ORDER
Shivaraj Patil, J.
1. In this writ petition the petitioner has sought for a writ of mandamus directing the first respondent herein to cancel the admission of the third respondent from the post graduate course (M.D.S.) in the speciality of prosthodontics and allot the same to the petitioner, stating that he holds a B.D.S. degree of the Tamilnadu Dr. M.G.R. Medical University: there is only one Government Dental College in Tamil Nadu for post-graduate studies and there arc only seven specialities for which entrance examination has been conducted; there are only two seats in each speciality: out of this 50% of the scats in each speciality are reserved for service candidates and the rest are available for open competition, for Selection and admission on the basis of merit. The petitioner took the entrance examination conducted by the first respondent on 20.5.1995. he got 49.95% of marks; out of two scats in Orthodontics the first seat was given to service candidate who secured 47.41 marks while the open category seat was given to a candidate who obtained 52.70 marks.
2. So far as the Prosthodontics specially is concerned, the seat reserved for service candidate was not filled up because there was no service candidate available for the said seat. The open seat was allotted to a candidate who secured 56.34 marks. One Udita Sankhyayan who secured 50.04 marks was placed in the waiting list at serial No. 1 while the petitioner was listed in the Waiting list at serial No. 2, Since the candidate who was originally selected did not join the course or left the course in Prosthodontics; the seat was allotted to Udita Sankhyayan who was No. 1 in the wait list. But so far as the seat reserved for service candidate there was none available from the service. Consequently the said seat ought to have been treated as open seat and allotted to the petitioner who is No. 2 in the waiting list, but strangely the said seat was allotted to third respondent who is not a service candidate in any sense of the term. Further her name was not in the wait list at all. It may fee that the speciality of Prosthodontics was not one of the subjects opted by her. If that is so there was absolutely no justification for allotting the service seat to the third respondent. Under the circumstances the petitioner has filed this writ petition seeking the relief as stated above.
3. The second respondent has filed a counter affidavit contending that the petitioner applied for M.D.S. course for 1995-96 for the courses (i) Orthodontics (Code No. 60) and (ii) Prosthodontics (Code No. 61). As far as the first choice is concerned the candidates who had obtained more marks that the petitioner was selected. This petitioner was not selected in the open category as the marks scored by him were lesser than the marks scored by the candidates selected in the O.C. Category.
4. As regards the choice of Prosthodontics, the candidate who was selected originally did not join, and the next candidate Udita Sankhyayan belonging to O.C. Category with 50.04 marks was selected and the second candidate one Neeraja, a non-service candidate with 50.32 marks was selected under the service quota. The third respondent had applied for M.D.S. Course with four choices relating to code Nos. 62,63,58, and 59, The candidates is supposed to give only two choices. Since the candidate had given four choices the selection committee Struck down the last two choices i.e., code Nos. 58 and 59 and they ought to have fed the first and second choices in the computer, but by mistake the third and fourth choices were fed into the computer. Due to the said error the third respondent was not selected on merits for the third and fourth choice. When the selection committee noticed the error in not feeding the first two choices in the computer whereby the candidate should have been selected as per merit, the third respondent requested the selection committee to allot her in code No. 61 as she stood first in the service category in the said course, and since no candidate from service category had applied in that category she was allotted in service category relating to code No. 61. Hence her request was acceded and was allotted a seat. It is submitted that the petitioner has scored lesser marks than the candidates selected in the open quota and hence he was not selected. Under the circumstances the selection of respondent No. 3 is valid and the writ petition is liable to be dismissed.
5. The third respondent has also filed a counter affidavit resisting the claim of the petitioner. According to her the writ petition itself is not maintainable; she has already been admitted into the post graduate course and it will not be open for the petitioner to seek the relief of cancellation of her admission and that the writ petition has become infructuous as the third respondent has been admitted to the post graduate course on 11.7.1995. She completed the B.D.S. course in March 1994 from the Tamil Nadu Dental College and Hospital, Madras she applied for the post- graduate M.D.S. course for 1995-96 session; she secured 50.32 marks in the entrance examination. She had given four choices in her application viz., (1) Oral Pathology: (ii) Oral Medicine and Radiology (iii) Conservative Dentistry (iv) Periodontics though the third respondent secured more marks than the selected candidates and waitlisted for Periodontics and for Conservative Dentistry she was not selected the third respondent made a representation to the second respondent on 23.6.1995 she also made representation to the Health Secretary Ministry of Health, Government of Tamil Nadu on 26.6.1995. The, second respondent finding her predicament assured that the wrong would be corrected. When the vacancy arose in the branch of Prosthodontics he allotted that seat to her. She states that her selection and allotment of the branch of Prosthodontics in M.D.S. Course is not illegal. It is further stated that in the application form there is a column requiring the candidates to list their preferences and that alone cannot be taken as main condition for selection. In any case before admission the second respondent took a letter from her exercising her option for the branch Prosthodontics. As such she was selected having secured more marks than the petitioner. She has further stated that she had become a victim of circumstances even after obtaining higher marks in the entrance examination because of the mistake committed by the second respondent. Thus she has prayed for dismissal of the writ petition.
6. Shri G. Bharadwaj, learned counsel for the petitioner contended that when no candidate from service category was available for one seat in the speciality Prosthodontics, the petitioner being No. 2 in the waitlist in that speciality ought to have been selected and admitted as the candidate in waitlist No. 1 was already given admission. Further the third respondent had not at all applied for admission to the said speciality of Prosthodontics: when she had not applied for the said course the second respondent ought not have selected and admitted her. Hence, according to him, the admission given to the third respondent should be set aside and in her place the petitioner is to be admitted.
7. Smt. Saraswathi Prasad, the learned Additional Government Pleader for respondents 1 and 2 submitted that the third respondents had applied for M. D. S. Course with four choices relating to Code Nos. 62 (Oral Pathology), 63 (Oral Medicine and Radiology), 58 (Conservative Dentistry) and 59 (Periodontics): a candidate could give only two choices: the selection committee struck down the last two choices that is relating to code Nos. 58 and 59, but by mistake the first and second choices were not fed in the computer and on the other hand the third and fourth choices were fed into the computer: due to the said error the third respondent could not be selected on merits for the third and fourth choices: the Selection Committee having noticed the error, accepting the request of the third respondent, allotted a seat in the subject relating to code No. 61 (Prosthodontics) as no service candidate was available for the remainting one seat; and since the petitioner had scored lesser marks than the candidate selected in the open quota he was not selected.
8. Shri S. Balasubramaniam, the learned counsel for the third respondent argued that the Selection Committee having committed a mistake in not feeding the choices 1 and 2 given by the petitioner, later reallising it, selected the third respondent in the only available vacancy meant for service category as no candidate was available in that category; on such selection the third respondent was admitted to the said post-graduate course on 11.7.1955. and under the circumstances for no fault of the third respondent her admission cannot be cancelled.
9. I have considered the submissions made by the learned counsel for the parties.
10. The facts which are not disputed are the following:
The petitioner applied for admission to M.D.S. Course for 1995-96 session in the following specialities:-
i. Orthodontics (code No. 60)
ii. Prosthodontics (Code No. 61)
The third respondent applied for the following specialities:-
i. Oral Pathology (Code No. 62)
ii. Oral Medicine and Radiology (Code No. 63)
iii. Conservative Dentistry (Code No. 58)
iv. Periodontics (Code No. 59)
11. The petitioner was placed at serial No. 2 in the wait-list, and the third respondent did not figure in the wait-list at all. One seat in the speciality Prosthodontics remained vacant as no candidate from the service category was available. The candidate in wait-list No. 1 was already admitted. The petitioner being No. 2 in the wait-list he could be considered for selection and admission to the Prosthodontics speciality. As per paragraph II.3 (b) a candidate will be allowed to give option in order of preference for admission to Two specialities in Dental Courses. As per G.O. Ms. No. 186. Health and Family Welfare Department dated 24.3.1995, paragraph 1(iii) (c), if sufficient number of eligible service candidates are not available for the seats reserved exclusively for them, such vacancies shall be filled in by the non-service candidates from the merit list/waiting-list in the respective reserved compartments. If vacancies exist even after this, such vacancies shall be filled applying the order of preference indicated in the prospectus.
12. The third respondent did not apply at all for the speciality prosthodontics (Code 61). Her name was not found in the waiting list. The name of the petitioner was found at servial No. 2 in the waiting list. Admittedly one seat was available in the speciality prosthodontics as no service candidate was available to fill in the said seat. As per the G.O. Ms. No. 186 aforementioned, the said seat should have been filled up by non-service candidates from the merit list/waiting list. The petitioner was in the waiting list at serial No. 2. Since the candidate at serial No. 1. in the waiting list had already been provided admission, the petitioner ought to have been selected and admitted to the speciality- prosthodontics.
13. If the respondent No. 2 had committed a mistake in not feeding the first two choices given by the third respondent in the computer and wrongly fed the last two choices, he could not have appropriated the only seat available in the speciality prosthodontics by providing admission to the third respondent. If there was a mistake in regard to the feeding of the choices relating to code Nos.62 and 63, if at all the mistake was to be rectified, it should have been rectified in respect of those subjects and not in relation to the speciality prosthodontics (Code No. 61). The action of the respondent No. 2 in selecting the third respondent for admission in the prosthodontics amounts to selecting and admitting her in respect of a speciality not at all applied for, the wrong if any committed by the second respondent in not feeding the first two choices of the third respondent cannot take away the right of the petitioner for selection and admission in his own right on merits being the next candidate available for selection in the waiting list, because, it was plainly impermissible in law having regard to the provisions contained in the prospectus. Further when the third respondent was not at all included in the merit list/waiting list, she could not have been selected and admitted to the said course. The third respondent has joined the course. The third respondent has joined the course only on 11.7.1995. The writ petition was filed on 26.7.1995 by the petitioner. Under the circumstances it cannot be said that the writ petition has become infructuous as contended by the learned counsel for the third respondent.
14. In the result for the reasons stated, I pass the following the Order: –
i. The writ petition is allowed;
ii. Writ of Mandamus shall issue to the respondents 1 and 2 to cancel the admission of the third respondent to M.D.S. Course (Prosthodontics speciality) and alloted to the said seat to the petitioner in respect of the same speciality for 1995-96 session itself; and
iii. There shall be no order as to costs.
