Allahabad High Court
Km. Shivani Singh vs State Of U.P. Thru.Ministry Of Higher ... on 9 September, 2022
Author: Pankaj Bhatia
Bench: Pankaj Bhatia
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH A.F.R. High Court of Judicature at Allahabad Sitting at Lucknow ********************** Court No. - 18 Case :- WRIT - C No. - 25442 of 2020 Petitioner :- Km. Shivani Singh Respondent :- State Of U.P. Thru.Ministry Of Higher Education Lko. And Ors. Counsel for Petitioner :- Surya Prakash Singh,Anupama Bhadauria,Nitish Shekhar Counsel for Respondent :- C.S.C.,Gyanendra Kumar Srivastav,Kshitij Mishra Hon'ble Pankaj Bhatia,J.
1. Heard Ms. Anupama Bhadauria, learned counsel for the petitioner, Mr. Sanjay Bhasin, assisted by Mr. Kshitiz Mishra, learned counsel appearing on behalf of respondent no.4, Mr. Piyush Kumar, learned Standing Counsel appearing on behalf of the State and Mr. Gyanendra Kumar Srivastava, learned counsel for the respondent no.3 and Mr. Amrendra Singh Yadav holding brief of Mr. Amit Jaiswal, learned counsel appearing on behalf of the respondent no.6/College.
2. The present petition has been filed seeking refund of the deposit of Rs.13,30,000/- along with interest paid by the petitioner to the respondent no.4 towards fees and security deposit.
3. The contention of learned counsel for the petitioner, in brief, is that the petitioner appeared in National Eligibility Entrance Test (NEET) of the year 2018 and secured the rank 333095 for the course of M.B.B.S. It is stated that after the first round of counseling the petitioner deposited Rs.2,00,000/- by means of a demand draft in favour of the opposite party no.4 on 22.06.2018 as security deposit. It is also stated that the petitioner was informed that she has been allotted respondent no.6/College for pursuing the M.B.B.S. Course for Academic Session 2018-19.
4. It is stated that after allocation of seat the petitioner was called upon by the respondent no.4 to deposit the fee, which was deposited by the petitioner amounting to Rs.11,30,000/- on 7.7.2018. Thus the petitioner deposited a total sum of Rs.13,30,000/- and was allotted the respondent no.6/College. It is claimed that subsequently the petitioner was allotted a seat in Madhya Pradesh, which the petitioner found to be better option, as such she applied for refund of fees and security money deposited by the petitioner, which has been refused by means of order dated 6.1.2020 (Annexure No.1).
5. A perusal of the order impugned reveals that the same has been refused on the ground that the resignation of the petitioner has been accepted on the condition that in the event the applicant resigns after the second round of counseling the amount deposited by the student towards the fees as well as the security shall not be refunded. It is also stated therein that in Clause 8 of the Government Order dated 12.06.2018 there is a bar from withdrawal or resignation, after the start of second round of counseling. It was also recorded that in the brochure issued for the NEET, 2018 in Clause 9 and 10 there is a provision for confiscating the security money and the ''fee' deposited by the students thus, on this ground the request of the applicant was rejected for refund of Rs.13,30,000/-.
6. Learned counsel for the petitioner argues that the provision of security and deposit were introduced subsequent to the judgment of the Hon'ble Supreme Court in the case of Darul-Us-Slam Educational Trust and ors. Vs. Medical Council of India and Ors; Writ Petition (s) (Civil) No.(s).267/2017 she specifically makes a mention of paras 3, 4 and 6 of the said judgment which are quoted hereunder:
"3. As per the judgment of this Hon'ble Court in the case of Ashish Ranjan vs. Union of India & Ors. [(2016) 11 SCC 225], there shall be only two rounds of common counselling each conducted by the DGHS/State Government or authority designated by the State Government for All India Quota (including Deemed University) and State Quota seats respectively.
4. After the second round of counselling for All India Quota seats, the students who take admission in All India Quota seats should not be allowed/permitted to vacate the seats. This would ensure that very few seats are reverted to the State Quota and also All India Quota seats are filed by students from the all India merit list only. The students who take admission and secure admission in Deemed Universities pursuant to the second round of counselling conducted by the DGHS shall not be eligible to participate in any other counselling.
6. The students who secure admission in MBBS course pursuant to the Common Counselling conducted by the State Government, at the time of common counselling itself, should be made to deposit with the admission/cousnelling committee the Demand Draft towards the fees payable to the institution College/ University. The admission/counselling committee shall forthwith forward the Demand Draft to the respective Institution/Colleges/University. The necessity for including the above-mentioned requirement has arisen as it has been time and again noticed that when students report to the college after the counselling they are refused admission by the colleges on some pretext or the other and it is shown by the college as if the student never reported to the college for admission. If the Demand Draft is deposited by the admission/counselling committee then there would be no scope for colleges to refuse admission to any student."
7. Learned counsel for the petitioner argues that it appears that in pursuance to the said judgment the State Government issued a Government Order dated 12.06.2018 which provides for forfeiture of the ''security only' and there is no provision in the said Government Order for forfeiture of the fee deposited by the students. With regard to the other grounds, she argues that the students being in a vulnerable position do not have any choice but to sign on the dotted lines and thus the acceptance of resignation with the condition that the security money and the fees would be forfeited is beyond the control of the petitioner.
8. Learned counsel for the petitioner further argues that the petitioner had tendered her resignation without accepting any condition, the acceptance of the said resignation with the condition was neither in the control of the petitioner nor justified and cannot bind the petitioner.
9. She further argues that the third basis being the provision as contained in brochure issued by the respondents is wholly arbitrary, illegal and has no nexus to the object sought to be achieved. She further argues that the Director General Medical Education/respondent no.4 is only authorized to oversee the counseling process and the amount retained by them is not only contrary to the government order, but the same are without any authority of law by the respondent no.4.
10. She argues that the petitioner has been deprived of her property without any authority of law and thus her rights guaranteed under Article 300-A of the Constitution of India have been violated. She further argues that in any event the provision for confiscating the fees as well as the entire security deposit is violative of Article 14 of the Constitution of India, insofar, as there is no rational nexus sought to be achieved and there is no criteria for either fixing the quantum of security deposit or its confiscation. She argues that the State which is expected to promote the education is acting as shylock in confiscating the fees and security money in a country like India which is very poor. She thus claims that the writ petition is liable to be allowed and the amount of fees and security money be directed to be refunded along with interest as claimed by the petitioner.
11. Mr. Sanjay Bhasin, learned counsel appearing for the respondent no.4 seeks to defend the confiscation of the security money as well as the fees. In support of his submission, he draws source of of confiscation power from the regulations framed by the Medical Council of India being the Graduate Medical Education Regulations, 1997 as amended up to May, 2018. He argues that in terms of the said Regulations, 5-A (4) provides as under:
"5A (4)-In order to prevent seat blocking in common couseling for admission to MBBS course and permissiblity to exercise fresh choice during counseling, forfeiture of fee shall be in accordance with the Matrix contained in "Appendix-F."
S. No. Round Free Exit Exit with forfeiture of fees Ineligible for further counseling Amount of registration fee
1. AIQ I/Deemed
2. AIQ II/Deemed If not joined If joined Government Rs.10,000 (half for SC/ST/OBC Deemed-Rs.2,00,000
3. State Quota I
4. State Quota II If not joined If joined Government - Rs.10,000 (half for SC/ST/OBC) Private- Rs.1,00,000
5. State Quota Mop-up If joined
6. Deemed Mop-Up If joined
12. It is argued that the matrix as contained in Annexure No.F to the said Regulation, would be the source of power for retaining the amount of security deposit fees by the respondent no.4. He defends the Government Order dated 12.06.2018 by arguing that the same is in pursuance to the guidelines issued by the Supreme Court in the case of Darul-Us-Slam Educational Trust (supra). He thus argues that the retention of the money deposited by the petitioner does not violate the right of the petitioner under Article 300-A of the Constitution of India. He further argues that for the students who are selected to the government colleges, the security money to be deposited is Rs.30,000/-, whereas for the private medical colleges the security money to be deposited is Rs.2,00,000/-, which is reasonable and acts as deterrent to the students who flip their seats and thus deprive the meritorious students of their rights of participating in counseling.
13. He further argues that even in terms of the brochure/guidelines issued in pursuance to which the petitioner had applied, there was a clear stipulation that the security deposit shall be forfeited in respect of candidates who do not join after the first round of counseling or resign after joining and the said brochure/guidelines were in nature of an offer which was accepted by the student and thus there was a contract created in between the parties by which the petitioner is bound. Shri Bhasin places reliance on Section 74 of Indian Contract Act.
14. Learned Standing Counsel appearing on behalf of the State, on the other hand, argues and justifies the Government Order on the ground that the same was inline of the prescriptions as contained in the judgment of Apex Court in the case of Darul-Us-Slam Educational Trust (supra) and thus prays that the writ petition is liable to be dismissed.
15. Learned counsel for the petitioner has placed the Government Order dated 29.10.2020 for the subsequent year NEET Examination, wherein the refund of fee deposited is prescribed and only 10 % of the total fees deposited is to be confiscated. She further says that in the case of private medical colleges even the security has to be refunded. She thus argues that the State Government has taken different stand for different years which is wholly arbitrary and illegal and is violative of Articles 14, 19 and 21 of the Constitution of India. She further argues that the retention of the money by the D.G.M.E. is unjust enrichment which is neither authorized nor favored by law. In reply to the argument of Shri Bhasing on the strength of Section 74 of the Contract Act she argues that unless damages are ascertained and established no amounts can be awarded.
16. In the light of the submissions made by parties' counsel at the bar, this court is to test the power of D.G.M.E. to confiscate the money deposited by the students who are pursuing the NEET Examination as well as the legality of the retention of the security deposited by the students.
17. To test the first argument raised by learned counsel for the petitioner and tried to be repelled by learned counsel for the respondents, as to whether the D.G.M.E. can confiscate the security deposit in pursuance to the Government Order dated 12.06.2018. To test the said argument as being violative of Article 300-A as inserted in the Constitution.It is clear Article 300-A of Constitution of India provides that no person shall be deprived of his property save by authority of law.
18. The money deposited by the petitioner as a security deposit would be a property as held by the Hon'ble Supreme Court in the case of Bombay Dyeing & Manufacturing Co. Ltd. Vs. State of Bombay and others; AIR 1958 SC 328 to the effect that the money would also amount to property and thus to deprive a person of property, there has to be an authority of law.
19. The word ''law' as used in the context of Article 300-A of the Constitution has to mean the law framed by legislature and not the executive directions as given under Article 162 of the Constitution. This view is fortified by the decision of Hon'ble Apex Court in the case of Bishambhar Dayal Chandra Mohan and others Vs. State of U.P. and others; (1982) 1 SCC 39, wherein the Hon'ble Supreme Court in para 41 has observed as under:
"There still remains the question whether the seizure of wheat amounts to deprivation of property without the authority of law. Article 300-A provides that no person shall be deprived of his property save by authority of law. The State Government cannot while taking recourse to the executive power of the State under Article 162, deprive a person of his property. Such power can be exercised only by authority of law and not by a mere executive fiat or order. Article 162, as is clear from the opening words, is subject to other provisions of the Constitution. It is, therefore, necessarily subject to Article 300-A The word 'law' in the context of Article 300-A must mean an Act of Parliament or of a State Legislature, a rule, or a statutory order; having the force of law, that is positive or State made law. The decisions in Wazir Chand v. State of Himachal Pradesh and Bishan Das and others v. The State of Punjab and others are an authority for the proposition that an illegal seizure amounts to deprivation of property without the authority of law. In Wazir Chand's case (supra), the police in India seized goods in possession of the petitioner in India at the instance of the police of the State of Jammu and Kashmir. The seizure was admittedly not under the authority of law, inasmuch as it was not under the orders of any Magistrate; nor was it under Sections 51, 96, 98 and 165 of the Code of Criminal Procedure, 1898, since no report of any offence committed by the petitioner was made to the police in India, and the Indian police were not authorised to make any investigation. In those circumstances, the Court held that the seizure was not with the authority of law and amounted to an infringement of the fundamental right under Article 31 (1). This view was reaffirmed in Bishan Das's case (supra)."
20. Relying on the said judgment the Hon'ble Supreme Court in the case of Hindustan Times and others Vs. State of U.P. and another; (2003) 1 SCC 591 has reaffirmed the same. The relevant paragraphs nos.23, 24 and 25 are as under:
"23. The expression 'law', within the meaning Article 300-A, would mean a Parliamentary Act or an Act of the State Legislature or a statutory order having the force of law.
24. In Bishambhar Dayal Chandra Mohan & Ors. etc. v. State of Uttar Pradesh & Ors. etc. [(1982) 1 SCC 39], this Court held as under :-
"41. There still remains the question whether the seizure of wheat amounts to deprivation of property without the authority of law. Article 300-A provides that no person shall be deprived of his property save by authority of law. The State Government cannot while taking recourse to the executive power of the State under Article 162, deprive a person of his property. Such power can be exercised only by authority of law and not by a mere executive fiat or order. Article 162, as is clear from the opening words, is subject to other provisions of the Constitution. It is, therefore, necessarily subject to Article 300-A. The word "law" in the context of Article 300-A must mean an Act of Parliament or of a State legislature, a rule, or a statutory order, having the force of law, that is positive or State- made law."
25. It is not the contention of the respondents that any service is rendered to the petitioners herein. It is also not the contention of the respondents that the petitioners are bound to pay the amount in question by reason of their statutory obligation to pay retiral benefits to the working journalists. It is also not the case of the respondents that the petitioners herein have not been discharging their statutory obligations in the matter of payment of retiral benefits to the working journalists working in their own establishment in terms of the provision of the Central Acts as well as in terms of the Bachawat Award."
21. Further, the Hon'ble Supreme Court in the case of Khem Chand Vs. Union of India and others; AIR 1963 SC 687 has held as follows:
"Equally untenable is the appellant's next contention that the impugned rule contravenes the provisions of Article 19 (1) (f) of the Constitution. The argument is that as a result of this Court's decree the appellant had a right to his arrears of pay and allowances. This right constituted his property; and as the effect of the impugned Rule is that he would not, for some time at least, get those arrears it restricts his right. It may be conceded that the right to arrears of pay and allowances constituted property within the meaning of Article 19 (1) (f) of the Constitution and further, that the effect of r. 12(4) is a substantial restriction of his right in respect of that property under Article 19 (1) (f). The question remains whether this restriction is a reasonable restriction in the interests of the general public. No body can seriously doubt the importance and necessity of proper disciplinary action being taken against government servants for inefficiency, dishonesty or other suitable reasons. Such action is certainly against the immediate interests of the Government servant concerned; but is absolutely necessary in the interests. of the general public for serving whose interests the government machinery exists and functions. Suspension of a government servant pending an enquiry is a necessary part of the procedure for taking disciplinary action against him. It follows, therefore, that when the penalty of dismissal has been set aside but the disciplinary authority decides to hold a further enquiry on the same facts against him a fresh order of suspension till the enquiry can be completed, in accordance with law, is a reasonable step of the, procedure. We have no hesitation in holding, therefore, that in so far as r.12(4) restricts the appellant's right under Article 19 (1) (f) of the Constitution, it is a reasonable restriction in the interests of the general public. Rule 12(4) is therefore within the saving provisions of Article 19 (1) (f), so that there is no contravention of the constitutional provisions."
22. In view of the settled proposition of law that the executive instructions cannot partake 'law' as referred to under Article 300-A, I have no hesitation in holding that the petitioner could not be deprived of refund of security deposit only on the basis of provisions made in the Government Order as relied upon by Mr. Bhasin to justify the confiscation of security deposit.
23. Now coming to the issue as to whether the fees could be confiscated. Fees is also a property at the hand of a student and to deprive the same, there is a need for sanction by law as framed by the legislature. There being no law as framed, clearly the confiscation of the fees deposited by the student by the respondent no.4 is without sanction of law and thus violates Article 300 A of Constitution of India.
24. Submission of Mr. Bhasin that there is a provision of confiscation of fees as provided in the Regulation of 1997 and the Appendix-F referred therein and quoted hereinabove, I do not see any prescription prescribed under Appendix-F permitting the confiscation of fees and to that extent the argument of Mr. Bhasin is repelled.
Whether the Fee and security deposit can be confiscated under Section 74 of Contract Act
25. The issue with regard to refund of fees is also to be tested on the anvil of the arguments of Mr. Bhasin raised on account of the conditions specified in the brochure. Even if the brochure is treated as an offer, the application of student in pursuance to the brochure be treated as an acceptance and for the purposes of arguments, the same is treated to be in the nature of contract, the retention of fees and security would be hit by Section 74 of the Contract Act. Section 74 of the Contract Act is quoted herein under:
"74. Compensation for breach of contract where penalty stipulated for:- 34 [When a contract has been broken, if a sum is named in the contract as the amount to be paid in case of such breach, or if the contract contains any other stipulation by way of penalty, the party complaining of the breach is entitled, whether or not actual damage or loss is proved to have been caused thereby, to receive from the party who has broken the contract reasonable compensation not exceeding the amount so named or, as the case may be, the penalty stipulated for.
Explanation.-- A stipulation for increased interest from the date of default may be a stipulation by way of penalty.] (Exception) -- When any person enters into any bail-bond, recognizance or other instrument of the same nature or, under the provisions of any law, or under the orders of the 35 [Central Government] or of any 36 [State Government], gives any bond for the performance of any public duty or act in which the public are interested, he shall be liable, upon breach of the condition of any such instrument, to pay the whole sum mentioned therein. Explanation.-- A person who enters into a contract with Government does not necessarily thereby undertake any public duty, or promise to do an act in which the public are interested. Illustrations
(a) A contracts with B to pay B Rs. 1,000 if he fails to pay B Rs. 500 on a given day. A fails to pay B Rs. 500 on that day. B is entitled to recover from A such compensation, not exceeding Rs. 1,000, as the Court considers reasonable.
(b) A contracts with B that, if A practices as a surgeon within Calcutta, he will pay B Rs. 5,000. A practices as a surgeon in Calcutta. B is entitled to such compensation; not exceeding Rs. 5,000 as the court considers reasonable.
(c) A gives a recognizance binding him in a penalty of Rs. 500 to appear in Court on a certain day. He forfeits his recognizance. He is liable to pay the whole penalty.
37 [(d) A gives B a bond for the repayment of Rs. 1,000 with interest at 12 per cent. at the end of six months, with a stipulation that, in case of default, interest shall be payable at the rate of 75 per cent. from the date of default. This is a stipulation by way of penalty, and B is only entitled to recover from A such compensation as the Court considers reasonable.
(e) A, who owes money to B, a money-lender, undertakes to repay him by delivering to him 10 maunds of grain on a certain date, and stipulates that, in the event of his not delivering the stipulated amount by the stipulated date, he shall be liable to deliver 20 maunds. This is a stipulation by way of penalty, and B is only entitled to reasonable consideration in case of breach.
(f) A undertakes to repay B a loan of Rs. 1,000 by five equal monthly instalments, with a stipulation that, in default, of payment of any instalment, the whole shall become due. This stipulation is not by way of penalty, and the contract may be enforced according to its terms.
(g) A borrows Rs. 100 from B and gives him a bond for Rs. 200 payable by five yearly instalments of Rs. 40, with a stipulation that, in default of payment of any instalment, the whole shall become due. This is a stipulation by way of penalty.]"
26. The stipulation of confiscation of fees can clearly be qualified as penalty under Section 74 as quoted hereinabove.
27. Scope of Section 74 of the Indian Contract Act was considered and explained by the Hon'ble Supreme Court in the case of Fateh Chand v. Balkishan Dass - AIR 1963 SC 1405 wherein the Hon'ble Supreme Court has held as under:
"10. Section 74 of the Indian Contract Act deals with the measure of damages in two classes of cases (i) where the contract names a sum to be paid in case of breach and (ii) where the contract contains any other stipulation by way of penalty. We are in the present case not concerned to decide whether a contract containing a covenant of forfeiture of deposit for due performance of a contract falls within the first class. The measure of damages in the case of breach of a stipulation by way of penalty is by Section 74 reasonable compensation not exceeding the penalty stipulated for. In assessing damages the Court has, subject to the limit of the penalty stipulated, jurisdiction to award such compensation as it deems reasonable having regard to all the circumstances of the case. Jurisdiction of the Court to award compensation in case of breach of contract is unqualified except as to the maximum stipulated; but compensation has to be reasonable, and that imposes upon the Court duty to award compensation according to settled principles. The section undoubtedly says that the aggrieved party is entitled to receive compensation from the party who has broken the contract, whether or not actual damage or loss is proved to have been caused by the breach. Thereby it merely dispenses with proof of "actual loss or damage"; it does not justify the award of compensation when in consequence of the breach no legal injury at all has resulted, because compensation for breach of contract can be awarded to make good loss or damage which naturally arose in the usual course of things, or which the parties knew when they made the contract, to be likely to result from the breach.
11. Before turning to the question about the compensation which may be awarded to the plaintiff, it is necessary to consider whether Section 74 applies to stipulations for forfeiture of amounts deposited or paid under the contract. It was urged that the section deals in terms with the right to receive from the party who has broken the contract reasonable compensation and not the right to forfeit what has already been received by the party aggrieved. There is however, no warrant for the assumption made by some of the High Courts in India, that Section 74 applies only to cases where the, aggrieved party is seeking to receive some amount on breach of contract and not to cases where upon breach of contract an amount received under the contract is sought to be forfeited. In our judgment the expression "the contract contains any other stipulation by way of penalty" comprehensively applies to every covenant involving a penalty whether it is for payment on breach of contract of money or delivery of property in future, or for forfeiture of right to money or other property already delivered. Duty not to enforce the penalty clause but only to award reasonable compensation is statutorily imposed upon courts by Section 74. In all cases, therefore, where there is a stipulation in the nature of penalty for forfeiture of an amount deposited pursuant to the terms of contract which expressly provides for forfeiture, the court has jurisdiction to award such sum only as it considers reasonable, but not exceeding the amount specified in the contract as liable to forfeiture. We may briefly refer to certain illustrative cases decided by the High Courts in India which have expressed a different view."
28. The scope of Section 74 came up for consideration before the Hon'ble Supreme Court yet again in the case of MTNL V. TATA Communication Ltd.; (2019) 5 SCC 341 wherein the Hon'ble Supreme Court placing reliance on the earlier judgment of the Hon'ble Supreme Court in the case of Kailash Nath Associates v. D.D.A.; (2015) 4 SCC 136 approved the position of law as clarified by the Hon'ble Supreme Court in the case of Kailash Nath Associates (supra) in the following para:
"11. In Kailash Nath Associates v. DDA [Kailash Nath Associates v. DDA, (2015) 4 SCC 136 : (2015) 2 SCC (Civ) 502], after considering the case law on Section 74, this Court held: (SCC p. 162, para 43) "43. On a conspectus of the above authorities, the law on compensation for breach of contract under Section 74 can be stated to be as follows:
43.1. Where a sum is named in a contract as a liquidated amount payable by way of damages, the party complaining of a breach can receive as reasonable compensation such liquidated amount only if it is a genuine pre-estimate of damages fixed by both parties and found to be such by the court. In other cases, where a sum is named in a contract as a liquidated amount payable by way of damages, only reasonable compensation can be awarded not exceeding the amount so stated. Similarly, in cases where the amount fixed is in the nature of penalty, only reasonable compensation can be awarded not exceeding the penalty so stated. In both cases, the liquidated amount or penalty is the upper limit beyond which the court cannot grant reasonable compensation.
43.2. Reasonable compensation will be fixed on well-known principles that are applicable to the law of contract, which are to be found inter alia in Section 73 of the Contract Act.
43.3. Since Section 74 awards reasonable compensation for damage or loss caused by a breach of contract, damage or loss caused is a sine qua non for the applicability of the section.
43.4. The section applies whether a person is a plaintiff or a defendant in a suit.
43.5. The sum spoken of may already be paid or be payable in future.
43.6. The expression "whether or not actual damage or loss is proved to have been caused thereby" means that where it is possible to prove actual damage or loss, such proof is not dispensed with. It is only in cases where damage or loss is difficult or impossible to prove that the liquidated amount named in the contract, if a genuine pre-estimate of damage or loss, can be awarded."
29. Thus, even if the issuance of brochure and the application of the petitioner is accepted to be a contract, the retention of entire fees is clearly barred by Section 74 the stand taken by the respondent cannot be accepted and the respondents can at best can claim reasonable compensation for the loss suffered on account of breach of contract. As no loss has been shown to be caused to the respondent by way of resignation coupled with the fact that the seat of the State has not gone vacant, the DGME cannot even claim reasonable compensation and thus to that extent I have no hesitation in holding that the confiscation of fees by the respondent no.4 cannot be justified by virtue of Section 74 of The Contract Act as argued by Shri Bhasin.
30. There is another aspect to be considered in the matter that the Government Order dated 12.06.2018 also stipulates a candidate to submit the registration fees of Rs.2,000/- for two rounds of counseling and Rs.1,000/- for mop up round of counseling which as prescribed is non-refundable which is just and reasonable expenditure incurred by DGME for counselling. In addition to the registration fees, the students were directed to deposit the security money and the fees.
31. To test the argument further in the light of the prescriptions of the Hon'ble Supreme Court in the case of Darul-Us-Slam Educational Trust (supra) was of the view that flows from paragraph no 6 that the students should be compelled to deposit the demand draft towards the fees payable to the institution/ college/ university which is to be transmitted forthwith to the respective institution/ college/ university. The Hon'ble Supreme Court itself has explained in the same very paragraph that the purpose of directing the students to deposit the demand draft is to ensure that there would be no scope for the colleges to refuse admission to any student. The judgment of Hon'ble Supreme Court never prescribed for confiscation that too without any authority of law and thus the submission of Mr. Bhasin is liable to be rejected on that count also.
32. There is further anomaly in the stand taken by the respondents inasmuch as for the subsequent years, it prescribes lesser amounts to be confiscated for security as well as fees. The State cannot take a different stand for different years as is evident from the prescription for two different years of NEET Examination. The stand of the respondent no.4 as the State, do not appear to achieve any objective for which the deposits are made. Irrespective of the intent to provide for a deterrent, the same can be prescribed only in accordance with law as prescribed under Article 300-A of the Constitution of India and as laid down by the Hon'ble Supreme Court in the judgments referred above.
33. Even testing the said arguments on the ground of Article 14 there appears to be no logic in confiscating the entire fees by the respondent no.4 and not even transmitting the same to the institution/university where the admission is granted, is a clear case of retention of money by the State without any authority of law which is clear violation of the rights of the students enshrined under Article 300-A of the Constitution of India. This observation is being made in view of the statement by the institution concerned that no seats were left vacant subsequently in respect of the seat for which the petitioner had tendered her resignation.
34. In view of the findings as recorded above, irresistible conclusion is that the writ petition is bound to be allowed.
35. The writ petition is accordingly allowed. The respondent no.4 is directed to refund the entire amount of Rs.13,30,000/- deposited by the petitioner along with interest payable at the rate of 6 % per annum from the date of application for refund till actual payment/realization. The amount of 6 % interest is what is prescribed under the Interest Act as there is no contract to the contrary in between the parties.
36. Once I have held that the provision for confiscation of security is in clear violation of Article 300-A of the Constitution of India, Clause 6 of the Government Order dated 12.06.2018 is quashed insofar as it prescribes the confiscation of security money. The challenge to Clause 8 in the Government Order dated 12.06.2018 is rejected inasmuch as the same does not violate any rights of the petitioner and is not prohibited under any law. The money as directed shall be paid to the petitioner within two months from today.
37. No order as to the costs.
(Pankaj Bhatia, J.) Order Date :- 09.09.2022 Ram.