JUDGMENT K.N. Goyal, J. - The petitioner is an M.B.B.S. He applied for admission to M. D. (Medicine) course. He secured art index of 59.80 marks according to the method of calculation prescribed by the authorities. There were 16 seats iii all out of which 12 seats were reserved for students of K.G. Medical College while 4 were open for all against those 12 seats, there were 18 candidates. The 10th candidate of the list Was Dr. M.S. Siddiqui who secured 62.17 % marks the 11th candidate was Dr. R.C. Saxena who Secured 62.04% marks the 12th candidate was Dr. Chaitanya Dev who secured 61.53% marks, the 13th candidate was Dr. V.S. Agnihotri, who secured 59.9% marks the 14th candidate was the petitioner who secured 59.80% marks, the 15th candidate was Dr. Nagendra Pal Singh who secured 59.17/ marks. The 16th candidate was Dr. A.K. Jain who secured 58.80% marks. 2. Dr's R.C. Saxena V.S. Agnihotri and the petitioner were however rejected on the ground that they had already done either M.D. or A Diploma course in Some other subject After excluding these three Dr. Nagendra Pal Singh who had secured less marks than the petitioner was given admission. It is undisputed that Dr. A.K. Jain was also given admission in the month of September, 1984 against one of the open seats when an outsider who had been selected for the same failed to turn up. 3. Repeated opportunities were given to the opposite parties to file counter affidavit. They have, however, now produced the record before us. Accordingly, the requirement of filing a counter affidavit has been dispensed with. 4. We have heard the learned counsel for the parties on the basis of the material placed before us. 5. The contention on behalf of the State is that in the application form, there was mention of a rule to the effect that any person who had already secured a postgraduate degree or a diploma would not normally be considered for admission to enter postgraduate degree course unless he is granted exemption either on the ground that he has secured 65% marks or more or that some seats remain vacant. As the petitioner did not secure 65 % marks and as no seats remained vacant, he could not be considered under the exemption clause. 6. As the petitioner did not secure 65 % marks and as no seats remained vacant, he could not be considered under the exemption clause. 6. It appears that this condition regarding exclusion of those who have completed a postgraduate course or a Diploma course was prescribed by the Admission Committee in May, 1982. However, this condition was not mentioned in the rules made by the Government under Section 28(5) of U.P. State Universities Act. It was held by a Division Bench of this Court in Writ Petition No. 1662 of 1981 Dr. R.C. Agarwal v. State of U.P. and others decided on 1101981 that a similar earlier recommendation of the Admissions SubCommittee had no statutory basis and could not prevail over a subsequent Government notification under Section 28(5) which did not provide for any such restriction. It appears that the matter was thereafter taken to the Hon'ble Supreme Court in Krishna Priya Ganguly etc. v. University of Lucknow and others, reported in AIR 1984 S.C. 186 . In that decision, various other questions were considered but the correctness of the aforesaid decision of this Court about the restriction being not statutory and being not enforceable was not convassed or adjudicated upon by their Lordships. Thus the decision of the Division Bench in Dr. R. C. Agarwal's case (Supra) is binding on this Bench. The language of Section 28(3) and of Section 28(5) also indicates that the power of the Admission Committee to lay down the principles or norms governing the policy of admission is subject to the rules notified by the State Government under Section 28(5). Learned Counsel for the State has placed before us a D.O. letter issued by the Joint Secretary, Medical to the Principal of the Medical College on 27384. It says that a Committee consisting of all the Principals was convened under the Chairmanship of the Director, Medical Education on 23rd February, 1984. That Committee could not arrive at any agreed decision. Thereafter the Director had suggested certain guidelines for admission to postgraduate course and in the rules suggested by the Director also, it is laid down that candidates who already hold a postgraduate/degree/diploma qualification in one subject shall not be entitled for admission in another second subject. That Committee could not arrive at any agreed decision. Thereafter the Director had suggested certain guidelines for admission to postgraduate course and in the rules suggested by the Director also, it is laid down that candidates who already hold a postgraduate/degree/diploma qualification in one subject shall not be entitled for admission in another second subject. It is to be noted that this guideline as suggested by the Director and incorporated in the D.O. letter of the Joint Secretary, does not even contain any provision of exemption to candidates who have secured 65% marks of more, nor does it provide for any exemption hi respect of seats remaining vacant. Apart from this lacuna, it is to be noted that Section 28(5) requires that any rules to be made by the State Government shall be notified in the Gazette. This D.O. letter dated 27384 cannot be treated as Gazette notification, A Gazette notification is normally issued after obtaining higher orders of Minister incharge and after vesting by Legislative Department, and a D.O. letter of Joint Secretary cannot take its place. 7. In this view of the matter, it is clear that Dr's R.C. Saxena, V.S. Agnihotri and A. K. Garg were wrongly excluded while granting admission to Dr's Chaitanya Dev, Nagendra Pal Singh and A.K. Jain. However, the candidates already given admission are not before us, and moreover they have already been enrolled for some months now and it would not be expedient to displace them. At the same time, it is noteworthy that this Writ Petition was filed quite promptly soon after the admissions were finalised. Even during the pendency of the writ petition, the authorities went on taking time and they also granted admission to Dr. A.K. Jain while ignoring the case of the petitioner. The petitioner should not, therefore, suffer merely on the ground of delay in disposal of the petition. 8. The learned counsel for the State has pointed out that granting admission to the petitioner or to Dr. R.C. Saxena and Dr. V.S. Aghihotry will disturb the one to one (1 : 1) ratio between postgraduate teachers and postgraduate students. Even if all the three be interested then the fati6 will be disturbed only to the extent that against 16 postgraduate teachers there would be only 19 postgraduate students. The departure will thus not be substantial. R.C. Saxena and Dr. V.S. Aghihotry will disturb the one to one (1 : 1) ratio between postgraduate teachers and postgraduate students. Even if all the three be interested then the fati6 will be disturbed only to the extent that against 16 postgraduate teachers there would be only 19 postgraduate students. The departure will thus not be substantial. At any rate, the petitioner cannot be penalised for the fault of the authorities. There was no justification for the authorities continuing to follow a particular rule when a similar rule in similar circumstances had beenheld to be bad by this Court as far back as in 1981. 9. In the result, the writ petition is allowed and the oppositeparties are directed to grant admission to the petitioner in M. D. (Medicine) course forthwith. Dr. R.C. Saxena and Dr. V. S. Agnihotri have not approached this court but they, have a better case than the petitioner's. It will, therefore, be appropriate for the authorities to make an offer to them also and give them a few days time to join if they are interested so that they may not have to approach this Court separately. 10. Let a copy of this order be given to the petitioner on payment of necessary charges by tomorrow, if possible.