ORAL JUDGMENT D. D. SINHA, J. :- Rule returnable forthwith. Heard finally by consent of Shri Parchure, learned Counsel for the petitioner, Shri Kumbhakoni, learned Associate Advocate General assisted by Mrs. Dangre, learned Assistant Government Pleader for the respondent Nos. 1,2 and 4, and Shri Meghe, learned Counsel for the respondent No.5. None appears for the respondent No.3 though served. 2. Shri Parchure, learned Counsel for the petitioner, submits that grievance of the petitioner in the instant petition is that allotment of seats in 30% State quota meant for female candidates (open) and 70% regional seats in regard to first year M.B.B.S. Course for the 'academic session 2006-07 is done by the Competent Authority in an arbitrary manner. It is contended that issue in question pertains to allotment of seats in Indira Gandhi Medical College, Nagpur in 30% and 70% categories (women - open) and same is not consistent with the admission rules, i.e. MHT -CET 2006. 3. It is submitted by the learned Counsel for the petitioner that Rule 1.4.2 contemplates that out of the seats at the disposal of the competent Authority, 30% of such seats in each College are required to be filled on the basis of State Merit List and as per Rule 1.4.4, remaining 70% seats are required to be filled from amongst the candidates, who have passed H.S.C. (or equivalent examination) from the Schools/Colleges situated in the region of concerned development Board, i.e. rest of Maharashtra, Vidarbha and Marathwada. It is contended that as per Rule 2.3.1 while filling the seats in College/Institution, the State seats (30%) shall be filled first followed by regional seats (70%). It is submitted that so far as first round of counselling/admission is concerned, the respondent Authorities have followed this procedure. It is submitted that as per reservation provided in 30% and 70% women (open) quota, the seats at the disposal of the Competent Authority in respect of the Indira Gandhi Medical College, Nagpur were twelve. Out of these twelve seats, 30% seats on the basis of State Merit List, i.e. four seats are required to be filled first in every round and remaining eight seats are required to be filled on the basis of merit in 70% open woman category. Out of these twelve seats, 30% seats on the basis of State Merit List, i.e. four seats are required to be filled first in every round and remaining eight seats are required to be filled on the basis of merit in 70% open woman category. It is contended that the Competent Authority after following the procedure contemplated under the Rules, admitted twelve candidates in the I.G.M.C., Nagpur on the basis of State Merit List as per their eligibility. Chart showing these admission reads thus: Sr. State Name of Student Sex CETRegionCategory Quota No. Merit Marks No. 1 634Acharya Purabi Rabindra F 186 R Open 30% W Open 2 703 Rathi Anuradha Kamalkishor F 186 V Open 30% W Open 3 706 Malpani Priyamvada Praveen F 186 V Open 30% W Open 4 718 Kothari Megha F 186 V Open 30% W Open 5 732 Deshmukh Snehal Subhash F 185 V Open 70% W Open 6 748 Sharma Pragya Sudhir F 185 V Open 70% W Open 7 761 Yadav Suman Dhanpat F 185 V Open 70% W Open 8 770 Rathi Bharti Mohanlal F 185 V Open 70% W Open 9 792 Bagga Chandni Baldev F 185 V Open 70% W Open 10 802 Pratapan Priya V. G. Pratapan F 185 V Open 70% W Open 11 904 Pahlajani Neelam Haresh F 184 V Open 70% W Open 12 940 Ruhatiya Shradha Omprakash F 184 V Open 70% W Open 4. It is submitted by the learned Counsel for the petitioner that so far as second round of admission is concerned, the competent Authority was required to follow the same procedure, i.e. 30% seats on the basis of merit as per rules should have been filled first and then remaining 70% seats. However, the Competent Authority did not follow the procedure of merit so far as allotment of seats in 30% quota is concerned and, therefore, allotment of seats done by the Competent Authority in the second round in Indira Gandhi Medical College, Nagpur is inconsistent with the procedure stipulated in the admission rules and hence, same cannot be sustained in law. It is contended that if the procedure would have been followed properly by the Competent Authority in the second round of admission, in that event, respondent Nos. It is contended that if the procedure would have been followed properly by the Competent Authority in the second round of admission, in that event, respondent Nos. 3 and 5 could not have been given admission in the I.G.M.C., Nagpur in 30% quota since there are more meritorious students available than these two candidates as per the State Merit List and those candidates were required to be placed in 30% State quota as per rules. It is submitted that grievance of the petitioner is that though petitioner is given admission in the College at Yavatmal in 70% regional quota, however, if the allotment of seats in the second round in respect of Dipika Mishra and Kirti Ruikar in 30% quota is held to be bad, in that event, the petitioner would be eligible for allotment of seat in the I.G.M.C., Nagpur as per her merit in 70% women open quota. However, since Competent Authority has not filled in seats in I.G.M.C., Nagpur in second round as per rules, the petitioner is deprived of allocation of seat in I.G.M.C., Nagpur in 70% quota and, therefore, appropriate direction in this regard may be given to the respondent Authorities. 5. Shri Kumbhakoni, learned Associate Advocate General for the respondent Nos. 1,2 and 4, has not at all disputed the fact that after excluding the seats as provided in Rules 1.2 and 1.3, remaining seats were at the disposal of the competent Authority and out of such seats, 30% of such seats in Colleges were to be filled in amongst the candidates from the State strictly on the basis of State Merit List as required under Rule 1.4.2. Similarly, it is also not disputed that after exclusion of State level seats provided in Rule 1.4.2, remaining 70% seats were to be filled in from amongst the candidates, who have passed H.S.C. (or equivalent examination) from the Schools/Colleges situated in the region concerned, which is called regional quota. It is also not disputed that while filling up preference forms required under the rules, merit list will operate from State Merit List No. 1 onward in each round of selection as contemplated under Rule 2.2.3. There is also no debate about procedure laid down under Rule 2.3.1, which contemplates that while filling up the seats for any Collegel Institute, the State seats (30%) shall be filled first followed by the regional seats (70%). There is also no debate about procedure laid down under Rule 2.3.1, which contemplates that while filling up the seats for any Collegel Institute, the State seats (30%) shall be filled first followed by the regional seats (70%). It is also not in dispute that so far as I.G.M.C., Nagpur is concerned, twelve seats were available at the disposal of the Competent Authority from 30% as well as 70% regional quota and were filled in as per procedure stipulated in the above Rule strictly on the basis of merit. However, so far as second round of admission is concerned, though the learned Associate Advocate General has not disputed that same procedure, which is stipulated in Rule 2.3.1 is required to be followed by the Competent Authority, however, it is submitted that the Competent Authority is also required to consider higher preferences exercised by the candidates and mentioned in the preference forms for betterment as per Rule 2.2.3. It is submitted that in second round of admission, so far as I.G.M.C., Nagpur is concerned, though Snehal Deshmukh and Pragya Sharma were more meritorious than Dipika Mishra and Kirti Ruikar, they could not be considered in 30% State quota since Snehal Deshmukh and Pragya Sharma were admitted in I.G.M.C. in 70% quota and their higher preference was Government Medical College, Nagpur. However, since there was no seat in Government Medical College, Nagpur, they could not be shifted on the basis of their higher preference and, therefore, allocation of their seats was required to be continued in 70% quota. It is also contended that similar is the case in respect of Suman Yadao, Bharti Rathi, Chandni Bagga and Priya Prataman since these candidates also could not be shifted as there was no vacancy in the College of their higher preference. Dipika Mishra and Kirti Ruikar being the next candidates available as per State Merit List, were given admission in I.G.M.C., Nagpur in 30% quota in the second round. It is, therefore, contended that admissions given in I.G.M.C., Nagpur in second round of admissions as reflected in Annexure R-II are consistent with the admission rules. 6. We have considered the contentions canvassed by the learned Counsel for the parties and perused the relevant Rules. It is, therefore, contended that admissions given in I.G.M.C., Nagpur in second round of admissions as reflected in Annexure R-II are consistent with the admission rules. 6. We have considered the contentions canvassed by the learned Counsel for the parties and perused the relevant Rules. It is not in dispute that admissions in First Year M.B.B.S. Course for the academic session 2006-07 are governed by the procedure stipulated in the information brochure for admission to the Health Science Courses - MHT -CET 2006. Rule 1 deals with distribution of seats. Rules 1.1, 1.2 and 1.3 are not relevant for the controversy in issue. Rule 1.4 deals with distribution of seats to be allotted by the competent Authority. The following Rules are relevant for the controversy" in issue: Rule 1.4.2 reads thus: "Out of the seats at the disposal of the Competent Authority, 30% of such seats in Colleges will be made available for candidates from the State and these seats will be filled on the basis of State Merit List. There will be constitutional, specified and female reservations in these seats as per rules." Rule 1.4.4 deals with distribution of seats in 70% category and reads thus: "After the exclusion of State Level seats mentioned in para 1.4.2, the remaining 70% seats will be filled from amongst the candidates who have passed HSC (or equivalent examination) from the Schools/Colleges situated in the region of the concerned Development Board, i.e. rest of Maharashtra, Vidarbha and Marathwada. There will be constitutional, specified and female reservations for these seats as per rules." Rule 1.6 deals with reservation for female candidates and reads thus: "30% seats at the disposal of the Competent Authority shall be reserved, for female candidates in all the courses. This reservation shall be for all the categories like SC, ST, VI, NT-i, NT-2, NT-3, OBC, Common, HA, PH & DEF. 30% female reservation shall be provided in 30% State seats and 70% regional seats of that category. If requisite number of female candidates are not available then these seats shall be offered to male candidates of that category." Rule 2.2.2 reads thus: "There shall be two or more rounds of selection of candidates depending on the availability of vacant seats. The selection will be on the basis of merit and the preferences submitted by the candidates in their preference form. The selection will be on the basis of merit and the preferences submitted by the candidates in their preference form. For second or subsequent round, no separate preference form will be filled by the candidate. The choices of courses and colleges, once entered in the record/data, after verification by the candidate, shall be final and irrevocable. This final data shall be used in entire selection process for the admission to first year health science courses for the academic year 2006-2007." Rule 2.2.3 reads thus: "The candidates may kindly note while filling the preference form that MHT -CET -2006 merit list will be operated from SML number 1 onwards in each round of selection. The candidate getting selected in previous round will be considered for betterment in the subsequent round. The betterment herein means the higher preference exercised by the candidate. The shift in such betterment shall be compulsory and mandatory except for those who have filled 'Status Retention Form'. Such a candidate who has filled Status Retention Form will not be considered for any subsequent rounds of selection process for the year 2006-2007. The last date for filling Status Retention Form will be notified along with the selection list." Rule 2.3.1 reads thus: "While filling the 'seats for any college/institution State seats (30%) shall be filled first followed by regional seats (70%). The seats for the MKB shall be available as per State merit list only. The seats for Defence category shall be allotted regionwise." 7. The plain reading of these Rules shows that out of the seats available at the disposal of the Competent Authority, 30% of such seats in Colleges were to be made available for the candidates from the State and these seats were to be filled on the basis of State Merit List and remaining 70% seats were to be filled from regional quota. It is, therefore, evident that mandate of Rules 1.4.2, 2.2.2 and 2.2.3 is loud and clear that allotment of seats is required to be done strictly on the basis of merit and preferences submitted by the candidates in their respective forms. It is, therefore, evident that for allocation of seats, merit secured by the candidate in MHT-CET-2006 is the primary criteria. It is, therefore, evident that for allocation of seats, merit secured by the candidate in MHT-CET-2006 is the primary criteria. Seats in 30% State quota are required to be filled first in any Institution by the Competent Authority strictly on the basis of State Merit List and it is only thereafter 70% seats are required to be filled from 70% regional quota on the basis of merit as per mandate of Rule 2.3.1. Similarly, Rule 2.2.3 requires Competent Authority to follow the said procedure of allotment of seats not only in the first round of admission, but also in each round of admission process. It is, therefore, evident that it is the merit of the candidate, which is required to be considered first followed by preference exercised by him/her while allotting a seat to such candidate in the concerned College. We feel it necessary to observe that this aspect has not been disputed by the learned Associate Advocate General. 8. In the instant case, we are concerned with allocation of seats made by the Competent Authority in Indira Gandhi Medical College, Nagpur in the second round of admission. In the I.G.M.C, Nagpur, total seats available for allocation in 30% State quota and 70% regional quota were twelve. Out of these twelve seats, four seats were meant for 30% State quota and as per mandate of Rules, these seats were required to be filled first strictly on the basis of State Merit List followed by allocation of seats in 70% regional quota and that is also on the basis of merit. This procedure has been followed by the Competent Authority in the first round of admission and, therefore, names reflected in the admission chart referred to hereinabove clearly demonstrate that as per State Merit List, first four students were allotted seats in 30% State quota and remaining eight seats were allocated to candidates from 70% regional quota. This procedure has been followed by the Competent Authority in the first round of admission and, therefore, names reflected in the admission chart referred to hereinabove clearly demonstrate that as per State Merit List, first four students were allotted seats in 30% State quota and remaining eight seats were allocated to candidates from 70% regional quota. It is not in dispute that student No. 1 Purbi Acharya and student No.2 Anuradha Rathi were shifted to B.J.M.C, Pune and G.M.C, Nagpur respectively in 70% quota as per their merit and, therefore, out of four seats meant, for 30% State quota in I.G.M.C, Nagpur, two seats fell vacant and as per mandate of the rules, these two seats were required to be filled in first by the Competent Authority purely on the basis of State Merit List and as per the Rules, it was impermissible for the Competent Authority to fill in seats in 30% State quota by the candidates, who were less in merit as per the State Merit List. 9. In the instant case, as per chart showing allocation of seats .in second round of admission, two seats, which fell vacant in 30% State quota because of shifting of two students, ought to have been filled in by the Competent Authority strictly on the basis of State Merit List. The students, who are shown at serial Nos. 3 and 4 in the chart, namely, Snehal Deshmukh and Pragya Sharma being more meritorious than Dipika Mishra and Kirti Ruikar shown at serial Nos. 9 and 10 in the chart should have been placed in the 30% State quota and Dipika Mishra and Kirti Ruikar could not have been allotted seats in I.G.M.C, Nagpur in 30% State quota only on the ground that students given seats in I.G.M.C, Nagpur in 70% quota as per their preferences could not be shifted anywhere. It is no doubt true that the Competent Authority is required to consider preferences, but not by ignoring merits of the students. Betterment in preference is possible only if it is based on merit and not vice versa. It is, therefore, evident that allotment of seats done by the Competent Authority in I.G.M.C, Nagpur in 30% State quota in the second round of admission is not consistent with Rules 2.2.2, 2.2.3 and 2.3.1 of the admission rules. Betterment in preference is possible only if it is based on merit and not vice versa. It is, therefore, evident that allotment of seats done by the Competent Authority in I.G.M.C, Nagpur in 30% State quota in the second round of admission is not consistent with Rules 2.2.2, 2.2.3 and 2.3.1 of the admission rules. As per these rules, first four seats in the second round of admission ought to have been filled in on the basis of State Merit List in 30% State quota and remaining eight seats should have been filled in on the basis of merit in 70% regional quota from Vidarbha region. The last student allotted seat in 70% quota in second round of admission in I.G.M.C., Nagpur has State Merit No. 940 and the petitioner, who was admitted in the College at Yavatmal, has State Merit No. 963 and if Dipika Mishra and Kirti Ruikar would not have been allocated seats in 30% State quota only on the basis of their preference ignoring the aspect of merit and since there is no candidate in between State Merit No. 940 to 963 in 70% quota from Vidarbha, the petitioner would have been eligible for allocation of seat in I.G.M.C. on the basis of her merit and preference in 70% quota. 10. It is brought to the notice of this Court by the learned Associate Advocate General that first, second and third rounds of admissions are already over and the cut off date is 30-9-2006. It is also brought to the notice of this Court that so far as Dipika Mishra is concerned, she was given admission in Government Medical College, Meeraj in the first round and was shifted to Indira Gandhi Medical College, Nagpur in the second round of admission in 30% State quota. In her place, Nishigandha Vilas Nehete was allocated seat in Government Medical College, Meeraj. She was, in the first round, given seat in S.B.H. Government Medical College, Dhule. Similarly, Shrutika Bhagwanda Shah; who was allotted seat in Maharashtra Institute of Medical Education and Research, Talegaon, Pune, was shifted to Dhule Medical College. In her place, Nishigandha Vilas Nehete was allocated seat in Government Medical College, Meeraj. She was, in the first round, given seat in S.B.H. Government Medical College, Dhule. Similarly, Shrutika Bhagwanda Shah; who was allotted seat in Maharashtra Institute of Medical Education and Research, Talegaon, Pune, was shifted to Dhule Medical College. It is also brought to the notice of this Court by the learned Associate Advocate General for the Competent Authority that so far as Kirti Ruikar is concerned, in the first round, she was given admission in the Government Medical College, Yavatmal along with petitioner and was shifted to Indira Gandhi Medical College, Nagpur in the second round in 30% State quota though she is from Marathwada region. 11. In view of mandate of the Rules and procedure contemplated therein and as observed by us hereinabove, the Competent Authority could not have shifted Dipika Mishra and Kirti Ruikar in I.G.M.C., Nagpur in 30% State quota and in absence thereof, petitioner would have been eligible as per her merit and preference in 70% quota for allocation of seat in I.G.M.C., Nagpur in the second round of admission. So far as Dipika Mishra is concerned, it is difficult to put the clock back in time because of the abovereferred facts. However, it will be appropriate if the Competent Authority considers eligibility of the petitioner for allocation of seat in 70% regional quota as per her merit and preference in I.G.M.C., Nagpur and whether Kirti Ruikar can be accommodated in Government Medical College, Yavatmal against the seat, which would fall vacant if the petitioner is shifted to I.G.M.C., Nagpur, without disturbing admission process already undertaken by the competent Authority. 12. With the above observations, the petition is disposed of. No order as to costs. 13. Mrs. Dangre, learned Assistant Government Pleader, at this stage requests to suspend the effect and operation of the order for a period of fifteen days. Shri Parchure, learned Counsel for the petitioner, opposes the request. Be that as it may, since the conclusion arrived at by us is based on interpretation of the Rules of admission, the request made by the learned Assistant Government Pleader is rejected. Order accordingly.