IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN FRIDAY, THE 16TH JULY 2010 / 25TH ASHADHA 1932 WP(C).No. 38106 of 2003(J) ------------------------------------ PETITIONER(S): ------------------------ RINCY THOMAS, D/O. MR. T.V. THOMAS, AGED 19 YEARS, RINCY VILLA, THIRUVANVANDOOR, CHENGANNUR. BY ADV. SRI.T.S.JOHN SRI.M.S.RADHAKRISHNAN NAIR RESPONDENT(S): -------------------------- 1. STATE OF KARALA, REPRESENTED BY THE CHIEF SECRETARY, SECRETARIAT, THIRUVANANTHAPURAM. 2. COMMISSIONER OF ENTRANCE EXAMINATIONS, SANTHI NAGAR, THIRUVANANTHAPURAM-695 001. 3. PRINCIPAL, AMEL JYUOTHI COLLEGE OF ENGINEERING, KANJIRAPPALLY. 4. THE PRINCIPAL SECRETARY, HIGHER EDUCATION, THIRUVANANTHAPURAM. R1 & R2 BY GOVT. PLEADER SMT.SMITHA SUKUMAR R3 BY SRI.KURIAN GEORGE KANNANTHANAM, SENIOR ADVOCATE THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 16/07/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.38106/2003 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE RECEIPT DTD. 22.7.02. P2:-COPY OF THE RECEIPT DTD. 2.11.02. P2(a):- COPY OF THE RECEIPT DTD. 2.11.02. P3:- COPY OF THE RELEVENT OF THE PROSPECTUS. P4:- COPY OF THE REPRESENTATION DTD. 27.11.2002 SENT TO THE 4TH RESPONDENT. TRUE COPY P.A. TO JUDGE tss S. SIRI JAGAN, J. - - - - - - - - - - - - - - - - - - - - - - - W.P.(C)No. 38106 of 2003 - - - - - - - - - - - - - - - - - - - - - - - Dated this the 16th day of July, 2010 J U D G M E N T The petitioner is a student who got admission to Engineering course in the 3rd respondent's college in the year 2002. According to the petitioner, the petitioner joined the college in September 2002 and the classes started on 11.10.2002. Petitioner would contend that before the admissions closed for the year on 31.10.2002, petitioner got admission to the Pushpagiri Medical College, Thiruvalla and got relieved from the 3rd respondent's college to join the Pushpagiri Medical College. But as a condition for issue of Transfer Certificate, the 3rd respondent insisted on the petitioner paying the tuition fee for the entire course and accordingly the petitioner paid Rs.2 lakhs as evidenced by Exts.P2 & P2 (a) receipts. Petitioner's grievance now is that, although as per the prospectus applicable the W.P.(C)No. 38106 of 2003 -2- petitioner was not legally bound to pay the same, the petitioner was forced to pay the same for getting the Transfer Certificate and had the petitioner not paid the same, petitioner would not have been give the Transfer Certificate so as to enable the petitioner to join the Pushpagiri Medical College. Petitioner would further submit that, since the petitioner got admission to the 3rd respondent's college in a payment seat she had to make a deposit of Rs.1,50,000/- which also the 3rd respondent is liable to refund after four years as per the prospectus which also has not been done by the 3rd respondent. Petitioner has therefore filed this writ petition seeking the following reliefs: “(i) to issue a writ of mandamus or any other writ, or direction directing the 3rd respondent to pay back the whole amount paid for four years as tuition fee as per Exhibit P2 and Exhibit P2 (a) to the petitioner. (ii) to issue a writ of mandamus or any other appropriate writ, order or direction directing the 2nd respondent to pay back the amount paid as deposit in payment seat as per Exhibit P1 to the petitioner. (iii) to issue a writ of certiorari or any other writ, order or direction declaring that Exhibit P3 clause 13.6.4. in the prospectus for admission to professional Degree courses as unconstitutional and strike down the clause as it is an W.P.(C)No. 38106 of 2003 -3- unreasonable restriction to the petitioner and the like students from joining any other institutions.” 2. A statement has been filed by the 3rd respondent wherein they have taken the stand that, the petitioner filed a request for a Transfer Certificate on 07.11.2002 and the Transfer Certificate was issued to the petitioner on 02.12.2002. Therefore the petitioner discontinued the studies from the 3rd respondent's college only after the last date fixed for admissions, namely 31.10.2002. The learned counsel for the 3rd respondent further submits that, the free deposit was made by the petitioner before the Commissioner of Entrance Examinations and only if that amount was transferred to the 3rd respondent, the 3rd respondent is liable to refund the same. He also contends that, the amount covered by Ext.P2 receipt was paid by cheque which was dishonoured and therefore that payment was not received at all. It is also submitted that even if the 3rd respondent has received the free deposit of Rs.1,50,000/- from the Commissioner of Entrance Examinations, that can W.P.(C)No. 38106 of 2003 -4- be returned only after adjusting the amount covered by Ext.P2 receipt, which was not received by the 3rd respondent at all. 3. I have considered the rival contentions in detail. The petitioner herself has quoted the relevant clauses in the admission prospectus as Ext.P3 which read as under: “13.6.4. In the case of payment seats, if any candidate discontinues /leaves the institution after the closing of admission in the first year or in the subsequent years, he/she is liable to pay the tuition fee for the remaining years. In such cases, transfer certificate will be issued only after the payment of the tuition fee of the remaining years. The interest free deposit will be returned after four years, adjusting the dues, if any, towards the tuition fee of the remaining years. 13.6.5. Levying amount towards liquidated damages from discontinuing candidates: In the case of free seats, if any candidate discontinues the studies after the closing of admissions in the same year or in subsequent years to join other courses or for other purposes, he/she is liable to pay a liquidated damage of Rs.1,00,000/- (Rupees One lakh only) for MBBS, BDS courses and Rs.50,000/- (Rupees fifty thousand only) for other courses. In such cases the Transfer Certificate will be issued only after remitting the liquidated damage to the authority concerned. Candidates belonging to SC/ST and converts from SCs are exempted from this rule. Candidates who are transferred from one institution to other as per proceedings of the university concerned are exempted from payment of liquidated damages.” 4. For the petitioner to become eligible for refund of the amount paid towards fees, petitioner should first prove W.P.(C)No. 38106 of 2003 -5- that she discontinued the studies from the 3rd respondent's college before the date of closing of admissions, namely 31.10.2002. In the writ petition, the petitioner has not stated as to the exact date when the petitioner discontinued her studies. But 3rd respondent has in his statement specifically stated that petitioner had filed a request for Transfer Certificate only on 07.11.2002 and the Transfer Certificate was issued to her on 02.12.2002. The 3rd respondent has also handed over to me a copy of the request filed by the petitioner for transfer certificate which is dated 07.11.2202 and reads thus: “As I have got admission in Pushpagiri Institute of Medical Sciences, Thiruvalla, I kindly request the return of my original certificates handed over on the date of admission (1/10/2002), and issue of Transfer Certificate.” The 3rd respondent has also produced a copy of the Transfer Certificate dated 02.12.2002 issued to the petitioner. From the same, it is clear that, the petitioner intimated the 3rd respondent that she is discontinuing the studies in the 3rd respondent's college only by letter dated 07.11.2002, which is after the closing of admission on W.P.(C)No. 38106 of 2003 -6- 31.10.2002. Therefore going by Ext.P3 clauses in the admission prospectus the petitioner is not entitled to refund of the fee paid. But of course if the petitioner had paid the free deposit to the Commissioner of Entrance Examinations and he has forwarded the same to the 3rd respondent's college, the 3rd respondent is liable to refund that amount after adjusting the tuition fee if any due. As I have already stated the amount covered by Ext.P2 has not been paid to the 3rd respondent since the cheque issued has been dishonoured, which the petitioner does not dispute. Therefore if the 3rd respondent has in fact received Rs.1,50,000/- free deposit from the Commissioner of Entrance Examinations, the amount of Rs.1,00,000/- therefrom shall be refunded to the petitioner. The writ petition is disposed of as above. S. SIRI JAGAN JUDGE shg/