R.M. Lodha, J.—The following question has been referred by the Division Bench to the larger bench for consideration:

“Whether admission of a candidate applied for reserved quota and entitled to be admitted in M.B.B.S. Course on the basis of his/her own merit, should be first against the reserved quota or against the general category?”

2. It appears to us that the appellants have lost interest in the matter because of long lapse of time and, therefore, none appears for them. But absence of the Government Advocate is not understandable. Be that as it may, since the Full Bench has been constituted to decide the reference, we considered the matter in the light of two decisions of the Supreme Court.

3. Sheikh Mohd. Afzal and Sonika Bahedia (here-in-after referred to by us, “the petitioners”) were not allowed admission in M.B.B.S. Course by the respondents in the year 1995. They filed a writ petition before this Court praying for the following reliefs:

“(i) declaring the interpretation placed by the respondents and the illustrations quoted below para 2(g) of the Guidelines of 1995 to be illegal and unconstitutional and quashing the same;

(ii) directing the respondents to give admission to the petitioners in the M.B.B.S. study course commencing from the year 1995 against the quota meant for disabled candidate and further declaring the method of computing/filling of this quota by the respondents to be illegal and unconstitutional:

(iii) any other appropriate order or direction which may deem just and proper in the facts and circumstances of the case may kindly be passed including award of cost of litigation in favour of humble petitioner.”

4. The Single Judge (V.K. Singhal, J.) vide his judgment dt. 31.01.1996 dismissed the writ petition. He did not follow the decision of the Division Bench in the case of Ajay Kumar vs. State of Rajasthan (D.B. Civil Writ Petition No. 3429/88) decided on 07.11.1988 on the ground that some provision of the Ordinance 272 was not considered and, therefore, the decision is per incuriam.

5. The judgment of the Single Judge was challenged before the Division Bench in the special appeal. The Division Bench referred to the decision in Ajay Kumar case wherein the following view was taken:

“In Pre-Medical Test, four candidates were declared passed as handicapped candidates. Out of the four candidates, candidates having Roll Nos. 8925 and 12107 came in merit, but they were not treated as such, and, they were admitted against the reserved quota of the handicapped candidates. There were only two seats reserved for handicapped candidates. The aforesaid two handicapped candidates have come in merit, should be given admission against the general quota and cannot be treated against the reserved quota for the handicapped candidates.”

6. The Division Bench also referred to the two decisions of the Supreme Court, namely; (i) Ritesh R. Sah vs. Dr. Y.L. Yamul and Ors., JT 1996(2) SC 495 and (ii) State of Bihar and Ors. vs. M. Meethi Chandra and Ors., (1996) 6 SCC 36 and framed the aforementioned question for answer by the larger bench.

7. From the proceedings, we find that the matter was heard by the previous full bench and arguments were concluded on 03.06.2004 and the order was reserved. However, the then full bench did not pronounce the order and, accordingly, the Chief Justice reconstituted the full bench and this is how the matter has been posted before us.

8. In view of the decision of the Supreme Court in Ritesh R. Sah which has been noticed by the Division Bench in its order dt. 05.12.1997, we are of the view that it was unnecessary to refer the aforesaid question for consideration by the larger bench. The question for consideration before the Supreme Court in the case of Ritesh R. Sah was: whether a candidate belonging to Scheduled Caste or any other reserved category even if he is entitled to be selected for admission in the open competition on the basis of his merit, yet can he be counted against the quota meant for reserv

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