( 1. ) THIS is a Writ Appeal against the order dated 10-7-2006 passed by the learned Single Judge in Writ Petition No. 3860/2006.

( 2. ) THE facts briefly are that the appellant is a member of the scheduled Caste Community. He appeared in the Pre-Medical Examination, 2004 conducted for selection of candidates for admission to MBBS/bds Courses in different Colleges in the State of Madhya Pradesh and he was placed in waiting list of candidates for seats reserved for Scheduled Caste candidates. He was called in the first and second counselling, but he was not given any offer of a seat in the MBBS Course and he opted for waiting as per the provisions of the Pre-Medical Test Rules, 2004. Thereafter, he was called for third counselling by a paper publication in dainik Swadesh and his position amongst the waiting list candidates from the Scheduled Caste Category in the third counselling was at serial No. 1. But when he went for the third counselling on 24-9-2004, he was informed that one seat which was earlier reserved as per paper publication for scheduled Caste candidates in MGMMC Medical College, Indore, has now been converted and reserved for a physically handicapped Scheduled Caste candidate.

( 3. ) AGGRIEVED, the appellant filed Writ Petition No. 3860/2004 before this Court and on 5-10-2004, a learned Single Judge was pleased to issue notices in the said Writ Petition to the respondents. Pending disposal of the writ petition, the appellant took admission in BDS Course at Indore under protest. But, when the W. P. No. 3860/2004 was taken up for hearing on 10-7-2006, the learned Single Judge took a view that it was not a case where the appellant has been illegally deprived of admission as against the seat of Scheduled Caste candidate because the appellant was given liberty in the first and the second counselling where he did not opt for the seat and before the third counselling was held, an order was passed under the provisions of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (for short the Act, 1995) reserving the MBBS seat which was earlier reserved for Scheduled Caste candidate for a disabled candidate. With the aforesaid reasons, the learned Single Judge dismissed Writ Petition No. 3860/2004 by the impugned order dated 10-7-2006.

( 4. ) WHEN this Writ Appeal was taken up for hearing on 28-9-2006, we put a query to Mr. Sanjay Yadav, learned Dy. A. G. appearing for the respondent nos. 1 and 2, as to whether the MBBS Seat that was published for the third counselling in which the appellant was called belonged to the quota reserved for scheduled Caste candidates or not and Mr. Yadav very fairly submitted that the said MBBS seat belonged to the quota reserved for Scheduled Caste candidates and was diverted for a Scheduled Caste disabled person under the provisions of the Act of 1995.

( 5. ) SECTION 39 of the Act, 1995 provides that all the Government educational institutions and other educational institutions receiving aid from the government, shall reserve not less than three per cent seats for persons with disabilities. Reservation of seats for disabled candidates under the Act, 1995 has to be made out of seats for general candidates and cannot be made by diverting seats which have been reserved for Scheduled Castes. Under Article 15 (4) of the Constitution of India, the State has been empowered to make a special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes. It is in exercise of such enabling powers under Article 15 (4) of the Constitution of india that the State Government had reserved some seats in MBBS course for scheduled Castes candidates for the year 2004. A diversion of a seat reserved for scheduled Caste candidate would not only violate the provisions made by the state Government for such reservation but also would be contrary to the object of Article 15 (4) o