National Consumer Disputes Redressal
Gaurav Govind Tripathi vs Manager, Divya Prem Sewa Mission & Anr. on 4 April, 2019
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 488 OF 2019 (Against the Order dated 07/12/2018 in Appeal No. 224/2018 of the State Commission Uttaranchal) 1. GAURAV GOVIND TRIPATHI ...........Petitioner(s) Versus 1. MANAGER, DIVYA PREM SEWA MISSION & ANR. ...........Respondent(s)
BEFORE: HON'BLE MR. PREM NARAIN,PRESIDING MEMBER
For the Petitioner : Ms. Meenakshi Midha, Mr. Kapil Midha and
Mr. Bhavya Lakhware, Advocates For the Respondent :
Dated : 04 Apr 2019 ORDER
This revision petition has been filed by the petitioner Gaurav Govind Tripathi against the order dated 07.12.2018 of the State Consumer Disputes Redressal Commission, Uttarakhand (in short 'the State Commission') passed in First Appeal No.224/2018.
2. The case of the petitioner /complainant is that he was student of B.A. III year and he had deposited his fee with respondent No.1 and respondent No.1 was to transfer the same to respondent No.2 University. The petitioner's name did not appear in the list of candidates who were allowed to write the examination of BA III year. It was alleged that the respondent No.1 did not transfer the fee paid by him to respondent No.2 in time. Accordingly, he filed a consumer complaint bearing No.384/2015 before the District Consumer Disputes Redressal Forum, Haridwar, (in short 'the District Forum') and the District Forum vide its order dated 28.08.2015 passed an interim order and allowed the petitioner to appear in the examination from 01.09.2015. Accordingly, the admit card No.12029254 was issued to the petitioner by the respondent No.2, wherein all the subjects were mentioned. The petitioner appeared in all the examinations except for the subject code No.BA KK 302. The petitioner could not give practical examination of subject code BA KK 302 because the same was organised on 21.08.2015. It is the case of the petitioner that when he contacted the University on 20.08.2015, he was informed that permission cannot be given to him to appear in the practical examination on 21.08.2015 as he has not deposited the fees. However, in the morning of 21.8.2015 at about 9 'O' clock, he received a phone call that he can appear in the pratical examination on 21.08.2015 which was to start at 11 a.m.. It was not possible for him to appear in that examination as he would not have reached by then. The matter was raised before the District Forum, however, the District Forum passed the final order in the complaint on 03.10.2018 wherein the complaint was dismissed as having become infructuous because the petitioner was allowed to appear in the examination of BA III year.
3. Aggrieved by the order of the District Forum, the petitioner preferred an appeal before the State Commission and the same was dismissed vide its order dated 07.12.2018.
4. Hence the present revision petition.
5. Heard the learned counsel for the petitioner at the admission stage. She stated that the District Forum should have appreciated that respondent No.2 has not allowed complainant to appear in the practical examination of subject code BA KK 302 and therefore, whole purpose of interim order dated 28.8.2015 was frustrated. Even after giving all the examinations after 01.09.2015, the complainant could not get the degree of BA just because he was not allowed to appear in the practical examination. It was further argued that even the State Commission has not considered this aspect and has confirmed the order of the District Forum on another ground that the complainant being a student was not a consumer and the respondents being educational institutions were not the service providers. Learned counsel argued that the Consumer Protection Act, 1986 is meant for providing better protection to the consumer and the whole purposes of filing the complaint has been frustrated because the District Forum or the State Commission have not considered the grievance of the complainant that inspite of appearing in all the examinations of BA III year, he is not able to get the degree because the respondents have not allowed to take part in the practical examination and the District Forum failed to direct the respondents to take the practical examination again for the complainant.
6. On the legal aspect raised by the State Commission that a student is not a consumer and an educational institution is not a service provider in the light of the decision of the Hon'ble Supreme Court in Maharshi Dayanand University Vs. Surjeet Kaur, 2010 (11) SCC 159, learned counsel argued that whether an educational institution is to be considered as a service provider or not depends on only the circumstances of each case and this Commission in Aashirward Health and Education Trust and Anr. Vs. S.L.M. Ahmed and Ors., First Appeal No.199 of 2009, decided on 01.03.2013 (NC) has held that educational institution was a service provider and relief was granted to the complainant student. She further stated that this order of the National Commission has been upheld by the Hon'ble Supreme Court. Learned counsel has further relied upon the judgment of the Hon'ble Supreme Court in Budhist Mission Dental College & Hospital Vs. Bhupes Khurana & Others, Civil Appeal No.1135 of 2001, decided on 13.02.2009 (SC) by drawing attention towards the following portion of the judgment:-
"32. The Commission also held that this Court in Bangalore Water Supply and Sewerage Board (supra) held as under: [para 118 at page 583]:-
"...In the case of the University or an educational institution, the nature of the activity is, ex hypothesi, education which is a service to the community. Ergo, the University is an industry..."
The Commission further held as under:
"Imparting of education by an educational institution for consideration falls within the ambit of `service' as defined in the Consumer Protection Act. Fees are paid for services to be rendered by way of imparting education by the educational institutions. If there is no rendering of service, question of payment of fee would not arise. The complainants had hired the services of the respondent for consideration so they are consumers as defined in the Consumer Protection Act."
7. On the basis of the above judgment of this Commission in Aashirward Health and Education Trust and Anr. Vs. S.L.M. Ahmed and Ors. (supra) and the judgment of the Hon'ble Supreme Court in Budhist Mission Dental College & Hospital Vs. Bhupes Khurana & Others (supra), learned counsel stated that it was not fair on the part of the State Commission to have dismissed the appeal on the ground that the respondents were not service provider and the complainant was not a consumer.
8. It was requested that direction may be given to the respondents to allow the petitioner/complainant to give his practical examination of the subject code BA KK 302.
9. I have given a thoughtful consideration to the arguments advanced by the learned counsel for the petitioner and have examined the material on record. The State Commission in its order has observed the following:-
"The record further shows that the complainant has appeared in the said examination, as the opposite party No.1 has clearly stated in para 16 of its written statement that the relief "A" sought by the complainant to the above effect, has already been granted to him by the University concerned. The complainant has in para 16 of his affidavit dated 26.09.2016, filed before the District Forum, clearly averred that in pursuance to the interim order dated 28.08.2015 passed by the District Forum, he has appeared in the written examination. Thus, since the complainant has appeared in the examination of the year 2015, the matter in issue has become stale and thereby infructuous, as was rightly opined by the District Forum."
10. The State Commission has further dismissed the appeal on the ground that the education is not a service and educational institutions are not service providers. In observing this, the State Commission has relied upon the judgment of the Hon'ble Supreme Court in Maharshi Dayanand University Vs. Surjeet Kaur (supra) . In fact the Hon'ble Supreme Court in Maharshi Dayanand University Vs. Surjeet Kaur (supra) has observed the following:-
"Consumer Protection-consumer/Consumer dispute/Locus standi-Generally- University- if covered-Direction to issue BEd degree against rules of examination-Legality-Held, respondent as a student is neither consumer nor University is rendering any service to its students-Hence, Consumer Fora have no jurisdiction to entertain complaint-Respondent pursued MA and BEd simultaneously contrary to general rules of examination which prohibits pursuing two courses simultaneously-She had chosen to continue MA, while admission to BEd was cancelled-Without disclosing the said fact, respondent managed to appear for supplementary examinations for BEd, and passed, which results were withheld on detecting the mischief-Complaint filed for direction to award BEd degree- Held, claim of respondent was for a direction to appellant to act contrary to its own rules-No court has competence to issue direction contrary to law nor can direct an authority to act in contravention of statutory provisions-Hence, National Commission should not have issued direction to appellant to act contrary to statutory provisions-Also, respondent cannot plead estoppel either by conduct or against statute so as to gain any advantage just because she was erroneously allowed to appear in the examination-Consumer Protection Act, 1986-Ss. 2(1)(o) and 2(1)(d)(iii)"
11. From the above, it is clearly brought out that a consumer forum cannot give any direction to educational institution against the provisions of the statute under which the educational institution is governed. Every educational institution has a scheme of examination and declaration of results etc.are to be governed as per the provisions of the rules framed under the statute or as per the provisions of the statute itself. Thus, it is beyond the jurisdiction of a consumer forum to direct an educational institution in respect of holding of the examination or for declaring the result against the provisions of the statute. So far as the judgment of this Commission in Aashirward Health and Education Trust and Anr. Vs. S.L.M. Ahmed and Ors. (supra) is concerned, it relates to an educational institution, which was not recognised by the Medical Council of India and the same was not governed by any Indian Statute and hence, the observation of the Hon'ble Supreme Court made in Maharshi Dayanand University Vs. Surjeet Kaur (supra) may not directly be applicable in this case and that is why this Commission upheld the order of the State Commission allowing the relief to the complainant.
12. So far as the judgment of the Hon'ble Supreme Court in Budhist Mission Dental College & Hospital Vs. Bhupes Khurana & Others (supra), is concerned, it is true that the Hon'ble Supreme Court has taken the view that if fee is paid then the recipient is responsible to provide the service. It is seen that this judgment was given by the Hon'ble Supreme Court on 13.02.2009, after this judgment, the Hon'ble Supreme Court gave judgment in Maharshi Dayanand University Vs. Surjeet Kaur (supra) on 19.07.2010. It is further seen that the Hon'ble Supreme Court has later on maintained its view given in Maharshi Dayanand University Vs. Surjeet Kaur (supra). In other such cases like P.T. Koshy & Anr. Vs. Ellen Charitable Trust & Ors., Civil Appeal No.22532 of 2012 decided on 9.8.2012, Bihar School Examination Board Vs. Suresh Prasad Sinha, (2009) 8 Supreme Court Cases 483 and some others.
13. Thus, established view of the Hon'ble Supreme Court in this regard is the same which has been given in the case of Maharshi Dayanand University Vs. Surjeet Kaur (supra). Thus, I am afraid that the judgment of the Hon'ble Supreme Court in Budhist Mission Dental College & Hospital Vs. Bhupes Khurana & Others (supra) cannot be applied in the present case.
14. It is seen that the following prayer has been made in the revision petition:-
"(b) Permit the petitioner to appear for the subject of Karmkand being BAKK 302 pertaining to the third year examination and issue the degree to the petitioner."
15. It is surprising to note that no such prayer as mentioned above has been made in the appeal before the State Commission. Thus, obviously, the State Commission could not have passed any order for allowing the petitioner to appear in the oral /practical examination. Clearly, this prayer was not there in the original complaint filed before the District Forum. Thus, if a prayer was neither made in the original complaint nor in the appeal, it cannot be considered directly under a revision petition filed under Section 21 (b) of the Consumer Protection Act, 1986 when this Commission has only to see whether the State Commission has exercised jurisdiction not vested in it or has exercised jurisdiction illegally or with material irregularity or has not exercised jurisdiction vested in it.
16. Based on the above discussion, I am of the view that this Commission is not empowered to give direction to the respondents to hold the practical examination again for the complainant in subject code No.BA KK 302 as the same may be against the provision of the statute under which the respondent No.2 is governed. Moreover, as examined above, this prayer is not maintainable before this Commission as the same was not prayed in the appeal filed before the State Commission. Consequently, I do not find any illegality, material irregularity or jurisdictional error in the order dated 07.12.2018 of the State Commission which calls for any interference from this Commission. Accordingly, the revision petition No.488 of 2019 is dismissed. However, if holding of practical examination separately or along with some other batch or as a back paper for a student is permitted under Rules of the respondent No.2 University then the University will take decision within a period of eight weeks after receiving the application from the complainant. The petitioner can approach the respondent No.2 in this regard and respondent No.2 shall take decision under their Rules.
...................... PREM NARAIN PRESIDING MEMBER