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Case Number

Special Civil Application No. 18082 of 2013

Advocates

Mr. AR Thacker, Advocate for the Respondent(s) No. 2
Mr. DC Dave, Senior Advocate with Mr. PA Jadeja, Advocate for the Respondent No. 3
Mr. SP Majmudar for Mr. PP Majmudar, Advocate for Petitioner No. 1
Mr. Hardik Soni, Asst. Government Pleader for Respondent No. 1

Judges

Abhilasha Kumari, J.

Acts

Rule - R11 of the Rules and Regulations for Admissions in Post Graduate (Degree/Diploma) Medical Courses, 2013 ("the Rules"),
Rule - R11 of the Rules of Saurashtra University
ARTICLE 226 CONSTITUTION OF INDIA

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Smart Summary

Structured Summary of the Opinion (As Provided)

Factual and Procedural Background

The petition under Article 226 of the Constitution of India challenges respondent No.3 C.U. Shah Medical College's refusal to return the petitioner's original documents. The petitioner had been enrolled in the Post Graduate Master of ENT course with respondent No.2 Saurashtra University on 25.08.2013 and admitted to respondent No.3 College, handing over original certificates on 27.08.2013. The petitioner paid Rs. 5,00,000/- for the first semester but has given up the prayer for refund of that amount as recorded in the Court's order dated 16.12.2013.

While studying, the petitioner discovered that the course/seat was not recognized by the Medical Council of India (MCI). He wrote to college authorities and gave a lawyer's notice seeking cancellation of admission and refund. The College replied that courses cannot be started without MCI approval and that deficiencies would be addressed and recognition may be granted retrospectively. The petitioner sought return of his original documents so he could participate in counselling at Manipal University; during pendency of the petition he had been called for counselling on 13.03.2014 after appearing in Manipal University's entrance test.

The present writ petition challenges the College's refusal to return the original documents and seeks their return so the petitioner may pursue admission elsewhere.

Legal Issues Presented

Whether respondent No.3 College has any right to insist on fees for the remainder of the course when a student cancels admission midstream.
If the College has such a right, whether the College has evolved a mechanism (such as bond or bank guarantee or other security) for recovery of the balance fees.
Whether respondent No.3 College can retain the original documents of the petitioner as a mechanism to recover the balance fees for the entire course.
Framed by the Court for determination: whether the College has any right or lien over the original documents of a petitioner who has opted to cancel admission midway, and whether refusal to hand over those documents is permissible by rules/regulations or law.

Arguments of the Parties

Petitioner's Arguments (as advanced by Mr. S.P. Majmudar)

The petitioner was not informed at counselling that the seat/course was not recognized by the MCI; this fact was not mentioned in the call or admission letters.
The petitioner sought cancellation of admission upon learning about non-recognition and requested return of original documents so he could enroll in a recognized course; he is prepared to lose a year if required.
Rule R11 of Saurashtra University's Rules (Rules and Regulations for Admissions in Post Graduate Medical Courses, 2013) pertains to admissions and retention of documents at admission; it does not apply to cancellation of admission midstream and cannot justify retaining documents when a student cancels.
If the College is aggrieved for fees, it can pursue recovery by a suit; it has no power to retain original documents as a means of enforcing fee recovery.
The Fee Regulatory Committee (Medical) of Gujarat advises colleges to avoid bank guarantees and to evolve alternate security mechanisms; respondent No.3 has not evolved such a mechanism and therefore cannot insist on retaining documents.
The petitioner was not made to sign any bond or give any undertaking; absent such a bond or bank guarantee, the College has no right to retain original documents.
UGC guidelines were relied upon stating that where a student withdraws before a course starts, fees (less processing fees) should be refunded and seats filled from waiting lists; the petitioner relied on these guidelines in support.
Judgments invoked in support included New India Assurance Co. Ltd. v. A.K. Saxena; R.D. Saxena v. Balram Prasad Sharma; and Shikha v. State of Punjab & others.

Respondent No.3 College's Arguments (as advanced by Mr. D.C. Dave)

Primary issue is whether the College has the legal right to insist on fees for the entire course; only if that right exists do issues of a recovery mechanism and retention of documents arise.
This is a cost-based, self-financing system; the College is entitled to insist on balance fees for the entire duration of the course even if a student cancels after admission.
Reliance placed on paragraph 8 of the Supreme Court's decision in Islamic Academy of Education v. State of Karnataka ((2003) 6 SCC 697) to support the College's asserted right to secure fees and retain documents.
The Fee Regulatory Committee allows colleges to work out an alternate mechanism of security/guarantee; the College contends a right to hold lien over original documents to secure fees.
Submitted that the petitioner was aware (or could have discovered) the course was not recognized by MCI via the MCI website; therefore the petitioner enrolled with knowledge.
Relied also on Mridul Dhar v. Union of India ((2005) 2 SCC 65) regarding cutoff dates for admission (31st May), contending it confers a right to retain documents and insist on payment of fees.
Submitted that the petitioner cannot seek a writ of mandamus under Article 226 to defeat any such right of the College.

Respondent No.2 University (Saurashtra University) — Submissions (as advanced by Mr. A.R. Thacker)

Rule R11 stems from University rules aligned with MCI regulations and relates to admission, not midstream cancellation.
Admitted there is no other rule contemplating lien over documents of a candidate who cancels admission midway.
It was incumbent upon the College to evolve a mechanism for such midstream cancellations, which it appears not to have done.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Islamic Academy of Education and another v. State of Karnataka and others, (2003) 6 SCC 697	Institutions can only charge prescribed fees for one semester/year; if concerned about midstream departure they may require a bond/Bank guarantee; if fees collected in advance the balance must be invested and used only when due.	The Court relied on paragraph 8 to hold that the College could have required a bond/Bank guarantee or other mechanism to secure balance fees. Because the College did not evolve such a mechanism or obtain a bond/guarantee, it cannot claim an indefeasible right to retain the petitioner's original documents or insist on the full-course fees.
New India Assurance Co. Ltd. v. A.K. Saxena, 2004 (1) SCC 117	Authority (here, an Advocate in the cited case) cannot withhold papers required by a litigant for unpaid fees; disputes over unpaid remuneration must be decided in appropriate forums rather than by withholding documents.	The Court treated this as supporting precedent that where papers/documents are demanded, withholding them to secure payment is not permissible and any claim for fees should be pursued by appropriate legal proceedings rather than by retention of documents.
R.D. Saxena v. Balram Prasad Sharma (referenced)	Held that an advocate has no right to withhold a client's record for unpaid remuneration; client has a right to get papers back and the advocate can seek recovery of fees through legal process.	The Court referenced this principle analogically to indicate that retention of documents as leverage for recovery of dues is not an appropriate remedy and fee recovery must be sought via legal remedies.
Shikha v. State of Punjab and others, High Court of Punjab & Haryana, judgment dated 03.11.2012 (CWP No. 17829/2012)	Held that absence of a provision to retain documents or demand full fee means a college cannot claim right to retain original documents; right to retain documents is separate from right to demand full fee.	The Court relied on this High Court decision to support the proposition that where no provision permits retention of documents or requirement of full-course fees, a college cannot lawfully retain original documents; it applied similar reasoning to order return of documents.
Mridul Dhar (Minor) and another v. Union of India and others, (2005) 2 SCC 65	Holds that 31st May is the cutoff date after which no admission in Post Graduate course is permitted; relied upon by respondent for an asserted right.	The Court noted the respondent's reliance on this case but did not accept that it confers a right to retain documents or insist on full-course fees in the absence of an appropriate safeguard (bond/guarantee) or rule; it was considered but not held to justify retention here.

Court's Reasoning and Analysis

The Court confined the determination primarily to one aspect: whether respondent No.3 College has any right or lien over the petitioner's original documents after the petitioner opted to cancel admission midstream, and whether such retention is permissible by rules/regulations or law.

The Court proceeded step-by-step as follows:

Identified and reproduced paragraph 8 of the Supreme Court's decision in Islamic Academy, which addresses remedies for institutions facing students leaving midstream: the institution may require a bond/Bank guarantee, but can only charge fees for one semester/year and must deposit any advance beyond that in fixed deposits to be used when due.
Interpreted Islamic Academy to mean that an institution's proper remedy, if concerned about midstream departures, is to secure a bond/Bank guarantee or another mechanism; absent such a mechanism, the institution cannot claim an automatic indefeasible right to insist on full-course fees or retain original documents.
Examined the Fee Regulatory Committee's advice (dated 12.07.2012) which urged colleges to avoid bank guarantees where possible but to work out an alternate security/guarantee mechanism to ensure that students leaving mid-course do not cause loss of opportunity and that fees for the full course could be secured. The Court observed respondent No.3 had not implemented any such mechanism.
Considered Rule R11 of Saurashtra University's Rules ("Original mark sheet and other documents etc. of admitted candidates shall be retained by Authority") and noted that R1–R11 fall under a heading concerning admission and selection; the Court held R11 is concerned with retention at the time of admission and does not contemplate a situation where an admitted student decides to leave the course halfway.
Concluded that Rule R11 does not provide for retention of documents as a method of securing full-course fees once a student cancels midstream, especially where the college did not require full fees at admission or secure any bond/guarantee.
Analyzed precedent New India Assurance and R.D. Saxena to underscore that withholding papers to secure a fee claim is not an appropriate remedy and that the proper remedy for recovery is a legal proceeding; applied this principle analogically to the college-student context.
Relied on the High Court of Punjab & Haryana's decision in Shikha to reinforce that in absence of a provision to retain documents or demand full fees, a college cannot retain original documents; applied similar reasoning here.
Rejected the respondent's submission that references to MCI website put the petitioner on notice such that the College could retain documents; the Court accepted the petitioner's position that he could not reasonably be expected to research every course at counselling.
Summarized that because respondent No.3 did not evolve the mechanism (bond/guarantee/alternate security) contemplated by Islamic Academy and Fee Regulatory Committee, and because there is no rule or regulation permitting retention of documents to secure unpaid fees on cancellation midstream, retention of the petitioner's original documents was unsustainable in law.

The Court also noted that the College remains free to pursue appropriate legal remedies for any loss or unpaid fees, but retaining original documents is not a permissible method of enforcement in the circumstances of this case.

Holding and Implications

Holding:

PARTLY ALLOWED

The Court directed respondent No.3 College to treat the petitioner's admission as cancelled and to return the petitioner's original documents forthwith. The Rule was made absolute to that extent. The College's request to stay operation of the judgment was declined and direct service of the order was permitted.

Implications:

Direct effect: The petitioner is to have his admission treated as cancelled and his original documents returned immediately so he may participate in counselling at Manipal University. The Court specifically ordered return of the documents and refused to stay the operation pending immediate service.
Remedial scope for the College: The Court explicitly noted that if respondent No.3 College has suffered any financial or other loss, it may pursue appropriate legal remedies (e.g., suit for recovery); retaining original documents is not the permissible enforcement mechanism in absence of a prior bond/guarantee or rule authorizing such retention.
On precedent and procedure: The decision applies Islamic Academy's principle to require institutions to secure fees through explicit mechanisms (bond/guarantee or other security) if they wish to safeguard against midstream departures; absent such mechanisms, institutions cannot lawfully retain original documents. The Court found no rule (including R11) that authorizes retention upon midstream cancellation.
No broader legal innovation was announced; the ruling applies existing principles and precedent to the facts before the Court and directs return of documents in these circumstances. The Court did not purport to create a new general rule beyond the application of existing authorities and standards quoted in the opinion.

Direct quote excerpts and references used in this summary are drawn exclusively from the provided opinion text.

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Monil Prakashchandra Thakkar Petitioner(S) v. State Of Gujarat & 2 (S)

Abhilasha Kumari, J.

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. The challenge in this petition, preferred under Article 226 of the Constitution of India, is to the action of respondent No. 3 C.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.

2. The brief factual background in which the petition has been filed, is as follows:--

2.1 The petitioner had enrolled in the Post Graduate course of Master of ENT (Ear, Nose, Throat) with respondent No. 2 Saurashtra University, on 25.08.2013. After the process of Counselling was over, the petitioner was admitted to respondent No. 3 College, 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. 3 College on 27.08.2013. The petitioner also paid an amount of Rs. 5,00,000/- towards fees for the academic year 201314. 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. 2 University 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. 3 College 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.

3. 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. 3 College 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. 3 College 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. 3 College 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 call letter 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. 3 College 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. 3 College 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. 3 College to return the documents of the petitioner flows from Rule - R11 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 Rule - R11 is misplaced.

5.3 That, at the best, if respondent No. 3 College 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. It is submitted that respondent No. 3 College 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. 3 College, 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 Co. Ltd. v. A.K Saxena., reported in, 2004 (1) SCC 117.

(ii) R.D. Saxena v. 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 v. 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?

(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 cost based system of education where the self financing 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 v. 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. According to the learned Senior Advocate, the right of respondent No. 3 College 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 v. 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. 3 College 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. 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 v. 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. The submission on behalf of respondent No. 3 College 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 v. 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. 3 College 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. 3 College, in the view of this Court it cannot be said that any indefeasible right has accrued in favour of respondent No. 3 College 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. 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 v. 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. 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 Co. Ltd. v. 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 v. 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 v. 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. 3 College 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. 3 College 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. 3 College 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. 3 College 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. 3 College.

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. Direct service of this order, today, is permitted.

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Monil Prakashchandra Thakkar Petitioner(S) v. State Of Gujarat & 2 (S)

Structured Summary of the Opinion (As Provided)

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Petitioner's Arguments (as advanced by Mr. S.P. Majmudar)

Respondent No.3 College's Arguments (as advanced by Mr. D.C. Dave)

Respondent No.2 University (Saurashtra University) — Submissions (as advanced by Mr. A.R. Thacker)

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Monil Prakashchandra Thakkar Petitioner(S) v. State Of Gujarat & 2 (S)

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