S.N. Aggarwal, President:
VERSION OF RESPONDENT NO.1:
1. Deepak Arora respondent No.1 (in short 'the respondent') was selected in the first counseling by respondent No.2. He was given admission in MET-2010 in the appellant College. The respondent had deposited a sum of Rs.20,000/- as fee for MBA First Year against receipt dated 6.8.2010. The respondent surrendered the seat vide application dated 21.8.2010 and applied for refund of fee. The application was also sent to respondent No.2 on the same day. The respondent had also sent an application to All India Council for Technical Education (in short 'AICTE') on 23.8.2010 and AICTE directed the appellants to refund the fee vide letter dated 14.10.2010. The appellants failed to refund the fee. Hence the complaint for refund of fee. Compensation, interest and costs were also prayed.
VERSION OF THE APPELLANTS:
2. The appellants filed the written reply. It was admitted that the respondent had deposited a sum of Rs.20,000/- with the appellants on 6.8.2010 as fee for MBA First Year and he had surrendered the seat on 21.8.2010. However the seat remained vacant. Therefore the respondent was not entitled to refund of any fee. Dismissal of the complaint was prayed.
PROCEEDINGS BEFORE THE DISTRICT FORUM:
3. The parties produced affidavits/documents in support of their respective versions.
4. Learned District Forum accepted the complaint partly with costs of Rs.2,000/- vide impugned order dated 6.6.2011. The appellants were directed to refund the amount of Rs.19,000/- with interest at the rate of 9% per annum.
5. Hence the appeal.
6. The submission of the learned counsel for the appellants was that the respondent was not entitled to the refund of fee. Hence it was prayed that the appeal be accepted and the impugned judgment dated 6.6.2011 be set aside.
7. On the other hand, the submission of the respondent was that there was no merit in the present appeal and the same be dismissed.
8. Learned counsel for respondent No.2 also submitted that no amount is payable by respondent No.2 to the respondent.
9. Record has been perused. Submissions have been considered.
10. The admitted facts are that the respondent had deposited a sum of Rs.20,000/- with the appellant College on 6.8.2010 as fee for MBA First Year. The receipt has been proved as Ex.C-1.
11. The respondent had submitted an application dated 21.8.2010 for surrendering the seat. This application (Ex.C-2) was submitted to the appellants while the similar application (Ex.C-2) was submitted to respondent No.2. The third counseling had taken place on 26.8.2010. It means, therefore, that the respondent had surrendered the seat before the last date of counseling.
12. The All India Council for Technical Education has also issued a public notice that the entire fee collected from the students should be refunded after deduction of Rs.1000/- if the student withdraws before the last date of admission.
13. Similar controversy had come up for consideration before this Commission in First Appeal No.1867 of 2009 (Swami Vivekanand Institute of Engineering & Technology and anr. v. Nikhil Singla) decided on 3.8.2010 in which it was held as under:-
'14. The admitted facts are that the respondent had taken admission in the appellant College in Mechanical Engineering on 16.7.2008 and had deposited the fee to the tune of Rs.43,480/-. He was allotted another branch i.e. E.C.E. on 18.8.2008 and he had surrendered the seat on 5.9.2008 and demanded the refund of fee. It was not refunded. The respondent had applied for the return of his original certificates through the same letter dated 5.9.2008. The documents were admittedly sent by the appellants to the respondent by speed post on 18.10.2008. The AICTE had issued instructions/Public Notice on 19.4.2007 to all the Technical Institutions, Universities including deemed Universities imparting technical education regarding matters concerning charging of fees, refund of fees and other student related issues as under:-
'All India Council for Technical Education (AICTE) has been empowered interalia under section 10(n) of AICTE Act to 'take all necessary steps to prevent commercialization of technical education'. In compliance with the provisions under AICTE Act and in the light of directions of Govt. of India issued under section 20(1) of AICTE Act vide Letter No.(U.1(A) Section), it has been decided to issue instructions to the Technical Institutions, Universities including Deemed to be Universities imparting Technical Education in the matters concerning students. Whereas it has come to the notice of the AICTE that Technical Institutions and Universities including Deemed to be Universities, are admitting students to technical education programmes long before the actual starting of an academic session; collecting full fee from the admitted students; and, retaining their school/institution’s leaving certificates in original;
And whereas Institutions and Universities are also reportedly confiscating the fee paid if a student fails to join by such dates;
And, whereas, certificates in original are being detained by institutions and Universities to force retention of admitted students;
And, whereas the time-limit for students to join the courses/programmes is also being advanced in some cases unrealistically so as to pre-empt students/candidates from exercising other options of joining other institutions of their choice.
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 a deduction of the processing fee of not more than Rs.1000/- (Rupees one thousand only) shall be refunded and returned by the Institution/University to the student/candidate withdrawing from the programme. It would not be permissible for Institutions and Universities to retain the School/Institution leaving certificates in original.
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.
Any violation of instructions issued by AICTE, shall call for punitive action including withdrawal of approval and recognition of erring institutions and Universities. AICTE shall on its own or on receipt of specific complaints from those affected take all such steps as may be necessary to enforce these directions.'
15. Similarly the University Grants Commission had also issued Public Notice on 23.4.2007 as under:-
It has come to the notice of the University Grants Commission (UGC) that institutions and Universities including institutions Deemed to be Universities are admitting students to various programmes of studies long before the actual starting of academic session, collecting full fee from the admitted students, and, retaining their schools/institutions leaving certificates in original. The institutions and
Universities are also reportedly confiscating the fee paid if a student fails to join by such dates. The Commission is of the view that the institutions/Universities, by way of retaining the certificate in original, force retention of admitted students which limits the opportunities for the candidates from exercising other options of joining other institutions of their choice. However, it would not be permissible for institutions and Universities to retain the school/institutions leaving certificate, mark sheets, caste certificate and other documents in original.
The Ministry of Human Resource Development and University Grants Commission have considered the issue and decided that the institutions and Universities, in the public interest, shall maintain a waiting list of students/candidates in the event of student/candidate withdrawing before the starting of the course, the wait-listed candidate should be given admission against the vacant seat. The entire fee collected from the student, after a deduction of the processing fee of not more than Rs.1,000 (one thousand only) shall be refunded and returned by the institution/University to the student/candidate withdrawing from the programme. Should a student leave after joining the course and if the seat consequently falling vacant has been filled by another candidate by the last date of admission, the institution must return the fee collected with proportionate deductions of monthly fee and proportionate hostel rent, where applicable. The Universities/Institutions are requested to abide by the instructions issued by the UGC. The UGC shall on its own or on receipt of specific complaints from those affected, take all such steps as may be necessary to enforce these directions. Institutions/Universities are also required to convey these instructions to the college affiliated to them. This notice has been reiterated subsequently also.'
16. This notice has been reproduced in the judgment of Hon’ble National Commission reported as ‘Nipun Nagar Versus Symbiosis Institute of International Business I(2009) CPJ 3 (NC)’ as well as in the judgment of Hon’ble National Commission reported as ‘Andhra University & Anr. Versus Janjanam Jagedeesh III (2010) CPJ 310 (NC)’.
17. These Public Notices issued by U.G.C. and by the AICTE overrule any condition laid down in the Prospectus of a University or a College as instructions issued by these All India Bodies would prevail.
18. Similarly the Hon’ble High Court of Punjab and Haryana, Chandigarh was also pleased to refer to the instructions issued by the AICTE and also reproduced instructions issued by University Grants Commission in the judgement 21.7.2009 passed in Civil Writ Petition No.9714 of 2008 titled as ‘Prabhjot Singh Versus Punjab University, Chandigarh and others’ when the petitioner in that judgement (Prabhjot Singh) had served legal notice to AICTE for the refund of fee the AICTE communicated to the concerned College/Institute the policy decision vide reply dated 4.7.2008 to the following effect:-
'Kindly take note that AICTE has been empowered under Section 10(n) of AITE Act to 'take all necessary steps to prevent commercialization of technical education'. Non-refund of fee subsequent upon a student not continuing with the course, amounts to commercialization of education.
You are therefore advised to refund the tuition fee as per rules, deposited in our Institution by him at the earliest possible. You are also advised to refer to the Public Notice issued by the AICTE vide Advertisement No.AICTE/Legal/04 (01)/2007 making it clear that any violation shall call for punitive action including withdrawal of approval and recognition of erring institution.
A report on the action taken by the Institute may please be sent to this office within one week of the receipt of this letter alongwith detailed comments to enable this office to forward the same to the Director (Public Grievances), AICTE, 7th Floor, Chandra Lok Building, Near Conaught Place, Janpath, New Delhi-110001. You are also requested to send one copy of the report directly to the Director (Public Grievances), New Delhi.'
19. In Probhjot Singh’s case also, the Punjab University had taken the plea that the seat vacated by the petitioner had remained unfilled and the Hon’ble High Court was pleased to observe as under:-
'The total stand of the respondents is that the seat vacated by the petitioner remained unfilled. The instructions clearly provide for filling up the seat from the waiting list. The respondents have nowhere stated in the reply that any waiting list was prepared and notified. If the respondents did not prepare any waiting list, the question of filling up the seat from the waiting list does not arise. In such a situation, the petitioner cannot be blamed for the inaction on the part of the respondents. If the seat remained unfilled, the blame lies with the respondent-Institute and not with the petitioner. In view of the instructions of AICTE and UGC, the respondents were duty bound to refund the fee if the student has withdrawn before the commencement of the course. It is also not the case of the respondents that the petitioner withdrew after the commencement of the Course. Rather the averment made in the writ petition is that the petitioner withdrew from the course on 17.8.2007 before the commencement of the course which fact has not been disputed.'
20. Even in the latest judement dated 21.7.2010 passed by the Hon’ble High Court of Punjab & Haryana, Chandigarh in Civil Writ Petition No.13308 of 2009 titled as ‘Sh.Atam Parkash Khatter & another Versus Commissioner & Secretary to Govt. of Haryana & others’, Hon’ble High Court was pleased to observe as under:-
'It is required to be seen if the action of the respondent-college is justified in not refunding fee. It can be understood that a student, who is aspirant of doing a professional degree like Engineering or Medical, would be keen to secure and study at such institution, which has a better repute. Thus, no fault can be found in the action of petitioner No.2 is seeking admission in another institution at Karnal and then, praying for refund of the fee as she did not intend to pursue her study with respondent No.3-instituion.'
21. It was further observed by the Hon’ble High Court as under:-
'Respondent No.3 would have no justification to retain the fee, when the student has not come to study. Education institutions cannot be permitted to behave like a business establishment who work with profit motive. Respondent No.3 is an Education institution and cannot act like commercial establishment and there is no justification on the part of the respondent-institution in retaining the substantial fee paid by a student, who decides not to pursue his/her studies in the said institution?
Rs.61000/- is not a small amount and the respondent-institution would not become poor in case it is to refund this fee.'
22. In the present case, the respondent had left the college on 5.9.2008 (copy of the letter has been proved as Ex.C-6). The last counselling was held on 30.9.2008 by Dr.B.R.Ambedkar National Institute of Technology, Jalandhar. It means, therefore, that it was still open to the appellants to fill up the vacancy caused by the respondent.
23. The appellants allege that the respondent had withdrawn after the course had started but it is nowhere pleaded by them as to on which date the course started nor it is pleaded by them as to why they failed to prepare the waiting list and why they failed to fill up the vacancy caused by the respondent. As per the observations of the Hon’ble High Court of Punjab and Haryana in Prabhjot Singh’s case (supra) , the fault lies with the appellants for not filling up the vacancy and by not preparing the waiting list of the candidates when they had lot of time with them.
24. The respondent in the letter dated 5.9.2008 (Ex.C-6) had also prayed for the return of documents but the said documents were returned by the appellants on 18.10.2008 as admitted by them in para 9 of the written reply. The appellants have not given any reasons why the documents were not returned by them immediately after the receipt of letter dated 5.9.2008 (Ex.C-6) or within a reasonable time from that date.'
14. The judgment dated 3.8.2010 passed by this Commission was upheld by the Hon’ble National Commission in the judgment dated 3.1.2011 passed in Revision Petition No.4303 of 2010 (Swami Vivekanan
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d Institute of Engineering & Technology and anr. v. Nikhil Singla) and the revision petition was dismissed. As held by the Hon’ble High Court in Prabhjot’s case (supra), if the College/Institution fails to fill the vacancy, they should blame themselves and should not penalise the student claiming the refund by refusing the refund. 15. Keeping in view the discussion held above, the respondent was entitled to the refund of Rs.19,000/- (Rs.20,000/- minus Rs.1000/-). 16. However the rate of interest awarded is on the higher side and the same is reduced from 9% to 6% per annum. 17. This appeal is accordingly accepted partly and the impugned judgment dated 6.6.2011 is modified to the extent stated above. 18. The appellants had deposited an amount of Rs.10,855/- with this Commission at the time of filing of the appeal on 25.7.2011. 19. The interest on the amount of Rs.10,855/- shall stop running with effect from the date the appellants had deposited the same in this Commission. Interest on this amount of Rs.10,855/- shall be what has accrued on this amount when it remained deposited by this Commission in the Bank. 20. This amount of Rs.10,855/- with interest accrued thereon, if any, be remitted by the registry to Deepak Arora respondent by way of a crossed cheque/demand draft after the expiry of 45 days under intimation to the learned District Forum and to the appellants. 21. Remaining amount shall be paid by the appellants to the respondent. 22. The arguments in this case were heard on 12.3.2012 and the order was reserved. Now, the order be communicated to the parties. 23. The appeal could not be decided within the statutory period due to heavypendency of court cases.