Order

S.K. Mishra, J.

In this appeal, the Medical Council of India has assailed the judgment and order dated 15.12.2011 passed by the learned Single Judge in W.P.(C) No.18025 of 2011 directing the opposite parties to admit the writ petitioner, respondent no.1 in the vacant seat as direct candidate in M.D. Ophthalmology Course in the SCB Medical College, Cuttack.

2. The facts leading to filing of the present Writ Appeal may be stated as under :

The respondent no.1, after completing her MBBS course, applied for admission in Post-Graduate Medical Courses under the reserved green card category in pursuance of the advertisement issued by respondent no.2, i.e. Chairman, Post Graduation Selection Committee, for Academic Session 2011-12. The respondent no.1 (writ petitioner) appeared in the entrance examination conducted by the respondent no.2, and as per the merit list published, she secured the rank of 429 in general unreserved category and rank 39 under the reserved green card category. As per the notice dated 25.03.2011 published by respondent no.2, the respondent no.1-candidate appeared in the counseling on 08.04.2011 under the direct reserved category. On that date of counseling under reserved green card category, the respondent no.1 was in 3rd position after Dr. Debasis Behera and Dr. Ranjit Behera. The respondent no.1 opted Pathology in VSS Medical College, Burla and took admission in that course. Dr. Ranjit Behera opted for ENT course in MKCG Medical College, Berhampur and took admission there.

Because of fact that few seats remained vacant, respondent no.2 issued another notice dated 27.06.2011 notifying there will be second counseling to the admission of the Post-Graduate Medical Courses, 2011 for the three Government Medical Colleges, which was scheduled to be held on 29.06.2011 and 30.06.2011. The respondent no.1 contended that she appeared in the second counseling on 30.06.2011. Dr. Ranjit Behera, who had taken admission under green card category in ENT Course in MKCG Medical College, Berhampur, opted to take admission under unreserved category in M.S. General Surgery in VSS Medical College, Burla, and thus, the seat in ENT Course in MKCG Medical College fell vacant. Subsequently, respondent no.1 surrendered her seat in Pathology Course in VSS Medical College and opted for the ENT Course in MKCG Medical College. Further, respondent nos. 2 and 3 refused admission to respondent no.1 and allotted the ENT seat to Dr. B. Radhika-respondent no.4, who is a general unreserved category candidate. That the representation submitted by the writ petitioner/respondent no.1 before respondent no.2 was rejected on the ground that, inter alia, no admission can be granted after 30.06.2011. The respondent no.1 challenged the decision of the respondent nos. 2 to 4 by way of writ petition bearing W.P.(C) No.18025 of 2011 contending that the action of respondent nos. 2 to 4 is arbitrary. The respondent no.1 prayed that she be allowed admission and pursue her studies in ENT Course.

3. The learned Single Judge, vide order dated 15.12.2011, allowed the writ petition filed by respondent no.1 and permitted her to take mid-session admission. Such order has been assailed in this appeal mainly on the ground that it is violative of the principle decided by Supreme Court in Medical Council of India Vs. Madhu Singh and Others, (2002) 7 SCCs 258.

4. While disposing of the said writ petition, the learned Single Judge came to the conclusion that clause 14.5 of the prospects provides that in case of non-availability of green card candidates, the seat will merge in respective general category. In the present case, the learned Judge observed that, the petitioner surrendered her seat in Pathology course in VSS Medical College, Burla and opted for reserved green card category in ENT course in MKCG Medical College, Berhampur, it was not a case of non-availability for reserved green card category candidate. It was, further, held by the learned Single Judge that the