( 1. ) IN this writ petition preferred under Article 226 ot" the Constitution of India the petitioner has sought the relief to declare the Rule 9. 3 of Madhya Pradesh Medical and Dental Graduate Entrance Examination Rules, 2003 (for brevity the 2003 Rules) as ultra vires on the bedrock that it is defiant of the Constitutional provisions and also on the foundation that there is inherent and irreconciliable inconsistency inter se in the Rules entailing in devastating fallibility.

( 2. ) THE facts which are essential to be Stated are that the Professional Examination Board (hereinafter referred to as the Board), the respondent No. 2 herein, conducted Pre-Medical Examination, 2003 on 17-5-2003 and 18-5-2003 in which the petitioner appeared. He was given the Roll No. 849069. As pleaded, he has been awarded 988. 76 marks out of 1200 marks and his name features at Serial No. 292 in the merit list of general category candidates. The Board declared the results, merit list as well as the waiting list for all the categories in the daily newspaper. The relevant paper publication dated 6-6-2003 has been brought on record as Annexure P-2. ( 3. ) ACCORDING to the writ petitioner the State of Madhya Pradesh, the respondent No. 1 herein, has framed the 2003 Rules. The examination was conducted in accordance with the said Rules. The Board had called 300 candidates from unreserved category for counselling on 12-7-2003 to 14-7-2003 and the list of candidates who were called for counselling consisted of 56 Other Backward Class (OBC) category and 4 Scheduled Caste category. The names of said 60 candidates have also been shown in the merit list of unreserved category candidates. Out of these candidates, as averred, 28 candidates belonging to OBC category and 3 candidates of SC category abandoned their choice to be in the unreserved category and chose to come in the compartment of reserved category. Because of this situation the Board did not call the other candidates from the merit list whose names appeared at Serial Nos. 272 to 300 and this recourse was taken to by the Board by placing reliance on Rule 9. 3 of the 2003 rules. It is putforth in the petition that by introduction of Rule 9. 3 the percentage of reserved category has increased to 56. 94% whereas the seats meant for general category at present has fallen to 42%. It is contended in the petition that if Rule 9. 3 is allowed to remain the reserved quota would increase to the extent of 73. 41 per cent and the general category would come down to slightly more than 26%. It is setforth that as per Rule 5. 0, 20% seats are reserved for Scheduled Tribes, 16% seats meant for Scheduled Caste and 14% seats are kept to be filled up by the OBC candidates. It has been asseverated in the petition that as per Rule 9. 3 of the Rules if the name of any candidate of reserved category is included in the merit list of the unreserved category then such candidate would be entitled to participate in both the categories, namely, reserved category as well as general category and if he is entitled for allotment of a seat from any of the category as per his choice and if he chooses to be included in the reserved category, then out of remaining seats of unreserved category the same number of candidates would get the seats equivalent to reserved category. By applying the aforesaid rule it is asserted that the reservation has been increased as a consequence of which the general category candidates have been immensely affected. In this factual backdrop a prayer has been made to declare the rule as unconstitutional.

( 4. ) A return has been filed by the respondent Nos. 1 and 3 contending, inter alia, that the Rule in question is in consonance with the decision of the Apex Court rendered in the case of Indira Sawhney etc. v. Union of India and Ors. , AIR 1993 SC 477, to the effect that if a reserved category candidate gets selected on his own merit and gets more marks than the selected candidates of the general cate