JUDGMENT Kuldip Chand Sood, J.—The petitioner appeared in the Combined Pre-Medical Entrance Test for Graduate (M.B.B.S./B.D.S.) Courses in Himachal Pradesh for the Session 2003-2004 against the two seats in reserved for the wards of Ex-servicemen. The petitioner secured 110 marks respondent No. 3 Abhishek Sharma who also appeared for a seat under this category secured 123 marks. Another candidate Nishant Nadda who appeared against Roll Number 12943 under this category secured 112 marks. 2. For regulating the admissions in the Medical and Dental Colleges, a Counseling Committee was constituted by the State and first round of counselling was held on July 18, 2003 and July 19, 2003 to consider the admissions in the approved/recognized Government Medical/Dental Colleges. The counselling was held in respect of the seats available under the various categories in Indira Gandhi Medical College, Shimla and the candidates were recommended by the Committee in order of merit. So far the counseling for Dr. Rajendra Prasad Govt. Medical-College Tanda is concerned, the candidates were not recommended for the said College as permission for admitting fifth batch to this College was awaited. 3. The counselling for the seats reserved for the wards of Ex-servicemen was attended by three candidates noticed above in order of merit. Respondent No. 3 Abhishek Sharma, at Sr. No. 1 in order of merit, was selected against one of these seats. 4. Para 2.3 of the Prospectus provides for category-wise seats liable to be allotted in different Medical/Dental Colleges in the State of Himachal Pradesh. Group-A provides for reserve seats. Para 2.3 of the Prospectus reads: 2.3 CATEGORY-WISE SEATS ALLOTMENT IN DIFFERENT MEDICAL/DENTAL COLLEGES IN THE STATE OF HIMACHAL PRADESH Categories IGM. C Shimla Dr. RP GM C Tanda HP GD C Shimla HD C Sunder nagar MINDAV DC Tatul Solan BDC Budh Nalagarh Total seats 65 50 20 60 60 60 Group-A (Reserved) 26 18 8 Note-** (1)SC 10 8 3 (2)ST 5 4 1 (3) OBC 2 1 1 (4) Children-son/ daughter of ex-servicemen. 1 1 (5) Children-son/ daughter of defence personnel. 1 1 (6) Ward of freedom Fighter 1 1 1 (7) Backward Area 3 2 1 (8) Govt. 1 1 (5) Children-son/ daughter of defence personnel. 1 1 (6) Ward of freedom Fighter 1 1 1 (7) Backward Area 3 2 1 (8) Govt. of India nominee 2 (9) Tibetan Refugee nominee GROUP-B 1 1 (i) (Unreserved) for bona fides Himachali 25 21 7 (ii) (Unreserved) all India Quota 9 7 3 (iii) (Unreserved) (NRI Seats) 5 4 2 Note : ** The distribution/reservation of seats, mode of admission and fee structure including free, payment and N.R.L seats in respect of all the private dental colleges of the state will be notified separately through newspapers pursuant to the Supreme Court Judgement. 5. Para 2.11 provides that the candidates competing for the reserved category seats under Group-A, except Government of India nominee and Tibetan Refugees nominee, will compete amongst their own category. It further stipulates that the candidates competing against Scheduled Caste, Scheduled Tribe and OBC categories, if selected on overall merit, shall not exhaust the seats reserved for them. This stipulation is not applicable to other reserved categories including under 4(4). Nonetheless, the allotment is to be made on college wise preference and if a candidate in a reserved category is left out of consideration for not attaining meritorious position amongst the candidates specifically grouped under his or her candidature, such candidate then is to be considered on the basis of merit against unreserved seats. 6. Para 2.12 provides that if a candidate wish to be considered for the reserved seat, then he or she shall specifically state in the application only one category of the reserved seat for which he/she applies for and such candidate would not be permitted to change the category once indicated in the application form. However, this would not prejudice his or her case for being selected against un-reserved Group B (i), i.e. unreserved bona fides Himachali (seats on his or her merit). Para 2.13 of the Prospectus provides that unfilled seats from Group-A, i.e., reserved category, will be treated as un-reserved if required number of candidates are not found eligible under the rules of the Prospectus and would be added to un-reserved category. Paras 2.11 and 2.12 may be reproduced for convenience: "2.11. All the candidates under Group-A and B(i) except Group (8) and (9) Group-B (ii) and (iii) will have to compete amongst their own categories. Paras 2.11 and 2.12 may be reproduced for convenience: "2.11. All the candidates under Group-A and B(i) except Group (8) and (9) Group-B (ii) and (iii) will have to compete amongst their own categories. The candidates falling under group-A(l) to (3) i.e. S.C., S.T. and O.B.C. categories, if selected on merit under group B(i) unreserved shall not exhaust the seats reserved for them. However, allotment will be made college wise. If a candidate in any of the reserved categories is left out of consideration for not attaining high enough position amongst the candidates specifically grouped there under, his/her candidature would be considered on the basis of merit for the unreserved seats under Group-B(i). 2.12. A candidate wishing to be considered for a reserved seat, shall in his/her application form specify only one category of reserved seat for which he/she has applied for. He/she will not be permitted to change the category once indicated in his/her application form. Provided further that this will not prejudice his/her case for being selected against un-reserved Group B(i) seats by virtue of his/her merit". 7. The grievance of the petitioner is that the respondent No. 3 though applied against the .reserved category meant for the children of Ex-servicemen but on merit, the respondent No. 3 having secured 123 marks, should have been considered against the unreserved category in which too he would have found place in the Medical College at his own merit and resultantly the petitioner alongwith Nishant Nadda, the next two candidates, would have been selected against the seats reserved for the wards of Ex-servicemen in group A(4). 8. The contention is that if a candidate against a reserved category seat attains high enough position in the reserved category, then he should first be considered against the general category and if selected against that category, then the seat in the reserved category would not exhaust. Respondent No. 3 having secured 123 marks and being at Sr. No. 3 in order of over all merit would have found place against the un-reserved seats (B)(i) of Group-B without disturbing the over all reservation for the ward of Ex-servicemen of two seats. 9. Respondent No. 3 having secured 123 marks and being at Sr. No. 3 in order of over all merit would have found place against the un-reserved seats (B)(i) of Group-B without disturbing the over all reservation for the ward of Ex-servicemen of two seats. 9. The stand of respondents No. 1 and 2 is that the seats reserved for the wards of Ex-servicemen are available to the candidates belonging to that category and all the candidates who apply against that category are to be first considered against that category and exhaust the seats reserved for them. The candidates who do not get the seats in his/her category, are then to be considered alongwith other candidates for general (unreserved) category in order of merit. Respondent No. 2, Himachal Pradesh University, in its return state that in the present case, the two seats were available for the wards of Ex-servicemen and all the qualifying candidates belonging to the category of "ward of Ex-servicemen" were considered against that category. The respondent No. 3 and Nishant Nadda exhausted the seats reserved under this category and the rest of the candidates under that category were considered under the unreserved category in order of merit. It is the further stand of respondent No. 2 that the State Government has given concession only to Scheduled Caste/Scheduled Tribe and OBC candidates, under para 2.11 of the prospectus, that the candidates of that category if attain high enough position in over all merit, shall be considered against the un-reserved seats and they will not exhaust the seats in the reserved category. The candidates against other reserved categories, i.e. the wards of Ex-servicemen, Freedom Fighters and candidates from backward area have first to exhaust their own category. If they were to be considered first against the unreserved category, it would affect the seats of the un-reserved category candidates. 10. The respondents No. 4 and 5, who were impleaded at their own request, oppose the writ petition on the ground that the admission has to take place strictly in accordance with the provisions of the Prospectus which has the force of law as the provisions of the Prospectus do not provide that the candidates belonging to the wards of Ex-servicemen category, in the event of obtaining higher marks in merit, have to be considered under the unreserved category. The candidates including Respondent No. 3, having applied in the Ex-servicemen category, first have to exhaust the seats under that category. 11. The important question, which arises for consideration, is whether the candidates who apply against the seat of reserved category cannot be considered against the seats of un-reserved category at their own merit. I have heard the learned counsel for the parties. 12. The contention of Mr. Rajiv Sharma, learned counsel for the petitioner is that the candidates, irrespective of the fact whether they apply against general category seats or reserved category seats> are first to be considered against the un-reserved seats at their own merit and it is thereafter that the candidates who do not find place against the un-reserved seats are to be considered against the seats of reserved category for which such candidates had applied. 13. On the other hand, the contention of the learned counsel for the | respondent is that the candidates who apply against the reserved category I are to be considered first against the category for which they apply and if they fail to get seat in their own category, thereafter they are to be considered against the seats for un-reserved category at their own merit., Another contention of the learned counsel for the respondents is that a candidate having applied against reserved category cannot be permitted to usurp unreserved seats. ! 14. The contentions raised by the respondents are ill founded and against the settled position of law. It is now well settled that reservation under Articles 16(4) or 15(4) do not operate like communal reservations. It is not the object of reservation to comparmentalise the Society. The object of any reservation is to extend benefit, by reserving seats for the class for which reservation is made, Some members belonging to reserved categories may be selected in the open competition on the basis of their own merit and their overall merit, in my view, cannot be ignored. If candidates belonging to reserved category are not allowed to seek admissions against the seats meant for general category, then the reservation instead of working to the benefit of the reserved category would work to their detriment. If candidates belonging to reserved category are not allowed to seek admissions against the seats meant for general category, then the reservation instead of working to the benefit of the reserved category would work to their detriment. In other words, the candidates belonging to reserved categories would be only confined to the reserved category, seats and even if they fair better than the candidates in general category in the open competition, they will not be admitted against the unreserved seats. Putting differently, number of candidates belonging to reserved category which could be allowed admission would be equal to the number of reserved seats even if such candidate secure more marks than the candidates who find seats in the general category Such a situation, in my view, would be irrational, arbitrary and violative of Article 14 of the Constitution. 15. A Constitution Bench of nine Judges in Indra Sawhney and others v Union of India and others, 1992 Supp (3) Supreme Court Cases 217, observed thus : "it may well happen that some members belonging to say, Scheduled Caste get selected in open competition field on the basis of their own merit; they will not be counted against the quota reserved for Scheduled Castes; they will be treated as open competition candidates." 16. Again in R.K. Sabharwal and others v. State of Punjab and others, (1995) 2 Supreme Court Cases 745, the Constitution Bench of the Supreme Court considering the question of appointment and promotion and roster points vis-a-vis reservation held : "When a percentage of reservation is fixed in respect of a particular cadre and the roster indicates the reserve points, it has to be taken that the posts shown at the reserve points are to be filled from amongst the members of reserve categories and the candidates belonging to the general category are not entitled to be considered for the reserved posts. On the other hand the reserve category candidates can compete for the non-reserve posts and in the event of their appointment to the said posts their number cannot be added and taken into consideration for working out the percentage of reservation." (Emphasis given) 17. The question of reservation to Medical Colleges came to be considered in Ritesh R. Shah v. Dr. Y.L. Yamul and others, (1996) 3 Supreme Court Cases 253. The question of reservation to Medical Colleges came to be considered in Ritesh R. Shah v. Dr. Y.L. Yamul and others, (1996) 3 Supreme Court Cases 253. In that case some of the respondents belonging to reserved category though could have been admitted, on the basis of marks secured, under open merit, were admitted against reserved category as a result, the petitioner belonging to reserved category could not get admission into MBBS Course. The rules framed by the Government of Maharashtra for the purpose of selection of MBBS and BDS Course provided that a candidate who is unable to secure admission against 30% State level seats will then be considered at his own merit and would be adjusted against the seats which may be available in different Colleges. The candidates in the regional merit list, which includes both open and backward classes, were to be called for interview and those belonging to reserved categories of backward class to be called subsequently for selection against the seats reserved exclusively for the backward classes applicants. This provision was challenged by the petitioner on the ground that it affects and frustrates the very purpose of constitutional mandate under Article 15(4) of the Constitution. In this background, it was held that the candidate who is otherwise entitled to be admitted to the MBBS Course on the basis of his own merit though belonging to a reserved category, if was to be adjusted against a seat meant for reserved category then the purpose of reservation would not be achieved. The State Government as well as the private respondents took the stand that if the respondents were to take admission in open merit, then it would work out gross injustice and would be more harsh to them as they would not be able to get. admission to the Colleges of their choice even though they had secured much higher marks than the other reserved category candidates who would be admitted against reserved category seats, and the candidates securing lower marks would get seats in better Colleges. Their Lordships taking note of this submission held : "......A student who is entitled to be admitted on the basis of merit though belonging to a reserved category cannot be considered to be admitted against seats reserved for reserved category. Their Lordships taking note of this submission held : "......A student who is entitled to be admitted on the basis of merit though belonging to a reserved category cannot be considered to be admitted against seats reserved for reserved category. But at the same time the provisions should be so made that it will not work out to the disadvantage of such candidate and he may not be placed at a more disadvantageous position than the other less meritorious reserved category candidates. The aforesaid objective can be achieved if after finding out the candidates from amongst the reserved category who would otherwise come in the open merit list and then asking their option for admission into the different colleges which have been kept reserved for reserved category and thereafter the cases of less meritorious reserved category candidates should be considered and they be allotted seats in whichever colleges the seats should be available. In other words, while reserved category candidate entitled to admission on the basis of his merit will have the option of taking admission in the colleges where a specified number of seats have been kept reserved for reserved category but while computing the percentage of reservation he will be deemed to have been admitted as an open category candidate and not as a reserved category candidate". (Emphasis given) 18. Thus in view of the settled position of law as noticed above, the action of respondent Nos. 1 and 2 is not considering respondent No. 3 Abhishek Sharma, who secured 123 marks, against the unreserved seats at his own merit was arbitrary, unreasonable, irrational, illegal and violative of Article 14 of the Constitution. Had Abhishek Sharma been considered against the unreserved seats, the petitioner would have found place against one of the reserved seats meant for the wards of Ex-servicemen. 19. This apart, the candidates against reserved categories of ward of Ex-servicemen, Defence Personnel and Freedom Fighter could n6t have been discriminated vis-a-vis candidates of Scheduled Castes, Scheduled Tribes and other Backward Classes. 20. As far back in 1971 the Apex Court in D.N. Chanchala etc. 19. This apart, the candidates against reserved categories of ward of Ex-servicemen, Defence Personnel and Freedom Fighter could n6t have been discriminated vis-a-vis candidates of Scheduled Castes, Scheduled Tribes and other Backward Classes. 20. As far back in 1971 the Apex Court in D.N. Chanchala etc. v. The State of Mysore and others etc., AIR 1971 SC 1762, interpreting Article 15(4) if the Constitution held that the principle underlying this Article is that a preferential treatment can validly be given to socially and educationally backward classes because such classes require it to attain equal position with the more advanced section of the society in due course of time. Such a principle, the Apex Court proceeded to hold, would also be applicable to those who are handicapped but do not fall under Article 15(4). Their Lordships observed : "It is on such a principle that reservation for children of Defence Personnel and Ex-Defence personnel appears to have been upheld. The criteria for such reservation is that those serving in the Defence forces or those who had so served are and were at a disadvantage in giving education to their children since they had to live, while discharging their duties, in difficult places where normal facilities available .elsewhere are and were not available.” 21. Para 2.11 providing that candidates belonging to Scheduled Castes, Scheduled Tribes and other Backward Classes categories if selected on merits shall not exhaust the seats reserved for them, but denying the same concession to other reserved categories including ward of Ex-servicemen is bereft of rationality, is arbitrary and violative of Article 14 of the Constitution therefore, on this ground too liable to be struck down. 22. In view of the interim order passed by this Court on 17th July, 2003 respondents No. 1 and 2 were permitted to admit respondent No. 3 against the available seat in Indira Gandhi Medical College, Shimla, depending upon his merit and one seat in Group-A(4) reserved for ward of Ex-servicemen at Dr. Rajendra Prasad Govt. Medical-College, Tanda and one additional seat in Group-B(l) was directed to be kept vacant till further orders. Respondent No. 2, the University, has informed in its return that no seat under the reserved category of ward of Ex-servicemen has been allotted, whereas, all unreserved seats and 22 reserved seats stand filled. 23. Rajendra Prasad Govt. Medical-College, Tanda and one additional seat in Group-B(l) was directed to be kept vacant till further orders. Respondent No. 2, the University, has informed in its return that no seat under the reserved category of ward of Ex-servicemen has been allotted, whereas, all unreserved seats and 22 reserved seats stand filled. 23. For the reasons recorded above, the petition is allowed in following terms: (i) Para 2.11 of the Prospectus for Combined Pre-Medical Entrance Test for Graduate (M.B.B.S./B.D.S.) Courses in Himachal Pradesh Session 2003-2004 which excludes the candidates under Group-A (4), (5), (6) and (7), if selected on overall merit, from not exhausting the seats reserved for them and discriminate vis-a-vis Category-A(l) to (3), i.e., Scheduled Caste, Scheduled Tribes and OBC being unjust, arbitrary, without rationale and violative Article 14 is struck down. The categories falling under Group A(4) to A(7) would be treated at par with the candidates falling under Group A(l) to (3). The candidates seeking admission against reserved category seats, if entitled to admission on the basis of their own merit will not exhaust seats for that reserve category. (ii) Respondents No. 1 and 2 shall, after having given admission to respondent No. 3 at his own merit against unreserved seats, consider admitting the petitioner against one of the seats reserved for ward of Ex-servicemen under Group-A(4). (iii) No costs. The Registry shall supply un authenticated copy of this judgment today itself. One authenticated copy of the judgment shall be sent to the Principal, Indira Gandhi Medical College, Shimla immediately. Petition allowed.