Judgment :- Heard both sides. 2. The Honourable Supreme Court in its preamble to the judgment rendered in the case of P.A. Inamdar v. State of Maharashtra in A.I.R. 2005 SC page 3226 has stated “Education used to be charity or philanthropy in good old times. Gradually it became an occupation. Some of the Judicial dicta go on to hold it as an industry. Whether, to receive education, is a fundamental right or not has been debated for quite some time. But it is settled that establishing and administering of an educational institution for imparting knowledge to the students is an occupation, protected by Article 19(1)(g) and additionally by Article 26(a) even if there is no element of profit generation. As of now, imparting education has come to be a means of livelihood for some professional and a mission in life for some altruists. 3. It is not known whether the petitioner institution has considered the education as a means of livelihood or a mission in life. 4. But from the affidavit it is seen that the petitioner institution is administered by the trust known as “Padanilam Welfare Trust” and the trust owned and administered several other educational institution viz., one Nursing college, one Dental sciences Institute and Physiotherapy college, in addition to the petitioner institution. The petitioner institution was established in the year 2006. and the admission capacity is 100 students per annum. The petitioner institution is an unaided minority educational institution and though it claims to have the right to fill all the 100 students itself, by reason of entering into an agreement with the State Government, the seats were apportioned between the petitioner and the State Government and each is entitled to 50% of the seats. Therefore, the petitioner is entitled to fill 50% seats which is known as management quota and the State is entitled to fill 50% which is known as Government quota. 5. For the year 2008-2009 the State Government through the selection committee sent a list of 50 candidates towards its quota to the petitioner and also informed that the last date of joining was 20.07.2008. 6. 5. For the year 2008-2009 the State Government through the selection committee sent a list of 50 candidates towards its quota to the petitioner and also informed that the last date of joining was 20.07.2008. 6. According to the petitioner as on 17.08.2008, as per the last Status Report the vacancy position was intimated as 11 and thereafter, the selection committee allotted another 18 candidates on 26.09.2008 and notified the joining date as 29.09.2008 and thereafter, a further list of 14 candidates was sent on 29.09.2008 with the joining date on 30.09.2009. It is stated in the affidavit filed by the petitioner that all the candidates selected by the management under their quota have joined in the college and so far as the Government quota is concerned only 43 candidates joined against the Government quota of 50 seats. It is admitted that the cut off date was 30th September and no one can admit any candidate thereafter. Therefore, the petitioner having waited till the last moment and realising that the candidate sponsored by the Government have not turned up, filled up those seven seats by giving admission to seven candidates from the Tamil Nadu Private Professional Colleges Association -Health sciences , Merit List, known as T.P.P.A.-H.S Merit List, according to their ranks. It is further stated that though seven candidates were admitted, the petitioner collected only the fee fixed for the Government quota candidates from those 7 candidates and according to the petitioner but for the filling up of those seven seats by the management those seats would have lapsed and no body would have been benefited. It is further stated the University viz., the 6th respondent herein, also accepted the filling up of those seven candidates by the management. .7. It is further stated the University viz., the 6th respondent herein, also accepted the filling up of those seven candidates by the management. .7. While so, the 2nd respondent Medical Counsel of India addressed a letter to the 3rd and 4th respondent on 06.02.2009 informing that the petitioner has admitted 57 students under the management quota for the academic year 2008-09 and therefore, they have exceeded the quota allotted to them by seven seats and therefore, the excess 7 seats is to be set off by the management for the academic year 2009-2010 and it was further stated in that letter that “the members of the Adhoc Committee appointed by the Honble Supreme Court and of the Executive Committee of the Council after detailed deliberations decided that suitable communication be sent to the concerned State Govt. for the respective medical college institutions where the admissions have been made by them in excess for the academic year 2008-09 by calling upon them to correspondingly reduce the admissions in Management quota for such colleges for the academic year 2009-2010 and for corresponding increased allocation of the free seat candidates by the concerned State Govt. for the academic year 2009-2010 so as to set-off the undue advantage gained by such medical colleges/institutions by making excess admissions in the management quota in the academic year 2008-2009.” 8. Therefore, the petitioner was directed to reduce the admission in the management quota for the academic year 2009-2010 by 7 seats and increase allocation of free seats in Government quota by 7 seats during the academic year 2009-2010. 9. Therefore, the petitioner was directed to reduce the admission in the management quota for the academic year 2009-2010 by 7 seats and increase allocation of free seats in Government quota by 7 seats during the academic year 2009-2010. 9. The 3rd respondent by his proceedings dated 06.07.2009 sought for clarification from the 2nd respondent with reference to the letter of the 2nd respondent dated 06.02.2009 by stating that the petitioner has admitted the excess seats under the lapsed seats category caused due to non reporting of the students selected under Government quota within the prescribed date and relying upon the letter of the Selection Committee to the medical Counsel of India dated 31.01.2008 by which the 3rd respondent has informed the 2nd respondent that in the event of candidates sponsored by the Selection Committee did not join, the unfilled vacancies if any will be filled up by the management within the cut off date and therefore, the petitioner requested the 3rd respondent to permit them to admit the students under management quota for the academic year 2009-2010 in full without any reduction or adjustment and therefore, requested the 2nd respondent to clarify whether the petitioner can be asked to reduce the admission in the management quota for the year 20092010 or the petitioner can be permitted to admit the students under management quota in full without any reduction or adjustment. 10. The 2nd respondent by the impugned communication reiterated its earlier stand stated in the letter dated 06.02.2009 and directed the Government to request the petitioner institution to reduce the admission of management quota by 7 seats as per the resolution of the Ad-hoc Committee appointed by the Honble Supreme Court and of the Executive Committee of the Council. This letter is challenged in the writ petition by the petitioner on the main ground that the management has given admission on the lapsed seats only in the order of their ranks in T.P.P.C.A-H.S. Merit List and that too, at the rate of fee fixed for Government candidates. But for the filling up by those seats by the petitioner, seven seats would have lapsed and nobody would be put to any advantage and they have not exceeded the management quota by giving admission to those candidates by reason of the vacancy that had arisen due to the non reporting of students sponsored under the Government quota. 11. But for the filling up by those seats by the petitioner, seven seats would have lapsed and nobody would be put to any advantage and they have not exceeded the management quota by giving admission to those candidates by reason of the vacancy that had arisen due to the non reporting of students sponsored under the Government quota. 11. It is further stated that as per the communication of the 3rd respondent to the 2nd respondent dated 31.01.2008, the petitioner was permitted to fill up the lapsed seats and that cannot be construed as filling up the seats by the management in addition to the management quota. .12. The respondents 3 and 4 filed the common counter affidavit admitting that the Selection committee had allotted 50 candidates to the petitioner institution and the petitioner also sent the non joining report on three occasions viz., 23.07.2009, 17.09.2008 and 110. 2008 and out of the 50 candidates allotted by the Government only 43 candidates joined MBBS course and out of the remaining seven candidates, 2 candidates have discontinued the course and five candidates did not join the course within the stipulated time. 13. According to the stand of the respondents 3 to 5 as per clause 6(h) and 21(ii) of the prospectus for the MBBS/BDS course for the year 2008-2009 certain procedures have to be followed by the petitioner in respect of candidates who discontinued the course, while relieving them and without following that procedure, the petitioner allowed them to discontinue their course and therefore, those vacancies cannot be construed as lapsed seats and as such the petitioner could not fill up those two seats and they must surrender the two seats to the Selection Committee for the year 2009-2010 before filling up by the State Government. 14. The 3rd respondent filed the detailed counter affidavit mainly relying upon the judgment of the Honourable Supreme Court in the case of Mridul Dhar (Minor) & Anr. Vs. 14. The 3rd respondent filed the detailed counter affidavit mainly relying upon the judgment of the Honourable Supreme Court in the case of Mridul Dhar (Minor) & Anr. Vs. UOI & ors reported in 2005 (5) SCC 65 followed by the Honourable Supreme Court judgement reported in 2005(13) SCC 466 in the case Al-Karim Educational Trust vs. Medical Counsel of India that if any private medical college in any given academic year for any reason grants admission in its management quota in excess of the prescribed quota, the management quota for the next academic year shall stand reduced so as to set off the effect of excess admission in the management quota in the previous academic year and therefore, the management is bound to handover the seven seats which were filled up in the year 2008-2009 to the Statement Government for the year 2009-2010 and the management can fill only upto 43 seats. 15. Mr.Issac Mohan Lal, the learned counsel appearing for the petitioner would submit that though as per the judgment of the Honourable Supreme Court referred to above, which were relied on by the 2nd respondent, the management has to surrender the excess seats filled by them to the State Government in the next academic year, having regard to the judgment of the Supreme Court rendered in AIR 2005 SC 3232 in the case of P.A.Inamdar v. State of Maharashtra, the State Government has no right to claim any quota and hence, the 2nd respondent is not just in demanding that the State Government is entitled to claim the seven seats from out of the management quota for the academic year 2009-2010. 16. He further submitted that every year must be construed as a unit itself and therefore, for the year 2009-2010 the petitioner is entitled to admit 50 students under management quota and that cannot be interfered with by the State Government. 17. 16. He further submitted that every year must be construed as a unit itself and therefore, for the year 2009-2010 the petitioner is entitled to admit 50 students under management quota and that cannot be interfered with by the State Government. 17. He further developed his argument by stating that the 2nd respondent had no role to play in the matter of admission to the medical college and the 2nd respondent role is only to see whether the college is having infrastructural facilities to impart the medical education, to find out the faculties offered by the institution and also to verify the educational qualification of those persons who have joined as professors and other teaching faculties in the institution and beyond that it has no role to play. 18. He further submitted that the petitioner has only filled up the lapsed seats by giving admission to those candidates on the basis of the seniority in their ranks as per the T.P.P.A.-H.S. Merit and they have collected the Government prescribed fee and therefore, those seven seats cannot be construed as management quota in any event. 19. Mr.V.P.Raman, the learned counsel appearing for the 2nd respondent submitted that as per the judgment of the Honourable Supreme Court in Mridul Dhar (Minor) & Anr. vs. UOI & ors case followed by Al Karim Educational Trust vs. MCI & Ors., the management is bound to reduce the number of seats if for any reason it has exceeded its quota in its previous year. 20. The learned counsel relied upon the direction No.11 as stated in the Mridul Dhar (Minor vs. UOI case that If any private medical college in a given academic year for any reason grants admission in its management quota in excess of its prescribed quota, the management quota for the next academic year shall stand reduced so as to set off the effect of excess admission in the management quota in the previous academic year. . 21. Further Mr.V.P.Raman, the learned counsel, brought to my notice the facts of the Al Karim Educational Trust case, wherein the particular State did not sponsor the candidates and therefore, the entire seats were filled up by the Management. . 21. Further Mr.V.P.Raman, the learned counsel, brought to my notice the facts of the Al Karim Educational Trust case, wherein the particular State did not sponsor the candidates and therefore, the entire seats were filled up by the Management. Nevertheless, the Honourable Supreme Court after following the judgment of Mridul Dhar (Minor) vs. UOI case has held as follows: “We need not go into the reasons why admissions were granted in respect of all the seats by the Management. We may assume for the present purposes that there were good and valid reasons as contended for the management to grant admission as they did. To cater to such a situation, this Court in Mridul Dhar (Minor) & Anr. vs. Union of India &ros. ( 2005(2) SCC 65 has directed that if any private medical college in a given academic year for any reason grants admission in its management quota in excess of the prescribed quota, the management quota for the next academic year shall stand reduced so as to set off the effect of excess admission in the management quota in the previous academic year. In this view, the reason or the ground for grant of admission in excess of management quota is of no relevance. Accordingly, the applicants cannot be permitted to fill all the 60 seats from out of the candidates selected by the management. The 50% State quota of the year 2003-2004 and 2004-2005 would be provided to the State by Management granting admission to the States sponsored candidates in the Academic years 2006-2007 and 2007-2008 so as to set off its excess admissions of 20034-2004 and 2004-2005. The management cannot be permitted to take advantage of excess admission granted on any ground whatsoever”. 22. Therefore, Mr.V.P.Raman,the learned counsel appearing for the 2nd respondent contended that as per the judgment of the Honourable Supreme Court the management is bound to handover seven seats which were filled up in the year 2008-2009 and they cannot take advantage of the judgment rendered by the Honourable Supreme Court in AIR 2005 SC 3232 in the case of P.A.Inamdar v. State of Maharashtra, inasmuch as the management has agreed to surrender 50 seats to be filled by the Government. 23. 23. Mr.V.P.Raman, the learned counsel appearing for the 2nd respondent further developed his argument by stating that in P.A.Inamdar v. State of Maharashtra, the Honourable Supreme Court has not dealt with the issue of quota or apportionment of seats between the management and the Government and while answering the question No.3 held that “to what extent the State can regulate the admissions made by unaided (minority or non-minority) educational institutions? Can the State enforce its policy or reservation and/or appropriate to itself any quota in admissions to such institutions? and held in para 121 that “As per our understanding,neither in the judgment of Pai Foundation nor in the Constitution Bench decision in Kerala Education Bill, which was approved by Pai Foundation, there is anything which would allow the State to regulate or control admissions in the unaided professional educational institutions so as to compel them to give up a share of the available seats to the candidates chosen by the State, as if it was filling the seats available to be filled up at its discretion in such private institutions. This would amount to nationalization of seats which has been specifically disapproved in Pai Foundation. Such imposition of quota of State seats or enforcing reservation policy of the State on available seats in unaided professional institutions are acts constituting serious encroachment on the right and autonomy of private professional educational institutions. Such appropriation of seats can also not be held to be a regulatory measure in the interest of minority within the meaning of Article 30(1) or a reasonable restriction within the meaning of Article 19(6) of the Constitution. Merely because the resources of the State in providing professional education are limited, private educational institutions, which intend to provide better professional education, cannot be forced by the State to make admissions available on the basis of reservation policy to less meritorious candidate. Unaided institutions, as they are not deriving any aid from State funds, can have their own admission if far, transparent, non exploitative and based on merit”. “124. Nowhere in Pai Foundation, either in the majority or in the minority opinion, have we found any justification for imposing seat sharing quota by the State on unaided private professional educational institutions and reservation policy of the State or State quota seats of management seats”. “125. “124. Nowhere in Pai Foundation, either in the majority or in the minority opinion, have we found any justification for imposing seat sharing quota by the State on unaided private professional educational institutions and reservation policy of the State or State quota seats of management seats”. “125. We make it clear that the observations in Pai Foundation in paragraph 68 and other paragraphs mentioning fixation of percentage of quota are to be read and understood as possible consensual arrangements which can be reached between unaided private professional institutions and the State.” 24. He further submitted that when the apportionment of seats between management and the State was not in issue in P.A.Inamdar. case, we are governed only by the judgment rendered in Mridul Dhar case followed by Al Karim Educational Trust vs. MCI & Ors., case, which was not over ruled by the Supreme Court in P.A.Inamdar v. State of Maharashtra, case and therefore, as per the direction in Mridul Dhar (Minor) & Anr. vs. Union of India &ros. case, the excess seats filled by the management in the previous year shall be handed over to the State Government and the management quota for the next year shall stand reduced so as to set off the effect of excess admission in the management quota in the previous academic year. Therefore, the impugned order passed by the 2nd respondent is perfectly legal and the management is bound to hand over those seven seats to the State Government for this year. 25. The learned Special Government Pleader Mr.Rajasekar, reiterated the stand taken by them in their counter affidavit. 26. I have given my anxious consideration to the rival submissions made by the counsel on both side. Though Mr.Issac Mohan Lal has submitted that in the light of the judgment of the Supreme Court reported in P.A.Inamdar v. State of Maharashtra, case the management is not bound to give any quota to the State Government, the management has shown charity to the Government by giving them 50% seats to be filed by by the State Government and the charity should not be taken by the Government as of right and claim those seats which would have otherwise lapsed and directed the management to reduce their quota in the next academic year. In other words, he submitted that the management can fill all the 100 seats for this year, nevertheless it has agreed to stand by the earlier commitment by virtue of the agreement entered into with the Government and retained 50% for the management and hence, the further reduction in the management quota cannot be allowed. 27. I do not accept the arguments of the learned counsel appearing for the petitioner. In the affidavit itself the petitioner has stated that by virtue of the agreement, the seats were apportioned between the management and the Government and each are entitled to 50% and it is seen from the affidavit of the State that as per G.O.(4D)No.40, Health and Family Welfare (MCAI) Department, dated 06.05.2008 the unaided minority institution has to offer 50% of the total intake to Government for allotment of candidates for MBBS course under Single Window System through counselling. Therefore, whether the apportioned of seats was by virtue of the agreement or by virtue of the G.O. aforementioned, the fact remains that 50% of the seat has to be filled by the candidates sponsored by the Selection Committee and the management can only fill the remaining 50%. Therefore, it cannot be contended that the management can fill all the 100 seats for the academic year as per the judgment of the Honourable Supreme rendered in P.A.Inamdar v. State of Maharashtra, case and in my opinion, the management is estopped from doing so. 28. As rightly pointed by the learned counsel appearing for the 2nd respondent Mr.V.P.Raman, that in the P.A.Inamdar v. State of Maharashtra, case the Honourable Supreme court has not dealt with the quota already fixed between the college and the Government and in that judgment they have only explained or made clear the observation of the Supreme Court rendered in Pai Foundation case. Once the quota has been admitted and the management is only entitled to 50% and the State Government is entitled to fill balance 50%, then the manner of filling those seats and in the event of any excess admission by the management beyond the quota due to them is governed by the judgment of the Honourable Supreme Court reported in Mridul Dhar (Minor) & Anr. vs. Union of India &ros. and followed by Al Karim Educational Trust vs. MCI & Ors. case. .29. As stated supra, though the Mridul Dhar (Minor) & Anr. vs. Union of India &ros. and followed by Al Karim Educational Trust vs. MCI & Ors. case. .29. As stated supra, though the Mridul Dhar (Minor) & Anr. judgment was rendered earlier to P.A.Inamdar v. State of Maharashtra case there was no reference to Mridul Dhar (Minor) judgment in P.A.Inamdar case, inasmuch as that was not in issue in P.A.Inamdar case. Therefore, having regard to the quota viz., the management quota and as well as the State Government quota, in my opinion, the judgement of the Supreme Court reported in Mridul Dhar (Minor) case holds the field as on date and I am bound to follow the same. In Mridul Dhar (Minor) case, the Honourable Supreme Court has given various directions and as per the direction 11, the 2nd respondent has given instruction to the 3rd respondent to request the management to reduce their quota of seats by the reason of the excess admission made by them. At the risk of repetition the relevant direction No.11 is stated in Mridul Dhar case is reproduced hereunder. “If any private medical college in a given academic year for any reason grants admission in its management quota in excess of its prescribed quota, the management quota for the next academic year shall stand reduced so as to set off the effect of excess admission in the management quota in the previous academic year.(emphasis in muil) 30. Therefore, it is made clear from the above direction that if the private medical college granted admission in its management quota in excess of its prescribed quota for any reason, the management quota for the next academic year shall stand reduced so as to set off the effect of excess admission in the management quota in the previous academic year. Therefore, on the basis of the above direction, the 2nd respondent has issued direction to the 3rd respondent that as the management has filled seven more seats in the previous year viz., 2008-2009 they are bound to hand over those seven seats in the next year 2009-2010. 31. Further in the impugned order, the 2nd respondent has directed the 3rd respondent to request the management to reduce the admission to the management quota so as to set off the undue advantage gained by such medical colleges institutions by making excess admissions in the management quota in the academic year 2008-2009. 32. 31. Further in the impugned order, the 2nd respondent has directed the 3rd respondent to request the management to reduce the admission to the management quota so as to set off the undue advantage gained by such medical colleges institutions by making excess admissions in the management quota in the academic year 2008-2009. 32. Therefore, the combined reading of the direction of the Honourable Supreme Court given in Mridul Dhar (Minor) case and the impugned order makes it clear that when the management has taken undue advantage of and filled the seats which were earmarked for Government quota then for the subsequent academic year the management will have to surrender those seats, which were filled up by the management in excess in the previous year. This fact has been explained in the case of Al Karim Educational Trust vs. MCI & Ors. wherein the State failed to sponsor any candidates and therefore, the management filled all the seats under the management quota and in that context it was held that if any private college in the academic year for any reason filled seats in excess of the the management quota, for the next academic year the same shall stand reduced so as to set off the effect of excess admission in the management quota in the previous year. 33. Inthat context, the Honourable Supreme Court has held that the reason or ground for excess admissions in the management quota is of no relevance. Therefore, a careful reading of the Honourable Supreme Court judgments, makes it clear that whenever the management grants admission in its management quota in excess of the prescribed quota, in that case the management quota for the next academic year shall stand reduced so as to set off the effect of excess admission in the management quota in the previous academic year. Therefore, the emphasis is on granting admission in its management quota in excess of the prescribed quota and in that event, the management has to set off the effect of excess admission in the next academic year. 34. In this case, admittedly, out of the seven candidates of the State Government candidate two of them discontinued and five of them did not join . 34. In this case, admittedly, out of the seven candidates of the State Government candidate two of them discontinued and five of them did not join . It is also made clear by the petitioner that the persons who have discontinued their course announced the fact of discontinuation only on 29.09.2008 and the knowledge of five persons who did not join was known to the management only on 30.09.2008 because even admittedly those five persons were given time upto 30.09.2008 to join the petitioner institution. 35. Therefore, only on 30.09.2008 the petitioner came to know that seven seats are going to lapse and instead of allowing those seats to lapse, the management thought of giving those seats to the candidates, who are in the merit list according to their ranks and it is also specifically stated by the management in the affidavit that they have collected from those seven candidates only the fee prescribed by the State Government. The allegations that the management has collected only the fee prescribed by the State Government from those seven candidates, was not denied by the State Government in their counter affidavit and also not denied by the 2nd respondent. 36. Therefore, it can be taken that the management has collected only the fee prescribed by the State Government from those candidates and hence, Mr.Issac Mohan Lal is right in arguing that those seven seats cannot be taken as seats filled by the management in its quota and instead of allowing those seats to lapse the management has permitted seven qualified students to get admission and the gesture on the part of the management should not be construed as if the management has benefited by that and hence, the management must set off the undue advantages it had in the next academic year. As stated supra, the management is entitled to fill 50 seats and the State Government is entitled to fill 50 seats and admittedly, out of the quota given to State Government only 43 students have joined. Had the management failed to fill those seats, those seats would have lapsed and no body would have been benefited. 137. Therefore, the management should not be punished for their act by filling those seats by giving opportunity to the meritorious candidates as per their ranks, when admittedly they have collected only the Government prescribed fee from those seven candidates. Had the management failed to fill those seats, those seats would have lapsed and no body would have been benefited. 137. Therefore, the management should not be punished for their act by filling those seats by giving opportunity to the meritorious candidates as per their ranks, when admittedly they have collected only the Government prescribed fee from those seven candidates. Therefore, in my opinion, seven candidates filled up by the management under the lapsed seats category would be construed only as Government quota candidates and they should not be construed as candidates filled by the management in their quota. .38. In my opinion, as per the Supreme Court judgment when the management filled up those seats under its management quota, then they are bound to surrender those seats in the next academic year. In other words, when the management has not filled those seats in its quota and allowed them to lapse, there is no need to surrender those seats in the next academic year. The fact that the management has collected only the fee prescribed by the Government would make it clear that those seven seats were not filled by the management quota under its quota and it can be construed only as State Government quota. This view taken by me is fortified by the decision taken by the executive committee in its meeting held on 30.12.2008. As per decision taken by the Executive committee where the admissions have been made by the management in excess, for the academic year 2008-2009 by calling upon them to correspondingly reduce the admissions in Management quota for such colleges for the academic year 2009-2010 and for corresponding increased allocation of the free seat candidates by the concerned State Government for the academic year 2009-2010 so as to set off the undue advantage gained by such medical colleges/ institutions by making excess admissions in the management quota in the academic year 2008-2009. 139. Therefore, in my opinion, only when the management has taken undue advantage by filling excess seats in its quota then that has to be set off by surrendering the excess seats in the next academic year. .40. To appreciate the meaning of “undue” as per P.Ramanatha Iyer Concise Law Dictionary it means “something which is not merited by the conduct of the claimant or is very much disproportionate to it. .40. To appreciate the meaning of “undue” as per P.Ramanatha Iyer Concise Law Dictionary it means “something which is not merited by the conduct of the claimant or is very much disproportionate to it. In the judgment reported in AIR 1975 SC 415 at 417, Sterling General Insurance Co. Ltd., v. Planters Airways P.Ltd., in para 12 it has held as that In Stanhope Steamship Co. Ltd.,v. British Phosphate Commrs. (1956) 2Lloyds Rep.325, Singleton J., in delivering the judgment said “what then, is the meaning of “undue hardship”? “Undue”, it is said by Mr.MacCrindle, means something which is not merited by the conduct of the claimant. That may be right. If the result of claimants being perhaps as day late is so oppressive, so burdensome, as to be altogether out of proportion to the fault. I am inclined to think that one may well say that there is undue hardship. Both the amount at stake and the reasons for the delay are material considerations.” .Therefore, from the above judgment the word “undue” means something which is not merited by the conduct of the claimant. In the impugned order it has been stated when the management took undue advantage and filled some more seats in its management quota, those excess must be surrendered. 141. In my opinion having regard to the facts of the case it cannot be stated that the management has taken undue advantage by filling those seven seats or the management gained some undue advantage. If the management had collected the capitation fee or the fee prescribed by the State Government for candidates selected under management quota from those seven candidates, it can be stated that the management had gained some undue advantage by filling those seven seats and therefore, they must compensate by surrendering those seats to the State Government in the next academic year. I have already held that the management has only collected the fee prescribed by the State Government from those seven candidates and therefore, it cannot be stated that the management has taken any undue advantage and hence, in my opinion, those candidates cannot be taken as management quota. 142. Mr. I have already held that the management has only collected the fee prescribed by the State Government from those seven candidates and therefore, it cannot be stated that the management has taken any undue advantage and hence, in my opinion, those candidates cannot be taken as management quota. 142. Mr. V.P. Raman, the learned counsel appearing for the 2nd respondent submitted that the management should not have filled those seven seats and they must allow seven seats to lapse and having filled those seven seats, they are bound to reduce their intake correspondingly in the next academic year. .43. In other words, the management has to suffer for filling those seven seats,which would have otherwise lapsed or would have gone waste without any use to any body. It reminds me, the famous case that came up before King Solomon, where two women claimed right over a child contending that they are the natural mother of the child. When King Solomon wanted to settle that issue and to find out the real natural mother he devised a plan and ordered that the child be cut into two pieces and hand over one piece to each of the woman. The real mother did not permit that to happen and pleaded with the King to give the baby to other woman though she is not the real mother. King Solomon then was able to find out the natural mother and handed over the child to the natural mother. In this case, the stand of the 2nd respondent is that the seats can be allowed to go waste or lapse but the management should not be permitted to fill those seats and the stand of the 2nd respondent is just similar to the case of the woman who was not the natural mother of that child. The management instead of allowing those seats to go waste or lapse gave opportunity to seven deserving candidates and collected only the fee prescribed by the Government and hence, it cannot be construed that the management has filled more than its quota prescribed to the management, by filling those 7 seats. 144. According to me, as per the Supreme Court, the Mridul Dhar (Minor) case only when the management grants admission in its management quota then only they will have to surrender those seats. 144. According to me, as per the Supreme Court, the Mridul Dhar (Minor) case only when the management grants admission in its management quota then only they will have to surrender those seats. When the management has not granted admission in its management quota and only filled those seats, which would have otherwise lapsed, those seats cannot be taken as management quota and therefore, there is no need for the management to surrender the seven seats for the academic year 2009-2010. 145. As a matter of fact the stand of the management is also accepted by the State Government and they have only claimed two seats, for the academic year from the management quota and so far as the 5 seats are concerned, the State Government did not object to the management, filling those seats in the previous year. In so far as two seats are concerned, it is only claimed by the State Government on the basis that management has not followed the procedures. Therefore, in other words, the State Government has accepted that the management has not filled up seven seats in its management quota and the State Government has only appreciated the act of the management in filling those seats, which would otherwise have gone waste. 46. Further, under the Indian Medical Council Act, 1956, the second respondent has no role in the matter of admission in the medical colleges. The various provisions of the Indian Medical Council Act, 1956 makes it clear that the 2nd respondent can have no say in the matter of admission. Therefore, it is surprising how direction can be issued by the 2nd respondent in the matter of admission. Further, it is seen from the impugned order that the 2nd respondent has only requested the State Government to direct the petitioner institution to reduce the admission in the management quota in respect of the petitioner college for the academic year 2009-2010 and increase allocation of free seats in the Government quota for the academic year 2009-2010. Admittedly, the 3rd and 4th respondent did not pass any orders directing the petitioner to reduce the admission in the management quota by seven seats for the academic year 2009-2010 and correspondingly increase the admission for the Government quota by seven seats. Admittedly, the 3rd and 4th respondent did not pass any orders directing the petitioner to reduce the admission in the management quota by seven seats for the academic year 2009-2010 and correspondingly increase the admission for the Government quota by seven seats. In my view, unless, orders are passed by the 3rd and 4th respondent to that effect following the order of the 2nd respondent, dated 23.07.2009 there is no need for the petitioner to reduce their quota in the matter of admission for the academic year 2009-2010. Therefore, there is no need for the petitioner to reduce their quota in the matter of admission for the academic year 2009-2010. 147. Infine the impugned proceedings of the 2nd respondent directing the management to surrender seven seats for the academic year 2009-2010 is set aside and the management is entitled to fill up its quota of seats viz., 50% for the academic year 2009-2010 and accordingly, the writ petition is allowed. Consequently, connected M.P.s are closed. No costs.