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Himachal Pradesh High Court · body

2015 DIGILAW 1504 (HP)

Anubhav Bansal v. H. P. University

2015-10-14

TARLOK SINGH CHAUHAN

body2015
JUDGMENT : Tarlok Singh Chauhan, J. The petitioner by way of this writ petition has sought a direction against the respondents to release/refund the fees alongwith interest deposited by him at the time of his admission. 2. The petitioner in May, 2012 applied for admission to 5 year B.A.LLB course in various institutions and universities including respondent No.2 institute affiliated with respondent No.1-University. In the counselling held in June, 2012, he got admission and deposited the requisite fee and other charges amounting to Rs. 32,900/- vide receipt No. 1178 dated 22.6.2012. He thereafter got admission in the Punjab University Regional Centre, Ludhiana where too, he deposited the necessary fee. 3. Vide application dated 25.7.2012, the petitioner surrendered the seat. After more than a month of the surrender, he approached the respondent-University for refund of the fee through e-mail dated 28.8.2012. However, the request was finally turned down on 12.8.2013 by invoking the provisions contained in the Handbook/Prospectus for 2012-2013, which provided that the fees once deposited would not be refunded under any circumstance. 4. This action of the respondents has been challenged by seeking aid of letter issued by the UGC dated 23.4.2007 whereby, according to the petitioner, clear direction had been issued to all the Universities to refund the fee after deducting a sum of Rs. 1000/- in case where the students opts out of the course at the initiation of the course itself. 5. Respondents have filed the reply wherein by raising the preliminary objection that the petitioner never applied for refund of fee on 25.7.2012 as is being alleged by him, rather it was only on 28.8.2012, that too, after getting admission in the Punjab University, Regional Centre, Ludhiana that the petitioner for the first time applied for refund of the fee. Whereas, on merits, the respondents have specifically claimed that they would be bound to refund the fee, only if, the seat vacated by the candidate is filled up or has been allotted to some other student. But in case the seat vacated by a student remains vacant, then the fee cannot be refunded. I have heard learned counsel for the parties and have gone through the records of the case carefully and meticulously. 6. Before proceeding further, certain judgments on the subject which tend to support the contention of the petitioner may be noticed. 7. But in case the seat vacated by a student remains vacant, then the fee cannot be refunded. I have heard learned counsel for the parties and have gone through the records of the case carefully and meticulously. 6. Before proceeding further, certain judgments on the subject which tend to support the contention of the petitioner may be noticed. 7. In Atam Parkash Khatter vs. Commissioner and Secretary and another to Government of Haryana and others, CWP No. 13308 of 2009 decided on 21.7.2010, the Punjab and Haryana High Court observed that Education Institution cannot act like commercial establishment and there is no justification on the part of the institution in retaining the substantial fee paid by a student, who decides not to pursue his/her studies in the said institution. 8. In Prabhjot Singh vs. Punjab University, Chandigarh, reported in the Punjab and Haryana High Court held that in view of the instructions of the AICTE and UGC, the respondent-University was duty bound to refund the fee, if the student has withdrawn before the commencement of the course. 9. In Ramdeo Baba Kamala Nehru Engineering College and others vs. Sanjay Kumar and others, (2002) 10 SCC 487 , it was held by the Hon’ble Supreme Court that in the event of cancellation of admission at the behest of either party, money ought to be refunded, subject to deductions. 10. Now, the judgments supporting the case of the respondents may also be noticed. 11. In Islamic Academy of Education and another vs. State of Karnataka and others (2003) 6 SCC 697 the Hon’ble Supreme Court had not decided against the collection of entire course fee at the time of admission it only stated that if the entire fee is collected in advance, one year fee alone will be used by the institution and balance amount would be kept invested in fixed deposit in a nationalized bank and the interest accrued thereon shall be refunded to the student at the end of the course. It was further stated that the institution is authorized to require the student to furnish a bond/bank guarantee that the balance fees for the whole course would be received by the institution even if the student left in midstream. Meaning thereby the bank guarantee so obtained would be enforceable for collection of balance whole course fee, in the event of the student left in midstream. Meaning thereby the bank guarantee so obtained would be enforceable for collection of balance whole course fee, in the event of the student left in midstream. It is nowhere stated in this decision that the student, who leaves in midstream is not liable to pay whole course fee, when the vacant seat so caused remain unfilled. It is clearly laid down that the student who leaves the college after the commencement of the course and after the closure of date of admission, is not entitled for refund of the fees already paid and is liable to pay the balance fees for all the semesters. 12. In Amit Sadashiv Vaidya vs. The Principal, K.C. College of Engineering Kopri, Thand and others, Writ Petition No. 2933 of 2011, decided on 11.6.2012, the Bombay High Court having regard to the Rules, framed by the Directorate of Technical Education to the effect that no refund of fees except for the security of deposit can be granted, where a request for cancellation of admission is received before or after the start of the academic session as the seat cannot be filled by the institute was pleased to observe that the rules seek to balance on one hand, refund of tuition fees to students, who obtain more preferential allotments, with the rights of management as a result of the withdrawal by the petitioner from the seat allotted, the seat would remain vacant for a period of four years. Accordingly, the Bombay High Court declined to grant the relief for refund of tuition fees already paid. 13. In L.K.Talwar and another vs. Lovely Professional University, CWP No. 1133 of 2011, decided on 9.5.2012, the Punjab and Haryana High Court held that if the seat consumed is still lying vacant, then there is no question for refund of fees. 14. In Kalka Institute for Rese and Advance Studies and another vs. Hitesh Kumar and others, reported in (2006) 127 DLT 606 , the Delhi High Court held that since the petitioner had attended the classes for about one month and applied for withdrawal much after closure of admission, the fee was not refundable. 15. 14. In Kalka Institute for Rese and Advance Studies and another vs. Hitesh Kumar and others, reported in (2006) 127 DLT 606 , the Delhi High Court held that since the petitioner had attended the classes for about one month and applied for withdrawal much after closure of admission, the fee was not refundable. 15. In Sharifa B.T. Mohamed Ali Jinnaha vs. The Vice Chancellor, Manipal Academy of Higher Education, ILR 2006, KAR 2220, the Karnataka High Court held that once a candidate has declared and signed the condition/rules and regulations of the University/College, such a candidate is not entitled to turn down the undertaking and redress the grievance contrary to the existing rules and regulations. 16. In M. Shajila vs. The University of Calicut and others, W.P. No. 29635 of 2004, decided on 15.3.2011, the Kerala High Court observed that the Court would not be justified in compelling the management to refund the fee and special fee, if the discontinuance is after the closure of the admission and when the petitioner is not able to demonstrate that the seat vacated by her/him was filled up by admitting some other candidate. 17. It is the consistent view of the Madras High Court that if the student withdraws after the commencement of the classes with the seat remaining unfilled, the terms agreed upon at the time of admission is binding on the petitioner; the institution has every right to collect the fees from the petitioner and there is no illegality in such action. It has further been held that the prospectus has force of law and that the institution as well as student is bound by the prospectus for admission. Therefore, in case there is a condition in the prospectus, that the fee already paid cannot be refunded, then the parties are bound by such condition. It has further been held that the prospectus has force of law and that the institution as well as student is bound by the prospectus for admission. Therefore, in case there is a condition in the prospectus, that the fee already paid cannot be refunded, then the parties are bound by such condition. (Refer: (i) WP (MD) No. 13041/2011 dated 7.2.2013, B. Uthanda Harihara Sudhan vs. The Registrar, Sasthra University, Thanjavur; (ii) WP (MD) No. 935 of 2008 dated 17.7.2008 G.Maria Jeblin Lincy vs. The Principal, Sun College of Engineering and Technology, Kanyakumari District and another ; (iii) WP No. 21490 of 2007 dated 9.11.2010 S.K.Sethuraman vs. The Registrar, Sastra University; (iv) (2012) 4 MLJ 666 , R.Gowthami vs. Regional Officer, All India Council for Technical Education, Chennai and others ; and (v) WP No. 2956 of 2008 dated 12.2.2013 A. Arun vs. The Registrar, Tamil Nadu Agricultural University, Coimbatore and others). 18. In Bhagwan Mahavir Institute of Engineering and Technology vs. The Haryana State Counselling Society and others, CWP No. 9711 of 2010, decided on 06.01.2012, the Punjab and Haryana High Court after concluding that the seat vacated by the candidate had not been filled up and was still lying vacant, approved the action of the College of not refunding the admission fee deposited by the candidate to be in consonance with AICTE norms and it was held as follows: “This norm, as has been laid down by the AICTE has a rationale behind it i.e. the colleges especially the unaided colleges survive on the fee charged by them from the students. They do not depend upon the aid from any source and for their survival they are primarily dependent on the fee collected from the candidates/students. Candidates, on their part, are not mandated to deposit the complete admission fee the moment they are allotted the seats in the institute. If a candidate is willing to accept the seat, he is only required to deposit a token admission fee of Rs.20,000/- and can thereafter without taking admission in the institute participate in the second counselling as provided in clause 7.2 (A) sub-clause 9. It would also not be out of way to mention here that as per clause 17, the fee to be deposited in the institute should be deposited after deducting token admission fee already deposited in the Counselling Society’s account. It would also not be out of way to mention here that as per clause 17, the fee to be deposited in the institute should be deposited after deducting token admission fee already deposited in the Counselling Society’s account. Once the fee has been deposited with the institute, for refund of the same, clause 7.4(C) comes into play and if the conditions provided therein are fulfilled, it is only then that a candidate who is withdrawing from an institute will be entitled to refund of the admission fee deposited in the institute. In view of the above, order passed by the Counselling Society-respondent No.1 directing the petitioner-college to refund the admission fee to the private respondents cannot sustain as the same is against the AICTE notification.” 19. Now, what can be culled out from the aforesaid conspectus of the judgments is that the dominant view of majority of the Courts is that : (i) The college or other educational institution has every right to collect the fees; (ii) The prospectus has the force of law ; and (iii) If the seat consumed is still lying vacant, then there is no question for refund of fees. 20. Learned counsel for the petitioner would then rely upon the letter issued by the UGC on 23.4.2007 to contend that the University at best could have deducted processing fee of not more than Rs. 1000/- and should have refunded the remaining amount. In fact, Mr. J.L.Bhardwaj, learned counsel for the respondent, too has relied upon this letter to claim that once the seat vacated by the petitioner has not been filled by admitting any other student, the petitioner cannot seek refund. 21. In this background, it is apt to quote para-3 of the letter dated 23.4.2007, which reads thus: “3. The Ministry of Human Resource Development and University Grants Commission have considered the issue and decided that the Institutions and Universities, in the public interest, shall maintain a waiting list of students/candidates. In the event of a student/candidate withdrawing before the starting of the course, the waitlisted candidates should be given admission against the vacant seat. The entire fee collected from the student, after a deduction of the processing fee of not more than Rs.1000/- (one thousand only) shall be refunded and returned by the Institution/University to the student/candidate withdrawing from the programme. The entire fee collected from the student, after a deduction of the processing fee of not more than Rs.1000/- (one thousand only) shall be refunded and returned by the Institution/University to the student/candidate withdrawing from the programme. Should a student leave after joining the course and if the seat consequently falling vacant has been filled by another candidate by the last date of admission, the institution must return the fee collected with proportionate deductions of monthly fee and proportionate hostel rent, where applicable.” 22. It is evident from the aforesaid letter that a candidate would be entitled to refund of fee after deduction of processing fee of not more than Rs.1000/- only in the event when the candidate withdraws from the programme and the seat falling vacant has been filled by another candidate. But in case the seat vacated has not been filled by admitting any other student, then the petitioner cannot ask for the refund of money. 23. That apart, it is more than settled that the provisions contained in the prospectus issued by the University are binding on the parties. It is also not in dispute that the prospectus in question contained the following condition:- “The fees once deposited shall not be refunded under any circumstances” under the head “Procedure for Seeking Admission” except the Library Security i.e. Rs.800/- (Rupees Eight hundred) only.” Therefore, in the teeth of such condition and without assailing this condition, the petitioner being bound by the prospectus cannot claim any refund. 24. As already observed earlier, it is the specific stand of the respondents that the seat vacated by the petitioner remained vacant and was not filled up or allotted to some other student. The petitioner has failed to rebut this stand and therefore in such circumstances the University cannot be made to suffer for no fault on its part and asked to refund the fee and thereby put to unnecessary loss. 25. For the foregoing reasons, I see no merit in this petition and the same is accordingly dismissed, leaving the parties to bear their costs.