JUDGMENT R.M. Sahai and Om Prakash, JJ. - Aggrieved by the refusal to admit petitioners in Master of Surgery (M.S.) in Gynaecology and Obstetrics in S.N. Medical College, Agra, Dr. (Miss) Noor Banu, Dr. (Smt.) Sudha Agarwal, and Dr. (Miss) Neelam Banera Nee Jain approached this Court under Article 226 of the Constitution of India. Their petitions were admitted and they were granted provisional admission on, order not favourably commented upon, but which was not only necessary as shall appear hereafter, but its denial could have resulted in grave injustice. Each petitioner had completed her term also but declaration of their results awaits the decision of this Court. 2. Dr. (Smt.) Sudha Agarwal obtained her Bachellor's degree in Medicine in December, 1978 from the aforesaid college and Secured 58 percent in aggregate. She completed her internship in January, 1980 and her House - job in January 1980. During this period of one year she worked as Resident paid house Surgeon for approximately nine months and for the remainder she worked as Honorary Clinical Attache. After the House job she was admitted to one year diploma course in Gynaecology and completed the same successfully. In June, 1982 she applied for admission in M.S. Course. But she was excluded from it because she had not completed one year Houseman - ship as the period of Clinical attachment which was honorary could not be tagged to the period as a resident paid House Surgeon which was paid. 3. Dr. (Miss) Noor Banu, after graduation from the same College did her internship and house job in 1981, obtained diploma and joined provincial service. In 1982 while she was posted as Medical Officer in Lady Lyal Hospital, Agra, she applied for M.S. Course. Alongwith her application she attached the application sent by her to Director, Medical Health Services for granting her a no objection certificate or to accept her resignation. The application was forwarded by Senior Medical Superintendent (Women), Hospital. She was not admitted because her application was not accompanied by a no objection certificate from the Head of Department nor it was forwarded through proper channel that is, Director of Medical Health Services, Lucknow. 4. Dr. The application was forwarded by Senior Medical Superintendent (Women), Hospital. She was not admitted because her application was not accompanied by a no objection certificate from the Head of Department nor it was forwarded through proper channel that is, Director of Medical Health Services, Lucknow. 4. Dr. (Mrs.) Neelam Banera, a graduate from Gajraj Medical College, Gwalior in 1980 with 59 per cent marks in aggregate, after doing her internship and obtaining registration applied for post-graduate degree and diploma course in Obstetrics in the aforesaid college in June, 1982 in prescribed form alongwith a certificate from District Magistrate regarding her bona fide residence in Uttar Pradesh. As she was from outside that is, external candidate, she could be admitted against 25 percent Seats reserved for such candidates. But she was denied admission because Dr. (Smt.) Sushma Varshney, an internal candidate had also opted for being considered against the reserved quota for external students and her aggregate was 60.47 per cent. 5. Admittedly there were six seats in M S. Course admission to which was governed by Instruction Sheets issued by Principal and Chief Superintendent of the College. Copy of which has been filed as Annexure to these petitions. It is further not disputed that six candidates were granted admission and the highest aggregate marks was 60.67 per cent whereas the lowest was 56.60 percent Clause (2) of the instructions provides that a candidate must have obtained full registration after completion of one year compulsory rotating internship as subsequently he or she must have done one year houseman - ship, prior to the post graduate degree or diploma course. It is required that the houseman - ship would preferably be for one year in the same subject or atleast six months in the same department and the remaining six months in the allied department. Further relaxation has been given in certain other departments. But there is no provision nor it is the case of opposite party that honorary house - man - ship does not amount to houseman - ship as contemplated in clause (3). The job of houseman - ship in Medical college is preparatory or a part of post-graduate training in the subject in which the candidate intends to obtain higher degree Normally, the job of housemanship is paid as it is based on principle learn and earn. The job of houseman - ship in Medical college is preparatory or a part of post-graduate training in the subject in which the candidate intends to obtain higher degree Normally, the job of housemanship is paid as it is based on principle learn and earn. But if someone is permitted to learn without earning and one opts for the same, his other working as houseman cannot be said to be affected. By working as a honorary houseman, one does not become a house surgeon or house physician less than a person who does it without receiving any allowance. Further from instruction it appears that houseman - ship of one year is necessary both for diploma course and post-graduate course. If Clinical attachment or Honorary Job as a houseman did not disqualify Smt. Sudha Agarwal from being considered for diploma course, it is not understandable how she was excluded from post graduate course. Even if there was some drawback, it stood removed after opposite parties permitted her to complete her diploma course. Therefore, the rejection of her application in M.S. Degree course, only because she was not paid for the houseman - ship job for three months was clearly against the instructions. In rejoinder affidavits numerous instances have been cited to demonstrate that opposite parties had granted admission to various doctors in post-graduate course even though they had been Clinical at tache for few months during houseman - ship and were not paid. Although copy of this affidavit was served on 20th January, 1983 and yet opposite parties did not choose to file any reply and therefore, their action on these allegations becomes arbitrary as the law does not permit application of different yardstick for similarly situated. But as stated earlier it is not necessary to base the decision on it as even on the rules as it stands and on facts undisputed, the petitioner was entitled to admission in M.S. Course. 6. Clause (4) of the Instructions - sheet provides that candidates in service must apply through their employer alongwith a no objection certificate and Such applications will be considered only when it is accompanied by the certificate clearly stating that the requisite leave will be granted. Such admission will only be provisional and become final after receipt of leave orders by 7th July 1982 failing which the admission will be treated as cancelled. It is not disputed that Dr. Such admission will only be provisional and become final after receipt of leave orders by 7th July 1982 failing which the admission will be treated as cancelled. It is not disputed that Dr. (Miss) Noor Banu was employed at Agra and She submitted her application alongwith a copy of the application sent by her to Director, Medical Health Services (Women), Lucknow for issuing a no objection certificate. In this letter it was mentioned that in case it was not possible to grant her no objection certificate the letter may be treated as a resignation letter. The application was forwarded by the Superintendent of the hospital where petitioner was employed. The Director Medical Health Services instead of granting no objection certificate accepted her resignation, the copy of this has been filed alongwith rejoinder - affidavit. It is, therefore, true that no objection certificate as required was not attached with the application but the authorities did not properly appreciate that the instructions required that petitioner should have been granted provisional admission which should have become final only after orders were received either granting leave to petitioner or rejecting it. Even otherwise the petitioner having rendered resignation and the same having been accepted by the Director she did all that she could to enable her to obtain admission in accordance with instruction sheets, issued by Superintendent of the College. In refusing to grant her admission the authorities did not act in accordance with clause (4) of the Instruction - sheet. 7. But the most glaring irregularity appears to have been committed in case of Dr. (Mrs.) Neelam Benera. Clause (10) of the Instruction - sheet provides that 75 percent Seats will be filled up by the graduates of S.N. Medical College, and the remaining 25 percent Seats will be filled through the combined merits of the local as well as outside candidates who are bona fide resident of Uttar Pradesh strictly on the basis of merit as per order of Government of Uttar Pradesh. The intention of the rule is apparent that 75 percent Seats available in a particular faculty may be filled by the candidates on the basis of merit, and in respect of remaining that is 25 percent Seats the internal candidates will have to compete with the external candidates on basis of aggregate secured by them. The intention of the rule is apparent that 75 percent Seats available in a particular faculty may be filled by the candidates on the basis of merit, and in respect of remaining that is 25 percent Seats the internal candidates will have to compete with the external candidates on basis of aggregate secured by them. The college, however, appear to have passed a resolution, paragraph 1 of which reads as under :- "In the department whose internal candidates have desired that they should be allowed to compete in merit with outsiders it was decided that they may be permitted to do so in respect of 25 per percent Seats of outsiders." It is very difficult to appreciate this resolution as Clause (10) of the Instruction - sheet itself provides that an external candidate will have to compete with internal candidate on the basis of merit. But the purpose of this resolution is to defeat the objective of the rule by excluding external candidate altogether. How it can be done is demonstrated by this case itself. Dr. Sushma Varshney had secured 60.47 percent marks, the highest amongst the internal candidates who had obtained M.S. in Gynaecology. She could have been admitted automatically without assistance of any rule against 25 per cent quota. The third candidate who has been admitted secured only 57.77 per cent, that is much less than Dr. Neelam. If the application of Dr. (Miss) Neelam would have been considered with internal candidates for 25 percent it is obvious that none of the candidates could have competed with her on merit. The only way in which she could be excluded was if any internal candidate who had obtained better aggregate than her was willing to be considered against this post and for this purpose an application appears to have been procured from Dr. Sushma Varshney as the contents of her letter clearly demonstrates. It would be useful to quote the same : "Respected Sir, I beg to say that will be grateful to you if you if you kindly consider me amongst those 25 percent Students applied for M.S. Gyanecology and Obstetrics, who have to compete with outsiders for admission. I am making this request so that my fellow students may be helped and fully take the risks. It may be mentioned that application of Dr. Noor Banu had already been received on 21st June, 1982. I am making this request so that my fellow students may be helped and fully take the risks. It may be mentioned that application of Dr. Noor Banu had already been received on 21st June, 1982. The letter of Dr. Sushma Varshney is dated 22nd June, 1982. The authorities may have been anxious to accommodate the internal candidates but the manner in which it has been done leaves much to be desired. Further the resolution of the college could not override the rules made by Government which were supplied to the candidates in form of Instructions - sheet. It is not necessary to say any further as it appears the authorities although acted technically in accordance with the resolution but obviously not be said that any action of public authorities which is not fair cannot be upheld. 8. Moreover, now all the three petitioners admittedly have completed their M.S. course. It has been stated in rejoinder affidavit filed on behalf of petitioner that their has been no hard and fast rule and even in the earlier years, post-graduate degree has been granted to students who have been admitted against the requisite strength sanctioned by the college. It was stated on be half of petitioner that Dr. Sushma Varshney and one other doctor left and therefore, the total number of doctors in M.S. was reduced to seven. Therefore, even if refusal by opposite parties would have been in accordance with instructions it would be too hard now to deprive petitioners of their hard labour after a lapse of three years. 9. For the reason Stated above all these petitions succeed and are allowed. As petitioners had been admitted in M.S. Course under orders passed by this Court, the Principal, S.N. Medical College. Agra is directed to declare their results. It is made clear that the decision shall not affect other candidates namely. Dr. Shraddha Yadav, Dr. Renu Gupta and Dr. Gurdevi Rai. The clarification is being made by way of abundant caution. The petitioners shall be entitled to their costs from opposite party no. 1 only.