Vivek Pratap Singh vs Vice Chancellor And Others
2009 Latest Caselaw 3268 Del

*                     IN THE HIGH COURT OF DELHI AT NEW DELHI

+                               W.P.(C.) No.6635/2007

%                            Date of Decision: 20.08.2009

Vivek Pratap Singh                                            .... Petitioner
                            Through Mr.Shiv Sagar Tiwari, Advocate

                                     Versus

Vice Chancellor and others                                    .... Respondents
                     Through Mr.Sanjeev  Goel               and   Mr.Praveen
                             Kumar, Advocates

CORAM:
HON'BLE MR. JUSTICE ANIL KUMAR

1.      Whether reporters of Local papers may be                  YES
        allowed to see the judgment?
2.      To be referred to the reporter or not?                    NO
3.      Whether the judgment should be reported in                NO
        the Digest?


ANIL KUMAR, J. (ORAL)

*

The petitioner by present petition seeks refund of fees deposited

by him amounting to Rs.30,000/- along with interest at the rate of 18%

per annum from the date of deposit. The petitioner also seeks quashing

of communication dated 7th November, 2006 by which the request of

the petitioner for refund of fees was disallowed. The petitioner has also

sought payment of Rs.5.00 lakh towards damages caused to the

petitioner and his family members.

Brief facts to comprehend the dispute between the parties are

that the petitioner had applied for admission in MBBS Course under

the handicap category for the academic year 2006-2007. The petitioner

contended that he was called for counseling.

Relying on the Bulletin of Information for Admission to the MBBS

course, it is contended that after admission during first counseling, if a

student had applied for withdrawal of admission on or before 12th July,

2005, his 50% of the fee was liable to be refunded, however, if any

candidate was found unfit in the medical examination, such a

candidate was entitled for refund of his entire fees.

According to the petitioner, the first counseling was on 3rd

August, 2006. The petitioner, therefore, got the demand draft of

Rs.30,000/- made which was payable at State Bank of India, Service

Branch, New Delhi, in favour of Principal MS V.M.M.C. & S.J. Hospital,

Delhi which was deposited at the time of counseling.

At the time of admission the petitioner had submitted certificates

from the appropriate authority regarding his disability indicating the

extent of his disability. The certificate which was given by the petitioner

was issued by Government of India and had shown his disability to be

50% to 60%. After the admission was given to the petitioner, a Medical

Board was constituted at the instance of the college and the Medical

Board by communication dated 8th August, 2006 opined that the

petitioner does not qualify for admission under physically handicapped

quota as his disability was assessed to be below 3% and therefore the

admission of the petitioner was cancelled.

Pursuant to the cancellation of the admission, as the petitioner

was found unfit in the medical examination, according to the petitioner,

he became entitled for refund of entire fees, but the respondent on the

contrary forfeited his entire fees. The petitioner represented against the

forfeiture of his fee and after the respondents failed to refund the fee,

the present petition was filed.

The petition is contested by the respondent contending inter alia

that the petitioner has not come to the court with clean hands and he is

misleading and mis-representing. Reliance has been placed on Clause

22 (x) of Bulletin of Information, which is as under:-

" 22(x) It will also be the sole responsibility of the candidates themselves to make sure that they are eligible and fulfill all the conditions prescribed for admission. Before filling up the verification slip at the time of counselling/allotment of seats, candidate should ensure that he/she fulfills all eligibility conditions as laid down in his Admission Brochure. If it is found at any stage during the entire period of the programme that the candidate does not fulfill the requisite eligibility conditions, his/her admission will be cancelled and also disciplinary action will be initiated against him/her and entire fee will also be forfeited."

The respondent has contended that the petitioner sought

admission and was granted provisional admission under physically

handicapped category. The petitioner had also submitted the medical

certificate in the prescribed form which did not indicate the

extent/percentage of disability as required. According to the

respondent, candidates seeking admission under physically

handicapped category were required to have 50% to 70% locomotive

disability, however, after the Medical Board of the Vardhman Mahavir

Medical College, examined the petitioner and the disability was

assessed to be only 3% and consequently the Medical Board did not

find the petitioner fit for admission. It is also contended that since the

petitioner had mis-stated the facts the respondents forfeited the amount

of the entire fee. According to the respondents, the certificate which was

issued by Government of India, vocational rehabilitation centre for

handicapped did not give complete and full information.

The college therefore, intimated the petitioner about his disability

being only 3% by letter dated August 8th, 2006. The letter sent to the

petitioner categorically stipulated that he did not qualify for admission

under physical handicap quota. The assertion of the respondent is that

Clause 20 of the admission brochure is not applicable to the case of the

petitioner as he had applied for admission under physically

handicapped category. The case of the petitioner, according to the

respondent, is covered under Clause 22(x) of bulletin of information and

therefore, his fees was forfeited.

Under clause 20 of the bulletin of information it is contemplated

that in case any candidate is found unfit in the medical examination,

his fees will be refunded. Clause 20 is as under:-

"20:- Withdrawal of admission and refund of fee:

After admission during first counseling, if a student applies for withdrawal of admission on or before 12th July, 2006 upto 5.00 pm the fee after deduction of 50% of the entire fee will be refundable. The request for withdrawal of admission is to be submitted in Room No.108 in the office of Deputy Registrar (Academic-I) of the University and proper receipt will be issued by the University in this regard. However, if any candidate found unfit in the medical examination, his/her entire fee will be refunded. In case withdrawal application is received after 5.00 pm of 12th July, 2006 then no money excepting the security deposit of Rs.5,000/- shall be refunded."

This is not disputed that the petitioner had submitted his

disability certificate issued by the Government of India. The plea of the

respondents is that the certificate submitted by the petitioner about his

disability did not disclose the extent of his disability, as he could be

admitted in the said category only if he had 50% to 70% locomotive

disability. This plea on behalf of the respondents is not correct. An

additional affidavit was filed by the respondents along with the copy of

the medical certificate submitted by the petitioner. The said certificate

categorically stipulated that the disability of the petitioner is 50% to

70%. If that be so then the petitioner had submitted the certificate in

compliance with clause 22 (x) of bulletin of Information about the extent

of his disability.

This cannot be disputed by the respondents that the petitioner

was asked to appear before the medical board constituted by the

college. The petitioner did not appear before the medical board on his

own but at the direction of the college. This also cannot be disputed by

the respondents that the petitioner was assessed to be having less

disability and therefore he was found to be medically unfit for

admission in the category of physically disabled candidates. Physical

disability in a person also makes such a person medically fit. Under

clause 20 of bulleting of information, if any candidate is found unfit in

medical examination, he becomes entitled for refund of entire fees. If on

the account of physical disability a candidate is denied admission, it is

because the candidate was found to be unfit in medical examination.

Reliance of the respondents on Clause 22(x) of bulletin of

information in forfeiting the fees of the petitioner, in the facts and

circumstances, is therefore, misplaced. The said clause contemplates

that if the admission of a candidate is cancelled, then disciplinary

action shall be taken against him and his entire fees will also be

forfeited. Admittedly no disciplinary action has been taken by the

respondents against the petitioner. The petitioner had submitted an

appropriate disability certificate which was not issued by some private

medical practitioner but by Government of India, vocational

rehabilitation centre. In the circumstances it cannot be said that the

petitioner did not file the appropriate certificate regarding his disability.

Since the respondents were not satisfied with the extent of disability of

the petitioner, therefore, the petitioner was subjected to medical board

constituted by the college. The medical board of the college has

reassessed the petitioner as unfit medically as his disability was not

found to be 50% to 70%.

A bare reading of clause 22(x) reveals that not only at the time of

admission, but the admission of a candidate can be cancelled on

account of not fulfilling the eligibility conditions during the entire period

of programme. The respondents under the said clause were also

entitled to take disciplinary action and were also entitled to forfeit his

fees. Admittedly no disciplinary action has been taken against the

petitioner and just after giving him provisional admission, he was asked

to appear before the medical board constituted by the college which

board did not find the disability of the petitioner to the extent it would

have entitled him for admission under physical disability quota and

therefore, the petitioner was found to be medically unfit.

In the circumstances it is inevitable to infer that the petitioner

had applied for the withdrawal of admission as he had been found unfit

in the medical examination conducted by the respondent. In these

peculiar circumstances the case of the petitioner shall be covered under

clause 20 of bulletin of information which will entitle him for refund of

the fees.

The petitioner has also claimed interest on the said amount of

Rs.30,000/- at the rate of 18% per annum. The learned counsel for the

petitioner is, however, unable to show any provision under the bulletin

of information which would entitle him to interest at the rate of 18% per

annum. Even by letter dated September 27th , 2006 while demanding

return of fees, the petitioner did not demand interest on the amount of

fees at the rate of 18% per annum. What was demanded was only

return of fees as early as possible. The request of the petitioner for

refund of fees on account of cancellation of his admission on account of

his medical unfitness was declined by the respondents by their letter

dated November 7th, 2006. The reason as alleged now by the

respondents were not disclosed. The petitioner had written yet another

letter dated November 10th, 2006 seeking a refund of his fees. Even at

that time no demand was made for payment of interest by the petitioner

to the respondent. In the circumstances the petitioner is not entitled for

any interest from the respondents on the amount of fees which the

respondents are liable to refund to the petitioner.

The next demand of the petitioner is for compensation of rupees 5

lakhs. The learned counsel for the petitioner is however, unable to

explain as to how the petitioner is entitled for damages of rupees five

lakh. This has not been established that the admission of the petitioner

was cancelled unlawfully or illegally. The extent of disability of the

petitioner was assessed by the medical board of the college to be less

than what would have entitled the petitioner for admission in the

physically disabled category, which was accepted by the petitioner. The

decision of the respondents to cancel the admission of the petitioner as

he had been found to be medically unfit has not been challenged. In the

circumstances the petitioner is not entitled for any

damages/compensation from the respondents.

Therefore, for the foregoing reasons, the writ petition is partly

allowed. The respondent is directed to refund the entire fee of

Rs.30,000/- (Rupees thirty thousand) to the petitioner within two

months failing which the respondents shall be liable to pay simple

interest on the said amount @ 9% per annum from the date of this

order till the time the amount will be paid to the petitioner. The

petitioner, however, shall not be entitled for interest @ 18% from the

date the amount was paid by the petitioner and as has been claimed by

him. The relief of the petitioner to claim Rs.5.00 lakh as damages is also

declined. Parties are also left to bear their own costs.

August 20, 2009                                            ANIL KUMAR, J.
'Dev'