IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC FRIDAY, THE 9TH DECEMBER 2011 / 18TH AGRAHAYANA 1933 WP(C).No. 15844 of 2011(E) -------------------------- PETITIONER: ------------------ DR. APPU CYRIAC, CIVIL SURGEON, COMMUNITY HEALTH CENTRE, NJARAKKAL, ERNAKULAM. BY ADV. SRI.KURIAN GEORGE KANNANTHANAM, SENIOR ADVOCATE SRI.THOMAS GEORGE RESPONDENT(S): ------------------------- 1. THE DIRECTOR OF MEDICAL EDUCATION, DIRECTORATE OF MEDICAL EDUCATION, THIRUVANANTHAPURAM-695 011. 2. THE SECRETARY TO GOVERNMENT, HEALTH AND FAMILY WELFARE DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM-695 001. 3. THE PRINCIPAL, MEDICAL COLLEGE, KOTTAYAM. R1, R2 AND R3 BYGOVERNMENT PLEADERSHRI JOSEPH GEORGE THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 09/12/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: KVS WP(C).No. 15844 of 2011(E) APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE PROSPEROUS FOR PG MEDICAL ADMISSION P2: COPY OF THE SELECTION MEMO DATED 22.04.2010 P3: COPY OF ADMIT CARD DATED 26.04.2010 P4: COPY OF FEES RECEIPT FOR RS.44,414/- DATED 26.04.2010 P5: COPY OF ORDER DATED 19.07.2010 OF THE HON'BLE SUPREME COURT P6: COPY OF THE NOTIFICATION DATED 22.07.2010 ISSUED BY 1ST RESPONDENT'S P7: COPY OF THE REPRESENTATION OF THE PETITIONER DATED 23.07.2010 P8: COPY OF THE PROCEEDINGS OF THE 3RDRESPONDENT DATED 23.07.2010 P9: COPY OF THE RECEIPT DATED 23.07.2010 FOR RS.5,00,000/- P10: COPY OF THE VACANCY POSITION LIST AS ON 23.07.2010 P11: COPY OF THE NOTIFICATION DATED 24.07.2010 ISSUED BY 1ST RESPONDENT P12: COPY OF THE REVISED VACANCY LIST AS ON 24.07.2010 P13: COPY OF THE REPRESENTATION OF THE PETITIONER DATED 24.07.2010 P14: COPY OF THE AWARD CONFERRED ON THE PETITIONER P15: COPY OF THE LETTER DATED 01.12.2010 ISSUED BY THE 1ST RESPONDENT P16: COPY OF THE REPRESENTATION 27.12.2010 BEFORE THE HEALTH MINISTER P17: COPY OF THE REPRESENTATION DATED 27.12.2010 BEFORE THE 2ND RESPONDENT P18: COPY OF THE LETTER DATED 04.03.2011 ISSUED BY THE 2ND RESPONDENT DATED THIS THE 13TH DAY OF JUNE, 2011 RESPONDENT'S EXHIBITS: NIL /TRUE COPY/ PA TO JUDGE SKV ANTONY DOMINIC, J ....................................................... W.P.(C).15844/2011 .............................................. Dated this the 9th day of December, 2011 JUDGMENT Petitioner is a Civil Surgeon. In the Difficult Rural Service Quota, petitioner secured admission for MS ENT for the academic year 2010-11. Accordingly, he was allotted to the Medical College Hospital, Kottayam, where the petitioner paid the fee and joined the Course. Subsequently, on 23.7.2010, petitioner made Ext.P7 representation to the Principal requesting that he be permitted to discontinue the Course. 2. Ext.P1 is the prospectus conditions, which inter alia provides as follows:- If a Post Graduate student discontinues the P.G Course after the final Centralised allotment process he/she shall pay Rs.5 Lakhs/- as Liquidated Damages and also refund the stipend/Salary already received. 3. In satisfaction of the said conditions of the prospectus, petitioner remitted Rs.5 Lakhs a per Ext.P9 receipt dated 23.7.2010. Accordingly the Principal issued Ext.P8 order of the W.P.(C).15844/11 2 same date permitting the petitioner to discontinue the Course. 4. It appears that in the meantime, pursuant to Ext.P2, the order passed by the Apex Court, Exts.P6, P10 and P12 notifications were issued by the respondents for filling up the vacancies in the Medical Colleges including the seat vacated by the petitioner. Accordingly, rank lists were published on 23.7.2010 and 24.7.2010 and another student was admitted in the seat in question on 26.7.2010. 5. Coming to know of this, petitioner submitted Ext.P13 representation to the Government of Kerala for refund of the liquidated damages of Rs.5 Lakhs remitted by him as per Ext.P9. That request of the petitioner was rejected by Ext.P15 order dated 1.12.2010, stating that the request is against the Rules. Further representation made was also rejected as per Ext.P18. It is in these circumstances the writ petition is filed mainly praying for quashing Exts.P15 and P18 and for refund of Rs.5 Lakhs remitted by the petitioner as per Ext.P9. 6. Counter affidavit has been filed by the first respondent. W.P.(C).15844/11 3 Insofar as the filling up of the vacancies in question is concerned, that is an admitted fact; however, the liability fastened on him is attempted to be justified in the following manner. “Even though the seat vacated by Dr.Appu Cyriac has been filled up in the special counseling held on 26.7.2010, it was not permissible as per the Supreme Court direction to fill up this seat. It is respectfully stated that the vacancy due to the discontinuation of Dr.Appu Cyriac did not come under the purview of the seats, which can be filled in accordance with the Supreme Court direction. However, the vacancy of seat was filled at the risk of Government and Director of Medical Education in order to avoid lapsing of an important PG seat. 7. Having heard the learned counsel on both sides, I am inclined to think that the petitioner is entitled to succeed in this writ petition. First of all, the provision for liquidated damages is incorporated in the prospectus to take case of a situation where a student vacates the seat and consequently that seat is wasted causing loss to the educational institution. Such a situation has not arisen here, though on account of subsequent developments. 8. Secondly, the prospectus condition is to the effect that the student is liable if he discontinues after the final Centralised W.P.(C).15844/11 4 allotment process. In this case, irrespective of the explanations offered in the counter affidavit, it is a fact that on 23.7.2010 and 24.7.2010, rank lists were published and another candidate was allotted to the seat. Therefore, it is not open to the respondents to contend that the petitioner discontinued the Course after the final Centralised allotment. Therefore, for all these grounds, there is no justification for penalizing the petitioner by realizing the liquidated damages which he had remitted as per Ext.P9. 9. In such circumstances, I quash Exts.P15 and P18, insofar as it concern the petitioner and direct the respondents to refund Rs.5 Lakhs remitted by the petitioner as expeditiously as possible, at any rate, within three months. Writ petition is disposed of as above. ANTONY DOMINIC, Judge mrcs /true copy/ P.A. To Judge