BIHAR SCHOOL EXAMINATION BOARD vs ARUN KUMAR MISHRA

O.P. is the appellant who has preferred the appeal against the order dated 13.10.1998 passed by District Manager, Madhubani in Complaint Case No. 18/1998 whereby and whereunder the appellant (O.P.) have been ordered to give appropriate marks in the Hindi paper to the complainant''s son on average basis, then declare his result and further directed to pay Rs. 10,000/- to the complainant (respondent) by way of compensation and Rs. 100/- as cost of litigation.

THE brief fact of the case is that complainant alleged that his son namely Utpal Kumar Mishra appeared in 1997 (annual) examination conducted by Bihar School Examination Board having Roll No. 096 and Code No. 6208 but he was declared to have failed as he secured only 20 marks in Hindi paper. THE complainant was not satisfied with the marking of his son in Hindi paper and applied for re-evaluation in the Hindi subject and he deposited Rs. 25/- as a requisite fee for the same. It is also the case of the complainant the Headmaster of the school in which his son was reading was also not satisfied with the marking in the Hindi paper and in his view the examiner was under wrong impression that full mark in Hindi paper was only 50. THErefore, the Headmaster of the school had sent letter No. 81 dated 11.9.1997 to the O.P. -appellant for re-examination of the copies of Hindi paper. But even after waiting for several months the Hindi paper was not scrutinized or re-evaluated by the Board nor any reply was given to the complainant. Being aggrieved, the complainant filed the case before the District Forum. Before the District Forum the O.P. -appellant raised the question of maintainability of the case under the Consumer Protection Act and both the parties were heard on the preliminary issue and the Forum held by order dated 28.7.1998 that the case was maintainable and thereafter both the parties were heard and the impugned order was passed.

The District Forum held that O.P.-appellant have not paid any heed to the request of the complainant even after he deposited Rs. 25/- the required fee for re-evaluation of the paper. The appellant also did not consider the letter of the Headmaster of the institution dated 11.7.1997 in which he had made request for re-examination of the Hindi paper as he was under impression that under some confusion the marking in this paper has been done by the examiner because many boys had failed in Hindi paper who secured less than 30 marks when in other papers they have secured high marks including first division mark. The District Forum did not accept the contention of the appellant that when the order of re-examination was passed by the Board it was found that Hindi paper of the complainant''s son was missing from the bundle due to connivance of the complainant who is a lecturer in Botany in the local college. The District Forum held that it amounts to deficiency on the part of the appellant and passed the impugned order.

WE have heard both the parties and the main contention of the appellant before us is that when the matter of re-evaluation of Hindi paper of the complainant''s son was taken up it was found that copy was missing from the bundle and as such re-evaluation could not be done. 20 marks in Hindi paper was mentioned on the marks sheet on the basis of marks foil. On verification of the Board it was detected that there was over writing on the mark foil by way of try to get 30 marks in place of 20 marks in subject in question. Considering these facts the Board took the decision for not changing in the marks of the student and communicated the same on 11.4.1998 vide letter No. 81 to the Headmaster of the school concerned as per Annexure-A. Thus, the Board has rejected the claim of the students for re-evaluation. It is also the contention of the appellant that the complaint is not maintainable and the appellant being a statutory authority established under Section 3 of the Bihar School Examination Board Act, 1952 and it can be sued and be sued and as such the complaint was itself not maintainable and no relief could be given to the complainant. The Board was superseded on 4th September, 1996 and Administrator was appointed. The appellant does not come under the definition of consumer as defined under Section 2(1)(d) of the Act, as such, the complaint was not maintainable and the finding of the District Forum that complaint was maintainable was against the provision of law."Education does not come within the scope of the Act and under the Act Bihar School Examination Board cannot be said to be rendered any kind of service in lieu of any consideration". In reply the learned lawyer of the respondent (complainant) submitted that there is no merit in the contention of the appellant that the complaint was not maintainable because the appellant does not come under the category of service rendered by the Bihar School Examination Board and it is a statutory body. The complainant is a consumer because his son has paid Rs. 25/- for rechecking/re-evaluation of Hindi paper as per rule of the Bihar School Examination Board. This fact has not been denied by the appellant. It is also admitted fact that re-checking of Hindi paper could not be done probably because the copy of the complainant''s son was missing from the bundle as submitted on behalf of the appellant. If this is a fact then it amounts to negligence and deficiency in service rendered by the appellant to the examinee. The reason assigned by the appellant that complainant in connivance of the staff of the Examination Board got the copy of the complainant''s son misplaced from the bundle but no evidence has been adduced in support of this allegation. On the other hand, if this was the fact then appellant should have held inquiry in the matter because it is a serious allegation against the staff of the Bihar School Examination Board as well as against the complainant. There were many recourse opened before the appellant including to institute a criminal case against its erring staff but there is nothing on record that any step was taken by the appellant in this regard. Therefore, the finding arrived at by the District Forum that there was deficiency on the part of the appellant is in accordance with the fact and law on record.

IT is by now settled law that statutory bodies like the appellant have to perform both administrative as well an imparting education to conduct examination, which includes publication of result etc. The administrative aspect relating to education is not excluded from the definition of service. In several decisions including that of Hon''ble Supreme Court in the judgment of Lucknow Development Authority v. M.K. Gupta, III (1993) CPJ page 7 (SC) where it has been held that a Government or Semi, Government body or a local authority is as much amenable to the Act (C.P. Act) as any other private body rendering similar service. In absence of any indication, express or implied there is no reason to hold that authorities created by statute are beyond the purview of the Act. No distinction can be drawn in private and public transport or Insurance Companies. In the latest ruling in Pravin Rani v. Punjab School Examination Board, reported in III (2003) CPJ page 164 (NC), the Hon''ble National Commission held that where mark sheet or certificate is delayed, i.e., not a consumer dispute but if there is total negligence of duty in supplying the marks at the time of declaration of the result, i.e., deficiency in the service. In another case the Hon''ble National Commission, Controller of Examination, Himachal Pradesh v. Sanjay Kumar, I (2003) CPJ page 273 (NC), held that "it is not the intention of the Commission to exclude even the administrative aspects relating to education from the definition of service. This aspect is to be seen to be falling within the definition of service". In view of the above case laws and in a recent decision reported in III (2004) CPJ 424, Uttaranchal State Consumer Commission held, Anisha Khatun v. Board of High School that non-supply of roll number in time amounts to deficiency in service. Likewise, in the present case where as per rule of the Bihar School Examination Board when the complainant has deposited Rs. 25/- for re-examination of the Hindi paper it was the duty of the Board in its administrative capacity to get the copy examined and to communicate the complainant''s son its result. We are not concerned with the marks obtained by the complainant''s son whether he got pass marks or fail marks, altogether it is a different aspect, and beyond the purview of consumer disputes but where the Board faild in its administrative duty, i.e., inspite of deposit of the requisite fee the copy was not re-examined, it amounts to deficiency in its service. The plea taken by the appellant for not re-examining the Hindi paper is not acceptable to us because there is no evidence in its support rather it goes against the appellant which admittedly took no action against the staff of the Board whom it alleges that with the connivance of the complainant the copy of Hindi paper misplaced from the bundle. Therefore, we are of the view that not re-examining the Hindi paper of the complainant''s son after accepting the required fee amounts to deficiency in service. Therefore, we see no ground to interfere with the order of the District Forum. However, the first part of the operative order of the District Forum, i.e., "appellant should give appropriate marks in Hindi paper to the complainant''s son on an average basis and then declare his result with division" in our view is not a correct order because this part of the order is beyond the purview of the C.P. Act. As such, this part of the order is set aside. But we have found the appellant deficient in its service, therefore, the order of payment of compensation of Rs. 10,000/- by the appellant to the complainant and litigation cost of Rs. 100/- only are justified and this part of the order is hereby confirmed. The appellant is directed to comply this part of the order within two months from the date of this order. With this modification in the impugned order, the appeal is dismissed. Appeal dismissed.