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Judgment
SINCE , common question of law and facts are involved these petitions, the same are being disposed of by this common order. Case of ''Mata Gujri College & Anr. v. Ritika Sharma, RP No. 3015 of 2012, is taken as the lead case.
BRIEF facts are that respondent/complainant took admission in M.Sc. Physics for the session 2011 -12 with the petitioners'' college having a course of two years and deposited Rs. 29,705 towards 1st Semester fee and other charges, vide receipt No. 19918 dated 18.7.2011. Respondent wrote a letter to the petitioners for surrender of her seat and for refund of her fee i.e. Rs. 29,705 deposited by her. But petitioners did not reply. Then father of respondent personally visited the office of petitioner No. 1 for refund of fee but they flatly refused to accept the request of the respondent. As per prospectus, sanctioned strength of the course is 30 seats, but it is mentioned that the seats can be increased as per the directions of academic council subject to the approval of the board of studies. Petitioner''s college is recognized by UGC which has been given the status of an Autonomous College and as such instructions of UGC are fully applicable to the petitioner''s college. In the prospectus at page No. 39, rules regarding refund of fee mentioned read as under: In the event of a student/candidate withdrawing before the starting of the course, the waiting -list candidates should be given admission against the vacant seat. The entire fee collected from the student, after deduction of the processing fee of not more than Rs. 1,000 shall be refunded and returned by the institution to the student/candidate withdrawing from the programme. Should a student leave after joining the courses and if the seat consequently falling vacant has been filled by the another candidate; by the last date of admission, the institution must return the fee collected with proportionate deduction of monthly fee and proportionate hostel rent, wherever applicable.
There was a public notice which also shows that the institutions and universities should not confiscate the fee paid if a student failed to join by the prescribed dates. Ministry of Human Resource Development and University Grants Commission have considered the issue and decided that the institutions and universities in the public interest, shall maintain a waiting -list of students/candidates in the event of a student/candidate withdrawing before start of the course and the wait -list candidate should be given admission against the vacant seats. The entire fee collected from the student, after deduction of the processing fee of not more than Rs. 1,000 shall be refunded by the institutions/universities to the student/candidate withdrawing from the programme.
IT is stated that case of the respondent is clearly covered by these UGC Rules and Public Notice. Respondent has withdrawn herself from the said college before starting of the course and the vacant seat has been filled by another candidate who was in the waiting -list. Hence, respondent is entitled for refund of the fee.
IN reply, petitioners have stated that respondent was informed that as per the rules and bye -laws of the UGC and AICT, the fee can only be refunded if the vacant seat is filled subsequently. In the present case after the respondent surrendered her seat, the seat remained vacant and the seat was not filled up subsequently. Under these circumstances, the fee cannot be refunded to the respondent since only 28 seats were filled against the sanctioned seats. All other allegations were denied. District Consumer Disputes Redressal Forum, Fatehgarh Sahib (for short, ''District Forum'') vide its order dated 27.2.2012, accepted the complaint of the respondent.
AGGRIEVED by the order of District Forum, petitioners filed appeal before the State Consumer Disputes Redressal Commission, Chandigarh (for short, ''State Commission'') which vide its impugned order dated 27.4.2012, dismissed the appeal.
HENCE , these revisions. It is contended by learned Counsel for the petitioners that as per instructions issued by Ministry of Human Resource Development and U.G.C. Letter No. F -No. 1.3.2007 (CPP -11), dated 23.4.2007 it has been specifically mentioned that the refund can be allowed only in case the seat falling vacant is filled by any wait -listed candidate before starting of the course. And after joining the course if the student leaves the course and vacant seat has been filled by another candidate by the last date of admission in that eventuality refund of fee is allowed. The intent of this direction clearly is that whereas an institution or a university or a college should not be permitted to doubly benefited by the withdrawal of a student by retaining fee collected from him and further by taking fee from another student. At the same time, it is also intention of this circular that the university/college/institution should not be put to a financial loss by withdrawal from the college by a student when the seat so vacated remains vacant.
IN support, learned Counsel has relied upon the following Judgments of Punjab and Haryana High Court: (i) Nikhil Madan v. ITM University, CWP No. 17048 of 2011, decided on 30.5.2012, and
(ii) L.K. Talwar and Another v. Lovely Professional University, decided on 9.5.2012.
DISTRICT Forum in its order has held: (7) Ex. CW1/A is the affidavit of the complainant reiterating the facts mentioned in her complaint. Ex. C -1 are the rules regarding refund of fee. Ex. C -2 is the copy of receipt which shows that the complainant paid Rs. 29,705 to the opposite parties on 12.7.2011. Ex. RW1/A is the affidavit of Sh. Jatinder Singh Sidhu, Principal of the respondent college. Ex. R -2 shows that 28 seats were filled. But the respondents could not place on record to show that the course had started before the complainant filed application for refund of fee. Hence the UGC grants circulars and Rules of AICET are applicable in the present complaint. As per judgment of National Commission titled as Indian Institute of Hotel Management & Anr. v. Reshmi Dutta, : 2011 (3) CLT 599 (NC), it is held as under:
Admission -Fee Refund - -The respondent had not joined the institute even for a single day - -It can be safely presumed that the institute would have filled up the resultant vacancy, entailing no financial loss whatsoever - -Plea on behalf of the petitioner that there is clause that once fee is paid the same is not liable to be refunded repelled and held that this type of one -sided conditions have been overruled by a number of Fora, including UGC and Ministry of Human Resource Development - -State Commission has not committed any illegality, material irregularity or exceeded its jurisdiction in directing the petitioner/Institute to refund the fee after deducted a sum of Rs. 1,000 which is just, proper and reasonable.
(8) There is also a judgment of Hon''ble State Consumer Disputes Redressal Commission, Punjab, Chandigarh in, 2011 CTJ page 346 (CP) (SCDRC) titled as CGS College of Modern Technology v. Mrs. Kusum Arora, where in it is held as under:
Education - -Deficiency in service - -Consumer Protection Act, 1986 - -Section 2(1)(g) - - Section 2(1)(o) - -Respondent''s son admitted to the appellant college where he deposited the amount required of him - -After about a month he sought cancellation of his admission and refund of the money deposited by him - -Refund not given - -Complaint filed by the respondent allowed by the District Forum - -Compensation also awarded - -Appeal - - Instructions issued by the All India Council for Technical Education (AICTE) on 19.4.2007 followed by a public notice by the University Grants Commission (UGC) on 23.4.2007 binding the educational institutions in such an eventuality to refund to the student withdrawing from the programme the entire fee collected from him after just deducting processing fee of not more than Rs. 1,000 from him - - After all they are not commercial establishments and they cannot be allowed to retain the fees of students as such - -Appeal dismissed.
(9) Relying on these judgments, we hereby accept this complaint and order the opposite parties to refund of fee after deduction of Rs. 1,000 as processing fee. Complainant has deposited Rs. 29,705, therefore we order the opposite party to refund Rs. 28,705 after deduction of Rs. 1,000 within one month from the receipt of this order. We also order the opposite party to give Rs. 5,000 as litigation charges to the complainant.
The State Commission while affirming the decision of District Forum, held: Similar controversy had come up for consideration before this Commission in First Appeal No. 1867 of 2009, Swami Vivekanand Institute of Engineering & Technology and Another, v. Nikhil Singla, decided on 3.8.2010 in which inter alia, it was held that:
In the present case, the respondent had left the college on 5.9.2008 (copy of the letter has been proved as Ex. C -6). The last counselling was held on 30.9.2008 by Dr. B.R. Ambedkar National Institute of Technology, Jalandhar. It means, therefore, that it was still open to the appellants to fill up the vacancy caused by the respondent.
The appellants allege that the respondent had withdrawn after the course had started but it is nowhere pleaded by them as to on which date the course started nor it is pleaded by them as to why they failed to prepare the waiting list and why they failed to fill up the vacancy caused by the respondent. As per the observations of the Hon''ble High Court of Punjab and Haryana in Prabhjot Singh''s case (supra), the fault lies with the appellants for not filling up the vacancy and by not preparing the waiting list of the candidates when they had lot of time with them.
The respondent in the letter dated 5.9.2008 (Ex. C -6) had also prayed for the return of documents but the said documents were returned by the appellants on 18.10.2008 as admitted by them in para 9 of the written reply. The appellants have not given any reasons why the documents were not returned by them immediately after the receipt of letter dated 5.9.2008 (Ex. C -6) or within a reasonable time from that date.
The judgment dated 3.8.2010 passed by this Commission was upheld by the Hon''ble National Commission in the judgment dated 3.1.2011 passed in Revision Petition No. 4303 of 2010, Swami Vivekanand Institute of Engineering & Technology and Anr. v. Nikhil Singla, and the revision petition was dismissed. As held by the Hon''ble High Court in Prabhjot''s case (supra), if the College/Institution fails to fill the vacancy, they should blame themselves and should not penalise the student claiming the refund by refusing the refund.
In the present case, the seat was surrendered by the student before the last date of admission. Therefore, the respondent is entitled to the refund of the amount minus Rs. 1,000. The learned District Forum has also ordered accordingly.
AT the outset it may be pointed out that till date, petitioners have not placed on record the certified copy of impugned order, though application for exemption from filing of the certified copy of the order was filed along with the petition.
THE impugned order was passed by the State Commission on 27.4.2012, whereas present petitions were filed on 14.8.2012. Since, certified copy of the impugned order has not been filed till date, thus on this short ground alone, the present petitions are liable to be dismissed. Now coming to the merits of the case, in para 8 of the complaint, respondent/complainant has pleaded as under: That as per the rules of the respondent and as per the instructions communicated by the public notice by the UGC, the case of the complainant fully covered under the aforesaid rules and public notice. The complainant had withdrawn herself from the said college before starting the course and the vacant seat has been filled by another candidate who was in the waited -list. The respondent has not suffered any loss due to the surrendering the seat by the complainant.
IN response to the above averments, Petitioners in their written statement have replied as under: Para No. 8 is wrong and denied and is not related to the present case.
THUS , there is no specific denial on behalf of the petitioners with regard to the specific averments made by the respondent that the seat vacated by her has been filled by another candidate who was in the wait -list and as such petitioner has not suffered any loss due to the surrender of the seat by her. Accordingly, above averments made by the respondent in its complaint stand admitted. Petitioners have not placed any material on record to show that only 28 seats were filled up against the sanctioned seats. Moreover, as respondent has alleged in her complaint, the seat vacated by her was filled up by a wait -listed candidate, petitioners ought to have placed on record the name of all the 28 candidates, who were selected for the course. However, the petitioners have not placed on record the relevant documents to this effect. Under these circumstances, inference has to be drawn against the petitioners.
NONE of the judgments cited by learned Counsel for the petitioners are applicable to the facts of the present case, as in those cases the seats vacated by the students remained vacant. In the present case, there is nothing on record to show that seats vacated by the respondents remained vacated throughout the course.
PRESENT petitions have been filed under Section 21(b) of the Act. It is well settled that the powers of this Commission as a Revisional Court are very limited and have to be exercised only, if there is some prima facie jurisdictional error in the impugned order. Hon''ble Supreme Court in Mrs. Rubi (Chandra) Dutta v. M/s. United India Insurance Co. Ltd., : II (2011) CPJ 19 (SC) : IV (2011) SLT 303 : 2011 (3) Scale 654, has observed: Also, it is to be noted that the revisional powers of the National Commission are derived from Section 21(b) of the Act, under which the said power can be exercised only if there is some prima facie jurisdictional error appearing in the impugned order, and only then, may the same be set aside. In our considered opinion there was no jurisdictional error or miscarriage of justice, which could have warranted the National Commission to have taken a different view than what was taken by the two Forums. The decision of the National Commission rests not on the basis of some legal principle that was ignored by the Courts belong but on a different (and in our opinion, an erroneous) interpretation of the same set of facts. This is not the manner in which revisional powers should be invoked. In this view of the matter, we are of the considered opinion that the jurisdiction conferred on the National Commission under Section 21(b) of the Act has been transgressed. It was not a case where such a view could have been taken by setting aside the concurrent findings of two Fora.
THUS , no jurisdiction or legal error has been shown to call for interference in the exercise of power under Section 21(b) of the Act, since two Fora below have given cogent reasons in their order, which does not call for any interference nor they suffer from any infirmity or revisional exercise of jurisdiction.
IT is not that every order passed by the Fora below is to be challenged by a litigant even when the same is based on sound reasoning. Under these circumstances, the present petitions are without any legal basis and the same are hereby dismissed with cost of Rs. 10,000 (Rupees ten thousand only) in each case.
PETITIONER is directed to deposit cost of Rs. 30,000 (Rupees thirty thousand only) by way of demand draft, in the name of "Consumer Legal Aid Account" of this Commission, within four weeks from today.
IN case, petitioners fail to deposit the said cost within the prescribed period, then they shall also be liable to pay interest @ 9% p.a., till realization. List on 14.12.2012 for compliance.