GANGA RAM CHANDNA vs PRINCIPAL, DOON PUBLIC SCHOOL

BRIEF facts giving rise to this appeal are that the complainant''s son was admitted to Doon Public School, Paschim Vihar, Delhi on 17.3.88 to the VIth class. The school is being run by a registered private society and as stated by the learned Counsel for the respondent, it has no connection with the well-known Doon School of Deharadun. In 1993 the said student passed the Board Examination of Xth class securing 62% marks. He sought admission to the next higher class in science subjects. He was denied admission after keeping the matter hanging for about three weeks. According to the complainant admission to the school in 1988 was done by charging Rs. 1,000/- as donation which was, infect, an extraction. Admission to the XIth class was denied as a donation of Rs. 2,000/- was demanded but the complainant was not willing to pay the same. In order to save an academic year of the student, the complainant withdrew his son after obtaining School Leaving Certificate on 23.6.93. Apparently he got admission in some other institution. He was put to great mental tension and expenses and he, accordingly, filed a complaint before District Forum-II on 21.6.93. The complaint was contested. By the impugned order, District Forum-II dismissed the complaint mainly on the ground that the complainant failed to lead any evidence to show that any student with lesser marks had been given admission in the science subjects on payment of Rs. 2,000/- as donation. Aggrieved by the order the complainant has preferred this appeal.

WE have heard Mr. Pradeep Kumar, Advocate for the appellant and Mr. Francis Paul, Advocate for the respondent. The first contention of Mr. Paul is that the subject of education is outside the purview of the Consumer Protection Act and the FORA constituted under the Act have, thus, no jurisdiction. Mr. Paul placed reliance on a decision of learned Single Judge of Calcutta High Court in Nirmal Teneja & Another v. Calcutta District Forum & Others, II (1992) CPJ 591. The contention of Mr. Pradeep Kumar, on the other hand, is that there is ample authority for the proposition that education as such is not outside the purview of the Consumer Protection Act and the definition of the word ''service'' occurring in Section 2(o) of the Act includes education as well. He placed reliance on Tilak Raj v. Haryana School Education Board, Bhiwani, I (1992) CPJ 76 (Har.), A.P.J. School v. K.L. Galhotra, II (1992) CPJ 807 (Har.) A.P.J. School v. Sh. M.P. Bhanot Others, III (1992) CPJ 254 (Har.), Apeejay School v. M.K. Sangal, I (1993) CPJ 9 (Delhi) The Registrar (Evaluation) Bangalore University v. Mrs. Parida Ansari, III (1993) CPJ 1252 (Karnatka) and M.K. Jacob v. S.P. Soman & Anr., 1994 (1) CPR 625 (Kerala). On a careful consideration of the matter we are of the view that the word ''service'' has been defined in Section 2(o) of the Consumer Protection Act in widest possible terms to mean "service of any description". Admittedly education taken as a whole does not fall within the exclusionary clauses of the definition. The exclusionary clauses relate to (a) rendering of any service free of charge and (b) under a contract of personal service. We are aware that the National Commission has held in the decisions noted hereunder that the facts did not disclose a ''consumer dispute''. These decisions are Registrar, University of Bombay v. Mumbai Grahak Pancyhayat; Bombay, I (1994) CPJ 146 (NC) and Joint Sercetary Gujarat Secondary Education Board v. Bharat Narottam Thakur, I (1994) CPJ 187 (NC). These are distinguishable. In the first of these decisions the question was whether valuation of answer books is a service. In the second decision referred to above the question was whether conduct of examination by the Education Board amounted to service within the meaning of the Act. In the present case, on the other hand, the question involved is, whether the student could be denied admission to a higher class on passing the Xth class examination from the same very school on the ground that he had failed to secure the cut-off percentage of marks prescribed by the School Management. These decisions, therefore, do not apply to the present case. We have not been referred to any decision of the National Commission to the effect that the whole subject of education including the question of admission to a higher class, when admittedly the student is paying fees, stands excluded from the purview of the Consumer Protection Act. We, therefore, hold that the Forum under the Consumer Protection Act has jurisdiction in this case.

The next question is whether the student was denied admission to the XIth class. The case of" the complainant is that his son was denied admission to the XIth class in science subjects on the ground that he had failed to secure the cut-off percentage of 70%. His further case is that he was also denied admission to non-science subjects as well. The case of the respondent, on the other hand, is that the student was denied admission to the science subjects on the basis of cut-off percentage but was not denied admission to non-science subjects. On behalf of the appellant, our attention was invited to the application dated 23.6.92 for the School Leaving Certificate. Its copy was filed as Annexure-2 with the complaint and a copy is available on the record of the appeal file at page-10 of the paper-book. Interalia, it was stated by the complainant in the application that his son had been refused admission "in science as well as any subject". On behalf of the respondent no cogent evidence has been produced to show that admission to non-science subjects were offered but the same was not availed of by the complainant. We, therefore, hold that in the present case admission was denied not only to science subjects on the basis of cut-off marks but also to non-science subjects.

ON behalf of the complainant we were referred to a decision of the Delhi High Court in Miss Payal Gupta v. Lt. Governor of Delhi, 1994 (III) AD Delhi 1119. ON a consideration of the relevant provisions of the Delhi School Education Act, the rules framed thereunder and the relevant case law, a Division Bench of Delhi High Court held that an unaided recognised school cannot of its own fix a criteria of not admitting its own students to Class XI unless they secured certain minimum percentage of marks in class X examination which is a public examination. The aforesaid judgment of Delhi High Court was affirmed by the Supreme Court in the Principal Cambridge School & Anr. v. Payal Gupta & Ors., 1995 (2) Supreme Court Services Law Judgments 157. Their Lordships of the Supreme Court considered the provisions of Section 13(3) of Delhi School Education Act, 1973 and Rule 145 read with Rule 135 of Delhi School Education Rules, 1973. Their Lordships held that admission to the higher class in the same school did not tantamount to re-admission or a fresh admission to the education institution and the school could not fix any cut-off percentage to deny admission to such student in the next higher class. In other words, there was no such enabling provision in the Delhi School Education Act or the rules framed thereunder any rule to the contrary being ultra-vires. We have not been referred to any circular of instructions issued by the authorities under the School Education Act prescribing any such cut-off percentage. No such circular was placed on record of the Trial Court or before us.

FOR the foregoing reasons, we hold that the respondent was guilty of deficiency in service in denying admission to the appellant''s son as a result of which the appellant was obliged to withdraw his son from the school and get him admitted to some other school entailing disturbance and extra expenses. On a consideration of totality of facts and circumstances we are of the view that the just and reasonable compensation of Rs. 10,000/- would meet the ends of justice. We, accordingly, allow the appeal, set-aside the order of the District FORum and direct the respondent to pay the aforesaid compensation within one month of the receipt of a copy of this order failing which necessary action u/Section 27 would be initiated against it. A copy of this order be communicated to the parties as well as District FORum-II. Appeal allowed.