Kerala High Court
Ann Treesa Babu vs State Of Kerala on 26 August, 2022
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:
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
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
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
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
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
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
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."
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
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
UNIVERSITY AFFILIATION FEE 2800
PTA FUND 2000
CAUTION DEPOSIT 10000
TUITION FEE 30000
SPECIAL FEE 25000
VALUE ADDED FEE 10000
HOSTEL DEPOSIT 5000
HOSTEL FEE 1650
MESS ADVANCE 2700
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
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
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
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
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
