JUDGMENT : K.M. JOSEPH, J. Special Appeal No.403 of 2018 is directed against the decision in Writ Petition (M/S) No.1471 of 2018. Special Appeal No.404 of 2018 is directed against the decision in Writ Petition (M/S) No.1495 of 2018. The prayers sought in Writ Petition (M/S) No.1417 of 2018 are as follows : “(i) issue a writ, order or direction in the nature of mandamus directing the respondents to give the admission to the petitioner according the merit list in the college of respondent no. 3 according the merit list (which is annexure no. 1 of this writ petition). (ii) issue a writ, order or direction in the nature of mandamus directing the respondents not to give the effect of admission letters of other three persons issued on 18.05.2018. (iii) issue a writ, order or direction in the nature of mandamus directing the respondents to calculate the simple interest in the loan amount not the compound interest.” The prayers sought in Writ Petition (M/S) No. 1495 of 2018 are as follows : “(i) Issue a writ, order or direction in the nature of Certiorari quashing the admission of the respondent no. 7 & 8 given by the respondent no. 6 under NEET-PG-2018 by superseding the petitioner. (annexure no. 1 in regards to the respondent no. 8’s admission, however, admission letter of respondent no. 7 is not available with the petitioner). (ii) Issue a writ, order or direction in the nature of Mandamus directing the respondents to give admission to the petitioner for P.G. course under NEET-PG-2018 in the respondent no. 6 institute under clinical seat as he is more meritorious then the respondent no. 7 & 8, else the petitioner shall suffer irreparable loss and injury and the same cannot be compensated by any means.” 2. Appellants are the party respondents in the writ petitions. In brief, the case of the writ petitioners is that they had participated in the National Entrance Eligibility Test (NEET) for the year 2018-19. After the first and the second round of the counselling were over, as per schedule of programme the mop up round was to be held on 14.05.2018. The admissions, which are in controversy, have been made by the private respondent, which is an unaided Medical College. After the first and the second round of the counselling were over, as per schedule of programme the mop up round was to be held on 14.05.2018. The admissions, which are in controversy, have been made by the private respondent, which is an unaided Medical College. The complaint, which is seen taken in the writ petition, is that after the first mop up round, which was held on 14.05.2018, a further round of counselling was to be done on merit basis and for the same, a merit list was prepared by the third respondent, which is constituted as the Uttarakhand State Centralized Counselling Board (hereinafter referred to as the ‘Board’). The same was communicated to the College. The College, it appears, wrote Annexure No. 5 to the counter affidavit dated 15.05.2018 intimating that there were 15 vacancies in various non-clinical streams. The third respondent, namely, the Board, it appears, had uploaded 15 vacancies on its website. Thereafter, it would appear that 15 vacancies, which were notified by the Board, were non-clinical. Thereafter, the counselling was to be done against non-clinical vacancies only. In short, after the first mop-up round, though the private college proceeded to fill up the three vacancies in clinical subject on 18.05.2018, this was done by the private medical college on the basis that during the last hours of the second mop up round, on 18.05.2018 i.e. at 04:45 P.M, three already selected candidates, who were given admission during the first and the second round of the counselling, had withdrawn their admissions under the pretext that they had got admission elsewhere, further they apprehended that case is going on in the Court and, therefore, as per private college three more vacancies occurred in the last hours, and therefore, they were included in the second mop up round thus making the total vacancies 18 in place of the original 15 vacancies. The appellants were the persons, who came to be admitted against the three vacancies in clinical subjects. It was this, which was the subject matter of dispute in the writ petitions. 3. By the impugned decision, the learned Single Judge, after referring to the Schedule for the year 2018-19 fixed by the Medical Council of India and also to the mop up round, which was to take place on 14.05.2018, held, inter alia, as follows : “9. It was this, which was the subject matter of dispute in the writ petitions. 3. By the impugned decision, the learned Single Judge, after referring to the Schedule for the year 2018-19 fixed by the Medical Council of India and also to the mop up round, which was to take place on 14.05.2018, held, inter alia, as follows : “9. In the mop up round the seats which remain to be filled in the medical colleges, the details of such seats were to be submitted by each of the colleges to the counseling board by 01:00 p.m. on 16.05.2018. The counselling board was to forward the list of students to these colleges in order of merit equaling in the ratio of 1:10 for filling up the vacancies which was to be done by the State Counseling Board on the same day within next one hour i.e. by 02:00 p.m. and the last date for admission was 18.05.2018. 10. In the present case, the admitted case of Sri Guru Ram Rai Medical College with which we are concerned is that on 16.05.2018, there was no clinical seat available in the postgraduate course with the college, but there were 15 non-clinical seats which were yet to be filled and the details of which were sent to the State Counseling Board. 11. At this stage, we must note that it is an admitted case of the medical colleges that it did not inform the State Counselling Board that it has any vacant clinical seat with it.” 4. Thereafter, the learned Single Judge referred to the decision of the Hon’ble Apex Court in the case of Dar-Us-Slam Educational Trust and Others v. Medical Council of India and others passed in Writ Petition (C) No. 267 of 2017 and further held as follows : “18. Put up on 01.06.2018 in the daily cause list. 19. Meanwhile, the seats on which the admission has been given to the private respondents in these two writ petitions shall be held to be vacant and shall be given in the fresh counselling by the State Counselling Board on 30.05.2018 and 31.05.2018. Admission shall be given by the colleges strictly in accordance with law. 20. 19. Meanwhile, the seats on which the admission has been given to the private respondents in these two writ petitions shall be held to be vacant and shall be given in the fresh counselling by the State Counselling Board on 30.05.2018 and 31.05.2018. Admission shall be given by the colleges strictly in accordance with law. 20. It is made clear that if such anomaly is committed by the other medical colleges as well, the State Counselling Board shall be at liberty to take appropriate action, in accordance with law so that right candidates are given admission. A copy of this order to be given forthwith to the parties.” 5. We heard Mr. D.S. Patni, learned counsel appearing on behalf of the appellants/private respondents in the writ petition, Mr. Rajendra Dobhal, learned Senior Counsel along with Mr. Jitendra Chaudhary, learned counsel appearing on behalf of the private Medical College, Mr. V.K. Kohli, learned Senior Counsel along with Mr. Parikshit Saini, learned counsel appearing on behalf of the Medical Council of India, Mr. Shailendra Nauriyal, learned counsel appearing on behalf of the Uttarakhand State Centralized Counselling Board and Mr. M.S. Pal, learned Senior Counsel on behalf of the writ petitioners. 6. The case of the appellants, in brief, is as follows : Appellants participated in the second mop up round on the basis of the publication on the website. It is pointed out that apart from 15 vacancies in non-clinical subjects, there is also reference in the information floated by the Medical College that if any vacancy arising due to last minute withdrawal in clinical branches, fee shall be charged as per previous order of Govt. of Uttarakhand and Institute, and the details were given. They were among the six candidates, who were persons to the advertisement issued by the private medical college. Their case appears to be that the writ petitioners were never present and were not registered even for the second mop up round. The case both of the appellants and the private medical college appears to be that, according to the merit and the option, they were given the admission to the three clinical subjects, for which the vacancies were caused by the withdrawal. He would further submit that the learned Single Judge should not have placed reliance on the order of the Hon’ble Apex Court in the case of U.P. Unaided Medical Colleges Welfare Association (Regd) Vs. He would further submit that the learned Single Judge should not have placed reliance on the order of the Hon’ble Apex Court in the case of U.P. Unaided Medical Colleges Welfare Association (Regd) Vs. Union of India and Ors passed in Writ Petition(s) (Civil) No(s). 556 of 2018. He would submit that in the said case there were actually vacancies and it is in the said circumstances that the Court directed that the vacancies could be filled up in the manner provided therein. Mr. D.S. Patni, learned counsel for the appellants would further question the maintainability of the writ petitions, though it is not pleaded in the writ petition, nor it seems to have been pressed before the learned Single Judge as there is no finding in this regard. It is also submitted that there can be no interference after 18.05.2018. There is also a case for the appellants that since they have taken admission in this College, they cannot get admission elsewhere though they have secured admission. 7. We also heard Mr. Rajendra Dobhal learned senior counsel appearing on behalf of the private Medical College. He would lay store by the judgment of the Hon’ble Apex Court in the case of Dar-Us-Slam Educational Trust and Others (supra). 8. Mr. V.K. Kohli, learned senior counsel appearing on behalf of the Medical Council of India would submit that what is being done by the College is clearly impermissible in law as no admission could be made as no seat can be held to be vacant, due to withdrawal of candidates after second round. We would record his submission that the writ petitions are maintainable. 9. Mr. Shailendra Nauriyal, learned counsel for the Board would submit that in terms of the decision in the case of Dar-Us-Slam Educational Trust and Others (supra), they could not have been permitted to fill up the vacancies, as is being done by them. He would also submit that they were intimated about the vacancies (three in clinical subjects) only after the filling up of the vacancies and that too after 09:30 P.M. on 18.05.2018 (This is disputed by Mr. He would also submit that they were intimated about the vacancies (three in clinical subjects) only after the filling up of the vacancies and that too after 09:30 P.M. on 18.05.2018 (This is disputed by Mr. D.S. Patni, learned counsel for the appellants, who would submit that the fact that there was last minute withdrawal of those vacancies and that they have been included in the counselling and this was done at 05:15 P.M. and may be the Board did not see the e-mail till 09:30 P.M.). 10. Mr. M.S. Pal, learned senior counsel appearing on behalf of the writ petitioners would submit that the writ petitions are maintainable; fundamental rights are involved. He would submit that the fact that three persons, who withdrew had got admission in other colleges, is not correct; only one out of the three persons alone has got admission. He would further submit that fraud would vitiate the admission and there is fraud in this case. 11. Admissions to the Medical Colleges and that too on a post-graduate post have been a vexed issue. It has engaged the attention of the Medical Council of India and more importantly, of the Hon’ble Apex Court. There appears to be a four layered structure for making admissions. After the first two rounds, there was ordinarily to be the first mop up round, and after that there would be what is called the second mop up round to fill up any seats, which may still continue to exist unfilled. In this case, we are concerned with what happened after the first mop up round was done in terms of the notification issued by the Board, which was to take place from 14.05.2018. Subsequently, 15 vacancies were notified by the private Medical College in non-clinical subjects as existing in their College to the Board. The Board immediately dispatched the merit list to the College. About these facts, there is no dispute. The College, thereupon, intimated the Board about the existence of the 15 vacancies. Merit list was sent and then they intimated 15 vacancies in clinical subjects. The second mop up round, as it can be called, apparently, was to be in respect of the 15 non-clinical subjects, in which, vacancies did exist. About these facts, there is no dispute. The College, thereupon, intimated the Board about the existence of the 15 vacancies. Merit list was sent and then they intimated 15 vacancies in clinical subjects. The second mop up round, as it can be called, apparently, was to be in respect of the 15 non-clinical subjects, in which, vacancies did exist. Thus the second mop up round, as it is called, was to be carried out on the basis of the position obtained by the candidates in the merit list prepared by the Board and seen admittedly received by the College. The controversy in this case does not relate to non-clinical subjects. It does not require much imagination for us to state that there is a great demand for admission in clinical subjects. The last date for concluding admission to the second mop up round was 18.05.2018. Even according to the case of the respondent-Medical College at 04:45 P.M. on 18.05.2018, three students, who had obtained admission, withdrew their admission from the College. It is significant to notice the averments contained in paragraph (r) of the counter affidavit filed by the Medical College. The same reads as follows : “(r) That further during the last hours of second mop up round i.e. on 18-5-2018 at 4:45 P.M. in evening hours, three already selected students/candidates namely Dr. Pradeep Kumar (M.S.), Dr. Chirag Sandesha and Dr. Amit Kumar who were given admission during first & second round of counseling by the respondent no.3 had withdrawn their admissions from the respondent medical college and therefore on 18-5-2018 again suddenly three more vacancies accrued in the respondent medical college therefore these fresh three vacancies were also included in SECOND MOP UP ROUND COUNSELLING and now number of vacancies became 18 in place of 15. 12. At this stage it would be pertinent to quote the reason for withdrawal of admission by candidates already admitted, which created vacancies. The same reads as under : “To, Principal SGRRIMHS Sub – Regarding withdrawal of my MD Medicine Seat. Respected Sir, I have taken admission in MD Medicine in your institute. But because of some of my family problems and financial reasons of fees in security of your college as case is going in Hon’ble Court and also I have got DNB Seat; I don’t want to continue admission in your college. Respected Sir, I have taken admission in MD Medicine in your institute. But because of some of my family problems and financial reasons of fees in security of your college as case is going in Hon’ble Court and also I have got DNB Seat; I don’t want to continue admission in your college. Kindly cancel my admission and refund my tuition fees, security hostel and other fees which I have deposited. Please do needful. Thanking You Dr. Amit Kumar NEET Roll – 1805083390 Branch – MD Medicine (Management quota)” 13. It is even more important to notice the following averments contained in paragraph (u) of the counter affidavit filed by the Medical College. The same reads as follows : “(u) That further aforesaid three students namely Dr. Pradeep Kumar (M.S.), Dr. Chirag Sandesha and Dr. Amit Kumar who left their admissions under all India Quota stated reasons to the effect that fee structure for this course is still in litigation before Hon’ble High Court and if in future, the said fee structure increases due to the judgment given by the Hon’ble High Court in favour of the medical college then they would not be in position to pay enhanced fee.” 14. The College has proceeded to give admissions to the appellants in regard to these vacancies in clinical subjects. The very first thing, which we must notice, is the manner, in which the College has understood how these vacancies are to be filled up. The same is contained in paragraph (k) of the counter affidavit. The same reads as follows : “(k) that therefore in this situation, those vacancies which were remains unfilled after completion of first, second and first mop up round were called as “STRAY VACANCIES” as per the decision of Hon’ble Apex Court in DAR-US-Slam EDUCATIONAL TRUST CASE and through this judgment, a liberty was granted to the private medical college to conduct second mop up round through their own admission agency in transparent manner. The photocopy of the decision dated 9/05/2018 given in DAR-US-Slam Educational Trust case by Hon’ble Apex Court is being filed herewith and marked as ANNEXURE-4 to this affidavit.” 15. It is, at once, necessary to, therefore, notice the order of the Hon’ble Apex Court. The said judgment has been produced as Annexure No. 4 along with the counter affidavit. Paragraph no. It is, at once, necessary to, therefore, notice the order of the Hon’ble Apex Court. The said judgment has been produced as Annexure No. 4 along with the counter affidavit. Paragraph no. 4 of the said judgment is most relevant and we extract the same as follows: “4. After the second round of counselling for All India Quota seats, the students who take admission in All India Quota seats should not be allowed/permitted to vacate the seats. This would ensure that very few seats are reverted to the State Quota and also All India Quota seats are filled by students from the all India merit list only. The students who take admission and secure admission in Deemed Universities pursuant to the second round of counselling conducted by the DGHS shall not be eligible to participate in any other counselling.” 16. Therefore, reading the statements in the counter affidavit, which we have adverted to and paragraph no. 4 of the judgment of the Hon’ble Apex Court, which is relied on by the Medical College, the inevitable result is as follows: Three candidates who had secured admission in the respondent-Medical College under the All India Quota sought to withdraw their admission from the respondent-Medical College at 04:45 P.M. on 18.05.2018. The Medical College, apparently, permitted them to withdraw their admission, contrary to the Hon’ble Apex Court judgment (supra). They have treated this as the vacancies, which arose during the second mop up round, which was alleged to be in terms of the advertisement issued as Annexure No. 7 produced along with the counter affidavit filed by the private Medical College to fill up only non-clinical vacancies. In the public advertisement, there is no reference to any vacancy, which may arise in the clinical subjects. Curiously, the Medical College has while not mentioned about any such last minute vacancies, which may arise in clinical subjects in the publication, which they have made; but in the website a different version is sought to be emphasized by the appellants. In the manner of speaking the Medical College has spoken in two different voices. Whatever that be, we would, in the first place, think that the private Medical College has proceeded to allow the students, who secured admission under the All India Quota, but vacated their seats after the second round of counselling was over. In the manner of speaking the Medical College has spoken in two different voices. Whatever that be, we would, in the first place, think that the private Medical College has proceeded to allow the students, who secured admission under the All India Quota, but vacated their seats after the second round of counselling was over. This itself is clearly an indeniable act, which was clearly in the teeth of the direction of the Hon’ble Apex Court, which we have noted. When the curtain was about to be rung down, on the second mop up round, admissions, which, in fact, essentially related to the filling up of the non-clinical subjects, three students withdrew their admission in the manner, which we have noted and the admission is made by giving it to the appellants. It is not in dispute that the writ petitioners are having higher ranking in the merit list than the appellants (except one of them) going by Annexure No. 7, which was published. There is no whisper about the vacancies in the clinical subjects. It is, no doubt, disputed question as to whether the writ petitioners were actually present in the College as the appellants dispute their presence. In fact, in one of the writ petition (Writ Petition (M/S) No. 1471 of 2018), there is no averment as such that the writ petitioners were present in the College, whereas in the other writ petition, there is a definite averment that the writ petitioners were present in the College. Whatever that be, we take note of the contention of Mr. Shailendra Nauriyal, learned counsel for the Board that the Board was intimated about the 3 vacancies only after 09:30 P.M. and that too after filling up the seats. We would think that in such circumstances, the case of the appellants does not appear to inspire the confidence of this Court. Undoubtedly, the entire exercise, which has been carried out by the Courts and the Medical Council of India from time to time is to ensure that merit has the upper hand. 17. The learned Single Judge has placed reliance on the judgment of the Hon’ble Apex Court in the case of U.P. Unaided Medical Colleges Welfare Association (Regd) Vs. Union of India and Ors passed in Writ Petition(s) (Civil) No(s).556 of 2018. This judgment, in fact, is dated 25.05.2018. It is true as on 18.05.2018, this judgment was not there. 17. The learned Single Judge has placed reliance on the judgment of the Hon’ble Apex Court in the case of U.P. Unaided Medical Colleges Welfare Association (Regd) Vs. Union of India and Ors passed in Writ Petition(s) (Civil) No(s).556 of 2018. This judgment, in fact, is dated 25.05.2018. It is true as on 18.05.2018, this judgment was not there. It is also true that the Court there was considering the situation where there was large number of vacancies, but in this case also, the vacancies, which were created, in the manner which we have noted, by the last minute withdrawal by the three candidates, who secured admission under the All India Quota, which was clearly impermissible and the filling up of the same in the manner done and, therefore, it was that the learned Single Judge has issued the impugned order. The vacancies, which have occurred, have not been notified as such to the Board as per procedure required for notifying contained in communication of Board. The same reads as follows : ^^lkFk gh bu fjDr lhVksa dks Hkjs tkus dh lEiw.kZ izfdz;k dks Hkh viuh oSclkbV bR;kfn ds ek/;e ls foKfIr@izdkf'kr djsa] rkfd bPNqd vH;fFkZ;ksa dks le;kUrxZr bldh lEiw.kZ tkudkjh fey ldsA** Therefore, in the facts of this case, we do not think that the order passed by the learned Single Judge requires interference. 18. It is, no doubt, true that the appellants have taken a contention that the writ petitions are not maintainable. We notice that the said contention is not seen taken in the counter affidavit. It is not seen considered also in the impugned order. There is also a case of the appellants that all the appellants are not ranked below the writ petitioners but many of them are below. The private Medical Colleges are expected to act in terms of the directions issued by the Hon’ble Apex Court and also that of the Medical Council of India. The attempt of the private Medical College appears to have deliberately defeated the due process and directives of the Hon’ble Apex Court in the matter that has been evolved, as we have noticed. 19. In such circumstances, we see no ground for interference. The appeals fail and are dismissed. There will be no order as to cost. 20. Let certified copy of this judgment be issued today itself. 21. After conclusion of the judgment, Mr. 19. In such circumstances, we see no ground for interference. The appeals fail and are dismissed. There will be no order as to cost. 20. Let certified copy of this judgment be issued today itself. 21. After conclusion of the judgment, Mr. D.S. Patni, learned counsel for the appellants has prayed that the appellants may be granted an opportunity to participate in the counselling, which is scheduled to be held tomorrow i.e. on 31.05.2018. The permission as prayed for is granted.