Kerala High Court
Dona Prince vs St. James College Of Pharmaceutical ... on 8 October, 2016
Author: P. Somarajan
Bench: P.R.Ramachandra Menon, P.Somarajan
IN THE HIGH COURT OF KERALAAT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON
&
THE HONOURABLE MR. JUSTICE P.SOMARAJAN
TUESDAY,THE 8TH DAYOF NOVEMBER 2016/17TH KARTHIKA, 1938
WP(C).No. 33318 of 2016 (L)
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PETITIONER : -
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DONA PRINCE,
THANIKKAL HOUSE,
KEERAMKULANGARA ROAD,
NEAR PC CENTRE, EAST FORT,
THRISSUR-680005.
BYADVS.SRI.N.N.SUGUNAPALAN (SR.)
SRI.S.SUJIN
RESPONDENTS : -
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1. ST. JAMES COLLEGE OF PHARMACEUTICAL SCIENCES,
ST. JAMES MEDICAL ACADEMY,RIVER BANK,
CHALAKUDY-680307, REPRESENTED BY ITS PRINCIPAL,
ST. JAMES MEDICALACADEMY, CHALAKUDY.
2. THE PRINCIPAL,
ST.JAMES COLLEGE OF PHARMACEUTICAL SCIENCES,
ST. JAMES MEDICALACADEMY, RIVER BANK,
CHALAKUDY-680307.
3. ADMISSION SUPERVISORY COMMITTEE (JUSTICE JAMES COMMSSION),
T.C.15/1553-4, PRASANTY BUILDING,
M.P.APPAN ROAD, VAZHUTHAKKAD-695014, THRISSUR.
4. PSM COLLEGE OF DENTAL SCIENCES,
AKKIKAVU, THRISSUR, REPRESENTED BY ITS PRINCIPAL.
5. COMMISSIONER FOR ENTRANCE EXAMINATIONS,
OFFICE OF THE COMMISSIONER FOR ENTRANCE EXAMINATIONS,
SHANTHI NAGAR, THIRUVANANTHAPURAM-695001.
R2 BY ADV. SRI.KURIAN GEORGE KANNANTHANAM (SR.)
R2 BY ADV. SRI.TONY GEORGE KANNANTHANAM
BY SR. GOVERNMENT PLEADER SRI. T. RAJASEKHARAN NAIR
BY SMT.MARY BENJAMIN, SC, ADMISSION SUPERVISORY COMMITTEE
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
08-11-2016, THE COURT ON THE SAME DAYDELIVERED THE FOLLOWING:
WP(C).No. 33318 of 2016 (L) 2
APPENDIX
PETITIONER'S EXHIBITS : -
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EXHIBIT P1 : TRUE COPY OF THE RECEIPTS ISSUED BY THE PRINCIPAL,
ST.JAMES COLLEGE OF PHARMACEUTICAL SCIENCE SHOWING
THE RECEIPT OF 1.9 LAKHS AS TUTION FEE, RS.2,500/-.
EXHIBIT P2 : TRUE COPY OF THE NOC WAS GRANTED BY THE PRINCIPALOF
THE 1ST RESPONDENT COLLEGE BY ISSUING A CERTIFICATE
DATED23.9.2016.
EXHIBIT P3 : TRUE COPY OF THE PAYMENT SLIP DATED 8.10.2016.
EXHIBIT P4 : TRUE COPY OF THE SPOT ADMISSION MEMO SHOWING THE
ELIGIBILITY FOR ADMISSION OF THE PETITIONER TO THE BDS
COURSE ISSUED BY THECOMMISIONER OF ENTRANCE
EXAMINATION DATED8.10.2016.
EXHIBIT P5 : TRUE COPY OF THE REQUEST BY THE PETITIONER TO THE 4TH
RESPONDENT PRINCIPAL PSM COLLEGE OF DENTAL SCIENCE.
EXHIBIT P6 : TRUE COPY OF THEREPRESENTATION DATED13.10.2016.
EXHIBIT P7 : TRUE COPY OF THE REPRESENTATION DATED 15.10.2016.
EXHIBIT P8 : TRUE COPY OF THE REPRESENTATION BEFORE THE JUSTICE
JAMES COMMISSION DATED17.10.2016.
EXHIBIT P9 : TRUE COPY OF THE JUDGMENT IN WA.NO.1669/2013.
RESPONDENTS' EXHIBITS : -
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EXHIBIT R2(a) : TRUE COPY OF THE FIRST 2 PAGES OF THE PROSPECTUS OF
ADMISSION TO B. PHARM & PHARM D COURSES 2016-17.
EXHIBIT R2(b) : TRUE COPY OF THE CIRCULAR DATED 15.7.2016 ISSUED
FROM THE REGISTRAR OF KERALA UNIVERSITY OF
HEALTH SCIENCES.
EXHIBIT R2(c) : TRUE COPY OF THE UNDERTAKING ISSUED FROM THE
PETITIONER.
// TRUE COPY //
P.A.TO JUDGE
DMR/-
P.R. RAMACHANDRA MENON
&
P. SOMARAJAN, JJ.
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W.P. (C) No. 33318 of 2016
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Dated this the 08th day of November, 2016
J U D G M E N T
P.R. Ramachandra Menon, J.
Grievance of the petitioner is in respect of the course pursued by the first and second respondents in detaining the original certificates of the petitioner and the refusal to issue Transfer Certificate for enabling the petitioner to have them produced before the fourth respondent, in connection with the admission secured for BDS in the said Institution, pursuant to the allotment made by the Commissioner for Entrance Examinations.
2. The sequence of events is as follows. The petitioner, on attaining the relevant qualifications, applied for and obtained a seat for 'Pharm D' course in the Institution belonging to the respondents 1 and 2. Annual tuition fee prescribed is Rs.1,90,000/-. Besides remitting it, a sum of Rs.2,500/- as Admission fee and Rs.10,000/- as caution deposit were also remitted on 05.07.2016 and she joined for the course, which is of a span of 'six' years. W.P. (C) No. 33318 of 2016 2 While so, based on the result in the 'NEET' conducted on All India basis (which was published on 16.08.2016) and based on the options given, she came to be alloted for admission to BDS course in the fourth respondent's Institution. According to the petitioner, she obtained an 'NOC' from the first respondent College, as borne by Exhibit P2, and joined for BDS in the fourth respondent's Institution remitting a sum of Rs.2,10,000/- in favour of the Commissioner for Entrance Examinations, as borne by Exhibit P3. The petitioner was required to submit the original records and the T.C. before the fourth respondent, which, in turn, were required to be issued by respondents 1 and 2. The said respondent declined the request and hence the petitioner approached the third respondent Committee by filing a complaint, which is still pending. However, because of the pressure of circumstances insisting to produce the relevant records before the fourth respondent to sustain the admission, the petitioner is constrained to move this Court by way of this writ petition.
3. Pursuant to the notice issued by this Court, the second respondent has appeared and filed a counter W.P. (C) No. 33318 of 2016 3 affidavit on behalf of the Institution. It is stated that 'Pharm D' course is a Doctoral Course of 'six' years; for which admission could be secured directly, after 'Plus Two' examination; that the course is of high demand; that a Prospectus has been issued and it has been duly approved by the Committee; that there is a Clause in the said Prospectus enabling the Institution to detain the documents such as T.C. and the original records till the liquidated damages are paid on leaving the Institution after closing of admissions on 31.07.2016; that the last date for closing the admission on 31.07.2016 was subsequently extended by the University till 15.08.2016 and further that the petitioner herein had left the Institution on her own will, only in October 2016 and hence that she was liable to satisfy the liquidated damages. It is also pointed out that, Exhibit P2 is not an NOC issued by the said Institution, but a certificate only showing that the petitioner is pursuing her studies in the said Institution and that the original certificates are with them.
4. The learned counsel for the petitioner submits that there is absolutely no reason to retain the certificates and W.P. (C) No. 33318 of 2016 4 no provision is in existence enabling respondents 1 and 2 to have such exercise. That apart, it is not a property over which some mortgage can be created or secured and that the legal position as above has been made clear by different High Courts. Reliance is sought to be placed on the verdict passed by a learned Single Judge of High Court of Gujarat at Ahmedabad in Rajeshkumar Patel v. State of Gujarat [2014 0 Supreme (Guj) 703], High Court of Judicature at Madras in Sarfarraz Ali A.S.Y. v. Saveetha School of Law [2015 0 Supreme (Mad) 2869] and High Court of Punjab and Haryana in Civil Writ Petition No.17829/2012 in Shikha v. State of Punjab and Others. We have gone through the said verdicts. We do not have any doubt in our minds to hold that the original certificates in respect of the educational qualification can never be a subject matter of pledge, mortgage or bailment and that there cannot be any bargain in this regard. The aforesaid judgments clearly refer to the factual position therein holding that no provision in the Prospectus was pointed out before the Courts to sustain such action. In the instant case, it is seen that a specific clause was incorporated in the approved W.P. (C) No. 33318 of 2016 5 Prospectus in the following manner.
"If any candidate discontinues the course after closing of admissions on 31.07.2016 or such date as could be decided by the competent authority including the court of Law, the candidate has to pay liquidated damages to the tune of full fee of the course. The student shall claim for TC and other certificates after clearing all the dues."
5. The Transfer Certificate is to be issued by the concerned Institution, so as to enable the student to leave the Institution and join somewhere else. Since it is clearly stipulated in the Prospectus that the T.C. can be issued only subject to satisfaction of the liquidated damages, once the student leave the Institution after the cut off date, it cannot be deprecated as illegal, arbitrary or unsustainable.
6. Coming to the factual position, it is the case of respondents 1 and 2 that admission was sought for by the petitioner with open eyes, knowing the liability to satisfy liquidated damages, by virtue of relevant Clause in the Prospectus, once she leaves the Institution after the cut off date. A copy of the undertaking executed in this regard [Exhibit R2(c)] has been produced along with the counter affidavit. It is relevant to note that, altogether 'thirty seats' W.P. (C) No. 33318 of 2016 6 were available in the Institution for 'Pharm D' and all the seats were filled up. The petitioner was placed at Serial No.12 in the list furnished before this Court. Among the 30 students admitted, except for 'four' students, all others are female candidates. The nature and extent of demand to the said course is quite evident. It is also pointed out by the learned Senior Counsel appearing for respondents 1 and 2 that the aforesaid admissions have been effected strictly on the basis of merit and that, by virtue of vacating the seat by the petitioner after the cut off date, the resultant vacancy could not be filled up, by the candidate who was standing next in the queue, thus causing loss for ever to the Institution as well as to the next eligible candidate.
7. Coming to the payment of liquidated damages, it is brought to the notice of this Court that the issue is pending before the Admission Supervisory Committee. The Apex Court has made it clear in Rajeshkumar Patel v. State of Gujarat [2014 Supreme (Guj) 703] that interest of the Institution could be secured, at the same time causing redressal of the grievance of the student concerned, by causing execution of a Bond/Undertaking or by furnishing W.P. (C) No. 33318 of 2016 7 Bank Guarantee for the requisite extent, so as to cause release of the documents concerned. The relevant paragraphs read as follows:
"12. In the above quoted portion of the judgment, the Supreme Court has dealt with a situation where the student intends to leave 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 W.P. (C) No. 33318 of 2016 8 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 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 insisting upon the payment of the balance fees, in the absence of any rule/regulation or W.P. (C) No. 33318 of 2016 9 other mechanism for securing the same."
8. From the above, it is clear that there is nothing wrong in insisting to furnish Bank Guarantee (for satisfaction of the liquidated damages) for release of the certificates or issuance of the Transfer Certificate, more so since the petitioner in the instant case has already left the Institution and joined in the fourth respondent's Institution. The learned Senior Counsel fairly submits that the first and second respondents are ready to release the certificates and T.C. if the petitioner gives an undertaking in writing, countersigned by her father, to the effect that they are ready to furnish Bank Guarantee within a reasonable time. The learned counsel for the petitioner submits (after having a discussion with the petitioner over telephone) that they are ready and willing to furnish Bank Guarantee for the requisite amount within 'ten' days.
In the above circumstances, recording the submissions made across the bar, the writ petition is disposed of, with liberty to the petitioner to furnish an 'Undertaking' in the aforesaid terms to furnish Bank Guarantee for the requisite amount within 'ten' days before the first and second W.P. (C) No. 33318 of 2016 10 respondents. On submitting an undertaking as above, the T.C. and all the relevant records in original shall be released to the petitioner forthwith, as assured by the learned Senior Counsel for the respondents 1 and 2 before this Court. The proceedings which are pending consideration before the Admission Supervisory Committee shall be finalized in accordance with law, as expeditiously as possible and the release of certificates as ordered above shall be subject to the orders to be passed by the Committee as aforesaid.
P.R. RAMACHANDRA MENON JUDGE P. SOMARAJAN JUDGE DMR/-