The main legal point established in the judgment is that the candidate's entitlement to be considered under a particular category and their merit should be the determining factors in admission decisions.

Respondent no. 6-appellant, aggrieved by order dated 18.12.2009 passed by a learned Single Judge in Civil Misc. Writ Petition No. 47725 of 2009, has preferred this appeal under rule 5 Chapter VIII of the High Court Rules.

1. Short facts giving rise to the present appeal are that the writ petitioner-respondent no. 6 herein as also respondent no. 6-appellant herein were candidates for admission to the MBBS Course on the basis of a Combined Pre Medical Test, 2009. Both of them claimed their admission in the OBC category. Writ petitioner as also respondent no. 6 qualified in the aforesaid competitive examination and appeared in the first counselling. As the writ petitioner did not had the certificate of OBC category, he opted for his consideration under the general category in the first counselling. Respondent no. 6 was also considered under the OBC category in the first counselling and both were allocated Ganesh Shanker Vidyarthi Memorial Medical College, Kanpur (GSVMM, Kanpur). Writ petitioner as also respondent no. 6 thereafter appeared in the second counselling wherein he claimed admission under the OBC category and produced certificate in support thereof. His candidature was not considered whereas that of respondent no. 6 considered under the OBC category and allocated the Chhatrapati Shahuji Maharaj Medical University, Lucknow (hereinafter referred to as CSMMU, Lucknow).

2. Writ petitioner challenged the decision refusing to consider him as an OBC candidate for admission in the second counselling inter alia contending that he being more meritorious than respondent no. 6, he ought to have been admitted in CSMMU, Lucknow. The submission found favour with the learned Single Judge and he quashed the order dated 27.8.2009 whereby the writ petitioner was denied admission in the CSMMU, Lucknow and further directed the Director General Medical Education, U.P. Lucknow to pass appropriate orders in the light of the findings recorded above.

3. Mr. Ashok Khare, learned Senior Advocate appearing on behalf of the appellant submits that from the computer generated information in the second counselling, it is obvious that writ petitioner had claimed admission in the open category and therefore, the learned Single Judge erred in holding that he claimed his admission under the OBC category.

4. We do not find any substance in the submission of Mr. Khare.

5. Writ petitioner in the application Form for the second counselling has specifically stated that he claims admission under the OBC category. Had he not claimed admission in the OBC category in the second counselling, there was no occasion for him to appear in the said counselling as he was already admitted in a Medical College in the first counselling. Not only this, he has annexed the caste certificate. Undisputedly, writ petitioner is higher in merit than that of respondent.

6. Taking into account the aforesaid facts, we are of the opinion that mere non mentioning of OBC category in the computer generated information shall not deprive the writ petitioner the right to be considered under the OBC category, which he was otherwise entitled.

7. Mr. Khare, then submits that his admission in the CSMMU, Lucknow as directed by the learned Single Judge could not take place after 30th of September, 2009 and in support of the submission, he has placed reliance on a judgement of the Supreme Court in the case of Mridul Dhar (Minor) and another vs. Union of India and others reported in (2005) 2 Supreme Court Cases 65.

8. This aspect of the matter has been considered by the learned Single Judge and the learned Single Judge has found that it shall not amount to fresh admission but transfer of the students from one University to another University.

9. In the present case, it is undisputed that writ petitioner is higher in merit than respondent no. 6 (appellant herein). This being the position, writ petitioner was entitled to be admitted in the College according to his preference vis-a-vis responden