IN THE HIGH COURT OF KERALA AT ERNAKULAM
WA.No. 1217 of 2002(B)
1. REV. DR.MATHEW MALEPARAMBIL,
... Petitioner
Vs
1. STATE OF KERALA, REPRESENTED BY THE
... Respondent
2. PRINCIPAL SECRETARY, HIGHR EDUCATION,
3. DIRECTOR OF COLLEGIATE EDUCATION,
For Petitioner :SRI.BABY ISSAC ILLICKAL
For Respondent :GOVERNMENT PLEADER
The Hon'ble the Chief Justice MR.H.L.DATTU
The Hon'ble MR. Justice A.K.BASHEER
Dated :11/08/2008
O R D E R
H.L.DATTU, C.J. & A.K.BASHEER, J.
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W.A.No. 1217 OF 2002,
O.P. Nos. 1609/03, 1774/03,
W.P.(C) Nos. 8298/04 AND 6511/04
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Dated this the 11th day of August 2008
JUDGMENT
A.K. BASHEER, J.
The question that arises for consideration in this bunch of cases is
whether the Government is justified in directing the private aided colleges
to transfer the “unclaimed caution deposits” collected from the students to
the Government treasury.
2. The writ appeal is filed by the principal of an aided private
college at Pala, challenging the judgment of the learned single Judge
upholding the above order issued by the Government. The learned Judge
took the view that the appellant/management was not justified in retaining
the unclaimed caution deposit and therefore the management was bound
to transfer the same to the treasury account, especially since the
Government is paying salary to the teaching and non-teaching staff in the
college. Since the same issue arises in the remaining original petitions
also, they have been referred to the Division Bench to be heard along with
the writ appeal. Therefore, these cases are being disposed of by this
common judgment.
WA No.1217/02 & Conns.
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3. In the Government Order, [GO(MS) No.150/2001/H.Edn. Dated
9.11.2001], it was ordered that unclaimed caution deposits lying in the PD
accounts of the principals of the aided colleges shall be transferred to the treasury
account The Director of Collegiate Education and Director of Technical
Education were directed by the Government to issue necessary instructions to the
principals of all private colleges in this regard. A copy of the said order is
available on record in OP No.1774/03.
4. Pursuant to the above order, the Deputy Director of Collegiate Education
had issued a Circular, on December 20, 2001 informing the principals of all private
colleges to comply with the direction contained in the Government Order.
Thereafter, on November 18, 2002, the Director of Collegiate Education had also
issued a Circular to all heads of institutions and managements to comply with the
above direction. The said order issued by the Government and the two circulars
issued by the Deputy Director and Director of Collegiate Education are primarily
under challenge in this bunch of cases.
5. It is contended by the learned counsel for the petitioners that the
Government is not entitled to issue a direction to the managements to transfer the
unclaimed portion of caution deposit to the treasury account, ignoring or
overlooking the clauses contained in the individual agreements executed between
the Government and the managements. It is beyond controversy that the
WA No.1217/02 & Conns.
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Government of Kerala had entered into separate individual agreements, i.e., Direct
Payment Agreement with the managements of aided colleges in the State. A copy
of one such agreement is marked as Ext.P1 in WP(C) No.6511/04. Clauses 1 to 5
in the said agreement deal with collection of fees in aided colleges. These
Clauses are extracted hereunder:
“1. The Educational Agency shall cause to collect tuition fees
including fines, if any, from the students admitted or to be
admitted to the institution only at the rates prescribed by the
University from time to time.
2. The Educational Agency shall cause to collect through the
Principal of the institution on or before the date prescribed
according to the rules in each month the tuition fees
prescribed and fines imposed on the students and remit all
such amounts to the credit of the Government in the Treasury
at Tirur in such manner as may be prescribed by the
Government from time to time. The amounts collected on a
day shall be remitted in the said Treasury within the next 4
working days.
3. The Educational Agency shall cause to collect from the
students such special fees at such rates as may be prescribed
by the University from time to time.
4. (i) The Educational Agency shall cause to remit all fee
collections other than those mentioned in clauses 1 and 2 in
WA No.1217/02 & Conns.
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the Treasury at Tirur in a separate account opened in the
name of the Principal of the Institution. Such remittance shall
be made within the next four working days after collection.
The Principal shall be competent to draw money from this
account and incur necessary expenditure on the items for
which such fees were collected.
(ii) The special fee collected for a purpose shall be utilised
only for the purpose for which it is intended and for no other
purpose.
(iii) The special fee collected from the students of a college
under the Educational Agency shall be utilised only for the
purpose of that college and not for the purpose of any other
college.
5. No fees other than those authorised under this agreement
shall be collected from the students of the Institution.”
6. It is pertinent to note that under Clause 3 the educational agency has
been given liberty to collect special fee from the students at such rates that may be
prescribed by the University from time to time. It is further provided that the
special fee collected for a purpose shall be utilized only for the purpose for which
it is intended and for not any other. Similarly, the special fee collected from the
students of a college under the educational agency shall be utilized only for the
purpose of that college and not for the purpose of any other college. More
importantly, Sub Clause (1) of Clause 4 extracted above stipulates that the
WA No.1217/02 & Conns.
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Principal shall remit the special fee in the treasury in a separate account opened in
his name. The principal is authorised to draw money from the said account
opened in his name and to incur necessary expenditure on the items for which such
special fees are collected.
7. It is on record that, in GO(MS) No.313/83/H.Edn. dated December 13,
1983, the Government had revised the PD rules to be maintained by the principals
of the aided colleges by enumerating the items of fees to be deposited in such
accounts. They included Athletic fee, stationary fee, magazine fee, caution money
deposit etc. Thus it is evident that, the Government, which was a party to the
agreement with the management, had reserved the right of the latter to collect
special fees from the students and utilize the same for the purpose for which it was
intended. But the Government took the unilateral view that the unclaimed caution
deposit lying in the PD account of the principal was bound to be transferred by the
management to the treasury account.
8. In the counter affidavit filed on behalf of the Government it is inter-alia
contended that, no specific orders had been issued permitting the management to
keep the unclaimed caution deposit in their custody, and use it for developing
infrastructural facilities in the institution. Since these aided institutions are run
with the assistance of the Government and also since maintenance and contingency
grants are provided by the Government for development of infrastructural facilities
WA No.1217/02 & Conns.
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in these institutions the managements are not entitled to appropriate the unclaimed
caution deposit to their coffers. It is further contended that a major portion of the
budgetary provisions of the Government is ear-marked for running aided private
institutions; but the fee collected from the students is quite negligible.
9. But, it has to be noticed that, the Government had entered into separate
agreements with these aided institutions. The clauses contained in the agreement
will have to be respected by both sides. The learned Government Pleader could
not bring to our notice any clause in the agreement which enabled the Government
to lay a claim over the unclaimed caution deposit lying in the PD account of the
principal. The Government Pleader was also not in a position to inform us as to
what was the unutilised amount available with these institutions under the head of
unclaimed caution deposit.
10. We have carefully perused the various clauses in the agreement. In our
view, The Government could not have unilaterally issued a direction to the
managements to transfer the unclaimed caution deposit to the treasury account. It
is trite that the parties to a contract shall be bound by the terms of the contract.
One of the parties to the contract cannot unilaterally try to enforce its own decision
on the other party, especially, when none of the clauses in the agreement gives
such an authority to either of them. In our view, the petitioners are amply justified
in contending that the impugned order issued by the Government and the two
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consequential circulars issued by the Director and Deputy Director of Collegiate
Education are arbitrary, illegal and unenforceable. Therefore the above order
issued by the Government in GO(MS) No.150/2001/H.Edn. Dated 9.11.2001 and
the two circulars issued by the Directorate (Ext.P2 and P3 in OP No. 1774/2003)
are quashed.
11. In WP(C) No.6511/04, the petitioner has prayed for a direction to the
respondents to disburse a sum of Rs.2,75,000/- towards maintenance and
contingency grant to the college for the period up to and inclusive of 2003-04.
Learned counsel submits that the said relief is not pursued at this stage. He prays
that petitioner may be granted liberty to pursue the matter before the authorities
concerned. Therefore, the petitioner in WP(C) No.6511/04 is given liberty to
pursue the above remedy before the appropriate authority.
All the original petitions and writ appeal are allowed as prayed for.
(H.L.DATTU)
CHIEF JUSTICE
(A.K.BASHEER)
JUDGE
ttb
WA No.1217/02 & Conns.
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