K.K. Srivastava, President:
1. This order will dispose of two Cross Appeals bearing Nos. 330 and 332, both of 2003 filed against order dated 3.4.2003 passed by District Consumer Disputes Redressal Forum-I, U.T., Chandigarh (for short hereinafter referred to as the District Forum) in Complaint Case No. 619 of 2000, awarding a total compensation of Rs. 700/- besides costs of Rs. 300/- to the complainant Shri Pankaj Jindal. This order is being passed in Appeal No. 332 of 2003 filed by Shri Pankaj Jindal, complainant/appellant.
2. Shri Pankaj Jindal filed the complaint in the District Forum alleging deficiency in service on the part of O.P. - Central Board of Secondary Education (for short hereinafter referred to as C.B.S.E.), Regional Office, Chandigarh in not issuing the requisite documents demanded by the complainant which he required for admission in paramedical course in the B.Sc. Physical Therapies (B.Ph.T) course for PGIMER, Chandigarh and in not issuing migration certificate to him. The allegation of negligence has also been levelled against the O.P.-C.B.S.E. In the complaint, a sum of Rs. 2 lacs were claimed as compensation against the O.P.-C.B.S.E.
3. The O.P.-C.B.S.E. filed written statement in the District Forum wherein the maintainability of the complaint against it was disputed on the ground that it did not come within the definition of the provider of the service and was not required to render service as defined under Section 2(1)(o) of the Consumer Protection Act, 1986 (for short hereinafter referred to as the C.P. Act) and the complainant is also not a consumer as defined under Section 2(1)(d) of the C.P. Act. Initially the reply contained point of non-maintainability of the complaint but later on a detailed written statement was filed by the O.P. which is dated 6.6.2001. In this written statement, it was contended that the O.P. - C.B.S.E. was discharging its statutory function and not rendering any service for consideration as contemplated under the C.P. Act. Several authorities in support of this proposition were cited which are thirty in number. The O.P. also alleged that the complainant had not come to the District Forum with clean hands as he had wrongly alleged that his candidature for B.Sc. Physical Therapy was cancelled due to non-submission of documents in time. It was alleged that the candidature of the complainant was cancelled as he did not possess the prescribed qualification of having 50% marks in 10+2 examination and further he had not passed the examination with Biology as one of the subjects. Reference was made to Annexure P/3 in this regard. It was further contended that the complainant himself was negligent as he should have applied for migration certificate in 1998 after passing 10th Class examination or before appearing in Class 10+2 examination from the Board of School Education Haryana, Bhiwani. The complainant applied for first time on 26.7.2000 and his migration certificate was prepared by the O.P. but the same was not collected earlier than 21.8.2000, on which date it was handed over to the complainant who appeared in the office of the O.P.
4. According to the averments contained in Para 3 of the written statement, it was the duty of the candidate to collect the certificate himself from the office of O.P. - C.B.S.E. on any working day between 3.00 to 5.00 p.m. after two weeks from the date of applying of even before as the case may be. Next, it was pleaded that the complaint was bad for non-joinder of necessary parties. The Board of School Education Hayana, Bhiwani which is a necessary party was not impleaded as O.P. It was the duty of the Board of School Education Haryana, Bhiwani to supply pass certificate and responsibility also lay with it to see that the migration certificate had been received prior to the holding of the examination.
5. It was specifically denied that the complainant had visited the office of the O.P. many times for enquiring about the migration certificate and the same was not issued to him after repeated visits. As per the complainants own averments, he visited the office of O.P. only on 21.8.2000 and the migration certificate was received by him on the same day. The migration certificate was lying with the Delivering clerk un-posted. It was also mentioned that the O.P.-C.B.S.E. does not send the certificate by registered post in the case of urgency because the same purpose takes longer time to reach the certificate to the candidate and, therefore, the C.B.S.E. had asked the candidate to collect the same personally from the office of the C.B.S.E. The allegations of negligence and deficiency in service were denied. It was further contended that the complainant himself was negligent in not applying for the migration certificate after passing Class 10th Examination in the year 1998. He applied only on 6.6.2000 and the same was prepared in minimum time but the complainant was negligent in not collecting the same from the office of the O.P. - C.B.S.E. The migration certificate was collected only on 21.8.2000.
6. In the replication filed to the written statement, the complainant alleged that the O.P.-C.B.S.E. performed administrative functions and one of the functions is to accept applications for issuing migration certificate by charging fees from the candidates and thus it is covered under the provisions of the C.P. Act. The complainant also cited four authorities of different State Consumer Disputes Redressal Commissions in support of his contention besides the judgment of Honble National Consumer Disputes Redressal Commission, New Delhi (for short hereinafter referred to as the National Commission) reported in the case of Ravinder Singh v. M.D. University, Rohtak, III (1997) CPJ 36 (NC). The complainant contended that he had passed 10+2 examination with 65 percent marks alongwith Biology as main subject. It was also mentioned that the complainant had again applied for the said course next year i.e. in the Session 2001-2002 and qualified the examination and got 17th rank and scored 77 percent marks in the entrance test and he was now doing Audiology and Speech Therapy course vide Annexure P-4. The complainant alleged that he paid a sum of Rs. 20/- as postal charges besides Rs. 50/- as prescribed fees for migration certificate and Rs. 50/- for issuance of migration certificate after 48 hours as the complainant had applied under the category of urgent necessity. Despite this, the complainant could not get the migration certificate up to 25 days i.e. till 21.8.2000.
7. The complainant filed his own affidavit by way of his evidence which is dated 3.11.2001. On behalf of the O.P.-C.B.S.E., Shri Yograj Sachdeva, Regional Officer of C.B.S.E., Chandigarh filed his affidavit dated 21.3.2002. The complainant filed photocopy of original receipt issued by the O.P.-C.B.S.E., Chandigarh dated 26.7.2000 (copy Annexure P-1); Annexure P-2 is the photocopy of blank application form for obtaining the migration certificate etc.; Annexure P-3 is the photocopy of a communication received from PGIMER, Chandigarh dated 11.8.2000 addressed to the complainant informing him that his candidature was not considered for admission to the course referred to in his application as he did not possess the prescribed qualification stipulated in the admission notice issued by the Institute (Sr. No. 3); he did not score 50% marks in 10+2 examination (Sr. No. 5), and lastly he did not pass 10+2 or its equivalent examination with Biology as one of the subjects. The photocopy of report/marks sheet of Board of School Education Haryana, Senior Secondary Certificate Examination in the name of the complainant has been filed which showed that at the examination held in March, 2000, the complainant had passed the examination with Biology as one of the subjects and scoring 63% marks besides Hindi, English, Physics and Chemistry. He had scored 258 marks out of 400 marks which in terms of percentage is 64.5% . Annexure P-4 is the photocopy of Receipt of PGIMER for the period September, 2001 to February, 2002.
8. The District Forum held that the complaint was maintainable against the O.P. for the reason that the O.P.-C.B.S.E. performed administrative functions and charged fees for issuing detailed marks sheet and migration certificate and the complainant had paid a sum of Rs. 50/- as special fee other than the regular fee for getting the migration certificate within the specified period. On merit, it was held that the complainant was not entitled to any compensation on account of loss of one year of academic carrier but returned a finding that there was deficiency in service on the part of O.P. in not despatching the certificate within the specified period of 48 hours or so and due to non-receipt of the migration certificate, the complainant must have suffered harassment and mental tension, for which he was awarded 700/- as token compensation besides costs of Rs. 300/-, aggregating to Rs. 1,000/- which was directed to be paid within one month from the date of receipt of copy of the order.
9. As mentioned earlier, the complainant as well as the O.P., both felt aggrieved by the impugned order and filed cross appeals, referred to above. The record of the complaint case was summoned. In both the appeals, the respondents accepted the notice and put in appearance and made their submissions.
10. So far as the maintainability of the complaint is concerned, the O.P. - C.B.S.E. relied on the judgment of the Honble National Commission rendered in the case of Ex-Sub. Sachida Nand Sharma v. Chairman, C.B.S.E., I (2003) CPJ 251 (NC)=First Appeal No. 293 of 1996 decided on 20.12.2002, wherein the Honble National Commission held that the institutions holding examination are not rendering any service within the meaning of C.P. Act, hence, any concomitant - omission, cannot be termed as deficiency.
11. The learned Counsel for the complainant, on the other hand, relied on another judgment of the Honble National Commission reported in the case of Controller of Exam., Himachal Pradesh University and Anr. v. Sanjay Kumar, I (2003) CPJ 273 (NC). The Honble National Commission held with reference to its earlier judgments reported in Chairman, Board of Examinations, Madras v. Mohd. Abdul Kader, II (1997) CPJ 49 (NC), and orders passed in the cases of Registrar, University of Madras v. Murupegan, Revision Petition No. 26/1993; Registration Evaluation, University of Karnataka v. Mrs. Poonam G. Bhandari and Ors., F.A. No. 245/1992; Registrar, University of Bombay v. Mumbai Grahak Panchayat, Bombay, I (1994) CPJ 146 (NC); Kurukshetra University and Ors. v. Vinay Prakash Verma and Ors. that âIt is not the intention of the Commission to exclude even the administrative aspects relating to education from the definition of service. This aspect has to be seen to be falling within the definition of service. In the present case, deficiency in service was seen in the form of non-supply of Roll Number to the complainant. Since `Roll Number document is the authority for an examinee to be admitted in the Examination Hall, depriving the complainant of the same at the right time is not the same as marking or valuation of papers announcing the results or re-checking of marks or holding of examinations. The facts of the case are different from the facts of the cited cases. Hence, we find that the petitioner cannot take support from themâ. It was held that non-supply of roll number in time to enable the complainant to write the paper is a case of deficiency in service.
12. The authority relied on by the O.P.-C.B.S.E. reported in the case of Ex-Sub. Sachida Nand Sharma (supra) relates to the conduct of examination and declaration of result which function is different and distinct from the administrative function of releasing the roll number to the candidate to enable him to appear at the examination which has been held to be an administrative function. Likewise, issuance of a migration certificate by the C.B.S.E. in the instant case is an administrative function and not a function of conducting the examination, valuating answer papers and publishing results of the candidate which have clearly been excluded from the definition of service [Reference may be made to Registration Evaluation, University of Karnataka, (supra)].
13. The District Forum has thus rightly held that the complaint was maintainable under the provisions of the C.P. Act and it had the jurisdiction to adjudicate the same.
14. Coming to the merit of the case, there is no dispute about the fact that the complainant applied for migration certificate on 26.7.2000 and deposited a sum of Rs. 120/- as the fees. On the reverse side of the blank application form (Annexure P-2), at Serial No. 8, a sum of Rs. 50/- is charged for issuing a migration certificate. At Serial No. 6, a further sum of Rs. 50/- is charged for the certificates after 48 hours excluding holidays. A sum of Rs. 20/- has been charged on account of postage, a sum total of which (Rs. 50/- + Rs. 50/- + Rs. 20/-) comes to Rs. 120/-. At Serial No. 12, on the same reverse page, it has been provided âMigration Certificate/Marks Statement, Duplicate Certificate etc., will be delivered on the production of receipt issued by the Board between 3 to 5 p.m. after two weeks (excluding holidays). The fee can be deposited between 10 a.m. to 1.15 p.m. on every working dayâ.
15. It is not disputed that the complainant was in hurry that he required the migration certificate on urgent basis and he paid an extra amount of Rs. 50/- at Serial No. 8.6 for issuing the copy after 48 hours. It was the duty of the O.P. - C.B.S.E. to prepare and issue the migration certificate after 48 hours and not to keep the same for waiting for the complainant to come and to collect the same on the ground that had it been issued through postal agency, it would have caused delay in reaching the candidate. The District Forum after considering the material placed on record, rightly held, that the O.P. did not despatch the certificate within the specified period of 48 years or so.
16. So far as the plea of the O.P. - C.B.S.E. regarding negligence on the part of the candidate i.e. the complainant in not applying for the migration certificate earlier and regarding the Board of School Education Haryana for not demanding migration certificate prior to the conduct of the examination for 10+2, the same is not the consumer dispute raised in the instant case. The only short matter which required consideration was whether the migration certificate which was asked for to be supplied on urgent basis on 48 hours or not and, if so, there was any deficiency in service on the part of O.P. - C.B.S.E. Likewise, the rejection of the application of the complainant for seeking admission to the course at PGIMER, Chandigarh on the ground of his being ineligible is also beyond the scope of consumer dispute raised in the complaint. However, the District Forum after perusal of the record finds that the complainant possessed the requisite qualification. We have also referred to the certificate issued by the Board of School Education, Haryana showing that the complainant had passed his 10+2 examination in 2000 with Biology as one of the subjects and in which he scored 63 percent marks. The total of the marks obtained in all the papers was 258 marks out of 400 marks which returned percentage of 64.5% which is much in excess of the minimum requirement of 50% marks. We are not required to go into the aspect of the PGIMER in rejecting the application by not finding the complainant eligible due to his scoring 50% marks and in not passing the 10+2 examination with Biology as we now find as the complainant had taken admission in similar course in PGIMER and is studying there and had also filed receipt (Annexure P-4) for payment of fees for the period from September, 2001 to February, 2002, the finding regarding the deficiency in service on the part of O.P. -C.B.S.E. cannot be faulted with.
17. So far as the compensation is concerned, the District Forum has disallowed the compensation for loss of one year. We also find that there is no adequate material placed on record by the complainant to prove the quantum of compensation and particularly to the tune of Rs. 2 lacs. Since there has been deficiency on the part of O.P. - C.B.S.E., the District Forum has rightly awarded a token compensation of Rs. 700/- and has also awarded a sum of Rs. 300/- as costs. We do not find any infirmity in these findings and the assessment of compensation and costs.
Resultantly, both the appeals lack merit and are dismissed leaving the parties to bear their own costs.
Copies of this order be sent to the parties free of charge.