IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HON'BLE Ag. CHIEF JUSTICE MRS.MANJULA CHELLUR & THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON FRIDAY, THE 23RD DAY OF DECEMBER 2011/2ND POUSHA 1933 WA.No. 1979 of 2011 ( ) AGAINST THE ORDER/JUDGMENT IN WPC.32463/2011 DATED 07-12-2011 APPELLANT(S) 1. U.JAYASANKAR, S/O.G.UDAYABHANU AGED 19 YEARS, KOUSTHUBHAM, KURAMPALA, PANDALAM P.O., PATHANAMTHITTA DISTRICT-689 501. BY ADV.SRI.P.B.ASOKAN SRI.JOSON JACOB SRI.P.J.UNNIKRISHNAN SRI.P.B.AJOY SRI.R.SRINATH SRI.S.SREEKUMAR (ADUKKATH) SRI.P.KARTHIKEYAN RESPONDENT(S) 1. STATE OF KERALA, REPRESENTED BY THE PRINCIPAL SECRETARY TO GOVERNMENT, DEPARTMENT OF HIGHER EDUCATION, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 011. 2. G.UDAYABHANU, S/O.GOPALAN NAIR, AGED 54 YEARS, KOUSTHUBHAM, KURAMPALA, PANDALAM P.O., PATHANAMTHITTA DISTRICT - 689 501. 3. UNIVERSITY OF KERALA, REPRESENTED BY THE REGISTRAR, SENATE HOUSE CAMPUS, PALAYAM, THIRUVANANTHAPURAM-695 034. 4. ST.THOMAS INSTITUTE OF SCIENCE AND TECHNOLOGY, PROMOTED BY THE MARTHOMA CHURCH EDUCATIONAL SOCIETY, ' REPRESENTED BY ITS PRINCIPAL, MR CHRYSTOSTAM NAGAR, KATTAIKONAM P.O., KAZHAKOOTTAM, THIRUVANANTHAPURAM-695 584. 5. MARTHOMAS CHURCH EDUCATIONAL SOCIETY, REPRESENTED BY ITS SECRETARY P.M.ABARAHAM, ST.THOMAS NAGAR, MUKKOLAKKAL THIRUVANANTHAPURAM-695 044. R1 BY SR.GOVERNMENT PLEADER SMT.K.MEERA SRI.GEORGE POONTHOTTAM,SC,KERALA UTY. THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 23-12-2011 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: MANJULA CHELLUR, Ag.C.J & P.R.RAMACHANDRA MENON, J. ---------------------------------------------- W.A.No. 1979 of 2011 ---------------------------------------------- Dated this the 23rd day of December, 2011 JUDGMENT Ramachandra Menon, J. The unsuccessful writ petitioners are the appellants. The grievance projected before the learned Single Judge was that, pursuant to the discontinuation of the academic course being pursued by the first appellant in the respondent-College, he sought for return of the documents including the Transfer Certificate, which, however, was refused to be acceded, insisting for payment of the liquidated damages as provided in the Prospectus. 2. The first appellant/first writ petitioner joined the College of Engineering, Munnar pursuant to the ranking and allotment for pursuing the studies of B.Tech. Subsequently, he was allotted a seat in the fourth respondent College, run by the the fifth respondent educational society, where he joined on 27.9.2010 paying the prescribed fees and also giving the documents in WA.1979/11 2 original. It remains an admitted fact that the first writ petitioner could not attend the College regularly and had to be absent, allegedly due to some health problems. According to the management, they were not in a position to forward the ame of the student to the University for permitting him to participate in the examinations for shortage of attendance and further, his performance in the internal examination was also poor. Even though the second petitioner, who is the father of the first petitioner, submitted an application for condoning the delay with regard to the absence, the same was not favourably acted upon, which made the writ petitioners to approach the learned Single Judge by filing the Writ Petition seeking for the reliefs, particularly with regard to the return of documents without paying any liquidated damages. There was a simultaneous prayer, to set aside clause 12.2.4(a) of the Prospectus as well, saying that it was unconscionable and cannot be acted upon. 3. The matter was considered by the learned Single Judge and it was observed that the first petitioner joined the course on the basis of the terms and conditions as prescribed in the Prospectus and after securing the admission, the first writ petitioner voluntarily discontinued the course, that too, after WA.1979/11 3 completion of the admissions and as such, the natural consequences as stipulated in the prospectus have to follow. The challenge raised in the Writ Petition was held as unsustainable and interference was declined, dismissing the Writ Petition, which is under challenge in this appeal. 4. Learned counsel for the appellants submits that the stand taken by the learned Single Judge is not correct or proper and that no loss or damage has actually been caused to the College so as to sustain the implications of clause 12.2.4(a) of the Prospectus to claim the liquidated damages. Learned counsel also submits that the course pursued by the respondents is contrary to the relevant provisions of the Indian Contract Act as well. 5. After hearing the learned counsel for the appellants at length, we find that the admission given to the first appellant was not pursuant to any contract, but in accordance with the clear terms of Exhibit P8 Prospectus. It was agreeing to the relevant clauses and conditions therein, that the application was submitted which was accepted which was accepted and a seat was allotted to the first appellant. It is also the admitted case of the appellants, that the first appellant could not continue the course, that he was absent for quite some time and further that he sought WA.1979/11 4 to have the documents returned by issuing the Transfer Certificate, pursuant to the discontinuation of the course as aforesaid. The relevant clause as contained in the Prospectus, which has been produced as Exhibit P8, reads as follows: “12.2.4(a) Levying amount towards liquidated damages from candidates discontinuing their studies: (i) If any candidate admitted against 'Government' seats in Government/Aided/Self-financing Colleges, discontinues the studies after the closing of admissions in the same academic year, to join other Courses/Colleges or for other purposes, he/she is liable to pay a liquidated damages of Rs.1,50,000/- (Rupees one lakh fifty thousand only) for MBBS, BDS courses and Rs.75,000/- (Rupees seventy five thousand only) for other courses. The liquidated damages for those candidates discontinuing courses in Government Engineering Colleges will be Rs.50,000/- (Rupees seventy five thousand only). In all such cases the Transfer Certificate will be issued only after remitting the liquidated damages to the authority concerned. Candidates belonging to SC/ST/OEC are exempted from this rule. Candidates belonging to 'Keralite' category, as per Clause 6.1(i), whose annual family income is below Rs.75,000/- and who have submitted Income Certificate along with the application for admission to Professional Degree Courses 2010 will also be exempted from payment of liquidated damages. Candidates who are transferred from one institution to another as per WA.1979/11 5 proceedings of the University concerned are exempted from payment of liquidated damages. 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. (ii) The candidates admitted against Management seats in Self financing colleges under Govt. control, on discontinuance of course after the closing of admissions in the same academic year, are liable to pay liquidated damages of Rs.1,50,000/- for MBBS, BDS courses and Rs.75,000/- for other Medical/Engineering courses, irrespective of annual family income/nativity/reservation status. (b) On discontinuance of a course after the first academic year liquidated damages shall be collected in the following manner: (i) For Government seats in Government/Aided Colleges, liquidated damages shall be levied as in Clause 12.2.4(a)(i) above. (ii) For Government seats in Private Self-financing/ Government controlled self-financing colleges, liquidated damages shall be levied either as in Clause 12.2.4(a)(i) above or fees for remaining years, whichever is higher. (iii) For Management seats in Government controlled Self-financing colleges, fee for the remaining years of study will be levied as liquidated damages. (c) Penalty for Filing/Retaining unnecessary options: Candidates who file/retain unnecessary options, but do not take admission on allotment to the Course/College during the final phase of allotment WA.1979/11 6 to a course as notified by the CEE resulting in Government seats to lapse, will be penalized. They will be liable to pay penalty of Rs.1,50,000/- for MBBS/BDS course and Rs.50,000/- for all other courses irrespective of annual family income. Their candidature is also liable to be cancelled. In case of failure to remit the penalty, the same is liable to be recovered under the Revenue Recovery Act.” 6. On going through the contents of the said clause, it does not say that the right of the institution to get the liquidated damages is subject to proof as to the loss or damage/prejudice caused to the institution. There is absolutely no such stipulation and there is no obligation on the part of the respondent-institution to prove any such aspect. The clause clearly says that, once the admission date is over and the candidate discontinues the course after closure of the admission, it is obligatory on the part of the candidate, who leaves the institution, to pay the liquidated damages. There is no question of computation of damages also, for the obvious reason that the quantum payable is clearly stipulated and taken care of by the very same clause. In the above circumstances, no fact of adjudication is thus warranted nor is there any infringement of law. The appellants cannot escape from the consequences to follow, in view of the WA.1979/11 7 admitted failure on the part of the candidate with regard to the discontinuation of the course after closure of the admissions. We find no merit in the Writ Appeal and the same is dismissed accordingly. MANJULA CHELLUR, ACTING CHIEF JUSTICE P.R.RAMACHANDRA MENON, JUDGE vgs