1. This letters Patent Appeal is directed against the order dated 25-5-2007 passed by the learned Single Judge of this Court in OWP No. 365/ 2007 filed by respondent No.9 Dr. Nishu whereby the selection of the appellant Dr. Mir G R Wali for PG Diploma Course in Dermatology, in Govt Medical College, Jammu in reserved category, has been quashed.

2. Brief narration of the relevant facts is that pursuant to the Notification issued by the J&K Board of Professional Entrance Examination (hereinafter called BPEE) an entrance examination of the candidates was conducted in which the merit obtained by the writ petitioner /respondent No.9, the appellant and private respondents No. 6 to 8 as per the select list was as follows:-

One Vikrant Gupta, RBA candidate also obtained 207 Marks.

3. The writ petitioner/ respondent No.9 and respondents No. 6 & 7 had applied in open Merit category while respondent no.8 and the appellant were the reserved category candidates. The selection was to be made in respect of 21 Disciplines/ streams for 237 seats available in Government Medical College, Srinagar, Goverment Medical College, Jammu and Sher-e-Kashmir Institute of Medical Sciences, Srinagar, out of which as per the rule of reservation envisaged by clause 7 of the Brochure of BPEE, 154 seats were in Open category and 83 seats stood reserved for the benefit of candidates of reserved categories, in the ratio of 65% : 35% respectively.

4. In the discipline/stream of Dermatology there were only four seats available, two in Government Medical College, Srinagar and two in Goverment Medical College, Jammu.

5. It is not in dispute that for striking a balance in the distribution of seats out of 21 available disciplines to the open category and Reserved Category, out of the four available seats in the Dermatology stream, BPEE earmarked three seats for open category and one seat for Reserved Category.

6. Ordinarily going by the merit in between the above mentioned candidates that firstly three open merit seats should have gone to the writ petitioner, Respondent Nos. 6 & 7 namely Dr. Nishu, Dr. Nissa, Dr. Umar Yaseen respectively while the fourth Reserved seat to respondent Vikrant Gupta but it could not be so because Vikrant Gupta in (RBA) Reserved Category had obtained 207 marks in entrance examination and therefore, was to be considered in open merit category seat in terms of Rule 17 of the Jammu and Kashmir Reservation Rules, 2005 (hereinafter called the rules).

7. Under the Rule 17, the effect of high merit of Vikrant Gupta was that though he was a reserved category candidate yet was to be selected against an open merit category seat and as such was entitled to the allocation of such discipline/stream/college allocable to him on the basis of his merit in the open category or in the alternative to the discipline/stream/college for which he would have exercised the option while being in his respective category. Restriction of choice in open category alone to such reserved category candidate on getting selected in open category could not be legally insisted upon so as to avoid his merit being converted into demerit.

8. In Ritesh R.Sah V. Dr. Y.L.Yamul and others, reported as (1996) 3 SCC 253, the Honble Supreme Court had held-

".... 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 othe