Hon'ble AMBWANI, ACTG. C.J.—We have heard learned counsel appearing for the parties.

2. This intra-court appeal is directed against the judgment and order of learned Single Judge dated 16.09.2013, by which he has allowed the writ petition, and has held that the seat could not have been given to Kumari Urvashi Gochar-respondent No.4, a female Special Backward Class (for short, 'SBC') candidate, pursuing her studies on a free seat in Government Medical College, Kota, as Mukesh Kumar-the petitioner was higher in merit, and was entitled to the free seat in Government Medical College, Kota. In the second round of counselling, he was given admission on a paid seat in Jhalawar Medical College. A direction was issued to refund the differential amount, between the paid seat and the free seat, to Shri Mukesh Kumar-the petitioner.

3. The facts, giving rise to the writ petition, were that, for admission in the Government and private Medical Colleges in the State of Rajasthan for the year 2011, for which the Rajasthan University of Health & Sciences had conducted the examination and counsellings, a total number of 936 seats were available, out of which 689 seats were free seats in the Government Medical Colleges in the State of Rajasthan. Both the petitioner (a boy candidate) and respondent No.4 (a girl candidate) had applied for admission in the Medical Colleges under the SBC category, for which 1% seats were reserved. In the first round of counselling, Mukesh Kumar-petitioner did not succeed in getting admission on a free seat in a Government Medical College. In the second round of counselling, he was offered a seat in Jhalawar Medical College. He accepted the admission, and thereafter filed the writ petition challenging that for 1% of 689 free seats, i.e. 7 free seats, in the Government Medical Colleges, the reservation for girl candidates was at 25%, and thus only 2 seats could be given to the girl candidates out of 7, whereas 3 free seats were given to the girl candidates in the Government Medical Colleges. The respondent No.4, in the writ petition, was the third candidate, who should not have been given admission on the free seat, and that, the third free seat should have been offered to him, as he was higher in merit.

4. Learned Single Judge held that out of 689 seats, 1% of comes to 6.89, and if it is rounded off, it becomes 7, being 0.89, greater than 0.5. The respondent No.4 was the fourth girl candidate in the SBC category, and thus, she should not be admitted to the free seat. The third seat should have been given to a boy candidate, inasmuch as, only two seats could be offered to the girls. Learned Single Judge has relied on judgment of the Apex Court in Rajesh Kumar Daria vs. Rajasthan Public Service Commission & Ors. ((2007) 8 SCC 785), in the applicability of horizontal reservation for Girls as special category in the Special Backward Class (SBC), category.

5. Learned Single Judge found that since the petitioner and respondent No.4 are pursuing studies in the respective colleges, and that, in view of the finding recorded by him that the petitioner was entitled to be given a free seat, since it will be difficult for him to change the Medical College, the entire fee paid by the petitioner should be refunded. The differential amount of the fees should be refunded to the petitioner. The respondent No.4 will pay this fee, as payable for the seat, even while pursuing the studies in the Medical College, Kota, where such seats may not be available.

6. Learned counsel appearing for Kumari Urvashi, the appellant, who was respondent No.4 in the writ petition, submits that learned Single Judge has committed patent error, in calculating the number of free seats available for the SBC girl candidates, for admission in the Government Medical College in Rajasthan. He has relied on the counter-affidavit filed on behalf of the Rajasthan University of Health & Sciences in which in paragraph Nos.7, 8 & 9 of the reply to the writ petition, it is stat

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