Writ Petition No. 2389 of 2013

19th July, 2013

Petitioner Counsel: Shri Abhijit L. Deshpande
Respondent Counsel: Mrs. M.P. Munshi,Shri J.Y. Ghurde,Mrs. B.P. Maldhure

Cases Cited:
Asha Vs. Pt.B.D. Sharma University of Health Sciences & Ors., 2012 ALL SCR 2001 : 2012 (6) SCALE 287 [Para 9]
Secretary, U.P.S.C & Anr. Vs. S. Krishna Chaitanya, 2011(7) ALL MR 768 (S.C.) =AIR 2011 SC 3101 [Para 9,10]
Om Prakash Saini Vs. DCM Limited & Ors., 2010 ALL SCR 2387 : (2010) 11 SCC 622 [Para 11]
Bihar School Examination Board Vs. Suresh Prasad Sinha, 2009 ALL SCR 1864 : (2009) 8 SCC 483 [Para 12]

JUDGMENT

ANOOP V. MOHTA, J. :- Rule, returnable forthwith. Heard finally by consent of the learned Counsel for the parties as the applications are moved for final and early hearing of the matter pertaining to the students.

2. The petitioner is a statutory University, established under the Maharashtra University of Health Sciences Act, 1998 (For short hereinafter referred to as "the University Act") has invoked Articles 226 and 227 of the Constitution of India and prayed as under :

"(A) this Hon'ble Court be pleased to issue a Writ of Prohibition and or any other Writ, Order or Direction in the similar nature thereby prohibiting Respondent No.11 from trying, entertaining and deciding Consumer Complaint No.88 of 2013 filed by present Respondent Nos.1 to 8 before Respondent No.11, under Section 12 of the Consumer Protection Act, 1986 as Respondent No.11 has absolutely no jurisdiction, competence, authority and power to try, entertain and decide the same;

(B) this Hon'ble Court be pleased to issue a Writ of Certiorari and or any other Writ, Order and Direction in the similar nature and quash the proceedings initiated by present Respondent Nos.1 to 8 before Respondent No.11 Under Section 12 of the Consumer Protection Act, 1986 being Consumer Complaint No.88 of 2013 as Respondent No.11 has absolutely no jurisdiction, competence, authority, and power to try, entertain and decide the same.

(C) this Hon'ble Court be pleased to initiate action of Contempt of Court under Article 215 of the Constitution of India against the Respondent Nos.1 to 8.

(D) this Hon'ble Court be pleased to issue a Writ of Certiorari and or any other Writ, Order and Direction in the similar nature and quash and set aside the order dated 04/04/2013 passed by Respondent No.11 in Consumer Complaint No.88 of 2013."

3. The petitioner has also prayed for stay of the order and other reliefs. This Court has already granted reliefs that "no coercive steps be taken".

4. Admittedly, by order dated 25.3.2013, this Court dismissed the writ petitions including the writ petition of respondent nos.1 to 8 (Writ Petition No.4234/2012) by observing as under :

"Perusal of para-10 of impugned order dated 22.8.2012 in Writ Petition No.5391 of 2012, reveals the following shortcomings :-

"Further, it is informed that, the college is being provided a period up to 30.11.2012 to fulfill the shortcomings observed during this year as mentioned at para 9 above alongwith following requirements, so that the CCIM may carry out inspection of the college for consideration of matter for granting permission for undertaking admissions during academic year 2013-14;

(i) Full complement of teachers including required number of higher faculty in various teaching departments as per norms of the CCIM shall be available.

(ii) Other staff, infrastructure, equipment, instruments, furniture and essential facilities for various components of an Ayurveda college like hospital, hostel, laboratories, library, herbal garden, teaching pharmacy & quality testing laboratory and other relevant component of the college shall be available as per norms of CCIM."

In this situation, we find the issue covered by the above impugned judgment.

In-so-far as other two petitions are concerned, the students of colleges who were petitioners before the Honourable Apex Court, have approached this Court. It is apparent that the judgment of the Honourable Apex Court, therefore, squarely covers their grievance.

Hence, we reject writ petitions."

5. The result of the dismissal of the writ petition is that this Court refused to direct the Management and the petitioner - University to treat admissions of these students to the first year BAMS course as regular in the academic session 2011-12 and not permitted them to appear for the examination in November, 2012.

6. Normally, we would not have interfered in the matter as the statutory appeals against the order passed by the Consumer Court is available under the Consumer Protection Act, 1986 (the Consumer Act). The learned Counsel appearing for the petitioner pointed out that the Consumer Court/Forum, Yavatmal (respondent no.11) has exceeded the jurisdiction and at the ad interim stage itself, without giving any hearing and/or issuing notice to the petitioner and respondent nos.9 and 10 and at the instance of respondent nos.1 to 8, the students, allowed Consumer Complaint No.88/2013, by way this ex parte interim order, as filed under Section 12 of the Consumer Act, 1986 and directed the petitioner and respondent no.9 and 10 to hold May - 2013 examination of all the students on priority basis.

7. Admittedly, the respondents/students have not placed anything on record before the Consumer Forum nor averments are made about their own petitions and the various orders/judgments passed by the Supreme Court, as well as, the High Court therein. We have also gone through the copy of complaint placed on record. The learned Counsel appearing for respondent nos.1 to 8 conceded to the position that though there are no specific averments, but the oral submissions were made about these proceedings. We have also gone through the impugned order passed by respondent no.11, which also nowhere referred these earlier orders passed by the Courts.

8. Admittedly, therefore, they could not appear in the earlier examination. By the impugned order as recorded, the direction/permission is given for May - 2013 examination, merely because the students have paid the fees and the question of their career is involved, is impermissible.

9. The ex parte order is also again contrary to the declarations given by the Supreme Court in the case of Asha...Versus...Pt. B.D. Sharma University of Health Sciences & Ors., 2012 (6) SCALE 287 : [2012 ALL SCR 2001] (para 37), particularly paragraph no.37, which reads as under :

"37. With all humility, we reiterate the request that we have made to all the High Courts in Priya Gupta's case (supra) that the Courts should avoid giving interim orders where admissions are the matter of dispute before the Court. Even in case where the candidates are permitted to continue with the courses, they should normally be not permitted to take further examinations of the professional courses. The students who pursue the courses under the orders of the Court would not be entitled to claim any equity at the final decision of the case nor should it weigh with the courts of competent jurisdiction."

The Hon'ble Supreme Court, in paragraph no.27, in the case of Secretary, U.P.S.C & Anr.....Versus... S. Krishna Chaitanya, AIR 2011 SC 3101 : [2011(7) ALL MR 768 (S.C.)] (para 27) held as under :

"27. We may add here that this Court has observed time and again that an interim order should not be of such a nature that by virtue of which a petition or an application, as the case may be, is finally allowed or granted even at an interim stage. We re-iterate that normally at an interlocutory stage no such relief should be granted that by virtue of which the final relief, which is asked for and is available at the disposal of the matter is granted. We, however, find that very often courts are becoming more sympathetic to the students and by interim orders authorities are directed to permit the students to take an examination without ascertaining whether the concerned candidate had a right to take the examination. For any special reason in an exceptional case, if such a direction is given, the court must dispose of the case finally on merits before declaration of the result. In the instant case, we have found that the respondent not only took the preliminary examination but also took the main examination and also appeared for the interview by virtue of interim orders though he had no right to take any of the examinations. In our opinion, grant of such interim orders should be avoided as they not only increase work of the institution which conducts examination but also give false hope to the candidates approaching the court."

10. The sympathetic consideration, thus, cannot be the reason, in this background, to pass such interim order, the effect of which, is to grant final ex parte relief itself, which is also deprecated by the Supreme Court in the case of Secretary, U.P.S.C. & Anr....Versus...S. Krishna Chaitanya, [2011(7) ALL MR 768 (S.C.)] (Supra). It is made clear that we are not concerned, at this stage, with the grievances, if any, of the students against the Management and for their action and inaction to file or initiate appropriate proceedings for damages and/or other reliefs. We are not deciding those issues in the present petition. They are, therefore, to take appropriate steps in accordance with law. But once there is a clear decision/declaration given by the High Court and the Supreme Court that the admission of such students including the petitioner for the academic year 2011-12 became illegal and no legal right can flow from such admission, which includes appearance in any examination, in our view, also clinches the issue against the students, as well as, the Management. The direction/interim order so passed is apparently impossible to execute and contrary to the orders passed by the Court and therefore, is without jurisdiction and authority.

11. The learned Counsel appearing for the respondents/students submitted that there is alternative remedy available under the Act and therefore, there is no reason to entertain the present petition. The reliance is made on the decision of the Supreme Court in the case of Om Prakash Saini...Versus...DCM Limited and others, (2010) 11 Supreme Court Cases 622 : [2010 ALL SCR 2387], where the scheme and purpose of the Consumer Act has been elaborated. There is no dispute with regard to the scheme, purpose and object of the Act. We are concerned with the impugned final like orders passed by the Consumer Forum under the Act. This judgment is even otherwise nowhere created permanent embargo to entertain the petition under Article 226 or 227 of the Constitution of India. The requirement is only that reason should be provided, which compels the High Court to entertain the petition by making a departure from the general view of not entertaining the writ petition, when alternative efficacious remedy is available. We have already noted the conduct of the students, the averments by suppressing noted facts in the complaint and the order so passed by the Consumer Court/Forum. We are inclined to observe that this is a perfect case to entertain the writ petition and to pass appropriate relief in the interest of justice. The students can not be kept in dark by such impermissible order.

12. The learned Counsel appearing for the petitioner also submitted by referring the judgment in the case of Bihar School Examination Board...Suresh Prasad Sinha, (2009) 8 SCC 483 : [2009 ALL SCR 1864] that the main complaint so filed be dismissed against them. Reliance is placed on the basis of paragraph nos.11, 12 and 13, which read as under :

"11. The Board is a statutory authority established under the Bihar School Examinations Board Act, 1952. The function of the Board is to conduct school examinations. This statutory 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, hire or avail 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). 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 marksheets 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."

13. The University is not the "service provider" and the students are not the "consumers" is the submission. The petitioner has not even appeared before the Consumer Forum. Let it be decided by the competent forum.

14. The above paragraphs and the contentions so raised by the petitioner are also additional factors to show that the ex parte order passed by the Consumer Forum is apparently without jurisdiction and authority. But to dismiss the main complaint, at this stage, against the petitioner considering the scheme, object and provisions of the Consumer Protection Act will not be proper course of action. The filing can not be prohibited. To entertain or not to take cognizance is Court's or Forum's prerogative. Pending the jurisdictional issue, the Court or the forum, if case is made out, may pass ad interim order. But the issue of jurisdiction needs to be decided at earliest. The students' claims/grievances, even if, or other reliefs, including damages are against the Management and/or others and may not be against the petitioner - University, in view of above judgment, but still at this stage, it is difficult to dismiss the complaint against the petitioner - University also for the reason that they may be at least proper party for the other reliefs so claimed by the students before the Court. It is made clear that we are not even deciding the complaint so filed by the students. We are concerned with the impugned order and directions so issued. We are entertaining only because to avoid any kind of false hopes, that the students may be permitted to appear in the examinations, as expressed in the ex parte order, which is against the orders by the higher Courts.

15. Resultantly, therefore, impugned order dated 4.4.2013 passed in Consumer Complaint No.88/2013 is quashed and set aside. The parties are at liberty to raise appropriate plea or defence including of jurisdiction before the Consumer Forum in the main complaint. The writ petition is accordingly allowed.

16. Rule is made absolute in the above terms. There shall be no order as to costs.

Petition allowed.