JUDGMENT - GUTTAL G.H., J.:---The petitioner, an applicant for admission to the post graduate course in Ophthalmology M.S. (Ophthalmology) in Dr. V.M. Medical College, Solapur, affiliated to the Shivaji University, Kolhapur, the respondent No. 4, seeks a writ or direction under Article 226 of the Constitution of India that the registration for the post graduate course granted to the respondent No. 5, be set aside and she admitted to that course in his place and certain other reliefs. In this judgment, Dr. V.M. Medical College is referred as "the College". The graduates who passed M.B.B.S. examination from the college are referred to as the "institutional" candidates and those who graduated from colleges other than Dr. V.M. Medical College are referred to as the "non-institutional" candidates. 2. The petitioner passed the M.B.B.S. examination in December, 1982 at the first attempt from the Government Medical College, Miraj, also affiliated to the Shivaji University, Kolhapur. She secured 227 marks out of 400 in the subject of Surgery. She completed her internship in 1983. The respondent No. 5 also passed M.B.B.S. examination from the Government Medical College, Miraj. He did not pass his M.B.B.S. examination at the first attempt. Both of them, at the relevant time, were employed. They are, for the purpose of admission, non institutional candidates. On 23rd May, 1988, the Dean of the College, respondent No. 1, by an advertisement, invited applications, inter alia, for registration for the post graduate course in Ophthalmology for the term commencing in July, 1988. The advertisement stipulated these conditions : (i) The applicant for registration for the course must have passed the final M.B.B.S. examination from Dr. V.M. Medical College, Solapur; (ii) The application should be in the prescribed form; (iii) If the applicant is employed, he/she will have to secure a certificate from the employer that he or she would be relieved from the employment for the entire period of the post graduate studies. The last date for receiving the applications in the prescribed form was 8th June, 1988. 3. On 27th May, 1988, the petitioner visited the office of the respondent No. 1 and requested that she be supplied an application form. She was denied this form on the ground that she did not pass the M.B.B.S. examination from the college and, therefore, was not eligible to apply. 3. On 27th May, 1988, the petitioner visited the office of the respondent No. 1 and requested that she be supplied an application form. She was denied this form on the ground that she did not pass the M.B.B.S. examination from the college and, therefore, was not eligible to apply. The petitioner's sister who is currently a student for a diploma course in the college also made enquiries. But she, too, was told that the application form will not be supplied, since the petitioner, for the reason stated above, was not eligible to apply. On 23rd June, 1988, the petitioner's father also received the same reply from the college. Meanwhile, the petitioner secured from her employer a certificate dated 6th June, 1988, as required by the advertisement, so that in the event of her application being entertained, she could furnish the certificate to the respondent No. 1. However, she did not immediately make any application for registration at the college. On 7th June, 1988, the respondent No. 5 made an application in the form of a letter addressed to the respondent No. 1 seeking admission to the above mentioned course. The petitioner also made an application in the form of a letter on 24th June, 1988 which was duly received by the college. The selection of the candidates for admission to the post graduate course in Ophthalmology was made on 23rd July, 1988. On that date, the petitioner's application dated 24th June, 1988 was on the record of the respondent No. 1. The petitioner, then, wrote a letter to the respondent No. 1 on 29th July, 1988 explaining the circumstances in which she was driven to make the application by a letter. By then, she had learnt that the respondent No. 5 had been admitted to the course notwithstanding the fact that her application was on the record. She brought to the notice of the Dean that registration cannot be granted to an applicant who did not graduate from the college unless the seat has been advertised once again so that the opportunity is open to every aspirant. She brought to his notice that the application form was not given by the college and it was suggested to her that she should apply on a plain paper which, therefore, she did. Meanwhile, as already stated, the respondent No. 5 was admitted to the course. She brought to his notice that the application form was not given by the college and it was suggested to her that she should apply on a plain paper which, therefore, she did. Meanwhile, as already stated, the respondent No. 5 was admitted to the course. In reply to her letter, the respondent No. 1 informed her by letter dated 2nd August, 1988, that her application, received on 27th June, 1988, was not considered, as it was not received within the time stipulated by the advertisement. On 10th August, 1988, the petitioner wrote one more letter and represented her case to the respondent No. 1. In this letter, she recalled that she approached the Dean in the last week of May, 1988 with a request that a printed application form be given to her and that it was denied to her. She filed this petition on 14th September, 1988. On taking inspection of the record at the time of admission of this petition, she learnt that the Selection Committee met only on 23rd July, 1988 and that the seat was made available to the respondent No. 5 because no institutional candidate had applied. She, therefore, made the affidavit dated 11th October, 1988 setting out the facts which she learnt after taking inspection of the record. 4. The respondent No. 1 through his Administrative Officer has made an affidavit dated 10th August, 1988 in reply to the petition. Although the petitioner has made a specific averment that she met the Dean personally as did her father, there is no denial of this fact in the affidavit in reply. Instead of answering this averment, the affidavit goes on to state : "I say that the records of the College very clearly indicate that pursuant to the advertisement that was issued, that the applications were required to be submitted by 8-6-1988. I say that there is on record whatsoever of the petitioner having approached the then Dean and of the Dean having orally told the petitioner that the sent would be readvertised if no student was available from the Institution." It was possible for the Dean to dispute this statement had it been untrue. There is, thus, intrinsic evidence of the fact that in all probability, the petitioner did meet the Dean who made the representation set out above. There is, thus, intrinsic evidence of the fact that in all probability, the petitioner did meet the Dean who made the representation set out above. Nor is there any explanation as to why the applications on plain papers were received privately while the advertisement precluded non-institutional graduates from making applications. 5. The petition and the affidavits prove these facts : (i) The petitioner, as indeed all non-institutional candidates were not eligible for applying to the post-graduate course at the college. (ii) As a consequence of their ineligibility, they were denied the printed application forms in which the applications are always required to be made. (iii) The petitioner made an application in the form of a letter on 24th June, 1988, about 16 days after the period "prescribed" for receiving applications, pursuant to the advertisement, expired. The respondent No. 5 applied on 7th June, 1988, within time. (iv) The petitioner has secured more marks than the respondent No. 5 and has passed the M.B.B.S. examination at the first attempt. (v) If the admissions were open to all, the petitioner would have ranked higher than the respondent No. 5 in the list of merit. 6. The State Government by its resolution No. MCG-2571-24516-Q dated 18th June, 1971 framed Rules known as "Rules for the selection of candidates for admission to the post-graduate course" in Government Colleges. These Rules govern admissions to the course to which this petition relates. A broad outline of these rules will bring out the object which these rules seek to achieve. 7. Rule 4 requires that the notification setting out the number of seats available for registration for post graduate courses should be published at least two months before the commencement of the term. The notification shall invite applications for registration and call upon the applicants to submit the information referred to therein. 8. Rule 5 stipulates that the "selection shall be from amongst the applicants and will be made 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. examination". It then goes on to create what is known as institutional preference, which means that in the selection of candidates for post-graduate studies, preference will be given to students who passed their final M.B.B.S. examination from the college at which registration is sought. It then goes on to create what is known as institutional preference, which means that in the selection of candidates for post-graduate studies, preference will be given to students who passed their final M.B.B.S. examination from the college at which registration is sought. The post graduate studies have been categorised into (i) broad specialities, (ii) their ancillary disciplines and (iii) super specialities. "Broad specialities" are Medicine, Surgery, Obst. Gynaecology and Paediatrics. Psychiatry, Ophthalmology, Orthopaedic, E.N.T., T.B., Radiology, Anaesthesia, Skin and V.D. are "anoillary broad specialities". "Super specialities" are Neurology, Cardiology, Neurosurver Plastic Surgery, Thoracic Surgery etc. Ophthalmology is thus, ancillary to the broad speciality. Though institutional preference is the rule in regard to the broad specialities and their ancillary disciplines, an exception is made by Rule 5 in the case of super specialities by permitting candidates from other Colleges to compete for 50% of the vacant seats. 9. Rule 8 emphasises that the basis of selection "will be on merit as laid down in Rule 5, i.e. number of marks in the subject at University examination", as modified under Rule 8. The modification consists of deduction of certain percentage of marks from the marks secured at the University examination for M.B.B.S. degree, by reason of the failure to pass at the first attempt. 10. Mr. Saldhana, the learned Assistant Government Pleader appearing for the respondents Nos. 1, 2 and 3 drew our attention to the fact that the petitioner's application was beyond the time prescribed by the advertisement and, therefore, the respondent No. 1 was justified in not considering her application. This argument suffers from a fallacy. If the advertisement proclaims that the petitioner, the respondent No. 5 and every non-institutional graduate is not eligible to make an application and, therefore, not entitled to receive a printed application form, there is no question of making an "application" within the prescribed time. An application by such a person was incompetent. Therefore, neither the respondent No. 5 nor the petitioner could have "applied" pursuant to the advertisement. It is an error, therefore, to hold that the application of the petitioner made in the form of a letter was beyond the time prescribed by that advertisement or that the application of the respondent No. 5 was within such time. 11. Therefore, neither the respondent No. 5 nor the petitioner could have "applied" pursuant to the advertisement. It is an error, therefore, to hold that the application of the petitioner made in the form of a letter was beyond the time prescribed by that advertisement or that the application of the respondent No. 5 was within such time. 11. We will, now, consider whether the denial of admission to the petitioner and the grant of admission to the respondent No. 5 are valid. The seat which is the subject matter of this litigation was reserved for institutional candidates. The vacancy, giving rise to the claim by the petitioner, arose because no institutional candidate applied for admission. The petitioner and the respondent No. 5, as indeed all non-institutional candidates, were ineligible to apply. They aspired admission to the course. These characteristics of their circumstances leave no doubt that they are similarly situated. It follows, therefore, that in the matter of admission the respondents Nos. 1, 2 and 3 have a constitutional obligation to treat them equally. If the respondent No. 5 had the right to apply, every other non-institutional candidate also possessed such right. The respondents Nos. 1, 2 and 3 chose to admit the respondent No. 5 on the score that his was the only application presented within the time prescribed. As already held by us, there was no question of prescription of any time limit for the applicants who are not eligible to make such applications. It is, undoubtedly, open to the State to prescribe sources from which the candidates are declared eligible for applying for admission to the Medical Colleges. But when no candidate from the source, viz. the institution itself, was available, the seat fell open to all who did not graduate from the institution. If all the non-institutional graduates from the State are similarly situated as indeed they are the respondent Nos. 1, 2 and 3 cannot pick and choose from amongst them on the score that one or more of them had applied "within time". This argument of "application within the prescribed time" is not tenable because there was no application form, there was no time prescribed and the applicants lacked eligibility. If the respondents Nos. 1, 2 and 3 wish to admit non-institutional candidates from the State, it is necessary that all such candidates have equal opportunity of competing for that seat. This argument of "application within the prescribed time" is not tenable because there was no application form, there was no time prescribed and the applicants lacked eligibility. If the respondents Nos. 1, 2 and 3 wish to admit non-institutional candidates from the State, it is necessary that all such candidates have equal opportunity of competing for that seat. The practice followed by the respondents Nos. 1, 2 and 3 is that whenever such seat falls vacant, those who come to know about such vacancy apply "privately" and their applications are considered. Those who expect advertisement or public notice and have no source of private information are denied the opportunity of making such applications. The practice of receiving and considering applications in this manner is discriminatory and violates the guarantee of equality. It is for this reason that the registration of the respondent No. 5 is tainted with illegality. It deserves to be set aside. However, in the circumstances of this case, it cannot be held that the respondent No. 5 is responsible for this discriminatory practice. Therefore, in the special circumstances of this case, we refrain from cancelling the registration of the respondent No. 5. 12. In our opinion, the practice of receiving applications from the candidates who were ineligible and were denied the application forms but who came to know of the existence of such vacancy privately, is discriminatory and violative of the guarantee of equality, as it denies to the non institutional graduates the opportunity of competing for the seat. The rules set out by us in paragraphs Nos. 7, 8 and 9 above have one fundamental characteristic. It is the urge of the State of Maharashtra to select candidates on the basis of merit. But, under the existing rules the selection from amongst the applicants, though made on the basis of merit, is confined to the candidates from the institution. The rules do not lay down the procedure for filling the vacancy caused by the absence of applications from the institutional candidates. This therefore, leaves arbitrary discretion in the respondents Nos. 1, 2 and 3 resulting in unjust denial of registrations. The advertisement does not permit applications even by meritorious candidates. The choice is made arbitrarily from amongst those who learn about the vacancy "privately". We consider that this discriminatory practice should be substituted by rules which will ensure reasonable opportunity to all graduates. 13. 1, 2 and 3 resulting in unjust denial of registrations. The advertisement does not permit applications even by meritorious candidates. The choice is made arbitrarily from amongst those who learn about the vacancy "privately". We consider that this discriminatory practice should be substituted by rules which will ensure reasonable opportunity to all graduates. 13. We, therefore, direct the respondents Nos. 1, 2 and 3 to ensure that every such vacancy shall be thrown open to non-institutional graduates, from the State if an applicant from the institution is not available. This should apply to every vacancy to post graduate courses in the State of Maharashtra. Every graduate desirous of post graduate education should receive equal treatment at the hands of the respondents Nos. 1, 2 and 3. To ensure such equal treatment, we direct the respondents Nos. 1, 2 and 3 to do the following : (i) It shall introduce an amendment to the rules for selection of candidates for admission to the post graduate courses in Government Colleges and provide that every vacancy that may arise for want of application from the institutional candidates shall be filled by inviting applications from all graduates. (ii) Printed Application Forms shall be made available to every candidate desirous of applying for admission to post graduate courses irrespective of whether he graduated from the institution. (iii) The advertisement and the application forms shall stipulate a condition that those candidates who do not belong to the institution are eligible to make applications but their applications will be considered on merits only if candidates from the institution fail to apply or are not admitted for any other reason resulting in a vacancy. (iv) These directions shall be followed with effect from the academic year 1989-90. 14. For the reasons stated in the foregoing paragraphs, the petition is allowed and the rule is made absolute. The respondents Nos. 1, 2 and 3 are hereby directed to admit the petitioner by creating an additional seat for the post graduate course in Ophthalmology M.S. (Ophthalmology) which they have agreed to do. The petitioner shall forthwith be registered for the post graduate course in Ophthalmology M.S. (Ophthalmology) and under no circumstances, the compliance with this order shall be delayed beyond 2nd November, 1988. The registration shall be for the term beginning in July, 1988. If there is any deficiency in the attendance, it shall be condoned. The petitioner shall forthwith be registered for the post graduate course in Ophthalmology M.S. (Ophthalmology) and under no circumstances, the compliance with this order shall be delayed beyond 2nd November, 1988. The registration shall be for the term beginning in July, 1988. If there is any deficiency in the attendance, it shall be condoned. The registration of the respondent No. 5 for the post graduate course in Ophthalmology shall continue to be operative. There will be no order as to costs. 15. The writ shall be sent to the concerned authorities immediately without waiting for the transcript of this judgment. Petition allowed. -----