IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE KURIAN JOSEPH FRIDAY, THE 29TH AUGUST 2008 / 7TH BHADRA 1930 WP(C).No. 28487 of 2005(N) ----------------------------------------- PETITIONER: --------------------- A.SHRUTHI, R/O."SHURTHI", NEAR SIVAN KOVIL , PIRAYIRI P.O., PALAKKAD-678019. BY ADV. SMT.K.GIRIJA RESPONDENTS: ------------------------- 1. STATE OF KERALA, REPRESENTED BY THE COMMISSIONER OF ENTRANCE EXAMINATINS, KSHB BUILDINGS, SHANTHI NAGAR, TRIVANDRUM. 2. DIRECTOR OF MEDICAL EDUCATION, TRIVANDRUM. 3. THE PRINCIPAL, GOVERNMENT DENTAL COLLEGE, CALICUT. BY GOVERNMENT PLEADER SRI.NOBLE MATHEW - R1 TO 3 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 29/08/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.28487/2005 N APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE HIGHER OPTION FORM SUBMITTED BY THE PETITIONER. EXT.P2: COPY OF THE INTERIM ORDER DTD. 30/09/2005 OF THIS HONOURABLE COURT IN WP(C) NO.27882/2005 T. EXT.P3: COPY OF THE RECEIPT DTD. 30/09/2005 FOR RS.1,13,000/- ISSUED BY THE COUNSEL FOR GOKULAM MEDICAL COLLEGE AND RESEARCH FOUNDATION, TRIVANDRUM, TO THE PETITIONER. EXT.P4: COPY OF THE TELEGRAM DTD. 30/09/2005 SENT BY THE PETITIONER TO THE PRINCIPAL, GOVERNMENT DENTAL COLLEGE, KOZHIKODE. EXT.P4(A): COPY OF THE RECEIPT DTD. 30/09/2005 ISSUED BY THE POSTAL DEPARTMENT TO THE PETITIONER. EXT.P5: COPY OF THE EXTRACTS OF CENTRALIZED ALLOTMENT PROCESS (CAP) FOR ADMISSION TO PROFESSIONAL DEGREE COURSES-2005 KERALA. RESPONDENT'S EXHIBITS: N I L /TRUE COPY/ P.S.TO JUDGE Kss KURIAN JOSEPH, J. ----------------------------------------- W.P(C) No.28487 of 2005 ----------------------------------------- Dated this the 29th day of August, 2008 JUDGMENT Petitioner is aggrieved since she has been directed to pay an amount of Rs.1 lakh as liquidated damages and since the respondents have denied refund of Rs.12,225/-. Petitioner secured rank No.1001 in the Common Entrance Test for admission to professional colleges in the academic year 2005-06. In the first allotment petitioner was offered a seat in Government Dental College, Kottayam and she joined there on 29-8-2005. On 28-9-2005 petitioner was transferred to Government Dental College, Kozhikode. At the Government Dental College, Kottayam an amount of Rs.12,225/- was collected towards fees. 30-9-2005 was the last date for admission to the Medical Colleges and for closing the admissions. According to the petitioner she was eligible to get admission in the Sree Gokulam Medical College and Research Foundation, Trivandrum. She filed W.P(C)No.27882/2005 and as per Ext.P2 order it was made clear W.P(C) No.28487 of 2005 -:2:- that in case there was vacant seat in the said College as on 30-9- 2005, the petitioner was directed to be admitted in the College. It is to be noted that the first respondent is the first respondent in Ext.P2 also. As directed in Ext.P2, since nobody else turned up in the College for admission before 5 p.m. on 30-9-2005 petitioner was admitted in the said College and she paid an amount of Rs.1,13,000/- as permitted and directed in Ext.P2 order. When she approached the respondents for releasing the transfer certificate, she was directed to pay an amount of Rs.1 lakh towards liquidated damages based on the condition stated in clause 12.2.4 in Ext.P5 prospectus. To the extent relevant the condition reads as follows:- “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.” It is fairly clear that only in case a candidate who has secured admission against 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 is liable to pay the liquidated damages to the tune W.P(C) No.28487 of 2005 -:3:- of Rs.1 lakh. In the instant case the closure of the admission in Medical Colleges was on 30-9-2005. It is fairly clear from Ext.P2 order and Ext.P3 receipt showing the payment of fees that the petitioner has discontinued the study in the Government Dental College before the closing of admissions. In this context it is also profitable to refer to the stand taken by the respondents in the counter affidavit wherein at paragraph 4 it is stated that the requests for cancellation of admission in the State merit seats were entertained till 5 p.m. on 30-9-2005. It is further stated that “If the petitioner had cancelled her admission on or before 30-9-2005, she would be eligible for refund of fees remitted at the time of allotment. Further she would not be liable to pay liquidated damages.” Cancellation of admission is not what is contemplated in Ext.P5 prospectus. Be that as it may, if the discontinuance is with notice to the first respondent and if the discontinuance is before 30-9-2005, the candidate was not liable to pay the liquidated damages and that the candidate would be entitled to refund of the fees remitted also. As can be seen from Ext.P2 order wherein the first respondent is also a party, the whole thing has to be worked out on 30-9-2005 itself and yet it is seen that the petitioner has sent a telegram by Ext.P4 intimating W.P(C) No.28487 of 2005 -:4:- the Principal that the petitioner was being admitted on 30-9-2005 in the Medical College as per Ext.P2 direction. In view of the above position taken in the counter affidavit also, the petitioner is not liable to pay the liquidated damages since the discontinuance is upon notice and since the discontinuance is not after the closure of the admissions. By the very fact that the petitioner has to be treated as admitted in Sree Gokulam Medical College on 30-9-2005 as per Ext.P2 it is clear that the petitioner has not discontinued her studies in Government Dental College, Kozhikode after the closure of the admission, namely 30-9-2005. In the above circumstances the writ petition is allowed with a direction to the respondents to refund to the petitioner the amount of Rs.1,00,000/-deposited pursuant to the interim order dated 6-10-2005 and also refund the amount of Rs.12,225/- collected by way of fees while joining the Government Dental College, Kottayam within a period of two months from the date of production of a copy of the judgment. (KURIAN JOSEPH, JUDGE) ahg. KURIAN JOSEPH, J. ----------------------------------- W.P(C).No.28487 of 2005 ----------------------------------- JUDGMENT 29th August, 2008