JUDGMENT

Kirpal, J.-The question which arises for consideration in this appeal relates to the admission to first year M.B.B.S. course for the session 1996-97 to the Rohtak Medical College, respondent No. 2.

2. Seats in different medical colleges in the State of Haryana are filled on the basis of M.B.B.S. entrance examination. Rohtak Medical College, respondent No. 2 is affiliated to Maharshi Dayanand University, Rohtak and for the session 1996-97, it had 60 M.B.B.S. free seats to which admission had to be made in the first year of the said course. Out of this, 49 seats were to be filled from the open category candidates while remaining 11 seats were reserved for backward class candidates.

3. In the entrance examination, one Sunil Yadav, on the basis of his marks had secured position at serial No. 1 in the category of backward class quota while in the general category, he had been placed at merit position No. 62. The seats to the medical colleges are filled on the basis of counselling where candidates are given option to select the college where they want to study. This option is given to the candidates, whose names are arranged in the order of merit.

4. On 9.9.1996, the first counselling for the 49 seats in the open/general category was held. Sunil Yadav did not secure any seat in the general category because of his low merit position. On the following day i.e. 10.9.1996, Sunil Yadav appeared for the first counselling for the reserved seats as he had been placed at serial No. 1 in the category of backward class. He naturally got selected and secured admission to the M.B.B.S. course at the Rohtak Medical Colleges in the reserved category.

5. If after the first counselling, certain seats remain unfilled, then second, third or fourth counselling, as the need arise, takes place. Inasmuch as few seats in the general category had fallen vacant, second counselling was held on 26.9.1996. Students upto serial No. 60 in the aforesaid merit list were granted admission and there still remained one seat in the general category which remained to be filled. The candidate at merit list No. 61 did not join the counselling, Sunil Yadav, who was at merit list No. 62 having already secured admission, also did not appear for the counselling for the general category. Similarly, candidates at serial Nos. 63, 64 and 65 also did not join for counselling. This seat was thereupon offered to the appellant herein who was at serial No. 66. He accepted the offer of admission and joined the Rohtak Medical College.

6. Respondent No. 3 who belonged to the reserved category could not get admission in the Rohtak Medical College inasmuch as his merit position in the reserved category was at serial No. 12 while the number of seats in this category in that college were only 11 and all those seats had been filled. He thereupon filed a writ petition in the Punjab and Haryana High Court contending that Sunil Yadav should have been adjusted against the general category seat, which had been allotted to the appellant herein in the second counselling held on 26.9.1996, and if this is done, one seat in the reserved category would fall vacant which would naturally fall to respondent No. 3.

7. On behalf of the respondent No. 1, the stand taken was that Sunil Yadav could not be considered in the first counselling in the open category because he did not fall among those open category candidates who had been given admission against 49 open category seats. Candidates upto merit position 53 had been offered admission against these seats at the time of first counselling. Thereupon, Sunil Yadav was called for first counselling for reserved seats and was granted admission against the backward category quota. He, having thus secured the seat, lost his claim for open category and, therefore, did not attend the second counselling which was held on 26.9.1996.

8. The High Court, allowed the writ petition filed by respondent No. 3 as it held that it was "settled principle of law that a candidate