KURUKSHETRA UNIVERSITY vs VINAY PARKASH VERMA

THE territorial jurisdiction for all disputes relating to examinations conducted by the Kurukshetra University, is the significant question in this appeal. Equally at issue is the question whether the said University renders a "service" to its students within the consumer jurisdiction?

THE facts are not in serious dispute and may be noticed with relevance to the issue aforesaid. Vinay Parkash, respondent had averred in his complaint that he was a regular student of the LL.B. (professional) semester system course run by the appellant-University from the year 1988 to 1991. It was pleaded that he had taken the examination in all the six semesters and he cleared the fifth semester with good marks. However, in the sixth semester he was directed to re-appear in the fourth paper (Equity). Dissatisfied therewith, the Complainant applied for re-evaluation of the said paper and deposited the requisite re-evaluation fees which were duly accepted. However, the University failed to provide the re-evaluation of the paper even after the lapse of four months. In the given circumstances, the complainant-respondent had no alternative but to re-appear in the said paper in the forthcoming examination. It is further the case that after four months of his previous result, the complainant was then informed that the direction to reappear was due to some discrepancy noticed in the said paper and on the removal thereof, marks of the complainant were revised from 36 to 45 and he was declared pass. It was forcefully alleged in the complaint that because of the admitted negligence of the appellant he had to unnecessarily take on the burden of reappearing in an examination which he had already cleared. Not only that, the delay in securing the LL.B. Degree prevented the complainant from applying for the post of "Judge Advocate" in the Army and other service opportunities. Further he could not apply to the Bar Council to obtain a license to start legal practice. It was averred that he suffered grave mental harassment and loss in terms of money, seniority and reputation due to the patent deficiency in the service undertaken to be rendered by the University. A relief to the tune of rupees One lakh as compensation alongwith the refund of reevaluation fees with interest etc. was sought.

In resolutely defending the complaint, the appellants first took up the preliminary objection that the District Forum at Kaithal had no jurisdiction to entertain the complaint. It was pointed out that the University and the Law College thereof were located in Kurukshetra and the respondent was a regular student thereat and equally he had taken the examination at Kurukshetra and the result was also declared at Kurukshetra. This apart, reliance was placed on Clause 27 of Ordinance I of Kurukshetra University Calendar Vol. II 1991, which prescribes that all legal disputes relating to examinations/admission of students will be subject to Kurukshetra Courts. The firm plea was also taken that the complainant did not come within the ambit of the consumer primarily on the ground that the University did not render any services nor had these been hired for a consideration.

ON merits, the factual position of the complainant being a student and his having taken the law examination and the result having been declared to reappear in the 4th paper, were admitted. It was the plea that the process of re-evaluation is lengthy and time consuming and the delay in re-evaluation etc. not inordinate. It was admitted that the petitioner had applied for re-evaluation on the 12th November, 1991 and further that he took the subsequent examination which was to commence with effect from 9th of December, 1991. Further, the factum of discrepancy having been found and the complainant having been declared pass in the paper was not controverted. However, the plea was that the petitioner having accepted the benefit of the passing out score, he is stopped from making any grievance with regard thereto in the present complaint. It would appear from the record that the objection of the territorial jurisdiction was not pressed at the threshold and the matter was allowed to be contested on merits. The complainant in support of his case put in his affidavit and a number of documents, the authenticity of which was not challenged. The appellants-University however, rested it self content primarily on its pleadings only.

THE District Forum first adverted to the merits of the case and came to the conclusion that the concerned officials of the University were utterly negligent with regard to the alleged discrepancy in the "Equity" paper of the complainant and indeed had displayed a callousness which had thrown the professional career of the student in doldrums for a considerable time. THE delay in rectifying the discrepancy and the alleged process of re-evaluation was not considered pardonable and it was held that the complainant was entitled to redress. In the end, the District Forum also took the view that because the complainant was a resident of Kaithal and he had suffered mental pressure and harassment thereat and subsequently had set up practice at Kaithal, would give territorial jurisdiction to the District Forum for the lis. A somewhat modest compensation of Rs. 1,500/- with ancillary relief of costs and Counsel''s fee was granted. Aggrieved thereby, the present appeal has been preferred. Mr. Deepak Sibal, the learned Counsel for the appellant had inevitably reiterated the objection of territorial jurisdiction in the first instance. It was forcefully contended that the entire cause of action herein had arisen at Kurukshetra alone where the University was located and where the respondent-student admittedly attended the Law College as also the declaration of the result thereof. It was the case that no part of the cause of action arose at Kaithal and the District Forum was in error in holding that the mere fact of the respondent-student being a resident of Kaithal, or his allegedly mental suffering there at, and his later setting up a practice in that town would give jurisdiction to the Redressal Agency at Kaithal. We find considerable merit in the aforesaid submission. Inevitably the issue herein has to be considered in the light of the relevant part of Section 11 of the Act which merits notice in extenso : - "11. Jurisdiction of the District Forum.- xx xx (2) A complaint shall be instituted in a District Forum within the local limits of whose jurisdiction (a) the opposite party or each of the opposite parties, where there are more than one, at the time the institution of the complaint, actually and voluntarily resides or carries on business, or personally works for gain, or (b) any of the opposite parties, where there are more than one, at the time of the institution of the complaint, actually and voluntarily resides, or carried on business, or personally works for gain, provided that in such case either the permission of the District Forum is given, or the opposite parties who do not reside, or carry on business, or personally work for gain, as the case may be, acquiesce in such institution; or (c) the cause of action, wholly or in part, arises."

IT would be somewhat plain that herein, the respondent could at best invoke Clause (c) on the ground that a part of the cause of action arose at Kaithal. However, it is difficult to bring the respondent''s case within the said provision. that primarily the cause of action in the present facts arises at Kurukshetra can hardly be disputed. The District Forum held in favour of the respondent mainly on the ground that he was a resident of Kaithal and had suffered mental harassment there at. We are afraid that this view is not quite sustainable. The provisions of Section 11 quoted above would indicate that it is the residence of the opposite party or where it carries on business or personally works for gain, is the relevant consideration for determining the territorial jurisdiction. The residence of the Complainant does not enter the picture under the said provision. Equally, the alleged suffering of mental harassment and pressure at a particular place is a somewhat slippery and unsatisfactory test. IT was rightly argued on behalf of the appellants that the Law students of the University are drawn from all parts of the country and merely because they suffer some mental harassment at the place of their residence due to a default in the examination, would not carry the territorial jurisdiction to their homes. The other consideration of the District Forum that the respondent had subsequently set up practice at Kaithal would be equally unsustainable. IT is unnecessary to labour the point that any subsequent action by the complainant after the arising of the cause of action would not alter the territorial jurisdiction for the lis. Consequently, it necessarily follows that in the present context no part of the cause of action can be said to have arisen in Kaithal itself.

THE matter however, does not rest at that alone. Reference has necessarily to be made to the relevant statutory provisions, the validity whereof is under no serious challenge. Herein, reference may be made to Clause 27 of Ordinance 1 of the Kurukshetra University''s Calendar Vol.11,1991 which merits notice in extenso : - "H-Place of Sueing 27. All legal disputes relating to examinations/admission of students will be subject to Kurukshetra Courts or Courts having jurisdiction in Kurukshetra." The provision aforesaid is plain and categoric and needs no elaboration. On behalf of the respondent, no serious challenge to its applicability could be laid either. Consequently the special provision afore-quoted would equally go entirely in favour of the appellants.

In view of the above, it has to be held that the territorial jurisdiction for all disputes relating to examination conducted by the Kurukshetra University, would lie at Kurukshetra alone.

THOUGH the appellant succeeds on the pristinely legal point, it would be seen that this is only a pyrrhic victory. THOUGH the legal issue has now been settled, it is equally well settled that the objection to territorial jurisdiction is a threshold question which if not seriously pressed is deemed to be waived. It bears repetition and, the record is witness thereto, that though fully represented by Counsel, the appellant-University did not press the territorial jurisdiction at the threshold before entering into the merits of the lis. Apart from taking the plea in its pleadings, the University-appellants did not seek the determination of the question from the District Forum at the very portals of the consumer jurisdiction as a preliminary one. As the order under appeal indicates the question seems to have been raised only at the stage of concluding arguments and it has been so noticed expressly in para 9 thereof. It appears to us that they willingly participated in the trial of the summary Consumer lis and it would be inappropriate that the order under appeal should be set-aside on this ground after it has turned against the appellants on merits. Apart from the above, the fact that not the least prejudice or miscarriage of justice can be said to have arisen by the trial of the matter at Kaithal is plain. The distance betwixt Kurukshetra and Kaithal is hardly a few kilometers and no prejudice could possibly arise to an Institution of the standing of Kurukshetra University to contest the matter through Counsel at Kaithal. Even in the Grounds of Appeal, not a hint is spelt out on the issue of any prejudice or miscarriage resulting from the trial of the lis at Kaithal, a short distance away from Kurukshetra. Nor did the learned Counsel in his submissions indicate in the least as to how the appellants in any way suffered owing to a technical default in the territorial jurisdiction. For all these reasons, we find ourselves wholly unable to disturb the order under appeal on this score and particularly so in the consumer jurisdiction which is not to be easily shackled with hyper-technicalities.

APPARENTLY, bereft of a meaningful challenge to the merits of the case, Mr. Sibal had then primarily pressed the legal objection that the respondent did not come within the ambit of a "consumer" on the ground that the education was not a "service" and the University was not holding out any such facility to its students. Primal reliance was sought to be placed on an unreported case of the Rajasthan State Commission in Complaint No. 91/90 (Kumari Seema Bhatia v. The Registrar Rajasthan University, decided on the 28th of October, 1991. We are afraid that the aforesaid submission cannot hold water within this jurisdiction any longer. The issue has been considered twice by this Commission with considerable exhaustiveness which need not be repeated. What calls for pointed notice is the fact that way back in I (1992) CPJ 76, Tilak Raj v. Haryana School Education Board it was held in no uncertain terms that the imparting of education for a consideration would come squarely within the ambit of ''service'' under the Act. This case was carried before the National Commission and though the order was modified on the ground of limitation, the National Commission did not take a contrary view on this basic question. By way of analogy in I (1992) CPJ 33, Maharishi Dayanand University, Rohtak v. Shakuntla Chaudhary, this Commission again held that a University imparting education and conducting examinations against charges is within the arena of consumer jurisdiction. The reasoned reiteration of this view has now been made in II (1992) CPJ 807. A.P.J. School v. K.L. Galhotra. Therein, after an in-depth discussion of principle and precedent and relying primarily on ''Bangalore Water Supply and Sewerage Board v. A. Rajappa & Ors. AIR 1978 SC 548, it has been held as follows : - "To finally conclude on this aspect, the answer to the question posed at the outset has to be rendered in the affirmative. It must be held that on principle precedent and the language of the statute education would squarely come within the arena of service under the Act."

Apart from the consistent view taken in this Commission, it is necessary to recall that the Orissa State Commission in II (1991) CPJ 373, Smt. Monisa Samal v. Sambalpur University and Others took a similar view. The said case apparently received tacit affirmance from the National Commission in an appeal against the said order in I (1992) CPJ 231 (N.C.), Manisha Samal v. Sambarpur University & Ors. (supra).

IN all fairness one must notice that the view of the Rajasthan State Commission in Kumari Seema Bhatia v. The Registrar, Rajasthan University (supra) would aid the stand taken on behalf of the appellants. However, it would appear that the learned Counsel for the parties in the said case were somewhat remiss in not bringing to the notice of the State Commission all the aspects which had fallen for consideration in Tilak Raj v. Haryana School Education Board and APJ School v. K.L. Galhotra''s cases (supra). We are therefore, constrained to record a respectful dissent from the view taken by the Rajasthan State Commission. This apart, it deserves notice that in I (1992) CPJ 127, S.D.O.A.E.E. Sub Division, Hisar v. M/s Hotel Palki, Hisar, this Commission has held that a State Commission must be bound by its own previous decisions on pure questions of law. Undoubtedly, the issue whether education comes within the ambit of a ''service'' is a pristinely legal question. Consequently, as a matter of propriety as well, it is not possible for this Commission to now take a contrary view. We regret our inability to be pursuaded otherwise despite considerable persistence of the learned Counsel for the appellants.

AS has already been noticed, on merits the learned Counsel for the appellants had not much to say apart from half-heartedly stating that to err is human and the University should not be made liable for the admitted error in the declaration of the respondent''s result. This submission has only to be noticed and rejected. From its very tenor, the error stands admitted and once it is held that education is a ''service'' a patent deficiency therein stands established. It is unnecessary in this judgment of affirmance to elaborate the matter apart from pointing out that we entirely concur with the view of the District Forum on the factual aspect which is hereby affirmed. Equally, the compensation awarded is already on the modest side and the appellants have to thank themselves that the respondent has not come up by way of appeal for the enhancement thereof.

In the light of the somewhat detailed discussion above this appeal must fail and is hereby dismissed with costs which are assessed at a sum of Rs. 500/- only. These should be paid within a period of one month from today failing which compliance would have to be enforced under Section 27 of the Act. Appeal dismissed with costs.