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2014 DIGILAW 359 (GUJ)

MONIL PRAKASHCHANDRA THAKKAR v. STATE OF GUJARAT

2014-03-10

ABHILASHA KUMARI

body2014
JUDGMENT 1. Rule. Mr.Hardik Soni, learned Assistant Government Pleader, waives service of notice of Rule for respondent No.1, Mr.A.R.Thacker, learned advocate waives service of notice of Rule for respondent No.2 and Mr.P.A.Jadeja, learned advocate waives service of notice of Rule for respondent No.3. 2. The challenge in this petition, preferred under Article226 of the Constitution of India, is to the action of respondent No.3C.U.Shah Medical College (“the College”, for short), in not returning the original documents of the petitioner. Though the petitioner has prayed for the refund of an amount of Rs.5,00,000/, which was paid as fees for the first semester, this prayer has been given up by the petitioner, as recorded in the order dated 16.12.2013 of this Court. 3. The brief factual background in which the petition has been filed, is as follows : 3.1 The petitioner had enrolled in the Post Graduate course of Master of ENT (Ear, Nose, Throat) with respondent No.2Saurashtra University, on 25.08.2013. After the process of counselling was over, the petitioner was admitted to respondent No.3College, which is affiliated to the Saurashtra University (“the University”, for short). On obtaining admission, the petitioner handed over his original certificates/documents to respondent No.3College on 27.08.2013. The petitioner also paid an amount of Rs.5,00,000/towards fees for the academic year 2013 14. While undergoing his studies, the petitioner learnt that the seat/course in which he was enrolled was not recognized by the Medical Council of India (“MCI”, for short). The petitioner was shocked and distressed on coming to know this. He addressed separate letters to the Head of the Department as well as the Dean of respondent No.3 College on 28.10.2013, stating therein, that at the time of counselling by respondent No.2 University, the petitioner was never informed that the seat/course to which he has been given admission was not recognized by the MCI. The petitioner gave a notice dated 13.10.2013, through his lawyer to respondent No.2University and respondent No.3 College, stating that the admission of the petitioner should be treated as cancelled and the fees refunded to him. By a communication dated 13.11.2013, respondent No.3College informed the petitioner that no Post Graduate course can be started without the prior approval and permission of the MCI and, at the appropriate time, the deficiencies, if any, would be made up and the course in which the petitioner was enrolled would be recognized by the MCI, with retrospective effect. By a communication dated 13.11.2013, respondent No.3College informed the petitioner that no Post Graduate course can be started without the prior approval and permission of the MCI and, at the appropriate time, the deficiencies, if any, would be made up and the course in which the petitioner was enrolled would be recognized by the MCI, with retrospective effect. The petitioner made several requests to respondent No.3 College for the return of his original documents. During the pendency of the petition, it is stated by the learned advocate for the petitioner, the petitioner has appeared in the examination conducted by Manipal University and has been called for counselling on 13.03.2014. A copy of Online Entrance Test Results 2014 of the Manipal University to this effect has been tendered by the learned advocate for the petitioner for the perusal of the Court. 4. The grievance of the petitioner is that if respondent No.3College does not return his original documents, he would be unable to participate in the counselling process at Manipal University, where he is now interested in pursuing his studies. Aggrieved by the decision of respondent No.3College not to return his original documents, the petitioner has approached this Court by way of the present petition. 5. Mr.S.P.Majmudar, learned advocate for Mr.P.P.Majmudar, learned advocate for the petitioner, has submitted that at the time of counselling, the petitioner was not informed that the seat/course offered to him by respondent No.3College was not recognized by the MCI. Though respondent No.3 College may be permitted to offer the course, its non recognition by the MCI would mean that the petitioner cannot practice outside the State of Gujarat or get employment with the State Government. It is contended that neither in the callletter nor in the admission letter, is this fact mentioned. When the petitioner came to know that the course in which he was admitted was not recognized by the MCI, he wrote to the Head of the Department of respondent No.3College to cancel his admission. The petitioner wanted to enroll in a recognized course for the sake of his future career and was even willing to waste a year in the process. In spite of requesting respondent No.3College to return the original documents of the petitioner, the said college has refused to do so. The notice issued by the petitioner also did not yield results. The petitioner wanted to enroll in a recognized course for the sake of his future career and was even willing to waste a year in the process. In spite of requesting respondent No.3College to return the original documents of the petitioner, the said college has refused to do so. The notice issued by the petitioner also did not yield results. On the contrary, respondent No.3 told the petitioner that the course would be recognized eventually with retrospective effect. 5.1 Learned advocate for the petitioner further contends that the issue to be determined by this Court would be when the petitioner wants to cancel his admission in midterm, whether respondent No.3 can retain his original documents, or insist that the petitioner pays the entire fees for the remaining duration of the course which he would no longer be taking. 5.2 It is further submitted that the refusal of respondent No.3College to return the documents of the petitioner flows from RuleR11 of the Rules and Regulations for Admissions in Post Graduate (Degree/Diploma) Medical Courses, 2013 (“the Rules”), framed by the Saurashtra University. The said rule is not applicable to the case of the petitioner as it deals with admission of candidates and retention of documents of the admitted candidates at the time of admission. In the present case, the petitioner has cancelled his admission and has requested respondent No.3 to hand over the documents, so that he can study elsewhere. There is no provision in the Rules for such a situation, therefore, the insistence of respondent No.3 upon RuleR11 is misplaced. 5.3 That, at the best, if respondent No.3College is aggrieved, it can file a suit for recovery against the petitioner. However, it has no power to retain the original documents of the petitioner when he opts for cancellation of the admission. 5.4 Learned advocate for the petitioner further submits that the Fee Regulatory Committee (Medical) of the State of Gujarat has, while framing the fee structure, specified certain conditions. One of the conditions is that a College should, as far as possible, refrain from insisting on taking bank guarantees from students, but should evolve an alternate form of security/guarantee to ensure that no student, once admitted, abandons the course halfway, resulting in loss of opportunity for others. One of the conditions is that a College should, as far as possible, refrain from insisting on taking bank guarantees from students, but should evolve an alternate form of security/guarantee to ensure that no student, once admitted, abandons the course halfway, resulting in loss of opportunity for others. It is submitted that respondent No.3College has not evolved any such alternate mechanism of security/guarantee, therefore, it has no right to insist upon retaining the original documents of the petitioner. 5.5 It is further contended by the learned advocate for the petitioner that the petitioner has not been made to sign a bond or give an undertaking by respondent No.3College, therefore, the said College has no right to retain the original documents of the petitioner. This Court may, therefore, direct respondent No.3 to return the original documents to the petitioner, forthwith. 5.6 Learned advocate for the petitioner has placed reliance upon the guidelines of the Universities Grants Commission (UGC), wherein it has been stipulated that in the event that the student withdraws his admission before the starting of the course, the entire fees collected from the student, after a deduction of processing fees of not more than Rs.1,000/(Rupees One Thousand only) shall be refunded and returned to him by the Institution or University. If a seat falls vacant upon withdrawal of the admission of a student then the seat should be filled in by another candidate from the waiting list. 5.7 In support of the above submissions, learned advocate for the petitioner has placed reliance upon the following judgments : (i) New India Assurance Company Vs. A.K.Saxena, reported in 2004 (1) SCC 117 . (ii) R.D.Saxena Vs. Balram Prasad Sharma, reported in 2001 (3) GLH 624. (iii) Judgment dated 03.11.2012 rendered 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. 6. The petition has been strongly resisted by Mr.D.C.Dave, learned Senior Advocate appearing for respondent No.3 College with Mr.P.A.Jadeja, learned advocate. According to learned Senior Counsel, three issues arise for the consideration of this Court, as follows : (i) Whether respondent No.3 College has a right to insist for fees for the remainder of the course? (ii) If the answer to the above issue is in the affirmative, whether respondent No.3 College has evolved a mechanism for recovery of the balance fees? (ii) If the answer to the above issue is in the affirmative, whether respondent No.3 College has evolved a mechanism for recovery of the balance fees? (iii) Whether respondent No.3 College can retain the original documents of the petitioner as a mechanism to recover the balance fees of the entire course? 6.1 Learned Senior Advocate for respondent No.3 College submits that if it is found that respondent No.3 College has a right in law to insist for the remaining fees for the entire course only then would issues Nos.2 and 3 arise. Therefore, the main issue, insofar as respondent No.3 College is concerned, is whether it has such a right, or not. 6.2 In this regard, learned Senior Advocate has submitted that this is a costbased system of education where the selffinancing pattern of education is being followed. The student pays the cost of his own education, as there is no grant from the Government. According to the learned Senior Advocate, respondent No.3 College has a right to insist for the balance fees for the entire duration of the course even though the petitioner has opted for cancellation of the course after admission. In this regard, reliance is placed upon paragraph8 of the decision of the Supreme Court in Islamic Academy of Education and another Vs. State of Karnataka and others, reported in (2003) 6 SCC 697 . It is submitted that in the said judgment, the Supreme Court was dealing with the issue whether a college can secure its position with reference to the fees for the entire duration of the course apprehending cancellation of admission in midstream by the students. Though, in the present case, respondent No.3 College has not collected the fees for the entire duration of the course from the petitioner, however, it has a right to insist for the same at this stage, when the petitioner is leaving the course midstream. 6.3 Learned Senior Advocate further urges that the Fee Regulatory Committee which fixes the fee structure has also specified certain conditions, one of which is that the concerned college may work out an alternate mechanism in the form of security/guarantee to ensure that no student, once admitted, abandons the course midway, resulting in the loss of opportunity for other students. 6.3 Learned Senior Advocate further urges that the Fee Regulatory Committee which fixes the fee structure has also specified certain conditions, one of which is that the concerned college may work out an alternate mechanism in the form of security/guarantee to ensure that no student, once admitted, abandons the course midway, resulting in the loss of opportunity for other students. According to the learned Senior Advocate, the right of respondent No.3College to insist on the fees for the entire duration of the course and to retain lien over the original documents of the petitioner is clearly crystallized. 6.4 It is submitted that the petitioner was aware that the course in which he was enrolled is not recognized by MCI as such information is available on the website of MCI. He has got enrolled with full knowledge, therefore, his prayer for return of documents ought to be rejected. 6.5 Reliance is further placed on a judgment of the Supreme Court in Mridul Dhar (Minor) and another Vs. Union of India and others, reported in (2005) 2 SCC 65 , wherein the Supreme Court has held that 31st May of the concerned year would be the cutoff date after which no student would be permitted admission in Post Graduate course under any circumstances. According to the learned Senior Advocate, this judgment also confers a right upon respondent No.3College to retain the original documents of the petitioner and insist upon the payment of the fees for the entire course. 6.6 Lastly, it is submitted that as respondent No.3 has a right to ask for the balance fees for the entire duration of the course, failing which it would be within its right to retain the original documents of the petitioner, the petitioner cannot pray for the issuance of a writ of mandamus under Article 226 of the Constitution of India, to defeat such right. Referring to the guidelines of the University Grant Commission (UGC), learned Senior Advocate has submitted that these guidelines contemplate a situation where admissions are going on, and do not pertain to a situation where the admission has been cancelled. 7. Mr.A.R.Thacker, learned advocate for respondent No.2 University has submitted that the University has framed rules on the basis of the MCI Regulations. Rule R11 is a rule pertaining to admission and not cancellation of admission midway through the course. 7. Mr.A.R.Thacker, learned advocate for respondent No.2 University has submitted that the University has framed rules on the basis of the MCI Regulations. Rule R11 is a rule pertaining to admission and not cancellation of admission midway through the course. He admits that there is no other rule contemplating lien over the documents of a candidate who cancels his admission midway through the course. It is further submitted that it was incumbent upon respondent No.3 College to evolve a mechanism for such a situation, which it does not appear to have done. 8. In rejoinder, Mr.S.P.Majmudar, learned advocate for the petitioner submits that the petitioner had no prior knowledge that the course of Post Graduate in ENT in which he was enrolled, is not recognized by the Medical Council of India. It was not possible for the petitioner to look up each and every course on the website of the MCI, as he was unaware of the course in which he would be enrolled at the time of counselling, as such enrollment/admission is on the basis of merit. The name of the petitioner was at Serial No.108 in the list of counselling, therefore, it was impossible for him to know beforehand, which course he would be enrolled in by respondent No.3 College. In fact, it was incumbent upon respondent No.3 to inform the petitioner before enrolling him in a course that is not recognized by the MCI. 9. This Court has heard learned counsel for the respective parties at length, perused the averments made in the petition and the documents annexed thereto. 10. Having given thoughtful consideration to the issue in hand, there is only one aspect that requires to be 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 paragraph8 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. 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 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. 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.3College 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.3College 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.3College, in the view of this Court it cannot be said that any indefeasible right has accrued in favour of respondent No.3College 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 other mechanism for securing the same. 14. 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 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. 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. 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 : “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.3College 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.3College cannot retain the original documents of the petitioner. 21. In the present case as well, there is no rule or regulation of respondent No.3College 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.3College cannot retain the original documents of the petitioner. 21. Considering the submissions advanced by the learned Counsel for the respective parties and the judgments cited at the Bar, this Court has no hesitation in holding that, on the facts and in the circumstances of the present case, where no mechanism has been evolved by respondent No.3College to ensure that the fees for the entire duration of the course are secured from the petitioner who intends to leave the course midway; and as, in the present case, the petitioner has not been made to sign any bond or furnish a bank guarantee, the retention of the original documents of the petitioner by respondent No.3 College is unsustainable in law. 22. The above conclusion may not be taken to mean that if respondent No.3College has faced any loss, either financial or any other kind, it cannot resort to an appropriate legal remedy. Such a course is always open to respondent No.3College. 23. In view of the above discussion and for the aforestated reasons, the petition is partly allowed. Respondent No.3 is directed to treat the admission of the petitioner as cancelled and to return the original documents of the petitioner, forthwith. Rule is made absolute, to the above extent. 24. Due to paucity of time and as this judgment, which is dictated in the open Court, may not be ready by tomorrow, that is, 11.03.2014, and as the petitioner has to report at Manipal University on 13.03.2014, the operative part of the judgment shall be made available to the petitioner, immediately. 25. At this stage, Mr.P.A. Jadeja, learned advocate for respondent No.3 College, submits, upon instructions, that the operation of this judgment may be stayed. For reasons stated hereinabove, the request is declined. 26. Direct service of this order, today, is permitted.