Sree Narayana Gurukulam College of Engineering, Kadayiruppu (P.O.), Kolenchery-682311 v. State of Kerala, The Mahatma Gandhi University, M.V. Vishnu Prasad, Admission Supervisory Committee and Fee Regulation Committee for Professional Colleges in Kerala (WP(C).Nos.39274/2015 & 5604/2016)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** ## **&** ## **THE HONOURABLE MR.JUSTICE V.G.ARUN** **TUESDAY, THE 06TH DAY OF AUGUST 2019 / 15TH SRAVANA, 1941** ## **WP(C).No.39274 OF 2015(H)** ## **PETITIONER/S:** **SREE NARAYANA GURUKULAM COLLEGE OF ENGINEERING, KADAYIRUPPU (P O), KOLENCHERY-682311, REPRESENTED BY ITS PRINCIPAL, DR.C.B.SAJI.** **BY ADV. SRI.C.AJITH KUMAR** ## **RESPONDENT/S:** |**1**|**STATE OF KERALA**| |---|---| ||**REPRESENTED BY SECRETARY TO GOVERNMENT, DEPARTMENT**| ||**OF HIGHER EDUCATION, GOVERNMENT SECRETARIAT,**| ||**THIRUVANANTHAPURAM-695001.**| |**2**|**THE MAHATMA GANDHI UNIVERSITY**| ||**KOTTAYAM, REPRESENTED BY ITS REGISTRAR,**| ||**PRIYADARSHINI HILLS, KOTTAYAM-686560.**| |**3**|**M.V.VISHNU PRASAD, S/O T.CHANDRAN, THEKKUMBAD**| ||**HOUSE, AROLI POST, PAPPINISSERI, KANNUR-670561.**| |**4**|**ADMISSION SUPERVISORY COMMITTEE AND FEE REGULATION**| ||**COMMITTEE FOR PROFESSIONAL COLLEGES IN KERALA**| ||**REPRESENTED BY ITS CHAIRMAN, T.C.15/1553-4,**| ||**PRASANTHI BUILDINGS, M.P.APPAN ROAD, VAZHUTHACAUD,**| ||**THIRUVANANTHAPURAM-695014.**| ||**R1, R4 BY ADV. SRI.V.A.MUHAMMED**| ||**R1-2 BY SRI.VARUGHESE M.EASO, SC, UNIVERSITY**| ||**R1 BY SRI.ASOK M. CHERIAN, SC, M.G. UNIVERSITY**| ## **OTHER PRESENT:** **SR.GP SRI.M.A.ASIF** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 06.08.2019, ALONG WITH WP(C).5604/2016(A), THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P.(C) Nos.39274/2015 & 5604/2016 2 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **&** ## **THE HONOURABLE MR.JUSTICE V.G.ARUN** **TUESDAY, THE 06TH DAY OF AUGUST 2019 / 15TH SRAVANA, 1941** **WP(C).No.5604 OF 2016** ## **PETITIONER/S:** **1 VISHNU PRASAD M.V, AGED 20 YEARS, S/O.T.CHANDRAN, THEKKUMBAD HOUSE, AROLI POST PAPINISSERI, KANNUR DISTRICT-670561.** **BY ADVS.** **SRI.V.A.MUHAMMED SMT.P.A.JENZIA** **SRI.ASOK M. CHERIAN, SC, M.G. UNIVERSITY** ## **RESPONDENT/S:** 1 **STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT, DEPARTMENT OF HIGHER EDUCATION, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695001.** 2 **THE MAHATMA GANDHI UNIVERSITY KOTTAYAM, REPRESENTED BY ITS REGISTRAR, PRIYADARSHINI HILLS, KOTTAYAM-686560. 3 THE PRINCIPAL, SREE NARAYANA GURUKULAM COLLEGE OF ENGINEERING, KOLENCHERY, P.O.KDADAYIRUPPU, ERNAKULAM DISTRICT.** 4 **THE ADMISSION SUPERVISORY COMMITTEE AND FEE REGULATION COMMITTEE FOR PROFESSIONAL COLLEGES IN KERALA, THIRUVANANTHAPURAM-695001. REPRESENTED BY ITS SECRETARY.** **R1 BY ADV. MARY BENJAMIN R1 BY SRI.VARUGHESE M.EASO, SC, M.G.UNIVERSITY** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 06.08.2019, ALONG WITH WP(C).39274/2015(H), THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P.(C) Nos.39274/2015 & 5604/2016 3 ## **“CR”** ## **JUDGMENT** ## **V.G.ARUN, J.** The petitioner in W.P.(C) No.39274 of 2015 is a Private Self-financing Engineering College. The petitioner has approached this Court, aggrieved by Ext.P15 order by which the Admission Supervisory Committee for Professional Colleges (for short “the Committee”) directed refund of an amount of Rs.2,67,600/- collected from the third respondent towards tuition fee and liquidated damages. W.P.(C) No.5604 of 2016 is filed by the third respondent in W.P.(C) No.39274 of 2015 seeking implementation of the order for refund issued by the Committee. The parties and the Exhibits are referred to as in W.P.(C) No.39274 of 2015. 2. The third respondent had joined the petitioner W.P.(C) Nos.39274/2015 & 5604/2016 4 College for B.Tech Course in Electronics and Communication Engineering under the Government quota on 13.7.2013. At the time of admission, the third respondent remitted the requisite fees of Rs.72,600/-. Thereafter, the father of the third respondent submitted a request on 29.7.2013, informing about the discontinuance of studies of his ward from 29.07.2013 onwards and requesting for return of all certificates, testimonials and documents submitted at the time of admission, on payment of liquidated damages of Rs.75,000/-. In reply, the College informed the third respondent's father that he can collect the documents pertaining to the third respondent after paying the tuition fee for the entire course. Even though a request was made by the third respondent's father to reconsider the demand for payment of fees for the entire course, the College was adamant W.P.(C) Nos.39274/2015 & 5604/2016 5 in its stand and hence, the balance tuition fee of Rs.1,95,000/was paid under compelling circumstances. Thereafter, the third respondent approached the Committee seeking an order directing refund of the tuition fee and liquidated damages collected from him. 3. The main contentions urged was that the discontinuance being prior to 15.8.2013; the last date for admission fixed by the Honourable Supreme Court and the seat vacated by the third respondent having been filled up by the College subsequently, there could not have been any demand for liquidated damages. 4. The petitioner opposed the prayer for refund based on the relevant Clauses in the agreement entered into between the Government and the Private Engineering College Management Association as also the prospectus for the year, W.P.(C) Nos.39274/2015 & 5604/2016 6 2013. It was submitted that as per the terms of the agreement and the prospectus, the petitioner was entitled to collect liquidated damages from the student, since he had discontinued the course after 15.7.2013, which was the last date fixed as per the prospectus and the agreement. It was further contended that the seat vacated by the third respondent was not filled up by the College, which justified the collection of liquidated damages. 5. The Committee repelled the contentions of the petitioner and held that the third respondent had discontinued the course prior to 15.8.2013, the last date fixed by the order of the Honourable Supreme Court and that the College had, in fact, filled up the vacant seat as revealed from the statement filed on behalf of the Mahatma Gandhi University. W.P.(C) Nos.39274/2015 & 5604/2016 7 6. The learned counsel for the petitioner assails the legality of Ext.P15 on various grounds. It is contended that as far as the question of liquidated damages is concerned, the relevant date is the date shown in the agreement and Government order. That, an extension of the last date for admission granted by the Honourable Supreme Court will not absolve the third respondent from paying liquidated damages, inasmuch as he had left the College after 15.7.2013. It is contended that the finding of the Committee that all 120 seats of the branch from which the third respondent had vacated his seat, was filled up was rendered without taking into account the 6 seats which the College was bound to fill up under the Tuition Fee Waiver Scheme. It is contended that having volunteered to remit liquidated damages, the third respondent was estopped from approaching the Committee with a prayer W.P.(C) Nos.39274/2015 & 5604/2016 8 for refund of the amount. 7. The learned counsel for the third respondent submits that, inasmuch as the third respondent had discontinued the course prior to 15.8.2013, there could not have been demand for liquidated damages, even going by the terms of the agreement and the prospectus. It is submitted that liquidated damages was not remitted voluntarily and on the other hand, was paid under compulsion. It is contended that having filled up the seat vacated by the third respondent, the retention of the liquidated damages paid by him would amount to unlawful enrichment. 8. The learned Standing Counsel for the Committee supported the contentions of the learned counsel for the third respondent and further submitted that the Honourable Supreme Court having fixed the last date for closure of W.P.(C) Nos.39274/2015 & 5604/2016 9 admissions as 15.8.2013, the College could have filled up the seat vacated by the third respondent prior to that date. It is submitted that, irrespective of whether the seat was filled up or not, the demand for liquidated damages was illegal. 9. In the nature of the contentions urged, it would be appropriate to refer to the relevant Clauses in the agreement and the prospectus. Ext.P1 is the consensual agreement entered between the Government and the Kerala Selffinancing Engineering Management Association. In respect of seat sharing, fees fixed and payable by the students and collection of refundable deposit and such other amount with respect to the admission for the year 2013, Clause 19 of the agreement reads as follows: “19. The Educational Agency can retain the Tuition fee remitted by the student, in the event a student admitted under the Management quota or Government quota, discontinues his/her studies for any reason at any time after ie. 15[th] day of W.P.(C) Nos.39274/2015 & 5604/2016 10 July 2013. 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. However, in the event of the seat so falling vacant being filled up by an 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.” 10. Ext.P2 contains the relevant pages of the prospectus for admission to Professional Degree Course, 2013. The relevant Clause therein is 12.2.4. As per Clause 12.2.4 (a) (i), if any candidate admitted against Government seats in Government/aided/Government controlled Self-financing/ Private Self-financing/KAU/KVASU/KUFOS Colleges discontinues the studies after the closing of admissions in the same academic year, to join other courses/colleges or for other purposes, he/she is liable to pay liquidated damages of Rs.75,000/-. It is also stated in Clause 12.2.4 (a) (i) that, in the case of Private Self-financing Engineering Colleges, the date of W.P.(C) Nos.39274/2015 & 5604/2016 11 closing of admission and levying of liquidated damages from the candidates, discontinuing the studies will be notified separately. Ext.P3 is the Government order by which Ext.P1 agreement was approved and major clauses regarding fee structure and allotment of seats notified for information and appropriate action and compliance by all concerned. Clause 19 in Ext.P3 is the same as Clause 19 in Ext.P1. Going by Clause 12.2.4 (a) (i), a candidate discontinuing the studies is after closing of admissions in the same academic year bound to pay liquidated damages of Rs.75,000/-. According to the learned counsel for the petitioner, the date for closing of admission was fixed as 15.7.2013 as evident from Clause 19 of Ext.P3 Government order. The learned counsel contends that even if the Honourable Supreme Court has subsequently extended the last date for closing of admission as 15.8.2013, W.P.(C) Nos.39274/2015 & 5604/2016 12 that would not in any manner hamper the right of the College to demand liquidated damages from a student who discontinues studies after the notified date, _i.e,_ 15.7.2013. In this context, it would be apposite to refer to the decision of the Honourable Supreme Court in **Parshavanath Charitable Trust and others v. All India Council for Technical Education and others [(2013) 3 SCC 385]** , by which the date for closing of admission was fixed as 15.8.2013. In _Parshavanath_ , among other issues, the Apex Court considered the authority and functions of the AICTE, including grant of approval for starting technical institutions and for introduction of new courses or programmes in consultation with the agencies concerned. The Apex Court also noticed that it is the requirement of law that there should be strict adherence to the time schedule for grant of approval as well as W.P.(C) Nos.39274/2015 & 5604/2016 13 for admissions without exception. The Honourable Supreme Court noticed some disparities in the Schedule for admissions published by the AICTE and modified it to bring it in line with the Schedule for approval, as well as to prevent inequalities, arbitrariness and prejudice from affecting the students in relation to their academic courses. The relevant portion of the judgment in _Parshavanath_ reads as follows: - “43.. ..........The order granting or refusing approval, thus, should positively be passed by 10[th] April of the relevant year. The appeal should be filed within one week and the Appellate Committee should hear the appeal and decide the same by 30th April of the relevant year. The University should grant/decline approval/affiliation by 15[th] May of the relevant year. Advertisement should be issued and entrance examination conducted positively by the end of the month of May. The appropriate Schedule, thus, would be as follows : |Event|Schedule| |---|---| |Conduct of Entrance<br>Examination<br>(AIEEE/State CET/ Mgt.<br>quota exams etc.)|In the month of May| |Declaration of Result of<br>Qualifying Examination<br>(12thExam or similar)<br>and<br>Entrance<br>Examination|On or before 5thJune| W.P.(C) Nos.39274/2015 & 5604/2016 14 1[st] round of counselling/ admission for allotment of seats 2[nd] round counselling for allotment of seats Last round of counselling for allotment of seats To be completed on or before 30[th] June To be completed on or before 10[th] July To be completed on or before 20[th] July Last date for admitting 30[th] July. However, any candidates in seats other number of rounds for than allotted above counselling could be conducted depending on local requirements, but all the rounds shall be completed before 30th July Commencement of 1[st] August academic session Last date upto which 15[th] August students can be admitted against vacancies arising due to any reason (no student should be admitted in any institution after the last date under any quota) Last date of granting or 10[th] April refusing approval by AICTE Last date of granting or 15[th] May refusing approval by University / State Govt. 44. The admission to academic courses should start, as proposed, by 1[st] August of the relevant year. The seats remaining vacant should again be duly notified and advertised. All seats should be filled positively by 15[th] August after which there shall be no admission, whatever be the reason or ground. 45. We find that the above Schedule is in conformity with the W.P.(C) Nos.39274/2015 & 5604/2016 15 affiliation/recognition schedule afore-noticed. They both can coexist. Thus, we approve these admission dates and declare it to be the law which shall be strictly adhered to by all concerned and none of the authorities shall have the power or jurisdiction to vary these dates of admission. Certainty in this field is bound to serve the ends of fair, transparent and judicious method of grant of admission and commencement of the technical courses. Any variation is bound to adversely affect the maintenance of higher standards of education and systemic and proper completion of courses.” 11. In the light of the declaration by the Honourable Supreme Court that the last date for admissions would be 15.8.2013, it is not open for the petitioner to contend that the petitioner College would even then be governed by the date notified in Ext.P3. The third respondent having discontinued the course on 29.7.2013, well within the last date of closure of admissions, it was open for the petitioner College to have admitted a student to the seat vacated by the third respondent. The fact that no student had joined that seat cannot be to the detriment of the third respondent. A conjoint reading of Clause 12.2.4(a) (i) and Clause 19 leaves no room W.P.(C) Nos.39274/2015 & 5604/2016 16 for doubt that the educational agency can retain the tuition fee and demand liquidated damages only if the candidate discontinues the course after the closing of admissions in the same academic year. Even in cases where the student discontinues the course after the closing of admissions in the same academic year, the educational agency is bound to refund the tuition fee collected, in the event of that vacant seat being filled up by a new candidate. Hence, this Court need not venture into the factual controversy as to whether the seat vacated by the third respondent was actually filled up or not since, in either case, there could not have been retention of the fees already paid and demand for liquidated damages from the third respondent, he having discontinued the course prior to 15.8.2013, the last date for closing of admissions that year. In the circumstances, we find no infirmity in the order W.P.(C) Nos.39274/2015 & 5604/2016 17 passed by the Committee. Consequently, W.P.(C) No.39274 of 2015 is dismissed. W.P.(C) No.5604 of 2016 is allowed. The College is directed to refund the amount of Rs.2,67,600/- with interest at the rate of 6% per annum from the date of Ext.P15 order. The refund as above, shall be made within an outer limit of two months from the date of receipt of a copy of this judgment, failing which, the amount will carry interest at the rate of 12% per annum till realisation. No order as to costs. **Sd/-** **K.VINOD CHANDRAN JUDGE** **Sd/-** **V.G.ARUN JUDGE** Scl/6.08 W.P.(C) Nos.39274/2015 & 5604/2016 18 ## **APPENDIX OF WP(C) 39274/2015** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 EXHIBIT P1: TRUE COPY OF THE AGREEMENT DATED 6.5.2013 ENTERED INTO BETWEEN THE GOVERNMENT ON ONE PART AND THE 105 COLLEGES COMING UNDER KERALA SELF FINANCING ENGINEERING COLLEGE MANAGEMENT ASSOCIATION ON THE OTHER PART.** **EXHIBIT P2 EXHIBIT P2: TRUE COPY OF THE RELEVANT PAGES OF THE PROSPECTUS ISSUED BY THE COMMISSIONER OF ENTRANCE EXAMINATIONS FOR THE ACADEMIC YEAR 2013-14 FOR ADMISSION TO PROFESSIONAL DEGREE COURSES.** **EXHIBIT P3 EXHIBIT P3: TRUE COPY OF THE T.O(MS)NO.265/2013/H.EDN DATED 13.6.2013 OF THE IST RESPONDENT.** **EXHIBIT P4 EXHIBIT P4: TRUE COPY OF THE FEES RECEIPT DATED 6.7.2013 ISSUED BY THE PETITIONER TO THE 3RD RESPONDENT, WHILE SECURING ADMISSION FOR THE COURSE. EXHIBIT P5 EXHIBIT P5: TRUE COPY OF THE E-MAIL DATED 29.7.2013 SENT BY THE 3RD RESPONDENT THROUGH HIS FATHER, CHANDRAN TO THE PETITIONER.** **EXHIBIT P6 EXHIBIT P6: TRUE COPY OF THE E-MAIL DATED 31.7.2013 ISSUED BY THE PETITIONER IN RESPONSE TO EXHIBIT P3.** **EXHIBIT P7 EXHIBIT P7: TRUE COPY OF THE LETTER DATED 1.7.2015 SUBMITTED BY THE 3RD RESPONDENT THROUGH HIS FATHER TO THE PETITIONER** W.P.(C) Nos.39274/2015 & 5604/2016 19 - **EXHIBIT P8 EXHIBIT P8: TRUE COPY OF THE LETTER DATED 17.7.2015 ISSUED BY THE PETITIONER IN RESPONDENT TO EXT.P5** - **EXHIBIT P9 EXHIBIT P9: TRUE COPY OF THE COMPLAINT DATED 4.8.2015 SUBMITTED BY THE 3RD RESPONDENT BEFORE THE 4TH RESPONDENT.** - **EXHIBIT P10 EXHIBIT P10: TRUE COPY OF THE RELEVANT PAGES OF AICTE APPROVAL PROCESS HANDBOOK FOR 2013-14 REGARDING THE ADMISSION** - **EXHIBIT P11 EXHIBIT P11: TRUE COPY OF THE ORDER DATED 17.9.2012 ISSUED BY THE 2ND RESPONDENT AT THE INSTANCE OF IST RESPONDENT.** - **EXHIBIT P12 EXHIBIT P12: TRUE COPY OF THE LETTER DATED 12.10.2015 ISSUED BY THE PETITIONER TO THE 2ND RESPONDENT PROVIDING THE LIST OF 124 STUDENTS ADMITTED FOR THE COURSE.** - **EXHIBIT P13 EXHIBIT P13: TRUE COPY OF THE NOMINAL ROLL ISSUED BY THE 2ND RESPONDENT FOR THE FIRST AND SECOND SEMESTER B.TECH DEGREE EXAMINATION CONDUCTED IN MAY, 2014 BY THE 2ND RESPONDENT, SHOWING THE TOTAL NUMBER OF STUDENTS APPEARED FROM THE PETITIONER.** - **EXHIBIT P14 EXHIBIT P14: TRUE COPY OF THE NOMINAL ROLL ISSUED BY THE 2ND RESPONDENT FOR THE THIRD SEMESTER B.TECH DEGREE EXAMINATION CONDUCTED IN NOVEMBER, 2014 BY THE 2ND RESPONDENT SHOWING THE TOTAL NUMBER OF STUDENTS APPEARED FROM THE PETITIONER.** **EXHIBIT P15 TRUE COPY OF THE ORDER DATED 21.11.15 ISSUED BY THE 4TH RESPONDENT.** W.P.(C) Nos.39274/2015 & 5604/2016 20 ## **RESPONDENT'S/S EXHIBITS:** - **EXHIBIT R3 A TRUE COPY OF THE PAYMENT SLIP DATED 06/07/2013.** - **EXHIBIT R3 B TRUE COPY OF THE RECEIPT DATED 02/08/2013.** - **EXHIBIT R3 C TRUE COPY OF THE COMMUNICATION DATED 01/07/2015 OF THE FATHER OF THE 3RD RESPONDENT.** - **EXHIBIT R3 D TRUE COPY OF THE INFORMATION FURNISHED UNDER RTI ACT DATED 03/07/2015.** - **EXHIBIT R3 E TRUE COPY OF THE COMMUNICATION OF THE FATHER OF THE 3RD RESPONDENT DATED 14/07/2015.** - **EXHIBIT R3 F TRUE COPY OF THE REPLY OF THE COLLEGE DATED 17/07/2015.** **EXHIBIT R3 G TRUE COPY OF THE COVERING LETTER DATED 19/10/2015 ALONG WITH AFFIDAVIT TO THE UNIVERSITY.** W.P.(C) Nos.39274/2015 & 5604/2016 21 ## **APPENDIX OF WP(C) 5604/2016** **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1** **P1- TRUE COPY OF THE ORDER OF THE FEE REGULATORY COMMITTEE FOR PROFESSIONAL COLLEGES IN KERALA IN ASC(P) 293/15/HO/TVMP/ENGG/SNGC DATED 21.11.2015**