1 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 06TH DAY JANUARY, 2017 BEFORE THE HON' BLE MR. JUSTICE B. VEERAPPA WRIT PETITION No. 53797/2016 (EDN-RES) R BETWEEN: SANJAT SUMAN LENKA, SON OF BIBHUTI BHUSAN LENKA, AGE : 20 YEARS, RESIDING AT QUARTERS NO.F82, HAL TOWNSHIP, SUNABEDA, KORAPUT DISTRICT, ODISHA-763002. PETITIONER (BY SRI T. RAJENDRA, ADVOCATE FOR SRI VIVEK HOLLA, ADVOCATE) AND: 1. MEDICAL COUNCIL OF INDIA, POCKET-14, SECTOR 8, DWARAKA, NEW DELHI-110077. REPRESENTED BY ITS SECRETARY. 2. RAJIV GANDHI UNIVERSITY OF HEALTH SCIENCES, 4TH 'T' BLOCK, JAYANAGAR, BENGALURU-560041. REPRESENTED BY ITS REGISTRAR. 3. J.J.M. MEDICAL COLLEGE, P.O. BOX NO.301, DAVANGERE-577004. REPRESENTED BY ITS DIRECTOR/PRINCIPAL 2 4. STATE OF KARNATAKA, REPRESENTED BY PRINCIPAL, SECRETARY, DEPARTMENT OF HEALTH AND FAMILY WELFARE, VIDHANA SOUDHA, BANGALORE-560001. RESPONDENTS (BY SRI N. KHETTY, ADVOCATE FOR R1; SRI N.K. RAMESH, ADVOCATE FOR R2; SRI. S.K. SHASHIKIRAN SHETTY, SENIOR COUNSEL FOR R3; SRI D. ASHWATHAPPA, AGA FOR R4) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND [SECTION] OF THE CONSTITUTION OF INDIA PRAYING TO DIRECT RESPONDENT NO.3 COLLEGE TO RETURN ALL THE ORIGINAL DOCUMENTS INCLUDING THE MARKS CARD SUBMITTED BY THE PETITIONER AT THE TIME OF TAKING ADMISSION AND TO RETURN THE TUTITION FEE OF RS.5,75,000 AND ADMISSION FEE OF RS.2,00,510/- PAID BY THE PETITIONER AND ETC. THIS WRIT PETITION HAVING BEEN HEARD AND RESERVED FOR ORDERS, COMING ON FOR PRONOUNCEMENT OF ORDERS THIS DAY, THE COURT MADE THE FOLLOWING: ORDER
The petitioner who is a medical student is before this Court for a writ of mandamus directing the 3rd respondent college to return all the original records including the marks cards submitted by him at the time of taking admission and return the tuition fee of `5,75,000/- and admission fee of `2,00,510/- paid by him.
2. It is the case of the petitioner that he is the resident of Sunabeda in Odisha State. After completing higher secondary course (12th ) from DAV Public School, Bhubaneswar, securing 91.8% marks in All India Senior School Certificate Examination conducted by the Central Board of Secondary Education, New Delhi, ('CBSE' for short), with an intention to pursue medical education, he appeared for National Eligibility cum Entrance Test ('NEET' for short) which was conducted by the CBSE as per the directions of the Hon'ble Supreme Court of India. The petitioner obtained All India ranking of 11313 and also was eligible for counseling for the 15% of the All India Quota Seats. The petitioner applied for admission to the MBBS Course for the academic year 2016-17 through All India Quota Seats, Government colleges of Odisha and also Consortium of Medical, Engineering and Dental Colleges of Karnataka ('COMEDK' for short) for private medical colleges in the [ENTITY].
3. On 10.08.2016, COMEDK issued calendar of events, as per which the petitioner applied for admission through online as was required to be submitted by 28.08.2016 and the final merit list came to be published on 06.09.2016. On the basis of the ranking of the petitioner, he was provisionally allotted seat at the 3rd respondent college which was confirmed on 17.09.2016 and the last date for admission/reporting to college was fixed on 26.09.2016. The petitioner got himself admitted to the 3rd respondent college on the same day by submitting all the original documents including marks cards and paid a sum of `5,75,000/- to COMEDK towards tuition fee and `2,00,510/- for admission fee and `49,100/- towards hostel admission fee.
4. It is the further case of the petitioner that on 19.09.2016, the Government of Maharashtra issued a notification calling for application from the candidates for the purpose of allotment of seats in respect of 15% of All India College seat surrendered to the State in the Government/ Corporation Medical/dental colleges in the State of Maharashtra. In terms of the said notification, application was required to be submitted between 19.09.2016 to 21.09.2016 and the selection list was to be published by 23.09.2016. The petitioner was eligible to participate in the said selection process and submitted an application. It is the further case of the petitioner that the Hon'ble Supreme Court, by an order dated 26.09.2016 granted an interim order in [CASE NUMBER]. Therefore, the Government of Maharashtra could not carryout the admission process in terms of calendar of events earlier issued and in terms of the interim order passed by the Supreme Court stated supra, a revised calendar of events was issued on 26.09.2016 and selection list was published on 27.09.2016 and last date for admission was fixed on 28.09.2016 and only one round of counseling and merit list came to be published in terms of the said notification.
5. It is the further case of the petitioner that the Government of Maharashtra published selection list of eligible candidates on 27.09.2016 and name of the petitioner was reflected at sl.no.272 with the selection details as 'choice not available'. Later on, on the morning of 30.09.2016, petitioner learnt that second list has been published by the Government of Maharashtra in the midnight of 29.09.2016 and petitioner was allotted a Government seat at Swami Ramanand Tirth Rural Government Medical College, Ambajogai District, Maharashtra State (SRTRGMC for short) as per which the candidates were required to join the respective college on the same day. Therefore, petitioner and other students filed [CASE NUMBER] before the High Court of Judicature of Bombay Bench at Aurangabad seeking direction to the State of Maharashtra and to admit the petitioner and others by extending time for admission. An interim order dated 04.10.2016 was passed in the said writ petition directing the respondent therein not to cancel the admission/selection of the students until further orders.
6. It is further case of the petitioner that on 06.10.2016, an application came to be filed by various State Governments including the State of Maharashtra before the Hon'ble Supreme Court for extension of time to fill up vacant government seats and the Hon'ble Supreme Court, exercising powers under [SECTION] of the [ACT], passed an order extending last date for admission of vacant government medical seats upto 07.10.2016, on the basis of which the State of Maharashtra issued notification fixing the date of admission to the government colleges in respect of 15% All India quota on 07.10.2016. In view of the said notification, petitioner took admission in SRTRGMC on 07.10.2016. The seat allotted therein being a government seat, the tuition fee payable by the petitioner was `60,000/- and he paid the same at the time of admission. In the meanwhile, batch of petitions filed before the Maharashtra Bench came to be disposed of with a direction to admit the students in terms of the notification and further directed the authorities to accept the self attested photocopies of the documents at the time of admission without insisting for the originals and directed that the original documents will have to be produced by the candidates within three days from the date of admission.
7. In view of the fact that the petitioner had already taken admission at SRTRGMC and the tuition fee payable by the petitioner was very less than compared to what was payable at the 3rd respondent college which the petitioner was unable to afford and had paid first year fee with great difficulty, addressed e-mail dated 07.10.2016 to the Principal of the 3rd respondent college bringing to his notice the aforesaid developments and requested him to return the original documents and refund the fee paid by him and also wrote personal letters to the Principal and reminder on 08.10.2016. Inspite of the letters, reminders, the 3rd respondent has not communicated any thing to the petitioner. Therefore, the petitioner was constrained to approach the 3rd respondent-college personally and was informed that unless and until the petitioner pays the entire course fee (five years) which works out to nearly `25 lakhs, they will not return the original documents. It is contended that the inaction on the part of the 3rd respondent college is wholly illegal and without jurisdiction and it is further contended that the college where the petitioner was admitted in Maharashtra State had granted three days time for submission of original documents and subsequently on the basis of the order passed by the High Court of Judicature of Bombay Bench at Aurangabad, seven days came to be extended. If the petitioner fails to produce the original documents within the said period, the SRTRGMC would cancel the admission of the petitioner and will impose penalty of `10 lakhs in terms of the notification dated 19.09.2016 issued by the State of Maharashtra. Therefore, the petitioner is before this Court for the relief sought for.
8. The 3rd respondent-college filed statement of objections, denying the averments made in the writ petition except the admission and fee paid by the petitioner and contended that the 3rd respondent has strived constantly to upgrade the facilities and have planned to attain the international standard of education as well as health care offered through their hospitals and are readying to meet national and international needs and challenges and it is one of the most sort institution in India and also the students of foreign countries. The total intake for MBBS Course in the 3rd respondent college is 245 seats out of which admission to 98 seats (40%) are made through COMEDK based on NEET ranking and 98 seats (40%) are surrendered to [ENTITY] for allotment of seats on the basis of ranking of Karnataka Examination Authority and balance 49 seats (20%) are filled up by management under institutional preference and NRI quota on the basis of NEET eligibility.
9. It is further contended that the petitioner student was allotted seat in the 3rd respondent college in the second round of counseling conducted from 20th to 22nd September 2016 by COMED-K and petitioner joined the 3rd respondent college on 26.09.2016 and has been pursuing MBBS course. As per the time schedule stipulated by the Hon'ble Supreme Court and the [ENTITY] for admission to MBBS course, 30th September 2016 was the last date to make admissions. The [ENTITY] ('RGUHS' for short) has issued circular directing the medical colleges to upload the list of admission of candidates on 30.09.2016 for approval of admissions. As per the said circular, the respondent institution has uploaded the list of students admitted to MBBS course including the name of the petitioner for approval of admission and also uploaded in RGUHS portal and submitted list of students admitted to MBBS course including the name of the petitioner.
10. The 3rd respondent further contended that the petitioner had obtained the seat on 07.10.2016 at SRTRGMC under All India Medical Quota. As on the date of allotment of seat in the said college, petitioner was already pursuing medical course at 3rd respondent institution and while joining the MBBS course on 07.10.2016 at SRTRGMC he had suppressed the fact that he has already joined the 3rd respondent college in the [ENTITY]. The attitude of the petitioner is a fence sitter and has taken seat simultaneously in two institutions thereby denying a seat to other meritorious students. The petitioner, for the first time on 07.10.2016 after last date of admission, requested the 3rd respondent to return the original documents. On 14.10.2016, the 3rd respondent has given a detailed reply to the petitioner requesting to continue the course as his name is already sent to RGUHS and [ENTITY] for approval of admission and the petitioner is pursuing MBBS course at 3rd respondent college and attending classes till today (as on the date of filing of objections on 28.10.2016).
11. It is further contended that the Hon'ble Supreme Court, by an order dated 06.10.2016 extended the time for admission in the State of Maharashtra and Karnataka and few other States upto 07.10.2016 for admission in Government institutions and as such the last date for admission to private institutions is only till 30.09.2016. The petitioner did not cancel his seat as on 30.09.2016 in the 3rd respondent College despite having allotted a seat in SRTRGMC. The conduct of the petitioner-student has not only deprived another eligible meritorious student, a medical seat, but also, the seat at 3rd respondent institution will remain vacant for the entire course period causing huge loss and in view of the law declared by the Hon'ble Supreme Court in the case of Islamic Academy of Education vs. [ENTITY] reported in (2003)6 SCC 697 the institution can insist on bank guarantee from students for entire fee, if it apprehends that the students will discontinue the course in mid-stream and also contended that the Division Bench of this Court in the case of Ms.[ENTITY] vs. D.A.Pandu Memorial and others in [CASE NUMBER] after following the law laid down by the Supreme Court in Islamic Academy of Education (supra) held that the student has to pay the entire course fee for leaving the course in mid stream and abandoning the seat in the institution. Hence, petitioner is not entitled to any relief sought for. Accordingly, prayed for dismissal of the writ petition.
12. I have heard the learned counsel for the parties to the lis.
13. Sri [ENTITY], learned counsel for the petitioner vehemently contended that the action of the 3rd respondent college withholding the original marks cards and documents submitted by the petitioner is wholly illegal and admittedly, the petitioner had applied for the Government seat under 15% All India Quota and also COMEDK and in view of the fact that the admissions were not carried out as per the calendar of events, petitioner, with no other alternative, joined the 3rd respondent college since the last date for admission was fixed on 26.09.2016. Later the petitioner was able to secure a seat in Government college at Maharashtra and fee payable in the said college was very less compared to what was payable at 3rd respondent college. Therefore, petitioner cannot be penalized by asking him to pay the entire course fee by 3rd respondent.He further contended that the 3rd respondent failed to notice that the petitioner secured a seat at SRTRGMC and if the original marks cards are not submitted by 17.10.2016, the admission of the petitioner would stand cancelled and will be imposed with penalty of 10 lakhs in terms of the notification dated 19.09.2016 issued by the Maharashtra Government and it would be impossible for the petitioner to pursue the medical course therein. It is further contended that the action of the 3rd respondent college in withholding original documents of the petitioner and demanding payment of entire course fee which works out to nearly 25 lakhs for returning original documents is violative of fundamental rights guaranteed under the [ACT]. The action of the 3rd respondent tantamounts to blackmailing the petitioner and would attract penal provisions of the [ACT] and under compelling circumstances he had joined SRTRGMC and therefore, he sought to allow the writ petition granting the relief sought for. In support of his contentions, learned counsel sought to rely on the following decisions.
(i) Islamic Academy of Education and Another Vs. [ENTITY] and Another, (2003)6 SCC 697.
(ii) M. Hari Karthick vs. [ENTITY] and another, WP No.16262/2016 dated 23.10.2016.
(iii) K. Sri Vishnu Vs. [ENTITY] and Others, WP No.4999/2014 dated 22.04.2014.
(iv) [PRECEDENT] dated 28.01.2016.
(v) Mr. [PRECEDENT] dated 03.02.2016.
(vi) New Horizon College Vs. Thangaraj M.V. and Others, WA 591/2016 dated 25.07.2016.
(vii) [PRECEDENT].
(viii) [PRECEDENT].
(ix) [PRECEDENT]
(x) [PRECEDENT] dated 22.08.2000.
(xi) [PRECEDENT].
14. Per contra, Sri [ENTITY], learned Senior Counsel representing the 3rd respondent institution sought to dismiss the writ petition and contended that [ENTITY] issued notification on 26.08.2016 and the last date of admission of all medical colleges was fixed on 30.09.2016. He relied on Document No.6, COMEDK Medical and Dental Counseling Process document dated 01.09.2016 which clarifies that no surrender of seat would be accepted after the date notified in this behalf and also, surrender of seat of candidates is not allowed during or after COMEDK second round of counseling and COMEDK will not be responsible for any subsequent consequences arising thereon.
15. Learned counsel further relied on Document No.9 i.e., Consensual Agreement between Government of Karnataka and the Karnataka Professional College's Foundation in the matter of regulating admissions and fee structure for the Under Graduate Courses in Private Professional Colleges of Medicine and Dental Sciences for the academic year 2016-17. Clause C of Modalities of Admissions states that, "there shall be constituted, a 'monitoring agency/committee' to ensure the implementation of seat sharing and fee structure consensually arrived at, as indicated and also to ensure the implementation of the terms of consensual agreement. A copy of the admissions after counseling and issuance of admit card/allotment letter, on each day of counseling shall be forwarded to the monitoring committee and any grievances to be redressed by any of the students or any others aggrieved shall be raised before the said monitoring committee which shall, keeping in view the terms of the agreement, shall make such orders as are necessary and the same shall be binding on the respective institutions. The committee shall afford an opportunity of being heard to the respective institutions or to the authorities of COMED- K, if the grievances are as to the allotment process by the COMED-K, before any directions are issued by the monitoring committee".
16. Learned Senior counsel further contended that the prayer sought for by the petitioner in the present writ petition with regard to return of original documents is nothing but surrender of seat without discontinuing the course in the admitted college and since the petitioner has not joined the intended college, till today in the absence of a prayer for surrender of seat, the prayer sought in the writ petition cannot be granted.
17. Learned Senior counsel further contended that the petitioner knowingfully well that after cut off date i.e., 30.09.2016 he is not entitled to any relief under [SECTION] and [SECTION] of the [ACT] and that all the judgments relied upon by the petitioner is in respect of discontinued cases for health and financial problems and some of the decisions relate to discontinuing the course on or before 30th September of that particular year and no admission shall be given beyond 30th September of that year. Though the petitioner got seat at Maharashtra on 29.09.2016, the same was not informed to the 3rd respondent college till 07.10.2016 which was beyond the last date of admission for private seats.
18. Learned Senior Counsel further contended that the petitioner joined the 3rd respondent college on 30.09.2016, and is still continuing his studies in the 3rd respondent college even as on 28.10.2016 and till today, the attendance register of the petitioner discloses his attendance in 3rd respondent college even in November 2016. Therefore, the learned Senior counsel sought to dismiss the writ petition by relying on the following decisions:
(i) [ENTITY] of Karnataka (COMED- K) represented by its Assistant Secretary and another vs. Shanklesha Rinku Ramesh and Others, ILR 2012 KAR 4621, 31.05.2012.
(ii) Mridul Dhar Vs. Union of India, (2005)2 SCC 65
(iii) [PRECEDENT]
(iv) [PRECEDENT].
(v) Islamic Academy of Education and another Vs. [ENTITY] and another, (2003) 6 SCC 697.
(vi) T.M.A. Pai Foundation and others Vs. [ENTITY] and Others, (2002) 8 SCC
(vii) Miss. [ENTITY] Vs. D.A. Pandu Memorial R.V. Dental College and Hospital and Another, WP 13792/2009 dated 18.03.2014.
(viii) [PRECEDENT].
(ix) [ENTITY] of Karnataka (COMED- K) represented by its Assistant Secretary and another vs. Shanklesha Rinku Ramesh and Others, ILR 2012 KAR 4621, 31.05.2012.
(x) Bonnie Anna George Vs. [ENTITY] and Another, (2014) 10 SCC
19. Sri [ENTITY], learned counsel for the 1st respondent/[ENTITY], submits that no consequences are mentioned in the brochure 2016 with regard to discontinuing after the date prescribed, i.e., beyond 30th September nor any law is framed by the State Government in that regard. Learned counsel, relying on para 8 of the judgment in the case of [PRECEDENT] and para 49 in the case of [PRECEDENT] stated supra, contended that in the absence of anything in the brochure, the only remedy available for the petitioner and the 3rd respondent college is to file a suit for enforcement of contract between the parties. Learned Counsel relying on the Division Bench decision in the case of Ms.[ENTITY] Vs. D.A. Pandu Memorial R.V. Dental College & Hospital and Another in WP 13792/2009 dated 18.03.2014 specifically brought to the notice of the Court that brochure clause No.39 is made with a view to make merit determination/seat selection process fair, transparent and non exploitative. Therefore, he submits that in the absence of any agreement or any rules, it is not open for the management to withhold the original documents of any student and it is for the management to approach the competent civil court for enforcement of the contract.
20. Sri [ENTITY], learned counsel for the Respondent No.2 and Sri [ENTITY], learned Addl. Government Advocate for respondent No.4 sought to adopt the arguments advanced by the learned counsel for respondent No.3.
21. In view of the rival contentions urged by the learned counsel for the parties, the only point that arises for consideration in the present writ petition is:
"Whether the petitioner has made out a case for a writ of mandamus directing the 3rd respondent college to return the original documents including marks cards and refund the admission fee and tuition fee to the petitioner, in the fact and circumstances of the present case?"
22. I have given my thoughtful consideration to the arguments advanced by the learned counsel for the parties and perused the entire records carefully.
23. It is an undisputed fact that the petitioner joined the 3rd respondent college for MBBS course on 26.09.2016, on the basis of ranking of the petitioner by submitting all the original marks cards and a sum of `5,75,000/- to COMEDK towards tuition fee and `2,00,510/- towards admission fee and `49,000/- towards hostel admission fee.
24. It is not in dispute that as per the calendar of events, the date of commencement of first round of counseling was on 8th, 10th and 11th September 2016; the last date for reporting to college based on the seat selected in first round was 15th September 2016; the date for surrender of seats and conversion of provisional allotment into confirmed allotment was 13th to 17th September 2016; and the date for commencement of second round of counseling was from 20th to 22nd September 2016, last date for reporting to college based on seat selected in the second round counseling was 26th September 2016.
25. In the present case, though the petitioner got admission in the 3rd respondent college on 26.09.2016, by paying necessary admission and other fee, he did not inform the 3rd respondent college till 07.10.2016 about his admission in SRTRGMC. The last date to discontinue the seat allotted was 30.09.2016 and the present writ petition is filed on 13.10.2016. Clause 8 of Brochure 2016 specifies that as per admission policy of member institutions of COMEDK, the following candidates are unacceptable and hence need not apply.
(i) Candidates having qualified earlier and selected an MBBS seat through COMEDK but failed to join the college so selected or failed to surrender the said seat at the COMEDK level for valid reasons or having joined the college so selected failed to pursue the course.
(ii) Candidates already pursuing medical UG course anywhere in India.
(iii) Candidates who were caught attempting to impersonate or found following/adopting any of the malpractices earlier including entertaining touts or agents.
26. In the present case, though the petitioner joined the 3rd respondent-institution within the time, if he wanted to join some other college, he ought to have surrendered the seat on or before 30th September 2016 and should have joined any other college before that date. But he joined SRTRGMC at Maharashtra on 07.10.2016 as per the extension of time granted by the Hon'ble Supreme Court. The same was never intimated to the 3rd respondent college nor he discontinued the course at 3rd respondent college till today.
27. According to the petitioner, the original documents should be produced before the SRTRGMC on or before 17.10.2016, though the writ petition is filed on 13.10.2016. It is also not in dispute as contended by the learned counsel for the 3rd respondent college that the petitioner is continuing his studies in the 3rd respondent college from 26.09.2016 till today which is evident from the practical and theory attendance registers produced by the 3rd respondent-college for the month of October and November 2016. The name of the petitioner finds place at Sl.No.175 in the attendance register for the month of November 2016 and it is not the case of the petitioner that he has discontinued the studies in the 3rd respondent-college. The prayer sought in the present writ petition is to direct the 3rd respondent to return all the original documents including the marks cards and fee. In the entire writ petition, the only ground urged by the petitioner for return of documents is that since he has joined SRTRGMC on 07.10.2016 he has to produce the original records on or before 19.10.2016. But subsequently, what happened to his admission at SRTRGMC, Maharashtra is not forthcoming from the records and the fact remains that the cut off date fixed for surrender of seat was 30th September 2016.
28. In view of clause 39 of the brochure, no surrender of seat would be accepted after the date notified in this behalf and also surrender of seat is not allowed during or after COMEDK second round counseling. Therefore, petitioner cannot compel the 3rd respondent-College to return the original marks cards as well as fee paid by him. It is also not in dispute that the petitioner having got seat at 3rd respondent college and joined by paying the prescribed fee within time and if he wanted to surrender the same, he ought to have intimated to the 3rd respondent college within the time prescribed, enabling it to allot the said seat to any other meritorious eligible candidate but the same has not been done by the petitioner and he has been admitted for MBBS course in the college at Maharashtra on 07.10.2016. Due to the mistake on the part of the petitioner, one seat has become vacant and the 3rd respondent-college is not in a position to fill up the said vacant seat for the entire course period of five years and it is a financial loss to the 3rd respondent-college and loss to another meritorious student, because of negligence on the part of the petitioner.
29. The learned counsel for the petitioner has relied on the public notice dated 23.04.2007 issued by the University Grants Commission which clearly depicts at paragraph 3 that, "in the event of a student/candidate withdrawing before the starting of the course, the waitlisted candidates should be given admission against the vacant seat. The entire fee collected from the student, after a deduction of the processing fee of not more than `1,000/- (one thousand only) shall be refunded and returned by the institution/University to the student/candidate withdrawing from the programme. Should a student leave after joining the course and if the seat consequently falling vacant has been filled by another candidate by the last date of admission, the institution must return the fee collected with proportionate deductions of monthly fee and proportionate hostel rent, where applicable".
30. In the present case, it is an admitted fact that the petitioner has not withdrawn from the 3rd respondent college before commencement of the course or on the last date fixed for surrender of seat. Admittedly, even now he is continuing his studies in the 3rd respondent- college. Therefore, the said public notice, infact is against the petitioner and will in no way assist the petitioner.
31. Learned counsel for the petitioner has relied on an unreported judgment of this Court in the case of Sri M. Hari Karthick Vs. [ENTITY] and Another, in [CASE NUMBER] dated 24.10.2016 wherein, the petitioner had attended the first year BDS course from 24.08.2015 to 06.11.2016. He got information that his father was seriously ill due to high diabetes and he was in great financial crisis without money for treatment as he had spent all his savings and also had borrowed money for admission of the petitioner therein. Therefore he decided not to continue the studies as he was unable to pay further donation. In those circumstances, this Court referring the earlier judgments of this Court in the case of
(i) [PRECEDENT], in [CASE NUMBER] dated 03.02.2016.
(ii) [PRECEDENT] in [CASE NUMBER] dated 28.01.2016; and
(iii) [PRECEDENT], in [CASE NUMBER] dated 14.03.2014.
has directed the management to return the documents, with liberty to pursue its remedy to recover money from the petitioner, in accordance with law. Admittedly in the present case, even before the last date fixed for surrender of seat, the petitioner joined other college. Even now, the petitioner is continuing his studies in 3rd respondent College. Therefore, the facts of that case and the facts of the present case are entirely different and hence the said judgment has no application to the facts of the present case.
32. In so far as the decision in the case of Vishnu Vs. [ENTITY] and Others in W.P.No. 4999/2014 dated 22.04.2014 relied upon by the learned counsel for petitioner, it is a case where the student after completion of first semester could not pursue studies on account of financial difficulty and discontinued the studies. Under those circumstances, this Court directed to return the documents.
33. In the case of [PRECEDENT] dated 28.01.2016, relied upon by the learned counsel for the petitioner therein, the student who joined the college for B.E. computer science for the academic year 2013-14 met with an accident on 25.04.2014 and sustained fracture to his right knee and underwent operation. In the said process, he had missed classes due to which he could not continue the course subsequently. Therefore, he made representation to the management seeking original documents and in the circumstances, this Court directed the management to return the documents with liberty to proceed against the petitioner for recovery of amount, if so advised.
34. In the case of [PRECEDENT] in WP 25806/2015 dated 03.02.2016 relied upon by the learned counsel for the petitioner, the petitioner therein had joined BE course after paying `1,60,000/- towards first year course for the year 2012-13. He did not do well and failed in five subjects. Thereafter as he was unable to complete backlog subjects, he sought to join some other course in which he is capable of completing. In those circumstances, he sought for original documents. This Court relying upon the decision of the Apex Court in the case of [PRECEDENT] and the Division Bench judgment of this Court in [CASE NUMBER] dated 18.03.2014, directed the management to return the documents with liberty to the management to recover the amount by resorting to legal process. The said case has no application to the facts of the present case.
35. In another decision relied upon by the petitioner in the case of [PRECEDENT], wherin the daughter of the petitioner had joined the first year degree course in the year 2012-13 by paying fee and submitting original documents, unfortunately, she could not withstand daily travel from residence to college located at a distance of 55 kms. Therefore, she took transfer certificate on 17.09.2012 and sought refund of the fee and return of certificates, which was refused by the college. Under those circumstances the Madras High Court, Madurai Bench held that the certificates of the daughter of the petitioner therein represented her property which cannot be retained by the college at any rate. Even if college has any monetary claim, the rejection of the said certificates is not the method by which claim can be enforced. There is no lien on the certificates of petitioner's daughter. The facts of the said case and the facts on hand are entirely different and has no application to the present case.
36. Another judgment relied upon by the learned counsel for the petitioner is the case of [PRECEDENT] in [CASE NUMBER] wherein the learned single Judge of High Court of Gujarat at Ahmedabad while relying on the judgment in the case of Islamic Academy of Education (supra) held that " at the Highest, the institution may require a student to give a bond or a bank guarantee for balance fee of the course being received by the institution even though the student leaves in midstream". However, the Supreme Court has categorically stated that an educational institution can only charge prescribed fees for one semester/year. It was also held that the decision in Islamic Academy of Education (supra) does not recognize a situation where the student leaves the course mid way. However, it was categorically laid down that institution may require the student to furnish a bond or give bank guarantee to ensure that fee for entire course would be recovered by it, if the student leaves the course midway through it. The facts of the said case and facts of the present case are entirely different. Therefore, same is not applicable to the present case.
37. The Hon'ble Supreme Court in the case of [PRECEDENT], at paragraph 8 has held as under:
"8. It must be mentioned that during arguments it was pointed out to us that some educational institutions are collecting, in advance, the fees for the entire course i.e. for all the years. It was submitted that this was done because the institute was not sure whether the student would leave the institute midstream. It was submitted that if the student left the course in midstream then for the remaining years the seat would lie vacant and the institute would suffer. In our view an educational institution can only charge prescribed fees for one semester/year, if an institution feels that any particular student may leave in midstream then, at the highest, it may require that student to give a bond/bank guarantee that the balance fees for the whole course would be received by the institute even if the student left in midstream. If any educational institution has collected fees in advance, only the fees of that semester/year can be used by the institution.
The balance fees must be kept invested in fixed deposits in a nationalised bank. As and when fees fall due for a semester/year only the fees falling due for that semester/year can be withdrawn by the institution. The rest must continue to remain deposited till such time that they fall duo. At the end of the course the interest earned on these deposits must be paid to the student from whom the fees were collected in advance.
38. The Division Bench of this Court in [CASE NUMBER], considering para 8 of the Islamic Academy of Education's case cited supra, wherein it is observed that, "if an institution feels that any particular student may leave in mid stream then, bond/bank guarantee for the balance fees for the whole course would be received by the institution, even if the student left in the mid stream" has held that on account of her conduct, petitioner has not only caused loss of revenue to the college, but also deprived a seat for another eligible student, who was willing to become a dentist. The Division Bench expressed the opinion that, a time has come for the Government to make proper Rules to prevent changing the course unnecessarily which would result in depriving the chance of getting Government seat of any other meritorious eligible candidate." Accordingly, the writ petition was dismissed holding that the bank guarantee executed by the petitioner therein was ordered to be invoked by the respondent and the order passed by the learned single Judge in [CASE NUMBER] dated 02.07.2008 was incorrect, in view of Islamic Academy of Education Case. The said order passed by the Division Bench of this Court has become final and conclusive.
39. Another learned single Judge of this Court in [CASE NUMBER] in the case of Ms.[ENTITY] relying upon the very judgment of Islamic Academy of Education case, dismissed the writ petition on account of policy guidelines made by the college for payment of entire tuition fee and held that the petitioner shall furnish bank guarantee for a part of the course fees of `2,50,000/- for which the respondent at liberty to invoke and the balance amount shall be recovered in terms of the undertaking.
40. The Division Bench of this Court in the case of [ENTITY] of Karnataka and Another Vs. Shanklesha Rinku Ramesh and Others in W.A.No.2579/2012 & connected matters, while considering admission to dental college at paragraphs 5 & 6, has upheld the condition in the brochure which reads as under:
"5. In our opinion, the learned Single Judge has rewritten the conditions that were required to be complied with and this is impermissible even in the writ jurisdiction especially where the overwhelming majority of candidates have already meticulously complied with all the stipulations. The Petitioners and other candidates who are highly educated and literate persons are seeking admission to scare and coveted Post graduate courses. We think that it is reasonable to expect them to ensure due compliance with all stipulations including that the Demand Drafts were to be drawn on Nationalized Banks. The payment of fees ensures that the candidates do not adopt a flippant or irresponsible approach which would inexorably lead to seats remaining vacant. Unless the payment of fees leaves the pocket of the candidate he may not utilize admission to the course leading to pecuniary loss to the Colleges and national loss of a medical seat remaining unutilized. Since it is considered essential that the entire course should be attended, the Apex Court has specified the last date for admission to these courses as 31st May of each calendar year.
6. It is also important to note that no malafide have been alleged against the Appellant, and at the highest it is stated that in one case, an official of the Appellant had committed a mistake. ;
41. The learned Single Judge of Punjab and Haryana High Court in the case of [PRECEDENT] in [CASE NUMBER] Dated 01.08.2016, while considering the conditions of brochure at paragraph 7 held as under:
"7. Accordingly, respondents cannot be held liable for any deficiency in service and the petitioner was not entitled for refund in terms of the above Clause of Prospectus. It has time and again been held by six Full Bench decisions of this Court that admission brochure or the prospectus has a force of law which is to be strictly followed. Reference can be made to [PRECEDENT], [PRECEDENT], [PRECEDENT] [ENTITY] Vs. Punjab Technical University, Jalandhar 1997(3) S.C.T. 526, [PRECEDENT] and [PRECEDENT]. The relevant observations made in [ENTITY]'s case (supra) read as under:-
"7. A Full Bench of this Court in [PRECEDENT] had to consider the scope and binding force of the provisions contained in the prospectus. The Bench took the view that the prospectus issued for admission to a course, has the force of law and it was not open to alteration. In Raj Singh v. Maharshi Dayanand University, 1994 (4) RSJ 289 : 1994(2) SCT 766 (P&H) (FB) another Full Bench of this Court took the view that a candidate will have to be taken to be bound by the information supplied in the admission form and cannot be allowed to take a stand that suits him at a given time. The Full Bench approved the view expressed in earlier Full Bench that eligibility for admission to a Course has to be seen according to the prospectus issued before the Entrance Examination and that the admission has to be made on the basis of instructions given in the prospectus, having the force of law. Again Full Bench of this Court in [PRECEDENT] took the view that there has to be a cut off date provided for admission and the same cannot be changed afterwards. These views expressed by earlier Full Benches have been followed in [CASE NUMBER] by the three of us constituting another Full Bench. Thus, it is settled law that the provisions contained in the information brochure for the Common Entrance Test 1997 have the force of law and have to be strictly complied with. No modification can be made by the Court in exercise of powers under [SECTION] of the [ACT]."
42. The Hon'ble Supreme Court while considering the provisions of [SECTION] of the [ACT], with regard to unaided private non minority educational institution admission procedure in the case of [PRECEDENT] relying on the earlier judgments of the Hon'ble Supreme Court in the case of [PRECEDENT], [PRECEDENT] and also relying on the judgment in the case of [PRECEDENT], wherin paragraphs 45 to 46.6 of the said judgment were reiterated as under:
"45. The maxim boni judicis est causas litium dirimere places an obligation upon the Court to ensure that it resolves the causes of litigation in the country. Thus, the need of the hour is that binding dicta be prescribed and statutory regulations be enforced, so that all concerned are mandatorily required to implement the time schedule in its true spirit and substance. It is difficult and not even advisable to keep some windows open to meet a particular situation of exception, as it may pose impediments to the smooth implementation of laws and defeat the very object of the scheme. These schedules have been prescribed upon serious consideration by all concerned. They are to be applied stricto sensu and cannot be moulded to suit the convenience of some economic or other interest of any institution, especially, in a manner that is bound to result in compromise of the abovestated principles.
46. Keeping in view the contemptuous conduct of the relevant stakeholders, their cannonade on the rule of merit compels us to state, with precision and esemplastically, the action that is necessary to ameliorate the process of selection. Thus, we issue the following directions in rem for their strict compliance, without demur and default, by all concerned:
46.1 The commencement of new courses or increases in seats of existing courses of MBBS/BDS are to be approved/recognised by the Government of India by 15th July of each calendar year for the relevant academic sessions of that year.
46.2 The [ENTITY] shall, immediately thereafter, issue appropriate directions and ensure the implementation and commencement of admission process within one week thereafter.
46.3 After 15th July of each year, neither the Union of India nor the Medical or Dental [ENTITY] shall issue any recognition or approval for the current academic year. If any such approval is granted after 15th July of any year, it shall only be operative for the next academic year and not in the current academic year. Once the sanction/approval is granted on or before 15th July of the relevant year, the name of that college and all seats shall be included in both the first and the second counseling, in accordance with the Rules.
46.4 Any medical or dental college, or seats thereof, to which the recognition/approval is issued subsequent to 15th July of the respective year shall not be included in the counseling to be conducted by the authority concerned and that college would have no right to make admissions in the current academic year against such seats.
46.5 The admission to the medical or dental colleges shall be granted only through the respective entrance tests conducted by the competitive authority in the State or the body of the private colleges. These two are the methods of selection and grant of admission to these courses. However, where there is a single Board conducting the state examination and there is a single medical college, then in terms of Clause 5.1 of the [ENTITY] Eligibility Certificate Regulations, 2002 the admission can be given on the basis of 10+2 exam marks, strictly in order of merit.
46.6 All admissions through any of the stated selection processes have to be effected only after due publicity and in consonance with the directions issued by this Court. We vehemently deprecate the practice of giving admissions on 30th September of the academic year. In fact, that is the date by which, in exceptional circumstances, a candidate duly selected as per the prescribed selection process is to join the academic course of MBBS/BDS. Under the directions of this Court, second counseling should be the final counseling, as this Court has already held in [PRECEDENT] and third counseling is not contemplated or permitted under the entire process of selection/grant of admission to these professional courses.
43. The Hon'ble Supreme Court while considering the admission for professional colleges/medical and dental colleges, in the case of [PRECEDENT] has held as under:
"30. Viewed in that respect, we find force in the submission of the learned counsel for the Petitioner that such a conduct displayed by the second Respondent during the third counselling cannot also be said to be an innocuous move in the context of the rule relating to refund of the fees. It will be worthwhile to note that for an N.R.I. seat the prescribed fee is US $ 1,25,000 which is equivalent to approximately Rs.75 lakhs as against the annual fee of Rs.3,98,000/- for 'A' category candidates. As per the refund rules, when somebody vacates the seat on the last date of admission, he/she is entitled for refund of the full fee except administrative fee and any other expenses incurred by the institution towards the candidate. However, such refund of full fee need not be made if the seat vacated by the candidate could not be filled up by the institution. Therefore, when in the case in hand, the N.R.I. seat of M.D. General Medicine was vacated and if the seat was filled up by a candidate of 'A' category then second Respondent would be bound to refund the entire fee paid by the N.R.I. candidate except the administrative expenses and other expenses towards the candidate. Since, the second Respondent was ultimately successful in not filling up the seat and thereby applying the refund rules, the N.R.I. candidate concerned need not be refunded with the full fee on the ground that the seat vacated by him could not be filled by the second Respondent. In the context of the inept conduct displayed by the second Respondent, there is no reason why the said contention made on behalf of the Petitioner should not be accepted.
We do not find any acceptable submission made on behalf of the second Respondent to rebut such an argument made on behalf of the Petitioner. On these grounds as well, we are convinced that there is much to be doubted as regards the conduct of the second Respondent in depriving the Petitioner to exercise her right for opting the available N.R.I. category seat, while in law, she had every right to seek for such an option. Further, the conduct of the second Respondent in having made an application in this Court in [CASE NUMBER] on 04.08.2013 for holding fourth counseling on 07.08.2013 which was rejected by this Court by an order dated 04.10.2013 also suggests that there was total lack of bona fide in the stand of the second Respondent.
44. The Hon'ble Supreme Court considering the rights of college and students, in the case of T.M.A Pai Foundation and others Vs. [ENTITY] and Others reported in (2002) 8 SCC 481, at paragraph 49 has held as under:
"49. Not only has demand overwhelmed the ability of the governments to provide education, there has also been a significant change in the way that higher education is perceived. The idea of an academic degree as a "private good" that benefits the individual rather than a "public good" for society is now widely accepted. The logic of today's economics and an ideology of privatization have contributed to the resurgence of private higher education, and the establishing of private institutions where none or very few existed before."
45. In view of the pleadings of the petitioner as well as the statement of objections of the respondent No.3/college, it is clear that the petitioner student has not discontinued the course within the time stipulated under the calendar of events published, and thereby, has deprived another meritorious eligible candidate a seat in the 3rd respondent college and 3rd respondent college is not in a position to admit any student to the said vacant seat for the remaining five years and thereby, the College will suffer a huge loss. Admittedly the petitioner is not discontinuing the course for any financial or other problems, but it is only because he has joined a Government College at Maharashtra on 07.10.2016 on the ground that the fee prescribed in the said college is `60,000/- p.a. and for 5 years, it would be around 3 lakhs, whereas, in respondent No.3 college, he has to pay `5,75,000/- per year i.e., `28,75,500/- for five years. The only direction sought for by the petitioner against the the 3rd respondent college is for return of all the original marks cards with fee already paid, to enable him to continue his studies in a Government College at Maharashtra where he joined on 07.10.2016 and he has not discontinued his studies in the 3rd respondent-college even till today. Therefore, in view of the dictum of the Division Bench of this Court in [ENTITY]'s case cited supra and the dictum of the Hon'ble Supreme Court in the case of Islamic Academy of Education supra (para-8) and the decision in the case of T.M.A Pai Foundation (supra), it is a contract between the 3rd respondent-management and the petitioner in terms of the brochure issued by COMED-K and the petitioner has violated the conditions of the brochure. Therefore, he has not made out any violation of his statutory right to be enforced against the 3rd respondent institution.
46. The Brochure- COMEDK UG 2016- Medical And Dental Admissions Seat Selection Process Document Dated 01.09.2016 Chapter XVIII Refund And Forfeiture Of Fee Clause 39 reads as under:
"39. No surrender of seat would be accepted after the date notified in this behalf. Also, surrender of seat by the candidates in not allowed during or after COMEDK second round of counseling. COMEDK will not be responsible for any subsequent consequences arising thereon."
47. The Brochure-COMEDK UGET 2016 - Surrender Policy and Eligibility Norms for Second and Final Round of Medical and Dental counseling dated 07.09.2016 at Chapter B. Surrender Policy after first round Clause(b)
(ii) for Confirmed allotment "CAUTION" reads under:
"CAUTION: Surrender of seats will be accepted only during the dates notified. There is no provision for surrender of seats either during or after the commencement of the second round, which would be treated as an offence and an attempt of 'seat blocking'."
48. It is an admitted fact that inspite of the direction issued by the Division Bench of this Court in the case of Miss [ENTITY] made in [CASE NUMBER] D.D. 18.3.2014 directing the State Government to frame proper rules to prevent changing of the course unnecessarily, discontinuation of studies by any candidate in respect of professional courses in the midstream of the course and rights of the college to demand remaining fees for the entire course from the students who leave the college in the midstream of the course, till today, neither the State Government nor the [ENTITY] or the [ENTITY] has made any rules in that regard.
49. It is also not in dispute that the Hon'ble Supreme Court in the case of Islamic Academy of Education at paragraph 8 has held that it is for the institutions to get a bond or bank guarantee that the balance fee for the whole course could be received by the institution even if the student leaves the course in the midstream. Admittedly, in the present case, the management has not obtained any undertaking or bond or bank guarantee from the petitioner-student while admitting him for MBBS course. It is no doubt true that if the petitioner is allowed to discontinue the course by granting the prayer sought for in the present writ petition, definitely, it would be a financial loss to the 3rd respondent-institution and thereby depriving a meritorious eligible candidate a seat for the MBBS course in the 3rd respondent college and further that the said seat has to be kept vacant for the remaining five years. Though the conditions of the brochure prescribes that there shall be no surrender of seat, after the date notified and the surrender of seat by the candidate is not allowed during or after COMED-K second round counseling and COMED-K will not be responsible for subsequent consequences arising therein, the brochure does not disclose as to what are the consequences, if the student discontinues the course in the midstream.
50. Therefore, it is high time for the State Government or [ENTITY] or the concerned authority to take proper steps to prevent changing of the course by the students unnecessarily in the midstream of the course which would result in depriving a seat to another meritorious eligible candidate and to prevent consistent harassment to the parents of the aspiring students of the Professional Courses from Professional Educational Institutions, financial loss to the Educational Institutions and to allot seat in a fair and transparent manner in the Professional Courses in the interest of the Society at large, in view of the dictum of the Division Bench of this Court in the case of [ENTITY], and the decisions of the Hon'ble Supreme Court in the cases of Islamic Academy of Education and TMA Pai Foundation, stated supra. Admittedly, even today, the petitioner is continuing his studies in the 3rd respondent college, which is evident from the attendance register produced by the 3rd respondent college which is not disputed by the petitioner and he has not discontinued the course. The relief sought for in the present writ petition for return of original documents is nothing but surrender of seat without discontinuing the course in the admitted college beyond the cut off date fixed i.e., 30th September 2016. Thereby the petitioner has violated the conditions of the COMEDK Medical and Dental Counseling Brochure-2016.
51. In the absence of any specific rules made by the State Government and any bank guarantee obtained by the 3rd respondent management from the petitioner, and in view of the admitted position that the petitioner joined a Government college at Maharashtra on 07.10.2016 without discontinuing or surrendering the seat in the 3rd respondent college before the cut off date as stated supra, both the 3rd Respondent-College as well as the petitioner-student are at fault. Therefore, tuition fee of `5,75,000/- and admission fee of `2,00,510/- for the year 2016-17 paid by the petitioner cannot be refunded since he is attending the 3rd Respondent- College till today.
52. Admittedly, the prayer sought in the writ petition by the petitioner is to direct 3rd respondent-College to return his documents in order to enable him to produce the same before Government College at Maharashtra since the fee fixed in the said college is `60,000/- per year and that he has to pay only `3 lakhs for the entire course as against `23 lakhs demanded by the 3rd respondent college for the remaining four years.
53. In view of the peculiar facts and circumstances of the present case and in the absence of any rules, framed either by the State Government, MCI and RGUHS and in the absence of any bond/bank guarantee obtained by respondent No.3 college and the fact that the petitioner has violated the conditions of Brochure-2016 as stated supra, in the interest of justice to both the parties to the lis, it is suffice to direct the petitioner to execute bond or bank guarantee or furnish security of immovable properties in favour of the 3rd respondent college for 50% of the remaining course fee i.e., `11,50,000/- out of `23,00,000/- for return of all the original documents including marks cards submitted by him to enable him to pursue his studies at the Government College at Maharashtra. For the reasons stated supra, the point raised in the present writ petition is answered, accordingly.
54. In view of the aforesaid reasons, in the interest of justice and equity, the writ petition is allowed in part and the 3rd respondent college is directed to return all the original documents including the marks cards of the petitioner forthwith subject to petitioner executing a bond or bank guarantee or furnishing security of immovable properties for 50% of remaining fee i.e., `11,50,000/- (Rupees Eleven Lakhs Fifty Thousand only) out of `23,00,000/- (Rupes Twenty Three Lakhs only) which would be reasonable in the facts and circumstances of the present case.
55. Let a copy of this order be sent to the Chief Secretary, Government of Karnataka; Secretary, [ENTITY]; and the Registrar, [ENTITY] for taking necessary steps in the light of the observations made above and in accordance with law.
JUDGE kcm