JIBIN P. GEORGE v. COCHIN UNIVERSITY OF SCIENCE AND TECHNOLOGY and others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT:- THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN MONDAY, THE 24TH DAY OF MARCH 2014/3RD CHAITHRA, 1936 ## **WP(C).No.28495 of 2013 (J)** ------------------------------------------------ PETITIONER(S):- ------------------------- JIBIN P.GEORGE, S/O.P.V.GEORGE, PARUVAPARAMBIL (H), PULINCUNNOO P.O., ALAPPUZHA. BY ADV. SRI.K.A.SALIL NARAYANAN. RESPONDENT(S):- -------------------------- 1. COCHIN UNIVERSITY OF SCIENCE AND TECHNOLOGY, REPRESENTED BY ITS REGISTRAR, COCHIN UNIVERSITY OF SCIENCE AND TECHNOLOGY, COCHIN UNIVERSITY P.O., ERNAKULAM, PIN - 682 022. 2. THE PRINCIPAL/DIRECTOR, - KVM COLLEGE OF ENGINEERING & IT, KOKKOTHAMANGALAM P.O., CHERTHALA, ALAPPUZHA, PIN - 688 583. 3. COCHIN UNIVERSITY OF ENGINEERING, REPRESENTED BY THE PRINCIPAL COCHIN UNIVERSITY COLLEGE OF ENGINEERING, KUTTANAD, PULICUNNOO P.O., ALAPPUZHA DISTRICT - 688 504. R1 BY STANDING COUNSEL SRI.MILLU DANDAPANI R2 BY ADV. SRI.GEORGE POONTHOTTAM. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 17-03-2014, THE COURT ON 24-03-2014 DELIVERED THE FOLLOWING:- WP(C).No.28495 of 2013 (J) --------------------------------------- ## **APPENDIX** PETITIONER(S)' EXHIBITS:- --------------------------------------- - EXHIBIT P1. TRUE COPY OF THE RECEIPT OF FEES PAYMENT DATED 16.07.2013. - EXHIBIT P2. TRUE COPY OF THE ADMIT CARD ISSUED BY THE COLLEGE DATED 19.07.2013. - EXHIBIT P3. TRUE COPY OF THE MEDICAL CERTIFICATE DATED 18.11.2013. - EXHIBIT P4. TRUE COPY OF THE CIRCULAR DATED 28.09.2013. - EXHIBIT P5. TRUE COPY OF THE NOC ISSUED BY THE 3RD RESPONDENT. - EXHIBIT P6. TRUE COPY OF THE APPLICATION TO THE 2ND RESPONDENT FOR NOC DATED 30.10.2013. - EXHIBIT P7. TRUE COPY OF THE DD GIVEN ALONG WITH THE APPLICATION TO THE 1ST RESPONDENT DATED 30.10.2013. - EXHIBIT P7(a). TRUE COPY OF THE APPLICATION TO THE 1ST RESPONDENT. - EXHIBIT P8. TRUE COPY OF THE APPLICATION TO THE 1ST RESPONDENT DATED 01.11.2013. EXHIBIT P9. TRUE COPY OF THE MEMO DATED 16.11.2013. - EXHIBIT P10. TRUE COPY OF THE ADMIT CARD ISSUED BY THE COLLEGE DATED 19.07.2013. - EXHIBIT P11 APPLICATION SUBMITTED BY THE PETITIONER BEFORE THE VICE CHANCELLOR, COCHIN UNIVERSITY OF SCIENCE & TECHNOLOGY. RESPONDENT(S)' EXHIBITS/ANNEXURES:- -------------------------------------------------------------- - ANNEXURE R1(a) TRUE COPY OF THE SAID UNIVERSITY ORDER O.AcA1/9719/99/II/III(PF), DATED 8.4.2005. - ANNEXURE R1(B) TRUE COPY OF THE ORDER NO.Ac.A3/12071/06, DATED 5.5.2008. - EXT.R2(a) TRUE COPY OF THE AGREEMENT DATED 6.6.2013. - EXT.R2(b) TRUE COPY OF THE ALLOTMENT MEMO DATED 13.07.2013 ISSUED BY THE OFFICE OF THE COMMISSIONER FOR ENTRANCE EXAMINATIONS. vku. ( true copy ) ## K. Vinod Chandran, J -------------------------------------W.P.(C).No.28495 of 2013-J --------------------------------------Dated this the 24[th] day of March, 2014 ## **JUDGMENT** The petitioner is a student of the 2[nd] respondent-College, recognized by the 1[st] respondent-University, pursuing his B.Tech Mechanical Engineering course spread over the academic year 2013-2017. The petitioner's admission to the 2[nd] respondent was based on the rank and allotment made pursuant to the Kerala Engineering, Agricultural, Medical Entrance Examination, 2013 conducted by the State of Kerala. The petitioner was admitted in the merit quota pursuant to the agreement executed by the Kerala Self-Financing Engineering College Managements' Association with the State of Kerala, produced as Exhibit R2(a). The petitioner having joined for the course commencing in the year 2013, was desirous of getting an Inter-Collegiate transfer pursuant to the notification of the University, produced as Exhibit P4. 2. The University had invited applications to be submitted before the 1[st] of November, 2013 with proper recommendation of the Principal, as is evident from the norms produced as Exhibit R1(a) as also specified in the notification Exhibit P4. The 3[rd] respondent-College, WP(C).No.28495 of 2013-J - 2 - which is a Self-Financing College directly managed by the University, was willing to take in the petitioner in the very same course. A 'No Objection Certificate', evidenced by Exhibit P5, was also issued by the 3[rd] respondent-College, based on which application was made to the 2[nd] respondent, as is evidenced by Exhibits P6. The only ground stated in Exhibit P6 is that the 3[rd] respondent-College is near to the residence of the petitioner and that a transfer to the said college would save the petitioner from unnecessary travel. 3. The application on being presented to the Principal of the 2[nd] respondent-College, was declined recommendation by the Principal on the ground that the seat would remain vacant for reason of the admission date being over. The Principal refused to give a recommendation unless and until the petitioner paid the entire course fee to the College. In such circumstance, the petitioner approached the University by filing Exhibit P7 and P7(a) and also submitted a representation, Exhibit P8. The University issued Exhibit P9, wherein the University expressed its helplessness in considering the application without the recommendation of the Principal. 4. The learned counsel for the petitioner urges that the Vice-Chancellor, being the highest academic authority of the University, WP(C).No.28495 of 2013-J - 3 - has the power to grant transfers, even when the recommendation of the Principal is not given; looking at the circumstances of each case. The petitioner relies on Exhibit P10 to contend that Inter-College transfer can be granted on genuine grounds, which grounds have to be examined by the Vice-Chancellor. It is to be immediately noticed that Exhibit P10 is the guidelines of the University of Kerala and would not be applicable to the 1[st] respondent-University. 5. The learned Standing counsel for the University, however, has placed on record Annexures R1(a) and R1(b) guidelines, respectively the first being that of the Inter-University and Inter-Collegiate transfer and the other of the refund of fees to be followed in the University. With respect to Annexure R1(a), it has to be noticed that the order, approved by the Syndicate, in Clause-IV specifically speaks of the consent of the Principal concerned for processing an application for Inter-Collegiate transfer. Annexure R1(b) are the rules for refund of fees, in which, a student leaving the course mid-way, has to remit the fees for that semester alone in the midst of which he leaves and not the entire course fee. Even in the statement filed on behalf of the University, the hardships faced by a Self-Financing College on transfer being effected mid-way is highlighted. It is stated WP(C).No.28495 of 2013-J - 4 - that the 2[nd] respondent-College is dependent on the fees generated from the students and if a student choses to leave the institution after closure of admissions, the institution will not be able to accommodate any other student and that would in fact impede the development of infrastructure for the College, making it detrimental to the rights and interests of even the other students. 6. The Director of the 2[nd] respondent-College has filed a detailed counter affidavit, wherein the agreement executed between the Kerala Self-Financing Engineering College Managements' Association and the State of Kerala has been produced, to contend that a clause in the agreement mandates that any student who leaves the College mid-way has to necessarily remit the entire course fee. The 2[nd] respondent-College would contend that the petitioner was a candidate who was admitted as per a consensual agreement executed with the Government of Kerala for effecting admission to 50% seats in the Colleges. The learned counsel for the 2[nd] respondent would place reliance on _**T.M.A.Pai Foundation v. State of Karnataka**_ **[(2002) 8 SCC 481],** to contend that the same rules and regulations cannot be made applicable to aided and unaided professional institutions. The autonomy with respect to unaided professional institutions, in matters of WP(C).No.28495 of 2013-J - 5 - administration, has been unequivocally declared without totally discarding the principle of merit. To preserve and ensure merit based selection, it was found to be permissible for Universities or the Government to require a private unaided institution to reserve certain percentage of seats to be filled on the basis of the merit determined by way of Common Entrance Examination by the State or the University. This has been complied with by the 2[nd] respondent-College and petitioner is one of the students who has been admitted on such allotment on the basis of merit. But, with respect to the Inter-Collegiate transfers, that would be an aspect of administration, in which the self-financing institution has an amount of discretion and an extent of autonomy, is the contention. 7. The learned counsel for the petitioner places heavy reliance on the judgment passed in W.P.(C).No.23160 of 2013, dated 01.10.2013, by myself. The petitioner therein was a 3[rd] Semester student of Electronics and Communication in a college directly under the University who sought for a transfer to a different branch of Engineering in an unaided institution. When the petitioner therein made an application for transfer, the same was refused to be recommended by the Principal on the finding that if the transfer is allowed, it would WP(C).No.28495 of 2013-J - 6 - cause loss of revenue to the **University** . This Court found that despite there being no recommendation of the Principal, the Vice-Chancellor could exercise his power under Annexure R1(b), [which is Annexure R1 (b) herein also]. It was directed that the Vice-Chancellor shall consider the application filed by the petitioner in the said case, _de hors_ the recommendation of the Principal. 8. One distinguishing factor in the said case is that the College from which the petitioner therein sought transfer was a self-financing college carried on by the University itself. The Principal had declined recommendation only on the ground that loss would be caused to the University. Undoubtedly the Vice Chancellor, being a superior authority and an authority conferred with wide powers as per the statutes, as also by the Syndicate in Annexure R1(b) would be competent to look into the loss anticipated to the University and with reference to that examine the grievance of the student. In the present case, it is to be noticed that though the University recognizes the 2[nd] respondent-College, it does not have any administrative control over the affairs of the college. In continuing the recognition, necessarily the 2[nd] respondent-College would have to concede to the rules and regulations of the University, on failure of which there could only be threat of WP(C).No.28495 of 2013-J - 7 - de-recognition. 9. Moreover, in this case the University has come forward with a counter affidavit, specifically contending that the application cannot be considered unless and until the Principal recommends the same. This Court also cannot shut its eyes to the practical difficulties placed on record by the 2[nd] respondent. It is the fees generated from the students that maintains the self-financing institutions and the discontinuance of a student mid-way would cause loss to the institution and in the event of such enmasse transfers being effected, the same would result in closing down of the institution; which would affect the other students also. That can also lead to a situation in which self-financing institutions resort to canvassing of students to their vacant seats; after the admissions are over. In the instant case, the petitioner is a student enrolled in the 2[nd] respondent-College, as per the allotment made by the State, in the seat conceded by the institution to the State as per the terms of an agreement. It is also pertinent that the only difficulty projected is of the discomfiture in undertaking the long journey between the petitioner's residence and the college. Definitely, the petitioner was aware of this difficulty when he enrolled himself; on being allotted to the 2[nd] respondent-College. WP(C).No.28495 of 2013-J - 8 - 10. Annexure R1(a) is the regulation with respect to Inter-Collegiate and Inter-University transfer of B.Tech students. That specifically prescribes for the recommendation of the Principal concerned, of both the transferee College and the transferor College. It cannot be gainsaid that Annexure R1(b) deals with Inter-Collegiate transfers. True, the decision cited finds that the Vice-Chancellor's power under Annexure R1(b) does not fetter consideration of applications even when the recommendation of the Principal is not available. As noticed above, that was a case in which the college was one, carried on by the University itself and directly under its control; but a self-financing one. The objection with respect to loss **caused to the University,** raised by the Principal, could at any time be overruled by the Vice-Chancellor. It cannot also be gainsaid that Annexure R1(b) mandates only collection of fees for the semester in which the student discontinues the course; but is a discretion conferred on the Vice-Chancellor to examine the request and if found genuine, to issue Transfer Certificate on such condition of remittance. There could be innumerable instances wherein a student discontinues his studies, in which event, the student could be allowed to leave on condition of remittance of fees for that semester, in which he discontinues the WP(C).No.28495 of 2013-J - 9 - course. But that concession cannot be extended unconditionally, without reference to the reasons of discontinuance and merely for the asking. The discretion to be exercised by the Vice-Chancellor is also tempered with the accepted principles of reasonableness. In considering the reasonableness of the request made by the petitioner herein, one has to only look at the request made initially, Exhibits P6 and P8. The subsequent representations and the writ petition attempt interpolations by citing various other reasons, which are to be ignored as merely self-serving. Exhibits P6 and P8 only raise the factor of distance. That does not commend to be a reasonable ground to deprive the 2[nd] respondent of a student and keep vacant a seat for the entire course. The petitioner was very well aware of the distance factor and on his refusal to join the course, the 2[nd] respondent could have enrolled another. No alarming prejudice also is discernible in turning down the petitioner's request; since the candidate can continue his studies in the 2[nd] respondent-College. Writ petition dismissed. No costs. Sd/- K.Vinod Chandran Judge. vku/- ( true copy )