Judgment :- Pursuant to a Notification issued by the Selection Committee, Directorate of Medical Education, for admission to three year Higher Speciality Courses in Tamilnadu Government Medical Colleges, for the academic year 2009-2010, the petitioner has applied for admission to Higher Speciality Course and he opted for D.M.(Medical Gastro Enterology) course, under open category. Eight seats are notified for the said course. 50% of the seats are reserved for in service candidates and 50% of the seats are earmarked for open category candidates. 2. According to the petitioner, four seats are earmarked for non-service candidates. An interview was held on 12.08.2009, and four candidates were selected under non-service category, and four in service candidates were selected from the overall merit list. As per the order of merit, the petitioner was placed at serial No.7 in the overall ranking, and at Serial No.5 under non-service category. As the petitioner was placed at serial No.7 in the open merit list, he should have been placed at Serial No.1 in the waiting list. However, during the interview, instead of calling the wait listed candidates from the respective categories, 2 candidates from service category namely, Dr.Malarvizhi, placed at rank No.14 and Dr.Valavan placed at rank No.16 were called as wait listed candidates. 3. According to the petitioner, as per the prospectus, the petitioner ought to have been called for the interview from the wait listed category, in the event of any one of the non-service category candidates failing to join the course and that the seat meant for non-service category candidate should be filled up only from the wait list candidate of non-service category. Since the procedure adopted by the respondents in ignoring the merit and calling a service candidate, who has secured marks lesser than the petitioner for interview was contrary to the prospectus the petitioner was constrained to file W.P.No.16624 of 2009 for a Mandamus directing the respondents therein, to keep the petitioner as wait listed candidate No.1, in the order of merit for selection to the course in DM Medical Gastro Enterology, under the non-service category, for the year 20092010 and consequently, admit the petitioner to the said course, in the event of any seat falling vacant, under the non-service category for the year 2009-2010. 4. 4. The petitioner has further submitted that on instructions from the Secretary, Selection Committee, Chennai, the Learned Government Advocate, has submitted that in the event of any one of the four persons selected under non-service category, not joining the course the petitioner would be considered for the said course and that place will not be filled up from service candidate. The petitioner has further submitted that on the basis of the submissions of the Learned Government Advocate the Writ petition was disposed of. 5. One of the candidates in open category a non-service candidate Dr.Rajarajan Serial SNo.2 in the open merit list did not join the course. As apprehended by the petitioner the respondent conducted the second phase of Counselling for the above course and intimated that the resultant vacancy in the open category (non-service) would be given to a service candidate. The Counselling was scheduled on 17.09.2009 at 2 P.M. In these circumstances the petitioner has come forward with the present Writ petition for a Mandamus forbearing the respondents from in any manner filling up of the vacancy caused in open category for the course DM Medical Gastro Enterology, higher speciality selection for the year 2009-2010 by allotting to a service candidate and consequently prayed for a direction to the respondent to allot and admit the petitioner to the course DM Medical Gastro Enterology for the year2009-2010, as per the order in W.P.No.16624 of 2009 dated 18.08.2009. 6. The Additional Director of Medical Education and Secretary/Selection committee, Chennai, in his counter affidavit, has contended that there are eight seats in (D.M) Medical Gastroenterology. As per the prospectus 50% of the seats are allotted to open category and the remaining 50% of the seats are allotted to service category, i.e., four seats for open category and four seats for service category. The Counselling for the higher speciality courses was conducted on 12.08.2009 and the candidates were arranged in the order of merit (open category which includes inservice candidates also). 7. According to the respondents, all the four seats under the open category were secured by non-service candidates. The 5th candidate in the open merit list belong to service category, namely Dr.Senthil Kumar. He has secured 64.50 marks. He was earlier selected under the service category. The next candidate Dr.Arulselvan also belongs to service category and he has secured 64.25 marks. According to the respondents, all the four seats under the open category were secured by non-service candidates. The 5th candidate in the open merit list belong to service category, namely Dr.Senthil Kumar. He has secured 64.50 marks. He was earlier selected under the service category. The next candidate Dr.Arulselvan also belongs to service category and he has secured 64.25 marks. In so far as the order of merit under service category is concerned, Dr.Senthilkumar was placed at serial No.1, followed by Dr.Arulselvan, Dr.Arun, Dr.T.Sivasubramanium respectively. 8. The first respondent has further submitted that Dr. Malarvizhi, belonging to service category has secured 61.25 marks and she was placed at serial No1 in the wait listed candidates in service category followed by Dr.Valavan, another service candidate, who has secured 64.50 marks. After the first phase of Counselling on 12.08.2009, four candidates were selected in the order of merit in the open category, and four candidates were selected from service category. Dr.T.Rajarajan who was selected under the open category is a non-service candidate. 9. He submitted a letter dated 03.09.2009 stating that he is not willing to join the course, which resulted in the vacancy. According to the respondents, as per clause 45(a) of the prospectus, under the method of selection and admission, "The selection will be made by Counselling based on Merit only, and no communal reservation will be followed. 50% of the seats in each discipline are reserved for service candidates in addition to those service candidates selected in the open category". Therefore, when Dr.T.Rajarajan, who was selected in the open category (both non-service and service) opted out, the next candidate in the overall merit list was accommodated in the open merit category. Consequently, there was a shortfall of a candidate in the service quota, which was required to be filled up only with the service candidate. 10. It is further submitted that consequent to the upward movement in the order of merit from the open merit list (service and non-service candidates), a vacancy arose in the service category and in order to accommodate the service candidate, the wait listed candidates Dr.Malarvizhi and Dr.Valavan were called for Counselling from the service merit list, to fill up the vacancy. It is further submitted that consequent to the upward movement in the order of merit from the open merit list (service and non-service candidates), a vacancy arose in the service category and in order to accommodate the service candidate, the wait listed candidates Dr.Malarvizhi and Dr.Valavan were called for Counselling from the service merit list, to fill up the vacancy. The first respondent has further submitted that the resultant vacancy has to be allotted only to a service candidates, so as to comply with the prescription in the prospectus of maintaining 50% quota for open and 50% of the remaining seats to service candidates. For the above said reasons, the first respondent has submitted that there is no illegality in the process of selection and hence, the petitioner is not entitled to seek for a Mandamus contrary to the terms and conditions of the prospectus. 11. Dr.Malarvizhi, who has been impleaded as second respondent as per the orders of this Court in M.P.No.2 of 2009, has submitted that she is a service candidate and she is presently working as Assistant Professor(Medicine), Government KMC Hospital, Chennai. She has secured 5th rank, under the service category and as per the clause 45(b) of the prospectus issued by the second respondent for admission to three years higher speciality course in Tamilnadu Government Medical colleges, the vacancy caused by non joining of a candidate selected under open category has to be filled up with a service candidate. She further submitted that the purpose of providing 50% reservation to service candidate is with a laudable object and intention that acquisition of higher qualification in the Super Speciality Subject would be beneficial to the doctors in service, who would be in a position to serve the poor people who approach the Government Hospitals for treatment, unlike the non-service candidates who may be employed in private hospitals. 12. She further submitted that open merit list comprises of both service and non-service candidates, and as per clause 45(a) of the prospectus, service candidates are provided with 50% reservation of the seats, can also compete as against the seats reserved for open category candidates. Therefore, when Dr.Rajarajan, who was selected under the open category opted out, the resultant vacancy has to be filled up only from the next candidate in the order of open merit. Therefore, when Dr.Rajarajan, who was selected under the open category opted out, the resultant vacancy has to be filled up only from the next candidate in the order of open merit. Dr.Senhil kumar, who was selected under the service category and placed immediately below the first four open category candidates was to be accommodated under the open category, on the basis of overall merit list, which comprises of both non-service and service candidates and therefore, when the said candidate was accommodated in the open category, the resultant shortfall in the number of seats reserved for service candidates has to be filled up only with another service candidate, and therefore, the second respondent has been rightly called for Counselling, as she was placed at No1, in the wait list of service candidates. 13. The second respondent has further submitted that when clause 45(a) provides that the service candidates can be accommodated as against 50% seats earmarked for open category(service and non-service), the contention that the vacancy caused due to non joining of a non-service candidate has to be filled up with another non-service candidate is contrary to the said clause. She also submitted that when the petitioner has acquiesced himself to the terms and conditions of the prospectus, he is estopped from challenging the selection process. In support of her contention she relied on following decisions. K.A.Nagamani Vs Indian Airlines reported in (2009) 5 SCC 515 and Madan Lal vs State of J & K (1995) 3 SCC 486 and Om Prakash Shukla vs Akhilesh Kumar Sukla 1986 Supp SCC 285. 14. The second respondent has further submitted that when the first service candidate was pushed upward and accommodated in the open category, the first respondent ought to have called for second Counselling and permitted her to join in the vacancy. As there was no response, the second respondent made a representation dated 26.08.2009, requesting the Secretary Selection Committee, Directorate of Medical Education, Chennai, to allot the vacancy caused due to non joining of Dr.Rajarajan and since there was no reply, she was constrained to file W.P.No.17766 of 2009, for a Mandamus directing the respondents therein, to allot the vacancy in the Super Speciality Course for the year 2009-2010 arising under service category, because of the movement of Dr.Senthil kumar. 15. 15. The second respondent has further submitted that the Writ petition filed by her was disposed of on 03.09.2009, by observing that only on 30.09.2009 the position would be identified and if the second person in the open merit list has not joined, the 5th person, who is the service candidate would move in which event the person in the 5th place would move to the 4th place and in that case, the petitioner would be considered. It was also made clear, that in the event of conducting a second Counselling, due to non joining of a non-service candidate for filling up the said vacancy clause 45(a) of the prospectus would be followed and that the 2nd respondent would be considered. 16. The second respondent has further submitted that accordingly she was called for Counselling on 17.09.2009 at 2 P.M and in view of the interim stay of Counselling granted by this Court, the 2nd respondent could not be accommodated. In these circumstances, the second respondent has prayed for vacation of interim order consequently prayed for dismissal of the Writ petition. 17. In the above factual background Mr. K.M.Vijayan, Learned Senior counsel appearing for the petitioner started with a question, by stating that the issue to be considered in this Writ petition, is to how the resultant vacancy falling under open merit list/non-service, has to be filled up? He submitted that 50% of the seats are reserved for open category candidates and 50% of the seats are reserved for service candidates. Initially, on 12.08.2009, when the selection was finalised four candidates were selected against 50% reservation meant for service quota, and the remaining 50% of the seats were allotted to non-service quota. On the basis of the merit, the petitioner who belonged to non-service category secured 64.25 marks and was placed at the first position in the waiting list of non-service candidates and in 7th position, in the open merit list, whereas, the second respondent Dr.Malarvizhi, was placed at serial No 14 in the open merit list. She has secured 61.25 marks. 18. She has secured 61.25 marks. 18. According to the Learned Senior Counsel merit alone should be the guiding factor for selection to Super Speciality Course and therefore, when a seat had fallen vacant in the open category, as between the petitioner and the second respondent, a candidate who has secured more marks and placed above in the order of merit in the open merit list namely, the petitioner alone, should be accommodated in the resultant vacancy. In filling up the said vacancy, the candidate who has secured lesser mark would not substitute the guiding factor i.e., merit. 19. Learned Senior Counsel for the petitioner further submitted that when four candidates belonging to service category were already selected as early as on 12.08.2009, there is no need to select another service candidate against a vacancy caused due to non joining of a non-service candidate, and if such method of selection is adopted, it would defeat the very purpose of maintaining two separate waiting lists. Referring to clause 41 of the prospectus, he submitted that when a vacancy arises due to non joining of a non-service candidate, such vacancy has to be filled up from the waiting list of non-service category only. 20. According to him, the construction of the respondents that there is a notional resultant vacancy in the service quota is erroneous, in view of the fact that 50% of the seats earmarked for the said category had already been filled up on 12.08.2009 itself. Referring to clause 45(b) of the prospectus, learned Senior Counsel further submitted the petitioner is a non-service candidate, and placed above in the open merit list has not opted to join the higher speciality course on the contrary only apprehended that the resultant vacancy would be filled up with a service candidate, and therefore filed a Writ petition in this Court, W.P.No.16624 of 2009. Only after getting instructions from the department, the Learned Government Advocate has submitted that the petitioner, being the next immediate candidate in the open merit list would be considered for the seat and that no service candidate would not be accommodated. Therefore, applying of clause 45(b) of the prospectus, he contended that only in the contingency that if no non-service candidate opt out to join any higher speciality course the vacancy should be allotted to a service candidate. Therefore, applying of clause 45(b) of the prospectus, he contended that only in the contingency that if no non-service candidate opt out to join any higher speciality course the vacancy should be allotted to a service candidate. In the instant case, since the petitioner had opted to join, the course the question of allotting the seat to a service candidate, does not arise. 21. Learned Senior Counsel further submitted that when the official respondent has admitted before this Court, that the vacant seat would be filled up only with a non-service candidate, the decision rendered in W.P.16624 of 2009 is binding and it is not open to the first respondent to retract from the said statement. He therefore submitted that the vacancy which was caused due to non joining of a merit listed candidate has to be filled up only with another merit listed candidate and not with a person who has secured a lesser mark. For the above said reasons, he prayed that the Writ petition be allowed. 22. Reiterating the averments made in the counter affidavit filed by the Secretary, Selection Committee Mr.G.Shankaran, Learned counsel appearing for the first respondent further submitted that the clause 45(b) is an exception to clause 45(a) of the prospectus and therefore, there is no question of filling up of the resultant vacancy, with a non-service candidate. 23. Learned Special Government Pleader, further contended that at the time when the Writ petition No.16624 of 2009, was moved before this Court, by the Writ petitioner on the basis of the oral instructions given by the respondent, a representation was made by the Learned Government Advocate, that in the event of a non-service candidate not joining the course, the petitioner, being the next immediate candidate would be considered in the said seat. He further submitted that the said submission, even assuming to be a concession given by the Learned Government Counsel, that would be contrary to the prospectus and therefore not binding on the respondents 1 and 2. He further submitted that when the second Writ petition in W.P.No.17766 of 2009 was moved by Dr.Malarvizhi, a candidate belonging to service category, a detailed written instructions was furnished by the department and the orders passed in the latter Writ petition would alone be applicable in confirmity with the prospectus. He further submitted that when the second Writ petition in W.P.No.17766 of 2009 was moved by Dr.Malarvizhi, a candidate belonging to service category, a detailed written instructions was furnished by the department and the orders passed in the latter Writ petition would alone be applicable in confirmity with the prospectus. He further submitted that the mistake had occurred on account of the urgency when the first Writ petition was moved before this Court on 16.08.2009. 24. Mr.Singaravelan, Learned Counsel for the 2nd respondent submitted that the prospectus binds the petitioners and all the parties concerned. Relying on the decisions stated supra, he submitted that the Writ petitioner is estopped from challenging the terms and conditions of the prospectus and he is estopped from doing so. Reiterating the averments made in the counter affidavit, filed by the 2nd respondent, submitted that the said respondent has to be accommodated against 50% seats to be maintained as per the prospectus. 25. By way of reply Mr.K.M.Vijayan, Learned Senior Counsel submitted that as clauses 45, 45(a) are not against the writ petitioner, there is no need to challenge the prospectus. He also submitted that the judgments relied on by the second respondent are not applicable to the facts of this case. 26. Heard the learned counsel for the parties and perused the materials available on record. 27. Before adverting to the facts of this case, it is necessary to extract few clauses from the prospectus for effective adjudication. Merit List: 41. Two merit list- 1) open merit list and 2) service merit list will be published. Open merit list (for both service and non-service) for each discipline of the Higher Speciality Course will be prepared by computing the entrance examination marks and experience marks, which will be calculated to a maximum of 100 (Entrance Examination Marks to a maximum of 90 + Experience Marks to a maximum of 10). Service merit list will be published separatly. 42.a) The Individual Mark (Service/non-service) is calculated by computing the marks secured by the Candidate in the Entrance Examination and Experience Marks of one mark for each year after completion of the P.G. Degree which is calculated from the last date of the month of passing examination to 30.06.2009. Service merit list will be published separatly. 42.a) The Individual Mark (Service/non-service) is calculated by computing the marks secured by the Candidate in the Entrance Examination and Experience Marks of one mark for each year after completion of the P.G. Degree which is calculated from the last date of the month of passing examination to 30.06.2009. (E.g. If a candidate scores 50 Marks out of 90 marks in Entrance examination and has completed two years after P.G.Degree as on 30.06.2008, the candidates total Aggregate Marks will be 50+2=52). b) Fractional values of an year will not be counted for awarding marks for experience 43. Determination of interse merit (rank) of the candidates obtaining equal marks: In case two or more candidates obtaining equal marks in the total aggregate of 100 marks, the inter-se merit (Rank) of such candidates shall be determined on the basis of the following order of preference:- a) Marks obtained in the entrance examination b) Least number of appearances in the Postgraduate Degree examination. c) Marks obtained in the Final year PG Examination d) Seniority in age. VIII.METHOD OF SELECTION AND ADMISSION: 44.(a) The final preparation of the selection list/waiting list for admission of candidates to the various disciplines of the Higher Speciality Courses will be made on the basis of the merit list for each higher speciality. (b) The merit list alone, one for each Higher Speciality Course will be considered. The allotment of seats will be purely on the basis of merit in respect of the options given by the candidates. 45(a) The Selection will be made by Counselling based on Merit only and no communal reservation will be followed. 50% of seats in each discipline are reserved for service candidates in addition to those service candidates selected in the open category. In case of an odd number seat remaining vacant that seat shall be filled by merit only. (b) If there are no non-service candidates opting for any Higher Speciality course, the same will be allotted to service candidates. (c) for the newly sanctioned seats after the I phase of Counselling, reallotment of courses/colleges will be permitted as per the merit from rank one, Allotted and wait listed candidates only can attend the Counselling for the allotment of above seats. 28. (c) for the newly sanctioned seats after the I phase of Counselling, reallotment of courses/colleges will be permitted as per the merit from rank one, Allotted and wait listed candidates only can attend the Counselling for the allotment of above seats. 28. As per clause 41 of the prospectus, open merit list means, for both service and non-service, for each discipline of the higher speciality course by computing the entrance examination marks and the experience marks. The open merit list for D.M.Medical Gastro Enterology Super Speciality Course for the academic year 2009-2010 is as follows: 29. On 12.08.2009, when the first Counselling was done, four candidates were chosen under open category, from the open merit list, which comprises of both service and non-service candidates. The details of the candidates selected under the open category as on 12.08.2008 are mentioned above. 30. The list of candidates selected under open category after the upward movement of Dr.Senthilkumar from service category to open category is as follows: 31. During the first phase of Counselling, on 12.08.2009, four candidates were selected under the open category. But, after the first phase of Counselling, Dr.T.Rajarajan, a non-service candidate selected under in the open category, submitted a letter dated 03.09.09, stating that he is not willing to join in the Super Speciality Course. Therefore, it is evident that a seat has fallen vacant in open category. As per clause 45(a) of the prospectus the selection would be made by Counselling, based on merit 50% of the seats in each discipline are reserved for service candidates, in addition to those service candidates, selected in the open category. A conjoint reading of clause 41 and 45(a) of the prospectus makes it clear that 50% of the seats are exclusively reserved for inservice candidates. According to the respondents, the object and intention of the government of providing 50% of the seats exclusively to service candidates is for the purpose of enabling the inservice candidates to acquire the advanced higher education in Super Speciality Courses, which would be helpful to them to provide better treatment to the poor patients who visit Government Hospitals, for treatment. In such a view of the matter, 50% of the seats exclusively reserved for them should be filled up only with service candidates. 32. In such a view of the matter, 50% of the seats exclusively reserved for them should be filled up only with service candidates. 32. There is no quarrel that as the order of merit in the open merit list comprising both service and non-service, the petitioner was placed at Serial No 1 in the wait list of non-service candidates. Similarly, the second respondent was also placed at Serial No.1, in the wait list of service candidates. The first four candidates constitute the 50% of the seats earmarked for open category. 33. Clause 41 of the prospectus, no doubt contemplates drawing up of two merit lists one for open merit list, and the other for the service candidates, but clause 45(a) of the prospectus emphatically states that, in addition to those service candidates selected in the open category, 50%, of the seats have to be exclusively filled up with service candidate therefore, when the non-service candidate Dr.T.Rajarajan selected under open category was not willing to join the course, the resultant vacancy has to be filled up only with the next meritorious candidate, in the open merit list namely Dr.Senthil kumar, who had secured 64.50, marks who was earlier selected under the service category. When one of the candidates in the service category has been accommodated in the 50% of the seats earmarked exclusively reserved for open category, which includes both non-service as well as the service candidates, consequently, there is a shortfall in 50% of the seats reserved for service category candidates all that the same has to be filled up only with a service category candidate to maintain the percentage of reservation provided for open and service candidates. 34. Dr.Malarvizhi is placed at serial No 1 in the wait list of service candidates. The contention that the resultant vacancy due to non joining of non-service candidate has to be filled up only with a non-service candidate would amount to giving an interpretation that 50% of the open category seats are to be filled up only with non-service candidates irrespective of the marks secured by a service candidate. 35. There is no specific reservation for non-service candidates. The reservation provided under the prospectus is 50% for service candidates and 50% for open category, i.e., service and non-service depending upon the ranking in the overall open merit list. 35. There is no specific reservation for non-service candidates. The reservation provided under the prospectus is 50% for service candidates and 50% for open category, i.e., service and non-service depending upon the ranking in the overall open merit list. If the contention of the Learned Senior Counsel that the resultant vacancy in the open category, on account of non-joining of a non-service candidate has to accommodated with a non-service candidate, has to be accepted, then construction of the words, "open category" would be confined to mean only "non-service", and such an interpretation would be contrary to clause 41 of the prospectus, which clearly states that open merit list comprises of both service and non-service candidates. 36. In so far as, the contention of the Learned Senior Counsel that the decision rendered in W.P.No.16624 of 2009 is binding on the first respondent Selection Committee, it could be seen from the order that the clause 41 and clause 45(a) were not considered, at the time of disposal of the said Writ petition, and that the said Writ petition came to be disposed of only on the basis of the oral instructions given by the department without reference to the above said clauses. Even assuming that the order is passed on instructions, in my considered view the oral instructions furnished to the Learned Government Advocate not in confirmity with the prospectus and the decision rendered therein. Courts have consistently held that any concession or statement made by the Learned counsel contrary to statute or regulations, is not binding on the party. 37. The contention of the Learned Senior Counsel for the petitioner that only in the event of a non-service candidate not opting to join the course, the resultant vacancy has to be allotted to a service candidate, as provided in clause 45(b) cannot be countenanced, for the reason that Dr.Senthil kumar, placed at serial No.5 in the open merit list has to be pushed forward for allotment in the open category, which comprises of both service and non-service candidates. 38. As rightly contended by the learned counsel appearing for the respondents, if a open merit listed candidate, placed at serial No.5 is pushed forward for allotment under open category, on the basis of the marks secured by him then there would be a shortfall of 50% in service quota. 38. As rightly contended by the learned counsel appearing for the respondents, if a open merit listed candidate, placed at serial No.5 is pushed forward for allotment under open category, on the basis of the marks secured by him then there would be a shortfall of 50% in service quota. When clause 45(a) makes it clear that 50% of the seats in each discipline are reserved for service category candidates, in addition to those service candidates selected in the open category, the said percentage of reservation has to be maintained and consequently, the selection committee is left with no other alternative excepting to select a service candidate, to be accommodated against the resultant vacancy which has caused in the service quota. There cannot be any quarrel over the statement of the Learned Senior Counsel that merit alone should be the criteria for the purpose of selection to a Super Speciality Course. But at the same time, when clauses 41 and 45(a) are conjointly read, there cannot be any controversy that 50% of the seats are exclusively earmarked for service candidates. In such an event, Dr.Senthil kumar who has secured 64.50 marks is certainly more meritorious than the petitioner, who has secured 64.25 marks a non-service candidate. When the open merit list comprises of both service and non-service candidates, the respondent has rightly chosen Dr.Senthil kumar as a open category candidate, who was earlier selected under the 50% quota meant service candidates by upward movement to open category compartment. 39. Though the Learned counsel for the second respondent has relied on few decisions on the question of binding nature of the prospectus, this Court deems it fit not to elaborate on that, in view of the contention of the Learned Senior Counsel that there is no need for him to challenge the same and he has also accepted the legal principles contained therein. 40. In view of the above decision, this Court is of the considered view that the petitioner has no legal right to seek to be accommodated in the resultant vacancy. On the other hand, the Selection Committee, has to consider the claim of the 2nd respondent for admission to the course. 41. In the result, the Writ petition is dismissed. Consequently, the connected Miscellaneous Petitions are also dismissed. No costs.