M. P. CHANDRAKANTARAJ, J. ( 1 ) THIS Writ petition coming up for preliminary hearing after notice to respondent is disposed of by the following order by consent of Counsel. ( 2 ) THE petitioner was an applicant for one of the seats available to the Government for being filled up in the Government and Private Engineering Colleges in the state of Karnataka under the Karnataka engineering Colleges and Technological institutes (Selection of Candidates for admission) Rules, (hereinafter referred to as the Rules ). The said Rules are made in exercise of the executive power of the State government under Art. 162 of the Constitution. The Rules were promulgated by a notification dated 18th July, 1979. Apart from possessing the certificate for having passed the Pre-University Examination conducted by the Per-University Board in karnataka State, the petitioner has asserted that he has secured 82. 33 per cent of marks in the relevant optional subjects namely, Physics, Chemistry and mathematics in the PUC examination. He has further asserted that he has Indicated in his application the preference to one of the seats available in Visveswarayya College of Engineering, Bangalore, the BMS college of Engineering. Bangalore, the national Institute of Engineering, Mysore and another institution, in that order of preference. He also desired to be considered for a seat available to the reserved category of children or wards of ex- servicemen provided for in the rules. He has in detail set out the service record of his father before and after retirement from the Army as a Civilian Combatant Sepoy clerk in the Army Base Workshop, Bangalore. The petitioner was called for interview before the respondent Selection Committee, constituted under the Rules on 30 9-1981. The petitioner is aggrieved by his non-selection by the respondent- selection Committee though students who secured lesser marks than him in the relevant optional subjects have been selected by the respondent-selection Committee patently discriminating against him in violation of the fundamental right under art. 14 of the Constitution as well as in contravention of the Rules themselves. Though respondent was served with a notice to show cause why rule should not be issued, it remained on the first date of hearing absent and unrepresented. In that position on 16-11-1981 the Government pleader, Sri. Motigi, was directed to take notice for the respondent and to make available the records of the case. Though respondent was served with a notice to show cause why rule should not be issued, it remained on the first date of hearing absent and unrepresented. In that position on 16-11-1981 the Government pleader, Sri. Motigi, was directed to take notice for the respondent and to make available the records of the case. ( 3 ) THE learned Government Pleader has made the records available now. R is seen from the records and from the submissions made by the learned Government Pleader that the petitioner was not considered for selection under the reserved categories with particular reference to seats reserved for children and wards of ex-servicemen and others, because the Selection Committee found that the petitioner's father did not have residence in the State of Karnataka at the time he joined the armed forces as prescribed in proviso (vi) to Rule 3 (1) of the Rules. In fact, the petitioner does not dispute that his father is not a person who had residence in Karnataka State on the date of his joining the armed forces and that he had not produced the prescribed certificate from the specified authority under the aforementioned provision, namely, proviso (vi) to Rule 3 (1) of the rules. The learned Government Pleader appearing for the respondent has strenuously urged that the Selection Committee was justified in rejecting the application because the father of the petitioner was not having residence in Karnataka State admittedly when he joined the armed forces and therefore he could not be considered as fulfilling the requirement of eligibility by domicile. He has also urged that no reason has been recorded in the application for rejecting the same as the applicant did not produce the necessary certificate from the specified authority namely, the secretary, Zilla Sainik Board as to his status as a child or ward of an ex serviceman. I do not think these arguments are well founded. It is submitted by the learned Government Pleader that students have been selected with lesser marks than the petitioner in the relevant optional subjects to the course under the reserved category meant for the children or wards of ex-servicemen provided for in Rule 5 (2) of the Rules. I do not think these arguments are well founded. It is submitted by the learned Government Pleader that students have been selected with lesser marks than the petitioner in the relevant optional subjects to the course under the reserved category meant for the children or wards of ex-servicemen provided for in Rule 5 (2) of the Rules. ( 4 ) IN the circumstances stated above, what falls for determination in this case is whether the Selection Committee acted in accordance with the Rules and whether they have violated the fundamental right of the petitioner under Art. 14 of the Constitution to be treated equally. ( 5 ) THE scheme of the Rules is as follows : R. 1 of the Rules provides for title and application. R. 2 of the Rules provides for definition of certain terms. R. 3 of the Rules with which we are mainly concerned provides for eligibility. R. 4 of the Rules is a general provision relating to seats available or sanctioned to different colleges in the State. R. 5 of the Rules provides for reservation in favour often specially enumerated categories out of the merit pool as well as for reservation to be made under Art. 15 of the Constitution for socially and educationally backward classes and also in favour of Scheduled castes and Scheduled Tribes. R. 6 of the rules provides for seats in the management pools to be filled up by the concerned management if the college is privately managed. R. 8 of the Rules provides for penalty for false and incorrect information. It is necessary to state that R. 5 of the Rules is self contained in the matter of not only reservations to be effected but also in the matter of dealing with the applications of the students and selecting them on merit both in respect of specially reserved categories and of unreserved categories (merit pool) as well as in respect of reserved categories such as socially and educationally backward classes, Scheduled castes and Scheduled Tribes. It is not disputed that the petitioner has studied for more than five years in the State of karnataka before the date of application. R. 3 (1) of the Rules is as follows : "3. It is not disputed that the petitioner has studied for more than five years in the State of karnataka before the date of application. R. 3 (1) of the Rules is as follows : "3. Eligibility: (1) No person shall be eligible to apply for admission to a fulime course in any college unless : (a) He is a citizen of India ; (b) He has studied in one or more government, or Government recognised educational institutions in the State of Karnataka for a minimum period of five years at any time prior to 1st July of the year of admission ; (c) He has passed the two year Pre-University Examination or any other Examination declared as equivalent thereto by the concerned University in Karnataka with physics, Chemistry and Mathematics as optional subjects and english as one of the languages ; (d) He has obtained in the aggregate not less than fifty per cent of the aggregate maximum marks in the above said three optional subjects in the second year examination of the Pre University Examination or in the equivalent examination : provided that the requirement specified at clause (b) above shall not apply to (iv) Children of the serving defence personnel or the ex servicemen whose home address at the time of joining the defence Forces was in Karnataka, proof of such domicile should be produced either by obtaining the extract from the Record Office of the Defence units or by a certificate from the secretary or Rajya or Zilla Sainik board (We are not concerned with sub-rule (2) as it relates to part time B. E. , course ). ( 6 ) FROM the above it is seen that to earn eligibility an applicant must be a citizen of India. He must have studied in any Government or Government recognised Educational Institute or Institutions in the State of Karnataka for a minimum period of five academic years at any time prior to 1st July of the year of admission. He should have passed the two year Fre-University Examination or any other examination declared as equivalent by the concerned University in Karnataka with physics, Chemistry and Mathematics as his optional subjects and English as one of the languages and he should have obtained in the aggregate not less than fifty per cent of the aggregate average marks. He should have passed the two year Fre-University Examination or any other examination declared as equivalent by the concerned University in Karnataka with physics, Chemistry and Mathematics as his optional subjects and English as one of the languages and he should have obtained in the aggregate not less than fifty per cent of the aggregate average marks. If any one of the above qualifications is wanting, then that candidate's application is liable to be rejected. It is most unfortunate that the Selection Committee has misunderstood the proviso (vi) extracted above as something which every eligible ex servicemen category candidate should fulfill. From the plain language of the proviso, it is clear that it acts as one of the exceptions to the prescribed eligibility under R. 3 (l) (b) of the Rules i. e. , requirement of candidates having studied for a period of not less than five years any time prior to 1st July of the year of admission. It is only when a child or a ward of an ex-serviceman has not studied for a period of five years as specified in clause (b) of sub-rule (1) of R 3 of the Rules that he is required to produce a certificate to the effect that his father was having residence in the State of Karnataka prior to his joining the armed forces and not otherwise. If he has fulfilled his five years study in karnataka as required by R. 3 (1) (b) of the Rules, there is no need to fall baek on the proviso and to produce the certificate as to his father's domicile prior to his joining the army. The intention of the government is obvious. The course is open to all Indian Citizens Indian Citizens cannot be discriminated against each other merely on the ground of their residence in different States of the Union. Though, as held in Joshi's case domicile can be a relevant criteria for reasonably qualifying applicants for Courses of this kind with the fond hope that domiciles of a State will settle down in that State as the state has to spend money on their education. It is for that reason that domicile is a permissible prescription in determining the eligibility of an applicant. It is for that reason that domicile is a permissible prescription in determining the eligibility of an applicant. In any event, the respondent Selection Committee has applied the proviso in the case of the petitioner which it ought not to have done as he is eligible in his own right under r. 3 (1) (b) of the Rules. ( 7 ) IN order to appreciate the argument of the learned Government Pleader that the petitioner has been considered under the merit pool and as there were candidates who had secured higher marks than him, he could not be selected, it is necessary to set out sub-rule (2) of R. 5 of the Rules ; " (2) Seats shall be reserved in the merit pool in favour of the following categories of persons and to the extent specified from time to time. SI. No. Categories of persons (i) Scholars (including foreign Scholars) sponsored by the Government of India in the Ministry of education. (ii) Scholars sponsored by the government of Karnataka. (iii) Students sponsored by Government of Tamil Nadu on reciprocal basis. (iv) Students sponsored by Government of Andhra Pradesh on reciprocal basis. (v) Students sponsored by Kerala on reciprocal basis. (vi) Repatriates from Burma, Sri lanka and Mozambique and Migrants from Tibet and Bangladesh and residing in Karnataka permanently. (vii) (a) Students who have outstanding merit or skill in sports and games and NCC. (b) Students who have shown outstanding merit or skill in sports si. No. Categones of persons and who have represented the country at International Games or Sports. (viii) Children of Political Sufferers as per GO No. ED 51 CPS 65 dated 21st December 1965. (ix) Children/wards of Defence Personnel including those of Civil gt Coys ASC who were Civilian class III or Class IV Government servants and are serving in the field areas ? (x) Children/wards of Ex-serviceman including those of Civil GRT coys ASC who are Civilian Class iii or Class IV Government servants and who became permanently disabled or were killed during hostilities. ( 8 ) MERIT Pool must be so understood to mean the number of seats in all Colleges or institutions set apart far being filled on the basis of merit but subject to reservations under R. 5 of the Rules. ( 8 ) MERIT Pool must be so understood to mean the number of seats in all Colleges or institutions set apart far being filled on the basis of merit but subject to reservations under R. 5 of the Rules. The first thing which is required to be done by r. 5 (2) of the Rules is reservations in favour of special categories of persons enumerated therein. It is only thereafter when specified number of seats are reserved in favour of the special categories that sub-rule (3) of R. 5 of the Rules directs the selection Committee to reserve for Scheduled Castes, Scheduled Tribes, Backward communities, Backward Castes, Backward tribes and Special Groups in each college in accordance with the orders issued by the government mentioned in sub rule (3) of r. 5 of the Rules. In other words, under sub-rule (2) special categories of persons also constitute reserved portion of the whole of the merit pool. ( 9 ) IF a candidate is eligible then he is entitled to be treated equally in the category to which he belongs or claims to belong. The petitioner's application was for being considered under item 10 of the categories enumerated in sub-rule (2) of Rule 5 of the Rules. In that category, he has a right to be treated equally among ail those simil arly placed. In the instant case, though, he has secured 82. 33 per cent of the average marks in the option of subjects, he has been discarded on an crrnoeous impression that proviso (vi) to sub-rule (1) (b) of Rule 3 of the Rules was attracted. The students with lesser marks have been selected for the seats reserved unde category 10 under sub-rule (2) of rule 5 of the Rules. This is clearly discriminatory as there is no serious dispute that the petitioner's father is an ex-service man. ( 10 ) LASTLY, it is urged by the leas ned Government Pleader that no proper certificate from the specified authority namely, the Secretary, Zilla sainik Board has been produced by the petitioner to pro\e that his father is an ex-serviceman. It is seen from the application form in the records that the Administrative Officer, 515, Army base Workshop, Bangalore, has issued the certificate. It is required to be certified by two people, the person certifying as well as the Secretary, zilla Sainik Board. It is seen from the application form in the records that the Administrative Officer, 515, Army base Workshop, Bangalore, has issued the certificate. It is required to be certified by two people, the person certifying as well as the Secretary, zilla Sainik Board. It is only in proviso (vi) to sub-rule (1) (b) of Rule 3 of the Rules that Secretary of Rajya or Zilla Sainik Board is required to sign the certificate But proviso (vi) of Rule 3 of the Pules is not attracted to the case of the petitioner. I do not. think at this stage of the proceedings the respondent should be permitted to urge that the application is defect ve unless it clearly takes the stand that the petitioner's father is not an ex-serviceman. ( 11 ) IN this view of the matter and for the reasons given above, the petitioner should succeced. In the result, a mandamus will issue to the respondent selection Committee to consider the case of the petitioner in the specially r eserved categories of seats reserved under sub-rule (2) of Rule 5 of the rules falling at item No. 10. It is made clear that the petitioner is not required to produce any additional evidence that he is the son of an ex- serviceman unless the Selection Committee is of the view that his father is not an ex-serviceman. If the selection Committee forms that view, then if shall give adequate opportunity to the petitioner to produce such material as may be necessary to prove that his father is an ex-serviceman. Rule accordingly will issue and be made absolute. The learned Government Pleader has urged that no manjamus should issue as above because the petitioner has not made candidates selected as parties who have scored lesser marks than him in the relevant optional subjects. I do not think it is necessary to say anything more about this. The petitioner came to this Court long before the list was finally published and any delay has been entirely due to the lethargy of the Selection Committee in getting the case disposed of early. To my mind it is unnecessary to give any specific direction regarding the candidates having secured lesser marks than the petitioner. The mandate to the Committee under the Rules is to select on the basis of merit. To my mind it is unnecessary to give any specific direction regarding the candidates having secured lesser marks than the petitioner. The mandate to the Committee under the Rules is to select on the basis of merit. If the petitioner is meritorious than others it is bound to Select the petitioner in order to carry out the mandate of the rules. ( 12 ) THERE will be no order as to costs. --- *** --- .