Judgment ( 1. ) THE facts lies in narrow compass. It is not in dispute that petitioner appeared in Pre-Medical Test Examination 2007. He was placed in the waiting list of general candidates at Sr. No. 144 and in the waiting list of OBC category at Sr. No. 45. It is also not in dispute that petitioner belongs to OBC category. In the First round of counselling which was held a seat in MBBS course could hot be offered to him, considering his standing in the general as well as obc category. He was offered a seat in the capacity of general category candidate in BDS course during first counselling which he opted. It is also not in dispute that petitioner submitted an option as per rule 9. 9 to switch over to MBBS course in case seat remains vacant. It is also not in dispute that petitioner was called for counselling held for MBBS course of OBC category candidate but participation in counselling was declined by the committee on the ground that in the first counselling he had opted the seat of general category of BDS course, thus his case could be considered only against the seat of MBBS course of unreserved (general) category candidates. Consideration as against OBC category seat was declined as per order (R-l) filed with the return bythestateofm. P. Consequently, petitioner has come up in the writ petition. ( 2. ) PETITIONER has submitted that by-virtue of Rule 9. 9, 9. 9 (a) and 9. 14 of the Rules (P-6)called Madhya Pradesh Medical and Dental Undergraduate Entrance Examination rules, 2007 hereinafter to be referred to as the rules of 2007. Petitioner should have been given chance to stake his claim as against seat of MBBS course reserved for obc category as per his merit in the OBC category candidates, thus meritorious candidates of OBC reserved category has been deprived of the seat and incumbents of OBC category having lesser merit have been given admissions in the MBBS course as against the seat of OBC category. Petitioner has further submitted that name of the petitioner in the waiting list of OBC category was at serial number 45 whereas admission has been given of OBC category candidate in the MBBS course out of the waiting list from serial number 46 to 5 3. Names of 2 of the candidates namely Ms. M. Sahu at Sr. Petitioner has further submitted that name of the petitioner in the waiting list of OBC category was at serial number 45 whereas admission has been given of OBC category candidate in the MBBS course out of the waiting list from serial number 46 to 5 3. Names of 2 of the candidates namely Ms. M. Sahu at Sr. No. 47 and A. Singh at Sr. No. 49 have also been mentioned. ( 3. ) STAND of respondents No. 1 and 2 in their return is that considering rule 9. 9, 9. 9 (a) and rule"9. 14 of the rules 2007, it was open to the petitioner to avail option only once in unreserved category which he had exercised, thus he could not have given chance as OBC category candidate in the counselling held on 26. 8. 2007. Action is in accordance with the rules. Petitioner could have exercised the option for MBBS course in unreserved category not as against the seat of reserved obc category. ( 4. ) STAND of MCI in the return is that no seat can be created in case petitioner is held entitled for admission and has been wrongfully deprived of the admission in the last year, he can be admitted only against quota of OBC category of MBBS course of current academic year 2008-09. ( 5. ) SHRI Mrigendra Singh, learned counsel appearing for petitioner has submitted that action of respondents No. 1 and 2 is contrary to rule 9. 9, 9. 9 (a ). and 9. 14 of the rules of 2007. He has submitted that as the MBBS course seat remained vacant and were offered at the time of second counselling of OBC category, petitioner who was higher in merit of OBC category, could not have been deprived of chance of staking claim as OBC category candidate of OBC category MBBS course seats. There is nothing in the rules debarring the candidate of participation in reserved category in case he has availed the general category seat at the time of first counselling. As reserved category seat of MBBS course could not be offered to him at the stage of first counselling, rule 9. 14 is enabling provision providing the option during each counselling to select the seat either of reserved or unreserved category to the SC/st/obc category as per merit position in the lists. Thus it is submitted that rule 9. As reserved category seat of MBBS course could not be offered to him at the stage of first counselling, rule 9. 14 is enabling provision providing the option during each counselling to select the seat either of reserved or unreserved category to the SC/st/obc category as per merit position in the lists. Thus it is submitted that rule 9. 14 applicability is not confined to first counselling, it applies to second or any other successive counselling. He has further submitted that in the instant case OBC category candidate of higher merit has been deprived of MBBS course seat. At the time of first counselling, none of the seat of OBC category was offered to the petitioner as such he had opted for BDS seat of unreserved category which was the only option available, thus it could not be said that petitioner has exhausted the- right to exercise option as OBC category candidate MBBS course seat in case it remained vacant. ( 6. ) SHRI Kumaresh Pathak, Dy. AG for State has submitted that once the petitioner has opted the seat of unreserved category at the time of first counselling, he could not be allowed to stake claim with the reserved category candidate seats in second counselling as that would have effect of increasing the percentage of reservation for reserved category. He has relied upon Rules 9. 9 and 9. 9 (a) of the Rules of 2007. He has submitted that decision (R-l) has been taken in accordance with the rules. No case for interference in the writ petition is made out. ( 7. ) MRS. Indira Nair, learned Sr. Advocate with Ms. Tulika Gulati appearing for mci has submitted that in case it is found by the court that petitioner has been wrongfully deprived of the seat of MBBS course in the year 2007, he can only be admitted as against the quota of OBC as against the vacant seat of 2008-09. ( 8. ) THE main question for consideration in the writ petition is about the interpretation of rules 9. 9, 9. 9 (a) and 9. 14. Class and category referred to in the aforesaid rules has been defined in rule 2. 5 and 2. 6 thus 2. 5 - "category" means Scheduled Tribe, Scheduled Caste, other Backward Classes, and Unreserved category -as specified and laid down by the Governmentof Madhya Pradesh. 2. 9, 9. 9 (a) and 9. 14. Class and category referred to in the aforesaid rules has been defined in rule 2. 5 and 2. 6 thus 2. 5 - "category" means Scheduled Tribe, Scheduled Caste, other Backward Classes, and Unreserved category -as specified and laid down by the Governmentof Madhya Pradesh. 2. 6 - "class" means Military Personnel (M. P.) Freedom Fighter (FF) NO CLASS (X) and FEMALE (F) as specified and laid down by Government of Madhya Pradesh, Physically Handicapped (PH)means as specified and laid down by Ministry of Labour, government of India for vocational Rehabilitation of Physically handicapped. ( 9. ) RULES 9. 9, 9. 9 (a) and 9. 14 are also quoted below : 9. 9 : During the first counselling allotment of seats of Medical/ dental colleges shall he done. A candidate who has opted a BDS course during the first counselling, if such candidate is desire to re-allocation be admitted to MBBS course, such candidate may submit his application to the Director, Medical Education through principal of the concerned Dental College within 7 days. All such applicants will be eligible for re-allocation to vacant seats of MBBS course as per merit/category/class at the second counselling. Application received after the due date will not be considered. All such applications must reach to the office of the Directorate of medical Education before seven days of commencement of second counselling. 9. 9 (a): Re-allocation of MBBS course will be done on merit basis as per availability of vacant seats in category/class of the candidate. 9. 14: A candidate belonging to ST/sc/obc category, whose name also appear in the merit/waiting list of unreserved category beside the merit/waiting list of his/her own reserved category shall have an option during counselling to select the seat either from reserved category or un-reserved category. ( 10. ) IT is apparent that word category has reference to SC,st, OBC and unreserved category whereas class means Military Personnel (M. P.), Freedom fighter (FF), No Class (X) and female (F) and physically handicapped. It is provided in rule 9. 9 that candidate who has opted a BDS course during the first counselling, if such candidate is desire to re-allocation be admitted to MBBS course. It is not in dispute that such application was filed by the petitioner for opting mbbs course. It is provided in rule 9. 9 that candidate who has opted a BDS course during the first counselling, if such candidate is desire to re-allocation be admitted to MBBS course. It is not in dispute that such application was filed by the petitioner for opting mbbs course. It is also apparent that at the time of first counselling none of the seat of OBC category could be offered to the petitioner of MBBS course or of bds course as per his merit in the reserved category OBC seats. He was given admission as against the unreserved seat of BDS course. Under rule 9. 9 of the rules of 2007 all such applicants who have opted will be eligible for re-allocation to vacant seats of MBBS course as per merit/category/class at the second counselling. The category mentioned in rule 9. 9 is with reference to the category to which a person belongs, that includes category as already mentioned of the candidates of SC/st/obc and unreserved category. Thus category is not confined to option exercised at first counselling. A person having dual character of category reserved and unreserved, merely by his participation in the first counselling in unreserved category he does not assume character exclusively of unreserved category. He can still exercise right as reserved category candidate if seat of such category remains vacant. No such rule pointing out that if a person of SC/st or OBC category as per his merit in unreserved category stakes his claim as against the seat of unreserved category later on in case any seat of reserved category remains vacant, cannot stake his claim. In the instant case seat of reserved obc category remained vacant and it could not be earlier offered to the petitioner as per his merit as of OBC category at the time of first counselling. The seat of mbbs course was not offered to him in first counselling. He had no chance of staking his claim to the seat of MBBS course in the category of OBC candidate. Petitioner as per his merit stood at sr. The seat of mbbs course was not offered to him in first counselling. He had no chance of staking his claim to the seat of MBBS course in the category of OBC candidate. Petitioner as per his merit stood at sr. number 45 in the waiting list of OBC category whereas seats of OBC category MBBS course were alloted to the candidates who were lesser in merit at serial number 46 to 53, thus petitioners merit has been ignored and overlooked by the action of the respondents by not permitting him to stake his claim in MBBS course seat of OBC category as he had joined earlier seat of BDS course of unreserved category. ( 11. ) RULE 9. 9 (a) has been relied upon by Shri Kumaresh Pathak, Dy. AG appearing on behalf of State. Rule 9. 9 (a) provides that re-allocation of MBBS course will be done on merit basis as per availability of vacant seats in category class of the candidate. The category of the petitioner was OBC category. It was open to him to stake claim against unreserved seat also, in case it was offered to him, at the time of first counselling. In our opinion Rule 9. 9. (a) operation cannot be constricted to the category which option has been exercised at the time of first counselling as suggested by Shri Kumaresh Pathak, Dy. AG. The submission is countered by rule 9. 14 of the rules of 2007. Rule 9. 14 provides that a candidate belonging to ST/sc/obc category, whose name also appear in the merit/waiting list of unreserved category beside the merit/waiting list of his/her own reserved category shall have an option during counselling to select the seat either from reserved category or un-reserved category. The word "counselling" has been used in rule 9. 14 not at the time of first counselling, thus it is apparent that operation of rule 9. 14 is not confined to first counselling only. The option is available to SC/st, obc category candidate at the stage of second counselling to stake the claim as per his standing in the waiting list of his own reserved category or from unreserved category, that right was deprived to the petitioner is not in dispute. 14 is not confined to first counselling only. The option is available to SC/st, obc category candidate at the stage of second counselling to stake the claim as per his standing in the waiting list of his own reserved category or from unreserved category, that right was deprived to the petitioner is not in dispute. The lesser meritorious candidates of OBC category have been given the admission as compared to the petitioner, he has been unlawfully deprived of the admission in the MBBS course of OBC category seat by respondents No. 1 and 2. ( 12. ) A Division Bench of this Court in Mayank Jain Vs. State of M. P. and others - 2003 (4) MPLJ 497 has considered rule 9. 3 of M. P. Medical and Dentral graduate Entrance Examination Rules, 2003. It is held that rule 9. 3 conferring privilege on the candidate to be entitled to either of the categories, meaning thereby, even if he is qualified and selected in respect of the general category, has the choice to come to the reserved category. The rule is held to be inconsistent with rule 5 of the rules of 2003. But in the instant case petitioner was not offered the seat of MBBS course in the unreserved category of MBBS course at any point of time either in first counselling or in the second counselling. It was not a case similar to instant case which involves interpretation of Rules 9. 14, 9. 9 or 9. 9. (a)of the rules of 2007 at the time of second counselling. In Mayank Jain (supra)candidate who was entitled to be admitted against the unreserved seat could change his option and treat the seat availed as that of reserved category seat. That kind of action we are also not permitting as it is clear that at no point of time petitioner was offered MBBS course seat. The seat of BDS course of unreserved category was offered of which change has not been sought in the instant case to that of bds seat of OBC category. As per rule 9. 9 of the Rules of 2007 a candidate of unreserved category was permitted to leave the BDS course and was permitted to stake his claim as against the unreserved seat of MBBS course, in case it remains vacant. As per rule 9. 9 of the Rules of 2007 a candidate of unreserved category was permitted to leave the BDS course and was permitted to stake his claim as against the unreserved seat of MBBS course, in case it remains vacant. The person still remains of the category to which he belongs, he does not loose it by exercising options at first counselling as per merit with respect to seat which was offered. The decision rendered in Mayank Jain (supra) was in different context and cannot butress the submission raised by Shri Kumaresh pathak, Dy. AG for State that permitting the petitioner to stake claim as OBC candidate during second counselling would have the effect of increasing the percentage of reservation prescribed for reserved category. Percentage of reservation would not have increased by allowing the petitioner to stake his claim against the MBBS course seat of OBC category, hence we have no hesitation in rejecting the submission raised by Shri Kumaresh Pathak, Dy. AG. ( 13. ) SINCE we have come to the conclusion that petitioner has been wrongfully deprived of admission in the MBBS course, the seat of year 2007 cannot be offered to him as it has already been availed by lesser merit candidate of OBC category, thus admission can only be given as against quota of OBC of current year 2008-09. A seat cannot be ordered to be created as rightly submitted by Ms. Indira nair, learned Sr. Counsel appearing for MCI. She has rightly relied upon the decision of Apex Court in Medical Council of India Vs. G. Udhaya Bharathi and ors decided on 12. 7. 2004and Harshali Vs. State of Maharashtra decided on 26th September, 2005. . . Consequently, it is ordered that petitioner to be given admission as against seat of OBC category seat of the year 2008-09 in the MBBS course without counselling. The college to be allotted by 25. 7. 2008 as prayed by Shri Kumaresh pathak, Dy. AG. The petition is allowed to the aforesaid extent. No costs. Petition allowed.