Per Shri P.G.Kadu, Hon’ble President

Brief Facts of the case :-

This is a consumer complaint filed by the Complainant u/s 35 of the Consumer Protection Act, 2019. According to the Complainant, the brief facts of the present complaint are as follows :

1)      Complainant Mrs Preetam Rajmane stated that her son named Master Atharva Rahul Rajmane and daughter named Swara Rahul Rajmane was admitted to the School viz. Universal High school in the year 2020-2021 which is located at Chembur, Mumbai.

2)      The Complainant moved to Pune as her husband got transferred there. So she approached the opponent to obtain the Transfer Certificate and Bonafide Certificate in order to be admitted their children at a new School viz. Poddar International School, at Pune.

3)      The Complainant stated that the opponent voluntarily denied providing the Transfer Certificate for New admission for trivial reasons. The opponent insisted that as per the fee policy and terms and conditions, the complainant was required to inform the school authorities by 28^th February 2022. The opponent had informed the complainant by email that the Complainant needs to inform them by 28th Feb 2022, or else the child would be considered as continuing for the next academic year incurring the subsequent fees for the next term.

4)      The Complainant stated that she made repeated requests and made many reminders to the opponent for TC but there was no positive response from the school authorities. Hence, the complainant has filed this complaint against the opponent to seek justice and relief.

Contentions of the Complainant :

The complainant submitted her written argument and affidavit of evidence along with documentary evidences in support of her claim against the school authorities. The complainant placed main reliance on following issues.

1. Email dated 6^th March, 2022 sent by the complainant to the school authorities to obtain T.C. 
2. Repeated request and visits to the school authorities.
3. Opponent deprived both children of complainant from their right of education vide Sec. 5 of the Right to Children to free and Compulsory Education Act 2009 and article 21(A) of Indian Constitution.
4. Opponent suggested the complainant should pay the first instalment for the next academic year (Rs.62,000/-) to hand over the Transfer Certificate. There is a clear malafide intention behind holding the TC and Bonafide Certificate of the children. This is unfair Trade Practice and deficiency in service on the part of the opponent.
5. Citation in the case of Fatima Zehra Minor vs The CBSE Regional Office, WP(C) No.21991 of 2023, Kerala HC.
6. Admission Papers mentioning policy related to school Fees.

Opposite Parties Contention.

The opponent submitted their written statement after the stipulated and extended period of 45 days. After hearing the reasons for condonation of delay, this commission passed the order against the opponent on 4^th Oct 2023 to proceed the matter without written submission. Hence, the opponent was allowed to argue on legal points only.

Facts and Observations

Heard both the parties on specific issues. We have also perused all the records made available to this commission by both the parties. After perusing all records we made the following observations in this case.

1. The complainant applied for the TC of her children to the opponent School as they were required to move to Pune due to her husband’s transfer. She applied for TC on 6^th March, 2022.
2. Before that Opponent vide mail dated 22 February, 2022 directed the complainant for continuation of her kids in next academic year 2022-23.
3. On personally visiting the school authorities, the complainant was asked to pay Rs 62,000/- of the first instalment of the next academic year to obtain Transfer Certificate of her kids.
4. The opponent has till this date not provided the Transfer Certificate and Bonafide Certificate to the complainant.
5. The opponent submitted that being an educational institution, they do not provide a service and therefore the complaint does not fall within the ambit of ‘Consumer’ as defined in Consumer Protection Act 2019. The opponent relied upon judgment passed by the Hon’ble National Commission in CC/261/2012, in the case of Manu Solanki versus Vinayaka Mission University dated 20^th January, 2020.

Analysis of Facts and Conclusions

We heard both parties at length. We have also perused all the documents and submissions made by both the parties. Considering all the facts and submission and based on our observation and analysis our findings in the said matter are as below:

While observing facts in the said case we perused the email correspondence between the parties and terms and policies related to fees payment in this case. These are discussed in the following paras.

1) Mail dated 22^nd February, 2022 from the school authorities informed as,         

          Please note the following important dates:

• Academic Year 2022 - 2023 begins on 4th April 2022.
• Last date of completing the Rollover/ Re-enrollment/ New admission process is 20^th March, 2022.
• Last date to receive applications for the Leaving certificate is 28^th February, 2022.
• The first instalment of the next academic year is applicable for applications received after this date.

Click here to access the Rollover/ Re-enrollment/ New admission link.

The school reserves a seat for your ward and does not award it to waitlisted admission applicants; hence, kindly complete the process in stipulated time.

This explains that the new academic year opens on 4^th April 2022. At the same time, last date of roll over is 20^th March, 2022. The complainant had informed the school authorities on 6^th March, 2022 i.e. well before the beginning of the next academic year.

2) Form ‘C’ is the declaration by Parents. Some important points in this declarations are as under,

1. Clause 8 of the policy…“We further understand, agree, accept, confirm and acknowledge that Universal and/or its management and/or its associates and/or its affiliates have the right to charge additional amount/charges in case we seek the materials/ services falling under the 'Fee Exclusions' list at that relevant point of time and we further unequivocally accept, assure, declare, confirm, agree and undertake to pay to Universal and/or its management and/or its associates and/or its affiliates such additional amount/charges in lieu thereof and in the event of non-payment of such additional amount/charges, Universal and/or its management and/or its associates and/or its affiliates have the right to deny availability of the corresponding materials /services incidental thereto and/or ancillary therewith”
2. Clause 16 of the policy…“We understand, agree and accept that in the event fees are due and payable to Universal, the latter and/or its management reserves the right inter alia to not issue hall tickets, internal examination results, reports, transfer certificates, bonafide certificate, school leaving certificates, any other certificate or testimonial or recommendations to future school / colleges and in such a scenario we shall also not be entitled to demand the same”. 

3)      From the document form ‘C’ and ‘D’ declaration nowhere there is mentioning about the payment of fees while obtaining Transfer Certificate, etc. in case the child changes schools. Clause 8 above mentions agreement of the parent allowing school management to charge additional amount in case they seek the material services falling under the fee exclusions list at the relevant point of time. Fee exclusions details are given on clause 13 of the declaration in details. There is no mention of additional charges to be paid on account of Transfer Certificate or Bonafide Certificate.

Further in clause 16 parents agreement is given that in the event of fees are due and payable to Universal, the management reserves the right to not issue Transfer Certificate, Bonafide certificate, etc. However, in the impugned case there is no such fees or dues payable shown in the name of children of the complainant.

Hence, in our opinion, nothing from clause 8 or clause 16 is applicable to the complainant.

4)      The complainant brought our attention to the issue of violation of article 21 (A) of the Constitution of India and Section 5 of the Right of Children to Free and Compulsory Education Act, 2009. The complainant stated that the opponent has deliberately denied to provide the Transfer and Bonafide Certificate, therefore, the opponent clearly deprived both children's right to their primary education which is a fundamental right enshrined by the Indian Constitution under Article 21(A) and as "Section 5 in The Right of Children to Free and Compulsory Education Act, 2009.”

i)     Where in a school, there is no provision for completion of elementary education, a child shall have a right to seek transfer to any other school, excluding the school specified in sub-clauses iii) and (iv) of Clause (n) of Section 2, for completing his or her elementary education.

ii)    Where a child is required to move from one school to another, either within a State or outside, for any reason whatsoever, such child shall have a right to seek transfer to any other school, excluding the school specified in sub-clauses (ii) and (iv) of Clause (n) of Section 2, for completing his or her elementary education.

iii)   For seeking admission in such other school, the Head-teacher or in-charge of the school where such child was last admitted, shall immediately issue the transfer certificate: Provided that delay in producing transfer certificate shall not be a ground for either delaying or denying admission in such other school:

Provided further that the Head-teacher or in-charge of the school delaying issuance of transfer certificate shall be liable for disciplinary action under the service rules applicable to him or her.

Provisions made in the said Act are self-explanatory and we don’t find any reason that the school authorities have any right to withhold Transfer Certificate, Bonafide Certificate or any other document which is required to shift the child from one school to another school. The opponent argument on this point doesn’t hold merit and hence cannot be accepted.

5)      The opponent replied to legal notice issued by the complainant dated 24^th April 2022 on 16^th May 2022. In the said reply, the opponent mentions at para No.10 that… as per our policy we demanded the first term instalment… However, after perusing the so called policy documents, available in the form of Declaration ‘C’, ‘D’ or ‘E’ no such terms are mentioned. The only mention of first instalment comes in the mail dated 22^nd February, 2022. In the said mail, it is mentioned that…“ the first instalment of the next academic year is applicable for applications received after this date…” We cannot accept this communication of the opposite party to the complainant as the policy. This is at the most guidelines for the next years admissions as it provides link for the admission. The complainant approached to the opponent on 6^th March, 2022 and applied for the Transfer Certificate and Bonafide Certificate. Schools were supposed to open after one month for the next academic year. Hence, it was merely a technical issue that the complainant informed 6 or 8 days late. Hence, there is no genuine reason to ask for the first instalment of fees when the schools are yet to open for next academic year.  The complainant has rightly cited the case of  Fatima Zehra Minor v. The CBSE Regional office,
WP(C) No.21991 Of 2023 the Kerala High Court in which it is held as under:

"The transfer Certificate of a child cannot be withheld by a school because the fees are due to the school. Every child has the fundamental right to get education. a school cannot deny a child to obtain a Transfer Certificate to move to another school of their choice. Further, coercive tactics cannot be insisted to recover the fees."

Facts of the said case are identical to the situation arisen in the impugned case. It would be worth to look into the para 11 to 13 of the said judgement. For the sake of clarity we reproduce it here.

11. Imparting education is the primary duty of the State. The Transfer Certificate of a child cannot be withheld by a School because the fees are due to the School. Every child has a fundamental right to get an education.

At the same time, the School, being an unaided school, also has a right to get the fees which are legally due for their sustenance. An unaided school runs on the school fees obtained from the children studying at the School for payment of salary to teachers and for the maintenance of the School. But a School cannot deny a child to obtain a Transfer Certificate to move to another School of their choice.

In the present case, the petitioner contends that the entire fees have been paid for the academic year 2022-23. But the 2nd respondent disputed the same and submitted that an amount of Rs.39,055/- is due from the petitioner towards fees.

12. Since it is a disputed question of fact, this Court cannot go into the said aspect under Article 226 of the Constitution of India. The question that arises for consideration is whether the 2nd respondent can withhold the Transfer Certificate, unless and until, the amount in dispute as school fees is paid by the petitioner. Indeed, the answer is no. The right of a child to get a Transfer Certificate from a School to join another School, for whatever reason, cannot be denied by the School Authorities merely because the School fee is due. If any amount is due towards fees, the proper course open to the 2nd respondent is to file appropriate proceedings against the petitioner for recovery.

13. Coercive tactics cannot be insisted upon by the 2nd respondent to make the petitioner pay school fees. It is seen from Ext.P5 that the school has already issued a lawyer's notice to the petitioner's mother to pay the entire fees due to a tune of Rs.39,055/- within 15 days, and it is also stated that failing which, legal action would be initiated. Ext.P6 shows that the petitioner's mother, is aged 32 years, is undergoing treatment for cancer, and one of the certificates show that the approximate cost of the treatment would come to Rs. 12 lakhs. In such a situation, the child cannot be made a scapegoat and denied the right to education by withholding the Transfer Certificate. The 2^nd respondent has no business to retain the Transfer Certificate. Therefore, the writ petitioner is entitled to an order and hence, there will be a direction to the 2nd respondent to issue the Transfer Certificate to the petitioner based on Ext.P1 application within a period of seven days from the date of receipt of the certified copy of the judgment. Needless to say, if any amount is due to the petitioner, the 2nd respondent is given liberty to initiate appropriate legal proceedings for recovery of the same.

We found that the ratio of above case is rightly applicable in the present case.

6)      The opponent relied on the case of Manu Solanki vs Vinayaka Mission in which Hon’ble National Commission held that the institutions rendering education including vocational training are not covered under the provisions of the Consumer Protection Act, 1986. However, the said judgement has been challenged and presently in the Hon’ble Supreme Court for hearing. Further, the facts of the said case are totally different compared to the present case. Hence, ratio of the said case cannot be applied in this case.  In the present case, the school had taken fees for imparting education to the children and hence according to the provisions of Consumer Protection Act, 2019, the complainant in this case rightly falls under the definition of ‘Consumer’.

Conclusions

Based on above analysis we are of the firm opinion that the opponent party have no legal right to withhold Transfer Certificate, Bonafide Certificate or any other document which would be required to get admission in another school while moving from the school of opponent. Such coercion tactics is definitely an unfair trade practice towards the complainant who had applied for Transfer Certificate and Bonafide Certificate for their kids. The opponent is found guilty of unfair trade practice by asking first instalment of fees for the next academic year which was yet to start. Hence, as per Sec. 39(g) of Consumer Protection Act, 2019, powers vested in this commission, we hereby direct the School Management to discontinue this unfair Trade Practice of asking first Instalment of fees or any other charges from the outgoing students at the time of issuing Transfer Certificate while shifting to other school in all pending and upcoming cases from the date of passing of this order.  The opponent is also guilty of deficiency in service by not providing the same in reasonable time after receiving intimation from the complainant.

On the basis of above observations, we are of the firm opinion that the said complaint is genuine and deserves to be allowed.  Hence, the following order.

ORDER

1)      The Consumer Complaint No. CC/135/2022 is partly allowed.

2)      The opponent is hereby directed to issue the Transfer Certificate (TC) and Bonafide Certificate of complainant’s children, Viz Atharva Rahul Rajmane and Swara Rahul Rajmane within seven days from the date of the order without levy of any charges.

3)      We hereby direct the School Management to discontinue this Unfair Trade Practice of asking first instalment of fees or any other charges from the outgoing students at the time of issuing Transfer Certificate while shifting to other school in all pending and upcoming cases from the date of passing of this order.

4)      The opponent is also found guilty of deficiency in service by withholding Transfer Certificate and Bonafide Certificate without any legal authority causing mental and physical discomfort to the complainant, the opponent is directed to pay Rs.50,000/- (Rs.Fifty Thousand Only) to the complainant towards compensation.  

5)      The opponent is further directed to pay Rs.10,000/- (Rs. Ten Thousand Only) to the complainant towards legal expenses.

6)      The copies of this order be sent to the parties free of costs.