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University of Jammu and ors. Vs. Brinder Nath and ors. - Court Judgment

LegalCrystal Citation
SubjectConsumer
CourtJammu and Kashmir High Court
Decided On
Case NumberCIMA No. 60/95
Judge
Reported inAIR2000J& K93
ActsJammu and Kashmir Consumer Protection Act, 1987 - Sections 2 and 15; ;Jammu and Kashmir Universities Act, 1969 - Section 4
AppellantUniversity of Jammu and ors.
RespondentBrinder Nath and ors.
Appellant Advocate D.S. Thakur, Adv.
Respondent Advocate Anil Sethi and; D.S. Chauhan, Advs.
DispositionAppeal allowed
Cases ReferredRavi v. Mysore University
Excerpt:
- .....narottam thakkar, (1994) 1 cpj 187, wherein it was held that in conducting the secondary school board examination, evaluating answer papers, announcing a re-checking of the marks of any candidate on application made by the concerned candidate, the board is not performing any service for hire and there is no arrangement of hiring of service involved in such a situation as is contemplated by section 2(1)(o) of the central act. it was held that the complainant was not a consumer. same view was expressed by the national commission in registrar, university of bombay v. mumbai grahak panchayat, bombay (1994) cpj 146. it was observed that in the matters enumerated above, the university and boards did not render any service. it was further observed that candidate who appears in the.....
Judgment:

Doabia, J.

1. The University of Jammu is aggrieved against an order passed by the J. & K. State Consumers Redressal Commission (hereinafter referred to as the Commission). The order has been passed under the Jammu and Kashmir Consumer Protection Act, 1987 (hereinafter referred to as the Act). The Commission has ordered payment of a sum of Rs. 2,00,000/- by way of compensation to the respondent No. 1.

2. The circumstances under which the complaint to be filed before the Commission be noticed.

Mr. Brinder Nath-respondent No. 1 figured as a complainant before the Commission. His plea was that he was a regular student of M. A. M. College, Jammu in the academic year 1982-83. On account of unavoidable circumstances he stated that he was unable to appear in the examination. He was short of lectures also. He was again admitted in the college. The shortage of lectures was completed by him. His admission form was said to have been forwarded to the University with a view to enable him to take part in the process of examination for the Session 1983-84. It is stated that a certificate to the effect that the respondent No. 1 had completed his lecturers was issued in his favour. It is stated that the respondent No. 1 was a regular student of the college. The college authorities it is stated were under an obligation to give this information and send his complete case to the University authorities.

3. The respondent No. 1 took part in the examination. When his result was declared he was among the unsuccessful candidates. Reason for his being declared unsucessful was that he fell short of few marks. On coming to know of his result the petitioner submitted a representation to the University authorities and also to the Principal of the College. In para 6 of the complaint, it is submitted that the Principal of the M. A. M. College Jammu wrote several letters to the University authorities wherein he (principal) clearly admitted that it was the fault of the college authorities that the internal assessment could not be sent to the University authorities in time and the complainant was not at fault. It was stated that the benefits of internal assessment was required to be given to the complainant and he should be declared successful in the examination.

4. The grievance of the respondent No. 1 is that the University authorities did not take any action in the matter for almost 5 years. It is stated that even though under the University Regulation 6, his case was required to be settled within a period of six months but the University slept over the matter for a long period as indicated above. The respondent No. 1 is said to have made many complaints to the University authorities. The last representation is said to have been submitted on 12th September, 1992. As there was failure on part of the University authorities to take notice of the internal assessment made by the Principal of the College and as these marks were not included, he was wrongly declared as unsuccessful. It was in these premises the complainant respondent No. 1 claimed a sum of Rs. 9.5 lakhs as compensation.

5. That respondent No. 1-complainant did not implead University of Jammu as a respondent in the complaint. The complaint was filed against the Vice Chancellor and the Registrar and the Controller of Examination of the University. These three officers figured as respondents Nos. 1, 2 and 3 in the complaint. The principal of the College figured as respondent No. 4.

6. Objections were preferred on behalf of the respondents. Preliminary objections were taken. These were to the effect that the complaint has been filed after a delay of 10 years. It was also specifically pleaded that the University of Jammu being a Statutory Authority has to be arrayed as respondent in its Corporate name. This having not been done, it was urged that complaint be dismissed.

7. On merits it was stated that the complainant appeared in the examination in the year 1984 as a private student. It was pleaded that in case the respondent-complainant wanted to have the benefit of internal assessment then he was supposed to comply with Statute 20 of the University Calendar. He had to remain on the Rolls of the College as a regular student and should have attended 2/3rd of the delivered lectures in the college. It is stated that the complainant appeared as a private candidate. With the result, in terms of Statute 10 of the Calendar, he was not entitled to any internal assessment. Thus the stand of the complainant that he was a regular student was denied. It was in these premises stated that the complainant was not entitled to the benefit of internal assessment. The fact that the Principal of the College made any recommendation in favour of the complainant was also denied. The respondent No. 1 complainant it was pleaded be put to strict proof vis/-a-vis this matter. It was further pleaded that the University authorities had given reply to all the communications received by it. Copies of these were placed on the record as annexures RA & RB. It was accordingly stated that result of the respondent-complainant was rightly declared and he was rightly declared as unsuccessful candidate.

8. As reliance is being placed by the University on Statute 10 and Statute 20, these be also noticed at this stage. These read as under :--

'Statute 10. There shall not be any internal assessment for private candidates and the marks shall be assessed in their case in terms of the University examination out of of the total marks allotted for the practical paper. The examiner shall award marks to regular and private candidates out of the same maximum and afterwards the total marks shall be increased proportionately by the tabulars in the case of private candidates in lieu of Internal assessment.'

'Statute 20. The Principal of a College is empowered to condone shortages in each subject up to five lectures in theory, three in practicals and five in NCC parades in the case of Part-I examination and up to ten lectures in theory and five in practicals in each subject in the case of final examination if two thirds of periods assigned to practical work in science subjects or Home Science exceed the minimum irreducible number of practical required under this Statutes i.e. 20 in the case of Part-I examination and 50 in the case of final examination. Students, whose deficiency is not condonable/is not condoned by the Principal under the Authority vested in him/her by this statutes shall not be permitted to appear in the annual examination but shall be permitted to appear in the same year at. the Supplementary bi-annual examination. Provided that they remain on the rolls of the college as regular students and attend two thirds of lectures delivered from the date of the next classification or the date on which they have joined, whichever is earlier, up to the commencement of the supplementary/bi-annual examination : Provided further that the number of lectures they attended is not less than the number by which they fell short in the subject or subjects. Provided also that no condonation, whatsoever shall be allowed for deficiency in lectures for admission to the supplementary/bi-annual examination.

Any candidate who participates in inter college or inter-universities sports Tournament or NCC Course/Camp, may for the purpose of condoning deficiency in attendance incurred by him/her on account of such participation be treated as present on all the working days of his absence on such account.'

9. The Commission as indicated above has granted the requisite relief to the respondent No. 1 complainant. The University has been directed to pay a sum of Rs. 2,00,000/- to him. For giving the relief, following findings have been recorded.

(i) that the respondent No. 1 had been clammering and continuing his efforts to persuade to take the internal assessment into consideration and declare him as having passed.

(ii) that a representation was made in the year 1992 but no steps were taken with a view to redress his grievances.

(iii) that no relief was granted by the University and he had been continuously representing to the authorities. This was taken to be case of continuing cause of action.

(iv) that the University had suppressed documents. This suppression was found to be a relevant factor for grant of relief to the complainant.

(v) that the complainant was a late-college-student and the stand taken by the University that he was a private candidate was held to be not substantiated.

(vi) that the complainant could not be both a late college student and a private candidate.

(vii) that the complainant fell within the definition of Consumer and as the University was found to be deficient in the matter of rendering service, it was observed that the Commission had the jurisdiction. For this reliance was placed on a decision given by Haryana State Consumer Disputes Redressal Commission Chandigarh reported as Tilak Raj v. Board of School Education (1992) 1 CPJ 76.

10. After recording aforementioned findings, the Commission concluded that for no fault of his, the complainant was unable to complete his course of studies, his future career was affected and, therefore, he was required to be compensated.

11. The learned counsel for the University submits that :

(i) If proceedings are not in the name of the corporate body then these proceedings cannot be taken to be for and on behalf of the corporate body. That as the University of Jammu was not arrayed as a respondent in its corporate name, therefore, it cannot be bound by the verdict given by the Commission. The learned counsel for the University places reliance on Section 4 of the Kashmir and Jammu University Act. This section is being quoted below :

'4. Incorporation -- The University of Kashmir and the University of Jammu shall be corporate bodies known by the names of the 'University of Kashmir' and the University of Jammu' each having perpetual succession and a common seal with power to acquire and hold property, moveable and immovable to transfer the same to contract and to do all other things necessary for the purpose of its constitution and may sue or be sued by the corporate name as aforesaid.' (ii) that the complainant was belated.

(iii) that the complainant was not a consumer as University of Jammu does not render any service when it conducts examination.

(iv) that on merits no case is made out.

12. A perusal of the Section 4 of the Kashmir & Jammu University Act, 1969 makes it apparent that the University being a corporate body was supposed to be sued in its corporate name.

13. It is settled that where a corporate body does not sue or is not sued in its corporate name, then the proceedings so initiated would not be in conformity with law. This aspect of the matter was directly considered by this Court in the case reported as 1978 (NOC) 114 (sic).

This was a litigation preferred by the University. This was not initialed in the name of the University. It was held that this litigation is to fail on this short ground alone. The opinion which was expressed by this Court in the case referred to above, would be found reflected in some other judicial pronouncements also. Thus in Bawa Bhagwan Dass v. Municipal Committee, Ropar, AIR 1943 Lahore 318, an appeal preferred by the Municipal Committee without there being a resolution on its part was held to be not properly filed. Similar view was expressed by the Punjab and Haryana High Court in Municipal Committee, Ludhiana v. Surinder Kumar, 1970 Cur LJ 631. The Punjab Agricultural University v. Walia Brothers (1969) 71 Pun LR 257 is another decision for the same proposition. Proceedings initiated without valid resolution on the part of corporate body were held to be bad. In the present case, the position ts in reverse. The University is not sued in its corporate name. The objection in this regard was taken. No step was taken to take remedial measures. As such, the appellant University is right in its submission that the procedings initiated against it were not properly initiated.

14. So far as the question of delay is concerned that has also material bearing. The petitioner was declared having failed in the examination which was conducted in the Session 1983-84. The petitioner waited for almost 10 years, before he came to the Commission. The plea taken by him was that he was persuing his remedy before the University authorities. It be seen that the period of limitation would begin from the date when the result was declared. Commission was approached belatedly.

15. For this reference be made to the decision of the Supreme Court in the case of State of Madhya Pradesh v. Bhaia Lal, AIR 1964 SC 1005. In the above case, the question arose as to what should be the relevant period for the purpose of determining the delay and laches. These were proceedings under Article 226 of the Constitution of India. The Supreme Court of India was of the opinion that where period of limitation has not been mentioned that whatever is the period fixed for preferring suits under ordinary law of limitation should be taken a reasonable guide. If the proceedings are initiated beyond the outer limits fixed under law of limitation, then these can be treated as suffering from delay and laches. This period would apply to this case also. Proceedings were initiated after more than ten years. The view expressed by the Commission that there is a continuing cause of action is not a proper appreciation of the facts.

16. Was the appellant-University rendering any service to the respondent No. 1. This question be examined. Before doing so the definition of consumer, deficiency and service as containing in Section 2(d)(g) & (o) of the J. & K. Consumer Protection Act, 1987 be examined. These read as under :

(d) 'Consumer' means any person who;--

(i) buys any goods for a consideration which has been paid or promised or partly paid and partly promised or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised partly paid or partly promised or under any system of deferred payment when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose; or

(ii) hires any services for a consideration which has been paid or promised or partly paid and partly promised or under any system of deferred payment and includes any beneficiary of such services other than the person who hires the services for consideration paid or promised or partly paid and partly promised or under any system of deferred payment when such services are availed of with the approval of the first mentioned person.

(g) 'deficiency' means any fault imperfection shortcoming or inadequacy in the quality nature and manner of performance which is required to be maintained by or under any law for the time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any services.

(o) 'Service' means service of any description which is made available to potential users and includes the provision of facilities in connection with banking financing insurance transport, processing, supply of electrical or other energy board or lodging or both entertainment amusement or the purveying a news or other information under a contract of personal service.

17. The question as to whether the Universities and Boards in conducting public examination, evaluating answer papers, announcing the results thereof and thereafter conducting re-checking of the marks of any candidate on application made by the concerned candidate perform any service for hire be examined. The question has been considered directly by the National Consumer Disputes Redressal Commission, New Delhi and also by the State Commissions. The question came up for consideration before National Consumer Disputes Redressal Commission in the case Chairman, Board of Examination, Madras v. Mohideen Abdul Kader, (1997) II CPJ 49 (NC). It reiterated its earlier view in the case of Joint Secretary, Gujarat Secondary Education Board v. Bharat Narottam Thakkar, (1994) 1 CPJ 187, wherein it was held that in conducting the Secondary School Board Examination, evaluating answer papers, announcing a re-checking of the marks of any candidate on application made by the concerned candidate, the Board is not performing any service for hire and there is no arrangement of hiring of service involved in such a situation as is contemplated by Section 2(1)(O) of the Central Act. It was held that the complainant was not a consumer. Same view was expressed by the National Commission in Registrar, University of Bombay v. Mumbai Grahak Panchayat, Bombay (1994) CPJ 146. It was observed that in the matters enumerated above, the University and Boards did not render any service. It was further observed that candidate who appears in the examination cannot be regarded as a person who had hired or availed of the services of the University or Board for consideration.

18. The view expressed by the National Commission in Registrar University of Bombay (Supra) has been followed by Maharashtra, Andhra Pradesh, Kerala and Delhi State Commissions in Maharashtra State Board of Secondary Education v. Chairman, Grahak Jagrutisangh, (1994) II CPJ 1, Secretary, Board of Intermediate Education v. M. Suresh (1995) II CPJ 167 (AP); P.M. Naushad v. University of Kerala (1995) II CPJ 334 (Ker) and Ruchika Bhartia v. C. B. S. E. (1995) II CPJ 436.

19. Complainant received results after the delay of two years. Relying upon the decision given by the National Consumer Disputes Redressal Commission. Maharashtra State Consumer Disputes Redressal Commission, Bombay in The Registrar v. Mrs. Puja Pravin Wagh, (1998) II CPJ 405, came to the conclusion that complainant was not the consumer. Similar opinion was expressed by the Andhra Pradesh State Consumer Disputes Redressal Commission, Hyderabad in case reported as Registrar, Alagappa University v. M. Venkata Ramana (1998) II CPJ 538. What was said in para 6 is reproduced below :

'6. In Registrar University of Bombay v. Mumbai Grahak Panchayat, Bombay (1994) I CPJ 146 (NC): 1986-95 Consumer 294 (NS) the National Commission held that it had 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 could therefore, be said to arise when a complaint made by the concerned candidate that the valuation, revaluation or rechecking 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. The National Commission referred to its earlier decision in Joint Secretary, Gujarat Secondary Education Board v. Bharat Narottam Thakkar, (1994) I CPJ 187 (NC) which was a case of Board of Secondary Education. The National Commission reiterated the same in Chairman Board of Examinations, Madras v. Mohideen Abdul Kader, 1986-95 Consumer 1911 (NS).'

20. Himachal Pradesh State Consumer Disputes Redressal Commission, Shimla in case reported as Secretary, Board of School, Kangra v. Meena Tempta (1998) III CPJ 591 has followed the view expressed in Chairman, Board of Examination, Madras v. Mohideen Abdul Kader (1997) II CPJ 49 and observed that where the result is not declared by the Board of School Education, complainant does not become a consumer, and is not entitled to any relief. Even where private institution conducts examination even that institute would not be deemed to be rendering any service. Such was the view expressed by Punjab State Consumer Disputes Redressal Commission, Chandigarh in case reported as Ravindra Public School v. Ms. Gunjan Gupta (1998) III CPJ 703. Haryana State Consumer Disputes Redressal Commission, Chandigarh in case reported as Board of School Education v. Bijender (1998) 1 CPJ 592 has held that candidate appearing in the examination did not hire service of authorities of Board of School Education. In para 5 it was observed as under :

'It has by now been settled that the candidates after furnishing their applications and fees etc. for seeking permission to appear in various examinations as also lateron revaluation of their scripts and the marks awarded to them do not hire the services of the authorities of the Board of School Education of any other examining bodies and Universities for consideration; hence they do not fall within the definition of consumer.'

21. Thus the Haryana State Commission in the case of Board of School Education v. Bijender (1998) I CPJ 592 (supra) has expressed a view contrary to that it expressed in the decision which was relied by the Commission in the order under appeal i.e. Birender Nath v. Vice-Chancellor, University of Jammu (1995) III CPJ 464 (J. & K.) Calcutta High Court has expressed similar opinion in N. Taneja v. Calcutta District Consumer Forum 1992 (9) CLA 17 Calcutta.

22. The opinions expressed by the National Commission and State Commission are based on sound reasoning. Even otherwise on the plain reading of the sub-sections of the Act of 1987 quoted above it can be said that the function of conducting examination evaluating answer papers, publishing results etc. etc. is not covered by the definition of 'service' as occurring in Section 2(o) of the Act of 1987. The respondent-complainant was not a consumer and therefore, the consumer had no jurisdiction to grant relief in this matter.

23. The National Commission in its decision in Registrar Evaluation University of Karnataka v. Poonima G. Bhandari First Appeal No. 245/92 and followed in K, Ravi v. Mysore University (1994) 1 CPR 84 observed in carrying its function of conducting examinations, evaluating answer papers and publishing results, the University does perform any service and a candidate cannot be regarded as a person who had hired or availed of the service of the University for consideration.

24. The merits of the controversy may also be examined.

25. His the case of the respondent No. 1 that the internal assessment of the respondent No. 1 was not sent to the University. This is so stated in para 6 of the complaint. The question as to whether the petitioner appeared as a private candidate or as a late college student was again a question of fact which could have been properly decided only after perusing the records of the College. The complainant made no effort to prove this basic issue. The record, if any, of the College were not available with the State Commission. No effort was made with a view to get the same summoned. It was only after perusing these records some finding could be recorded one way or the other. Any findings recorded by the Commission when these records were not available would be a finding based on no evidence. To repeat finding has been recorded without going into the records of the College. The question as to whether the complainant was a private candidate or he attended the College as regular student as indicated above could have been done into after examining the record of the college, This having not been done, the finding recorded that the University was remiss in its obligation cannot be sustained. This is more so when the clear stand taken by the complainant himself was that the records were not sent by the Principal to the University Authorities at the first instance.

26. In view of the above, we are of the opinion that:

(i) the appellant University was not sued in its corporate name;

(ii) the petition was highly belated;

(iii) the act of the University and Boards holding public examinations, evaluating answer papers and announcing results thereof does not amount to rendering service for hire. There is no arrangement of hiring. A candidate who appears for examination cannotbe said to be a person who had hired or availed the service of the University or Board which conducts the examination;

(iv) that even on merits, no case has been made out.

27. The appeal is accordingly allowed. The decision given by the Commission which decision has since been reported as (1995) III CPJ 464 is set aside.

28. In view of the fact that the appeal is allowed, the appellant-University is at liberty to withdraw the amount which was deposited by it in pursuance of the directions given by this Court.


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