Judgment : Heard the learned counsel for the parties. 2. In this writ petition the petitioner has sought for a writ of mandamus directing the responent to select and admit the Petitioner in D.M. (Neurology) in any one of the colleges, viz., in Madurai Medical college, Madurai or in Stanley Medical College, Madras where one seat each for D.M. (Neurology) exclusively meant for service candidate quota is kept vacant for the academic year 1994-95. 3. The short facts leading to the writ petition are:- The petitioner is an Assistant surgeon working in the Government Head-quarters Hospital, Ramanathapuram. He passed the M.B.B.S., degree in the year 1982 and thereafter he has joined the P.G. course-M.D.(General) in the Madurai Medical College, Madurai in the year 1986 and completed in 1989. In May, 1994 he sent application seeking admission for D.M. (Neurology) and D.M.(Cardiology) for the academic year 1994-95 in response to the Advertisement inviting applications by the second respondent. He took the entrance examination conducted by the second respondent on 16-6-1994 with Registration No. 101001. The result of the examination was published on 19-7-1994. As per the said list the petitioner was placed at No. 1 in the waiting list for D.M. (Neurology). 4. The petitioner asserts that he has secured 56.67 marks out of 100 in the D.M.Neurology though the qualifying mark is 40 out of 100 as per the instructions. The method of selection for the said course was that 50% of the seats were given to the candidates in service and the remaining 50% for the non-service candidates. From the academic year 1994-95, eight seats were available for the said course D.M. Neurology., Four seats were meant for service candidates and the remaining four seats for non-service candidates. The petitioner is concerned with the selection of candidates in the service category. Out of the four seats meant for service category two seats remained unfilled viz., one seat in Madurai Medical College, Madurai and another in Stanley Medical College at Madras. Both these seats were meant for most backward class. 5. The petitioner is concerned with the selection of candidates in the service category. Out of the four seats meant for service category two seats remained unfilled viz., one seat in Madurai Medical College, Madurai and another in Stanley Medical College at Madras. Both these seats were meant for most backward class. 5. The petitioner made representation and personally met the Secretary, Selection Committee and requested him to select the petitioner for D.M.Neurology in any one of the two colleges mentioned above, but the request of the petitioner was not conceded to, stating that the seat at Madurai Medical College could not be filled up because it is meant for service candidate of most backward class only. The petitioner brought to the notice of the second respondent G.O.R1. No. 533 Education (G.2) Department dated 1 6-5-1990 wherein it is stated that if the M.B.C candidates are not available to be filled up in Government colleges, then such seats should be filled up by B.C. candidates. Since the Petitioner’s request was not conceded, the petitioner having no other alternative remedy has filed this writ petition seeking for the relief as mentioned above. 6. No counter affidavit is filed by the respondent. 7. The learned Counsel for the petitioner contended that on the undisputed facts that the petitioner belongs to backward class and is a service candidate that he is No. 1 in the waiting list prepared by the second respondent for D.M Neurology, and that one seat in Madurai Medical College and one seat in Stanley Medical College meant for service candidates remain unfilled, the petitioner ought to have been admitted as against one of the vacancies available in the two colleges mentioned above. He submitted that on the basis of the Government Order No. 533 dated 16-5-1990 referred to above when the candidates in the category of M.B.C. are not available the petitioner belonging to B.C. category and being No. 1 in the waiting list should have been admitted. He also submitted that the course has commenced on 1-9-1994 and if the seat is not filled up it would not be in the interest of anybody. Under the circumstances the learned counsel states that the relief as sought for may be granted to the petitioner. 8. He also submitted that the course has commenced on 1-9-1994 and if the seat is not filled up it would not be in the interest of anybody. Under the circumstances the learned counsel states that the relief as sought for may be granted to the petitioner. 8. On the other hand the learned Additional Government Pleader submitted that the Government Order dated 16-5-1990 does not deal with the admissions to the Post Graduate courses in the medical colleges. She points out to the proceedings of the Additional Director of Technical Education in Lr. No. 26979/J2/94 dated 20-7- 1994 which deals with regard to the re-allocation of unfilled seats in regard to technical education. Even according to the same the vacancies available in the M.B.C. and B.C. quota should be filled up in to order of preference given therein and in the said order of preference B.C. is No. 1. She submitted that the Government has not yet taken any decision with regard to how the unfilled seats in the Post-Graduate course in Medical College should be filled up whenever vacancies arise. In order to enable her to get instructions in this regard this Court has granted several adjournments but even as on today the learned Additional Government Pleader is not in a position to state as to what decision has been taken by the Government, but she adds that the matter is under the active consideration of the Government. 9. I have carefully considered the submissions made by the learned counsel for the parties. The facts which are not in debate are:- the petitioner is No. 1 in the waiting list prepared on the basis of merit for D.M. Neurology; he belongs to B.C. category; and two seats in D.M. Neurology, one in Madurai Medical College, Madurai and another in Stanley Medical College, Madras are vacant meant for service candidates. 10. Although there isno specific Government order dealing with how the unfilled seats are to be allotted from the M.B.C. in respect of the Post Graduate Diploma courses in the medical colleges, the Government Order No. 553 Education (G.2) Department dated 16-5-1990 and the proceedings No. 26979/J2/94 dated 20-7- 1994 of the Additional Director of Technical Education have some indication in that regard. 11. 11. Be that as it may, when two seats are available to be filled up, and the petitioner being No. 1 in the waiting list prepared on merits in the B.C. category, he should not be denied Admission to the said course viz., D.M.Neurology. At this state the learned counsel for the petitioner added that the petitioner is a physically handicapped person and it would be convenient if the petitioner is given admission in Madurai Medical College. 12. It is relevant here to point out paragraph 9 in the case of “G.P. Hemanatha Kumar v. Govt. Medical Colleges, Bangalore” (A.I.R. 1981 KARN. 22) which is follows:- “A learned single Judge of this Court in the case of Asha Rokade Vs. State of Mysore (W.P. No. 2829 of 1972 decided on 28-8-1973) has taken the view that on the construction of the relevant Rules for selection to the Medical Courses in the relevant year that if for any reason a seat had become vacant within the prescribed quota and that seat could be filled by another candidate eligible for that seat, then the same could not be denied on any ground whatsoever as medical education being very important, no seat in the prescribed quota should go waste. That decision, on appeal by the State was confirmed by the Division Bench and has been followed in subsequent writ petitions.” 13. Having regard to the above, I am of the view that the petitioner is entitled for the relief sought for in the writ petition. In the result, for the reasons stated, I proceed to pass the following order:- The writ petition is allowed. The respondents are directed to admit the petitioner in D.M. (Neurology) course for the academic year 1994-95 in any one of the two colleges viz., Madurai Medical College, Madurai or Stanley Medical College, Madras, preferably in Madurai Medical College, having regard to the handicap of the petitioner, within a period of the weeks from the date of receipt of the copy of the order.