IN THE HIGH COURT OF KERALA AT ERNAKULAM
WA No. 321 of 2006()
1. SHEENA K.OOMMEN, D/O.K.KOCHUTHOMMAN,
... Petitioner
2. NITHIN PRAKASH, S/O.DR.JAYAPRAKASH,
3. REJINA M., D/O.MYTHEEN KUNJU E.,
Vs
1. THE PRINCIPAL,
... Respondent
2. THE PRINCIPAL,
3. COMMISSIONER OF ENTRANCE EXAMINATION,
4. PRINCIPAL SECRETARY TO THE HIGHER
For Petitioner :SRI.R.LAKSHMI NARAYAN
For Respondent :GOVERNMENT PLEADER
The Hon'ble the Chief Justice MR.V.K.BALI
The Hon'ble MR. Justice M.RAMACHANDRAN
Dated :09/01/2007
O R D E R
(V.K.BALI, C.J & M.RAMACHANDRAN, J)
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W.A.No. 321 of 2006
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Dated this the 9th day of January, 2007
JUDGMENT
Ramachandran,J:
Petitioners in W.P.(C).No.24459 of 2005 could not
succeed in contending that the liquidated damages of
Rs.one lakh each, levied from them by the Government,
required to be refunded, since the learned single Judge took
a view that their claims were not sustainable as admissible
by clause 12.2.1 of the prospectus, which had been issued
by the Government, for admission to Professional Degree
Courses for the year 2004. The learned single Judge found
that clause 12.2.6 were to govern their cases and the
damages were rightly claimed and required to be paid.
Aggrieved by the judgment dated 12-01-2006, the present
appeal has been filed. They are undergoing the
M.B.B.S.Course in the Co-operative Medical College, Kochi,
now.
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2. The appellants contend that as a condition for
issue of the Transfer Certificate such payment had been
insisted upon and against their will and overlooking the law
and equity, such payment was received by Government and
this is to be declared as unauthorised. The representations
requesting for a review were rejected in the following terms:
“I am to invite your attention to the
reference cited. Admission against Government
Quota and Management Quota are different. The
candidates have relinquished admission against
Govt.Quota and sought admission against
Management Quota in a different College in a
different stream. Therefore, the request cannot
be considered”.
3. On behalf of the appellants, Smt.R.Ranjanie
counsel submits that the learned single Judge had failed to go
deeper into the question and the excuse supplied by the
respondents have been accepted without any serious
consideration.
4. Taking notice of the extensive arguments that
have forthcome, we think it will be appropriate to examine the
matter in some detail. The first appellant/Ist petitioner had
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appeared in the common entrance test and having secured a
rank of 1010 stood allotted to the Government Dental College,
Thiruvananthapuram for BDS Course. Such allotment had
been made by the Commissioner for Entrance Examinations.
The second appellant/2nd petitioner, who secured rank
No.1036 and the third appellant, who had been allotted rank
No.1061, were similarly allotted to Government Dental
College, Kottayam for undergoing the BDS Course. They had
joined the Colleges and had remitted the fee for the Course,
but as they were desirous of securing admission for the MBBS
Course, had been looking out and had come across instances,
where persons who had secured ranks lower than them, had
been accommodated in other self financing colleges, although
not Government Colleges as such. At their instance, a writ
petition had also been got filed as W.P.(C).No.26260 of 2004.
They had challenged the selection of students to the 50%
Management Quota seats in the Co-operative Medical
College, Kochi and Academy of Medical Science, Pariyaram.
The prospectus, referred to earlier, provided that in such
Colleges 50% of the seats were to be earmarked for
Government Quota from the State merit list. 50% of the
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balance seats were termed as Management Quota. This
provision had been incorporated ostensibly in view of the
directions gatherable from the Self Financing Professional
College (Prohibition of Capitation Fees and Procedure for
Admission and Fixation of Fees) Act, 2004 (hereinafter
referred to as the Act).
5. Ultimately, by judgment dated 29-09-2004,
admission of students to the Management Quota made by two
colleges were set aside, the Court finding that the selection
and admission were not in conformity with Sections 3(1) and
3(4) of the Act. Appeals were filed from the said judgment, at
the instance of the above institutions, but they were dismissed
by a Division Bench on 01-10-2004.
6. Even prior to the disposal of the appeal, taking
note of the directions issued by the Supreme Court, that
admission in the Medical Colleges are to be completed by 30th
of September 2004, on 29-09-2004 the Division Bench had
directed the candidates, who had already applied to the
respective Colleges and having ranks higher to the candidates
[WA No.321 of 2006] -5-
admitted in the Colleges are to remit fee and get provisionally
admitted to the institutions. An extreme step also had been
taken whereby an Officer had been deputed specially for the
purpose, who are authorised to receive the fee for ensuring
compliance. The appellants were not relieved from the
institutions in which they had joined, but they had remitted
the required fee as per orders of this Court. In the
meanwhile, the matter had been taken up by the management
to the Supreme Court and they had secured an order of status
quo, but ultimately the Special Leave Petition had been
dismissed. The appeal filed by the State also was dismissed.
7. In due course, admission memo had been issued by
the Co-operative Medical College, Kochi in favour of the
petitioners/ appellants and they were admitted to the
M.B.B.S.Course. They have thus been able to get an
admission commensurate with their rank position. However,
as a condition for issuing the transfer certificate, the
Government had required that they were to pay Rs.one lakh
each as liquidated damages on the strength of Clause 12.2.6
of the prospectus.
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8. The contention of the appellants is that on the facts
of the case clause 12.2.6 was inapplicable, but it was not
accepted by the learned single Judge. We may examine the
above positions de novo. Clause 12.2.6 of the prospectus
reads as following:
“Levying amount towards liquidated
damages from discontinuing candidates:
In the case if candidates admitted to
Government and Aided Colleges, if any
candidate discontinues the studies after
the closing of admissions, in the same
year or in subsequent years to join other
courses or for other purposes, he/she is
liable to pay a liquidated damage of
Rs.1,00,000/- (Rupees one lakh only) for
MBBS, BDS Courses and Rs.50,000/- (Rupees
fifty thousand only) for other courses.
In such cases the Transfer Certificate
will be issued only after remitting the
liquidated damage to the authority
concerned. Candidates belonging to
SC/ST/OEC are exempted from this rule.
Candidates who are transferred from one
institution to other as per proceedings
of the University concerned are exempted
from payment of liquidated damages”.
A simple reading of the above provision would indicate that
the Government was entitled to put forward claim for
damages. This is because candidates who are transferred
from one institution to other, as per the proceedings of the
University concerned alone are exempted normally from
payment of damages. Payment of damages is the rule if there
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is discrimination after closure of admission and exemption is
the exception. But however, reference is also to be made to
clause 12.2.1 of the prospectus, which may be extracted
herein below:
“Refund/adjustment of fees in case of
course/college change by options: The
fees paid by a candidate in a college
will be adjusted/refunded consequent on
any change of course/institution effected
by the Commissioner for Entrance
Examinations, based on the candidate’s
higher order options. In the case of
candidates moving to courses/colleges
under a single authority, the fees
remitted as Tuition Fee, Special Fee,
Caution deposit etc., will be adjusted
and if there is any difference in the
amount of fee under any of the items, the
same has to be remitted by the candidate
as and when required. In case of changes
to course/college under a different
agency, fresh fee will be collected from
the candidate at the time of joining the
new institution. The fees remitted
earlier by the candidate will be
refunded, from the concerned institution
on production of receipt for fees paid in
the new Professional college in the
State”.
This of course speaks about the adjustment and refund of fee.
It inherently has to be interpreted as a provision coming to
the help of a candidate for avoiding payment of damages, in
appropriate cases. Adjustment is permissible consequent on
any change of institution effected by the Commissioner for
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Entrance Examinations, based on the candidate’s higher
order options.
9. The submission forthcoming from the learned
Government Pleader is that this was not the case, at all as far
as the appellants were concerned. Neither the Commissioner
nor the University were parties when the appellants were
transferred from one institution to another. Therefore, the
provision for compensating the loss sustained by the
Government requires to be obeyed in letter and spirit. If that
be the case, no interference is necessary, he submits.
10. We are afraid this can possibly be only a technical
argument. In view of the judgments, logically it has to be
presumed that the original allotment was erroneous and for
no fault of the appellants and because of the procedural
irregularities of the self financing institutions, they have
sustained prejudice. They had invoked the constitutional
remedy and the Court had directed the respondents to set
right the mistake. The change to the new college and course
therefore was because of such directions and it is more than
sufficient circumstance to conclude that benefit envisaged
under clause 12.2.1 of the prospectus would have been
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available in such cases as well. If that be so, restriction
brought in by clause 12.2.6 automatically has to give way, and
contextually, the inability to fill up the seats by other
candidates becomes irrelevant, as far as the appellants are
concerned. Perhaps, Government would have had a right to
demand that because of the conduct exhibitted, ultimately
they were answerable for the situation. We do not think, on
the facts of the case, insistence of liquidated damages from
the appellants was legally or equitably justified.
11. The result is that the appellants will be entitled to
get refund of the amounts that have been levied from them.
Orders rejecting the request therefore will stand set aside.
Within a period of two months from today, the appellants are
to be paid back amounts remitted by them. However, we
make no order as to costs.
The writ appeal is allowed.
V.K.BALI
(CHIEF JUSTICE)
M.RAMACHANDRAN
mks/ (J UDGE)