Reserved category candidates securing merit are entitled to admission in Open Merit Category and cannot be disadvantaged in the allocation of discipline/stream.

1. Petitioner was a candidate for selection to professional course viz MBBS and BDS, having applied pursuant to the notification issued by respondent-2. He belongs to RBA category and claimed his admission in the said category in the application form by enclosing category certificate alongwith. Petitioner was allotted Roll No. 506048 and was issued admit card for Common Entrance Examination, which was held on 14th/ 15th of July, 2004. The result of the Common Entrance Examination came to be declared on 26.7.2004. He was amongst the successful candidates. However, allotted the stream of BDS instead of MBBS under RBA category. The petitioner secured 160 marks and was at Serial No. 1 in the BDS stream.

2. The grievance of petitioner is that respondents 4, 5 and 6, who also applied under the RBA category, have been declared successful in the Common Entrance Examination securing 186,184 and 183 marks respectively. The last selectee in the open category has secured 181 marks. According to petitioner, if these candidates or even one of them is pushed up to open category. The petitioner being next in merit in RBA category , is entitled to be shifted to the stream of MBBS of the basis of his merit in said category to which he belongs. The petitioner accordingly made representation to respondent-2 seeking his consideration for admission to MBBS Course instead of BDS on the basis of his merit in RBA category being at Serial No. 1 in the BDS Course and for shifting of respondents 4 to 6 to open category . A copy of representation filed by petitioner has been placed on record. It appears that on examination of the representation of petitioner, the Government in ARI & Training Department, discussed the issue the with the Law Department of the State, which opined that the reserved category candidates who secured marks more than the last selectee in open category, are required to be selected in open category by virtue of their higher merit and consequential vacancy to be allotted to the next candidate in the reserved category. Based upon discussion with the Law Department, Under Secretary to Government, ARI & Trainings Department vide his communication dated 06.10.2004 addressed to respondent-2, conveyed the following opinion of the Law Department, which reads as under:-

"The matter has earlier been received from ARI, Trainings Department and the following opinion vide this department U.O. No. LD(Ser)2004/99-ARI(Trgs) dated 31.08.2004 was conveyed: "The statutory right of the reserved category candidates selected in open merit by virtue of obtaining higher merit , in the matter of allotment of a college or stream / discipline can be protected by introduction of following provision in the reservation rules: "The reserved category candidates if selected against open merit seats may be considered for allotment of discipline/stream or college allocable to their respective category as per their inter -se- merit and the resultant left over discipline /stream or college in open merit shall be allotted to those reserved category candidates only, as per merit-cum-preference , who are selected against the seats of the reserved category candidates qualifying in the open merit."

The course of action suggested by Chairman Board of Professional Entrance Examination is not permissible under Reservation Act of 2004 and Reservation Rules in force."

3. This communication further conveyed to the Chairman Board of Entrance Examination that Chief Secretary has desired to take further action in the matter. Despite this communication, no action was taken by respondent-2. Constrained from the circumstances, petitioner approached this court seeking direction for shifting of respondents 4 to 6 to Open Merit Category on the basis of their higher merit and for re-allocation of the stream of petitioner by shifting him from BDS to MBBS.

4. Respondents 4 to 6 are duly served, but chose not to appear. They were accordingly set ex parte vide order dated 18.3.2005. Respondents 2 a

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