N. H. BHATT, J. ( 1 ) THIS petition has been filed by about seven Doctors looking forward to prosecute post graduate studies further because their chances of getting subjects of their choice because of the impugned resolution of the Government have receded. The prayers in the petition are as follow:" (A) to issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ direction or order directing the respondents to prepare the merit list of persons eligible to be appointed as residents on the basis that those who pass the final M. B. B. S. examination at the first attempt should be given first preference and accordingly to suitably modify Rule 8. 2 and Rule 8. 3 of the Rules governing appointment as residents. (AA) to issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ order or direction directing the Gujarat University to frame the Rules governing the selection for postgraduate studies and directing the third respondent not to make selection for postgraduate studies on the basis of the Rules contained in the Government resolution of the Health and Family Welfare Department dt. 25-5-82 for the appointment of residents in Medical College. (B) xx xx xx (C) to grant mandatory interim relief directing the respondents to give appointments to the post of residents on the basis of first giving a preference to those who have passed the final M. B. B. S. examination at the first attempt. (D) to grant such other reliefs as this Honble Court may deem fit and proper. ( 2 ) IN order to understand the controversy certain historical background and certain basic factors require to be specifically noted. It is truism to state that medical profession has remained a matter of choice and therefore a matter of cutthroat rivalry also amongst the first class students. In the area of the Gujarat University there are two medical colleges one is the B. J. Medical College situated in the campus of the Government Civil Hospital at Ahmedabad and the second is N. H. L. Municipal Medical College run by the Ahmedabad Municipal Corporation with V. S. Hospital attached to it. Both these institutions also have the facility of imparting postgraduate instructions and various branches of its learning like Surgery Medicine Obstetrics and Gynaecology Radiology etc. Both these institutions also have the facility of imparting postgraduate instructions and various branches of its learning like Surgery Medicine Obstetrics and Gynaecology Radiology etc. It goes without saying that the postgraduate training has got its own importance in practical also and so all such institutions are attached to the full fledged hospitals. In order to run these hospitals the Government or the Municipal Corporation naturally need the services of some qualified Doctors. Even the Medical Council of India has recognised the importance of postgraduate training facilities and courses at various centres and the training of postgraduates for degree courses is recommended to be of the residency pattern with patient care. This is so from the very nature of things also. In order to enable the postgraduate students to learn and simultaneously earn also incidentally though not fundamentally a system of residency is in vogue in the State of Gujarat. Formerly there were two sorts of residencies known as a housemans course for one year followed by a Registrars course for 2 1/2 years or so. These posts of housemen and Registrars being paid from the public exchequer were in a way employment avenues also and therefore the Government and/or Municipal Corporation that run the colleges with Hospitals attached would be entitled to employ qualified medical graduates to look after the various wards dealing with different kinds of patients. The Government and I understand the Municipal Corporation also had its own Rules for filling in the post of Housemen and Registrars and according to the variety of subjects housemen will be in certain subjects and so will be the Registrars. On and from the year 1981 the Government decided to introduce a common cadre of residents and the course is stated to be of four years. Two different sets of Rules for Housemen and Registrars were replaced by the Rules for residents and one of the Rules namely Rule 8 and particularly sub-rules (2) and (3) thereof are the subject matter of challenge in this petition. However it is again an admitted position that imparting of instructions in postgraduate studies is essentially the concern of the University and the Gujarat University brought into being by the Gujarat University Act 1949 is a body corporate having perpetual succession and a common seal as specifically stated in sec. However it is again an admitted position that imparting of instructions in postgraduate studies is essentially the concern of the University and the Gujarat University brought into being by the Gujarat University Act 1949 is a body corporate having perpetual succession and a common seal as specifically stated in sec. 3 (3) of the Gujarat University Act 1949 Some of the powers and duties also of the University set out in sec. 4 of the Act are to guide teaching and research work in colleges University Departments University centres and recognised institutions to lay down the courses of instruction for the various examinations to institute degrees diplomas and other academic titles and distinctions to hold examinations or tests and confer degrees and diplomas on and grant certificates to persons who have pursued approved courses of study in the University or in an affiliated college and to control and coordinate the activities of and to give financial aid to affiliated colleges and recognised and approved institutions. ( 3 ) THERE is also an autonomous body created under the Indian Medical Council Act 1956 The said Council is a duly elected body and is for legal purposes a corporate body having perpetual succession and a common seal. Under sec. 16 of the Indian Medical Council Act 1956 every University or medical institution in India is under an obligation to furnish such information as the Council may call for in respect of variety of matters including the requisites for obtaining such qualifications. Under sec. 19a of the Act the Council is entitled to prescribe the minimum standards of medical education required for granting recognised medical qualifications and under sec. 20 the Council is entitled to prescribe standards of postgraduate medical education for the guidance of the Universities. In order to enable the Council to achieve its purpose sec. 33 in that Act is there to enable the Council to make Regulations generally to carry out the purposes of the Act and these Regulations are to be made by the Council with the previous sanction of the Central Government. These Regulations have statutory force. The relevance of this discussion is because one of the alleged Regulations is relied upon by the petitioners in support of their petition. The said alleged Regulation reads as follows:"criteria for the selection of candidates. These Regulations have statutory force. The relevance of this discussion is because one of the alleged Regulations is relied upon by the petitioners in support of their petition. The said alleged Regulation reads as follows:"criteria for the selection of candidates. (a) students for postgraduate training should be selected strictly on merit judged on the basis of academic record in the undergraduate course. All selection for postgraduate studies should be conducted by the Universities. " It is the allegation of the petitioners in this petition that the Gujarat University which has been added as a respondent in this petition has abdicated its function of selection of students for postgraduate studies and to this extent the mandate of the Indian Medical Council Act has been violated by the University. ( 4 ) IN order to fill in the post of housemen there were Rules as already said by me above. RULE 6 of the said Rules provide as follows: "selection of eligible candidates for appointment to posts of Housemen shall be made on the basis of total marks obtained at the final M. B. B. S. examination according to the categories mentioned of preference. "the preference was that those who cleared the final M. B. B. S. examination at first attempt were in the first group those who cleared M. B. B. S. examination at the first attempt but were repeators at the first or second M. B. B. S. examination constituted as the second group and the third group consisted of those who passed the M. B. B. S. examination at the second attempt and first or second M. B. B. S. examination at first or more attempts. This rule which was in operation upto the year 1975 came to be modified by the Government as per its resolution dated 3-1-76. The said modified Rule retained the first group of those who passed examination at the first attempt. In respect of those who passed the examination at the second or third attempt average marks of all the attempts of the subjects were to be reckoned subject marks and if a candidate did not appear in full examination of any subject he was deemed to have obtained 50% of maximum marks in that subject irrespective of actual marks obtained by him in the subject at any of the attempts. Rule 8 which is impugned in this petition and as framed by the Govt. on 26-5-82 as per its resolution is reproduced below because it is this rule that is challenged in this petition:"8. Selection of eligible candidate for appointment to the first year residency shall be made on the basis of total marks contained at the final M. B. B. S. examinations as modified below : 8. 1. Passed the examination at the first attempt no modification. 8. 2. Passed the examination at the second or third attempt Average marks of all the attempts of the subject will be considered subject marks. Original marks will be considered if he/she has passed the subject at first attempt. 8. 3. If a candidate did not appear in full examination of any subject he/she shall be deemed to have obtained 50% of maximum marks in that subject irrespective of actual marks obtained by him/her in the subject at any of the attempts. 8. 4. In the event of tie in the total modified marks the merit will be decided on the basis of the total marks obtained at the first and second M. B. B. S. examinations taken together. 8. 5. Merit list will be prepared according to modified marks calculated as per rule 8 above. ( 5 ) ANOTHER fact to be pertinently noted is the Standing Order 121 framed by the Gujarat University. The said Standing Order reads as follows:"all postgraduate instructions in the Gujarat University area shall be imparted by the University or on behalf of the University at such centres as may be fixed by the executive council. "b. J. Medical College and N. H. L. Municipal College of Ahmedabad are such centres fixed by the Executive Council of the Gujarat University. Ordinarily the Gujarat University runs its own postgraduate schools in a variety of subjects but obviously this cannot meet with the growing requirements of the day. Particularly in respect of postgraduate instructions in medicines only two centres are there and the above two centres can be said to be run by the University. In respect of the Faculty of Medicine certain Ordinances are issued and they are Ordinances 65-X. I. J. K. etc. Ordinance 65-X pertains to registration a student at an approved institution. It reads as follow: "0. In respect of the Faculty of Medicine certain Ordinances are issued and they are Ordinances 65-X. I. J. K. etc. Ordinance 65-X pertains to registration a student at an approved institution. It reads as follow: "0. 65 X. A graduate of this University working at an institution outside the University area recognised as an approved institution by the Executive Council of this University for the purposes of giving guidance in research and intending to register himself for the Masters or the Ph. D. degree of this University shall forward the application in the prescribed for admission and registration provided he is eligible for such an admission. . . . On receipt of the completed application for admission and registration and the fees prescribed thereof the University will a Registration Certificate giving particulars regarding the registration number name of the student the date of registration the problem of research and the the year in which the persons propose to submit his thesis. " (Emphasis supplied)THERE are Special Rules relating to postgraduate studies and they are known as P. G. Rules. P. G. Rule No. 1. 1 (c) 2 and 3 are reproduced below: P. G. Rule No. 1 (1) Every candidate for a post graduate degree of the University shall (i) enrol himself at a centre for a subject or attach himself to a University tea cher or teachers as the case may be in the subject or subjects of his studies and receive instructions for the period prescribed under the Ordinances; (ii) apply to the University office in the prescribed form for registration as a post graduate student along with the prescribed fees for the same. (iii)the institution which the students join shall (A) collect the registration fee of Rs. 101 for the masters degree and Rs. 20 for the Ph. D. degree as the case may be and the prescribed tuition fees for each term at the time of admission; (B) forward to the University office fees so collected together with the counterfoils of the receipts of tuition fees and applications received from the students on or before 31st July in the first term and on or before 31st of December every year. (C) forward application together with the registration fees and the tuition fees for each term received from the students who have applied for Registration in the post graduate medical degree and diploma courses immediately after the commencement of term the post graduate courses but in no case later than six months from the same; (D) pay to the University the registration fees of Rs. 10. 00 for the registration as a student for a masters degree and Rs. 20. 00 for the Ph. D. degree over and above the prescribed tuition fees; (E) not register himself simultaneously for more than one postgraduate course of studies. The period of registration for a postgraduate degree and with his completion of the required terms; (iv) The last date for admission to postgraduate student at the centre shall be the 15 July and the last date for submitting applications in the prescribed form for registration as postgraduate student by the centre University Department to the University shall be the 31st of July every year; (v) (1) In the faculties of Arts including Education Science and Commerce the Professor in charge of the post graduate centre concerned subject to the limit of the maximum number of students admissible at a centre shall admit students admissible at a centre in the M. A. (Part I) M. Sc. (Part I) or M. Com (Part I) class as the case may be in the following order of preference. (I)THOSE who have obtained a first class at the qualifying degree examination; (ii) those who have obtained a second class in the qualifying degree examination; and then (iii) Those who have obtained a pass class. 1. (c) The candidates who are preparing for medical degree may register at any time of the year. The appointment of house post as required by rules for post graduate degree/ diploma courses shall be made with effect from January and July every year. . . . . . . . 2. Every application for registration as a post graduate student of the University (a) shall be filled up in the prescribed form; (b) shall be accompanied by the prescribed registration fee; and (c) shall be submitted through the centre or the Head of the institution to which the University teacher under whom the student proposes to work belongs, 3. . 2. Every application for registration as a post graduate student of the University (a) shall be filled up in the prescribed form; (b) shall be accompanied by the prescribed registration fee; and (c) shall be submitted through the centre or the Head of the institution to which the University teacher under whom the student proposes to work belongs, 3. No post graduate student shall be allowed to appear for Part I or Part II examination by paper as the case may be unless he has attended not less than two thirds of the number of Lectures delivered in the subject or group of subjects in each term during two terms of Part I to Part II by both recognised teachers and Assistant P. G. Teachers provided that students in History economics sociology and prescribes at the M. A. examination shall be required to attend two thirds of the lectures in each group separately and students for M. Com. examination two thirds of the lectures delivered in all the subjects of examination taken together and not in an individual subject. "over and above the Rules quoted hereinabove there is P. G. Rule No. 23 which states that every centre for a subject for post graduate teaching shall be in charge of recognised postgraduate teacher in the subject called Profession in charge to he appointed by the Executive Council in its discretion on the recommendation of the Board of University Teaching and research as far as possible after consulting the Principal of the college of the Head of the institution at which the centre is created. . . . . . . The principal and the professor in charge shall jointly be responsible for the efficient conduct of the centre postgraduate accounts administration arrangements of time tables holding of the classes keeping the records of the attendance of the post graduate students and for the general discipline of the students working threat. ( 6 ) THE above quoted provisions of the Gujarat University make it abundantly clear that post graduate studies in Medicines with its varigated branches is essentially and fundamentally the concern and care of the University and there is no getting away from this fact. No controversy was raised even ill this regard at any stage of the hearing of this petition before me. No controversy was raised even ill this regard at any stage of the hearing of this petition before me. This is the abstract position of law but in actual practice what has been done and is being done has given rise to the present controversy which I shall instantly elaborate. As said above the B. J. Medical College is economically the responsibility of the State Government. Similarly N. H. L College is the responsibility of the Corporation. The hospitals attached to these institutions are also the responsibility of the State Government and the Municipal Corporation respectively. Brunt of the economic burden of these institutions is borne by the State Government and Municipal Corporation respectively. As far as the administrative control of these hospitals is concerned it is the exclusive concern of the Government and the Municipal Corporation respectively. As far as the academic aspect of these institutions is concerned they are the centres approved by the University and they are under the control of the University so much so that registration in post graduate course could be given only by the University and not by the Government or the Municipality. However over the course of years and as asserted in the affidavit filed on behalf of the University by its Assistant Registrar right from the creation of this University the Government used to formulate the Rules for selecting candidates for housemen and Registrars prior to 1982. The Rules impugned in this petition are made by the Government not under any statutory powers but they are presumed to have been made under Article 167 of the Constitution of India in exercise of the Governments administrative powers. There cannot be any quarrel over the Governments powers under Article 162 of the Constitution of India. As already noted by me above the erstwhile Rules for Registrars posts came to be altered and the residency rules impugned in this petition are brought in line with the earlier Rules for the housemens posts as amended in the year 1976-77. It is to be reiterated that earlier the students who cleared the M. B. B. S. examination in the first attempt enjoyed the utmost preference followed by those who cleared at the second attempt and so on. A new system is now devised by the Govt. It is to be reiterated that earlier the students who cleared the M. B. B. S. examination in the first attempt enjoyed the utmost preference followed by those who cleared at the second attempt and so on. A new system is now devised by the Govt. and as per that system the preference has been done away with and the total marks at the final M. B. B. S. examination has been taken as the basis. There may be students who Pass the final M. B. B. S. Examination at the second or third attempt. What is the basis for working out total marks in their cases ? The impugned Rules 8. 2 and 8. 3 are there to deal with this situation. The allegation of the petitioners is that this departure from the erstwhile Rules for Registrars is invidious and discriminatory and exfacie this new pattern is throwing the doors open for rank discrimination and there is no intelligible different or basis for treating differently situated persons alike. The differently situated persons are said to be those who have passed the M. B. B. S. examination at the first attempt constituting one class and those who have passed the M. B. B S. examination at the second or third attempt as the other class. This is the first or rather the second ground of challenge. The third ground of challenge in this petition is that the University as perits timehonoured practice has been blindly accepting the recommendations. which in effect are the recommendations of the Government and not even of the Head of the centre or the Professor in charge. The above quoted Rules exfacie are the Rules for the appointment of residents and residency posts are in respect of various branches of learning as for example there will be a Doctor in Surgery second in Radiology and the third in Gynaecology. The Rules ostensibly speak of the selection for the purpose of appointing resident Doctors in various branches of the hospital but Registration in inter linked with appointment as Registrars. As a matter of fact the Meritlist prepared by the Government pursuant to Rule 8. 1 8. 2 and 8. 3 puts the students in the order of merit and the choice of subject is governed by that merit list. As a matter of fact the Meritlist prepared by the Government pursuant to Rule 8. 1 8. 2 and 8. 3 puts the students in the order of merit and the choice of subject is governed by that merit list. It is obvious that some subjects like Surgery or Obstetrics and Gynaecology are the matter of preference while other subjects are comparatively less attractive to the students aspiring for some bright future life. So the appointment by the Government to the post of residents in particular subjects by itself will be the exclusive concern of the Government but as said above the registration is interlinked with it. The Dean in his affidavit states as follows:"the university has delegated all the administrative powers including the power to grant admissions (equivalent to registration) to the post graduate degree courses being conducted at such centre. I say that it is only the formal act of registration which is being done by the Gujarat University office after the concerned post graduation centre forwards all the necessary and relevant papers and fees. I say that the same procedure is followed in case of admissions to post graduate medical courses being conducted by the B. J. Medical College right from the beginning. It is important to note that the Dean of the B. J. Medical College (that is a sort of principle or head of the institution) and the professor in charge of the particular department act as delegates of the Gujarat University for the purpose of granting admissions to the postgraduate degree courses. . . . . . . . . I say that admissions to postgraduate courses being run at the B. J. Medical College Ahmedabad are being granted on the basis of the impugned formula of modification of marks of the students who passed the third M. B. B. S. examination at more than one attempt right from 1976. . . . . . . . . I say that while granting admission to postgraduate couses the B. J. Medical College has been following the aforesaid method of selection and the University has granted registration to all the students who were so recommended for admisi sions on the basis of the merit list prepared in accordance with the rules in force at the relevant time. . . . . . . . . . . . . . . . . " ( 7 ) EVEN the Assistant Registrar of the University in his affidavit states as follows:"under the Rules framed (it was clarified at the Bar that they are the P. G. Rules already quoted above) every postgraduate centre is in charge of the profes sor in charge. There are at present 66 postgraduate centres in various subjects run by the Gujarat University for post graduate medical education. . . . I further most respect fully say that so far as admission to post graduate registration is concerned it has been the normal practice of this university since its establishment to approve the admissions granted by the Professor in charge at various centres. In case of complaints the University considers the same. . . . I therefore submit that it would be totally unwise at this time to have different rules of admission to be framed by the University for these centres at K M. School of post graduate Medicine and Research and B. J. Medical College. The University approves of the registration granted by the B. J. Medical College as well as K. M. School of post graduate Medicine and Researth. The University would accept the recommendation for post graduate registration made by these two post graduate institutions It is erroneous to suggest that the Professors charge do not possess the power as alleged. These centres have their own norms for admission. The norms have always on the basis of merits. . . . . I therefore submit that this Honble Court may not upset the practice followed by the University in granting admission to the post graduate students recommended by the B. J. Medical College and K. M. School of post graduate Medicine and Research. For the next academic ye 1933 the Executive Council may consider to fraim guidelines for admission to post graduate registration for the post graduate centres especially for Medical Faculty. ( 8 ) IT is to be noted as a Matter of historical importance that as far as the Municipal College is concerned they have adopted the criteria of first attempt students placed in the group on the basis of total marks second attempt students got 5% and so on and they appoint resident Doctors on the basis of the merit list prepared on that basis. At any rate they adopt a standard different from the one adopted by the B. J. Medical College. Obviously the merit list prepared by the B. J. Medical College and the one prepared by the Municipal College adopt different criteria for appointment of residents in various subjects and what is done by these respective college authorities in the matter of selection of the subject for resident posts is implicitly adopted by tile University or the purpose of granting registration in that subject A. student of the B. J. Medical College would get registration say in medicine or surgery on the basis of the merit list prepared on the basis of the criteria of the Government resolution and the University will bless it. A student of Municipal College will have his subject of postgraduate studies and incidentally of residency on a different criteria and that also will be equally blessed by the University and it is to be remembered that registration is to be given by the University and the college autho rities as the financial and administrative controllers have no say in the matter as per above quoted legal provisions. ( 9 ) IT is therefore alleged by the petitioners that the University has abdicated its function of granting registration by giving its power solely to the Dean and Professor in charge who in their turn mecha nically and without any application of mind blindly follow the Government guidelines provided for in the rules made by the Government for the purpose of appointment of resident in various subjects It is this action of the University that is challenged in this petition more vigorously. ( 10 ) MR. ( 10 ) MR. Raval the learned advocate for the petitioners therefore raised the following points before me: (A) The impugned Rules are framed by the Government without any participation of the University authorities in that regard and these Rules are violative of the Regulations framed by the Medical Council of India under Regulation 33 of the Act; (B) he impugned Rules of The Government are arbitrary and discriminatory and therefore they are violative of Article 14 of the constitution of India; (C) The University has abdicated its function of laying down norms for registration with the result that the students of the same university but working at different centres are governed by different sets of norms and this also amounts to non exercise of statutory powers and abdication of its functions by the University Ultimately in favour of the Government that has nothing to do with laying down the academic standards and norms for admission to various post graduate courses; ( 11 ) AS far as the first point is concerned the Supreme Courts judgment in the case of STATE OF M. P. V. KUMARI NIVEDITA JAIN and ORS. A. I. R. 1981 S. C. 2045 is a clinching answer. The provisions of the Medical Council Act 1956 were on the anvil of the Supreme Court. The gist of the finding Or the Supreme Court can ire had from paragraph 18 which I reproduce below partly:"now coming to the consideration of the question involved in this appeal it appears from the provisions of the Act that the authority of the council extends to the sphere of maintaining proper medical standards in medical colleges or institutions necessary for obtaining recognised medical qualifications By virtue of this authority it may be open to the Council to lay down the minimum educational qualifications required of a student who may seek admission into a medical college. In other words the eligibility of a candidate who may seek to get admitted into a medical college for obtaining recognised medical qualifications may be prescribed by the council All the candidates who are eligible for admission into Medical colleges or institutions for getting themselves qualified as medical practitioners are entitled to seek admission into a Medical College or institution as to how the selection has to be made out of the eligible candidates for admission into the Medical College is a matter which has necessarily to depend on circumstances and conditions prevailing in particular State. Though the question of eligibility for admission into the medical curriculum may come within the power and jurisdiction of the Council the question of selection of candidates out of the candidates eligible to undergo the medical course does not appear to come within the purview of the council. " (emphasis supplied by me) ( 12 ) HERE also the above quoted so called Regulation of the Medical Council that all selection for post graduate studies should be conducted by the University cannot be put on the pedestal of a statutory regulation firstly for the reason that as laid down by the Supreme Court selection is not within the purview of the Medical Council and secondly on the ground that this particular directive is only recommendatory in character and not mandatory in application. So I am not prepared to say that the said Rules in question framed by the Government and in practice adopted by the Dean of the Medical College and ultimately blissfully adopted by the University are in any way violative of the mandatory directive issued by the Medical Council by virtue of sec. 33 of the Indian Medical Act. ( 13 ) THIS brings me to the second prong of attack in this matter. Mr. Ravals submission in this connection was that the earlier Rule in granting residents posts was the only rational mode of appointing Registrars. 33 of the Indian Medical Act. ( 13 ) THIS brings me to the second prong of attack in this matter. Mr. Ravals submission in this connection was that the earlier Rule in granting residents posts was the only rational mode of appointing Registrars. It cannot be gainsaid from a common sense point of view that a student who clears his M. B. B. S. examination at first attempt without failing in earlier two examinations can be considered to be superior to others but if some academician thinks otherwise and believes that a student who for some reasons is not able to clear his final examination at the first attempt but clears at the second or third attempt he is not to be always considered inferior to the one who clears it at the first attempt this latter view also cannot be brushed aside and thrown out of hand as exfacie absurd or irrational. In any matters like this honest difference of opinion can exist. As a matter of fact as back as in the year 1976 the Rules for appointment of housemen in various subjects were amended and put on the line which is impugned in this potition. They worked say for about 4 5 years without any clamour from any quarters I assume. I was told by Mr. Raval at the Bar that one such petition is pending in this High Court. All I want to emphasise is that speaking for myself I am not in a position to express an opinion that the impugned Rules are by no stretch of imagination attract rationality or reasonableness. In order to drive his point home Mr. Raval tried to illustrate. Referring to Rule 8. 2 quoted above he pointed out some instances taking Gynaecology subject as an illustration. Say for example a student fails at the third M. B. B. S. examination in that subject and gets only 180 marks. At the second attempt because of the concentrated study he gets 300 marks. For the purpose of preparing the merit list under Rule 8. 2 his marks in that subject will be treated as the average of the two attempts namely 240 This illustration cannot serve the purpose of Mr. At the second attempt because of the concentrated study he gets 300 marks. For the purpose of preparing the merit list under Rule 8. 2 his marks in that subject will be treated as the average of the two attempts namely 240 This illustration cannot serve the purpose of Mr. Raval because as against 300 marks secured by him at the second attempt in that subject he gets the benefit of only 240 for the purpose of determination of the meritlist. The second instance sited by Mr. Raval was of a student who on the first occasion in that subject secured only 180 marks and secured 240 marks at the successful second attempt Here also the average of marks in that subject would come to 210 and for the purpose of merit list his marks in that subject will be treated as 210 and not 240. This also cannot be said to be giving any advantage and in the words of Mr. Raval putting a premium on the failures. The third situation envisaged by Mr. Raval was that a student at the first trial secured 225 marks in Gynaecology subject but failed in other subjects. At the second attempt he cleared those two subjects. He would get the benefit of 225 marks I find nothing adverse in this. The fourth conceivable instance shown by Mr. Raval was of a student getting 240 marks in that subject and still failing because of his having not getting 50% marks in practicals of that subject. On the second occasion say he secured 200 marks his average would come to 220 though he had got only 200 marks in that subject at the second attempt. I am not in a position to say that he stands to gain because of his 220 marks in that subject at the second attempt because he forfeits the benefit of his having secured 240 marks on the earlier occasion. I am not in a position to say that he stands to gain because of his 220 marks in that subject at the second attempt because he forfeits the benefit of his having secured 240 marks on the earlier occasion. So I am not in a position to conceive of a situation in which there would be perceptibly undue advantage available to a students because of the impugned Rule 8 I do not rule out the possibility of some stray cases of some marginal benefit but when any norms are laid down for general application in some peripheral details they may work hardship to say an individual or two but such rare cases would not go to vitiate the rule itself. The Supreme Court in the case of KAMAL KANTI DUTTA V. UNION OF INDIA and ORS. A. I. R. 1980 S. C. 2056 paragraph 52 has laid down that in regard to the individual instances cited before use as exemplifying the injustice caused to the promoters it is not safe to test the constitutionality of a service rule on the touehstone of fortunes of individuals. The Supreme Court further observed that no matter with what care objectivity and foresight a rule is framed some hardship inconvenience or injustice is bound to result to some members of the service. ( 14 ) COMING to Rule 8. 2 also I found that the apprehension of the petitioners or some hypothetical case is more imaginary than real. A thorough search was directed to be made all the candidates in the merit list of the current year to be found at Annexure A to the petition. Not a single instance could be found out where an undue advantage was available to the students because of the operation of Rule 8. 3. There may be a case where if a candidate did not appear in full examination of any subject that is theory and practical in some subject he may get 50% marks in that subject but such instances are very uncommon and cannot be projected for the purpose of establishing unconstitutionality of Rule 8. 3. So the second prong of attack by Mr. Raval also should fail. ( 15 ) THIS brings me to the last but not the least argument of Mr. Raval which in my view should command itself to me. 3. So the second prong of attack by Mr. Raval also should fail. ( 15 ) THIS brings me to the last but not the least argument of Mr. Raval which in my view should command itself to me. I have already shown above that imparting of instructions and training in postgrad uate studies is the exclusive concern of the University. With reference to certain Ordinances and statutes also with reference to postgraduate Rules and also with reference to certain provisions of the Gujarat University Act I have shown that it is the vital function of the University to coordinate and manage the educational functions in respect of all branches of learning including medicine. It is for this purpose that registration of students is to be done by the University and not by any other authority The Dean of the B. J. Medical College and the Assistant Registrar of the University appear to be at their wits end when we peruse their affidavits. The Dean states as already quoted by me above that the University which is incharge of every centre for post graduate teaching has left the things to him as the delegate of the Gujarat University. A university is a statutory body and it takes its decisions not by actions but by resolutions. I asked a pertinent question to Mr. Shelat the learned advocate for the University whether there was any resolution of the University or any of its Competent constituent bodies leaving the question of registration to the good sense of the Dean of the College with or without his being assisted by the Professor or professors in charge of the various subjects. Mr. Shelat frankly and fairly stated that there was no such resolution ever passed by the University itself or any of its constituent bodies. What is therefore relied upon is the time honoured practice. In the matter of a body created by statute and living by statute such delegations by practice cannot be permitted at law A body created by statute lives and acts by the statute. It breathes the air of the statute and I would say that a public body like a University has got only those powers which are given to it by law and none other unlike a citizen who has got all powers except those which are forbidden by law. It breathes the air of the statute and I would say that a public body like a University has got only those powers which are given to it by law and none other unlike a citizen who has got all powers except those which are forbidden by law. Ifi ist the function of the University to grant registration it cannot mechanically and blindly adopt the merit list prepared by the Dean for the purpose of appointing residents in a particular subject. Let us assume that the Dean is the agent of the University at that particular centre. If the Dean acting for and on behalf of the University applies his mind to the rationality or other wise of the norms of registration the matter perhaps may be different but the Dean in his another capacity as the servant of his master the State Government dutifully and respectfully adopts the standard prescribed by the Govt. for an altogether different purpose. There were inconsistent arguments advanced on behalf of the respondents in this regard. At one stage it was stated that the impugned Rules are the Rules only for the purpose of granting the posts of residents. If it were so they could not be invoked by the Dean for the purpose of saying that these rules were found by the Dean to be reasonable and rational for the purpose of recommending registrar and he had therefore adopted the same in his own discretion and wisdom for the purpose of recommending registration. This is patent conflict in the two stands taken on behalf of the respondents in this regard. If it is the function of the University to grant registration it has to be done by the University alone and it cannot assign this important administrative function to one of its functionaries may be a highly placed person. It was the charge of the petitioners and I uphold it that the University has been mechanically adopting the list prepared by the Dean and this blind mechanical adoption of the list is amply illustrated by the fact that two different centres imparting post graduate training in the University area are sending the socalled merit lists of resident Doctors in various subjects on different criteria. It is an admitted position that the criteria adopted by the State Government and dutifully followed by the Dean of the B. J. Medical College assuming that he is the agent of the University is different from the criteria adopted by the Dean of the Municipal College for the very purpose. If the University had applied its mind at all to this problem this different criteria would have at once struck its discretion and power of thinking. All that the University has been doing all these years is to give a green signal to the lists prepared by the respective Deans who in their other capacity as the employees of their masters blindly and blissfully follow the criteria laid down by them. This is exfacie unreasonable. An august body like a University cannot adopt two different standards in respect of the self same matter simply because the students seeking registration come from two different centres. Those who come from B. J. Medical College and those who come from the Municipal College are similarly situated and the different standards cannot be adopted by the University for the purpose of granting registration. This is a clear case of non application of mind and also abdication of its functions by the University and in my view there is no escape from this legal position which unfortunately was not taken with any serious challenge so far. The illegality or unconstitutionality or ultra vires character of an action of a public body cannot be validated by passage of time. So the plea of time honoured practice vigorously put forward by the Dean of the B. J. Medical College cannot render any assistance to the case of the Dean of that College or of the University. ( 16 ) MR. A. H. Mehta the learned advocate appearing for the contending respondents quite rightly emphasised that appointments of residents in a particular subject cannot be divorced from registration of a student in a particular subject. He also rightly urged that in the wider interests of the students seeking to prosecute post graduate studies there should be a complete harmony between the Government entitled to filling in the posts of resident Doctors and the University granting registration to the students to the post graduate studies. However this harmony cannot be achieved at the cost of law. He also rightly urged that in the wider interests of the students seeking to prosecute post graduate studies there should be a complete harmony between the Government entitled to filling in the posts of resident Doctors and the University granting registration to the students to the post graduate studies. However this harmony cannot be achieved at the cost of law. If the things as they stand are an indicia the Governments power in respect of education were no longer existant under Article 162 of the Constitution of India when the Gujarat University Act 1949 came to be enacted. The executive powers and the special powers under Article 162 of the Constitution of India are in respect of those matters regarding which there is no legislative provision. If the Gujarat University Act is there and the delegated legislation is resorted to by the said University lawfully those statutory provisions must give way the action of the Government. So the much needed lack of harmony or discord on the subject is having no place in the picture. The Government has to respect the Rules made by the University for the purpose of registration and while filling in the posts of Resident Doctors and allotting them subjects for the purpose of residency it is rather the Government that should respect the Rules framed by the University. As this is not done it is reversing the whole process or of position. ( 17 ) THE challenge therefore levelled in this petition succeeds and against the action of the University and the Dean of the B. J. Medical College cannot be allowed to stand and 1 therefore allow this petition by quashing the said merit list in so far as it indirectly but decisively pertains to registration in the subject. I issue a writ of mandamus directing the Gujarat University to frame the Rules governing the selection for registration of post graduate students in different benches of medicine and direct the University to prepare the meritlist of persons eligible to be registered as post graduate students on the basis of those norms to be laid down by the University in the course of a week from today. As a corollary I issue an injunction restraining the respondent Nos. 1 to 3 from implementing the list at Annexure A to the petition for the purpose of recommending registration in those various subjects. As a corollary I issue an injunction restraining the respondent Nos. 1 to 3 from implementing the list at Annexure A to the petition for the purpose of recommending registration in those various subjects. Rule is accordingly made absolute with no order as to costs. ( 18 ) AT the request of Mr. Raval I clarify that what I have observed about the rationality of the Governments rules particularly Rules 8. 2 and 8. 3 is not to be taken as a confirmed opinion of this court by the University when it takes upon itself to lay down the norms for the purpose of registering the students for postgraduate medical education. Petition allowed. .