State Consumer Disputes Redressal Commission
Himlayan Insitute Of Pharmacy And ... vs Rishipal Bhardwaj on 13 October, 2022
Appeal No. Sh. Rishipal Bhardwaj . 13.10.2022
63 of 2015 Vs.
& Himalyan Institute of Pharmacy & Research
Appeal No. AND
68 of 2015 Himalyan Institute of Pharmacy & Research
Vs.
Sh. Rishipal Bhardwaj and Anr.
STATE CONSUMER DISPUTES REDRESSAL COMMISSION UTTARAKHAND, DEHRADUN
Date of Institution: 22.04.2015
Date of final hearing: 11.10.2022
Date of Pronouncement: 13.10.2022
First Appeal No. 63 / 2015
Sh. Rishipal Bhardwaj S/o Late Sh. Dorilal Bhardwaj
R/o Village & Post - Rajawala Via Prem Nagar
District Dehradun, Pincode 248007
.....Appellant in Person
VERSUS
Himalyan Institute of Pharmacy and Research
Through its Director
Atak Farm and Post Rajawala
Via Prem Nagar, Dehradun Pincode 248007
(Through: Sh. Anuj Sharma, Advocate)
.....Respondent
AND
Date of Institution: 24.04.2015
Date of final hearing: 11.10.2022
Date of Pronouncement: 13.10.2022
First Appeal No. 68 / 2015
Himalyan Institute of Pharmacy and Research
Through Dy. Director Sh. Vikrant Kumar
Atak Farm, Post Rajawala
Via Prem Nagar, Dehradun, Uttarakhand
(Through: Sh. Anuj Sharma, Advocate)
.....Appellant
VERSUS
1
Appeal No. Sh. Rishipal Bhardwaj . 13.10.2022
63 of 2015 Vs.
& Himalyan Institute of Pharmacy & Research
Appeal No. AND
68 of 2015 Himalyan Institute of Pharmacy & Research
Vs.
Sh. Rishipal Bhardwaj and Anr.
1. Sh. Rishipal Bhardwaj S/o Late Sh. Dori Lal Bhardwaj
R/o Gram and Post - Khangawa Shyam Tehsil Aawla
Via Ram Nagar, District Bareily
.....Respondent No. 1 in Person
2. Jila Samaj Kalyan Adhikari
Bareily, Uttar Pradesh
.....None for Respondent No. 2
Coram:
Ms. Kumkum Rani, Judicial Member II
Mr. B.S. Manral, Member
ORDER
(Per: Ms. Kumkum Rani, Judicial Member II):
The present appeals have been directed against the judgment and order dated 20.03.2015 passed by the District Consumer Disputes Redressal Forum, Dehradun (hereinafter to be referred as the District Commission) in consumer complaint No. 312 of 2013 styled as Rishipal Bhardwaj Vs. Himalyan Institute of Pharmacy and Research and Anr., wherein and whereby the District Commission has allowed the consumer complaint.
2. The facts giving rise to the appeals in hand, in brief, are as such that the opposite party No. 1 - Himalyan Institute of Pharmacy and Research claims to be an institute imparting education of B. Pharma in Dehradun while the opposite party No. 2 claims to be the District Samaj Kalyan Adhikari and is responsible for discharging the amount of scholarship duly awarded to the various students by the concerned department. The 2 Appeal No. Sh. Rishipal Bhardwaj . 13.10.2022 63 of 2015 Vs. & Himalyan Institute of Pharmacy & Research Appeal No. AND 68 of 2015 Himalyan Institute of Pharmacy & Research Vs. Sh. Rishipal Bhardwaj and Anr.
complainant is pursuing the course of B. Pharma from the opposite party No. 1; he belongs to Other Backward Classes (OBC) and has been duly awarded the scholarship from the opposite party No. 2 to be paid every year till the completion of the course. The complainant has duly completed the first year of the above referred course and was promoted to the second year and examination of the same were to commence on 06.05.2013, hence the complainant duly submitted his form for realization of the scholarship amount from the opposite party No. 2 to opposite party No. 1 on 21.01.2013 and he was assured by the opposite party No. 1 that the same be forwarded to the opposite party No. 1 immediately. But on 18.04.2013, the complainant was informed that his request form for the realization of scholarship amount was returned back to the college. On inquiry into the matter, the complainant came to know that the scholarship realization form that was submitted by the complainant to the opposite party No. 1 on 21.01.2013, was forwarded to opposite party No. 2 with covering letter dated 15.03.2013 and was received by the opposite party No. 2 on 20.03.2013, whereas the last date of submission of the scholarship form to the opposite party No. 2 for realization of scholarship amount was 12.03.2013. This scheduled date was in the complete knowledge of the opposite party No. 1. Inspite of it, the delay was done by the opposite party No. 1 in submission of scholarship form after the expiry of the date, i.e. 12.03.2013; the opposite party No. 1, has been highly deficient in service to have forwarded the above referred form dated 15.03.2013, as the above referred form handed over to the opposite party No. 1 on 21.01.2013, therefore, the opposite party No. 1 was deficient in service and unfair trade practices of the opposite party No. 1, on account of which the complainant have to face unrepairable loss of the whole academic year without being at 3 Appeal No. Sh. Rishipal Bhardwaj . 13.10.2022 63 of 2015 Vs. & Himalyan Institute of Pharmacy & Research Appeal No. AND 68 of 2015 Himalyan Institute of Pharmacy & Research Vs. Sh. Rishipal Bhardwaj and Anr.
fault. Therefore, his claim be allowed directing the opposite parties to pay Rs. 4,50,000/- as costs of the damages and harassment faced by the complainant with costs of suit Rs. 25,000/-.
3. Opposite party No. 1 has not filed any written statement, hence, the ex-parte order was passed on 10.09.2014 to proceed the case against the opposite party No. 1.
4. Opposite party No. 2 has conceded in its written statement that the complainant belongs to the Other Backward Classes (OBC), on account of which the Government has provided several facilities including the scholarship. It is true that the scholarship form was sent to the opposite party No. 2, which was denied to accept. There was no deficiency in service on the part of the opposite party No. 2. It is true that the scholarship form of the complainant was received on 20.03.2013 to the office of opposite party No. 2, but the form relates to OBC, hence, denied to accept and was returned to the concerned office. There was no deficiency in service on the part of the opposite party No. 2.
5. After hearing both the parties and after taking into consideration the material available on record, learned District Forum / Commission passed the impugned judgment and order dated 20.03.2015, hence it is held as under:-
"ifjoknh }kjk ;ksftr ;g ifjokn foi{kh la0 1 ¼f"k{k.k laLFkku½ ds fo:) {kfriwfrZ vadu 1]00]000@&:i;s ¼,d yk[k :0½ rFkk okn O;; 5]000@&:i;s ¼ik¡p gtkj :0½ dh çkfIr gsrq Lohdkj fd;k tkrk gSA 4 Appeal No. Sh. Rishipal Bhardwaj . 13.10.2022 63 of 2015 Vs. & Himalyan Institute of Pharmacy & Research Appeal No. AND 68 of 2015 Himalyan Institute of Pharmacy & Research Vs. Sh. Rishipal Bhardwaj and Anr.
mDr foi{kh vknsf"kr /kujkf"k 30 fnu ds vUnj ifjoknh dks Hkqxrku djuk lqfuf"pr djsA ;fn fufnZ'V vof/k esa /kujkf"k dh vnk;xh ugha dh tkrh gS rks ifjoknh mijksDr leLr /kujkf"k ij fu.kZ;&frfFk ls olwyh rd 8% okf'kZd C;kt Hkh çkIr djus dk ik= gksxkA"
6. Aggrieved by the aforesaid order of the District Commission, the appellant (complainant) has preferred the present appeal No. 63 of 2015, whereas another appeal No. 68 of 2015 has been preferred by the appellant (Himalyan Institute of Pharmacy and Research through director - opposite party No. 2) before this Commission.
7. In the appeal No. 68 of 2015, learned counsel for the appellant has contended that the District Commission while passing the impugned judgment has overlooked that no material evidence has been filed by the complainant on record to prove his case; respondent No. 1 - complainant had regularly given all the examinations even after filing of the complaint in the District Commission, Dehradun; complainant has wrongly contended that he has submitted the form to the appellant for releasing of the scholarship amount from the respondent No. 2 - opposite party No. 2 on 21.01.2013. On record no evidence has been filed on behalf of the complainant to prove that the scholarship form was submitted by the complainant to the appellant on 21.01.2013. It is further contended on behalf of the appellant - Himalyan Institute of Pharmacy and Research that the complainant has not disclosed the correct facts before the learned District Commission that the form for release of the scholarship amount 5 Appeal No. Sh. Rishipal Bhardwaj . 13.10.2022 63 of 2015 Vs. & Himalyan Institute of Pharmacy & Research Appeal No. AND 68 of 2015 Himalyan Institute of Pharmacy & Research Vs. Sh. Rishipal Bhardwaj and Anr.
was first sent to the respondent No. 2 in the month of November, 2012; appellant had several times send reminders to the respondent No. 2 for the release of scholarship amount and did not adopt any unfair trade practice to restrain the complainant to appear in the practical exam and other examinations; the appellant has always supported the complainant for giving the examination, therefore, there is no deficiency in service on the part of the appellant, but the District Commission has acted on the basis of conjectures and surmises while passing the impugned judgment the District Commission has exceeded the jurisdiction vested in it and has failed to exercise the jurisdiction vested in it by law. Learned District Commission has exercised its jurisdiction with material illegality and irregularity; the impugned judgment is against the law and the merits of the case, therefore, it is liable to be set aside and the Hon'ble Commission be pleased to allow the appeal and set aside the impugned judgment and complaint be dismissed with costs.
8. In the appeal No. 63 of 2015 filed by the complainant (appellant) it is averred that the learned District Commission has failed to pass the impugned judgment against law; that the awarded amount is only for the deficiency in service, whereby the complainant was deprived for appearing in examination in the academic year of B. Pharma second year, whereas the learned District Commission has not awarded any amount while the opposite party No. 1 forcefully restrain the complainant to appear in the practical exam to be held on 06.05.2013 and thereafter the other exams to be held; on account of above referred deficiency in service and unfair trade practice of opposite party No. 1, the complainant had to deposit the face a loss of the whole academic year without being at fault. It is further averred 6 Appeal No. Sh. Rishipal Bhardwaj . 13.10.2022 63 of 2015 Vs. & Himalyan Institute of Pharmacy & Research Appeal No. AND 68 of 2015 Himalyan Institute of Pharmacy & Research Vs. Sh. Rishipal Bhardwaj and Anr.
that the complainant after closing his daily business of Rs. 500 to 600/- per day income was doing B. Pharma course. Therefore, it is prayed that the Commission be pleased to order the opposite party No. 1 to pay Rs. 6,03,000/- as compensation to the complainant.
9. We have heard both the parties and perused the material available on record.
10. The first and foremost issue to be decided in the present appeal is whether the complainant falls under the definition of "consumer", as defined under the Act and whether the appellant No. 1 - Institute can be termed to be a "service provider". In this regard, it is relevant to state here that in the written statement filed by the appellants before the District Commission, it was specifically pleaded that the complainant does not come within the definition of "consumer". The perusal of the impugned judgment and order passed by learned District Commission shows that on the said issue, case law of Hon'ble National Commission was cited on behalf of the appellants, but the same was not relied upon by learned District Commission. Reliance was placed by learned District Commission upon 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 7 Appeal No. Sh. Rishipal Bhardwaj . 13.10.2022 63 of 2015 Vs. & Himalyan Institute of Pharmacy & Research Appeal No. AND 68 of 2015 Himalyan Institute of Pharmacy & Research Vs. Sh. Rishipal Bhardwaj and Anr.
light of guidelines issued by University Grants Commission 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 8 Appeal No. Sh. Rishipal Bhardwaj . 13.10.2022 63 of 2015 Vs. & Himalyan Institute of Pharmacy & Research Appeal No. AND 68 of 2015 Himalyan Institute of Pharmacy & Research Vs. Sh. Rishipal Bhardwaj and Anr.
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 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 9 Appeal No. Sh. Rishipal Bhardwaj . 13.10.2022 63 of 2015 Vs. & Himalyan Institute of Pharmacy & Research Appeal No. AND 68 of 2015 Himalyan Institute of Pharmacy & Research Vs. Sh. Rishipal Bhardwaj and Anr.
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 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 & 10 Appeal No. Sh. Rishipal Bhardwaj . 13.10.2022 63 of 2015 Vs. & Himalyan Institute of Pharmacy & Research Appeal No. AND 68 of 2015 Himalyan Institute of Pharmacy & Research Vs. Sh. Rishipal Bhardwaj and Anr.
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 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. 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), it is crystal clear that the appellant No. 1 - Educational Institute is neither "service provider", nor the respondent - complainant being a student is a "consumer". Accordingly, we are of the view that the matter in question cannot be brought before the Consumer Fora.
15. 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 inclined to interfere with the impugned judgment, hence the appeal No. 68 of 2015 deserves to be allowed and the appeal 11 Appeal No. Sh. Rishipal Bhardwaj . 13.10.2022 63 of 2015 Vs. & Himalyan Institute of Pharmacy & Research Appeal No. AND 68 of 2015 Himalyan Institute of Pharmacy & Research Vs. Sh. Rishipal Bhardwaj and Anr.
No. 63 of 2015 is liable to be dismissed; impugned judgment and order passed by learned District Commission is liable to be set aside.
16. Accordingly, appeal No. 68 of 2015 is allowed. Impugned judgment and order passed by the District Commission is set aside and the consumer complaint is dismissed. Appeal No. 63 of 2015 is also dismissed. No order as to costs.
17. 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 record of the District Commission be returned to the concerned District Commission alongwith copy of this judgment for record and necessary information.
18. File be consigned to record room along with a copy of this Order.
19. A copy of the Judgment be kept in the appeal No. 63 of 2015.
(Ms. Kumkum Rani) Judicial Member II (Mr. B.S. Manral) Member Pronounced on: 13.10.2022 12