Judgment :- (Appeal under Clause 15 of the Letters Patent against the Order dated 29-04-2005 passed in W.P. No. 10292 of 2005 on the file of this Court.) A. Kulasekaran, J. This writ appeal is directed against the order passed by the learned single judge in W.P. No. 10292 of 2005 dated 29-04-2005. 2. The first respondent herein has filed the above writ petition No. 10292 of 2005 on 22-03-2005 praying for a Writ of Mandamus to direct the first appellant herein to fill up the vacant seat of M.D.S. Course in the second respondent/dental college for the academic year ending with 28-04-2005. 3. The facts leading to the filing of the writ petition are that the first respondent herein appeared for MDS entrance examination conducted by PGDH in the year 2004 under general quota; the total number of seats during the relevant period was six, out of which Pondicherry domicile/ resident quota was three; All India quota was two and NRI/ NRI sponsored/foreign student quota was one; that one Archana, who joined MDS in the second appellate college discontinued her studies as she has got seat in Madras Dental College and the first respondent herein approached the second respondent to accommodate her in the said vacancy as she was said to have been first in the waiting list and entitled to the said seat; that the second respondent, though promised, later failed to accommodate her, which resulted in the filing of the above writ petition. 4. The writ petition was allowed on 29-04-2005 directing the appellants herein to admit the first respondent in MDS course in the academic year 2005-2006 in the event of any vacancy fell within the said academic year, if not possible in the academic year 2006-2007 without fail. 5. We have heard the learned Government Pleader appearing for the appellants and the learned Senior counsel appearing for the first respondent. 6. Mr. 5. We have heard the learned Government Pleader appearing for the appellants and the learned Senior counsel appearing for the first respondent. 6. Mr. Murugesan, learned Government Pleader (Pondicherry) appearing for the appellants submitted that on 22-04-2004, three candidates namely Prasad, Leoni and Adalarasan were selected in the category of Pondicherry domicile/resident quota and one Simon was admitted under NRI/NRI Sponsored/foreign student quota; that there is no waiting list as alleged by the first respondent was published in Pondicherry domicile resident quota; that two candidates namely Ruchir Misra and Archana were admitted in the All India quota as per the allotment order issued by the Director General of Health, New Delhi on 07-04-2004; that the said Archana discontinued her course only on 31-05-2004 afternoon, which was the last date for admission, hence, in the said vacancy, nobody could be admitted beyond that date because of the reason the guidelines issued by the Director General of Health Service as well as the decisions of the Honourable Apex Court prohibit. It is further argued by the learned Government Pleader that even assuming that a vacancy arose pursuant to the discontinuation of the said Archana in the said vacancy, the first respondent cannot be accommodated since it was earmarked for All India quota, which aspects were not considered by the learned single judge while allowing the writ petition. 7. The learned Government Pleader (Pondicherry) appearing for the appellants relied on the below mentioned decisions to say that midstream admission and telescoping of unfilled seats of one year with permitted seats of the subsequent year is not permissible:- i) (Medical Council of India vs. Madhu Singh and others) (2002) 7 Supreme Court Cases 258 wherein in para-23 it was held thus:- "23. There is, however a necessity for specifically providing the time schedule for the course and fixing the period during which admissions can take place, making it clear that no admission can be granted after the scheduled date, which essentially should be the date for commencement of the course. There is, however a necessity for specifically providing the time schedule for the course and fixing the period during which admissions can take place, making it clear that no admission can be granted after the scheduled date, which essentially should be the date for commencement of the course. In conclusion (i) there is no scope for admitting students midstream as that would be against the very spirit of statutes governing medical education; (ii) even if seats are unfilled that cannot be a ground for making mid-session admissions; (iii) there cannot be telescoping of unfilled seats of one year with permitted seats of the subsequent year; (iv) MCI shall ensure that the examining bodies fix a time schedule specifying the duration of this course, the date of commencement of the course and the last date for admission; (v) different modalities of admission can be worked out and necessary steps like holding of examination if prescribed, counselling and the like have to be completed within the specified time; (vi) no variation of the schedule so far as admissions are concerned shall be allowed; (vii) in case of any deviation by the institution concerned, action as prescribed shall be taken by MCI." ii) (Rajiv Kapoor and others vs. State of Haryana and others) (2000) 9 Supreme Court Cases 115 wherein in para-16 it was held thus:- "16. The dispute relates to the academic session of the year 1997 and we are in 2000. To utilise the seats meant for the next academic year by accommodating those candidates of 1997 vintage would amount to deprivation of the legitimate rights of those who would be in the fray of contest for selection, on the basis of their inter se merit for the session of 2000, taking into account the performance of the candidates of 1997 in that year. The suggestion to create additional seats, apart from the objections from the State, cannot also be acceded to for the purpose of admitting only the appellants inasmuch as any additional seats even if allowed to be created during a particular year must be filled up only on the basis of the standard and merit performance of the candidates participating in the contest for the said year. That apart, some of the appellants appear to have got admitted into diploma courses, having not been selected for degree courses and there is no scope for adjusting the period of study put in by them while pursuing diploma course, as one spent for PG degree course. There is also a positive prohibition for a candidate pursuing PG diploma course in a particular discipline to claim to do PG degree course in a different discipline." iii) (Mridul Dhar (Minor) and another vs. Union of India and others) (2005) 2 Supreme Court Cases 65 wherein it was held in para-32 thus:- "32. Having regard to the professional courses, it deserves to be emphasised that all concerned including Governments, State and Central both, MCI/DCI colleges – new or old students, Boards, Universities, examining authorities etc,. are required to strictly adhere to the time schedule whatever provided for; there should not be midstream admissions; admissions should not be in excess of sanctioned intake capacity or in excess of quota of anyone, whether State of management. The carrying forward of any unfilled seats of one academic year to next academic year is also not permissible." 8. Mr. Chandru, learned Senior counsel appearing for the first respondent submitted that clause 7 (1) of the Prospectus says that all the seats remaining vacant after the allotment or falling vacant thereafter shall be deemed to have been surrendered back to the respective States, whereas, in this case, the vacancy arose prior to 31-05-2004; that the writ petition was filed on 23-03-2005 and the learned single judge issued directions on 24-03-2005, the case was adjourned on 12-04-2005, 18-04-2005, 19-04-2005 and 25-04-2005 at the instance of the appellants herein; that in the meantime, the said Archana discontinued her studies; though the second respondent promised to accommodate the first respondent herein in the said vacancy failed to do so without any valid reasons; that considering the above facts and following the decision of the Honourable Supreme Court reported in (Dolly Chhanda vs. Chairman, JEE and others) (2004) 4 M.L.J. 111 (S.C.) the learned single Judge rightly allowed the writ petition and prayed for dismissal of the writ appeal. The relevant portion of the said decision is extracted below:- "10. The appellant had qualified in the JEE-2003 but the said academic year is already over. The relevant portion of the said decision is extracted below:- "10. The appellant had qualified in the JEE-2003 but the said academic year is already over. But for this situation the fault lies with the respondents, who adopted a highly technical and rigid attitude and not with the appellant. We are, therefore, of the opinion that the appellant should be given admission in MBBS course in any one of the State medical colleges in the current academic year." 9. The case of the first respondent is that the appellants herein have failed to accommodate her after the said Archana discontinued her studies. The total number of seats earmarked during the relevant academic year was six, out of which three seats for Pondicherry domicile/ residents, two seats for All India quota and one seat for NRI/NRI sponsored/foreign student quota. Assuming the said Archana, who was accommodated under All India quota, discontinued her studies; the same cannot be allotted to the first respondent herein since any such vacancy if at all goes to the reserved category. The records placed before us disclose that the said Archana discontinued her studies by giving a letter on 31-05-2004 afternoon, but the first respondent herein has chosen to file the writ petition only on 22-03-2005 i.e., after lapse of one year. The decisions of the Honourable Apex Court extracted above show that admitting students in midstream, even if seats are unfilled not permissible, the telescoping of unfilled seats of one year with permitted seats of the subsequent year also prohibited and the utilisation of seats meant for the next academic year by accommodating candidates of previous academic year would amount to deprivation of legitimate right of those who would be in the fray of contest for selection, on the basis of their inter se merits for the next academic year. Admittedly, the said vacancy also not filled up by the appellants after 31-05-2004 in view of the decisions of the Honourable Apex Court as well as the guidelines issued by the Director General of Health, New Delhi, hence the argument of the first respondent that she should have been accommodated in the vacancy which resulted in discontinuation of the said Archana is to be rejected. 10. The learned single judge relied on the decision reported in (Dolly Chhanda vs. Chairman, JEE and others) (2004) 4 M.L.J. 111 (S.C.). 10. The learned single judge relied on the decision reported in (Dolly Chhanda vs. Chairman, JEE and others) (2004) 4 M.L.J. 111 (S.C.). The facts of the said case relates to special category namely children or widow of personnel of Armed or Para-military forces of Orissa, killed or disabled in war or peace time operations. Further, in that case, she appeared for JTE-2003 under reserved category, certificate was wrongly issued by Zilla Sainik Board, later she produced the fresh certificate dated 16-07-2003 at the stage of second counselling on 29-10-2003, which was fixed on account of increase in seat, but she was not considered; and she filed writ petition immediately and the Honourable Supreme Court, while allowing the claim found that some of the candidates, who secured lower marks or lower rank were admitted; mistake in certificate not due to fault of her and not proper to apply rigid principles and a direction was issued by the Apex Court to accommodate her. The said facts are totally different from the facts of the case on hand. Hence, we are of the considered view that the said decision cannot be made applicable to the facts of this case. 11. In view of the said reasons mentioned above, we have no other alternative, except to set aside the order passed by the learned single Judge on 29-04-2005 in W.P. No. 10292 of 2005 and accordingly the same is set aside. The writ appeal is allowed, and the writ petition is dismissed. No costs. Consequently, connected WAMP is closed.