IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN FRIDAY, THE 12TH JUNE 2009 / 22ND JYAISHTA 1931 WP(C).No. 18957 of 2008(F) -------------------------------------- PETITIONER: ------------------- K.RENU., D/O.K.K.CHANDRAN NAIR, NEELANJANAM, GIRI NAGAR COLONY, N.S.S.ENGINEERING COLLEGE, PALGHAT – 678 008. BY ADV. MR.V.G.ARUN. RESPONDENTS: ------------------------ 1. THE COMMISSIONER OF ENTRANCE EXAMINATIONS, HOUSING BOARD BUILDING, SANTHI NAGAR, TRIVANDRUM. 2. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, HIGHER EDUCATION DEPARTMENT, TRIVANDRUM. 3. THE UNIVERSITY OF CALICUT, THENHIPALAM P.O. MALAPPURAM, REPRESENTED BY ITS REGISTRAR. 4. INSTITUTE OF ENGINEERING AND TECHNOLOGY, UNIVERSITY OF CALICUT, THENHIPALAM P.O. REPRESENTED BY ITS PRINCIPAL. R1 & R2 BY GOVT. PLEADER SMT. N. SUDHA DEVI, R3 & R4 BY ADV. MR.P.C.SASIDHARAN, SC, CALICUT UTY., THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 12/06/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.18957/2008-F: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE REPRESENTATION DTD. 10/10/2000. EXT.P.2: COPY OF THE LIST OF STUDENTS ADMITTED FOR THE 1ST YEAR B.TECH.2006. EXT.P.3: COPY OF THE G.O.(P).NO.120/2006/H.EDN. DTD. 19/09/2006. EXT.P.4: COPY OF THE LIST OF CANDIDATES TO THE COURSE OF ELECTRONICS AND COMMUNICATIONS. EXT.P.5: COPY OF THE JUDGMENT IN W.P.(C).29832/2006 DTD. 30/11/2006. EXT.P.6: COPY OF THE LETTER NO. 1038/(J2)07/H. EDN. DTD. 19/09/2007. EXT.P.7: COPY OF THE LETTER NO. GA-III/13/1497/2006 DTD. 17/11/2007. EXT.P.8: COPY OF THE LETTER NO. 10388/J2/07/H. EDN. (2) DTD. 05/12/2007. EXT.P.9: COPY OF THE LETTER NO. 10386/J2/07/H. EDN. (1) 15/12/2007. EXT.P.10: COPY OF THE LETTER NO. IET/C/FEE/04 DT. 28/01/2008. EXT.P.11: COPY OF THE LETTER NO. 10386/J2/08/H. EDN. DTD. 06/05/2008. EXT.P.12: COPY OF THE MEMO NO.IET/C/STATEMENT/07 DTD. 02/04/2008. EXT.P.13: COPY OF THE APPLICATION DTD. 19/05/2008. EXT.P.14: COPY OF THE REPLY DTD. 18/06/2008. RESPONDENTS' EXHIBITS: EXT.R3.A: COPY OF THE LETTER BY THE PRINCIPAL ADDRESSED TO THE R.1. DTD. 11/01/2008. EXT.R3.H: COPY OF THE COMMUNICATION FROM THE R.1. DT. 19/01/2008. //TRUE COPY// P.S. TO JUDGE. Prv. S. Siri Jagan, J. =-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-=-= W. P (C) No. 18957 of 2008 =-=-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-= Dated this, the 12th June, 2009. J U D G M E N T The petitioner is a candidate for entrance examination for an engineering couorse. She opted for admission to the 4th respondent's college under the 3rd respondent-University. The petitioner originally got admission to the Electrical and Electronics Engineering course, for which she was rank no. 3 in the admission list. She paid an amount of Rs. 38,000/- as fee as per the decision of the Justice K.T. Thomas Committee. According to the petitioner, she was liable to pay only Rs. 6,200/- since she got admission in the merit quota. She filed Ext. P1 objection in that regard seeking refund of the excess fee collected from her. Subsequently, her higher option was allowed and she was given admission to the Electronics and Communication branch for which she obtained 20th rank. According to the petitioner, the total number of seats for that branch was 60. The admission was governed by clause 2.8 of Ext. P3, wherein it was stipulated that 70% seats would be filled up by the Commissioner of Entrance Examination as per the 2006 Act with 50% freeship seats and 20% with fee fixed by Justice K.T. Thomas Committee. According to the petitioner, since 50% of 60 is 30, and since the petitioner got 20th rank, she is eligible to be admitted in a merit seat and therefore the petitioner is liable to pay only the merit seat fee, which is Rs. 6,200/-. Because of certain anomalies in the free structure and admission, some other candidates approached this Court by filing a writ petition and by Ext. P5 judgment, this Court directed the Government to consider the case of each person in accordance with the observations in that judgment. The petitioner's complaint was also considered and originally it was held that the petitioner is entitled to refund of the excess fees paid. Accordingly, by Ext. P8, the petitioner's father was informed that appropriate direction has been issued to the 4th respondent to refund W.P.C. No. 18957/08. -: 2 :- the excess amount paid. However, the 3rd respondent took the stand that the petitioner was given admission in the high fee category and therefore she is not eligible for merit fee. Subsequently, by Ext. P11, Government informed the father of the petitioner that the petitioner has only paid the actual fee and no excess amount is refundable. It is under the above circumstances, the petitioner has filed this writ petition seeking the following reliefs: “(i) To declare that the petitioner who was eligible to be admitted in the merit quota for Electronics and Communication Engineering in the fourth respondent-Institution and as such she is liable to pay only the fees prescribed for Government quota to students; (ii) to issue a writ of mandamus or any other writ, direction or order, directing the 4th respondent to refund the excess fee collected as directed in the letter issued by respondents 1 & 2; (iii) to call for the records leading to Ext. P10, P11 and P12 and quash the same by the issuance of a writ of certiorari or any other writ, direction or order.” 2. The contention of the petitioner now is that the petitioner becomes liable to pay the higher fees only by virtue of the Kerala Professional Colleges or Institutions (Prohibition of Capitation Fee, Regulation of Admission, Fixation of Non-exploitative Fees and other measures to Ensure Equity and Excellence in professional Education) Act, 2006 and the Rules thereunder. Certain provisions in the Act and the Rules including the provisions relating to fee structure has been declared unconstitutional by this Court in Lisie Medical & Educational Institutions v. State of Kerala, 2007(1) KLT 409 and since the higher fee has been recovered from her by virtue of those provisions, when those provisions are declared unconstitutional, she is entitled to refund of the excess fee paid. 3. Counter affidavits have been filed by the Commissioner of W.P.C. No. 18957/08. -: 3 :- Entrance Examination and the University, wherein the stand taken is that it is as per the option of the petitioner that she was given admission in the high fee category seat and she accepted the admission knowing fully well that in the category in which she has been given admission she has to pay the higher fee. Therefore, the petitioner cannot now turn around and say that in view of the judgment of this Court declaring the provisions of Act and Rules unconstitutional, she will not pay the higher fees. 4. I have considered the rival contentions in detail. 5. Admittedly, the petitioner never challenged the provisions of the Act and the Rules. The petitioner submitted her option for admission in the particular quota prescribed for higher fee category knowing fully well that she is liable to pay higher fee in view of the fact that the income of her family was above Rs. 2,50,000/-, which is the limit prescribed in the Rules. She having obtained admission agreeing to pay the fees, I am not inclined to exercise my discretionary jurisdiction under Article 226 of the Constitution of India in favour of the petitioner to direct the respondents to refund the fee paid by her. In the above circumstances the writ petition is dismissed. Sd/- S. Siri Jagan, Judge. Tds/