Allowed

Hemant Haridas v. State of Kerala

Kerala HC18 Jan 2016WP(C)/1615/2013

Case brief

AI extract

What is this about?

Petitioners admitted to a medical college under management quota were reallotted to a government quota college by the Supreme Court and CEE. Due to the first college's negligence in delaying transfer certificates, they missed the government quota admission. The High Court held the first college liable for negligence.

What did the court decide?

Petitioners not liable to pay further fees; fee paid treated as compensation for college's negligence; college directed to issue all eligible certificates.

Hemant Haridas Vs State of Kerala — Education and Admissions | Kerala HC (2016)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE

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MONDAY, THE 18TH DAY OF JANUARY 2016/28TH POUSHA, 1937

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WP(C).No. 1615 of 2013 (B)

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PETITIONER(S):

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HEMANT HARIDAS, AGED 22 YEARS, S/O K.R. HARIDAS, MADHAVAM TC NO 36/712(2) NSS KARAYOGAM ROAD, VALLAKADAVU P.O THIRUVANANTHAPURAM

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BY ADVS.SRI.D.SAJEEV

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SRI.K.R.HARIDAS

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RESPONDENT(S):

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1. STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT HEALTH AND FAMILY WELFARE DEPARTMENT GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM 695001

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2. THE COMMISSIONER FOR ENTRANCE EXAMINATION,

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HOUSING BOARD BUILDING, SANTHI NAGAR THIRUVANANTHAPURAM 695001

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3. THE CHAIRMAN, ACADEMY OF MEDICAL SECIENCE AND RESEARCH, PARIYARAM KANNUR DISTRICT 673685

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4. THE PRINCIPAL ACADEMY OF MEDICAL SECIENCES, PARIYARAM KANNUR DISTRICT 673685

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5. THE VICE CHANCELLOR, KANNUR UNIVERISTY, KANNUR UNIVERSITY CAMPUS KANNUR 673685

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*ADDL.R6. THE PRINCIPAL, AZEEZIA INSTITUTE OF MEDICAL SCIENCE AND RESEARCH, MEYYANNUR, KOLLAM.

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*ADDL.R7. THE ADMINISTRATOR, AZEEZIA INSTITUTE OF MEDICAL SCIENCE AND RESEARCH, MEEAYNNOOR, KOLLAM.

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**(ADDL.R6 AND ADDL.R7 ARE IMPLEADED AS PER ORDER DT 16/10/14 IN IA 14011/14)*

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R3,R4 BY ADV. SRI.P.V.SURENDRANATH BY SR GOVERNMENT PLEADER SRI.P.M.JOSEPH BY SRI.V.A.MUHAMMED, SC, KANNUR UNIVERSITY

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 8-01-2016, ALONG WITH WPC. 2102/2013, THE COURT ON 18/01/2016 DELIVERED THE FOLLOWING:

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WPC NO.1615/13

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PETITIONER(S) EXHIBITS

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EXT. P1 TRUE COPY OF THE ALLOTMENT MEMO BEARING NO AZC 10030 DATED 29-11-2008 ISSUED TO THE PETITIONER

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EXT. P2 TRUE COPY OF THE REMITTANCE CERTIFICATE EVIDENCING THAT THE 1ST PETITIONER HAS REMITTED THE TUITION FEE OF RS 45,000

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EXT. P3 TRUE COPY OF THE LETTER DATED 28-11-2008 ISSUED BY THE 2ND RESPONDENT TO THE 3RD RESPONDENT

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EXT. P4 TRUE COPY OF THE INTERIM ORDER DATED 05-12-2008 IN WPC NO 35631/2008 OF THIS HON'BLE COURT

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EXT. P5 TRUE COPY OF THE JUDGMENT DATED 11-02-2009 IN COC NO 1826/2008 OF THIS HON'BLE COURT

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EXT. P6 TRUE COPY OF THE REPRESENTATION FILED BEFORE THE VICE CHANCELLOR OF THE KANNUR UNIVERSITY WITH COPY OF THE REGISTRAR

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EXT. P7 TRUE COPY OF THE JUDGMENT DATED 17-02-2012 IN WPC NO 35631/2008 OF THIS HON'BLE COURT

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EXT. P8 TRUE COPY OF THE PROCEEDINGS OF THE VICE CHANCELLOR OF KANNUR UNIVERSITY DATED 18-06-2010

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EXT. P9 TRUE COPY OF THE COUNTER AFFIDAVIT FILED IN WPC NO 35431/2008 BY THE 4TH RESPONDENT

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EXT. P10 TRUE COPY OF THE REPRESENTATION FILED BEFORE THE 3RD RESPONDENT DATED 11-11-2011

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EXT. P11 TRUE COPY OF THE LETTER BEARING NO PRN/ 1378/192/2012/ ACME DATED 10-01-2013 ISSUED BY THE 4TH RESPONDENT

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EXT. P12 TRUE COPY OF THE REPRESENTATION DATED 12-01-2013 SUBMITTED BY THE PETITIONER BEFORE THE 4TH RESPONDENT.

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EXT.P13. TRUE COPY OF THE INTERIM ORDER DT 18.6.2013 IN WPC NO.1615/2013.

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EXT.P14. TRUE COPY OF THE INTERIM ORDER DT 3.3.2014 IN WPC NO.1615/2013.

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EXT.P15. TRUE COPY OF THE SIMPLE BOND EXECUTED ON 6.3.2014. RESPONDENTS' EXHIBITS

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EXT.R4(a): A TRUE COPY OF THE ALLOTMENT MEMO ISSUED BY THE COMMISSIONER OF ENTRANCE EXAMINATION, TRIVANDRUM.

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EXT.R4(b): A TRUE COPY OF THE FEE STRUCTURE FOR MBBS COURSE IN SELF FINANCING COLLEGS NOTIFIED BY THE COMMISSIONER OF ENTRANCE EXAMINATION DATED 24.8.2008.

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WPC NO.1615/13

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-2-

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EXT.R4(c): TRUE COPY OF THE INTERIM ORDER OF THE HON'BLE HIGH COURT DATED 4.1.2012 IN WPC 32379/2008.

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EXT.R4(d): A TRUE COPY OF THE COMPLAINT.

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EXT.R4(e): A TRUE COPY OF THE IA 399/2012 IN COMPLAINT 402/2012 FILED BY THE PETITIONER.

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EXT.R4(f): A TRUE COPY OF THE INTERIM ORDER IN IA 399/2012 IN COMPLAINT 402/2012 DATED 21.2.2012.

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EXT.R4(g): A TRUE COPY OF THE IA 673/2012 IN COMPLAINT 402/2012 FILED BY THE PETITIONER.

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EXT.R4(h): A TRUE COPY OF THE COUNTER AFFIDAVIT FILED BY THE RESPONDENT IN IA NO.4345/2012 IN WPC 32379/2008.

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EXT.R4(i): A TRUE COPY OF THE PROSPECTUS FOR THE MANAGEMENT/NRI QUOTA STUDENTS OF THE ACADEMY FOR THE YEAR 2008-09.

//True Copy//

P.S to Judge

A.M. SHAFFIQUE, J.

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============= W.P. (C) Nos. 1615 & 2102 of 2013

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=======================

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Dated this, the 18^th day of January, 2016

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J U D G M E N T

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Since common issues arise for consideration in these cases, they are heard and decided together.

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The petitioners in the writ petitions got admission to the MBBS Course in the Academy of Medical Sciences and Research, Pariyaram, Kannur (hereinafter referred to as the Pariyaram College), which is a Government owned Self Financing College in the Co-operative sector, during the academic year 2008-2009. The admission was in the management quota where the prescribed fee was `4,35,000/- per year. The petitioners joined Pariyaram College and while so, the Commissioner of Entrance Examination (hereinafter referred to as CEE) conducted special allotment on 28/11/2008 as per directions issued by the Supreme Court. The CEE reallotted the petitioners to the MBBS Course in Azeezia Institute of Medical Sciences and Research (hereinafter referred to as Azeezia Institute) at Kollam. Ext.P1 is

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W.P(C) Nos. 1615 & 2102/13

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the allotment memo dated 28/11/2008. The said allotment was under State Government quota and therefore, the fee payable was only 45,000/-. The date of joining in Azeezia Institute was on or before 3/12/2008. Petitioners remitted the tuition fee of 45,000/- in the said College. The CEE by letter dated 28/11/2008 requested the Principal of the College, Pariyaram to issue transfer certificate and other documents to the petitioners to enable them to join the Azeezia Institute on or before 3/12/2008. According to the petitioners, though they requested the 4^th respondent, the Principal of Pariyaram College, to hand over the transfer certificates and the original certificates, he did not take any steps in that matter. Petitioners along with other candidate approached this Court by filing WP(C) No.35431/2008 and by order dated 5/12/2008, this Court directed that the Pariyaram College shall fax their concurrence to the Azeezia Institute latest by 4.00 p.m on 5/12/2008 and that the students shall report before the Azeezia Institute, as early as possible. It was also mentioned that it will be wise on the part of the Pariyaram College to issue transfer certificates to the petitioners before 11/12/2008 and if

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W.P(C) Nos. 1615 & 2102/13

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they fail to do so, reasons have to be mentioned. The petitioners were also directed to report before the Azeezia Institute by 6.30 p.m on 5/12/2008.

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It is submitted by the petitioners that after pronouncing the interim order, the message was conveyed to the students at 11.40 a.m. They started journey to Kollam by hiring a taxi. However, they could reach Kollam only by 9.00 p.m. Though their parents were present at about 3.45 p.m and expressed the willingness of the petitioners to join the College, alleging that the petitioners have not reached the College in time, the Azeezia Institute did not permit the petitioners to join the College.

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Interim order dated 5/12/2008 was modified by another order dated 6/1/2009 and the Pariyaram College was directed to permit the petitioners to continue their course in the said College subject to further orders to be passed, as by that time all the seats in the Azeezia Institute had been filled up. After hearing the matter, by judgment dated 17/2/2010, this Court directed the Vice Chancellor to consider the matter and issue

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W.P(C) Nos. 1615 & 2102/13

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appropriate orders after hearing the parties. It was also mentioned that the issue regarding the petitioners' claim seeking transfer to Azeezia Institute was kept open. The Vice Chancellor of Kannur University heard the matter and as per proceedings dated 18/3/2010, observed as under;

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“Sri.Hemant Haridas and Sri.Gautham R.B has been awarded eligible marks as per their performance in the Internal Examination. The issues related with the transfer to Azeezia Institute of Medical Sciences, Mayyannur Kollam are not seen connected to the marks awarded to them. Non issuance of Transfer Certificate by the ACME Pariyaram negates the chance to complete their course at Azeezia Institute of Medical Sciences, Meyyannur Kollam with Rs.45,000/- per year which would have been a major financial gain for the students and their families. They have requested that they be allowed to continue in ACME Pariyaram itself by fixing their fees obligation at Rs.45,000/- per year. The University convey this request to the Hon'ble High Court of Kerala.”

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Petitioners submitted representation to the Chairman of the Pariyaram College seeking for considering their admission in merit quota and to permit them to complete the course by paying the fee under merit quota. The said claim was rejected as

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W.P(C) Nos. 1615 & 2102/13

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per letter dated 10/1/2013. It is in the said background that WP

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“i) To call for the records which lead to the issuance of Ext.P11 since the same is illegal, arbitrary and unjustifiable after issuing a writ of certiorari or other appropriate writ, direction or order.

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ii) To issue a writ of mandamus or other appropriate writ, direction or order, commanding the 3^rd respondent to consider and pass orders in Ext.P10 and the earlier representation dated 21.07.2010 after taking into consideration of the observation in Ext.P8 order to the effect that the non issuance of Transfer Certificate negates the chance of the petitioner to complete his course at the Azeezia Institute of Medical Sciences & Research, Kollam with Rs.45,000/- per year instead of Rs.4,35,000/- which would have been a major financial gain for the students and their family.

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(iii) To declare that the petitioner is entitled to continue his study in the Academy of Medical Sciences, Pariyaram for the fee structure mentioned in Ext.P1 since the petitioner has lost the said opportunity due to the latches and negligence on the part of the respondents 3 & 4 in issuing the Transfer Certificate in time in compliance with Ext.P3 letter from the 2^nd respondent.

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(iv) To issue a writ of mandamus or other appropriate writ, direction or order, commanding

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W.P(C) Nos. 1615 & 2102/13

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the 2^nd respondent to issue appropriate direction to the 3^rd respondent to include the petitioner in the fee structure applicable to the students who have secured admission in the Government Quota since the petitioner was re-allotted in the special allotment as per the orders of the Honourable Supreme court of India and the 3^rd respondent has failed to comply with Ext.P3 letter so as to enable the petitioners to join as per the special allotment. v) To stay all further proceedings pursuant to Ext.P11 till a final decision is taken in Ext.P10 by the 3^rd respondent as per the mandates contained in Ext.P8 order.”

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6. In WP(C) No.2102/13, following are the reliefs claimed:

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“i) To issue a writ of certiorari or other appropriate writ, direction or order to call for the records which lead to the issuance of Exhibit-P10 notice and quash the same as the same is illegal, arbitrary, unjustifiable and against the Natural Justice;

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ii) To issue a writ of mandamus or other appropriate writ, direction or order, commanding the 2^nd respondent to issue appropriate direction to the 3^rd respondent to include the petitioner in the fee structure applicable to the students, who have secured admission in the government Quota since the petitioner was re-allotted in the special allotment as per the orders of the Hon'ble Supreme Court of India and the 3^rd respondent has

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W.P(C) Nos. 1615 & 2102/13

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failed to comply with Exhibit-P3 letter so as to enable the petitioner to join as per the special allotment;

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iii) To declare that the petitioner is entitled to continue his study in the Academy of Medical Sciences, Pariyaram for the fee structure mentioned in Exhibit-P1 since the petitioner has lost the said opportunity due to the laches and negligence on the part of the respondents 3 and 4 in issuing the Transfer Certificate in time in compliance with Exhibit-P3 letter from the 2^nd respondent.”

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Now that the writ petitioners have completed the course, IA No.18318/2015 has been filed by the petitioner in WP (C) No. 1615/2013 seeking for a direction to the Pariyaram College to grant them a certificate in the prescribed form with seal stating that the petitioner has completed the course and compulsory internship programme during the period from 20/10/2014 to 19/10/2015. Therefore, it is contended that both the candidates have completed their course.

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The petitioners, other than paying the management quota fee of `4,50,000/- for the first year at the time of admission, did not pay another fee. According to the petitioners, they were

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W.P(C) Nos. 1615 & 2102/13

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denied an opportunity to join the College at Azeezia Institute only on account of the negligent attitude taken by the Principal of the Pariyaram College and therefore they had no obligation to pay any fee other than the Government fee that they were liable to pay, if they had obtained admission in the Azeezia Institute.

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Counter affidavit has been filed by the Pariyaram College inter alia stating that in so far as the students had completed their course under the management quota, they are under obligation to pay the fee applicable to such students. They referred to the prospectus conditions to substantiate the aforesaid fact. According to them, once the petitioners were admitted to the College under the management quota, they were bound to remit the entire fee as per the allotment memo issued by the CEE. It is stated that the fee required to be paid is the fee fixed by the Fee Regulatory Committee. It is also stated that the Pariyaram College was not a party to WP(C) No.500/2008 in which case the Supreme Court has passed an order directing the CEE to provide a list of 50 students strictly on the basis of merit. It is stated that as per the prospectus conditions, for management quota students,

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W.P(C) Nos. 1615 & 2102/13

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for the year 2008-09, it is clearly indicated that if any student leaves the institution or discontinue the studies, he/she is liable to pay the fee for the remaining years. This is on account of the fact that if a student leaves the College during the continuance of the course, the management will not be in a position to admit other students and the said seats will remain vacant. It is further submitted that by virtue of directions issued by this Court in WP (C) No.35431/2008, the College issued transfer certificate to the petitioners. But it was only on account of the attitude taken by Azeezia Institute that the petitioners could not get admission.

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Having regard to the aforesaid contentions, the only question to be considered in this writ petition is regarding the fee that has to be paid by the petitioners. Incidentally, they had remitted only `4,50,000/- at the time of admission and thereafter no fee was paid. During the pendency of the writ petition, this Court had stayed Ext.P11 in WP(C) No.1615/13 by which petitioner was called upon to clear the fees due to the Institution, since 2009. Similarly, in WP(C) No.2102/13, there was a direction to maintain status quo . Petitioner had sought to stay Ext.P10 by

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W.P(C) Nos. 1615 & 2102/13

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which he was called upon to remit the fee to the Institution since 2009.

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Subsequently, an interim order had been passed in these cases by which petitioners were permitted to write the final year examinations on executing a simple bond for an amount of `22,50,000/- each. Further interim orders were also granted permitting them to continue their house surgency and as matters stand now, the entire course has been completed.

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It is not in dispute that if the petitioners had undertaken the studies under the management quota, they were under obligation to pay the requisite fee at the rate of 4,50,000/every year. In the case of the petitioners, there is some change in circumstances which enabled them to get admission in Azeezia Institute under Government quota for which the fee was only 45,000/- per year.

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If as a matter of fact, the petitioners were unable to get admission to the Azeezia Institute within the time prescribed by the CEE on account of any negligence, laches or unfair attitude on the part of the Pariyaram College, then a question may arise

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W.P(C) Nos. 1615 & 2102/13

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whether they should compensate the petitioners in any manner, whereas, if there is no negligence, laches or unfair treatment on the part of Pariyaram College in the matter relating to giving transfer certificate in favour of the petitioners, they cannot be made responsible for any action by this Court. As far as Azeezia Institute is concerned, in so far as the petitioners have not joined the said Institute within the time specified by this Court, no further action can be taken against them in the present matter.

¶111

Coming to the factual background involved in the case, it is evident that the petitioners were allotted MBBS seat under the Government quota (merit seat), in the Azeezia Institute as per directions issued by the CEE. Ext.P1 in the aforesaid cases are the allotment details issued by the CEE. By Ext.P2, they remitted the tuition fee of `45,000/-. By Ext.P3 dated 28/11/2008, the CEE had called upon the Principal of Pariyaram College that the aforesaid candidates have been realloted to the MBBS course in Azeezia Institute and they were requested to issue transfer certificate and other documents to the candidates to enable them to join the College on or before 3/12/2008. It is evident that Pariyaram

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W.P(C) Nos. 1615 & 2102/13

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College did not comply with the aforesaid request which ultimately resulted in the petitioners approaching this Court by filing WP(C) No.35431/2008. According to the petitioners, they made a personal request to the Pariyaram College for issuance of Transfer Certificates, but since no action had been taken in the matter, they had to file a writ petition before this Court on 1/12/2008. Notice was ordered by special messenger to the College. The learned Single Judge in paragraph 7 of the said order observed as under;

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“7. Supreme Court has directed the Commissioner to draw up a list of 50 students and petitioners are eligible in terms of such allotment. It is difficult to appreciate the delay incurred by the third respondent in issuing transfer certificates to the petitioners. I propose to consider the propriety of the conduct of the third respondent after giving him an opportunity to file a counter affidavit. But at present, in view of the deadline of 5.12.2008, it is necessary that an interim order be passed to secure the admission of the petitioners.

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It is pursuant to the said observation that the petitioners were directed to report before the Azeezia Institute before 6.30 p.m on

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W.P(C) Nos. 1615 & 2102/13

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5/12/2008. But it is evident from subsequent events that the petitioners could not reach in time and the management of Azeezia Institute did not permit them to join as they could not reach the College within the time specified. Subsequently, as already indicated, petitioners continued in the Pariyaram College and they have now completed the course.

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The question is whether Pariyaram College was justified in not providing the transfer certificates and other documents to the petitioners when a request to that effect was made on 28/11/2008. It was only on account of their attitude in not providing those documents that the petitioners had to approach this Court by filing a writ petition.

¶121

The main contention urged by the Pariyaram College for refusing to grant the Transfer Certificates and documents is based on the prospectus condition that while discontinuing studies under the management quota, they have to remit the entire fee. Relevant clause in the prospectus produced as Ext.R4 (i) is Clause VIII b, which reads as under;

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“ VIII b. If any candidate discontinues/leaves the Institution within a period of 15 days before the

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W.P(C) Nos. 1615 & 2102/13

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closing of admission in the first year or discontinues/leaves the Institution in the subsequent years, he/she is liable to pay the fees for the remaining years i.e. fees of the whole course. In such cases Transfer Certificate and other certificates will be issued only after the payment of the fees for the remaining years are also made.”

¶126

But it is relevant to note that the aforesaid clause cannot have application to the fact situation. In the case on hand, the Supreme Court had issued certain directions to the CEE as per order dated 21/11/2008 in WP(C) No. 500/2008. Following are the directions issued;

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“In view of the peculiar circumstances, we give the following directions:

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1. The Commissioner of Entrance Examinations, Kerala, is directed to provide a list of 50 students strictly on the basis of merit, eligibility conditions and subject to the internal rules applicable to the admission process. The Commissioner of Entrance Examinations is also directed to give another list of students who are willing to pay higher fees which is stated to be Rs.4.5 lac.

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2. The college is directed to complete the admissions on or before 05^th December 2008 and the Commissioner of Entrance Examination shall provide the list of students on or before 25 November, 2008.

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W.P(C) Nos. 1615 & 2102/13

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3. It is made clear that if still there are any vacant seats, the college shall be at liberty to admit the students from amongst the successful ones in the entrance examination allegedly conducted by it.

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4. The college will regulate the admission process accordingly.

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5. It is further made clear that the Commissioner of Entrance Examinations would be at liberty to make alternative arrangement to regulate the admissions regarding the professional courses as some other seats in Dental or other courses are likely to fall vacant.

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6. The college shall furnish final list to justice Muhammed Committee by 10/12/2008.”

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In Clause (5) aforesaid, it was stated that the CEE would be at liberty to make alternate arrangement to regulate admissions regarding other professional courses as some other seats in Dental or other courses are likely to fall vacant. Though the Pariyaram College is not a party to the above proceedings, when the CEE had provided a list of students strictly on the basis of merit, the students were entitled to get admission in the said College especially in the merit seat under Government quota. Therefore, when instructions had been issued by the CEE as per Ext.P3, it was incumbent on the part of Pariyaram College to have

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W.P(C) Nos. 1615 & 2102/13

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issued the transfer certificates and other documents to the candidates. It is not a case where the candidates have chosen to discontinue the course on their own. It is by virtue of allotment letters issued by the CEE that they sought for the transfer certificates as well as the original documents. The College apparently should not have resisted the said request and should have made arrangements to provide the transfer certificate and other documents to the candidates. Such an inaction clearly amounts to negligence. If any of the seats under the management quota remained vacant, they could have requested the CEE to make alternate arrangements for the same. That apart, by virtue of the aforesaid inaction on the part of Pariyaram College, the legal right of the petitioners to study in a College at a lesser fee has been deprived of. In that view of the matter, Pariyaram College is bound to compensate the petitioners.

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In the said circumstances, taking into consideration the aforesaid factual issues, I am of the view that appropriate directions are required to be passed and accordingly, these writ petitions are allowed as follows;

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W.P(C) Nos. 1615 & 2102/13

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(i) That the petitioners shall not be liable

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to pay any other amount to the Pariyaram College as fee other than what they have actually paid.

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(ii) That the College shall provide the petitioners with all certificates which they are eligible to get after completion of the course and house surgency including certificate showing that they have completed the compulsory internship programme.

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(iii) That the fee of `4,50,000/- for the subsequent years shall be treated as valid compensation for the negligent attitude of the Pariyaram College.

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(iv) That the simple bond executed by the petitioners shall be treated as discharged.

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Sd/-

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A.M. SHAFFIQUE, JUDGE

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//True Copy//

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P.S to Judge

Hemant Haridas v. State of Kerala

Case brief

What is this about?

What did the court decide?

Hemant Haridas v. State of Kerala

Case brief

What is this about?

What did the court decide?

What the court decided

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