J. Chelameswar, C.J.

These two Writ Appeals are listed before this Bench pursuant to an order of reference dated 4th November, 2010. The appellants in W.A.No.1399 of 2010 are petitioners 1 to 3 in W.P.(C).No.21357 and the appellants in W.A.No.1429 of 2010 are the petitioners in W.P.(C).No.21494 of 2010. Both the Writ Petitions along with certain other writ Petitions were dismissed by a common judgment dated 5th August, 2010. Hence these Writ appeals.

2. The brief facts leading to the present reference are as follows: The above mentioned two Writ Petitions and a number of other Writ Petitions came to be filed in this Court challenging the decision of the state of Kerala to create a preference in the matter of admission to the super speciality courses conducted by the medical colleges run by the State of Kerala. The relevant portion of the Prospectus issued for the purpose reads as follows:

“III. Eligibility for admission;

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(iii) Has done atleast one year compulsory rural service/Senior residency/Government service in any of the Government Medical Colleges/Government Hospitals in Kerala.

(iv) In case sufficient number of candidates fulfilling the conditions as per (iii) above is not available, candidates who are otherwise qualified will also be considered, based on the merit in the entrance test.

(v) Preference shall be given to the candidates, who had done MBBS or MD/MS from the Medical Colleges in Kerala, for preparation of rank list. In case, sufficient number of candidates in the above category is not available for admission for any reason, candidates from other States will be considered for the balance seats, based on the merit in the entrance test.”

3. The appellants participated in the selection process undertaken by the State of Kerala, but could not secure admission to any one of the super speciality courses. Their grievance is that candidates who are found less meritorious than them in the selection process eventually secured admission into the various super speciality courses in view of the preference created by the state of Kerala referred to earlier. Therefore they approached this Court challenging the stipulation of such preference on various grounds such as (1) violation of the fundamental rights guaranteed under Arts.14 and 15 of the Constitution of India (2) violation of the Regulations made by the Medical Council of India and (3) that the State is incompetent to make a such a stipulation.

4. Whether the abovementioned grounds of challenge are tenable or not is not a matter to be considered by us, nor are they considered by the judgment under appeal. The writ Petitions were dismissed on the ground that the appellants are estopped from raising the various questions in view of the fact they participated in the selection process undertaken by the State of Kerala knowing fully well about the existence of the rule of preference. In coming to such a conclusion reliance was placed upon a judgment of the Supreme Court reported in Dhananjay Malik and others v. State of Uttaranchal & Ors. (2008 (2) KLT 969 (SC)=(2008) 4 SCC 171) and Siraj v. High Court of Kerala (2006 (2) KLT 923 (SC)=(2006) 6 SCC 395). The learned Judge also placed reliance on an earlier decision of this Court reported in Ajith George v. State of Kerala (2006 (3) KLT 743).

5. By the referral order it was pointed out that the impugned rule of preference is prima facie violative of Arts.14 and 15 of the Constitution of India and therefore it is doubtful whether the appellants could be non-suited on the ground of estoppel. It is also recorded in the referral order that the decision of the learned Single Judge is sought to be supported by the respondents herein on the basis of a decision of the Division Bench of this Court reported in Vipin I.S. (Dr) v. State of Kerala & Ors. (2010 (4) KLT 380 = 2010 (4) KHC 175) and therefore necessarily the correctness of the above decision also falls for consideration of this Bench.

6. In Vipin v. St