Judgment 1. The decision of the State government has arrived. Basically the stand indicated to the High Court by the State government through the Secretary, Health (Medical Education, Family Welfare and Indigenous Medicines) department, Government of Bihar is no different than indicated by the learned Judge on the writ petition, C.W.J.C. No. 12121 of 2003 in the order dated 19 December, 2003. [reported in 2004 (1) PLJR 782 ] 2. The response received from the Secretary, Health (Medical Education, Family Welfare and Indigenous Medicines), Government of Bihar, in his communication to the Registrar General dated 5 February, 2004 is reproduced: "1. All the six candidates belong to Jharkhand State. 2. AII the six candidates belong to erstwhile Bihar prior to bifurcation of Bihar. 3. Four candidates belong to Scheduled Tribe and two to Scheduled Caste which are recognized both in Jharkhand and Bihar. 4. AII the candidates have passed their MBBS examination from Medical Colleges of present Bihar-Patna, Muzaffarpur and Darbhanga. 5.The PGMAT, 2003 prospectus clearly mentioned in clause 5.3(ii) that the candidate who is not a permanent resident of Bihar but has passed MBBS examination from any Government Medical College of Bihar is eligible. 6. It is thus clear that the six candidates are eligible for consideration for Post Graduate Course in the State of Bihar. The point of dispute is regarding their reservation benefits. 7. The Bihar Reservation Act, 3 of 1992 regarding reservation has been amended by adding third proviso to sub- section-2 of Section-4 which says that candidate residing out of the State of Bihar shall not claim for benefits of reservation. 8.The above amendment vide Bihar Reservation Act 15 of 2003 is pursuant to a decision of the Hon ble Supreme Court in. Civil Appeal No. 6120 of 2000 and No. 6363 of 2003 decided on August 11, 2003 wherein it has been held by the Supreme Court that where a person belonging to a Scheduled Caste or Scheduled Tribe specified for the purposes of the Constitution to be a Scheduled Caste or Scheduled Tribe in relation to State-A migrates to State-B where a Caste or Tribe with the same nomenclature is specified for the purposes of the Constitution to be Scheduled Caste and Scheduled Tribe in relation to that State-B, that person will not be entitled to claim the privileges and benefits, admissible to persons belonging to the Scheduled Caste/Scheduled Tribe in State-B. 9. In view of the above Supreme Court Judgment and the amendment to the Bihar Reservation Act, these candidates, can not be treated as Scheduled Tribe or Scheduled Caste candidates so as to qualify themselves to claim reservation against the vacancy reserved for SC and ST in the State of Bihar. 10. The above are matters of law. In this instant case reserved vacancies exit. There is no eligible candidate of Bihar left to fill up these seats. 11. With all due respect, I am unable to give a clear cut opinion as to whether these six candidates should be allowed to fill up the vacant seats which would otherwise lapse after the second counseling. This is because this policy decision favouring the six candidates would have to be taken at the level of the Departmental Minister, the Chief Minister and then the State Cabinet. 12. My personal view is that the balance of convenience is with the six candidates and since in any case the seats will lapse if the six are not taken in and this will benefit no one." 3. This puts to an end to the controversies which are attempted to be raised by filing an appeal by the Bihar Combined Entrance Competitive Examination Board. The State of Bihar has not filed an appeal. 4. The Secretary is of the view that the balance of convenience is with the six candidates and since in any case the seats will lapse if the six are not taken in, this will benefit no one. In the circumstances, as the seats are available to the reserved candidates and if not utilized will lapse, it does not do equity to anybody. The decision of the Secretary satisfies all the parties at the Bar. 5. A request has been made by learned A.A.G.2 that this matter may be taken as in the Facts and circumstances of the present case. The learned Judge deciding the writ petition has also said so. 6. In the circumstances, in view of the decision conveyed by the Secretary, Health (Medical Education, Family Welfare and Indigenous Medicines) Department, Government of Bihar, the appeal is dismissed.