Judgment :- Petitioner has prayed for the following reliefs, in this writ petitions:- a) To direct the respondents to reserve at least one seat out of 12 PG seats in-service quota of ESI Department for PGET-2009 and consider her claim for admission to PG in-service quota reserved for Scheduled Tribe. b) To issue a writ of mandamus or any other appropriate writ or order directing the respondents to consider the claim of the petitioner for the PG seat – DOMS (Diploma in Ophthalmology) reserved for ESI in-service candidates in Mysore Medical College and Research Institute, Mysore (Vide Annexure-F) and allot the said seat under the quota reserved for ST. Petitioner is the holder of MBBS Degree. She is working as Insurance Medical Officer w.e.f. 21.4.2001. She belongs to Scheduled Tribes. 2. The State Government by notification dated 8.12.2006 issued the Karnataka Conduct of Entrance Test for Selection and Admission to Post Graduate Medical and Dental Degree and Diploma Courses Rules, 2006 (for short hereinafter referred to as the ‘Rules’). In terms of Rule 12 of the Rules, out of the total number of seats available for in-service candidates, 15% of the seats are reserved for Scheduled Castes and 3% of the seats are reserved for Scheduled Tribes. The petitioner filed an application for admission to P.G. Course as in-service doctor for PGET under the quota reserved for ESI Department. Based on the marks secured in the entrance test, the third respondent issued a selection list consisting of 20 doctors for consideration to the seats reserved for ESI in-service candidates. 5th respondent issued notification on 9.4.2009 determining seat matrix and fees structure for the Post Graduate Medical Degree and Diploma Courses in Government and Private Medical College for the academic year 2009-10. Copy of the notification dated 9.4.2009 is produced at Annexure-F to the writ petition. The records further reveal that 30% of seats are ear-marked for in-service candidates, and out of the same 10% of Post Graduate Medical Degree seats are reserved for doctors of ESI Department. Pursuant to reservation of 10% of the seats for in-service candidates from amongst ESI Department, the seat matrix was published in the internet for the Post Graduate Entrance Test, 2009 counseling. Seat matrix is produced at Annexures-G, G1, and G2 to the writ petition. Pursuant to reservation of 10% of the seats for in-service candidates from amongst ESI Department, the seat matrix was published in the internet for the Post Graduate Entrance Test, 2009 counseling. Seat matrix is produced at Annexures-G, G1, and G2 to the writ petition. A perusal of Annexure-G series makes it clear that out of 12 seats which constitute 10% of in-service seats meant for ESI Department, 10 seats are allotted for General Merit Category and 2 seats are reserved for Scheduled Castes. No Seat is reserved for Scheduled Tribes. No seat can be reserved for Scheduled Tribe this year as even one seat falls short of 3% of the seats reserved for Scheduled Tribes. In the first round of counseling held on 15.4.2009, 10 seats under General Merit Category and one seat under Scheduled Caste Category have been filled up. However, another seat reserved for Scheduled Caste Category has not been filled up. The petitioner made representation to the respondents to convert the seat reserved for Schedule Caste Category in to the reservation quota of Schedule Tribe Category, in view of non-availability of Schedule Caste candidate. The said representation is not considered by the respondents. Hence, this writ petition is filed praying for the above mentioned reliefs. 3. Rule 12 of the Rules clearly reveal that 15% of seats shall be reserved for the persons belonging to Scheduled Castes and 3% shall be reserved for the persons belonging to Scheduled Tribes. Since seats available are only 12 under ESI Department quota, the same will have to be distributed among General Merit Category, Scheduled Castes and Schedule Tribes. As aforementioned, 15% is reserved for Scheduled Castes and 3% is reserved for Scheduled Tribes, which means, 82% of 12 seats are meant for General Merit Category. That means, General Merit candidates will get 10 seats. Other 2 seats will have to be distributed under 15% quota belonging to Scheduled Castes and 3% belonging to Scheduled Tribes. Since the seats available are only 2, the seat matrix as declared by the State Government shows that both the seats are reserved for Scheduled Castes this year and no seat is reserved for Scheduled Tribes. The respondents submit that the Schedule Tribe candidates will get one seat in every two years under 3% reservation quota. Since the seats available are only 2, the seat matrix as declared by the State Government shows that both the seats are reserved for Scheduled Castes this year and no seat is reserved for Scheduled Tribes. The respondents submit that the Schedule Tribe candidates will get one seat in every two years under 3% reservation quota. Sri N.K. Ramesh, learned advocate appearing for respondent-University submits that last year one seat was reserved for Scheduled Tribe candidate and hence this year, the same is not allotted to Scheduled Tribes. Both the seats, thus are allotted to Scheduled Caste Category this year. Likewise, in the selection of the next year, one seat will be again reserved for Scheduled Tribe Category. These facts are not disputed by the petitioner’s advocate. 4. The prayer of the petitioner is that as one seat is available for Scheduled Caste Category has remained unfilled, the same shall be allotted to another reserved category, i.e., Scheduled Tribe Category. Petitioner relies upon the Government Order bearing No. DPAR 28 SBC 86, dated 12.12.1986, in support of the said contention. Clause 9 of the said order reveals that in case if the candidate belonging to Scheduled Caste Category is not available, the same shall be filled from out of the candidates belonging to Scheduled Tribe Category. Relying upon the said Clause, the petitioner vehemently submits that the seat available for Scheduled Caste Category shall be allotted to the candidates belonging to the Scheduled Tribe Category. The said submission is opposed by Sri N.K. Ramesh, learned counsel appearing on behalf of Sri Rajiv Gandhi University of Health Sciences and Sri B. Manohar, learned Government Advocate. According to Sri N.K. Ramesh, one seat reserved for Schedule Caste Category has remained unfilled because of the interim order granted by this Court and the same will be filled in second round of counseling from among the Scheduled Caste candidates as the Schedule Caste candidates are still available for consideration. The respondents point out that the Government Order dated 12.12.1986, referred to above, only deals with the reservation at the time of appointment and promotions and the same does not deal with the selection of the candidates during their educational career. The respondents point out that the Government Order dated 12.12.1986, referred to above, only deals with the reservation at the time of appointment and promotions and the same does not deal with the selection of the candidates during their educational career. Respondents further rely upon the subsequent Government Order, bearing No.DPAR 19 SBC 89, dated 12.7.1989, to contend that if the Scheduled Caste candidate is not available on a particular year of selection, the same shall be treated as backing vacancy and such backlog vacancy may continue for three years. 5. Clauses 1, 2, 3 and 4 of the said Government Order dated 12.7.1989 referred to above are relevant to note, which read thus:- “1. The vacancies respectively classified for Scheduled Castes and Scheduled Tribes but not filled by appointment from each of such categories due to non-availability of candidates belonging to Scheduled Castes/Scheduled Tribes in all the direct recruitments made on or after 1st January 1986 so far, shall be categorized as ‘backlog’ vacancies and one attempt shall be made for recruiting suitable candidates belonging only to the Scheduled Castes/Scheduled Tribes through the appropriate recruiting agencies. A vacancy classified and carried forward should be counted as one vacancy only for inclusion in the backlog irrespective of the number of times that vacancy was carried forward. If the number of candidates selected during such attempt against the backlog is more than the number of vacancies actually available, the vacancies arising in future shall be first utilized for exhausting list of candidates selected during such attempt. However, if the number of candidates, selected during such attempt is less than the number required to clear the backlog, the unutilized portion of the backlog, vacancies shall be carried forward as backlog vacancies to the next direct recruitment. 2. In the next direct recruitment, the vacancies released for that recruitment (called the ‘current’ vacancies) and the ‘backlog’ vacancies both shall be advertised but keeping ‘current’ and ‘backlog’ vacancies as two distinct groups. While doing so, the ‘current’ vacancies for Scheduled Castes, Scheduled Tribes and other Backward Classes. The ‘backlog’ vacancies shall not be classified again but they shall be continued to be earmarked for Scheduled Castes/Scheduled Tribes as per earlier classification and the vacancies be filled accordingly. 3. While doing so, the ‘current’ vacancies for Scheduled Castes, Scheduled Tribes and other Backward Classes. The ‘backlog’ vacancies shall not be classified again but they shall be continued to be earmarked for Scheduled Castes/Scheduled Tribes as per earlier classification and the vacancies be filled accordingly. 3. The vacancies classified for Scheduled Castes and Scheduled Tribes out of the ‘current vacancies’ together with the earlier backlog vacancies, if any, which remain unutilized during any direct recruitment shall constitute the backlog for the next direct recruitment. The process should continue in the subsequent direct recruitments also. 4. If after making the attempt referred to in para 1, the backlog vacancies are not exhausted within three years or after three direct recruitments whichever is later, then the vacancy earmarked in the backlog for Scheduled Castes should be filed by Scheduled Tribes and vice-versa in the subsequent direct recruitments if suitable candidates belonging to the category for which the vacancy is reserved are not available. Under no other circumstances the vacancies should be dereserved and they shall remain vacant until candidates of the category are available”. (Emphasis supplied) From Caluses 1, 2, 3 and 4 of the said Government Order, it is very clear that the vacancies classified for Scheduled Castes and Scheduled Tribes out of the ‘current vacancies’ together with the earlier backlog vacancies, if any, which remain unutilized during any direct recruitment shall constitute the backlog for the next direct recruitment. The process should continue in the subsequent direct recruitments also. If the backlog vacancies are not exhausted within three years or after three direct recruitments whichever is later, then the vacancy earmarked in the backlog for Scheduled Castes should be filed by Scheduled Tribes and vice-versa in the subsequent direct recruitments if suitable candidates belonging to the category for which the vacancy is reserved are not available. Under no other circumstances, the vacancies should be dereserved and they shall remain vacant until candidates of the category are available. 6. The Government Order dated 12.7.1989 practically supercedes the Government order dated 12.12.1986, relied upon by the petitioner. Moreover, these Government Orders, appear to deal only with appointment to the posts in the Department. They do not relate to the selection of the candidates for admission to the P.G. Medical Courses for the purposes of study to obtain Post-Graduate degree. 6. The Government Order dated 12.7.1989 practically supercedes the Government order dated 12.12.1986, relied upon by the petitioner. Moreover, these Government Orders, appear to deal only with appointment to the posts in the Department. They do not relate to the selection of the candidates for admission to the P.G. Medical Courses for the purposes of study to obtain Post-Graduate degree. The relevant Rules which deal with the selection and admission to the P.G. Medical and Diploma Courses are “Karnataka Conduct of Entrance Test for Selection and Admission to Post Graduate Medical and Dental Degree and Diploma Courses Rules, 2006”. Rule 11 of the said Rules read thus:- 7. It is also relevant to note Rule 11 of the Rules, which reads thus:- “11. Distribution of seats: (1) Out of total number of Government seats, the Government shall notify the number of seats to be reserved for in-service candidates. (2) Any seats reserved for in-service candidates which remain unfilled for want of eligible candidates or otherwise shall be added to the non in-service quota seats. Form the aforementioned Rule 11(2), it is clear that any seats reserved for in-service candidates, which remained unfilled for want of eligible candidates or otherwise shall be added to the non in-service quota seats. Which means that the seat reserved for in-service candidates can be allotted to the candidate of non in-service category in case if want of eligible candidates in reserved category. In any view of the matter, and even assuming that the Government orders of 12-12-86 and 12-7-89, mentioned supra are applicable for selection of the candidates to the P.G. Degree medical and dental courses, the prayer of the petitioner cannot be granted since there is no provision to change reservation from Scheduled Castes to Scheduled Tribes (atleast for three years). In view of the same, the writ petition fails and accordingly same is dismissed. However, the candidature of the petitioner shall be considered by the respondents in the second round of counseling under General Merit Category.