Amar Nath Varma, J. - (1.) THE petitioner passed the M.B.B.S. examination in May 1981 securing 57.859% marks from the G.S.V.M. Medical College, Kanpur. He is aggrieved by the refusal of the said Medical College to admit him to the M.D. course. The petitioner claims that on a true and proper interpretation of the applicable Government Order regulating admission of candidates for Post Graduate studies in the State Medical Colleges, he was entitled to be admitted against 25% quota reserved for both internal and external candidates. The relevant facts are that in all there were 18 seats available for post Graduate students of M.D./M.S. course in G.S.V.M. Medical College, Kanpur. Fourteen of these were reserved under a Government Order dated 15th December 1982 for internal candidates against the 75% quota carved out exclusively for internal candidates. The rest of the four seats were to be filled in terms of that Government Order by external candidates against the 25% quota which was to be filled in by the candidates who passed the M.B.B.S. examination from other Medical Colleges and who were bona fide residents of the Uttar Pradesh subject to the condition that these candidates had to compete on the basis of merit along with the internal candidates. Admittedly, the petitioner was not eligible having regard to the marks obtained by him for selection against the 75% quota reserved for internal candidates The petitioner's contention is that the remaining 25% seats were wrongly allotted to the external candidates as some of them had secured lesser marks than those candidates who had already been selected against the 75% quota reserved for internal candidates. The argument was that if the marks of these external candidates had been compared with those selected against the quota reserved for internal candidates, these external candidates would have been out and as a consequence, the petitioner would have got in. It is not disputed that each one of the candidates at serial Nos. 15 to 18 admitted against the 25% quota secured higher marks than the petitioner. Indeed, some of the candidates at serial Nos. 15 to 18 secured higher marks at the M.B.B.S. examination than many absorbed against the 75% quota reserved for internal candidates.
(2.) IN the counter affidavit which has been filed on behalf of the respondent Medical College, it has been asserted that the seats for Post Graduate studies were filled strictly in accordance with the aforesaid Government Order and that in any case the petitioner was not entitled to be selected in view of the marks obtained by him. In order to appreciate the rival contentions, it will be useful to have the relevant part of the aforesaid Government Order extracted here: No. 8147 Section 14/V -250 -82 Dated Lucknow, December 15, 1982. In exercise of the powers under sub -section (5) of Section 28 of the Uttar Pradesh State Universities Act, 1973 (President's Act No. X of 1973), as amended and re -enacted by the Uttar Pradesh Universities (Re -enactment and Amendment) Act, 1974 (U.P. Act No. IX of 1974) as amended by the U.P. State Universities (Amendment) Act, 1980 (U.P. Act No. XV of 1980), the Governor, keeping in view the recommendations of the Medical Council of India, is pleased to order that with immediate effect the following policy and procedure shall be followed with regard to the admission of candidates to the Post -Graduate Courses (Degree and Diploma) in the State Medical Colleges including the K.G. Medical College, Lucknow. (1) Admission shall be made only on the basis of merit. (2) The basis of determining the merit shall be percentage of marks worked out after deducting one per cent marks for each failure in every subject from the total percentage of marks obtained in the M.B.B.S. Examination. In case of a candidate who fails in subject and is declared successful in second or subsequent attempt in that subject the marks obtained by him for day today performance in the first examination in that subject shall be added to his total marks while preparing the said index. (3) Admission shall, as far as possible, be made in December or January each year. (4) In every speciality, seventy five per cent seats in a particular Medical College shall be reserved for the candidates who have passed the M.B.B.S. examination from that College and against the remaining twenty five per cent seats, candidates who have passed M.B.B.S. Examination from other Medical Colleges and are bona fide resident of Uttar Pradesh, shall be eligible for admission on the basis of merit along with candidates who have passed the M.B.B.S. examination from that very College.
(3.) IN our opinion the clear import of clause (4) is plainly this: 75% of the seats are reserved exclusively for the internal candidates who have passed the M.B.B.S. Examination from that College. In filling these 75% seats the external candidates are Dot considered for admission at all. The remaining 25% seats are required to be filled in by external candidates who are bona fide residents of Uttar Pradesh subject to the condition that they shall be eligible for admission on the basis of comparison of their marks with those of the remaining internal candidates who have not succeeded in getting admitted against the 75% quota reserved for the internal candidates. We are clearly of the opinion that in selecting candidates for the remaining 25% seats the marks of external candidates are not required to be compared with those of the internal candidates who have already succeeded in getting absorbed against the 75% quota reserved exclusively for internal candidates That is, the field of eligibility, for the remaining 25% seats is confined to the external candidates and the non -selected internal candidates. We find no warrant for holding that in considering the eligibility of the external candidates their merit has to be compared with the internal candidates who have already been selected against the 75% quota We find that the contention of the petitioner's counsel to the contrary are entirely unacceptable. Indeed, in our opinion, it seems quite irrational that the merit of external candidates has to be considered along with the candidates who have already been selected against the 75% quota. In our opinion, the words "and against the remaining twenty -five per cent seats, candidates who have passed M.B.B.S. examination from other Medical Colleges and are bona fide resident of Uttar Pradesh, shall be eligible for admission on the basis of merit along with the candidate who have passed the M.B.B.S. examination from that very College" must in the context mean that the remaining twenty -five per cent seats are to be filled in by external candidates, provided they have secured higher mark than the internal candidates who have been absorbed against the seventy five per cent seats.;