Writ Appeal No. 669 of 2021: The Manager, National College of Pharmacy, Manassery v. Ahmed Sharooq S.M. and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR** ## **&** **THE HONOURABLE MR. JUSTICE SHAJI P.CHALY** **WEDNESDAY, THE 8[TH] DAY OF SEPTEMBER 2021 / 17TH BHADRA, 1943 WA NO. 669 OF 2021** **AGAINST THE JUDGMENT IN WP(C) 6527/2021 OF HIGH COURT OF KERALA** ## **APPELLANT:** **THE MANAGER, NATIONAL COLLEGE OF PHARMACY MANASSERY P.O., MUKKOM, KOZHIKODE-673 602.** **BY ADVS.** **K.M.JAMALUDHEEN SMT.LATHA PRABHAKARAN** ## **RESPONDENTS:** - **1 AHMED SHAROOQ S.M. AGED 23 YEARS S/O.MEETHIAN, SRAMBIKKAL HOUSE, RAYONPURAM, PERUMBAVOOR, ERNAKULAM DISTRICT-683 542.** - **2 THE STATE OF KERALA, REPRESENTED BY THE SECRETARY TO THE DEPARTMENT OF HEALTH AND FAMILY WELFARE, SOUTH BLOCK, SECRETARIAT, THIRUVANANTHAPURAM-695 001.** - **3 THE KERALA UNIVERSITY OF HEALTH SCIENCES, REPRESENTED BY ITS REGISTRAR, KERALA UNIVERSITY OF HEALTH SCIENCES, TRISSUR-680 596.** **BY ADVS.** - **Adv.GEORGE SEBASTIAN FOR R1 SHRI.P.SREEKUMAR, SC, KERALA UNIVERSITY OF HEALTH SCIENCES FOR R3** **SRI.K.P.HARISH, SENIOR GOVERNMENT PLEADER FOR R2** **THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 08.09.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.A.No.669 of 2021 2 ## **JUDGMENT** Dated this the 8[th] day of September, 2021 ## **SHAJI P.CHALY,J.** This appeal is preferred by the 3[rd] respondent in W.P.(C) No.6527 of 2021, challenging the judgment of the learned Single Judge dated 8.4.2021, whereby the learned Single Judge directed the appellant to return the original certificates submitted by the writ petitioner while taking admission in the college, however left open the liberty of the appellant to make any claim with regard to any amount due from the writ petitioner, in accordance with law. It is thus challenging the legality and correctness of the judgment, this appeal is preferred. 2. Material facts for the disposal of the writ appeal are as follows; writ petitioner secured admission for Pharm.D course in the appellant college for the period from 2013 to 2019. Appellant is a Self Financing college, affiliated to the Kerala University of Health Sciences. While securing admission, various certificates and mark lists were produced by the writ petitioner before the Principal of the college. Apparently due to medical reasons, writ petitioner had to discontinue the course in the 2[nd] year. Exhibit P6 is the certificate dated 9.3.2021 issued by the Dhanya W.A.No.669 of 2021 3 Doctors Chamber and signed by Dr.Aswin Krishnan Ajit, Consultant Psychiatrist. According to the writ petitioner, due to the treatment that had to be undertaken by the writ petitioner, he could not pursue his studies, however, when an application was filed seeking to release the original documents, appellant college has failed to release the documents stating that writ petitioner was duty bound to pay the course fees to the college on account of discontinuation of the studies by him and the college suffering damages, and in absentia of payment of liquidated damages, the documents would not be returned. 3. The college has also filed a counter affidavit basically contending that as per the prospectus for admission to B.Pharm and D.Pharm Courses 2013-2014, the college is entitled to retain the documents till such time the college is compensated. The learned Single Judge, after assimilating the factual and legal situations, has issued directions to release the original documents to the petitioner, on the petitioner approaching the respondents, within a period of two weeks from the date of receipt of a copy of the judgment. 4. We have heard learned counsel for appellant Sri.Jamaludheen, learned Standing Counsel for the Kerala University of Health Sciences Sri.P.Sreekumar, learned counsel Sri.George Sebastian for the writ W.A.No.669 of 2021 4 petitioner, learned Senior Government Pleader Sri.Tek Chand for the State and perused the pleadings and materials on record. 5. The issue in question was considered by one of us (Justice Shaji P. Chaly) in **Neethu J v. State of Kerala and Others** [2019(2)KHC 669 =2019 (2) KLT 129] and **Robin v. KMCT Law College** [2019(3) KLT 481] and held that the original certificate is not having the characteristics of a mortgage and the Principal of the college is holding the original certificates for and on behalf of the students as a trustee and further that, the original certificates cannot be retained so as to coerce the students to pay the course fees to the college. It was also held in **Neethu.J** supra that the original documents of the student are not given by her as collateral security for ensuring payment of liquidated damages and that the documents produced by the student are required for the student for pursuing her professional and career prospectus and that those are all personal documents, which will not earn any amount to the college and further that, it cannot be utilised by the college for the purpose of realizing the liquidated damages by selling, mortgaging or in any manner providing the same as a security. 6. In our considered view, there is no doubt that the situations raised in the writ petition are similar in nature. Even though the learned W.A.No.669 of 2021 5 counsel for appellant Sri.Jamaludheen submitted that the writ petitioner has not disclosed the disease stated to have suffered by him and, if it was disclosed, that would have dis-entitled the writ petitioner to join in the course. However, learned counsel for the appellant could not point out any provisions in the prospectus or a rule anywhere else to substantiate that a candidate submitting an application to secure admission to a course is duty bound to disclose any disease suffered by him. Therefore, we are unable to agree with the contention so advanced by the learned counsel for the appellant. More over the damages alleged to be suffered is a factual aspect to be proved by the appellant by adducing cogent evidence in that regard before a fact finding legal fora, and the appellant can never take up the task of an adjudicator of its own cause, power for which is conferred only on a competent court of law . However, learned counsel for appellant has submitted that the original Transfer Certificate submitted by the writ petitioner cannot be returned since the Transfer Certificate is to be issued by the appellant college on discontinuance of the course by the writ petitioner. 7. We are in absolute agreement with the submission so made by learned counsel for the appellant. In that view of the matter, we decline to interfere with the directions issued by the learned Single Judge in the W.A.No.669 of 2021 6 impugned judgment, however, we modify the judgment that the writ petitioner is entitled only to receive the Transfer Certificate issued by the appellant college and not the Transfer Certificate submitted by the writ petitioner issued from the Secondary School concerned. Writ appeal is disposed of as above. But, since the time granted by the learned Single Judge has already elapsed, we direct the appellant college to release the original documents and the Transfer Certificate, as is observed above, within three weeks from the date of receipt of a copy of this judgment. Sd/- smv **S. MANIKUMAR, CHIEF JUSTICE.** Sd/- **SHAJI P. CHALY, JUDGE.** W.A.No.669 of 2021 7 ## **APPENDIX OF WA 669/2021** ## **PETITIONER EXHIBITS** - **EXHIBIT P1** **TRUE COPY OF THE CERTIFICATE ISSUED BY THE CONTROLLER OF EXAMINATIONS OF THE CENTRAL BOARD OF SECONDARY EDUCATION DATED 27.05.2013 IN FAVOUR OF THE PETITIONER.** - **EXHIBIT P2 TRUE COPY OF THE RECEIPT DATED 19.07.2013 ISSUED BY THE OFFICE OF THE 3RD RESPONDENT.** - **EXHIBIT P3 TRUE COPY OF THE REPRESENTATION DATED 11.02.2021 SUBMITTED BY THE PETITIONER TO THE 3RD RESPONDENT.** - **EXHIBIT P4 TRUE COPY OF THE REPRESENTATION DATED 11.02.2021 SUBMITTED BY THE PETITIONER TO THE 1ST RESPONDENT.** - **EXHIBIT P5 TRUE COPY OF THE REPRESENTATION DATED 11.02.2021 SUBMITTED BY THE PETITIONER TO THE 2ND RESPONDENT.** - **EXHIBIT P6 TRUE COPY OF THE MEDICAL CERTIFICATE DATED 09.03.2021 SHOWING THE PETITIONERS DISEASE ISSUED BY DR.ASWIN KRISHNAN AJIT.** - **EXHIBIT P7 TRUE COPY OF THE RELEVANT EXTRACT OF THE NOTIFICATION ISSUED BY THE UNIVERSITY GRANTS COMMISSION.** - **EXHIBIT P8 TRUE COPY OF THE POSTAL RECEIOT DATED 15.2.2021** - **EXHIBIT P9 TRUE COPY OF THE TRACKING REGISTER SHOWING THE DELIVERY OF THE POSTAL ARTICLE ON 18.2.2021** - **EXHIBIT R3(a) TRUE COPY OF THE APPLICATION FORM SUBMITTED BY THE PETITIONER TO THE** W.A.No.669 of 2021 8 ## **COLLEGE** **EXHIBIT R3(b) TRUE COPY OF THE RELEVANT PAGES OF THE PROSPECTUS ISSUED BY THE KERALA STATE SELF FINANCING PHARMACY COLLEGE MANAGEMENT ASSOCIATION FOR THE ACADEMIC YEAR 2013-2014.**