EDUCATION – WHEN A STATUTARY FUNCTION AND NOT A SERVICE UNDER CONSUMER PROTECTION ACT

 

 A Judgement pronounced by the Apex court in the year 2009 in the matter of Bihar Examination Board  V  Suresh Prasad Sinha [Complaint on behalf of his minor son Rajesh Kumar]. ruled that the examination boards and Universities being statutory bodies falls outside the purview of the Consumer Protection Act. 

   “We are clearly of the view that the Board (examination board) is not a ‘service provider’ and a student who takes an examination is not a ‘consumer’ and consequently, complaint under the Act (Consumer Protection Act) will not be maintainable against the board,” said a bench comprising Justice R V Raveendran and Justice Markandey Katju.

Such orders as above  when pronounced by the apex court, general public at large reacts as if something new has come up and henceforth there shall be a bar against  the consumer to come ahead with their disputes against educational institutes.But the fact is that the above judgment is a repeat to the earlier supreme court judgements pronounced as back in 1993 in the matter of  University of Delhi-AIR 1993 SC 1873  Justice  Gajentagadkar wherein court had said the same thing  in clear terms that University or the Board in conducting public examination ,evaluating papers ,announcing results etc. are not the service providers by taking consideration.

 Following the above order by the Apex Court ,National commission had also in the matter of Registrar  University of Bombay V/S Mumbai Gram Panchayat Reported in  [1994]CPJ 146 [NC] and in Chaorman Board OF Examination V/S Mohideen Abdul Kadar [1997] CPJ 49 [NC]  held that University or the Board in conducting public examination ,evaluating papers ,announcing results etc. are not the service providers by taking consideration.

The Supreme court again in the year 2003 took a strong view against such  orders passed by the High courts in the matters relating to conducting of exams  and  while deciding the case of Regional officer CBSE v/S Sheena Pethambran[2003]of SCC 719 at page 725 SC held as hereunder:

          ‘This court has on several occasions earlier deprecated the practice of permitting the students to persue their studies and to appear in the examination under the interim orders passed in the petitions. In most of such cases, it is ultimately pleaded that since the course was over or the result had been declared ,the matter deserves to be considered sympathetically.’

             Looking into the situations arisen in such cases ,it is a natural outcome after such orders passed by the supreme court that if High courts are not allowed to pass such interim orders ,consumer courts are in no way wested with the powers to make such orders Hence the National commission has also warned the consumer forums not to interfere in the statutary functioning  of the Universities  as they are not services defined under the consumer protection act. Three Revision petitions on the subject had  come before the National commission bearing no 1121 of 2005,1122 of 2005 and 1127 of 2005 on the same matter of granting interim order to the students either for sitting in the exam or for declaration of the result in three different cases. . Finally  the Honourable President of the National commission Justice M.B.Shah warned  the consumer foras that no such interim orders be passed by the consumer foras permitting the students to appear in the exams it being a statutary function of the university .The order so passed by the National Commission is reproduced as follows;

    ‘We hereby direct that in future no such interim order permitting the students either to pursue the study or to appear in the examination shall be passed by the consumer foras   Consumer foras cannot issue interim orders on such subjects which are statutary duties of university and granting of such interim orders could amount to misconduct.’

        Similar was the case of Parul Midha in revision petition No 1933-34 of 2005 wherein district forum directed the university to give admission to the complainant in

regular B.Ed course on 14.10.2003 while deciding the complaint number 466 of 2003 before consumer forum Rohtak .State commission also confirmed the order on 6.4.2005. District forum again issued interim order dt. 16.7.2004 directing the authority  to declare result and issue provisional migration certificate .National commissional set aside this order also.

                    But it is much more important to know and note that educational institutions are very much covered under the provisions of consumer protection act for the purpose of their services rendered for consideration There is an Apex court dt 13^th Feb 2009 by the two judges bench comprising justice Dalveer Bhandari and Justice Harjeet Singh Bedi  confirming the order by the National commission in appeal no 1135 of 2001 in the matter of Budhist Mission Dental College and Hospital that imparting education by an educational institute falls within the ambit of service as defined in the consumer protection act.

               The facts in brief of the case are that there was a complaint against of Budhist Mission Dental College and Hospital for misleading advertisement in the daily newspaper as back as in 1993 inviting applications for admission in the degree course of bachelor of dental surgery being imparted by it .the advertisement gave a clear impression that the institute had its affiliation with Magadh University ,Bodh Gaya and was recognized by dental council of India .Believing the same to be true, complainants looking for brighter carrier prospects applied for admission and took admission paying the fee and capitation fee as demanded .After joining the college ,complainats came to know that neither the college was affiliated nor recognized .Complaint to the National Commission resulted into favorable order holding the institute guilty of deficiency in services as well as unfair trade practices .It was held ;

                 !)Imparting education by an institute for consideration  falls within the ambit of services and that the students are consumers of that services .

                 !!)That it was total misrepresentation on the part of institute which tentamounts to unfair trade practice

                           Hence the institute was directed to refund the admission expences with interest @12%pa and also Rs 20,000/- as compensation to each student Since there was no receipt for charging capitation fee ,no order toward its refund was passed .An appeal was preferred by the aggrieved institute and Hon’ble Supreme court in its detailed order upheld the order by the National Commission and also enhanced the compensation from Rs  20,000/- to 1,25,000/- and also awarded one lac towards refund of capitation fee to each student .By this order SC has in clear terms agreed that student is a consumer towards educational institutes AND  that  Misrepresentation on behalf of the institute tentamounts to unfair trade practice and also the institute is guilty of deficiency in services

                The present order by the Honourable Supreme court does not change the law already laid down in respect of educational institutes or against statutary bodies like

University etc.for their statutary functions .The need is to carefully examine the fact of the case and draw a demarcation line between the administrative functions by the institute and  the statutary functions by the university

Let us re-look on the latest decided case by the Hon’ble Supreme cpourt and appreciate the spirit of the order

It was complained in a district consumer court, in Hazaribagh in Jharkhand that Rajesh Kumar appeared in the Bihar Secondary School Examination in 1998. But Rajesh Kumar and another student Sunil Kumar Singh were allotted the same Roll No. 496. The result of Rajesh Kumar was not published and he had to re-appear in the Board examination the following year    

  The apex court said, “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-à-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 the examination,” the court said. 
              It is further said, the object of the consumer law is to cover in its ambit 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 intend 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,

The above order draws a demarcation line between the services provided by the institute by charging fee/money as consideration for rendering services where as University is a statutary body not rendering services while performing much more serious and statutary function in the noble field of an education and not doing any trade  business or profession. 

 

 

Statutary functions :                                                               

Conducting examination ,fixing the dates for examination,changing the date sheet,appointing invisilators and paying them for the same ,allotment of roll number,checking the answer sheets and giving numbers  ,declaring the result ,setting criteria for giving admission to a particular course and giving admission or rejecting application etc

 

Administrative services;

For conducting the examination,if there is any deviation by the institute in the procedure set by the university without information ,that particular institute can be questioned when it had charged fee for coaching and other related matters If the rule is for the student to reach the examination center at 9.OO a.m,it is the discretion of the University to relax it for the reason given or not but not a right of the student.

 Students cannot say any thing as to why such dates are fixed for the exams,or why this particular number is allotted or why results are not declared within expected period or why one is not given admission in particular stream when he /she did well in the interview.But if any institute affiliated or recognized  with the university gives certain services other than the functions of the university by charging fee ,it is liable for deficiency in services for the same before the consumer forums   If student has a grievance in getting low marks ,can get the calculation of the marks re-checked but cannot claim for re-valuation

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Dr Prem Lata