(1.) THE essential question of law being common to these two cases they were heard analogously and are disposed of by this common order. For the sake of clarity we think it appropriate to state the facts in each case in brief.

(2.) IN W. P. No. 27632/03 the factual matrix as has been exposited is that the petitioner applied for entrance examination for post graduation course which was conducted as per the M. P. Medical and Dental Post Graduation Entrance Examination Rules, 2003 (hereinafter referred to as the Rules). The written test was held on 9-3-2003. The petitioner secured 573 marks out of 900 and was placed at serial No. 232 in the waiting list. The first counselling was held in the month of May, 2003 wherein the candidates from the merit list were called for allotment of P. G. seats in different medical colleges. The subsequent counsellings, as setforth, were held on 23-7-2003 and 25-7-2003. Thereafter as some seats from the assistance surgeon quota have been reverted to be filled up from the candidates in the waiting list the recounselling was held on 6-9-2003 to 9-9-2003 and all the wait listed candidates of general category and OBC category candidates were called for allotment of the seats. The petitioner was offered the Diploma seat in ENT (DLO) but he did not accept the same and opted to remain in the waiting list in expectation of the seats which might be reverted to general category on being unfilled from the reserved category candidates as per Rule 15. 14 of the Rules and he would have the benefit The subsequent counselling, as pleaded, for OBC category was held on 9-9-2003 and certain seats remained unfilled in the category of M. S. , (Anatomy), M. D. (Physiology) and D. L. O. seats. Reference has been made to Rule 15. 10 (d) to highlight that the unavailed seats are to be filled up by the eligible candidates of unreserved category candidates but because of erroneous sequence of the counselling as per Rule 15. 9 of the Rules the petitioner could not avail the benefit. It is averred that the petitioner submitted a representation to the respondents on 10-9-2003 for allotment of seat in M. S. (Anatomy) at Medical College, Rewa but his representation was not paid heed to. It is contended that there is anomaly in the Rules 15. 9 and 15. 10 and the sequence of counselling as provided under the Rule 15. 9 is totally arbitrary, illogical and an anathema to the conception of reasonableness. In this backdrop prayer has been made for declaring the Rule 15. 9 of the Rules as ultra vires and further to command the respondents to call the petitioner for counselling for allotment of seat in the course of M. S. (Anatomy) at Medical College, Rewa or in the alternative to readvertise the vacancy as per Rules 15. 10 and 15. 14.

(3.) IN W. P. No. 27819/2003 the petitioner, an Assistant Surgeon being qualified appeared in the Pre-P. G. Entrance Test held in the year 2003 and secured 4th position in overall merit list of in-service quota. As he had already done his Post Graduate Diploma in Radiology he was interested to complete P. G. degree in the said subject. As setforth, only two degree seats were available in Radio-Diagnosis, one under the un-reserved category and another under the ST category. It is putforth that the petitioner was not allowed the degree seat in Radio Diagnosis. In this backdrop the petitioner has assailed the Rules 15. 10 and 15. 11 of the Rules. A reference has been made to the decision rendered in the case of Mayank Jain v. State of M. P. and Ors. , 2003 (4) M. P. H. T. 275 (DB) (W. P. No. 27382/2003) wherein Rule 9. 3 of the Madhya Pradesh Medical and Dental Graduate Entrance Examination Rules, 2003 was declared as ultra vires. In this obtaining scenario the petitioner has prayed for issue of directions to re-assess the allotment of P. G. seats in accordance with the Rule 8. 0 of the main Rules and to provide the P. G. Degree seat of Radio-Diagnosis to the petitioner in accordance with the merit of the petitioner.

(4.) COUNTER affidavits have been filed in both the cases in justification of the Rules. In W. P. No. 27819/2003 a specific stand has been taken that the case of the petitioner for reassessment of the seats for the Post Graduate course can not be dealt with as the academic session has already commenced from 2-5-2003 and it was after the commencement of the academic session, ST candidate Dr. Mahendra, Badole who was allotted an open quota seat of Radio Diagnosis vacated on 4-11-2003 and the said seat belongs to open category and can not be transferred to in-service quota. Certain documents have been filed in support of the same.

(5.) A rejoinder affidavit has been filed stating that the academic session for in-service candidates commenced from the second week of September, 2003 in pursuance of the counselling held on 3-9-2003. It has been highlighted that the admissions for in-service candidates were initiated by virtue of the Apex Court decision rendered in the case of State of M. P. v. Dr. Gopal D. Tripathi and Ors. , AIR 2003 (4) SCW 3636.

(6.) WE have heard Mr. Mrigendra Singh, learned Counsel for the petitioner in W. P. No. 27632/2003 and Mr. Samdarshi Tiwari, learned Counsel for the petitioner in W. P. No. 27819/2003 and Mr. S. K. Yadav, learned Government Advocate for the State. We may indicate here that there are some interveners in W. P. No. 27819/2003 and we have heard Mr. Mrigendra Singh for the interveners in the said case.

(7.) WE may at the very outset state that the petitions were filed in the last week of September, 2003. We have stated so at the beginning as the reliefs which have been claimed would be governed by the same. However, presently we proceed to deal with the legal validity of the Rules. As has been stated, in one case assails is to Rule 15. 9 and in another case the challenge is to Rules 15. 10 and 15. 11. To understand the Rules it is essential to reproduce the said Rules :

"15. 9. Counselling will be done on merit basis according to the category in the following sequence :- (A) unreserved Category, (B) ST Category, (C) SC Category, (D) OBC Category. 15. 10. In case the eligible candidates to the extent of reservations in any category are not available, the vacant seats will be filled up by converting them in other categories are given below :- (A) The vacant seats of ST category shall be filled up by the eligible SC category candidates. (B) The vacant seats of SC category shall be filled up by eligible ST category candidates. (C) In case the eligible candidates to the extent of reservation in ST and SC categories are not available the vacant seats shall be filled up by eligible OBC category candidates. (D) In case the eligible candidates are not available in these above three reserved categories in the above manner the vacant seats shall then be filled up by the eligible unreserved category candidates. 15. 11. A candidate belonging to SC/st/obc category and whose name also appears in the merit/waiting list of unreserved category beside the merit/waiting list of his/her own reserved category, shall be eligible in the counselling of both the categories. It shall not apply to class of horizontal reservation in various categories. He/she shall however have the option to opt for allotment in either of the two categories of his/her own choice. In case the reserved category candidate opts for allotment of a seat from his/her 6wn category seat will be made available to his/her own category from the remaining seats of unreserved category. "

(8.) FIRST we shall take up the validity of Rule 15. 11 of the Rules. In this regard we may refer with profit to Rule 9. 3 of M. P. Medical and Dental Graduate Entrance Examination Rules, 2003 (for brevity the 2003 Rules). The said Rule is in Hindi and English translation of the same which was done in the case of Mayank Jain (supra) reads as under :-

" rule 9. 3. If the name of the candidate from SC/st/obc appears in the merit/waiting list of reserved category list as also in the merit/waiting list of General Category list, then he/she has the option to participate in both the lists. Such candidate will have the option to select the seat from any one of the lists mentioned above. In such circumstances, if the candidate opts for the reserved category list as a reserved candidate, then in such a case the students of reserved category will be filled in the category of General Category list vacated by the reserved category candidate in the same proportion. "

(9.) IN the aforesaid case while dealing with the said Rule this Court referred to certain paragraphs of the decision rendered by the Supreme Court in the case of Indira Sawhney etc. v. Union of India and Ors. , AIR 1993 SC 477 [LQ/SC/1992/811] and eventually in Paragraphs 12 to 14-came to hold as under :-

12. We are conscious that the aforesaid decision was rendered in the context of reservation for admission to the Post Graduate Course in various professional faculties but we have referred to the aforesaid paragraph to indicate what is the view of the Apex Court in relation to weaker sections and what Their Lordships have stated therein. We may repeat at the cost of repetition that the cause putforth by the State for advancement of the weaker section can not distort the dictum of the Apex Court. It was contended before us that in certain exceptional cases extra reservation is permissible. But, in our considered opinion, the present one does not fit into the said prism. When the students are appearing in the examination harbouring hope that when they would qualify they would be selected their hopes can not be marred or smothered by ushering in a rule of this type. The said Rule does not subserve the constitutional philosophy and as we have noted earlier it runs contrary to the principles laid down by the Apex Court. If we allow ourselves to say so, an innovative attempt has been made to frame a rule to enhance the conception of reservation which the law proscribes. By no stretch of rationalisation or ratiocination it can be conceived that this is the filed where this innovative approach is warranted. On the contrary, it is absolutely unthinkable. 13. Quite apart from the above, Rule 5. 0 clearly stipulates that there would be 50% per cent reservation for other categories and 50% seats shall fall to the category of general category. Rule 9. 3, as has been understood by us, is totally inconsistent with Rule 5. 0. The definiteness and certitude of Rule 5. 0 can not be throttled by incorporating Rule 9. 3. It is totally inconsistent and bring in an incurable dent in the essential feature of Rule 5. 0. In court considered opinion Rule 5. 0 is in consonance with the judgment of the Apex Court. As Rule 9. 3 runs counter to the same, it can not be allowed to prevail. They do not harmoniously co-exist and the disharmony ensues unacceptability. 14. In view of our preceding analysis, we irresistibly come to the conclusion that Rule 9. 3 is constitutionally invalid and the same can not be allowed to have any play. We declare it to be ultra vires. The counselling which is to take place shall be strictly in accordance with the Rule 5. 0.

(10.) IN view of the aforesaid, Rule 15. 11 being pari materia can not withstand scrutiny and the same has to be declared ultra vires as it is unconstitutional, and we so hold.

(11.) PRESENTLY we shall address with regard to the validity of Rule 15. 9. The learned Counsel for the petitioners have submitted that the sequence as has been prescribed under the Rule is logically unwarranted inasmuch as it is anomalous to Rule 15. 10. To appreciate the aforesaid submission it is necessitous to discern the anatomy of Rule 15. 10. In the said Rule it has been provided that vacant seat of ST category shall be filled up by the eligible candidates of SC category and vacant seat of SC category shall be filled up by the eligible candidates of ST category and further if both these categories are not available the vacant seats would be filled up by eligible candidates of OBC category candidates. In the absence of aforesaid candidates the vacant seats would be filled up by the unreserved category candidates. If this sequence is understood in proper perspective there can be no trace of doubt that selection process must start in the same order or in that sequence. If the person of unreserved category is considered first and he does not get the opportunity to get the subject of his choice he would be compelled to opt for a different subject. That apart by the time the seats fall vacant following the guidance of Rule 15. 10 the unreserved category candidates who have not been selected in the first counselling of unreserved category would not get the chance even if the seats would fall vacant as by that time he must have taken admission in some other subject and rules prohibit the change of subject and change of institution. Thus, in our considered opinion Rule 15. 9 of the Rules has to be declared invalid as it does not stand in consonance with other rules. Once we declare Rule 15. 11 to be unconstitutional the sequence as provided in Rule 15. 9 can not withstand scrutiny. On both the counts Rule becomes susceptible and has to be declared ultra vires.

(12.) AS far as Rule 15. 10 is concerned, we do not find any justification to hold that the said Rule is defiant of any of the Constitutional provision nor does it create any kind of anomaly in the operational sphere of the Rules. In our considered opinion the said Rule is saved as we have already declared Rules 15. 9 and 15. 1 as invalid. To elaborate : if sequence of Rule 15. 9 changes, the sequence mentioned in the Rule 15. 10 would fit into the proper parameters.

(13.) THOUGH we have held so but we may reiterate that the last date for counselling was over and if we direct change of sequence at this stage it would usher in a lot of disorderliness and, therefore, We refrain from doing so. However, we express our anguish in the manner in which the Rules have been couched. This Court from time to time has stated that Rules are being framed in such a manner which bring in a lot of confusion and create utmost chaos at the time of admission every year. We trust that the State Government would be well advised to frame proper Rules in consultation with the Medical Council of India so that every year a spate of litigation are not filed assailing the Rules. We say no more.

(14.) THE writ petitions are accordingly disposed of without any order as to costs.