National Consumer Disputes Redressal
The Chairman, Bihar School Examination ... vs Kundan Kumar & Anr. on 7 October, 2014
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITON NO. 576 OF 2013 (From the order dated 11.01.2013 in Appeal No. 283/2012 of the Bihar State Consumer Disputes Redressal Commission, Patna) 1. The Chairman, Bihar School Examination Board Patna 2. Secretary, Bihar School Examination Board Patna 3. Deputy Secretary cum R.T.I. Officer Bihar School Examination Board Patna 4. Sectional Officer, Bihar School Examination Board Patna 5. Addl. Secretary/Jt. Secretary Kosi Division, Bihar School Examination Board Patna 6. Sectional Officer, Kosi Division, Bihar School Examination Board Patna 7. Issue Assistant of Mark Sheet, Bihar School Examination Board Office situated at Sinha Library Road, P.S. Kotwali Distt. Patna Petitioners/Opp. Parties (OP) Versus 1. Kundan Kumar S/o Sri Suresh Prasad Yadav, Mohalla Natola, Mirchai Ban Katihar P.S. Sahayak Katihar, Distt. Ktihar 2. Headmaster, Hari Shankar Nayak High School Mirchaiya Bari, Katihar P.S. Sahayak, Katihar Distt. Katihar Respondents/Complainants BEFORE: HON'BLE MR. JUSTICE K. S. CHAUDHARI, PRESIDING MEMBER For the Petitioners : Mr. Dhirendra Kumar, Proxy Counsel For Mr. Gopal Singh, Advocate For the Respondent No.1 : Mr. Sanjeev Kr. Varma, Advocate For the Respondent No. 2 : Mr. Shakti K. Pattanaik, Advocate PRONOUNCED ON 7th October, 2014 O R D E R
PER JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER This revision petition has been filed by the petitioner against the order dated 11.01.2013 passed by the Bihar State Consumer Disputes Redressal Commission, Patna (in short, the State Commission) in Appeal No. 283/2012 Chairman, Bihar School Examination Board Patna & Ors. Vs. Kundan Kumar by which, while dismissing appeal, order of District Forum allowing complaint was upheld.
2. Brief facts of the case are that complainant/Respondent appeared in Secondary School Examination 1988 under Roll No. 0155. OP/petitioner declared result and as per result complainant failed in mathematics and physical science theoretical.
Complainant filed application before Bihar School Examination Board through Headmaster, Hari Shankar Nayak High School for revaluation. Bihar School Examination Board revalued and complainant got 33 marks instead of 13 marks in mathematics and 15 marks instead of 11 in physical science theoretical and he was declared passed with second division. Headmaster, Hari Shankar Nayak High School was communicated with revised result who issued school leaving certificate with revised result. Later on, complainant continued his studies, but OP did not issue original certificate to the complainant and it was told to the complainant that complainant failed; so, it is not possible to issue mark sheet.
OP/petitioner resisted claim and submitted that complainant does not fall within purview of consumer as OP is not service provider. It was further submitted that complaint is time barred and prayed for dismissal of complaint. OP No. 8, Headmaster, Hari Shankar Nayak High School also took same grounds as taken by the Petitioner Board and further submitted that revised result bearing no. 865 dated 20.8.1998 was received in which complainant was declared pass with second division and on that basis, school issued school leaving certificate and prayed for dismissal of complaint. Learned District Forum after hearing both the parties allowed complaint and directed OP Nos. 1 to 7 to issue revised mark sheet and original certificate in favour of complainant. Appeal filed by OP was dismissed by learned State Commission vide impugned order against which, this revision petition has been filed.
3. Heard learned Counsel for the parties finally at admission stage and perused record.
4. Learned Counsel for the petitioner submitted that complaint was not maintainable as there was no relationship of consumer and service provider between the parties; even then, learned District Forum committed error in allowing complaint and learned State Commission further committed error in dismissing appeal; hence, revision petition be allowed and impugned order be set aside.
On the other hand, learned Counsel for the Respondent No. 1 submitted that order passed by learned State Commission is in accordance with law; hence, revision petition be dismissed. Learned Counsel for the Respondent No. 2 also supported petitioner.
5. It is admitted case of the parties that petitioner appeared in Secondary School Examination 1988 and he was declared unsuccessful in two papers. As per complainant, he applied for revaluation and after revaluation he was declared successful in those two papers.
6. Learned Counsel for the petitioner submitted that there was no relationship of consumer and service provider between the parties, so complaint was not maintainable.
He has placed reliance on the judgment of Honble Apex Court in C.A. No. 3911 of 2003 Bihar School Examination Board Vs. Suresh Prasad Sinha in which it was observed 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-a-vis other examinees. The process is not therefore availment of a 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 7successfully 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.
7. Aforesaid judgment makes it crystal clear that when Examination Board conducts an examination in discharge on its statutory functions involving holding periodical examinations, evaluating the answer scripts, declaring the results and issuing certificates then there is no relationship of consumer and service provider between the parties and as such, complaint was not maintainable before District Forum. Learned Counsel for the respondent could not place any citation of Honble Apex Court contrary to aforesaid judgment and in such circumstances, revision petition is to be allowed.
8. Consequently, revision petition filed by the petitioner is allowed and impugned order dated 11.01.2013 passed by the Bihar State Commission, Patna in Appeal No. 283/2012 Chairman, Bihar School Examination Board Patna & Ors. Vs. Kundan Kumar and order of District Forum dated 23.02.2012 in C.D. No. 92/2009 Kundan Kumar Vs. Chairman, Bihar School Examination Board Patna & Ors. is set aside and complaint stands dismissed with no order as to costs.
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(K. S. CHAUDHARI, J) PRESIDING MEMBER k