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