Leah Joby vs The Commissioner For Entrance ...
2021 Latest Caselaw 8985 Ker

         IN THE HIGH COURT OF KERALA AT ERNAKULAM

                            PRESENT

              THE HONOURABLE MR.JUSTICE N.NAGARESH

THURSDAY, THE 18TH DAY OF MARCH 2021 / 27TH PHALGUNA, 1942

                   WP(C).No.23521 OF 2019(M)


PETITIONER:

              LEAH JOBY,
              AGED 21 YEARS,
              R/O. 79-C, POCKET A/3,
              MAYUR VIHAR PHASE III,
              DELHI-110096

              BY ADV. SRI.ROY CHACKO

RESPONDENTS:

     1        THE COMMISSIONER FOR ENTRANCE EXAMINATIONS,
              5TH FLOOR, HOUSING BOARD BUILDINGS,
              SANTHI NAGAR, THIRUVANANTHAPURAM-695001

     2        DIRECTORATE OF MEDICAL EDUCATION,
              MEDICAL COLLEGE.P.O.,
              THIRUVANANTHAPURAM-695011

     3        THE PRINCIPAL,
              GOVERNMENT DENTAL COLLEGE,
              MEDICAL COLLEGE.P.O.,
              THIRUVANANTHAPURAM-695011

     4        TEH UNIVERSITY GRANTS COMMISSION(UGC),
              BAHADUR SHAH ZAFAR MARG,
              NEW DELHI-110002

              R4 BY SRI.S.KRISHNAMOORTHY, CGC
              R1-3 GOVERNMENT PLEADER SMT. K.M.RASHMI

     THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 18.03.2021, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
 WP(C) No.23521/2019
                                :2 :




                        JUDGMENT

~~~~~~~~~

Dated this the 18th day of March, 2021

The petitioner, who left BDS Course midway from

the Government Medical College, Thiruvananthapuram, has

filed this writ petition seeking to quash Ext.P12.

2. The petitioner is a resident of Delhi. She appeared

in the NEET examination conducted in May, 2018 and

secured admission to the BDS Course in the Government

Dental College, Thiruvananthapuram. The petitioner paid

`25,450/- as tuition fee for a period of one year. The petitioner

attended the classes on 4th and 5th of September, 2018. The

petitioner states that she had a feeling that she would not be

in a position to continue with her studies as she was not

mentally or psychologically inclined to take up BDS Course.

3. The father of the petitioner sent Ext.P3 e-mail dated

07.09.2018 to the Principal expressing the petitioner's desire WP(C) No.23521/2019

to withdraw admission with immediate effect. On 11.09.2018,

when the petitioner's father visited the College, the Principal

informed that Transfer Certificate cannot be issued unless a

sum of `5 lakhs is paid towards liquidated damages. The

petitioner attended the classes on 17 th and 18th of September,

2018 also.

4. The petitioner's father sent Ext.P8 letter dated

05.11.2018 to the Principal requesting to issue Transfer

Certificate and return the entire original certificates of the

petitioner. The 3rd respondent-Principal did not return the

certificates. Thereupon, the petitioner filed W.P.(C)

No.39589/2018. The said writ petition was disposed of

directing the 3rd respondent to issue Transfer Certificate and

other related documents. In Ext.P11, the respondents were

given liberty to adjudicate the issue as regards the liquidated

damages, if any, suffered by the respondents.

5. Pursuant to Ext.P11, the 3rd respondent-Principal

released the documents. But, the 3 rd respondent insisted the

parents of the petitioner to execute a bond as condition for WP(C) No.23521/2019

release of documents. By Ext.P12 communication dated

01.08.2019, the parents were required to pay liquidated

damages of `5 lakhs. It was also stated that revenue recovery

proceedings will be initiated if the payment is not made. The

petitioner challenges Ext.P12.

6. The learned counsel for the petitioner submitted

that the petitioner had sought withdrawal of her admission

from the BDS Course prior to the closure of the process for

admission. When such application was made before closure

of admission, the 3rd respondent is not justified in demanding

liquidated damages. The petitioner has not executed any

bond binding herself to pay liquidated damages. In Ext.P11

judgment, this Court has observed that the respondents would

be at liberty to quantify damages through an appropriate and

properly constituted proceedings. Therefore, Ext.P12

communication is illegal and unsustainable.

7. The 3rd respondent filed a counter affidavit and

contested the writ petition. The petitioner had an option of

free exit within two days of publication of the second round of WP(C) No.23521/2019

allotment. The petitioner did not avail the same. Since the

petitioner left the course after commencement of the Course,

a seat for BDS is wasted. The liability of the petitioner to pay

liquidated damages has been fixed before the admission

process. The petitioner joined the College knowing fully that

her discontinuance will cause the seat to be vacant and that

she would be liable to pay damages. As per the directions of

this Court, all certificates and documents were returned to the

petitioner. The petitioner is liable to pay liquidated damages

to the respondents.

8. I have heard the learned counsel for the petitioner

and the learned Government Pleader for the respondents.

9. Though various arguments were raised by the

counsel for the petitioner against demand of liquidated

damages and the learned Government Pleader is insisting on

payment of liquidated damages, this Court does not deem it

necessary to advert to all those arguments. The petitioner

had earlier approached this Court and filed W.P.(C)

No.39589/2018. This Court disposed of the said writ petition WP(C) No.23521/2019

making it clear that the respondents will be at liberty to

adjudicate the issue with respect to the liquidated damages, if

any, suffered by the respondents through an appropriately and

properly constituted proceedings. When the Court has

considered the issue and observed that the respondents can

recover liquidated damages only through adjudication of the

issue through a properly constituted proceedings, the

respondents cannot be heard to contend that without any such

adjudication proceedings they have a right to recover

liquidated damages. Ext.P11 judgment of this Court has

become final. The respondents therefore cannot be permitted

to recover liquidated damages from the petitioner without an

adjudication proceedings.

In the circumstances of the case, the writ petition is

disposed of setting aside Ext.12 communication of the 3 rd

respondent and permitting respondents 1 to 3 or any other

competent authority, to initiate adjudication proceedings for

recovery of liquidated damages from the petitioner, if they are

so advised. If such proceedings are initiated, needless to say, WP(C) No.23521/2019

the petitioner shall indeed be given notice and an opportunity

of hearing.

Sd/-

N. NAGARESH, JUDGE

aks/19.03.2021 WP(C) No.23521/2019

APPENDIX PETITIONER'S EXHIBITS:

EXHIBIT P1 TRUE COPY OF THE MARK SHEET DATED 28.5.2017 ISSUE TO THE PETITIONER ON COMPLETION OF HER SENIOR SCHOOL CERTIFICATE EXAMINATION

EXHIBIT P2 TRUE COPY OF THE RECEIPT DATED 3.8.2018 ISSUED EVIDENCING REMITTANCE OF THE TUITION FEE

EXHIBIT P3 TRUE COPY OF THE EMAIL DATED 7.9.2018

EXHIBIT P4 TRUE EXTRACT OF THE MALAYALAM VERSION OF CLAUSE 12.2.4 OF THE PROSPECTUS

EXHIBIT P5 TRUE COPY OF THE COMMUNICATION DATED 23.10.2018 SENT BY THE PRINCIPAL OF THE COLLEGE

EXHIBIT P6 TRUE COPY OF COMMUNICATION DATED 22.8.2018 FROM THE PRINCIPAL

EXHIBIT P7 TRUE COPY OF THE REPLY EMAIL DATED 23.09.2018

EXHIBIT P8 COMMUNICATION DATED 5.11.2018 FROM THE 3RD RESPONDENT ADDRESSED TO THE PETITIONER

EXHIBIT P9 STATEMENT DATED 5.3.2019 FILED BY THE 3RD RESPONDENT IN WPC 39589/2018

EXHIBIT P10 NOTIFICATION ISSUED BY THE U.G.C IN OCTOBER 2018

EXHIBIT P11 TRUE COPY OF JUDGMENT DATED 18.6.2019 IN WP(C)39589/2018

EXHIBIT P12 COMMUNICATION DATED 1.8.2019 FROM THE 3RD RESPONDENT PRINCIPAL ADDRESSED TO THE PARENT OF THE PETITIONER WP(C) No.23521/2019

EXHIBIT P13 NOTIFICATION DATED 7.09.2018 FOR THE RESCHEDULED MOP-UP COUNSELING FOR MBBS/BDS COURSES

EXHIBIT P14 PRESS RELEASE DATED 8.9.2018 ISSUED BY THE COMMISSIONER FOR ENTRANCE EXAMINATION

EXHIBIT P15 PRESS RELEASE DATED 11.09.2018 ISSUED BY THE COMMISSIONER FOR ENTRANCE EXAMINATION

EXHIBIT P16 STATEMENT SHOWING THE VACANCIES IN VARIOUS GOVERNMENT COLLEGES AND SELF- FINANCING COLLEGES AS ON 13.09.2018

RESPONDENTS' EXHIBITS:

EXHIBIT R3(a) A TRUE PHOTOCOPY OF THE ORDER DATED 9/5/2017 OF THE HONOURABLE SUPREME COURT IN WPC NO.267 OF 2017 (DAR-US-

SALAM EDUCATIONAL TRUST AND OTHERS VS.MEDICAL COUNCIL OF INDIA AND OTHERS) AND CONNECTED CASES

EXHIBIT R3(b) A TRUE PHOTOCOPY OF THE LETTER DATED 3/8/2018 SUBMITTED BY THE PETITIONER TO THE THIRD RESPONDENT

EXHIBIT R3(c) A TRUE PHOTOCOPY OF THE BOND DATED 26/6/2019 SUBMITTED BY THE PETITIONER TO THE THIRD RESPONDENT

SR