ORAL JUDGMENT

1. Rule. Mr. Varun Patel, learned advocate waives service of notice of rule on behalf of respondent No. 3. Ms. Vaibhavi Nanavati, learned advocate waives service of notice of rule on behalf of respondent No. 2.

2. Having regard to the facts of the case and with the consent of the learned advocates for the respective parties, the matter is taken up for hearing today.

3. By this petition under Article 226 of the Constitution of India, the petitioner seeks a direction to the respondents No. 2 and 3 to immediately return the original documents of the petitioner viz. School Leaving Certificate, 2013, 10th Marksheet, 12 Passing Certificate, 12 Attempt Certificate and treat the admission of the petitioner in Bachelor of Dental Science as cancelled.

4. The petitioner had enrolled in the Bachelor of Dental Science (B.D.S) course which is an under-graduate course with the respondent University and was given admission in the third respondent College which is a college affiliated to the second respondent University on 22nd September, 2013. Upon being given admission, the petitioner submitted the above referred original documents to the third respondent College pursuant to which a receipt was issued on 24 September, 2013. The petitioner paid Rs. 2,60,000/- (Rs. 1,30,000/- for the first term + Rs. 1,30,000/- for the second term) for the academic year 2013-2014. Due to personal reasons, the petitioner was desirous of cancelling the admission and, therefore, requested the third respondent College to return the original documents referred to hereinabove to the petitioner. On 17 June, 2014, the petitioner gave a written application to the third respondent College for return of the above referred documents. The petitioner needs the above referred documents because she does not want to pursue the B.D.S course and, therefore, requested the third respondent College to cancel her admission and give back the original documents. However, the original documents have not been returned and the petitioner has been orally informed that the documents will be returned only if the petitioner pays the balance fees for the remaining three years which would come to Rs. 7,80,000/-.

5. The petitioner has thereafter made several visits to the third respondent College requesting that the original documents may be returned to her, however, such request has been denied and there is no co-operation from the third respondent. It is in these circumstances that the petitioner has approached this court seeking the relief noted hereinabove.

6. Mr. S.P Majmudar, learned advocate for the petitioner submitted that the approach of the third respondent College is illegal, arbitrary and violative of the provisions of Article 14 and 21 of the Constitution of India. It was submitted that the action of the third respondent College in not returning the original documents without payment of the fees for the remaining part of the course is without authority of law since the College does not have any lien over the original documents submitted by the petitioner. It was submitted that the petitioner is entitled to cancel the admission secured by her and that the action of the respondent authorities is contrary to the provisions of University rules.

6.1 In support of his submission, the learned counsel placed reliance upon a decision of this court in the case of Monil Prakashchandra Thakkar v. State of Gujarat rendered on 10 March, 2014 in Special Civil Application No. 18082/2013 wherein in a similar set of circumstances, the court had held in favour of the petitioner student and had directed the respondents to treat the admission of the said petitioner as cancelled and to return the original documents to the petitioner forthwith. It was submitted that the above decision would be squarely applicable to the facts of the present case and as such, the petition deserves to be allowed.

7. On the other hand, Mr. Varun Patel, learned advocate appearing for the third respondent College has submitted that cancellation of the admission of the petitioner after completion of the first year results in financial loss to the respondent College, inasmuch as, for the remaining part of the course, the third respondent College would not get any student and would have to suffer the loss of fees of one student. It was submitted that under these circumstances, the third respondent College is justified in retaining the documents in question and not permitting the petitioner to cancel her admission.

8. The short question that arises for consideration in the present case is as to whether the third respondent College has any right to retain the original documents submitted by the petitioner at the time of her admission and whether the third respondent can insist upon payment of the fees for the remaining semesters as a pre-condition for returning such documents. The controversy involved in the present case is no longer res integra, inasmuch as, the same has been decided by the above referred decision of this court wherein it has been held thus:-

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 paragraph-8 of the judgment of the Supreme Court in Islamic Academy of Education v. State of Karnataka (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 v. State of Karnataka (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 v. State of Karnataka (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, 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.

9. From the facts noted hereinabove, it is apparent that the facts in the above referred case as well as the present case are more or less similar. In the present case also, there is no rule or regulation of the third respondent College requiring payment of fees for the entire duration of the course or for the retention of the original documents in lieu thereof. Mr. Varun Patel, learned advocate for the third respondent College is also not in a position to point out any provision or condition which permits the third respondent College to retain the documents in question. Under the circumstances, the present case being squarely covered by the above referred decision, for the reasons stated therein, the petition deserves to be allowed. In the absence of any such rule or regulation, it is not permissible for the third respondent College to retain the original documents of the petitioner and refuse to return the same.

10. It is, however, clarified that the fact that the respondent College is not permitted to retain the original documents may not be taken to mean that if the third respondent college has faced any loss, either financial or of any other kind, it cannot resort to an appropriate legal remedy. Such a course is always open to the third respondent College.

11. For the reasons recorded in the judgment and order dated 10 March, 2014 rendered in Special Civil Application No. 18082/2013 as reproduced hereinabove, the petition succeeds and is accordingly allowed. The third respondent College is directed to return the original documents as described in Annexure ‘B’ to the petitioner forthwith and to treat the admission of the petitioner as cancelled. Rule is made absolute accordingly.

Direct Service is permitted today.