State Consumer Disputes Redressal Commission
Sri Dev Suman University vs Bharat Bhushan on 2 August, 2023
Appeal No. Sri Dev Suman University 02.08.2023
35 of 2019 Vs.
Sh. Bharat Bhushan & Anr.
STATE CONSUMER DISPUTES REDRESSAL COMMISSION UTTARAKHAND, DEHRADUN
Date of Admission : 06.02.2019
Date of Final Hearing: 27.07.2023
Date of Pronouncement: 02.08.2023
First Appeal No. 35 / 2019
Sri Dev Suman University
Badshahi Thaul, Tehri Garhwal, Uttarakhand
Through its Registrar
(Through: Sh. Vaibhav Jain, Advocate)
.....Appellant
VERSUS
1. Sh. Bharat Bhushan S/o Sh. Shiv Kumar
R/o Prajapati House, Street No. B-8, New Subhash Nagar
Near Barrier No. 8, Jwalapur, Haridwar
2. Principal
Chinmay Degree College
Shiwalik Nagar, BHEL, Ranipur, Haridwar
.....None for Respondent Nos. 1 & 2
Coram:
Ms. Kumkum Rani, Judicial Member II
Mr. B.S. Manral, Member
ORDER
(Per: Ms. Kumkum Rani, Judicial Member II):
This appeal under Section 15 of Consumer Protection Act, 1986 has been directed against the judgment and order dated 09.01.2019 passed by the District Consumer Disputes Redressal Forum, Haridwar (hereinafter to be referred as the District Commission) in consumer complaint No. 290 of 1 Appeal No. Sri Dev Suman University 02.08.2023 35 of 2019 Vs. Sh. Bharat Bhushan & Anr.
2016 styled as Sh. Bharat Bhushan Vs. Sri Dev Suman University and Anr., wherein and whereby the District Commission has allowed the consumer complaint.
2. The facts giving rise to the appeal in hand, in brief, are as such that in the complaint filed by the complainant, an order was passed by the learned District Commission directing the opposite parties to declare the result of B.A. IIIrd year, 2015 of the complaint and issue degree accordingly. In the complaint case, the District Commission has also awarded compensation with costs to the tune of Rs. 10,000/- to the complainant.
As per the complaint, the complainant has appeared in the examination of B.A. IIIrd year in the year 2015 and the said exams were given by the complainant vide Roll No. 57063217 and registration No. SV131120223 from Chinmay Degree College, Shiwalik agar, BHEL, Ranipur, Haridwar. In the month of October and November, 2015, the result has been declared. When the complainant uploaded his roll number for knowing his result of B.A. IIIrd year, a the message has been received by the complainant as "Roll Number not found". The complainant personally went to the examination center to know his result, but no satisfactory reply was given to him, thereafter he went to the University and also sent emails to the E-mail IDs of University, but in vain. By not issuing his mark-sheet and the result of B.A. IIIrd year, the complainant has been deprived from applying for several posts of Government Department and Semi-Government Department as well as of the State Government; he has also been deprived from taking admission in the higher education. The act of not declaring result of the complainant, the opposite parties have committed deficiency in service on the part of the opposite parties, 2 Appeal No. Sri Dev Suman University 02.08.2023 35 of 2019 Vs. Sh. Bharat Bhushan & Anr.
therefore, the Commission be pleased to grant the relief mentioned in the complaint.
3. In the written statement, the opposite party No. 1 has averred that the complainant has no cause of action to file the complaint because there is no territorial jurisdiction to entertain the complaint of the complainant. In the additional pleas of the written statement, it is further averred that the complainant has not filled any column from where he has filled-up his application form and from where he has passed B.A. IInd year exam. The mark-sheet of B.A. IInd year was also not submitted. Therefore, the further action could not be taken. The complainant has also not completed even the O.M.R number, so that his result could not be declared. The complainant has also not submitted the Migration Certificate even after several requests. To conceal his mistake, the complainant has submitted the complaint, therefore, the complaint is liable to be dismissed.
4. The opposite party No. 2 has filed its written statement alleging that the complainant has given his examination of B.A. IIIrd year (final year in the year 2015) from the college of answering opposite party. It is the duty of the University to declare the result and not of the college. The college has co-operated the complainant as far as possible. When the complainant submitted the attendance sheet, the attested attendance sheet alongwith application form were properly forwarded to the University for further action. The college was the examination center in the year of 2015, but presently the college is not now the examination center of the University. To declare the result and to furnish the mark-sheet is the job of the University and the college has no concern in this respect. Hence, the complaint is liable to be dismissed with costs.
3Appeal No. Sri Dev Suman University 02.08.2023 35 of 2019 Vs. Sh. Bharat Bhushan & Anr.
5. After hearing both the parties and after taking into consideration the material available on record, learned District Commission passed the impugned judgment and order dated on 09.01.2019, which is as under:-
"ifjokn Lohdkj fd;k tkrk gSA foi{khx.k dks vknsf"kr fd;k tkrk gS fd osa vkns"k dh frfFk ls ,d ekg ds Hkhrj ifjoknh dks la"kksf/kr ekdZ"khV miyC/k djk;s vkSj {kfriwfrZ ,oa okn O;; ds :i esa 10]000@&:0 dh /kujkf"k vnk djsAa "
6. Aggrieved by the aforesaid judgment and order of the District Commission, the appellant - opposite party No. 1 has preferred the present appeal before this Commission. Learned counsel for the appellant has averred that there is no dispute that the relation of the consumer and service provider does not exist between the complainant and the answering opposite party. The District Commission has failed to consider the fact that the complainant was not a regular student of the appellant but was a private student. Hence, the District Commission has also failed to give any reason for not considering the aforesaid law in the following:
1. Bihar School Examination Board Vs. Suresh Prasad Sinha, 2010 (1) UC 140 SC.
2. Global Engineering College, Jabalpur & Ors., III (2016) CPJ 230 (NC).
3. Regional Institute of Cooperative Management Vs. Naveen Kumar Chaudhary, (2014) 3 CPR (NC) 152 4 Appeal No. Sri Dev Suman University 02.08.2023 35 of 2019 Vs. Sh. Bharat Bhushan & Anr.
and has erred to consider the fact that the complaint is not maintainable against the appellant. It is further contended on behalf of the appellant that the District Commission has failed to consider the fact that it had no territorial jurisdiction to adjudicate the present complaint as Section 11(2) of the Consumer Protection Act barred the same.
7. Learned counsel for respondent Nos. 1 & 2 have not appeared in the appeal hence, vide order dated 27.07.2023 the appeal was being heard ex- parte against the respondent Nos. 1 & 2.
8. We have heard learned counsel for the appellant and have gone through the material available before us.
9. The main question for consideration before us is whether there is any relationship of consumer and service provider between the appellant and the respondent No. 1.
10. It is an admitted fact that the respondent No. 1 has given an examination of B.A. IIIrd year in the year 2015 from the examination center Chinmay Degree College, Shiwalik agar, BHEL, Ranipur, Haridwar. It is also not disputed that the Roll Number of the complainant was 57063217 and the Registration Number of the complainant was SV131120223. It is also not disputed that the result of the complainant for the class B.A. IIIrd year of the year 2015 was not declared by the appellant - University. The present complaint has been submitted on behalf of the respondent No. 1 with the prayer to direct the appellant - University to declare the result of B.A. IIIrd year of the year 2015 of the respondent No. 1 and then issue mark- sheet and degree to him. Learned counsel for the appellant has attracted our attention in the following case law:
5Appeal No. Sri Dev Suman University 02.08.2023 35 of 2019 Vs. Sh. Bharat Bhushan & Anr.
1. Revision Petition No. 3288 of 2016; Mody University of Sciences and Technology and another Vs. Megha Gupta
2. Bihar School Examination Board Vs. Suresh Prasad Sinha reported in IV (2009) CPJ 34 (SC)
3. Revision Petition No. 3144 of 2016;
Krishan Mohan Goyal Vs. St. Mary's Academy and another decided on 17.12.2017
4. Civil Appeal No. 17802 of 2017; Anupama College of Engineering Vs. Gulshan Kumar and others
5. Director of Xavier Institute of Management & Entrepreneurship Kinfra Hi-Tech Park and others Vs. Sujay Ghose reported in III (2022) CPJ 6 (NC) and has relied on the judgment and order dated 08.12.2016 passed by Hon'ble National Commission in Revision Petition No. 3288 of 2016; Mody University of Sciences and Technology and another Vs. Megha Gupta. In the said case, the complainant had decided to withdraw from the University after she had been admitted to the course and had, in fact, been called for counselling, hence it was submitted on behalf of the University that she was not entitled to refund of the amount deposited by her. It was held by Hon'ble National Commission that the instant case has to be decided in the light of guidelines issued by University Grants Commission 6 Appeal No. Sri Dev Suman University 02.08.2023 35 of 2019 Vs. Sh. Bharat Bhushan & Anr.
and the order passed by the Fora below so far as question of refund of fee was concerned, was upheld. But, it is noteworthy that Hon'ble Apex Court in the case of Bihar School Examination Board Vs. Suresh Prasad Sinha reported in IV (2009) CPJ 34 (SC), has laid down that Bihar School Examination Board does not offer "service" to any candidate, nor does any student hires or avails of any "service" from the Board for a consideration. Paragraph No. 10 of the said decision is reproduced below:
"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 7 Appeal No. Sri Dev Suman University 02.08.2023 35 of 2019 Vs. Sh. Bharat Bhushan & Anr.
fit to be declared as having competence vis-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 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. Hon'ble National Commission in its judgment dated 17.12.2017 rendered in Revision Petition No. 3144 of 2016; Krishan Mohan Goyal Vs. St. Mary's Academy and another, has discussed the law laid down by Hon'ble Apex Court in Maharshi Dayanand University Vs. Surjeet Kaur reported in (2010) 11 SCC 159, in which it has been laid down by Hon'ble Apex Court that a student is neither a consumer, nor the University is rendering any service, relying on the decision given in the case of Bihar School Examination Board (supra). Relevant portion of the said decision is reproduced below:
"The respondent as a student is neither a consumer nor is the appellant rendering any service. The claim of the respondent to award B.Ed. degree was almost in the nature of a relief praying for a direction to the appellant to act contrary to its own rules. The National Commission, in our opinion, with the utmost respect to the reasoning given therein did not take into consideration the aforesaid aspect of the matter and thus, arrived at a wrong 8 Appeal No. Sri Dev Suman University 02.08.2023 35 of 2019 Vs. Sh. Bharat Bhushan & Anr.
conclusion. The case decided by this Court in Bihar School Examination Board (supra) clearly lays down the law in this regard with which we find ourselves in full agreement with. Accordingly, the entire exercise of entertaining the complaint by the District Forum and the award of relief which has been approved by the National Commission do not conform to law and we, therefore, set aside the same."
12. Hon'ble Apex Court in Civil Appeal No. 17802 of 2017; Anupama College of Engineering Vs. Gulshan Kumar and others, decided on 30.10.2017, has held that in view of the judgment of this Court in Maharshi Dayanand University (supra), wherein this Court placing reliance on all earlier judgments, has categorically held that educational institutions are not providing any kind of service, therefore, in matter of admission, fees etc., there cannot be a question of deficiency in service and such matter cannot be entertained by the Consumer Forum under the Consumer Protection Act, 1986.
13. Hon'ble National Commission in its latest judgment rendered in the case of Director of Xavier Institute of Management & Entrepreneurship Kinfra Hi-Tech Park and others Vs. Sujay Ghose reported in III (2022) CPJ 6 (NC), has specifically held that the Educational Institute does not fall within purview of Consumer Protection Act, 1986, as it is not rendering any services. While coming to the above conclusion, Hon'ble National Commission has relied upon a decision of Larger Bench of three Members of Hon'ble National Commission in the case of Manu Solanki and others Vs. Vinayak Mission University and 9 Appeal No. Sri Dev Suman University 02.08.2023 35 of 2019 Vs. Sh. Bharat Bhushan & Anr.
other connected cases reported in I (2020) CPJ 210 (NC), wherein the Larger Bench has held that educational matters do not come within the purview of the Consumer Protection Act, 1986 and, therefore, the complaint is not maintainable.
14. In the case of Rajendra Kumar Gupta Vs. Dr. Virendra Swarup Public School and Anr., 2021 2 CPR (NC) 217 the Hon'ble National Commission has held that "it may be mentioned here that this issue has been considered and decided by a larger Bench of three Members of this Commission in the case of Manu Solanki and Ors. v Vinayaka Mission University and other connected cases, I (2020) CPJ 210, wherein the larger Bench had held that Educational matters do not come within the purview of the Consumer Protection Act, 1986 and therefore, the Complaint is not maintainable.
15. Considering the aforesaid facts and circumstances of this case as well as the law laid down in the case of Bihar School Examination Board (supra); Maharshi Dayanand University (supra); Anupama College of Engineering (supra) and Director of Xavier Institute of Management & Entrepreneurship Kinfra Hi-Tech Park and others (supra) and Rajendra Kumar Gupta (supra), it is crystal clear that the appellant - University is neither "service provider", nor the respondent No. 1 - complainant being a private student is a "consumer". Accordingly, we are of the view that the matter in question cannot be brought before the Consumer Fora.
16. In the light of the above cited case laws, we are of the considered opinion that the impugned judgment and order passed by the District Commission suffers from material illegality, infirmity and the same is erroneous. Therefore, we are inclined to interfere with the impugned 10 Appeal No. Sri Dev Suman University 02.08.2023 35 of 2019 Vs. Sh. Bharat Bhushan & Anr.
judgment, hence the appeal deserves to be allowed; impugned judgment and order passed by learned District Commission is liable to be set aside.
17. Accordingly, the appeal is allowed. Impugned judgment and order dated 09.01.2019 is set aside and the complaint is hereby dismissed. No order as to costs of the appeal.
18. Statutory amount deposited by the appellant, be released in favour of the appellant.
19. A copy of this Order be provided to all the parties free of cost as mandated by the Consumer Protection Act, 1986 /2019. The Order be uploaded forthwith on the website of the Commission for the perusal of the parties. The copy of this order be sent to the concerned District Commission for record and necessary information.
20. File be consigned to record room along with a copy of this Order.
(Ms. Kumkum Rani) Judicial Member II (Mr. B.S. Manral) Member Pronounced on: 02.08.2023 11