JUDGMENT

S. Moahn, J.

1. Leave granted.

The short facts of the case are as under:

The appellant passed M.B.B.S. examination and was a registered practitioner. In August, 1992 appellant sent application for the postgraduate course and post-graduate diploma course for the academic year 1992-1993 pursuant to the advertisement inviting applications by respondent No. 2. He applied for M.D. general medicines and Diploma in Diabetology. He took the common entrance examination conducted by Director of Medical Examinations on 6.9.1992 and was placed in the waiting list at serial No. 2 for Diploma in Diabetology having secured 76.75% marks. Out of total number of four seats for Diploma in Diabetology, one seat was allotted to All India Quota, two were filled up in open quota on merit basis and the remaining one was filled from out of service candidates. One did not join the course out of the seats filled up in open quota and therefore, waiting list serial No. 1 was accommodated in the said vacancy.

2. As the seat allotted to All India Quota was not filled, the said seat was returned to the State Government. The appellant, therefore, on 6.4.1993 sent a letter to respondent No. 3 to admit him in the said vacancy as he was the next in the waiting list in accordance with the practice being followed by the respondent in the past.

3. Since the appellant did not receive any reply from respondent No. 3 and he learnt that there were attempts to fill the said seat with another influential candidate, he filed Writ Petition NO. 7597 of 1993 before the Madras High Court on 18.4.1993 seeking directions to the respondents to admit him in the Diploma in Diabetology course for 1992-1993.

4. In the counter-affidavit filed by the respondents on 14.7.1993, it was stated that they have filled the All India Quota with a service candidate who had secured only 71.50% marks for below than that of the appellant who had secured 76.75% marks.

5. Appellant filed rejoinder affidavit on 31.7.1993 pointing out that the action of the respondents in allotting the All India Quota which fell vacant to service candidate was arbitrary and was at variance from the practice being followed in other disciplines in the past years as well as during- this academic year. It was also stated specifically that in the case of M.D. Pathology, the vacancy caused by the All India Quota not being filled up was allotted to the open quota only and not to the service candidate and no 50:50 formula was followed there.

6. The respondent No. 3 in his additional-counter dated 5.8.1993 admitted the facts that the State Government had not framed any rule for filling up the seat falling vacant against the All India Quota. The respondent also did not deny the specific allegations made in the rejoinder filed by the appellant that in the case of M.D. Pathology, no 50:50 formula was followed.

7. The Division Bench of the High Court by its order dated 6.8.1993 dismissed the writ petition upholding the allotment of the seat to the service candidate. It took the view that the reservation should be 50:50 between candidates from service as well as non-service categories. When a seat had been allotted to a service candidate just to equalise the ratio, it could not be said that the action of the respondent was arbitrary or illegal. It is under these circumstances, the present appeal has come to be preferred.

8. The learned Senior counsel for the appellant Shri Siva Sub-ramaniam would argue that the appellant had secured 76.75% marks in the entrance examination. He was the first in the waiting list. Therefore, he should have been allotted a seat which was surrendered to the State from all India quota. The State Government has, without any rules, arbitrarily allotted the seat to service candidate who had secured only 71.50% marks which are far lower than that of the appellant. If merit alone is to be the criterion for selection, then allotment cannot be supported. Of course, if a seat had been reserved for a particular cat