Gujarat High Court
Nidhi Kishanbhai Vasava vs Dean - Gujarat Medical Education And ... on 6 August, 2014
Author: Harsha Devani
Bench: Harsha Devani
C/SCA/10381/2014 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 10381 of 2014
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS.JUSTICE HARSHA DEVANI
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1 Whether Reporters of Local Papers may be allowed to see
the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the
judgment ?
4 Whether this case involves a substantial question of law as
to the interpretation of the Constitution of India, 1950 or any
order made thereunder ?
5 Whether it is to be circulated to the civil judge ?
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NIDHI KISHANBHAI VASAVA....Petitioner(s)
Versus
DEAN - GUJARAT MEDICAL EDUCATION AND RESEARCH SOCIETY &
2....Respondent(s)
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Appearance:
MR RITURAJ M MEENA, ADVOCATE for the Petitioner(s) No. 1
MS. NIYATI K JUTHANI, ADVOCATE for the Petitioner(s) No. 1
NOTICE SERVED BY DS for the Respondent(s) No. 1 - 3
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CORAM: HONOURABLE MS.JUSTICE HARSHA DEVANI
Date : 06/08/2014
Page 1 of 11
C/SCA/10381/2014 JUDGMENT
ORAL JUDGMENT
1. Rule. Mr. D.M. Devnani, learned Assistant Government Pleader, waives service of notice of rule on behalf of respondents No.1 and 2. Though served, there is no appearance on behalf of the third respondent. However, having regard to the facts of the present case, it is not necessary to serve notice of rule on the third respondent. Considering the nature of the controversy involved in the present petition, which lies in a very narrow compass, with the consent of the learned advocates for the respective parties, the matter is taken up for final hearing today.
2. The petitioner is a student of first year M.B.B.S Course at the Gujarat Medical Education & Research Society, Medical College, Gotri at Baroda. The said college is affiliated to the third respondent Maharaja Sayajirao University of Baroda. The petitioner who belongs to the schedule tribe category was given admission in the year 2012. The petitioner had decided to pay her fees in two parts for the year 2012-13 by cash in respect of which she was issued bank receipts from Axis Bank of Rs.1,25,000/- in addition to Rs.15,000/- already paid as well as Rs.1,10,000/- which was paid two days thereafter. The petitioner was given provisional admission at GMERS Medical College, Gotri, Vadodara. After taking admission and pursuing the course, the petitioner could not clear the first year examination. The respondent-authorities asked the petitioner to continue with the course and try to clear the first year as a repeater. Since the petitioner could not cope up with the pressure of studies, she could not pass the examination of the first year. Under the circumstances, after failing in the first year examination repeatedly, the petitioner decided to give up Page 2 of 11 C/SCA/10381/2014 JUDGMENT studies in the medical course with a view to pursue some other field. She, therefore, requested the authorities to return her original documents like caste certificate, 12 th standard mark- sheet, school leaving certificate and GUJCET mark-sheet. Despite repeated requests, since there was no response, the petitioner wrote a letter to the Dean of the College and asked him to return the original documents. Since there was no response thereto, the petitioner's father wrote a letter to the Dean, requesting the authorities to do the needful. Since there was no response thereto, the petitioner's father approached the higher authority and wrote a letter to the C.E.O, Gujarat Medical Education Research Society at Gandhinagar. However, despite all these efforts, since the original papers were not returned, the petitioner has approached this court seeking a direction to the respondent-authorities to return the original documents which are in the possession of the first respondent.
3. Ms. Niyati Juthani, learned advocate for the petitioner, submitted that the petitioner despite two attempts at trying to clear the first year M.B.B.S., did not succeed and, hence, she has decided not to pursue the court any further and to take admission in some other course. However, the respondents are not returning the original documents which she needs for getting admission elsewhere and are not responding to any of the requests made by the petitioner. Reliance was placed upon the decision of this court in the case of Monil Prakashchandra Thakkar vs. State of Gujarat & Ors, rendered on 10.3.2014 in Special Civil Application No.18082 of 2013 wherein the court had, for the reasons recorded in the said order, directed the respondents to return the original documents to the petitioner therein.
Page 3 of 11C/SCA/10381/2014 JUDGMENT
4. On the other hand, Mr. D.M. Devnani, learned Assistant Government Pleader, placed on record a copy of the minutes of meeting of the Governing Body of Gujarat Medical Education & Research Society, Gandhinagar held on 3 rd July, 2014 and invited the attention of the court to the agenda item 4 thereof, whereby it has been resolved that M.B.B.S. students of N.R.I. and regular category who want to discontinue study, may be allowed to do so, however, such students are required to pay the tuition fees for the remaining of the total nine terms and their original documents may be returned thereafter. Tuition fees already paid shall not be refunded under any circumstances. It is further resolved that this decision shall also be applicable to the requests received till date. It was submitted that in the light of the above referred decision taken by the Governing Body, the original documents submitted by the petitioner cannot be returned unless the petitioner pays the tuition fees for the remaining terms.
5. The short question that arises in the backdrop of the aforesaid facts is as to whether the first respondent college has any right to retain the original documents submitted by the petitioner at the time of her admission and whether the first respondent can insist upon payment of the fees for the remaining semester as a precondition for returning such documents. The controversy involved in the present case is no longer res integra, inasmuch as the same has been decided by the above referred decision of this court wherein it has been held thus:
"10. Having given thoughtful consideration to the issue in hand, there is only one aspect that requires to be Page 4 of 11 C/SCA/10381/2014 JUDGMENT determined in the petition, namely, whether respondent No.3-College has any right or lien over the original documents of the petitioner who has opted to cancel the admission midway, and whether its refusal to handover the said documents is permissible by rules/regulations, or law.
11. In order to answer this question, reference may be made to paragraph-8 of the judgment of the Supreme Court in Islamic Academy of Education and another Vs. State of Karnataka and others (Supra.); which, according to the learned Senior Advocate for respondent No.3-College, confers a right upon the said College to demand the fees of the entire course and to retain the original documents, in lieu thereof. The relevant paragraph is reproduced hereinbelow :
"8. It must be mentioned that during arguments it was pointed out to us that some educational institutions are collecting, in advance, the fees for the entire course i.e. for all the years. It was submitted that this was done because the institute was not sure whether the student would leave the institute midstream. It was submitted that if the student left the course in midstream then for the remaining years the seat would lie vacant and the institute would suffer. In our view an educational institution can only charge prescribed fees for one semester/year. If an institution feels that any particular student may leave in midstream then, at the highest, it may require that student to give a bond/bank guarantee that the balance fees for the whole course would be received by the institute even if the student left in midstream. If any educational institution has collected fees in advance, only the fees of that semester/year can be used by the institution. The balance fees must be kept invested in fixed deposits in a nationalised bank. As and when fees fall due for a semester/year only the fees falling due for that semester/year can be withdrawn by the institution. The rest must continue to remain deposited till such time that they fall due. At the end of the course the interest earned on these deposits must be paid to the student from whom the fees were collected in advance."
(emphasis supplied)
12. In the above quoted portion of the judgment, the Supreme Court has dealt with a situation where the Page 5 of 11 C/SCA/10381/2014 JUDGMENT student intends to leave the course in midstream and the remedy available to an institution in such a situation. It has clearly been stated in the above judgment that in such a situation, at the highest the institution may require that student to give a bond/bank guarantee for the balance fees of the course being received by the Institution even though the student leaves in midstream. However, the Supreme Court has categorically stated that an educational institution can only charge prescribed fees for one semester/year. The submission on behalf of respondent No.3-College that the said College has a right to insist upon charging the fees for the entire duration of the course, may now be tested. The judgment of the Supreme Court in Islamic Academy of Education and another Vs. State of Karnataka and others (Supra.), does recognize a situation where the student leaves the course midway. However, it has categorically laid down that the institution may require the student to fill up a bond or give a bank guarantee to ensure that the fees for the entire course would be recovered by it if the student leaves the course midway through it. It was, therefore, incumbent upon respondent No.3-College to evolve an effective mechanism as per the judgment of the Supreme Court which, admittedly, has not been done in the present case. The remedy that could have been taken by respondent No.3 has not been taken and in the absence of such a mechanism, no automatic right flows to respondent No.3-College from the judgment of the Supreme Court. When it has failed to do what it ought to have done as per the above judgment, in such a situation, respondent No.3- College cannot claim any implicit right only by virtue of the said judgment.
13. The Supreme Court has, in the above judgment left it to the concerned institution to either require that the student gives a bond/bank guarantee or to evolve any other kind of mechanism in the event that the student leaves the course midstream. It was open for respondent No.3-College to protect its interest by asking the petitioner and other students to fill up a bond or give a bank guarantee, in order to protect the balance amount of fees for the whole course. As this has not been done by Respondent No.3-College, in the view of this Court it cannot be said that any indefeasible right has accrued in favour of respondent No.3-College that can be enforced by retaining the original documents of the petitioner and Page 6 of 11 C/SCA/10381/2014 JUDGMENT insisting upon the payment of the balance fees, in the absence of any rule/regulation or other mechanism for securing the same.
14. The Fee Regulatory Committee, while fixing the fees structure on 12.07.2012, has laid down certain conditions, one of which is as below :
"In view of cost of securing bank guarantee, the College should, as far as possible, refrain from insisting on bank guarantee. The Committee advises that the College should work out an alternate form of security/guarantee to ensure that no student once admitted, abandons the course half way resulting into loss of opportunity for others. In this background, the college is free to work out an arrangement to ensure that the student leaving the course before completion pays the full amount of the Course for the entire term of two or three years as the case may be."
15. Though the said Committee cannot dispense with the aspect of furnishing a bank guarantee, which has been permitted by the Supreme Court in Islamic Academy of Education and another Vs. State of Karnataka and others (Supra.), its intention is clearly to ask the concerned college/institution to formulate a mechanism of security/guarantee whereby, in case a student abandons the course midway, it would not result in a loss of opportunity for others and would ensure that the student would have to pay the fees for the entire duration of the course. Respondent No.3-College has admittedly not taken any steps in this regard, but is insisting on the application of Rule-R11 of the Rules of Saurashtra University which, in the view of this Court, does not contemplate a situation where a student leaves midway through the course.
16. Rule-R11 reads as below :
"R.11 Original mark sheet and other documents etc. of admitted candidates shall be retained by authority."
17. It may be clarified that Rule-R1 to R11 appears under the title "Regulation under rule 7.6 sequence of interview for selection and admission". The very Page 7 of 11 C/SCA/10381/2014 JUDGMENT title of the Rules shows that they pertain to admission in Post Graduate (Degree/Diploma) Medical Courses. This rule does not provide for a situation where the admitted student decides to leave the course halfway. It clearly does not provide for either retention of the original documents of such student, or upon payment of the fees for the entire duration of the course. In the present case, the petitioner has not been asked to pay the fees for the entire course at the time of admission, therefore, the question of retention of fees does not arise. The College is asking the petitioner to pay the entire fees as a condition precedent for returning the original documents without there being any rule, regulation, or prescribed procedure in this regard.
18. In New India Assurance Company Vs. A.K.Saxena (Supra.), relied upon by the learned advocate for the petitioner, there was a dispute between the appellant and the respondent-Advocate. When the respondent was asked to return all the papers, he refused to do so till his fees were paid. The High Court directed the appellant to pay the full fees of the respondent. However, the Supreme Court held that the High Court erred in issuing such a direction that on payment of the fees, the respondent would return the papers required by the appellant. The Supreme Court further held that the issue regarding unpaid remuneration was required to be decided in an appropriate forum. In the above mentioned case, the Supreme Court has referred to the case of R.D.Saxena Vs. Balram Prasad Sharma (Supra.), wherein the Supreme Court has held that an advocate has no right to withhold the record relating to works done by him for unpaid remuneration and that a litigant has a right to get the papers from the advocate whom he has changed, so that new counsel can be briefed effectively. However, it was held that the concerned advocate would have a right to recover the fees by way of legal proceedings.
19. In judgment dated 03.11.2012 passed by the High Court of Punjab and Haryana in Civil Writ Petition No.17829/2012 in the case of Shikha Vs. State of Punjab and others, the said High Court has dealt with a case pertaining to retention of the original documents of the petitioner by a Government Medical College. In this context, it was held as below :
Page 8 of 11C/SCA/10381/2014 JUDGMENT "Apart from the above notes in Para 9 of the prospectus regulating the payment of fee, no other provision has been pointed out before me to claim the right by the respondent- Government College to retain the documents or to demand the fee for the entire course or to retain the fee, which the petitioner has paid. Since the petitioner in the present case is only seeking return of his documents submitted in original with the respondent-college, the right to retain these documents would not flow from the notes relied upon and referred to by the respondent-College. The right of the College to demand the full fee or retain the fee already paid would be separate from right to retain the documents.
Accordingly, no case on the part of the respondents to retain the documents is made out. Since no reply is filed, right to file reply is foreclosed. The direction hereby is issued to the respondents to return the original documents of the petitioner within a period of one week from today. Right of the petitioner to claim fee shall also remain open for the petitioner to agitate, if she so decides. Civil Writ Petition No.17829 of 2012 The writ petition is, accordingly, allowed in the above terms."
(emphasis supplied)
20. In the present case as well, there is no rule or regulation of respondent No.3-College requiring payment of fees for the entire duration of the course or for retention of the original documents in lieu thereof. In the absence of any such rule or regulation, respondent No.3- College cannot retain the original documents of the petitioner."
6. From the facts noted hereinabove, it is apparent that the facts in the above referred case as well as the present case are more or less similar. In the present case also no rule or regulation of the first respondent college requiring payment of fees for the entire duration of the course or for retention of the Page 9 of 11 C/SCA/10381/2014 JUDGMENT original documents in lieu thereof has been brought to the notice of this court. Reliance has been placed upon a resolution dated 3rd July, 2014 of the Governing Body of the Gujarat Medical & Research Society, Gandhinagar. However, the said resolution has been passed subsequent to the application being made by the petitioner for return of the documents and no such conditions appear to have been imposed on the petitioner at the time when admission was granted to her and she had submitted her original documents. Under the circumstances, the present case being squarely covered by the above referred decision, for the reasons stated therein, the petition deserves to be allowed.
7. In the absence of any rule and regulation in this regard, it is not permissible for the first respondent college to retain the original documents of the petitioner and refuse to return the same. It may be noted that though the petitioner has repeatedly make requests for return of the documents, the respondents have not responded to the same even to the effect that the petitioner is required to pay the fees for the remaining terms. It is only before this court at the time of arguments that reliance has been placed upon the above referred minutes of meeting of the Governing Body.
8. It is, however, clarified that the fact that the respondent college is not permitted to retain the original documents, may not be taken to mean that if the first respondent college has faced any loss, either financial or of any other kind, it cannot resort to an appropriate legal remedy. Such a course is always open to the first respondent college.
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9. For the reasons stated in the judgment and order dated 10th March, 2014 rendered in Special Civil Application No.18082 of 2013 as reproduced hereinabove, the petition succeeds and is, accordingly allowed. The first respondent college is directed to forthwith return the original documents viz. the caste certificate, 12th standard mark-sheet, school leaving certificate and GUJCET mark-sheet to the petitioner and to treat the admission of the petitioner as cancelled. Rule is made absolute accordingly.
Direct service is permitted today.
(HARSHA DEVANI, J.) Vahid Page 11 of 11