Research › Search › Judgment

Madras High Court · body

2010 DIGILAW 537 (MAD)

P. Sudarsan v. Madurial Kamaraj University

2010-02-11

S.MANIKUMAR

body2010
Judgment The petitioner has sought for a writ of certiorarified mandamus, to quash Clause 7 (d) of the Prospectus for admission to M.Sc. Micro Bial Gene Technology 2001-2002 and direct the respondent to refund the fees paid at the time of admission. 2. It is the case of the petitioner that he applied for M.Sc. Micro Bial Gene Technology for the academic year 2001-2002 and was admitted to the Course and paid a sum of Rs.39,945/- towards tuition and special fees on 6. 2001. Subsequently, he was selected for M.Sc. Bio-Tech in Jawaharlal Nehru University, New Delhi and joined the course. Though the petitioner’s father made a request to the University for refund of Rs.37,750/- after deducting the special fees of Rs.2,195/-, it was not refunded. In this regard, a representation dated 12. 2001 was made. As there was no response, legal notices dated 25. 2002 and 30.5.2002 were issued. Since by Clause 7(d) of the Prospectus for admission to M.Sc. Micro Bial Gene Technology Course for the Academic Year 20012002, a restriction was imposed for refund of any fees or excess fees once paid, either for refund or adjustment, the respondent have not refunded the amount claimed by the petitioner. In these circumstances, the writ petitioner, left with no other option has challenged the above said clause as illegal, opposed to public policy and consequently, prayed for refund of the fees paid. 3. Placing reliance on the decision of the Supreme Court in Central Inland Water Transport Corporation and Another, v. Brojo Nath Ganguly and Another AIR 1986 SCC 1571: (1986) 3 SCC 156 : 1986-II-LLJ-171, learned counsel for the writ petitioner, submitted that Clause 7(d) of the Prospectus is opposed to public policy as laid down by the Supreme Court and it is also violative of Section 23 of the Contract Act. He further submitted that after the departure of the petitioner from the University, the resultant vacancy was filed up by another candidate and that fee was also collected from him. In the absence of any rebuttal to the said aspect in the counter affidavit filed by the respondent, he submitted that the respondent being a public authority and imparting higher education cannot make enrichment at the cost of the students. 4. In the absence of any rebuttal to the said aspect in the counter affidavit filed by the respondent, he submitted that the respondent being a public authority and imparting higher education cannot make enrichment at the cost of the students. 4. Based on the counter affidavit filed by the Registrar, Madurai Kamaraj University, Madurai, Mr.S.Sethuraman, learned counsel for the University submitted that a writ petition for recovery of money is not maintainable in law and therefore prayed to dismiss the same in limine. Without prejudice to the above, he submitted that School of Biological Sciences of the University is one of the internationally reputed Centres for research in Modern Biology. The department has got modern and sophisticated technically advanced instruments. As such, the facilities available in the Department are to be made available to the best talented students competed for admission into the course offered by the School at a very great expense. 5. According to the Registrar, the University admits only best qualified students for the Course. The petitioner had chosen to discontinue the course after two months from selection and it was very difficult for the university to find out a qualified student to fill up the resultant vacancy, after a lapse of considerable time. The University has formulated Clause 7(d) of the Prospectus for the welfare of the students community and also having regard to the fact that the University is spending huge amount for conducting such specialised courses. For the above said reasons, he prayed for dismissal of the writ petition. 6. Heard the learned counsel for the parties and perused the materials available on record. 7. Clause 7(d) of the prospectus for M.Sc. Micro Bial Gene Technology degree conducted by the University for the academic year 2001-02 reads as follows: “7(D): Any fees or excess fees, once paid, will not be refunded or adjusted or transferred under any circumstances.” The reason, for prescription of such a clause in the Prospectus as deduced from the counter affidavit is that the University is one of the internationally reputed Centres for research in Modern Biology. The department is having highly sophisticated and technically advanced instruments and the facilities available in the department have to be made available to the best talented students, who are offered admission to the said course and that the facilities are extended at a very grant expense. The department is having highly sophisticated and technically advanced instruments and the facilities available in the department have to be made available to the best talented students, who are offered admission to the said course and that the facilities are extended at a very grant expense. According to the respondent, only twelve seats are available in M.Sc. Micro Bial Gene Technology Course and the students are selected, after going through a process of All India Level Entrance Test, Seminar and interview. Since the course offered is stated to be of very special nature and having regard to the fact that only the best qualified students are offered admission to this course, the University has submitted that if a selected candidate choses to discontinue the course after a considerable period, it would be very difficult for the University to find out another candidate to fill up the resultant vacancy and therefore the fees paid cannot be refunded. 8. Section 23 of the Contract Act is extracted hereunder. “23. The consideration or object of an agreement is lawful, unless- it is forbidden by law; or is of such a nature that, if permitted, it would defeat the provisions of any law, or is fraudulent; or involves or implies injury to the person or property of another; or the Court regards it as immoral, or opposed to public policy. In each of these cases, the consideration or object of an agreement is said to be unlawful. Even agreement of which the object or consideration is unlawful is void.” 9. In Central Inland Water Transport Corporation and Another, v. Brojo Nath Ganguly and Another (supra), relied on by the learned counsel for the writ petitioner, the Supreme Court, while considering the scope and meaning of the expression, “opposed to public policy” or “contrary to public Policy” occurring in Section 23 of the Contract Act, has held as follows: “Contract Act does not define the expression “public policy” or “opposed to public policy”. From the very nature of things, the expressions “public policy”, “opposed to public policy” or “contrary to public policy” are incapable of precise definition. Public policy, however, is not the policy of a particular Government. It connotes some matter which concerns the public good and the public interest. From the very nature of things, the expressions “public policy”, “opposed to public policy” or “contrary to public policy” are incapable of precise definition. Public policy, however, is not the policy of a particular Government. It connotes some matter which concerns the public good and the public interest. The concept of what is for the public good or in the public interest or what would be injurious or harmful to the public good or the public interest has varied from time to time. As new concepts take the place of old, transactions which were once considered against public policy are now being upheld by the Courts and similarly where there has been a well recognized head of public policy, the Courts have not shirked from extending it to new transactions and changed circumstances and have at times not even flinched from inventing a new head of public policy. Practices which were considered perfectly normal at one time have today become obnoxious and oppressive to public conscience. If there is no head of public policy conscience. If there is no head of public policy which covers a case, then the Court must in consonance with public conscience and in keeping with public good and public interest declare such practice to be opposed to public policy. Above all, in deciding any case which may not be covered by authority Courts have before them the beacon light of the Preamble to the Constitution. Lacking precedent, the Court can always be guided by that light and the principles underlying the Fundamental Rights and Directive Principles enshrined in the Constitution.” 10. It is well settled that the terms and conditions of the prospectus are binding on the candidates as well as the Education Department, University. The contention of the University that if the selected students choose to discontinue the course, after considerable period of time, it would be difficult to fill up the resultant vacancy with a qualified student and therefore, there is every likelihood of losing the fee in my considered view cannot be said to be opposed to public policy, for the reason that in any institution, amount collected by way of tuition fees is only spent for payment of salary to teaching staff. In the given case for the type of education provided to the exclusive twelve students, the teaching staff should possess knowledge in the specialised subjects and if there is a reduction in the total amount of tuition fees collected, then certainly the University will have to adjust from other funds. Special fees are collected and spent towards activities like, Cultural Day, Annual Day, First Aid and other incidental expresses 11. The contention of the writ petitioner that the University, being a public authority is trying to make unjust enrichment at the cost of the students cannot be countenanced for the simple reason that the University is one of the internationally reputed centres for research and Modern Biology and that very modern and sophisticated equipment are stated to be used in the University. Money spent for payment of salary to teaching staff is normally collected from the students and if the selected candidate chooses to discontinue the course, there-would be shortfall. 13. For the above said reasons, this Court is of the considered view that the petitioner who has acquiesced himself to the terms and conditions of the Prospectus, cannot turn around and challenge the vires of the same on the ground that it is opposed to public policy. Hence, Clause 7(d) is sustained. 14. However, the contention of the writ petitioner that after his departure, the resultant vacancy was filed up by another meritorious candidate has not been properly answered in the counter affidavit. The University has given a vague reply that it would be difficult for them to fill up the resultant vacancy with another student. In that context, this Court is of the view that if the University had filled up the resultant vacancy with another candidate for the academic year 2001-02, then they are not entitled to receive tuition fees from two students, against one vacancy for the same academic year. Therefore, if the vacancy had been filled up, the respondent shall consider the case of the petitioner for refund of tuition fees proportionately, after making, permissible deductions for the period of study undergone by the writ petitioner. 15. With the above directions, the writ petition is disposed of. No costs. Petition disposed of.