Brijesh Kumar, C. J. -All the above noted three appeals arise out of the judgment and order dated 2.2.2000 passed by the learned Single Judge in Writ Petition (C) No. 3234 of 1999. These appeals, therefore, have been heard together and are being disposed of by one judgment. 2. The dispute relates to the admission to the Post Graduate Medical Courses in the Gauhati Medical College, Guwahati. Admission given to the three appellants of the above noted writ appeals were impugned by the respondents Dr. Runumi Choudhury and Dr. Putul Mahanta by filing Writ Petition (C) 3234 of 1999. The writ petition was allowed by the learned Single Judge by order dated 2.2.2000 and the authorities were directed to re-allot the seats as per the Rules and the guidelines given in the case reported in 1998 (1) GLT 480 (Binod Nath & others vs. State of Assam & others). (1998 (1) GLJ 495). The appellants in the above noted three appeals had been impleaded as respondents in the writ petition. They have, filed separate appeals, as indicated above. 3. We have heard Shri AK Bhattacharyya and Shri HN Sarma, counsel for the appellants, Sri I. Choudhury, counsel for respondents 1 and 2 and Shri BC Das, learned State counsel for the other respondents. 4. The Entrance Examination for different PG courses for the session 1995-96 took place in August, 1996. The merit position of the appellants and the respondents and the marks obtained by them are as follows: Candidates Marks secured Merit position 1. Dr. Runumi Choudhury 412 198 2. Dr. Chandra Sekhar Bhattacharjee 408 209 3. Dr. Rashmi Ahmed 406 212 4. Dr. Putul Mahanta 358 330 5. Dr. Reji S. Varghese 292 490 5. In the first counseling held in June, 1997 none of the above noted candidates were allotted any seat in any subject. In the second counseling held in May, 1998, Dr. Runumi Choudhury was allotted seat in MD Bio-Chemistry, Dr. Chandra Sekhar Bhattacharjee was allotted seat in MD, Forensic Science Medicine and Dr. Rashmi Ahmed in MD Physiology. Dr. Rashmi Ahmed, however, surrendered her seat in August, 1998 which was allotted in MD, Physiology. The third counseling took place in December, 1998. In this round of counseling Dr. Runumi Choudhury got a seat in MD, Micro-Biology, Dr. Putul Mahanta got in MD, Forensic Science Medicine and Dr. Rashmi Ahmed in MD Physiology. Dr. Rashmi Ahmed, however, surrendered her seat in August, 1998 which was allotted in MD, Physiology. The third counseling took place in December, 1998. In this round of counseling Dr. Runumi Choudhury got a seat in MD, Micro-Biology, Dr. Putul Mahanta got in MD, Forensic Science Medicine and Dr. Chandra Sekhar Bhattacharjee got in MD, Social Preventive Medicine (SPM). He, however, surrendered the said seat on 15.2.99 requesting that as and when any seat would be available in Pediatrics he may be considered for the same. In pursuance of the counseling Dr. Runumi Choudhury joined in MD, Micro-Biology in January, 1999 and Dr. Putul Mahanta in MD Forensic Science Medicine. 6. In June, 1999, the petitioners in Writ Petition (C) 3234 of 1999 Dr. Runumi Choudhury and Dr. Putul Mahanta came to know that Dr. Chandra Sekhar Bhattacharjee has been allotted a seat in DCH (Paediatrics), Dr. Rashmi Ahmed a seat in MD (Social Preventive Medicine) and Dr. RS Varghese a seat in DA (Anaesthesiology) (Diploma Course). The petitioners' grievances are that no information was given to them nor any advertisement or notice was circulated about the availability of the seats in the courses of DCH (Paediatrics), MD, (SPM) and DA (Anaesthesiology). Petitioner No.l Dr. Runumi Choudhury had given her choice/preference for DCH (Pediatrics) and DA (Anaesthesiology), MD (Micro-Biology) which course she had joined was not a subject of her choice. Her case is that she has her merit and she holds 198th position and is compelled to go through the course of MD, Micro-Biology whereas seat in subject and course of her choice DCH (Pediatrics) has been allotted to Dr. Chandra Sekhar Bhattacharjee whose position in the merit list is in 209. 7. So far as the case of Dr. Putul Mahanta is concerned it is that his merit is higher in comparison to that of Dr. Reji S. Varghese. If notice was published and counseling had taken place, he would have preferred a seat in DA (Anaesthesiology) which has gone to Dr. Reji S. Varghese. There is, however, S no dispute about the fact that Dr. Putul Mahanta had not given preference/ choice for- DA (Anaesthesiology) and on the other hand, it was for Social Preventive Medicine, MD, Micro-Biology and Pharmacology. 8. Reji S. Varghese. There is, however, S no dispute about the fact that Dr. Putul Mahanta had not given preference/ choice for- DA (Anaesthesiology) and on the other hand, it was for Social Preventive Medicine, MD, Micro-Biology and Pharmacology. 8. It has also been the case of the petitioners-respondents that the allotment of seats as made in June, 1999 without counseling is also not fair and free from suspicion. In that connection it has been their case that Dr. Rashmi Ahmed is the daughter of the Principal of the Medical College and she had surrendered her seat as-allotted to her in second counseling in MD, Physiology as she wanted a seat in MD, Social Preventive Medicine (SPM). Dr. Chandra Sekhar Bhattacharjee who was allotted a seat in MD, Social Preventive Medicine in third counselling in December, 1998 surrendered it on 15.2.99. The said seat was allotted to Dr. Rashmi Ahmed without any counseling or notice in June, 1999 and on surrender of seat by Dr. Chandra Sekhar Bhattacharjee on 15.2.99 he was accommodated in DCH (Pediatrics) and seat in DA (Anaesthesiology) was also allotted to Dr. Reji S. Varghese. The learned Single Judge considered the whole matter and while rejecting the objection of the appellants, who were the respondents in the writ petition about the maintainability of the joint petition preferred by Dr. Runumi Choudhury and Dr. Putul Mahanta held that in view of the decision in the case of Binod Nath it was necessary to hold a fresh counseling on availability of seats in DCH Course and MD, Social Preventive Medicine Course or DA, Anaesthesiology. Admission should have been strictly in accordance with merit. But in not doing so the guidelines as laid down in the case of Binod Nath (supra) has been violated. It was also noted that Dr. Rashmi Ahmed who had surrendered her seat in Physiology in August, 1998 in second counseling was not considered in the third counseling held in December, 1998. It is noticed that Dr. Chandra Sekhar Bhattacharjee was accommodated in DCH (Pediatrics) after someone of his surrendering his seat in MD, Social Preventive Medicine (SPM). It is noticed that according to the petitioner this was done under mutual arrangement between , Dr. Chandra Sekhar Bhattacharjee and Dr. Rashmi Ahmed on a promise made to Dr. Chandra Sekhar Bhattacharjee to accommodate him in DCH (Paediatrics). Chandra Sekhar Bhattacharjee was accommodated in DCH (Pediatrics) after someone of his surrendering his seat in MD, Social Preventive Medicine (SPM). It is noticed that according to the petitioner this was done under mutual arrangement between , Dr. Chandra Sekhar Bhattacharjee and Dr. Rashmi Ahmed on a promise made to Dr. Chandra Sekhar Bhattacharjee to accommodate him in DCH (Paediatrics). In the above circumstances, the learned Single Judge ordered for fresh counseling in accordance with law. The case of the State has been that since there were only a few seats and Dr. Chandra Sekhar Bhattacharjee had already surrendered his seat in MD, Social Preventive Medicine, he was however offered a seat in DCH, Pediatrics in the interest of the institution in general and indoor patients in particular and therefore it was not considered expedient to hold counseling through publication. The said plea has not been accepted by the learned Single Judge. 9. The admission to the Post Graduate courses of Medical Colleges are governed by the Assam Medical Colleges (Regulation of Admission to Post Graduate Courses in Medical Colleges of Assam) Rules, 1994, herein after referred to as 'the Rules'. The relevant Rules are being quoted below : “7. (d) Selection of subject by a candidate shall be on the basis of merit in the Entrance Examination. Each candidate shall be allowed the option for three preferences of subjects only in PG Courses inclusive of both Degree and Diploma. If he/she cannot be provided the subject of choice on the basis of merit, the candidate shall be provided a seat from the remaining subjects after counseling in the interview.” Rule 14 (h) reads as follows : “The selection of candidate for admission shall strictly on merit on the basis of marks' secured in the Entrance Examination by the candidate.” 10. In the light of the above noted Rules and several decisions regarding admission to the Post Graduate Courses in Medical Colleges, this Court in case reported in 1998 (1) GLT 480 (Binod Nath & others vs. State of Assam & others) (1998 (1) GLJ 495) held in paragraph 36 of the judgment as follows: “36. In the light of the above noted Rules and several decisions regarding admission to the Post Graduate Courses in Medical Colleges, this Court in case reported in 1998 (1) GLT 480 (Binod Nath & others vs. State of Assam & others) (1998 (1) GLJ 495) held in paragraph 36 of the judgment as follows: “36. In the light of the guidelines given by the Supreme Court in Saurabh Mathur case (supra), it is abundantly made clear that even on consideration of the matter afresh the competent authority should take into consideration the option given by the meritorious candidates found in the first list securing higher marks than those found in the waiting list, with a view to offer the discipline or subject matter of their choice first and then, after complying with his requirement, go down to the candidates having scored lesser marks, with a view to consider their case according to their choice, depending upon the vacancies available for allotment. This is the main scheme of the several rulings of the Supreme Court....” 11. The position under the Rules and the proposition as laid down in the case of Binod Nath (supra) after considering several decisions of the Supreme Court on the point is not in dispute by the appellants. On the other hand, it has been very fairly submitted that in case a seat was vacant it is to be allotted on fresh counseling on the basis of merit and choice of the candidate. In that view of the matter, it is submitted that the procedure as adopted by the authorities in the present case in respect of allotment of seats including to the parties of these cases by having first round, second round and third round of counseling was the procedure in accordance with law and the same was rightly adopted. But in so far as the orders passed by the authorities in June, 1999 allotting seats to the appellants without going through the similar exercise once again,-it is submitted that it is justified for the reason that at some stage this process of reconsideration and another round of counseling has to come to an end. But in so far as the orders passed by the authorities in June, 1999 allotting seats to the appellants without going through the similar exercise once again,-it is submitted that it is justified for the reason that at some stage this process of reconsideration and another round of counseling has to come to an end. It cannot be continued indefinitely as in that event it would tend to upset the settled position, namely, where students have undergone certain courses they have to be shifted from one course to the other, that would not be very desirable consequence in the e interest of the students and the courses which are going on in the Medical Colleges. On behalf of Dr. Chandra Sekhar Bhattacharjee, it has been particularly submitted that in case of any fresh counseling, namely, the 4th round of it if the seat is allotted to the petitioner-respondent, namely, Dr. Runumi Choudhury, it will upset the position since Dr. Runumi Choudhury had been allotted the subject of Micro-Biology in the third counseling in December, 1998 which course she had joined in January, 1999 and has already undergone about 6 (six) months of studies in that course. Therefore, the learned Single Judge should not have interfered in the order passed by the authorities in allotting DCH (Pediatrics) to Dr. Chandra Sekhar Bhattacharjee. So far Dr. Chandra Sekhar Bhattacharjee is concerned, it has already been indicated that he had already surrendered seat in Social Preventive Medicine (SPM) on 15.2.99 after taking admission in the said course in January, 1999 in pursuance of the third counseling held in 1998. Dr. Rashmi Ahmed had also not joined the course of MD Physiology offered in the second counseling and she was made available the seat in Social Preventive Medicine only in June, 1999. Dr. Reji S. Varghese was never offered seat in any of the counseling but without counseling he was given the seat in DA, Anaesthesiology in June, 1999. It may be noticed that at the time when the impugned orders were passed, Dr. Runumi Choudhury had undergone only 4/5 months of studies in MD, Micro-Biology and in case of none others any question of upsetting the position was involved. MD, Micro-Biology is a three-years course, undergoing five months out of the same by Dr. It may be noticed that at the time when the impugned orders were passed, Dr. Runumi Choudhury had undergone only 4/5 months of studies in MD, Micro-Biology and in case of none others any question of upsetting the position was involved. MD, Micro-Biology is a three-years course, undergoing five months out of the same by Dr. Runumi Choudhury is not a major part of the course which she can be said to have undergone so as to upset the position. In a this connection it may also be indicated that the writ petition was filed by the respondents on 29.6.99, i.e., immediately on passing of the impugned orders allotting seats to the appellants. Hence there was no loss of time in approaching the Court. In the above circumstances, the argument which has been advanced on behalf of the appellants that further counseling was not necessary and the authorities were justified in allotting the seats without any further counseling, does not hold water. It may also be indicated that if at all the objection could come from the side of the candidates whose studies were likely to get upset by the changes made. Dr. Runumi Choudhury had no such objection rather claimed her admission in DCH, Paediatrics. 12. So far the State is concerned, it has tried to justify not holding any further counseling before allotment of impugned seats in their written submission before the learned Single Judge. The written submission as quoted in the judgment of the learned Single Judge is as follows : “Further, the PG course students, who opted for frequent change of subjects, will never be in a position to complete the course within 3 years for Degree Course and 2 years for Diploma Course hereby causing loss of manpower resource not to speak of loss academic period and public exchequer. The PG students are Resident Surgeons/Physicians and their services are extremely required to run the Hospitals particularly indoor patients for which they are paid remuneration in the form of stipends. As it was considered expedient to hold counseling through publication of notice for a few seats and since Dr. Bhattacharjee had already surrendered the MD, SPM seats within one month of admission, so Dr. Bhattacharjee, has been offered the vacant seat in DCH in the interest of the institution 'in general and the indoor children patients in particular.” 13. As it was considered expedient to hold counseling through publication of notice for a few seats and since Dr. Bhattacharjee had already surrendered the MD, SPM seats within one month of admission, so Dr. Bhattacharjee, has been offered the vacant seat in DCH in the interest of the institution 'in general and the indoor children patients in particular.” 13. The above plea totally ignores the rules on the subject as quoted above and the guidelines as provided in the case of Binod Nath (supra). The authorities themselves made three counseling. In case it was thought that the students would not be able to complete their courses within the time prescribed if changes are allowed from time to time, it was open to the authorities to finalize the position as it stood and the seats are allowed to remain unfilled, i.e. those seats be allowed to remain as such so as to attach finality at some stage to the whole process of admission. But as soon as it is decided to allot the seats and make the admission it could perhaps be not possible to skip the criteria of admission, namely, according to merit and choice of the candidates. In this connection it is also noticeable that the Entrance Examination was held in 1996 and the result was published in August, 1996 and the first counseling took place in June, 1997, the second counseling in May, 1998 and the third counseling in December, 1998. On availability of some more seats the procedure of further round of counseling as had been adopted was abandoned and the seats were filled up without notice to any one and without considering the claims of others on merit and choice basis. As observed earlier no such decision was taken by the authorities to finalise the things as it stood after third counseling. 14. The justification which has been sought to be given in the written submission is that it was not considered expedient to hold counseling through publication of notice for a few seats, does not provide any excuse for not holding counseling. Number of seats hardly has any relevance not to offer the available seats to the eligible candidates and to allot the same to another by passing a more meritorious candidate. Number of seats hardly has any relevance not to offer the available seats to the eligible candidates and to allot the same to another by passing a more meritorious candidate. It is also not understandable how it was in the interest of institution in general and the indoor patient in particular by offering the seat of Dr. Chandra Sekhar Bhattacharjee and why the same interest could not be served by offering the seat to a more meritorious candidate. Nothing has been indicated to show that it was by allotting the seat to Dr. Chandra Sekhar Bhattacharjee that the interest of the institution and the indoor children patient could be served and not otherwise. 15. So far as the question of upsetting the studies of the students at the time when the order was passed by the learned Single Judge is concerned, it may be observed that the order has been passed on 2.2.2000. The petitioner Dr. Runumi Choudhury by then may have undergone about one year of the course in Micro-Biology, but as indicated above, she had very promptly challenged the impugned action of the authorities immediately after the order was passed and by that time she had undergone about 4/5 months in MD, Micro-Biology. The duration of the course is three years, out of which she had undergone one-third by now. So far the appellants are concerned they may have undergone the period of studies after joining the course after the order passed in June, 1999 which period would be about a little more than one-fourth of the total period of Diploma Course and one-sixth of the MD Course. So far Dr. Runumi Choudhury is concerned, she was keen to join the DCH (Paediatrics) which was the subject of her preference, even though about one-third period of her studies in MD, Micro-Biology may by now be over. In the above circumstances, the appellants cannot make out any. case that the learned Single Judge erred in interfering with the orders passed by the authorities in June, 1998. In the above circumstances, the appellants cannot make out any. case that the learned Single Judge erred in interfering with the orders passed by the authorities in June, 1998. So far the question of continuing the courses of study in case the admissions are not in accordance with the rules, it has been submitted on behalf of the appellants that in a case reported in 1995 Supp (1) SCC 155 (K. Sujatha vs. Marathwada University & others) the students were allowed to continue though it was found that the admission was not in accordance with the rules but one of the consideration in continuing in the course was that the seat was still lying vacant and no one else was to utilise the seat in case the appellant was not permitted to join. That being the position, the said case would not be of any help to the petitioner. The other case which has been relied upon is reported in (1984) 1 GLR 254 (Dr. Abul Hussain vs. State of Assam & others). In this case those who were wrongly admitted in the institution were allowed to pursue the course but at the same time it is to be found that those who were deprived of those seats, it was provide that they would be given, admission by increasing two seats. The candidates who were not admitted, according to the rules their continuance were with some reluctance and it was observed that those who were deprived of their rightful place they could be suitably compensated or the candidates given admission, against the rules be replaced by striking them off the rolls and inducting the better and meritorious candidates but it was observed, “..... but we leave such a course of action for the future.” It is rightly pointed out on behalf of the respondents that the said observation was made more than 15 years ago but the authorities are conducting themselves in the same manner. Therefore there is no option left but to provide admission to the rightful candidates replacing those who were not admitted rightfully. Learned counsel for the respondents has also relied upon the decision reported in 1995 Supp (1) SCC 188 (Gurdeep Singh vs. State of J&K & others). Excerpt from the above judgment has also been quoted by the learned Single Judge. Learned counsel for the respondents has also relied upon the decision reported in 1995 Supp (1) SCC 188 (Gurdeep Singh vs. State of J&K & others). Excerpt from the above judgment has also been quoted by the learned Single Judge. The continuance of such candidates who got wrongful admission was not considered to be fit. 16. From the discussion held above, it is clear that the admissions to the Post Graduate Medical Courses have to be made on the basis of merit-cum-choice of the candidates. In case seats are vacant, the only appropriate and permissible method to fill up the seats is to publish the notice and go through the next counselling in order to scrutinise the rightful claim made on the basis of merit and choice. It is not necessary to refer to any more case laws on the point nor the said proposition is in dispute. In the present case though initially subsequent counselling were resorted to on the seats being available or falling vacant but the authorities chose not to resort to the same process and allotted the seats in June, 1999 without notice, admittedly leaving more meritorious candidates with the preferences for the seat allotted to a candidate of lesser merit. The justification which has come forward from the State is not sustainable. As submitted on behalf of the appellants if the findings have to be finalised and further counselling has to be stopped it would be only appropriate to finalise the things as they are or at least an offer be made to a candidate who, according to the authorities, will be affected by change of course and in case that a candidate feels that he may not like to get the admission at a later stage then the change may not be done. But there is a case where the candidate was never offered the seat of her choice and she was also not asked as to whether she would like to change over or not. The candidate is still pursuing to have that seat. It is not the case that she would be disturbed in her studies in MD Micro-Biology. The only available argument of loss of man-power resource as put forward on behalf of the State would be a lame excuse to justify wrong done and to perpetuate the same. The candidate is still pursuing to have that seat. It is not the case that she would be disturbed in her studies in MD Micro-Biology. The only available argument of loss of man-power resource as put forward on behalf of the State would be a lame excuse to justify wrong done and to perpetuate the same. As indicated earlier at the time when the order was passed she had only gone through 4/5 months studies of a course of three years and about one year when the order was passed by the learned Single Judge. The submission that it is not the fault of the appellants, would equally be also the case of the respondents that there is no fault on their part either. Whose interest is-to be protected ? Obviously one who has derived benefit out of fault of authorities may have to give way to those who are also not at fault and have been very prompt in coming to the Court to get the wrong set right. 17. The next point which has been raised on behalf of the petitioner is that the whole exercise of allotment of seats in June, 1999 was malafide. In connection with the above allegation, the petitioner's case is that Dr. Rashmi Ahmed is the daughter of the Principal of the Medical College. In the second counselling she was allotted the seat in MD, Physiology but she had surrendered that seat in August, 1998. She was interested in MD, Social Preventive Medicine (SPM). In the third counselling in order of merit and choice subject of MD, Social Preventive Medicine went to Dr. Chandra Sekhar Bhattacharjee; Dr. Rashmi Ahmed may have been considered but did not get the seat. Within a few months of allotment of seat in MD, SPM, Dr. Chandra Sekhar Bhattacharjee surrendered it on 15.2.99 with a request that as and when any seat in Paediatrics may be available he may be considered for the same and in the next move in June; 1999 the seat left by Dr. Chandra Sekhar Bhattacharjee was allotted to Dr. Rashmi Ahmed and Dr. Chandra Sekhar Bhattacharjee was allotted the seat in Paediatrics. The allegation is that since the father of Dr. Rashmi Ahmed was the Principal of the college and was in know of the things, Dr. Chandra Sekhar Bhattacharjee was allotted to Dr. Rashmi Ahmed and Dr. Chandra Sekhar Bhattacharjee was allotted the seat in Paediatrics. The allegation is that since the father of Dr. Rashmi Ahmed was the Principal of the college and was in know of the things, Dr. Chandra Sekhar Bhattacharjee was asked to surrender the seat in MD, SPM with a promise to accommodate him in Paediatrics Post Graduate Course. The above allegations have been refuted and the learned counsel for the appellants has drawn our attention to letter written to the authorities by the Principal in May, 1999 that a seat in DCH, Paediatrics was available for being filled up. A copy of the said letter has been annexed along with the memo of appeal which is dated May 6th, 1999 informing the Director of Medical Education, Assam that Dr. (Ms) Krishna Das who was admitted in DCH on 5.6.97 did not join in the department till then as per report of the Head of the Department, Paediatrics vide his letter dated 3.2.99. On the basis of the above letter it is submitted that the authorities came to know about the vacant seat in DCH, Paediatrics only in May, 1999 therefore there was no reason of any kind of understanding with Dr. Chandra Sekhar Bhattacharjee to surrender his seat in MD, SPM on 15.2.99. Learned counsel for the respondent has rightly pointed out that the Principal was informed of the vacancy by letter dated 3.2.99 written by the Head of Department of Paediatrics. Therefore, by 15.2.99 it was well within the knowledge of the Principal about a seat being available in DCH, Paediatrics. The submission in the above circumstances is that it is an indicator to the point that Dr. Chandra Sekhar Bhattacharjee was asked to surrender that seat with a promise to accommodate him in DCH, Paediatrics and to allot MD, SPM to Dr. Rashmi Ahmed. Therefore, it is submitted that the vacancies were not notified and the seats were filled up in June, 1999 without counselling. Otherwise the said arrangement made in June, 1999 would not have been possible. Rashmi Ahmed. Therefore, it is submitted that the vacancies were not notified and the seats were filled up in June, 1999 without counselling. Otherwise the said arrangement made in June, 1999 would not have been possible. We also find that a seat on which a candidate had not joined after her admission on 5.6.97, the Head of Department sent an intimation only in February, 1999 and the Principal after receiving that information in February, 1999 informed about it to the authorities only in May, 1999, after three months of the information given to him. An effort was made to submit on behalf of the appellant that the seat was available only after one Dr. Haque had not joined it after it was allotted to him in third counselling in December, 1998. But the learned counsel, for the respondent has drawn our attention to the affidavit-in-opposition filed by the State clearly indicating that the authorities came to know about the seat in DCH being available only in May, 1999. This averment is obviously referable to the letter of the Principal dated 6.5.99. The learned Single Judge has considered this aspect of the matter as well. On behalf of the appellant, it is submitted that if the allegations of malafide a have been made against Principal, on the ground that his daughter was allotted a seat in MD, SPM he should have been impleaded as a party by name. Respondents' counsel, however, indicates that the Principal is impleaded by designation. 18. However, even though it may not be possible to record a clear finding of malafide, yet the facts and circumstances which have been indicated above definitely show that things have not been going on the way they should be. The vacancy caused in 1997 is reported by the Head of Department only in February, 1999. Within a few days of the said intimation Dr. Chandra Sekhar Bhattacharjee surrendered his seat in MD, SPM indicating his desire to be considered against any seat in Paediatrics in future, if available, and that desire is fulfilled without counselling or notice in June, 1999, and in the same chain Dr. Rashmi Ahmed gets MD, SPM, the seat vacated by Dr. CS Bhattacharjee. All facts put together only give a hazy picture of the whole affair. 19. Rashmi Ahmed gets MD, SPM, the seat vacated by Dr. CS Bhattacharjee. All facts put together only give a hazy picture of the whole affair. 19. Yet another contention which has been raised on behalf of the appellants and as also raised before the learned Single Judge is about the maintainability of the joint writ petition. Shri AK Bhattacharyya, learned senior counsel for the appellants has vehemently urged that joint writ petition was not maintainable. The matter related to the admission to different courses. Dr. Runumi Choudhury had no grievance against the admission of Dr. Reji S. Varghese in DA, Anaesthesiology nor Dr. Putul Mahanta could have any grievance about the admission in DCH, Paediatrics. There was thus nothing common by reason of which that they could join in filing the writ petition. The learned Single Judge has dealt with the question and we find no reason to interfere in the order of the learned Single Judge on the point. In any case, the fact remains that the common ground for both the petitioners has been that they were aggrieved by the allotment of seats made in June, 1999 without counselling and notice to any other candidate. Such allotment of seats in case is bad at least on this point that joint petition can well be entertained. So far individual petitioners are concerned, their cases would t obviously be considered on their own merit. Despite common finding on the common point about the allotment being invalid in absence of proper notice and counselling their cases have to be considered in the background of their individual merit. One petitioner cannot take benefit of individual merit of the other. 20. We, therefore, find no merit in this submission also as made on behalf of the appellants. 21. Now it is only to be seen as to whether a petition on behalf of Dr. Putul Mahanta could be maintainable or not as against the allotment of seat to Dr. Reji S. Varghese in DA, Anaesthesiology. There is no dispute about the fact that D»r. Varghese stands nowhere in merit as compared to Dr: Putul Mahanta but it is not in dispute that Dr. Putul Mahanta had not given his choice for admission in DA, Anaesthesiology. We feel that while considering the question of admission in PG Courses choice also plays a very vital role along with merit of a candidate. Putul Mahanta had not given his choice for admission in DA, Anaesthesiology. We feel that while considering the question of admission in PG Courses choice also plays a very vital role along with merit of a candidate. Learned counsel for the respondent Dr. Putul Mahanta submits that in the writ petition it has been indicated that he would prefer to be allotted a seat in DA, a Anaesthesiology. Therefore, that request may be considered looking to the fact that he stands on a better footing as regards merit. The claim of the petitioner Dr. Putul Mahanta to be allotted a seat in DA, Anaesthesiology may or may not be acceptable but it cannot be said that he would have no right to file a petition with a request that he should be given a seat in DA, Anaesthesiology and had counselling been done he might have indicated his preference during the counselling for DA, Anaesthesiology. Such a plea may have to be considered on merit but it cannot be said that he could not file a petition with such a request and would cut the matter in the root on the question of maintainability of the petition. We, therefore, find that the question of maintainability may not be involved and the petitioner could file a petition joining with Dr. Runumi Choudhury which was not totally impermissible. One merits his case is liable to be considered separately according to his own merit ranking and the choice. 22. Learned counsel for the appellant Dr. Reji S. Varghese submits, Dr. Putul Mahanta having not given his choice in DA, Anaesthesiology will have no cause to challenge the admission of the appellant Dr. Varghese. In this connection it may be observed that according to the petitioner Dr. Putul Mahanta, he had raised a claim for the seat in DA, Anaesthesiology Course in the writ petition. If allotment of seat is to be considered it must be in accordance with merit irrespective of the fact as to whether a candidate has given a choice for a particular subject or not. We find no merit in the claim raised by the petitioner Dr. Putul Mahanta. There is no doubt that allotment of seats have to be made taking into consideration merit-cum-choice. The candidates are to be considered according to the choice given for a particular subject in the light of their inter-se merit position. We find no merit in the claim raised by the petitioner Dr. Putul Mahanta. There is no doubt that allotment of seats have to be made taking into consideration merit-cum-choice. The candidates are to be considered according to the choice given for a particular subject in the light of their inter-se merit position. That is to say inter-se merit position is to be considered in relation to the choice given and all those who have given choice for a particular subject to be allotted a seat shall be considered according to the merit confined for a given choice. It would not be that the subject or a seat is to be offered to all of those who may have better merit but had not given choice for the subject. In this view of the matter the petitioner Dr. Putul Mahanta will have no claim for admission to. DA, Anaesthesiology so long a candidate who had indicated his choice for the subject is available. It would be different case if a seat is intended to be allotted and no one is available who may have given choice for subject then of course the offer may be made in order of merit amongst those who had not earlier given their choice of the subject but not otherwise. The fact, however, remains that before allotting a seat in a particular discipline it has to be offered to all those having higher merit and having given choice for that particular subject. If no one is available having given choice in a particular subject then the position would of course be different as pleaded on behalf of Dr. Putul Mahanta. This is how the authorities are required to and under the law. It is not always that there must always be a direction or an order by Court in a writ petition. This is a settled proposition that higher in merit in a particular subject is to be offered the seat first. The claim thus made by Dr. Putul Mahanta against the seat in DA, Anaesthesiology on the basis of such a desire expressed or choice given in the writ petition is not sustainable. But the authorities before allotting the seat in DA, Anaesthesiology have to make the offer to those who may have given choice for the subject and have better merit. 23. Putul Mahanta against the seat in DA, Anaesthesiology on the basis of such a desire expressed or choice given in the writ petition is not sustainable. But the authorities before allotting the seat in DA, Anaesthesiology have to make the offer to those who may have given choice for the subject and have better merit. 23. In the result Writ Appeal Nos 67 and 68 of 2000 are dismissed and so far the Writ Appeal No. 79 of 2000 is concerned, it is only partly allowed to the extent that Dr. Putul Mahanta will have no claim for consideration as against the seat allotted to Dr. Reji S Varghese in DA, Anaesthesiology but in case any other candidate better in merit having given choice in the DA, Anaesthesiology , is available, as required under law, will be given an offer. 24. Since the matter pertains to the admission to Medical Courses and sufficient time has also elapsed immediate action without any further loss of time is required at the instance of the authorities. They will act with utmost urgency without any further loss of time. There will however be no order as to costs.