JUDGMENT [ENTITY], C.J.
1. Petitioner completed his M.B.B.S. Course in G. R. Medical College, Gwalior, under Jivaji University, Gwalior. He completed one year house job in the same College in 1991. He was granted registration by the Medical Counsel. He underwent one year's house job in the Department Ophthalmology in the year 1991-92. He filed the writ petition while he was undergoing D.O.M.S. Course in G. R. Medical College, Gwalior desirous of getting admission is M. S. Ophthamology Course in Govt. Medical College, Jabalpur.
2. In the year 1992, there were 3 seats in M. S. Ophthamology Course in the Govt. Medical College, Jabalpur. Of them, one was reserved for Surgeons and the remaining two were to be filled up from among the Institutional candidates. Out of the two seats, one was surrendered for the purpose of admission in pursuance of All India Entrance Examination. Vacancies having arisen in the All India Post Graduate quota for 1992, the one seat so surrendered, was released. The Director, Medical Education M.P., decided that the released seat should be utilised by local candidate. [SECTION] of the M. P. Selection for post Graduate Courses in [ACT], requires the seats (not othewise reserved for Assistant Surgeons or the like etc.) to be filled on the basis of merit from amongst the students passing from particular College. Petitioner, not having passed from Govt. Medical College Jabalpur, and being an outsider, is not eligible to seek admission to the vacant seat. He repeatedly submitted applications to the Authorities, but in vain. 4th respondent, an Institutional candidate of Govt. Medical College Jabaplur, was admitted in the seat in December, 1992. Immediately thereafter, the petitioner filed this writ petition challenging the Rule referred to above as violative of [SECTION] and [SECTION] of the [ACT] and seeking writ of mandamus directing respondents 1 to 3 to admit him in the Course and seeking cancellation granted to 4th respondent. Return has been filed on behalf of respondents 1 to 3. 4th respondent has filed her return.
3. The Division Bench which heard the matter, thought that earlier Division Bench decisions have taken conflicting views and referred to the Full Bench the question whether the seats reverted back from all India quota shall be filled in from the merit list of Institutional candidates, or on the basis of comparative merit list of all students of all Medical College in M.P., By a separate order passed by the Chief Justice, the entire case has come up for consideration before the Full Bench.
4. One of the controversies in the case relates to the question whether the seat which reverted from the All India quota of 25% reverts to the Institutional candidates of the particular College in which the Course is conducted, or whether it reverts to the State as such. A Division Bench of this Court, in [PRECEDENT], decided on 15-12-1989, dealt with the controversy regarding admission to reverted seats. The Division Bench presumed that all the vacant seats should be filled up by Institutional candidates. In [PRECEDENT], a Division Bench of this Court held that seats which reverted from All India quota will revert to the Institutional candidates if those seats were originally available for admission to such candidates. In Dr. [ENTITY] v. [PRECEDENT], a Division Banch dealt with the two reverted seats of which one was originally reserved for Assistant Surgeons' quota and the other was originally required to be filled up by an Institutional candidate. It was held that the two seats should be filled up by Assistant Surgeons and Institutional cadi-dates respectively. We may notice that in the above decisions, there was no contention that there was 100% reservation for Institutional candidates and such reservation offends [SECTION] of the [ACT].
5. We are concerned with the three seats in M.S. Ophthamology Course in the Govt. Medical College, Jabalpur. According to the Rules, one of the seats was reserved to be filled up from amoungst Assistant Surgeons in service and the remaining seats were to be filled up from among Institutional candidates. When the question of making over 25% of the seats to the All India quota came up, one of the two remaining seats was allotted to the All India quota. This seat was released from All India quota on account of the fact that candidate to whom it was allotted, did not accept it. The Authority dealing with the All India quota, released this vacant seat. As per [SECTION] seats not otherwise reserved, have to be filled up by Institutional candidates. Going by the Rules, the reverted or released seat must go to most meritorious Institutional candidate, i.e. the fourth respondent and petitioner could have no claim.
6. Petitioner challenges [SECTION] of the Rules as prescribing 100% reservations of seats remaining after reservation for Assistant Surgeon etc. and, therefore, violative of [SECTION] of the [ACT], The order of reference indicates that the decision in Dr. [ENTITY]'s case v. [PRECEDENT] is contrary to the decisions in Dr. [PRECEDENT], dt. 21-4-1987 and Dr. [ENTITY]'s case v. State of M.P., MP No. 2115 of 87, dated 20-10-1987. We find that in Dr. [ENTITY]'s case (supra) this Court did not go into the constitutionality of the provision, but merely held that going by the rule, the seat reverted or released, has to be allotted to the Institutional candidates or Assistant Surgeons, as the case may be.
7. We will now refer to various decisions of this Court relied on by learned counsel appearing for either side. The earliest in series is the judgment in [PRECEDENT] (supra) which dealt with the case of admission to the Post Graduate Course in the Gwalior Medical College. It was held that [SECTION] prescribing 100% Reservation for Insitutional Candidates is contrary to the dictum laid down by the Supreme Court in Dr. [ENTITY]'s case v. Motilal Nehru Medical College Allahabad, AIR 1984 SC 1420. Accordingly, the petitioner who was the most meritorious among all the candidates, was directed to be admitted.
8. In [PRECEDENT], dated 14-8-1987, the Court dealt with the rule for admission to Post Graduate Course in Medical College which allegedly required that the candidate should have done housejob in the same College. The Court held that the Regulations of the University did not postulate such a requirement and that in any event, such a condition would be unreasonable.
9. In Dr. [ENTITY]'s case v. State of M.P., MP No. 2115 of 87 dated 20-10-1987 the Court followed thedecision in [PRECEDENT], [CASE NUMBER] dated 21-4-1987 and earlier cases.
10. In [PRECEDENT], it was held that 100% reservation for Insitutional Candidates for admission to Post Graduate Courses violates [SECTION] of the [ACT], as no compelling reasons for reservation have been made out. We may also refer to the judgment which dealt with the restriction is regard to admission to housemen-ship in Medical Colleges in the State. There was a rule which required that candidates should have passed out of the very college. In [PRECEDENT] dated 21-11-1990, relying on a Full Bench decision of this Court in [PRECEDENT] dated 5-5-1998, it was held that the rule was bad. Similar was the decision in [PRECEDENT].
11. The object sought to be achieved by any rules relating to admission of candidates to Professional Colleges is to get the best talents for admission. [PRECEDENT], it was held that districtwise allocation of seats has no reasonable relationship with the object to be achieved and such allocation will result in many cases in the object being destroyed and that being so, the qualification, even if reasonable, would result in discrimination inasmuch as better qualified candidates from one district may be rejected, while less qualified candidates from other districts may be admitted. Territorial qualification is not bad, in all circumstances, but it was held that districtwise qualfication was violative of [SECTION], especially when no worth-while justification has been made out.
12. The Supreme Court, in [PRECEDENT], dealt with the rule relating to University-wise distribution of seats in general pool for admission to State Medical Colleges. The rule also allowed not more than 20% of seats to be filled by candidates of Colleges affiliated to other Universities. Since Universities are set up for satisfying education needs of different areas where they are set up and Medical Colleges are establised in those areas, the Court drew the presumption that they were set up to satisfy the need of medical training of those attached to those Universities and this was held to be not undesirable. University-wise selection was held to be quite different from districtwise or unit-wise selection, as any student from any part of the State can pass the qualifying examination in any one of hte Universities irrespective of place of birth or residence. It was held that preference to one University for post graduate or technical traning was not uncommon. On a consideration of all the circumstances, the Court found the rule to be reasonable.
13. In Dr. [ENTITY]'s case v. Motilal Nehru Medical College, Allahabad, AIR 1984 SC 1420 the Court dealt with the rule of residence requirement within the State and Institutional preference. It was held that a reasonable percentage of reservation is acceptable to equalise opportunity on a broader basis and to bring real equality. The Court indicated that the reservation cannot exceed 70% of the open general seats for post Graduate Courses and that there can be no reservation in super specialities. In [PRECEDENT] it was clarified that 30% contemplated in Dr. [ENTITY]'s case v. Motilal Nehru Medical College, Allahabad must be allotted after de- -ducting seats reserved for S.C. S.T., In [PRECEDENT] the Court indicated that region-wise preference may be justified, though it cannot exceed 70% of the open seats. (See also Dr. [ENTITY] v. Union of India, AIR 1980 SC 820).
14. We will now consider the facts in the light of the principles laid down by the Supreme Court. There were only three seats in the M.S. (Ophthamology) Course in the Govt. Medical College, Jabalpur. One seat was to be filled up from among the Assistant Surgeons. The rule required that the remaining 2 seats were to be filled up from among the Institution candidates. In other words, the rule Prescribed 100% reservation in relation to open general seats in favour of candidates who studied in the same Insitution. In the words of [ENTITY], J. in Dr. [ENTITY]'s case "we recognise that Institution-wise reservation is constitutionally circumscribed and may become ultra vires if recklessly resorted to." The Court felt that 70% plus is too high at the Graduate level, but refrained from striking down the rule, because the facts were imperfect. The present is a case of reservation of 100% of the open general seats in favour of Institutional candidates. However, justified reservation of a certain percentage in favour of Institutional candidates may be wholesale reservation of all the seats, certainy violates [SECTION] of the [ACT]. Of the 2 seats, one was already filled up by Institutional candidates. Necessarily, the remaining seat should have been filled up by the most meritorious among all the eligible candidates, without reference to the Institutional source.
15. According to the petitioner, he is the most meritorious among all the remaining eligible candidates, while 4th respondent is the most meritorious of the remaining In stitutional candidates. 4th respondent was given admission. This was obviously wrong constitutionally, though it was in accodance with the rule, there may be Medical Graduate who passed out of several Universities in the State. Necessarily, as indicated in Dr. [ENTITY]'s case v. [PRECEDENT] marks secured in qualifying examinations held by serveral Universities, cannot be the basis of assessment in regard to comparative merit.
The rules did not prescribe entrance test to be held. The rules also did not prescribe ration alisation of marks secured by the candidates in examination conducted by different Uni versities. Therefore, the petitioner's claim that he was the most meritorious candidate, can not be accepted.
[SECTION]. Learned counsel for the petitioner pleaded that even at this stage, it is open to this Court to direct an entrance examination to be conducted for the disputed seat, or comparative merit of different candidates to be adjudged by retionalisation of marks. We do not think we should resort to such a method after a lapse of nearly 1 1/2 years since the commencement of the Post Graduate Course.
17. The Supreme Court, in [PRECEDENT], held that the Court would not allow admission to a candidate belatedly and disturb others who have already been admitted and undergoing the course.
18. On the facts of the present case, we do not think it proper to direct 4th respondent to be removed and to direct the seat to the filled up afresh at this stage. Petitioner has no case that he has become age barred for admission in future course, or that there is any other legal difficulty in his seeking admission hereafter. There is the further difficulty that the course to which petitioner sought admission was a two year course which has been abolished since then. Having regard to these facts, we do not think petitioner is entitled to any relief.
19. Petitioner is dismissed, but without costs. Security amount, if deposited, be refunded to the petitioner.