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2006 SCC OnLine NCDRC 43 : [2006] NCDRC 43 : (2006) 3 CPJ 343 (NC) :
(2006) 3 CPR 18 (NC)

National Consumer Disputes Redressal Commission New Delhi

(BEFORE M.B. SHAH, PRESIDENT AND RAJYALASHMI RAO, MEMBER)

Revision Petition No. 1121 of 2005 (From the order dated 17.3.2005 in R.P. No.
156 of 2004 of the State Commission, Haryana)
Deputy Registrar (Colleges) & Anr. … Petitioner;
Versus
Ruchika Jain & Ors. … Respondent.
Revision Petition No. 1122 of 2005 (From the order dated 17.3.2005 in R.P. No.
157 of 2004 of the State Commission, Haryana)
Deputy Registrar (Colleges) & Anr. … Petitioner;
Versus
Ruchika Jain & Ors. … Respondent.
Revision Petition No. 1123 of 2005 (From the order dated 17.3.2005 in R.P. No.
189 of 2004 of the State Commission, Haryana)
Deputy Registrar (Colleges) & Anr. … Petitioner;
Versus
Ruchika Jain & Ors. … Respondent.
Revision Petition No. 2140 of 2005 (From the order dated 30.5.2005 in Appeal No.
743 of 2004 of the State Commission, Haryana)
Deputy Registrar (Colleges) & Anr. … Petitioner;
Versus
Ruchika Jain & Ors. … Respondent.
Revision Petition No. 614 of 2006 (From the order dated 7.9.05 in Appeal No. 743
of 2005 of the State Commission, Haryana)
1. Deputy Registrar (Colleges) Maharshi Dayanand University
Rohtak, Haryana;
2. Controller of Exams Maharshi Dayanand University Rohtak,
Haryana … Petitioners;
Versus
1. Ruchika Jain D/o Shri M.P. Jain Resident of D.E.-100 Tagore
Garden New Delhi - 110027;
2. The Principal Sudha Rastogi Dental Sciences and Research,
Khehri Modh Village Bhopani Faridabad, Haryana;
3. Centre Superintendent of Exams of B.D.S. Sudha Rastogi Dental
Sciences and Research, Khehri Modh Village Bhopani Faridabad,
Haryana … Respondent;
And
Revision Petition No. 1933-1934 of 2005 (From the order dated 6.4.2005 in R.P.
No. 203/03 & R.P. No. 105/04 of the State Commission, Haryana)
Maharshi Dayanand University, Rohtak Haryana, through its
Registrar. … Petitioner;
Versus
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Parul Midha … Respondent.

Revision Petition No. 1121 of 2005 (From the order dated 17.3.2005 in R.P. No.
156 of 2004 of the State Commission, Haryana), Revision Petition No. 1122 of
2005 (From the order dated 17.3.2005 in R.P. No. 157 of 2004 of the State
Commission, Haryana), Revision Petition No. 1123 of 2005 (From the order dated
17.3.2005 in R.P. No. 189 of 2004 of the State Commission, Haryana), Revision
Petition No. 2140 of 2005 (From the order dated 30.5.2005 in Appeal No. 743 of
2004 of the State Commission, Haryana), Revision Petition No. 614 of 2006 (From
the order dated 7.9.05 in Appeal No. 743 of 2005 of the State Commission,
Haryana) and Revision Petition No. 1933-1934 of 2005 (From the order dated
6.4.2005 in R.P. No. 203/03 & R.P. No. 105/04 of the State Commission, Haryana)
Decided on July 7, 2006
For the Petitioners: Mr. Nidhesh Gupta, In all the Petitions Advocate.
For the respondents in: Nemo All the petitions
ORDER
M.B. SHAH, J. PRESIDENT.
I. At the outset, we would make it clear that on several occasions the Apex Court has
deprecated the practice of permitting the students to pursue their studies and/or to
appear in the examination under the interim orders (fiat as observed by the Apex
Court) passed in the petitions which were filed before the High Court/Courts. If the
High Court is not permitted to pass such orders, it is to be held without any hesitation
or reservation that Consumer Fora have no jurisdiction to pass such orders.
Hence, 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 Fora. That is not the function of the Consumer Fora and, hence,
granting of such interim orders would amount to misconduct.
II. Facts:
(a) Revision Petition No. 1121 of 2005:
Undisputedly, the Complainant, Ruchika Jain, was admitted against management
quota even though she has not obtained requisite marks in Physics as per the rules
prescribed for getting admission to BDS Course. As she was not permitted to appear in
the examination of BDS course which was to be held on 2nd August, 2004, she filed
complaint No. 536 of 2004 on 2nd August, 2004 before the District Consumer
Disputes Redressal Forum, Faridabad with a prayer that she might be permitted to
appear in the examination which was to be held on the same day.
Surprisingly, on the same date, the District Forum, Faridabad, Haryana, passed an
order directing the University to allow the Complainant to sit in the examination which
was to take place on the same date.
The District Forum, inter alia, observed:
“Without going into the merit of the case, the Forum is of the opinion that at this
stage if any controversy is tried to resolve in between the parties, the same will
take more time and the future of the Complainant who has to appear in BDS exam
would be spoiled ultimately. The Respondents are, therefore, ordered to allow the
Complainant to sit in the examination of BDS which have to take place today itself.
The Respondents are, therefore, ordered to issue the regular roll number to the
Complainant for appearing in BDS exam which are to be conducted by the
Respondent and in case regular roll number issued to the Complainant. Copy of this
order be given to the Complainant ‘Dasti’. The court fee has not been placed on the
file through challan so far. The exemption is granted considering the matter is of an
urgent nature for today.”
(b). Revision Petition No. 1122 of 2005:
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Thereafter, on 4.10.2004, without going into the merits of the case, by interim
order the District Forum directed grant of provisional admission to the next class and
the University was directed to declare the result within 7 days from the date of the
order, in case she was found eligible as per the result to be declared by the
Respondent, by making it clear that the impugned order passed by it should not be
deemed as impression of the final order of the Forum.
(c). Revision Petition No. 1123 of 2005:
Again, the District Forum, by order dated 21.12.2004 observed that without going
into the merits of the application, the Complainant should be permitted to re-appear in
the examination of the subject ‘Anatomy’ which was to be conducted by the Petitioner
on 27.12.2004 and the operation of the cancellation letter sent by the University was
stayed and it was ordered that she be treated as a regular student of BDS, even
though the validity of cancellation letter still to be decided.
(d). Against those interim orders, the Petitioner, had preferred Revision Petition Nos.
156/04, 157/04 and 189/04 before the State Commission, Haryana. Surprisingly, on
17th March, 2005, the State Commission dismissed the three Revision Petitions filed by
the University challenging the interim and arbitrary orders passed by the District
Forum, by only observing that there was no ambiguity in the impugned directions
issued by the District Forum.
Hence, the aforesaid three Revision Petitions.
III. Law on such interim orders:
Now, we would refer to the law settled by the Apex Court in various judgments to
the effect that such interim orders are detrimental to education and its efficient
management. As a matter of course, such interim orders should not be passed, as
they are aberrations and it is subversive of academic discipline.
In Regional Officer, CBSE v. Sheena Pethambaran, (2003) 7 SCC 719, at page 725.
the Supreme Court has observed”
“6. This Court has on several occasions earlier deprecated the practice of permitting
the students to pursue 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. It results in very awkward and difficult situations.
Rules stare straight into the face of the plea of sympathy and concessions, against
the legal provisions. …..”
In the case of C.B.S.E. v. P. Sunil Kumar - (1998) 5 SCC 377, the institutions
whose students were permitted to undertake the examination of the Central Board of
Secondary Education were not affiliated to the Board, hence the students were not
entitled to appear in the examination. They were, however, allowed to appear in the
examination under the interim orders granted by the High Court in contravention of
the rules and regulations of the Board. The High Court while considering the matter
sympathetically had not interfered. In that context the Supreme Court observed:
“4. ……“But to permit students of an unaffiliated institution to appear at the
examination conducted by the Board under orders of the Court and then to compel
the Board to issue certificates in favour of those who have undertaken examination
would tantamount to subversion of law and this Court will not be justified to
sustain the orders issued by the High Court on misplaced sympathy in favour of the
students.”
In the case of Guru Nanak Dev University v. Parminder Kr. Bansal — (1993) 4 SCC
401 the Supreme Court observed that such interim order is subversive of academic
discipline. The relevant observations are as under:
“We are afraid that this kind of administration of interlocutory remedies, more
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guided by sympathy quite often wholly misplaced, does no service to

anyone. From the series of orders that keep coming before us in academic
matters, we find that loose, ill-conceived sympathy masquerades as
interlocutory justice exposing judicial discretion to the criticism of
degenerating into private benevolence. This is subversive of academic
discipline, or whatever is left of it, leading to serious impasse in academic life.
Admissions cannot be ordered without regard to the eligibility of the candidates.
……….. The courts should not embarrass academic authorities by themselves taking
over their functions.”
Yet in another case i.e. in the case of A.P. Christians Medical Educational Society v.
Govt. of A.P. (1986) 2 SCC 667 the Supreme Court held that:
“10. We cannot by our fiat direct the University to disobey the statute to which it
owes its existence and the regulations made by the University itself. We cannot
imagine anything more destructive of the rule of law than a direction by the court to
disobey the laws.”
The above-referred matters relate to the admission and examination of B.D.S. or MBBS
courses.
In the case of State of Tamil Nadu v. St. Joseph Teacher's Training Institute (1991)
3 SCC 87 the Supreme Court observed that the direction of admitting the students of
unauthorised educational institutions and permitting them to appear at the
examination has been looked on with disfavour and the students of unrecognised
institutions who are not legally entitled to appear at the examination conducted by the
Educational Department of the Government cannot be allowed to sit at the
examination and the High Court committed an error in granting permission to such
students to appear at the public examination.
In the case of Central Board of Secondary Education v. Nikhil Gulati (1998) 3 SCC
5, the Apex Court deprecated the practice followed by the High Court to issue direction
and also observed that such aberrations should not be treated as a precedent in
future.
In Krishna Priya Ganguly v. University of Lucknow - (1984) 1 SCC 307, the
Supreme Court observed:
“3. …… whenever a writ petition is filed provisional admission should not be
given as a matter of course on the petition being admitted unless the court is
fully satisfied that the petitioner has a cast-iron case which is bound to succeed or
the error is so gross or apparent that no other conclusion is possible.”
In State of Maharashtra v. Vikas Sahebrao Roundale - (1992) 4 SCC 435, it was
held that the students of unrecognized and unauthorized educational institutions could
not have been permitted by the High Court on a writ petition being filed to appear in
the examination and to be accommodated in recognized institutions. The Court
observed:
12. “Slackening the standard and judicial fiat to control the mode of education and
examining system are detrimental to the efficient management of the education.”
In view of the aforesaid settled law, the Revision Petition are allowed. The
impugned orders dated 2.8.2004, 4.10.2004, 21.12.2004 passed by the District Forum
which are confirmed by the State Commission in Revision Petition No. 156 of 2004,
157 of 2004 and 189 of 2004 are set aside by holding that those orders are on the
face of it illegal and arbitrary. Revision Petitions are disposed of accordingly. There
shall be no order as to costs.
IV. Revision Petition No. 2140/2005 & Revision Petition No. 614/2006
Firstly, the District Forum on 29th March, 2005 allowed the complaint No. 536/04 by
holing that a sympathetic view was needed in the matter, particularly, when the
Complainant is a woman who has a long future before her. The Petitioners were
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directed to treat the Complainant as a regular student of the B.D.S.; they were also
directed to pay a compensation of Rs. 50,000/- and costs of Rs. 5,000/- on account of
litigation expenses.
That order was challenged by the Petitioners before the State Commission by filing
appeal No. 743/05. Again, by order dated 30th May, 2005, the State Commission,
Haryana, observed that no ground was made out for granting stay, hence the
application for interim relief was rejected. That order is challenged by the Petitioner by
filing Revision Petition No. 2140 of 2005 and operation of that order was stayed.
Thereafter, the appeal was heard on merits by the State Commission and the State
Commission negatived the contention of the Petitioner — University that in such
circumstances Complainant was not a consumer within the meaning of the Consumer
Protection Act. The State Commission held that the ‘Complainant” could be held to be
a ‘consumer’ as she has hired services of the University for consideration. For this, the
State Commission placed reliance upon the decision of the National Commission in the
case of Bhupesh Khurana v. Vishwa Budha Parishad, 2001 JRC 240 wherein it was held
that imparting of education by an educational institution for consideration falls with
the ambit of “service” as defined in the Consumer Protection Act. Fees are paid for
services to be rendered by way of imparting education by the educational institutions.
If there is no rendering of service, question of payment of fee would not arise. The
complainants had hired the services of the respondents for consideration so they are
consumers as defined in the Consumer Protection Act. In that case reliance was placed
upon the observation of the Apex Court in Bangalore Bangalore Water Supply and
Sewerage Board v. A. Rajappa ((1978) 2 SCC 213 : AIR 1978 SC 548 at page 583):
“In the case of the University or an educational institution, the nature of activity is,
exhypothesis, education which is a service to the community. Ergo, the University is
an industry”.
Hence, the Commission held that imparting of education by an educational institution
for consideration falls within the ambit of ‘Service’ as defined in the Consumer
Protection Act. Fees are paid for services to be rendered by way of imparting education
by the educational Institutions. If there is no rendering of service, question of
payment of fee would not arise. The Complainants had hired the services of the
Respondent for consideration so they are consumers as defined in the Consumer
Protection Act.
Thereafter, the State Commission discussed the eligibility condition for seeking
admission to BDS course for the session 2003-2004, which is as under:
“a) Senior School Certificate Examination (10 + 2) of Board of School Education,
Haryana or an examination recognized as equivalent thereto with at least 50%
marks in English and 50% marks in Physics, Chemistry and Biology taken
together in qualifying examination”.
On the basis of the said condition, the State Commission dismissed the complaint
on the ground that the Complainant has not fulfilled the eligibility criteria laid down in
the prospectus provided for the admission to the BDS course for the session 2003-
2004. The State Commission arrived at the conclusion that certificate issued by the
CBSE dated 30th May, 2003 reveals that Complainant has been declared successful in
Senior Secondary School examination held in the year 2003, but the subject physics is
not mentioned which indicates that she has failed in the said subject.
Against the finding recorded by the State Commission that the Complainant was a
consumer, this Revision Petition is filed.
Findings:
A. Whether rendering of education can be held as service for consideration? This
question is to be answered by deciding two parts, namely:
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(i) Whether performance of statutory duties by a University or College in laying

down criteria/rules/regulations for conducting examinations, eligibility criteria
for permitting the student to appear in the examination or declaration of the
results of a student who appeared in the examination and such other
activities, can be considered to be rendering of service for fees?
AND
(II) Secondly, whether giving of admissions to the students in a
school/college/institution/University by recovering fees and in such cases if
there is any dispute with regard to the validity of such admission or illegality,
irregularity committed by such institution in giving admissions, on the part of
the school/college/institution/University can be considered to be rendering of
service?
B. The aforesaid questions are to be decided in the context of definition of the
words ‘consumer’, ‘service’ and ‘deficiency’ under the Consumer Protection Act,
1986.
Under the Consumer Protection Act, 1986, the word ‘consumer’, is inter alia,
defined under Section (2)1)(d)(ii) to mean a person who hires or avails of any service
for consideration which has been paid or partly paid and partly promised, etc.
Thereafter, Sec. 2(1)(o) defines the meaning of the word ‘service’ to mean a service
of any description which is made available to potential users.
The next relevant definition is meaning of the word ‘deficiency’ as defined in Sec. 2
(1)(g), which 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 service’.
The aforesaid expressions are in wide terms and are also interpreted in the same
way so as to render justice to the consumers.
(I)Performance of Statutory Duties by a University or College:
Undisputedly, a University or College is required to carry out number of activities for
its administration and such activities are severable from its activity of imparting
education by recovering fees. The recovery of fees for granting admission is an
accepted reality. For this purpose, we would refer to a few leading judgments on this
aspect:
In the case of Unni Krishnan, J.P. v. State of Andhra Pradesh — (1993) 1 SCC 645
while interpreting Article 19(1)(g) of the Constitution, which provides that citizens
have right “to practice any profession, or to carry on any occupation, trade or
business” observed (pr. 196, 197 and 204) thus:
“196. …… The cost of education may vary, even within the same faculty, from
institution to institution. The facilities provided, equipment, infrastructure, standard
and quality of education obtaining may vary from institution to institution. The
court cannot certainly do this. It must be done by Government or University or such
other authority as may be designated in that behalf. Even so, some questions do
arise—whether cost-based education only means running charges or can it take in
capital outlay? Who pays or who can be made to pay for establishment, expansion
and improvement/diversification of private educational institutions? Can an
individual or body of persons first collect amounts (by whatever name called) from
the intending students and with those monies establish an institution—an activity
similar to builders of apartments in the cities? How much should the students
coming in later years pay? Who should work out the economics of each institution?
Any solution evolved has to take into account all these variable factors. But one
thing is clear:commercialisation of education cannot and should not be permitted.
The Parliament as well as State Legislatures have expressed this intention in
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unmistakable terms. Both in the light of our tradition and from the standpoint of
interest of general public, commercialisation is positively harmful; it is opposed to
public policy. As we shall presently point out, this is one of the reasons for holding
that imparting education cannot be trade, business or profession. ……..”
“197. While we do not wish to express any opinion on the question whether the
right to establish an educational institution can be said to be carrying on any
“occupation” within the meaning of Article 19(1)(g), — perhaps, it is — we are
certainly of the opinion that such activity can neither be a trade or business
nor can it be a profession within the meaning of Article 19(1)(g). Trade or
business normally connotes an activity carried on with a profit motive. Education
has never been commerce in this country. Making it one is opposed to the ethos,
tradition and sensibilities of this nation. The argument to the contrary has an
unholy ring to it. Imparting of education has never been treated as a trade or
business in this country since time immemorial. It has been treated as a religious
duty. It has been treated as a charitable activity. But never as trade or business.
We agree with Gajendragadkar, J. that “education in its true aspect is more a
mission and a vocation rather than a profession or trade or business, however wide
may be the denotation of the two latter words ….” (See University of Delhi.- AIR
1963 SC 1873)….
204. We must, however, make it clear, and which is of crucial importance herein,
that the right to establish an educational institution does not carry with it the right
to recognition or the right to affiliation. In Ahmedabad St. Xaviers College Society v.
State of Gujarat [(1974) 1 SCC 717) it has been held uniformly by all the nine
learned Judges that there is no fundamental right to affiliation. Ray, C.J., stated
that this has been “the consistent view of this Court”. They also recognised that
recognition or affiliation is essential for a meaningful exercise of the right
to establish and administer educational institutions. Recognition may be
granted either by the Government or any other authority or body empowered to
accord recognition. Similarly, affiliation may be granted either by the University or
any other academic or other body empowered to grant affiliation to other
educational institutions. In other words, it is open to a person to establish an
educational institution, admit students, impart education, conduct
examination and award certificates to them. But he, or the educational
institution has no right to insist that the certificates or degrees (if they can be
called as such) awarded by such institution should be recognised by the State—
much less have they the right to say that the students trained by the
institution should be admitted to examinations conducted by the University or
by the Government or any other authority, as the case may be. The institution
has to seek such recognition or affiliation from the appropriate agency. Grant
of recognition and/or affiliation is not a matter of course nor is it a formality.
Admission to the privileges of a University is a power to be exercised with great
care, keeping in view the interest of the general public and the nation. It is a
matter of substantial significance—the very life-blood of a private educational
institution. Ordinarily speaking, no educational institution can run or survive unless
it is recognised by the Government or the appropriate authority and/or is affiliated
to one or the other Universities in the country. Unless it is recognised and/or
affiliated as stated above, it's certificates will be of no use. No one would join such
educational institution. As a matter of fact, by virtue of the provisions of the U.G.C.
Act, noticed hereinabove, no educational institution in this country except a
University is entitled to award degrees. It is for this reason that all the private
educational institutions seek recognition and/or affiliation with a view to enable
them to send the students trained by them to appear at the examinations
conducted by the Government/University. The idea is that if such students pass the
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said examination, the Government/University will award its

degree/diploma/certificate to them. These educational institutions follow the
syllabus prescribed by the Government/University, have the same courses of
study, follow the same method of teaching and training. They do not award their
own degrees/qualifications. They prepare their students for University/Government
examinations, request the University/Government to permit them to appear at
the examinations conducted by them and to award the appropriate degrees
to them. Clearly and indubitably, the recognised/affiliated private educational
institutions, supplement the function performed by the institutions of the State.
Theirs is not an independent activity but one closely allied to and supplemental to
the activity of the State. In the above circumstances, it is idle to contend that
imparting of education is a business like any other business or that it is an activity
akin to any other activity like building of roads, bridges etc. In short, the position is
this: No educational institution except a University can award degrees (Sections 22
and 23 of the U.G.C. Act). The private educational institutions cannot award their
own degrees. Even if they award any certificates or other testimonials they have no
practical value inasmuch as they are not good for obtaining any employment under
the State or for admission into higher courses of study. The private educational
institutions merely supplement the effort of the State in educating the people, as
explained above. It is not an independent activity. It is an activity supplemental to
the principal activity carried on by the State. No private educational institution can
survive or subsist without recognition and/or affiliation. The bodies which grant
recognition and/or affiliation are the authorities of the State. In such a situation, it
is obligatory—in the interest of general public—upon the authority granting
recognition or affiliation to insist upon such conditions as are appropriate to ensure
not only education of requisite standard but also fairness and equal treatment in
the matter of admission of students. Since the recognising/affiliating authority is
the State, it is under an obligation to impose such conditions as part of its duty
enjoined upon it by Article 14 of the Constitution. It cannot allow itself or its power
and privilege to be used unfairly. The incidents attaching to the main activity attach
to supplemental activity as well. Affiliation/recognition is not there for anybody to
get it gratis or unconditionally. In our opinion, no Government, authority or
University is justified or is entitled to grant recognition/affiliation without imposing
such conditions. Doing so would amount to abdicating its obligations enjoined upon
it by Part III; its activity is bound to be characterised as unconstitutional and
illegal. To reiterate, what applies to the main activity applies equally to
supplemental activity. The State cannot claim immunity from the obligations arising
from Articles 14 and 15. If so, it cannot confer such immunity upon its affiliates.
Accordingly, we have evolved—with the help of the counsel appearing before us and
keeping in view the positive features of the several Central and State enactments
referred to hereinbefore—the following scheme which every authority granting
recognition/affiliation shall impose upon the institutions seeking such
recognition/affiliation”.
From the aforesaid paragraphs, it is clear that a person has a right to establish an
educational institution but such institution does not carry with it the right to
recognition or right to affiliation. That is to say that it is open to a person to establish
an educational institution, admit students, impart education, conduct examination and
award certificates to them. However, the recognition or affiliation is essential for a
meaningful exercise of the right to establish and administer educational institutions.
The institution has to seek recognition or affiliation from the appropriate agency. Grant
of such recognition or affiliation from the appropriate agency is not a matter of course
nor is it a formality. If the institution is recognized and its student pass the
examination the Government/University will award its degree/diploma certificate to
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them. Such educational institutions have to follow the syllabus prescribed by the
Government/University and follow the same method of teaching and training as
prescribed. On the request of such institutions, the University/Government may permit
the students trained in such institutions, to appear in the examination conducted by
them and to award appropriate degrees to them. For this purpose, the Government or
University has to administer such functions on the basis of the statutory rules or
regulations framed by it. By discharging such function, it cannot be said that the said
functions are discharged by the Government/university or institutions by charging
fees.
In our view, a student who appears in the examination conducted by the University
cannot be held to be a consumer as defined under Section 2(1)(b) read with Section 2
(1)(o). Such a person does not hire or avail of the services of University or the Board
for consideration. On the contrary, he appears in the examination voluntarily for the
purpose of getting degree or diploma and for evaluation of his merit with regard to his
studies during the course of a year or years. The law on the subject is settled by the
decisions of this Commission.
In the case of Chairman, Board of Examination v. Mohideen Abdul Kader, II (1997)
CPJ 49 (NC), this Commission dealing with the same contention observed thus:
“What the Commission has held in the earlier cases is that a University or the Board
in conducting public examination, evaluating answer papers, announcing the results
thereof and thereafter conducting re-checking of the marks of any candidate on the
application made by the concerned candidate is not performing any service for hire
and there is no agreement of hiring of any service involved in such a situation as
contemplated by Sec. 2(1)(o) of the Act. A candidate who appears for examination
cannot b regarded as a person who had hired or availed of the services of the
University or Board for consideration”.
That judgment was followed by this Commission in Praveen Rani v. Punjab School
Education Board (Revision Petition No. 2268 of 2000, reported as III (2004) CPJ 70
(NC), and the complaint was dismissed by holding that the Complainant was not the
consumer within the meaning of Consumer Protection Act, 1986. The Commission also
relied upon the following observation made by the Apex Court in Unnikrishnan v. State
of A.P. (1993) 1 SCC 645:
“Education has never been commerce in this country. Making it one is opposed to
the ethos and traditions and sensibilities of this nation. The argument to the
contrary has an unholy ring to it. Imparting of education has never been treated as
a trade or business in this country since time immemorial. It has been treated as a
religious duty”.
Similarly, in the case of Registrar, University of Bombay v. Mumbai Grahak
Panchayat (First Appeal No. 284 of 1992) reported as I (1994) CPJ 146 (NC), this
Commission observed that “consistently the National Commission has taken the view
that a University while valuing the answer papers or undertaking the re-valuation of
answer papers or the re-checking of marks awarded to a candidate at the instance of a
candidate who has appeared for examination is not performing a ‘service’ which had
been hired or availed of for consideration. Further, in the case of Ex. Sub. Sachida
Nand Sharma v. Chairman, C.B.S.E., reported as 2004 CTJ 39 (CP) (NCDRC), after
considering various judgments this Commission observed that the pith and substance
of the judgments rendered by the Commission was that the institutions holding
examinations are not rendering any service as contemplated under the Consumer
Protection Act, 1986. Similar view is taken in Alex J. Rebello v. Vice-Chancellor,
Bangalore University I (2003) CPJ 7 (NC).
From the aforesaid discussion, it is to be held that a University while conducting
examination, decide the eligibility criteria of the student who appear in the
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examination, evaluating the answer papers or re-checking of the marks awarded to the
student is performing a statutory duty and is not rendering service on hire for a
consideration of fees.
II Giving admission to the students by charging fees:
However, other part of education is, namely, running/managing of
schools/colleges/institutions by recovering fees is, at present, undoubtedly for
commercial purpose. On occasions lakhs of Rupees are recovered from the students
before granting admission to a particular course, even though, the Course is not
recognised by the University or by the authority giving such recognition.
For illustration: Medical Council of India has not recognised a medical course run by
a particular institution. Yet, such institution gives admission by recovering large
amount of fees. This would be trade, commerce or business.
In context of the aforesaid aspect, we would now consider the decision rendered in
Bhupesh Khurana v. Vishwa Buddha Parishad, Original Petition No. 168 of 1994
decided in 29.9.2000 reported as 2001 (2) CPJ 72 : (2001) JRC 240. In that case, 11
students who have passed 12th standard examination filed complaints contending that
they on the basis of the advertisement in the name of Buddhist Mission Dental College
and Hospital established by Vishwa Buddha Parishad, applied for admission to the
Dental College. In the advertisement issued it was categorically and clearly written
that the College is under Magadh University, Bihar and the Dental Council of India,
New Delhi has recognised the same. This was a false averment. In that set of
circumstances, the Commission held that imparting of education by an educational
institution for consideration falls within the ambit of ‘Service’ as defined in the
Consumer Protection Act. Fees are paid for services to be rendered by way of
imparting education by the educational Institutions. If there is no rendering of service,
question of payment of fee would not arise. The Complainants had hired the services
of the Respondent for consideration so they are consumers as defined in the Consumer
Protection Act. For this, the Commission relied upon the observation of the Apex Court
in Bangalore Bangalore Water Supply and Sewerage Board v. A. Rajappa ((1978) 2
SCC 213 : AIR 1978 SC 548 at page 583):
“In the case of the University or an educational institution, the nature of activity is,
exhypothesis, education which is a service to the community. Ergo, the University is
an industry”.
Hence, the Commission held that imparting of education by an educational
institution for consideration falls within the ambit of ‘Service’ as defined in the
Consumer Protection Act. Fees are paid for services to be rendered by way of
imparting education by the educational Institutions. If there is no rendering of service,
question of payment of fee would not arise. The Complainants had hired the services
of the Respondent for consideration so they are consumers as defined in the Consumer
Protection Act. Thereafter, this Commission held that it was a case of obvious
misrepresentation on behalf of the Respondents and it tantamounts to unfair trade
practice. The Commission also observed that as the institution was not recognised, the
Complainants lost their two years of study, they have incurred expenses by staying in
the hostel, for purchase of books and other miscellaneous expenses. Therefore, it
directed the College to refund the amount of expenses and fees received by it with
interest.
We agree with the ratio laid down in the aforesaid judgment. However, it is to be
stated that observations made in Bangalore Water Supply and Sewerage Board
(Supra) is solely on the basis of meaning of the expression ‘industry’ under the
Industrial Disputes Act as observed in the case of Unni Krishnan (paragraph 200)
(Supra).
We have also to accept the reality that some of the private educational institutions
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are commercialised. They charge heavy fees and also there is a prevalent practice of
recovering donations on one or other pretext. On occasions, even though the
institutions are not recognised or a particular course is not recognised by the
University/Government, yet, they start recovering fees by false representation and/or
by misleading advertisements. Thereafter, when the students are not permitted to
appear in the examination dispute arises. Those students who suffer are entitled to
refund of fees paid along with compensation from such institution. Further, when the
students are not permitted to appear in the examination on the ground that the
institution was not recognised or that the students were declared ineligible to be
admitted to the course, in such cases it would amount to unfair trade practice by the
institution/college. Such students suffer heavy loss in terms of money and precious
period of their study and years of youth. For this such institutions should be held liable
to pay punitive damages.
However, certain services rendered by an educational institution by receiving fees
are totally different in nature from the statutory functions which are to be discharged
by the University, such as, conducting examination; checking of the answer books;
evaluation of the marks or declaring of results; with regard to deciding of eligibility
criteria or for admission in the classes or appearing to the examination, etc. Hence (i)
the first part of the services in granting admission by recovering fees is on the basis of
the contract of getting education in an institution or college by payment of fees, and
(ii) the second part is the function of the University which is a statutory duty and does
not depend upon the contract or of hiring of services of educational institutions.
The aforesaid finding is also supported by the decision of the Apex Court in P.A.
Inamdar v. State of Maharashtra (2005) 6 SCC 537 wherein the Court has observed
that one cannot shut eyes to the hard realities of commercialization of education and
evil practice being adopted by many institutions to earn large amounts for their
private or selfish ends. In paragraph 6 and 140, the Court held as under:
“6. Education used to be charity or philanthropy in the good old times. Gradually it
became an “occupation”. Some of the judicial dicta go on to hold it as an “industry”.
Whether to receive education is a fundamental right or not has been debated for
quite some time. But it is settled that establishing and administering of an
educational institution for imparting knowledge to students is an occupation,
protected by Article 19(1)(g) and additionally by Article 26(a), if there is no
element of profit generation. As of now, imparting education has come to be a
means of livelihood for some professionals and a mission in life for some altruists.”
140. Capitation fee cannot be permitted to be charged and no seat can be
permitted to be appropriated by payment of capitation fee. “Profession” has to be
distinguished from “business” or a mere “occupation”. While in business, and to a
certain extent in occupation, there is a profit motive, profession is primarily a
service to society wherein earning is secondary or incidental. A student who gets a
professional degree by payment of capitation fee, once qualified as a professional, is
likely to aim more at earning rather than serving and that becomes a bane to
society. The charging of capitation fee by unaided minority and non-minority
institutions for professional courses is just not permissible. Similarly, profiteering is
also not permissible. Despite the legal position, this Court cannot shut its eyes to
the hard realities of commercialisation of education and evil practices being
adopted by many institutions to earn large amounts for their private or
selfish ends. If capitation fee and profiteering is to be checked, the method of
admission has to be regulated so that the admissions are based on merit
and transparency and the students are not exploited. It is permissible to
regulate admission and fee structure for achieving the purpose just stated.
Conclusion:
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Hence, we arrive at the conclusion that:

(i). Performance of statutory duties by a University or College in laying down
criteria/rules/regulations for conducting examinations, eligibility criteria for
permitting the student to appear in the examination or declaration of the results
of a student who appeared in the examination and such other activities, cannot
be considered to be hiring of service for fees. Those are statutory functions not
depending upon the contract between the parties.
The services which are to be rendered on the basis of the statutory provisions by
the University/educational institution cannot be construed as rendering of service
for consideration in the form of fees.
(ii). Giving of admissions to the students in a school/college/institution/University
by recovering fees and in such cases if there is any dispute with regard to the
validity of such admission or illegality, irregularity committed by such institution
in giving admissions, such dispute would be covered under the Consumer
Protection Act, 1986. This is on the basis of contract between the parties, i.e.
students and the institution, and is based on the consideration (fees) for
rendering education. Such students on the basis of Section 2(1)(d)(ii) read with
Section 2(1)(o) would be hirer of service for consideration and hence would be
consumer. Further, deficiency as defined under Section 2(1)(g) would be
apparent as this would be a fault/shortcoming in nature and manner of
performance which is required to be maintained by or under any law.
In the result, the Revision Petition Nos. 2140/05 and 614/06 are disposed of
accordingly. There shall be no order as to costs.
Revision Petition No. 1933-1934 of 2005:
Parul Midha, the complainant (Respondent herein) filed complaint No. 466/03
before the District Forum, Rohtak contending that the petitioner-University be directed
to grant her admission in B.Ed (Regular) Course. The District Forum by its interim
order dated 14.10.2003 directed the University to grant admission to the Complainant
in B.Ed (Regular) Course.
That interim order was challenged by the Petitioner before the State Commission by
filing Revision Petition No. 203/2003. While confirming the interim order passed by
the District Forum the State Commission in its order dated 6.4.2005 observed: “We
hardly find any ambiguity in the impugned order vide which the District Forum had
issued interim direction to grant admission to the complainant in B.Ed (Regular)
Course after completing the required formalities, subject to the final decision of the
complaint”. Against this order of the State Commission, the Petitioner has filed
Revision Petition No. 1933/2005 before this Commission.
Again on an application filed by the Complainant, the District Forum by its order
dated 16.7.2004 directed the Petitioner to declare the result of the complainant
provisionally and further to issue provisional migration Certificate and to deliver the
original certificates deposited with it to the complainant. The Petitioner filed Revision
Petition No. 105/2004 against the order of the District Forum before the State
Commission. The State Commission confirmed the order of the District Forum by its
order dated 6.4.2004 and dismissed the revision petition filed by the Petitioner. Hence
the Petitioner filed Revision Petition No. 1934/2005 before this Commission.
For the reasons recorded in the case of Ruchika Jain in the above Revision Petitions,
(a) the impugned interim orders dated 14.10.2003 passed by the District Forum in
complaint No. 466/03 and confirmed by the State Commissions in R.P. No. 2003 by its
order dated 6.4.2005, directing the University to grant admission to the complainant
in B.Ed. (Regular) Course after completing the required formalities, subject to the final
decision of the complaint, and (ii) impugned interim orders dated 16.7.2004 passed
by the District Forum in complaint No. 466/03 and upheld by the State Commission by
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its Order dated 6.4.2005 in Revision Petition No. 105/2004 directing the University to
declare the result of the complainant provisionally and further to issue provisional
Migration Certificate and to deliver the original certificates deposited with the
University at the time of taking admission, are set aside. The Revisions petitions are
allowed accordingly. There shall be no order as to costs.
———
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