Gauri Narayan Khule vs The State Of Maharashtra And ...
2017 Latest Caselaw 5770 Bom

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           IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                        BENCH AT AURANGABAD
                                               
                  WRIT PETITION NO.8917 OF 2017


 Gauri d/o Narayan Khule,
 Age: 20 years, Occ: Education,
 R/o. Gauri Colony, Shivaji Nagar,
 Sangamner, Tal. Sangamner,
 Dist. Ahmednagar.                              ..PETITIONER

          VERSUS

 1.       The State of Maharashtra,
          Through it's 
          The Principal Secretary,
          The Health and Family Welfare
          Department, Mumbai.

 2.       Shri. Wamanrao Ithape,
          Homeopathic Medical College,
          Through it's-
          The President
          Shri Ashokrao Wamanrao Ithape,
          R/o. New Nagar Road, Sangamner,
          Tal. Sangamner, Dist.Ahmednagar.

 3.       Wmanrao Ithape,
          Homeopathic Medical College,
          New Nagar Road, Sangamner,
          Tal. Sangamner, Dist.Ahmednagar.

 4.       The Assistant Director,
          Health Services, Nashik,
          Tq. & Dist. Nashik.

 5.       The Maharashtra University
          of Health Science, Nashik,
          Tq. & Dist. Nashik.                   ..RESPONDENTS




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 Mr K.N. Shermale, Advocate for petitioner;
 Mrs M.A. Deshpande, A.G.P. for respondent Nos. 1 & 
 4;
 Mr V.D. Hon, Senior Counsel i/b Mr A.V. Hon, 
 Advocate for respondent Nos. 2 & 3
                            
                     CORAM :  SHANTANU S. KEMKAR  & 
                              NITIN W. SAMBRE, JJ.

DATE : 8th AUGUST, 2017

ORAL ORDER : [PER NITIN W. SAMBRE,J.]

This petition is by the petitioner-

student, who after clearing her 12th Standard

Examination in 2014, was admitted to respondent

Nos. 2 and 3 private Homeopathic College for

pursuing B.H.M.S. Course. The petitioner is seeking

issuance of directions to respondent Nos. 2 and 3

to return original documents of the petitioner, as

she is not interested in pursuing the said Course

and wanted to take admission at some other place.

2. It is the case of the petitioner that she

was admitted in the Academic Year 2014-2015 in

respondent No. 3 College in pursuance of admission

rules set up by the Commissionerate of Common

Entrance Test Cell, Mumbai. The petitioner claimed

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that she has appeared for first year B.H.M.S.

Course and then decided to discontinue her

admission and as such, moved prayer in writing with

respondent Nos. 2 and 3, praying return of original

documents viz., mark sheet of SSC (10 th Standard),

mark sheet of 12th Standard, leaving certificate,

caste certificate etc.

3. Pursuant to the notice ordered by this

Court, respondent Nos. 2 and 3 appeared and have

filed their reply vide affidavit dated 7 th August,

2017 denying the claim of the present petitioner.

According to respondent Nos. 2 and 3, it is a

private College being administered out of fees

received from the students. According to the said

College, discontinuation of admission at the behest

of student causes monetary loss for next five

years, as respondent Nos. 2 and 3 will not be in a

position to recover fees in view of discontinuation

of admission, as such, will be required to pay from

their own pocket towards expenses to be incurred

towards maintaining a vacant seat which was

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occupied by the petitioner. According to Mr. Hon,

learned Senior Counsel, the petitioner should be

directed to deposit the entire Course fees and then

only she can collect the original documents from

the office of respondent Nos. 2 and 3.

4. So as to substantiate his contentions, he

has tried to rely upon the information brochure and

clauses therein. According to him, clause 1.13 of

the information brochure contemplates penalty to be

recovered from a student, who is resigning from

admission against a seat already granted after cut-

off date. According to Mr. Hon, learned Senior

Counsel, respondent Nos. 2 and 3 will not be in a

position to admit any other student against the

seat, on which the petitioner was admitted.

5. Considered rival submissions. The

petitioner was admitted for the Course in question,

particularly, after having cleared 12th Standard

Examination in 2014 from Science Faculty.

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6. It is admitted position on record that the

petitioner was admitted with respondent Nos. 2 and

3 College in the Academic Session 2014-2015 to

B.H.M.S. Course. It appears that the petitioner has

appeared for the first year of B.H.M.S.

Examination, however, was unable to clear the same

though made attempt thereafter.

7. In the aforesaid background, she has

requested for return of the original documents by

narrating reason that she want to take admission at

some other institute.

8. Respondents, while denying the prayer,

though have come out with a case that it being a

private institute, is required to survive on fees

to be received from the students. In the aforesaid

background, one has to examine as to whether

respondent Nos. 2 and 3 can detain the documents of

a candidate like petitioner, if such candidate does

not wish to continue admission with respondent Nos.

2 and 3 College. It is also required to examine

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whether powers vest with respondent Nos. 2 and 3 to

detain the documents for non payment of fees for

entire B.H.M.S. Course, since petitioner has

requested for cancellation of admission after

period of about more than two years. Though learned

Senior Counsel for respondent Nos. 2 and 3 has

invited attention of this Court to the information

brochure for MHT-CET-2016, however, admission of

the present petitioner was governed by the

information brochure for MHT-CET-2014-2015 and not

of 2016. Though the submission is made that these

admission rules are similar to that of Rules of

2014-2015, upon perusal of entire rules, this Court

hardly notice any power with respondent Nos. 2 and

3 to deny request of a student of return of the

original documents in case, such student intend to

discontinue medical course, to which, she was

admitted even in a private Homeopathic College.

9. Rule 4.1 of information brochure deals

with the payment of fees, which contemplates that

fee is to be paid in respective College by demand

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draft, whereas rule 4.2 provides for refund of fees

by the College after change of College/Course or

cancellation of admission. Rule 5 also deals with

cancellation of admission, whereas Rule 7 deals

with service bond and penalty.

10. Apart from above rules, this Court hardly

see any other relevant rules, which deal with issue

of return of fees and cancellation of admission. So

far as rule 4.2 is concerned, same deals with

refund of fees after cancellation of admission,

gives a right to student to cancel admission by

submitting application. Rule further provides for

refund of fees to candidate if such cancellation is

before cut-off date after deducting Rs.1500/-,

whereas after cut-off date, no fee refund is

provided.

11. So far as rule 5 is concerned, which deals

with cancellation of admission; a candidate's

admission stand cancelled, in case such student

fails to join College at which he is selected on or

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before the date prescribed by the competent

authority. Rule further prescribed, in case,

candidate intend to cancel admission, the College

should accept cancellation request and inform the

competent authority. Penalty is provided in Rule 7

for lapse of seat and such penalty can be imposed

only in case of lapse seat meant for MBBS or BDS

Course, as could be apparent from plain reading.

As such, rule of penalty or lapse of seat, in no

case will be attracted to the case of petitioner.

12. Apart from above, there is no embargo on

the right of petitioner or any power could be

noticed in respondent Nos. 2 and 3 to deny the

prayer of the candidate like petitioner for return

of the documents. It must be taken note of the

fact that what is sought to be claimed by the

petitioner is, return of the original documents and

not refund of the fees.

13. Even otherwise, upon scanning entire

rules, this Court hardly notice that in case of

petitioner, who was admitted to B.H.M.S. Course,

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by virtue of admission brochure or any other

enactment, respondent Nos. 2 and 3 College can

refuse or deny the return of documents for want of

payment of Course fees for entire B.H.M.S. Course.

14. In the aforesaid background, this Court

hardly notice any impediment in granting prayer of

the petitioner thereby ordering return of the

documents. As such, writ petition stands allowed

in terms of prayer clause (B), which reads thus :

"(B) The Rule may kindly be made absolute by allowing this writ petition, thereby directions to the respondent Nos. 2 and 3 to return the original documents of the petitioner."

15. Respondent Nos. 2 and 3 are directed to

return the original documents to the petitioner

within three days from the date of communication of

this order.

(NITIN W. SAMBRE, J.) ( SHANTANU S. KEMKAR, J.)

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