Shobin Nistar S/o Nishthar v. State of Kerala & Others (WP(C).No. 28539 of 2013)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR** **MONDAY, THE 22ND DAY OF SEPTEMBER 2014/31ST BHADRA, 1936** **WP(C).No. 28539 of 2013 (N) ----------------------------** **PETITIONER(S):** **---------------** **SHOBIN NISTHAR S/O.NISHTHAR, 34/845-D-KRWA, 61 PPN NAGAR MAMANGALAM, EDAPPALLY, KOCHI 24** **BY ADVS.SRI.R.LAKSHMI NARAYAN SMT.R.RANJINI** **RESPONDENT(S):** **--------------** **1. STATE OF KERALA REP.BY ITS SECRETARY, DEPARTMENT OF EDUCATION SECRETARIAT, THIRUVANANTHAPURAM 695 001** **2. MARTHOMA SCHOOL OF MANAGEMENT STUDIES (KOCHI BUSINESS SCHOOL),THENGODU P.O, KAKKANAD,KOCHI 682 030 REP BY ITS PRINCIPAL** **3. THE DIRECTOR,** **MARTHOMA SCHOOL OF MANAGEMENT STUDIES(KOCHI BUSINESS SCHOOL)THENGODU P.O KAKKANAD, KOCHI 682 030** **4. UNIVERSITY OF GRANT COMMISSION(UGC) SOUTHERN WEST REGIONAL BLOCK, PALACE ROAD, BANGALORE KARNATAKA, REP BY EDUCATIONAL OFFICER 560 001** **5. ALL INDIA COUNCIL FOR TECHNICAL EDUCATION, 7TH FLOOR, CHANDER LOK BUILDING, JANPATT NEW DELHI 110001 REPRESENTED BY ITS CHAIRMAN** **6. M.G UNIVERSITY** **PRIYADARSHINI HILLS, ATHIRAMPUZHA, KOTTAYAM-686001 REP BY ITS REGISTRAR 686 001** **R3 BY ADV. SRI.GEORGE CHERIAN (THIRUVALLA),SR. R3 BY ADV. SMT.K.S.SANTHI R3 BY ADV. SMT.LATHA SUSAN CHERIAN R6 BY ADV. DR.P.LEELAKRISHNAN, SC, M.G.UNIVERSITY R4-R5 BY ADV. SRI.S.KRISHNAMOORTHY, CGC R6 BY ADV. SRI.VARUGHESE M.EASO, SC, M.G.UNIVERSITY BY GOVERNMENT PLEADER SRI.NOUSHAD THOTTATHIL** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 22-09-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **WP(C).No. 28539 of 2013 (N)** ## **----------------------------** ## **APPENDIX** **PETITIONER(S)' EXHIBITS** **------------------------EXT.P1 THE PHOTOCOPY OF THE COMMUNICATION DATD DATED 22-06-2013 EXT.P2 THE PHOTOCOPY OF THE RECEIPT DATED 22-06-2013 EXHIBIT P3 THE PHOTOCOPY OF THE COMMUNICATION DATED 24-06-2013 EXT.P4 THE PHOTOCOPY OF THE RECEIPT DATED 3-07-2013** **EXT.P5 THE PHOTOCOPY OF THE RELEVANT PAGE OF THE PROSPECTUS** **EXT.P6 PHOTOCOPY OF THE REPRESENTATION DATED 24-10-2013,SUBMITTED BEFORE THE 4TH RESPONDENT** **EXT.P7 THE PHOTOCOPY OF THE REPRESENTATION DATED 24-10-2013 SUBMITTED BEFORE THE 5TH RESPONDENT** **EXT.P8 THE PHOTCOPY OF THE REPRESENTATION DATED 24-10-2013 SUBMITTED BEFORE THE 6TH RESPONDENT** **EXT.P9 THE PHOTOCOPY OF THE REGULATIONS,2012 PUBLISHED BY THE 5TH RESPONDENT DATED 25/05/2012** **RESPONDENT(S)' EXHIBITS** **-----------------------EXT.R6(a): TRUE COPY OF THE EXPLANATION DATED 31.12.2013 FURNISHED BY THE PRINCIPAL REGARDING EXPLANATION DATED 31.12.2013** **EXT.R3(a): TRUE COPY OF THE LETTER DATED 12.09.2013 GIVEN BY FATHER OF THE PETITIONER** **EXT.R3(b): TRUE COPY OF THE LETTER DATED 27.09.2013 GIVEN BY THE PETITIONER** **EXT.R3(c): TRUE COPY OF THE ORDER ISSUED BY THE 6TH RESPONDENT DATED 20.11.2004** **EXT.R3(d): TRUE COPY OF THE SCORE CARD OF THE OF THE PETITIONER** **//TRUE COPY//** **P.A.TO JUDGE** ## **A.K.JAYASANKARAN NAMBIAR, J.** **.............................................................** W.P.(C).No.28539 of 2013 **.............................................................** Dated this the 22[nd] day of September, 2014 ## **J U D G M E N T** The petitioner aspiring for an MBA degree, applied for the M.B.A programme conducted by the 2[nd] respondent College for the 2013-2015 batch. By Ext.P1 communication dated 22.06.2013, the petitioner was informed that based on the personal interview conducted on 22.06.2013, he was provisionally selected to the MBA programme of the 2[nd] respondent College for 2013-2015 subject to his fulfilling the eligibility criteria laid down by the AICTE and MG University. It is not in dispute that on receipt of the said communication, the petitioner effected payment of Rs.1,50,000/towards 1[st] semester fee and academic services fee and joined the College. Thereafter, on 12.09.2013, the petitioner's father, by Ext.R3 (a) letter addressed to the 2[nd] respondent College, intimated them of the fact that the petitioner could not complete the MBA Course in the 2[nd] respondent College. A request was therefore made for refund of the amounts paid towards fees to the College. It is seen from the endorsement on the said letter that the 2[nd] respondent College decided to refund the amounts paid by the petitioner save to the extent of one semester's fee. Accordingly, an amount of Rs.72,868/- was returned to the petitioner. Subsequently an amount of Rs.2,132/- was also refunded to him when he returned the books that had already been supplied to him as part of the -2- W.P.(C).No.28539 of 2013 Course. The petitioner thereafter approached the respondent for refund of the balance amount of Rs.77,132/- which according to him was required to be refunded on account of his discontinuance of the course and since he was leaving for Dubai in pursuit of employment prospects. He also sought return of all the certificates that had been submitted by him to the respondent College at the time of admission. Ext.R3(b) which is produced by the respondent would show that the certificates were also returned to the petitioner on 27.09.2013. The writ petition is preferred seeking refund of the aforementioned amount of Rs.77,132/- that was withheld from the petitioner and which according to the petitioner is illegal since it was within the knowledge of the respondent College that the petitioner was a person who did not posses the eligibility requirement for pursuing the MBA course commencing from the academic year 2013-2014. 2. Counter affidavits have been filed on behalf of respondents 2 and 3 as also by the 6[th] respondent University. In the counter affidavit filed on behalf of respondents 2 and 3, the averments in the writ petition are denied and it is pointed out that the amounts paid by the petitioner at the time of admission to the 2[nd] respondent College were subsequently returned to him after withholding an amount of Rs.77,132/-. The said amount -3- W.P.(C).No.28539 of 2013 represented the first semester fee since the petitioner had attended the classes from 03.07.2013 to 13.09.2013. It is pointed out that the initial admission granted to the petitioner, as evident from Ext.P1 letter, was only provisional and it was subject to the petitioner fulfilling the eligibility criteria laid down by the AICTE and MG University. Since the petitioner did not qualify or become eligible for pursuing his course with the 2[nd] respondent college, he had sought permission to leave on 13.09.2013. By that time, he had already attended classes with the 2[nd] respondent College and it was under those circumstances that while refunding the amounts paid by the petitioner at the time of his provisional admission, an amount representing the first semester fee was retained. The counter affidavit of the 5[th] respondent University states that only students with qualifications prescribed by the University are entitled to get admission as per the University order dated 04.05.2006. It is clarified that admission of students who do not satisfy the minimum eligibility criteria laid down in the said Notification issued by the University would be treated as irregular. Reference is also made to Ext.P8 representation that was preferred to the University and the fact that the University had since sought an explanation from the Principal of the 2[nd] respondent College. Ext.R6(a) explanation furnished by the Principal, dated 31.12.2013, is also produced. -4- W.P.(C).No.28539 of 2013 3. I have heard Advocate Sri.R.Lakshmi Narayan, the learned counsel appearing on behalf of the petitioner , learned Senior counsel Sri.George Cheriyan, appearing on behalf of respondents 2 and 3, Sri.Krishnamoorthy, CGC, learned counsel appearing on behalf of respondents 4 and 5, Dr.P.Leela Krishnan, the learned Standing counsel appearing on behalf of 6[th] respondent and the learned Government Pleader appearing on behalf of the 1[st] respondent. 4. On a consideration of the facts and circumstances of the case and also the submissions made across the Bar, I am of the view that the writ petition must necessarily fail. As already noted, the admission of the petitioner to the 2[nd] respondent College for pursuit of his MBA course was a provisional one as is evident from Ext.P1 communication issued to him. The admission was made provisional subject to his fulfilling the eligibility criteria that was required for the purposes of the course and as prescribed by the AICTE/MG University. It is not in dispute that pursuant to the provisional admission, the petitioner joined the College with effect from 03.07.2013 and continued till 13.09.2013. The only contention raised by the petitioner is that insofar as he was not qualified in terms of the regulations of the University or the AICTE -5- W.P.(C).No.28539 of 2013 for pursuing the MBA course, the admission granted to him by the 2[nd] respondent college was irregular and illegal. The petitioner would lay emphasis on Ext.P5 prospectus that was issued by the 2[nd] respondent College in connection with admission to the MBA Course. In particular, reference is made to the conditions regarding eligibility which suggest that an applicant for admission must have obtained a test score in GMAT, MAT, CAT, CMAT or XAT. The case of the petitioner is that insofar as he was admittedly not possessed of the said qualification, the 2[nd] respondent College could not have offered him admission to the course. It is his case that he was assured by the authorities in the 2[nd] respondent College that the conditions regarding eligibility could be relaxed and, he could pursue the course with the 2nd respondent College. As it turned out, the said representation made to him did not hold good and, therefore, he had to leave the course with effect from 13.09.2013. The contention of the petitioner is that insofar as he was erroneously led to believe that there would be some point in joining the course owing to the possibility of obtaining an exemption from the eligibility requirements, the respondents were not justified in withholding amounts from the amounts paid by him at the time of admission, when ultimately it was found that the petitioner could not have pursued the course at all. The petitioner would place reliance on the decisions of the Supreme Court in -6- W.P.(C).No.28539 of 2013 **Shri.Anadi Mukta Sadguru Shree Muktajee Vandasjiswami Suvarna Jayanti Mahotsav Smarak Trust and Others v. V.R.Rudani and Others (AIR 1989 SC 1607)** and **K.Krishnamacharyulu and Others v. Sri.Venkateswara Hindu College of Engineering and Another (AIR 1998 SC 295)** for the proposition that insofar as the respondents were discharging a public duty in connection with imparting education, it was incumbent upon them to ensure that only such students as had the necessary qualification for pursuing the course, were admitted to the Colleges for pursuit of that course. In the instant case, insofar as the 2[nd] respondent College had not adhered to the norms laid down by the University for admission of candidates, the ineligibility of the petitioner could not be used against the petitioner to deny him the refund of amounts paid by him at the time of admission, in the contention. A consideration of the contentions advanced by counsel for the petitioner would indicate that the thrust of the arguments is that the petitioner was misled into believing that, despite his not having the eligibility requirements for the pursuit of the MBA Course, he could nevertheless seek an exemption or relaxation from the said requirements from the authorities concerned. This, in my opinion, is a matter that would necessarily have to be -7- W.P.(C).No.28539 of 2013 established by the petitioner by leading evidence. It would have to be established that there was such a representation by the 2[nd] respondent and that the petitioner had relied on the said representation, to his detriment. From the documents that are produced in the writ petition, I cannot draw an inference that there was such a representation by the 2[nd] respondent College or that the petitioner was misled by the same. In proceedings under Article 226 of the Constitution, the rights of parties can be determined only based on established facts. Disputed questions of fact requiring establishment through evidence cannot be gone into by this Court in a writ petition under Article 226 of the Constitution. In this view of the matter, without pronouncing on the merits of the contentions of the petitioner with regard to the representation if any, made by the respondent College to the petitioner in connection with his admission to the MBA Course, I relegate the petitioner to the civil court for a redressal of his grievance. Resultantly, the writ petition fails and it is dismissed. ## **A.K.JAYASANKARAN NAMBIAR JUDGE** mns/ W.P.(C).No.28539 of 2013 -8-