BONNIE ANNA GEORGEversusMEDICAL COUNCIL OF INDIA &ANR.

                   [2014] 13 S.C.R.1215


                 BONN IE ANNA GEORGE                             A
                              v.
           MEDICAL COUNCIL OF INDIA &ANR.
            (Writ Petition (Civil) No. 986 of 2013)
                                                                 B
                  SEPTEMBER 18, 2014
    [FAKKIR MOHAMED IBRAHIM KALIFULLA AND
                  SHIVA KIRTI SINGH, JJ]
      Constitution of India, 1950 -.Art. 32 - Writ petition by   c
Medical student - Sought writ of Mandamus to direct the
Medical College and Medical Council of India to permit her
to change her PG course from MD Pathology to MD General
Medicine in the available vacant seat under NRI quota within
the College - Held: On facts, the petitioner was deprived of
                                                                  0
the opportunity to opt for the availabfe NRI seat in MD General
Medicine during the third counseling, thus was wholly
unjustified - However, in view that the admission schedule
fixed by Medical Council of India and this Court is being
scrupulously followed, there is no situation to violate the said E
schedule fixed by this Court and give direction as prayed for
by the petitioner- However, in view of grave injustice caused
to the petitioner for which the entire responsibility lies on the
Medical College, direction issued to the Medical College to ·
pay Rs. 5 lakhs and refund Rs. 13,000, the amount paid by F
the petitioner for her re-admission to the PG course of MD
pathology - Education/Educational Institutions - Medical
education.
     Partly allowing the writ petition, the Court
     HELD: 1.1 The course adopted by the second G
Respondent ultimately deprived the Petitioner of the
valuable right to opt for a course of her choice, which
was very much available and the inept conduct of the
second Respondent was extremely irresponsible and
unconscionable. Deep anguished is expressed· while H
                             1215
1216      SUPREME COURT REPORTS              [2014] 13 S.C.R.

 A noting such deplorable conduct of the second
   Respondent in having dealt with the right of the Petitioner
   in such a casual manner by which she was disabled from
   making a choice to a course for which she was very
   passionately waiting and the course which was very
 B much available for her option. [Para 25, 26][1234-B-D]
          1.2 For an N.R.I. seat the prescribed fee is US$
   1,25,000 which is equivalent to approximately Rs.75
   lakhs as against the annual fee of Rs.3,98,000/- for 'A'
   category candidates. As per the refund rules, when
 C somebody vacates the seat on the last date of admission,
   he/she is entitled for refund of the full fee except
   administrative fee and any other expenses incurred by
   the institution towards the candidate. However, such
   refund of full fee need not be made if the seat vacated by
 D the candidate could !)Ot be filled up by the institution.
   Therefore, when the N.R.I. seat of M.D. General Medicine
   was vacated and if the seat was filled up by a candidate
   of' A' category then second Respondent would be bound
   to refund the entire fee paid by the N.R.I. candidate except
 E the administrative expenses and other expenses
   towards the candidate. Since, the second Respondent
   was ultimately successful in not filling up the seat and
   thereby applying the refund rules, the concerned N.R.I.
   candidate need not be refunded with the full fee on the
 F ground that the seat vacated by him could not be filled
   by the second respondent. There is much to be doubted
   as regards the conduct of the second respondent in
   depriving the petitioner to exercise her right for opting
   the available N.R.I. category seat, while in law, she had ·
 G every right to seek for such an option. Further, the
   conduct of the second respondent in having made an
   application in this Court for holding fourth counselling
   on 07.08.2013 which was rejected by this Court also
   suggests that there was total lack of bona fide in the
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BONNIEANNA GEORGE v. MEDICAL COUNCIL OF INDIA 1217


stand of the second respondent. [Para 27)(1234-E-H;             A
1235-A-E]
     1.3 The second respondent was apparently
creating a false hope not only to itself but also to the
candidates as though there were every bona fide effort
taken by it in the interest of the candidates. Therefore, B
the course adopted by the second respondent severely
lacked in bonafides in its approach. [Para 28)(1235-G-H]
      1.4 Having regard to the conclusions, depriving the
petitioner of the opportunity to opt for the available N.R.I.   c
seat in M.D. General Medicine during the third
counselling was wholly unjustified. The petitioner
sought for Mandamus to direct the second respondent
to permit her to shift her P.G. Course from M.D. Pathology
to M.D. General Medicine in the available vacant seat.          0
Though, the second respondent was wholly unjustified
in not making available the said vacant seat to the
petitioner, as the admission schedule fixed by Medical
Council of India and this Court is· being scrupulously
followed, there is no extraordinary situation to violate        E
the said schedule fixed by this Court. The time schedule
should be strictly adhered to and no mid stream
admission should be allowed. Therefore, there is no
inclination to give such a direction as prayed for by the
petitioner. However, taking intp account the grave              F
injustice caused to the petitioner for which the entire
responsibility lies on the second respondent, the second
respondent is, therefore, directed to pay the said sum
of Rs.5,00,000/- apart from refunding the sum of
Rs.13,000/- which the petitioner had to pay for her re-         G
admission to the very same P.G. course of M.D.
Pathology. (Para 29)(1236-A-G]
     CIVIL ORIGINAL JURISDICTION : Writ Petition (Civil)
No(s). 986 of2013.
        (Under Article 32 of the Constitution of India)         H
1218        SUPREME COURT REPORTS                  [2014] 13 S.C.R.


 A          V.K. Biju, Ms. Bhawna Singh Dev, Advs. forthe Petitioner.
           V. Giri, Sr. Adv., Sanjay Misra, Rakesh K. Sharma,
       Gaurav Sharma, Prateek Bhatia, Advs. for the Respondents.
            The Judgment of the Court were delivered by
 B          FAKKIR MOHAMED IBRAHIM KALIFULLA, J.
          1. The Petitioner who has joined the Christian Medical
   College, Ludhiana (hereinafter referred to as the 'second
   Respondent') in the P.G. Course i.e. M.D. Pathology, has come
 C forward with this writ petition with a prayer for the issuance of
   a Writ of Mandamus directing the Respondents to permit her
   to shift her P.G. course from M.D. Pathology to M.D. General
   Medicine in the available vacant seat under the N.R.I. quota
   within the College. According to the Petitioner, she joined the
   P.G. course M.D. Pathology in the academic year 2013-14
 0 based on the prospectus issued by the second Respondent.
   She claims to belong to sponsored category 'A'. She
   contended that after her success in the entrance examination
   wherein she secured thirteenth rank in the category 'P.:, she
 E participated in the first counselling on 21.05.2013, that though
   her first preference was M.D. General Medicine, as there was
   no seat available for her rank in the category 'P.:, she accept~d
   M.D. Pathology and paid the full fee (Rs.3.98 lakhs) and joined
   the course. The second counselling was stated to have been
    held on 28.05.2013. Though there was a seat vacant in M.D.
 F General Medicine, since the higher rank holder, namely, Chris
    Baby Paranayil who was in the twelfth rank opted for the said
   vacant seat of M.D. General Medicine, the Petitioner did not
    make any attempt in the second counselling. Subsequently,
   the third counselling was scheduled on 31.07.2013. On the
 G ,evening of 30.07 .2013, since the second Respondent
    displayed in the website the availability of two vacancies under
   the N.R.I. quota, namely, M.D.Anaesthesia and M.D. General
    M~dicine, the Petitioner paid the necessary fee of Rs.13,000/

 H
 BONNIE ANNA GEORGE v. MEDICAL COUNCIL OF INDIA 1219
     [FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]

- for participating in the third counselling, inasmuch as in the A
category 'A' upto the twelfth rank holders seats had already
been allotted based on their options exercised in the second
counselling for M.D. General Medicine and she was next in
the order of merit i.e. in the thirteenth rank.
       2. On 31.07.2013, the Petitioner participated in the third B
counselling and stated that the second Respondent announced
that the available N. R. I. vacant seats will not be shifted to the
sponsored category 'P\ as per the prospectus and in the said
circumstances the Petitioner was forced to opt for the very
same seat which she decided to vacate on the evening of C
30. 07.2013 or otherwise she was placed in a piquant situation
in which she would have lost that seat also. The Petitioner,
therefore, contended that by the illegal conduct of the second
Respondent in not shifting the available vacant seat of M.D. ·
General Medicine from the N.R.I. category to the sponsored D
category 'P\ during the course of the day of the third counselling,
the Petitioner was deprived of her valuable right to opt for the
said course. It is in the above stated background that the
Petitioner has come forward with this writ petition seeking for
the relief as mentioned above. This writ petition was resisted E
by the second Respondent by filing a counter affidavit opposing ,
the claim made in the writ petition.
       3. The Petitioner relied upon the provisions contained in
 the prospectus under the caption 'filling up of vacant seats'. F
 As per the said part of the prospectus, the stipulation contained
 therein was that all candidates who cleared the Christian
·Medical College-PG Entrance Examination (including those
 who have already taken admission in Christian Medical
 College and those who were absent in the previous
 counselling), would be eligible for the vacant seats arising. It G
 also stated that vacant seats arising during the third counselling
 due to shifting of courses from already admitted candidates
 would be announced immediately and would be offered to the
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1220        SUPREMECOURTREPORTS                     [2014] 13 S.C.R.


 A next meritorious candidate onwards. It further stated that
   vacant seats arising in the N.R.I. category would be filled from
   the sponsored category. Administrative fee of Rs.13,000/-
   would be charged from the candidates who were already
   admitted but opting for shifting of course, during any
 B subsequent counselling.
         4. In the counter affidavit filed on behalf of the second
   Respondent, it was pointed out that as per clause 1Oof the
   prospectus a candidate desirous of participating in
   subsequent counsellings after taking admission in any P.G.
 C course in Christian Medical College, Ludhiana will have to first
   vacate the present course seat by 5 pm the previous day (as
   per rules) and let that seat be put up for counselling too. It was
   further contended in the counter affidavit that the vacancies in
   the particular category will first be filled up from the waiting list
 D of that category and only after exhausting the waiting list
   candidates of that category, the vacant seats, if any, would be
   shifted.
          5. It was, therefore, contended that on 30.07.2013, a
 E notice displaying vacancy in the N.R.I. category was published
   for the sake of N. R. I. candidates and thatthe Petitioner cannot
   claim shifting of seats from category 'A' to N.R.I. category by
   referring to an order dated 30.07 .2013 of this Court. At this
   juncture, it will have to be stated that no such order was placed
 F before this Court stipulating any such restriction. It was then
   contended that the Petitioner approached the second
   Respondent late in the evening at the end of third counsc:iing
   when she was informed about the writ petition, namely, W.P.(C)
    No.433 of2013 which was directed to be listed on 01.08.2013
 G along with an application for extension of last date of admission
   and that all the seats of M.D. General Medicine Wj:lre already
   filled. A further statement was made to the effect that there
    were twelve rank holders and if any seat is available in M.D.
    General Medicine, that would be offered to only those rank
    holders who were above the Petitioner and also of the
 H
BONNIE ANNA GEORGE v. MEDICAL COUNCIL OF INDIA 1221
    [FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]

possibility of offering those seats to N.R.I. candidates and only A
thereafter the shifting of course by the Petitioner could have
been considered.
      6. Mr. Giri, learned Senior Counsel, appearing for the
second Respondent realizing the prevaricating statements
contained in the counter affidavit filed earlier on 02.12.2013, 8
wanted to file a detailed counter affidavit and thereafter the
additional affidavit on behalf of the second Respondent was
filed on 28.08.2014. In the additional affidavit somewhat
different stand was taken on behalf of the second Respondent.
It would be relevant to make a detailed reference to the stand C
of the second Respondent now stated in the additional affidavit,
inasmuch as we feel that the stand of the second Respondent
requires to be considered in the anvil of the specific prescription
contained in the prospectus as to how any vacant seat arising
in the subsequent counselling was to be filled up by following D
a particular methodology.
     7. In the additional affidavit dated 28.08.2014, it was
contended that by the time the third counselling was to take
place on 31.07.2013, there were as many as two seats in the E
N.R.I. category to be filled. lt was also stated that originally
there were five seats in the N.R.I. category for which eight
students had qualified, that in the first counselling on
21.05.2013, four out of the five seats in the N.R.I. category got
filled up leaving M. D. Anesthesia alone which remained vacant. F
The said position stated to have continued even at the time of
the second counselling. Before the third counselling, one seat
in the N.R.I. category i.e. M.D. General Me'dicine admittedly
fell vacant. The third counselling as stated earlier, was
scheduled on 31.07.2013. As per the merit list for the N.R.I. G
category, it was stated that any of the five students could have
opted for the said seats. Thereafter it was stated that the
Petitioner surrendered her seat in M.D. Pathology on the eve
of third counselling to enable her to participate in the third
counselling.
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1222         SUPREME COURT REPORTS                   (2014) 13 S.C.R.


 A             8. On 31.07.2013 the third counselling stated to have
       commenced at 9 am and two students in category'/>\ who were
       third and seventh rank holders were called, that Dr. Shiti Bose,
       the third rank holder who had earlier opted for M.D. Paediatrics
       opted for M.D. Dermatology, a new course which became
 B     available at the time of third counselling and that one seat for
       M.D. Paediatrics became vacant. The seventh rank holder
       Dr. Richa who earlier opted for MS Ophthalmology and who
       surrendered that seat stated to have opted for M.D. Paediatrics
       which was vacated by the third rank holder Dr. Shiti Bose.
 C     According to the Petitioner, in the midst of third counselling,
       the second Respondent announced that the vacant seats of
       N. R. I. category will not be shifted to the sponsored category
       as per the prospectus and, therefore, she had no option except
       to again opt for the very same seat of M.D. Pathology which
 D     she vacated on the previous day evening. It is the further case
       of the Petitioner that when she enquired about the shifting of
       the vacant seats of N.R.I. category, the second Respondent
       informed that they needed an order of this Court in W.P.(C)
       No.478 of 2012 to shift the same to the sponsored category.
 E     She was further informed that if this Court allows such shifting,
       there will be fourth counselling and in the fourth counselling
       she will be offered the course of M.D. General Medicine.
          9. It is, however, stated in the subsequent paragraphs
   that after completing the formalities of admission to all students
 F ih category'/>\ around 12.30 p.m. on 31.07.2013, the second
   Respondent maqe a roll call of students belonging to category
   'B' i.e. from rank 861 onwards upto 967 and by the time the
   roll call was completed and the other formalities were
   concluded, the time was around 8 p.m. and thereafter the
 G second Respondent finally published a notice saying that the
   available seats in the P.G. course were six in number, i.e, one
   seat in category 'A', three seats in category 'B' and two seats
   in the N.R.I. category. Of the two seats in N.R.I. category one
   was M.D. General Medicine.
 H
BONNIE ANNA GEORGE v. MEDICAL COUNCIL OF INDIA 1223.
    [FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]

       10. Apparently the stand of the second Respondent in A
the additional counter affidavit is that there was no possibility
of the available M.D. General Medicine course of N.R.I.
category being shifted to category '/\ jn order to enable the
Petitioner to exercise her option even on the third counselling
date, as by the time such a decision was taken, it was already. B
8 p.m. and the second Respondent was, therefore, disabled
from allowing the Petitioner to exercise her option. On that
basis, the second Respondent would resist the claim of the
 Petitioner made in the writ petition.
       11. We heard Mr. V. K. Biju, learned counsel for the C
Petitioner and Mr. V. Giri, learned Senior Counsel for the
second Respondent. Mr. Biju learned counsel forthe Petitioner
in his submissions contended that as per the prescription
contained in the prospectus as regards filling up of all vacant ·
seats arising during the third counselling due to shifting of D
courses from already admitted candidates will be announced
immediately and will be offered to the next meritorious
candidates onwards and that vacancies arising in the N.R.I..
category would be filled up from the sponsored category
namely category 'A'. By referring to such specific prescription E
contained in the prospectus learned counsel contended that
the second Respondent having notified the vacancy in the N.R.I.
category insofar as it related to M.D. General Medicine on the
evening of .10.07.2013 should have offered the said vacant
seat for the r ponsored 'A' category students on the date of F
third counselling i.e. on 31.7 .2013. The learned counsel
contended that instead of strictly following the prescribed
procedure under the prospectus, the second Respondent did
not offer the said vacant seat of M. D. General Medicine under
the N.R.I. category to the sponsored 'A' category by stating G
that some proceedings were pending in this Court, which were
posted for orders on 01.08.2013 and thatthere would be scope
for the fourth counselling in which the said seat would be offered
 to the sponsored '/\ category. The learned counsel, therefore,
 contended that such a course was adopted by the second H
1224          SUPREME COURT REPORTS                   [2014] 13 S.C.R.


 A Respondent deliberately with a view to deprive the Petitioner 1:1
   of her lawful claim to opt for the said vacant seat in the M.D.
   General Medicine which forced her to re-opt for the very same
   course which she vacated on the day previous to the third
   counselling, namely, M.D. Pathology or otherwise she would
 B have lost even that seat as well,
               12. The learned counsel further pointed out that such a
       course was adopted by the second Respondent with some
       ulterior motive inasmuch as, as per the refund rules mentioned
       in the prospectus, if any student who had already joined the
 C     course seeks for refund of claim, such refund would be made
       after adjusting the administrative fees and any othe.r expenses
       incurred by the institution towards the candidate, provided the
       vacant seat is re-filled by any other candidate. In other words,
       if a seat vacated by a candidate remained vacant, the
 D     candidate will be required to pay the fee for the entire duration
       of the course. By referring to the above rule, relating to refund,
       the learned counsel contended that the Petitioner was in the
       sponsored 'Pi category and the seat which fell vacant belonged
       to N.R.I. category and ifthe said seat had been offered to the
 E     Petitioner, the candidate who vacated that seat under the N. R. I.
       category could as well claim refund of full fee except
       administrative expenses and other expenses incurred on the
       candidate. The learned counsel contended that the second
       Respondent, therefore, did not want to provide any scope for
 F     that N.R.I. candidate who vaca.ted the seat to claim for refund
       of full fee by taking the stand that after he vacated the seat it
       could not be filled up again.
         13. The learned counsel, therefore, contended that when
 G the last date of counselling was prescribed by this Court as
   31.07.2013, the second Respondent was not justified in
   extending a false promise to the Petitioner that there was a
   scope for fourth counselling being granted by this Court in some
   proceeding which was pending in this Court in which orders
 H were to be pronounced on 01.08.2013. He further contended
BONNIE ANNA GEORGE v. MEDICAL COUNCIL OF INDIA 1225
    [FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]

that as a matter of fact, the second Respondent filed an          A
application seeking for fourth counselling only on 04. 08.2013,
in I.A. No.3 of 201 :3 in W.P. (C) No.478 of 2013 which was
also.dismissed by this Court on 04.10.2013. One other factor
which was pointed out by the learned counsel was that on
01.08.2013, this Court permitted only the Government colleges     B
to hold one more counselling for filling up all vacant seats.
      14. The sum and substance of the contention of the
learned counsel for the Petitioner was that the overall conduct
of the second Respondent disclosed that there was a
calculated and deliberate attempt to deprive the Petitioner of C
exercising her valuable right to opt for a course which she really
wanted to undergo, namely, M.D. General Medicine, that the
said course was very much available and she was fully eligible
as the thirteenth rank holder and there was no other rival
candidate either under the N.R.I. category or under the D
sponsored 'fl\ category.
       15. As against the above submission Mr. Giri, learned
Senior Counsel for the second Respondent by making a
detailed reference to the additional affidavit contended that E
the second Respondent had no intention to deprive the
Petitioner of the seat in M.D. General Medicine. According to
learned Senior Counsel, the second Respondent scrupulously
followed the procedure in conducting the counselling on the
third occasion and since it could not offer the available vacant F
seat of M.D. General Medicine under the N.R.I. category up till
the end of third counselling date, namely, till 8 pm and further
since the Petitioner re-opted for the very same seat which she
vacated on the previous day evening on the morning of the
third counselling date, no fault can be found in the action of the G
second Respondent. In .the affidavit which was referred to by
the learned Senior Counsel the second Respondent took the
stand that after the counselling started at 9 am, students in
category 'A' were called out rank wise. The third rank holder
and seventh rank holder who were above the Petitioner in the
                                                                   H
1226       SUPREME COURT REPORTS                 [2014] 13 S.C.R.


 A ranking were called first, that the third rank holder who was
   already admitted in M.D. Paediatrics surrendered her seat to
   participate in the third counselling opted for M.D. Dermatology
   which was a new course, that the seventh rank holder, Dr. Richa
   who was already admitted in MS Ophthalmology after
 B surrendering the said course opted for M.D. Paediatrics and
   accordingly those seats were allotted to the candidates. At
   9.55 am when the turn of the Petitioner came who had earlier
   vacated a seat in M.D. pathology reopted for the very same
   seat and she was allowed to get admitted once over again by
 c 10.15 a.m. Thereafter according to the second Respondent
   option to all students in category 'I\ were completed by 12.30
   p.m. on 31.07.2013 and a roll call of the students belonging to
   category 'B' was made from 861 rank holders upto 967 rank
   holders by calling their names thrice and after marking their
 D absence; by which time it was 6.22 p.m.; the counselling
   process was concluded. It was further stated that the shifting
   of N.R.I. category seat to sponsored 'I\ category seat could
   not be made on that day even though none of the eligible N.R.I.
   category students were present at the venue of counselling
 E and that even the candidate who vacated the seat, namely,
   M.D. General Medicine i.e. Mr. Prashant Timoti Sada could
   have attended the third counselling and opted for any one of
   the seats available, did not appear for the third counselling. It
   is lastly stated that by 8 p.m. on 31.07.2013 the college finally
 F published a notice showing the available seats in P.G. courses
   in six numbers i.e. one seat in Category 'A', three seats in
   Category 'B' and two seats in the N.R.I. Category.
         16. To substantiate its stand as to how the second
   Respondent was disabled from offering the available N.R.I.
 G seat in M.D. General Medicine for sponsored '/\ category
   student, namely, the Petitioner, the following statement has
   been made in the additional affidavit:
           " ..... The Petitioner had opted for the seat of MD
           Pathology in the third counselling session on 31 /07/2013
 H
  BONNIE ANNA GEORGE v. MEDICAL COUNCIL OF INDIA 1227
      [FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]

      in the morning. So as to be eligible to opt for MD              A
      Medicine i.e. the seat converted/shifted from NRI
      Category to Category A, the Petitioner would have
      necessarily had to surrender her seat of MD Pathology.
      The said seat being vacant, would then have to be offered
      by the college to other students placed below the               B
      petitioner in the rank-list so as to give them an opportunity
      to opt for that seat. In the event the said seat was opted
      by an interested student, the vacant seat of that particular
      student would have to be offered further; and so on and
      so forth. As such, counselling would have to be held            C
      afresh for all students, because of the shifting of the
      Petitioner's seat. As such, the exercise was not a simple
      exercise of shifting one seat; but rather a complex
      exercise which would have had to be undertaken by the
      college, without adequate time therefor. This would have        D
      been an impossible task to complete in the evening of
      31/07/2013, without adequate notice to all interested
      students and without allowing them an opportunity to opt
      for the vacant seats. Further, 31/07/2013 being the last
      date for admission/holding counselling by Colleges all          E
      over the Country in terms of the guidelines laid down by
      this Hon'ble Court, a subsequent session could not have
      been held after 31 /07/2013 and neither cou Id the third
      counselling session have continued on the next date. Due
      to this impossibility as well, the MD Medicine seat in the      F
      NRI category could not be converted/shifted by the
      Respondent college."
         17. That apart the second Respondent contended that
'"W.P.(C) No. 433 of,2013 (NEET case) was listed before this
  Court and was posted for orders on 01.08.2013 and this Court G
  taking into account the delay occasioned in completion of
  counselling process permitted fourth counselling for filling up
  of the vacancy only to government colleges and not to private
  institutions, that the second Respondent applied to this Court
  by way of I.A. No 3 of 2013 in W.P.(C) No:478 of 2012 seeking H
1228         SUPREME COURT REPORTS                    [2014] 13 S.C.R.


 A for an additional counselling session on 07.08.2013 and that
   the said I.A. was dismissed by this Court on 04.10.2013.
          18. Mr. Giri, learned Senior Counsel, therefore, contended
   that the second Respondent had no intention to deprive the
   Petitioner of any of her rights much less the so-called valuable
 8 right of getting a vacant N.R.I. seat in M.D. General Medi.;1ne.

              19. Having heard learned counsel for the Petitioner as
       well as the second Respondent, in order to appreciate the claim
       of the Petitioner as well as the stand of the second Respondent,
·c     we feel it appropriate to refer to relevant provisions in the
       prospectus relating to filling up of vacant seats, the refund rules
       and clause 10 which stipulate as to how a candidate who had
       secured a seat can be permitted to opt for any vacant seat in
       the subsequent counselling. The said provisions are as under:
 D           "10. A candidate desirous of participating in subsequent
             counsellings after taking admission in any P.G. Course,
             in CMC Ludhiana, will have to first vacate present course
             seat, by 5.00 pm the previous day (as per rules) and let
             that seat be put up for counselling too.
 E           REFUND RULES
             2. On the last date of admission (31.05.2013), full fees
             except the administrative fees and any other expenses
             incurred by the institution towards the candidate, will be
 F           refunded, provided the seat is filled in the event the seat
             in question remains vacant, the candidate will be required
             to pay the fees for the entire duration of the course.
             FILLING UP OF VACANT SEATS
              Vacant seats (if any) arising will be displayed
 G
             periodically on our website www.cmcludhiana.in/
             www.cmcludhiana.org and on the notice board of the
             office of the registrar. There will not be any individual


 H
BONNIE ANNA GEORGE v. MEDICAL COUNCIL OF INDIA 1229
    [FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]

     communication to any candidate regarding the A
     status of any vacant seats.
       The second counselling (if required) will be held on 301h
     April 2013 at 10.00 am. Any further counselling (if
     required) will be intimated on our website.
                                                                   B
      All candidates who have cleared the CMC-PG entrance
     examination (including those who have already taken
     admission in CMC and those who were absent in the
     previous counselling) will be eligible for the vacant seats
     arising.                                                      c
       Vacant seats arising during the third counselling, due
     to shifting of courses from already admitted candidates,
     will be announced immediately and will be offered to the
     next meritorious candidate onwards.
       Vacant Seats arising in the NRI Categ9ry will be filled     D
     from the Sponsored Category.
     *Administrative fee of Rs:13,000/- will be charged
     from candidates who are already admitted but
     opting for shifting of course, during any E
     subsequent counsellings."
      20. Having noted the stand of the Petitioner and the
relevant details while referring to the participation in the third
counselling as well as the stand of the second Respondent in
that process, we do not wish to restate the same as we have F
made a detailed reference to the same in the earlier
paragraphs. Keeping those factors in mind, in the forefront
when we consider the relevant provisions contained in the
prospectus their implication can be set out before considering
the correctness or otherwise of the stand of either parties. As G
per paragraph 10 of the prospectus under the caption 'allotment
of seats by personal appearance within counselling' a
candidate who is already admitted to any P.G. course in the
second Respondent institute if wishes to participate in the
second or third counselling, will have to first vacate the seat H
1230         SUPREMECOURTREPORTS                     [2014] 13 S.C.R.


 A already held by him or her by 5 pm of the previous day so that
   the said seat can also be put up for counselling on the next
   date.·
             21. The provision relating to filling up of vacant seats
       mandates that all vacant seats arising will have to be displayed
 B     periodically in the website as well as in the notice board o, the
       office of the Registrar though there will not be any individual
       communication to any candidate regarding the status of any
       vacant seat. The dates of the second and third counselling
       have also got to be intimated through website. Such vacant
 C     seats will be available for both the candidates who have
       cleared the entrance examination as well as those who have
       already taken admission in the second Respondent institute
       even if they were absent in the previous counsellin§. Insofar
       as the procedure rel.ating to third counselling is concerned, it
 D     specifically provides that vacancies arising during the third
       counselling due to shifting of courses from already admitted
       candidates will be announced immediately and will be offered
       to the next meritorious candidate onwards. As far as vacancies
       arising in the N.R.I. category are concerned, it is simply stated
 E     that the same would be filled up from the sponsored category,
       namely, category 'I\. The administrative fee of Rs.13,000/-
       would be charged from candidates who were already admitted
       and who opted for shifting of course during any subsequent
       counselling. As we are concerned with the vacant N. R. I. seats,
 F     going by the provision contained in the prospectus, it merely
       states that N.R.I. category seats would be filled up from the
       sponsored category.
         22. According to the second Respondent, as per the
 G practice in its institution any vacant seat arising in the '/\
   category will be first offered to other students in the said
   category and only thereafter it will be offered to the candidates
   in the 'B' category. Similarly, it is contended that N.R.I. category
   seats would be first offered to the eligible N.R.I. candidates
   and only thereafter they will be offered· to the sponsored
 H
BONNIEANNAGEORGEv. MEDICAL COUNCIL OF INDIA 1231
   [FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]

category, namely, category 'A'. Though going by the                   A
prospectus, such a prescription is not specifically mentioned
therein since it is claimed that is how it was being practiced in
the second Respondent institution, we do not wish to make
any adverse comment about the same at this juncture.
Accepting the said practice as a valid one and in accordance          B
with the prescription relating to the filling up of vacancies as
mentioned in the prospectus, we wish to test the correctness
of the stand of the second Respondent in not providing an
opportunity to the Petitioner to opt for the N.R.I. vacant seat of
M.O. General Medicine. According to the Petitioner such a             C
stand of the second Respondent that the N.R.1. vacant seat
will be offered only after exhausting such an offer to all eligible
N.R.I. candidates came as a surprise. It was stated by the
 Petitioner that in the midst of the counselling such a disclosure
was made to the shock of the Petitioner and apparently the            o
Petitioner was, therefore, driven to take a decisior:i to reopt for
the very same seat of M.D. Pathology in order to ensure that
she was able to continue her course without wasting a year. It
was also the case of the Petitioner that the second Respondent
made her understand that some orders are going to be passed           E
by this Court on 01.08.2013 providing for fourth counselling
and, therefore, there would still be scope for the Petitioner to
stake her claim in the fourth counselling.
        23. As far as the above stand of the Petitioner is
concerned, we find that both the above statements were virtually F
admitted by the second Respondent. Even according to the
second Respondent, any N.R.I. seat which fell vacant could be
offered only to the N.R.I. candidate in the first instance and
only thereafter it could be shifted to category'/:\. It is also the
case of the second Respondent that in W.P. (C) No.433 of G
2013 this Court after hearing arguments on 30.07.2013 posted
it for orders on 01.08.2013 and to the utter dismay of the second
Respondent, the permission granted by this Court forJ1olding
fourth counselling was restricted only to the government
colleges and not to the private institutions for filling up of the H
1232       SUPREME COURT REPORTS                   [2014] 13 S.C.R.


 A vacant seats. As far as the second statement is concerned, it
   must be stated at the very outset that the said factor can have
   no relevance insofar as it related to depriving of the petitioner
   to opt for her chance in the third counselling. The second
   Respondent cannot be heard to state that it can anticipate any
 B order from this Court providing for fourth counselling and based
   on such anticipation it could have suggested to anyone, much
   less, to the Petitioner that a claim on that basis for getting a
   seat in the vacant N.R.I. category could be opted in the fourth
   counselling. In that respect, the stand of the second Respondent
 c was wholly in violation of the mandatory directions of this Court
   as regards the time schedule fixed for different process relating
   to admission to the professional courses right from the date of
   initial notification calling for application and the closing of the
   admissions after third counselling. Therefore, any wishful
 o thinking on the part of the second Respondent as regards the
   scope of getting a chance for fourth counselling to be granted
   by this Court could not have, in any manner, persuaded the
   second Respondent to deny an opportunity to the Petitioner to
   seek for an option for change of course from M.D. Pathology
 E to M.D. General Medicine in respect of a seat which was lying
   vacant as early as on 30.07.2013 and which continued to
   remain vacant right from t.he morning session of the date of
   third counselling, rramely, 31.07.2013 till the end of that day,
   as well as, even as on this date.
 F        24. When we come to the stand of the second
   Respondent that any vacant seat of N. R. I. category would be
   first offered only to the eligible N.RI. candidates and thereafter
   it would be offered to category '/!\candidates, it must be stated
   that going strictly by the provisions contained in the prospectus,
 G we do not find any such provision for it. The provision merely
   states 'vacant seats arising in the N.R.I. category will be filled
   up from the sponsored category'. Therefore, the provision is
   crystal clear to the effect that vacant N.R.I. seats could be filled
   up from category'/!\ candidates. Assuming there would be a
 H right for an eligible N.R.I. candidate to first opt for any vacant
BONNIEANNAGEORGEv. MEDICAL COUNCIL OF INDIA 1233
    [FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]

seat in that category, even in that case the second Respondent A
cannot state that it should wait for the absentee N.R.I.
candidates to appear till the end of the third counselling session
and thereby provide no scope for the 'A' category candidates
who were readily available to exercise such option and yet
deprive them from exercising their option without any other B
legal or factual impediment.
        25. In this respect when we refer to the stand made on
 behalf of the second Respondent in the additional affidavit
 which we have extracted in detail, we do not find any justification
 at all in the said stand while depriving the Petitioner of her C
 right to opt for that seat which was vacated by N. R. I. candidate.
 In the first instance none of the provisions contained in the
 prospectus and in particular the provision relating to filling up
 of the vacant seats any specific prohibition to the effect that a
 candidate who has already secured a seat and who has D
 expressed her option to vacate the seat on the previous day
 after noting the availability of the vacant seat under the N.R.I.
 category of her choice being available should be driven to a
 situation on the commencement of the third counselling which
 is the last chance of counselling to reopt for the very same E
·seat by informing her that there would be no point in waiting till
 the end of the third day counselling, inasmuch as, the second
 Respondent would be waiting forthe absentee N.R.I. eligible
 candidates -as well as any other'/!\ category candidates who
 are above the rank of the Petitioner and who had already opted F
 for their choice of seats. We also do not find any acceptable
 logic orreasoning in the conduct of the second Respondent in
 carrying out an exercise of calling absentee 'B' category ·
 candidates between 867 to 961 by calling their names thrice
 and thereby wasting the whole of the day between 12.30 pm G
 and 6.22 pm and at the end, state that there was no time left
 for shifting the available N.R.I. vacant seats to category'/!\.
 Such a course adopted by the second Respondent to say the
 least was a most irresponsible and imprudent conduct by
                                                                     H
1234       SUPREME COURT REPORTS                  [2014] 13 S.C.R.

 A whosoever who was in-charge of holding the counselling at
   the venue.
          26. Since, Mr. Giri, learned Senior Counsel forthe second
   Respondent contended that the second Respondent institution
   is an age old institution and is well-known for its reputation, we
 8 refrain ourselves from making harsh remarks but yet wish to
   state in a sublime way that such a course adopted by the
   second Respondent ultimately deprived the Petitioner of the
   valuable right to opt for a course of her choice, which was very
   much available and the inept conduct of the second
 C Respondent was extremely irresponsible and unconscionable.
   We also wish to express our deep anguish while noting such
   deplorable conduct of the second Respondent in having dealt
   with the right of the Petitioner in such a casual manner by which
   she was disabled from making a choice to a course for which
 D she was very passionately waiting and the course which was
   very much available for her option.
           27. Viewed in that respect, we find force in the submission
     of the learned counsel for the Petitioner that such a conduct
 E displayed by the second Respondent during the third
     counselling cannot also be said to be an innocuous move in ·
     the context of the rule relating to refund of the fees. It will be
     worthwhile to note that for an N.R.I. seat the prescribed fee is
     US$ 1,25,000 which is equivalent to approximately Rs. 75 lakhs
     as against the annual fee of Rs.3,98,000/- for 'A' category
 F candidates.As per the refund rules, when somebody vacates
     the seat on the last date of adm.ission, he/she is entitled for
   . refund of the full fee except administrative fee and any other
     expenses incurred by the institution towards the candidate.
     However, such refund offull fee need not be made ifthe seat
 G vacated by the candidate could not be filled up by the institution.
     Therefore, when in the case in hand, the N.R.I. seat of M.D.
     General Medicine was vacated and if the seat was filled up by
     a candidate of 'A: category then second Respondent would
 H be bound to refund the entire fee paid by the N.R. I. candidate
BONNIEANNAGEORGEv. MEDICAL COUNCIL OF INDIA 1235
    [FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]

except the administrative expenses and other expenses                  A
towards the candidate. Since, the second Respondent was
ultimately successful in not filling up the seat and thereby
applying the refund rules, the concerned N.R.I. candidate need
not be refunded with the full fee on the ground that the seat
vacated by him could not be filled by the second Respondent.           B
In the context of the inept conduct displayed by the second
Respondent, there is no reason why the said contention made
on behalf of the Petitioner should not be accepted. We do not
find any acceptable submission made on behalf of the second
Respondent to rebut such an argument made on behalf of the             C
Petitioner. On these grounds as well, we are convinced that
there is much to be doubted as regards the conduct of the
second Respondent in depriving the Petitioner to exercise her
right for opting the available N. R. I. category seat, while in law,
she had every right to seek for such an option. Further, the           D
conduct of the second Respondent in having made an
application in this Court in I.A. No.3 of 2013 on 04.08.2013 for
holding fourth counselling on 07.08.2013 which was rejected
by this Court by an order dated 04.10.2013 also suggests that
there was total lack of bona fide in the stand of the second           E
Respondent.
      28. All along, the second Respondent was taking the
stand that this Court having heard_the scope for granting a
fourth counselling on 30.07 .2013 posted and passed
appropriate orders on 01.08.2013 providing for a fourth F
counselling only for the government colleges and not for the
private institutions. We are, therefore, unable to understand
any basis for the second Respondent to have applied on
04.08.2013 for the very same relief knowing fully well that it
was already rejected by this Court. The second Respondent G
was apparently creating a false hope not only to itself but also
to the candidates as though there were every bona fide effort
taken by it in the interest of the candidates. Therefore, the
course adopted by the second respondent severely lacked in
bonafides in its approach. ·                         ··          H
1236         SUPREME COURT REPORTS                     [2014) 13S.C.R.


 A            29. Having regard to our above conclusions, we are
       convinced that depriving the Petitioner of the opportunity to
       opt for the available N.R.I. seat in M.D. General Medicined uring
       the third counselling was wholly unjustified. Having reached
       the above conclusion when we come to the question of grant
 B     of relief as prayed for by the Petitioner in this Writ Petition, the
       Petitioner seeks tor Mandamus to direct the second
       Respondent to permit her to shift her P.G. Course from M.D.
       Pathology to M.D. General Medicine in the available vacant
       seat. Though, we have found that the second Respondent was
 c     wholly unjustified in not making available the said vacant seat
       to the Petitioner, as the admission schedule fixed by Medical
       Council of India and this Court is being scrupulously followed,
       we do not find any extraordinary situation to violate the said
       schedule fixed by us. We have held in various decisions that
 o     the time schedule should be strictly adhered to and no mid
       stream admission should be allowed. We are, therefore, not
       inclined to give such a direction as prayed for by the Petitioner.
       However, taking into account the grave injustice caused to the
       Petitioner for which the entire responsibility lies on the second
 E     Respondent, we are convinced that second Respondent should
       be mulcted with the liability of payment of appropriate
       compensation to the Petitioner for having snatched away her
       valuable right. Though, we would have been fully justified in
       directing exemplary amount by way of compensation, we feel
 F     it appropriate to fix it in a sum of Rs.5,00,000/-(Rupees five
       lacs only). The second Respondent is, therefore, directed to
       pay the said sum of Rs.5,00,000/- apart from refunding the
       sum of Rs.13,000/- which the Petitioner had to pay for her
        readmission to the very same P.G. course of M.D. Pathology.
 G     We are confident that since the Petitioner was only fighting for
        her lawful rights, the same should not have any reflection in the
       approach of second Respondent either directly or indirectly
        which would cause any disruption in her studies or in the
        completion of her course. It will always be open for the Petitioner
 H     to approach the appropriate Forum or for that matter even this
BONNIEANNAGEORGEv. MEDICAL COUNCIL OF INDIA 1237
   [FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]

Court to seek for the redressal of her grievances, if any on that A
score. The compensation of Rs.5,00,000/- shall be paid to the
Petitioner within two weeks from the date of production of copy
of this order.
    The Writ Petition is partly allowed to the extent stated
above with costs.                                                       B


Nidhi Jain                              Writ petition partly allowed.