Maharshi
Dayanand University Vs. Surjeet Kaur [2010] INSC 509 (19 July 2010)
Judgment
IN THE
SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 6807 of
2008 MAHARSHI DAYANAND UNIVERSITY .... Appellant VERSUS SURJEET KAUR ....
Respondent
Dr. B.S.
CHAUHAN, J.
1.
The Maharshi Dayanand University (hereinafter referred to as
"the appellant") has questioned the correctness of the order in
Revision Petition No.132/06 passed by the National Consumer Disputes Redressal
Commission, New Delhi (hereinafter called "National Commission")
dated 27.4.2007 whereby the National Commission has allowed the Revision
Petition and the order passed by the State Consumer Disputes Redressal
Commission (hereinafter referred to as "State Commission") has been
set aside simultaneously restoring the order passed by the District Consumer Disputes
Redressal Forum, Gurgaon (hereinafter called as "District Forum"). A
further direction has been issued to the appellant to issue the B.Ed. Degree to
the respondent on the basis of the results of her examinations which were held
in December, 1998.
2.
The dispute arose when the respondent felt aggrieved by the action
of the appellant refusing to confer the degree of B.Ed. on her. The background
of the facts giving rise to the case was that the respondent took admission in
the academic session of 1994-95 as a regular student to pursue the course of
M.A. in Political Science from Government College, Gurgaon.
The
respondent appeared in the Part-II Examination in May, 1995 as a regular
candidate and in the same academic session of 1994-95 she also applied for
admission in the B.Ed. (correspondence course) without disclosing the fact that
she was already pursuing the regular course of M.A. in Political Science. The
University at the time of preparation of the results of M.A. in Political
Science discovered that the respondent had been pursuing her B.Ed. course in
violation of Clause 17(b) of the General Rules of Examination and 2 accordingly
the respondent was informed that in view of the aforesaid rules she should
exercise her option to choose anyone of the courses.
3.
The respondent voluntarily and consciously opted for pursuing her
course of M.A. in Political Science and forewent her B.Ed. Degree course.
4.
Subsequently, the University as a general measure of benefit
granted an indulgence through Notification dated 16.3.1998 giving a further
chance to such Ex. students who had not been able to complete their
post-graduation/B.Ed.
courses
within the span of prescribed period as provided for under the rules. The
supplementary examinations in this regard were announced by the University in
the month of December, 1998.
5.
The respondent applied under the said Notification for appearing
in B.Ed. examination and succeeded in appearing in the examinations and also
passed the same. The Appellant- University refused to confer the degree of
B.Ed. on the 3 respondent. Aggrieved, the respondent approached the District
Forum in the year 2000 praying for the relief which has now been ultimately
awarded in the impugned order of National Commission. The District Forum passed
an order in favour of the respondent vide judgment and order dated 24.9.2004
and directed the appellant to issue the B.Ed. degree and also award Rs.1,000/-
as compensation to the respondent. This order was passed by the District Forum
despite a specific objection taken by the appellant that the District Forum had
no jurisdiction to entertain such a complaint and award any such relief.
6.
Aggrieved, the appellant filed an appeal before the State
Commission and the same was allowed vide judgment dated 19.10.2005. The
judgment of the District Forum was set aside holding that the District Forum
should not have entertained the complaint. The respondent aggrieved by the
order of the State Commission preferred a revision under Section 21 of the
Consumer Protection Act, 1986 (hereinafter referred to `Act 1986') before the
National Commission which has been allowed by way of the impugned order. The
National 4 Commission took notice of the issue relating to the entertaining of
the complaint and the jurisdiction of the District Forum to hear the same. The
National Commission relying on its larger Bench judgment in F.A. No.643 of 1994
dated 31.5.2001 held that imparting of education by the educational
institutions for consideration falls within the ambit of service as defined under
the Act and further relying on the judgment of this Court in the case of
Bangalore Water SC 548 held that in view of the ratio of the said decision and
the peculiar facts of the case, the respondent was entitled for the relief
claimed and accordingly the appellant was directed to issue the B.Ed. degree.
7.
Shri Tarun Gupta, Ld. counsel appearing for the appellant has made
three pronged submissions. He contends that the complaint could not have been
entertained as the refusal of the appellant not to award the B.Ed. degree was
well within its jurisdiction and it was not service much less a consumer
service as defined under the Act for the District Forum to entertain the
complaint. The second submission of 5 Shri Gupta is that the rules as noted
hereinabove did not allow a student to pursue two courses simultaneously and
therefore, the attempt made by the respondent without disclosing the fact of
having already taken up another course i.e. Political Science in
post-graduation disentitled her from any relief. As a corollary to the said
submission, he submits that non-disclosure of this fact, therefore, did not
entitle her to the award of B.Ed. degree more so, when her examination had
already been cancelled and the order cancelling her examination had not been
properly challenged. The third submission of Shri Gupta is that the National
Commission has taken too sympathetic view for the respondent and while doing so
the National Commission has not correctly appreciated the impact of the General
Rules of Examination as quoted hereinabove and the Notification dated 16.3.1998
which even otherwise did not allow the respondent to qualify to appear in the
B.Ed. examination.
8.
The respondent alongwith her father appeared in person and
vehemently tried to persuade us to believe that the respondent would be loosing
her career and that she should 6 not be declined the benefits of her academic
pursuits on any technicality keeping in view the fact that the University
itself had allowed the respondent to appear in the examination and the order
cancelling her result had been passed in violation of principle of natural
justice without giving her any notice or opportunity. The other submissions
that were raised are borrowed from the finding recorded by the National
Commission which had been reiterated before us.
9.
Before we embark upon the assessment of the rival submissions, it
would be appropriate to reproduce Clause 17 of the General Rules of Examination
as well as the Notification dated 16.3.1998 which are directly involved in the
present context.
"17
Unless otherwise provided, a person who :- (a) has already passed an
examination of this or any other university shall not be permitted to re-appear
in that examination for a corresponding examination.
(b) is a
candidate for an examination in full subjects of this University can not
simultaneously read for, or appear at another examination of this University or
of another University/Board. The bar shall not apply to a candidate appearing
in an examination of 7 the University for passing/re-appear papers or for
improvement of division/result or for additional subject."
A perusal
of the General Rules of Examination leave no room for doubt that a candidate
who is pursuing a regular course for an examination in full subjects of the
University cannot be simultaneously permitted to appear in another regular
course of the same University or of another University or Board. This
prohibition, therefore, did not allow the respondent to even apply for
admission in the B.Ed. correspondence course. The appellant was, therefore,
absolutely right in withholding this privilege from the respondent. The
contention of Ld. counsel for the appellant has, therefore, to be accepted that
the Rule being prohibitory in nature, the District Forum or the National
Commission could not have issued a direction which violates the aforesaid
statutory provision. It is settled legal proposition that neither the Court nor
any tribunal has the competence to issue a direction contrary to law and to act
in contravention of a statutory provision.
10.
The Court has no competence to issue a direction contrary to law
nor the Court can direct an authority to act in contravention of statutory
provisions. In State of Punjab &
with a
similar situation, this Court observed as under:- "We fail to appreciate
as to how the High Court or this Court can be generous or liberal in issuing
such directions which in substance amount to directing the authorities
concerned to violate their own statutory rules and regulations......."
11.
Similarly, in Karnataka State Road Transport this Court held as
under:- "The High Court under Article 226 of the Constitution is required
to enforce rule of law and not pass order or direction which is contrary to
what has been injuncted by law."
12.
Similar view has been reiterated by this Court in Manish
13.
It is worth noting that the respondent at the time of filling up
of her form for B.Ed. course at the first instance had 9 not made any
disclosure about her pursuit of post-graduate student in Political Science.
14.
The Notification dated 16.3.1998 read as under:- "It is
notified that the University has granted last mercy chance to the candidates of
Under- graduate (Under Pattern 10+2+3) as well as post-graduate examination (s)
(Annual system after discontinuation of Semester system) except MBBS/BDS/MD/PG
Diplomas Courses, who could not clear their re-appear paper (s) within
stipulated chances and have been declared as fail and those who could not
pass/complete the degree within the stipulated period e.g. within six years of
Under-graduate and four years for post-graduate courses, as per the latest
syllabi.
The
examination fee will be Rs. 1,000/-."
15.
A bare perusal of the same would demonstrably make it clear that
the said provision was not meant for candidates like the respondent. As a
matter of fact, under the garb of the said Notification, the respondent managed
to get her form registered with the appellant and when this discrepancy was
discovered, the appellant chose to set it right which in our opinion was
perfectly justified. The respondent cannot plead any estoppel either by conduct
or against a Statute so as to 10 gain any advantage of the fact that she was
allowed to appear in the examination.
16.
Managing Society, Goswami, GDSDC, (1996) 7 SCC 665, this Court
considered the case under the provisions of the Punjab (Development and
Regulation) Act, 1952, wherein a demand had been challenged on the ground of
equitable estoppel. This Court held that promissory estoppel does not apply
against the Statute. Therefore, the authority had a right to make recovery of
outstanding dues in accordance with law. The Court held as under :- "(The
Administration) only corrected a patent mistake which could not be permitted to
subsist.......A contract in violation of the mandatory provisions of law can
only be read and enforced in terms of the law and in no other way. The question
of equitable estoppel does not arise in this case because there can be no
estoppel against a statute."
17.
There can be no estoppel/promissory estoppel against the
Legislature in the exercise of the legislative function nor can the Government
or public authority be debarred from enforcing a statutory prohibition.
Promissory
estoppel being an equitable doctrine, must 11 yield when the equity so
requires. (vide Dr. H.S. Rikhy Haryana & Ors., (2000) 6 SCC 84; Chandra
Prakash Kakinada & Ors., AIR 2004 SC 1796; State of U.P. & Sangharsh
Samiti & Ors., (2008) 12 SCC 675; and Sneh
18.
On the other hand, the conduct of the respondent was such that
even though she had no statutory right or any vested right to pursue her B.Ed.
course, the mistake on the part of the appellant to allow her to appear in the
examination cannot be by any logic treated to be a conduct of the appellant to
confer any such right on the respondent. The rules and regulations cannot be
allowed to be defeated merely because the appellant erroneously allowed the
respondent to appear in the B.Ed.
12
examination. The records reveal that the respondent did not challenge the
cancellation of her results in respect of 1995 examination. The said order
attained finality.
Respondent
straightaway approached the District Forum in the year 2000 for the conferment
of B.Ed. degree in pursuance of the examinations conducted under the
Notification dated 16.3.1998. This, in the opinion of the court, was a totally
misdirected approach and the District Forum fell into error by granting the
relief.
19.
The third and the most important issue that deserves to be
answered is the competence of the District Forum and the hierarchy of the
Tribunals constituted under the Act 1986 to entertain such a complaint. In our
opinion, this issue is no longer res integra and has been extensively discussed
by a recent judgment of this Court in the case of Bihar School 483, where it
has been held as under :- "11. The Board is a statutory authority
established under the Bihar School Examination Board Act, 1952. The function of
the Board is to conduct school examinations. This statutory 13 function
involves holding periodical examinations, evaluating the answer scripts,
declaring the results and issuing certificates. The process of holding
examinations, evaluating answer scripts, declaring results and issuing
certificates are different stages of a single statutory non- commercial
function. It is not possible to divide this function as partly statutory and
partly administrative.
12.When
the Examination Board conducts an examination in discharge of its statutory
function, it does not offer its services" to any candidate. Nor does a
student who participates in the examination conducted by the Board, hires or
avails of any service from the Board for a consideration. On the other hand, a
candidate who participates in the examination conducted by the Board, is a
person who has undergone a course of study and who requests the Board to test
him as to whether he has imbibed sufficient knowledge to be fit to be declared
as having successfully completed the said course of education; and if so,
determine his position or rank or competence vis-a-vis other examinees. The
process is not therefore availment of a service by a student, but participation
in a general examination conducted by the Board to ascertain whether he is
eligible and fit to be considered as having successfully completed the
secondary education course. The examination fee paid by the student is not the
consideration for availment of any service, but the charge paid for the
privilege of participation in the examination.
13. The
object of the Act is to cover in its net, services offered or rendered for a
consideration. Any service rendered for a consideration is presumed to be a
commercial activity in its broadest sense (including professional activity or
quasi-commercial activity).
14 But
the Act does not intend to cover discharge of a statutory function of examining
whether a candidate is fit to be declared as having successfully completed a
course by passing the examination. The fact that in the course of conduct of
the examination, or evaluation of answer- scripts, or furnishing of mark-sheets
or certificates, there may be some negligence, omission or deficiency, does not
convert the Board into a service-provider for a consideration, nor convert the
examinee into a consumer who can make a complaint under the Act. We are clearly
of the view that the Board is not a `service provider' and a student who takes
an examination is not a `consumer' and consequently, complaint under the Act
will not be maintainable against the Board." (Emphasis added)
20.
The respondent abused the privilege of appearing in the B.Ed.
examination though she was not entitled to avail of the benefit of notification
dated 16.3.1998.
The
National Commission appears to have been swayed by observations made in the
Bangalore Water Supply case (supra). The respondent as a student is neither a
consumer nor is the appellant rendering any service. The claim of the
respondent to award B.Ed. degree was almost in the nature of a relief praying
for a direction to the appellant to act contrary to its own rules. The National
Commission, in our opinion, 15 with the utmost respect to the reasoning given
therein did not take into consideration the aforesaid aspect of the matter and
thus, arrived at a wrong conclusion. The case decided by this Court in Bihar
School Examination Board (supra) clearly lays down the law in this regard with
which we find ourselves in full agreement with. Accordingly, the entire
exercise of entertaining the complaint by the District Forum and the award of
relief which has been approved by the National Commission do not conform to law
and we, therefore, set aside the same. We wish to make it clear that the
National Commission felt that the respondent had been "harassed" and
has also gone to the extent of using the word "torture" against an
officer of the appellant. The appellant is an autonomous body and the decision
of the appellant and the statutory provisions have to be implemented through
its officers. This also includes the implementation of all such measures which
have a statutory backing and if they are implemented honestly through a correct
interpretation, the same, in our opinion, cannot extend to the degree of
torture or harassment. The appellant had to be battle out this litigation upto
this Court to establish the very fundamental of the case that the District 16
Forum had no jurisdiction to entertain any such complaint and, in our opinion,
they have done so successfully.
21.
The appeal is accordingly allowed. The judgment and order of the
District Forum and the National Commission are set aside. No costs.
.......................................J. (Dr. B.S. CHAUHAN)
.......................................J. (SWATANTER KUMAR)
New Delhi,
July 19, 2010.
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