TILAK RAJ OF CHANDIGARH vs HARYANA SCHOOL EDUCATION BOARD, BHIWANI

IS the imparting of education to its citizens a sovereign regal function of the State? If not then is such education (when imparted for consideration) a "Service" within the meaning of Clause (o) of sub-Section 1 of Section 2 of the Consumer Protection Act? If so would the conduct of examination by a School Board for a prescribed fee be equally a service aforesaid? This is the trilogy of significant thresh hold questions in this case, apart from the merits thereof.

THE facts giving rise to the issues aforesaid lie within a narrow compass. THE Haryana School Education Board as its name indicates conducts the Matriculation examination within the State and candidates are allowed to take the same on compliance of the requisite formalities including the payment of a fee prescribed therefore. More than a decade ago the complainant enrolled as a private candidate to appear in the Matriculation examination to be conducted in March, 1981 and was allotted Roll No. 615347. He sat for the said examination at his centre in Chandigarh and the result thereof was published in the official Gazette later. To the chargin of the complainant, his result was described therein as R.L. (Result Later) and (Eligibility) in Annexure C-1 which is a extract therefrom. THE complainant who at the material time was a raw youth of 17 years of age ran from pillar to post in trying to get his result officially declared and notified, but to no avail, though he was unofficially informed that he infact had cleared the Matriculation examination. Apart from innumerable verbal requests and enquiries, the complainant made several written representations for expediting the declaration of his result by the Haryana School Education Board (hereinafter called the Board) copies whereof are Annexure C-2. Inordinate delay having occured the Complainant even got the matter highlighted by publication of news Items in the press namely the Dainik Tribune and THE Tribune on 24th of November, 1990 and 27th of November, 1990 (Copies thereof being Annexure C-3 and C-4). However, even this elicited no response from the Board. Having exhausted all other remedies the present complaint has been preferred. It is averred therein that the Board rendered "Services" within the meaning of the Consumer Protection Act (here- inafter called the Act) and because of the grave deficiency therein of not declaring and publishing his result for more than a decade an irreparable harm has ensued to the complainant. It is the case that all his dreams of rising intellectually & materially in life have been snuffed out by the action of the opposite party and he has been condemned for the result of his life to menial jobs and is now working as a petty car driver. In sum he has claimed a compensation to the tune of Rs. five lacs for the inadequacy and deficiency of the "Service" provided by the opposite-party.

In the written statement filed by the Board through its Secretary, preliminary objections to the maintainability of the complaint before this Commission have been raised and strenuously pressed. It is averred that the Board conducts examination of Middle and Matriculation for a prescribed fee which according to them are somewhat nominal charges to partly meet the expenses of the conduct of the examination. This according to the Board is a sovereign function of the State and is a subject of the concurrent list of the 7th Schedule of Constitution of India and, therefore, outside the concept of a "Service," and consequently of the jurisdiction of this Commission. Equally it is the stand that imparting of education generically is not a "Service" within the meaning of the Act and particularly the mere conduct of examinations is equally outside its scope. In sum, the stand is that the Board renders no "services" and the complainant is consequently not a ''consumer''.

ON merits the broad factual matrix of the complainant having sat for the examination and his result having not been declared is not denied. However, the stand is that at the time of filing the examination form the Complainant did not attach any documentary proof of his date of birth as required under the Rules. Nevertheless he was provisionally allowed to sit in the examination subject to the submission of proof regarding his date of birth. This having not been done, in the official Gazette his result was declared R.L(E) i.e. Result Later (Eligibility).It is then, the, case that because the Complainant did not himself contact the Board or submit the proof of his date of birth, the Opposite Party cancelled the same and the record pertaining to the examinations forms etc. including that of the Complainant was destroyed after three years according to the practice of the Board. It is denied that the complainant made any oral or written representations against the nondeclaration of the result. It is, however admitted that the news item in the press did elicit a response from the Board and they wrote to the Editor of the newspaper in order to clarify the position and ask for the particulars of the Complainant because the examination forms and the records had been destroyed by then. In sum the blame is sought to be laid at the door of the complainant that he never bothered to get his result cleared within appropriate time. In the application filed on behalf of the complainant the preliminary jurisdictional objections raised have been stoutly controverted. On merits it has been categorically averred that the complainant did attach his school leaving certificate (which clearly mentioned his date of birth) in original with his examination form (Annexure C- 5) as required by the Rules. It is reiterated that the Complainant made repeated visits to the office of the Board in connection with his result and also sent written representations. The copies of the acknowledgment, therefore duly stamped on receipt by the respondent therein are attached as Annexure C-6.

IN support of his case the complainant aduced his detailed affidavit reiterating and elaborating the facts in the complaint. The Opposite Party placed on the record the affidavit of Shri D.K. Sharma, Secretary of the Board, which in essence recapitulates the written statement. The complainant was put into the witness box and cross-examined at great length on 9th July, 1991.Therein, he reiterated the stand that within three years of the declaration of the result; he did make many oral and written representations to the Board. He reaffirmed that he had attached proof of his age with the examination form and had secured the school leaving certificate in the year 1980 itself. He categorically denied the stand that in fact he had got the said certificate in the year 1986, only. No challenge was laid to the authenticity of the documents submitted by the Complainant, by the Opposite Party. Before adverting to the merits of the case, it is obviously necessary to cross the hurdle of the jurisdictional objection noticed at the outset which were strenuously pressed by the learned counsel of the Opposite Party. Mr. K.K. Gupta, Advocate, had with considerable vehemence contended that the imparting of education by the State or any of the Corporations to whom such function is delegated is indeed a sovereign regal function of the State. Somewhat tenuous reliance was sought to be placed on the fact that education is a subject in the concurrent List of the 7th Schedule of the Constitution of India. Counsel contended that particularly in modern times, the provision of education to its citizens by the State is a core duty of the State and is consequently a sovereign regal function. Once it is so, it was submitted that such a sovereign function, is outside the pale of justiciability in general and beyond the jurisdiction of this Commission in particular.

TO fully appraise the somewhat tall stand taken by the learned counsel above, it has to be recalled that the concept of sovereign regal functions of the State is deeply rooted in the hoary annals of British Constitutional History. Perhaps it is yet one facet of the age old earlier concept that the King can do no wrong. The Royal prerogative in British Jurisprudence was thus not a matter thought fit to be within the adjudication of the Courts. However, for our purpose, it is not necessary to delve into the archives of the British Constitutional law & practice because the matter is fairly well settled by binding precedent.

THE learned counsel for the opposite party, even when pointedly asked, could not cite any fundamental principle or any precedent whatsoever which had expressly labelled education as a sovereign regal function of the State. THEre is no manner of doubt that education though undoubtedly now also provided by the State can equally be imparted by individuals or organised educational institution. THEre is no escape from the fact that before the State stepped largely into the field of education, the same was either conducted individually or by large private educational bodies. Merely because the State today has chosen to comprehensively enter the arena of education, this fact would not make the same a sovereign regal functions thereof. It is not anybody''s case that barring the State, nobody else can take on the burden of education of the citizens. Consequently on principle there seems little in the stand that education is a function which can only be exercised by the State within its sovereign regal functions. The Principle apart, the matter is covered by authoritative precedent in The Corporation of the City of Nagpur v. Its employees and Fulsing Mistry and Others, AIR 1960 S.C. 675. Therein after referring to the well known enunciation of Lord Watson in Coomber v. Berks Justices, (1983) 9 AC 61 (at page 74) it was observed that the administration of justice, maintenance of order and represssion of crime, were among the primary and inalienable functions of a constitutional Government. Similarly, the view of Issacs, J in his dissenting judgment in Federated State School Teachers Association of Australia v. State of Victoria (1928- 29) 41CLR 569 (at page 585) was relied upon for the view that legislative power, the administration of laws, the exercise of the judicial power were the sovereign regal functions of the State. In summing up the discussion, Subba Rao, J. (as his Lordship then was) in Para 17 observed that such regal functions shall be confined to legislative power, administration of law and judicial power. It is not even remotely intended to lay down any exhaustive list of soverign regal functions here, but it may be mentioned that the defence of the realm, taxation, and the conduct of the foreign relations would also adundantly qualify as the soverign regal functions of the State. However, it deserves pointed notice that neither principle nor precedent has ever raised the imparting of education to its citizens to the high pedestal of a sovereign regal function.

The matter also deserves notice from another refreshing angle. In the Corporation of the City of Nagpur''s case the Constitution Bench concluded that the regal functions described as primary and inalienable functions of the State even though statutorily delegated to a Corporation are necessarily excluded from the purview of definition of ''industry''. It consequently follows that whatever comes within the ambit of industry'' cannot possibly be a sovereign regal function of the State. Binding precedent on the other hand, has held education to come clearly within the ambit of an ''industry'' and a-fortiori education cannot possibly be labelled as a sovereign regal function. A reference in this connection may be made to Bangalore Water Supply and Sewerage Board v. A Rajappa and others, AIR 1978 S.C. 548. Therein Krishna Iyer, J. observed in his usually colourful language as follows :- Para 83 : "If education and training are integral to industrial and agricultural activities, such services are part of industry even if high- browism may be unhappy to acknowledge it. It is a class-conscious, inegalitarian outlook with an elitist aloofness which makes some people shrink from accepting educational institutions, vocational or other, as industries. The definition is wide, embraces training for industry which, in turn, ensconces all processes of producing goods and services by employer- employee co-operation. Education is the nidus of industrialization and itself is industry."

and again in Para No. 124 : - Para 124 : "Our conclusion is that the University of Delhi (AIR 1963 SC 1873) case was wrongly decided and that education can be and is, in its institutional form, an industry.''''

From the above authoritative enunciation, the irresistible conclusion that arises is that education being within the ambit of ''industry'' is inevitably excluded out of the concept of sovereign regal function of the State.

HAVING held as above, it nevertheless remains to consider the alternative submission that in any case education is not a ''service'' within the meaning of Consumer Protection Act (hereinafter called the ''Act''). The learned counsel for the opposite -party had forcefully submitted that irrespective of the fact that education is a sovereign regal function or not, it is in any case, not a ''service'' in the sense defined in the Act. We regret our inability to agree with the aforesaid submission. It is true that in the definition of ''service'' in Clause (o) of Sub Section (1) of Section 2 of the Act, education does not find mention in express terms like other activities which have been specifically so labelled. However, it deserves highlighting that the enumerated services are only part of the inclusive definition and in no way constrict the essence and meaning of the word'' service'' for the purposes of the Act. That the same has been very widely defined is manifest from the language employed which says that ''service'' means service of any description which is made available to potential users. The Legislature has deliberately cast the net very wide to bring within its ambit the services of any description when rendered for a consideration barring those under a contract of personal service. Whenever education is imparted for a consideration, it is obvious that there exists a quid pro quo for the provision of education and a monetary recompense therefore. On principle, there does not seem any logical reasons for excluding education from the ambit of the definition of ''service'' under the Act 15-A. However, the matter does not rest merely on principle or the language of the statute. In a way, this is again covered by precedent. In Bangalore Water Supply and Sewerage Board''s case, the authoritative conclusion in Para 116 is as under - Para : 116 "We dissent, with utmost deference, these propositions and are inclined to hold, as the Corporation of Nagpur (AIR 1960 SC 675) held, that education is industry, and as Isaacs, J. held, in the Australian case (1929) 41 CLR 569) (Aus) (supra) that education is pre-eminently service."

From the above, it would follow that if education is genrically and pre-eminently a service, then it would be more so within the expansive and large field of ''service'' spelt out in the definition of ''service'' under the Act. It must, therefore, be held that on principle, precedent, and the language of the statute, education would squarely come within the arena of ''service'' under the Act.

ONCE the aforesaid two findings have been rendered, it is somewhat easy sailing for the complainant to establish that the conduct of the examination by the School Education Board would clearly be a ''service'' as well. It has not been denied land indeed is the admitted case that the Haryana School Education Board conducts these examinations in lieu of prescribed fee prepaid before the holding of the examination. The fact that this fee may be concessional is irrelevant for the legal principle involved. ONCE it is held, that ''education'' is a service, then the conduct of educational examinations cannot possibly be otherwise. They are well, within the field, and if education is the genus, the conduct of academic examinations is clearly a species thereof. It seems somewhat unnecessary to labour the point because on the two basic premises spelt out earlier, it necessarily follows that the conduct of the examinations by the Board for a prescribed fee is equally a ''service'' rendered within the ambit of the Act. To conclude on the preliminary objections, it has to be held that the imparting of education by the State is not one of its sovereign regal functions. That being so, the said activity comes clearly within the concept of ''service'' under Clause (o) of sub-Section (1) of Section 2 of the Act. Inevitably, the conduct of the Matriculation and Primary examinations by the School Board for a prescribed fee is a ''service''. The decks having been thus cleared of the vainly raised hurdless of jurisdictional bar, one can now proceed to adjudicate on the merits of the case. As has already been noticed above earlier, the basic factual position is not in serious controversy. It is not in dispute that the complainant was a candidate for the Matriculation examination; he was duly allotted Roll No. 615347. Apparently having completed all necessary formalities, he was allowed by the Board to sit for his Matriculation examination; this was taken by him at Sanatan Dharam High School (Centre) in Sector 24, Chandigarh. Equally uncontested it is that in the official Gazette publishing the result of the aforesaid examination, the complainant''s name and particulars duly appeared against his Roll No. 615347. But his result was withheld and was expressly mentioned to be declared later. It is yet again common ground that despite the passage of nearly 10 years the Board has not declared the complainant''s result at all in one way or the other. The core question, therefore, is whether the complainant or the Board is responsible for this non declaration of the result which manifestly caused grave prejudice to the former.

IN determining the aforementioned issue, what prominently meets the eye first is the fact that on the opposite- party''s own showing all records of the March 1981 Matriculation examination in general and of the complainant''s case in particular have been voluntarily destroyed by the Board way back in the year 1984 itself. The stand now sought to be taken on behalf of the Board is thus not on any solid basis of any existing documentary record. The verification of the affidavit of the Secretary of the Board is indeed deeply tell-tale. It states that the contents of the affidavit are true and correct to his knowledge based on official record and nothing has been kept concealed therein. This affidavit loses all significance when it has been categorically affirmed therein itself that all the relevant record has infact been destroyed seven years earlier and consequently any other representations and letters sent by the complainant were filed i the absence of any linkage and were thus untraceable. The very bottom is thus knocked out from the stand in defence. The averments in the only evidence on behalf of the opposite- party namely the affidavit of the Secretary is thus patently on conjectures and surmises and has consequently to be taken with a pinch of salt. The end result is that at the very thresh hold, there is no firm, factual. or documentary rebuttal of the complainant''s case.

ON the other hand the complainant apart from his detailed verified complaint and his replication to the written statement has placed on record his own attested affidavit in support of his case. This is then butteressed by documents C-1 to C-6. Apart from this the complainant stepped into the witness box and his cross-examination far from in any way detracting from his stand only seems to reaffirm the same. Annexure C-1 is the extract from the official Gazette showing the complainant''s Roll Number and other particulars and clearly stating that his result was to be declared later. Annexure C-2 is a representation to the Secretary of the Board which expressly mentions that the complainant has already addressed three letters earlier to the Board which have elicited no response, either by way of a reply or by forwarding his Matriculation Certificate. In continuation of the same Annexure is yet another representation of identical import expressly mentioning the dates of the earlier representation and beseaching for some reply to his repeated requests and seeking the forwarding of his Matriculation certificate. Annexure C-3 and C-4 are news items, patently got published by the complainant as a matter of last resort in the Dainik Tribune and The Tribune respectively. These highlight the fact that the complainant''s result has not been declared even after a decade. Annexure C-5 is the school leaving certificate of the complainant which prominently mentions at its very top his date of birth both in words and letters as the 20th of January, 1964. At this very stage it deserve highlighting that if there was any alleged lacuna regarding the date of the complainant''s birth, there seems no earthly reasons whatsoever that the complainant having in his possession this school leaving certificate would not have produced the same or a copy thereof if and when required by the Board. In his cross-examination the complainant firmly reiterated his stand that he had obtained this certificate from the school in the year 1980 and had attached the same with the examination form. Annexure C- 6 contains two postal registered acknowledgement receipts of the respective letters addressed to the Secretary of the Haryana School Education Board, Bhiwani with the acceptance of those letters marked thereon. It is necessary to highlight that the documents relief upon by the complainant were not challenged and their authenticity was never in doubt. ON the other hand not a single document has been produced on behalf of the opposite-party. Thus a collective appraisal of the complainant''s statement on oath and his documentary evidence overwhelmingly support and established his case. It bears repetition that the somewhat sketchy stand of the Board resting on the solitary affidavit of the Secretary admittedly without the basis of any record and, the total absence of any document is wholly insufficient to rebut the solid stand of the complainant. When tested on the anvil of reasonable possibilities, it stands to reason that a candidate taking an examination would inevitably be deeply interested in the declaration of his result and would have left no stone unturned to get the same published one way or the other. It has to be kept in mind that at the time of the examination the complainant was a raw village youth of 17 years and he could not have anticipated this misfortune and one cannot possibly expect from him the maticulous Tiling of detailed written representations or to keep every copy thereof in a sanctified record of his own. His firm stand on oath was that soon after the examination also and certainly within three years thereafter he ran from pillar to post and made repeated verbal and written requests for declaration of his result. However, all his efforts fell on deaf ears. There seems no reason to doubt the forthright and candid version given by the complainant and established by his evidence.

What then deserves to be intrinsically pointed out here is the fact that the Board after it has conducted an examination is under a patent legal obligation to declare the result of a candidate therein one way or the other. Concededly the complainant''s result has not been so declared or published at any stage. The burden thus rested heavily on the Board to establish valid reasons as to why the same was not done. Having admittedly allowed the complainant to take the examination, the natural presumption is that all the relevant formalities pertaining thereto had been complied with. The somewhat sketchy stand that the complainant was allowed to take the examination provisionally is unsupported by any document or record. Even at the highest and assuming so in favour of the Board, it is not its case that after the publication of the result in the Gazette the complainant was ever called upon to furnish any document or other proof of age etc. No notice was admittedly sent to him to fill in any alleged lacuna (now sought to be set up)with regard to his candidature, if there was any. It is the belated stand of the Board now that the complainant''s result was cancelled though there is no document at all showing its cancellation. On its own showing no notice was given by the Board to the complainant of any intention to cancel the result nor any intimation even after the event was given to him that his result has been subsequently cancelled. It is not the case either that in any supplementary official Gazette or any notification was published that the complainant''s result had been cancelled. Thus without any notice or intimation to the complainant, or any publication in the Gazette or taking any other step to declare his result, (it is so stated in the affidavit) the records were admittedly destroyed way back in 1984 as a matter of practice. It is not the case of the Board that the records have to be destroyed as a matter of any statutory mandate. Learned counsel for the Board stated that it was merely a practice as has been averred. However, a matter of a candidate''s career which was pending one way or the other for the declaration of his result if so destroyed would be a patent case of negligence, if not of wanton inefficiency. Therefore, the attempt of the Board to take shelter behind its own act of destroying the examination records of the complainant in a pending case far from helping, would go securely against them.

APPARENTLY unable to find a valid or plausible defence, the Board has clutched at a straw by taking a curious stand that the complainant had not bothered to get his result declared. It deserves reiteration that the duty of declaration of the result is that of the Board alone. The same cannot be shifted on the shoulders of the thousands of candidates who takes its examination. As has been pointed out above, it is not even the Board''s case that they at any stage required the complainant to produce any document or proof to fill in any alleged lacuna and that he had either refused or failed to do so. The futile attempt to wriggle out of its obligation to declare the result thus merits patent rejection. To sum up it necessarily follows that the Board has wholly failed in its duty of the declaration of the complainant''s result despite the passage of a decade. Further the failure to issue any notice to him to complete the formalities (if at all there were any) or to inform him and any alleged intendment of the cancellation of his result and the non-publication of any such purported cancellation are further pointers against the Board''s case. The destruction of the examination records of a candidate whose result is yet to be declared, far from being merely negligence seems to be an act of considerable irresponsibility. As said earlier the burden lay on the Board to show as to why after admitting the complainant to the examination and publishing that his result would be declared later. It has not done so either way. It has miserably failed in discharging that burden.

TO finally conclude, there seems no option but to hold that the Board was rendering a service in the performance whereof, there has been a glaring and patent ''deficiency'' within the meaning of the Act. Indeed there appears to be not merely an imperfection, shortcoming, or inadequacy therein, but the case appears to be one of negligence which cannot but be culpable. Once the aforesaid finding has been recorded, all that remains is the nature of relief that can now be granted to the complainant. On the Board''s stand that all records have been destroyed, the primal relief of declaring the complainant''s Matriculation result cannot now be accorded to him. Irretrievable injury has thus been caused to the complainant for which he deserves compensation. However, the complainant has been somewhat remiss in providing adequate evidence for his tall claim of Rs. 5 lacs. Though the injury to him is patent on the wellknown principle of res- ipsa-loquitor, yet he has not led any evidence for the special damages that may have resulted from the Board''s default Even in the complainant''s own affidavit barring general assertions about marring his employment potentialities, there is nothing that has been specifically said about the financial quantum of the loss suffered. Nor can we fail to notice that though the non declaration of his result gave him a continuing cause of action and thus no bar of limitation would arise, yet he has taken a somewhat inordinately long time in coming forward to seek relief. In this context and the present state of evidence on the issue of compensation we are of the view that a sum of Rs. 10,000/- would amply meets the ends of justice in the somewhat peculiar case. In the light of the above, it is accordingly directed that the Haryana School Education Board, Bhiwani shall pay to the complainant the compensation amount of Rs. 10,000/- within one month from today failing which the provisions of Section 27 of the Act would have to be invoked. Complaint allowed.