LALCHAND TANWAR vs Government of Rajasthan

LALCHAND Tanwar (complainant) has filed this complaint against (1) State of Rajasthan through Chief Secretary (2) Chairman, Raj. Public Service Commission, Ajmer and (3) Secretary to Govt., Raj. Public Service Commission Ajmer praying for grant of compensation amounting to Rs : 20,000/- and future financial loss Rs. 4,08,000/-. The complainant is for the grant of the following reliefs : (a) that a direction may be issued for declaring the correct result of the complainant and thereafter to publish the merit list; (b) that for wrong declaration of result by opposite parties No. 2 and 3, the complainant may be awarded a sum of Rs. 20,000/-and (c) that he should be compensated for future financial loss to the extent of Rs. 4,08,000/-.

THE complainant submitted a form together with Rs. 5/- for appearing at the examination of LDC Competitive Examination, 1986 in accordance with the advertisement. THE form was submitted to opposite party No. 3. THE complainant was called to sit at the examination and he was allotted Roll No. 77530. THE post of the LDC were to be filled on the basis of the merit obtained by the candidates at the examination. It is the case of the complainant that the result of the written examination was wrongly published in the Rajasthan Patrika and Rashtra Door on account of malice showing utter carelessness. It is said that on account of the wrong result, he has to suffered mental strain and he was disgraced before the members of his family. He has, therefore, averred that he has suffered loss on account of mental torture to the extent of Rs. 20,000/- which he is entitled to get from opposite parties No. 1 to 3 jointly and severally. On account of the wrong result, no corrigendum was issued. THE mark-sheet of the complainant was prepared by opposite party No. 3 on the basis of the application dated 19.3.90 on 31.3.90 which was received by him on 4.4.90. He says that had the result been declared correctly, he would have prepared well for type test and would have passed it. THE merit list was declared and was wrongly published. It is said that the merit list of Jhunjhunu District was published including the candidates of the other districts and so it is wrong that out of 600 candidates only three or four were selected. THE other candidates from other districts who have been selected are not according to the standard. It is said that in the written test in Hindi paper, the complainant was given 47 marks out of 100 whereas he should have been given 70 marks and if it is re-evaluated he would get 70 marks and thereafter if type test was taken, he would have obtained 70 marks. He, therefore, in para 8 has calculated the financial loss after selection at Rs. 2,08,000/-. He filed the complaint. In support of that he submitted his affidavit sworn on 12.4.90. A show cause notice was issued to the complainant to which he submitted a reply. The notice was with respect to the maintainability of the complaint. After considering the reply of the complainant, notice was ordered to be issued to the opposite parties.

A version of the case was filed on behalf of the opposite parties No. 2 and 3. It was stated by opposite party No. 2 that advertisement for LDC for the year 1986 was issued. It was made specifically clear that the candidates were to see at their own end that they were having the minimum qualifications and were eligible to appear at the examination. They were allowed to appear in the written test subject to the scrutiny of their application forms. It was admitted that the complainant was allotted Roll No. 77630. District wise selections for LDCs were made under the requisition made by the State. The examination was combined one. It was submitted that RPSC has acted within the limits of law and their jurisdiction as mentioned in Article 320 of the Constitution of India, the Rules and Regulations framed under Article 321 of the Constitution of India and the relevant service rules framed under Articles 309 of the Constitution of India and, therefore, the action of opposite party Nos. 2 and 3 cannot be branded as malafide and as on actionable wrong. It was stated that the results of all the candidates were despatched to them, but the delay occurred due to the number of the candidates being extra ordinary large running approx. to 99,000. The merit list was to be prepared on the basis of the options given by the candidates. Re-evaluation of the answer books of the candidates was not permissible under the law. A plea was taken that the Redressal Forum has no jurisdiction to entertain this complaint. An objection was taken that the "service" as defined in Consumer Protection Act does not include the service connected with the affairs of State or the duties which are to be discharged by the constitutional and statutory functionaries and, therefore, the matters pertaining to selection or non-selection by RPSC are not open to adjudication before the Redressal Forum. Affidavit of Shri R.S. Acharaya was submitted in support of this.

IN view of the objections raised, the complaint was fixed for considering the preliminary objections. The complainant submitted written arguments alongwith the photo stat copies of the documents. On 18.7.91 the complainant submitted that he does not want to produce any oral evidence by way of affidavit or examining the witnesses. He further submitted that the documents have already been filed and he does not want to file any more documents. He stated that on the basis of the documents on the record and the pleadings, the complaint may be decided. Mr. R.C. Jain, Advocate who appeared for opposite parties No. 2 and 3 stated that opposite parties do not want to adduce any oral evidence or submit any more documents. The complainant submitted additional affidavit on 19.9.91. The complainant was directed to deliver its copy to the OIC but on 26.10.91, Mr. R.C. Jain stated that the copy of the additional affidavit filed by the complainant has not been received and according to the complainant that affidavit was sent by post. We heard Mr. Lalchand Tanwar complainant in-person and Mr. Ramesh Chand Jain, Advocate for opposite parties No. 2 and 3. We have carefully perused the complaint, the version of the case, documents, affidavits and the written arguments of the complainant. The first question which arises for consideration is whether the complainant is a "consumer". Complainant has been defined in Sec. 2(1)(b). It merely says that right to make a complaint has been given amongst others to a consumer. "Complaint" has been defined in Sec. 2(1)(c) of the Act. A complaint has to be made in writing by a complainant, inter alia, that the services mentioned in the complaint suffer from deficiency in any respect. "Consumer" has been defined in Sec. 2(1)(d) of the Act. It is as follows : "(d) " consumer" means any person who, - (ii) hires any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who hires the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person;"

According to the definition of the consumer a person who hires any services for consideration is a consumer. From the definition of the consumer contained in Sec. 2(1)(d)(ii) of the Act, it is abundantly clear that in order to be a consumer a person should fall within the scope of that definition. It is essential that : - (i) he should have hired any services; (ii) that the hiring of the services must be for a consideration which has been paid or promised or partly paid or partly promised or under any system of deferred payment.

TURNING to the definition of ''service'' what one finds is that it includes service of any description which is made available to potential users. Any service rendered free of charge is expressly excluded from the scope of the said definition, and so also a contract of personal service. The ordinary connotation of the expression hire is "to acquire the temporary use of a thing or the services of a person in exchange for payment" (Collins English Dictionary); "to procure the use of services of, at a price : to grant temporary use of for compensation" (Chambers Twentieth Century Dictionary). This is the ordinary, plain, grammatical meaning of the expression "hire" as popularly understood and it would appear reasonable to assume that it is only in this sense that the word has been used in Sub-clause (ii) of Sec. 2(1)(d) of the Act. If Parliament had intended to treat any person who avails himself of any services as a consumer, one should have expected the opening words of Sub-clause (ii) to be "avails himself of any services". Instead, Parliament has used the expression "hire" in contra-distinction with the expression "avail of occurring in the subsequent part of the same Sub- clause. Consideration means recompense. Now the question is whether the complainant has paid any consideration to the opposite parties for hiring the services. The complainant has stated that for the application form he paid Rs. 5/-. There was no obligation on the part of the opposite parties to conduct the examination for recruiting LDC in pursuance of the advertisement. The element quid pro quo is not a sine qua non of a fee. The complaint of the complainant is hypothetical. The complainant has merely stated that on account of malice, his result was declared wrong which shows carelessness of the opposite parties. If that is so then the case of "deficiency" in service does not arise. "Deficiency" as has been defined in Sec. 2(1)(g) of the Act. It is as follows : "(g) "deficiency" means any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be maintained by or under any law for the time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service;"

The case of the complainant is that there have been various acts of commission and omission of the opposite parties while preparing the merit list in regard to the recruitment of the LDCs. He has also said that giving of 47 marks in Hindi paper is wrong for he should have got 70 marks and so this may be re-evaluated. A perusal of the mark- sheet produced by the complainant on record shows that there is no provision for re-evaluation of the marksheet. It is not the duty of the Redressal Forum to re-evaluate the answer book as submitted by the complainant. All this in our opinion is hypothetical. The Rajasthan Public Service Commission acts within the limits of law and their jurisdiction is as given by Article 320 of the Constitution, the Rules and Regulations framed under Article 321 of the Constitution and the relevant service rules framed under Article 309 of the Constitution. While conducting the examination for the recruitment of the LDC, the RPSC discharged its constitutional duties. It is too much for the complainant to brand it as malafide. If the selections are made and the complainant has not been selected, they cannot be said to be malafide and as actionable wrong. Such questions cannot be gone into in the summary enquiry under the Consumer Protection Act. It was pressed for our consideration that the service as defined in Sec. 2(1)(o) of the Act does not include the services connected with the affairs of State or the duties which are to be discharged by the Constitutional and statutory functionaries and as such the matters pertaining to selection or non-selection by RPSC, are not open to adjudication before the Redressal Forum. The matter need not be pursued further, for, we are of opinion that by obtaining the form on payment of Rs. 5/- as submitted by the complainant it cannot be said that the complainant has hired the service of the opposite parties for consideration.

ONE of the reliefs claimed by the complainant is that the opposite parties may be directed to declare the correct result of the examination which was held for the appointment of the LDC and to prepare the merit list afresh. It is settled by various cases by the National Commission that the Redressal Forums constituted under the Act can grant only those reliefs which are enumerated in Sec. 14(1) of the Act and no direction can be given as prayed for by the complainant. Reference in this connection may be made to RIICO v. Premier Paints 1991 CSMR CAS 33, Balacheru Lay Out Flat Owner''s Association v. Vishakhapatanam Urban Development Authority and Ors., I (1992) CPJ 46 (NC)=1991 CSMR CAS 45 and Kongara Anantram v. Telecom. Engineer, Mahabubnagar, I (1992) CPJ 247 (NC)=1991 CSMR CAS 41.

NOW, we take up the claim of the complainant in regard to the damages for deficiency in service. Suffice it to state that the claim for compensation is hypothetical. The complainant had not passed the examination. He was not selected and there was no guarantee that the complainant would have got the job. The compensation claimed is hypothetical. Reference in this connection may be made. The complainant is not a consumer within the meaning of Sec. 2(1)(d)(ii) of the Act. He cannot be said to have hired the service of the opposite parties, when he appeared at the examination conducted for recruitment of the LDC. As the complainant is not a consumer he is not entitled to maintain the complaint. In this view of the matter, it is not necessary to examine the other questions raised by the complainant in the complaint.

For the aforesaid reasons the complaint shall stand dismissed. In the facts and circumstances of the case, the parties are left to bear their own costs. Complaint dismissed.