The main legal point established in the judgment is the correct application of horizontal reservation and the prohibition of intermixing of categories while applying reservation rules.

Arun Mishra, J.

1. Petitioner seeks her admission in B. Tech. (Agriculture Engineering Course). Petitioner submits that respondents Nos. 5, 6 and 7 were illegally admitted in the general category female candidate by wrongly applying the horizontal reservation. The respondents Nos. 5, 6 and 7 on their own merits were not to fall in the unreserved/general category candidates in case of vertical reservation.

2. Petitioner submits that Pre Agriculture Test Examination was conducted by Professional Examination Board/respondent No. 4. Petitioner obtained 440.28 marks out of 900. She was called for counselling as she was to be admitted. Call letter dated 3-9-2001 (Annexure P/5) was issued to the petitioner. Petitioner appeared before the Counselling Committee on 17-9-2001. Admission was almost finalized. She was asked to deposit the fee as per challan No. 3412 dated 17-9-2001 issued by Dean, Agriculture Engineering, Jabalpur/respondent No. 3. She was then called back and informed that other female candidates having more marks than her are available on applying the horizontal reservation. In an illegal manner the petitioner was deprived of admission and against horizontal reservation for woman of general category by wrongly applying the horizontal reservation candidates of other backward classes, respondents Nos. 5, 6 and 7 were accommodated.

3. Petitioner submits that question of admission is governed by rules framed by Madhya Pradesh Professional Examination Board. For admission to Pre Agricultural Tests Conduct of Examination and Admission Rules 2001 contained in Chapter-III of the brochure published by Madhya Pradesh professional Examination Board for PAT 2001. Petitioner submits that Rule 3.3.2.3 provides for horizontal reservation for the women candidates to the extent of 30% in any category while applying 30% horizontal reservation. In case women candidates are not available in that event the vacancies shall be filled by the male candidates of that category. Rule 3.3.2.3 deals with the reservation which is quoted below:--

4. Further instructions as to the preparation of the merit list is contained in Rule 3.5.9.1 which provides that merit list has to be prepared on the basis of the marks obtained by a candidate in the subject group. Such list will have to be prepared category-wise and class-wise. Rule 3.5.9.2 provides that candidate who has obtained more marks than unreserved category candidate has to be admitted against the seat of unreserved category and to that extent the quota for reserved category shall be treated as vacant. However, as per Rule 3.5.9.2 this procedure has not to be applied while making the horizontal reservation. Rule 3.5.9.1 and Rule 3.5.9.2, are quoted below:--

5. Petitioner submits that method of 3.5.9.2 has not been applied while making the horizontal reservation which has resulted into injustice to the petitioner. Initially the list prepared was proper and subsequently the matter was unnecessarily confused by the respondents No. 2 and 3 and she has been illegally deprived of admission. Therefore, she seeks the writ of mandamus directing the respondents to grant admission and to quash the allotment of seats made to the ineligible persons.

6. The return has been filed by respondents No. 2 and 3. It is contended that their action is as per Rule 3.5.9.2. Since the marks of respondents No. 5, 6 and 7 were more, they were rightly admitted against unreserved category seat.

7. In para 3 of the return, respondents No. 2 and 3 aver that Clause 3.5.9.2 clearly lays down that those candidates of reserved category whose scoring is more than last successful candidate of unreserved category shall be counted against unreserved category and admitted as such and that number of last successful candidates in unreserved category shall be removed from the merit list of unreserved candidate and to that extent the quota of reserved category shall be treated as unfilled. But this will not be made applicable to Horizontal reserv