Adi Sankara Institute of Engineering Technology v. Admission Supervisory Committee for Professional Colleges, State of Kerala, and Addl.R4 & Addl.R5

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **&** **THE HONOURABLE MR.JUSTICE V.G.ARUN** **FRIDAY, THE 07TH DAY OF JUNE 2019 / 17TH JYAISHTA, 1941** ## **WP(C).No.29413 of 2011** ## **PETITIONER/S:** **ADI SANKARA INSTITUTE OF ENGINEERING TECHNOLOGY, SANKAR NAGAR, KALADY P.O.,, PIN-683 574,, REPRESENTED BY ITS MANAGING TRUSTEE.** **BY ADVS. SRI.M.N.RADHAKRISHNA MENON SRI.JOSEPH SEBASTIAN (PARACKAL)** ## **RESPONDENT/S:** |**1**|**KRISHNABALA P.,**| |---|---| ||**PALAYI HOUSE, PORT AVENUE, PANANGAD,**| ||**ERNAKULAM-682 506.**| |**2**|**ADMISSION SUPERVISORY COMMITTEE FOR**| ||**PROFESSIONAL COLLEGES, OLD HIGH COURT**| ||**BUILDINGS, RAM MOHAN PALACE, HALL NO.VIII,**| ||**ERNAKULAM, REPRESENTED BY ITS CHAIRMAN.**| |**3**|**STATE OF KERALA**| ||**REPRESENTED BY HIGHER EDUCATION DEPARTMENT,,**| ||**GOVT. SECRETARIAT, TRIVANDRUM-695 001.**| |**4**|**ADDL.R4- MAHATAMA GANDHI UNIVERSITY,**| ||**THODUPUZHA, IDUKKI DIST, MUTTOM, KERALA-685587.**| |**5**|**ADDL.R5- COMMISSIONER FOR ENTRANCE**| ||**EXAMINATIONS,**| ||**5TH FLOOR, KSHB BUILDING, SHANTI NAGAR,**| ||**THIRUVANANTHAPURAM,KERALA-695001.**| ||**-------------------------------------------**| W.P.(C) No.29413 of 2011 2 **ADDL.R4 AND R5 ARE IMPLEADED AS PER ORDER DATED 18.10.2016 IN IA.NO.4695/2016.** **BY ADVS. SRI.ASOK M. CHERIAN, SC, M.G. UNIVERSITY SMT.A.R.PRAVITHA SMT.RASHMI RAVINDRAN SRI.K.MOHANAKANNAN** **OTHER PRESENT:** **SR.GP. SRI.A.J.VARGHESE,SMT.MARY BENJAMIN SC** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 07.06.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P.(C) No.29413 of 2011 3 ## **JUDGMENT** ## V.G.ARUN, J. The petitioner Institution has filed the writ petition challenging Ext.P7 order by which the second respondent Admission Supervisory Committee for Professional Colleges (for short “the Committee”) directed the petitioner to refund the amount of Rs.1,40,000/- collected from the first respondent. According to the petitioner, the first respondent was admitted to and had joined the petitioner college on 21.7.2010 under Government merit quota for B.Tech course in Computer Science. The classes for the first-year engineering students started on 28.7.2010. After attending classes for more than a month, the first respondent sought to discontinue her studies to join for Dental Medicine Course, for which the first respondent had got admission in the first W.P.(C) No.29413 of 2011 4 allotment by the Commissioner for Entrance Examinations (for short CEE). The petitioner agreed to give transfer certificate and to return the original certificates submitted by the first respondent at the time of her admission, on the first respondent remitting an amount of Rs.1,40,000/-, being the tuition for the entire duration of the course. The first respondent remitted the amount of Rs.1,40,000/-, obtained transfer certificate and original documents submitted at the time of admission, got admission in the Dental College and thereafter, submitted a complaint before the CEE, who in turn forwarded the complaint to the Committee. 2. The Committee, after hearing the petitioner and the first respondent and after considering the documentary evidence, came to the conclusion that the petitioner was W.P.(C) No.29413 of 2011 5 acting in an unfair and irregular manner by retaining the amount of Rs.1,40,000/- remitted by the first respondent under compelling circumstances and therefore, directed the petitioner to consider the whole case afresh and to take a decision for refunding the amount of Rs.1,40,000/- to the first respondent within a period of one month from the date of receipt of the order. 3. The main grievance against Ext.P7 is on the finding of the Committee that the petitioner had suffered no loss due to the discontinuance of studies by the first respondent, since the seat which became vacant when the first respondent left the institution was filled up by giving admission to another student. It is also contended that going by the terms of Ext.P1 Government order and Ext.P2 agreement, the petitioner was W.P.(C) No.29413 of 2011 6 entitled to collect fees for the entire duration of the course from a student who discontinued the course after the last date of admission fixed by the CEE. 4. The first respondent refuted the contentions and submitted that the total strength of students admitted for the B.Tech course in Computer Science in the petitioner Institution was 60 that year and the documents obtained by the first respondent under the Right to Information Act would show that the strength continued to be 60 even after the first respondent had discontinued her studies. This shows that the seat which fell vacant when the first respondent discontinued her studies was filled up by the petitioner. It is submitted that the first respondent had appeared for Entrance Examination conducted by the CEE in 2010, for both Engineering and W.P.(C) No.29413 of 2011 7 Medical Courses. That, as per the rank list published on 22.5.2010, the first respondent had secured rank No.3045 for the Medical and rank No.13577 for the Engineering stream. The allotment to the Engineering courses commenced earlier and the first respondent got allotment to the petitioner Institution under merit quota. Even after the allotment to the Engineering Colleges in the State was completed allotment for Medical Courses had not commenced and therefore, the first respondent did not have a clue as to whether she would get admission under the medical stream. Therefore, the first respondent was compelled to join for Engineering Course at the petitioner Institution. 5. In the Medical/Dental allotment which commenced after almost 1½ months of the first respondent joining the W.P.(C) No.29413 of 2011 8 Engineering Course, she was allotted a seat at the Educare Institute of Dental Sciences, Chattiparamba, Malappuram, again under Government merit quota. Since the first respondent had always preferred to join for Medical/Dental course, she requested the management of the petitioner institution to return her original certificates. Thereupon, the management demanded the first respondent to remit the total tuition fee for four years of the Engineering course which she wanted to discontinue. Faced with no other alternative, the first respondent paid an amount of Rs.1,40,000/- and got her original certificates and transfer certificate from the petitioner. 6. The question as to whether a student who had appeared for the Entrance Examination conducted by the CEE W.P.(C) No.29413 of 2011 9 for admission to the Engineering and the Medical streams, was bound to pay the entire fee for the course which the student had joined on being allotted first under merit quota, upon discontinuation of the course on getting a better allotment was considered by this Court in the decision in the judgment in **the Director, Crescent College of Pharmaceutical Sciences v. The Admission Supervisory Committee (W.P. (C) No.31568 of 2015 dated 27.05.2019)** . The relevant portion of the above judgment, reads as follows:- “13. Allotment by the Commissioner of Entrance Examinations on the basis of merit depends on a lot of factors, like the choice of Colleges and Courses made generally by the students, the comparative performances both in the qualifying examinations and the entrance exams, the number of students who get admitted to premier national institutions both in the public and private sector and so on and so forth; which vary from year to year and neither admits or allow of an exact prediction on the final outcome. The imponderables are accentuated by the fact that the Entrance Examinations and the resultant allotments are carried on for admission to varied disciplines like Medicine, Engineering, Agriculture, Nursing, Pharmacy and the like; the apex bodies of which prescribe different dates for closure of W.P.(C) No.29413 of 2011 10 admissions. There are also more than one Entrance Examination conducted by the CEE, common only for related disciplines. It has also to be stated that the admissions to many disciplines, especially in the self-financing Colleges are not completely filled up either on State merit or in the Management quota for dearth of takers. These vagaries force the hand of the student to opt for an allotment at the first instance to an agreeable College and course under a broad discipline, for which the student or the parent cannot be faulted, given the predilection of the Keralites to professional Courses especially to the Engineering and Medical Courses. Hence when the student is faced with a higher option being granted, in a better College or a choice discipline, definitely they have to be permitted to move on especially since the allotment is on merit, and the aspirations of the students find fruit on the basis of merit. None can hence be penalized for moving on in academics to higher options, based on comparative merit, unless the entire exercise of admission at the first instance is an exercise in speculative adventure, with eyes open to the consequences of discontinuance.” 7. Following the said decision, we hold that the discontinuance of the first respondent from the petitioner institution, on securing admission in a Dental College under Government merit, cannot be termed as willful discontinuance entitling the management to demand liquidated damages. In the instant case, the first respondent had discontinued the W.P.(C) No.29413 of 2011 11 Engineering course from 14.9.2010. Ext.R1(g) communication issued by the CEE shows that the admission to Engineering Colleges for the year 2010-11 had to be completed by 31.10.2010. The learned Standing Counsel for the Committee asserts that the last date for admission for the year 2010-11 was 31.10.2010. If that be the case, then the first respondent had discontinued the course much prior to the last date for completing the admissions. Hence, the petitioner had no right to demand the first respondent to remit the fee for the entire duration of the course as a condition for return of the original documents. Since we have already found that the demand and collection of fees for the entire duration of the course was illegal, we do not intend to enter the issue as to whether the seat which fell vacant when the first respondent W.P.(C) No.29413 of 2011 12 discontinued the course was filled up or not. We take note of the contention of the petitioner that by admitting one student for the B.Tech course in Computer Science under the Tuition Fee Waiver Scheme the total strength of students admitted for the course in the year 2010-11 became 61. That, it was in those circumstances that the strength of students continued to be 60 even after the first respondent discontinued the course. 8. For the reasons mentioned above, we find that the Committee was fully justified in holding that the petitioner had acted in an unfair and illegal manner, in collecting the amount of Rs.1,40,000/- from the first respondent. Even though the Committee had directed the petitioner to consider the issue afresh, in the light of the observations in Ext.P7 order, we are of the considered opinion that the refund has to W.P.(C) No.29413 of 2011 13 be effected by the petitioner in view of our findings above. We dismiss the writ petition granting the petitioner a period of one month from the date of receipt of a copy of this judgment to refund of the amount of Rs.1,40,000/- to the first respondent. It is made clear that in case the petitioner fails to refund the amount within one month, the amount would carry an interest of 7% from 14.9.2010 till realisation. No order as to costs. **Sd/-** **K.VINOD CHANDRAN JUDGE** **Sd/JUDGE** **V.G.ARUN** Scl/7.6 W.P.(C) No.29413 of 2011 14 ## **APPENDIX** **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF GOVERNMENT ORDER DATED 9.6.2010** **EXHIBIT P2 TRUE COPY OF AGREEMENT DATED 31.5.2010** **EXHIBIT P3 TRUE COPY OF PETITION DATED 23.09.2010 FILED BY THE 1T RESPONDENT** **EXHIBIT P4 TRUE COPY OF REPLY 9.11.10 SUBMITTED BY THE PETITIONER** **EXHIBIT P5 TRUE COPY OF AFFIDAVIT DTD 14.1.2011 FILED BY THE 1ST RESPONDENT** **EXHIBIT P6 TRUE COPY OF STATEMENT FILED BY THE PETITIONER DATED 28.3.2011** **EXHIBIT P7 TRUE COPY OF ORDER DATED 15.9.2011 WITH COVERING LETTER DATED 17.10.2011** **EXHIBIT P8 TRUE COPY OF GUIDELINES ISSUED BY AICTE EXHIBIT P9 TRUE COPY OF GOVERNMENT ORDER DATED 18.9.2009** W.P.(C) No.29413 of 2011 15