CHAPTER-VI ANALYSIS, INTERPRETATION AND DISCUSSION ON JUDICIAL TRENDS 6.0.0 INTRODUCTION The new born infant is a helpless human being. He has neither friends nor, enemies. He is not aware of the social customs and traditions. He is not aware of realities of life. He is not even keen to achieve any ideal or value. But as he grows older, he is influenced by the informal and formal agencies of education. He develops his physical, mental and emotional self and social feelings. By and by, he develops sense of responsibility like his elders. He solves the problems of life successfully. 1 Thus, education instills in the child a sense of maturity and responsibility. Education bestows immense benefits upon a person. A well educated person is known all over the region because he is able to meet the conflicting challenges. Education cultures the individual and helps him to fulfill his needs. Education develops the individual like a flower which distributes its fragrance all over the environment. Thus, education is a conducive process which develops child’s individuality in all its aspects-physical, mental, emotional and social. With this all-around development, he becomes a responsible, dynamic, resourceful and enterprising citizen of strong, good, moral character who uses all his capacities to develop his own self, his society and his nation to the highest extent by contributing his best to national honour, national glory, national culture and national civilization of which he is an integral part. 2 1 Shashi Prabha Sharma, Basic Principles of Education, ed. 1 st , 2004. 2 Ibid.
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CHAPTER-VI
ANALYSIS, INTERPRETATION AND DISCUSSION ON
JUDICIAL TRENDS
6.0.0 INTRODUCTION
The new born infant is a helpless human being. He has neither friends
nor, enemies. He is not aware of the social customs and traditions. He is not
aware of realities of life. He is not even keen to achieve any ideal or value. But
as he grows older, he is influenced by the informal and formal agencies of
education. He develops his physical, mental and emotional self and social
feelings. By and by, he develops sense of responsibility like his elders. He
solves the problems of life successfully.1
Thus, education instills in the child a sense of maturity and
responsibility. Education bestows immense benefits upon a person. A well
educated person is known all over the region because he is able to meet the
conflicting challenges.
Education cultures the individual and helps him to fulfill his needs.
Education develops the individual like a flower which distributes its fragrance
all over the environment. Thus, education is a conducive process which
develops child’s individuality in all its aspects-physical, mental, emotional and
social.
With this all-around development, he becomes a responsible, dynamic,
resourceful and enterprising citizen of strong, good, moral character who uses
all his capacities to develop his own self, his society and his nation to the
highest extent by contributing his best to national honour, national glory,
national culture and national civilization of which he is an integral part.2
On one hand, education develops personality of an individual in all
fields and aspects making him intelligent, learned, bold, courageous and
possessing strong good character, on-the other hand, it contributes to growth
and development of society. It is only through education that moral ideals and
spiritual values, as aspiration of the national and its cultural heritage is
transferred from one generation to another for preservation, purification and
sublimation into higher and higher achievements.
With the growth and development of individual, the society also
develops to higher and higher levels of attainments. Thus, education is
essential for the growth and development of individual as well as society.
Therefore, there are few people who are not in some sense interested in
education. Parents, teachers, school governors, ministers of region, and
politicians, all have the word frequently on their lips, and all may be supposed
to use it with a more or less definite notion of its meaning.
Selection and administration of questionnaire and scores obtained are
of little value, unless these are properly analyzed and interpreted. This chapter
includes analysis of cases related to role of consumer protection laws in
education. The judicial trends drawn from analysis of cases have been also
discussed in this chapter. The chapter also includes the analysis and
interpretation of data and presentation of the obtained results related to the
awareness about consumer protection laws among students and teachers.
6.1.0 ANALYSIS OF CASES AND JUDICIAL TRENDS
Education has great importance in our society. The important question
which arises for considerations whether the educational institutions can be
made liable for deficiency in service or not?. The second important question is
127
whether a student is a ‘consumer’ or not? These two important aspects are to
be considered in detail in the light of various decisions.
There are two opposite views in this regard. According to one view,
there is no justification to bring educational institutions and the students within
the purview of the Consumer Protection Act. According to other view,
education has been recognized as a fundamental right. Education is closely
related to the future of the students. A heavy fee is charged from the students
for imparting education. Thus, educational institutions and the students must
be within the purview of the Act. It will be helpful in imparting better
education to the students and it will be also in the National interest, as the
future of the nation depends on good education also. The views of the different
Commissions have not been consistent in this regard. Sometimes, the reliefs
are granted by the District Forums or State Commission or National
Commission whereas sometimes the relief is denied. In APJ School v. M.K.,3
the school was compelled to refund all charges like fee and annual charges
except admission fee, when the parents got the admission of their child
cancelled well before teaching session and the seat was filled by a new
admission on similar charges. Retention of admission fee was sufficient to
compensate the school for expenses incurred in admission. Whereas in Saint
John Medical College v. Prof. V.V. Joshi,4 a contrary view was expressed. In
this case, it was held by the State Commission that after the start of the new
academic session, the demand of refund of fee, cannot be accepted. In this
case, the plea of the complainant was that he did not get the desired stream,
thus, he wanted to get the admission cancelled and was demanding refund of
3 1993 CCJ 423 Delhi. 4 1990(1) CPR 269.
128
fee. Sometimes, the results of the students are delayed by the Universities or
the educational board for a very long time. The results of the re-evaluation are
also delayed for a very long time. In Registrar, Bangalore University v.
Parida Ansari5 the results of re-evaluation of a candidate was delayed and the
candidate had to appear in the supplementary examination and ultimately he
passed both and an award of Rs. 5000/- was held to be just and proper. On the
other side, the M.P. State Commission held in Society for Civil Rights v.
Union of India,6 that consumer must be one who has hired the services for
consideration and to be a consumer the nexus of hiring of service must be
established. Payment of examination fee by the candidate for evaluation of the
answer books to the University does not mean that the candidate has hired the
services. Hire means payment by contract for the use of a thing or for personal
service. In Manisha Samal v. Sambalpur University.7 University which issued
an identical roll number to more than one examinee was held to be deficient in
services but no liability was imposed because the other candidate with the
same roll number did not appear and the apprehension of the complainant that
her marks might have gone to the benefit of the other candidate was not borne
out by the facts.
In Registrar, Evaluation, University of Karnataka v. Poornima G.
Bhadari & Ors,8 the National Commission has held as under:
“In the light of the decisions already rendered by us in Joint Secretary, Gujarat
Secondary Education Board v. B. Nithakkar, dated the 29th September, 1995
5 1993(2) CPR 345 Karnataka. 6 1986-95 Consumer 760 (NS). 7 (1992)1 CPR 215 NC. 8 First Appeal No. 245/92 and followed in K. Ravi v. V.C. Mysore University, (1994)1 CPR
894 Kant.
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and in some other similar cases decided earlier wherein we have consistently
taken the view that a University while valuing the answer papers or
undertaking the revaluation of answer papers or the re-checking of marks
awarded to a candidate at the instance of a candidate who had appeared for the
examination is not performing a service, which had been hired or availed of
for consideration and that no consumer dispute can, therefore, be said to arise
when a complaint made by the concerned candidate that the valuation,
revaluation or re-checking had not been properly done, the order of the State
Commission granting relief to such a candidate is clearly contrary to the
rulings of this Commission and it has necessarily to be set aside.”
In Registrar, University of Bombay v. Mumbai Grahak Panchayat,
Bombay,9 the National Commission has further held as under:
“We are clearly of the view that in carrying out its function of conducting the
examination, evaluating answer papers and publishing the results of candidates
the University was not performing any service for consideration and a
candidate who appeared for the examination cannot be regarded as a person
who had hired or availed of the service of the University for consideration.
The complainant was not therefore, a consumer entitled to seek any relief
under the Consumer Protection Act.”
In abovementioned cases, national commission did not treat a student a
consumer. However, in Tilak Raj of Chandigarh v. Haryana School Education
Board, Bhiwani,10 it was held by the State Commission that imparting of
education by the State clearly comes within the concept of service as defined
under clause (0) sub-section (1) of Section 2 of the Act. A more realistic views
9 1(1994)CPJ 146 (NC). 10 (1992)1 CPJ 76 Haryana.
130
taken in Ravinder Singh v. M.D.U. Rohtak,11 it was held by the National
Commission that the colleges which did not forward the examination form of
the students to the University is liable for negligence and deficiency of service
because the students were deprived of their right to appear in examination. The
National Commission ordered the college to pay Rs. 5000/- as compensation
to each student. The institution which takes the examination is supposed to
declare the result correctly. If there is some defect or incorrectness in the result
it will be treated as deficiency of service. In Registrar, University v. Pooja,12 it
was held that upon the basis of result declared by the University, a student is
liable to get admission in a higher class and becomes eligible for a service or a
training. If the result is not declared properly then student becomes entitled for
the relief. The ‘Student’ has been held to be a consumer in abovementioned
cases. Such type of complainant also came for decision before District
Consumer Forum, Rohtak, in which it was alleged that the University has
shown wrong marks in mark sheet and because of that future of the student
had been effected. The District Consumer Forum, awarded a compensation of
Rs. 1000/- to the complainant. An appeal was filed before State Commission
by the University on the grounds that the University is an autonomous body
and did not come within the scope of the Consumer Protection Act. The other
plea taken by the University was that on the receipt of the complaint in this
regard, the necessary correction was made by the University within 10 days,
thus caused no loss to the student concerned. The State Commission did not
accept the first plea. But only second plea was accepted. The State
Commission reduced the amount of compensation from Rs. 1000 to Rs. 500.
11 (1996)1 CPR 86. 12 (1998)2 CPJ 404.
131
The question again came for consideration before the National
Commission in a revision petition titled as Alex J. Rebello v. Vice Chancellor,
Bangalore University and Ors. Decided on 30-12-2002. The facts of the case
are that :
That the complainant’s son was a student of Engineering College in
Bangalore where after the writing of papers for the IIIrd Year, the University
did not declare the result of the child on the grounds that he was absent. On
representation for scrutiny he was awarded 7 and 8 marks respectively in the
papers of Transmission Distribution and HV Lab. Technology and ‘Pulse and
Digital’ Circuits. When revaluation was sought, the reply from the respondent
was that there was no change in the marks. The prayers in the complaint was
that opposite party be directed to transmit the answer sheets in respect of the
above mentioned two papers so that District Forum could verify the
correctness of the marks given, if need be, the papers be evaluated by foreign
Professors and in the case of any lapse on the part of the respondent, award a
compensation of Rs. 30,000/- The complainant had made the Chancellor, the
Vice Chancellor and the Registrar personally responsible for this deficiency.
The District Forum vide its order dated 21.8.1991 decided to proceed against
the Registrar only. After hearing the parties the District Forum dismissed the
complaint as not being maintainable in the light of principles laid down by the
National Commission that the complainant in such cases do not hire the
services of the respondent. An appeal filed by the petitioner before the State
Commission met the same fate on the same grounds. This revision petition
was filed by the petitioner before National Commission on 16.10.1997 which
was found to be defective on the ground that only one copy of the
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material/documents was filed. The petitioner/complainant appeared in person
on the date of hearing i.e. on 11.12.2002. The said defects even now were not
removed. Since, the petitioner was a senior citizen and had come all the way
from Bangalore, the commission went ahead with the proceedings and heard
him. The petitioner had come prepared with the written arguments, which
were also taken on record.
It was held that this fact cannot be denied that in the first instance result
of petitioner’s son was not declared as being absent but when after running
around, the result was declared, the child was given 7 and 8 marks in two
papers. While in similar circumstances the same District Forum awarded Rs.
5,000/- to the complainant, but petitioner’s complainant was dismissed as not
being maintainable. He had specifically made allegation against the
Chancellor, the Vice Chancellor and the Registrar so that awarded money
could be recovered from them as laid down by the Supreme Court in Lucknow
Development Authority v. M.K. Gupta. The District Forum erred in deleting
the Chancellor and the Vice Chancellor from the array of respondents.
According to petitioner he is a consumer as he had hired the services of the
University, when examination fee of Rs. 81/- were collected from him and
again when Rs. 200/- were collected from him and again when Rs. 200/- were
collected from him for evaluation, result of which was not supplied within a
reasonable time. The petition needs to be allowed and now he should be
awarded compensation of Rs. 1.5 lakhs and cost of Rs. 20,000/-. There is only
one point before us for determination whether the complainant is a ‘consumer’
within the meaning of its definition in Consumer Protection Act, 1986.
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The National Commission relied upon two cases Registrar, Evaluation,
University of Karnataka v. Poornima G. Bhadari & Ors. and Registrar
University of Bombay v. Mumbai Grahak Panchayat, Bombay,13 and found no
ground to interfere in the well reasoned orders of the State Commission and
upheld the orders passed by the District Forum and the petition was dismissed.
It was held by the National Commission that the students appearing in any
examination cannot be treated as a consumer and the University is not
performing any services while conducting examination, evaluating question
papers and publishing the result. The National Commission upheld the same
views in Sachida Nandsharma Sharma v. Chairman CBSE decided on 20-12-
2002. It was held that educational institutions are not rendering any service
while holding examination. An omission/commission regarding late
declaration of result cannot be termed as deficiency in service.
In a recent decision of the National Consumer Disputes Redressal
Commission, New Delhi in Ruchika Jain,14 it was held that consumer fora
have no jurisdiction to pass an interim order permitting a student to appear in
examination who is not eligible to appear according to prescribed cut off
marks. The complainant Ruchika Jain was admitted in BDS course against
management quota even though she had not obtained prescribed marks for
admission in that course. Later she was not permitted to appear in the
examination. She filed a complaint before the District Forum, Faridabad which
passed an interim order directing the university to allow the complainant to sit
in the examination which was to take place on the same day and the same was
13 Supra. 14 Deputy Registrar (Colleges) and Another v. Ruchika Jain and others, 2006 (3) CPR 18
Thus, the rulings in Sushmita Maharana,25 and Sekar26 are in conflict
with Ruchika Jain.27 Not only these but there are also other cases having
divergent views as to giving of admission etc.
There are ample propositions in case law to show that a student is a
‘consumer’ and education is ‘service’ under the Consumer Protection Act:
(a) A candidate who pays fees to a university for appearing in examination is a
consumer. Examination and publication of result is a service.28
(b) Failure to issue roll number in time is a deficiency in administrative aspect
relating to education service.29
(c) Though students of an educational institution paying fees are consumers
but consumers form, like civil courts, have no jurisdiction to declare a rule
in the prospectus on non-refund of fees as illegal.30
(d) For deficiency of service on the part of the examination hall
supervisor/invigilator who mistakenly did not allow a student to take
examination, the employer board is vicariously liable for compensation.31
(e) The imparting of education by an educational institution for a
consideration falls within the ambit of ‘service’ under the Consumer
Protection Act and if there is a deficiency in service or an unfair trade
25 Supra note 27. 26 Supra notes 26. 27 Supra note 18. 28 Manisha Samuel v. Sambalpur University, 1992 (1) CPR 215 (NC). 29 Controller of Examination, Himachal Pradesh University and Anr. v. Sanjay Kumar,
2003 (1) CPJ 273 (NC). 30 S. Venkata Pathy v. The Principal, Adhiyaman College of Engineering, 1993 (1) CPR
595 (Mad.) But see also Adhiyanam College v. S. Venkatapatty, 1995(2) CPR 544 (NC)
and Homoeopathic Medical College and Hospital, Chandigarh v.Gunita Virk, 1995(3)
CPR 467 (NC). 31 Chairman, Board of Examinations, Madras v. M. Abdul Kader, (1996)4 CTJ 966 (CP)
(NC).
138
practice, the institution shall be liable to compensate loss to the consumer
(student).32
However, there are case law on the contra showing that a student is neither a
consumer nor education a service:
(a) A candidate applying for a degree certificate is not a consumer.33
(b) Education as such does not come within the purview of (service) under the
Consumer Protection Act.34
(c) A university or board in conducting public examination, evaluating
answers papers, announcing the results there of and thereafter rechecking
of the marks of any candidate on application made by the concerned
candidate is not performing any service for hire as they were performing
their statutory duty while holding examinations.35
The holding of the National Commission in Ruchika Jain that the relationship
of teacher and student in an educational institution does not mean the hire of
service because a student is not such a consumer which is linked in any way
with the buyer of any economic goods and hiring of service cannot be linked
with education, teacher and student seems to be erroneous. Thus thee was total
confusion because of conflicting decisions.
The question was decided by the Supreme Court in Bihar School
Education Board v. Suresh Prasad Singh’s case which was decided on 4th
32 M. Ravindranath and other v. The Principal, Mercy College, Plakkad, 1986-2002
Consumer 5818 (NS). Sonal Matapurkar v. Sri S. Nijalingappa Institute of Dental
Service and another, 1997 33 Sri K. Ravi v. The Vice Chancellor, Mysore University, 1994 (1) CPR 894. But see N.
Sreedharan Nair’s case to the contrary ibid. 34 N. Taneja v. Calcutta District Forum, AIR 1992 Cal. 95. 35 The Registrar, University of Bombay v. Mumbai Grahak Panchayat, Bombay, 1994(2)