G.P. TIWARI vs District Magistrate, Sonbhadra

-THIS is an appeal under Section 15 of the Consumer Protection Act, 1986 (hereinafter called the ''Act'') against judgment and order dated 22.10.2001 passed by District Consumer Forum, Sonbhadra in Complaint Case No. 192 of 2001.

INITIALLY a complaint was filed with the allegation that there are four primary schools running under the control of Cement Factory (Churk) in which two primary schools are recognised by Basic Shiksha Parishad, Mirzapur w.e.f. 14.12.1956. The petitioner is Head Master of the recognised Cement Factory Primary Pathshala, Purani Churk, Sonbhadra and his sons Rohit and daughter Km. Saraswati are under his guardianship also. Some hinderance has occurred to conduct the annual examination of 2001 of the 5th class and the petitioner is facing difficulties caused by non-payment of salary for near about 40 months. It was also averred that the District Magistrate concerned had passed orders on 16.4.2001 regarding commencement of the examination of 5th class of the aforesaid school which is illegal because the Cement Factory Primary School, Purani Churk is a recognised institution which is not running under the control of Principal, Cement Factory, Churk and Ghurma. In this connection the complainant had filed a writ petition in 1996 before the Hon. High Court of judicature at Allahabad in which orders were passed not to interfere in the jurisdiction related to or in any case the Head Master, Cement Factory Primary Pathshala, Purani Churk. Further the Hon. High Court has appointed an official liquidator w.e.f. 8.12.1999 to look after the Cement Corporation, Churk. Then Smt. Rekha Srivastava, B.S.A. vide order dated 15.9.1998 brought to notice that none of the Primary Schools of the Cement Factory, Churk is recognised and hence the aforesaid B.S.A. refused to make counter signature over TCs of the students with the result TCs to 5th class students passed were not issued and as such the present B.S.A., Sonbhadra is not accepting the recognition of the aforesaid schools. It has further been averred that now the admission in Class VI of the 5th class students passed from the aforesaid school is not being taken by the Principal, Rajkiya Inter college, Churk Cement Factory and General Manager in absence of not providing the affidavit whereas the admission in Class VI was being taken till 1998 on the basis of certificate issued by the aforesaid primary school.

The respondents raised objection against the averments made in the complaint on the basis that Annual Examination for the Session 2000-2001 of Class Vth students was over in May, 2001. Further on going through the previous records of recognition of the school seems to be confusing because the school has been recognised vide letter dated 14.12.1956 whereas none of the schools of Churk has been said to be recognised vide letter dated 15.9.1998. Also payment of salary of teachers of any non-recognised school of the District is not their concern. Only teachers of the District Board of Primary Schools and recognised teachers and workers of recognised schools are paid salaries. Further TC can be issued only by the recognised primary school. Further in the interest of students, B.S.A. had issued a letter to Cement Factory Inter College, Churk to take admission of the students.

THE District Forum passed the impugned order partially allowing the complaint directing the opposite parties to admit the daughter Km. Saraswati and son Rohit Kumar of the complainant to Class IV in the Inter Collage Cement Factory, Churk in the Session 2000-2001 on submission of certificate of examination passed in 2001 and T.C. of Class Vth from Primary Pathshala, Churk be taken immediately without creating any hinderance. Aggrieved against the same the appellant has come in appeal. We have heard the learned Counsel for the appellant Mr. T.N. Saxena as well as complainant. Mr. Chandrika Ram, who is present in person and have also perused the material available in record.

IN our considered view the appeal has force and the impugned order is liable to be set aside for the following reasons: (1) The complainant is not the consumer within the meaning of Section 2(1)(d) of the Act. The grievance of the complainant is that in view of the facts and circumstances, the complainant''s children are entitled for admission in the classes of the Cement Factory Primary Pathshala, Churk which is run under the guidance of Basic Shiksha Adhikari. IN order to decide the contention as to whether a particular complaint case is within the definition of consumer dispute or not, one has to prove that the hiring of service is for a consideration and there is deficiency in service thereof. By the amendment incorporated in the Consumer Protection Act, 1986 which came into effect from 18.6.193 the case of availing service for a consideration has also been brought into the definition of "consumer Dispute" in case there is any deficiency in service. Here it is not a case of hiring of any service and since the complaint was filed in the year 2001, even the request of availing of service cannot be taken into consideration. Obviously the District Forum has committed a legal irregularity in maintaining the complaint and accordingly admission of the two children in class VI. Paras 2 to 10 of the complaint describe the dispute relating to the power of recognised Cement Factory School and the Principal of the INtermediate College, Churk. Even the mater went up to Hon. High Court. Obviously this point does not come under the purview of the Consumer Protection Act.

(2) The college admits fresh children directly on the basis of a written test for which the candidates or their guardians have to deposit fees. IN the instant case the complainant has not deposited any admission test fee and as such it cannot be a case of hiring of service. The matter was ventilated and vouched in the complaint relates to admission of the children. It is a proper matter in which the complainant could have sought remedy by knocking the doors of Civil Court or the Educational Authority. Obviously, the Consumer Forums are not the body to entertain, much less adjudicate, such disputes.

The appeal has force. The impugned judgment and order are liable to be set aside. ORDER The appeal is allowed. Judgment and order of the learned District Forum is set aside and the complaint is dismissed. There will be no order as to the costs. Appeal allowed.