Neethu J. v. State of Kerala and Others

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE SHAJI P.CHALY** **MONDAY ,THE 18TH DAY OF MARCH 2019 / 27TH PHALGUNA, 1940** # **WP(C).No. 29689 of 2012** ## **PETITIONER/S:** **NEETHU. J., D/O.JOSHI, THANAL, PONGANADU (P.O), VELLALLOR VILLAGE, KILIMANNOOR, THIRUVANANTHAPURAM DISTRICT.** **BY ADV. SHRI.SUNIL KUMAR A.G** ## **RESPONDENT/S:** |**1**|**STATE OF KERALA,**| |---|---| ||**REPRESENTED BY SECRETARY TO GOVERNMENT,**| ||**HEALTH AND FAMILY WELFARE DEPARTMENT,**| ||**GOVERNMENT SECRETARIAT,**| ||**THIRUVANANTHAPURAM - 695 001.**| |**2**|**THE UNIVERSITY OF KERALA,**| ||**REPRESENTED BY THE REGISTRAR,**| ||**UNIVERSITY OF KERALA, PALAYAM,**| ||**THIRUVANANTHAPURAM. 695 001.**| |**3**|**THE THE KERALA UNIVERSITY OF HEALTH SCIENCES,**| ||**REPRESENTED BY THE REGISTRAR,**| ||**THE KERALA UNIVERSITY OF HEALTH SCIENCES,**| ||**MEDICAL COLLEGE (P.O), THRISSUR. 680 596.**| |**4**|**SIVAGIRI SREE NARAYANA MEDICAL MISSION**| ||**COLLEGE OF NURSING,**| ||**SREENIVASAPURAM (P.O), VARKALA,**| ||**THIRUVANANTHAPURAM-695 145,**| ||**REPRESENTED BY ITS MANAGER.**| |**5**|**THE PRINCIPAL,**| ||**SIVAGIRI SREE NARAYANA MEDICAL MISSION COLLEGE OF**| ||**NURSING, SREENIVASAPURAM (P.O), VARKALA,**| ||**THIRUVANANTHAPURAM-695 145.**| W.P.(C) No.29689 of 2012 2 **BY ADVS. R1 - SMT. RESHMI K.M., GOVERNMENT PLEADER R2 - SRI.THOMAS ABRAHAM, SC, UNIVERSITY OF KERALA R3 - SRI. P. SREEKUMAR, SC R4 & R5 - SRI. JAYAPRADEEP V.** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 18.03.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P.(C) No.29689 of 2012 3 ## **C.R.** ## **JUDGMENT** This writ petition is filed by the petitioner, a B.Sc. Nursing student, seeking direction to respondents 1 to 3 to take action to return the original academic certificates of the petitioner from 4[th] and 5[th] respondents, and for other related and consequential reliefs. Brief material facts for the disposal of the writ petition are as follows: 2. Petitioner joined for B.Sc. Nursing course under the 4[th] respondent College affiliated to 2[nd] and 3[rd] respondents, on 03.08.2011. She paid a total amount of Rs.1,27,750/- at the time of admission. As there was no basic amenities in the hostel, she made complaints to the concerned authorities, according to her, thereafter she was subjected to unbearable mental torture and harassment, both in the hostel and college, at the instance of the officials of the 4[th] and 5[th] respondents. Thereupon, she had to leave her studies. But, when she requested for return of original certificates, respondents 4 and 5 refused to do so. Case projected by the petitioner is that, 4[th] and 5[th] respondents have no right or authority to withhold the original certificates of the petitioner. Even as per W.P.(C) No.29689 of 2012 4 the provisions contained under Ext.P5 Prospectus, respondents 4 and 5 have no authority to withhold the original certificates, also due to the fact that the documents were not given as collateral security for the payment of fees, but to ensure verification of the originals in order to ascertain the qualification of the petitioner. 3. Respondents 4 and 5 have filed a very detailed counter affidavit, justifying the stand adopted in retaining the original certificates of the petitioner. According to them, petitioner had discontinued her studies after the cut-off date for closing of admissions fixed by the Government, and hence in terms of Ext.P5 prospectus, petitioner is liable to pay four times the annual tuition fee paid by her, to the institution by way of liquidated damages. As per Ext.P1 series, the tuition fee paid for the 1[st] year by the petitioner is Rs.78,000/-, and therefore, Rs.3,12,000/- has to be paid to the institution on account of liquidated damages. Even if the already remitted fee is given credit, a balance of Rs.2,34,000/- is remaining due. Since the college is a self-financing institution, the institution has to pay salary to the Principal and all other staff and further W.P.(C) No.29689 of 2012 5 to undertake the maintenance of the buildings, equipments and such other facilities. It is also stated that, there is no grant from any corner and the only source of fund is the payment received from the students. That apart, it is pointed out that, the seat of the petitioner is still lying vacant, and if the said amount as covered by the prospectus is not received, the institution will find it difficult to survive. 4. It is also stated that, the matter was before the Human Rights Commission and under peculiar circumstances, the Management did not object to the suggestion made by the Commission, however, it never agreed to go below Rs.50,000/-. The other allegations made by the petitioner are all denied. So much so, it is submitted that, the prospectus would stipulate that the students would be entitled to get back their credentials on clearing out the dues with the institution and it was knowing fully about the provisions of the prospectus, petitioner availed seat in the management quota, and as such, petitioner cannot wriggle out from making payment as contemplated therein. W.P.(C) No.29689 of 2012 6 5. The 5[th] respondent has also filed an additional counter affidavit, in similar lines and it is also pointed out that, as per Ext.R5(a) Government Order dated 30.06.2012, the Nursing Colleges' Association had to enter into contract with the Government of Kerala, and it was thereupon that the conditions are incorporated in the prospectus. 6. I have considered the rival submissions made across the Bar and perused the pleadings and the documents on record. 7. The question revolves around the inaction on the part of respondents 4 and 5 to release the original certificates to the petitioner. It is the contention of learned counsel for the petitioner that petitioner had to leave, only due to the peculiar circumstances, and respondents 4 and 5, in spite of her earnest efforts, are not returning the original certificates. On the other hand, learned counsel appearing for respondents 4 and 5 has invited my attention to clause (xii) of Ext.R5(a) Government Order dated 30.06.2012 bearing G.O.(MS)No.203/2012/H&FWD, issued by the Health and Family Welfare (C) Department, which read thus: _“(xii) The Educational Agency can retain the Tuition Fee remitted by the student, in the event a student admitted under the Management quota or_ W.P.(C) No.29689 of 2012 7 _Government quota, deserts or discontinues his/her studies for any reason at any time after i.e., 22[nd] August, 2012. In case, any student admitted to the College decides to cancel the admission for any reason whatsoever, the Educational Agency shall be entitled to collect the tuition fee of the entire course as liquidated damages. However, in the event of the seat so falling vacant being filled up by a new candidate, the tuition fee collected as per this clause shall be refunded. The documents pertaining to such student shall be released only on payment of the above amount.”_ 8. Therefore, relying upon the terms contained under the said clause, it is submitted, respondents 4 and 5 are entitled to collect the tuition fee for the entire course, towards liquidated damages, if and when the admission is cancelled, and the seat is not filled up, and the institution is also entitled to detain the documents pertaining to such students till such time the payments are made. Therefore, on an evaluation of the situation, it is clear that, respondents 4 and 5 are not releasing the documents to the petitioner on account of the said Government Order. It may be true that the petitioner was aware of the Government Order at the time of securing admission in the college. However, fact remains, the original documents were given to respondents 4 and 5 for verification and ascertaining the veracity of the said original documents while providing admission to students in the W.P.(C) No.29689 of 2012 8 college. It is true, whenever a situation arises the student leaving the college after securing admission, and the seat is not filled up, there is every likelihood of suffering damages by the college. But, whether the seat was filled up is a subject matter of factual circumstances and it will have to be ascertained in a properly constituted adjudication proceedings. Merely because the student has left the institution, it cannot be held that the management has suffered loss. There is no evidence before this Court to arrive at a finding whether the management has suffered loss, as is claimed by them in the counter affidavits filed. Since the management has a claim that the seat is not filled up after discontinuance of study by the petitioner, it is the duty of the management to prove such incident, in order to secure the liquidated damages. 9. Furthermore, the original documents of the student are not given by her as a collateral security for ensuring payment of liquidated damages. The documents of a student are required by the student for her professional and career prospects and those are all personal documents which will not earn any amount to respondents 4 and 5, and it cannot be utilized by the W.P.(C) No.29689 of 2012 9 said respondents for the purpose of realizing the alleged liquidated damages by selling, mortgaging or in any manner providing the same as a security. Moreover, the respondents are unable to show any statute enabling the management to detain personal certificates of a student other than the clause contained under Ext.R5(a). 10. A learned Single Judge of this Court in _**'Shireen M.T. & Others v. State of Kerala & Others**_ ' [2017 (2) KLJ 882] had occasion to consider the issue of detention of certificates in the realm of one year compulsory employment or payment of compensation by the student on the basis of agreements executed by and between the student and educational institution, and held that the condition contained in the agreement enabling the management to detain the certificates as a void clause opposed to public policy, and therefore, the agreement is unenforceable. 11. True, in the facts situation, there is no agreement. However, the management is relying upon the clause contained under Ext.R5(a). In my considered view, by providing such a clause under Ext.R5(a) Government Order, a coercive tactics is employed against the student to realize money from the student, W.P.(C) No.29689 of 2012 10 without even adjudicating the issue with respect to any liquidated damages suffered by the management. Looking at that angle, such a clause contained under the Government Order is against the public policy liable to be interfered with by this Court under Article 226 of the Constitution of India. 12. Taking into account all the aforesaid aspects, I am of the considered opinion that, petitioner is entitled to succeed in the writ petition. Accordingly, the writ petition will stand allowed and there will be a direction to respondents 4 and 5 to return the original certificates to the petitioner, at the earliest, and at any rate, within three weeks from the date of receipt of a copy of this judgment, failing which, the competent official of the 3[rd] respondent is directed to take appropriate action and recover the certificates from respondents 4 and 5 and hand over the same to the petitioner at the earliest possible time. However, if there is any remedy available to respondents 4 and 5 to proceed against the petitioner, in accordance with law, they are at liberty to do so. ## **Sd/-** ## **SHAJI P.CHALY** **JUDGE** W.P.(C) No.29689 of 2012 11 ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** - **EXHIBIT P1 TRUE COPY OF THE RECEIPTS NO.1000 FOR SERIES RS.1,11,500/- NO.334 FOR RS.750/-, NO.906 FOR RS.8,000/- NO.505 FOR RS. 5,000/-, NO.4784 FOR RS. 1,500/- AND NO.855 FOR RS. 855 DATED 03/08/2011 ISSUED BY THE 4TH AND 5TH RESPONDENTS.** - **EXHIBIT P2 TRUE COPY OF THE COMPLAINT MADE TO SRI. VISUDHANANDA SWAMI, DATED 27/04/2012.** - **EXHIBIT P3 TRUE COPY OF THE LAWYER NOTICE DATED 20/09/2012.** - **EXHIBIT P4 TRUE COPY OF THE REPLY ISSUED BY THE 5TH RESPONDENT DATED 03/10/2012.** - **EXHIBIT P5 TRUE COPY OF THE PROSPECTUS FOR THE YEAR OF 2011-2012 OF 4TH RESPONDENT.** - **EXHIBIT P6 TRUE COPY OF THE ORDER DATED 07/10/2012 PASSED IN HRMP NO.3130/12 OF THE KERALA STATE HUMAN RIGHTS COMMISSION.** - **EXHIBIT P7 TRUE COPY OF THE LAWYER NOTICE DATED 16/10/2012.** - **EXHIBIT P8 TRUE COPY OF THE ORDER DATED 13/12/2012. EXHIBIT P9 TRUE COPY OF THE PROCEEDINGS DATED 08/01/2013.** - **RESPONDENT'S/S EXHIBITS:** - **EXHIBIT R5(A)** COPY OF THE GOVERNMENT ORDER DATED 30/06/2012. //TRUE COPY// P.S. TO JUDGE St/-