JUDGMENT H.N. Seth, Actg. C.J. - Aggrieved by the action of the Principal of the S. N. Medical College, Agra (hereinafter referred to as the Agra Medical College), in not admitting the petitioner to the M.S. Course in Orthopaedics in the year 1983, petitioner Amarendra Kumar has approached this Court for relief under Article 226 of the Constitution. 2. The Government of Uttar Pradesh had sanctioned four seats for admission to M. S. Course in Orthopaedics at the Agra Medical College. Notification, dated 15th of Dec. 1982, issued by the State Government, in exercise of its powers under S. 28(5) of the U.P. State Universities Act, laid down that 75% seats in M.S. Courses in various Medical Colleges in the State, stand reserved for candidates who pass their M.B.B.S. examination from the same college (internal candidates). Remaining 25% seats are to be filled on the basis of merits by the internal as well as candidates who have done their M.B.B.S. Course from other Medical Colleges (external candidates). It also provided that only such students. who secure at least 55% marks in their M.B.B.S. examination would be eligible for admission to the M.S. Course. 3. In due course in the year 1983, the Principal of the Agra Medical College invited applications for filling four vacancies in M.S. Course in Orthopaedics. A number of candidates including the petitioner, who fulfilled the requisite qualification, applied for admission to the said course. As no candidate, who had passed his M.B.B.S. examination from the Agra Medical College who had secured 55% marks or above, was available, the Principal did not fill the three vacancies in the M.S. course in Orthopaedics. He admitted only one Dr. Subodh, who had done his M.B.B.S. course from a Medical College other than the Agra Medical College and kept the remaining three vacancies unfilled. 4. According to the petitioner, in case no candidate, who had done his M.B.B.S. Course from Agra Medical College, was available, the Principal was bound to fill all the four vacancies by candidates, who had done their M.B.B.S. course from other Medical Colleges. As, amongst the candidates from other Medical Colleges, the petitioner stood third in order of merit, the respondents were bound to admit him to the said M.S. course. He, therefore, filed the present petition, claiming relief under Article 226 of the Constitution on 2nd Sept. As, amongst the candidates from other Medical Colleges, the petitioner stood third in order of merit, the respondents were bound to admit him to the said M.S. course. He, therefore, filed the present petition, claiming relief under Article 226 of the Constitution on 2nd Sept. 1983 and obtained an interim order to the effect that in the meantime, he be provisionally admitted to the M.S. in Orthopaedics course of the Agra Medical College provided there was no other external candidate who had secured higher percentage of marks and had pressed his claim for this purpose. In the result, the respondents permitted the petitioner to pursue the M.S. course in Orthopaedics on provisional basis. 5. The respondents put in appearance and contested the relief claimed in the writ petition, mainly on the ground that as per Government Notification dated 15-12-1982, issued by it under S. 28(5) of the U. P. State Universities Act the petitioner, who was an external candidate, was not entitled to be accommodated as against the three vacancies which were reserved for the internal candidates. According to the respondents, if sufficient number of candidates, who had done their M.B.B.S. course from the Agra Medical College are not available to fill 75% seats reserved for them, those seats cannot be filled by the external candidates, who are to be accommodated only against remaining 25% seats. In this case, only one seat in M.S. Orthopaedics course was available for accommodating external candidates and Dr. Subodh. who, as compared to the petitioner, stood higher in merits had been accommodated against that seat, hence petitioner is not entitled to the relief claimed by him. 6. Having considered the submission made by the parties, we are of opinion that aforementioned stand of the respondents is not tenable. 7. Keeping in view the recommendations made by the Medical Council of India, the State Government issued a notification, dated 15th Dec. 6. Having considered the submission made by the parties, we are of opinion that aforementioned stand of the respondents is not tenable. 7. Keeping in view the recommendations made by the Medical Council of India, the State Government issued a notification, dated 15th Dec. 1982, in exercise of its power under S. 28(5) of the U.P. State Universities Act laying down the criteria for and the manner in which the admission to post-graduate courses (Degree and Diploma) in various Medical Colleges in the State are to be made from amongst the bona fide residents of the State, it provides that no candidate shall be eligible for admission to post graduate course who has obtained less than 55% marks in the M.B.B.S. examination calculated in the manner indicated therein and that such admissions are to be made only on the basis of merit. The Rules do not purport to make any bona fide resident of Uttar Pradesh, who has done his M.B.B.S. Course from any of the Medical Colleges in the country, ineligible for admission to the post-Graduate Degree Course in various Medical Colleges of the State, Para 4 of the said Notification merely provides for a preference being given to the internal candidates in regard to 75% seats in various Post-Graduate Course in any particular Medical College. This Notification issued by the State Government does not appear to convey that where the internal candidates to fill the 75% vacancies in a Post-Graduate course in any particular speciality are not available, the said seats should remain unfilled and that in respect of such seats the cases of the external candidates who are bona fide residents of Uttar Pradesh, and are eligible for admission to the Post Graduate course, should not be considered. Main idea underlying the stipulation is that where suitable internal candidates are available 75% vacancies should be filled on the basis of merits by them and remaining 25% seats should be filled on merits by internal as well as external candidates. The stipulation, in our opinion, clearly implies that in case the eligible internal candidates are not available for admission to fill all the 75% seats reserved for them, the unfilled seats as also the remaining 25% seats should be filled from amongst the eligible bona fide residents of the State who have passed their M.B.B.S. examination from other Medical Colleges. The stipulation, in our opinion, clearly implies that in case the eligible internal candidates are not available for admission to fill all the 75% seats reserved for them, the unfilled seats as also the remaining 25% seats should be filled from amongst the eligible bona fide residents of the State who have passed their M.B.B.S. examination from other Medical Colleges. As in the instant case no eligible internal candidate was available for filling any of the vacancies in Post-Graduate course in Orthopaedics in the Agra Medical College, all the four seats had to be filled in order of merit from amongst the bona fide residents of the State, who were eligible for the purpose and who had done their M.B.B.S. from other Medical Colleges. The respondents were accordingly bound to consider petitioner's application for admission to Post-Graduate course in the speciality of Orthopaedics as against all the four seats that were available for the purpose. 8. Learned counsel for the Principal, Agra Medical College then contested petitioner's assertion that amongst the candidates seeking admission to M.S. Orthopaedics course he stood third in order of merit and was entitled to be adjusted against one of the four seats. According to him various candidates who applied for admission to the M.S. course in Orthopaedics had been ranked thus :- 1. Dr. Irwin Kumar 61%   Marks 2. Dr. Subodh Kumar 58.67%   " 3. Dr. J. K. Singh 58.63%   " 4. Dr. R. N. Singh 58.6%     " 5. Dr. Sajjad Hussain 57.48%   " 6. Dr. A. K. Dubey (Petitioner) 57.00%   " 9. In as much as the petitioner ranked 6th in order of merit he was not entitled to be admitted as against any of the four seats in Post Graduate (Degree) course in Orthopaedics. 10. As already stated, the respondents had admitted only Dr. Subodh Kumar to the M.S. course in Orthopaedics. Apart from the petitioner, two external candidates, namely, Irwin Kumar and Dr. J.K. Singh had, by means of separate petitions, questioned the validity of the action of the Principal in not admitting them to the M.S. course in Orthopaedics. Both of the them obtained interim orders enabling them to pursue their studies for the M. S. courses in Orthopaedics at the Agra Medical College. Dr. R.N. Singh and Dr. J.K. Singh had, by means of separate petitions, questioned the validity of the action of the Principal in not admitting them to the M.S. course in Orthopaedics. Both of the them obtained interim orders enabling them to pursue their studies for the M. S. courses in Orthopaedics at the Agra Medical College. Dr. R.N. Singh and Dr. Sajjad Hussain, who as compared to the petitioner stood higher in merit did not question the action of the respondents in not admitting either of them to the M.S. course in Orthopaedics. The entire term is over and even the Final Examination of the candidates who had taken admission for the M.S. course in the year 1983, has taken place. It thus appears that even though Dr. R.N. Singh and Dr. Sajjad Hussain, who as compared to the petitioner stood higher in merits (they) were not interested in pursuing the post-graduate course in Orthopaedics and that they have given up their claim for admission to the said course. Once Dr. R.N. Singh and Dr. Sajjad Hussan gave up their claim, the petitioner became entitled to be accommodated in the said M.S. course as against the fourth vacancy. In the circumstances, the second submission made on behalf of the respondents also cannot be accepted. 11. It may be mentioned that during pendency of this petition, the respondents were also directed to permit the petitioner to appear in the M.S. Examination in Orthopaedics, which took place in the month of Sept. 1985, but then they have not declared his result so far. In as much as we have found that the petitioner was entitled to be admitted as against the fourth seat in the M.S. Orthopaedics course of the Agra Medical College, his provisional admission, made in pursuance of this Court's interim order, has to be treated as regular admission and his result in respect of the M.S. Examination held in the month of Sept. 1985, has got to be declared. 12. In the result, the petition succeeds and is allowed. The respondents are directed to treat the provisional admission of the petitioner to the M.S. Course in Orthopaedics made in pursuance of this Court's order dated 2nd Sept. 1983, as regular admission to the said course and to declare the result of the examination taken by him in the month of Sept. 1985. The petitioner is entitled to his costs.