ORDER

1. The reserved category candidates are the appellants in these appeals c challenging the judgments and orders of the High Court which held that in the absence of specific rule earmarking seats subjectwise and categorywise in reserved category in the postgraduate courses, there cannot be any earmarking of the seats.

2. In substance, the question for decision is whether a candidate belonging to reserved category but entitled to be admitted in postgraduate d course on his own merit in the open category, can such admission be counted as an admission in reserved category: if not, whether additional seat will have to be provided to give effect to the reservation since the reserved category candidate was entitled to be admitted in the open category on his own merit and not as a result of reservation. It is a different matter that he may have opted for a seat otherwise specified for reserved category.

3. The aforesaid question is no longer res integra and stands concluded by a decision of this Court in Ritesh R. Sah v. Dr. Y.L. Yamul1. In this decision, it has been held that: (SCC pp. 261-62, para 17)

"In view of the legal position enunciated by this Court in the aforesaid cases the conclusion is irresistible that a student who is entitled to be admitted on the basis of merit though belonging to a reserved category cannot be considered to be admitted against seats reserved for reserved category. But at the same time the provisions should be so made that it will not work out to the disadvantage of such candidate and he may not be placed at a more disadvantageous position than the other less meritorious reserved category candidates. The aforesaid objective can be achieved if after finding out the candidates from amongst the reserved category who would otherwise come in the open merit list and then asking their option for admission into the different colleges which have been kept reserved for reserved category and thereafter the cases of less meritorious reserved category candidates should be considered and they be allotted seats in whichever colleges the seats should be available. In other words, while a reserved category candidate entitled to admission on the basis of his merit will have the option of taking admission in the colleges where a specified number of seats have been kept reserved for reserved category but while computing the percentage of reservation he will be deemed to have been admitted as an open category candidate and not as a reserved category candidate. The admission to the medical colleges for the year 1995-96 in the State of Maharashtra is already over and we are not inclined to interfere with the admissions already made, but we do commend that while deciding and publishing the rules for admission in the next academic session, directions given in this judgment should be borne in mind and the rules should be made accordingly."

4. The State of Maharashtra cannot and is not contending that the law laid down in Ritesh R. Sah1 is not binding. None has questioned before us the correctness of the legal principles laid in Ritesh R. Sah1. The concept of earmarking of the seats was not given full effect by the respondent State as a result of non-framing of rules, and in any case proper rules.

5. The High Court, by the impugned judgment and order dated 23-1-2004, which is the subject-matter of Civil Appeal No. 5504 of 2004, partly allowed the writ petition filed by open category candidates and held that the respondents shall not be entitled to earmarked seats for reserved category candidates in the postgraduate medical admission for the academic year 2003. The High Court was of the view that in the absence of specific rule having been framed, the earmarking is not permissible.

6. Another writ petition which was filed by the reserved category candidates was dismissed by the High Court in terms of the judgment dated 30-1-2004 in view of its earlier judgment and order dated 23-1-2004. This judgment and order is the subject