High Court Kerala High Court

Rev. Dr.Mathew Maleparambil vs State Of Kerala on 11 August, 2008

Kerala High Court
Rev. Dr.Mathew Maleparambil vs State Of Kerala on 11 August, 2008
       

  

  

 
 
  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

WA No.1217/02 & Conns.

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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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