IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC THURSDAY, THE 20TH JANUARY 2011 / 30TH POUSHA 1932 WP(C).No. 20363 of 2009(M) -------------------------- PETITIONER(S): ----------------------- MAYA S.P., D/O.JAYAPRAKASH P.V., ANAVADHYA, MAVICHERRY, PAYYANNUR P.O., KANNUR-679 307. BY ADV. SRI.K.B.ARUNKUMAR RESPONDENT(S): ------------------------ 1. M/S.VEDA VYASA INSTITUTE OF TECHNOLOGY, KARADPARAMBA, PONNAMPADAM, MALAPPURAM DISTRICT, REP. BY ITS PRINCIPAL. 2. THE PRINCIPAL, M/S.VEDA VYASA INSTITUTE OF TECHNOLOGY, KARADPARAMBA, PONNAMPADAM, MALAPPURAM DISTRICT. ADV. SRI.P.VIJAYA BHANU FOR R1 & R2 SRI.P.VENUGOPAL (1086/92) FOR R1 & R2 THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 20/01/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ANTONY DOMINIC, J. ================ W.P.(C) NO. 20363 OF 2009 ===================== Dated this the 20th day of January, 2011 J U D G M E N T Petitioner appeared in the Entrance Examination conducted by the Commissioner for Entrance Examination in the year 2008. In the first allotment, she was allotted to the 1st respondent college where she joined for B.Tech Electronics and Communication. She had retained her higher options for admission in the Government Colleges. After joining the 1st respondent college and while continuing there, according to the petitioner, she got letter dated 22/12/2008 enclosing a cheque, from the office of the Commissioner of Entrance Examination refunding the excess amount paid by her. On enquiry, petitioner came to know that, on the basis of the higher options exercised, she was alloted a seat in a Government Engineering College and that as she failed to report at the alloted institution, the seat allotted to her was forfeited and it was therefore that the refund was made. 2. As a result of the petitioner's failure in reporting to the college to which she was thus allotted, by virtue of Clause 11.6.7 WPC No. 20363/09 :2 : of the Prospectus, read with Clause 11.6.4(iii) (Ext.P3), the allotment which the petitioner had in the 1st respondent college also got cancelled. Thus, the resultant position was that the petitioner lost admission in the Government College based on her higher option for not reporting at the College and as a consequence thereof, the admission in the 1st respondent college also was lost. 3. Thereupon, petitioner had to discontinue her studies in the 1st respondent college. Subsequently, she requested the 1st respondent to return the certificates. At that stage, 1st respondent demanded that the petitioner should pay the liquidated damages and one year fee payable in terms of Clause 12.2.3 and 12.2.4 of the prospectus {Ext.R1(a)}. In these circumstances, petitioner approached this Court by filing WP(C) No.8474/09. By Ext.P1 judgment, this Court directed that a representation filed by the petitioner to the Vice Chancellor should be considered with notice to the parties. Accordingly, the Vice Chancellor considered the representation with notice to the petitioner and the College and issued Ext.P2 order, that the transfer certificate, conduct certificate and other documents shall be released to the WPC No. 20363/09 :3 : petitioner. The college did not release the documents as directed by the Vice Chancellor. It is complaining of the above, this writ petition was filed to direct the respondents to release the certificates in order to enable the petitioner to continue her studies. 4. After admitting this writ petition, this Court passed interim order dated 24th of July, 2009 directing that certificates shall be released on the petitioner furnishing bank guarantee of ` 80,000/-. Accordingly, petitioner furnished the bank guarantee and documents have been released. Therefore, what now survives for consideration is whether the Bank guarantee is to be returned or not. 5. The contention raised by the respondents, the College and the Principal, is that in terms of Clause 12.2.3 and 12.2.4 of the prospectus, since the petitioner discontinued her studies after the closing of the admission, they are entitled to realise liquidated damages and one year fee as a condition for return of documents. 6. The relevant provisions of the prospectus, which provide for forfeiture of admission has been produced by the petitioner as Ext.P3. These provisions of the prospectus provide WPC No. 20363/09 :4 : that even after allotment to a College, student is entitled to retain higher options. Clause 11.6.4(iii) provides that a candidate retaining higher options is bound to accept the next allotment given, failing which the candidate will lose the allotment given and will not be considered for any further allotment. Clause 11.6.7 further provides that a candidate is bound to accept the allotment based on higher options and that failure to report for admission in the alloted institution will result in forfeiture of allotment and that any request to retain existing admission will not be considered under any circumstances. Thus, it is obvious that once a candidate gets alloted based on higher options, he will automatically lose the existing allotment also. 7. In this case, after joining the 1st respondent college, petitioner was alloted to a Government College based on her higher option. For some reason or the other, petitioner did not join the allotted college, as a result of which, not only that she lost the allotment, but also she lost her admission in the 1st respondent college. Thus the loss of admission and the forfeiture of admission in the 1st respondent college are as a result of the provisions of the prospectus (Ext.P3). WPC No. 20363/09 :5 : 8. In so far as the liability for damages is concerned, the relevant extract of the prospectus is Ext.R1(a). Clause 12.2.3 provides that no refund of fee will be made to candidates who apply for transfer certificate/cancellation of admission under any circumstances. Therefore, this provision will apply only in a case where a candidate applies for transfer certificate or cancellation of admission which is not the case here. Therefore, this provision has no relevance in so far as the petitioner is concerned. 9. As far as Clause 12.2.4 is concerned, this provision provides that if any candidate admitted against Government seats in self financing colleges, discontinue studies after closure of admissions in the same academic year or in subsequent academic years, to join other courses or for any other purpose, a candidate is liable to pay liquidated damages at the rates specified therein. This provision therefore applies only in cases where candidates voluntarily discontinue courses for the reasons mentioned in the provision and this provision cannot have application in a case where the candidate loses the admission by virtue of the operation of the provisions of the prospectus itself. 10. In this case, the petitioner lost her admission in 1st WPC No. 20363/09 :6 : respondent college as a result of the operation of the provisions of the prospectus and therefore, this is not a case where the petitioner has discontinued course for the reasons specified in Clause 12.2.4. If that be so, she cannot be saddled with the liability for damages or payment of one year fee now demanded by the 1st respondent college. If so, the 1st respondent could not have demanded that the petitioner should pay damages and fee for return of the certificates. 11. That apart, it is also to be noticed that pursuant to the direction in Ext.P1 judgment, Vice Chancellor passed Ext.P2 order after issuing notice to the petitioner and the College concerned. This order required the College to return the certificates. This order has not been challenged by the College. If so, the College should have abided by the order which it has not done. 12. Therefore for the aforesaid two reasons viz., that Clause 12.2.4 is inapplicable to the situation covered by the facts of this case and also on account of Ext.P2 order, I hold that the petitioner cannot be made liable to pay damages or fee, for return of her certificates. Since pursuant to the interim order passed by this Court, on furnishing bank guarantee, certificates have already WPC No. 20363/09 :7 : been returned, I direct that, on the production of a copy of this judgment, respondents will release the bank guarantee furnished by the petitioner. Writ petition is disposed of as above. ANTONY DOMINIC, JUDGE Rp