Examination Controller Maharshi Dayanand Saraswati University Ajmer vs Kumari Atia Rasheed

THIS revision petition has been filed under section 21(b) of the Consumer Protection Act, 1986 against the impugned order dated 10.03.2008 passed by the Rajasthan State Consumer Disputes Redressal Commission (for short ''the State Commission '') in Appeal No. 1084/2007 "Examination Controller, Maharishi Dayanand Saraswati University versus Kumari Atia Rashid & Anr.", vide which, appeal against the order dated 10.04.2007 passed by District Forum, Tonk in consumer complaint no. 33/2007 was ordered to be dismissed.

BRIEFLY stated, the facts of the case are that the complainant/respondent no. 1 Atia Rashid had appeared in M.Com. final year examination in 2006, conducted by the petitioner/OP No. 1 against roll number 70771 and deposited the necessary fee etc. When the result of the examination was declared by the petitioner, it was found that in the paper, "Direct and Indirect Taxes ", she had obtained 61 marks, whereas she was expecting 85% to 90% marks in that paper. The complainant requested for revaluation of marks by depositing the necessary fee. However, on revaluation, the marks obtained by her were reduced from "61 to 41 ". The petitioner took into account 41 marks in that paper for the purpose of preparing the final result for the complainant. However, the case of the complainant is that since the difference between the marks obtained earlier, i.e., 61, and the marks obtained after revaluation, i.e., 41, was more than 20%, the University should have taken into account the marks obtained earlier, while preparing the final result. The complainant has based her assertion upon Rule 6 B of Ordinance 157 ''A '' of the University, in support of her arguments. The District Forum vide their order dated 10.04.2007 allowed the complaint and directed the University to pay a sum of Rs.2,000/- to the complainant for mental torture and litigation expenses. The appeal against this order was dismissed by the State Commission vide order dated 10.03.2008. It is against this order that the present revision petition has been filed before us. At the time of hearing before us, the petitioner moved an application for deletion of the name of respondent no. 2, the Principal, Government College, Tonk, and the same was allowed.

LEARNED counsel for the petitioner while arguing the matter, stated that in the instant case, the complainant does not fall under the definition of ''Consumer '', and hence the proceedings under the Consumer Protection Act are bad in the eyes of law. He invited our attention to judgement of the Hon ''ble Apex Court in ''Bihar School Examination Board versus Suresh Prasad Sinha '' [(2009) 8 SCC 483], in which it has been held that the Board does not provide any service to the examinee and the examination fee paid by an examinee is also not a consideration for providing any service. Any dispute relating to fault in holding of examination or non-declaration of results of an examinee, does not fall within the purview of the Consumer Protection Act. Learned counsel further invited our attention to Rule 6 B of Ordinance 157 ''A '' of the University saying that if the difference of marks obtained earlier and those obtained after revaluation, is upto 20% of the total maximum marks, this rule is applicable and the marks obtained after revaluation are to be counted for preparing the final result. In the instant case, the difference between the marks obtained earlier and those obtained after revaluation is exactly 20% of the total maximum marks and hence the University had rightly taken into account 41 marks for the purpose of preparing the final result. The complaint should, therefore, have been dismissed by the courts below.

LEARNED counsel for the respondent no. 1, however, stated that the Universities are covered under the provisions of the Consumer Protection Act and hence in this case also, she had right to file consumer complaint against the OP. Learned counsel further argued that the change of marks on revaluation from 61 to 41, makes it clear that the difference was more than 20% and hence based on Rule 6 (B), original marks obtained, i.e., 61 should have been taking into consideration for preparing the final result. The orders passed by lower courts were, therefore, as per law and the petition deserves to be dismissed. We have examined the material on record and given a thoughtful consideration to the arguments advanced before us. As mentioned in the revision petition, the rules regarding revaluation are given under Ordinance 157(A) Rule 6(B), which are reproduced as follows:- "Ordinance 157 (A) Rule 6(B) (i) In case the marks are increased or decreased upto 20% consequent upon revaluation, full marks secured shall be counted for working out the result. But marks can be decreased to the extent that the result of the candidate will not be affected adversely, the division of the candidate will also not be changed adversely and the candidate will not be declared from pass to fail / supplementary. In such cases the original marks will remain unchanged. (ii) In cases a candidate applies for revaluation in subject(s) in which he had been declared pass, the marks worked out after revaluation will be taking into for working out the result. (iii) In cases a candidate who applies for revaluation in subject in which he was declared supplementary or fail, if after the revaluation the result remains fail or supplementary to supplementary, the result will be declared as no change. (iv) If the difference of the awards of the re-valuator and the original examiner is more than 20% of the maximum marks, the answer books shall be referred to third examiner and average of two nearest awards shall be taking into account and the result will be worked out and declared accordingly."

AN examination of the above provisions indicate that there is a mention of 20% of maximum marks in clause (iv), whereas clause (i) mentions only about the increase or decrease upto 20%. Since the words ''maximum marks '' have not been incorporated in clause (i), the implication is that the percentage mentioned relates to marks obtained only and not the maximum marks.

IN the instant case, the marks of the candidate upon revaluation have been reduced from 61 to 41 indicating that there was change of more than 20% upon revaluation. Clause (i) talks about the increase or decrease upto 20% only and hence it is not applicable to the present case because the decrease in marks is more than 20% marks. Clause (iii) is also not applicable in the present case because the candidate was not declared fail or was not given supplementary.

CLAUSE (iv) is applicable only if the difference of award of revaluator and original examiner is more than 20% of the maximum marks. In the present case the difference is exactly 20% of the maximum marks; hence clause (iv) is also not applicable in the present case.

CLAUSE (ii) shows it clearly that if a candidate applies for revaluation in the subject in which he had been declared pass, the marks worked out after revaluation will be taken into account for working out result. It is clear that the clause (ii) is applicable to the facts of the present case and the marks obtained by the candidate after revaluation, i.e., 41 marks are to be taken into account for the purpose of preparing the result. In the light of above discussion, the above petition succeeds and the action taken by the petitioner University is held to be in accordance with the rules and regulations. The revision petition is, therefore, accepted and the orders passed by the State Commission and District Forum are set aside and the action taken by the University is held to be in order. There shall be no order as to costs looking into the facts and circumstances of the case.