Satish Chandra, C.J.
1. The petitioner passed his M. B. B. S. examination in 1977 from the Government Medical College, Jabalpur. He completed his internship in Mar. 1978. He then shifted to S. N. Medical College Hospital, Agra and did his House Job there. He completed it in Apr. 1979. Thereafter he applied for admission to the Postgraduate Course in Psychological Medicine at the S- N. Medical College, Agra for the session 1980. His application was, however, rejected. He made an application for the same course for the session 1981 as well but the same has also been rejected. Aggrieved, he has come to this Court after rejection of 1981 application.
2. The respondents have in their counter-affidavit indicated that apart from other things there was no vacancy because according to the procedure for admission laid down by the Government, seventy-five per cent seats have to be reserved for internal candidates while external candidates are eligible for admission as against only twenty-five per cent seats. In 1980 as well as i981 there were only two vacancies in the speciality of Psychological Medicine in the college. Since seventy-five per cent and twenty-five per cent could not be allocated appropriately, both the seats were allotted to internal candidates hence there was no vacancy for external candidates.
3. The notification dated Dec. 3, 1980 on which reliance has been placed by the respondents runs as follows :
'In pursuance of the provisions of Clause (3) of Article 348 of the Constitution, the Governor is pleased to order the publication ofthe following English translation of notification No. 9113-Section 1/V-G-88-78, dated Dec. 3, 1980.
No. 9113-Sec. 1/V-G-88-78 Dated Lucknow, December 3, 1980.
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. XXIX of 1974) as amended by the U. P. State Universities (Amendment) Act, 1980 (U. P. Act No. XV of 1980), the Governor, considering it so necessary and keeping in view the recommendations of the Medical Council of India, is pleased to order that with effect from Dec. 14, 1979 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 and 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 a subject and is declared successful in second Or subsequent attempt in that subject, the marks obtained by him for day-to-day performance in the first examination in that subject shall be added to his total marks while preparing the said index.
(3) Admissions 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 residents of Uttar Pradesh, shall be eligible for admission on the basis of merit along with the candidates who have passed the M. B. B. S. examination from that very College.
(5) Candidates must be bona fide residents of Uttar Pradesh.
NOTE I-- 'Bona fide resident of Uttar Pradesh' means -
(a) A citizen of India, the domicile of whose father is in Uttar Pradesh and who himself is domiciled in Uttar Pradesh; or
(b) A citizen of India, the domicile of whose father was not in Uttar Pradesh but who himself has resided in Uttar Pradesh for not less than 5 years at the time of making the application.
NOTE II -- The condition of being bona fide resident of Uttar Pradesh shall not apply in the case of :--
(a) displaced students registered in Uttar Pradesh on production of a certificate to this effect from the District Magistrate of the district concerned;
(b) wards of the employees of the Government of India serving in Uttar Pradesh on production of a certificate from the employer;
(c) wards of the employees of Defence Forces of the Government of India serving in any part of the country on production of a certificate of the employer;
(d) wards of employees of public undertakings like Life Insurance Corporation of India, Banks. Bharat Heavy Electricals, Indian Drugs and Phar-maceuticals Ltd., serving in Uttar Pradesh, subject to the condition that they shall submit an affidavit on proper stamp, duly sworn to the above effect and furnish a certificate from the employer.
(e) wards of Indian nationals who have been repatriated from other countries on production of a certificate from the concerned District Magistrate in Uttar Pradesh:
(f) women candidates, who are not bona fide residents of Uttar Pradesh, but who are married to bona fide residents Of Uttar Pradesh, on production of a certificate from the concerned District Magistrate or an affidavit:
Provided that this exemption shall not apply in case of women who are judicially separated.'
It will be seen that seventy-five per cent seats for admission on the basis of merit are reserved for internal candidates, namely, the candidates who have passed the M. B. B. S. examination from that college; while the candidates who have passed M. B. B. S. examination from other Medical Colleges are eligible for admission against the remaining twenty-five per cent seats.
4. It is obvious that Government did not intend to make hundred per cent reservation in favour of either internal or external candidates obviously because that would have been unconstitutional. In Dr. Jagdish Saran v. Union of India AIR 1980 SC 820 it was observed that blanket ban which is the indirect result of a wholesale reservation is constitutional heresy. In order to avoid striking down of the notification on that ground it must be held that the Government meant and intended to make not more than seventy-five per cent reservation for internal candidates and that it was never the intention of the Government in issuing this policy and procedure notification that in any event the procedure laid down in it should result in hundred per cent reservation for any length of time.
5. It appears that because of the number of teachers available in this speciality of Psycological Medicine, the number of seats available each year has been fixed at two. If the method adopted by the authorities in allocating these seats hitherto is continued, it will result in hundred per cent reservation for internal candidates. In 1980 both the seats were allotted to internal candidates. In 1981 also both the seats were allotted to internal candidates, To avoid the attack of unconstitutionality, the notification has to be read down. The Government's intention of reservation of not more than seventy-five per cent seats for internal candidates can well be effectuated if one seat every alternate year is held and reserved for external candidates. The result will be that out of the four seats available in two years, three would be reserved for internal candidates. That will make the reservation seventy-five per cent. That will also make twenty-five per cent seats available for other candidates.
6. Since the sessions of 1980 as well as 1981 are over, we are not inclined to interfere with the admissions made by the respondents for those sessions, but for the session 1982 if only two seats are available, one of them will be reserved for the internal candidates while the other will be available for other candidates. Subject to these observations the writ petition fails and is accordingly dismissed. But we make no order as to costs.