JUDGMENT - P.B. SAWANT, J.:---The petitioners in these two petitions have challenged Rule 4-A of the rules of the Greater Bombay Municipal Corporation for admission to post-Graduate Degrees and Diploma Course at the Municipal Medial College affiliated to the University of Bombay and the consequent preference given to the respondent-students for seats in Super-Specialities in the Municipal Medical Colleges. 2. The petitioner Dr. Trivedi in Writ Petition No. 1165 of 1988 passed his qualifying M.B.B.S. Examination in October, 1983 from the Grant Medical College, Bombay, which is a State Government College. He completed Internship in the year 1984 and passed his M.D. Examination in Medicine in the year 1988 from the same College. Pursuant to an advertisement given by the dean of the Topiwala National Medical College belonging to the 2nd respondent Bombay Municipal Corporation inviting applications for seats in different Super-Speciality Courses like Cardiology, Gastroenterology, Neurology, Thorapic Surgery, Plastic Surgery and Neuro Surgery, he applied for the only seat advertised for Gastroenterology. He corrected marks in M.D. (Medicine) were 272 as against 255 of respondent No. 3 Dr. N. Vishwanath. However, respondent No. 3 was given preference by the 1st respondent Dean of the Topiwala National Medical College because of the institutional reservation made by the said Rule 4-A. Respondent No. 3 passed his M.B.B.S. Examination from Lokmanya Tilak College, Sion, belonging to the Municipal Corporation and did his M.D. in Medicines from the same College. Hence this petition was filed on April 15, 1988 challenging the said Rule 4-A. On the very day the learned Single Judge on the Original Side of this Court passed an interim order whereby the allotment of the seats was made subject to the result of the petition. The learned Judge admitted it on April 19, 1988 and referred the matter for decision to a Division Bench. 3. Dr. Deodatta Shripad Chafekar is the petitioner in the companion Writ Petition No. 1191 of 1988. He passed his qualifying M.B.B.S. Examination from the Government Grant Medical College in October 1983 and completed his Internship in December, 1984. He passed his M.D. Examination in Medicine in January, 1988. Pursuant to the advertisement given by the 1st respondent Dean of the Seth G.S. Medical College also belonging to the second respondent Bombay Municipal Corporation, for seats in various Super-Specialities, he applied for the only seat advertised for the Super Speciality of Nephrology. He passed his M.D. Examination in Medicine in January, 1988. Pursuant to the advertisement given by the 1st respondent Dean of the Seth G.S. Medical College also belonging to the second respondent Bombay Municipal Corporation, for seats in various Super-Specialities, he applied for the only seat advertised for the Super Speciality of Nephrology. Although, however, his corrected marks are 261, respondent No. 4 Dr. Popat, whose corrected marks are 257, was given the seat on the basis of the same Rule 4-A because Dr. Uday Popat had passed his M.B.B.S. Examination from G.S. Medical College as well as M.D. Examination from the Lokmanya Tilak Medical College both belonging to the 2nd respondent Municipal Corporation. 4. Since an arrangement arrived at between the Government and the Bombay Municipal Corporation is incorporated in the decision of a Division Bench of this Court reported in A.I.R. 1987 Bombay 291 (Sunil v. Bombay Municipal Corporation)1, and is directly in challenge in the present petition, we permitted the petitioners to amend the petition by adding two more parties as respondents to the petition, namely the State Government and the University of Bombay. We must state here, for the sake of record, that since the matter was of an urgent nature, we could not hear the State Government and the University. However, since by this judgment we are only giving effect to the law laid down by the Supreme Court in the case of (Dr. Pradeep Jain v. Union of India)2, reported in A.I.R. 1984 S.C. at page 1420, no prejudice would be caused either to the State Government or to the University as we will point out hereafter. 5. The impugned Rule 4-A is as follows: "4. Preference : (A) While selecting candidates for admission to the post-graduate courses preference shall be given in the following order : (a) Candidates applying for admission at the present institution (Note: present institution means the Medical College at which the candidate has passed his qualifying examination); (b) Candidates who have graduated from other Municipal Medical College in Brihan Mumbai; (c) Candidates who have graduated from a constituent Medical College of the University of Bombay; (d) Candidates who have graduated from a recognised Medical College of any other Indian University.” This Rule thus incorporates what is known as institutional reservation in the order of priority given in sub-clauses (a), (b), (c) and (d) above. As has been rightly pointed out on behalf of the petitioners, the Rule is directly in conflict with the law laid down by the Supreme Court in Dr. Pradeep Jain's case (supra) and the subsequent decision in the case of (Nidamaruti v. State of Maharashtra)3, A.I.R. 1985 S.C. 1362. The ratio of these decisions is that while all seats for the M.B.B.S. Course may be reserved either on the basis of domicile in the State and/ or institutional preference effected through Universitywise distribution of seats, for the Post-Graduate Courses such as M.D., M.S., etc. at least 30% of the seats have to be kept open for merits on country-wide basis. So far as however the seats in the Super Specialities such as the ones in the present case are concerned, reservation on any ground, except those permitted by the Constitution is illegal being in breach of Article 14 of the Constitution. 6. It must further be remembered that the cent per cent reservation of the graduate-seats on the basis of domicile in the State and/or institutional preference at the University level is upheld by the Court because of the acknowledged reality of uneven development of the different regions in the country and the need for continuity of educations in the particular University. However, none of these considerations can apply to the reservations either on the basis of domicile in a district or of continuity of education in a particular college. Hence the Court has not countenanced reservations made on the basis of the domicile in a particular district. The cases of the distribution of seats effected through Colleges though belonging to the same University have not come before the Court. However, since none of the considerations for keeping reservation would apply to such micro classification, we have no doubt that such reservations will be invalid being violative of Article 14 of the Constitution. 7. After holding that the reservations for the seats in Super-Speciality are illegal and that such seats should be open for merit-competition on the national level, the Supreme Court in Dr. Pradeep Jain's case has suggested that the Indian Medical Council should hold an All-India Entrance Examination for admission to such seats. 7. After holding that the reservations for the seats in Super-Speciality are illegal and that such seats should be open for merit-competition on the national level, the Supreme Court in Dr. Pradeep Jain's case has suggested that the Indian Medical Council should hold an All-India Entrance Examination for admission to such seats. However, it was found later that it was not possible to implement the said direction immediately firstly because the preliminaries for holding such examination had to be completed and, secondly, all the States had to co-operate. In the absence of the latter, there was bound to be a discrimination against the students from the States which agreed for such examination for their seats as against the students from the states which did not. Hence in its subsequent decision reported in (Dr. Dinesh Kumar v. Motilal Nehru Medical College)4, Allahabad. A.I.R. 1925, S.C. 1415 the Court directed that save an except in those cases where entrance examination had already been held by any State Government or the Government of any Union Territory or any University pursuant to the direction given in its judgement in Dr. Pradeep Jain's case, the said direction should be implemented only from the academic year 1986 and should not be effected for the then current academic year 1985. The suspension of the direction in Dr. Pradeep Jain's case was subsequently extended upto June, 1988, as is evident from the unreported judgement of the Supreme Court in Civil Miscellaneous Petition No. 7667 of 1987 in Writ Petition Nos. 348-352 of 1985, decided on August 3rd, 1987 and published in 1987(2) Volume 19 of Unreported Judgements, Supreme Court at page 532 (Dr. Dinesh Kumar v. Motilal Nehru Medical College, Allahabad others)4. We are not aware as to whether the said directions have been suspended beyond June, 1988. 8. However, the suspension of the direction in Dr. Pradeep Jain's case to hold All-India Entrance Examination on the aforesaid grounds does not mean that the law laid down in the said case is suspended. This is particularly so when the law can be implemented on the State level. Nor can the institutional reservation on college basis be sustained on the spacious ground that he All-India Entrance Examination cannot be held. It has no relevance to the College wise reservations. This is particularly so when the law can be implemented on the State level. Nor can the institutional reservation on college basis be sustained on the spacious ground that he All-India Entrance Examination cannot be held. It has no relevance to the College wise reservations. When it is possible to implement the law on the State level, the non-implementation of its results of discrimination and is, therefore, illegal. The seats have therefore to be filled in by advertising them at the State level and holding the State Entrance Examination compulsorily not only where the applicant students belong to more Universities than one but also where they belong to the same University. This is so, because as is pointed out by Mr. Bharucha for the respondent-students, the practice of discrimination on account of the different approaches of the different examiners. It is true that no system of examination can be perfect. But we can always try and evolve the least imperfect system. Such examination will also take care of students who have graduated in different years. 9. Mr. Bharucha appearing for the respondent -students, then pointed out that this course may not be open to us in view of the decision of the Division Bench of this Court reported in Dr. Sunil Vasant Sathe's case (supra) where in paragraph 6 of the judgement the Court has allowed both the Municipal Corporation Medical Colleges as well as the Government Medical Colleges to reserve 50% of the seats for candidates from their Colleges and to fill only the remaining 50% of the seats on merit by holding examination for the students from the State. As we peruse the said judgement, we find that that Judgement has neither purported to lay down any law nor has it, in fact, laid down any law. The decision has been given on the basis of the concessions made and the agreement arrived at between the parties. In fact, upto paragraph 5 of the judgement the learned Judges have, with respect, correctly summarised the position of law as laid down by the Supreme Court . However, as is evident from paragraphs 6 and 7 of the judgement, since both the Government and the Municipal Medical Colleges came forward with certain suggestions and agreed amongst themselves to a certain arrangement. However, as is evident from paragraphs 6 and 7 of the judgement, since both the Government and the Municipal Medical Colleges came forward with certain suggestions and agreed amongst themselves to a certain arrangement. Unfortunately, it appears that it was not pointed out to the learned Judges then that the agreement which was arrived at between the parties before then could not bind the future students. As we have stated earlier, the Division Bench also did not wish to lay down a proposition of law by the said agreement. Hence we do not think that the contention advanced by Mr. Bharucha is well merited. 10. In the view that we have taken, therefore, it has become necessary to resolve not only the dispute between the parties before us but also to lay down guidelines for all admissions to the Super-specialities here after in all Medical Colleges in the State. 11. First, with regard to the guidelines, which the Medical Colleges in the State should follow hereafter : (1) All the seats in the Super-Specialities whenever they are available (except those which are subject to constitutional reservations) shall be filled in by holding an entrance examination of all the qualified applicant students from the State; (2) The examination should be held by the Board of Examination constituted for the purpose by the State Government in consultation with the University or Universities to which the colleges in which the seats are available are affiliated. (3) For such examination the marks reserved for the practicals and viva voce should not exceed 18% of the total marks as suggested by this Court earlier. 12. That leaves us with the dispute between the parties before us. The relevant facts relating to the admission of the respondent-students to the seats concerned are as follows : The select lists of both the Specialities were published on April 19, 1988. The last date for the payment of fees was April 20, 1988. Respondent student in Writ Petition No. 1165 of 1988 paid his fees on April 20, 1988 and the respondent-student in Writ Petition No. 1991 of 1988 paid the fees on April 22, 1988. Both the respondents are till today holding the posts of Registrars in Lokmanya Tilak Municipal General Hospital. They have not yet joined the Super-Specialities. They had to be registered with the Bombay University on or before 20th April, 1988. Both the respondents are till today holding the posts of Registrars in Lokmanya Tilak Municipal General Hospital. They have not yet joined the Super-Specialities. They had to be registered with the Bombay University on or before 20th April, 1988. The term for which the admissions have been given is as things stand today believed to be the second term of the academic year 1987-88 which officially commenced in November, 1987 and ended on April 20, 1988. Since, however, in this year the results of the M.D. Examination were delayed till March, 1988, the University has yet not decided whether the students should be registered for the Super Specialities for the second term. In case the University decides to register them for the said term there is no reason why either the petitioners or the respondents whoever are successful in the examination that we are hereafter directing to hold, should suffer. We, therefore, direct the Joint Board of Examination as constituted in para 6 of the judgement of the Division Bench reported in A.I.R. 1987 Bombay 291 Sunil v. Bombay Municipal Corporation to hold the entrance examination for the petitioners and the respondents - students in both the petitions before us. The Municipal Colleges concerned should admit only those of the petitioners and/or the respondents, who will succeed in the examination, to the respective Super Specialities for which they have applied. In the said entrance examination also the marks reserved for practical and viva voce should not exceed 18% of the total marks. The examination should be held within two weeks from today. A copy of this judgement and the directions be sent to the Director, Medical Education and Research, and the secretary, Medical Education and Drugs of the State Government. It is needless to add that the present admission given to the respondent-students in both the petitions will stand cancelled. The University will register the successful students for the second term of the academic year 1987-88 in case the University decides to grant registration in the said term in the meeting which, we are informed, is proposed to be held for the purpose. 13. Mr. Sanklecha points out that the respondent Dr. Popat in Writ Petition No. 1191 of 1988 had approached the Grant Medical College, which is a Government College as stated above, for a seat in the Super Speciality of Cardiology. 13. Mr. Sanklecha points out that the respondent Dr. Popat in Writ Petition No. 1191 of 1988 had approached the Grant Medical College, which is a Government College as stated above, for a seat in the Super Speciality of Cardiology. However, since that College had only one seat in the said Super Speciality and it was reserved for the student of the Grant Medical College, the College did not even issue the form of application. He has produced before us the list of candidates, who had applied for the said seat, with their respective subject and corrected-marks as published on the Notice Board of the College. The list shows that there are at least three candidates, namely Dr. Keni, Dr. Savant and Dr. Vaidya who have secured less marks than the respondent. While the respondent has secured 257 marks as corrected (according to the Government Rules) the said three students have secured 245, 243 and 241 marks respectively. In case, therefore any candidate who has secured more marks than the respondent Dr. Popat, does not take or withdraws from the seat, the Board of Examination should also hold entrance examination of all the qualified students who had applied for it, and offer the seat to the successful candidate. It is, however, made, clear that if the seat has already been allotted to the candidate, who has secured corrected marks more than Dr. Popat, and he does not withdraw he shall not be disturbed and there will be no need to old the entrance examination. 14. Rule is made absolute accordingly in both the petitions. 15. Miss Rehman applies for stay of the operation of this order. All that we have done is to work out the decision of the Supreme Court reported in Dr. Pravin Kumar Jain's case. Hence there is no question of staying the operation of this order. 16. Liberty to the State Government to apply so far as the decision affects the Government Medical Colleges. Rule made absolute. -----