{1} IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.4545 OF 2009 Ajay Kumar Yadav s/o Ramesh Chandra R/o Block No.21/1, Asseye Line Umrao Enclave, Cant. Aurangabad PETITIONER VERSUS 1. The State of Maharashtra Through its Secretary, Medical Education & Drugs Department Mantralaya, Mumbai 2. The Director, Medical Education & research CET-CELL, Opp-Government Dental College And Hospital Building, St. Geroge, Hospital Compound Near CST Railway Station, Mumbai 3. The Dean, Government Medical College, GHATI Hospital Compound, Panchakki Road, Aurangabad 4. Miss Anupama d/o A.K. Janardhan U/G A.K.Janardhan Colonel, R/o Block No.14/3, Vikram Enclave, Cont, Aurangabad 5. Miss Priya d/o Harishrama U/G Harishrama J.E. Civil, MES Cant, Aurangabad RESPONDENTS {2} WITH WRIT PETITION NO.4563 OF 2009 Amit Kumar Yadav s/o Narayansingh Yadav R/o 33 Medium Regiment, C/o 56 APO, PIN 925733 Aurangabad PETITIONER VERSUS 1. The State of Maharashtra Through its Secretary, Medical Education & Drugs Department Mantralaya, Mumbai 2. The Director, Medical Education & research CET-CELL, Opp-Government Dental College And Hospital Building, St. Geroge, Hospital Compound Near CST Railway Station, Mumbai 3. The Dean, Government Medical College, GHATI Hospital Compound, Panchakki Road, Aurangabad 4. Miss Anupama d/o A.K. Janardhan U/G A.K.Janardhan Colonel, R/o Block No.14/3, Vikram Enclave, Cont, Aurangabad 5. Miss Priya d/o Harishrama U/G Harishrama J.E. Civil, MES Cant, Aurangabad RESPONDENTS {3} ....... Mr.J.N.Singh, Advocate for petitioners Mr.N.N.Jadhav, AGP for respondents No.1 to 3 Mr.A.M.Karad, Advocate for respondent No.4. Mr.S.D.Dhongade, Advocate for respondent No.5 ....... [CORAM : P.V.HARDAS, and A.V.POTDAR, J.J.] DATE : 17th August 2009 ORAL JUDGMENT (PER P.V.HARDAS, J.) : 1. Since both these petitions raise a common question, both these petitions are being decided by this common judgment. 2. Rule. Rule returnable forthwith. With the consent of learned counsel for the parties these petitions are heard finally at the stage of admission. 3. Both the petitioners question grant of admissions to respondents No.4 and 5 to the first year MBBS course from the category of Def-3. At the outset, learned counsel for respondent No.5 states that the respondent No.5 has withdrawn her admission. The aforesaid statement is made on affidavit and in the light of that Mr.Singh, learned counsel for the petitioners sate that the petitioners do not press for the reliefs prayed for in these petitions in so far as they relate to questioning the admission of respondent No.5. 4. The petitioners in writ petitions No.4545/2009 and 4563/2009 were placed at serial Nos. 3 and 4 in the merit list, in respect {4} of the two seats which were available for being filled up from the category of Def-3. Respondent No.4 was placed at serial No.1 while respondent No. 5 was placed at serial No.2. To repeat again, the petitioners in these petitions were placed at serial numbers 3 and 4 respectively. 5. The procedure relating to the admission prescribed is set out in Rule 3 of Annexure “C”, which is appended to the rules which are enclosed or find place in the brochure relating to the admissions. Rule 3 reads thus - “3 For selection against Def-3 category following conditions shall apply a) The concerned Defence Service person who is not domicile of the State of Maharashtra and who has been transferred in public interest to Maharashtra State, prior to the last date of filling up of Preference Form. b) The concerned Defence Service person ought to be working as on the last date of filling of Preference form at a place within the jurisdiction of the concerned regional area in Maharashtra in which the candidate is seeking a seat c) The candidate ought to have appeared and passed the qualifying examination. d) The candidate is required to attach necessary and sufficient proof to fulfill above conditions and a certificate in proforma.” 6. Thus, in order to be entitled for a candidate to claim the benefit of Def-3 category, it is necessary that the concerned defence service person, who is ordinarily not domicile of the State of Maharashtra, should be transferred in public interest in the Maharashtra State prior to the last date of filling up of the preference forms. Rule 3-B further mandates that the concerned defence service {5} personnel ought to be working as on the last date of filling of the preference form at a place within the jurisdiction of the concerned regional area in Maharashtra in which the candidate is seeking a seat. Undisputedly, the last date of submission of preference form was 11th July 2009. Father of respondent No.4 attained age of super annuation and stood retired on 31.03.2009. Thus, on the last date of submission of preference forms, father of respondent No.4 was not in employment and this fact is undisputed before us. Rule 3-B in clear terms mandates that the defence personnel should be working on the last date of filling up of the preference form. Undisputedly, the last date of the filling up of the preference form was 11.07.2009 and father of respondent No.4 was not in defence service as on 11.07.2009. In the light of that, therefore, it is obvious to us that respondent No.4 was ineligible to be granted admission from Def-3 category. 7. Since respondent No.4 has been held by us to be ineligible and respondent No.5 has withdrawn her admission, two seats which are reserved for Def-e category students, now stand unfilled and are vacant. The petitioners in both the petitions claim to have placed at serial No.3 and 4 in the order of merit and, therefore, vie for being granted admission in respect of the two vacant unfilled seats. Since we have already come to the conclusion that respondent No.4 is rendered ineligible on account of the rule, we have no other alternative except to quash the admission granted to respondent No.4. Consequent thereto, two seats would now be available for being filled up from amongst the candidates in the merit list. 8. We therefore, allow these petitions in respect of the {6} challenge to the admission of respondent No.4 and quash and set aside the admission granted to respondent No.4. The petitions stand dismissed in respect of challenge to the admission of respondent No.5, as we accept the statement made before us that respondent No.5 has already withdrawn her admission. Two seats, which would now be available for being filled up from Def-3 category be proceeded further. Respondents, therefore, to select and grant admissions to the candidates fulfilling eligibility criteria as per the merit list drawn by the respondents. Since these petitions relate to the admission of the students, we direct the respondents to finalize the admission in respect of the two vacant seats of Def-3 category students within two weeks from today, in accordance with law. 9. Rule is thus made absolute on the above terms with no order as to costs. [A.V.POTDAR, J.] [P.V.HARDAS, J.] drp/wp4545-09