JUDGMENT - MADHAVA REDDY K., C.J.: - This is petition under Article 226 of the Constitution of India by a Medical Graduate of Marathwada University for a writ of certiorari to quash the order dated February 25, 1984 communicated by the Deputy Registrar, University of Pune, refusing his request to admit him to the M.S. (E.N.T.) Course in B.J. Medical College, Pune and to issue a writ of mandamus directing the respondents to grant him registration for the said Course for the January 1982 Session. 2. The petitioner took his M.B.B.S. Degree from Marathwada University and is a Registered Medical Practitioner practising at Aurangabad. He and a few others applied for registration for the Post Graduate Course for M.S. (EN.T.)/D.L.O. to the Dean, B.J. Medical College, Pune of the Pune University in December 1981 for the Session commencing from January 1982. The admission to the January 1982 Session of the Post Graduate Course in the Pune University was regulated by Rules published in G.R. Urban Development Public Health and Housing Department, No. MCG-2571/24516-O dated the 18th June, 1971. Rule 5 which is relevant in this behalf reads as follows: “Selection of the students amongst those who have applied for admission to the p.g. 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. Examinations. While selecting from amongst eligible candidates preference will be given to the students of the college i.e. who passe their final M.B.B.S. examination from that College in Board specialities, and their ancillary discipline. In the case of super specialities candidates who have qualified form 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. Broad specialities for the purpose of this rules are Medicine, Surgery Obstetrics and Gynaecology, Paediastrics, Super specialities will be Neurology, Cardiology, Nouro-Surgery, Therecis Surgery, Plastic Surgery etc. Broad specialities for the purpose of this rules are Medicine, Surgery Obstetrics and Gynaecology, Paediastrics, Super specialities will be Neurology, Cardiology, Nouro-Surgery, Therecis Surgery, Plastic Surgery etc. While Physieatry, Ophalmology, Orthopaedia, E.N.T., T.B. Radiology, Anastheosiology, skin and V.D. shall be ancilliary broad specialities. When further super specialities or broad specialities develop, the staff committee will notify the category to which new development assigned.” A Merit List of candidates was prepared placing all institutional candidates i.e. candidates who had secured M.B.B.S. Degree from B.J. Medical College, Pune at the top as under: Sr. Name Name of the year of Marks No. University passing obtained 1. Dr.(Miss.) Phadke M.V. Pune Oct. 1980 273 out of 400 2. Dr. Behere A.P. Pune Oct. 1980 234 out of 400 3. Dr. Padwe S.R. Pune Oct. 1980 226 out of 400 4. Dr. Lunawat S.S. Pune Oct. 1980 224 out of 400 5. Dr. Garde S.S. Pune Oct. 1979 200 out of 400 6. Dr. Darshane A.S.S. Marathwada Dec. 1980 212 out of 400 In the list of applicants prepared in the order of merit, the petitioner who secured 212 marks was placed at serial No. 6, while Dr. Garde who had secured only 200 marks out of 400 marks was placed at Serial No. 5. The first four candidates from out of Merit List were selected for admission to the course and all of them joined the Course. The petitioner not having been granted admission to the M.S. Degree Course, took the Diploma Course and was undergoing the course of study. While so on 30th March, 1982, the first candidate selected, viz. Dr. (Miss) Phadke resigned and proceeded to Australia in the first week of April 1982. Coming to know of the resignation of Dr. (Miss) Phadke on 16th April, 1982, the petitioner applied to the Registrar, Pune University to grant him registration in the said vacancy. The petitioner forwarded copies of his application to the Professor, Department of E.N.T., B.J. Medical College, Pune, Dean B.J. Medical College, Pune and Dean, Faculty of Medicine, Pune University. On this application, he obtained the endorsement of Dr. Atre, Professor of E.N.T. to the effect that in case such vacancy is actually taking place, the petitioner may be allowed to register for M.S. There was however, no response to his request from any quarter. On this application, he obtained the endorsement of Dr. Atre, Professor of E.N.T. to the effect that in case such vacancy is actually taking place, the petitioner may be allowed to register for M.S. There was however, no response to his request from any quarter. The petitioner made oral representations to the Dean and ultimately on 29th December, 1983 made a representation to the Registrar in writing seeking certain information and claiming registration. He also asked for copies of Dr. (Miss) Phadke's resignation, if registration was granted to any, the name of that candidate. He addressed a similar letter to the Dean, B.J. Medical College, Pune on 29th December, 1982. Even to this representation, there was no response. Ultimately, he made a representation direct to the Vice-Chancellor on January 7, 1984 referring to two specific cases wherein registration was grant with retrospective effect on the occurrence of vacancy. In reply to this representation, the Deputy Registrar (Academic), University of Pune, sent the impugned communication dated 25th February, 1984. In that communication, it was specifically stated that in the vacancy caused owning to the resignation of institutional candidate in August 1982, that vacant seat was filed in by an institutional candidate for the registration effecting from July 1982. 3. On behalf of the Dean of B.J. Medical College, Pune, respondent No. 4, an affidavit was reply as filed stating that the entire work of Post-Graduate Registration at the B.J. Medical College, Pune was then dealt with by the Registrar, University of Pune, and that he had no remarks to offer. In the affidavit-in-reply filed on behalf of respondents Nos. 2 and 3, the specific stand taken was that the selection was done by the Dean, B.J. Medical College and the University was merely concerned with the registration of the candidates as communicated by the respective Medical Colleges. In effect neither of them owned the responsibility for that selection. However, they seek to support this selection by contending that when the vacancy was notified to the University in August 1982, the 1971 Rules referred to above were no longer in force. They were replaced by 1982 Rules and as per the 1982 Rules, the institutional candidates were to be given preference. Accordingly, Dr. Gaikwad, who was an institutional candidate and who had applied in August 1982, was granted registration. 4. They were replaced by 1982 Rules and as per the 1982 Rules, the institutional candidates were to be given preference. Accordingly, Dr. Gaikwad, who was an institutional candidate and who had applied in August 1982, was granted registration. 4. The petitioner contends (1) that 1971 Rules apply, (2) that candidates who had applied for January 1982 session alone could be considered for filling in the vacancy and (3) that under Rule 5, once the list of applicants for registration prepared in accordance with merit, preference could be given to institutional candidates only where merit is equal, that is, only if two candidates secured same number of marks, but not when a non-institutional candidate has secured higher number of marks, any rule of preference which results in wholly excluding from consideration non-institutional candidates until all institutional candidates, irrespective of their merit are first admitted, constitutes 100% reservation in favour of the institutional and that would violative of Articles 14 and 15 of the Constitution of India. 5. The fact that the petitioner had secured 212 marks is not in dispute. At the time when the Merit List for selecting candidates for January 1982 Session was to be prepared, 1971 Rules alone were in force. In any merit list envisaged by Rule 5, obviously the petitioner should have been placed above Dr. Garde at Serial No. 5 and not at Serial No. 6. Upon Dr. (Miss) Phadke residing on 31st March, 1982, a vacancy arose and the petitioner had applied on 16th April, 1982. The vacancy had arisen in respect of candidates selected for January 1982 Session. Even on the day when the petitioner applied and the session in which the vacancy arose, the 1971 Rules were in force. These Rules were amended for the first time only under G.R.No.MCG-1082/1812/ PH-7 dated 30th July, 1982. Those Rules were further amended under G.R.No.MC/1082/1812/MED-7 dated 20th August, 1983. In our view, there can be little doubt that in order to fill in the vacancy that had arisen during January 1982. Session, only the, 1971 Rules then in force could be applied and not the Rules that were enforced for the first time on 30th July, 1982. Merely because the vacancy was not filled in until August 1982, those Rules cannot be made applicable when the candidate is sought to be registered for January 1982 Session. Session, only the, 1971 Rules then in force could be applied and not the Rules that were enforced for the first time on 30th July, 1982. Merely because the vacancy was not filled in until August 1982, those Rules cannot be made applicable when the candidate is sought to be registered for January 1982 Session. Any Rules made in exercise of the executive authority of the State cannot have retrospective effect. They can only operate prospectively and can govern registration for any Session subsequent to the enforcement of the said Rules. The contention of respondents that 1982 Rules issued on 39th July, 1982 govern the selection and registration of candidates for January 1982 Session or to fill in the vacancies that occurred in March 1982 cannot, therefore, be accepted. 6. It is common ground that the vacancy at occurred in January 1982 Session should be filled in by another candidate; in fact Dr. Gaikwad was granted registration for that Session. Once it is clear that 1971 Rules are applicable to fill in the vacancy occurring in January 1982 Session, it must follow that only those candidates that had applied under the 1971 Rules for registration for January 1982 Session in which Session the vacancy arose, could come up for consideration to fill in that vacancy. Dr. Gaikwad to whom registration was granted in August 1982 against the vacancy that had occurred consequent upon the resignation of Dr. (Miss) Phadke in March 1982 was not an applicant at all for registration for January, 1982 Session. He applied for registration for the first time on 25th August, 1982. Therefore even assuming, as contended by the respondents, so long as there was an institutional candidate, non-institutional candidate could not be considered for registration against the said vacancy. Dr. Gaikwad could not have been considered for registration for that Session. The only other candidate who had applied for registration for the Session was Dr. Garde. Dr. Garde, who had secured only 200 marks out of 400 marks as against 212 marks out of 400 marks secured by the petitioner, in fact, could not have been placed above the petitioner, as would be discussed later. But, even so, Dr. Garde did not apply for registration against that vacancy, for, in the meanwhile, he had secured registration in Armed Forces Medical College at Pune. But, even so, Dr. Garde did not apply for registration against that vacancy, for, in the meanwhile, he had secured registration in Armed Forces Medical College at Pune. Thus, there was no other candidate except the petitioner who could be considered to fill in that vacancy and admittedly he was fully qualified to be granted registration for January 1982 Session. 7. The respondents aver that they came to know of this vacancy for the first time only in August 1982. However, the record placed before us does not support this assertion. We are therefore unable to act on this statement. Even from the letter of the Dean, B.J. Medical College, Pune to the Registrar (Academic), University of Pune dated 23rd August, 1982, it is clear that Dr. (Miss) Phadke had resigned her post with effect from 1st April, 1982, and had left India with her husband and that the registration granted to her on 6th January, 1982 is cancelled. The petitioner, by his letter dated 16th April, 1982, had specifically brought these facts to the notice of all the authorities concerned and had requested that he should be granted registration against that vacancy. It is further clear from the letter of the Dean, B.J. Medical College, Pune to the Assistant Registrar, University of Pune dated 19th February, 1984 that Dr. Gaikwad was recommended for M.S. (E.N.T.) registration in the resulting vacancy of Dr. (Miss) Phadke i.e. for the January 1982 Session. While the petitioner was diligent in seeking the registration against the resultant vacancy, the respondents did not take any action whatsoever thereon. They kept the matter pending and thereafter granted registration against that vacancy to Dr. Gaikwad on the plea that he was an institutional candidate and ignoring that he was not at all an applicant for January, 1982 Session and had applied for the first time only on 25th August, 1982. That action of the respondents, in our view, is quite contrary to 1971 Rules. Admittedly, the petitioner had made representations to all the concerned authorities but none had responded. Only when he received a communication dated 19th January, 1984 on 25th February, 1984, he came to know that Dr. Gaikwad was registered against that vacancy. The petitioner, who moved this Court on 3rd March, 1984, immediately on receiving the written communication dated 25th February, 1984, cannot be accused of being guilty of laches. Only when he received a communication dated 19th January, 1984 on 25th February, 1984, he came to know that Dr. Gaikwad was registered against that vacancy. The petitioner, who moved this Court on 3rd March, 1984, immediately on receiving the written communication dated 25th February, 1984, cannot be accused of being guilty of laches. Nor can the petitioner be denied the relief which he is entitled to merely on the ground that Dr. Gaikwad was granted registration against January 1982 vacancy. 8. Shri Bhonsle, learned Counsel for respondents Nos. 2 and 3, however, contended that even according to 1971 Rules, the petitioner who was not an institutional candidate was not entitled to claim registration until all the institutional candidates were granted admission. According to him, the 1971 Rules provided 100% reservation in favour of institutional candidates and such a reservation was valid. Reliance is placed for this contention on the Full Bench decision of this Court in (The Dean, G.S. Medical College and another v. Dr. (Mrs.) Samina Suhel Khatib and another)1, A.I.R. 1983 Bom. 459 which had expressly dissented from the opinion of the Division Bench in (Dr. Satish B. Deopujari v. State of Maharashtra)2, Writ Petition No. 1974 of 1981, decided on 11-12-1981. The Full Bench noted: “The Division Bench, no doubt, held that the classification based on the circumstance of students passing their final M.B.B.S. Examination from a particular college is based on intelligible differentia, but according to the Division Bench, this classification has no rational nexus with the object of the rules, namely, to secure the best possible talent and material for admission in the Government Medical College.” Declaring that to be not a correct view of the Rule, the Full Bench pointed out that what was intended was to nominate a source from which admissions were to be made, a course which is quite permissible having regard to the decisions of the Supreme Court referred to in the course of the judgment. 9. Sitting in a Division Bench, though bound as we are by the Full Bench decision, we are relieved of referring this matter to a larger Bench having regard to the express pronouncement of the Supreme Court in a later case of (Dr. 9. Sitting in a Division Bench, though bound as we are by the Full Bench decision, we are relieved of referring this matter to a larger Bench having regard to the express pronouncement of the Supreme Court in a later case of (Dr. Pradeep Jain and others v. Union of India and others)3, 1984(3) S.C.C. 654 in which the Supreme Court observed: “The determination of the question as to what in the case of any particular State should be the limit of such reservation based on residential requirement within the State or on institutional preference would however depend upon many social and economic variable factory in the context of educational opportunities. Having regard to the recommendation of the Medical Education Review Committee for fixing the maximum limit of such reservation at 75 per cent, it must be held that such reservation should be in event exceed the outer limit of 70 per cent of the total number of open seats after taking into account other kinds of reservations validly made. The Indian Medical Council is directed to consider within a period of nine months whether the outer limit of 70 per cent needs to be reduced and its decision will be binding on the States and the Union Territories. The Council is also directed to reconsider the outer limit at the end of every three years but in no event the outer limit should exceed 70 per cent. Even where such reservation is made in accordance with these directions, admissions from the source or sources indicated by such reservation shall be based only on merit, because the object must be to select the best and most meritorious students from within such source or sources. But as far as admissions to post-graduate course, such as MS, MD and the like are concerned, it would be eminently desirable not to provide for any reservation based on residence requirement within the State or on institutional preference. There the excellence cannot be compromised by any other considerations because that would be detrimental to the interest of the nation. But as far as admissions to post-graduate course, such as MS, MD and the like are concerned, it would be eminently desirable not to provide for any reservation based on residence requirement within the State or on institutional preference. There the excellence cannot be compromised by any other considerations because that would be detrimental to the interest of the nation. However, having regard to broader considerations of equality of opportunity and institutional continuity in education which has its own importance and value, it must be directed that a maximum limit of 50 per cent of seats may in the present circumstances be reserve on the basis of institutional preference in the sense that a student who has passed MBBS course from a medical college or university, may be given preference for admission to the post-graduate course in the same medical college or university. The outer limit of 50 per cent will also be subject to revision on the lower side by the Indian Medical Council in the same manner as directed in the case of admissions to the MBBS course. But, even in regard to admissions to the post-graduate course, so far as super specialities such as neuro-surgery and cardiology are concerned, 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.” Rule 5 as interpreted by the Full Bench would undoubtedly amount to 100% reservation in favour of institutional candidates and irrespective of their merit, non-institutional candidates would come up for consideration for registration only when institutional candidates are not available. Such a total reservation was held to be violative of Article 14 by the Supreme Court, at least, in so far, as the post-graduate medical course is concerned. The petitioner who is a non-institutional candidate was in the order of merit. In view of the criteria laid down by the Supreme Court that only 50 per cent seats could be reserved for institutional candidates, then in the instant case a maximum of only two out of four seats could be reserved for institutional candidates and not the other two. In view of the criteria laid down by the Supreme Court that only 50 per cent seats could be reserved for institutional candidates, then in the instant case a maximum of only two out of four seats could be reserved for institutional candidates and not the other two. The petitioner being the first and the only non-institutional candidate was entitled to registration even in the first instance in preference to the 3rd and 4th candidates selected and in any case at least to the one seat that was available as a result of the vacancy that occurred on the resignation of Dr. (Miss) Phadke. 10. Here we may add that in our view under first part of Rule 5 under 1971 Rules, merit list has to be prepared strictly on the basis of the marks secured by the candidate irrespective of whether the candidate is an institutional candidate or a non-institutional candidate. Preference envisaged by Rule 5 of 1971 Rules would operate only when two candidates, one an institutional candidate and another a non-institutional candidate coming up consideration secured the same number of marks and the question before the authority selecting the candidates was between those two who should be selected. Only in such a case, preference could be given to the institutional candidate. In a list which ought to be prepared under the first part of Rule 5 strictly in the order of merit and a non-institutional candidate is placed above the institutional candidate, the question of granting preference to the institutional candidate who is placed below him cannot arise. Giving preference to an institutional candidate who is placed below the non-institutional candidate in the order of merit, would result in total reservation of available seats in favour of institutional candidates so long as they are available to the total exclusion of meritorious non-institutional candidates; that is not envisaged by Rule 5. What is envisaged by Rule 5 read as a whole is preference to institutional candidates and not total reservation. If the interpretation sought to be placed by the respondents is accepted as correct, it would amount to total reservation which, as held in the case of Dr. Pradeep Jain and others v. Union of India and others (supra) violative of Article 14 and, therefore, void. If the interpretation sought to be placed by the respondents is accepted as correct, it would amount to total reservation which, as held in the case of Dr. Pradeep Jain and others v. Union of India and others (supra) violative of Article 14 and, therefore, void. In any view of the matter, as discussed above, the petitioner who has secured 212 marks out of 400 marks and who should have been placed in the order of merit at Serial No. 5 and who had applied for registration within 15 days of the occurrence of vacancy at a time when there was no other candidate seeking registration against that vacancy, could not be denied registration. 11. The impugned order is, therefore, quashed and a writ of mandamus shall issue directing the respondents to grant registration to the petitioner for January 1982 Session in B.J. Medical College, Pune with retrospective effect and he shall be given such credit as he is entitled for the Dimloma Course which he has undergone. It is made clear that nothing said herein shall affect the registration of Dr. Gaikwad who is stated to have completed the Course and appeared for examination. 12. In the result, the rule is made absolute. There will be no order as to costs. Rule made absolute. -----