JUDGMENT - Mrs. MANOHAR SUJATA, J.:---The petitioner is a student of Seth G.S. Medical College for M.Ch. Course in super speciality of plastic surgery. The 3rd respondent is also admitted in the same college for the same course. The petitioner passed her M.B.B.S. examination in November 1982 from Bombay University. She appeared from Seth G.S. Medical College. She thereafter enrolled for a post graduate degree (M.S.) in General Surgery at the same college and she passed her M.S. examination of Bombay University in November 1986. She thereafter registered in the same college for a super speciality viz. plastic surgery leading to M.Ch. degree. At the time of filing of the petition she had done 2 house posts in plastic surgery at K.E.M. Hospital which is attached to Seth G.S. Medical College. Her first house post was from 21-4-1987 to 31-7-1987 and the second house post was from 1-8-1987 to 31-1-1988. 2. The 3rd respondent obtained his M.B.B.S. degree from Karnataka University, Dharwar in January 1982. He obtained his M.S. degree in general surgery in August 1986 from Banglore University. He has been admitted to M.Ch. Course in super speciality of plastic surgery at G.S. Medical College. At the time of filing of the petition, the 3rd respondent had done two house posts in plastic surgery, one from 1-7-1987 to 31-7-1987 and the second post from 1-8-1987 to 31-1-1988. These house posts have been completed by the 3rd respondent at K.E.M. Hospital which is attached to G.S. Medical College. 3. In January 1988 the petitioner as well as the 3rd respondent applied for the post of Registrar in Plastic Surgery at K.E.M. Hospital. On 20-1-1988 the petitioner's name was put up on the notice board of K.E.M. Hospital indicating that she was appointed Registrar in Plastic Surgery. On 25-1-1988, however, the Advisory Committee of the hospital at a meeting decided that the 3rd respondent should be chosen as Registrar for Plastic Surgery instead of the petitioner. According to respondents 1 and 2, the 3rd respondent was preferred to the petitioner because he had obtained more marks in the relevant subject of surgery in the final M.B.B.S. examination than the petitioner. Respondents 1 and 2 took the view that the experience of both the candidates should be considered as on par. 4. According to respondents 1 and 2, the 3rd respondent was preferred to the petitioner because he had obtained more marks in the relevant subject of surgery in the final M.B.B.S. examination than the petitioner. Respondents 1 and 2 took the view that the experience of both the candidates should be considered as on par. 4. It seems that on account of pending Writ Petition No. 599 of 1987 there was a delay in submitting registration forms of the petitioner and the 3rd respondent in super speciality of plastic surgery. Some other students were also similarly affected as a result of registration being so delayed. As a result of delayed registration, the petitioner, 3rd respondent and some other candidates could not get the benefit of full duration of their first house post. The delay in submitting registration forms has been condoned by the Bombay University subject to their keeping one additional term over and above the prescribed period of 2 years. 5. The Advisory Committee of the hospital took the view that in the light of the University's decision, the experience of the two candidates should be considered as on par. In view of the 3rd respondent's higher marks in surgery in the final M.B.B.S. examination he was selected for the post of Registrar which post was to commence from 1-2-1988. The petitioner has challenged her non selection for the post of Registrar of Plastic Surgery at K.E.M. Hospital from 1-2-1988. Under an ad interim order passed in this petition the post in question is lying vacant from 1-2-1988. 6. What is the basis for selection of a candidate to the post of Registrar in a hospital attached to the college where the candidate has enrolled for a super speciality course? 7. G.S. Medical College is run by the Bombay Municipal Corporation. The Bombay Municipal Corporation has framed Rules for appointment of Resident Medical Staff at the Municipal Medical Colleges in Bombay. Under these Rules the Resident Medical Staff consists of House Officers, Registrars and Casualty Medical Officer. The parent college under Rule 3 sub-rule (j) is defined to mean the Medical College from which the candidate has passed the qualifying examination. The Rules make a clear distinction between a house post and a Registrar's post. 8. Rule 8 deals with eligibility and preference order of merit for House Officer's post. The parent college under Rule 3 sub-rule (j) is defined to mean the Medical College from which the candidate has passed the qualifying examination. The Rules make a clear distinction between a house post and a Registrar's post. 8. Rule 8 deals with eligibility and preference order of merit for House Officer's post. Every candidate applying for the post of House Officer is required to possess M.B.B.S. Degree as well as permanent registration with the concerned Medical Council or Indian Medical Council. Rule 9 deals with preference to the appointment of post of House Officers in relation to candidates who have registered for post-graduate courses of studies conducted by the University of Bombay. Under Rule 10, all the candidates who fall under each of the heads of preference as per Rule 9, are to be selected in order of merit determined under Rule 11, Rule 11 lays down detailed Rules for determination of merit. It is stated that the order of merit shall be determined by the actual number of marks obtained in the relevant subject at the University examination duly modified with credit or debit marks as specified in that rule. 9. Rule 12-A deals with eligibility for Registrar's post. Rule 12-A(i) states as under: Every candidate applying for the post of Registrar in any subject should have registered or should have been registered for post-graduate course of study in the subject and should have held either two recognised posts of House Officer in the subject for one term each or one recognised post in subject and one recognised post in an allied subject for a period of one term each. This rule thus contemplates candidates registered for a post-graduate course applying for a Registrar's post. 10. Rule 13-A deals with preference and order of merit for Registrar's post. The relevant part of Rule 13-A is as follows : While selecting candidates for appointment to the post of Registrar, preference will be given in the following order: a) Candidates belonging to the parent college and registered at the parent college applying for the posts of the parent hospital. b) The candidates applying for the post in the same institution where they are registered candidates. c) The registered candidates applying for the post in other institutions. b) The candidates applying for the post in the same institution where they are registered candidates. c) The registered candidates applying for the post in other institutions. In groups (B) and (C) preference will be given in the following order : i) The candidates who have graduated from other Municipal Medical Institutions. ii) The candidates who have graduated from the other constituent Medical Colleges of the University of Bombay. iii) The candidates who have graduated from any recognised Medical College of any other Indian University. d) Any other candidate who has registered or had been registered for post-graduate course in the subject in any recognised university and has completed two terms of house officer in any recognised institution. e) Any other candidate who has completed two terms of house officer in any recognised institution. 11. Subsequent Rules 15 and 16 deal with some general conditions and discipline. Thereafter there is a new head : "The Rules for selection for house post in super-specialities". Below this line there is sub-Clause (a) which states that super-specialities are the subjects for which a post-graduate degree is the basic minimum requirement for registration as per the Rules of registration of the University of Bombay. Sub-rule (b) states that the parent college mean the medical college from which the candidate has passed the qualifying examination. 12. Under the heading 'Eligibility' Clause (i) states that the candidate applying for House Officer's post (a) should have qualifications as in Rule 8(i) and (ii) and (b) possess a post-graduate degree in the subject as defined by the University of Bombay. Sub-clause (ii) states that the candidate applying for Registrar's post should have in addition (a) completed minimum of 2 terms of 6 months each in the subject as House Officer or Post-graduate student. The next clause, which is the bone of contention is as follows : PREFERENCE AND ORDER OF MERIT FOR RESIDENT POSTS : I While selecting the candidates for the house posts, the preference will be given in the following order--- a) The candidates who are registered for super-specialities at the concerned medical college and hospital. b) All other candidates registered for super-speciality in the University of Bombay. In each group, the order of merit shall be determined by the marks obtained by the candidate duly modified with credit and debit as per Rules 11 and 14. b) All other candidates registered for super-speciality in the University of Bombay. In each group, the order of merit shall be determined by the marks obtained by the candidate duly modified with credit and debit as per Rules 11 and 14. c) If the candidates registered in the subject are not available, the candidates who are registered for the basic post-graduate qualifications for which this is an allied subject will be considered as per Rules pertaining to them. d) If there are any more vacancies, the candidates who have acquired the basic post-graduate degree required for registration in the subject will be considered on merit. 13. The first question, therefore, which must be considered is whether for selection to the post of Registrar in a super-speciality the Rule set out above under the heading 'Preference and Order of Merit for Resident Posts' applies or whether Rule 13-A applies. 14. It is the contention of the petitioner that the preference and order of merit for Registrar's post in a super speciality must be governed by Rule 13-A because no other rule deals with the Registrar's post. 15. Now, from the relevant provisions of these rules which have been set out, it is clear that the rules make a clear distinction between the posts of house officers and of Registrars. The last section (which is unnumbered) of these Rules deals with "selection for house post in super-specialities". But the Eligibility Clause under this head refers both to house officers' posts as well as Registrar's posts. The next and last clause is headed "Preference and order of Merit for Resident Posts". Resident Posts include both house posts and Registrar's posts. Nevertheless, the following Clause (i) which is the only clause under this heading deals only with selection of candidates for House Post. There is, therefore, room for argument that the last section of the rules does not deal with the post of Registrar in a super-speciality. 16. At the same time, Rule 13-A on which reliance is placed, deals with Registrar's post for candidates enrolled for a post-graduate course and not for a super-speciality. The preceding clause dealing with House Posts is also confined to candidates appearing for a post-graduate degree. In this context, Rule 13-A is meant to apply to candidates enrolled for a post-graduate course only. The preceding clause dealing with House Posts is also confined to candidates appearing for a post-graduate degree. In this context, Rule 13-A is meant to apply to candidates enrolled for a post-graduate course only. This is clearly indicated in some of the provisions of Rule 13-A. For example, in laying down preference Clause (d) covers any other candidate who has registered for post-graduate course, etc. The criteria for selection to Registrar's post in a super-speciality are, therefore, as laid down in the last section of the Rules. There is no other rule which applies to posts for candidates studying for a super-speciality. 17. Looking however to the nebulous character and loose language of these Rules, I will examine the case of the petitioner first on the assumption that Registrar's post in a super-speciality is also covered by Rule 13-A. I will next consider her position if the last clause of the Rules applies. In either case, there is not much difference in the conclusions which can be arrived at. 18. Under Rule 13-A, sub-clause (a) while selecting candidates for appointment to the post of Registrar preference will be given in the following order : (a) Candidates belonging to the parent college and registered at the parent college applying for the posts of the parent hospital. Sub-clause (a) is thus divided into two parts. First, the candidates should belong to the parent college. This would mean that they should have earlier studied in the same college. The second part of sub-clause (a) requires that for super-speciality also they should have registered at the same college and they should apply for a post in a hospital which is attached to the same college. The first part of this Rule under which preference is given to candidates who have earlier studied in the same college has been struck down as arbitrary and unconstitutional by a Division Bench of this High Court. Hence the only part of sub-clause (a) which remains prescribes that preference will be given to candidates who have applied for posts in the hospital attached to the college in which they have enrolled. 19. In this connection it is necessary to summarise in brief the legal position regarding admission to super-speciality course as laid down by various judgments of the Supreme Court and this High Court. The Supreme Court in the case of (Dr. 19. In this connection it is necessary to summarise in brief the legal position regarding admission to super-speciality course as laid down by various judgments of the Supreme Court and this High Court. The Supreme Court in the case of (Dr. Pradeep Jain v. Union of India)1, reported in A.I.R. 1984 S.C. 1420, at page 1442, while dealing with admissions to super speciality, observed that there should be no reservation at all even on the basis of institutional preference at the level of super-specialities. Admissions should be granted purely on merit on an all India basis. The observations of the Supreme Court however related to admissions to super-specialities courses. They did not relate to selection for the post of a Registrar from among candidates enrolled for a super-speciality. 20. In the case of (Roop Kumar Dayaram v. State of Maharashtra)2, reported in 1986(3) Bom.C.R. 617 , the question of appointment of a Registrar in the super-speciality of Neurology came up for consideration, first before a learned Single Judge of this Court and then before a Division Bench in appeal. The learned Single Judge was required to deal with the Rules framed by the State Government. Under the Rules framed by the State Government, preference was to be given to those who had passed the final M.B.B.S. Examination from the same college to which the teaching hospital where the posts were vacant, was attached. This rule was struck down by the learned Single Judge on the ground that there was no nexus between this rule and the purpose sought to be achieved, inasmuch as, candidates who had appeared for the final M.B.B.S. Examination from the same college were not in a different position from candidates who had appeared for such examination from other colleges. The learned Single Judge took the view that rules for appointment of Registrars in Government Hospitals would also be governed by the same ratio and hence institution preference for a Registrar's post in a super-speciality on the ground that the candidate had done his final M.B.B.S. Examination from the same college to which the hospital concerned was attached, was struck down. 21. This judgment along with judgments in various other writ petitions was considered by a Division Bench of this Court consisting of Dharmadhikari and Sugla JJ., in Appeal No. 735 of 1986 and other appeals which were all heard together. 21. This judgment along with judgments in various other writ petitions was considered by a Division Bench of this Court consisting of Dharmadhikari and Sugla JJ., in Appeal No. 735 of 1986 and other appeals which were all heard together. A common judgment in these appeals was delivered on 27-7-1987. The Division Bench said that a distinction was required to be drawn between rules governing admissions and rules for appointment to the Registrar's post. It considered, inter alia, Rule 13-A of the Bombay Municipal Corporation. It struck down the first part of Rule 13-A(a) which gives preference to candidates belonging to the parent college. It held that there is no nexus between this part of the rule and the object to be achieved because passing of qualifying examination from the college to which the hospital is attached has no nexus with the object of imparting post-graduate practical training which is the object of appointing candidates to the post of Registrar. 22. It however upheld the second part of Rule 13-A(a) in so far as it related to the post of Registrar. The Division Bench has held that a student from one medical college, if he is appointed as Registrar in a hospital which is attached to another medical college, will find it extremely difficult to co-ordinate his work so as to be able to attend courses, discussions and so on. The Division Bench observed that a student can learn and obtain practical training with much great ease if he obtains his practical training in a hospital which is attached to the medical college where he has enrolled. 23. In view of this decision of the Division Bench, there, if we examine the petitioner's case, she has claimed preference over the 3rd respondent on the ground that she has passed her M.B.B.S. Examination as well as M.S. Examination (which is the qualifying examination for the super-speciality in question) from G.S. Medical College (parent college). The present post is in K.E.M. Hospital which is attached to G.S. Medical College. She should, therefore, get preference on the basis of her having passed the M.B.B.S. Examination and M.S. Examination from the same college. This kind of preference has been struck down as unconstitutional by the Division Bench. The first part of Rule 13-A(a) must, therefore, be ignored. 24. She should, therefore, get preference on the basis of her having passed the M.B.B.S. Examination and M.S. Examination from the same college. This kind of preference has been struck down as unconstitutional by the Division Bench. The first part of Rule 13-A(a) must, therefore, be ignored. 24. The second part of Rule 13-A(a) requires preference to be given to candidates of the college to which the hospital post is attached. The petitioner would undoubtedly get preference because she is a student of G.S. Medical College for M.Ch. Course, K.E.M. Hospital where the post is available is attached to G.S. Medical College. But the same is the case with the 3rd respondent because he has also registered with G.S. Medical College for M.Ch. course. In this context the fact that he obtained M.B.B.S. degree and M.S. degree from other Universities becomes irrelevant. Both the petitioner and the 3rd respondent are, therefore, in the same category as far as preference is concerned. 25. In the context of preference, even if I assume that the last part of the Rules dealing with preference and order of merit for resident post in super-speciality applies, the position remains the same because in the order of preference laid down there, first preference is to be given to candidates who are registered for super-speciality at the medical college to which the hospital is attached. Both the petitioner and the 3rd respondent are registered with G.S. Medical College for the super-speciality course. They are both equally entitled to preference for the present, post. Hence, between the petitioner and the 3rd respondent, the only other criterion for selection would be the order of merit. 26. The first point to be considered in this connection is the number of marks obtained by both these candidates at the qualifying examination. The qualifying examination in the present case is M.S. examination. The petitioner passed this examination from Bombay University while the 3rd respondent passed from Bangalore University. Marks obtained by candidates at two different examinations conducted by two different universities cannot be compared. The Supreme Court has, in Pradeep Jain's case and several subsequent decisions, repeatedly held that comparison of merit can only be between candidates who have appeared for the examination conducted by the same body. 27. In the case (Dr. Marks obtained by candidates at two different examinations conducted by two different universities cannot be compared. The Supreme Court has, in Pradeep Jain's case and several subsequent decisions, repeatedly held that comparison of merit can only be between candidates who have appeared for the examination conducted by the same body. 27. In the case (Dr. Dinesh Kumar v. Motilal Nehru Medical College, Allahabad)3, reported in A.I.R. 1985 S.C. 1059 the Supreme Court has observed : "It would be wholly unjust to grant admissions to the students by assessing their relative merits with reference to the marks obtained by them, not at the same qualifying examination where standard of judging would be reasonably uniform but at a different qualifying examinations held by different State Government or Universities where the standard of Judging would necessarily vary and not be the same. That would indeed be blatantly violative of the concept of equality enshrined in Article 14 of the Constitution." The Supreme Court has, therefore, gone on to observe that even in case of post-graduate course and particularly for super-speciality there should be a common entrance examination for selection of candidates on merit. 28. Same ratio has been applied in the case of (Dr. Sunil Vasant Sathe v. The Bombay Municipal Corporation)4, reported in A.I.R. 1987 Bom. 291, by a Division Bench of this Court. While dealing with admission to super-specialities course, the Division Bench has observed that it is the performance at the post-graduate degree examination which is relevant and entrance examination should be held jointly by Government Medical Colleges and Municipal Medical Colleges for admission to super-specialities at least until such time as an All India Examination for this purpose can be conducted. 29. For selection to the post of Registrar also the same difficulty arises in judging the relative merit of various candidates who have passed their qualifying examination from different universities. The learned Single Judge in Roop Kumar's case had felt that since no common examination was held, marks obtained by candidates although in different universities, would have to be compared. The Division Bench, however, overruled this part of the judgment. The learned Single Judge in Roop Kumar's case had felt that since no common examination was held, marks obtained by candidates although in different universities, would have to be compared. The Division Bench, however, overruled this part of the judgment. It said : "Needless to mention, until all students who are competing for the post of Registrar are admitted/registered on the basis of Entrance Examination on all India or State basis, relative merits of the students for appointment to the post of Registrar will have to be decided by holding examination of the students competing for the post, as following the Supreme Court decision in Dr. Dineshkumar's case A.I.R. 1985 S.C. 105 we have already held in Writ Petition No. 599 of 1987 dated 3rd July 1987 that relative merit cannot be Judged on the basis of marks obtained at different M.B.B.S. examinations held by different Universities." 30. Despite the decision of the Division Bench, which was delivered on 27-7-1987, when the problem arose in the present case in January 1988, the Municipal Corporation did not hold a common examination for selection on merit of candidates who had applied for the Registrar's post. As a result, the candidates as well as the Municipal Corporation find themselves in a quandary. Both the eligible candidates are in the same preferential category. There is no way in which candidates can be compared on merit. Their experience in house posts is also at a par. 31. It would not be correct to say, as contended by the petitioner, that because her first house post was longer than the 3rd respondent's by about 2 months, she must be considered superior and be selected. Both of them have to do an extra term as per circular issued by the University. Delay in granting registration which resulted in this unequalness of house posts, was also on account of pendency of a writ petition. This factor cannot, therefore, be held against the 3rd respondent. Thus it has become impossible to select one of the two competing candidates here on the basis of merit. 32. I am told by Mrs. Delay in granting registration which resulted in this unequalness of house posts, was also on account of pendency of a writ petition. This factor cannot, therefore, be held against the 3rd respondent. Thus it has become impossible to select one of the two competing candidates here on the basis of merit. 32. I am told by Mrs. Khatu, learned Advocate for respondents 1 and 2 that from August 1988 such a problem, hopefully, will not arise because, in view of the observations of the Division Bench to the effect that practical training in the from of doing house post and Registrar's post is required to be given to all candidates appearing for medical examinations at all levels; and the observations of the Division Bench to the effect that arrangements should be made to ensure that such practical training is given to all candidates, the Municipal Corporation is in the process of formulating a scheme under which resident posts will be given to all candidates who have been granted admission to Medical Courses in the Municipal Hospitals. This is small consolation for the petitioner and the 3rd respondent. 33. Looking to the difficulties in which the petitioner, respondent 3 and the Municipal Corporation have been placed because of Municipal Corporation not holding any examination for selection, this is a fit case where in the interest of justice and to avoid an impasse, an additional Registrar's post should be created for the petitioner as a special case. Normally I would have been extremely reluctant to direct the creation of such an additional post, because it creates administrative difficulties. But looking to the present circumstances and looking to the fact that neither the petitioner nor respondent No. 3 can be blamed for the impasse which has been created on account of inaction of the Bombay Municipal Corporation, this is a fit case where such a direction should be given. 34. It is an accepted position that while the post of Registrar has been lying vacant, both the petitioner and respondent No. 3 are in fact carrying out the duties which would normally be carried out by the Registrars. The petitioner in the interregnum accepted a house post which earned her a stipend of Rs. 34. It is an accepted position that while the post of Registrar has been lying vacant, both the petitioner and respondent No. 3 are in fact carrying out the duties which would normally be carried out by the Registrars. The petitioner in the interregnum accepted a house post which earned her a stipend of Rs. 1480/- p.m. respondent No. 3 however, since he was appointed as Registrar but was restrained from occupying the post by virtue of an ad interim order in this petition, could not accept such a house post. Nor could he get the benefit of stipend of Rs. 1700/- p.m. as Registrar. I am informed, and it is not disputed, that he has, in fact, carried out the duties of a Registrar. In these circumstances, he should be compensated at least to the extent of the stipend given to a house officer which is the post which he could have accepted even if he had not been granted the Registrar's post. He should be entitled to this stipend of Rs. 1480 p.m. as from 1-2-1988. 35. In the premises, respondents Nos. 1 and 2 are directed to create an additional post of Registrar for the petitioner and to appoint her to that post. The 3rd respondent to occupy the post of Registrar to which he has been appointed as from 15-7-1988 for two years. The additional post to which the petitioner has been appointed shall commence from 15th July, 1988 and shall be for a period of 2 years. 36. Respondents 1 and 2 to pay to the 3rd respondent the stipend amount calculated at the rate of Rs. 1480 p.m. from 1-2-1988 till 1-7-1988. 37. Rule is made absolute accordingly. 38. In the circumstances of the case there will be no order as to costs. Order accordingly. -----