IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
LETTERS PATENT APPEAL No. 90 of 2007
In
SPECIAL CIVIL APPLICATION No. 8702 of 1997
For Approval and Signature:
HONOURABLE MR.JUSTICE RAVI R.TRIPATHI
HONOURABLE MR.JUSTICE N.V. ANJARIA
========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the judgment ?
4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ?
5 Whether it is to be circulated to the civil judge ?
=========================================================
ANANDJIWALA AVANI MADHUKAR - Appellant(s)
Versus
DIRECTOR OF TECHNICAL EDUCATIONAL (DELETED) & 3 -
Respondent(s)
========================================================= Appearance :
MR BR PARIKH for Appellant(s) : 1, DELETED for Respondent(s) : 1, 3, MR UTKARSH SHARMA, ASSIST. GOVERNMENT PLEADER for Respondent(s) : 2, MS KJ BRAHMBHATT for Respondent(s) : 4, =========================================================
CORAM : HONOURABLE MR.JUSTICE RAVI R.TRIPATHI
and
HONOURABLE MR.JUSTICE N.V. ANJARIA
Date : 02/11/2012
ORAL JUDGMENT
(Per : HONOURABLE MR.JUSTICE RAVI R.TRIPATHI)
1. The appellant-original petitioner is before this Court being aggrieved by judgment and order dated 21.06.2006 passed by the learned Single Judge in Special Civil Application No.8702 of 1997. By the said judgment and order, the petition filed by the appellant herein was rejected.
2. The petitioner-a girl student passed her Diploma in Electronics & Communications and applied for admission to 3rd Semester in the Degree Course of the same discipline. She was called for counseling by Admission Slip, a copy of which is produced at Annexure-K, page No.104 to the petition, wherein it is specifically mentioned that her, 'merit marks are 67.25%' and her 'merit number is EC-62'. It is not in dispute that EC stands for 'Electronics & Communication'. It is then mentioned that, 'choice allotted is SCET-Surat (Payment seat)' and it is further mentioned there, 'please accept the fees'. It cannot be gainsaid that every student in these days of competition is under enormous pressure, more particularly when the matter pertains to getting admission to Engineering, Medical and such similar disciplines. The petitioner went to the concerned college and paid the fees. It was later on learnt by her that the admission granted to her was not in Electronics and Communication, but it was in Electronics Engineering, for which the code is 'EL' and not 'EC'.
2.1 The petition was filed by the petitioner and the same was entertained by the Court, making it restricted only to the prayer of refund of fees. This was required to be done by the Court only because it was on record that looking to the merit number, the petitioner – a girl student was not able to get admission in the discipline of Electronics and Communication and therefore, the matter was considered for refund of fees, as she was granted admission against payment seat. In the admission process, there was a condition which was capable of bringing sufficient pressure. The condition was that, 'the fees must be paid immediately otherwise admission will stand cancelled'. The girt student – the petitioner paid the fees to the tune of Rs.42,575/-. In the year of 1997, the amount was definitely 'substantial' amount and therefore, the refund sought for is not found to be am 'unreasonable request' on the part of the girt student.
3. The petition is contested tooth and nail by respondent No.4 – a Self Financed College, raising all available technical and super-technical contentions to oppose the refund of fees. This is expected because respondent No.4 is a 'Commercial Entrepreneur', imparting education being into 'business of imparting education'. The nature of technical and super-technical pleas which are raised can be appreciated from the fact that, 'it is contended that in 'Information Booklet', it is mentioned that respondent No.4 Engineering College is imparting education only in Electrical Engineering and not in the Electronics & Communication'.
3.1 If at all the girt student can be considered to be at fault in approaching respondent No.4 College for admission, respondent No.4 is on a 'graver fault' in capturing the student, despite the fact that in the Admission Slip, it was clearly mentioned that, 'the admission is granted in Electronics & Communication'. It is mentioned in the Admission Slip that, 'merit number is EC-62'. It was not 'EL' and still respondent, for the sake of collecting fees by capturing student, granted admission and accepted the fees. Now it is argued that it is mentioned in the fee receipt that admission is granted in receipt of 'Electrical' that that the girl student ought to have taken note of this and should have been mindful that she is granted admission in 'Electrical Engineering' and not 'Electronics & Communication'. As stated hereinabove, the students seeking admission to such competitive disciplines are under tremendous pressure and at that time to expect from them to have verified every single content of fee receipt is too much.
As against that, the office of respondent No.4 College could have made it clear at the time of granting admission and accepting the fees that respondent No.4 College has no facility to impart education in EC (Electronics & Communication) and that she is admitted in Electrical Engineering. But that was not done.
3.2 Learned Advocate for respondent No.4 also referred to Annexure-E, page No.30, wherein also, it is mentioned that 'B.E.-II Elecri – the word is not completely written. The pressure being mounted on the students by respondent No.4 is clear from perusal of the condition provided that, 'not only the student will have to pay the fees of the first year, but will have to submit Bank Guarantee for the fees of the remaining years'. This shows the extent of commercialization of education in the country. (emphasis supplied)
3.3 What follows is important. As mentioned hereinabove, the petition was entertained by the High Court with a clear understanding that the question of refund of fees will be considered. That is why the High Court passed order on 25.04.2000. It will be appropriate to note here that the order was passed after an affidavit was filed by respondent No.4, affirmed on 03.04.1999. The order reads as under:-
“The respondent No.4 is directed to file an affidavit to clear whether the seat which was dropped out by the petitioner has been filed in or not?
This affidavit to be filed on or before 13/6/2000. The petitioner is so desire may file rejoinder to it on or before 16/6/2000. The office is directed to place this matter in the Court for final hearing on 23/6/2000.”
(emphasis supplied)
3.4 It is interesting that when it is inquired from the learned Advocate for respondent No.4 as to whether an affidavit is filed pursuant to the aforesaid order dated 25.04.2000, the learned Advocate submitted that, 'an affidavit is filed' and 'that affidavit is at page No.183'. It is really painful that the commercial Institution has kept apart all propriety in the matter of filing the affidavit as the deponent has not answered the question posed by this Court in order dated 25.04.2000. Everything else is stated in the affidavit, except the answer to the question posed by the Court. It will be appropriate at this juncture to reproduce the paras which are pressed into service by learned Advocate for respondent No.4:
“3. I say that the petitioner had applied to centralised Admission Committee at Ahmedabad for
committee. The said committee selected the petitioner for being admitted in the respondent No.4 college. The petitioner accordingly approached the respondent No.4 and she as given admission. I say that the petitioner from the very beginning was aware that respondent No.4 is not running/conducting courses in Electronics and Communication Engineering. I say that at the time of making the application, alongwith the application form, the petitioner was supplied with the 'Mahitee Pustika” wherein all the details about the various colleges, different courses, etc. were given. In the said booklet the courses conducted by the respondent no.4 are also stated. Mere perusal to the same makes it clear that the respondent No.4 is not having electronics and communication engineering course. Thus, despite of being aware about the situation, the petitioner consented for being selected for the respondent No.4 College not only that but even thereafter she approached the respondent No.4 and obtained the admission. The said action itself speaks volumes. I say that this having accepted admission in the respondent No.4 College after being fully aware about the terms and conditions of the admission the petitioner is estopped from demanding refund of the fees paid by her for securing admission in the degree course. I say that on the contrary, the petitioner is liable to pay the fees for the remaining years of the course.
3. (number is repeated) I say that as per page 100 of the paper book of the aforesaid petition the code ECE is used for indicating the course of Electronics and Engineering and in that view of the matter also after following the due procedure the centralised admission committee selected the petitioner for the respondent No.4 college. Not only that but as per the earlier education of the petitioner, the petitioner was entitled for both the course (1) Electronics (2) Electronics and Communications Engineering. This can be seen at page 18(A) of the paper book of the aforesaid petition. Thus, she was rightly selected and accordingly given admission by the respondent No.4 college.
4. I say that after being selected, the petitioner approached respondent No.4 for her admission and took admission by paying requisite fees. I say that the petitioner was issued receipts for the paid fees. The said receipts are annexed at Page 16 and 17 of the paper book of the aforesaid petition. In the said receipts it is clearly stated BE-II. Electronics. Thus, the petitioner was also aware about the subject in which she was admitted. Not only that, but she attended the college for few days after admission.”
3.5 It was expected from learned Advocate, who is also an officer of the Court, to give a straight answer that, 'the deponent has not answered the query put by this Court in order dated 25.04.2000'. Without feeling guilty for the same, learned Advocate for respondent No.4 made the Court to read earlier affidavit filed by respondent No.4 which was affirmed on 03.04.1999. The affidavit was read in entirety for no gain because the question which arises for consideration of this Court is that, 'if the seat had not remained vacant and if respondent No.4 has not suffered financial loss, it was expected of respondent No.4 to agree gracefully for refunding the fees'. But respondent No.4, acting more as a commercial Institution and counting its profit, has not only not agreed to refund the fees but is of the opinion that it is required to be paid for the 2nd and 3rd year also. The stand of respondent No.4 is clear from the following paras of affidavit dated 03.04.1999:-
“9. I say that at the time of getting admission the petitioner was fully aware about the admission rules of the respondent no.4 college and therefore now after quitting the respondent no.4 college in the middle of the course, the petitioner has no right to claim the refund of the fees paid by her at the time of admission.
10. I say that as stated earlier, the respondent no.4 is a self financing institution and under the said Scheme of self-financing educational institution, the number of seats available in the said colleges are fixed by the Appropriate Authority and out of the total sanctioned seats, 50% of the seats are designated as “FREE SEATS” and 50% of the seats are designated as “PAYMENT SEATS”. That the admissions for the “FREE SEATS” and “PAYMENT SEATS” are centrally administered and the management of the college is not entitled to impose or prescribe any other and further eligibility criteria or condition for admission to these seats. That the criteria for levying fees on the “FREE SEATS” is as in the Government Institutions and Grant-in-Aid institutions from time to time while for “PAYMENT SEATS”, the fees are fixed by the Committee consisting of (a) Secretary (Science and Technology), Education Department, Gujarat State, (b) Vice Chancellor of a University and (c) Director of Technical Education, Gujarat State. That the fees for the “PAYMENT SEATS” are fixed by the Competent Authority i.e. the Director of Technical Education, Gujarat State. That the said fees are subject to review every three years and that the student availing himself of “PAYMENT SEAT” is required to pay the fee for First Semester/year and is also required to furnish cash security/Bank guarantee for fees of the remaining years.
11. I say that all the students who accepts admission on the “PAYMENT SEATS” are required to pay fees as prescribed by the Competent Authority. That mere perusal of Clause 7 of the G.R. dated 8.7.93 and Clause 2 of the G.R. dated 29.6.98 makes it clear that the students seeking admission on the PAYMENT SEATS” are required to pay full fees for the First Semester/Year and further are also required to furnish cash security/bank guarantee for fees of the remaining years. Thus, a student taking admission on the “PAYMENT SEATS” is dutybound to pay fees for the whole course. And in that view of the matter, the petitioner who has secured admission on the “PAYMENT SEAT” is dutybound to pay fees for the full course.
12. I say that while approving sanction to the self-financing institutions, the Government had in mind that if the payment of fees towards the full course is not made compulsory, the students will flee from one college to another as per their desire and the seats in such self- financing institutions will go waste during the rest of the duration of the course. Thus such a clause is added with a view to check the change of discipline or institution. Moreover if the students are permitted to change the college and ask for refund then it will be very difficult to run self-financed institutions as the high fees are the only source of income from which the professors and other staff and all other expenses of the institution are met with and a reduction in it will amount to crisis to run the institution, which may ultimately lead to closer of the institution affecting interest of large section of society.”
(emphasis supplied)
3.6 On perusal of the record, it is clear that the provisions requiring the student to pay full fees for the 1st year and to furnish cash security or bank guarantee for the 2nd and 3rd year is with a view to avoid 'change of discipline' or 'Institution'. The present is the case wherein though the admission was granted by the Admission Committee in 'Electronics & Communication', the Institution, which do not have that discipline, accepted the fees and granted admission to the student in Electronics Engineering and now taking an unreasonable stand in the matter of refund of fees and contending that the student is at fault in securing admission in respondent No.4 College.
3.7 As against that, it is clear from the facts set out hereinabove that assuming for the sake argument that the student was at fault in securing admission in respondent No.4 College then respondent No.4 College is also equally at fault in granting admission in a discipline which is not available in the College and accepting fees from the student. In fact, respondent No.4 College is required to b held more negligent and at fault than the student – appellant herein.
3.8 What is important for our consideration is that after order dated 25.04.2000 passed by this Court asking a specific information from respondent No.4, though an affidavit, affirmed on 27.07.2000 is filed, the required information is not furnished. After filing of the affidavit by respondent No.4, an affidavit is filed by the petitioner-student, whereby the attention of respondent No.4 was drawn to the aforesaid fact. But still, respondent No.4 has not cared to furnish the required information. Para-7 of the affidavit filed by the petitioner-student is relevant in this regard, which reads as under:-
“7. It is further submitted that this Hon'ble High Court (Coram: S.K.Keshote, J.) by it's order dtd. 25/4/2000, directed the respondent No.4 to file affidavit on or before 23/6/2000 in this matter, to clear whether the seat, which was dropped out by the petitioner, has been filled in or not but the respondent No.4 has not complied with the aforesaid direction issued by this Court and did not file affidavit as per the aforesaid directions issued by this High Court in this matter. On making inquiry, the petitioner also came to know that the seat dropped out by the petitioner is filled in from the very beginning by respondent No.4. Hence, there is not financial loss to the respondent No.4, the respondent No.4 being institution cannot recover fees, twice from one seat. Therefore also fees accepted from the petitioner is legally liable to be refunded to the petitioner by the respondent no.4 with interest as stated in the petition.”
(emphasis supplied)
4. In view of the aforesaid discussion and in light of the facts of the case, this appeal is allowed. The impugned judgment and order dated 21.06.2006 passed by the learned Single Judge in Special Civil Application No.8702 of 1997 is quashed and set aside. Respondent No.4 is directed to refund the fees paid by the appellant-petitioner-student with 18% interest from the date of accepting the fees till the same is refunded.
(Ravi R.Tripathi, J.)
*Shitole
(N.V.Anjaria, J.)