C.N. Ramachandran Nair, J.

1. Admission to the super specialty medical course namely D.M. Gastroenterology is the subject matter of controversy in these three writ appeals, two filed by the State and the other filed by a doctor in the Government Service seeking admission based on condition in the prospectus. Out of the total 10 seats available for admission to the course for 2011-12, the prospectus provides that 7 seats will go to General Merit Quota, 2 for Medical Education Service (MES) Quota and the remaining one was reserved for Health Service Quota. There is no dispute with regard to the admissions given to the 7 seats in the General Merit Quota and one to the Health Service Quota. However, from the results of entrance examination it turned out to be that there is no claimant for admission in the quota reserved for MES. Consequently, in terms of clause X(c) of the prospectus the two seats available from MES quota were allotted to the candidates from Health Service which was questioned by the candidates in merit quota on the ground that the two seats which are not claimed by candidates from MES Quota should be allotted to the General Merit Quota which was accepted by the learned Single Judge against which, these writ appeals are filed. We have heard the learned Advocate General appearing for the appellants in two State appeals, counsel appearing for the appellant in the other appeal and Senior counsel Sri. CP Sudhakara Prasad and the other counsel appearing for the respondents in all the appeals.

2. Admittedly, the controversy is only with regard to the two seats that fell vacant for the reason that there is no claimant for those seats reserved for MES Quota. While the claim of the respondents is that it should be given to the Merit Quota, the claim of the State and the appellant doctor in Health Service is that it should be allotted to Health Service Quota in terms of the provision in the prospects contained in X(c) which is as follows:

“X (c) : Unfilled seats: Any seat falling vacant in the Health Service Quota will be filled up by the Medical Education Service Quota and any vacant seat in MES Quota will be filled by eligible Health Service candidates. The seats again left vacant will be added to General Merit quota. Any seat vacant in the General Merit Quota will be filled by MESQ and Health Service quota respectively.”

3. There can be no controversy that under the above clause any seat unclaimed by eligible candidate from MES quota will first go to Health Service candidate and only in the absence of eligible candidate from Health Service it will go to the merit quota. However, the candidates in the merit quota who filed writ petitions claimed before the learned Single Judge that the Medical Education Directorate and the Commissioner of Entrance Examination were well aware of the fact that no candidate was qualified for admission under the MES quota and so much so, the reservation of two seats in that quota itself is illegal. Learned Single Judge accepted this contention of the respondents and held that the two seats reserved for MES quota in the absence of candidates from Medical Education Service should go to candidates claiming admission in the merit quota. It is this judgment that is under challenge before us.

4. Even though the respondents also participated in the entrance examination and the selection process, they challenged the above provision in the prospectus only after declaration of the results and allotment of the unclaimed seats in the MES quota the Health Service candidates in terms of the prospectus. The learned Advocate General appearing for the appellant in the two writ appeals filed by the State relied on the decisions of the Supreme Court in K. Duraisamy v. State of T.N., (2001) 2 SCC 538 and State of M.P. V. Gopal D. Tirthani, (2003) 7 SCC 83 in support of the claim for reservation in super specialty courses. Senior counsel Sri. CP. Sudhakara Prasad and other counsel appearing for th