Kerala High Court
The Manager, National College Of ... vs Ahmed Sharooq S.M on 8 September, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR
&
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
WEDNESDAY, THE 8TH DAY OF SEPTEMBER 2021 / 17TH BHADRA, 1943
WA NO. 669 OF 2021
AGAINST THE JUDGMENT IN WP(C) 6527/2021 OF HIGH COURT OF KERALA
APPELLANT:
THE MANAGER, NATIONAL COLLEGE OF PHARMACY
MANASSERY P.O., MUKKOM, KOZHIKODE-673 602.
BY ADVS.
K.M.JAMALUDHEEN
SMT.LATHA PRABHAKARAN
RESPONDENTS:
1 AHMED SHAROOQ S.M.
AGED 23 YEARS
S/O.MEETHIAN, SRAMBIKKAL HOUSE, RAYONPURAM, PERUMBAVOOR,
ERNAKULAM DISTRICT-683 542.
2 THE STATE OF KERALA,
REPRESENTED BY THE SECRETARY TO THE DEPARTMENT OF HEALTH
AND FAMILY WELFARE, SOUTH BLOCK, SECRETARIAT,
THIRUVANANTHAPURAM-695 001.
3 THE KERALA UNIVERSITY OF HEALTH SCIENCES,
REPRESENTED BY ITS REGISTRAR, KERALA UNIVERSITY OF HEALTH
SCIENCES, TRISSUR-680 596.
BY ADVS.
Adv.GEORGE SEBASTIAN FOR R1
SHRI.P.SREEKUMAR, SC, KERALA UNIVERSITY OF HEALTH
SCIENCES FOR R3
SRI.K.P.HARISH, SENIOR GOVERNMENT PLEADER FOR R2
THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 08.09.2021, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
W.A.No.669 of 2021 2
JUDGMENT
Dated this the 8th day of September, 2021
SHAJI P.CHALY,J.
This appeal is preferred by the 3rd respondent in W.P.(C) No.6527 of
2021, challenging the judgment of the learned Single Judge dated
8.4.2021, whereby the learned Single Judge directed the appellant to
return the original certificates submitted by the writ petitioner while
taking admission in the college, however left open the liberty of the
appellant to make any claim with regard to any amount due from the writ
petitioner, in accordance with law. It is thus challenging the legality and
correctness of the judgment, this appeal is preferred.
2. Material facts for the disposal of the writ appeal are as follows;
writ petitioner secured admission for Pharm.D course in the appellant
college for the period from 2013 to 2019. Appellant is a Self Financing
college, affiliated to the Kerala University of Health Sciences. While
securing admission, various certificates and mark lists were produced by
the writ petitioner before the Principal of the college. Apparently due to
medical reasons, writ petitioner had to discontinue the course in the 2 nd
year. Exhibit P6 is the certificate dated 9.3.2021 issued by the Dhanya
Doctors Chamber and signed by Dr.Aswin Krishnan Ajit, Consultant
Psychiatrist. According to the writ petitioner, due to the treatment that
had to be undertaken by the writ petitioner, he could not pursue his
studies, however, when an application was filed seeking to release the
original documents, appellant college has failed to release the documents
stating that writ petitioner was duty bound to pay the course fees to the
college on account of discontinuation of the studies by him and the
college suffering damages, and in absentia of payment of liquidated
damages, the documents would not be returned.
3. The college has also filed a counter affidavit basically contending
that as per the prospectus for admission to B.Pharm and D.Pharm
Courses 2013-2014, the college is entitled to retain the documents till
such time the college is compensated. The learned Single Judge, after
assimilating the factual and legal situations, has issued directions to
release the original documents to the petitioner, on the petitioner
approaching the respondents, within a period of two weeks from the date
of receipt of a copy of the judgment.
4. We have heard learned counsel for appellant Sri.Jamaludheen,
learned Standing Counsel for the Kerala University of Health Sciences
Sri.P.Sreekumar, learned counsel Sri.George Sebastian for the writ
petitioner, learned Senior Government Pleader Sri.Tek Chand for the
State and perused the pleadings and materials on record.
5. The issue in question was considered by one of us (Justice Shaji
P. Chaly) in Neethu J v. State of Kerala and Others [2019(2)KHC 669
=2019 (2) KLT 129] and Robin v. KMCT Law College [2019(3) KLT
481] and held that the original certificate is not having the characteristics
of a mortgage and the Principal of the college is holding the original
certificates for and on behalf of the students as a trustee and further
that, the original certificates cannot be retained so as to coerce the
students to pay the course fees to the college. It was also held in
Neethu.J supra that the original documents of the student are not given
by her as collateral security for ensuring payment of liquidated damages
and that the documents produced by the student are required for the
student for pursuing her professional and career prospectus and that
those are all personal documents, which will not earn any amount to the
college and further that, it cannot be utilised by the college for the
purpose of realizing the liquidated damages by selling, mortgaging or in
any manner providing the same as a security.
6. In our considered view, there is no doubt that the situations
raised in the writ petition are similar in nature. Even though the learned
counsel for appellant Sri.Jamaludheen submitted that the writ petitioner
has not disclosed the disease stated to have suffered by him and, if it
was disclosed, that would have dis-entitled the writ petitioner to join in
the course. However, learned counsel for the appellant could not point
out any provisions in the prospectus or a rule anywhere else to
substantiate that a candidate submitting an application to secure
admission to a course is duty bound to disclose any disease suffered by
him. Therefore, we are unable to agree with the contention so advanced
by the learned counsel for the appellant. More over the damages alleged
to be suffered is a factual aspect to be proved by the appellant by
adducing cogent evidence in that regard before a fact finding legal fora,
and the appellant can never take up the task of an adjudicator of its own
cause, power for which is conferred only on a competent court of law .
However, learned counsel for appellant has submitted that the original
Transfer Certificate submitted by the writ petitioner cannot be returned
since the Transfer Certificate is to be issued by the appellant college on
discontinuance of the course by the writ petitioner.
7. We are in absolute agreement with the submission so made by
learned counsel for the appellant. In that view of the matter, we decline
to interfere with the directions issued by the learned Single Judge in the
impugned judgment, however, we modify the judgment that the writ
petitioner is entitled only to receive the Transfer Certificate issued by the
appellant college and not the Transfer Certificate submitted by the writ
petitioner issued from the Secondary School concerned.
Writ appeal is disposed of as above. But, since the time granted by
the learned Single Judge has already elapsed, we direct the appellant
college to release the original documents and the Transfer Certificate, as
is observed above, within three weeks from the date of receipt of a copy
of this judgment.
Sd/-
S. MANIKUMAR,
CHIEF JUSTICE.
Sd/-
SHAJI P. CHALY,
smv JUDGE.
APPENDIX OF WA 669/2021
PETITIONER EXHIBITS
EXHIBIT P1 TRUE COPY OF THE CERTIFICATE ISSUED BY
THE CONTROLLER OF EXAMINATIONS OF THE
CENTRAL BOARD OF SECONDARY EDUCATION
DATED 27.05.2013 IN FAVOUR OF THE
PETITIONER.
EXHIBIT P2 TRUE COPY OF THE RECEIPT DATED
19.07.2013 ISSUED BY THE OFFICE OF THE
3RD RESPONDENT.
EXHIBIT P3 TRUE COPY OF THE REPRESENTATION DATED
11.02.2021 SUBMITTED BY THE PETITIONER
TO THE 3RD RESPONDENT.
EXHIBIT P4 TRUE COPY OF THE REPRESENTATION DATED
11.02.2021 SUBMITTED BY THE PETITIONER
TO THE 1ST RESPONDENT.
EXHIBIT P5 TRUE COPY OF THE REPRESENTATION DATED
11.02.2021 SUBMITTED BY THE PETITIONER
TO THE 2ND RESPONDENT.
EXHIBIT P6 TRUE COPY OF THE MEDICAL CERTIFICATE
DATED 09.03.2021 SHOWING THE PETITIONERS
DISEASE ISSUED BY DR.ASWIN KRISHNAN
AJIT.
EXHIBIT P7 TRUE COPY OF THE RELEVANT EXTRACT OF THE
NOTIFICATION ISSUED BY THE UNIVERSITY
GRANTS COMMISSION.
EXHIBIT P8 TRUE COPY OF THE POSTAL RECEIOT DATED
15.2.2021
EXHIBIT P9 TRUE COPY OF THE TRACKING REGISTER
SHOWING THE DELIVERY OF THE POSTAL
ARTICLE ON 18.2.2021
EXHIBIT R3(a) TRUE COPY OF THE APPLICATION FORM
SUBMITTED BY THE PETITIONER TO THE
COLLEGE
EXHIBIT R3(b) TRUE COPY OF THE RELEVANT PAGES OF THE
PROSPECTUS ISSUED BY THE KERALA STATE
SELF FINANCING PHARMACY COLLEGE
MANAGEMENT ASSOCIATION FOR THE ACADEMIC
YEAR 2013-2014.
