KOTA OPEN UNIVERSITY vs Ravi Kumar Sharma

THIS appeal is directed against the order of the learned District Forum, Sikar dated 28.9.1995 whereby the complaint filed by the respondent has been partly accepted and the appellant has been directed to supply to the respondent his original marks sheet of Diploma in Library and Information Science Examination held in June, 1992 through Registered Post and to pay Rs. 5,000/- as compensation.

WE heard the learned Counsel for the parties and perused the material available on the record. Facts relevant for disposal of this appeal in brief are that the respondent Shri Ravi Kumar Sharma had appeared in the Diploma in Library and Information Science Examination held in June, 1992, the result of which was declared in June, 1993. The grievance of the respondent has been that in spite of declaration of the result, the appellant did not send him the marks sheet of the aforesaid examination. When repeated efforts were made by him to obtain it, he was told that since the copy of the TMA/CMA having been not received from the concerned institution, his marks sheet could not be supplied. The respondent after great efforts obtained the copies of the TMA/CMA and sent it to the appellant in April, 1995 still he was not supplied the marks sheet for the concerned examination. Aggrieved he approached the learned District Forum to claim compensation alleging therein that in absence of the marks sheet, he could not seek any employment and suffered great financial loss.

The complaint was resisted by the appellant. The learned District Forum after investigations held that since the appellant had failed to supply the marks sheet even after 2 years of holding the examination; the appellant University has been deficient in rendering services to the respondent and accordingly decreed the claim as stated earlier.

IT is urged by the learned Counsel for the appellant that the appellant has not been guilty of any deficiency in service and the delay if any has been due to non-receipt of TMA/CMA from the concerned institution in time. IT has also been urged that a dispute of the nature brought by the respondent does not fall under the category of a consumer dispute and, therefore, the impugned order is liable to be quashed. As against it, the learned Counsel for the respondent has supported the order of the learned District Forum and has urged that the nature of dispute is a dispute which is covered under the C.P. Act, 1986. The only question that requires determination in this appeal is whether issuance or non-issuance of the marks sheet by the appellant University falls with a consumer dispute as defined under Section 2(1)(d) read with Section 2(1)(e) of the C.P. Act, 1986?

IT may be stated at the outset that there has been a consistent view of Hon''ble the National Commission that in cases wherein issues relate to examinations held by a University, be it the matter of declaration of results, marking/valuation/ revaluation of papers; the University or other examination conducting bodies like CBSE do not render any service. Recently also, Hon''ble the National Commission has held in the case of Controller of Examinations, Himachal Pradesh University v. Sanjay Kumar, relying upon its earlier decision given by the majority in Chairman, Board of Examinations v. Mohd. Abdul Kader, II (1997) CPJ 49 (NC) that : "We must make it clear that in this case or in the earlier cases this Commission did not consider the general question whether the imparting of education for consideration would come or nor within the ambit of the service under the Act. Whether a University or an institution affiliated to it imparting education is within the arena of consumer jurisdiction is a question which this Commission will consider and decide when it directly arises before it. What this Commission has decided in earlier cases that a University or the Board in conducting pubic examination, evaluating answer papers, announcing the results thereof and thereafter conducting re-checking of the marks of any candidate on the application made by the concerned candidate is not performing any service for hire and there is no arrangement of hiring of any service involved in such a situation as contemplated by Section 2(1)(o) of the Act. A candidate who appears for the examination cannot be regarded as a person who had hired or availed of the services of the University or Board for consideration."

Further on, Hon''ble the National Commission while referring to its another earlier decision in the case of Registration, Evaluation, University of Karnataka v. Mrs. Poonam G. Bhandari, F.A. No. 245 of 1992 observed : "We are clearly of the view that in carrying out its statutory function of conducting the examination, evaluating answer papers and publishing the results of candidates the University was not performing any service for consideration and a candidate who appeared or the examination cannot be regarded as a person who had hired or availed of the services of the University for consideration."

FROM a perusal of the position of law as settled by Hon''ble the National Commission; there remains no doubt that in carrying out its statutory function of conducting examinations, evaluating answer books and publishing results of the candidates, the University or the Examining Body is not performing any service for consideration; and hence the person appearing at any examination conducted by such an examining body cannot claim that he is a person who has hired or availed services of the University for consideration.

IN the instant case, the appellant University could not supply the marks sheet to the respondent because of non-receipt of internal assessment marks (TMA/CMA) from the concerned institution. IN other words, the appellant University was performing statutory function of holding the Diploma in Library & INformation Science Examination, 1992 and inclusion of the internal assessment marks make an important constituent to the examination as a whole which is conducted for the subject in question. That is to say the inclusion of the internal assessment marks is an inseparable portion of the total marks obtained in the examination of Diploma in Library & INformation Science conducted by the University. Hence, in our view the dispute between the parties relate not only to the conducting and holding of the examination, declaring its result but also in issuing the result and consequent marks sheet to the candidates who appear for the said examination. The dispute, therefore, raised between the parties, does not fall within a consumer dispute as defined under Section 2(1)(d) read with Section 2(1)(e) of Consumer Protection Act, 1986. The learned District Forum, therefore, has committed an error in holding that the appellant University has rendered deficient services to the respondent presumably under the impression that dispute is a consumer dispute as defined under Consumer Protection Act, 1986. The principle of law as laid down by Hon''ble the National Commission in the case of Mohd. Abdul Kader''s case (supra) and Mrs. Poonam G. Bhandari''s case (supra), and reiterated in the case of Controller of Examinations, Himachal Pradesh University v. Sanjay Kumar (supra), therefore, applies with full force in the present case. Our answer, thus to the question posed above is in the negative.

Accordingly, we are of the firm view that the impugned order is liable to be quashed and is hereby quashed and the complaint stands dismissed. The appellant, however is given liberty to seek redressal of his grievance through appropriate agency. In the facts and circumstances of the case, both the parties shall bear their own costs. Appeal allowed.