JUDGMENT R. Subhash Reddy, J. Original 1st respondent - Medical Council of India, in Special Civil Application No.2693 of 2018, has filed this Letters Patent Appeal under clause 15 of Letters Patent aggrieved by the order dated 12.04.2018 passed by the learned Single Judge in Special Civil Application No.2693 of 2018. 2. Aforesaid Special Civil Application under Article 226 of the Constitution of India was filed by the 1st respondent herein - original petitioner with the prayers which reads as under :- "8(a) Your Lordships may be pleased to allow this petition. (b) Your Lordships may be pleased to direct the respondent no.1 and the respondent no.2 to issue necessary directions to respondent no.3 and respondent no.4 not to discharge the present petitioner and to confirm the admission of the present petitioner to the course of MD (Anesthesia) in Respondent No.5 Institute. (c) Pending admission, hearing and final disposal of this petition, Your Lordships may be pleased to stay the implementation, operation, enforcement and execution of the impugned discharge notice issued to the present petitioner at Annexure A and the communication of the MCI enclosed therewith. (d) Your Lordships may kindly be pleased to pass any other further order/s as are deemed fit, just and proper in the facts and circumstances of the case and in the interest of justice." 3. 1st respondent herein - original petitioner has completed her course in MBBS from Maharaja Sayajiroa University, Baroda and duly registered herself with the Gujarat Medical Council. For the academic year 2016-17, the petitioner joined in residency course in Baroda Medical College in non-clinical residency programme in Preventive and Social Medicine (PSM). While pursuing her programme in residency, the petitioner has appeared in National Eligibility Cum Entrance Test (NEET) examination to pursue postgraduate studies in Clinical Course of M.D. (Anesthesia). In the NEET examination held on 12.12.2016, the petitioner has secured 693.3996 marks, which was below cut off marks notified to seek admission in postgraduate course. Subsequently, Government of India has taken decision and issued directions on 24.05.2017 lowering percentile marks. As per instructions notified by the 2nd respondent Admission Committee for Professional Postgraduate Medical Courses, the petitioner approached the office of Admission Committee and got her documents verified on the date of Mop-up round of counseling i.e. 30.05.2017. Subsequently, Government of India has taken decision and issued directions on 24.05.2017 lowering percentile marks. As per instructions notified by the 2nd respondent Admission Committee for Professional Postgraduate Medical Courses, the petitioner approached the office of Admission Committee and got her documents verified on the date of Mop-up round of counseling i.e. 30.05.2017. Further, it was the case of the petitioner that coming to know on the aforesaid date and venue, that her continuing with her PSM Residency would create an issue, she has tendered her resignation from Residency Programme from Baroda Medical College and taken provisional admission in 4th respondent Institute in available seats of M.D. (Anesthesia). As respondent no.1 - herein - original petitioner was already pursuing M.D.Course in Preventive and Social Medicine (PSM), she was not called for counseling and her candidature was not included in the merit list prepared by the 2nd respondent - Admission Committee. Original petitioner was directly admitted by 4th respondent College in vacant seat in M.D. (Anesthesia). Said College is affiliated to 3rd respondent - University. As name of the original petitioner was not found in the merit list send by 2nd respondent - Admission Committee, the appellant herein - Medical Council of India has taken decision to discharge original petitioner vide communication dated 28.12.2017. There was further reminder of appellant - Medical Council of India on 29.01.2018 and consequently, the University has ordered to discharge 1st respondent - original petitioner vide notice dated 05.02.2018. 4. Said communication was subject matter of challenge in the petition mainly on the ground that the petitioner had already resigned from her Residency Programme in Preventive and Social Medicine (PSM) on 31.05.2017 and she has secured qualifying marks to seek admission, as such, there is no reason to discharge the petitioner from pursuing M.D. (Anesthesia). It was also submitted that there was one another candidate by name Mr.Parikh Preet, who was also pursuing Residency Programme in the academic year 2016-17, and still he was called in Mop-up round of counseling and his name was included in the list prepared by the Admission Committee, as such, dual standard adopted by the 2nd respondent - Admission Committee is illegal. 5. In the Special Civil Applications, detailed separate reply affidavits were filed by Medical Council of India, 2nd respondent - Admission Committee for Professional Postgraduate Medical Courses and 3rd respondent - University. 6. 5. In the Special Civil Applications, detailed separate reply affidavits were filed by Medical Council of India, 2nd respondent - Admission Committee for Professional Postgraduate Medical Courses and 3rd respondent - University. 6. In the reply affidavit filed by the appellant herein - Medical Council of India, while denying various allegations made by the original petitioner, it was the case of the appellant that name of the original petitioner who was admitted in Postgraduate Medical Course of MD (Anesthesia) did not figure in the list of candidates allotted to said medical college by the Admission Committee for the academic year 2017-18. It is further stated that 1st respondent - original petitioner is directly admitted by the college in contravention of Regulations governing the admission. It is stated that admission to postgraduate medical course shall be in accordance with the provisions of Postgraduate Medical Education Regulation, 2000 and admission shall be granted through NEET. The responsibility for holding same squarely lies with the National Board of Examination under the overall supervision of the Ministry of Health and Family Welfare, Government of India. In the said reply affidavit, reference is made to Regulation 9A of Postgraduate Medical Education Regulation, 2000 framed under Indian Medical Council Act, 1956. 7. Separate reply affidavit is filed on behalf of 2nd respondent - Admission Committee. In the said reply, while denying various allegations made by the original petitioner, mainly, it is stated that name of the 1st respondent - original petitioner did not figure in the merit list of students eligible for admission to Professional Postgraduate Medical Courses for the academic year 2017-18. While referring to Rules titled as "Gujarat Professional Postgraduate Medical Educational Courses (Regulation of Admission) Rules, 2017", it is stated that admission granted by the College directly is contrary to the above said Rules. Even in the said reply, it is reiterated that as original petitioner was pursuing her Residency Programme in Baroda Medical College, she was not included in the merit list prepared for the academic year 2017-18. 8. Separate reply affidavit is filed by 3rd respondent University in the petition. Even in the said reply, it is reiterated that as original petitioner was pursuing her Residency Programme in Baroda Medical College, she was not included in the merit list prepared for the academic year 2017-18. 8. Separate reply affidavit is filed by 3rd respondent University in the petition. In the said reply, it is stated that original petitioner approached University by stating that though she was called for counseling, however, for the reasons, she did not disclose that her name did not appear in the merit list of candidates and since it was last date for admission and in order to avoid a situation where a candidate otherwise eligible would be deprived of admission, the petitioner was offered provisional admission. Further, it is admitted that there was communication from Medical Council of India dated 28.12.2017 informing the University to discharge original petitioner and report compliance within one week. 9. Further additional affidavit is also filed on behalf of the petitioner. 10. The learned Single Judge while holding that direct admission of the petitioner to the Postgraduate Course by the College is in contravention of the Regulations and Rules of 2017 framed by the State, however, considering the allegations of the petitioner that similarly placed student by name Mr.Parikh Preet was shown in the merit list by the Admission Committee, has held that there is no justification on the part of the Admission Committee in excluding the petitioner from list of students for admission to Postgraduate Course for the academic year 2017-18. 11. We have heard learned Counsel Ms. V.D.Nanvati appearing for the appellant - Medical Council of India, learned Counsel Mr. Nikil Kariel appearing for 1st respondent - original petitioner, learned Government Pleader Ms. Manisha Lavkumar appearing for Admission Committee and learned Counsel Mr. Mitul Shelat appearing for the University. 12. Before we deal with the submissions made by the learned Counsels, we deem it apt to refer relevant Regulations of Medical Council of India and Rules framed by the State, which regulate admission to Postgraduate Medical Educational course. 13. Admissions in Postgraduate courses in Medical Education are regulated by Postgraduate Medical Education Regulations of 2000. The said regulations are amended from time to time. Relevant Regulation 9(A) of the Postgraduate Medical Education Regulation, 2000 reads as under :- "9A. 13. Admissions in Postgraduate courses in Medical Education are regulated by Postgraduate Medical Education Regulations of 2000. The said regulations are amended from time to time. Relevant Regulation 9(A) of the Postgraduate Medical Education Regulation, 2000 reads as under :- "9A. Common Counseling (1) There shall be a common counseling for admission to all Postgraduate Courses (Diploma/MD/MS/DM/M.Ch.) in all Medical Educational Institutions on the basis of merit list of the National Eligibility-cum-Entrance Test. (2) "The Designated Authority for counselling for the 50% All India Quota seats of the contributing States, as per the existing scheme for Diploma and M.D./M.S. courses shall be the Directorate General of Health Services, Ministry of Health and Family Welfare, Government of India. Further, the Directorate General of Health Services, Ministry of Health and Family Welfare, Government of India shall conduct counselling for all postgraduate courses [Diploma, M.D./M.S., D.M./M.Ch.] in Medical Educational Institutions of the Central Government, Universities established by an Act of Parliament and the Deemed Universities. Furthermore, the Directorate General of Health Services shall conduct the counselling for all Superspecialty courses (D.M./M.Ch.) in Medical Educational Institutions of the Central Government, Medical Educational Institutions of the State Government, Deemed Universities, Universities established by an Act of Parliament, Universities established by an Act of State/Union Territory Legislature, Medical Educational Institutions established by Municipal Bodies, Trust, Society, Company or Minority Institutions". (3) "The counselling for admission to Diploma and M.D./M.S. in all Medical Educational Institutions in a State/Union Territory, including, Medical Educational Institutions established by the State Government, University established by an Act of State/Union Territory Legislature, Municipal Bodies Trust, Society, Company or Minority Institutions shall be conducted by the State/Union Territory Government." 14. Further, in exercise of powers conferred by Sub-section (1) of Section - 20 read with Section 4 of the Gujarat Professional Medical Educational Colleges or Institutions (Regulation of Admission and Fixation of Fees) Act, 2007, the State has framed Rules which are titled as "Gujarat Professional Medical Educational Courses (Regulation of Admission in Undergraduate Courses) Rules, 2017". Rule 4 of the said Rules deals with eligibility for admission, which reads as under :- "4. Eligibility for Admissions :- 1. Rule 4 of the said Rules deals with eligibility for admission, which reads as under :- "4. Eligibility for Admissions :- 1. A candidate shall be an Indian Citizen Provided that a candidate who desires admission on Non Resident Indian seats shall be a Non Resident Indian, or a child or ward of the Non Resident Indian and completed his MBBS/BDS or equivalent course from medical institution with in or outside India and qualify in NEET PG as per the criteria laid down by the competent authority. 2. The candidate must have completed the recognized MBBS or BDS course from University established under any law and situated in State of Gujarat and completed compulsory rotating internship on or before 31st March of academic year of admission. 3. A candidate shall have to appear in NEET PG Entrance Examination conducted for the year fro which admission are being held in respective year for admission to post graduate medical courses and qualify in NEET PG as per criteria laid down by the competent authority. 4. A candidate who has secured admission under these rules in any year shall not be eligible for further admission to any course until the period within which he might have completed the course in which he has secured admission." 15. As per Rule 8(iii) of the Gujarat Professional Medical Educational Courses (Regulation of Admission in Undergraduate Courses) Rules, 2017, all the seats shall be filled on the basis of merit list prepared by the Admission Committee. As per Rule 10(2) of the Gujarat Professional Medical Educational Courses (Regulation of Admission in Undergraduate Courses) Rules, 2017, the candidates are required to produce original documents for admission at the time of counseling before Admission Committee. 16. Rule 11 of Gujarat Professional Postgraduate Medical Educational Courses (Regulation of Admission) Rules, 2017 deals with preparation of merit list for admission. Said rule reads as under :- "11. Preparation of Merit List for admission :- The merit list of the candidates shall be prepared in the following manner, namely :- (1) The merit list of the candidates who have applied in the prescribed form, within prescribed time and who are found eligible under these rules shall be prepared by the Admission Committee, the merit order of the candidate shall be prepared on All India Overall Rank obtained by the candidates in the NEET-PG conducted for the current year. (2) Merit-list of In-service and Physically handicapped category will be prepared separately. (3) Merit list of reserved category candidates shall be prepared separately." 17. Procedure for filling up vacant seats is governed by Rule 16 of the Gujarat Professional Postgraduate Medical Educational Courses (Regulation of Admission) Rules, 2017. Said Rule reads as under :- "16. Vacant Seats :- After the completion of the admission process and exhaustion of merit list of the eligible candidates, if government seats and management seats remain vacant or vacancy arise due to any circumstances, such vacant seats shall be displayed on the official website and on the notice board of the office of the admission committee and the same shall be intimated to the colleges or institutions wherein the seats are vacant and the Government of Gujarat shall seek the list of fresh candidates for admission on such vacant seats from the Government of India, Ministry of Health & Family Welfare for relaxation of eligibility criteria." 18. From the Postgraduate Medical Education (Amendment) Regulations, 2017 framed under Indian Medical Council Act, 1956, it is clear that to fill up Postgraduate Medical admission seats under Regulation 9A, there shall be common counseling for admission to all Postgraduate Courses in all Medical Educational Institutions on the basis of merit list of National Eligibility Cum Entrance Test (NEET). As such, it is clear that to get admission in Postgraduate Medical Courses for the academic year 2017-18, unless a student who is seeking admission in Postgraduate Medical Course finds his name in the merit list prepared by the Admission Committee, no Medical College can admit any student directly. Further, it is clear from the Gujarat Professional Postgraduate Medical Educational Courses (Regulation of Admission) Rules, 2017 framed by the State in exercise of powers conferred by Sub-section (1) of Section - 20 read with Section 4 of the Gujarat Professional Medical Educational Colleges or Institutions (Regulation of Admission and Fixation of Fees) Act, 2007 that all seats in Postgraduate Medical Courses shall be filled on the basis of merit list prepared by the Admission Committee. Further, under Rule 4(4) of the Gujarat Professional Postgraduate Medical Educational Courses (Regulation of Admission) Rules, 2017, a candidate who has secured admission in Postgraduate course, is not eligible for further admission to any course until the period within with he completes the course in which he has secured admission. 19. Further, under Rule 4(4) of the Gujarat Professional Postgraduate Medical Educational Courses (Regulation of Admission) Rules, 2017, a candidate who has secured admission in Postgraduate course, is not eligible for further admission to any course until the period within with he completes the course in which he has secured admission. 19. The submissions made by learned Counsels Ms.V.D. Nanavati appearing for the appellant - Medical Council of India and learned Government Pleader Ms.Manisha Lavkumar appearing for respondent - Admission Committee that admission made is contrary to Rules, deserves acceptance. 20. It is to be noticed that 1st respondent - original petitioner was already admitted in Postgraduate Course in Residency programme in Preventive and Social Medicine for the academic year 2016-17 and she was pursuing the course. While pursuing the course, she appeared in NEET Examination of 2017 to seek admission in M.D. (Anesthesia) for the academic year 2017-18. Even as per case of the petitioner, at first instance, as she got below cut off marks, she did not apply for admission. However, she applied to consider her candidature, after lowering cut off marks in the Mop-up round counseling which was held on 30.05.2017. In the petition, in clear terms, the petitioner has stated that staff of 2nd respondent Admission Committee verified her documents, but at the time of venue of counseling on 30.05.2017, having come to know that her continuing with her PSM Residency would create an issue in securing admission in postgraduate course, next day, she approached Baroda Medical College and tendered her resignation from the Residency Programe. Statement made to that effect is made in paragraph no.3.10 of the petition, which reads as under :- "3.10 Thereafter being desirous of pursuing further academic qualification of Post graduation the present petitioner had duly followed the instructions contained in Instructions for MOP-up Round of Counseling conducted by the ACPC, dated 27/05/2017 wherein detailed Programme of the Counseling was provided. The petitioner herein had noted that her category being that of students found eligible after revision of marks was to be held on 30/05/2017 and accordingly the petitioner herein had approached the ACPC office to have her documents verified and the same was duly carried out by the Staff at the ACPC office. The petitioner herein had noted that her category being that of students found eligible after revision of marks was to be held on 30/05/2017 and accordingly the petitioner herein had approached the ACPC office to have her documents verified and the same was duly carried out by the Staff at the ACPC office. Annexed hereto and marked as Annexure K is a Copy of Instructions for MOP-up Round and further annexed and marked as Annexure K Colly are Copies of Choice Form and Application Form by the ACPC, and instructions for MO Pup Round dated 27.05.2017. It would be pertinent to mention herein that at the said venue on 30/05/2017 the petitioner came to know that her continuing with her PSM Residency could create issues in her securing admission in the PG Course, thus the very next day she had approached the Baroda Medical College and had tendered her resignation from the Residency Programme and subsequently on account of the resignation she was also required to pay back to the said Institution the bond amount as well as the Stipend Amount paid to her. Annexed hereto and marked as Annexure-L Colly are Copies of Resignation Letter dated 31/05/2017 and Receipts to amounts paid back to Baroda Medical College." 21. Further, in clear terms, it is also stated in the petition that her name did not figure in the list of students submitted by 2nd respondent - Admission Committed because she was not called for counseling by the 2nd respondent - Admission Committee. From the averments made in the petition, it is clear that though the petitioner got her documents verified by the staff of 2nd respondent, but she was not called for Mop-up round counseling which was held on 30.05.2017. Merit list is prepared by the 2nd respondent Admission Committee only of those candidates who were called for counseling on 30.05.2017. Even according to the petitioner, she has resigned from the Residency Programme on 31.05.2017, thereafter, she has taken admission in 4th respondent College on 01.06.2017. 22. Though it is contended by learned Counsel Mr. Merit list is prepared by the 2nd respondent Admission Committee only of those candidates who were called for counseling on 30.05.2017. Even according to the petitioner, she has resigned from the Residency Programme on 31.05.2017, thereafter, she has taken admission in 4th respondent College on 01.06.2017. 22. Though it is contended by learned Counsel Mr. Kariel for the petitioner that no prejudice would be caused in continuing her admission, but it is fairly well settled that the admissions which are not made in accordance with the Regulations framed by the Medical Council of India and Gujarat Professional Postgraduate Medical Educational Courses (Regulation of Admission) Rules, 2017 framed by the State in exercise of powers conferred by Sub-section (1) of Section - 20 read with Section 4 of the Gujarat Professional Medical Educational Colleges or Institutions (Regulation of Admission and Fixation of Fees) Act, 2007, cannot be allowed to continue. It is clear case of gross defiance of the Medical Council of India Regulations i.e. 9A of the Postgraduate Medical Education Regulations, 2000. In the said Regulations, in clear terms, it is stated that all admissions shall be made on the basis of merit list. Though name of the petitioner did not figure in the merit list prepared by the Admission Committee, 4th respondent College on its own has admitted the petitioner only on the ground that there are vacancies in M.D. (Anesthesia). Even vacant seats are to be filled in accordance with Rule 16 of the Gujarat Professional Postgraduate Medical Educational Courses (Regulation of Admission) Rules, 2017. 23. Though learned Counsel Mr. Nikil Kariel appearing for the original petitioner has placed reliance on the judgment in the case of Monika Ranka and Ors. v/s. Medical Council of India and Ors., (2010) 10 SCC 233 and in the case of Chowdhury Navin Hemabhai and Ors. v/s. State of Gujarat and Ors., (2011) 3 SCC 617 , but we are of the view that said judgments would not render any assistance in support of the case of the original petitioner. 24. In the case of Monika Ranka and Ors. v/s. Medical Council of India and Ors., (2010) 10 SCC 233, the students who had joined MBBS Course, after completion of one year, it was noticed that they have not secured minimum marks for admission in entrance examination. 24. In the case of Monika Ranka and Ors. v/s. Medical Council of India and Ors., (2010) 10 SCC 233, the students who had joined MBBS Course, after completion of one year, it was noticed that they have not secured minimum marks for admission in entrance examination. It was the case of the students that marks were not made known to them at the time of admission. The Hon'ble Supreme Court held that there was nothing on record to show that the appellants therein were informed about the marks secured by them in the entrance examination. Considering the case of the appellants therein as a special case, the Hon'ble Supreme Court permitted to continue their course while approving the principle laid down by the High Court. 25. In the case of Chowdhury Navin Hemabhai and Ors. v/s. State of Gujarat and Ors., (2011) 3 SCC 617 , when the State had framed Rules requiring a lower qualification than that framed by the Medical Council of India Regulations, and when students were discharged as per directives of Medical Council of India, the Hon'ble Supreme Court having found that fault is with the rule making authority, as such, the appellants therein were allowed to continue in the course. Further, it is held that such directions are not be treated as precedent. 26. When it is brought to our notice that the admission of original petitioner in 4th respondent College is in gross violation of Postgraduate Medical Education Regulation, 2000 framed under Indian Medical Council Act, 1956, we have no option but to declare such admission as illegal. 27. Though learned Single Judge has held that admission of 1st respondent - original petitioner in M.D. (Preventive and Social Medicine) for the academic year 2016-17, cannot be treated as admission under Rule 4(4) of Gujarat Professional Postgraduate Medical Educational Courses (Regulation of Admission) Rules, 2017, but it is to be noticed that on the date of mop of round of counseling, which was held on 30.05.2017, the original petitioner was pursuing her course in M.D. (Preventive and Social Medicine). It appears that though her certificates were verified by the staff of Admission Committee, she has not participated in the counseling at all held on 29.05.207 and 30.05.2017. It appears that though her certificates were verified by the staff of Admission Committee, she has not participated in the counseling at all held on 29.05.207 and 30.05.2017. As the petitioner was not allowed to participate on 30.05.2017, Admission Committee has rightly not shown her name in the merit list prepared, and submitted to Medical Council of India. As per Regulations framed under Medical Council of India and Rules under Gujarat Professional Postgraduate Medical Educational Courses (Regulation of Admission) Rules, 2017, admissions are to be made only as per merit list prepared by the Admission Committee. Admission of original petitioner by 4th respondent College on its own, though her name did not figure in the merit list prepared by the Admission Committee, is per-se illegal and arbitrary. 28. The learned Single Judge has granted relief mainly referring to case of one Mr. Parikh Preet, who was allegedly similarly placed to that of the petitioner and found place in the merit list prepared by the Admission Committee. Though there is no specific denial in the reply affidavit filed by the Admission Committee, but is not clear under what circumstances such person's name came to be included in the merit list prepared by the Admission Committee. 29. Even otherwise, it is fairly well settled legal proposition that Article 14 is not meant to perpetuate illegality and it does not envisage negative equality. Even if some other similarly situated persons have been granted some benefit inadvertently or by mistake, such order does not confer any legal right on the original petitioner to get the same relief. On the aforesaid proposition, a useful reference can be made to the judgments of the Hon'ble Supreme Court in the case of State of Orissa and Anr. v/s. Mamata Mohanty, (2011) 3 SCC 436 , in the case of State of Bihar v/s. Upendra Narayan Singh and Ors., (2009) 5 SCC 65 and in the case of Kulwinder Pal Singh and Anr. v/s. State of Punjab and Ors., (2016) 6 SCC 532 . 30. In all the above judgments, the Hon'ble Supreme Court while considering equality enshrined under Article 14 of the Constitution of India, has held that it cannot be enforced by a citizen or Court in a negative manner. Even assuming that name of Mr. v/s. State of Punjab and Ors., (2016) 6 SCC 532 . 30. In all the above judgments, the Hon'ble Supreme Court while considering equality enshrined under Article 14 of the Constitution of India, has held that it cannot be enforced by a citizen or Court in a negative manner. Even assuming that name of Mr. Parikh Preet who is similarly situated person to that of the petitioner and who was pursuing his Residency programme is included in the merit lit, it is for the original petitioner to challenge the action of the Admission Committee for non inclusion of her name, but at the same time, when her name is not figured in the merit list prepared by the Admission Committee, the petitioner cannot seek admission in the 4th respondent College and 4th respondent College readily cannot accede such request and grant admission as sought by the original petitioner. When Regulations framed by the Medical Council of India and Gujarat Professional Postgraduate Medical Educational Courses (Regulation of Admission) Rules, 2017 prescribe that admissions are to be made only as per merit list prepared by the Admission Committee, 4th respondent College could not have offered seat at all to the original petitioner when her name was not found in the merit list. Explanation which is sought to be offered for grant of such admission by the 4th respondent - College is totally misconceived and cannot be accepted. 31. For the aforesaid reasons, the Letters Patent Appeal is allowed and the judgment dated 12.04.2018 passed by the learned Single Judge in Special Civil Application No.2693 of 2018 is hereby quashed and set aside. Consequently, the Special Civil Application No.2693 of 2018 stands dismissed. As much as, 4th respondent College has granted admission to the original petitioner contrary to Regulations and Rules, though her name was not found in the merit list prepared by the Admission Committee for grant of admission to post-graduation course for the academic year 2017-18, we direct the 4th respondent College to refund entire fees collected to the original petitioner within a period of four weeks from the date of receipt of this order. Consequently, Civil Application stand disposed of.