M.F. Saldanha, J.

1. A controversy of some seriousness that concerns the interpretation of Rule 5(b) of the Rules for Admission to M. D. (Ayurved) Post-graduate Courses promulgated by the State of Maharashtra for the year 1991 has arisen in these two petitions. The point in issue being common, we propose to dispose of the two petitions through this judgment. The facts that are material to the extent of the decision of the issue involved are not in dispute. Admittedly, the two petitioners applied for admission in 1991 to the Post-graduate Course, namely, M. D. Ayurved, one to the Government Ayurved Mahavidyalaya and the second to the Ayurved Mahavidyalaya, Nagpur. The first of these institutions is a Government Ayurvedic College and the second one is a Grant-in-aid college. The concerned rules govern these two institutions. The respective Deans at the scrutiny stage of the application forms denied admission to both the petitioners, the ground being common in so far as it was contended that on an interpretation of rule 5(b), the two petitioners did not qualify for admission to the courses principally on the ground that they had not graduated from the college in question and that they did not belong even to the Nagpur University, one of them having qualified from Nashik and the second from Jabalpur. This obviously was on the basis of the principle of institutional preference which was permissible under the old rules as they did exist. Embodying the principle that continuity in the same institution has many advantages, undoubtedly, benefiting the concerned students, which is an overriding consideration, institutions were then permitted to cater to their own, to the exclusion of others. Unfortunately, this was carried to extremes, with each institution becoming an impregnable fortress and the Courts were required to step in and strike down the rule which, totally excluded outsiders.

2. It is material to record that the petitioners were at serial Nos. 1 and 2 respectively in the merit lists in question and would have normally been admitted to the Post-graduate Courses except for the fact that the respective Deans interpreted the rules to mean that the reservation of seats under rule 5(b) was restricted to students of that institution alone. It is true that under the rules, 5% of the seats are reserved for students from other States and the balance 50% of the seats for various categories of in-service candidates, both of which we are not concerned with. The controversy, therefore, boils down to the determination as to whether on the grounds canvassed by the respondents, the petitioners were rightfully excluded from being admitted to the institutions in question.

3. Mr. Manohar and Mr. Gharote, the respective learned counsel appearing on behalf of the two petitioners, invited our attention to the relevant rule, which is rule 5 and which reads as follows:-

5. Reservation of seats ;

(a) 5 per cent seats or minimum one (1) seat of the total seats available for registration for Post-graduate Degree/Diploma course in all the subjects taken together shall be reserved for the eligible candidates who pass from other States provided his/her name appears in the Merit List of candidates prepared separately for other States.

(b) 50 per cent of the total seats in the Post-graduate Degree /Diploma course in all the subjects taken together for registration available in a year in each college shall be reserved for the students of the concerned Government Ayurvedic College as well as concerned grant-in-aid colleges in the Maharashtra State. Out of the remaining 50 per cent seats for teachers, one (1) seat shall be reserved for Non-teaching staff i.e. in-service personnel of the concerned institution. In the event of any seats remaining vacant from amongst the above category i.e. in-service personnel category, then, the applicants belonging to various Maharashtra State Government services or grant-in-aid institution may be considered for admission.

The overall reservation of 34 per cent seats prescribed by Government for various categories of Backward Class candidates shall be observed subject to the rules laid down by Government from time to time. However, the admission will be given by rotation during the year as well as every year both category-wise and subject-wise.

(c) There will be no guarantee of recommending registration in a particular subject of specialty.

(d) 34 per cent of the total seats available as per (a) and (b) above for registration in all the subjects taken together in a year will be reserved for Backward Classes in the prescribed proportion. This includes the students getting registration under Backward Class category under sub-rules (a) and (b) which shall be notified by the Dean/Principals of the respective Ayurvedic colleges.

4. Before proceeding to examine the challenge to the Rule in question, it is essential to record that it is stoically defended on behalf of the State principally on the ground that the institutional reservation was limited to 50% only and, therefore, it was both permissible and reasonable. Unfortunately, the draftsman seems to be a poor mathematician and has overlooked the fact that excluding the outside universities and the in-service categories which are immaterial, the entire balance of seats has been reserved for institutional candidates.

5. Learned counsel for the petitioners contend that the interpretation of rule 5(b) as canvassed by the respondents is untenable. The twofold challenge that has been put forward is that, in the first instance, having regard to the decision of the Supreme Court in the case of Greater Bombay Municipal Corpn. vs. Thukral Anjali, : AIR 1989 SC 1194 [LQ/SC/1987/290] , the position in law is concluded in so far as there can be no legal sanction to a situation whereby any of the colleges governed by the rule proceed on the basis of total institutional preference. They, therefore, contend that regardless of the ambiguity that is, perhaps, possible, on a reading of the relevant rule, which is far from happily worded, it will have to be interpreted in consonance with the correct position in law. Secondly, it is contended by the two learned counsel before us, and in our considered judgment with considerable justification, that the two petitioners, who admittedly have qualified from universities other than the Nagpur University, would still be eligible to compete on merit for the seats in question and that the artificial bar held against them is of no consequence.

6. As against this position, it was contended by the learned Assistant Government Pleader on behalf of the State as also by Shri Trivedi, learned counsel representing the grant-in-aid college, that in point of fact, serious operational difficulties arise in so far as the students of that institution who normally ought to be given first preference for the post-graduate education in that very institution would almost be excluded if all the seats available under rule 5(b) were to be allotted to students on the basis of a merit list compiled on a State wise basis. The obvious sequitur to this argument is that the seats being few at the Post-Graduate level, if they are thrown open to wide-based competition, the chances of the institutional candidates get very much diminished. This may be true, but it overlooks the fact that such favored treatment to ones own infringes upon the rights of the "outsiders" to compete for the seats which can and must be allotted only on the basis of merit alone and nothing else.

7. Certain other grievances were made, namely, that the rules are not being uniformly interpreted and that the Government colleges in particular on the basis of the interpretation that the students of that institution were eligible to further studies in that very institution were restricting the admission to their own students, thereby forcing the remaining grant-in-aid colleges to follow suit. To our mind, this situation which has arisen due to an incorrect interpretation of the rules to some extent occasioned because of the manner in which the rule has been worded, as we shall presently point out, is no justification for a situation that does not admit to legal scrutiny. It has been pointed out to us by learned counsel representing the respondents that rule 5(b) uses the terminology "shall be reserved for the students of the concerned Government Ayurvedic College as well as the concerned grant-in-aid colleges in the Maharashtra State" and that the respective Deans understood the reference to the word "concerned" to mean as indicating that very institution. On the basis of this interpretation, it was submitted that the rule does, in fact, restrict the admission in the case of Government colleges to students of that concerned college and to no others and in the case of the grant-in-aid colleges to the students of the grant-in-aid colleges in question and to no others. It is fundamental while drafting a rule that the language must be clear and unambiguous. These tenets are invariably observed in the breach and the present provision is one more of such situations where the repetitive use of the word "concerned", which in an event was redundant, has resulted in an unholy mess. It was probably such a provision that provoked the following verse:

I am the Parliamentary draftsman, I draft the countrys laws And of more than half the resulting litigation I am undoubtedly the cause.

The volume of litigation that the medical admission rules have provoked in the last decade is eloquent and we desire, in the interests of the student community primarily, that special care be afforded to the drafting of the provisions in future. The Secretary of the Medical Education and Drugs Department shall personally ensure this.

8. We do not need to reproduce here the ratio in the case of Greater Bombay Municipal Corpn. vs. Thukral Anjali, referred to supra, wherein the Supreme Court has confirmed an earlier Division Bench Judgment of this Court striking down total institutional preference on the ground that the rule in question was ultra vires. The interpretation sought to be canvassed on behalf of the respondents, therefore, virtually flies in the face of that decision and would, therefore, be wholly unacceptable.

9. It was rightly contended by learned counsel representing the petitioners that regardless of the possible ambiguity created by virtue of the use of the word "concerned" in both places that the correct interpretation of the rule in question would have to be read to mean that a common merit list would have to be drawn up which would, undoubtedly, include students applying from that particular Government grant-in-aid college along with all similarly situated students, namely, from the other Government and grant-in-aid colleges but excluding the students from private colleges. Learned counsel draw support from the phrase "as well as" which appears in Rule 5(b) and thereby contend that the merit list must include all the other such colleges excluding only the private colleges. In our considered view, this would be the only correct and permissible interpretation of the relevant provision of Rule 5(b). On this basis, the grievance of both the petitioners who, on a correct interpretation of the rule in question, would have been granted admission in the previous academic year to the courses in question, will have to be upheld. It is true that by virtue of the lapse of time, the petitioners would only be eligible for admission in the current academic year. We have enquired from learned counsel appearing on behalf of the institutions and we are informed that these being post-graduate courses that the seats available in each year are necessarily restricted. While the petitioners cannot be denied their admissions to the institutions, it would be equally unfair and unjust to deprive the students who would normally have qualified in the current academic year from claiming the seats that would normally have gone to them.

10. In this view of the matter, on a balance of equities, it is essential that the respective Deans be directed to grant admissions to the two petitioners to the respective courses in M. D. Ayurved for the academic year commencing from 1992-93 by creating two supernumerary seats which" will be necessary in the circumstances of the case. It would also be essential for the respective authorities to accord the necessary approval and recognition in respect of the two seats in question.

11. Shri Trivedi, learned counsel appearing on behalf of respondent No. 3 in Writ Petition No. 2316 of 1991, has advanced a submission that if it is found that Rule 5(b) as it is worded is capable of a straight interpretation that is in conflict with the settled legal position, then the rule in question would have to be struck down. It is true that there is a challenge to the vires or validity of the rule in question, but in our view since it would be equally permissible to read down the rule in question and interpret it in a way that it can be saved, we have preferred that course of action.

12. Several other submissions were advanced before us on an ancillary basis, but we do not consider it necessary to examine those issues which, to our mind, are not consequential for purposes of the decision of these petitions.

13. In the result, both the writ petitions succeed. The rule in both the writ petitions is made absolute accordingly. In the circumstances of the case, there shall be no order as to costs.

14. The Registrar shall forward a copy of this Judgment to the Secretary to Government, Medical Education and Drugs Department, Mantralaya.