HARVINDER KAUR vs PRINCIPAL

THIS order will dispose of two cross appeals bearing Nos. 525 and 617 both of 2003 filed against one and the same order dated 7.8.2003 passed by the District Consumer Disputes Redressal Forum-II [for short hereinafter referred to as the District Forum] in Complaint Case No. 585 of 2001. Appeal No. 525 of 2003 has been filed by the complainant Ms. Harvinder Kaur, daughter of Mr. Kulwant Singh, resident of House No. 3868, Sector 32-D, Chandigarh whereas appeal No. 617 of 2003 has been filed by the O.P. No. 1-Principal, Homeopathic Medical College and Hospital (for short herinafter referred to as the College), M-671, Sector 26, Chandigarh.

THE complaint was filed before the District Forum seeking refund of fees amounting of Rs. 11,975/- and Rs. 2,100/- along with interest from the date of deposit till its realization and compensation for harassment caused to the complainant by the O.Ps. which was claimed at a sum of Rs. 10,000/-. The complainant had sought admission in free category for the course of study of one year of BHMS Degree and had taken admission for the year 1999-2000 which was of a period of eighteen months. She had paid the admission fees vide receipt dated 24.4.1999 (copy Annexure C-2) amounting to Rs. 6,000/- and paid the balance amount of fee of Rs. 9,975/- vide receipt Annexure C-3 which was payable to O.P. No. 2-Council of Homeopathic System of Medicines, Punjab, SCO No. 3027, 28, 2nd Floor, Sector 22-D, Chandigarh but she could not pass the examination and she discontinued her further studies.

The grievance of the complainant was that though she had not passed the First Professional Examination of BHMS Degree Course and had not been promoted to the Second Year (Second Professional Course) yet the O.P. No. 1 College recovered from her the fee for the 2nd year vide Receipt Annexure C-5 dated 31.8.2000 for a sum of Rs. 11,975/- and sum of Rs. 2,100/- vide Receipt Annexure C-6 dated 9.1.2001. The fees was, however, not refunded to the complainant when her result was annexed and she could not pass the examination of the First Professional. She applied for refund of the fees deposited for the 2nd Professional Year but the same was refused despite a legal notice (copy Annexure C-7).

IT is not disputed by the O.Ps. who appeared and filed written statement that she had deposited fees for the first year (First Professional) which was of a sum of Rs. 15,975/- deposited vide two receipts of Rs. 6,000/- and Rs. 9,975/- respectively and also deposited Rs. 2,100/- as enrolment fee vide Receipt (copy Annexure C-4). The result of the First Professional examination which was conducted in March 2001 was declared on 11.5.2001. However, the Second Professional Course commenced from April 2001 and the complainant had been attending her classes as she was professionally allowed to attend the same vide Circular No. HMC/G-31/755 dated 28.5.2001 for about two months. The Second Professional Course of BHMS was of a duration of twelve months while the First Professional Course was of a duration of eighteen months. The subsequent Third and Fourth Professional Courses of BHMS were of twelve months duration each and apart from it, Internship was of a duration of twelve months. IT was contended that the complainant was, in routine and normal pratice, allowed to attend the next higher classes i.e. Second Professional Course so that their courses are covered well in time. IT was further contended that the fee for the Second Professional Year was correctly recovered by O.P. No. 1 for the complainant. The allegation of deficiency in service was denied on its part. The District Forum directed that O.Ps. to refund the proportionate amount of Rs. 3,992/- as out of the total fees of Rs. 11,975/- as she had attended the college for the Second Year for about eight months. The interest was allowed on a sum of Rs. 3,992/- @ 6% per annum from 11.5.2001 till payment. A sum of Rs. 500/- was awarded as costs of litigation. The order was directed to be complied with by the O.Ps. within two months from the date of receipt of certified copies of the order.

FEELING aggrieved by the impugned order, O.P. No. 1 filed appeal contended that the District Forum committed an error in allowing the refund of a sum of Rs. 3,992/- with interest @ 6% per annum from 11.5.2001 till payment and in awarding costs of litigation of a sum of Rs. 500/- as no sum deposited towads fees by the complainant was liable to be refunded to her once she attended the classes of the Second Professional Course under the terms and conditions of the Prospectus of the College, a copy of which has been placed on record in appeal. On the other hand, the contention of the complainant was that the District Forum committed an error in deducting from a sum of Rs. 11,975/- the proportionate amount and in allowing the refund of only a sum of Rs. 3,992/- as the proportionate amount with interest. The short question which arises for decision is whether the O.P. No. 1/appellant is legally justified in refusing to refund the amount of the fees deposited by the complainant while being admitted provisionally to pursue studies in the next higher course of Second Professional Year of BHMS under the terms and conditions of the Prospectus.

MR. V.K. Vashishta, learned Counsel for the appellant/O.P. No. 1 referred to Note No. 2 appearing at internal Page 10 of the Prospectus which provided that the fees and other charges, once paid, shall not be refunded and the students shall not be entitled to claim refund, even if the students do not join the classes or leave the course midway or at any other time. He has relied on the judgment of the Hon''ble Punjab and Haryana High Court delivered in the case of C1997 (3) Recent Services Judgments 346, holding that the respondent would be bound by the terms and conditions of the brochure, as they have declared to the public and cannot be permitted to amend or alter them at any subsequent stage and especially in absence of reservation of such a power. The case related to the petitioner who was appointed as Junior Laboratory Technician in the respondent-institute. Regarding the brochure governing the appointment, it was held "The brochure must be read as written and it will not be permissible to add or substract words from the language of such clause and on the basis of which not only the petitioner but the public at large has acted upon. The respondents would be bound by the terms and conditions of the brochure, as they have declared to the public and cannot be permitted to amend or alter them at any subsequent stage and especially in absence of reservation of such a power."

THE facts of the instant case lie in a different context. In the instant case, the complainant after completing the course of study for the First Professional Year of BHMS Decree appeard at the examination conducted in March-April, 2000 and before the result of this examination could be declared, the Courses for the Second Professional Year of BHMS commenced and the students who had taken examination for the First Professional course of BHMS Degree were allowed in routine and normal practice to attend the classes for the next higher course. THE result was declared on 11.5.2001 but the admission had been granted provisionally prior to this period. It is not disputed that the complainant failed to qualify the examination held for the First Professional Year of BHMS Degree Course and was not entitled to pursue her studies for the Second Professional Year of the BHMS Degree Course. The complainant cannot be held in any way responsible for the late declaration of the result which was the own duty of the O.P. No. 1-College. Apart from this, the complainant cannot herself seek admission to the next higher class i.e. Second Professional Year of BHMS Degree Course on her own unless and until, the College aforesaid had permitted her to do so and it is the case of the College that in the routine and normal practice, provisional admission was allowed. Once we find that the complainant having failed to pass the examination conducted for the First Professional Year Course of BHMS Degree, she could not legally pursue her studies for the course of Second Professional Year of the same BHMS Degree and as such she cannot be blamed for the situation in which she found herself on 11.5.2001 when the result was declared.

It is not the case of the College that the complainant herself after validly and legally taking admission for the studies in the Second Professional Year of BHMS Degree Course, left the College either to pursue her studies elsewhere or for any other reason. In this backdrop, the Prospectus of the College is to be interpreted harmoniously and such an interpretation is to be adopted which brings the case to its logical end. As seen above, the complainant for no fault of her own was allowed admission to the Second Professional Course of BHMS Degree on provisional basis and subject to her result being declared for the examination conducted in respect of First Professional Year of BHMS Degree Course. Since the complainant failed to qualify at the said examination and became ineligible to pursue the studies for the next course of Second Professional Year of the said BHMS Degree, the only logical conclusion which can be drawn is that she herself on her own accord did not abandon her studies at the College and the College was required to refund not only the proportionate fee but the entire fee deposited by her as for whatever period she was allowed to attend the College for the study of the Second Professional Year of BHMS Degree, the same was legally not permissible and she was ineligible for the same.

RESULTANTLY, we find that there is no merit in the appeal No. 617 of 2003 filed by O.P. No. 1- Principal, Homeopathic Medical College and Hospital and same is dismissed. The appeal filed by the complainant Ms. Harvinder Kaur i.e. appeal No. 526 of 2003 is allowed and the order of the District Forum is modified to the extent that the O.Ps. are directed to refund the entire amount of fees which is of sum of Rs. 11,975/- with interest @ 6% per annum from 11.5.2002 till payment. The amount of securities deposited by the complainant with the O.P. No. 1-College is liable to be refunded subject to adjustment of any dues that may be found outstanding against her. The payment of the refund of the amount be made within a period of two months from the date of receipt of certified copy of this order. Copies of this order be sent to the parties free of charge. Ordered accordingly.