Thulaseedharan Nair D v. Mohandas College of Engineering and Technology and Others

# **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 19TH DAY OF MARCH 2019 / 28TH PHALGUNA, 1940** ## **WP(C).No. 27804 of 2015** ## **PETITIONER:** **THULASEEDHARAN NAIR.D AGED 54 YEARS** **S/O.P.DAMODARAN NAIR, KRISHNENDU, PAYATTADI, NANNIYODE, PACHA (PO), THIRUVANANTHAPURAM, PIN-695 562.** **BY ADVS. SMT.M.M.JASMIN SRI.LIJO JOSEPH SRI.NIDHI SAM JOHNS** ## **RESPONDENTS:** - **1 MOHANDAS COLLEGE OF ENGINEERING AND TECHNOLOGY, ANADU, NEDUMANGADU, THIRUVANANTHAPURAM, PIN-695 544, REPRESENTED BY ITS DIRECTOR.** - **2 CHIEF ADMINISTRATOR MOHANDAS COLLEGE OF ENGINEERING & TECHNOLOGY, TC 11/1234 YMR JUNCTION, NANTHENCODE, THIRUVANANTHAPURAM, PIN-695 003.** - **3 GOVERNMENT OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT, HIGHER EDUCATION DEPARTMENT, THIRUVANANTHAPURAM, PIN-695 001.** - **4 COMMISSIONER OF ENTRANCE EXAMINATION HOUSING BOARD, BUILDING SANTHI NAGAR, THIRUVANANTHAPURAM, PIN-695 001.** - **5 MANAGER, ADMISSION SUPERVISORY COMMITTEE FOR PROFESSIONAL COLLEGE, OLD HIGH COURT BUILDING, RAM MOHAN PALACE,** **WP(C).No. 27804 of 2015 2** ## **ERNAKULAM, PIN-682031.** **BY ADVS. SMT RAJI T. BHASKAR GP SRI.KURIAN GEORGE KANNANTHANAM (SR.) SRI.TONY GEORGE KANNANTHANAM SMT.MARY BENJAMIN (SC)** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 19.03.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **“C.R”** ## **K.VINOD CHANDRAN & V.G.ARUN, JJ.** ----------------------------------------------W.P.(C) No.27804 of 2015 ----------------------------------------------Dated this the 19[th] day of March, 2019 ## **JUDGMENT** ## **Arun, J.** The petitioner's son T.S.Siddarth had obtained admission for B.Tech-Mechanical Engineering course in the first respondent college, on merit under Government quota in the academic year 2013-14. On the date of admission, i.e, on 5.7.2013, an amount of Rs.10,900/- was remitted by the petitioner towards special fees and caution deposit. Immediately thereafter, the Central Board of Secondary Education, as per Ext P3 letter, informed the petitioner's son that he had qualified for award of scholarship for higher education under Innovation in Science pursuit for Inspire Research by virtue of his performance within top 1% of the Senior School Certificate Examination conducted by the C.B.S.E in March/April, 2013. It was also informed that the performance in top 1% and enrolment into basic and natural science courses at B.Sc/Integrated M.Sc or M.S levels would **WP(C).No. 27804 of 2015 4** automatically qualify Siddarth for scholarship for higher education from the Government of India valued at Rs.80,000/- per year for 5 years. Thereupon, the petitioner's son applied for admission at the Indian Institute of Science Education and Research (IISER), Bhopal and obtained admission for the B.S-M.S Dual Degree Programme in the academic year 2013-14. His son having got admission in one of the most prestigious educational institutions in the country, the petitioner submitted a request before the second respondent on 22.7.2013, to release the original documents submitted at the time of admission and to issue Transfer Certificate, so that his son could join at IISER before 29.7.2013, the last date fixed for admissions there. On 22.7.2013 itself, the second respondent issued Ext P5 communication to the Director of the first respondent College stating that the documents and Transfer Certificate can be released after collecting fees for the entire duration of the course, amounting to Rs.2,60,000/-. In a purported gesture of grace, the second ## **WP(C).No. 27804 of 2015 5** respondent directed that the petitioner may be exempted from paying liquidated damages of Rupees One lakh as a very special case and that a no claim declaration should be collected from the candidate before releasing the documents. Left with no other choice, the petitioner remitted the amount of Rs.2,50,000/- and obtained the documents and the Transfer Certificate. Immediately thereafter the petitioner approached the Admission Supervisory Committee requesting that the first respondent college may be directed to refund the amount illegally collected towards fees for the entire duration of the course, to which his son had been admitted. Thereupon, the Admission Supervisory Committee issued notice to the first respondent college and sought its reply to the complaint submitted by the petitioner. The first respondent sent Ext P10 reply stating that the petitioner's son had joined for first year B.Tech Mechanical Engineering course in the college on 5.7.2013 and had sought to discontinue the course by letter dated 22.7.2013. That, the last date of **WP(C).No. 27804 of 2015 6** admission to the course was 15.7.2013, as per the agreement and Government Order No. G.O(Ms) No.265/2013/HEdn. dated 13.6.2013 and since the request was made after closure of admission, the student was liable to pay fees for the entire duration of the course, as well as liquidated damages. The Admission Supervisory Committee did not take a decision in the matter immediately and hence this Writ Petition was filed seeking a direction to respondents 1 and 2 to refund the amount of Rs.2,70,000/collected from the petitioner. Pending the Writ Petition, the Admission Supervisory Committee issued Ext P16 order and thereupon, the Writ Petition was amended by including a prayer to quash Ext P16 order in so far as it declined the prayer for refund of tuition fee of Rs.1,60,000/- with interest. 2. Under the impugned Ext P16 order, the Admission Supervisory Committee had relied on Clause 12.2.4(a)(i) of the G.O(Ms) No.265/2013/H.Edn. dated 13.6.2013 (Ext P9) to hold that the petitioner is liable to pay the approved **WP(C).No. 27804 of 2015 7** tuition fee of Rs.40,000/- for candidates admitted under merit quota for all the 4 years, amounting to Rs.1,60,000/-. It was therefore directed to deduct the amount of Rs.1,60,000/- from the total amount remitted by the petitioner and to refund an amount of Rs.1,00,500/-, which included the balance amount of Rs.90,000/- from the tuition fee and Rs.10,550/- collected at the time of admission. The complaint was thus partly allowed directing the respondent college to refund an amount of Rs.1,00,550/- with interest @ 9% p.a from 23.7.2013 within 30 days from the date of receipt of the order, failing which the entire amount would carry interest @ 12 % p.a from 23.7.2013. The learned Senior Counsel for respondents 1 and 2 submitted that the amount as directed by the Admission Supervisory Committee has been refunded during the pendency of this Writ Petition. This submission is accepted by the learned counsel for the petitioner. Therefore, the only question that remains to be considered is as to whether the petitioner is entitled for the ## **WP(C).No. 27804 of 2015 8** balance amount of Rs.1,00,000/- retained by the College. The answer to this question lies in a proper understanding of the relevant Clauses in Ext P7, the KEAM Prospectus 2013 issued by the Commissioner of Entrance Examinations and Ext P9, the Government Order approving the agreement with the Kerala Self Financing Engineering College Managements' Association, containing the major clauses regarding fees structure and allotment of seats. The relevant clauses in Ext P7 are extracted hereunder:- ## **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 Courses/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 ## **WP(C).No. 27804 of 2015 9** 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 Professional Colleges who discontinue their studies to join National Defence Academy/Naval Academy are exempted from the payment of Liquidated damages. In the case of Private Self financing Engineering Colleges, the date of closing of admission and levying of liquidated damages from the candidates discontinuing studies will be notified separately. 3. The corresponding clauses in Ext P9 are extracted below:- 19. The Educational Agency can retain the Tuition fee remitted by the student, in the event a student admitted under the ## **WP(C).No. 27804 of 2015 10** Management quota or Government quota, discontinues his/her studies for any reason at any time after 15[th] day 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 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. 4. A conjoint reading of the aforementioned clauses makes it clear that a student who discontinues studies after the closing of the admissions in the same academic year, to join other courses/colleges or for other purposes is liable to pay liquidated damages of Rs.75,000/-. Further, the Education Agency is entitled to retain the fee remitted by the student, in the event of a student admitted under the Management quota or Government quota, discontinuing studies after the closing of admissions. The Management is also entitled to collect the fee for the entire course, in case any student admitted to the college deciding to cancel the ## **WP(C).No. 27804 of 2015 11** admission for any reason whatsoever. This is subject to the condition that in the event of the seat so falling vacant being filled up by a new candidate, the tuition fee collected shall be refunded. The further stipulation is that the documents pertaining to such student shall be released only on payment of the amounts mentioned above. 5. Therefore, it is evident that in the case of a student, who discontinues the course prior to the last date of closing of admissions, he/she would be entitled for refund of the entire fees remitted. The liability to pay the fee for the entire duration of the course and liquidated damages would arise only if the student discontinues the course after the last date fixed for closure of admissions. Therefore, the vital aspect to be considered is as to what was the last date fixed for closing of admissions for the academic year 2013-14. Under Ext P7 it is specified that the date of closing of admissions and levying of liquidated damages from the candidates discontinuing studies after obtaining admissions in Private Self Financing Engineering **WP(C).No. 27804 of 2015 12** Colleges will be notified separately. From Ext P9 it is evident that the last date for admission was notified as 15.7.2013. The learned counsel for the petitioner as well as the learned Standing Counsel for the Admission Supervisory Committee relied on Ext P13 to contend that the last date for completing the admission process for Engineering Courses was later extended upto 15.8.2013, based on the judgment of the Hon'ble Supreme Court in C.A.No.9047 & 9048 of 2012. The learned Senior Counsel for respondents 1 and 2 refutes this contention and submits that the last date for closing of admissions having been notified as 15.7.2013, in terms of Clause 12.2.4 of Ext P7, the direction contained in the judgment of the Hon'ble Supreme Court and consequent extension of time for completing the admission procedure in Engineering Colleges would not result in automatic extension of the date specified in Ext P9, unless a fresh notification in that regard is issued, after consultation and obtaining consent from the Kerala Self Financing Engineering College Managements' **WP(C).No. 27804 of 2015 13** Association. It is contended that dates specified in Ext P9 was based on an agreement entered into between the Government and the Managements' Association and therefore, any variation in the date can only be on the basis of consent/agreement obtained from the Managements' Association. In this regard it may be relevant to have a scrutiny of Ext P13 order. It is clear from Ext P13 that consequent upon the guidelines issued by the Hon'ble Supreme Court in the judgments mentioned above, the Government amended Ext P7 prospectus by incorporating the following addition as Clause 11.6.8 (iii). “ The Hon'ble Supreme Court of India has ordered that the admission process for Engineering Courses shall be completed by 15[th] August, 2013. Hence no allotment/admission to Engineering Courses for 2013-14 will be made after 15.8.2013.” 6. Addition was also incorporated in Clause 9.7.10(a) as follows: - However, the rank list for Engineering Courses will be valid till 15.8.2013 in compliance of the orders of the Hon'ble Supreme Court of India dated 13.12.2012 in C.A.No.9047 & 9048 of 2012. **WP(C).No. 27804 of 2015 14** 7. The contention that the aforementioned modifications brought about to Ext P7 by way of incorporation would not result in automatic extension of the date specified in Ext P9 does not hold good for the reason that in Ext P9 Clause 1.7 of Ext P7 has been incorporated, which reads as follows:- “Allotment of seats from the State rank list for all courses in Self Financing Engineering Colleges will be made in accordance with the orders of the Hon'ble Supreme Court of India, High Court of Kerala or orders of Government of Kerala/Government of India as per the law in-existence at the time of Centralized Allotment Process(CAP) and will be notified separately.” 8. Therefore, there cannot be any doubt that the process of allotment of seats, including the last date for closing of admissions would depend upon the orders to be passed by the Hon'ble Supreme Court, the High Court or that of the Government of Kerala/Government of India. The Hon'ble Supreme Court having issued guidelines regarding admissions for the year 2013-14 and the **WP(C).No. 27804 of 2015 15** Government having re-fixed the last date for completing the process of admission as 15.8.2013, it is not open for respondents 1 and 2 or the Managements' Association to contend that the extended time limit is not applicable to the Private Self-Financing Engineering Colleges. 9. There is no dispute to the fact that the petitioner had requested return of his son's original certificates and for issue of Transfer Certificate on 22.7.2013. Ext P5 & P6 reveal that the petitioner was compelled to remit the tuition fee for the entire duration of the course for which on 22.7.2013 itself, since he required immediate return of his son's certificates and Transfer Certificate from the first respondent college. The request for permission to discontinue the course having been made on 22.7.2013, much prior to the last date for closing of admissions fixed as per Ext P13, the petitioner was entitled for release of the original certificates and Transfer Certificate from the first respondent college without remitting any further amount. In fact, the first respondent college was bound to refund **WP(C).No. 27804 of 2015 16** the amount of Rs.10,900/- remitted towards special fees and caution deposit. This being the case, the Admission Supervisory Committee went wrong in finding that the petitioner was liable to remit an amount of Rs.1,60,000/towards the tuition fee for the entire duration of the course for which his son had joined at the first respondent college. Hence, the said finding of the Admission Supervisory Committee is vacated and consequently respondents 1 and 2 are found liable to refund an amount of Rs.1,60,000/- to the petitioner with interest @ 7% from 22.7.2013, within a period of one month from the date of receipt of a copy of this judgment. It is made clear that in the event of respondents 1 and 2 failing to refund the amount within the time stipulated above, they would be liable to refund the amount of Rs.1,60,000/- with interest @ 18% till the date of payment. The petitioner would be at liberty to seek initiation of revenue recovery proceedings through the authority concerned, in the event of respondents 1 and 2 failing to make the payment within the prescribed time. **WP(C).No. 27804 of 2015 17** 10. Before parting with this case, we have to make a mention about the disturbing trend among some of the Private Self-financing Educational Institutions to fleece the students, who had joined their institutions on getting admission through the Centralized Allotment Process (CAP) and had, immediately thereafter, sought return of the original documents and in some instances refund of the fees, on getting admission for a course in a college/course of their choice. The plight of the petitioner herein, the father of one such student, is a classic example of the management holding the parents at ransom. This is a case where a brilliant student had sought to discontinue his admission with the first respondent college, on getting admission in one of the most prestigious educational institutions in the country, on merit and with a scholarship offered by the Government. 11. In this context, the following observation of Jeevan Reddy J. in _**Unnikrishnan'**_ s case **(1993)1 SCC 645** , assumes relevance: ## **WP(C).No. 27804 of 2015 18** “The hard reality that emerges is that private educational institutions are a necessity in the present-day context. It is not possible to do without them because the governments are in no position to meet the demand, particularly in the sector of medical and technical education, which call for substantial outlays. While education is one of the most important functions of the Indian state. It has no monopoly. The Private educational institutions-including minority educational institutions-do have a role to play" “.....While we do not wish to express any opinion on the question whether the right to establish an educational institution can be said to be carrying on any “occupation” within the meaning of Art.19(1)(g),perhaps, it is - we are certainly of the opinion that such activity can neither be a trade or business nor can it be a profession within the meaning of Art.19(l)(g). Trade or business normally connotes an activity carried on with a profit motive. Education has never been commerce in this country.....” ## 12. In **P.A.Inamdar and others v State of** **Maharashtra and others (2005)6 SCC 537** , one of the questions considered by the Hon'ble Apex Court was as to whether the Court in **Islamic Academy (2003)6 SCC 697)** , could have issued guidelines in the matter of ## **WP(C).No. 27804 of 2015 19** regulating the fee payable by students to the educational institutions. Answering the issue the Apex Court held as follows: “Education, accepted as a useful activity, whether for charity or for profit, is an occupation. Nevertheless, it does not cease to be a service to society. And even though an occupation, it cannot be equated to a trade or a business.” “Capitation fee cannot be permitted to be charged and no seat can be permitted to be appropriated by payment of capitation fee. “Profession” has to be distinguished from “business” or mere “occupation”. While in business, and to a certain extent in occupation, there is a profit motive, profession is primarily a service to society wherein earning is secondary or incidental. A student who gets a professional degree by payment of capitation fee, once qualified as a professional, is likely to aim more at earning rather than serving and that becomes a bane to society. The charging of capitation fee by unaided minority and non-minority institutions for professional courses is just not permissible. Similarly, profiteering is also not permissible. Despite the legal position, this Court cannot shut its eyes to the hard realities of commercialisation of education and evil practices being adopted by many institutions to earn large amounts for their private or selfish ends. If capitation fee and profiteering is to be checked, the method of admission has to be regulated so that the admissions are based on merit and ## **WP(C).No. 27804 of 2015 20** transparency and the students are not exploited. It is permissible to regulate admission and fee structure for achieving the purpose just stated.” _(emphasis supplied by us)_ 13. The State Government has enacted the Kerala Professional Colleges or Institutions (Prohibition of Capitation Fee, Regulation of Admission, Fixation of Nonexploitative Fee and Other Measures to Ensure Equity and Excellence in Professional Education) Act, 2006 with the avowed objective of bringing about equanimity and transparency in the matter of admission and collection of fees by the self-financing educational institutions. The Admission Supervisory Committee and Fee Regulatory Committees are constituted to achieve this objective. Further, Section 14 of the Act empower the Government to issue directions to any professional college or institution, as in its opinion are necessary or expedient for carrying out the purposes of the Act or to give effect to any of the provisions contained therein, or in any Rules or orders **WP(C).No. 27804 of 2015 21** made thereunder and the management of the college or institution shall comply with every such direction. If despite these statutory safeguards students are being exploited, it is for the Government to take appropriate measures, to prevent exploitation of students who seek discontinuance of the course before the last date fixed for closure of admissions in a particular year; lest the students and their parents are forced to succumb to the demands of the selffinancing institution and to later seek refund, resulting in protracted litigation. The writ petition is allowed. Sd/- **K.VINOD CHANDRAN, JUDGE** Sd/- **V.G.ARUN, JUDGE** cms **WP(C).No. 27804 of 2015 22** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** ## **EXHIBIT P1** **TRUE COPY OF THE PAYMENT SLIP DT 5-7-2013 ISSUED BY STATE BANK OF TRAVANCORE NEDUMANGADU.** **EXHIBIT P2** **TRUE COPY OF THE RECEIPT NO.1302 DT 5-72013 ISSUD BY MOHANDAS COLLEGE OF ENGINEERING AND TECHNOLOGY, ANAD.** - **EXHIBIT P3** - **TRUE COPY OF THE LETTER DT 20-7-2013 ISSUED BY CENTRAL BOARD OF SECONDARY EDUCATION, NEW DELHI.** - **EXHIBIT P4** - **TRUE COPY OF THE LETTER DATED 20-7-2013 ISSUED BY THE CHAIRMAN, JOINT ADMISSION COMMITTEE 2013, IISER.** - **EXHIBIT P5** - **TRUE COPY OF THE LETTER DT 22-7-2013 ISSUED BY THE SECOND RESPONDENT TO THE DIRECTOR OF THE FIRST RESPONDENT COLLEGE.** - **EXHIBIT P6** - **TRUE COPY OF THE RECEIPT NO.1806 DT 22-72013 FOR RS.2,50,000/- ISSUED BY THE FIRST RESPONDENT.** - **EXHIBIT P7 TRUE COPY OF THE PAGE NOS. 38 AND 39 OF KEAM PROSPECTS 2013 OF COMMISSIONER OF ENTRANCE EXAMINATIONS.** - **EXHIBIT P8 TRUE COPY OF GO (RT)NO.1836/2013/H/EDN. DT 5-9-2013, GOVERNMENT OF KERALA.** - **EXHIBIT P9** - **TRUE COPY OF GO (MS) NO265/2013 DT 13-62013 ISSUED BY GOVERNMENT OF KERALA.** - **EXHIBIT P10 TRUE COPY OF REPLY DT 23-12-2013 ISSUED BY THE SECOND RESPONDENT TO THE 5TH RESPONDENT WITH COPY TO THE PETITIONER.** **EXHIBIT P11** **TRUE COPY OF LETTER DT 21-5-2015 SENT BY THE PETITIONER TO THE SECOND RESPONDENT.** ## **WP(C).No. 27804 of 2015 23** **EXHIBIT P12 TRUE COPY OF POSTAL ACKNOWLEDGEMENT DT 22-5-2015 OF THE SECOND RESPONDENT.** **EXHIBIT P13** **TRUE COPY OF G.O.(MS) NO.10/2013/H.EDN DATED 16.1.2013 ISSUED BY GOVERNMENT OF KERALA** **EXHIBIT P14 TRUE COPY OF NOTIFICATION NO.CEE/3737/2012/ KEAM-2013/TAI DATED 29.7.2013 ISSUED BY THE COMMISSIONER OF ENTRANCE EXAMINATIONS** **EXHIBIT P15** **TRUE COPY OF THE WRITTEN SUBMISSION DATED 2.3.2016 FILED BY THE PETITIONER** **EXHIBIT P16 TRUE COPY OF THE ORDER DATED 15.3.2016 PASSED BY THE 5TH RESPONDENT** RESPONDENTS EXTS NIL /TRUE COPY/ P.S.TO JUDGE cms