PRESIDENT DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, SAMBALPUR

                                                              CONSUMER COMPLAINT NO.181/2023

Present-Dr. Ramakanta Satapathy, President,

  Sri. Sadananda Tripathy, Member,

Arpita Behera,

D/O-Sri. Rajesh Kumar Behera,

R/O-Maitri Vihar, Kuretola, Sakhipara, PO/Dist-Sambalpur,

Being Minor represented through her father Guardian

Rajesh Kumar Behera, Aged about 48 years,

S/O- Late Rabi Narayan Behera,

R/O-Maitri Vihar, Kuretola, Sakhipara,

PO/Dist-Sambalpur-768001                                          ….…......Complainant.

                                    -Vrs.-  

1. St. Joseph Convent Higher Secondary School, Sambalpur,

Through the Principal, At Brooks Hills Sambalpur, PO-Sambalpur, Dist-Sambalpur-768001.

2. The Chairman, I.C.S.E. Board New Delhi, P 35-36 sector-IV,

Pushp Vihar, Saket, New Delhi-110017.    , ………........Opp.Parties

Counsels:-

1. For the Complainant         :- Sri. R.L. Sharma & Associates
2. For the O.P. No.1                           :- Sri. A.K. Sharma & Associates
3. For the O.P. No.2                           :- Sri. P. Mukharji & Associates

Date of Filing:16.10.2023,Date of Hearing :13.02.2024, Date of Judgement : 15.04.2024

  Presented by Dr. Ramakanta Satapathy, PRESIDENT

1. The case of the Complainant is that the Complainant is as student of O.P. No.1 institution and the school is affiliated to the O.P. No.2. The Complainant is a meritorious student and during 2021.22 appeared the Council for Indian certificate Examination having ID No. 7671836. The Complainant during first semester of X^th class appeared for 400 marks and secured 389 which is 97.25%. Again during April 2022 she appeared for 600 marks( 480 marks theory and 120 marks Viva, practical and projects). Although complainant performed well but the O.Ps awarded 75.66% marks when the result published on 17.07.2022. The Complainant requested several times to supply theory and viva practical and project marks separately but the O.P. No.1 did not supply the same.

On 18.07.2022 complaint’s father sought for information under RTI from O.P. No.1 & 2 of class X Board Examination all subjects relating 2^nd semester internal assessment. On 16.08.2022 the O.Ps gave vague reply and refused to supply internal marks and further instructed for rechecking of marks.

When the Complainant requested for supply of internal marks the O.P. No.1 replied on 30.08.2022 that marks have been sent to O.P. No.2. Mail was also sent to O.P. No.2.

The Complainant applied for re-checking on 19.07.2022 six subjects on payment of Rs. 6000/- i.e. Rs. 1000/- for each subject. When mail was given to O.P. No.2 to give details of rechecking the O.P. No.2 replied and advised to keep patience as the rechecking evaluation is under process. When the O.P. no.2 delayed, on 18.10.2022 & 18.11.2022 mails were given but rechecked marksheet or any letter till date not given.

Being aggrieved for deficiency in service the complaint was filed.

2. The O.P. No.1 in reply submitted that the complaint is not maintainable. The Complainant appeared ICSE Examination during academic session 2021-22 and the examination was conducted as per Regulations and guidelines prescribed by the council. The internal Examination/Assessment results are sent to the Board. Marks are awarded on the basis of performance of students and not on any other consideration. Marksheet/statement of marks are prepared by council/Board after the examination process is complete.

The complaint is not maintainable under the Consumer Protection Act, 2019. The O.P. NO.1 is not a public authority and hence the R.T.I. Act, 2005 is not applicable to it. There is no deficiency in service of the answering O.P. To the complaint letter dated 17.08.2022 reply has been given vide letter dated 30.08.2022. The internal assessment marks are submitted to O.P. No.2 as earliest. Answering O.P. is not the rechecking authority. The complaint is devoid of any merit and liable to be dismissed.

3. The O.P. No.2 in its reply submitted that the minor complaint has not been represented by her Guardian Ad litem(GAL). The complainant is not a “consumer” of the answering O.P. and student is not a ‘Consumer’ and educational institutions are not providing any service.

The Indian School Certificate Examination Council is a registered Society under the Societies Registration Act, 1860. The council is not created by statute. No financial assistance is given by the Government to meet the expenditure of the council. The council is not a public authority.

The date of birth of the student is shown 19.06.2007 in item No. 1 whereas on the next page a marksheeted to have been issued by CISCE shows 19^th Nov. 2007. The marksheet issued by the CISCE is manufactured one as no such sheet has been supplied by O.P. No.2. The O.P. filed an online transcript uploaded in the online portal(Career Portal) for CISCE which shows there is a substantial difference in marks of the Complainant. The Complainant’s actual performance was 313 out of 400 constituting 78.25%.

As per Sec2(h) of the R.T.I. Act, 2005 the O.P. No.2 is not a public authority and Rs. 10/- IPO has been refunded. The Council is not a public authority.

The Complainant applied for rechecking of the papers as per regulation 2 of ICSE Regulation. The papers were checked and the results were found to be correct. The O.P. made available the re-check result in the career portal which can be accessed/downloaded by the O.P. No.1

The O.P. has received mail dated 07.09.2022 and replied. The Complainant in the garb of rechecking wants to re-evaluate the answering papers which is not permissible.

There is no any deficiency on the part of the answering O.P. and the complaint is liable to be dismissed.

4. The Complainant filed the following documents:

1. Copy of Marksheet session 2020-21
2. Copy of RTI application dated 18.07.2022 to O.P. No.1.
3. Copy of RTI application dated 18.07.2022 to O.P. No.2.
4. Copy of Reply dated 16.08.2022.
5. Copy of request letter dated 17.08.2022 to O.P. No. 1.
6. Copy of e-mail dated 18.08.2022 to O.P. No.2.
7. Copy of re-checking fees receipt dated 19.07.2022 of Rs. 4000/-.
8. Copy of e-mail dated 07.09.2022.
9. Copy of e-mail dated 07.09.2022 given to O.P. No.2.
10. Copy of reply of e-mail dated 12.09.2022 given by O.P. No.2.
11. Copy of e-mail dated 18.10.2022 to O.P. No.2.
12. Copy of e-mail dated 18.11.2022 to O.P. No.2.

The O.P. No.2 filed the following documents:

1. Copy of online transcript of Arpita Behera 2021-22 Semester-I Examination.
2. Tabulation Register 2021-22 Semester-I Examination.
3. Letter of O.P. No.2 non-application of the RTI Act, 2005.
4. ICSE year 2022 examination Recheck letter to O.P. No.1 (English Language), Geography, Chemistry, Biology, Mathematics & Economic applications along with certificate dated 06.12.202.

5. After perusal of the contentions and documents following issues are framed:

ISSUES

1. Whether the Complainant is not a consumer of the O.Ps and this complaint a is not maintainable before this Commission as the O.Ps are educational institutions?
2. Whether non-supply of internal assessment marks of a student amounts to deficiency, in service on the part of O.Ps?
3. Whether non-reply of rechecking result to the Complainant amounts to deficiency in service?
4. What relief the Complainant is entitled for?

Issue No. 1 Whether the Complainant is not a consumer of the O.Ps and this complaint is a not maintainable before this Commission as the O.Ps are educational institutions?

It is admitted case of both the parties that the Complainant Arpita Behera is student of O.P. No.1 school and the O.P. No.1 is affiliated to the O.P. No.2, council for Indian School certificate Examination. The Complainant appeared the first semester, class Xth examination under the O.Ps during 2021-22 F.M. 400 marks and during April 2022 the second Semester examination full marks 600 and the result published on 17.07.2022. The Complainant alleged that 75.66% marks has been awarded which is very low as per Complainant in 2^nd semester and the 1^st semester marks secured is 97.25%. The O.Ps in reply submitted that the marksheet shown by the Complainant is manipulated and the Complainant secured 313 marks out of 400 which constitute 78.25%. The Complainant brought for internal assessment marks before the O.P. No.1 who replied that marks have been sent to the O.P. no.2 council. Through R.T.I. mode the Complainant tried to obtain the marks but the O.P. no.2 with a plea that they are not amenable to R.T.I. Act, refused to provide information and advised to apply for rechecking. The Complainant applied for rechecking of Six subjects, deposited Rs.6000/- but when no any reply was given filed this complaint.

The Complainant submitted that the O. P. No.1 is not providing any service to the student free of cost. As consideration is paid the Complainant is a consumer of the O.P. No.1. The Complainant cited the decision of Hon’ble National Commission, Bhupesh Khurana & others Vs Vishwa Buddha parishad & others case, 2000(3) CPR 49(NC). The Complainant cited the view given by hon’ble Supreme Court in Civil Appeal No. 1135/2001, Buddhist Mission Dental College & Hospital Vs. Bhupesh Khurana. Kerala Public Service Commission & other Vs The State Information Commission & others, 121(2016) CLT 671( SC) was cited on the point of right to information along with Neeraj Vs. Delhi University case 123(2017) CLT 421(CIC).

IN the other hand the O.P. NO.2 in reply submitted that the ‘Council’ does not fall within the definition of the Consumer Protection Act, 2019 as they do not render any service as defined under the Act. The O.P. No.2 cited the decision of hon’ble Supreme Court, Bihar school Examination Board Vs. Suresh Prasad Sinha, Civil Appeal No. 3911/2003 which was preferred against R.P. No. 2167/02 of the hon’ble National Commission. The O.Ps cited P.T. Koshy and Other Vs. Eller Charitable Trust & other S.L.P.(c) No. 22532/2012 dated 09.08.2012 and submitted that educational institutions are not providing any kind of service, therefore, in matter of admission, fees etc. there can not be question of deficiency of service.

Relating to right ot information the O.Ps cited the case of council for the Indian School Certificate Examination, New Delhi Vs. Ms Anave Malhotra, Patiala Appeal No. CIC/MOHRD/A/2017/139271/MP wherein it was held that the council is not a “public authority”. The same view was taken by Hon’ble Calcutta High Court in Dinesh Sinha & others Vs. Council for the Indian School Certificate Examination and other, W.P.(c) No. 12549(W) of 2016.

Whether a student is a consumer or not is a controversial question raised before different High courts, hon’ble Supreme Court and before Hon’ble National Commission and different decisions come out. Education has become a fundamental right and now two perspectives arose. First perspective is that students and educational institutions are not coming within the preview of the Consumer Protection Act, 2019. In the second perspective education as a fundamental right it build the future of the students and nation. Educational institutions are demanding heavy fees to impart education. Education is not a matter of charity rather it becomes commercial and there is competition to attract student, provide better facilities and of a bright future. To safe guard the interest of the students is now very crucial in this juncture. In the perspective of consumer law educational institutions are duty bound to provide the following rights/facilities to the students as the students have right.

1. To receive good standard of education.
2. To safety.
3. To get all facilities like library, auditorium, study materials, games and sports and extra curricular facilities
4. To be informed
5. To be heard.
6. To consumer education  &
7. To redressal

In Bangalore water supply Vs. R.Rajappa & other, 1978 SCR(3) 207 the apex court recognised education institution as industry.

In Taneja Vs Calcullta District Forum. AIR 1992 Cal 95 the Hon’ble Calcutta High Court held that relationship between teaches and students in an education is not one of service provider. The same view was taken in Oza Wirav Kanu Kanu bhai Vs. Centre Head Apple Industries Ltd, (1992) CPR 736.

In Secretary Board of school Education, Bhiwani Vs. Mukesh Chand Case, 1994(1) CPR 269(har) it was accepted that students are consumers of the services provided by university. In central Academy Educational Society Vs. Gourav Kumar 1996(3) CPJ-230 the court observed teaching institution is not competent of marketization as inimical to vending of books or provisions of accommodation in marketable and can be contemplated as service as per the Consumer Protection Laws. In Sonal Matapukar Vs. Naglingappa Institute case, (1997) 2 CPJ 5(NC) the Hon’ble National Commission observed that there was the insufficiency in services and the Complainants are entitled to pay back of donation and damages with interest along with the cost of the proceeding. The Complainant is this case cited the Bhupesh Khurana and others case and the decision of the Hon’ble Supreme Court.

In Jai Kumar Mittal Vs. Brilkant Tutorials(2009)8 SCC 483 it was held defective supply of study materials by an institute can be a valid claim against it for inadequacy of services. The O.Ps in the present case cited the Bihar Prasad Sinha cane wherein it was held that the Educational Board and universities are not service provides and Complaint against them are not sustainable. The Same view was taken in Maharshi Dayanand University Vs. Surjeet Kaur Case, (2010) AIR II SCC159 the court observed that ‘Education is not a commodity and there can not be question of deficiency in service.

In T. Koshy and another Vs. Ellen Charitable Trust & others (2012) 3CPC 615 the Court held that university is not a non-profit body and it has some business elements inherent in the statues as well as Acts that administer the function of the University.

In Birla Institute of Technology & Science Vs Abhisek Mengi Case, (2013) 2 CPJ 681(NC) the hon’ble National Commission observed that forfeiture of fees by the University/Educational Institute without disseminate education amounts to unfair trade practice. In Manu Solanki & other Vs. Vinayaka Mission Society Case, 15^th October, 2020 the National Commission followed the Maharshi Dayanand University case(Supra) excluded the coaching institutions.

The Students are the beneficiaries of the services provided by educational institutions and for a better future parents pay high fees to the institutions. Responsibility also lies on the educational institutions to provide amenities declared and the services which are essential for the all round development of the person/student. In the present complaint the Complainant has paid Rs. 6000/- to the O.P. on 19.07.2022 Rs. 4000/- and on 21.07.2022 Rs. 2000/-. The fees is not a small amount . As consideration is paid by the Complainant, there is consumer relationship exists between the Complainant and O.Ps. Accordingly, the Complainant is a consumer of the O.Ps. The issue is answered in favour of the Complainant.

ISSUE NO. 2 Whether non-supply of internal assessment marks of a student amounts to deficiency, in service on the part of O.Ps?

The O.Ps filed the Indian Certificate of Secondary Education Examination Council Regulations. Relating to Internal Examination chapter-II part-II. Provisions have been made. Statement of marks shall be issued to all candidates who appeared for the examination. The pass marks for each subject is 33%. The school/candidates can view and point of marks and pass certificates will be sent to heads of schools after declaration of results.

In the present case the O.P. No.2 is the regulating authority and the O.P. No.1 is to act as per direction/guidelines issued by O.P. no.2. Accordingly, the contention of the O.P. No.1 institution is acceptable. The Complainant can not compel the O.P. no.1 to issues the marks of internal examination as it is solely declared by 2^nd party council.

In the Regulations there is no specific provisions relating to Reflection of marks of internal examination and theory etc. As per Consumer Protection Act, 2019 every consumer has the right to know. The O.Ps should specify the details of marks awarded in the marks sheets. Specifying marks awarded in internal examinations, theory practicals and projects as different percentage constitute the total 100% marks in a subject. In the garb of internal examination in educational institutions they can not practise monopoly/discrimination to the students and this is a clear case that the O.,Ps not provided the internal assessed marks to the Complainant although she has right to know and entitled to get. Non reflection of marks in the mark sheet for the subject assessed is discrepancy in the marksheet and the O.P. No.2 should take special care to reflect the same in the marksheet or to make special regulations in this regard taking consideration the right to information into account.

The issue is answered in favour of the Complainant.

This Commission does not feel it proper and discuss under the Right to Information Act, 2005 and steps taken by the parties.

Issue No.3:- Whether non-reply of rechecking result to the Complainant amounts to deficiency in service?

From the guidelines submitted by O.Ps “Evaluation of answer scripts” procedures are there. The O.Ps after receiving the consideration rechecking the answer scripts and as per submission of O.P. No.2 published the same intimating the Head of the school, O.P. No. 1. In this context the O.P. No.2 clarified that O.P. No.1 has been intimated and filed annexure ‘C’.

The O.P. No.1 is silent on the matter. After receiving the information it was the duty of O.P. No.1 to intimate the Complainant about recheck result. Non-submission of any documents by the O.P. No.1 that due intimation has been made to Complainant amounts to deficiency in service on the part of O.P. No.1. The O.P. no.1 has not performed its duty properly for which the Complainant was compelled to knock the door of the Commission.

                   The answer accordingly.

Issue No.4:- What relief the Complainant is entitled for?

From the supra discussion it is clear that the O.Ps have not performed their duty properly, suppressed the rights of student by not intimating the evaluated answer scripts in the mark-sheet and accordingly jointly and severally liable. Whether a student is of what standard it dependents on his/her performances and the O.Ps are competent to evaluate the same. In the present complaint this Commission has nothing to discuss on any manipulation made in marksheet by whom/when/where, right to information and on public authorities but a simple conclusion can be drawn that as student has every right to know his/her performances in examination whether it is internal or theoretical, project work etc. The council/Boards are promoting the educational institutions in the garb of internal examination, project work, practical work etc to extract money from innocent parents, who dream a beautiful future for their children.

Relating to compensation when the life of a student is affected by the inaction of the authorities it can not be computed through any monetary terms.

Taking into consideration the circumstances of the case following order is passed:

ORDER

The complaint is allowed on contest against the O.Ps. The O.Ps are jointly and severally liable for the inaction and directed to provide marksheet to the Complainant reflecting the internal assessment, theory, practical and project work etc. marks if any within one month of this order. For deficiency and unfair trade practice the O.Ps are liable to pay compensation of Rs. 10.00 lakhs and litigation expenses of Rs. 10,000/-. In case of non execution the entire amount will carry 12% interest P.A. w.e.f. 17.07.2022 from the date of publication of result till realisation.

Order pronounced in the open court on 15^th day of April 2024.

Supply free copies to the parties.