Tissna Paul v. School of Communication & Management Studies & Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR** **MONDAY, THE 3RD DAY OF JULY 2017/12TH ASHADHA, 1939** **WP(C).No. 24526 of 2013 (M) ----------------------------** **PETITIONER:** - **-----------** **TISSNA PAUL,AGED 22 YEARS, D/O.PAULOSE,KANDATHIL HOUSE,CMC 27, MANORAMA JUNCTION, CHERTHALA P.O,ALAPPUZHA-688524** **BY ADVS.SRI.BABU KARUKAPADATH SMT.M.A.VAHEEDA BABU SRI.K.A.NOUSHAD SRI.P.U.VINOD KUMAR SRI.KANDAMPULLY RAHUL SRI.MITHUN BABY JOH SRI.J.RAMKUMAR** ## **RESPONDENT(S):** - **-------------** - **1.SCHOOL OF COMMUNICATION & MANAGEMENT STUDIES SCMS CAMPUS,PRATHAP NAGAR, MUTTOM ALUVA, COCHIN-683106,REP BY ITS PRINCIPAL** - **2.THE REGISTRAR,** - **SCHOOL OC COMMUNICATION AND MANAGEMENT STUDIES, PRATHAP NAGAR, MUTTOM, ALUVA, COCHIN-683106** **3.MAHATMA GANDHI UNIVERSITY, PRIYADARSHINI HIILS,KOTTAYAM, REPRESENTED BY ITS REGISTRAR 686001.** - **4.ADI SHANKARA INSTITUTE OF ENGINEERING AND TECHNOLOGY,(ADI SHANKARA BUSINESS SCHOOL),KALADY,** - **ERNAKULAM, REPRESENTED BY ITS DIRECTOR 682035. R1,R2 BY ADV. ADV.SRI.MILLU DANDAPANI,SC R3 BY ADVS.SRI.VARUGHESE M.EASO, SC SRI.ASOK M. CHERIAN, SC,** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 03-07-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **K.V.** **WP(C).No. 24526 of 2013 (M) ----------------------------** ## **APPENDIX** **PETITIONER(S)' EXHIBITS -----------------------** - **P1:- A TRUE COPY OF THE INTERVIEW CARD SOWING THE FEE STRUCTURE OF 2 YEAR PGDPM IN THE IST RESPONDENT COLLEGE** - **P2:- A TRUE COPY OF RECEIPTS DTD 19/7/2013 EVIDENCING PAYMENT OF TUITION FEE AND OTHER FEE INCLUDING THE HOSTEL FEE TO THE TUNE OF RS.1,36,750/-** - **P3:- A TRUE COPY OF THE RECEIPT EVEIDENCING PRODUCTION OF ORIGINAL DOCUMENTS/MARK LISTS DTD 19/7/2013, BY THE PETITIONER BEFORE THE IST RESPONDENT** - **P4:- A TRUE COPY OF THE COMMUNICATION DTD 20/9/2013 RECEIVED BY THE PETITIONER FROM THE 2ND RESPONDENT** - **P5:- A TRUE COPY OF THE REQUEST DTD 3/9/2013 FOR WHICH EXT P 4 REPLY WAS RECEIVED TO THE PETITIONER** - **P6:- A TRUE COPY OF THE REQUEST DTD 30/9/2013 SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT THROUGH EMAIL** - **P7 A TRUE COPY OF THE NOTIFICATION DATED 25/5/2012 PUBLISHED BY THE AICTE IN THE NATURE OF THE REGULATION CALLED ALL INDIA COUNCIL FOR TECHNICAL EDUCATION REGULATIONS, 2012.** **RESPONDENT(S)' EXHIBITS** **-----------------------** - **R1(A) A TRUE COPY OF THE E-MAILS INFORMING THE STUDENTS THAT THE CLASS WILL COMMENCE FORM 29TH JULY,2013.** - **R1(B) A TRUE COPY THE NOTICE DATED 14/8/2013 ISSUED BY 1ST RESPONDENT.** - **R1(C) A TRUE COPY OF THE RELEVANT PAGE OF THE PROSPECTUS FOR PGDM COURSE FOR THE YEAR 2013-15.** - **R1(D) A TRUE COPY OF THE JUDGMENT IN WA.NO 1669 OF 2013 FILED BY PETITIONER OF THIS HON'BLE COURT** **P.S.TO JUDGE** **K.V.** ## **P.B.SURESH KUMAR, J.** ## **-----------------------------------------------** ## **W.P.(C) No.24526 of 2013 -----------------------------------------------** ## **Dated 3[rd] July, 2017.** ## **J U D G M E N T** Petitioner joined the first respondent college for Post Graduate Diploma Programme in Management during July, 2013. At the time of admission, the petitioner was required to produce her original certificates/mark lists including XII standard certificate, degree mark list, degree certificate etc. and she has produced the same before the first respondent. Ext.P3 is the receipt issued to the petitioner by the first respondent college in this connection. It is stated by the petitioner that though she had attended classes of the course from 29.7.2013 to 23.8.2013, she could not continue the course due to ill-health and consequently, she had discontinued the course and requested the first respondent college to return her original certificates. Ext.P4 is the communication issued by the WPC No.24526 of 2013 2 second respondent in response to the said request made by the petitioner. As per Ext.P4, the petitioner was informed that since the petitioner has withdrawn from the course after the admissions were closed and the classes began, the petitioner has to pay the entire fees of the course amounting to Rs.5,50,000/-, towards liquidated damages as the management is unable to fill up the seat allotted to the petitioner to anybody else. It is the case of the petitioner that after one year, she joined for MBA course in the fourth respondent college affiliated to the third respondent University and since she is unable to produce her original certificates before the fourth respondent college, the third respondent University has not yet approved her admission. The writ petition, in the circumstances, was filed seeking directions to the first respondent college to release the original certificates of the petitioner in respect of which Ext.P3 receipt has been issued and also to refund the fees collected from the petitioner at the time of admission. She also seeks directions to the third respondent University to approve her admission in the fourth respondent college for the MBA course. WPC No.24526 of 2013 3 2. A counter affidavit has been filed by the first respondent college, contending, among others, that the petitioner is bound by the terms of the prospectus published in connection with the course; that it is provided in the prospectus that those who quit the course after commencement of classes will have to remit the entire tuition fee of the programme as the seat will remain vacant and that no refund will be made after closure of admission and commencement of the classes. 3. Heard the learned counsel for the petitioner as also the learned counsel for the first respondent. 4. The learned counsel for the petitioner contended that since the petitioner has not undergone the course in the first respondent college, she has no liability to pay the fees prescribed by the first respondent for the course. It was also contended by the learned counsel for the petitioner that at any rate, the original documents of the petitioner cannot be withheld for non-payment of fees. 5. Per contra, the learned counsel for the first respondent contended that going by the terms of the WPC No.24526 of 2013 4 prospectus, the petitioner is liable to pay the amount demanded as per Ext.P4 communication. It was also contended by the learned counsel for the first respondent that in so far as the petitioner has not paid the fees payable in terms of the prospectus, the first respondent is justified in withholding the original certificates. 6. The portion of the prospectus relied on by the learned counsel for the first respondent to substantiate the contentions raised by him reads thus : ## “REFUND OF FEE Full refund will be made if the student withdraws admission before commencement of classes and closure of admission. Only the initial administrative expenses will be deducted as per rules. No refund will be made after closure of admission and commencement of classes. Those who quit after commencement of classes have to remit the entire tuition fee of the programme as the seat will remain vacant. Any student who is unable to continue the programme for want of eligibility marks in the qualifying examination will be eligible for refund as per rules even if it is reported after commencement of the programme. Being a non-funded self-financing institution we strictly follow the AICTE directive in this matter. Students may please note this before deciding to quit for any reason after WPC No.24526 of 2013 5 ## commencement of classes.” True, as contended by the learned counsel for the first respondent, there is a clause in the prospectus to the effect that if the student discontinues the course after the admissions are closed, he/she is bound to pay the entire tuition fees fixed for the programme as the seat will remain vacant. According to the learned counsel for the petitioner, such clauses in the prospectus published for courses are unconscionable and hence, not enforceable. It is not necessary to consider the correctness of the said stand taken by the petitioner as the present proceedings is not one instituted by the first respondent for realization of the amounts payable by the petitioner. As noted above, the writ petition is instituted mainly for release of the original certificates produced by the petitioner before the first respondent at the time of admission. The extracted portion of the prospectus does not confer any authority on the first respondent to withhold the original certificates of the petitioner. The learned counsel for the first respondent is unable to point out any legal provision also which WPC No.24526 of 2013 6 confers on the first respondent the right to withhold the certificates of the petitioner for non-payment of the amounts. Further, in the context of a case where a private educational institution had withheld the original certificates of the students on the strength of the agreements executed by the students authorising the college to withhold certificates for non-payment of amounts, this Court held in **Shireen v. State of Kerala** (2017(2) KLT 691) that such agreements are against public policy and cannot be enforced. Paragraph 7 of the said judgment reads thus : “7. The case of the College is that since the petitioners have not fulfilled their bonded obligation, the College is entitled to withhold their certificates. The petitioners do not admit their liability. In other words, the certificates of the petitioners are withheld by the College for enforcing a disputed liability. Even assuming that the agreement/bond executed by the petitioners in favour of the College authorising the College to withhold their certificates is not void for want of consideration, the question arises is whether the certificates of the petitioners can be withheld for enforcing a disputed liability. This question assumes importance in the light of the large number of similar litigations instituted before this Court in the recent past. A bond is only an instrument by which a person obliges or binds WPC No.24526 of 2013 7 himself to another for payment of a sum of money or in the performance of any other act. It is fundamental that if a person does not fulfil the bonded obligation, he is liable to pay the amount agreed upon and if he does not pay the amount agreed upon, in a country where rule of law prevails, the payment has to be enforced through a court of law. It cannot be said that non-payment of the amounts covered by the bond will always be without any basis. In some cases, it may be without any basis, but in some others, it may be due to some reason which the person concerned believes to be a justifiable reason for non payment. The sustainability or otherwise of the reason, on the basis of which the liability under the bond is denied, has to be examined by the court through the process of which the payment is to be enforced. If the practice of withholding the documents as a means to realise the disputed amounts is permitted to be adopted, the person affected would be compelled to forgo the defences, if any, available to him. Further, education has always been, and continues to be one of the most important needs of mankind. Every citizen has a right to education and State is under an obligation to establish educational institutions to enable the citizens to enjoy the said right. The recent change in the social and economic fabric of the country has, however, created a situation where it is inevitable for the State to permit private educational institutions to meet the requirements in the field of education. Education is essentially a charitable activity. As such, even when private bodies establish educational institutions, the object shall be charity and not profit. Of course, reasonable revenue surplus can be generated by the institutions for the development of education and expansion of the institutions. WPC No.24526 of 2013 8 Certificates of education/qualification are very important documents as far as students are concerned. Non availability of the certificates establishing educational qualifications may result in deleterious consequences as far as students are concerned, for, the same are the first and foremost documents insisted for employment and higher studies. It is trite that whatever tends to injustice of operation, restraint of legal rights, whatever tends to the obstruction of justice and whatever is against the morals can be said to be against public policy. In other words, matters which concern the public good and the public interest connotes the public policy. [See **P.Rathinam v. Union of India** (1994)3 SCC 394]. It is also trite that the principles governing public policy are capable, on proper occasion, of expansion or modification and the court in a given case is empowered to declare a practice as opposed to public policy in consonance with public conscience and in keeping with public good and public interest. [ _See_ **Central Inland Water Transport Corporation v. Brojo Nath Ganguly** [(1986) 3 SCC 156] and **State of Rajasthan v. Basant Nahata** [(2005) 12 SCC 77]. The agreements obtained by the College from the petitioners authorising them to withhold the certificates of the petitioners for payment of the amounts covered by the bonds, if any, executed by the petitioners, cannot be accepted as an approved social conduct and the same, in that sense, is unethical. Further, agreements of that nature are against public good and public interest as well. In the circumstances, even assuming that the agreement/bond executed by the petitioners in favour of the College authorising them to withhold their certificates is not void for want of consideration, the same is void as opposed to WPC No.24526 of 2013 9 public policy, in the light of Section 23 of the Indian Contract Act.” In the light of the said judgment, even assuming that the contention raised by the first respondent that they are entitled to realise from the candidates concerned the entire tuition fee in terms of the prospectus, the same does not confer any authority or justification on the part of the first respondent to withhold the original certificates of the petitioner. In the said view of the matter, according to me, the petitioner is entitled to succeed. In the circumstances, the writ petition is disposed of directing the first respondent to release the original certificates of the petitioner as mentioned in Ext.P3 receipt, forthwith. It is made clear that this judgment will not preclude the first respondent from instituting appropriate proceedings against the petitioner for realisation of the amounts, if any, due. Needless to say that in such proceedings, the petitioner will be free to raise all contentions available to her under law. In so far as directions are being issued for release of the original WPC No.24526 of 2013 10 certificates of the petitioner, I do not think it necessary to adjudicate the remaining issues raised in the writ petition. The remaining issues are, therefore, left open so as to enable the petitioner to institute fresh proceedings for the same, if required. ## **Sd/-** **P.B.SURESH KUMAR, JUDGE.** tgs (true copy)