The Principal Nightingale of Nursing, Nedumangad v. Admission Supervisory Committee for Professional Colleges in Kerala and Swethika Sasikumar

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** ## **&** **THE HONOURABLE MR.JUSTICE V.G.ARUN** **THURSDAY, THE 11TH DAY OF JULY 2019 / 20TH ASHADHA, 1941** **WP(C).No.3228 OF 2016(C)** ## **PETITIONER/S:** **THE PRINCIPAL NIGHTINGALE OF NURSING, NEDUMANGAD, THIRUVANANTHAPURAM DISTRICT.** **BY ADVS. SRI.M.RAJENDRAN NAIR SMT.M.SANTHY** ## **RESPONDENT/S:** **1 ADMISSION SUPERVISORY COMMITTEE FOR PROFESSIONAL COLLEGES IN KERALA PRASANTHI BUILDING, M.P.APPAN ROAD, VAZHUTHAKAD, THIRUVANANTHAPURAM-695 014, REPRESENTED BY ITS MANAGER. 2 SWETHIKA SASIKUMAR AGED 20 YEARS D/O.SASIKUMAR.M.A, RESIDING AT MANAVATH HOUSE, KODUNGALLUR, TRICHUR-680 667.** **BY ADV. SRI.C.A.CHACKO** ## **OTHER PRESENT:** ## **SC ADV.MARY BENJAMIN** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 11.07.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P.(C) No.3228 of 2016 2 ## **JUDGMENT** ## **V.G.Arun, J.** The petitioner; the Principal of a Self-financing Nursing Institution, has filed this writ petition aggrieved by Ext.P5 order of the Admission Supervisory Committee for Professional Colleges (for short “the Committee”), requiring the College to refund the fees and caution deposit collected from the 2[nd] respondent. 2. The second respondent secured admission for the B.Sc. Nursing Course conducted by the College under merit quota. The 2[nd] respondent was admitted to the course in August 2014 and remitted the entire fees for the first year along with caution deposit. The 2[nd] respondent discontinued the course in December 2014 and demanded for return of her original certificates, submitted at the time of admission. The College refused to return the certificates unless the fees for the W.P.(C) No.3228 of 2016 3 entire duration of the course is paid as liquidated damages. Thereupon, the 2[nd] respondent approached the Committee, primarily contending that her annual family income being less than Rs.75,000/-, she is entitled for exemption from payment of liquidated damages as per the KEAM Prospectus, 2014. During the pendency of the proceedings before the Committee, the 2[nd] respondent conceded to the demand for liquidated damages, since she required her certificates urgently for joining another College. Thus, an amount of Rs.1,48,000/- was paid towards liquidated damages and the certificates were returned to the 2[nd] respondent. 3. Before the Committee, the College contended that as per Clause 7.3 of the prospectus, Clause 14 of the consensual agreement entered into between the Government and Clause 30 of the undertaking executed by the student, the College was entitled to collect the annual tuition fee for four years as liquidated damages from a student discontinuing W.P.(C) No.3228 of 2016 4 studies after the last date fixed for closure of admission, which was 12.08.2014. It was contended that the annual tuition fee being Rs.55,000/- the fees due from the 2[nd] respondent for the balance three years of the course was Rs.1,65,000/- along with University affiliation fee of Rs.3,000/(1,65,000+3000=1,68,000/-). From this amount, the caution deposit of Rs.20,000/- was deducted by the College and the balance amount of Rs.1,48,000/- collected from the 2[nd] respondent. The College also raised a challenge against the jurisdiction of the Committee based on the interpretation of sub-sections 4 and 8 of Section 6 of the Kerala Professional Colleges or Institutions (Prohibition of Capitation Fee, Regulation Of Admission, Fixation Of Non-exploitative Fee And Other Measures To Ensure Equity And Excellence In Professional Education) Act, 2006 (“the Act 19 of 2006” for brevity). 4. The Committee repelled the challenge against its jurisdiction holding that wherever there is exploitation of a W.P.(C) No.3228 of 2016 5 student prior to the admission, during the admission or after the admission, the Committee can interfere and render relief. Relying on Clause 12.8 (a) (i) of the KEAM Prospectus 2014, the Committee found that the annual family income of the second respondent being Rs.50,000/-, she is exempted from payment of liquidated damages. It was therefore held that the collection of liquidated damages by the College was illegal and consequently, the College was directed to refund the amount of Rs.1,48,000/- collected towards fees and Rs.20,000/towards caution deposit on or before 16.1.2016, failing which the amount would carry interest at the rate of 10% from 22.6.2015. 5. The learned counsel for the petitioner College assails the findings of the Committee on various grounds, including the competency of the Committee to order refund of fees. Reference is made to Section 4, which deals with the constitution and powers of the Committee. It is contended W.P.(C) No.3228 of 2016 6 that the provisions under Section 4 does not empower the Committee to order refund of the fees already collected and that, on the other hand, the Committee can only recommend the Government to impose fine, declare admission in a particular College or Institution to be _dehors_ merit and therefore invalid and communicate the same to the concerned University or to recommend the University or statutory body for withdrawal of the affiliation or recognition of such college or institution or any other course of action, it deems fit. It is contended that admittedly, the second respondent had discontinued her studies after closure of admissions and in such circumstances, the second respondent was bound to pay liquidated damages prescribed under the prospectus and the agreement and had, in fact, paid the liquidated damages also. It is also contended that the Committee erred in having called for income certificate of the second respondent to arrive at the conclusion that the annual income of her family was less than W.P.(C) No.3228 of 2016 7 Rs.75,000/-. 6. We find substance in the contention urged by the learned counsel for the petitioner that the Committee is not vested with power under Act 19 of 2006 to order refund of fees remitted by a student towards liquidated damages in terms of the prospectus and the agreement. But, under the given facts and circumstances, we find that the Committee was justified in directing refund of the amounts remitted by the second respondent towards liquidated damages. The Committee had found that the annual income of the second respondent's family was Rs.50,000/- and therefore, she was exempted from paying liquidated damages as per Clause 12(8) (a)(i) of KEAM Prospectus. We also take note of the fact that the second respondent was admitted to the merit quota and had lost one year of study due to the refusal on the part of the College to return her certificates. In such circumstances, we find the order of the Committee to be judicious. W.P.(C) No.3228 of 2016 8 7. The remedy under Article 226 is a discretionary remedy and the writ court is not bound to interfere merely on an irregularity or illegality being brought to its notice. The court must further be satisfied that such interference is called for to meet, or to further, the ends of justice. The above proposition was succinctly laid down by the Honourable Supreme Court in **Muhammed Swallieh and Others v. Third Addl. District Judge, Meerut and Another (1988 (1) SCC 40).** Paragraph 7 thereof is extracted below for reference:- "It was contended before the High Court that no appeal lay from the decision of the Prescribed Authority to the District Judge. The High Court accepted this contention. The High Court finally held that though the appeal laid (sic no appeal lay) before the District Judge, the order of the Prescribed Authority was invalid and was rightly set aside by the District Judge. On that ground the High Court declined to interfere with the order of the learned District Judge. It is true that there has been some technical breach because if there is no appeal maintainable before the learned District Judge, in the appeal before the learned District Judge, the same could not be set aside. But the High Court was exercising its jurisdiction under Article 226 of W.P.(C) No.3228 of 2016 9 the Constitution. The High Court had come to the conclusion that the order of the Prescribed Authority was invalid and improper. The High Court itself could have set it aside. Therefore in the facts and circumstances of the case justice has been done though, as mentioned hereinbefore, technically the appellant had a point that the order of the District Judge was illegal and improper. If we reiterate the order of the High Court as it is setting aside the order of the Prescribed Authority in exercise of the jurisdiction under Art.226 of the Constitution, then no exception can be taken. As mentioned hereinbefore, justice has been done and as the improper order of the Prescribed Authority has been set aside, no objection can be taken.” This proposition was reiterated by the Apex Court in **Roshan** ## **Deen v Preeti Lai (AIR 2002 SC 33)** , by stating as follows: “The very purpose of such constitutional powers being conferred on the High Courts is that no man should be subjected to injustice by violating the law. The look out of the High Court is, therefore, not merely to pick out any error of law through an academic angle but to see whether injustice has resulted on account of any erroneous interpretation of law. If justice became the byproduct of an erroneous view of law the High Court is not expected to erase such justice in the name of correcting the error of law." In that view of the matter, we refuse to exercise our discretionary jurisdiction to set aside Ext.P5 order. In the W.P.(C) No.3228 of 2016 10 circumstances, the writ petition is rejected. The petitioner is directed to refund the amount, as directed under Exhibit P5 to the second respondent, with interest @ 7% from the date of Ext.P5, within a period of one month from the date of receipt of a copy of this judgment, failing which the petitioner will be liable to refund the amount with interest @ of 12%. No order on costs. **Sd/K.VINOD CHANDRAN JUDGE** **Sd/-** **V.G.ARUN JUDGE** Scl/ W.P.(C) No.3228 of 2016 11 ## **APPENDIX** **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1** **P1- THE COPY OF THE COMPLAINT DATED 4.7.2015 FILED BY THE 2ND RESPONDENT.** **EXHIBIT P2** **P2- THE TRUE COPY OF THE OBJECTION DATED 17.07.2015 FILED BY THE PETITIONER BEFORE THE 1ST RESPONDENT.** **EXHIBIT P3** **P3- THE TRUE COPY OF THE AGREEMENT ENTERED INTO BY THE 2ND RESPONDENT & PRINCIPAL.** **EXHIBIT P4** **P4- THE TRUE COPY OF THE AGREEMENT DATED 03.04.2015 BETWEEN THE PRIVATE COLLEGE MANAGEMENT ASSOCIATION AND GOVERNMENT.** **EXHIBIT P5** **P5- TRUE COPY OF ORDER OF THE 1ST RESPONDENT DATED 31.1.2015.** W.P.(C) No.3228 of 2016 12