Haryana Board of School Education vs MANISHA

-THIS appeal is directed against the order dated 4. 1. 2006 passed by the District Consumer Disputes Redressal Forum, Narnaul whereby while accepting the complaint of the respondent-complainant direction has been given to the appellant-opposite party to pay Rs. 20,000 as compensation to the complainant along with interest @ 9% per annum from the date of filing of the complaint till payment and also to pay Rs. 1,100 as litigation expenses.

PUT shortly, the facts of the case are that the complainant had appeared in Matriculation Examination conducted in April, 2003 by the opposite party with Roll No. 686133. She was declared fail. The complainant applied for re-checking of the papers and was thereafter declared pass in the said examination. The opposite party failed to send the Matriculation Certificate to the complainant despite requests made to it with the result the complainant could not apply for admission in higher class and her one year was wasted due to negligence and deficiency of service on the part of the opposite party. Forced by these circumstances she filed complaint before the District Forum seeking direction to the opposite party to pay compensation of Rs. 1,00,000 to her. The complaint was contested by the opposite party. In the written statement filed it was not disputed that initially when the complainant had appeared in Matriculation Examination in April 2003 she was declared fail and after she had applied for re-checking of the papers, she was declared successful on 8. 3. 2004. It was further stated that the Matriculation Certificate was sent to the complainant vide Registration No. 2611 through registered post but inadvertently the name of the school was written as Village Dhor Kalan instead of Village Dongra Jat and for that reason it could not be delivered to her. When this factual position came to the knowledge of the opposite party, the complainant was informed as per registered letter No. 2123 dated 25. 5. 2004 that she could obtain fresh Marks-Sheet/certificate after depositing the old Marks-Sheet in the office of the opposite party but she failed to comply with the same and for that reason the complaint merited dismissal. Taking into account the respective stands of the parties and evidence adduced on record the District Forum found no substance in the stand of the opposite party and while accepting the complaint issued the directions in its order dated 4. 1. 2006 noticed above. Hence, the present appeal at the behest of the appellant-opposite party. Learned Counsel representing the appellant-opposite party as well as father of the respondent-complainant has been heard at length.

Challenge to the order dated 4. 1. 2006 of the District Forum has been made by the learned Counsel representing the appellant-opposite party on two counts. Firstly, that the District Forum had no jurisdiction to entertain the complaint as holding of examination was statutory duty of the opposite party and the grievance made in this regard cannot be termed as a consumer dispute. In support of the stand taken reliance was placed on cases, A. Shekher Rao of Hisar v. Kurukshetra University and Anr. , 1993 CPC 547 (Haryana); Kurukshetra University v. Naresh Kumar, 1994 (2) CPC 233 (NC); Joint Secretary, Gujarat Secondary Education Board v. Bharat Narottam Thakkar, I (1994) CPJ 187 (NC)=1995 (2) CPC 433 (NC); Registrar, University of Bombay v. Mumbai Grahak Panchayat, Bombay, I (1994) CPJ 146 (NC)=1995 (2) CPC 660 (NC); Chairman, Board of Examinations, Madras v. Mohideen Abdul Kader, II (1997) CPJ 49 (NC)=1996 (1) CPC 385 (NC ). Secondly, that there was no negligence on the part of the opposite party as necessary intimation was given to the complainant to apply for the fresh Marks-Sheet/certificate after depositing the old certificate and in this case if human error had resulted it could not be attributed to the opposite party because, thousands of students took part in examination and inadvertely lapse had resulted in case of the complainant which did not justify any compensation to be paid and in the alternative the compensation awarded on the face of record was excessive and for these reasons the order of the District Forum deserved to be set aside. Opposing the submissions made, the representative of the respondent-complainant justified the order of the District Forum for the reasons stated therein during course of arguments.

WITH regard to the first submission made, the question had directly arisen in case, Board of Secondary Education and Anr. v. Sasmita Moharana, II (2007) CPJ 154 (NC), wherein notice was taken of the observation of the Hon''ble Supreme Court made in case of M. K. Gupta v. Luknow Development Authority, which has explained the liability of the statutory authorities. In particular reference may be made to the observations made in Para No. 8 of the said judgment as under: "8. Having examined the wide reach of the Act and jurisdiction of the Commission to entertain a complaint not only against business or trading activity but even against service rendered by statutory and public authorities the stage is now set for determining if the Commission in exercise of its jurisdiction under the Act could award compensation and if such compensation could be for harassment and agony to a consumer. Both these aspects specially the latter are of vital significance in the present-day context. Still more important issue is the liability of payment. That is, should the society or the tax payer be burdened for oppressive and capricious act of the public officers or it be paid by those responsible for it. The administrative law of accountability of public authorities for their arbitrary and even ultra vires actions has taken many strides. It is now accepted both by this Court and English Courts that the State is liable to compensate for loss or injury suffered by a citizen due to arbitrary actions of its employees. In State of Gujarat v. Memon Mahomed Haju Hasam, the order of the High Court directing payment of compensation for disposal of seized vehicles without waiting for the outcome of decision in appeal was upheld both on principle of bailee''s legal obligation to preserve the property intact and also the obligation to take reasonable care of it. . . . . to return it in the same condition in which it was seized and also because the Government was, bound to return the said property by reason of its statutory obligation or to pay its value if it had disabled itself from returning it either by its own act or by act of its agents and servants. It was extended further even to bona fide action of the authorities if it was contrary to law in Lala Bishambar Nath v. Agra Nagar Mahapalika, Agra. It was held that where the authorities could not have taken any action against the dealer and their order was invalid, ''it is immaterial and the respondents had acted bona fide and in the interest or preservation of public health. Their motive may be good but their orders are illegal. They would accordingly be liable for any loss caused to the appellants by their action. The theoretical concept that King can do no wrong has been abandoned in England itself and the State is now held responsible for tortuous act of its servants. The First Law Commission constituted after coming into force of the Constitution on liability of the State in tort, observed that the old distinction between sovereign and non-sovereign functions should no longer be invoked to determine liability of the State. Friedmann observed:

"it is now increasingly necessary to abandon the lingering fiction of a legally indivisible State, and of a feudal conception of the Crown, and to substitute for it the principle of legal liability where the State, either directly or through incorporated public authorities, engages in activities of a commercial, industrial or managerial character. The proper test is not an impracticable distinction between government and non-Governmental function, but the nature and form of the activity in question. "

On the same note of the observation recorded in case of GDA v. Balbir Singh, II (2004) CPJ 12 (SC)=iii (2004) SLT 161= (2004) 5 SCC 65, wherein it was stated as under: "11. Today the issue thus is not only of award of compensation but who should bear the brunt. The concept of authority and power exercised by public functionaries has many dimensions. It has undergone tremendous change with passage of time and change in socio-economic outlook. The authority empowered to function under a statute while exercising power discharges public duty. It has to act to subserve general welfare and common good. In discharing this duty honestly and bona fide, loss may accrue to any person. And he may claim compensation which may in circumstances be payable. But where the duty is performed capriciously or the exercise of power results in harassment and agony then the responsibility to pay the loss determined should be whose? In a modern society no authority can arrogate to itself the power to act in a manner, which is arbitrary. It is unfortunate that matters, which require immediate attention, linger on and the man in the street is made to run from one end to other with no result. The culture of window clearance appears to be totally dead. Even in ordinary matters a common man who has neither the political backing nor the financial strength to match the inaction in public oriented departments gets frustrate and it erodes the credibity in the system. Public administration, no doubt involves a vast amount of administrative discretion, which shields the action of administrative authority. But where it is found that exercise of discretion was mala fide and the complainant is entitled to compensation for mental and physical harassment then the officer can no more claim to be under protective cover. When a citizen seeks to recover compensation from a public authority in respect of injuries suffered by him for capricious exercise of power and the National Commission finds it duly proved then it has a statutory obligation to award the same. It was never more necessary than today, when even social obligations are regulated by grant of statutory powers. The test of permissive form of grant is over. It is now imperative and implicit in the exercise of power that it should be for the sake of society. When the Court directs payment of damages or compensation against the State the ultimate sufferer is the common man. It is the tax-payers'' money, which is paid for inaction of those who are entrusted under the Act to discharge their duties in accordance with law. It is, therefore, necessary that the Commission when it is satisfied that a complainant is entitled to compensation for harassment or mental agony or oppression, which finding of course should be recorded carefully on material and convincing circumstances and not lightly, then it should further direct the department concerned to pay the amount to the complainant from the public fund immediately but to recover the same from those who are found responsible for such unpardonable behaviour by dividing it proportionately where there are more than one functionaries. "

The Hon''ble National Commission in F. A. O. No. 643 of 1994 decided on 31. 5. 2001 had arrived at a conclusion on the basis of decision given by Apex Court in Bangalore Water Supply and the Sewerage Board v. Rajappa and Anr. , AIR 1978 SC 548, that "imparting of education by an education institute for consideration fall within the ambit of service as defined in Consumer Protection Act. Fees are paid for services to be rendered by way of imparting education by educational institutes. If there is no rendering of service, question of payment of fee would not arise. The complainants had hired the services of the respondent for consideration, so they are consumers as defined in the Consumer Protection Act".

THE above stated judgment clearly highlight that in a given situation the Consumer Court can entertain the complaint where it comes to the conclusion that the opposite party had rendered service and had committed default and deficiency of service. In this case firstly, the factual position cannot be ignored because it is admitted case of the opposite party that the Matriculation Certificate was sent by the opposite party as per Registration No. 2611 dated 29. 3. 2004 by registered post to the complainant on the wrong address. Therefore, if the complainant had not received the Matriculation Certificate it was on account of the default of the opposite party. Even when registered letter bearing registration No. 2123 dated 25. 5. 2004 was written by the opposite party to the complainant, she was informed that she could obtain fresh Marks-Sheet/certificate after depositing the old Marks-Sheet in the office. It is somewhat strange on what basis the opposite party had asked the complainant to deposit old Marks-sheet when of its own saying the earlier registered letter containing the Matriculation Certificate was not delivered to the complainant. In fact, in this case during the course of trial the opposite party did not produce any receipt to establish that any registration No. 2123 dated 25. 5. 2004 was sent to the complainant at the address given by her. Therefore, the opposite party even failed to establish that any letter vide registration No. 2123 dated 25. 5. 2004 was issued to the complainant. The deficiency of service on the part of the opposite party is clearly spelled out from the record. Needless to say the complainant has suffered at the hands of the opposite party on account of non-delivery of the Matriculation Certificate well in time. In this regard notice is required to be taken of the observations made in case of The President, Board of Secondary Education, Orissa and Anr. v. D. Suvankar and Anr. , IV (2006) CPJ 21 (SC)=viii (2006) SLT 433=2006 (12) SCALE 24, wherein the facts were that on verification of answer-sheet it was found that marks awarded in one paper were wrongly shown as 35 though the respondent in fact had secured 65 marks. The opposite party in that case had taken up the stand that the mistake had occurred due to mistake in the computer and when error was rectified, the fresh Marks-Sheet was issued. Dealing with the issue raised the Hon''ble Supreme Court observed as under: "6. Award of marks by an Examiner is to be fair, and considering the fact that revaluation is not permissible under the Statute, the Examiner has to be careful, cautious and has a duty to ensure that the answers are properly evaluated. No element of chance or luck should be introduced. An examination is a stepping-stone on career advancement of a student. Absence of a provision for revaluation cannot be a shield for the Examiner to arbitrarily evaluate the answer script. That would be against the very concept for which revaluation is impermissible. xxx xxx xxx

It has to be ensured that the Examiners who make the valuation on answer papers are really equipped for the job. The paramount consideration in such cases is the ability of the Examiner. The Board has bounden duty to select such persons as Examiners who have the capacity, capability to make valuation and they should really equipped for the job. Otherwise the very purpose of evaluation of answer papers would be frustrated. Nothing should be left to show even an apprehension about lack of fair assessment. It is true that valuation of two persons cannot be equal on golden scales but wide variation would affect credibility of the system of valuation. If for the same answer one candidate gets higher marks than another that would be arbitrary. As indicated above, the scope for interference in matters of valuation of answer papers is very limited. For compelling reasons and apparent infirmity in valuation, the Court steps in. Care should be taken to see that the Examiners who have been appointed for a particular subject, belong to the same faculty. It would be a mockery of the system of valuation of a teacher belonging to Arts stream is asked to evaluate answer papers of Science stream. It may be that a teacher had Physics, Chemistry or Biology at the intermediate level, but at Graduation stage he had special paper in Zoology. To ask such a teacher to evaluate Botany paper would not be proper. Similary in the case of teacher having Mathematics in Intermediate level while he took his high studies in Physics or Chemistry, or Botany at the Graduation Level evaluation of answer paper in Mathematics by him would not be proper. May be that he has working knowledge in the subject. But the valuation should be done by an Examiner who is well equipped in the subject. That would rule out the chance of variation improper valuation. Board authorities should ensure the anamalous situations as pointed out above do not occur. Additional steps should be taken for assessing the capacity of a teacher before he is appointed as an Examiner. For this purpose the Board may constitute a Body of Experts to interview the persons who intend to be appointed as Examiners. The process is certainly time-consuming but it would further the ends for which the examinations are held. The Chief Examiner is supposed to act as safety valve in the matter of proper assessment.

The appellant-Board is certainly not blemishless. Undisputedly lesser marks were shown in the marks sheet supplied to the respondent No. 1. In the first marks sheet the total marks indicated were 654. Finally, marks sheet was issued showing the aggregate marks to be 690. Except putting the balme on the Computer Firm, Assistant Examiner and the Scrutinizer, nothing further has been offered by the appellant-Board as explanation. True it is, that the fist mistake was of the computer firm but the second correction is clearly on the basis of the prayer for re-addition of marks. It was found that the marks actually secured were 71 while on the cover page of the answer sheet the marks noted as 65. For this the blame has to be fixed on the Assistant Examiner and Scrutinizer. But that does not provide an escape route to the Board.

Ultimately, it is the Board which has to ensure that the correct marks sheet is issued to the candidates since candidates, who appear at the High School Certificate are of tender age. If by mistake the Board indicates to the candidate''s incorrect marks, it is bound to have adverse effect on the mind of the candidates of tender age. Therefore, it is imperative on the part of the Board to ensure that errorless marks sheet is issued to each candidate. The plea of the computer firm that considering the large number of candidates the mistake is not serious has no substance. The computer entries are made to ensure accuracy and to do away with defects, which arise from manually recording of marks, and to ensure accuracy. The Assistant Examiner and the Scrutinizer appear to have taken their jobs casually unmindful of the consequences, which result from their negligence acts. Therefore, the sum of Rs. 20,000 has to be paid to the respondent No. 1 by the Board out of which it shall recover Rs. 15,000 from computer firm. It appears that the Board has taken action against the Assistant Examiner and Scrutinizer for their negligence. While affirming action taken against them, we express our displeasure for their careless and negligent acts which have led to unnecessary litigation. "

The above observation would equally apply to the present case. In the present case the compensation amount of Rs. 20,000 has been awarded which is adequate under the circumstances of the case. No case is made out for interfering in the order of the District Forum in this regard and for that reason the stand taken from the side of the appellant-opposite party is without any basis and consequently rejected. For the aforesaid reasons, there is no merit in the appeal and the same is accordingly dismissed. Appeal dismissed.