This writ petition is preferred under Article 226 of the Constitution of India praying for the issue of a writ of mandamus to direct the first respondent to refund the fees paid by the petitioner to the first respondent at the time of admission.
ORDER
The petitioner has filed the present writ petition seeking for a direction to the first respondent to abide by the orders of the second respondent i.e, Director of Technical Education, Chennai, dated 19.2.2008 and to refund the fees paid by her to the first respondent college at the time of admission.
2. The writ petition was admitted on 12.12.2008 Pending the writ petition, the petitioner amended the prayer and sought for a direction to the first respondent college to refund the fees paid by her at the time of admission. That amendment was ordered on 26.11.2008 In the application for interim direction to refund the fees, this court merely ordered notice. On notice, from this court, the first respondent has filed a counter affidavit, dated 02.11.2010
3. It is seen from the records that the petitioner's family belonged to Seventh Day Adventist Church. Her father is the Principal of Seventh Day Adventist Matriculation Higher Secondary School. The petitioner had applied for admission in the first respondent college, which is a self financing engineering college. She had applied for B.Tech (Information Technology) branch. Her name was sponsored by the second respondent on 4.8.2006 She had also paid Rs. 50000/- as fees and started attending the college with effect from 23.8.2006 The first respondent college belong to all castes and religions.
4. According to the petitioner, she being the Seventh Day Adventist, does not believe in doing work on Saturdays and they are worshiping the God on the said date. The Church all over the World keep Saturday as the day of Sabbath. However, the first respondent college declared all Saturdays as working days. When the petitioner had expressed her difficulty in attending Saturdays which is against her religious belief and also had requested to take leave on Saturdays, no relief was given to her. She was unable to attend the college due to her faith in the Seventh Day Adventist till 30.09.2006 The college fixed Monday to Saturday as working days, but the petitioner was regular and had attended the college in all days except Saturdays. There was no complaint from any teaching staff. Even if she had missed Saturdays for the entire semester, she would have the attendance to write the examination. The Principal of the College had informed the petitioner that she will not be allowed to attend the college on a particular Monday and that she was made to stand outside the college. Her father wrote a letter dated 28.9.2006 and explained the reasons for her inability to attend classes on Saturdays. It was also stated that even Saturdays are skipped, she will have attendance to write examinations. Knowing fully well her religious belief, the first respondent is not willing to relent. In October, 2006, she took leave on Saturdays and she was sent out of the College.
5. It was stated that on 03.10.2006, her father met the Principal of the College and informed him that their leave was on account of their religious belief. But the Principal was unwilling and had categorically stated that if she do not attend the college on Saturdays, she can take her Transfer Certificate and leave the college. The first respondent did not show any respect or tolerance for their religious sentiment. Therefore, she had to take a decision about continuance of her studies in the college. She was forced to discontinue her studies in the college and had applied for transfer certificate. She would not have discontinued the college, but for the insistence of attending Saturdays. The transfer certificate indicated that leaving college was for personal reasons. After getting the transfer certificate, she sought for the refund of fees paid at the time of admission. Later, they refused to refund the fees. Subsequently, the petitioner had joined Mount Zion College of Engineering, Pudukkottai. She also made a complaint to the Chief Minister's grievance cell which was forwarded to the second respondent Director of Technical Education. By letter dated 19.2.2008, the second respondent informed the college to refund the fees and informed the grievance cell of the Chief Minister. The first respondent College sent a reply to the second respondent dated 14.3.2008 stating that she joined the college on 4.8.2006 and paid fees by way of demand draft and had submitted necessary undertaking and code of conduct. In the undertaking given by the student and parent, it was clearly mentioned that they were aware of the fact that once fees paid, it will not be refunded. Since the student left the college on 05.10.2006, i.e, after the last date of admission, the seat could not be filled up in any way. During 2007-2008 also, the seat was not filled up because of non availability of meritorious candidate. A reference was made to a circular issued by the AICTE, dated 16.4.2007 which reads as follows:
“In the event of a student/candidate withdrawing before the starting of the course, the wait listed candidates should be given admissions against the vacant seat. The entire fee collected from the student, after the deduction of processing fee of not more than Rs. 1000/- (Rupees one thousand only) shall be refunded and returned by the Institutions/Universities 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.”
Therefore, it was informed that as the petitioner do not come under the purview of the two conditions set out therein, she was not eligible for refund of fees. It was thereafter, the petitioner filed the present writ petition.
6. In the counter affidavit filed by the first respondent, it was stated that the Principal of the College addressed the First year students immediately after starting of the academic year, in which the petitioner and her father were also present. It was clearly informed to all concerned that the College will be functioning from Monday to Saturday and six days in a week. All students must attend all these working days without taking leave except for bona fide reasons. At that time, one parent by name Thiagarajan had requested Saturday be declared as a holiday, so that students will study at home. But the Principal informed that there was no necessity to study at home since students could study in the college itself and that in view of E3, Seminars, symposium, guest lecturers, local visit, industrial visit, NSS camp, cultural activities and sports, the college will have to work for six days to complete the attendance requirements of the Anna University. It has been systematically followed by the college ever since its establishment. The parents at that time did not object to this decision of the college. If any one had any objection, they would have withdrawn the students from that day itself. The college has framed its own regulations regarding functioning of the college and for the better administration and that students will have to obey these regulations. The religious faith of students are not interfered with. The college respects religious faith of all religions concerned. If the petitioner did not want to pursue her education in the college after knowing that they will have six working days, she ought not to have joined the college. The allegation that she was ill-treated was denied. It is the petitioner who left on her own volition. She had studied in the college for one month and discontinued thereafter. Since the last date of admission in the college was over at the time she left the college, the seat could not be filled up for the academic year 2006-07. Even during the academic year 20007-2008, there was no availability of any meritorious candidate to be admitted in the second year. The AICTE's circular issued in this regard do not provide for refund of fees for the contingencies expressed by the petitioner. A detailed reply, dated 14.3.2008 was sent to the second respondent explaining the circumstances under which refund cannot be permitted.
7. In the circumstances of the case, it has to be seen whether the petitioner's request for a direction to refund of fees can be countenanced by this Court?
8. On the question of maintainability of the writ petition, the petitioner placed reliance upon a judgment of the Supreme Court in Ramdeo Baba Kamala Nehru Engineering College v. Sanjay Kumar reported in (2002) 10 SCC 487. On the merits of the case, reliance was placed upon a judgment of the Supreme Court in Bijoe Emmanuel v. State of Kerala reported in (1986) 3 SCC 615 for contending that she has fundamental right to have her religious faith and the college cannot curtail the said faith by making her to work on Saturdays.
9. However, it must be noted that in the judgment of the Supreme Court, the facts which arose for consideration were entirely different. It is necessary to refer to the following passages found in paragraphs 1 and 25 from the judgment in Bijoe Emmanuel's case (cited supra), which reads as follows:
Para 1: The three child-appellants, Bijoe, Binu Mol and Bindu Emmanuel, are the faithful of Jehovah's Witnesses. They attend school. Daily, during the morning Assembly, when the National Anthem “Jana Gana Mana” is sung, they stand respectfully but they do not sing. They do not sing because, according to them, it is against the tenets of their religious faith — not the words or the thoughts of the anthem but the singing of it. This they and before them their elder sisters who attended the same school earlier have done all these several years. No one bothered. No one worried. No one thought it disrespectful or unpatriotic, the children were left in peace and to their beliefs. That was until July 1985, when some patriotic gentleman took notice. The gentleman thought it was unpatriotic of the children not to sing the National Anthem. He happened to be a Member of the Legislative Assembly. So, he put a question in the Assembly. A Commission was appointed to enquire and report. We do not have the report of the Commission. We are told that the Commission reported that the children are “law-abiding” and that they showed no disrespect to the National Anthem. Indeed it is nobody's case that the children are other than well-behaved or that they have ever behaved disrespectfully when the National Anthem was sung. They have always stood up in respectful silence. But these matters of conscience, which though better left alone, are sensitive and emotionally evocative. So, under the instructions of Deputy Inspector of Schools, the Headmistress expelled the children from the school from July 26, 1985. The father of the children made representations requesting that his children may be permitted to attend the school pending orders from the government. The Headmistress expressed her helplessness in the matter. Finally the children filed a writ petition in the High Court seeking an order restraining the authorities from preventing them from attending school. First a learned Single Judge and then a Division Bench rejected the prayer of the children. They have now come before us by special leave under Article 136 of the Constitution.
25. We are satisfied, in the present case, that the expulsion of the three children from the school for the reason that because of their conscientiously held religious faith, they do not join the singing of the National Anthem in the morning assembly though they do stand up respectfully when the anthem is sung, is a violation of their fundamental right “to freedom of conscience and freely to profess, practise and propagate religion”.
10. It is no doubt true that the Seventh Day Adventists have their religious faith of not working on Saturday as it was the day of Sabbath. One has to see the background of such faith. The Seventh-day Adventist Church is a Protestant Christian denomination distinguished by its observance of Saturday, the original seventh day of the Judeo-Christian week, as the Sabbath, and by its emphasis on the imminent second coming (Advent) of Jesus Christ. The denomination grew out of the Millerite movement in the United States during the middle part of the 19th century and was formally established in 1863. Among its founders was Ellen G. White, whose extensive writings are still held in high regard by the church today.
11. Much of the theology of the Seventh-day Adventist Church corresponds to Protestant Christian teachings such as the Trinity and the infallibility of Scripture. Distinctive teachings include the unconscious state of the dead and the doctrine of an investigative judgment. The church is also known for its emphasis on diet and health, its holistic understanding of the person, its promotion of religious liberty, and its conservative principles and lifestyle.
12. The official teachings of the Seventh-day Adventist denomination are expressed in its 28 Fundamental Beliefs. This statement of beliefs was originally adopted by the General Conference in 1980, with an additional belief (number 11) being added in 2005. Acceptance of either of the church's two baptismal vows is a prerequisite for membership. The following statement of beliefs is not meant to be read or received as a “creed” that is set in theological concrete. Adventist claim but one creed: “The Bible, and the Bible alone.”
13. Adventist doctrine resembles trinitarian Protestant theology, with premillennial and Arminian emphases. Adventists uphold teachings such as the infallibility of Scripture, the substitutionary atonement, the resurrection of the dead and justification by faith alone, and are therefore often considered evangelical. In common with certain other Christian churches, they believe in baptism by immersion and creation in six literal days. In addition, there is a generally recognized set of “distinctive” doctrines which distinguish Adventism from the rest of the Christian world, although not all of these teachings are wholly unique to Adventism.
14. It is their fundamental belief of law and Sabbath reads as follows:
“Law (fundamental belief 19)—the Law of God is “embodied in the Ten Commandments”, which continue to be binding upon Christians.
Sabbath (fundamental belief 20)—the Sabbath should be observed on the seventh day of the week, specifically, from Friday sunset to Saturday sunset.”
So much about the faith.
15. But it must be noted that the first respondent college is not the State funded college and it is a private self financing college. In respect of State funded institution, it has been mandated under Article 28 that in such institutions, no religious instruction shall be provided. Similarly it has also been stipulated that the educational institutions recognised by the State cannot expect students to take part in the religious instructions that may be imparted in such institutions or there was any religious worship. Hence it is necessary to refer to Article 28 in extenso, which reads as follow:
“28. Freedom as to attendance at religious instruction or religious worship in certain educational institutions.- (1) No religious instruction shall be provided in any educational institution wholly maintained out of State funds.
(2) Nothing in clause (1) shall apply to an educational institution which is administered by the State but has been established under any endowment or trust which requires that religious instruction shall be imparted in such institution.
(3) No person attending any educational institution recognised by the State or receiving aid out of the State funds shall be required to take part in any religious instruction that may be imparted in such institution or to attend any religious worship that may be conducted in such institution or in any premises attached thereto unless such person or, if such person is a minor, his guardian has given his consent thereto.”
16. But, in the present case, she had opted to join the educational institution which had not imparted religious beliefs contrary to the faith of students. The petitioner was well informed about the working schedule of the college. Therefore, any student who joined the college is bound to attend the working schedule of the college. Such prescription of the working schedule by the college prescribing time table for the academic purpose cannot be said to be intruding into any religious faith of an individual as the individual has freedom to join any college of his/her choice. The regulations made do not offend any one's religious faith, it can never be said that religious right of such person is affected.
17. In the present case, as rightly contended by the college that the time table was informed to the students and parents on the first day of entering the academic year. If it was not suitable to any one, they should have left the campus in which event the college could have admitted another person before the cut-off date prescribed for admission. It is not the case of the petitioner that she continued her studies and insisted for her religious faith to be observed. On the other hand, she had voluntarily taken her transfer certificate and after which seeking for the refund of the fees. As rightly contended by the respondent college, the refund of fee has been stipulated in the circular issued by the AICTE and that the case of the petitioner did not come within the norms fixed by the AICTE. Therefore, the petitioner's writ petition is liable to be rejected on this short ground. Even otherwise, by the prescription of an uniform time table for all students, it can never be said that religious faith of any individual has been affected. Even in respect of educational institutions run by minorities protected under Article 30(1) of the Constitution, the Supreme Court has not precluded the State from imposing regulations and those institutions were directed to follow the general laws of land.
18. The Supreme Court in Ahmedabad St. Xavier's College Society v. State of Gujarat reported in (1974) 1 SCC 717 had an occasion to consider the scope of regulatory power of the State in respect of minority institution receiving aid and in paragraphs 172 and 173 it was observed as follows:
“172. In considering the question whether a regulation imposing a condition subserves the purpose for which recognition or affiliation is granted, it is necessary to have regard to what regulation the appropriate authority may make and impose in respect of an educational institution established and administered by a religious minority and receiving no recognition or aid. Such an institution will, of course be subject to the general laws of the land like the law of taxation, law relating to sanitation, transfer of property, or registration of documents, etc., because they are laws affecting not only educational institutions established by religious minoritties but also all other persons and institutions. It cannot be said that by these general laws, the State in any way takes away or abridges the right guaranteed under Article 30(1). Because Article 30(1) is couched in absolute terms, it does not follow that the right guaranteed is not subject to regulatory laws which would not amount to its abridgment. It is a total misconception to say that because the right is couched in absolute terms, the exercise of the right cannot be regulated or that every regulation of that right would be an abridgment of the right. Justice Holmes said in Hudson Country Water Co. v. McCarter:56
“All rights tend to declare themselves absolute to their logical extreme. Yet all in fact are limited by the neighbourhood of principles of policy which are other than those on which the particular right is founded, and which become strong enough to hold their own when a certain point is reached.”
No right, however absolute, can be free from regulation. The Privy Council said in Commonwealth of Australia v. Bank of New South Wales57 that regulation of freedom of trade and commerce is compatible with their absolute freedom; that Section 92 of the Australian Commonwealth Act is violated only when an Act restricts commerce directly and immediately as distinct from creating some indirect or consequential impediment which may fairly be regarded as remote. Likewise, the fact that trade and commerce are absolutely free under Article 301 of the Constitution is compatible with their regulation which will not amount to restriction.58
173. The application of the term “abridge” may not be difficult in many cases but the problem arises acutely in certain types of situations. The important ones are where a law is not a direct restriction of the right but is designed to accomplish another objective and the impact upon the right is secondary or indirect. Measures which are directed at other forms of activities but which have a secondary or indirect or incidental effect upon the right do not generally abridge a right unless the content of the right is regulated. As we have already said, such measures would include various types of taxes, economic regulations, laws regulating the wages, measures to promote health and to preserve hygiene and other laws of general application. By hypothesis, the law, taken by itself, is a legitimate one, aimed directly at the control of some other activity. The question is about its secondary impact upon the admitted area of administration of educational institutions. This is especially a problem of determining when the regulation in issue has an effect which constitutes an abridgment of the constitutional right within the meaning of Article 13(2). In other words, in every case, the Court must undertake to define and give content to the word ‘abridge’ in Article 13(2).59 The question to be asked and answered is whether the particular measure is regulatory or whether it crosses the zone of permissible regulation and enters the forbidden territory of restrictions or abridgment. So, even if an educational institution established by a religious or linguistic minority does not seek recognition, affiliation or aid, its activity can be regulated in various ways provided the regulations do not take away or abridge the guaranteed right. Regular tax measures, economic regulations, social welfare legislation, wage and hour legislation and similar measures may, of course have some effect upon the right under Article 30(1). But where the burden is the same as that borne by others engaged in different forms of activity, the similar impact on the right seems clearly insufficient to constitute an abridgment. If an educational institution established by a religious minority seeks no recognition, affiliation or aid, the state may have no right to prescribe the curriculum, syllabi or the qualification of the teachers.”
19. The petitioner placing reliance upon the Bijoe Emmanuel's case (cited supra) is inappropriate. The first respondent college running classes on Saturdays cannot be said to be neither depriving the petitioner's right to have her religious faith nor she has a right to absent herself on a day which is prescribed as a working day of the college. The calendar had been fixed to all students concerned. Hence there is no case made out by the petitioner. Accordingly, the writ petition will stand dismissed. No costs. Consequently connected miscellaneous petition stands closed.