JUDGMENT - S.P. BHARUCHA, J.:---This petition concerns the appointment of a Registrar in the super-speciality of Neurology at the J.J. Group of Hospitals, Bombay, to which is attached the teaching college, the Grant Medical College. 2. The petitioner passed the MBBS examination in January 1981 and the MD examination in December 1984 from the Nagpur University. He then served as Registrar in Medicine in Tirath Ram Shah Charitable Hospital in Delhi. In July 1985 he applied for and obtained registration in the Grant Medical College in the super-speciality of Neurology. 3. On 20th August, 1985 an advertisement was issued by the Dean of the Grant Medical College for the appointment of a Registrar in Neurology. The petitioner and the 4th respondent applied. On 2nd September, 1985 the 4th respondent was appointed. On the same date the petitioner made a representation against the appointment of the 4th respondent. There being no reply he filed this petition on 10th September, 1985 to quash the appointment of the 4th respondent as Registrar and to direct that he be appointed as such Registrar. 4. It is an admitted position that the petitioner obtained 241 marks out of 400 in medicine at the final MBBS examination held by the University of Nagpur, and that the 4th respondent obtained 239 marks out of 400 in medicine at the final MBBS examination held by the University of Bombay. 5. It is an admitted position that the 4th respondent was appointed to the post of Registrar only upon the basis that he was an institutional candidate, that is to say, that he was a student of the Grant Medical College. 6. It is an admitted position that over a span of two years only 3 posts of Registrar in Neurology are available at the Grant Medical College. It is an admitted position that, as the relevant rule, to which I shall immediately refer, stands, no non-institutional candidate can be appointed as a Registrar in Neurology so long as any institutional candidate applies for the post; that except for the hospitals to which two Municipal Medical Colleges in Bombay are attached no other teaching hospital in the State offers a Registrarship in Neurology; and that a similar rule operates in those two hospitals. 7. By a Government Resolution dated 26th June, 1971 Rules for the Appointment of Registrars in Government Hospitals were approved. These rules are presently in operation. 7. By a Government Resolution dated 26th June, 1971 Rules for the Appointment of Registrars in Government Hospitals were approved. These rules are presently in operation. Rule 1 provides for the appointment of a Selection Committee to select Registrars for vacancies arising in the hospitals therein named, including the J.J. Group of Hospitals. Rules V and VI provide for preference and the basis for selection. Rule V and Rule VI, so far as it is relevant, read thus : R. V. "Preference.---The persons who have already registered as postgraduate students and have done two house posts, will be eligible for regular Registrar's posts, preference being given to those who have passed the final MBBS examination from the Medical College to which the teaching hospital where the posts are vacant is attached. Amongst those preference will be given to those registered for Degree where both degree and Diploma are in existence....... R. VI. Basis for Selection.---The basis for selection as Registrar shall be merit, as judged by the marks obtained at the University examination in the subject concerned as corrected for number of attempts taken to pass the final MBBS Examination as a whole and subject concerned with Registrars post to be filled directly and or allied subject." The other Rules need not detain us. 8. It is necessary to note certain judgments in the sequence in which they were delivered. 9. In (Jitendra Kumar Shrikrishnadas Mehta v. State of Maharashtra)1, 1982 Mh.L.J. 764 Rule V of the Rules for Appointment to the Post of Registrars in Government Hospitals, that is, the self-same rule here involved, was in question. A Division Bench of this Court sitting at Nagpur referred to the judgment in Writ Petition No. 1974 of 1981, (Satish Deopujari v. State of Maharashtra)2, decided on 11th December, 1981 by a Division Bench at Nagpur. Deopujari's was a case in which the selection of a student for post-graduate studies was concerned. It was held that though the classification of the candidates who had passed their final MBBS examination from the college where they were seeking admission as distinct from others was based on intelligible differentia, it lacked the nexus with the object sought to be achieved, namely, to secure the best possible talent and material for admission in Government Medical College. It was held that though the classification of the candidates who had passed their final MBBS examination from the college where they were seeking admission as distinct from others was based on intelligible differentia, it lacked the nexus with the object sought to be achieved, namely, to secure the best possible talent and material for admission in Government Medical College. It was held that the total reservation of seats for this class of students in the guise of the rule of preference was not valid. The Division Bench deciding Jitendra Kumar's case noted that if the selection of a student for post-graduate studies stood on the same footing as the selection of a candidates for the post of Registrar, the decision in Deopujari's case would apply with full vigour as the rule regarding the basis of selection and preference was practically identical in both cases. The Division Bench went on to examine the validity of the impugned rule independently of the Judgment in Deopujari's case and came to the conclusion that it was constitutionally invalid as offending the right of equality under Articles 14 and 16. 10. On 7th April, 1983 I, sitting singly, delivered a judgment in Writ Petition No. 184 of 1983 (Mrs. Samina S. Khatib v. Dean, G.S. Medical College)3. The rules for admission for post-graduate degree courses in the Municipal Medical Colleges, were in question. Rule 4 thereof released to preference and required first preference to be given to institutional candidates. Rule 5 related to the order of merit and stated that it would be determined by the actual number of marks obtained in the subject at the University examination, duly modified by credit or debit marks as stated therein. It was contended on behalf of the Municipality that by reason of Rule 4 an institutional candidate must get admission in preference to all others. I held that the sole test for admission was that of merit and that the true interpretation to be placed upon Rule 4 was that it indicated how preference was to be given when two or more candidates had the same marks; in which case he who came from the same institution had preference over the rest. However, in view of the interpretation placed upon the rule by the Municipality, it became necessary to examine the constitutionality thereof. Following the view taken in Deopujari's case the rule was struck down. 11. However, in view of the interpretation placed upon the rule by the Municipality, it became necessary to examine the constitutionality thereof. Following the view taken in Deopujari's case the rule was struck down. 11. The appeal from my judgment in Samina S. Khabi's case was heard by a Full Bench of this Court. Its judgement is in (Dean, G.S. Medical College v. Dr. Samina Suhel Khatib)4, 1983 Mh.L.J. 771. Basing itself upon the judgment of the Supreme Court in (D.N. Chanchala v. State of Mysore)5, A.I.R. 1978 S.C. 1762, the Full Bench held that merely because an institutional candidate was admitted in preference to one having higher marks from another university or college, it did not mean that a less meritorious candidate had been admitted and, consequently, there was no departure from the principle that the best talent should be admitted to a post graduate course. A rule giving institutional preference was not discriminatory and had a reasonable nexus with the object of catering to the needs of candidates who would naturally look to their university or college to provide an opportunity for advanced training. The authority which bore the financial burden of running the college was entitled to lay down the criteria for admission to its own college and to decide the sources from which admission would be made, provided that such classification was not arbitrary and had a rational basis and nexus to the object of the rules. The Full Bench observed that the Division Bench which decided Deopujari's case did not seem to have considered the fact that the rule, like the one which was before it, did not provide for reservation. What was intended was to nominate a source from which admissions were to be made, which was quire permissible. The Full Bench held that the decision in Deopujari's case could not be said to lay down the correct law. Accordingly, my judgment 'in so far as it strikes down the rule in question is set aside." 12. The Full Bench does not consider or decide the correctness of my view that the rule regarding preference comes into play only when two candidates, from whatever source they come, have equal merit. Having regard to the tenor of its judgment, I must assume that disapproved of it. 13. In the case of (Dr. The Full Bench does not consider or decide the correctness of my view that the rule regarding preference comes into play only when two candidates, from whatever source they come, have equal merit. Having regard to the tenor of its judgment, I must assume that disapproved of it. 13. In the case of (Dr. Pradeep Jain v. Union of India)6, A.I.R. 1984 S.C. 1421, the Supreme Court was of the view that so far as admissions to post-graduate courses such as MS, MD and the like were concerned, it would be eminently desirable not to provide for any reservation based on residence requirement within the State or on institutional preference. But, having regard to broader considerations of equality of opportunity and institutional continuity in education, it directed that though the residence requirement within the State would not be a ground for reservation in admissions of post-graduate courses, a certain percentage of seats might, in the present circumstances, be reserved on the basis of institutional preference; but such reservation on the basis of institutional preference should not in any event exceed 50 per cent of the total number of open seats available for admission of the post-graduate course. In regard to super-specialities the observations of the Supreme Court read thus:- "But, even in regard to admissions to the post-graduate course, we would direct that so far as super specialities such as neurosurgery 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." 14. The judgment in Dr. Pradeep Jain's case was considered by a Division Bench of this Court in (Abhav S. Darshana v. State of Maharashtra)7, 1985 Mh.L.J. 155. It was a case concerning an application for registration for the post-graduate course of MS. It was argued on behalf of the authorities, basing themselves upon the rules in that behalf then operating, that the petitioner, who was not an institutional candidate, was not entitled to claim registration until all institutional candidates had been granted admission. Reliance was placed upon the Full Bench judgment aforementioned. The Division Bench noted the observations of the Supreme Court in Dr. Pradeep Jain's case which have been adverted to above. Reliance was placed upon the Full Bench judgment aforementioned. The Division Bench noted the observations of the Supreme Court in Dr. Pradeep Jain's case which have been adverted to above. The Division Bench said that 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 were not available. Such a total reservation had been held to be violative of Article 14 by the Supreme Court in Dr. Pradeep Jain's case, at least, in so far as the post-graduate medical courses were concerned. Having regard to the first part of the rule involved before the Division Bench, which required the preparation of a merit list on the basis of the marks secured by the Candidate irrespective of whether he was an institutional candidate or a non-institutional candidate, the Division Bench held that the preference envisaged by that Rule would operate only when two candidates, one an institutional candidate and another a non-institutional candidate secured the same number of marks and the question before the selecting authorities was who between those two should be selected. Only in such a case, preference could be given to the institutional candidate. What was envisaged by the rule was not giving of preference to an institutional candidate who was placed below the non-institutional candidate in the order or merit. This would result in total reservation of available seats in favour of institutional candidates, so long as they were available, to the total exclusion of meritorious non-institutional candidate. 15. The Supreme Court in (Dr. Dinesh Kumar v. Motilal Nehru Medical College)8, A.I.R. 1985 S.C. 1059, considered the Dr. Pradeep Jain judgment. So far as admissions to 50% open seats not reserved on the basis of institutional preference for post-graduate courses such as MD, MS and the like were concerned the Supreme Court stated that these admissions could not be made on the basis of marks obtained by the students at different MBBS examinations held by different universities since there would be no comparable standards by reference to which the relative merits of the students seeking admission of post-graduate courses could be judged. It would not only be unfair and unjust but also contrary to the equality clause of the Constitution to grand admissions to 50% non-reserved seats in post graduate courses by mechanically comparing the marks obtained by the students at the MBBS examinations held by different Universities where the standard of judging would necessarily vary from University to University and would not be uniform. The Supreme Court held that admissions to 50% open seats not reserved on the basis of institutional preference must be made on the basis of comparative evaluation of merits of the students through an entrance examination to be held by the Government of India or the Indian Medical Council. 16. It is well to remember that we are here concerned with the super-speciality and not with some post-graduate course. The Supreme Court has in clear terms expressed in Dr. Pradeep Jain's case its disapproval of any reservation on the basis of institutional preference in regard to the super-specialities, such as neuro-surgery and cardiology. Following this judgment, the institutional preference given to the 4th respondent must be held to be bad. 17. Assuming this to be an error, in the same judgment and in relation to post-graduate courses, the Supreme Court has limited institutional preference to a maximum of 50% of the total seats available. In the instant case, there has been an allocation of 100% of the total seats available to institutional candidates. Therefore, in any event, the petitioner was entitled to the post. Interpreting the judgment in Dr. Pradeep Jain's case, this Court in Abhay Darshane's case observed that the rule before it which was akin to Rules V and VI before me, did not envisage the giving of preference to an institutional candidate who was placed below a non-institutional candidate in the order of merit. The preference contemplated thereby applied only when two candidates, one an institutional candidate and the other a non-institutional candidate, secured the same number of marks. Only in such a case could preference be given to the institutional candidate. The petitioner secured more marks than the 4th respondent. He was, therefore, higher in the order of merit and the 4th respondent could not be preferred to him. 18. It was submitted by Mr. Only in such a case could preference be given to the institutional candidate. The petitioner secured more marks than the 4th respondent. He was, therefore, higher in the order of merit and the 4th respondent could not be preferred to him. 18. It was submitted by Mr. Vyas, learned Counsel for the authorities, that the judgment in Abhay Darshane's case dealt with registration and not with the appointments of Registrars and that, therefore, what was laid down there could not apply to the facts in this case. The appointment of a candidate as Registrar, it is admitted, secures for him much clinical experience and knowledge. This is an asset in the prosecution of his studies in his chosen speciality. It is in that sense an adjunct or attribute of further education in the speciality. The observations of the Supreme Court in relation to super-specialities must, therefore, apply not only to registrations therein but also in relation to the appointments of Registrars in super specialities. 19. Mr. Vyas submitted that the directions given by the Supreme Court in Dr. Pradeep Jain's case had been postponed from time to time and had lastly been postponed on 6th January, 1986 till after the academic year 1986-87. These directions relate to the setting up a national entrance examination. Mr. Vyas's submission that until such times as these directions are implemented the observations of the Supreme Court remain suspended cannot be accepted. The observations in relation to super-specialities were unqualified in time. In any event, even in regard to post-graduate courses, the Supreme Court forthwith restricted institutional preference to 50% of the total available seats. 20. Rule VI of the Rules for Appointments of Registrars in Government Hospital's provides that the basis for selection shall be merit as judged by the marks obtained at the University examination in the subject concerned. The basis of selection, therefore, is merit. Merit shall be judged on the basis of the marks obtained in the subject concerned at the University examination. While there is, of course, substance in the Supreme Court's complaint that all Universities do not apply the same standards, until such time as uniform standards are laid down to apply throughout the country, merit must remain to be judged on the basis of the marks obtained at the University examination, whichever the University. While there is, of course, substance in the Supreme Court's complaint that all Universities do not apply the same standards, until such time as uniform standards are laid down to apply throughout the country, merit must remain to be judged on the basis of the marks obtained at the University examination, whichever the University. Upon the reasoning that the standards of all Universities are not the same, institutional preference cannot be allowed to supplant merit. 21. In the result, the petitioner is entitled to obtain a writ and direction that he should be appointed as Registrar in neurology. 22. For no fault of his 4th respondent would, consequently be deprived of such Registrarship in neurology. I do not propose to visit upon him the consequence of the failure of the authorities to interpret their rules correctly in the light of the various judgements that have been referred to. 23. In the circumstances, it is directed that the petitioner shall forthwith be appointed Registrar in the post in neurology for which applications were invited in August 1985. It is further directed that an additional post of Registrar shall be created by the 1st, 2nd and 3rd respondents in neurology in the J.J. Group of Hospitals to which the 4th respondent shall be appointed forthwith. 24. No order as to costs. 25. Rule accordingly. Rule accordingly. -----