JUDGMENT Om Parkash, J. - The petitioner, who was refused admission in M.S. Gynaecology and Obstetrics course, seeks a writ a mandamus directing the respondents to consider her name for admission in the aforesaid course. 2. The facts are that the petitioner passed her M.B.B.S. in 1987 from Lady Harding Medical College, New Delhi, securing 69.54% marks. She did internship from S.N. Medical College, Agra, for one year from 8.1.1988 to 7.1.1989 and then did house job from the aforesaid College of Agra for one year from 25.2.1989 to 24.2.1990. She then applied for admission in M.S. Gynaecology and Obstetrics course pursuant to the advertisement issued from the office of the respondent No. 1 (Annexure "1" to the writ petition). Residency Scheme was introduced by the Government Order dated 28.8.1989 (Annexure "2" to the writ petition) whereby Post Graduate Degree Courses was converted into three years and the house job of one year required earlier, was converted into first year in the residency scheme, meaning thereby, after introduction of residency scheme, candidates were required to be admitted in the first year of Post Graduate course under the residency scheme. By virtue of the residency scheme, 75% seats were to be filled up by the internal candidates either on the basis of a selection test on the basis of the marks obtained in M.B.B.S. course and 25% seats were to be filled up on the basis of the All India Combined Entrance Examination to be conducted by the AIIMS. The contention of the petitioner is that 25% seats were to be filled in the State Medical College of U.P. in accordance with the Government Order dated 15.12.1982 until the All India Entrance Examination took place. 3. Referring to the decision in Dr. Dinesh Kumar v. Motilal Nehru Medical College, Allahabad, AIR 1987 SC 2396 the petitioner further stated in paragraph 20 that the Supreme Court held; "that only 75% seats shall be filled up on the basis of institutional preference and 25% on the basis of institutional preference and 25% on the basis of the competition conducted by the AIIMS. Dinesh Kumar v. Motilal Nehru Medical College, Allahabad, AIR 1987 SC 2396 the petitioner further stated in paragraph 20 that the Supreme Court held; "that only 75% seats shall be filled up on the basis of institutional preference and 25% on the basis of institutional preference and 25% on the basis of the competition conducted by the AIIMS. But since this scheme of conducting examination by the AIIMS could not be implemented; as such a policy continued in the State Medical Colleges that 75% seats were filled up on the basis of institutional preference and the remaining 25% seats were to be filled up on the basis of comparative merits between the external and internal candidates in accordance with Government Notification dated 15.12.1982." Thus, the facts as gleaned from the petition are that 75% seats shall be filled up from internal candidates either on the basis of examination or on the basis of the marks obtained in M.B.B.S. course and 25% seats shall be filled up on the basis of comparative merit list of the external and internal candidates and not by internal candidates alone, as it has been done in the instant case by the respondents. 4. In the counter-affidavit filed by the respondents, it is averred that admission in the residency course was to start from the students of 1983 batch on the basis of combined entrance test, but because there was no time to organise the combined entrance test, the admission were to be made on the basis of the merit of M.B.B.S. and from subsequent batches the admission shall be made only through combined entrance examination of all the State Medical Colleges. In paragraph 8 of the counter-affidavit it is averred that 25% seats were filled up by the internal candidates, as no candidates were available through All India Entrance Examination. In paragraph 10 of the counter-affidavit, it is further averred that 25% seats shall be filled up through all India examination to be conducted by AIIMS only from 1984 batch and onwards. 5. The affidavits having been exchanged, I heard both the parties to dispose of the writ petition finally. In paragraph 10 of the counter-affidavit, it is further averred that 25% seats shall be filled up through all India examination to be conducted by AIIMS only from 1984 batch and onwards. 5. The affidavits having been exchanged, I heard both the parties to dispose of the writ petition finally. The short question for consideration is whether the respondents rightly filled up 25% seats, admittedly, meant for external candidates, by internal candidates and whether 25% seats were to be filled up the basis of comparative merit list of external and internal candidates until a combined entrance examination is conducted by AIIMS for 25% seats. No material has been shown by the respondents in support of their averments made in counter-affidavit that until the combined entrance examination to be conducted by AIIMS was held, 25% seats were rightly filled up from internal candidates. 6. On the other hand, learned counsel for the petitioner drew my attention to the notification dated 26.4.1986 (Annexure "4" to the writ petition) which amended para (4) of the Government notification dated December 15, 1982 (Annexure "3"). The amended paragraph (4)(a) states that in every speciality, 75% seats in a particular Medical College shall be reserved for the candidates who have passed the M.B.B.S. examination from that college and against the remaining 25% seats, candidates who have passed M.B.B.S. examination from other Medical College and are bonafide residents of Uttar Pradesh, shall be eligible for admission on the basis of merit along with the candidates who have passed the M.B.B.S. examination from that very College. The notification Annexure "3" as amended by Annexure "4" amply supports the contention of the petitioner that till the combined entrance examination is held by AIIMS, 25% seats shall be filled up on the basis of the comparative merit list of the external and internal candidates. The respondents have miserably failed to show that the amending notification (Annexure "4") was either withdrawn later or did not remain in operation for any other reason. Therefore, the notification (Annexure "4") has to be held to have remained in operation and, as such, the action taken by the respondents in filling up 25% seats by internal candidates only is clearly violative of the notification Annexure "3" as amended by Annexure "4". Therefore, the notification (Annexure "4") has to be held to have remained in operation and, as such, the action taken by the respondents in filling up 25% seats by internal candidates only is clearly violative of the notification Annexure "3" as amended by Annexure "4". It is not denied that the petitioner, who is a bonafide resident of U.P., secured higher percentage in M.B.B.S. course as compared to the candidates, mentioned at serial Nos. 2 to 7 in paragraph 19 of the petition and onlyk the candidate whose name is mentioned at serial No. 1, secured 70% marks in M.B.B.S. course, which is higher than the percentage secured by the petitioner. Following the notification Annexure "3" read with Annexure "4" it must be held that against 25% seats the petitioner should have been admitted and her name should have been at serial No. 2. Similar view taken by this Court in Civil Misc. Writ No. 12038 of 1986, Dr. Anurag Mathur v. State of U.P. and others (Annexure "5" to the writ petition), in which too, the notification (Annexure "4") was relied on. 7. The above conclusions are also supported by the decision, Jeevak Almast v. Union of India and others, AIR 1988 SC 1812 . In this case, the petitioner could not succeed in taking admission to post graduate medical course in the All India Entrance Examination held by AIIMS. He prayed for quashing the list of successful candidates for admission in the Post Graduate Medical Colleges within the 25% reserved quota. What happened is that 25% reservation as envisaged by the Scheme approved by the Supreme Court created 2050 to 2100 seats and they were intended to be filled up by the selection test to be conducted by the AIIMS. About 30,000 candidates appeared in the test, but only 500 students were found fit for being admitted as against 25% seats for external candidates. As a result of this about 1600 seats could not be filled up in the terms of the Scheme evolved by the Union of India in co-ordination with the Indian Medical Council, State Government, Universities and Medical Institutions, which was approved by the Supreme Court. As a result of this about 1600 seats could not be filled up in the terms of the Scheme evolved by the Union of India in co-ordination with the Indian Medical Council, State Government, Universities and Medical Institutions, which was approved by the Supreme Court. The Supreme Court took the view that 1600 seats should be filled up and for filling them, the Supreme Court directed the Selection Committee operating in the States/or Union Territory to draw up a list the remaining candidates seeking admission as against 75% seats and the candidates, who had taken the All India Entrance Examination but have not been found fit and in the event of there being no selection test in the State relating to 75% quota then at the M.B.B.S. examination. The Supreme Court then observed : "This shall be on the footing that the marks in the respective test or the test and the examination are at par and admission would be on the basis of merit." The Supreme Court, therefore, gave a guideline that merit should be the basis for filling up 1600 seats, which remain unfilled, against 25% quota. The only difference between the case of Dr. Jeevak Almast (supra) and the case in hand is that in the former combined entrance examination was held, but substantial seats against 25% quota remained unfilled, and in the latter, no examination could be held for the batch, the instant petitioner belonged to. When merit constituted the basis to fill up 1600 seats that remained unfilled against 25% quota in Dr. Jeevak Almast case (supra), I see no reason why the 'merit' should not be treated the basis or the guideline to fill up 25% seats in the case of the instant petitioner. Merit being the criterion and the sole guideline. The amending notification (Annexure "4") provides that 25% seats shall be filled up on the basis of the comparative merit list of the external and internal candidates, but that has been given a total go-by by the respondents in the instant petition by filling up all the seats except one against 25% quota by those internal candidates who secured lesser percentage than the petitioner. 8. For the reasons, I hold that the petitioner should have been placed at No. 2 after Dr. 8. For the reasons, I hold that the petitioner should have been placed at No. 2 after Dr. Ila Baijal, who secured 70% in M.B.B.S. course in the list of selected candidates, as mentioned in paragraph 19 of the petition, and the respondents acted illegality in having filled up all the seats against 25% quota by the internal candidates, who stand lower in the merit list than the petitioner. It is, however, made clear that this order does not mean the ouster of the last candidate already admitted to such course. It is for the respondents to consider whether the petitioner can be accommodated by creating a new seat or by ousting the last candidate already admitted though illegally to such course. 9. The writ petition, therefore, succeeds and is allowed, the respondents are directed to admit the petitioner in M.S. Gynaecology and Obstetrics course for the session 1990-91 in S.N. Medical College, Agra, immediately, after a certified copy of this order is produced before the respondent No. 1 by the petitioner, who shall get her costs.