State Consumer Disputes Redressal Commission
Secretary/Regional Officee, Regional ... vs Himanshu Bhuguna on 9 May, 2022
STATE CONSUMER DISPUTES REDRESSAL COMMISSION UTTARAKHAND, DEHRADUN
First Appeal No. 39 / 2017
1. Secretary / Regional Officer
Regional Office, CBSE Board, Civil Lines,
Allahabad, Uttar Pradesh
2. Chairman
Central Board of Secondary Education
Education Centre 2, Community Centre, Preet Vihar, Delhi
Both through Sh. Gopal Dutt S/o Sh. Badri Dutt
Assistant Secretary (A & L), CBSE, Regional Office,
Kaulagarh Road, Dehradun
......Appellants / Opposite Party Nos. 1 & 3
Versus
1. Sh. Himanshu Bahuguna S/o Sh. Rajendra Bahuguna
R/o Gram Jaspur, Post Office, Gwil via Silogi
Patti Malla Dhangu, District Pauri Garhwal
.......Respondent No. 1 / Complainant
2. Principal
Shri Guru Ram Rai Public School,
Padampur, Kotdwar, Pauri Garhwal
.......Respondent No. 2 / Opposite Party No. 2
3. SSP, GPO, Allahabad, Uttar Pradesh
4 Post Master, GPO, Kotdwar, Pauri Garhwal
.......Respondent Nos. 3 & 4 / Opposite Party Nos. 4 & 5
Smt. Deepti Sharma, Learned Counsel for the Appellants
None for Respondent No. 1
Sh. J.P. Kansal, Learned Counsel for Respondent No. 2
None for Respondent Nos. 3 & 4
Coram: Ms. Kumkum Rani, Judicial Member II
Mr. Bhagwat Singh Manral, Member
Dated: 09/05/2022
Revision Petition No. 16 / 2019
2
ORDER
(Per: Ms. Kumkum Rani, Judicial Member II):
This appeal has been directed against the impugned judgment dated 21.12.2016 passed by the learned District Consumer Forum (now District Commission), Pauri Garhwal in consumer complaint No. 17 of 2015 styled as Sh. Himanshu Bahuguna vs. Secretary / Regional Officer, Regional Office, CBSE, Allahabad & others, wherein and whereby the complaint was allowed directing the opposite party Nos. 1 & 3 to issue original mark-
sheet within a month and also to pay Rs. 10,000/- (Rupees Ten Thousand only) as mental agony and litigation expenses to the complainant, if not paid within a month then the complainant was held entitled to get simple interest @ 6% per annum on the same amount from the date of filing the complaint till the date of actual payment.
2. The facts giving rise to the appeal, in brief, are as such that the respondent No. 1 - complainant filed a complaint case with the relief to direct the appellants - opposite party Nos. 1 & 3 to issue the amended original mark-sheet of class 12th to the complainant and also to pay the compensation to the tune of Rs. 10,000/- for mental and physical agony. In the complaint, the respondent No. 1-complainant impleaded Secretary/Regional Officer, Regional Office, CBSE Board, Allahabad; Principal, Shri Guru Ram Rai Public School, Padampur, Kotdwar, Pauri Garhwal; Chairman, CBSE Board, Delhi; S.S.P. GPO, Allahabad and Dakpal, GPO, Kotdwar, Pauri Garhwal as opposite parties. In the complaint, the complainant has averred interalia alleged that in the year 2013 he passed 12th class examination of CBSE Board, Allahabad with Roll No. 5774988 from Sh. Guru Ram Rai Public School, Padampur, Kotdwar - opposite party No. 2 - respondent No. 2, but the complainant was not satisfied with the marks given to him; he applied for re-evaluation First Appeal No. 39 / 2017 3 of marks of all the subjects; as a result through opposite party No. 2 - respondent No. 2, the board has informed about the increase of three marks in chemistry and asked the complainant - respondent No. 1 to send immediately his original mark-sheet to the Board for entry of the increased marks therein; the complainant sent original mark-sheet to the CBSE Board, Allahabad for making such entry of the above increased marks, but after waiting a long time, the complainant has made a request on 07.10.2013 to the Board giving him a modified mark-sheet through telephonic calls, but all went in vain. On 27.02.2014, the Board, in reply to the complainant's application under Right to Information, informed that the modified mark-sheet has been sent through Speed Post on 21.08.2013. When the complainant contacted the Dakpal/ Up Dakpal, GPO, Kotdwar about the above speed post, but he was told that such post was not received. Then, again the complainant requested for a copy of the receipts of the speed post, but no response was given to the complainant, thus, the complainant neither received any duplicate copy of the mark-sheet, nor received the original modified mark-sheet, thus the complainant was misrepresented by the opposite party Nos. 1 to 5, hence, he could neither apply for the entrance of NDA Engineering and other exams, nor for other competitive examinations. Therefore, the complaint was brought before the District Commission for the relief as mentioned in the complaint.
3. It is averred in the written statement of the opposite party Nos. 1 & 3 that the process for holding examinations, evaluating answer scripts, declaring results did not offer the services to any candidate, hence the matter is not covered under the 'Consumer Act', therefore, it is liable to be dismissed.
4. The opposite party No. 2 has averred in its written statement that the original mark-sheet was sent to the CBSE Board, therefore, the opposite First Appeal No. 39 / 2017 4 party No. 2 - Principal, Shri Guru Ram Rai Public School is not, in any way, responsible for deficiency of service.
5. In the written statement of the opposite party No. 5, it is averred that the receipts of the speed post through which the amended mark-sheet of the complainant was alleged to have been sent, does not bear neither the name of the booking office, nor have the requisite numbers as per by-laws of the speed post. The numbers mentioned in both the speed posts receipts seem doubtful and wrong. It is further alleged that when the Public Information Officer inquired about the alleged speed posts; at that time it came to the knowledge of the answering opposite party that the CBSE Board never booked any speed post envelope to be sent to the complainant; it is further alleged that the speed post No. EU17888114-IN dated 21.08.2013 was given by the CBSE Board, then after enquiring as per the tracking number, EU17888114-IN it came to the knowledge that the speed post of the above mentioned number was delivered on 27.01.2016 at the pin-code No. 462047 (Misord, Bhopal); it could not be said that at what stage the alleged mistake occurred, hence the complaint is liable to be dismissed against the answering opposite party.
6. After hearing both the parties, the District Commission has allowed the complaint and directed the opposite party Nos. 1 & 3 to provide the original mark-sheet to the complainant within a period of one month alongwith compensation of Rs. 10,000/- for mental and physical agony. In case of non-compliance the opposite party Nos. 1 & 3 would have to pay a simple interest @ 6% per annum from the date of filing the petition till its actual realization.
7. It is contended on behalf of the appellant that the District Commission has given a biased one sided judgment without going into the First Appeal No. 39 / 2017 5 depth of the matter and the impugned judgment is erroneous and cannot be sustainable in law. It is further argued that the District Commission has failed to place reliance upon the evidence filed on behalf of the appellants; there was no deficiency on the part of the appellants, hence the complaint was not maintainable. It is further averred that the appellants are not the service providers. As per the cited case law Civil Appeal No. 3911 of 2003; Bihar School Examination Board vs. Suresh Prasad Sinha decided on 04.09.2009, the act does not intended to cover discharge of a statutory function of examining whether a candidate is fit to be declared as having successfully completed a course by passing the examination. Therefore, in the course of conduct of the examination, or evaluation of answer - scripts, or furnishing of mark-sheets or certificates, there may be some negligence, omission or deficiency, does not convert the Board into a service -provider for a consideration, nor convert the examinee into a consumer who can make a complaint under the Act." Educational Institute does not come under the definition of a "consumer" within the purview of the Consumer Protection Act, therefore, the Commission be pleased to set aside the impugned judgment and the appeal should be allowed and the appellants be exonerated from the impugned judgment.
8. We have heard learned counsel for the appellants and respondent No. 2 and perused the material available on record.
9. Learned counsel for respondent No. 2 has filed the written submissions, wherein relying on the above cited case law Bihar School Examination Board (supra) it has been stated that as per the above cited case law, if any negligence omission or deficiency occurs, which does not convert the Board into a service provider for a consideration, nor convert the examinee into a consumer, who can make a complaint under the Act, First Appeal No. 39 / 2017 6 therefore, the Board is not a service provider and student is not a consumer, hence, the complaint was not maintainable against the Board.
10. In the light of the above arguments placed before us, we have perused the above cited case law "Bihar School Examination Board (supra)." Para Nos. 10 & 11 are reproduced as under:-
"10. The Board is a statutory authority established under the Bihar School Examination Board Act, 1952. The function of the Board is to conduct school examinations. This statutory function involves holding periodical examinations, evaluating the answer scripts, declaring the results and issuing certificates. The process of holding examinations, evaluating answer scripts, declaring results and issuing certificates are different stages of a single statutory non-commercial function. It is not possible to divide this function as partly statutory and partly administrative. When the Examination Board conducts an examination in discharge of its statutory function, it does not offer its "services" to any candidate. Nor does a student who participates in the examination conducted by the Board, hires or avails of any service from the Board for a consideration. On the other hand, a candidate who participates in the examination conducted by the Board, is a person who has undergone a course of study and who requests the Board to test him as to whether he has imbibed sufficient knowledge to be fit to be declared as having successfully completed the said course of education; and if so, determine his position or rank or competence vis-`-vis other examinees. The process is not therefore availment of a First Appeal No. 39 / 2017 7 service by a student, but participation in a general examination conducted by the Board to ascertain whether he is eligible and fit to be considered as having successfully completed the secondary education course. The examination fee paid by the student is not the consideration for availment of any service, but the charge paid for the privilege of participation in the examination.
11. The object of the Act is to cover in its net, services offered or rendered for a consideration. Any service rendered for a consideration is presumed to be a commercial activity in its broadest sense (including professional activity or quasi-commercial activity). But the Act does not intended to cover discharge of a statutory function of examining whether a candidate is fit to be declared as having successfully completed a course by passing the examination. The fact that in the course of conduct of the examination, or evaluation of answer-scripts, or furnishing of mark-sheets or certificates, there may be some negligence, omission or deficiency, does not convert the Board into a service-provider for a consideration, nor convert the examinee into a consumer who can make a complaint under the Act. We are clearly of the view that the Board is not a `service provider' and a student who takes an examination is not a `consumer' and consequently, complaint under the Act will not be maintainable against the Board."
11. Thus, the principle as laid down in the above cited case law, is fully applicable in the case in hand. Nothing contrary has been submitted on First Appeal No. 39 / 2017 8 behalf of appellants. Apart from it, the complainant has already received the duplicate copy of the mark-sheet. Hence, in the light of the above cited case law, we are of the definite view that the complaint was not maintainable against the appellants alongwith respondent Nos. 2 to 4.
12. Accordingly, we are of the considered view that the appeal stands as allowed and the impugned judgment dated 21.12.2016 passed by the District Commission, Pauri Garhwal is hereby set aside. No order as to costs. The complaint case filed by the complainant - respondent No. 1 is held to be not maintainable, hence it shall stand as dismissed.
13. Statutory amount, if any, deposited by the appellants be returned to the appellants.
14. A copy of this judgment be uploaded forthwith on the website of the Commission for perusal of the parties. The record of the District Commission, if any, be returned to the concerned District Commission alongwith the copy of this judgment for record and necessary information.
15. Appeal file be consigned to record room alongwith a copy of this Judgment.
(BHAGWAT SINGH MANRAL) (MS. KUMKUM RANI)
First Appeal No. 39 / 2017