A.P.J. SCHOOL vs K.L. GALHOTRA

MR. Justice S.S. Sandhawalia, President - Whether the imparting of education for a consideration is a service" within the meaning of Clause (o) of Sub-section (1) of Section 2 of the Act? This is the significant threshold question in this appeal.

THE appellants A.P.J. School, Faridabad assail the majority order of the two learned Members of the District Forum against them, whilst the President of the District Forum has held in their favour by observing that no interim relief in the process of admission to the school can be granted. THE respondent Dr. K.B. Galhotra''s son Ankur Galhotra was a student of the appellant school right from the Nursery upto the 10th standard. He took the Central Board Secondary Education examination in March/April, 1992 and secured an aggregate of 71.4% only. His percentage of science mathematics and English was however, assessed higher at 79.3%. THEreafter he applied afresh for admission in the medical group of the 11th standard in the school and submitted his form in time. However, the Selection Committee rejected his application on merits. Subsequent thereto, it is the case of the complainant that he contacted the school authorities for admission and even offered to shift his son to the non-medical side, if it was not possible to admit him in the medical group. THE appellants after consideration however, refused any further redress. It was suggested on behalf of the complainant that some students both originally belonging to the school and outsiders were granted admission though they had a lower percentage of marks. On notice being issued the complaint was resolutely defended by the appellants. The firm preliminary objection taken was that the dispute was not covered under the Consumer Protection Act and the complainant being not a consumer had no locus-standi to agitate the issue, apart from alleging that no cause of action was either made out. It was also the stand that the matter in dispute involved complicated questions of law and fact which cannot be determined by the District Forum.

On merits whilst admitting the broad factual ground of the complainant''s son having been a student who had been refused fresh admission after he passed out in the C.B.S. Examination, the burden of the defence was that Ankur Galhotra had applied for getting admission in the Medical Course only. It was the stand that his percentage in that particular course was much lower than the students admitted in the said medical course by the school on the relevant date of the admission. The complainant was accordingly told that his son did not come in the merit list prepared by the school for medical course and consequently, he cannot be accommodated therein. It is repeatedly affirmed that the complainant had sought admission for his son in the medical course only and had never opted for a non-medical course. Indeed, he had insisted that he should be given admission in that branch alone. All other allegations of any impoliteness towards the complainant were strongly controverted. As a matter of law, the plea was that a former student of the school had no right to get automatic admission in the 11th class and there was no vested legal right, as such. The school being a private one not at all being aided by the State, the fresh admission in the 11th Class was entirely in the discretion of the management of the school and it cannot be compelled to admit a student in a particular class or in a particular course. All suggestions of any malafides on the part of the principal and the management of the school were frontally denied.

IT would appear that after the filing of the aforesaid written statement and pending the adjudication of the case on merits, the complainant prayed for interim relief. The President of the Forum in a separate speaking order took the view that no such interim relief could be granted. However, the two other learned Members of the Forum forthwith allowed the complaint and granted the relief prayed for in the following terms:- "In view of the above discussion, I order the respondent school to admit Ankur Galhotra in class 11th in Medical or Non-medical group forthwith as per the choice of the ward." The majority order which alone is under challenge in the appeal, is somewhat remarkable in its erudition. Whilst rejecting in the opposite party''s plea that the dispute did not come within the ambit of the Act, it was firmly held after an illuminating discussion that schooling is a "service" being rendered to the wards for monetary considerations namely the fees therefor. The view of the Calcutta High Court to the contrary was distinguished and it was held that the matter was justiciable before the redressal agencies. On the merits however. It was summarily held without recording any evidence whatsoever, that the complainant''s son was a sports-man, who was entitled to a benefit of more than 5% marks and adding the same to the S.M.E. percentage, it was preemptorily ordained to grant the relief in the terms noticed above.

MR. Harsh Aggarwal, the learned advocate for the appellants had vehemently assailed the majority view both as a matter of law and on the merits of the case as well. The jurisdictional objection to the very entertainment of the complaint which had been pleaded below has been strenuously pressed again. It was contended with vehemence that the field of education in general and that of private schools in particular is beyond the scope and ambit of service as defined under the Act. It was argued that education does not come within the enumerated categories of such facilities in Clause (o) of Section 2 of the Act. The firm stand was that the indicia of education were not compatible with service as defined. Apart from principle, the sheet-anchor of the appellants was the Single Bench judgment in AIR 1992 Calcutta 95 ''Smt. N. Teneja and Another v. Calcutta District Forum and Others. Before adverting to the aforesaid precedent. It is indeed refreshing to examine the matter on larger principle because of its patent significance in the field of consumer jurisdiction. Imevitably herein the whole controversy revolves around the wide ranging definition of ''service'' under the Act and it is apt to notice the same in extenso at the very out-set. "Service" means service of any description which is made available to potential users and includes the provision of facilities in connection with banking. Financing, insurance, transport, processing, supply of electrical or other energy, board or lodging or both, entertainment, amusement or the purveying a news or other information, but does not include the rendering of any service free of charge or under a contract of personal service".

A bare reading of the aforesaid provision would make it manifest that Parliament in its wisdom had cast the net widely to bring the widest varieties of services within the fold of the consumer jurisdiction. A close analysis of the said definition would disclose two fold range. Firstly service is defined generically as one of any description, which is made available to potential users. Herein the language is unqualified and obviously includes within its range any and every service which is so made available. The definition, then proceeds to enumerate a few categories of service which are expressly inclined within the same. However, this inclusion cannot possibly cut into the larger arena of the definition which includes services of any description made available to potential users.

TO employ the term of art in the interpretative exercise, it has to be highlighted that the afore-quoted definition is not an exhaustive one, but is patently an inclusive one. By enumerating certain categories, the legislature has only included therein some of the services which may otherwise'' be a matter of some doubt as to whether these were covered by the definition or not. This enumeration does not in any way constrict the essence and meaning of the word ''service'' for the purposes of the Act. Indeed it enlarges the same. Merely because education has been not in terms mentioned in the definition is no reason for holding that it is consequently excluded from its scope. Whenever education is imparted for consideration, it is obvious that there exist a quidproque for the providing of the amenity of education on one hand and the monetary recompense, therefore on the other. On larger principle there does not seem any logical reason for excluding education from the ambit of the definition under the Act.

SINCE, we are inclined to further hold that herein the matter is covered by analogous binding precedent, it seems somewhat unnecessary to labour the point too exhaustively on principle. A reference to the definition would show that commercial or industrial services or facilities provided to the public for consideration are expressly within its scope. In particular, banking, financing, insurance, transport, supply of electrical or other energy are in terms put within its ambit. Therefore, service of industrial or commercial or industrial or commercial nature automatically attract the applicability of the definition. It consequently, follows that whatever comes within the ambit of industry, when hired for consideration would be within its scope. Now binding precedent of the Final Court has held that education comes squarely within the ambit of industry in AIR 1978 S.C. 548 ''Bangalore Water Supply and Swerage Board v. A. Rajappa and Others''. Therein Krishna Iyer, J. speaking for the majority observed in his usually colourful language as follows:- "Para 33: If education and training are integral to industrial and agricultural activities, such services are part of industry even if high-browism may be unhappy to acknowledge it. It is a classconscious, inegalitarian outlook with an elitist aloofness which makes some people shrink from accepting educational institutions vocational or other, as industries. The definition is wide embraces training for industry which, in turn, ensconce all processes of producing goods and services by employer employee co-operation. Education is the nidus of industrialization and itself is industry." and again in Para No. 124:- Para 124: "Our conclusion is that the University of Delhi (AIR 1963 SC 1873) case was wrongly decided and that education can be and is, in its institutional form, an industry. and yet again in Para No. 116:- We dissent, with utmost deference, these propositions and are inclined to hold, as the Corporation of Nagpur (AIR 1960 SC 675) held, that education is industry, and as Isaacs, J. held, in the Australian case (1929) 41 CLR 569) (Aus.) (Supra) that education is preeminently service."

From the above, it would follow that if education is generically and pre-eminent a service, then it would be the more so within the expensive and large field of "service" as spelt out in its definition under the Act.

It remains to consider and distinguish the Single Bench judgment in ''Smt. N. Taneja and Another v. Calcutta District Forum and Others'' (Supra), which as already noticed is the main and perhaps the only plank of the appellants on this issue. There is no gain saying the fact that the observations therein go strongly in aid of the appellant''s plea. Mr. Aggarwal however, had fairly conceded that the said judgment is only persuasive and in no way binding on this Commission. Now a close perusal thereof would indicate that though the judgment is otherwise exhaustive on other matters the crucial issue before us has been disposed of summarily in the single paragraph 19 therein. It would appear that learned Counsel for the parties were somewhat remiss in not bringing to the notice of the Court the larger remifications of the issue on principle and the relevant binding precedents of the Supreme Court.

NOW the primal reason for holding that education was not a service in the words of the learned Single Judge himself is that from the definitions in the Act "it becomes apparent that the relationship of teacher and student of an educational institution is not a service on hire because student is not such a consumer which is linked any way with the buyer of any economic goods and the hire has not been linked with education, teacher and student." With the deepest deference, it has to be noticed that this observation misses the signal distinction between the two classes of consumer, namely those who buy any goods for consideration, who are a class apart, from the other category who hire any services for consideration. Defective goods or deficiency in service are distinct and separate concepts under the Act. Clearly enough education pertains only to the field of hiring any services, as with and has no relevance whatsoever with the purchase of defective goods. However with respect the Calcutta view has intermingled the issue of education as a service with that of a buyer of any economic goods. This obviously introduces a deep, if not fatal infirmity in the reasoning for arriving at the conclusion. Again the other reason for sustaining the view of the learned Single Judge is that the word ''education'' does not in terms fall within the categorised enumeration in the definition. With respect this view misses the signal factor that the definition of service to the Act is an inclusive one give in no way exhaustive. The real issue is that whether this would come within the ambit of the services of any description which is made available to the potential users for consideration. The more absence of the word education in the definition would not in any way be either relevant, or crucial to the issue. This is evident from the fact that recently in the land mark judgment of ''M/s. Cosmopolitan Hospital & Anr. v. Vasantha P. Nair'' I (1992) CPJ 302 (NC), the National Commission has categorically held that the services rendered by hospitals and the members of the medical profession for consideration constitutes services as defined in the Act. This is so, despite the fact that neither medicine nor hospitals in terms find a place in the definition. Similarly in I (1991) CPJ 1 (NC). U.P. Avasevam Vikas Parishad (Housing & Development Board v. Garima Shukla & Others'' the National Commission has held that the builder promoter relationship is a service under the Act. Obviously enough, the word builder or'' contractor do not find any place in the definition either. Other examples are legion, but it is unnecessary to multiply authorities. It suffices to say that the mere non-mention of what is otherwise a service in terms in the definition does not in any way mean that the same is excluded from its ambit. Lastly, but obviously not the least is the fact that the binding judgment of the Lordships of the Supreme Court in "Bangalore Water Supply and Sewerage Board v. A Rajappa and Others" (Supra), was not brought to the notice of the Bench. Therein it has been held in no uncertain terms that education is an industry and where a service of such a nature is hired for consideration it will afortiorari come within the ambit of the wide ranging definition of the service under the Act.

IT is unnecessary to trend the same ground over again, but in the light of the previous discussion and the specific reasons given above, we must respectfully record a dissent with the view recorded by the learned Single Judge in Smt. M. Taneja and Another v. Calcutta District Forum and Others (Supra). Within this jurisdiction what calls for pointed notice is the fact that this Commission has earlier in I (1992) CPJ 76, Tilak Raj of Chandigarh v. Haryana School Education Board, Bhiwani,'' held in no uncertain terms that the imparting of education for a consideration would come squarely within the ambit of service under the Act. Though not directly but by way of anology in I (1992) CPJ 33 ''Maharshi Dayanand Unversity, Rohtak v. Shukantala Choudhary'' it has been held that a University imparting education and conducting examination against fees is within the arena of consumer jurisdiction. Yet again in I (1992) CPJ 127 ''S.D.O. A.E.E. City Division, Hissar v. M/s. Hotel Palki, Hissar'' 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. It is then worthy of notice that the Orissa State Commission has taken an identical view in II (1991) CPJ 373 ''Smt. Monisa Samal v. Sambalpur University and Others''. Therein an objection was taken on behalf of the University, that its functions were not covered by the definition of service under Section 2(1)(o) of the Act and consequently the dispute was not a consumer dispute. Rejecting such a plea, it was observed as follows:- "The word ''service'' as defined in the Act includes ''services'' of any kind in wide spectrum except the exclusion in Section 2(d). The word ''includes'' does not limit the operational parameter of the Act. Examinations and publications of result is a service since the same gives benefit to a person who appears at the examination and becomes successful. For rendering the service, opposite party charges fees which can be said to be the hiring charges for such service. It is not personal service."

AN appeal was taken against the aforesaid view before the National Commission in I (1992) CPJ 231 (NC) ''Manisha Samal v. Sambatpur University & Ors (Supra). Therein the National Commission expressly took notice of the fact that the view had been taken that the appellants had hired the services of the University on payment of fees etc. The appeal of the complainant for further relief was dismissed. Though there is no pointed discussion on the matter, the judgment is a tacit affirmance of the view taken by the Orissa State Commission.

FINALLY conclude on this aspect, the answer to the question posed at the out-set 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. Once it is concluded as above, it inevitably follows that the pristine legal objection of the appellant on the threshold issue of jurisdiction has to be rejected. The view in the majority order that schooling is a service being rendered to the wards for the monetary considerations in the shape of a fee is hereby affirmed.

Though the respondent succeeds on the legal aspect of the case, yet his is indeed a pyrrhic victory. Mr. Harsh Aggarwal in the order has seriously and frontally assailed the majority order on merits and patent gaps therein had been pointed out. It was first argued that the two learned members of the District Forum have in undue haste chosen to dispose of the whole complaint on merits and granted the final relief in absolute terms as prayed for at the very threshold stage, when only the grant or otherwise of interim relief was in issue. It was pointed out that no evidence whatsoever was adduced in favour of the respondent-complainant''s stand. Even his own affidavit or any other proof about the authenticity or otherwise of his documents was placed on the record. Equally, (though the appellant had in this situation nothing to rebut) no opportunity whatsoever was afforded to lead any evidence and establish the firm stand taken by the applied in the written statement. It was the grievance that on a single date immediately following the filing of the written statement the matter was disposed of by the majority order, whilst the learned President rightly took the view that as yet the only issue was that of granting interim relief which also he had declined.

THERE is patent merit in the contention aforesaid, it would be unnecessary to labour the point because, we are inclined to take the view that this is concluded against the respondent by the considered view of this Commission in I (1991) CPJ 653, Executive Engineer, Operation, H.S.E.D. Hissar v. Dr. Chander Bhan; THEREin after a considered discussion of the issue, it was held as follows:- "In the light of the above, the answer to the question posed at the outset is rendered in the negative and it is held that a contested consumer dispute under the Act can only be decided on the basis of evidence and not de hors thereof."

The present case seems to be a typical one of the kind which stands expressly disapproved in the aforesaid conclusion. It needs no great erudition to hold that there was no evidence worth the name in this case at the relevant stage to merit a summary adjudication in favour of the respondent. Dr. Galhotra had very fairly admitted before us that he had led no evidence in support of his complaint by way of affidavit or the proof of the documents relied upon. He merely pleaded ignorance as a lay-man about such a basic tenet of adjudication in a quasi-judicial Forum. However, even this plea has no legs to stand upon because from the record, it is manifest that the complainant was represented by an advocate of standing in the proceedings before the District Forum. In view of the above, the present case is clearly one of no evidence whatsoever in support of the complainant''s case. This introduces a fatal infirmity in the majority order under appeal. For this basic reason, the same cannot be sustained and has to be consequently set-aside on this score alone.

HOWEVER, the matter does not rest at that Mr. Harsh Aggarwal, the learned Counsel for the respondent had forcefully argued in the alternative that the admission to the complainant''s son was denied bona fide strictly on merits by the respondent school. It was pointed out that the student whilst seeking fresh admission to the 11th class had in his application applied in terms for admission in the medical course only. This application was duly considered in competition with other who had applied for the same specific group. It was forcefully contended that the S.M.E. percentage of Master Ankur Galhotra was lower than all other students in the said group who were granted admission therein on the said date. It was further submitted that in the application form despite the fact that there was a specific column, the student had not claimed any weightage for sports activities (or for any other reason) far from establishing that there was any entitlement for such or that he had actually participated in any particular sports event. Assailing the majority view, it was vehemently contended that it had gone completely off the record without any foundation in first presuming any sports record in favour of the student and than adding a 5% weightage, therefore without reference to any rule or provision on the point. The aforesaid submission has to be viewed in the consent of the admitted fact that the respondent school is a purely private organisation. It is being run by the Apeejay Education Society, New Jawahar Nagar, Mahavir Marg, Jalandhar, which is strictly governed by its memorandum of association and Rules & Regulations which have been placed on the present record. It was forcefully submitted on behalf of the respondent that this said society or the school does not receive an lots or financial state aid, and is funded entirely by private agencies. There is thus no statutory obligation upon it with regard to the fresh admission to the school in the 11th class, though inevitably the rule of merit has to be given pre-eminence. A medi-cum of discretion to the school and the society in this matter cannot be altogether denied. It has been plausibly contended before us that no student has a vested right of fresh admission to the 11th class nor is there a corresponding statutory obligation on the respondent''s with regard thereto. Once that is so, the respondents are on a patently strong footing. A reference to the application for admission to Class 11th would clearly show that it was pre-eminently for the medical group. No alternative course is mentioned therein. Sr. No. 12 thereof has a specific column for any other claim which was left patently blank in the said application. The complainant by his signature had undertaken to abide by all the rules and regulation of the school inforce from time to time and further that the decision of the admission committee shall be final and binding. It is in this context that the significant factor has to be noticed that the relevant S.M.E. percentage of Ankur Galhotra was 793% whilst the last candidate given admission in the medical group had secured 80.3% marks in S.M.E. The applicant was thus excluded from admission against the seats reserved for that group on merits alone. The aforesaid percentages were not at all challenged by Dr. K.L. Galhotra before us. In conforming to the merit rule the respondents cannot in any way be held as blameworthy.

IT is then significant to notice that Mr. Ankur Galhotra in his application had not even remotely claimed any weightage for sports activities. Consequently, there was no question of giving any such weightage even if it existed at all. Even otherwise on the existing record, there is no material worth the name for the entitlement of any such alleged weightage. The criticism of the learned Counsel against the majority order on this score is thus justiciable one.

IT would appear that only after the admission to Ankur Galhotra had been declined on a full consideration by the Admission Committee on merits, his father subsequently approached the Principal of the school to make a charge of course to either non-medical or commerce. Before us it was conceded by Dr. Galhotra that after the merit list has been published and his son''s name found no place therein, he had thereafter contacted the Principal. In this context his claim that some hopes were dangled before him or any oral assurance had been given has been firmly and categorically denied on behalf of the respondents. The admission having once been closed in the school, there was no question of reopening the case with regard to the admission in other courses. In any case the complainant cannot possibly claim any such right nor the respondents are under any obligation to do so. Lastly the broad para-meter within which the consumer jurisdiction operates in this field cannot be lost sight of. A deficiency in service to be justiciable has to be with regard to a standard either required to be maintained by or under any law or one in pursuance of a contract therefor. Obviously in the present case, no prescribed legal sanction or standard for such deficiency could be pointed out. Equally no such obligation in pursuance of any such contract would apply herein. In declining admission to the student on the basis of his merit in the medical group, it could not even remotely be said that the respondents were guilty of any deficiency in the service of education which they had undertaken to perform. It must, therefore be held that on merits also no case for interference to the present jurisdiction has been made out.

For the fore-going reasons, the majority order granting relief in absolute terms cannot be sustained. We are constrained to set it aside. The appeal is hence, allowed, but we decline to burden the respondent-consumer with any costs. Appeal allowed. ORDER DEPARTMENT OF FOOD, SUPPLIES AND CONSUMER AFFAIRS Delhi, the 17the June, 1992. No. F. 50(41)/91 - F&S/CA/888:- In supersession of this Administration''s order No. F. 50(41)/91- F&S/CA/18 dated 6th January, 1992 and in pursuance of the provisions of Rule 4 of the Delhi Consumer Protection Rules, 1987 framed under the Consumer Protection Act, 1986, the Administrator of Union Territory of Delhi is pleased to order that the distribution of business between the District Forum No. 1 and District Forum No. II shall, with immediate effect and until further orders, be regulated as follows: Name of the description of the District Forums Area of Jurisdiction Police Stations 1 2 3 District Forum I Cases pertaining to police stations falling within the North, North East, East, Central and North West Police Districts. 1. Civil Lines 2. Timar pur 3. Maurice Nagar 4. Roop Nagar 5. Subzi Mandi 6. Pratap Nagar 7. Sarai Rohilla 8. Sadar Bazar 9. Kashmiri Gate 10. Bara Hindu Rao 11. Kotwali 12. Lahori Gate 13. Town Hall 14. Seelampur 15. Gokal Puri 16. Bhajanpura 17. Shahdara 18. Welcome 19. Mansarover Park 20. Seema Puri 21. NandNagri 22. Yamuna Vihar 23. Gandhi Nagar 24. Gita Colony 25. SakarPur 26. Vivek Vihar 27. Anand Vihar 28. Krishna Nagar 29. Preet Vihar 30. Trilok Puri 31. Kalyan Puri 32. Mayur Vihar 33. Darya Ganj 34. Chandni Mahal 35. Jama Masjid 36. Kamla Market 37. Hauz Qazi 38. I.P. Estate 39. Pahar Ganj 40. Nabi Karim 41. D.B. Gupta Rd. 42. Karol Bagh 43. Parshad Nagar 44. Rajinder Nagar 45. Saraswati Vihar 46. Kanjhawala 47. Mangol Puri 48. Sultan Puri 49. Narela 50. Samaipur Badli 51. Alipur 52. Model Town 53. Adarsh Nagar 54. Jahangir Puri 55. Mukherji Nagar 56. Ashok Vihar 57. Shalimar Bagh 58. Keshav Puram

District Forum II Cases pertaining to police stations falling within the North, North East, East, Central and Northwest Police Districts 1. Lajpat Nagar 2. Nizammuddin 3. Sriniwas Puri 4. Defence Colony 5. Lodhi Colony 6. Kotla Mubarak Pur 7. Kalkaji 8. Badar Pur 9. Okhla Indl. Area 10. Hauz Khas 11. Malaviya Nagar 12. Mehrauli 13. Greater Kailash 14. Chittaranjan Park 15. Ambedkar Nagar 16. Tilak Nagar 17. Janak Puri 18. Vikas Puri 19. Patel Nagar 20. Anand Parbat 21. Moti Nagar 22. Rajouri Garden 23. ari Nagar 24. Kirti Nagar 25. Punjabi Bagh 26. Paschim Vihar 27. Nangloi 28. Vasant Vihar 29. Vasant Kunj 30. R.K. Purarrt 31. Vinay Nagar 32. Delhi Cantt. 33. Naraina 34. Inderpuri 35. Mayapuri 36. Najafgarh 37. Dabri 38. Jaffarpur Kalan 39. Palam 40. Mahipal Pur 41. Parliament St. 42. Mandir Marg 43. Chanikya Puri 44. Tughlak Road 45. Connaught Place 46. Tilak Marg