IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HON'BLE THE CHIEF JUSTICE MR.J.CHELAMESWAR & THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON WEDNESDAY, THE 9TH FEBRUARY 2011 / 20TH MAGHA 1932 WA.No. 1234 of 2010 ----------------------- AGAINST THE JUDGEMENT IN WPC.30355/2009 Dated 09/06/2010 .................... APPELLANT/PETITIONER IN THE WP --------------------------------------- BHAVIKA MANAGALANANDAN, "ATHIRA", 37/966-A FATHIMA CHURCH ROAD, ELAMKULAM, ERNAKULAM-682020. BY ADV. SRI.C.S.RAMANATHAN RESPONDENTS/RESPONDENTS 1 TO 4 IN THE WPC -------------------------------------------------------- 1. UNION OF INDIA, REP. BY SECRETARY MINISTRY OF HUMAN RESOURCE DEVELOPMENT, GOVERNMENT OF INDIA, NEW DELHI. 2. DIRECTOR, NATIONAL INSTITUTE OF TECHNOLOGY, CALICUT. 3. DEAN POST GRADUATE STUDIES AND RESEARCH, NATIONAL INSTITUTE OF TECHNOLOGY, CALICUT. 4. CHAIRMAN, PG ADMISSION, NIT, CALICUT. R1 BY ADV. SRI.T.P.M.IBRAHIM KHAN,ASST.SOLICITOR GENERAL R2 TO R4 BY ADV.SRI.MILLU DANDAPANI THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 09/02/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: J.Chelameswar, C.J. & P.R.Ramachandra Menon, J. ------------------------------------------ W.A. No. 1234 of 2010 ------------------------------------------ Dated this the 9th day of February, 2011 JUDGMENT J.Chelameswar, C.J. Aggrieved by judgment dated 9th June, 2010 in W.P.(C) No.30355 of 2009 the unsuccessful petitioner therein preferred the present writ appeal. 2. The appellant completed her B.Tech. Degree in the year 2007 from the University of Kerala and appeared for the examination popularly called GATE (Graduate Aptitude Test in Engineering) in the year 2009. It is stated in the prospectus for Admission to M.Tech. and M.Sc. (Tech.) Programme that it is an examination conducted by the seven Indian Institutes of Technology and the Indian Institute of Science, Bangalore on behalf of the National Coordinating Board - GATE, Department of Education, Ministry of Human Resources Development, Government of India. The appellant secured a score of 543 in the said examination. The appellant applied for admission into various courses both in the Indian Institute of Technology and the National Institute of Technology crated under the Institutes of Technology Act, 1961 and the National Institutes of Technology Act, 2007 respectively. As per the Information Bulletin for the year 2009-10 issued by the National Institute of Technology, Calicut whose Director is W.A.No.1234 of 2010 - 2 - shown to be the second respondent in the writ petition and the writ appeal, the eligibility for admission into the above mentioned institution is as follows: “Candidates for admission to M.Tech. Degree Programme shall be required to have passed the four-year regular full time B.E./B.Tech. Degree with 60% marks (CGPA 6.5/10) in aggregate in the qualifying examination together with a valid GATE SCORE and for SC/ST candidates 50% marks (CGPA 5.5/10) in aggregate with valid GATE SCORE in the Discipline/Branch given below. Candidates under lateral entry should have passed the three year diploma in engineering with first class and candidates belonging to SC/ST category with second class.” 3. The appellant was admitted into the M.Tech. (Instrumentation and Control Systems) on 22.7.2009. In the meanwhile, the appellant secured admission in the Indian Institute of Technology, Delhi on 27th July, 2009. It appears on 28.7.2009 the appellant informed the authorities of the second respondent institution that she would vacate the seat allotted in her favour. Subsequently followed by a telephone message the appellant claims to have sent a Fax message to the same effect on 29.7.2009. 4. The last date for admissions into the second respondent institution iwas 30th July, 2009. On 31st July, 2009 the appellant's mother personally went to the second respondent institution and sought return of the original certificates surrendered by the appellant at the time of admission into the M.Tech, course on 22nd July, 2009. The second respondent insisted W.A.No.1234 of 2010 - 3 - upon the payment of the balance course fee, i.e. an amount of 52500/- in addition to what was already paid by the appellant at the time of her admission. The appellant's mother made the payment in order to secure return of the original certificates. 5. Subsequently the appellant filed a representation seeking refund of the fees paid which was rejected by a letter marked as Ext.P9 in the writ petition. Challenging the said decision the writ petition came to be filed. 6. In the Bulletin referred to earlier at page 30 it is stated as follows: “If a student withdraws from the programme after closure of admission and as the vacant seat so created cannot be filled up by another candidate from the waiting list, no refund of fees collected from the candidate will be made. As per the existing rules in the Institute, such candidates will have to pay the tuition fees for the entire duration of the course to get the original certificates back from the institute.” 7. The respondents justified their action not to refund the fee paid by the appellant under the above mentioned clause on the ground that the appellant had withdrawn from the course after the closure of the admissions to the course which is admittedly on 30th July, 2009. Though there is some dispute regarding the actual date of communication of the appellant's withdrawal from the course, by the judgment under appeal the W.A.No.1234 of 2010 - 4 - learned Judge of this Court concluded that the withdrawal of the appellant from the course is on 31.7.2009. We see no reason to take a different view in the said matter and we are in total agreement with the reasons recorded by the learned Judge for such a conclusion. For the said reason the learned Judge dismissed the writ petition. 8. The learned counsel for the appellant however argued that another category of students who are eligible for provisional admission into the second respondent institution are the students in the final semester of B.Tech. course with a valid GATE score subject to the condition that they provide the final mark list within three months from the date of joining. Under the Instruction at page 32 of the above mentioned Bulletin, such candidates who are provisionally admitted eventually fail to produce the mark lists indicating the successful completion of the course would only forgo the fee already paid by them. The relevant portion of the Instruction reads as follows: “Final semester students with a valid GATE score can also apply provided their final marks are made available within three months from date of joining. Such candidates may be considered for Provisional admission. However, these candidates must have successfully passed with 60% mark in one to six semesters of B.Tech./BE or three years of Engineering studies on the date of application and the application must include attested copies of the mark lists and course completion certificate from the Head of the Institution last attended in the prescribed format. Any W.A.No.1234 of 2010 - 5 - candidate admitted Provisionally, subject to his/her producing provisional certificate and mark lists as proof of having satisfied the eligibility criteria, shall have to discontinue the course, if he/she does not produce the provisional certificate and mark lists within three months of date of joining. Such candidates will not be eligible for any refund of fees paid by him/her. Provisional admission is not applicable to candidates who have failed in the qualifying examination and subsequently appeared for the supplementary examination. Part time degree holders are also not eligible for admission.” 9. It is asserted by the learned counsel for the appellant and admitted by the respondents that in all cases of admissions where the admission is provisional or otherwise, the respondents collect only one year's fee at the time of admission. Therefore in the case of candidates who are provisionally admitted to the above mentioned course, but eventually fail to secure the admission will have to forgo only the fee paid by them, i.e. one year's fee, whereas in the case of candidates who secured admission and forgone the seat in view of the fact that they secured admission into another institution which not only according to the candidates but generally believed to be an institution of higher reputation, the candidates are compelled to forgo not only the fee already paid but also to pay the balance course fee. Such a classification as rightly contended by the learned counsel for the appellant, in our opinion, is an irrational classification. In either of the cases the seat availed by such candidates would have to remain unfilled for the W.A.No.1234 of 2010 - 6 - reason that the last date for the filling up of the seats is already over. In the circumstances, we deem it appropriate to direct the respondents to retain only the first year's course fee of the appellant and refund the second year course fee within a period of two weeks from today. The writ appeal is disposed of as above. Sd/- J.Chelameswar, Chief Justice Sd/- P.R.Ramachandra Menon, Judge vns After the judgment was dictated in the Court on 3rd February, 2011 a mention was made by the learned counsel for the appellant that there was a factual inaccuracy in the submission made at the Bar and consequently the judgment delivered on 3.2.2011 is required to be modified reflecting the true factual position. Therefore the matter was directed to be listed again. Accordingly the matter is listed today. At paragraph 9 of the judgment we recorded as follows: “It is asserted by the learned counsel for the appellant and admitted by the respondents that in all cases of admissions where the admission is provisional or otherwise, the respondents collect only one year's fee at the time of admission. Therefore in W.A.No.1234 of 2010 - 7 - the case of candidates who are provisionally admitted to the above mentioned course, but eventually fail to secure the admission will have to forgo only the fee paid by them, i.e. one year's fee, whereas in the case of candidates who secured admission and forgone the seat in view of the fact that they secured admission into another institution which not only according to the candidates but generally believed to be an institution of higher reputation, the candidates are compelled to forgo not only the fee already paid but also to pay the balance course fee.” Whereas, it is demonstrated before us today that at the time of admission into the M.Tech. Degree Course only an amount of `23907/- is collected in all under various heads like Tuition fee (1st Semester), Caution Deposit, Miscellaneous Fee, etc. Therefore, we direct the respondents to retain only the above mentioned amount of `23907/- and refund the balance amount collected from the appellant within a period of three weeks from today. Sd/- J.Chelameswar, Chief Justice Sd/- P.R.Ramachandra Menon, Judge vns / true copy /