ORDER : 1. This petition is filed under Article 226 of the Constitution of India, in which, the petitioner has prayed for following reliefs, “(A) xxx xxx xxx (B) To issue a writ of mandamus or any other writ, order or direction directing the respondents more particularly, respondent Nos.1, 3 and 5 to grant admission to the petitioner as per the merit and the preference given by the petitioner in Sainik school admission form i.e. Sainik Schools at Balachadi, Kunjpura, Sattra and Chittiorgarh as per the merit list; (C) Pending admission, final hearing and disposal of the present application to issue a writ of mandamus or any other writ, order or direction directing the respondents more particularly, respondent Nos.1, 3 and 5 to grant admission to the petitioner as per the merit and the preference given by the petitioner in school admission form i.e. Sainik Schools at Balachadi, Kunjpura, Sattra and Chittiorgarh as per the merit list; (D) Pending admission, final hearing and disposal of the present application to issue a writ of mandamus or any other writ, order or direction directing the respondents more particularly, respondent Nos.1, 3 and 5 to keep one seat vacant for the petitioner in standard – 6 Sainik Schools at Balachadi, Kunjpura, Sattra and Chittiorgarh as per the merit list; (E) xxx xxx xxx.” 2. Heard learned advocate, Mr. R.J. Goswami for the petitioner and learned Assistant Solicitor General, Mr. Devang Vyas for the respondents. 3. The brief facts leading to filing of the present petition are as under : 3.1 It is stated that the Central Government has formed Sainik School Society under the Ministry of Defence and as per the scheme of the Central Government, one school should be established in each State in the country and as on date, there are around 33 Sainik Schools across all over India. It is stated that so far as Gujarat State is concerned, in the Sainik School situated at Village : Balachhadi in Jamnagar district, the admission is to be given to the student for 6th and 9th Standard. It is also stated that for getting admission in Sainik School, an entrance exam is being conducted, which consists of written examination, medical examination and interview and, thereafter, merit list is being published. It is also stated that for getting admission in Sainik School, an entrance exam is being conducted, which consists of written examination, medical examination and interview and, thereafter, merit list is being published. 3.2 It is the case of the petitioner that the petitioner is presently studying in 5th Standard and as the petitioner wanted to take admission in Sainik School in 6th Standard, he filled up the form for entrance exam for the academic year of 2020-21 and in pursuance thereto, exam was conducted on 05.01.2020 for all Sainik Schools. It is the case of the petitioner himself that the petitioner has filled up the form in SC category. There is a column for giving preference of Sainik School and accordingly, the petitioner has given preference as under, I. Sainik School, Balachhadi, Domicile State; II. Sainik School, Kunjpura, Other State; II. Sainik School, Sattara, Other State; IV. Sainik School, Chittorgarh, Other State; 3.3 It is the case of the petitioner that the petitioner was qualified candidate, however, the petitioner was not in the merit list of Home State. It is the case of the petitioner that as per the second choice of the petitioner in the aforesaid SC category, he was eligible to get admission in Sainik School, Kunjpura, however, when the admission was not given to the petitioner in the said School, he made various representations. Thereafter, the petitioner has issued legal notice dated 05.03.2020 to the respondent no.3, wherein he petitioner has categorically stated that he is entitled to get admission in Sainik School, Kunjpura in other State category. 3.4 It is further stated that the petitioner got reply dated 20.02.2020 from the respondent no.6 as well as from the respondent no.3. However in the said reply, the respondents have not narrated the correct facts. Therefore, the petitioner has preferred this petition. 4. Learned advocate, Mr. R.J. Goswami appearing for the petitioner referred to the Regulations framed by the Government for admission, copy of which is placed on record at Page No.23 of the compilation. Learned advocate has referred to Regulations 1.12 to 1.15 of the said Regulation. Therefore, the petitioner has preferred this petition. 4. Learned advocate, Mr. R.J. Goswami appearing for the petitioner referred to the Regulations framed by the Government for admission, copy of which is placed on record at Page No.23 of the compilation. Learned advocate has referred to Regulations 1.12 to 1.15 of the said Regulation. It is submitted that Regulation 1.12 pertains to reservation and as per the said Regulation, 67% of the seats are to be filled by the candidates of the State, in which, a particular Sainik School is located and remaining 33% of the total seats are open for the students/candidates of other State. Learned advocate would submit that the petitioner belongs to State of Gujarat and, therefore, there will be seat for the different States at Sainik School, Kunjpura and one seat is kept for the candidate of State of Gujarat in Sainik School, Kunjpura and the said seat is vacant, for which, the petitioner is eligible to get admission, inspite of that, the respondents have not granted admission to the petitioner on the said seat reserved for the candidate of State of Gujarat. 5. Learned advocate further submits that though the petitioner has applied for the seat in the reserved category, the petitioner is entitled to get admission if the seat is vacant for general category, however, the petitioner was denied the admission in Sainik School, Kunjpura. 6. Learned advocate has, thereafter, referred to the documents produced at Page No.139 of the compilation along with affidavit-in-rejoinder filed by the petitioner and, thereafter, submitted that the parents willing to admit their son/ward in other Sainik Schools in case they are qualified but low in merits in the School of their domicile, are to give undertaking that they are willing to admit their son/ward as full fees paying student in other Sainik School with a condition that they will not later on seek inter school transfer. Learned advocate has referred to the undertaking given by the father of the petitioner, copy of which is placed on record at Page No.143. It is, therefore, urged that when the father of the petitioner is willing to pay full fees as per the aforesaid Rules, he should be given admission in the Sainik School, Kunjpura. Learned advocate has referred to the undertaking given by the father of the petitioner, copy of which is placed on record at Page No.143. It is, therefore, urged that when the father of the petitioner is willing to pay full fees as per the aforesaid Rules, he should be given admission in the Sainik School, Kunjpura. It is the grievance of the petitioner that the concerned respondent authority has not granted admission to the petitioner and in fact, the petitioner is the only candidate from Gujarat, who is eligible for getting admission in other State quota i.e. in Sainik School, Kunjpura and, therefore, this Court may give appropriate direction to the respondents by directing them to give admission to the petitioner in Sainik School, Kunjpura. 7. On the other hand, learned Additional Solicitor General, Mr. Devang Vyas appearing for the respondents has vehemently opposed this petition. Learned counsel submitted that the petitioner has applied for admission in 6th Standard in Sainik School, Balachhadi under SC Category and for the admission, registration forms were filled in online. There is special note in the instructions which provides that Registration for admission is for a particular school only under particular category. Choice of schools given by the petitioner does not establish that he will be considered for schools other than first choice, in the normal course. If a Sainik School has surplus candidates in their published list of candidates, after the admission process, they may be allotted other schools depending on vacancies available in other schools (under SC, ST, Home General, or Outside Home, Home Defence or Outside Home Defence Category as applicable) after all their candidates in the waiting list are admitted. Thereafter, the merit as well as preference of the surplus candidates of other schools may be considered. It is submitted that the registration for admission is for a particular School only under a particular category and the petitioner had applied for the admission to Sainik School, Balachhadi under SC Category. The petitioner is not qualified in the Home State General Category. It is further submitted that the petitioner was informed that there is no seat in Sainik School, Kunjpura reserved for the candidates, who registered for Sainik School, Balachhadi. As per the reservation guidelines issued by the Sainik School Society, there is one seat available for student of Gujarat Domicile. The petitioner is not qualified in the Home State General Category. It is further submitted that the petitioner was informed that there is no seat in Sainik School, Kunjpura reserved for the candidates, who registered for Sainik School, Balachhadi. As per the reservation guidelines issued by the Sainik School Society, there is one seat available for student of Gujarat Domicile. Since no candidate from Gujarat qualified for the admission in Sainik School, Kunjpura as first choice of School, this seat fell vacant and was further transferred to Home State quota as per the Sainik School Society guidelines. At this stage, learned counsel has referred to Para No.13(b) of the Sainik School Society’s letter dated 16.07.2019 produced at Page No.119 of the compilation. 8. Thus it is contended by learned counsel appearing for the respondents that the request of the petitioner to grant admission in any other Sainik School is not justified as the petitioner has registered under SC Category as Choice No.1 and not for any other School under any other category. It is submitted that the petitioner has applied in Sainik School, Balachhadi under SC Category as per his application form and, hence, he is entitled for the admission in Sainik School, Balachhadi under SC Category only if he gets his place in the merit list. 9. Learned Counsel would further submit that there were 12 vacancies of SC Category in Sainik School, Balachhadi, whereas 36 candidates in SC Category were called to appear in the medical examination in ratio 1:3. The cut-off makrs for the SC Category is 193 marks in Sainik School, Balachhadi, however the petitioner has scored only 143 marks and is in 77th position in merit list of SC Category in Sainik School, Balachhadi. It is submitted that once the petitioner had applied in SC Category, now he cannot opt for admission in general category, that too, in another school i.e. Sainik School, Kunjpura. It is submitted that the petitioner might have been considered in other state general category quota if the petitioner had applied for Sainik School, Kunjpura as general candidate and as first choice. 10. It is further submitted that the petitioner’s request to give him admission in other Sainik School on payment of full fees cannot be accepted as there is no such policy in force as on date. 10. It is further submitted that the petitioner’s request to give him admission in other Sainik School on payment of full fees cannot be accepted as there is no such policy in force as on date. Even otherwise, it is submitted that as per the Rules, when the seat for student of Gujarat falls vacant, the said seat was transferred to Home State quota as per the guidelines, on which, the candidate/student who got 266 marks is already given admission, whereas the petitioner got only 143 marks. It is, therefore, urged that the present petition be dismissed. 11. Having heard learned advocates appearing for the parties and having gone through the material placed on record, it transpires that the petitioner wanted to get admission in Sainik School in 6th Standard, for which, he filled in the form for entrance examination for the academic year 2020-21 in SC Category and in the column for giving preference of Sainik School, the petitioner had selected Sainik School, Balachhadi, Domicile State as his Choice No.1, whereas he has selected Sainik School, Kunjpura as his Choice No.2. Thereafter, the examination was conducted on 05.01.2020 for all Sainik Schools. It is not in dispute that the petitioner was not in the merit list of the Home State i.e. for Sainik School, Balachhadi as the petitioner got 143 marks and cut-off marks for SC Category is 193 marks in Sainik School, Balachhadi. It is also not in dispute that Sainik School, Kujpura was the second preference of the petitioner, who had applied under SC Category. 12. At this stage, relevant Regulations i.e. Regulation Nos.1.12 to 1.15 are required to be referred to, “RESERVATION 1.12 67% of the seats in each Sainik School will be reserved for boys from the state in which the Sainik School is located. The shortfall, if any, and the remaining seats will be thrown open to boys from other States and Union Territories. 1.13 15% of the total seats are reserved for Scheduled Castes and 7½% seats for Scheduled Tribes. 1.14 25% seats are reserved for children of service personnel including ex-servicemen. ALLOTMENT OF SEATS 1.15 The number of vacancies available in a Sainik School shall be determined and allocation to those vacancies for boys belonging to the Home State and to the adjoining States/Union Territories for which the school caters shall be worked out. 1.14 25% seats are reserved for children of service personnel including ex-servicemen. ALLOTMENT OF SEATS 1.15 The number of vacancies available in a Sainik School shall be determined and allocation to those vacancies for boys belonging to the Home State and to the adjoining States/Union Territories for which the school caters shall be worked out. The boys belonging to SC and ST will be admitted on the basis of Rule 1.13 above. The remaining qualified boys from the Home State will then be arranged in one list called List-A from which vacancies earmarked for children of Defence Personnel and ex-servicemen as well as general category candidates shall be allotted from amongst the qualified candidates in the order of merit in accordance with the percentage of reservation for each category. Another list, called List-B will be prepared in which all the boys left over from List-A and also boys not belonging to the Home State shall be included and vacancies left will be further sub-allocated amongst children of Defence Personnel and ex-servicemen as well as general category strictly in the order of the merit achieved in the Entrance Examination. To the extent boys in a particular category are found deficient, the unfilled seats will be available for being filled by general category candidates in List-A or List-B as the case may be. Calculation of seats for admission of various categories (General, Defence, SC, and ST) is given in note below: Note: The allotment of seats should be done under Rule 1.15 taking into consideration, the reservations made in Rules 1.12, 1.13 and 1.14. The hypothetical case of 100 seats is interpreted as under :- (a) The boys belonging to SC/ST will be admitted on the basis of Rule 1.13 i.e. 15% SC and 7.5 ST. Out of 100 seats, thus 15+8 = 23 will go to SC and ST. (b) The remaining qualified boys from the home State will be arranged under List-A and vacancies of defence personnel and general category will be arranged in order of merit and allotted as per the reservation given in Rules 1.12 and 1.13. Out of 100 seats, thus 15+8 = 23 will go to SC and ST. (b) The remaining qualified boys from the home State will be arranged under List-A and vacancies of defence personnel and general category will be arranged in order of merit and allotted as per the reservation given in Rules 1.12 and 1.13. (c) List-B will be prepared in which all the boys left over from List-A and boys not belonging to the home state will be arranged in the order of merit and sub allocation of defence and general category will be made under rules given in the Sainik Schools Society as follows:- (i) Total seats 100 (ii) SC 15% of 100 15 (iii) ST 7.5% of 100 08 (iv) Balance seats a–(b+c) or 100–(15+8) = 77/(i) – {(ii)+(iii)}. List – A List – B 67% of 77 = 52 Distribution of remaining 25 seats (list of all left over students of List – A and all boys not belonging to home state) (a) Defence 25% of 52 = 13 (a) 25% of 25 = 6 (b) General Balance of 52 = 39 Category (b) General Category = 19 (c) Total = 52 (c) Total = 25 Therefore, total allocation of seats will be as under:- SC : 15 ST : 08 Defence 19 (List A-13 = List B-6) General 58 (List A-39 + List B-19) Total 100” 13. From the aforesaid Regulations, it can be said that if the total number of seats is 100 then, overall seat allotment is as under, Ser No. Category % age Seats Distribution (a) Total Seats 100 (b) SC 15% of 100 15 (c) ST 7.5 of 100 08 (d) Total 23 (e) Balance 100-(15+8) 77 (f) Home State 67% of 77 52 (g) Home State Defence 25% of 52 13 (h) Home State General Balance of 52 39 (j) Other State 33% of 77 25 (k) Other State Defence 25% of 25 06 (l) Other State General Balance of 25 14. From the aforesaid Regulations and table, it is clear that 15% of the seats are kept reserved for SC candidates/students. Further 7.5% of total seats are reserved for ST candidate. From the aforesaid Regulations and table, it is clear that 15% of the seats are kept reserved for SC candidates/students. Further 7.5% of total seats are reserved for ST candidate. Thus, it is clear that if there are total number of 100 seats, 23 seats are reserved for SC & ST candidates, whereas balance 77 seats are kept open for general category candidates and as per the Regulation, out of 100 seats, 19 seats are kept for students of other State general. At this stage, it is pertinent to note that the petitioner is claiming admission on these 19 seats, which are kept for other State general category students and it is his case that one seat for student of Gujarat State is kept in Sainik School, Kunjpura. 15. At this stage, it is also pertinent to note that it is the specific case of the respondents in the affidavit-in-reply that no candidate from Gujarat was qualified for admission in Sainik School, Kunjpura as first choice of school and, therefore, this seat fell vacant and was further transferred to Home State quota as per the guidelines of the Sainik School Society dated 06.07.2019, copy of which is produced at Page No.119 of the compilation. Clause 13 of the said guidelines provides for reservation, wherein Clause 13(b) provides as under, “13(b) Out of the remaining, 67% of the seats will be reserved for children from the State in which the Sainik School is located. Balance 33% left over of seats will be thrown open to children from other State and Union Territories in the ratio of their male population. Any unutilized seats in this category will be merged with home State seats (In this connection, please refer to this office letter No. 4(1)/SSS/2016) dated 5th July, 2017) in order of merits.” 16. From the aforesaid latest guidelines dated 16.07.2019, it is clear that any unutilized seats in 33% quota of other State general will be merged with Home State seats. It is the specific case of the respondents that the petitioner has applied under SC Category and not under General Category and as the petitioner has given first preference to Sainik School, Balachhadi and second choice was given to Sainik School, Kunjpura, he is not eligible to get admission in Sainik School, Kunjpura in general category seats and that too, when the petitioner secured only 143 marks. During the course of arguments, learned counsel, Mr. Vyas appearing for the respondents, after taking instructions, specifically stated that unutilized seat in Sainik School, Kunjpura, which was kept for Gujarat, is merged with Home State seat and the candidate/student, who has secured 266 marks, is given admission. 17. Once again, it is required to be noted that it is not in dispute that the petitioner applied under the SC Category and is not eligible for getting admission in Sainik School, Balachhadi, which was his first choice. In the online application form itself, it is specifically stated that the registration for admission is for a particular school only under a particular category. Choice of schools given by the candidates does not assure that they will be considered for schools other than first choice, in the normal course. If a Sainik School has surplus candidates in their published list of candidates, after the admission process, they may be allotted other schools depending on vacancies available in other schools (under SC, ST, Home General, or Outside Home, Home Defence or Outside Home Defence Category as applicable) after all their candidates in the waiting list are admitted. 18. Thus, from the aforesaid condition stipulated in the application form itself, the choice of schools given by the candidates does not assure that they will be considered for schools other than first choice in normal course. It is further clear that if the Sainik School has surplus candidates in their published list of candidates, after the admission process, the candidates may be allotted other schools depending on vacancies available in other schools under SC, ST, Home General, or Outside Home, Home Defence or Outside Home Defence Category as applicable. Thus, when the petitioner has applied under SC Category and when the petitioner got only 143 marks and is at Sr. No.77 in the merit list in SC Category for Sainik School, Balachhadi, the admission is not given to him in Sainik School, Kunjpura, which is his second choice. The respondents have given admission to the candidate, who secured 266 marks as per Para No.13(b) of the guidelines of the Sainik School Society dated 16.07.2019. Thus on the seat, on which the petitioner is claiming admission, the candidate, who secured more marks than the petitioner, has been given admission and thereby the respondents have not committed any illegality. 19. The respondents have given admission to the candidate, who secured 266 marks as per Para No.13(b) of the guidelines of the Sainik School Society dated 16.07.2019. Thus on the seat, on which the petitioner is claiming admission, the candidate, who secured more marks than the petitioner, has been given admission and thereby the respondents have not committed any illegality. 19. In view of the aforesaid discussion, the petitioner is not entitled to claim any relief as prayed for in the present petition. Hence, the present petition is dismissed. Notice is discharged.