The Principal, Sree Narayan Mangalam Institute of Management and Technology v. Fee Regulatory Committee for Professional Colleges in Kerala, State of Kerala, Commissioner of Entrance Examinations, Mazhar Mahamood P.P. Nasarulla Nivas

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON & THE HONOURABLE MR. JUSTICE DAMA SESHADRI NAIDU THURSDAY, THE 29TH DAY OF SEPTEMBER 2016/7TH ASWINA, 1938 WP(C).No. 24792 of 2016 (Y) ---------------------------- PETITIONER: ------------ THE PRINCIPAL, SREE NARAYANA MANGALAM INSTITUTE OF MANAGEMENT AND TECHNOLOGY, MALIANKARA, ERNAKULAM DISTRICT. BY ADVS.SRI.K.B.GANGESH SMT.SMITHA CHATHANARAMBATH SMT.ATHIRA A.MENON RESPONDENTS: -------------- 1. FEE REGULATORY COMMITTEE FOR PROFESSIONAL COLLEGES IN KERALA, T.C 15/1553-4, PRASANTHI BUILDINGS, M.P. APPAN ROAD, VAZHUTHACAUD, THIRUVANANTHAPURAM - 14, REPRESENTED BY ITS CHAIRMAN. 2. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, DEPARTMENT OF HIGHER EDUCATION, SECRETARIAT, THIRUVANANTHAPURAM. 3. COMMISSIONER OF ENTRANCE EXAMINATIONS, 5TH FLOOR, HOUSING BOARD BUILDINGS, SANTHI NAGAR, THIRUVANANTHAPURAM-1. 4. MAZHAR MAHAMOOD P.P. NASARULLA NIVAS, MANAMAL, ANELA ROAD, KOYILANDY P.O., KOZHIKODE- 673 505. R1 BY ADV. SMT.MARY BENJAMIN, SC, ADMISSION SUPERVISORY COMMITTEE R4 BY ADV. SRI.P.S.SREEDHARAN PILLAI R4 BY ADV. SRI.T.K.SANDEEP R4 BY ADV. SRI.ARJUN SREEDHAR R4 BY ADV. SRI.ARUN KRISHNA DHAN R BY GOVERNMENT PLEADER SRI.T.RAJASEKHARAN NAIR R BY ADV. SMT.MARY BENJEMIN THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 29-09-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC No.24792 of 2016 ## APPENDIX ## PETITIONER'S EXHIBITS: EXT.P1 TRUE COPY OF GO(MS)258/2014/H.EDN.DTD.10.6.2014 ISSUED BY THE SECOND RESPONDENT. EXT.P2 TRUE COPY OF ALLOTMENT MEMO DTD.23.7.2014 ISSUED BY THE THIRD RESPONDENT TO THE 4TH RESPONDENT. EXT.P3 TRUE COPY OF LETTER DTD.2.6.2015 PREFERRED BY THE 4TH RESPONDENT'S MOTHER. EXT.P4 TRUE COPY OF COMPLAINT DTD.9.10.2015 PREFERRED BY THE 4TH RESPONDENT BEFORE THE IST RESPONDENT. EXT.P5 TRUE COPY OF OBJECTION DTD.10.2.2016 PREFERRED BY THE PETITIONER BEFORE THE IST RESPONDENT. EXT.P6 TRUE COPY OF ORDER DTD.24.06.2016 ISSUED BY THE IST RESPONDENT. EXT.P7 TRUE COPY OF INCOME CERTIFICATE DTD.17.7.2015 SUBMITTED BY THE 4TH RESPONDENT BEFORE THE IST RESPONDENT. ## TRUE COPY p.s.to judge CSS/ **C.R.** # **P. R. RAMACHANDRA MENON & DAMA SESHADRI NAIDU, JJ.** ------------------------------------------- WP(C) No.24792 of 2016 -------------------------------------------Dated this the 29[th] day of September, 2016 ## **JUDGMENT** Dama Seshadri Naidu,J. ## **In Perspective:** A student joined a course and left the college in the second year. The college compelled him to pay liquidated damages, which he did for securing his academic certificates. On his complaint, the statutory Committee ordered refund. The college assails the Committee’s order as bad. ## **The Dispute:** 2. The facts in brief are that the 4[th] respondent (‘the Student’) secured admission into an engineering course in the petitioner WPC No.24792 of 2016 2 college (‘the College’) and joined the course on 24.7.2014. In the course of time, the Student, it seems, discontinued his course. His mother submitted Ext.P3 representation, dated 2.6.2015, through the Hon'ble Minister for Industry and IT, to the College. She wanted her son’s academic records and certificates returned to him. Financial difficulty was the reason she had cited for the Student’s discontinuation. 3. When the College refused to return the documents as requested by the Student’s mother, the Student paid the liquidated damages—Rs.2.25 lakhs—and secured the documents. Nevertheless, the Student complained to the first respondentCommittee about the College collecting the liquidated damages and sought a direction to the College to refund the amount. As seen from the record, through Ext.P6 order the Committee ordered the College to refund the amount. Aggrieved, the College has filed this writ petition. WPC No.24792 of 2016 3 ## **Regulatory Regime:** ## **(a) Agreement** 4. Ext.P1 agreement (‘the Agreement) entered into between the Government and the Association of Colleges governs various aspects of the students’ admission into colleges. Clause-17 of the agreement enables the educational agency to retain the tuition fee remitted by the student if the student admitted in the management quota or Government quota discontinues his or her studies after 15[th] day of July 2013. It further provides that if any student, admitted to the college, cancels the admission for any reason whatsoever, the educational agency will collect the tuition fee of the entire course. The provision has, however, provided an exemption: if the seat so vacated gets filled up by a new candidate, the tuition fee collected under this clause will be refunded to the student. WPC No.24792 of 2016 4 ## **(b) Prospectus:** ## 5. The KEAM Prospectus issued by the Government through G.O. (Ms) No.734/2013/H.Edn., dt.18.12.2013, (‘the Prospectus’) is an elaborate statutory scheme vitally affecting the admissions. Clause 12.2.4 (a)(i) of KEAM Prospectus reads as follows: ## **12.2.4 Liquidated damages** ## **(a) Levying amount towards liquidated damages from candidates discontinuing their studies:** (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 course/colleges or for other purposes he/she is liable to pay liquidated damages of Rs.75,000/- (Rupees Seventy Five Thousand only for the courses other than MBBS/BDS. The liquidated damages for those candidates discontinuing courses in Government Engineering Colleges will be Rs.50,000/- (Rupees Fifty thousand only). In all such cases the Transfer Certificate will be issued only after remitting the liquidated damages to the admitting authority concerned. Candidates belonging to SC/ST/OEC are exempted from this rule. Candidates belonging to 'Keralite' category, as per Clause 6.1(i), whose annual family income is below Rs.75,000/- and who have submitted income certificate along with the application for admission to Professional Degree Courses 2013 will also be exempted from payment of Liquidated damages. Candidates who are transferred from one institution to another as per proceedings of the University concerned are exempted from payment of liquidated damages. The students admitted in Government/Management seats in WPC No.24792 of 2016 5 Professional Colleges who discontinue their studies to join National Defence Academy/Naval Academy are exempted from the payment of Liquidated damages”. (emphasis added) ## 6. Clause 12.2.4 (b) (ii) deals with a student discontinuing a course after the first academic year. The Clause-ii reads: “for Government seats in private self-financing/Government controlled self-financing colleges, liquidated damages shall be levied either as in clause 12.2.4 (a)(i) & (iii) or fees for remaining years, whichever is higher, irrespective of annual family income/nativity/reservation status”. ## **Submissions:** ## **The College’s:** 7. The learned counsel for the College has submitted that the Student pursued his course in the first year, but later—only in the second year—discontinued because he had secured admission in a law college. The primary reason, according to him, as is to be gathered from Ext.P4 complaint filed by the Student before the Committee, is that he had ‘lost interest’ in continuing the course. WPC No.24792 of 2016 6 8. In elaboration, the learned counsel has drawn our attention to clause 12.2.4 (a) (i) and also 12.2.4 (b) (ii) to hammer home his contention that any exemption contemplated under 12.2.4(a)(i) confines itself to the year of admission i.e., the first year. He has further submitted that from the second year onwards, if there is any discontinuation, a student must pay the liquidated damages under all circumstances. 9. As regards clause 17 of the Agreement, it cannot have, the learned counsel contends, any overriding effect on the Prospectus. In sum and substance, the learned counsel has submitted that the Agreement is to be read with the Prospectus. ## **The Committee’s:** 10. The learned Standing Counsel for the Committee has submitted that the Prospectus exempts a student from paying the liquidated damages if he or she meets the exemption criteria provided under Clause 12.2.4 (a) (i). When confronted with the WPC No.24792 of 2016 7 further provision, namely Clause 12.2.4 (b) (ii), the learned Standing Counsel has submitted that Clause 12.2.4 (a) (i) has two limbs. According to her, the first limb is generic in its scope and the proviso appended at the end of the provision governs only this generic aspect. 11. In further elaboration, the learned Standing Counsel has also submitted that from the second year onwards, those who have been dealt with in the first part of 12.2.4 (a) (i) alone have to pay the liquidated damages with no reference to their economic status, social status or any other protective criteria provided in the second limb of 12.2.4 (a) (i). Eventually the learned Standing Counsel has submitted that the impugned Ext.P6 order is unassailable and requires no interpretation. ## **The Student’s:** 12. Sri.Arun Krishna Dhan, the learned counsel for the Student, has submitted that in Ext.P3 the Student’s mother has WPC No.24792 of 2016 8 explicitly set out the family’s pathetic financial conditions. According to him, only under compelling circumstances did the Student leave the college and secure admission in an entirely different course—law, which is less expensive. 13. In further elaboration of his submissions, Sri Arun Krishna Dhan has contended that the mother’s representation (Ext.P3) is earlier in point of time than the Student’s petition (Ext.P4) before the Committee. So, the financial stringency cited by the mother cannot be ignored. On the governing provisions concerning the liquidated damages, the learned counsel has submitted that clause 12.2.4 (b) (ii) is to be read harmoniously with clause 12.2.4 (a) (i), lest the exemption should smack of discrimination. In elaboration, he has submitted that the Government in its wisdom has exempted certain classes of students from the dragnet of the provision—from paying the liquidated damages. It would be entirely inequitable and arbitrary, according WPC No.24792 of 2016 9 to him, to assume that the same exempted students would have to pay the liquidated damages from the 2[nd] year onwards. 14. Heard the learned counsel for the petitioner Institution, learned standing counsel for the 1[st] respondent, the learned Government Pleader for the 2[nd] and 3[rd] respondents, as well as the learned counsel for the 4[th] respondent, apart from perusing the record. ## **Issue:** 15. The Student has discontinued the course in the second year. There are two reasons cited—one by the student and the other by his mother: (1) lack of interest; (2) financial difficulty. The regulations exempt ‘Keralites’ with annual income less than Rs.75,000/- from paying the liquidated damages, on their discontinuing the course. Has the Student here earned the exemption? WPC No.24792 of 2016 10 ## **Discussion:** 16. Indeed, the facts are not in dispute. The only issue to be resolved is whether the collection by the petitioner Institution of liquidated damages from the Student is justified given the exemption provided in 12.2.4 (a) (i). Or whether 12.2.4 (b) (ii) takes away the protection from the second year onwards. ## **The Committee’s Finding:** 17. The Prospectus exempts a student of Kerala origin, Keralite, with an annual income less than Rs.75,000/- from paying the liquidated damages. Since the Student fits into this category, he was exempted. ## **Is the Committee’s Finding Sustainable?** 18. First, the Student himself has pleaded in Ext.P4 that after attending a couple of classes in the first year, he lost interest, absented himself, prepared for the law entrance and, then, secured admission in a law college. He left the college in the second year. WPC No.24792 of 2016 11 19. If the Student’s reason cited in Ext.P4, on which the Committee has acted, is to be taken, it is clearly out of the protective cover of the exemption in Clause 12.2.4. The Student’s mother, however, has cited another reason—the financial difficulty. We will examine, in the alternative, whether this reason earns any exemption. ## **Analysis:** 20. To resolve the issue, we need to analyse clause 12.2.4 (a) (i) a little deeper—for it affects other parts of the provision. An analysis of Clause 12.2.4 (a) (i) leads us to these: (a) A student should have been admitted in a ‘government seat’, say, in a private self-financing college (which the petitioner college is); (b) the student should have discontinued the studies after the closing of admission [as the Student did here]; (c) in the same academic year [but the student here discontinued the next year]; (d) to join other course/colleges [yes, applicable]; (e) then WPC No.24792 of 2016 12 the student is liable to pay liquidated damages; and (f) the Transfer Certificate will be issued only after the student remits the liquidated damages. 21. Exemptions are provided: (1) candidates belonging to SC/ST/OEC are exempted from this rule; (2) **candidates belonging to 'Keralite' category with annual family income below Rs.75,000/-,** too, are exempted; (3) candidates who are transferred from one institution to another as per proceedings of the University concerned are exempted; (4) the students who discontinue their studies to join National Defence Academy/Naval Academy are exempted. 22. From Clause 12.2.4 (a) (i) it is evident that the entire scheme is confined to the academic year of admission. True, there is an exemption provided to certain classes of students from the rigour of paying the liquidated damages, candidates belonging to 'Keralite' category with annual family income below 75,000/- being WPC No.24792 of 2016 13 one such class. Clause 12.2.4 (b) (ii) the provision, in our view, is unambiguous that for Government seats in Private Self-Financing colleges the liquidated damages will be levied ‘irrespective of annual family income/nativity/reservation status’. 23. We may, at this juncture, recall the forceful submission made by the learned Standing Counsel that the candidates exempted from the rigor of penalties will have the protection through the entire course—in all the years. We are afraid, if we read both the provisions i.e., Clause 12.2.4 (a) (i) and (b) (ii) harmoniously, it is evident that Clause 12.2.4 (a) (i) confines itself to the year of admission, whereas Clause 12.2.4 (b) (ii) applies to the rest of the years. If the line of argument advanced by the learned Standing Counsel is to be adopted to the entire course, Clause 12.2.4 (b) (ii) renders itself otiose. 24. Cardinal is the cannon of construction that there can be no presumption as regards legislative surplusage. In elaboration, WPC No.24792 of 2016 14 we may observe that the Court will make every endeavor to read all the provisions compendiously and render a harmonious construction. _Verba cum effectu sunt accipienda_ —meaning ‘these words cannot be meaningless, else they would not have been used,’—is the canon that comes to mind. If possible, every word and every provision is to be given effect. None should be ignored. None should needlessly be given an interpretation that causes it to . duplicate another provision or to have no consequence[1] 25. The surplusage canon holds that it is no more the court’s function to revise by subtraction than by addition. A provision that seems to the court unjust or unfortunate (creating the so-called _casus male inclusus_ ) must nonetheless be given effect. As Chief Justice John Marshall explained: “It would be dangerous in the extreme, to infer from extrinsic circumstances, that a case for which the words of an instrument expressly provide, shall be > 1 United States v. Butler, 297 U.S. 1, 65 (1936) as quoted in _Reading the Law_ by Scalia & Garner WPC No.24792 of 2016 15 exempted from its operation.” Or in the words of Thomas M. Cooley: “[T]he courts must . . . lean in favor of a construction which will render every word operative, rather than one which may make some idle and nugatory.” This is true not just of legal texts but of all sensible writing: “Whenever a reading arbitrarily ignores linguistic components or inadequately accounts for them, the reading may be presumed improbable.”[2] To sum up, if a provision is susceptible of (1) a meaning that deprives another provision of all independent effect, and (2) another meaning that leaves both provisions with some independent operation, the latter should be . preferred[3] 26. Before parting, we may as well observe that the Student, then a major, has consciously made a statement in his Ext.P4 complaint that soon after his joining the engineering course and after attending a couple of classes he had lost interest, absented > 2 Ibid (internal quotations omitted) > 3 Ibid WPC No.24792 of 2016 16 himself from the course, and eventually secured admission in an alternative course—in an another college. Assuming there were any financial difficulties faced by the family to sustain the student's continued education, it cannot be a factor that could influence the interpretation of a provision if it is otherwise clear. Under these circumstances, we feel that Ext.P6 order cannot be sustained and is accordingly set aside. As a result, the writ petition stands allowed. No order on costs. sd/- **(P.R. RAMACHANDRA MENON, JUDGE)** ## **sd/- (DAMA SESHADRI NAIDU, JUDGE)** css/DG true copy P.S.TO JUDGE