IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN FRIDAY, THE 17TH JULY 2009 / 26TH ASHADHA 1931 WP(C).No. 13872 of 2006(B) --------------------------------------- PETITIONER: ------------------- ANOOP.V, PUTNENPURAKKAL, THENGAMOM EAST.P.O, PATHANAMTHITTA DISTRICT. BY ADV. MR.D.KISHORE. RESPONDENTS: ------------------------ 1. STATE OF KERALA, REPRESENTED BY ITS SECRETARY, EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE COMMISSIONER FOR ENTRANCE EXAMINATIONS, THIRUVANANTHAPURAM. 3. THE DIRECTOR OF TECHNICAL EDUCATION, THIRUVANANTHAPURAM. 4. THE DIRECTOR, SCMS SCHOOL OF TECHNOLOGY AND MANAGEMENT (MCA), SCMS CAMPUS, MUTTOM, ERNAKULAM-683106. *ADDL.R5: 5. ALL INDIA COUNCIL FOR TECHNICAL EDUCATION, INDIRA GANDHI SPORTS COMPLEX, I.P. ESTATE, NEW DELHI – 110 002. *ADDL. 5TH RESPONDENT IS IMPLEADED AS PER ORDER DATED 25/06/08 IN I.A. 7806/08. R1 TO R3 BY GOVT. PLEADER MR. ARAVINDAKUMAR BABU T.K, R4 BY MR.K.P.DANDAPANI, SENIOR ADVOCATE, THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 17/07/2009,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.13872/2006-B: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE RECEIPT DTD. 02/09/05 EVIDENCING THE PAYMENT OF RS.25,000/-. EXT.P.2: COPY OF THE RECEIPT DTD. 06/09/05 EVIDENCING THE PAYMENT OF RS.40,000/-. EXT.P.3: COPY OF THE JUDGMENT DTD. 08/03/2006 IN W.P.(C).24564/05. EXT.P.4: COPY OF THE ORDER NO. CEE/484/2005/TA 2 DTD. 26/04/06 OF R.2. EXT.P.5: COPY OF THE INTIMATION EVIDENCING THE JOINING OF PETITIONER IN M.A. COLLEGE. EXT.P.6: COPY OF THE NEWS ITEM PUBLISHED IN MATHRUBHOOMI DAILY DTD. 14/03/2008. EXT.P.7: COPY OF THE NOTICE DTD. 09/05/08 ISSUED BY SENIOR MANAGER, CANARA BANK. RESPONDENTS' EXHIBITS: NIL. //TRUE COPY// P.S. TO JUDGE. Prv. V.K.MOHANAN, J. ---------------------------------------- W.P.C. No.13872 OF 2006 ---------------------------------------- Dated, 17th day of July, 2009 JUDGMENT The petitioner, who is now studying for MCA, in a government quota seat, in the M.A.College of Engineering, Kothamangalam, approached this court by preferring this writ petition praying inter alia to issue a writ of mandamus or any other appropriate writ, direction or order directing the 4th respondent to refund the fee of Rs.20,750/- collected for the 2nd semester as well as the caution deposit amount of Rs.10,000/- to the petitioner. 2. The case of the petitioner is that originally he had appeared for the entrance examination conducted by the 2nd/3rd respondents to MCA course Kerala in the year, 2005 and he had got Rank No.100 which makes him eligible to get a seat in the government quota. But he could not produce the original sixth semester mark list at the time of counselling and the petitioner WPC 13872/06 -:2:- was not considered for selection. On sanction and allotment of new seats, option was invited and based upon option of the petitioner, he was allotted to the SCMS School of Technology and Management. Thus the petitioner was admitted and joined in the said institution. For the purpose of education, he had availed education loan from Canara Bank, Adoor to pay the tuition fee and other fees to the 4th respondent. Thus he had paid Rs.10,000/- as caution deposit and Rs.38,500/- as fee for two semester and Rs.16,500/- as Special fees. Exs.P1 and P2 are the receipts. 3. Though the petitioner was selected in the Government Quota, he had failed to produce the 6th semester mark list during the time of counseling which was scheduled on 3.8.2005 and therefore no admission was given to him in any of the seat coming under government quota. Thus aggrieved by the denial of seat on the above ground, the petitioner approached this Court by filing WPC No. 24564/2005. This court, vide Ext.P3 WPC 13872/06 -:3:- judgment dated 8.3.2006, directed the respondents therein to give the petitioner transfer to one of the colleges, where there was vacant seat in the Government quota of the petitioner's choice. On the basis of the above direction issued by this court as per Ext.P3, the Commissioner for Entrance Examinations issued Ext.P4 order whereby the direction issued by this Court vide Ext.P3 judgment was fully complied with and accordingly, the Commissioner for Entrance Examination directed the Principal of M.A.College of Engineering, Kothamangalam to admit the candidate after collecting fees as per rules and verifying original records. Thus he was transferred to M.A.College of Engineering, Kothamangalam and he is pursuing his studies in that college. Ext.P5 would show that the petitioner joined in the M.A.College of Engineering, Kothamangalam on 4.5.2006. According to the petitioner, he is entitled to get back the caution deposit of Rs.10,000/-, half of the tuition fees and half of the Special fees, and thus according to him, he is WPC 13872/06 -:4:- entitled to get refund of a sum of Rs.30,750/- from the 4th respondent. Therefore, he approached this Court. 4. On behalf of the 4th respondent, a statement is seen filed. As per the said statement, the candidate who got admission in their college has to deposit necessary fees under various heads. According to them, the petitioner was relieved from their college on 3.5.2006 and all the certificates were given to him. They have admitted that an amount of Rs.30,000/- was retained as liquidated damage applicable for students who leave the course after the closure of admissions. Thus as per the above statement, the stand of the 4th respondent is justified on the basis of the provisions of the prospectus. Along with the statement, they have produced extract of the prospectus which contains provisions of Clause 4 of the prospectus. Ext.R4(a) is the extract of Clause 4(c) of the prospectus which says: “(c) If any candidate discontinues/leaves the institution after the closing of admissions in the same year or in subsequent years to join other courses or WPC 13872/06 -:5:- for other purpose he/she is liable to pay a liquidated damage of Rs.30,000/-. Candidates belonging to SC/ST/OEC are exempted from payment of such liquidated damage”. According to the 4th respondent, the petitioner was aware of the above clause and therefore, he is not entitled to claim refund of the amount. 5. I have heard the learned counsel for the petitioner as well as the counsel for the 4th respondent and also the learned Government Pleader. 6. It is a fact that the petitioner had secured rank No.100 in the common entrance examination conducted by the 2nd/3rd respondent and he was not selected to the Government College because the petitioner failed to produce 6th semester mark list during the time of the counseling. However, on the basis of the option submitted by the petitioner, he was allotted to the institution of 4th respondent. The petitioner had approached this Court with a prayer to direct the 2nd respondent to admit him in any of the Government colleges or in any seat in the government quota allotted to any college. Thus, this Court issued Ext.P3 order. It is WPC 13872/06 -:6:- under the circumstances, this Court directed the 2nd respondent to give the petitioner transfer to one of the colleges, where there was vacancy in the government quota, of the petitioner's choice. It is the above direction implemented by the 2nd respondent as per Ext.P4 order. From the above , it can be seen that at the intervention of this Court, for the purpose of giving admission to the petitioner in the M.A.College of Engineering, Kothamangalam, he was relieved from the college of the 4th respondent. The counsel for the petitioner, on the strength of Ext.P6, submitted that the 4th respondent has no authority to realise liquidated damage. Ext.P6 is not controverted. It is also relevant to note that the prospectus not only saying about clause IV(c) but also other aspects including the admission date and closing etc. But it is pertinent to note that it is through the intervention of this Court, the 2nd respondent was directed to give admission to any of the Government seats at the option of the petitioner. Consequently, Ext.P4 order was issued, pursuant to which , the petitioner was relieved from the institution of the 4th respondent and admitted in the M.A.College of Engineering, Kothamangalam. Therefore, 4th the respondent cannot claim overriding effect of Ext.R4(A) prospectus, over the direction issued by this court as per Ext.P3 WPC 13872/06 -:7:- judgment and cannot enforce clause 4(c) of Ext.R4(A) prospectus. It is also relevant to note that in Ext.P4, the 2nd respondent has also directed the 4th respondent to refund the fees collected from the petitioner. So far, Ext.P4 has not been challenged by the 4th respondent. The petitioner belongs to socially and economically backward community and he had availed loan from a bank for educational purpose and as evidenced by Ext.P7 and the financial institution is just behind the petitioner for recovering the loan arrears. Therefore, the stand of 4th respondent denying the request of the petitioner for refund of the fee, is highly arbitrary and illegal. In the result, the 4th respondent is directed to repay a sum of Rs.30750/- to the petitioner forthwith. The writ petition is allowed to that extent. V.K.MOHANAN, JUDGE kvm/- WPC 13872/06 -:8:- V.K.MOHANAN, J. O.P.No. JUDGMENT Dated:..