TIRATH SINGH THAKUR, J. ( 1 ) WHEN candidates are in excess of the available vacancies, the solution lies in making a selection based on merit. The primary object of any such exercise as also the Rules governing the same, is to secure the best and the most meritorious candidates. That indeed, is the very essence of the guarantee contained in Articles 14 and 16 of the Constitution in regard not only to admission made to educational Institutions but employment under the State also. The above is however, subject to one important caveat, viz the merit rule, does not affect the power of the State to classify candidates, and reserve vacancies for them. If a classification is validly made those falling in a given category will compete only with others of their kind, no matter inter se merit, even in such a situation shall form the basis of selection. ( 2 ) IN relation to the selection of candidates, for admission to professional Colleges, the Courts have while recognising the compelling need to select the best frowned upon devices that may have the effect of sacrificing merit. In P. RAJENDRAN vs STATE of MADRAS the apex Court struck down a rule made by the State of Madras, under which seats could be allocated in Medical Colleges on District-Wise basis. In MINOR A. PERIAKARUPPAN AND others vs STATE OF TAMILNADU the Court struck down a unit- wise selection of candidates for allotment to Medical Colleges in the state of Tamil Nadu, according to which, the Colleges in the State of Madras, were constituted as one Unit and those in mofussil areas as separate Units for purposes of selection and admission to the same. The Court in both the cases categorically declared that in the absence of any valid reason the effort has to be to select the best among the available and if a departure is to be made from that principle, it must be justified on the touch-stone of Article 14. This position was reviewed and reiterated by the Supreme Court in Dr. PRADEEP JAIN vs UNION OF INDIA The Court in that case was examining the circumstances in which Departure from the principle of selection based on merit could be justified. Two consideration could observed their lordships justify a departure from the principle of selection based on merit. This position was reviewed and reiterated by the Supreme Court in Dr. PRADEEP JAIN vs UNION OF INDIA The Court in that case was examining the circumstances in which Departure from the principle of selection based on merit could be justified. Two consideration could observed their lordships justify a departure from the principle of selection based on merit. One declared the Court is "state interest" and the other described as "regions claim of backwardness". The legitimacy of the former, stood recognised by the apex Court in d. P. JOSHI vs STATE OF MADHYA PRADESH and P. RAJENDRAN's case (supra ). Those cases observed the Court, showed that the State interest in providing adequate Medical facilities to the people of State by imparting medical education to students who by reason of their residence in the State are likely to settle down and serve the people of the State as doctors, was regarded by the Court as a legitimate reason for departing from the strict principle of selection based on merit. Institutional preference was yet another reason for which the merit rule could be departed from as held by the Supreme Court in D. N. CHANCHALA, ETC vs THE state OF MYSORE AND OTHERS. In so far as claim of backwardness made on behalf of any particular region was concerned, the Court observed as under: "the second consideration which has legitimately weighed with the Courts in diluting the principle of selection based on merits is the claim of backwardness made on behalf of any particular region. There have been cases where students residing in a backward region have been given preferential treatment in admissions to medical colleges and such preferential treatment has been upheld on the ground that though apparently discriminatory against others, it is intended to correct the imbalance or handicap from which the students from the backward region are suffering and thus bringing about real equality in the larger sense. Such preferential treatment for those residing in the backward region is designed to produce equal opportunity on a broader basis by providing to neglected geographical or human areas an opportunity to rise which they would not have if no preferential treatment is given to them and they are treated on the same basis as others from admissions to medical colleges, because then they would never be able to compete with others more advantageously placed. If creatively and imaginatively applied, preferential treatment based on residence in a backward region can play a significant role in reducing preferential treatment would presumable satisfy the test of Article 14 because it would be calculated to redress the existing imbalance between different regions in the State. " ( 3 ) IN the instant case, departure from the merit Rule, is not sought to be justified either on the ground of 'state Interest' or on the claim of 'backwardness of any region'. The departure from merit rule, is sought to be justified only in the interest of a speedy finatisation of the selection process. Exclusion of the meritorious candidates is sanctioned by Rule 18 of what are known as Karnataka Selection of candidates for Admission to Engineering, Medical and Dental Course rules 1977. The said Rule generally lays down the procedure to be followed in the making of selections of which sub-rules (vii), (viii) and (ix) are relevant for the present. They read as under:-"rule 13: (vii) A seat surrendered or forfeited by a candidate who had obtained the admission order after complying with all the formalities shall be treated as casual vacancy; (viii) Soon after the completion of admission round the Special officer, shall publish in the premises of CET Cell a list containing the detahs of all the casual vacancies that arise till the date of publication of such a list. A notification shall be published in at least two newspapers with wide publication in the State announcing the publication of such a list; (ix) Gancidates who have already selected and received admission orders in any of and received admission orders in any of seek allotment of casual vacancy seats. " ( 4 ) IT is evident from the above, that the Special Officer, is required to publish a list containing the details of all the casual vacancies that have arisen till the date of such publication. It is also clear from sub-rule 9 (supra) that only such candidates as have not been already admitted to undergo any course are eligible for allotment against the casual vacancies. This implies that candidates who may otherwise be more meritorious are for no better reason then the allotment of a seat in their favour excluded from consideration. The question is whether such an exclusion only in the interest of a speedy finalisation of the selection is justified. This implies that candidates who may otherwise be more meritorious are for no better reason then the allotment of a seat in their favour excluded from consideration. The question is whether such an exclusion only in the interest of a speedy finalisation of the selection is justified. ( 5 ) IN UMESH HIREMATH vs THE GOVERNMENT OF KARNATAKA this Court had an occasion to examine the validity of the provisions extracted above, in the light of the anomalies that arise on account of a strict adherence to the same. This Court found that candidates that are lower in merit, than the petitioner iin that case, had been admitted to free seats in good Institutions only by reason of the fortuitous circumstance of such vacancies becoming available as casual vacancies. Reference in particular was made to as many 33 eight students who had been admitted against casual vacancies in the free seats category even when candidates with much higher merit were available and could have claimed such seats but for the disqualification contained in Rule 18{ix) (supra ). Exclusion of other candidates only on account of allotment of seats in their favour was not found to be a sufficient justification in all situations. The Rule was, declared this Court perilously close to being unconstitutional calling for a second look and appropriate remedial steps. The following passage is noteworthy in this regard:- "it would thus appear that those relatively low in merit have by reason of the provisions of Rule 18 (ix) benefited and secured seats in the General Merit (Free Seats) category while others, who had secured better ranks in the overall merit list were denied such seats. This is a patent anomaly, difficult countenance. While it is permissible for the Rule making authority to reduce the zone of consideration so as to ensure the completion of admission process within a reasonable time and start of the academic session without causing prejudice to the generality of the candidates admitted to the Course, yet any such Rule aimed at achieving that purpose cannot martyre the compelling requirement of the admissions being made only in accordance with the interse merit of the candidates. It is possible to say that in the interest of speedy finalisation of the selection process, it is necessary to prevent those admitted in one category from claiming consideration against a casual vacancy occurring in the very same category, but it may not be equally sound to say that those who have been admitted in the payment category of the seats are disqualified for consideration against casual vacancies occurring in the free seats category. The denial of any such consideration to candidates in the payment category will be patently unjust and therefore offensive to Article 14 of the Constitution, if such denial is supported by nothing except the need to finalise the admissions early. The sense of denial, which candidates with better merit would suffer by exclusion will be more severe than the prejudice resulting from a marginal delay in the completion of the admission process. The Rule in its present formes therefore perilously close to the vice of unconstitutionality and but for the fact that the challenge arises in the context of the previous year's admissions the same may have been declared to be ultravirus. The question may however arise even in future and may have to be re-examined very soon. Indeed Mr. Manjunath in his characteristic fairness did not dispute the possibility of an improvement in the position by reducing as far as possible the extent of prejudice that may occur to candidates on account of the exclusionary provisions contained in Rule 18. He did not see any serious difficulty in providing for consideration of candidates already admitted in the payment category of any discipline being considered against casual vacancies occurring in the free seats category in the same discipline. The Rule can, without defeating the purpose underlying its incorporation be reframed so as to ensure that all casual free seats available in the Medical Colleges and so also in the Engineering and Dental Colleges are offered first to the students admitted in payment category in the order of their merit. The Rule can, without defeating the purpose underlying its incorporation be reframed so as to ensure that all casual free seats available in the Medical Colleges and so also in the Engineering and Dental Colleges are offered first to the students admitted in payment category in the order of their merit. Given a choice all such candidates or atleast most of them are bound to opt for the free seats, that become available as casual vacancies, in which event the consequential vacancies caused in the payment who have not been admitted to undergo either Medical, Dental or Engineering course, The modification will ensure that candidates lower in merit do not benefit only by the fortuitous circumstance of a casual vacancy arising and falling to their lot even when candidates with better merit are denied admission against the same. It will reduce heart burning and eliminate the sense of deprivation among meritorious students which is but natural if the Rule continues in its present from. The state would therefore do well to have a fresh look at the Rule and to make proper amends in the same to avoid the anomalies involved in its continuance. " ( 6 ) THE statement made by Counsel for the Respondents and the observations made by this Court notwithstanding, no worthwhile exercise appears to have been undertaken to suitably modify the rule and thereby save the same from the vice of unconstitutionality. The question has as expected once again come up for consideration in the present writ petition to which I may now briefly refer before going any further. ( 7 ) IN Writ Petition No. 41049/1999, the petitioner was placed atrank No. 640 in the non-Karnataka category. He was allotted a Dental seat in MS. Ramaiah Dental College, Bangalore, where he is presently studying. The grievance now is that three medical seats having become available as casual vacancies two out of those were allotted to Respondents No. 3 and 4 in that petition who were ranked below the petitioner at No. 732 and 855 respectively. It is pointed out that the petitioners' better claim for admissions against a Medical seat was rejected only on the ground that he had been allotted a dental Seat there by making him ineligible for consideration against the casual vacancies. It is pointed out that the petitioners' better claim for admissions against a Medical seat was rejected only on the ground that he had been allotted a dental Seat there by making him ineligible for consideration against the casual vacancies. The petitioner has while assailing the validity of the allotment made in favour of R-3 and R-4, challenged the vires of Rule 18 (ix) of the Rules mentioned above and sought a mandamus directing Respondent No. 2 to allot a Medical Seat in any one of the Medical Colleges in the State. ( 8 ) WRIT petition No. 34642/2000, presents the converse. In that case, the petitioner is aggrieved of the allotment of casual vacancies made by the CET Cell, in favour of Respondents-3 to 5. Those vacancies were notified in terms of a Notification dated 26th september, 2000 issued by the CET cell. Contrary to Rule 18 (ix) of the Rules, the Notification invited even such candidates for admission against the said vacancies as had already secured admission reported to the College concerned. The Notification stated thus:"the candidates who have already received the admission orders and who are satisfied with the seats selected by them need not come again. A candidate who has received the admission order, even if reported to the college can come without admission order, if he is interested. A candidate who has already received the admission order in respect of an engineering seat is not eligible to participate in this round. " ( 9 ) IT is pursuant to the above that Respondents 3 to 5 were admitted against the available casual vacancies, even when they had already been allotted seats in different colleges and were therefore ineligible for any such admission. The petitioners' grievance is that the admission of the said Respondents being in violation of the provisions of Rule 18, is liable to be set aside, with a direction to the Respondent to admit the petitioner against one of the seats. ( 10 ) IN Writ Petition No. 43552/1. 999, the petitioner is a non-Karnataka student, who was admitted against a payment seat in the second Respondent Dental College, at Raichur. Casual vacancies, thereafter became available in, among others, the third Respondent college at Belgaum, against which, Respondent No. 4, who was placed below the petitioner at rank No. 1460, was admitted in september, 1999. 999, the petitioner is a non-Karnataka student, who was admitted against a payment seat in the second Respondent Dental College, at Raichur. Casual vacancies, thereafter became available in, among others, the third Respondent college at Belgaum, against which, Respondent No. 4, who was placed below the petitioner at rank No. 1460, was admitted in september, 1999. The petitioner's grievance like that made in Writ petition No. 41049/1990, is that she being more meritorious than the 4th Respondent, was entitled to be considered for admission against the said casual vacancy. The fact that she had chosen a seat at a time when no seat was available in the third Respondent college could not make her ineligible for consideration against a casual vacancy which may have arisen in any other institution. Besides challenging the validity of Rule 18 (ix) of the Rules, petitioner has prayed for a mandamus directing the Respondents to permit her to participate in the admission round against casual vacancies and to allot her a seat in the third Respondent, College. ( 11 ) FROM the facts that have come to light, it is evident that the CET Cell is applying Rule 18 (ix) on a selective basis. While in WPs. No. 41049/1999 and 43552/1999, the CET Ceil has excluded from consideration candidates admitted against other seats, it has adopted an entirely different approach in granting admission to such candidates in WP No. 34642/2000. The only justification feebly advanced by Counsel appearing for the CET Cell was that the vacancies thai had arisen for allotment in WP No. 34642/2000 were not casual vacancies, it was argued that additional seats became available on account of inclusion of Yenepoya Medical College in the new seat matrix issued by the Government. Admissions granted to respondent No. 3 to 5 in the said petitions were not however in the Yenepoya Medical College. The said seats were in Dr. B. R. Ambedkar and M. S. Ramaiah Medical Colleges in Bangalore. This is evident from the notification by the CET Cell itself. The available seats were therefore clearly casual vacancies that had arisen on account of the student earlier admitted against them vacating the same. Suffice it to say that the admission of candidates on the basis of merit against casual vacancies is not unknown to the CET Cell. This is evident from the notification by the CET Cell itself. The available seats were therefore clearly casual vacancies that had arisen on account of the student earlier admitted against them vacating the same. Suffice it to say that the admission of candidates on the basis of merit against casual vacancies is not unknown to the CET Cell. The only difficulty is that it has not followed that procedure consisteniiy giving rise to an impression that the Cell is making use of Rule 18 (ix) whenever it finds it convenient to do so. That impression should not be allowed to gain ground not onfy because norms adopted are required to be uniformly applied but also because selective application of the same unregulated by any guidelines is bound to result in serious doubts about fairness of the admission process. ( 12 ) THAT brings me to the core issue whether or not exclusion of meritorious candidates only in the interest of speedy finalisation of selection is proper. The decision rendered by this Court in Umesh hiremath's case (supra) in my opinion provides an answer to that question. The said decision clearly declares that Ru!e 18 (ix) in its present form is offensive to the principle underlying selection of seats on the basis of merit and therefore violative of Article 14 of the constitution Support for that view is available from a Division Bench decision of the High Court of Delhi in R. K. GUPTA vs THE DEAN, university OF DELHI. That was also a case where the Court was considering the validity of a clause requiring a candidate to indicate his first preference for either the MBBS or BDS Course and restricting his candidature for the first preference so given. Two justifications were advanced by the University for inserting such a provision. Firstly it was argued that the provision was necessary to avoid enormous expenditure that may be involved in holding a separate entrance examination for each of the two Courses. Secondly, it was contended that the Rule was necessary to avoid waste of educational time as a result of delay in commencing the admission to BDS Course after the selections for MBBS Course is complete. The Court repelled both. Secondly, it was contended that the Rule was necessary to avoid waste of educational time as a result of delay in commencing the admission to BDS Course after the selections for MBBS Course is complete. The Court repelled both. It declared that cost of a separate examination can have no rational relation to the object sought to be achieved and that the provision inserted by the University could not be justified even on the ground of loss of educational time. The delay of two or three months in completing the selection process was, according to the Court, insignificant when compared to the total period for which the Courses had to run, ( 13 ) IN S. K. AWATRAMANI AND ANOTHER vs STATE OF GUJARAT AND ANOTHER the Court held that interest of students should be kept in mind and anxiety of the authority should be to see that merit does not suffer and become a victim of administrative difficulties and inconvenience. The Court observed:- "if a candidate, already admitted in a college other than college of his choice, is allowed transfer to the college of his choice on merits if vacancy occurs in that college, there is no rationale in not allowing a candidate to keep his option open in case he is initially not getting admission to the course and/or college of his choice. Candidate who is initially not getting admission to the course and, or college of his choice should be allowed to claim that if in future, vacancy occurs in that college, and if he is entitled to admission to that college on merits he may be considered for such admission. It is beyond comprehension as to why such right should be denied to him. It is true that to give such right to all the candidates may create practical difficulties and cause inconvenience to the authorities concerned but such difficulties and inconvenience are not insurmountable. Authorities should adopt policy and attitude which is in the best interest of candidates/students, even if such policy creates difficulties and causes them inconvenience. All the time interest of student should be kept in view and anxiety should be to see that merit does not suffer and become victim of administrative difficulties and inconvenience. Authorities should adopt policy and attitude which is in the best interest of candidates/students, even if such policy creates difficulties and causes them inconvenience. All the time interest of student should be kept in view and anxiety should be to see that merit does not suffer and become victim of administrative difficulties and inconvenience. In this age of computers there would be no difficulty or inconvenience in devising a policy or scheme as stated above, which would be in the best interest of candidates/students. " ( 14 ) WHILE reiterating the view expressed by me in Umesh Hiremath's case, I need only say that while a speedy finalisation of admission process is a relevant consideration, which may entitle the rule making authority to formulate procedures that will ensure easy and early completion of the process, any such process cannot sacrifice considerations of merit, which lies at the bottom of every selection. ( 15 ) THE next question then is whether the Rule should be struckdown in toto or read down to make it compatible with the mandatory requirement of Article 14 of the Constitution. Two reasons justify recourse to the latter option. Firstly because the anxiety of the rule making authority to ensure a speedy completion is not wholly misplaced. Some margin shall have to be conceded to the authorities for ensuring an early completion in the general interest of those, who have already been found entitled to the same. While merit has to be the test for admissions, procedural labyrinth should not defeat the very object of the selection process. The Rule can therefore stay provided it is understood and applied in a manner that is consistent with the requirement of Article 14. Secondly because the effort of the Court has to be to uphold the provision under challenge as far as the same is possible within the Constitutional frame work. This is usually done by reading down the provision so as to make it consistent with the provisions of the constitution and the guarantees contained therein. ( 16 ) TWO distinct situations need be noticed at this stage wherethe rule needs to be read down. This is usually done by reading down the provision so as to make it consistent with the provisions of the constitution and the guarantees contained therein. ( 16 ) TWO distinct situations need be noticed at this stage wherethe rule needs to be read down. The first is where a free seat in a medical College becomes available as a casual vacancy those admitted against a payment seat in a Medical College or a free or payment seat in a Dental College, cannot and shall not hereafter be treated ineligible for consideration under Rule 18{ix) of the rules. The second situation is where a free seat becomes available as a casual vacancy in an Engineering College, candidates admitted against payment seats in such College cannot and shall not hereafter be treated as ineligible for consideration. It is, in my view, unnecessary for this Court to examine in these Petitions other conceivable situations where the application of the Rule may operate in a discriminatory fashion. It would be better if that aspect is examined as and when the same arises for consideration. ( 17 ) THAT brings me to the question whether the petitioner are entitled to any directions regarding their admission. In Writ. Petition no. 41049/1999 the petitioner has been pursuing the B. D. S. Course since 1999-2000. Although Mr. Navadgi, Counsel appearing on his behalf has filed a Memo stating that a payment seat had fallen vacant is Sidharth College, Tumkur, for the year 1999-2000, yet it is not possible at this stage to direct admission of the petitioner for the said academic session. Those admitted during 1999-2000 must be concluding the 2nd year of the course by now. It is not therefore possible for the petitioner to join the said course by getting admitted against a seat that may have fallen vacant during the said year. ( 18 ) IN so far as Writ Petition No. 34642/2000 is concerned, the CET Cell had offered the available casual vacancies to all the eligible including those who had already secured admission elsewhere. The candidates admitted against the said vacancies, it is not disputed, possessed better merit than the petitioner. ( 18 ) IN so far as Writ Petition No. 34642/2000 is concerned, the CET Cell had offered the available casual vacancies to all the eligible including those who had already secured admission elsewhere. The candidates admitted against the said vacancies, it is not disputed, possessed better merit than the petitioner. Having regard to the view that this Court has taken regarding the validity of Rule 18 (ix) of the rules, the admission granted by the CET to meritorious candidates by ignoring their disqualification under the said Rule, cannot be found fault with especially when the candidates so admitted have already put in nearly one year in the course. ( 19 ) IN Writ Petition No. 4355/1999 the petitioner has been admitted against a payment seat in a Dental College, in the non- karnataka category. The seat to which she lays claim is also a Dental seat in the same category in third Respondent Dental College, at belgaum. The said seat was allotted to Respondent No. 4, who is according to the petitioner lower in merit than her and could not therefore have been admitted without considering 'the petitioners' claim. Keeping in view the fact that considerable time has lapsed since the grant of admission to R-4, I do not see any justification to interfere with the same nor will it be proper to direct exchange of seats between the petitioner and the said Respondent at this stage when they have already put in nearly two years in their respective colleges. That should not however be understood to mean that this court has accepted in principle that even when a seat becomes available as a casual vacancy in the merit or payment category, other candidates already admitted against seats in such categories, will be entitled to ask for admission against such vacancies. Whether or not, the Rule 18 (ix) in so far as the same forbids such consideration is valid is specfically left open to be considered in an appropriate case. ( 20 ) IN the result, these petitions succeed but only to the limited extent that the Respondents State and the CET Cell, shall while making admissions in future apply Rule 18 (ix) as interpreted by this court in Para 16 of this judgment. ( 20 ) IN the result, these petitions succeed but only to the limited extent that the Respondents State and the CET Cell, shall while making admissions in future apply Rule 18 (ix) as interpreted by this court in Para 16 of this judgment. The petitions to the extent the same challenge the admissions already made and pray for other reliefs shall stand dismissed but in the circumstances without any orders as to costs. --- *** --- .