W.P.(C) No. 3322/2014 :1:
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
FRIDAY, THE 26TH DAY OF AUGUST 2022 / 4TH BHADRA, 1944
WP(C) NO. 3322 OF 2014
PETITIONER/S:
ANN TREESA BABU
THELEKKAT HOUSE, KADUKUTTY PO, NEAR VILLAGE OFFICE,
THRISSUR,PIN 680 315.
BY ADV SRI.JOLLY JOHN
RESPONDENT/S:
1 STATE OF KERALA
REPRESENTED BY THE PRINCIPAL SECRETARY TO GOVERNMENT,
HIGHER EDUCATION (TECHNICAL) DEPARTMENT , SECRETARIAT,
THIRUVANANTYHAPURAM,PIN 695 001.
2 COMMISSIONER FOR ENTRANCE EXAMINATIONS (CEE),
HOUSING BOARD BUILDINGS, SANTHI NAGAR,
THIRUVANANTHAPURAM,PIN 695 001.
3 SCMS SCHOOL OF ENGINEERING & TECHNOLOGY,
VIDYA NAGAR, PALISSERY, KARUKUTTY, ERNAKULAM 683 582,
REPRESENTED BY ITS PRINCIPAL
BY ADVS.
GOVERNMENT PLEADER
SRI.MILLU DANDAPANI
R1 & 2 - SRI.JOBY JOSEPH,SENIOR GOVERNMENT PLEADER
R3- SRI.MILLU DANDAPANI
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 26.08.2022,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
W.P.(C) No. 3322/2014 :2:
SHAJI P. CHALY, J.
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W.P.(C). No. 3322 of 2014
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Dated this the 26th day of August, 2022.
JUDGMENT
This writ petition is filed by an Engineering student, who was allotted with a seat in SCMS School of Engineering & Technology, respondent No.3, on the basis of the Entrance Examination conducted by the Commissioner for Entrance Examinations, seeking various reliefs, including a relief of declaring that the petitioner is liable to pay liquidated damages only under clause 12.2.4(a)(i) amounting to Rs.75000/; and for a further declaration that the collection done under clause 12.2.4(b)(i) is illegal and further to order refund of the excess amount paid by her to the third respondent by way of liquidated damages along with interest and penalty. Ext. P8(a) is the relevant portion of the brochure issued by the Commissioner for Entrance Examinations.
2. Material facts for the disposal of the writ petition are as follows:
W.P.(C) No. 3322/2014 :3:
The petitioner, after passing the Medical and Engineering Entrance tests, got admission in the third respondent college and accordingly, she paid all the requested fees and submitted the certificates for securing admission. But, later, on the basis of the spot Allotment Order of the Commissioner for Entrance Examinations, notifications came out specifying a particular date for securing an admission to MBBS/BDS seats available among the member colleges. Accordingly, the petitioner attended the same and secured a seat for BDS in one of the colleges. But, when she requested for the certificates, the third respondent demanded the fees for the remaining years of the course as the liquidated damages. Thus, the petitioner was compelled to pay liquidated damages, which she is not liable to pay as per the prospectus and the Government Orders. Therefore, according to the petitioner, the compulsion made by the third respondent and the consequential payment of the liquidated damages by her, are contrary to the prospectus of the KEAM, 2013 and the relevant Government orders .
3. The petitioner has also challenged the Government Order W.P.(C) No. 3322/2014 :4: granting exemption to the students joining Medical Colleges from payment of liquidated damages on several grounds.
4. The Commissioner for Entrance Examinations, respondent No.2, has filed a detailed counter affidavit refuting the challenge made by the petitioner against the Government Orders namelty, Exts.P3 and P4 and the allegations with respect to the illegal classification etc. Further, it is stated that the petitioner has secured Engineering rank No. 6283 and Medical (except MBBS and BDS) rank No. 4784. It is also pointed out that as per the online reallotment to the engineering course, the petitioner got allotment on 03.07.2013 for Civil Engineering at the third respondent college.
5. It is also stated that as per the online reallotment on 13.07.2013, she was retained at the same course and college; but, she discontinued the course and obtained Transfer Certificate from the institution. It is also submitted that admission to Professional Degree Courses, 2013 was based on the provisions incorporated in the Prospectus, which has been approved by the Government of Kerala vide G.O.(MS) No. 644/2012/H. Edn. Dated 18.12.2012, which W.P.(C) No. 3322/2014 :5: contained the general information and rules relating to the Entrance Examination for admission to the professional degree courses, 2013 and other connected matters.
6. That apart, it is submitted that the rules and regulations stipulated in the prospectus is a policy decision taken by the Government and the Commissioner for Entrance Examinations had been authorised to conduct the entrance examination and other connected matters in accordance with the terms and conditions laid down in the Government approved prospectus. Submissions are also made with respect to the manner in which the allotment is to be made etc., however, they are not relevant to decide the issues raised by the petitioner as well as the contesting respondents, namely the third respondent.
7. Anyhow, it is submitted that the Government has issued orders as per G.O.(Rt.) No. 1804/13/H.Edn. dated 02.09.2013 for exemption from payment of liquidated damages for those students who had already joined the Engineering Degree Course for the academic year 20132014 for joining medical and allied courses, and W.P.(C) No. 3322/2014 :6: in compliance with the directions contained in the order dated 29.08.2013 of the Hon'ble Supreme Court of India in the judgment in W.P.(C) No. 737/2013, the date of second phase of allotment for MBBS/BDS courses has been postponed and informed that the revised date for allotment in the phase will be fixed only on receipt of further orders of the Supreme Court. Therefore, the Commissioner for Entrance Examinations requested the Government to change the last date for admission to the colleges under the Kerala Christian Professional College Managements Federation & Dr. Somerwell Memorial CSI Medical College, Karakonam.
8. It is also submitted that as per G.O.(Rt.) No. 1836/2013/HEdn. Dated 05.09.2013, the Government issued an order that the last date for those students who are eligible for exemption from the payment of liquidated damages as per G.O. (Rt.) No. 1804/2013/H Edn Dated 02.09.2013 had been modified to that extent. Therefore, the Government has sought for dismissal of the writ petition.
9. The third respondent has also filed a detailed counter W.P.(C) No. 3322/2014 :7: affidavit contending as follows:
"3. Admittedly, the Petitioner had taken secured admission for civil engineering at the 3rd Respondent College under the government quota on 05.07.2013 and discontinued the course on 25.09.2013 for taking admission for the BDS Course at another college secured through spot admission on 20th September 2013. It is pertinent to note that the classes for engineering Courses commenced on 22.07.2013 and the Petitioner discontinued the course two months after the commencement of the classes which attracts payment of liquidated damages to the 3rd Respondent College. However the Petitioner is denying such an obligation and has filed the above Writ Petition on a wrong analysis of the applicable G.O. in the instant case. It is wrongly stated in paragraph 7 that based on clause 12.2.4(i) of the Prospectus of KEAM 2013, Ext P3 and Ext P4 were issued. A perusal of the Ext P3 and P4 reveal that the said Government Orders pertain to "students who have already got admission to Govt/Govt Aided/Govt. Controlled Self Financing Engineering Colleges based on the allotment by the Commissioner for Entrance Examinations (CEE)..." whereas the 3rd Respondent college does not come under any of the mentioned category in Ext P3 and Ext P4, being a Private Self Fins College and instead comes under the colleges categorized under different heads as clearly mentioned in Annexure - II (1) of KAEM prospectus, 2013. Hence Ext P3 and Ext P4, which is based on Ext P3, has no relevance in the case of the 3rd respondent College.
As per clause 12.2.4(i) of the Prospectus of KEAM 2013, "In the case of Private Self Financing Engineering Colleges, the date of closing of admission and levying of liquidated damages from the W.P.(C) No. 3322/2014 :8: candidates discontinuing studies will be notified separately", and G.O.(MS) No.265/2013/HEdn ated 13.06.2013 was issued on the basis of the said clause. Clause 19 of the said G.0. which holds relevance in the instance case is extracted herein below for easy reference:
" The Educational Agency can retain the tuition fee remitted by the student, in the event a student admitted under the Management quota or Government quota, discontinues his/her studies for any time after 15 th day of July, 2013. In case any student admitted to the College decides to cancel the admission for any reason whatsoever, the Educational Agency shall be entitled to collect the tuition fee of the entire course. However, in the event of the seat so falling vacant being filled up by a new candidate, the tuition fee collected as per this clause shall be refunded. The documents pertaining to such student shall be released only on payment of the above amount."
The relevant clause of the said G.O. is produced herewith and marked as Exhibit R3(a).
5. It is stated that going by clause 19 as reflected in Ext R3(a), tne Respondent College is entitled to retain the entire tuition fee remitted by the petitioner as the discontinuation of her academic course was after the stipulated date mentioned in the relevant G.0. and since the 3 Respondent could not fill the vacancy created by the Petitioner as the admissions were closed on 14.08.2013. Clause 19 also speaks of retention of documents submitted for enforcing payment. The Petitioner on having accepted the allotment and having not sought release from he same within the time stipulated cannot be allowed to discontinue studies without complying with the Condition of payment of entire course fees. It is therefore W.P.(C) No. 3322/2014 :9: submitted that the 3rd Respondent College was well within the statutory framework laid out in such a circumstance to levy liquidated damages and the same being challenged vide the above Writ Petition merely forms the prescription for experimental litigation which does not warrant interference from this Hon'ble Court.
6. It is submitted that the Petitioner neither comes under the exempted category nor comes under those persons on whom liquidated damages can be levied upon as per clause 12.2.4 (b) (ii) as the said clause deals with discontinuation of a course after the first academic year, which admittedly does not apply in the case of the Petitioner.
7. It is denied that the Petitioner for no fault of hers had to suffer heavy pecuniary loss and mental agony and for this reason seeks to be included in the exempted category. The Petitioner does not fall within the exempted category going by any of the applicable clauses of the relevant G.O. and therefore the Petitioner has no ground in attributing unjust enrichment to the 3 rd Respondent College.
8. It is denied that the Petitioner is eligible for refund as per clause 12.2.3 (ii) of the prospectus of KEAM 2013. It is submitted that the said clause deals with contingencies where students are not eligible for a refund. The contrary to the same cannot be assumed and be made applicable in the case of the Petitioner. It is submitted that the Petitioner is conveniently interpreting irrelevant and inapplicable clauses to mislead this Hon'ble Court and further to make out a case when there is none, for the Petitioner."
W.P.(C) No. 3322/2014 : 10 :
10. I have heard Smt. Irene Babu representing the learned counsel for the petitioner on record, Smt. Jolly John, learned Senior Government Pleader Sri. Joby Joseph for the State and its officials, and Sri. Millu Dandapani appeared for respondent No.3, and perused the pleadings and materials on record.
11. Even though various contentions are raised and various reliefs are sought for in respect of the Government Orders, the learned counsel for the petitioner submitted the she is confining her arguments seeking a direction to return the liquidated damages paid by the petitioner, except the tuition fees, which is entitled to be decided by the third respondent as per Ext. R3 (a) Government Order dated 13.06.2013 dealing with the fees structure and allotment of seats by the Commissioner for Entrance Examinations in the Self Financing Engineering College Management Association. Paragraph 19 of the said Government Order is relevant to the context and it reads thus:
" The Educational Agency can retain the tuition fee remitted by the student, in the event a student admitted under the Management quota or Government quota, discontinues his/her W.P.(C) No. 3322/2014 : 11 : studies for any time after 15th day of July, 2013. In case any student admitted to the College decides to cancel the admission for any reason whatsoever, the Educational Agency shall be entitled to collect the tuition fee of the entire course. However, in the event of the seat so falling vacant being filled up by a new candidate, the tuition fee collected as per this clause shall be refunded. The documents pertaining to such student shall be released only on payment of the above amount."
12. Relying upon the said provision, the learned counsel for the petitioner submitted that the maximum tuition fee of the entire course alone was liable to be paid as liquidated damages and therefore, according to the learned counsel, the tuition fee that was liable to be paid was only Rs.40,000/ per year and for the entire course period, the petitioner was liable to pay only an amount of Rs.1,60,000/. However, the third respondent compelled the petitioner to pay an amount of Rs.3,25,600/ in order to release the original certificates. For the sake of convenience, Ext. R3(c) calculation statement is extracted hereunder:
ANN TREESA BABU - SCE/5017/13 FEES COLLECTED DATE HEAD AMOUNT W.P.(C) No. 3322/2014 : 12 : PROSPECTUS 550 ADMISSION FEE 100 UNIVERSITY AFFILIATION FEE 2800 PTA FUND 2000 ID CARD 500 CAUTION DEPOSIT 10000 TUITION FEE 30000 SPECIAL FEE 25000 VALUE ADDED FEE 10000 HOSTEL DEPOSIT 5000 HOSTEL FEE 1650 MESS ADVANCE 2700 MISCELLANEOUS FEE 300 LIQUIDATING DAMAGES First Year Tuition Fee Balance Rs.10000 Second Year Tuition Fee- Rs.40,000 Special Fee : Rs. 25000 Value Added : Rs.10000 235000 Third Year Tuition Fee Rs.40000 Special Fee Rs.25000 Value Added Rs.10000/-
Forth Year Tuition Fee: Rs.40000
Special Fee : Rs.25000
Value Added : Rs.10,000
TOTAL 325600
FEES REFUNDED
Date HEAD AMOUNT
25.09.2023 CAUTION DEPOSIT 10000
HOSTEL DEPOSIT 5000
TOTAL 15000
W.P.(C) No. 3322/2014 : 13 :
13. Therefore, according to the petitioner, the petitioner would be satisfied, if a direction is issued to repay the balance amount, after adjusting an amount of Rs.1,60,000/ towards the tuition fees. On the other hand, the learned counsel appearing for the third respondent submitted that the third respondent is entitled to receive other fees as contained in Ext. R3(c), since the petitioner has terminated her studies, after the admission period was over and therefore, the third respondent has suffered damages to the said extent.
14. However, in my considered opinion, since as per Ext. R3(a) Government Order dated 13.06.2013, there is a clear cut provision contained under paragraph 19 extracted above. The third respondent is duty bound to adhere to the same, since the said Government Order is binding on the third respondent. Yet another factor that is discernible from paragraph 19 of Ext. R3(a) Government Order dated 13.06.2013 is that the management is not entitled to get the entire tuition fee, if the seat is filled by a new candidate and if at all the fee is collected, the same shall be refunded. However, there is no claim W.P.(C) No. 3322/2014 : 14 : raised by the petitioner on that basis and since the petitioner as a student is also liable to comply with the Government Order, without adequate proof that the seat was filled up, she cannot claim the benefit flowing out of paragraph 19 of Ext. R3(a) Government Order, and she is also liable to pay the tuition fees for the entire course, since the admission is cancelled.
15. In that view of the matter, I am of the considered opinion that the petitioner is entitled to succeed in the writ petition to the extent of issuance of a direction to the third respondent to repay all other fees, except the tuition fee of Rs.1,60,000/ for the entire course period. I also find from Ext. R3(c) calculation statement that an amount of Rs.15,000/ was refunded to the petitioner against the caution deposit and hostel deposit respectively on 25.09.2013.
16. Taking into account the above aspects, there will be a direction to the third respondent i.e., SCMS School of Engineering & Technology, Ernakulam to refund the entire balance amount after adjusting the tuition fees for the entire course amounting to Rs.1,60,000/ to the petitioner, within one month from the date of W.P.(C) No. 3322/2014 : 15 : receipt of a copy of this judgment. The Commissioner for Entrance Examinations, respondent No.2 is also directed to ensure that the directions so issued by this Court is complied with by the third respondent without fail.
With the above observations and directions, this writ petition is disposed of.
sd/ SHAJI P. CHALY, JUDGE.
Rv W.P.(C) No. 3322/2014 : 16 : APPENDIX OF WP(C) 3322/2014 PETITIONER'S EXHIBITS:
EXHIBIT P1 ALLOTMENT MEMO EXHIBIT P2 COPY OF TOTAL FEE STRUCTURE ISSUED BY 3RD RESPONDENT EXHIBIT P3 GO(RT) NO. 1804/2013 /HE.DN EXHIBIT P4 GO(RT) NO. 1836/2013 /HE.DN EXHIBIT P5 NOTIFICATION ISSUED BY KCPCMF ON 20/9/13 FOR SPOT ALLOTMENT TO BDS COURSES.
EXHIBIT P6 REQUEST LETTER FOR TC EXHIBIT P7 FEE RECEIPT TOWARDS LIQUIDATED DAMAGES EXHIBIT P8(A) PAGE NUMBER 36 OF THE PROSPEFTUS OF KEAM ADMISSIION BY 2ND RESPONDENT EXHIBIT P8(B) PAGE NUMBER 39 AND 40 OF THE PROSPECTUS OF KEAM ADMISSION BY 2ND RESPONDENT.
RESPONDENT EXHIBITS:
EXT. R3(a) TRUE COPY OF THE RELEVANT CLAUSE OF THE G.O(ms) NO.265/2013/HEDN DATED 13.06.2013.
EXT.R3(b) TRUE COPY OF G.O.(MS) NO.265/2013/HEDN DATED 13.06.2013 OF THE GOVERNMENT OF KERALA.
EXT.R3(c): TRUE COPY OF THE CALCULATION SHEET ENUMERATING THE FEES COLLECTED AND THE AMOUNT REFUNDED TO THE PETITIONER.
/True Copy/ PS To Judge.
rv