G.F. College vs Ankit Srivastava & Anr

This revision petition has been filed by the petitioner G.F college against the order dated 6th January 2017 passed by the State Commission, Uttar Pradesh Lucknow ( in short 'the State Commission') in F.A. No. 2115 of 2010.

Brief facts relevant for disposal of the present revision petition are that respondent No.1 took admission in the BCA course run by the petitioner college under self-finance scheme. His examination form was not accepted by the University as he was not having more than 45% marks in the intermediate examination. However on the request made by the candidate and the college, he was provisionally allowed to appear in the examination. However, his result was not declared. In this situation he filed a consumer complaint before the District Forum. The complaint was allowed vide order dated 31st May 2010 and the District Forum directed the opposite party No.1 to refund Rs.25,000/- as fees taken from the candidate along with compensation of Rs.10,000/- and cost of litigation as Rs.1000/-. The OP No.1 preferred an appeal before the State Commission which was dismissed on the ground of limitation as well as on merits vide its order dated 6th January 2017.

Hence the present revision petition.

Heard the counsel for the parties and perused the record. The learned counsel for the petitioner stated that both the fora below have not observed the basic law on the subject that a student is not a consumer and an educational institution is not a service provider and therefore the complaint filed by the respondent No.1 was not maintainable before the fora below. In support of his argument, learned counsel referred to the case of Regional Institute of Cooperative Management Vs. Naveen Kumar Chaudhary, RP No.638 of 2014, decided on 02 May, 2014 (NC), wherein this Commission has allowed the revision petition filed by the petitioner Institute and the orders of fora below were set aside on the basis of the decision of the Hon'ble Supreme Court in Maharshi Dayanand University Vs. Surjeet Kaur, 2010 (11) SCC 159 and Bihar School Examination Board Vs. Suresh Prasad Sinha, (2009) 8 Supreme Court Cases 483. In the present case, also the dispute is between student and an educational institution. Hence, the complaint was not maintainable before the District Forum and the orders passed by the fora below are not valid in the eyes of law and need to be set aside.

It was further argued by the learned counsel for the petitioner that the form was rejected by the University and college is not responsible for the same. Rather, college supported the student and got him issued provisional admit card which allowed him to appear in the examination. However finally the university did not declare the result of the complainant. Therefore even if there is some deficiency, the same can only be attributed to the university and not to the petitioner college.

On the other hand, learned counsel for respondent No.1 stated that the college took admission fully knowing well the rules of the university. However, the college did not inform the complainant about this rule that students with less marks than 45% cannot appear in the examination. The complainant had to waste full one year in this process and therefore complainant is entitled to get compensation from the opposite parties and particularly the refund of the fees paid to the opposite party No. 1.

I have given a thoughtful consideration to the arguments advanced by learned counsel for the parties and have examined the record. At the first place, it is seen that both the fora below have given concurrent finding of facts and the facts cannot be reassessed by this Commission at the stage of revision petition in the light of the judgement of the Hon'ble Supreme Court in Mrs. Rubi (Chandra) Dutta vs. United India Insurance Company, 2011 (3) Scale 654, wherein the following has been observed:-

"Also, it is to be noted that the revisional powers of the National Commission are derived from Section 21 (b) of the Act, under which the said power can be exercised only if there is some prima facie jurisdictional error appearing in the impugned order, and only then, may the same be set aside. In our considered opinion there was no jurisdictional error or miscarriage of justice, which could have warranted the National Commission to have taken a different view that what was taken by the two Forums. The decision of the National Commission rests not on the basis of some legal principle that was ignored by the Courts below, but on a different (and in our opinion, an erroneous) interpretation of the same set of facts. This is not the manner in which revisional powers should be invoked. In this view of the matter, we are of the considered opinion that that the jurisdiction conferred on the National Commission under Section 21(b) of the Act has been transgressed. It was not a case where such a view could have been taken, by setting aside the concurrent finding of two fora."

Both the fora below have confirmed the fact that the respondent No. 1 was given admission in the BCA course without informing the complainant about the rule of the university that students with less than 45% of marks in the intermediate examination will not be allowed to appear in the exam of BCA. First of all, petitioner institution must be having knowledge of this rule as the petitioner college is affiliated to the university. The contention of the petitioner college that the college was not having knowledge of this rule cannot be accepted as admissions are to be taken only under the rules of the university. Even though the present BCA course was under the self finance scheme however the rules regarding admission and examination of the university shall be applicable and the petitioner must have been aware of this requirement. Clearly deficiency on the part of the petitioner institution is self evident as the petitioner institution gave admission to a candidate who was not entitled to get admission.

In respect of the assertion of the learned counsel for the petitioner that in the light of judgements of Hon'ble Supreme Court mentioned above the complainant is not a consumer and the petitioner institution is not a service provider, it is seen that the present dispute is not in respect of giving admission or in respect of standard of education or in connection with any relief being sought against any statutory requirement or provision, but the present dispute is in respect of refund of the fees taken by the petitioner institution for an admission for which the petitioner institution was not entitled to admit. Though the complainant's result has not been declared, but it has not been requested in the complaint that University be directed to declare the result. Had this been the request, clearly consumer forum would not have any jurisdiction to entertain such a request.

Here it is a case of clear unfair trade practice where the petitioner institution has given admission and charged fees for which the institution was not authorised. Learned counsel for the petitioner has relied on the case of Regional Institute of Cooperative Management Vs. Naveen Kumar Chaudhary, (supra) where this Commission has taken a view that the petitioner institution was not a service provider and the revision petition filed by the petitioner institution was accepted. In that case the dispute was that the petitioner institution awarded post graduate diploma in management and its equivalence with masters degree in management was not established. This was a clear case of educational standard and related to the provisions of AICTE. In the present case, no such dispute is involved and it is a simple case of unfair trade practice and deficiency in service. Accordingly the judgement cited by the learned counsel for the petitioner does not seem to be directly applicable in the present case.

Based on the above discussion, I do not find any illegality, material irregularity or jurisdictional error in the order dated 6th January 2017 passed by the State Commission which calls for any interference from this Commission. Consequently, the revision petition No.857 of 2017 is dismissed. No order as to costs.