JUDGMENT : 1. This writ petition is for interference to enable petitioner to obtain admission in on-going current academic year course study of M.B.B.S. degree. It was filed on 30th August, 2018 and moved on that date citing urgency. The petition was moved on basis that 10 seats were not disclosed in manual counselling to be held next day being cut off date for admission to the course. The University informed Court, those 10 seats were Government of India nominees seats, could not be disclosed in counselling and admission process. Nominees for those seats could come in the next day being cut off date. Medical Council of India had informed Court, Government of India, Department of Health and Family Welfare was the authority who could shed light on these 10 seats and nominees. Said authority was added as party respondent at instance of Court and directions made to allow petitioner to participate in college round counselling at Burdwan Medical College by adding her to list of candidates prepared by State. This direction was made since Court was told that there were vacant seats. 2. The writ petition thereafter received attention of Court on 12th October, 2018 when on behalf of petitioner copy of letter dated 30th August, 2018 from B.S. Medical College, Bankura (Government College) to D.M.E. & E.O.S., Government of West Bengal, Department of Health & Family Welfare was handed up and last paragraph in it relied upon as extracted below: “However, after closure of online surrender, one candidate who took admission through All India Quota has resigned himself through off-line on 23.08.18 with penalty money as per Existing Rules. The copy of release order has been sent through speed post to the concerned authorities.” 3. Petitioner’s contention is there was non-disclosure of this one seat which satisfies test of arbitrariness and reliance was placed on my judgment dated 26th June, 2018 in Dr. Paban Mandal Vs. West Bengal University of Health Sciences & Ors (W.P.7040 (W) of 2018) for interference. Record in order of that date is, Mr. Mukherjee, learned advocate, Additional Government Pleader appeared on behalf of State and took adjournment for obtaining instructions. The University had submitted, this surrender vacancy was not informed to it before cut off date for it to be disclosed. 4. B.S. Medical College, Bankura was also added as party respondent at instance of Court requiring it to explain its conduct. Mukherjee, learned advocate, Additional Government Pleader appeared on behalf of State and took adjournment for obtaining instructions. The University had submitted, this surrender vacancy was not informed to it before cut off date for it to be disclosed. 4. B.S. Medical College, Bankura was also added as party respondent at instance of Court requiring it to explain its conduct. The college though served chose not to be represented. In circumstances of incomplete position on facts achieved, awaiting, inter alia, addition of said college as party respondent and ensuing annual vacation of Court, there was direction in said order for writ petition to be listed at the top of first day’s vacation list before learned Judge having determination. Order sheet reveals that on 26th October, 2018 and 5th November, 2018 (two Vacation Bench days) respective following orders were made. Order dated 26th October, 2018 “Place the matter before the appropriate Bench on November 5, 2018.” Order dated 5th November, 2018 This matter was passed over in the first call on the ground of the learned Additional Solicitor General. Thereafter, the matter was called once at 1:15 PM and also on 2 P.M. but, no one appeared on behalf of the petitioner. Let the matter appear before the regular Bench.” On 4th December, 2018 this writ petition next received attention of this regular Bench. Following extract from order made that day will be relevant here. “Mr. Sanyal, learned advocate appears on behalf of petitioner and presses for hearing. He submits, there are two seats vacant under State quota, at least one of which was not disclosed by the College, which has chosen to go un-represented inspite of service demonstrated by affidavit of service filed by him today. Mr. Roy, learned advocate appears on behalf of the University and confirms two seats are vacant in Bankura Sammilani Medical College and Hospital. Mr. Roy submits, disclosure of vacancy on surrender was as on 23rd August, 2018. Disclosure of the seat, as available to be filled up by admission on counseling, was responsibility of State. Mr. Bari, learned advocate appears on behalf of State and submits, College did not inform vacancy arising on surrender prior to cut off date 31st August, 2018.” Today the writ petition has been heard for disposal. 5. Mr. Disclosure of the seat, as available to be filled up by admission on counseling, was responsibility of State. Mr. Bari, learned advocate appears on behalf of State and submits, College did not inform vacancy arising on surrender prior to cut off date 31st August, 2018.” Today the writ petition has been heard for disposal. 5. Mr. Sanyal, learned advocate appears on behalf of petitioner refers to paragraph 13 of the writ petition to submit, his client is seeking admission and is before Court for relief. Paragraph 13 is reproduced below :- “13. On meticulously perusing through the and comparing the seat allotment result and the seat matrix for the Mop up round of counseling the petitioner discovered that several seats lying vacant were undisclosed in seat matrix for the Mop-up round of counseling. The respondents failed to consider the vacant seats that reverted from the All India Quota to the State Quota.” 6. He submits, on 26th October, 2018 (vacation Bench day) this writ petition was listed and petitioner was represented. Adjournment was sought on behalf of the University. Mr. Tewari, learned advocate appears for Union of India and confirms adjournment was obtained. Mr. Roy, learned advocate appears on behalf of the University and does not dispute the submission. Mr. Sanyal continues and submits, petitioner was present on 5th November, 2018 (Vacation Bench day), when as record in order of date would show, on first call the matter was adjourned on ground of learned Additional Solicitor General. He accepts that on second call petitioner was not represented. He submits still further, in event admission is directed to be given to his client, she will have to fulfil attendance requirement as prescribed. 7. According to him, there is scope for her to fulfil attendance requirement in current academic year where course commenced from September, 2018. This situation stands confirmed, according to him, on Supreme Court having directed admission to this course as recently as on 22nd October, 2018, by its order in Writ Petition (C) No. 1136 of 2018 [Akumsenla Jamir vs. Union of India & Ors.]. 8. Text of this order is reproduced below : “We have heard learned counsel appearing for the parties and perused the record. 9. It is not disputed that the last date for admission in MBBS course for the academic sessions 2018-19 was 31.08.2018. 8. Text of this order is reproduced below : “We have heard learned counsel appearing for the parties and perused the record. 9. It is not disputed that the last date for admission in MBBS course for the academic sessions 2018-19 was 31.08.2018. It is also not disputed that the petitioner-student was informed on 04.09.2018 about the allotment of seat in MBBS course. This made it impossible for the petitioner to take admission in spite of diligence. 10. In these circumstances, we consider it appropriate that the petitioner be admitted in MBBS course for the academic sessions 2018-19, subject to merits and fulfilling all those qualifications. 11. Order accordingly. 12. With the aforesaid direction, the writ petition is disposed of. 13. We make it clear that this order is passed in the peculiar facts and circumstances of the present case.” 14. Mr. Roy submits, three seats are at present vacant as in State quota not disclosed on or before 31st August, 2018. Two seats are in Bankura Sanmilani Medical College and Hospital and one in National Medical College and Hospital, Kolkata. It was duty of State, being admission authority, to disclose these vacant seats on or before cut off date. One of these three seats came to be in State quota on surrender of All India quota seats as converted. Mr. Mukherjee does not dispute either conversion or non-disclosure. 15. Mr. Bhattacharyya, learned advocate appears on behalf of Medical Council of India and opposes interference. He submits, firstly, petitioner has not pleaded case urged today. Case pleaded in writ petition is regarding vacant seats reserved for Government of India nominees. It has been ascertained by Court that in event Government of India does not nominate, those seats are to go vacant. No other case on facts having been pleaded, the writ petition should be dismissed. Without prejudice to his this submission, he proceeds to argue on merits. He submits, the line of cases decided by Supreme Court being, inter alia, in Medical Council of India vs. Madhu Singh & Ors. reported in (2002) 7 SCC 258 stand in way of petitioner getting admission midstream since course study commenced, according to him, in August, 2018. He hands up Medical Council of India Regulations on Graduate Medical Education, 1997 and relies upon regulation 12 as it was regarding sub-regulation (1) and its substitution:- “12. reported in (2002) 7 SCC 258 stand in way of petitioner getting admission midstream since course study commenced, according to him, in August, 2018. He hands up Medical Council of India Regulations on Graduate Medical Education, 1997 and relies upon regulation 12 as it was regarding sub-regulation (1) and its substitution:- “12. Examination Regulations Essentialities for qualifying to appear in professional examinations. 16. The performance in essential components of training are to be assessed, based on: (1) ATTENDANCE 75% of attendance in a subject for appearing in the examination is compulsory provided he/she has 80% attendance in non lecture teaching, i.e. seminars, group discussions, tutorials, demonstrations, practicals, Hospital (Teritary, Secondary, Primary) postings and bed side clinics, etc. 17. The above Section 12(1) has been substituted in terms of notification published on 16.10.2003 in the Gazette of India. “(I) ATTENDANCE : 75% attendance in a subject for appearing in the examination is compulsory inclusive of attendance in non-lecture teaching i.e. seminars, group discussions, tutorials, demonstrations, practicals, hospital (Teritary Secondary, Primary) posting and bed side clinics etc.” (2) Internal Assessment : (i) It shall be based on day to day assessment (see note), evaluation of student assignment, preparation for seminar, clinical case presentation etc. : (ii) Regular periodical examinations shall be conducted throughout the course. The questions of number of examinations is left to the institution: (iii) Day to day records should be given importance during internal assessment: (iv) Weightage for the internal assessment shall be 20% of the total marks in each subject : (v) Student must secure at least 50% marks of the total marks fixed for internal assessment in a particular subject in order to be eligible to appear in final university examination of that subject.” 18. He also relies on judgment of Supreme Court in Shafali Nandwani vs. State of Haryana & Ors. reported in AIR 2002 SC 3382 , paragraph 10. 19. Petitioner cannot be given admission as she achieved much lower rank in NEET-UG, 2018 than others who did not get admission as were turned away. Petitioner obtaining admission would interfere with admission process based on merit. To substantiate, he refers to two disposed of writ petitions of two candidates being WP 22002 (W) of 2018 [Ayantan Bag vs. State of West Bengal & Ors.] and WP 22006 (W) of 2018 [Sneha Keshari vs. State of West Bengal & Ors.]. Petitioner obtaining admission would interfere with admission process based on merit. To substantiate, he refers to two disposed of writ petitions of two candidates being WP 22002 (W) of 2018 [Ayantan Bag vs. State of West Bengal & Ors.] and WP 22006 (W) of 2018 [Sneha Keshari vs. State of West Bengal & Ors.]. Identical orders both dated 1st November, 2018 made by a vacation Bench of this Court dealt with those writ petitions. Text of said order is reproduced below :- “The writ petitioner has succeeded in the National Eligibility Cum Entrance Test (N.E.E.T.) for admission to the M.B.B.S. Course. The last date for admission was in the 31st August, 2018. It is submitted that the last date of admission is over and the colleges in the State are not entertaining the case of the petitioner for admission into the said course despite being qualified. 20. Learned Counsel appearing for the State and the West Bengal University of Health Sciences have submitted that there are two vacancies in the said course, one at Bankura Sanmilani Medical College and the other is in the city of Calcutta i.e., Calcutta National Medical College. 21. Subject to fulfilling the eligibility criteria for such admission the writ petitioner may be considered by the said colleges for admission only against the two vacancies/seats at Bankura Sanmilani Medical College and Calcutta National Medical College and may be granted admission if he fulfills all other criteria prescribed by the said colleges in that regard. The petitioner shall apply within the next 36 (thirty-six) hours from date to the colleges for admission as indicated hereinabove.” 22. He submits, when these candidates have been turned away and petitioner not having urged her case before vacation Benches, she should not be granted any relief. He also submits, sanctity of cut off date has been declared by Supreme Court in several judgments which were considered in Dr. Paban Mandal (supra). He relies on all of them. Mr. Bhattacharya wants this Court to record each and every of those judgments as individually cited by him, which judgments were recorded and considered by this Bench in Dr. Paban Mandal (supra). 23. Mr. Tewari, learned advocate appears on behalf of Union of India and relies on judgment of Supreme Court in S. Krishna Sradha vs. State of Andhra Pradesh & Ors. reported in (2017) 4 SCC 516 . Paban Mandal (supra). 23. Mr. Tewari, learned advocate appears on behalf of Union of India and relies on judgment of Supreme Court in S. Krishna Sradha vs. State of Andhra Pradesh & Ors. reported in (2017) 4 SCC 516 . He submits, by this judgment Supreme Court said its decision in Chandigarh Admn. vs. Jasmine Kaur reported in (2014) 10 SCC 521 requires reconsideration by a Larger Bench. He submits, this requirement expressed render undone said Court’s judgment in Asha vs. Pt. B.D. Sharma University of Health Sciences reported in (2012) 7 SCC 389 . He then relies on another judgment of Supreme Court in Bharat Singh & Ors. vs. State of Haryana & Ors. reported in (1988) 4 SCC 534 , paragraph 13. Said paragraph is reproduced below :- “13. As has been already noticed, although the point as to profiteering by the State was pleaded in the writ petitions before the High Court as an abstract point of law, there was no reference to any material in support thereof nor was the point argued at the hearing of the writ petitions. Before us also, no particulars and no facts have been given in the special leave petitions or in the writ petitions or in any affidavit, but the point has been sought to be substantiated at the time of hearing by referring to certain facts stated in the said application by HSIDC. In our opinion, when a point which is ostensibly a point of law is required to be substantiated by facts the party raising the point, if he is the writ petitioner, must plead and prove such facts by evidence which must appear from the writ petition and if he is the respondent, from the counter-affidavit. If the facts are not pleaded or the evidence in support of such facts is not annexed to the writ petition or to the counter-affidavit, as the case may be, the court will not entertain the point. In this context, it will not be out of place to point out that in this regard there is a distinction between a pleading under the Code of Civil Procedure and a writ petition or a counter-affidavit. In this context, it will not be out of place to point out that in this regard there is a distinction between a pleading under the Code of Civil Procedure and a writ petition or a counter-affidavit. While in a pleading, that is, a plaint or a written statement, the facts and not evidence are required to be pleaded, in a writ petition or in the counter-affidavit not only the facts but also the evidence in proof of such facts have to be pleaded and annexed to it. So, the point that has been raised before us by the appellants is not entertainable. But, in spite of that, we have entertained it to show that it is devoid of any merit.” 24. Existence of arbitrariness has been established as a fact. Nondisclosure of vacant seats at college level round of counselling and cut off date for admission lies at the door of State where one seat stood converted and two others belonged to its quota. Petitioner, thus, satisfies the test formulated in Dr. Paban Mandal (supra) relying on Asha (supra). It is not necessary, therefore, to deal with all the judgments that were cited by Medical Council of India and considered in Dr. Paban Mandal (supra). Prerogative of writing judgment and what is to constitute record in it is with Court. Petitioner’s case being it is covered by Dr. Paban Mandal (supra), point to be considered is whether or not this case is covered thereby. There cannot be re-consideration of point decided in Dr. Paban Mandal (supra), as Mr. Bhattacharyya insists. 25. The only question, to mind of this Court, that needs to be addressed, is whether petitioner will be unduly favoured as having secured lower rank in merit on taking NEET-UG, 2018 than other candidates who also sought admission but were turned away, having higher merit rank. Paragraphs 7 and 8 in Shafali Nandwani (supra) is of some instruction in this situation. Said paragraphs are reproduced below :- “7. In our view, assuming that the construction of the clause in the prospectus gave a right to the respondent No. 4 to be offered a seat in M.D. (Medicine) which had fallen vacant on the second counseling, nevertheless the High Court erred in quashing the admission of the appellant and in directing the respondent No. 4 to be admitted in the vacancy created thereby. A similar clause was constructed by this Court in Arvind Kumar Kankane (supra). In that case a vacant seat was not included in the initial counseling. On the basis of the first counseling several candidates had accepted the seats offered to them for the different courses. When the vacant seat was offered in the second counseling, it was contended by those candidates who had already accepted the allotment of the seats at the first counseling, that they should be given a chance in order of merit to opt for that seat. This Court rejected the submission stating: “This will start a chain reaction and ultimately there will be one seat more, which would become available for the second counseling. The effect of putting the seat back for counseling for all candidates would, therefore, be to upset the entire counseling which had already taken place.” 8. The fact that the subject of choice of a person higher in merit list may go to a candidate who is lower in rank in the merit list was also held to be only a fortuitous circumstance which would not negative the reasonableness of the rule which had provided that the vacant seat would be offered to the candidate next on the merit list.” 26. In the case Arvind Kumar Kankane vs. State of UP reported in AIR 2001 SC 2800 Supreme Court had dealt with situation of a vacancy being offered in counselling subsequent to a candidate having opted for another seat for different course. Said allottee complained this vacant seat was not offered to him. In Shafali Nandwani (supra) said Court considering its earlier decision in Arvind Kumar Kankane (supra) held that to be a fortuitous circumstance which would not negative reasonableness of the rule. Situation at hand is that those candidates who were turned away have accepted their fate. Petitioners in WP 22002 (W) and WP 22006 (W) both of 2018 have accepted the order passed in their respective writ petitions and applied on their claims for admission pursuant thereto. Thus, before Court there is petitioner who has taken and passed in NEET-UG 2018 and secured a rank above which there is no person who is also before Court. It cannot be said that candidates who appeared for this competitive examination for securing admission are oblivious to interference of Court being sought in matters of admission. Thus, before Court there is petitioner who has taken and passed in NEET-UG 2018 and secured a rank above which there is no person who is also before Court. It cannot be said that candidates who appeared for this competitive examination for securing admission are oblivious to interference of Court being sought in matters of admission. Number of cases that reached Supreme Court will bear out that intelligent people such as these candidates cannot be presumed to be ignorant. So it might turn out to be a fortuitous circumstance in which petitioner might obtain relief having no bearing on reasonableness of the process in which she gets the relief. 27. S. Krishna Sradha (supra) does not stand in the way of petitioner getting relief. Supreme Court therein said as follows in thinking that its decision in Chandigarh Admn. (supra) should be reconsidered by a Larger Bench. “27. As is seen, stress has always been laid on the merit in the matters of all admissions as meritorious students should not face any impediment to get admission for some fault on the part of the institution or the persons involved with it. He/She has no other remedy but to approach the court for getting redressal of his/her grievances. It is a grievance that pertains to fundamental right. It has to be remembered that a right is conferred on a person by rule of law and if he seeks remedy through the process meant for establishing rule of law and it is denied to him, it would never subserve the cause of real justice. When a lis of this nature comes in a constitutional court, it becomes the duty of the court to address whether the authority had acted within the powers conferred on it or deviated from the same as a consequence of which injustice has been caused to the grieved person. The redressal of a fundamental right, if one deserves to have, cannot be weighed in terms of grant of compensation only. Grant of compensation may be an additional relief. Confining it to grant of compensation as the only measure would defeat the basic purpose of the fundamental rights which the Constitution has conferred so that the said rights are sustained. It would be inapposite to recognize the right, record a finding that there is a violation of the right and deny the requisite relief. 28. Confining it to grant of compensation as the only measure would defeat the basic purpose of the fundamental rights which the Constitution has conferred so that the said rights are sustained. It would be inapposite to recognize the right, record a finding that there is a violation of the right and deny the requisite relief. 28. A young student should not feel that his entire industry to get himself qualified in the examination becomes meaningless because of some fault or dramatic design of certain authorities and they can get away by giving some amount as compensation. It may not only be agonising but may amount to grant of premium either to laxity or evil design or incurable greed of the authorities. We are disposed to think, in such a situation, justice may be farther away and the knocking at the doors of a constitutional court, a Sisyphean endeavour, an exercise in futility. It is well known that the law intends not anything impossible; lex non intend it a liquid impossible. But when it is in the realm of possibility; and denial of relief hurts the “majesty of justice”, it should not be denied. On the contrary, every effort has to be made to grant the relief. Needless to say, to get the relief, conditions precedent are to be satisfied; and that is what has precisely been stated in Asha and Harshali.” 28. In Bharat Singh (supra) Supreme Court found there was no reference to any material in support of allegation of profiteering of State pleaded in the writ petition nor point argued at the time of hearing of it. In spite thereof Supreme Court entertained the writ petition to show that it was devoid of any merit. In this case petitioner said as she did in paragraph 13 extracted above. In participating at counselling for getting admission, petitioner also approached Court before cut off date. Court appreciates that she was involved in seeking admission by due process, getting her documents together and presenting herself for counselling. In this time she had also, when faced with iminent refusal of admission, got information regarding 10 All India quota seats to approach Court in pursuance of her desire to undertake course study on securing admission. Information supplied by her cannot be said to be incorrect in any manner whatsoever. Those seats were earmarked for nominees of Government of India. In this time she had also, when faced with iminent refusal of admission, got information regarding 10 All India quota seats to approach Court in pursuance of her desire to undertake course study on securing admission. Information supplied by her cannot be said to be incorrect in any manner whatsoever. Those seats were earmarked for nominees of Government of India. She at that time was unaware admission to those seats as reserved. On basis of those pleadings point was urged which resulted in disclosure at hearing, of three vacant seats not disclosed. Petitioner’s pleading and conduct at the hearing cannot be said to be such as would attract application of Bharat Singh (supra) to deny her relief. Writ petition succeeds. Petitioner will obtain and produce website copy of this order before respondent no. 6. Within 24 hours of production of copy of this order, said respondent will either give admission to petitioner for MBBS course in current academic year or demonstrate that requirement of regulation 12 of Medical Council of India Regulations on Graduate Medical Education, 1997 cannot be fulfilled by petitioner in time remaining in current academic year. This peril, if petitioner is visited with, she must suffer since there was a gap in attending to her case before Vacation Bench, whether or not it was because of her laches. 29. Writ petition is disposed of. 30. Mr. Bhattacharyya prays for stay of operation of this judgment dictated in Court. Prayer is opposed by Mr. Sanyal. Prayer is considered and rejected.