IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN MONDAY, THE 28TH FEBRUARY 2011 / 9TH PHALGUNA 1932 WP(C).No. 37066 OF 2008 (K) ------------------------------------- PETITIONERS: ------------------- 1. CHITRA. S., 19 YEARS, LATHIKA MANDIRAM, KALLUMTHAZHAM, KOLLAM. 2. INDU PRIYA, D/O.PADMANABHAN NAIR, 19 YEARS, IDEEVARAM, AMAYENNOOR, KOTTAYAM. BY ADVS. SRI.K.S.MANU (PUNUKKONNOOR) SRI.P.SREEKUMAR RESPONDENTS: --------------------- 1. THE PRINCIPAL GOVERNMENT DENTAL COLLEGE THIRUVANANTHAPURAM. 2. THE PRINCIPAL GOVERNMENT DENTAL COLLEGE, KOTTAYAM. 3. COMMISSIONER OF ENTRANCE EXAMINATION SANTHI NAGAR, THIRUVANANTHAPURAM. 4. PRINCIPAL SECRETARY TO THE HIGHER EDUCATION DEPARTMENT, THIRUVANANTHAPURAM. GOVERNMENT PLEADER : SMT. SUDHA DEVI THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 28/02/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ..2/- W.P (C) No.37066/2008 -2- APPENDIX PETITIONERS' EXHIBITS EXT.P1 - TRUE COPY OF THE RELEVANT PAGES OF PROSPECTUS. EXT.P2 - TRUE COPY OF THE RELEVANT PAGES OF PROSPECTUS. EXT.P3 - TRUE COPY OF THE REQUESTS. EXT.P4 - TRUE COPY OF THE COMMUNICATIONS. EXT.P5 – TRUE COPY OF THE ORDER BY THE 1ST RESPONDENT. RESPONDENTS EXHIBITS NIL // TRUE COPY // P.A. TO JUDGE Amg S. SIRI JAGAN, J. - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No. 37066 OF 2008-K - - - - - - - - - - - - - - - - - - - - - - - Dated this the 28th day of February, 2011 J U D G M E N T Both the petitioners wrote Common Entrance Examination for admission to various Professional courses in the State conducted by the 3rd respondent. Initially, the 1st petitioner got admission in the 1st respondent Dental College in the State merit list. The 2nd petitioner got admission in the 2nd respondent college on the basis of All India Pre- medical Entrance Examination. Both petitioners joined Dental course in the 1st and 2nd respondent colleges respectively. Subsequently, both of them got admission to MBBS course on the basis of their rank in the Kerala Entrance Examination in the Co-operative Medical College, Kochi. They applied for T.C. and original certificates before the respondents 1 and 2. But respondents 1 and 2 insisted on the petitioners paying Rs.1 lakh each as liquidated damages as per Clause 12.2.4 of Ext.P1 prospectus. In view of the urgency, the petitioners were compelled to pay the amount to get the T.C. and original certificates to enable them to join MBBS course. Subsequently, on the ground that W.P.(C)No. 37066 of 2008 -2- they are not liable to pay liquidated damages paid by them, they sought refund of the damages already paid. The same was rejected. It is under the above circumstances the petitioners approached this Court seeking the following reliefs:- “(i) issue a writ of mandamus or any other writ or order or direction, directing the respondents to refund the amount of rupees one lakh each deposited by the petitioners in favour of respondents 1 and 2 within a stipulated time frame. (ii) Declare that the clause 12.2.4 of the Ext.P1 is not applicable to the Petitioners and the Petitioners are entitled to get the refund of Rupees one lakh each collected by the respondents as liquidated damages, from the petitioners.” 2. Respondents 1 and 2 filed counter affidavits, wherein they contend that under clause 12.2.4 of Ext.P1 if the candidate joined another course after closing of admissions in the same academic year or subsequent academic years, the candidate is liable to pay liquidated damage of Rs.1 lakh for MBBS and BDS courses. According to them, the said clauses are applicable to the petitioners and, therefore, they are not entitled to refund the said amount. 3. But the counsel for the petitioners pointed out that by Ext.P5, W.P.(C)No. 37066 of 2008 -3- another student was given refund of the amount by the 1st respondent. Therefore, the petitioners are also entitled to similar refund is the claim of the petitioners. Ext.P5 has been explained in paragraph 4 of the counter affidavit of the 1st respondent thus: “4. Clause 12.2.4 of the prospectus for admission to professional degree courses 2007 of Kerala, specifies that '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 or subsequent academic years to join other courses or for other purposes, he/she is liable to pay a liquidated damages of Rs.1,00,000/- (Rupees one lakh only) for M.B.B.S, B.D.S courses.'” 4. The counsel for the petitioners submits that even assuming the same is correct, the 2nd petitioner also joined the Dental course in the All India quota and therefore the 2nd petitioner is entitled to the same treatment as in Ext.P5. 5. I have considered the rival contentions in detail. As far as the 1st petitioner is concerned, it is not disputed before me that, she is governed by Clause 12.2.4 of Ext.P1 prospectus as far as BDS course is concerned. The said Clause reads as follows: W.P.(C)No. 37066 of 2008 -4- “12.2.4 Levying amount towards liquidated damages from candidates discontinuing their studies: 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 or in subsequent academic 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. The liquidated damages for those discontinuing courses in Government Engineering Colleges will be Rs.25,000/- (Rs.Twenty five thousand only). In all such cases the Transfer Certificate will be issued only after remitting the liquidated damage 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.1,00,000 and who have been submitted income certificate along with the application for admission to Professional Degree courses, 2007 will also be exempted from payment of liquidated damages. Candidates who are transferred from one institution to other as per proceedings of the University concerned are exempted from payment of liquidated damages.'” 6. It is not disputed before me that the 1st petitioner discontinued her studies at the 1st respondent's college after the closing of admissions. That being so, Clause 12.2.4 is squarely attracted, in which case, the 1st petitioner is liable to pay liquidated damage of Rs.1,00,000/-. Therefore, I am not inclined to countenance the claim of W.P.(C)No. 37066 of 2008 -5- the 1st petitioner in this writ petition. 7. But, it is different in the case of the 2nd petitioner. Admittedly, the 2nd petitioner got admission to the BDS course in the All India quota as is admitted in the counter affidavit. Therefore, the 2nd petitioner's case is clearly identical to the candidate involved in Ext.P5 order. Of course, the learned Government Pleader would try to draw a distinction between the candidate in Ext.P5 and the 2nd petitioner by arguing that in the case of the person covered by Ext.P5, he joined MBBS course on higher option and, therefore, the case of the 2nd petitioner is not similar to candidates in Ext.P5. I am not inclined to accept that contention since the 1st respondent admits that the liquidated damages were refunded to the candidate involved in Ext.P5 since there was no specific clause for payment of liquidated damages for candidate who got admission under All India quota and not because the candidate covered by Ext.P5 got MBBS admission on higher option. Therefore, I am satisfied that the case of the 2nd petitioner is identical to the candidate covered by Ext.P5 order. If that be so, if the 2nd petitioner is denied the same benefit as in Ext.P5, that would amount to W.P.(C)No. 37066 of 2008 -6- discrimination. Therefore, I hold that the 2nd petitioner is entitled to refund the Rs.1,00,000/- paid by her as liquidated damages. The said amount shall be refunded by the 2nd respondent, as expeditiously as possible, at any rate, within one month from the date of receipt of a copy of this judgment. The writ petition is disposed of as above. (Sd/-) S. SIRI JAGAN JUDGE //TRUE COPY// P.A. TO JUDGE Amg