JUDGMENT : Mohinder Pal, J. 1. Petitioner, by way of this petition under Article 226 of the Constitution of India, has challenged action of the respondents vide which he has been denied Ph.D. admission in Panchkarma branch of Ayurveda. 2. On 15.7.2015, respondent-University advertised notice for Ph.D. admission for 20 stipendiary seats out of which, 50% seats were reserved for outside Gujarat candidates and petitioner was aspirant to take admission in Panchkarma branch of Ph.D. Written examination was held on 13.8.2015 and the petitioner as well as respondent No. 3 secured 53% marks. On the very next day i.e. on 14.8.2015 at 10.30 a.m., respondent No. 3 was given admission. It is further case of the petitioner that out of the persons who have been granted admission one Dr. Kanjaria Himanshu Rameshchandra, Roll No. 1045, who was given admission in the Department of Kayachikitsa, did not join and in his place, one Dr. Harmit Kaur, Roll No. 1042, aspirant to get admission in Rasashastra and Bhaishajyakalpana was admitted. Though petitioner being higher in merit should have been offered the seat which has fallen vacant because of non joining of Dr. Kanjaria Himanshu Rameshchandra. It is further case of the petitioner that Dr. A.B. Thakar who was qualified guide for Ph.D. was Associate Professor and was In-charge Head of the field of Panchkarma and had capacity to admit 4 students under him. However, on 20.10.2015, Dr. A.B. Thakar, was promoted to the post of Professor with effect from 22.11.2014 and his capacity to admit students under Panchkarma was increased from 4 to 5. As the petitioner was the next available candidate and Prof. Dr. A.B. Thakar, Head of Panchkarma, who had capacity to admit one more student at the relevant time, the petitioner being the next available candidate should have been admitted. The action of the respondent in not admitting the petitioner was arbitrary and was liable to be set aside. 3. While arguing on behalf of the petitioner, Mr. Jinesh H. Kapadia, learned advocate has submitted that petitioner and respondent No. 3 both got 53% marks in the written examination for the admission in Ph.D. degree in Panchkarma subject. The petitioner was not called for counseling and respondent No. 3 was given admission. Though the petitioner has represented, however, representation of the petitioner has not been replied until the notice was served upon the respondents by the Hon'ble High Court. The petitioner was not called for counseling and respondent No. 3 was given admission. Though the petitioner has represented, however, representation of the petitioner has not been replied until the notice was served upon the respondents by the Hon'ble High Court. Under the general instructions issued by the University, in case of securing equal marks in the written examination, merit was to be decided on the basis of marks of Post Graduation. However, the action of respondent-University in giving admission to respondent No. 3 on basis of marks obtained in Bachelor degree (BAMS) was against the rules. Learned counsel has further argued that if both the candidates have secured equal marks then the criteria of age should have been taken into consideration. 4. Learned counsel for the petitioner has also argued that as per public notice for admission to Ph.D., 20 seats were to be filled. Along with notice, list of guides and their capacity was also published. Dr. A.B. Thakar at Sr. No. 12 was the guide for Panchkarma who had capacity to intake 2 students at the relevant time later on intake capacity has increased and thereafter, another student, namely, Dr. Harmit Kaur has been given admission as stipendiary candidate on 9.12.2015, the petitioner has been deprived of his right to get admission in Ph.D. branch of Panchkarma. 5. On the other hand, learned counsel, Mr. Siraj Gori, for the respondent-University has first of all raised the point regarding general clauses of university rules. According to him, as per Rule 11(a), if both the candidates have secured equal marks, the authorities can revert back to their academic record in BAMS examination. According to him, respondent No. 3 has secured more marks than the petitioner in BAMS examination and therefore, respondent No. 3 has been preferred in place of petitioner for admission in Ph.D. branch of Panchkarma. In order to answer arguments regarding capacity of Dr. A.B. Thakar, it has been submitted that at the time of advertisement and admission process, capacity of this Professor was to admit 4 students. As no vacancy in Panchkarma in Ph.D. was available, the vacant seat has been offered to one Dr. Harmit Kaur who has applied for admission in branch of Rasashastra and Bhaishajyakalpana. According to him, case of the petitioner cannot be compared with either respondent No. 3 or Dr. Harmit Kaur as explained above. 6. As no vacancy in Panchkarma in Ph.D. was available, the vacant seat has been offered to one Dr. Harmit Kaur who has applied for admission in branch of Rasashastra and Bhaishajyakalpana. According to him, case of the petitioner cannot be compared with either respondent No. 3 or Dr. Harmit Kaur as explained above. 6. Finally, it has been argued by learned counsel for the respondent-University that admissions were finalized in the month of October, 2015 and almost a period of one year is over and at this stage, the petitioner cannot be given admission under Dr. A.B. Thakar in Panchkarma department. 7. This Court has given thoughtful consideration to the arguments of both the sides. Learned counsel for the petitioner first of all tried to challenge the admission of respondent No. 3 on the ground that both, the petitioner and respondent No. 3, have secured equal marks in the written test for the admission in Panchkarma branch. It has been submitted that in case of equal marks, the University should have reverted to their academic record in the Master examination. As there is no such grading in the Master examination, the University could not have gone further down to look into the academic record of BAMS examination. 8. This Court has gone through the latest instructions which were available with counsel for the University and have been read out in the Court which clearly states that in case of dispute, the University could look into the positioning in BAMS examination. Resultantly, arguments of learned counsel for the petitioner as far as admission of respondent No. 3 is concerned, fails and requires to be rejected. 9. Now, the question remains, whether the petitioner should have been offered the seat which has fallen vacant because of non joining of Dr. Kanjaria Himanshu Rameshchandra, Roll No. 1045, who was given admission in the Department of Kayachiktsa. It is case of the respondent-University that though the present petitioner, Dr. Vivek Shukla, was the next available candidate, however, he could not be offered seat in place of Dr. Kanjaria Himanshu Rameshchandra as Dr. Kanjaria was given admission in the branch of Kayachiktsa while the petitioner was a candidate for admission to Panchkarma. This argument of University seems without any basis. It could be seen that in place of Dr. Kanjaria Himanshu Rameshchandra, Dr. Harmit Kaur, Roll No. 1042, has been admitted. Dr. Kanjaria Himanshu Rameshchandra as Dr. Kanjaria was given admission in the branch of Kayachiktsa while the petitioner was a candidate for admission to Panchkarma. This argument of University seems without any basis. It could be seen that in place of Dr. Kanjaria Himanshu Rameshchandra, Dr. Harmit Kaur, Roll No. 1042, has been admitted. Dr. Harmit Kaur has been admitted in the department of Rasashastra and Bhaishajyakalpana while the seat has fallen vacant in Kayachiktsa Branch. The only conclusion which can be drawn from this jugglery is that there was no hard and fast rule that if a seat has fallen vacant in particular Branch only next candidate from that branch could be considered. If Dr. Harmit Kaur could be adjusted in the Branch of Rasashastra and Bhaishajyakalpana when seat has fallen vacant in Kayachiktsa, the petitioner could have been offered a seat in the department of Panchkarma who was undoubtedly higher in merit and was willing to purse his studies in this branch. 10. Arguments were also raised regarding capacity of Dr. A.B. Thakar to admit 4 students in the department of Panchkarma at the time of admission. As pointed out by learned counsel for the petitioner, Dr. A.B. Thakar, was promoted to the post of Professor with effect from 22.11.2014 vide office order dated 20.10.2015. It is not in dispute that after promotion to the post of Professor, Dr. A.B. Thakar had a capacity to admit 5 students under him for the degree of Ph.D. Panchkarma. It will be relevant to note that the admission of Dr. Harmit Kaur has been finalized on 9.12.2015 i.e. after the promotion of Dr. A.B. Thakar meaning thereby that on the relevant date, he had capacity to admit 5 students and the petitioner being higher in merit, a candidate of Panchkarma was available at that time. 11. There are some more irregularities in this process of admissions which has come to the notice of this Court but this Court would not like to upset the admissions of other students which have been finalized last year. Further, it is a debatable issue if a seat which was meant for a candidate belong to SC or ST category could have been given to a candidate belonging to General Category. All these issues are not gone into at this stage. 12. Further, it is a debatable issue if a seat which was meant for a candidate belong to SC or ST category could have been given to a candidate belonging to General Category. All these issues are not gone into at this stage. 12. Learned counsel for the petitioner was fair enough to give a statement that petitioner will not mind to be treated as a candidate under non stipendiary seat. 13. Resultantly, this petition is allowed. Respondent-University is directed to create an additional seat in the batch of 2015-16 for admission of the petitioner in branch of Panchkarma Ph.D. under non stipendiary quota. Though, the main object of the petitioner will be writing thesis under the guidance of his guide, however, if the petitioner is required to attend certain classes or to deliver lectures, such arrangement will be made by the respondent-University. Rule is made absolute accordingly.