JUDGEMENT - R.K. BATTA, J. :---The petitioner passed XIIth Standard examination from Maharashtra State Board of Secondary and Higher Secondary Education, Nagpur Divisional Board in March 1993, securing 422 marks out of 600 marks. She had obtained 218 marks out of 300 marks in Physics, Chemistry and Biology which is considered for admission to Medical Course. The petitioner applied for admission against payment seats for the First M.B.B.S. Course which are available only at J.M. Medical College, Sawangi, Wardha and N.K.P. Salve Medical College, Nagpur. The petitioner was not allotted any payment seat and opted to be placed on the waiting list. The case of the petitioner further is that N.K.P. Salve Medical College, Nagpur-the respondent No. 4, and J.N. Medical College, Sawangi, Wardha-the respondent No. 5 did not get sufficient number of applications for non-resident Indian students for whom 15 per cent quota is reserved under the rules and the said respondents admitted Indian students against the said seats without caring for the waiting list. She further contended that the said respondents admitted the students who had secured much less percentage of marks than her. Therefore, the petitioner filed this petition seeking directions to the respondent Nos. 4 and 5 that they be directed to admit the petitioner in the First M.B.B.S. Course against the payment seat in accordance with merit. Subsequently, by way of amendment, she also sought quashing and setting aside of the admissions of respondent Nos. 6 to 11 in the M.B.B.S. Course. 2. The respondent No. 4-N.K.P. Salve Medical College, Nagpur, filed return contending that the petitioner never applied for admission against the left out seats out of N.R.I. quota inspite of the fact that the respondent No. 4 had repeatedly advertised in the national newspapers of the vacancies available and as such she was not considered for the admission. 3. The stand taken by the respondent No. 5-J.N. Medical College, Savangi, Wardha, is also similar, The said respondent also submitted that repeated advertisements were issued in the national papers regarding the availability of vacancies in N.R.I. category and it was specifically stated in the said advertisements that Indian citizens could apply for the same. The said respondent filled up the vacancies left over from N.R.I. quota from amongst the candidates who had responded to the said advertisement. The said respondent filled up the vacancies left over from N.R.I. quota from amongst the candidates who had responded to the said advertisement. It was also contended that the respondent No. 9 was admitted against casual/drop out seats in the college after the cut off date on 26-10-1995. 4. Both the respondents namely respondent Nos. 4 and 5 have contended that they have strictly followed the inter-se merit amongst the candidates who had filed their applications. The respondent Nos. 6 to 9 have also taken the stand that the petitioner did not submit her application in response to the advertisement issued and she was, thus, not considered rightly. 5. The learned advocate Shri. Anjan De placed three submissions before us in relation to this petition, namely:--- (1) The respondent Nos. 4 and 5 could not have advertised the left out seats from N.R.I. quota and in support of this submission, he relied upon the ruling of the Apex Court in (Unni Krishnan v. State of A.P.)1, A.I.R. 1993 Supreme Court 2178, at page 2248. (2) According to the rules governing Medical admissions for the year 1995-96, the petitioner could not have applied in pursuance of the advertisement issued by the respondent Nos. 4 and 5 in view of Rule 7.0.1 of the said rules which lays down that an individual aspiring for selection to medical course, must submit a single prescribed and issued form, It further lays down that submission of more than one form is liable to result invalidation of all forms submitted. (3) If the N.R.I. quota had remained unfilled, the candidates in the waiting list had to be considered and the said seats could not be filled in by the respondent Nos. 4 and 5. 6. He relied upon a number of judgments of the Apex Court in support of his submissions, namely (Mohini Jain v. State of Karnataka)2, 1992(3) S.C.C. 666 ; Unni Krishnan v. State of A.P. (T.M.A. Pai Foundation and others v. State of Karnataka)3, 1993(4) S.C.C. 276 ; (K. Sujatha v. Marathwada University)4, 1995 Supp. (1) Supreme Court Cases 155; T.M.A. Pai Foundation v. State of Karnataka, 1995(3) A.D.S.C.(c) 415; and (Sarika Shivprakash Sharma v. State of Maharashtra)5, 1995(1) Maharashtra Law Journal 799. (1) Supreme Court Cases 155; T.M.A. Pai Foundation v. State of Karnataka, 1995(3) A.D.S.C.(c) 415; and (Sarika Shivprakash Sharma v. State of Maharashtra)5, 1995(1) Maharashtra Law Journal 799. Relying on these judgments, it was contended by the learned advocate Shri Anjan De that merit and merit alone has to be the consideration for selection and that the respondent Nos. 4 and 5 have admitted the candidates who are less meritorious than the petitioner. He also submitted that no counselling was available, as provided under the Rules, to suggest that separate application can be filed against the left out seats from N.R.I. quota inspite of Rule 7.0.1. It was also contended by him that the respondent Nos. 4 and 5 had filled the seats before the cut off date was announced by the competent authority. 7. The learned advocate Shri Bobde argued on behalf of the respondent No. 5 that under the rules, no forms are prescribed for N.R.I. quota and the forms are devised by the colleges themselves who are authorised to admit the students against the said quota. He placed two fold submissions before us, namely:--- (1) Whether source for admission to N.R.I. quota is separate? (2) What is the procedure which is to be followed when N.R.Is. are not available? After placing reliance on the last two lines of Rule 4.1.1., it was contended that N.R.I. quota is not at the disposal of the competent authority and the private colleges are free to fill such seats without any reference to the competent authority. According to him, N.R.I. quota has been carved out separately and no provision in the rules unifies the same with the seats at the disposal of the competent authority. He also drew our attention to last four lines of Rule 8.0.4.1 of the said Rules which lays down that those candidates who do not join or remain absent and fail to pay the fees or refuse admission, such seats will be treated as drop out/casual vacancies and waiting list will be operated for making selection against such drop out/ casual vacancies. He also submitted that the cut off date is relevant for the purposes of the seats which are to be filled by the competent authority and the Private Colleges are free to fill up the vacancies in N.R.I. quota without reference to the said cut off date. He also submitted that the cut off date is relevant for the purposes of the seats which are to be filled by the competent authority and the Private Colleges are free to fill up the vacancies in N.R.I. quota without reference to the said cut off date. He emphasised that the petitioner never applied against the seats left out of N.R.I. quota even inspite of the advertisement issued by the respondent Nos. 4 and 5 and as such she cannot be considered for admission. He further submitted that the left out seats from N.R.I. quota are not required to be filled in from the waiting list which operates only as against the seats available at the disposal of the competent authority. It was also pointed out that from amongst the candidates who had applied against the seats left out of N.R.I. quota inter se merit was strictly followed and the petitioner cannot make any grievance in such circumstances. 8. The learned Assistant Government Pleader Shri Kukdey also submitted that N.R.I. seats are not at the disposal or control of the competent authority and the same can be filled by the private colleges without reference to the waiting list of the competent authority. He supported the arguments advanced by the learned Advocate Shri Bobde that N.R.I quota is distinct and separate and unless an application is filed, the petitioner cannot be considered for selection. 9. We have given a serious thought to the rival contentions advanced before us. A brief narration of law laid down by the Apex Court is necessary at this stage in order to appreciate the controversy involved in this petition. In (Unni Krishnan's)17, case A.I.R. 1993 S.C. 2178 Constitution Bench of the Apex Court had framed a scheme governing admissions to the professional colleges with a view to eliminate the evil of capitation fees and the absolute discretion which the management of those colleges were exercising in the matter of admissions of the students. The main object was to ensure that merit prevails in the matter of admissions, both in respect of "free seats" as well as in respect of "payment seats". Prior to that in Mohini Jain v. State of Karnataka (supra) also it was emphasised that merit and merit alone should be the criteria for admission to the Medical Colleges. The main object was to ensure that merit prevails in the matter of admissions, both in respect of "free seats" as well as in respect of "payment seats". Prior to that in Mohini Jain v. State of Karnataka (supra) also it was emphasised that merit and merit alone should be the criteria for admission to the Medical Colleges. In all subsequent pronouncements of the Apex Court, the principle of merit and merit alone has been reiterated in so far as the admission to the professional colleges are concerned. The question of N.R.I. quota came up before the Apex Court for the first time in review petition in Unni Krishnan's case, 1993(4) S.C.C. 111 . It was pointed out therein that N.R.I. students shall be admitted on the basis of merit, but in view of different backgrounds they come from, it is for the management of the college concerned to judge the merit of these candidates, having regard to the relevant factors. It was made clear in the said judgment that the above provision does not preclude the Non-Resident Indian students from seeking admission either to free seats or payment seats along with others on the basis common to all. 10. In T.M.A. Pai Foundation v. State of Karnataka, 1993(4) S.C.C. 276 the Apex Court laid down that if N.R.Is./Foreign students are not available to fill up the seats within the said 15 per cent quota meant for them, it shall be open for the management to admit other students within the said quota. In the said case, the Apex Court passed further orders on interlocutory application on 11-8-1995 which are reported in 1995(III) A.D.S.C.(c) 415. The said orders relate to the N.R.I. quota for the academic year 1995-96, which is fixed at 15 per cent. It was pointed out therein that it shall be open to management to admit N.R.I. students and foreign students within this quota and in case they are not able to get the N.R.I. or foreign students upto the aforesaid specified percentage, it shall be open to them to admit students on their own, in order of merit, within the said quota (emphasis supplied). 11. In the above background, we shall now examine the petitioner's case. There is no doubt that the sole criteria for admissions has been spelt out as merit and merit alone and in each category meritorious students have to be preferred. 11. In the above background, we shall now examine the petitioner's case. There is no doubt that the sole criteria for admissions has been spelt out as merit and merit alone and in each category meritorious students have to be preferred. Rule 4.1.0. provides for 15 per cent seats at the Government Colleges which have to be reserved for candidates of All India Entrance Examination and remaining 85 per cent seats form denominator for calculation of number of seats under various sub-categories at the colleges. Rule 4.1.1 provides that out of remaining seats (85 per cent), all seats at Government Colleges and 50 per cent of the seats at private colleges will be treated as free seats. Balance 50 per cent seats of private colleges will be treated as payment seats. The said Rule further lays down that not more than 15 per cent ( it was 5% in prospectus, but it has been raised to 15% by Apex Court) on total seats within the category of payment seats are permitted to be filled in on the basis of merit by the private colleges by sons and daughters of N.R.Is./Foreign Nationals. The important words in the last two lines of Rule 4.1.1 would clinch the controversy in this petition and the said words are "Excepting these seats as well as the seats for nominees of Government of India, all remaining seats are at the disposal of the Competent Authority." The expression "Excepting these seats" refers to 15 per cent N.R.Is./Foreign National quota and these seats are not at the disposal of the competent authority. The question which requires consideration, at this stage, is as to what would be the method of filling seats which are left out of the N.R.Is./Foreign Student's quota in case such students are not available. The contention of the learned advocate Shri Anjan De is that the waiting list prepared under Rule 8.2.1.1 has to be exhausted for filling such vacancies. On the other hand, the contention of the learned advocate Shri Bobde and learned Government Advocate Shri Kukdey is that such left out seats can be filled by the private colleges without reference to the said waiting list. In our opinion, there is no substance in the contentions advanced by learned advocate Shri Anjan De. On the other hand, the contention of the learned advocate Shri Bobde and learned Government Advocate Shri Kukdey is that such left out seats can be filled by the private colleges without reference to the said waiting list. In our opinion, there is no substance in the contentions advanced by learned advocate Shri Anjan De. The scheme of the rules clearly spells out that the wait listed applications operate against casual or drop out seats at the disposal of the competent authority. The last four lines of Rule 8.0.4.1 clearly lay down that those candidates who do not join or remain absent and fail to pay the fees or refuse admission, such seats will be treated as drop out/casual vacancies and the waiting list will be operative for making selection against such drop out/casual vacancies. The selection process which is spoken of under Rules 8.0.3 and 8.0.4.1 has reference to Rules 4.1.3.2 and 4.1.3.3 which deal with the open merit category seats which are at the disposal of the competent authority. Rule 8.2.1.3 and Rule 8.2.1.4 provide for filling up of the vacancies by the designated authorities in respect of seats at the disposal of the competent authority. As already stated, under Rule 4.1.1 a separate class namely N.R.I./Foreign National quota has been carved out which is not at the disposal of the competent authority and admissions against this quota are to be finalised by the private colleges. There is, thus, no question of reverting to the waiting list under Rule 8.2.1.1 in cases where there are no sufficient applications for filling N.R.I. quota. The Apex Court in T.M.A. Pai Foundation v. State of Karnataka, 1993(4) S.C.C. 276 , has clearly laid down that if N.R.Is./Foreign students are not available to fill up all the seats within the said 15 per cent meant for them, it shall be open for the management to admit other students within the said quota. In order on the interlocutory application passed on 11-8-1995 in the same case (1995) III A.D.S.C.(c) 415, the Apex Court has again reiterated that in case of 15 per cent N.R.I. quota, it shall be open to the management to admit N.R.I. students and foreign students within this quota and in case they are not able to get the N.R.Is. In order on the interlocutory application passed on 11-8-1995 in the same case (1995) III A.D.S.C.(c) 415, the Apex Court has again reiterated that in case of 15 per cent N.R.I. quota, it shall be open to the management to admit N.R.I. students and foreign students within this quota and in case they are not able to get the N.R.Is. or Foreign students upto the aforesaid specified percentage, it shall be open to them to admit students on their own, in order of merit within the said quota. Therefore, we do not find any force in the submissions of learned advocate Shri Anjan De in this respect. 11-A. We shall now deal with the next argument advanced by learned advocate Shri Anjan De that private colleges cannot advertise to fill up the left out seats out of N.R.Is./Foreign students quota. In support of this submission, he relied on sub-para (4) of para 170 of the judgement in Unni Krishnan's case A.I.R. 1993 S.C. 2178, which reads as under:- No professional college shall call for applications for admission separately or individually. All the applications for admission to all the seats available in such colleges shall be called for by the competent authority alone, along with applications for admission to Government/University colleges of similar nature. For example, there shall be only one notification by the competent authority calling for applications for all the medical colleges in the State and one notification for all the engineering colleges in the State and so on. The application forms for admission shall be issued by the competent authority (from such offices centres and places as he may direct). The application form shall contain a column or a separate part wherein an applicant can indicate whether he wishes to be admitted against a payment seat and the order of preference, upto three professional colleges." It is pertinent to note that the Apex Court was dealing with the situation where 50 per cent seats were free seats and the remaining 50 per cent seats were payment seats and the question of N.R.Is./Foreign students quota was not before the Apex Court in the said case. N.R.I./Foreign students quota was for the first time carved out in review petition in Unni Krishanan's case 1993(4) S.C.C. 111 . Therefore, we do not find any merit in the contention of learned advocate Shri Anjan De on this aspect. 12. N.R.I./Foreign students quota was for the first time carved out in review petition in Unni Krishanan's case 1993(4) S.C.C. 111 . Therefore, we do not find any merit in the contention of learned advocate Shri Anjan De on this aspect. 12. The last submission which has been placed by the learned advocate Shri Anjan De before us is that in view of Rule 7.0.1, the petitioner could not have applied in pursuance of advertisement issued by the respondent Nos. 4 and 5 before the cut off date, because in the eventuality of her filing an application she would be disqualified under the said provision. The argument is misconceived inasmuch as Rule 7.0.1. is in relation to the seats at the disposal of the competent authority and it has no application whatsoever to the N.R.I./Foreign students quota or left over seats from the said quota. All seats which are at the disposal of the competent authority have to be filled up before the cut off date by the competent authority. In respect of the seats at the Government colleges which fell vacant even after the cut off date, the selections are to be made by the competent authority on the basis of merit from amongst the wait listed candidates, as per Rule 8.4.6. However, the position in relation to the private colleges is somewhat different as can be seen from Rule 8.4.5. In private colleges, if any seats which were filled by the competent authority fall vacant after the cut off date, Rule 8.4.5 authorises the private colleges to fill up such vacant seats after cut off date. Rule 8.4.5 does not apply to the N.R.I./Foreign students or left out seats out of the said quota which are not at the disposal of the competent authority and are to be filled in by the private colleges without any reference to the competent authority. Of course, while filling up N.R.I./Foreign students quota and the seats left out of the said quota, the private colleges shall have to follow the rule of merit amongst the candidates who apply for the said seats. 13. The ruling of Division Bench of this Court reported in Sarika Shivprakash Sharma v. State of Maharashtra, (supra) has no application to the facts and circumstances of the petition before us. 13. The ruling of Division Bench of this Court reported in Sarika Shivprakash Sharma v. State of Maharashtra, (supra) has no application to the facts and circumstances of the petition before us. In the said case, the petitioner has applied against the left out N.R.I./Foreign students quota seats and the private college concerned therein has not given admission to the petitioner inspite of the fact that she had higher percentage of marks than the students who were admitted in the college. The rule of inter se merit amongst the applicants had not been followed and the Division Bench of this Court had instructed the concerned college to admit the petitioner since inter-se merit rule amongst the applicants before the college had not been followed. As we have already stated, the petitioner had not applied at all for admission against any of the left out seats from N.R.I./Foreign students quota and as such the question of her being considered along with the students who had filed applications does not arise. 14. For the reasons mentioned above, we do not find any merit in this petition. Accordingly, the petition is hereby rejected. Rule stands discharged. In the facts and circumstances, there shall be no order as to costs. Petition dismissed.