WP/2849/2005 of Board of Indtermeditate Education Vs Reddy Basha Saheb Shaik on 29 December 2009

ORDER:

Per the Hon'ble Sri Justice Ghulam Mohammed This writ petition is preferred by the Board ofIntermediate Education, State of Andhra Pradesh,seeking a writ of mandamus declaring the orders passedby the District Consumer Forum, Chittoor, under theConsumer Protection Act, in C.D.No.170 of 1999, asconfirmed by the Andhra Pradesh State ConsumerDisputes Redressal Commission, Hyderabad, inF.A.No.52 of 2003, dated 20-09-2004, as arbitrary, unjust and unsustainable.

The facts, which are relevant for our inquiry, are in avery narrow compass.

The 1[st] respondent – Reddy Basha Saheb Shaikprosecuted his Intermediate course during the years1997-99 in Government Junior College, Peler andcompleted the course in the month of April 1999 withregistered No.2370014. However, his result was withheldfor want of receipt of marks for Botany Paper-II from thevaluation camp concerned. Later, the result wasdeclared to have failed securing only 16 marks out of 60and the marks memo was accordingly issued to him.Subsequently, by realizing that decoding exercise was not done properly by the Agency concerned, the error inthe result was rectified and the 1[st] respondent wasinformed that he secured 57 out of 60 marks in BotanyPaper-II and his original pass certificate was sent to thecollege, declaring him to have passed in 1[st] division.

The 1[st] respondent filed C.D.No.170 of 1999 beforethe District Consumer Forum, Chittoor, under theConsumer Protection Act, 1986 alleging that for sheernegligence on the part of the Board, he suffered mentalagony and he could not attend for EAMCET andtherefore, he should be compensated. On behalf of theBoard, a counter-affidavit was filed contending that theForum has no jurisdiction, as the functions that are beingdischarged by the Board are not in nature of “Service”and the respondent herein cannot be considered as“Consumer” of the Board. The grievance of the writpetitioner Board is that the District Consumer Forum,without appreciating the contentions canvassed by itproperly, passed an Award on 05.12.2002, directingpayment of a sum of Rs.50,000/- to the 1[st] respondenttowards damages. Aggrieved by the said Award, theBoard preferred an Appeal being F.A.No. 52 of 2003before the State Consumer Disputes RedressalCommission, Hyderabad. The State Commission withoutexamining the provisions of the Act in a right perspectiveand without noticing the settled principles of law on thesubject, confirmed the order of the District ConsumerForum, Chittoor and dismissed the Appeal. Hence, the present writ petition.

Learned Standing Counsel for IntermediateEducation contends that as against the orders of theappellate authority, the 1986 Act, though provided furtherAppeal to the National Commission, under Section 19,the same is not efficacious, as the proviso to the saidSection prescribes that, the Board shall deposit theamount and if the Board deposits the amount as directedby the District Consumer Forum, it will be put to prejudiceand suffering. She further contends that a student, whoundergoes examination conducted by the Board, cannotbe termed as a ‘Consumer’ within the meaning of thatexpression under the Act, as there is no relationship of‘Consumer’ and ‘Service Provider’ between therespondent and the petitioner Board.

During the pendency of the writ petition, the learnedStanding Counsel for Intermediate Education wasdirected to produce the answer script of Botany Paper-II of the 1[st] respondent, so as to understand as to how themistake has crept in, whether by design or by anaccident. The learned Standing Counsel would nowsubmit that the Board would preserve the answer scriptsrelating to an examination only till the next examination isconducted and subsequently, they will be destroyed, asper their rules and hence, the answer script of the 1[st]respondent is not readily available.

The learned counsel has drawn our attention to theJudgment rendered by the Apex Court in BIHAR

SCHOOL EXAMINATION BOARD v. SURESH

PRASAD SINHA[[1]], which is to the following effect:

“ 11. …………. The function of theBoard is to conduct schoolexaminations. This statutory functioninvolves holding periodicalexaminations, evaluating the answerscripts, declaring the results andissuing certificates. The process ofholding examinations, evaluatinganswer scripts, declaring results andissuing certificates are different stagesof a single statutory non-commercialfunction. It is not possible to dividethis function as partly statutory andpartly administrative.

12. When the Examination Boardconducts an examination in dischargeof its statutory function, it does notoffer its “services” to any candidate. Nor does a student who participates inthe examination conducted by theBoard, hire or avail of any service fromthe Board for a consideration. On theother hand, a candidate whoparticipates in the examinationconducted by the Board, is a personwho has undergone a course of studyand who requests the Board to testhim as to whether he has imbibedsufficient knowledge to be fit and if so,determine his position or rank orcompetence vis-à-vis otherexaminees. The process is not,therefore, availment of a service by astudent, but participation in a generalexamination conducted by the Boardto ascertain whether he is eligible andfit to be considered as havingsuccessfully completed the secondaryeducation course. The examination fee paid by the student is not theconsideration for availment of anyservice, but the charge paid for theprivilege of participating in theexamination.

13. The object of the Act is to cover inits net, services offered or rendered fora consideration. Any servicerendered for a consideration ispresumed to be a commercial activityin its broadest sense (includingprofessional activity or quasi-commercial activity). But the Act doesnot intend to cover discharge of astatutory function of examiningwhether a candidate is fit to bedeclared as having successfullycompleted a course by passing theexamination. The fact that in thecourse of conduct of the examination,or evaluation of answer scripts, orfurnishing of mark sheets orcertificates, there may be somenegligence, omission or deficiency,does not convert the Board into aservice provider for a consideration,nor convert the examinee into aconsumer who can make a compliantunder the Act. We are clearly of theview that the Board is not a “serviceprovider” and a student who takes anexamination is not a “consumer” andconsequently, complaint under the Actwill not be maintainable against theBoard.”(Emphasis is brought out)

In view of the ratio laid down by the Supreme Courtin the aforesaid judgment, we dispose of the writ petition,holding that the District Forum does not have any jurisdiction to entertain the consumer dispute raised bythe 1[st] respondent, but however, without costs.

Ratio decidendi

Before parting with the case, we would like to puton record our anguish as regards the manner in whichthe Board has conducted itself in the case of the 1[st]respondent. When the career of hundreds of candidatesis involved, little more care and attention ought to havebeen paid. When examination conducted by the petitionerBoard is considered as a stepping stone for careeradvancement of a student and an Examiner was required tobe careful, cautious and has a duty to ensure that the answersare properly evaluated. We hope and trust that the petitionerBoard will be more careful and diligent in future and seethat such omissions and mistakes do not occur, at anyrate by way of a premeditated exercise. Further, theBoard would ensure that all such answer scriptsinvolving some dispute or the other, are not routinelydestroyed, thus preventing their scrutiny.

If the amount deposited by the Board in pursuanceof the directions of this Court has been withdrawn by the1[st] respondent, the same shall not be recovered fromhim.

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Ghulam Mohammed, J

---------------------------------Nooty Ramamohana Rao, J

mrk

29[th] December 2009

[1](2009) 8 SCC 483