities. It is made clear by the Supreme Court in the above judgment in Dr. Pradeep Jain's case that the principle laid down by it therein for admissions in post-graduate courses in broad specialities and their ancillary disciplines would be binding upon the Union of India, the Medical Council and all the State Governments, because it was laid down after noticing all of them, including the State of Maharashtra and also because the Supreme Court laid down the law for the entire country in the above judgment. The State of Maharashtra must therefore, fall in line with the States concerned in the above judgment and is, therefore, bound to follow and make the admissions to the post-graduate courses in its medical colleges in accordance with the above judgment.

40. It is, however, urged by the learned advocates Shri V.G. Palshikar, appearing for some of the petitioner that the whole of the present Rule 5 would not be bad and on applying the test of severability by severing invalid parts, the valid parts of the said rule can be given effect to. According to him, Clauses (a), (c) and (e) of the present Rule 5 would be bad as violative of Article 14 but the main provisions of Rule 5 viz. that the selection should be made for admission to the post graduate courses on the basis of the marks obtained in the subject concerned in the University---examination as modified by the specified deduction as provided for in Rule 8 would continue to be operative. The submission therefore, is that by giving effect to the valid part of Rule 5 admissions should be given on the basis of criteria of merit only. In support of the above contention, reliance is placed by him upon the decision of the Supreme Court in the case of D.S. Nakara and others v. Union of India, : (1983)ILLJ104SC .

41. In appreciating the above contention, it may be seen that without the application of test of severability, if the rule of wholesale reservation in favour of institutional candidates is struck down the admissions would have been required to be made on the basis of the sole test of merit on all India basis. However, there are certain hurdles in giving effect to the above submission. The first hurdle in the way of the above submission is the decision of the Supreme Court in Dr. Pradeep Jain's case itself. The Supreme Court has not only held in the said case that the rule of wholesale institution preference is void but has further laid down the principle of the ratio in which the admission should be made to post-graduate courses on the basis of the institutional preference and on the basis of the open merit on all India basis. The principle laid down by the Supreme Court in Dr. Pradeep Jain's case is binding upon all the States as is specifically made clear in para 24 of the said judgment in which it is also stated that it has laid down the law for the entire country. The question of open merit, therefore, in view of the above decision of the Supreme Court has to be considered in regard to the seats reserved for being filled by merit on all India basis. It is not, therefore, open to us to permit cent per cent admissions solely on the basis of merit on all India basis as urged on behalf of the petitioners.

41-A. The second hurdle in the way of the above submission on behalf of the petitioners is that in view of the subsequent decision of the Supreme Court in the case of Dr. Dinesh Kumar v. Motilal Nehru Medical College, : AIR1985SC1059 no admissions can be allowed to be made in the quota for open merit on the basis of the marks obtained at different M.B.B.S. examinations held by different Universities as doing so in the absence of any comparable standards such as common all India entrance examination would be wholly unjust and would violate the equality clause under Article 14 of the Constitution (see para 6 of the judgment). In fact, the admissions made in that case on the basis of the marks obtained in different M.B.B.S. examinations held by different Universities were held invalid (see para 10 of the judgment) although they were not actually struck down for the reasons mentioned in para 11 of the said judgment in that case. It is not, therefore, possible for us to accept the above submission on behalf of the petitioners based upon the test of severability of the provisions of the present Rule 5.

42. Having thus held that the admissions to the post graduate courses in our State are governed by the principle laid down by the Supreme Court in Dr. Pradeep Jain's case, the question that now arises, for consideration is as to how we can give effect to the said decision in the instant case. It may be seen that in the Supreme Court, the controversy as regards the admission in Medical Colleges did not come to an end with its decision in Dr. Pradeep Jain's case. The Union Government, the Medical Council and the State Governments experienced difficulties in giving effect to the decision of the Supreme Court in the said case. Some students also felt that there would be injustice to them if effect is given to the said judgment. There are, therefore, off-shoots of the judgement of the Supreme Court in Dr. Pradeep Jain's case, which need close scrutiny for a proper decision in the instant cases. However, for proper appreciation of the difficulties considered in the subsequent judgments of the Supreme Court, it would be first necessary to understand in some detail the principle enunciated by the Supreme Court in regard to the admissions to the post graduate courses in Dr. Pradeep Jain's case.

43. The question of great national importance affecting admissions to the medical colleges both at the under-graduate and the post-graduate levels which was raised before the Supreme Court in Pradeep Jain's case was whether consistently with the constitutional values admissions to a medical college or any other institution of higher learning situate in a State can be confined to those who have their residence within the State or to those who belong to the same institution or the University to which the admissions are made or can any reservation for them be made by giving them preference over the outside candidates irrespective of merit. The question thus before the Supreme Court was whether the residential requirement or institutional preference in admissions to the technical and medical colleges can stand the test of Article 14 of the Constitution or is violative of the same. After referring to its previous decision on Article 14, the Supreme Court held in para 13 of the judgment that in applying the principle of selection based on merits, there cannot be any arid equality which dose not take into account the social and economic disabilities and inequalities from which large masses of people suffer in the country. It observed:

'Equality in law must produce real equality; dejure equality must ultimately find its raising determine in facto equality'.

44. The Supreme Court thus held in Pradeep Jain's case that the principle of selection based on merit can be justifiably departs from upon two considerations viz. the State interest and the backwardness of any particular region or regions. In upholding the consideration of the State interest the Supreme Court relied upon its previous judgment in D.P. Joshi v. State of Madhya Bharat : [1955]1SCR1215 in which the rule of preference enacted by the then Madhya Bharat in favour of the bona fide residents of the State was held to be not violative of Article 14 of the Constitution. Similarly, the ratio of the decision of the Supreme Court in Vasundra v. State of Mysore : AIR1971SC1439 in which the residence requirement for a period of not less than ten years was provided and was upheld on the ground of the State interest was also followed. The ratio of the decision in the case of D.N. Chanchala v. State of Mysore, : AIR1971SC1762 was also referred to show that to a certain extent the classification on the ground of institutional preference can also be upheld.

45. As regards the consideration about the region's backwardness, its decision in the case of State of Uttar Pradesh and Ors. v. Pradip Tandon and Ors., : [1975]2SCR761 was also referred to. I may at this stage point out that there is a recent decision of the Supreme Court in the case of Nidamarti Maheshkumar v. State of Maharashtra : [1986]2SCR230 in which the regionwise scheme adopted by our State Government in admissions to the M.B.B.S. course in the medical colleges in the respective regions of the State was under challenge on the ground that it infringed Article 14 of the Constitution. It was sought to be supported before it on the ground that the regions within the jurisdiction of the Universities in Vidharbha and Marathwada regions of the State are backward regions as compared to the regions within the jurisdiction of the Universities of Bombay and Poona.

46. Although the above submission was negatived in the above decision, it was held that a certain percentage of seats reserved in the Medical College in each region in favour of those who have studied in school or college within the region and even though on the higher side would not be in breach of the constitutional mandate of equality because, it would cause a considerable amount of hardship and inconvenience if students residing in the region of a particular University were compelled to move to the region of another University for medical education which they might have to do if selection for admission to the Medical Colleges in the entire State were to be based on merit without any reservation or preference regionwise. It was found in this regard that a large number of students who, it they did not get admission in the medical college near their residence and were assigned admission in a college in another region on the basis of relative merit, might not be able to go to such other medical college on account of lack of resources and facilities and in the result they would be effectively deprived of a real opportunity for pursuing the medical course even though on paper they would have got admission in the Medical College. The opportunity for medical education provided to them would be thus illusory and not real because they would not able to avail of it. It was further found that some difficulty would also arise in case of girls because if they could not get admissions in the medical college near the place where they resided, they would find it difficult to pursue medical education in a Medical College situated in another region where hostel facilities might not be available or their parents may hesitate to send them to the hostels. Thus, the competing claims of the regions were sought to be adjusted in the above case in a fair and just manner with the principle of admissions solely on merit.

47. Reverting back to the ration of Dr. Pradeep Jain's case, it may be seen that the Supreme Court has heavily relied upon its decision in Jagdish Saran v. Union of India : [1980]2SCR831 for a fair and just adjustment of the claims solely based on merits and the claim based on residence requirement and institutional preference in regard to the admissions to the medical colleges at the under-graduate and the post-graduate levels. As regards the admissions in M.B.B.S. course, after referring to the observations of krishna Iyer, J., in Jagdish Saran's case, cited supra, and also to the report of the Medical Education Review Committee and taking into consideration into consideration the demands of social justice i.e. large scale social and economic backwardness and, therefore, applying the principles of reservation on the basis of residence, or institutional preference, thus reconciling within the apparently competing claims of equality and excellence the Supreme Court held that the outer limit for admissions on the basis of the requirement of residence or institutional preference should not exceed 70% of the total number of seats and the remaining seats should be filled in solely on merit on all India basis either by holding all India entrance examination or the entrance examination to be held by the State in which admissions are being made.

48. As regards the admissions to the post-graduate courses; with which in fact we are concerned in these writ petitions, relying upon the observations in Jagdish Saran's case cited supra, it was held in para 22 at p. 1442 of the judgment that although it was eminently desirable not to provide for any reservation based on residence requirement within the State or on institutional preference, however, having regard to broader considerations of equality of opportunity and institutional continuity in education which has its own importance and value, though residence requirement within the State shall not be a ground for reservation in admissions to post-graduate courses, a certain percentage of seats should be reserved in the present circumstances on the basis of institutional preference in the sense that a student may be given a preference in admission to the medical colleges or a University from which he passed his M.B.B.S. examination. It was, however, directed that such reservation based upon institutional preference should not exceed in any event 50% of the total number of open seats available for admission to the post graduate courses such as M.S., M.D. etc. and the remaining seats should be filled in by open merit on all India basis. But, it may be seen that in regard to the admission to post graduate courses in the super specialities such as neuro-surgery, cardiology etc., it was directed that there should be no reservation at all even on the basis of institutional preference and admissions should be granted purely on merit on all India basis.

49. It is material to see that in Dr. Pradeep Jain's case not only the parties in the group of writ petitions before the Supreme Court but the Union of India, the State Governments, including the State of Maharashtra and the administrators of Union Territories were also noticed and heard. It was, therefore, directed by the Supreme Court in para 24 of the judgment in Dr. Pradeep Jain's case that the decisions reached by it in the said case would bind them also since the law laid down by it in the said case was for the entire country. It is, therefore, clear that the principle laid down by the Supreme Court in Dr. Pradeep Jain's case as regards admission to the post graduate courses would govern the admissions in the Government medical colleges in the State of Maharashtra also.

50. However, after the judgment was rendered in Dr. Pradeep Jain's case a writ petition was filed by one Reita Nirankari against the University of Delhi in which it was urged that it was not possible to implement the above judgment of the Supreme Court in Dr. Pradeep Jain's case because the admissions for the academic year 1985-86 in the medical colleges attached to some of the Universities were already finalised and made before 22-6-1984 on which date the judgment was rendered in Pradeep Jain's case and also because some time was required for making the necessary preparations for implementing the said judgment. By its judgment, therefore, in the above case i.e. Reita Nirankari v. University of Delhi, : (1984)IILLJ481SC the Supreme Court directed that its judgment in Dr. Pradeep Jain's case should not be implemented during the academic year 1985-86. It was also made clear in the said judgment that its judgment in Dr. Pradeep Jain's case would not apply to the State of Jammu and Kashmir and the State of Andhra Pradesh.

51. It appears that there were difficulties experienced by the various States in implementing the judgment of Supreme Court in Dr. Pradeep Jain's case in so far as the holding of the common entrance examination for admissions on merit on all India basis was concerned. Some of the students also felt that there was injustice done to them when the admissions were made in their medical colleges by adopting the principle of open merit laid down in Dr. Pradeep Jain's case. Dr. Dinesh Kumar and others filed a writ petition in the Supreme Court against Motilal Nehru Medical College, Allahabad, to ventilate their grievances because they could not obtain admissions to the post graduate courses in the said college. The first judgment in the said case is rendered by the Supreme Court on 1-5-1985. See the case of Dr. Dinesh Kumar v. Motilal Nehru Medical College, : AIR1985SC1059 . It would be, therefore, appropriate to reiterate the ratio of the decision of the Supreme Court in the aforesaid Dinesh Kumar's case to which we have already adverted to in another context.

52. The Supreme Court held in para 6 of its judgment in Dr. Dinesh Kumar's case, cited supra, that the standards for qualifying examinations for admission to the M.B.B.S. as well as for admission to the post-graduate courses were different in different States and in different Universities. It held that admissions to 50% non-reserved seats for the post-graduate courses by mechanically comparing marks obtained by the students at the different M.B.B.S. examinations held by the different Universities where standards of judging would necessarily vary from University to University and would not be uniform, would itself be violative of the equality clause in Article 14 of the Constitution of India. It, therefore, held that no admissions could be allowed to be made on the basis of the marks obtained at different M.B.B.S. examinations held by different Universities. It is pertinent to see that the Supreme Court held in para 10 of the judgment that the admissions made by Motilal Nehru Medical College, Allahabad to its post-graduate courses to the extent of 50% non-reserved seats for 1985-86 on the basis of the marks obtained by the candidates at different Universities were invalid and that the admissions for 1985-86 should have been made in accordance with the old rules prevailing prior to the delivery of judgment in Dr. Pradeep Jain's case on 22-6-1984. The Supreme Court, however, refrained from striking down the said admissions for the reasons stated in para 11 of the judgment. It is clear from para 10 of the judgment that the Supreme Court was of the view that no admissions could be granted to the 50% non-reserved seats except through the common entrance examination on the basis of which the relative merit of the candidates could be judged and thus the comparative evaluation of their merit could be made on the basis of the common standard. The Supreme Court, therefore, directed the Indian Medical Council, the Union Government and the State Government to come forward with a positive scheme in regard to the holding of the common entrance examination for admissions to the M.B.B.S. examinations as well as to the post-graduate courses. It is clear from the operative part of the said judgment that the Supreme Court did not finally dispose of the said writ petition.

53. Dr. Dinesh Kumar's case, therefore, again came up for consideration before the Supreme Court in which certain directions were issued which are important from the point of view of the decision in these writ petitions. See the case of Dr. Dinesh Kumar's & others v. Motilal Nehru Medical College, Allahabad and others A.I.R. 1986 S.C. 1877. It may be seen that after the directions were issued in the previous decision in Dr. Dinesh Kumar's case, cited supra, the Central Government submitted before the Supreme Court the scheme for holding the All India Entrance examinations for M.B.B.S. as well as for post-graduate courses. After approving the scheme for holding an All India Entrance examination for post graduate courses, subject to such modifications as made by it, the Supreme Court held in para 12 of the judgment at page 1887 of the report as follows :

'So far as admissions to the post graduate courses are concerned, it would not be possible to give effect to its judgment in Dr. Pradeep Jain's case until the academic year 1988 since the students seeking admission to the Post-graduate courses for the academic year commencing in 1987 would be those who have completed their compulsory rotating internship/practical training in November/December 1986 and since requiring them now to appear after a break of one year, to prepare again for appearing at the All India Entrance Examination would cause considerable hardship, and inconvenience to them'.

(Underlining ours).

The Supreme Court, therefore, directed that admissions into the post-graduate courses for the academic year commencing in 1987 may, therefore, be given on the basis that its judgment in Pradeep Jain's case does not govern such admissions.

54. Another important question decided by the Supreme Court in the above judgment in Dr. Dinesh Kumar's case is about the change introduced by it in the formulate laid down by it in Dr. Pradeep Jain's case for admissions to the M.B.B.S. course and the post-graduate courses in the light of the anomalies or inequalities of opportunity that may be produced because of the different policies of reservations adopted by the different States in regard to the Scheduled Castes, Scheduled Tribes and the other Backward Class candidates. As regards the admissions to the post-graduate courses in the broad specialities and their ancillary disciplines the Supreme Court directed that instead of 50% of the open seats after taking into account reservations validity made, not less than 25% of the total number of seats without taking into account any reservations should be available for being filled in on incrition the basis of All India basis be on the basis of the All India Entrance Examination.

54-A It is thus clear that the rule of merit is largely tempered by the rule of institutional preference by the pragmatic approach to the equality clause in Article 14 of the Constitution in Dr. Pradeep Jain's and also the above case. In this regard it may be noticed that the Supreme Court has observed in para 14 of the aforesaid judgment in Dr. Dinesh Kumar's case that if that if the Central Government establishes Regional Institutes of Medical Sciences providing for admission to the students all over the country solely on the basis of merit, it would become unnecessary to reserve seats as seated, above in each medical college to be filled in on the basis of the All India Entrance Examination. It is necessary to bear in mind as is clear from para 10 of the judgment in Dr. Pradeep Jain's case that the principle for selection based on the merits on all India basis is evolved particularly because of the paucity of seats in all medical colleges as compared to the increasing demand of the students all over India for admission to the medical college. The principle of reservation for institutional candidates even though on a higher side was thus justifiably made even in the post-graduate course in broad specialities and their ancillary disciplines. It may be seen in this regard that hard realities of life referred to in Nidamarti's case cited supra, although made in the context of admissions to the M.B.B.S. course would be true for admissions in the post graduate courses in broad specialities and their ancillary disciplines also, since the admissions therein are not purely on merit. As pointed out in Nidamarti's case, if the regional candidates who form the bulk of the institutional candidates cannot avail of admissions granted to them in the medical colleges which are not in their region for lack of resources or facilities or as in the case of the girl students because they cannot stay at a place far away from their residence, the opportunities to pursue medical education would become illusory for them.

55. It is but necessary to mention that the judgment in Dr. Dinesh Kumar's case, cited supra was also not final because the Supreme Court fixed the case again on 4-8-1986 for confirmation of the revised schemes which were directed to be framed by the Central Government in the light of the modifications suggested by it and to be submitted to it within a period of two weeks from the date of its judgment. However, as held in the aforesaid judgment in Dr. Dinesh Kumar's case, the fact remains that the implementation of the grant of the Supreme Court in Pradeep Jain's case as modified by the above judgment is postponed until the academic year 1988. The submission, therefore, on behalf of the State is that since the implementation of the judgment in Dr. Pradeep Jain's case stands postponed, it is open to it to give admissions to the institutional candidates on the basis of the present Rule 5. It is, however contended on behalf of the petitioners that is not the affect of the above judgment of the Supreme Court in Dr. Dinesh Kumar's case and in the light of the judgment in Pradeep Jain's case since the rule of institutional preference is void, the admission should be given to the candidates solely on the basis of merit although the implementation of the judgment in Dr. Pradeep Jain's case is postponed. It is urged that at any rate, since in regard to the candidates from the Medical Colleges affiliated to the same University but not belonging to the colleges making admissions to the post graduate courses, there was no question of such candidates qualifying in a different qualifying examination because they passed their M.B.B.S. examination from the same University from which the institutional candidates passed their M.B.B.S. examination the admissions should be given to them on merit in the light of the judgment in Dr. Pradeep Jain's case.

56. In support of their above submissions reliance is placed on behalf of the petitioners upon the decisions of this Court cited supra (see para 33) and also upon an unreported decision of this Court in Writ Petition No. 141 of 1986 with other connected writ petitioners Dr. Miss Rajneesh Bala v. Mahatma Gandhi institution of Medical Evidences Sewagram Wardha, rendered on 23-4-1986 by the Division Bench of this Court. In our view as regards the above cases relied upon on behalf of the petitioners, it may be seen that in none of above cases any decisions about the postponement of the implementation of the judgment of the Supreme Court in Dr. Pradeep Jain's case until the academic year 1988 was raised and, therefore, the question about the effect of such postponement was not before this Court in the above case. In fact, the second judgment in Dr. Dinesh Kumar's case. A.I.R. 1986 S.C. 1877 cited supra postponing the implementation of the judgment in Dr. Pradeep Jain's case was rendered much later than the judgment in the above cases relied upon on behalf of the petitioners. The above decisions are, therefore, of no assistance to the petitioners in this regard.

57. It is, however, urged on the basis of the judgment of the learned Single Judge is Rupkumar's case, cited supra that Dr. Dinesh Kumar's case A.I.R. 1983 S.C. 1059 is explained by him in the above case and that following the same, we should also permit admissions on all India basis on merit judged by the marks obtained in different M.B.B.S. examinations held by different Universities notwithstanding the aforesaid judgment in Dr. Dinesh Kumar's case. It may be noted that the learned Single Judge has in the above case made the test of marks obtained in the M.B.B.S. examination held by the different Universities applicable for judging the merit of the rival claimants to the post of Registrar in neurology.

57-A. In para 14 of his judgment in Rupkumar's case cited supra, the learned Single Judge has called out the ratio of the decision of the Supreme Court in Dr. Dinesh Kumar's case cited supra. According to him the Supreme Court held in the said case that it would be not only unfair and unjust but also contrary to the equality clause in Article 14 of the Constitution to make admissions to 50% non-reserved seats on the basis of the marks obtained by the students in different M.B.B.S. examination conducted by the different University as there would then be no common standard for comparison of relative merit of such students and that such admissions must, therefore, be made through the All India Entrance Examination. It is however, observed by him in para 15 of his judgment that he was concerned in the case before him with a Super speciality, perhaps meaning thereby that the above judgment of the Supreme Court in Dinesh Kumar's case which deals with case of 50% non-reserved seats in broad speciality i.e. MS, MD, etc. would not be applicable to Super speciality. In terms of the decision of the Supreme Court in Dr. Pradeep Jain's case, since there was no reservation on the basis of the institutional preference in regard to the Super specialities the seats in which were to be filled in purely on merit on all India basis he held in para 15 of his judgment that the institutional preference shown in the said case was bad.

58. With respect, we are not able to understand or appreciate the distinction sought to be made by the learned Single Judge in the above case between a Super speciality and a broad speciality when the question in both is of filing the seats on merit on all India basis. In our view, whether it is a Super speciality or a broad speciality when the admissions are being made purely on merit on all India basis, if the criteria made applicable for admission is the marks obtained by the students at different M.B.B.S. examinations held by different Universities; it would contain the same vice of arbitrariness infringing the equality clause in Article 14 of the Constitution, because there would then in both cases be no comparable standard on the basis of which the relative merit of the students could be judged. In fact, the necessity to judge the merit of the candidates by a common comparable standard is much greater in the case of Super specialities where the institutions conducting such courses and the posts therein are very few. However, the cases in hand before us are the cases of post-graduate courses in Broad specialities and their ancillary disciplines and the distinction drawn by the learned Single Judge about the Super speciality would not be attracted in these cases which, therefore would be squarely governed by the ratio of the decision in Dinesh Kumar's case cited supra called out by the learned Single Judge himself in para 10 of his judgment.

59. As regards the judgment in Writ Petition No. 1419 of 1986 Miss Rajneesh Bala v. Mahatma Gandhi Institute of Medical Sciences. It is difficult to see how it is of any assistance to the petitioners in the instant case because what this Court was considering in the said case was the preference rule of the respondent No. 1 institute in that case and what was held in that case was that for being an institutional candidate, it was not necessary to undergo the internship and two house jobs thereafter in the same institution. Having thus held that the petitioner was an institutional candidate, who passed the same M.B.B.S. examination conducted by the same University, this Court rightly held that there was no question of application of the ratio of Dr. Dinesh Kumar's case cited supra. The submission on behalf of the petitioner that admissions can be made on all India basis on the basis of the marks obtained by the students in different M.B.B.S. examinations held by different Universities notwithstanding the judgment in Dr. Dinesh Kumar's cases cited supra, therefore, deserves to be rejected. In fact such admissions made in Dr. Dinesh Kumar's case were held invalid by the Supreme Court in para 10 of its judgment in the said case.

60. Having thus rejected the submission on behalf of the petitioner that notwithstanding the judgment of the Supreme Court in Dr. Dinesh Kumar's case : AIR1985SC1059 cited supra, the admissions can be made on merit on all India basis on the basis of marks obtained by the students in different M.B.B.S. examinations conducted by different Universities, the question to be considered is how admissions should be made till the common standard for comparison in the shape of an all India Entrance Examinations evolved. In such an eventuality, the Supreme Court itself had directed in para 10 of the judgment in Dr. Dinesh Kumar's case cited supra that admissions should be made in accordance with the old rule that existed prior to the judgment in Dr. Pradeep Jain's case. The same would be the effect of the direction of the Supreme Court in para 12 of the second judgment in Dr. Dinesh Kumar's case A.I.R. 1986 S.C. 1877 that the implementation of its judgment in Dr. Pradeep Jain's case is postponed till the academic year 1988. It would, therefore, mean that till the academic year 1988, the admissions would be allowed to be made as per the old rule i.e. in the instant cases the present Rule 5. It would thus mean that the admissions can be given to the institutional candidates is the Government medical colleges on the basis of the rule or institutional preference incorporated in the present Rule 5 until the academic year 1988. The admissions to the post graduate courses given to the institutional candidates in the respondent medical college in July 1986 term cannot, therefore, be successfully impugned in these writ petitions.

61. It is, however, urged that the petitioners in some of the writ petitions referred to in para 1 of this judgment belong to the medical colleges which are affiliated to the same University to which the college giving admissions to the post graduate courses is affiliated and as such since they pass the M.B.B.S. examination of the same University from which the institutional candidates pass their M.B.B.S. examination there is comparable common standard to judge their relative merit. The submission thus is that in considering the case of such students for admission on merit on all India basis in the 25% of seats, the ratio of the first judgment in Dr. Dinesh Kumar's case : AIR1985SC1059 that these should be a common standard to judge the merit of the candidates in the above category of the 25% would not be attracted and therefore, in the category of the said 25% seats to be filed in on merit on all India basis such student should be given admission. It is urged that there is thus no necessity of postponement of the implementation of the decision in Dr. Pradeep Jain's case in regard to them.

62. In our view, there is a fallacy in the above submission on behalf of the petitioners. It may be seen that according to the judgment of the Supreme Court in Dr. Pradeep Jain's case, : (1984)IILLJ481SC as modified by the second judgment in Dr. Dinesh Kumar's case A.I.R. 1984 S.C.1877 the students from other medical colleges affiliated to the same University to which the medical college giving admissions is affiliated, belong to and fall in the category of the students whose claims for admissions are to be considered in the quota of 25% of the total seats to be filled in on merit on all India basis i.e. on the basis of the common all India Entrance Examination. They are thus not the students who are competing with the institutional candidates whose claims for admissions are to be considered on the basis of the rule of institutional preference in the category of the remaining seats available to them after making valid reservations. The fact that they have passed the M.B.B.S. examination form the same University from which the institutional candidates have passed the said examination is thus not irrelevant because in their admissions they are not competing for seats reserved for institutional candidates and, therefore, cannot be compared with them.

63. On the other hand, it may be seen that they are competing for admissions with the students who have passed their M.B.B.S. examination from the various universities. It is, therefore, not possible to consider their claims for admissions unless a common standard is evolved to judge the relative merits of all the candidates in the category of 25% of the total seats to be filed in on merit on all India basis. Otherwise permitting their admissions in the said category of 25% of the total seats would be unfair and unjust to the other candidates competing in the said category but passing their M.B.B.S. examination from the other Universities. They would, therefore, be squarely governed by the ratio of both the judgments of the Supreme Court in Dr. Dinesh Kumar's case cited supra. Since their claims for admissions in the 25% of seats stand postponed to the academic year 1988, the admissions impugned in these writ petitions cannot be successfully questioned on this ground.

64. Although it is true that, according to the judgment of the Supreme Court in Dr. Pradeep Jain's case as modified by the second judgment in Dr. Dinesh Kumar's case cited supra. The students belonging to the other medical colleges who pass the M.B.B.S. examination from the same University to which the medical college giving admissions is affiliated fall in the category of the students whose claims are to be considered in the quota of 25% of the total seats to be filled in on merit on all India basis their grievance in regard to admissions can, in our view, be considered or appreciated from another angle. Since the implementation of the judgment of the Supreme Court in Dr. Pradeep Jain's case stands postponed until the academic year 1988, it is open to us to consider the question how till then the admissions should be made by the State Government to the post-graduate courses in its medical colleges consistent with the mandate of the equality clause under Article 14 of the Constitution. It is, therefore, open to us lay down a proper norm or principle till then for admissions of the aforesaid students if we find that their grievance about unequal treatment to them in admissions is justified.

64-A. It may be seen that the High Court has power under Article 226 of the Constitution to issue appropriate directions to the Government or the public authorities in regard to the exercise of their discretionary power in a particular manner as is clear from the judgment of the Supreme Court in the recent case of Controller and Auditor General of India and another v. K.S. Jaganathan 1986(2) S.S.C. 679 of the report. We, therefore, propose to consider the claims for admissions of the students belonging to the other Medical college affiliated to the same University but not to the medical college giving admissions and to issue appropriate direction in that regard till the judgment of the Supreme Court in Dr. Pradeep Jain's case is implemented according to which they can claim admissions in the quota of 25% of the total seats to be filled in on merit on all India basis or till some other or further directions are given by the Supreme Court in that regard.

65. It may be seen that the students who belong to the other medical college affiliated to the same University to which the medical college giving admissions is affiliated pass their M.B.B.S. examination from the same University from which the institutional candidates pass and as such they are in the same class so far as the application of the criteria of merit is concerned because their merit can be judged by a common comparable standard. Moreover, such students and the institutional candidates are from the same region carved out by the jurisdiction of the same University to which their college are affiliated and normally serve the State interest by catering to the needs of the same region.

66. It is true that after reserving 25% of the total seats in the post-graduate courses for being filled in or merit on all India basis, the rule of institutional preference and not residence is given effect to in Dr. Pradeep Jain's case in filling up the remaining seats on the basis of the principle of continuity in education which has its own importance and value. Although a separate class is thus carved out of the institutional candidates in admission to the post graduate courses by the application of the test of institutional continuity in education there is no reason why some of the meritorious students in other medical colleges affiliated to the same University to which the medical college giving admissions is affiliated should not be considered for admissions to the post-graduate courses in the medical college giving admissions when but for the institutional continuity in education they are as shown above similarly situated. It is necessary to do so particularly when such meritorious students cannot seek admission on merit in the 25% seats due to postponement of the implementation of the judgment of the Supreme Court in Dr. Pradeep Jain's case.

67. It would be pertinent to note as pointed out by the Supreme Court in Nidamarti's case, : [1986]2SCR230 that it may not be possible for the meritorious students to avail of the admissions in outside colleges which would become illusory for them due to lack of resource and in case of the girl students by reason of the difficulties experienced by them in staying at a place far away from their residence. The said difficulties would be to a large extent minimised if such meritorious students can find admission in the colleges in their own regions. It is true that such students can get admission in their own medical colleges on the basis of the rule of institutional preference but in our view that aspect would have a bearing on the question of the percentage of seats to be reserved for such students in the medical college giving admissions.

68. The real question, therefore, is what percentage of seats should be carved out for them out of the total seats available for the post-graduate admissions. In this regard, it is material to see that this percentage has to be less than 25% which is the percentage carved out by the Supreme Court in Dr. Dinesh Kumar's case A.I.R. 1986 S.C. 1877, for all the students on the criteria of merit on all India basis, including the students in question in medical colleges affiliated to the same University to which the medical college giving admissions is affiliated. Secondly, it must be seen that there are post graduate courses in each and every Medical College in the State and normally the students are likely to seek admissions in their own medical colleges. However, the most useful guide for determining the percentage of such admissions is provided by the State Government itself in its previous Rule 5 framed under its G.R. dated 30-7-1982, which was issued by it when this Court in Satish B. Deopujari's case struck down as invalid the rule of wholesale reservation in favour of the institutional candidates under the original G.R. dated 18-6-1971.

69. A perusal of Clause (b) of Rule 5 framed under the aforesaid G.R. dated 30-7-1982 would show that 10% of the total seats available for post graduate decree and diploma courses were reserved therein for the candidates who passed the M.B.B.S. examination from the other medical colleges affiliated to the same University to which the medical college admissions was affiliated. It may be incidentally be seen that under Clause (a) of Rule 5 under the G.R. dated 30-7-1982, 10% of the total seats available for the post graduate admissions were reserved for outside candidates i.e. for those who belonged to the medical colleges not affiliated to the same University to which the medical college giving admission was affiliated. After carving out 15% of the total seats in Clause (c) for in service personnel, all the remaining seats were made available to the institutional candidates in Clause (d) of the said Rule 5. We would have thought that the above rule was an ideal rule which would have stood the challenge of Article 14 but since the Government always intended to give weightage and preference to the institutional candidates, the above rule was again substituted by the present Rule 5 under the G.R. dated 20-8-1983 when the decision in Satish B. Deopujari's case was over-ruled in the judgment of the Full Bench of this Court cited supra.

70. Be that as it may, what we find is that the Government itself has provided the aforesaid criteria by which we can direct that till the decision of the Supreme Court in Pradeep Jain's case is implemented or till some other or further directions are issued by the Supreme Court in this regard, the State Government should allow admissions to the students belonging to the other medical colleges affiliated to the same University to which the medical colleges giving admissions is affiliated to the extent of 10% of the total seats which are available for the post-graduate degree and diploma courses in the medical college giving admissions. These seats would be inclusive of the seat reserved for the Scheduled Castes, Scheduled Tribes and the Backward Classes in the prescribed proportions. Out of these seats, as is always provided by the Government under its rules, 70% of the seats should be released in January and 30% in the July terms. The above principle or norms in out view would be in consonance with and satisfying the requirement of the equality clauses in Article 14 of the Constitution.

71. The learned Counsel for the petitioners who belong to the other medical college affiliated to the same University to which the medical college giving admissions is affiliated has urged before us that the above principle evolved by us temporarily should be given effect to from the July 1986 term itself and that such petitioners should be accommodated to the extent of 10% of the total number of seats in the manner laid down by us above if necessary by creating the supernumerary seats. In our view, the above submission on behalf of such petitioners cannot be accepted. The admissions in July 1986 are not only over but the institutional candidates have joined their courses longback. It would not be therefore, proper to disturb their admissions or to direct the State to create so many supernumerary posts on the basis of the above principle evolved by us particularly when in the absence of such principle the admissions given by the medical colleges concerned on the basis of the present Rule 5 are not illegal when the Supreme Court postponed the implementation of its judgment in Dr. Pradeep Jain's case till the academic year 1988, thus permitting admissions on the basis of the existing rule. It is only in view of the above principle evolved by us temporarily that such students can apply for admissions to the extent of 10% of the total seats.

72. It is, therefore, desirable that the above principle evolved by us should be made applicable prospectively without disturbing the admissions which are already made by giving preference to the institutional candidates. It may also be seen that the admissions for January 1987 terms are also already finalised. It would not, therefore, be fair and just to disturb now the admissions which are already made. The above principle should, therefore, be followed by the Government Medical College in the admissions to the post graduate courses, from the next term i.e. July 1987, till the decision of the Supreme Court in Dr. Pradeep Jain's case is implemented or till such other or further directions are issued by the Supreme Court in regard to the same. It would be open to the petitioners belonging to the medical college affiliated to the same University to which medical college giving admission is affiliated to apply in July 1987 term and complete with other candidates who may apply at that time in the above category of 10% seats.

73. In the light of the above discussion, we hold and direct as follows :

(1) The reservations made for in service personnel in Clause (b) and for the Schedules Castes, Scheduled Tribes and the Backward Classes in Clauses (d) of the present Rule 5 introduced by the G.R. dated 20-8-1983 for the submissions to the post-graduate courses in the Government Medical Colleges in the State which are not impugned in these writ petitions continue to be valid and binding upon the Government and its Medical Colleges :

(II) The rule of institutional preference incorporated in Clauses (a) and (c) of the present Rule 5 under the G.R. dated 20-8-1983 is within the mischief of the ratio of the judgment of the Supreme Court in Dr. Pradeep Jain's case, : (1984)IILLJ481SC . The principle laid down in Dr. Pradeep Jain's case for making admissions to the post graduate courses in the Government Medical College is, therefore, binding upon the State Government. The admissions to the post graduate courses in the Government Medical Colleges must be made in accordance with the principle laid down by the Supreme Court in Dr. Pradeep Jain's case as modified by its judgment in Dr. Dinesh Kumar's case A.I.R. 1986 S.C. 1877. All the directions issued by the supreme Court in this regard from time to time would be binding upon the State Government.

(III) Since the implementation of the judgment of the Supreme Court in Dr. Pradeep Jain's case is postponed till the academic year 1988 and it is permissible to the State Government to making admissions till then under its existing Rule 5, the admissions impugned in these writ petitions are not illegal and cannot be disturbed :

(IV) It is, however, directed that from July 1987 onwards till the decision of the Supreme Court in Dr. Pradeep Jain's case is implemented or till such other or further directions are issued by the Supreme Court in that regard, the State Government shall also give admissions to the post-graduate courses in its medical colleges to the extent of 10% of the total number of seats available for registration for the post-graduate degree and diploma courses to the candidates from the other medical college affiliated to same university to which the medical college giving admissions is affiliated. The above 10% of the seats would be inclusive of the seats reserved for the Scheduled Castes, Scheduled Tribes and the Backward Classes in the prescribed proportions. Out of the above 10% of the total number of seats 70% of the seats should be released for the January term and 30% of the seats for the July term.

In the result, subject to the above directions in para 73, the rule shall stand discharged in these writ petitions with no order as to costs.