JUDGMENT Hon’ble Arun Tandon, J.—These two writ petitions have been filed by eight candidates who appeared in the entrance test conducted by Bundelkhand University, Jhansi for admission to Master of Pharmacy course in four discipline namely M-Pharm (Pharmaceutical Chemistry), M-Pharm (Pharmacology), M-Pharm (Pharmacognosy), and M-Pharm (Pharmaceutics) for academic session 2006-07, a two years degree course in pursuance of advertisement published on 2/3rd May, 2006. 2. The applications made by the petitioners were processed and they were allotted roll number. Petitioners appeared in the entrance test held on 28-6-2006. Some of the petitioners are members of OBC/SC/ ST category. Petitioners allege that they have secured more than 170 marks out of 300 maximum marks in the entrance test and having regard to the terms and conditions of the brochure published, inviting applications for the concerned course they are entitled for weightage of 15% marks (Reference Clause (11)) which reads as under : “11. Candidate taking in the under mentioned category shall be given additional weightage of 15% of percentage of marks obtained by them in the admission test subject to satisfying the condition mentioned in Clause-7 above. (a) Candidates who have passed the qualifying examination from Bundelkhand University. The minimum academic qualification prescribed for making an application under the Brochure was B-Pharma with at least 55% marks. The result of entrance test was published on 15-9-2006. 3. The first list of qualified candidates invited for counselling was published by the University which comprised of 57 candidates. In the list the candidates who had qualified GATE examination i.e. Graduate Aptitude Test in Engineering conducted by GATE, Committee alone were included irrespective of the inter se merit of the candidates as per the marks received in the entrance test. Petitioners who were not GATE qualified were not included in the said call list. Similarly in respect of 2nd, 3rd and 4th counselling which had taken place, the candidates who were GATE qualified, have been invited for counselling irrespective of the marks secured by them before consideration of the candidates who were not GATE qualified. This led to the filing of present writ petition. 4. Similarly in respect of 2nd, 3rd and 4th counselling which had taken place, the candidates who were GATE qualified, have been invited for counselling irrespective of the marks secured by them before consideration of the candidates who were not GATE qualified. This led to the filing of present writ petition. 4. Petitioners seek quashing of the result of Entrance test 2006 for M.Pharma course for session 2006-07 as published on 12-9-2006 whereby GATE qualified candidates en block have been placed in the first call list irrespective of the marks secured by them in the entrance test in preference to the candidates like petitioners who were not GATE qualified, but had secured better marks in the entrance examination. 5. Learned counsel for the petitioners points out that in the academic programme announced by the University in respect of the aforesaid course a note was published which reads as under : "Note : First preference shall be given to GATE qualified candidates subject to their qualifying the entrance test.” However the note appended at the bottom of the academic programme being Note (2) relevant reads as under : “Admission to the courses grouped under ET is based on the merit obtained by the candidate in the entrance test conducted by the University. The admission to the course marked with (**) is based on the merit of the candidate in the State level entrance test conducted by the relevant bodies. However the seats assigned under University/Management quota, as well as, seats remaining unfilled through State level tests shall be filled from amongst the candidates appearing in the combined written entrance test conducted by the University as per merit basis.” Learned counsel for the petitioners submits that in view of aforesaid clause admission to the M. Pharm Course which has been grouped under ET, has to be granted on the basis of merit obtained by the candidates in the entrance test conducted by the University and in a given case where marks obtained by two candidates are equal, preference is to be given to GATE qualified candidate. 6. Learned counsel for the petitioners submits at the preference to be provided to GATE qualified candidates as per note to the academic programme would only mean that other thing being equal quantitatively and qualitatively, those having additional qualification of GATE would be preferred. 6. Learned counsel for the petitioners submits at the preference to be provided to GATE qualified candidates as per note to the academic programme would only mean that other thing being equal quantitatively and qualitatively, those having additional qualification of GATE would be preferred. Reliance has been placed upon the judgment reported in, 2006 (6) SCC 474 , State of U.P. v. Om Prakash and 2003 (5) SCC 341 , Secretary, Andhra Pradesh Public Service Commission v. Y.V.V.R. Srinivasulu and others. 7. Sri Prakash Padia, advocate and Sri R.P. Tiwari, advocate, learned counsel for the University contend that according to the conditions notified candidates with GATE qualification were to be given first preference subject to their qualifying entrance test. Accordingly after the result of the entrance test was declared the University en block placed the GATE qualified candidates in the first list for counselling irrespective of the marks secured by them in the Entrance Test, provided they qualified the entrance test. The factual position in that regard has been clarified in the affidavit of Dr. Raghuveer Irchhaiya, Head of the department, Institute of Pharmacy, Bundelkhand University, Jhansi dated 20.2.2007. 8. In paragraph 10 of the Supplementary counter-affidavit filed, the marks obtained by the petitioners in the entrance test have been stated which range between 98.70 to 172.20. In Paragraph 12 of the affidavit it has been stated that the last candidate with GATE qualification, who had been admitted after first counselling, had secured 110 marks. It has been stated that since the petitioners did not possess GATE qualification that have not been called for counselling. In respect of second and third round of counselling various facts have been mentioned giving out cut off marks of the candidates who had been admitted without having GATE qualification. According to the University all the petitioners who were within cut off marks with reference to 2nd, 3rd and 4th round of counselling, have been granted admission while other petitioners who had achieved less marks, have been denied such admission. On behalf of respondents another objection has been raised qua non-impleadment of the candidates who have been admitted to the course in pursuance of first round of counselling and, therefore, it is submitted that writ petition deserved to be dismissed on the ground of non-joinder of necessary parties. 9. On behalf of respondents another objection has been raised qua non-impleadment of the candidates who have been admitted to the course in pursuance of first round of counselling and, therefore, it is submitted that writ petition deserved to be dismissed on the ground of non-joinder of necessary parties. 9. In the rejoinder affidavit learned counsel for the petitioners submits that the first counselling done by the University itself is legal inasmuch as persons with lower marks than the petitioners have been admitted in pursuance to the first round of counselling only on the ground that they were GATE qualified. The procedure adopted by the University in that regards runs contrary to the law laid down by the Hon’ble Supreme Court. 10. Heard learned counsel for the parties and perused the record of the present writ petition. 11. This court may record that although impleadment of the candidates admitted to the course in pursuance of first round of counselling may have been necessary for granting the relief as a whole prayed by the petitioner. However, under the interim order passed by this Court on 11.10.2006, (when counselling was in progress) it was provided that the same shall be subject to further orders to be passed by this Court in this writ petition. All admission granted subsequent to the order dated 11.10.2006 would be subject to final orders to be passed in the present writ petition. Even otherwise this Court may record that at that stage only fifty candidates had been granted admission and therefore requisite number of seats were till available for accommodating the petitioners. 12. In such circumstances this Court is not inclined to accept the contention raised on behalf of the respondents that in absence of impleadment of candidates admitted in the first round of counselling, present writ petition would not be maintainable. 13. The legal issue up for consideration before this Court is as to whether in terms of academic programme and brochure published candidates with GATE qualification would be entitled to be placed en bloc at the top of the call list irrespective of marks secured by them in the written examination or not. 14. 13. The legal issue up for consideration before this Court is as to whether in terms of academic programme and brochure published candidates with GATE qualification would be entitled to be placed en bloc at the top of the call list irrespective of marks secured by them in the written examination or not. 14. Although in the note which is appended against the course concerned namely M.Pharma, first preference was notified to be given to GATE qualified candidates subject to their qualifying the entrance test, yet under Note (2) at the bottom of academic programme it was provided that admission to the courses grouped under ET is based on the merit obtained by the candidate in the entrance test conducted by the University. 15. The Hon’ble Supreme Court in the case of State of U.P. v. Om Prakash (supra) in paragraph 19 has held as follows : "The word “preference” would mean that when the claims of all candidates who are eligible and who possess the requisite educational qualification prescribed in the advertisement are taken for consideration and when one or more of them are found equally positioned, then only the additional qualification may be taken as a tilting factor, in favour of candidates vis-a-vis others in the merit list prepared by the Commission. But preference does not mean en bloc preference irrespective of inter se merit and suitability.” 16. Similarly in the case of Secretary Andhra Pradesh (supra) the Hon’ble Supreme Court while explaining the ‘preference to be granted’ has held as follows : "10.......... The procedure for selection in the case involves a qualifying test, a written examination and an oral test or interview and the final list of selection has to be on the basis of the marks obtained in them. The suitability and all round merit, if had to be adjudged in that manner only, what justification could there be for overriding all these merely because, a particular candidate is in possession of an additional qualification on the basis of which, a preference has also been envisaged. The Rules do not provide for separate classification of those candidates or apply different norms of selection for them. The Rules do not provide for separate classification of those candidates or apply different norms of selection for them. The "preference” envisaged in the Rules, in our view, under the scheme of things and contextually also cannot mean, an absolute en bloc preference akin to reservation or separate and distinct method of selection for them alone mere rule of preference meant to give weightage to the additional qualification cannot be enforced as a rule of reservation or rule of complete precedence. Such a construction would not only undermine the scheme of selection envisaged through the Public Service Commission on the basis of merit performance but also would work great hardship and injustice to those who possess the required minimum educational qualification with which they are entitled to compete with those possessing additional qualification too, and demonstrate their superiority merit wise and their suitability for the post. It is not to be viewed as a preferential right conferred even for taking up their claims for consideration. On the other hand, the preference envisaged has to be given only when the claims of all candidates who are eligible are taken for consideration and when any one or more of them are found equally positioned, by using the additional qualification as a tilting factor, in their favour vis-a-vis others in the matter of actual selection.’’ “11. Whenever a selection is, to be made on the basis of merit performance involving competition and possession of any additional qualification or factor is also envisaged to accord preference, it cannot be for the purpose of putting them as a whole lot ahead of others, dehors their intrinsic worth or proven inter se merit and suitability, duly assessed by the competent authority. Preference in the context of all such competitive scheme of selection would only mean that other things being qualitatively and quantitatively equal, those with the additional qualification have to be preferred.” In view of the aforesaid placement of GATE qualified candidates En-block in the first call list irrespective of the marks obtained by them in the Entrance Examination cannot be approved. However, no direction adverse to the admitted candidates can be passed as they are not a party to this petition. 17. However, no direction adverse to the admitted candidates can be passed as they are not a party to this petition. 17. In clause 11 of the Brochure published by the University it is provided that additional weightage of 15% marks shall be provided to the candidates who have passed the qualifying examination from Bundelkhand University itself. Absolutely no reasons have been given as to why this weightage of 15% marks, as per Brochure, has not been made available to the petitioners. 18. Averments in that regard have been made in para 9 of the writ petition. The contents of the said paragraph have been replied in paragraph 7 of the counter affidavit filed by Om Prakash, Legal Assistant in Bundelkhand University, Jhansi which reads as under : “7. That the contents of paragraph 9 of the writ petition are not correct in the manner stated. The right of weightage of University Institutional student is the policy matter of the University. However, there is no such rule that weightage shall be given to such candidates ignoring the better qualification of the candidates like GATE etc. The petitioner cannot claim weightage as a matter of right.” 19. In the opinion of the Court the stand so taken is illegal. The University authorities are bound by the conditions notified for the purposes of regulating the admission in pursuance to entrance test as disclosed in the brochure. If the University had notified a weightage of 15% of marks to be given to the candidates who have passed the qualifying examination from Bundelkhand University, such weightage has to be provided by the University authorities to the candidates who have passed qualifying examination from the University. It is settled law that the rules framed at the time of initiation of the process of selection cannot be altered during the midst of the process of selection. The University authorities cannot be permitted to bye-pass the condition notified in the broacher, after the examinations are over. 20. This Court may also record that in para 8 of the counter affidavit it is stated that 19 seats are lying vacant in the University against which the claim of the petitioners will be considered strictly in accordance with merit of the candidates who have appeared in the entrance test. 20. This Court may also record that in para 8 of the counter affidavit it is stated that 19 seats are lying vacant in the University against which the claim of the petitioners will be considered strictly in accordance with merit of the candidates who have appeared in the entrance test. Admission to these 19 seats was therefore subject to the final orders to be passed in the present writ petition, in view of the interim order passed by this Court on 11.10.2006. Petitioners who have passed qualifying examination from the University itself are entitled for re-determination of their merit after addition of 15% weightage marks and their claim for admission in the aforesaid course must be reconsidered by the University against these 19 seats. 21. Accordingly writ petition is allowed in part. The University is directed to re- calculate the merit of the institutional students after addition of 15% weightage marks to the marks obtained by them in the Entrance examination and to provide admission on the basis of merit so secured against 19 seats referred to in para 8 of the counter-affidavit, in accordance with law. The aforesaid exercise may be completed within four weeks from the date a certified copy of this order is served upon the Registrar of the University. 22. Writ petition is allowed in part. ————