IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC THURSDAY, THE 1ST OCTOBER 2009 / 9TH ASWINA 1931 WP(C).No. 35859 of 2007(R) -------------------------- PETITIONER(S): --------------- MANAGING PARTNER,WEST FORT ACADEMY FOR HIGHER EDUCATION (WAHE), WEST FORT COLLEGE OF NURSING, POTTORE, M.G.KAVU, TRICHUR 680 581. BY ADV. SRI.MILLU DANDAPANI RESPONDENT(S): --------------- 1. ADMISSION SUPERVISORY COMMITTE FOR PROFESSIONAL COLLEGES, REPRESENTED BY ITS MEMBER SECRETARY, RAM MOHAN PALACE,OLD HIGH COURT BUILDING, HALL NO. VIII, ERNAKULAM, COCHIN 682031. 2. JITHIN K.JAIN, S/O. SRI, K.V.JAIN KOLLARA HOUSE, EDAMUTTOM POST, TRICHUR-680 568. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 01/10/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC NO.35859/2007 APPENDIX PETITIONER'S EXHIBITS P1 : COPY OF NTOICE NO.ASC(P)9/07 DATED 28/04/07 ISSUED BY R1. P2 : COPY OF COMPLAINT DATED 13/03/2007 LODGED BY 2ND RESPONDENT. P3 : COPY OF OBJECTION DATED 01/06/07 PREFERRED BY PETITIONER BEFORE THE 2ND RESPONDENT. P4 : COPY OF NOTICE DATED 22/10/2007 ISSUED BY R1. P5 : COPY OF INTERIM ORDER DATED 19/11/2007 OF THIS HONOURABLE COURT IN WP(C) NO.33964/2007-R. P6 : COPY OF CLAUSE 12.2.4 OF THE PROSPECTUS FOR ADMISSION TO PROFESSIONAL DEGREE COURSES 2006, KERALA. //TRUE COPY// PA TO JUDGE. jg ANTONY DOMINIC, J. ------------------ WP(C) No.35859 of 2007 -------------------------- Dated, this the 1st day of October, 2009 ------------------------------ J U D G M E N T Although, notice in this writ petition has been served, there is no representation on behalf of respondents 1 & 2. 2. The petitioner has established a Self Financing Nursing College. In this writ petition, what they are challenging is Ext.P4, an order passed by the 1st respondent. 3. Briefly stated, the facts of the case are that, in the academic year 2006-07, the 2nd respondent was admitted in the Nursing College of the petitioner for B.Sc Nursing Course, on being included in the rank list prepared by the Controller of Entrance Examinations. Going by the averments, the course commenced on 01/11/2006 and the admissions were closed on 24/11/2006. Subsequently, apparently for the reason that the Controller of Entrance Examinations had reallotted to another College, he applied for Transfer Certificate, which issued by the petitioner on 27/01/2007. Thereupon, he applied for refund of the fee paid and WP(C) No.35859/2007 -2- refund was made after deducting an amount of Rs.61,400/-. Thereupon, the 2nd respondent filed Ext.P2 complaint before the 1st respondent praying to direct the petitioner to refund the full amount remitted. Cognizance of the complaint was taken, and Ext.P1 notice was issued by the 1st respondent. The petitioner filed its objection. But, however, by Ext.P4 dated 22/10/2007, the 1st respondent directed the petitioner to refund the full amount. It is thereupon that this writ petition is filed. 4. Contention raised by the learned counsel for the petitioner is that going by the provisions of the prospectus, though the petitioner was entitled to withhold the full amount of fee in terms of Clause 12.2.3 and also liquidated damages in terms of Clause 12.2.4, still without realising the full amount, the balance amount was refunded. Further, it is also stated that the 1st respondent has proceeded on the basis that the seat vacated by the 2nd respondent was filled up by admitting another candidate, and that therefore, the petitioner did not suffer any monetary loss. Referring to the averments in the affidavit filed in support of I.A.No.16878 of 2007, the learned counsel submits that his factual WP(C) No.35859/2007 -3- assumption is wrong. On this basis, the petitioner prays that Ext.P4 be set aside. 5. The relevant Clauses of Ext.P6, the extract of Prospectus for Admission to Provisional Degree Courses, 2006 Kerala are 12.2.3 and 12.2.4, where it is stated that no refund of fee will be made to candidates, who applied for Transfer Certificate after the last date of cancellation of admissions notified by the Controller of Entrance Examinations, and that if any candidate admitted against the Government Seats, 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.50,000/- (Rupees fifty thousand only). The candidates who sought admission on the strength of the aforesaid prospectus are bound by the terms of the prospectus, and if that be so, the petitioner is entitled to realise the amount as provided in the provisions of the prospectus. 6. Secondly, in Ext.P4, it is stated by the 1st respondent that there is no denial of the fact that another student was admitted in the vacancy of the 2nd respondent, who left the college. The WP(C) No.35859/2007 -4- affidavit filed in support of I.A.No.16878 of 2007 discloses that as on 25/01/2007 there were 50 students, and that after Transfer Certificate was issued to the 2nd respondent, as on 28/01/2007 the strength was only 49. It is stated that the vacancy of the 2nd respondent was intimated to the Controller of Entrance Examinations vide letter dated 03/02/2007, and that, no student was allotted and that the seat was remaining vacant since then. This averment is not controverted. If this be the factual position, the assumption of the 1st respondent that the seat vacated by the 2nd respondent was filled up by another candidate is factually erroneous. 7. For the aforesaid reasons, I cannot sustain Ext.P4, and therefore, Ext.P4 is set aside. This writ petition is disposed of as above. (ANTONY DOMINIC, JUDGE) jg