STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

1]      Swami Vivekanand Subharti University, Subharti Puram, Delhi-Haridwar Bypass Road, Meerut 250005 through its Registrar.

2]      Subharti Medical College, Subharti Puram, NH-58, Delhi-Haridwar By-pass Road, Meerut 250005 through its Principal.

….Appellants/Opposite Parties No.2 & 3.

Versus

1]      Dr. Parul Goyal D/o B.B. Goyal R/o G-4, Punjab University, Sector 14, Chandigarh.

….Respondent/Complainant.

2]      Directorate General Medical Education, Jawahar Bhawan, Ashok Marg, Lucknow, Uttar Pradesh – 260001.

...Respondent/Opposite Party No.1.

ARGUED BY :-  

Sh. Vishal Sharma, Advocate for the appellants – on VC.

Sh. Ajay Singh Rawat, Advocate for respondent No.1.

Dr.B.B. Goyal, father/authorized representative of respondent No.1.

Sh. Vikas Sharma, Advocate for respondent No.2.

Directorate General Medical Education and Training (DGMET), 6^th Floor, Jawahar Bhawan, Ashok Marg, Lucknow, Uttar Pradesh.

….Appellant/Opposite Party No.1.

Versus

1]      Dr. Parul Goyal D/o B.B. Goyal R/o G-4, Punjab University, Sector 14, Chandigarh.

….Respondent/Complainant.

2]      The Vice Chancellor, Swami Vivekanand Subharti University, Subharti Puram, Delhi-Haridwar Byepass Road, Meerut 250005.

3]      Swami Vivekanand Subharti University (in fact Subharti Medical College), Subharti Puram, Delhi-Haridwar Bye-pass Road, Meerut 250005 through its Principal.

...Respondents/Opposite Parties No.2 & 3

BEFORE:   JUSICE RAJ SHEKHAR ATTRI, PRESIDENT

                MR. RAJESH K. ARYA, MEMBER

ARGUED BY :-  

Sh. Vikas Sharma, Advocate for the appellants.

Sh. Ajay Singh Rawat, Advocate for respondent No.1.

Dr.B.B. Goyal, father/authorized representative of respondent No.1.

Sh. Vishal Sharma, Advocate for respondents No.2 & 3 – on VC.

PER  RAJESH  K. ARYA,  MEMBER

                    Vide this order, we are deciding above captioned two appeals i.e. appeal bearing No.103 of 2024 filed by opposite parties No.2 & 3, namely, Swami Vivekanand Subharti Universty and Subharti Medical College and appeal bearing No.107 of 2024 filed by Opposite Party No.1 – Director General Medical Education and Training (DGMET)  against order dated 08.01.2024 passed by District Consumer Disputes Redressal Commission-I, U.T., Chandigarh (in short ‘District Commission), vide which, consumer complaint bearing No.871 of 2022 filed by the complainant (respondent No.1 herein) – Dr. Parul Goyal has been partly allowed in the following manner:-

“4.     In the light of the aforesaid discussion, the present consumer complaint succeeds, the same is hereby partly allowed and OPs are directed as under :-

1. OP-1 to refund the amount of ₹9,21,872 – 1,000 = ₹9,20,872/- to the complainant alongwith interest @ 9% per annum w.e.f. the date of institution of the present consumer complaint i.e. 11.10.2022 onwards.
2. OPs 2 & 3 to refund the amount of ₹4,39,200 – 1,000 = ₹4,38,200/- to the complainant alongwith interest @ 9% per annum w.e.f. the date of institution of the present consumer complaint i.e. 11.10.2022 onwards.
3. OPs to pay ₹40,000/- (i.e. ₹20,000/- by OP-1 and ₹20,000/- by OPs 2 & 3) to the complainant as compensation for causing mental agony and harassment;
4. OPs to pay ₹10,000/- (i.e. ₹5,000/- by OP-1 and ₹5,000/- by OPs 2 & 3) to the complainant as costs of litigation.

5.      This order be complied with by the respective OPs within forty five days from the date of receipt of its certified copy, failing which, the payable amounts, mentioned at Sr.No.(i) to (iii) above, shall carry interest @ 12% per annum from the date of this order, till realization, apart from compliance of remaining direction.”

2]                The case of respondent No.1/complainant before the District Commission was that on 14.01.2022, she was offered seat in MS Ophthalmology at Subharti Medical College of Subharti University, Meerut (in short “University”) and was asked to deposit an amount of ₹2.00 lacs with Opposite Party No.1 for admission in UP Medical Colleges (NEET PG 2021) in response to their advertisement in January 2022. Accordingly, she transferred the aforesaid amount with Opposite Party No.1, which was paid as security amount, at the time of applying for admission in UP Medical Colleges. She was asked to appear for counselling cum admission UP NEET PG to be held on 31.1.2022 at Govt. Medical College Meerut to be conducted by Nodal Officer on behalf of Opposite Party No.1.  During counselling held on 31.1.2022, she again deposited another sum of ₹14,43,744/- by way of demand draft favouring Opposite Party No.1 and in this manner, she paid total amount of ₹16,43,744/-, which included security amount of ₹2.00 lacs. Thereafter the complainant contacted Opposite Party No.3 and enquired about the date of start of classes. She was informed that the classes would start after about one week and she would be telephonically informed about the exact date.  The complainant kept waiting and contacting Opposite Party No.3 about class date but was not confirmed.  As per notification of the Medical Council of India, classes were to start w.e.f 1.2.2022 and on 5.3.2022, the complainant went to the College where she was told that the classes would start in a day or two and on the same day, she deposited a sum of ₹8,80,900/- vide three receipts (Ex.C-I to C-III). From 5.3.2022 onwards, the complainant joined there and after a few days classes also started.  However, vide application dated 22.4.2022 (Ex.C-IV), the complainant surrendered her seat with the permission of the Nodal Officer and as per rules within time frame. The complainant submitted the permission letter to Opposite Party No.3 on the same day i.e. 22.4.2022 and requested for return of the documents/certificate and refund of entire admissible amount. At that time, she was asked by Opposite Party No.3 to first get all clearance certificates from the various offices, which was completed by the complainant on 27.4.2022. However, despite that, Opposite Party No.3 asked the complainant to serve in the hospital till 30.4.2022. Since the complainant had withdrawn from Opposite Parties No.2 & 3 with due permission on 22.4.2022, as per rules, the opposite parties were required to refund the amount deposited by her with them but they failed to do so despite various emails/letters (Ex.C-VII to C-X) of the complainant. Thereafter the complainant issued a legal notice dated 30.7.2022 (Ex.C-XI) to Opposite Party No.1 and also applied to opposite parties No.2 & 3 for refund of the amount of ₹8,81,100/- paid to them. She even requested the opposite parties through electronic, telephonic and registered letters for refund of the amount but of no avail.  It was stated that Opposite Party No.1 had to refund total amount of ₹16,43,744/- i.e. full fee paid which was not refunded by it despite requests.  Even opposite parties No.2 & 3 partially refunded an amount of ₹4,39,200/- out of total amount of ₹9,91,723/- and were liable to refund the remaining amount after maximum deduction of ₹1,000/- as per UGC guidelines/ instructions. It was further stated that the aforesaid act of the opposite parties amounted to deficiency in service and unfair trade practice.

3]                On the other hand, Opposite Party No.1 did not turn up before the District Commission, despite proper service and hence, it was proceeded against ex-parte vide order dated 15.2.2023.

4]                Opposite parties No.2 & 3 contested the consumer complaint  by filing their reply, wherein it was admitted that the complainant took admission in Opposite Party No.2 College on 4.3.2022 and deposited total sum of ₹8,78,400/- including security fee, hostel fee, miscellaneous fee, prospectus fee and affidavit fee. It was further stated that the complainant submitted her application for withdrawal on 22.4.2022. However, it was alleged that the amount refundable to the complainant, had already been refunded by them as per UGC instructions and now nothing remained payable.  Moreover, the prospectus fee of ₹1,500/- and affidavit fee of ₹1,000/- was non refundable. It was further stated that opposite parties No.2 & 3 had already refunded a sum of ₹4,39,200/- to the complainant as per notification dated 7.10.2021 of Opposite Party No.1. 

5]                After hearing the parties and going through the material available on record, the District Commission partly allowed the complaint, as stated above.

6]                In its appeal bearing No.103 of 2024, opposite parties No.2 & 3 have sought setting aside of the impugned order on the ground that the District Commission has failed to take into account the regulations of the University Grant Commission (UGC) regarding the admission and withdrawal of admission for various courses. It has further been stated that the admissions in a Medical College are made by the Central Counselling conducted by the State Government as per the directions of Hon’ble Supreme Court, which are to be followed by the appellants. It has further been stated that in the State of Uttar Pradesh, the State Government has notified the Director General Medical Education as the Central Counselling Agency. It has further been stated that as per the directions of Hon’ble National Consumer Disputes Redressal Commission, New Delhi in Principal, L.D.R.C. Institute of Technology and Research vs. Apoorv Bansal, the appellants being an educational institution is not covered under the definition of service provider and the case does not fall within the purview of the provisions of Consumer Protection Act, 2019. It has further been stated that the District Commission has failed to consider the fact that the appellants had already made requisite return of the due payment to respondent No.1/complainant as per the directions of Government of Uttar Pradesh dated 07.10.2021 sent to the Director General Medical Education. It has further been stated that the District Commission solely relied upon the UGC Guidelines dated 02.08.2022, which are not applicable to the case of respondent No.1/complainant. It has further been stated that respondent No.1/complainant’s case being the Post Graduation course in Medical College is governed by the regulations of the National Medical Commission and the judgments of Hon’ble Supreme Court of India. It has further been stated that the direction of State of Uttar Pradesh and D.G.M.E regarding the admissions are bound to be followed by the Medical Colleges.

7]                In appeal bearing No.107 of 2024, opposite party No.1, namely, Director General Medical Education and Training (DGMET) has also sought setting aside of the order impugned on the grounds that the District Commission has failed to observe that education is not a commodity and thus, cannot be defined as service and therefore, respondent No.1/complainant is not a consumer; that as per judgment of the Hon'ble Apex court in the case of Jagdish Prasad Sharma v. State of Bihar reported in (2013) 8 SCC 633, Education being a list III subject, the State government is at a liberty to frame its own laws relating to education in the State and is not, therefore, bound to accept or follow the Regulations framed by UGC. It has further been stated that  since the regulations/directions of the UGC dated 02.08.2022 have not been adopted by the State of U.P., the same would not be binding on the case of respondent No.1/complainant. It has further been stated that the District Commission has erroneously applied the directions/instructions in circular dated 02.08.2022 issued by the UGC in as much as the said circular is only applicable to the Academic Session 2022-2023 whereas the instant case pertains to admission for the session 2021-2022 and the said circular is only applicable to cases of cancellation of admission by the college or migration of students as a special case and not in a routine manner whereas, the instant case pertains to resignation/surrender of seat by a student. It has further been stated that the District Commission did not consider Condition 8 of the government order dated 07.10.2021, which categorically provides that a candidate is allowed to resign from their allotted seat only until two days prior to mop up round of counselling and in such a scenario, 50% of tuition fee and whole security deposit is liable to be forfeited. It has further been stated that as per the terms and conditions of the government order dated 07.10.2021 and NEET Brochure 2021, Respondent No.1/Complainant deposited security deposit of ₹2,00,000/- which was to be returned after she takes admission in the concerned college. However, as per the terms and condition of the government order as well as the brochure, the security amount and 50% of tuition fee was liable to be forfeited if Respondent No.1/Complainant withdraws/resigns from her candidature after the second round of counselling. It has further been stated that therefore, the forfeiture of fee was in consonance with the provisions of Government Order and Brochure and therefore, strictly in terms of law.

8]                It has further been stated that the provision for forfeiture is not only in consonance to Regulation 9A(4) of Post Graduate Medical Education Regulations, 2000, which have been framed by a Statutory Authority i.e., erstwhile Medical Council of India in exercise of powers conferred by Section 33 read with Section 20 of Indian Medical Council Act, 1956 but also in compliance of direction of the Hon'ble High Court as contained in judgment dated 19.01.2018 in the case of Vaibhav Kumar Singh Vs. Union of India and others. It has further been stated that as per the judgment of the Hon'ble Punjab and Haryana High Court in the case of Ankit Sharma v. Punjab Technical University reported in 2016 SCC OnLine P&H 6474, the brochure/prospectus has force of law which is to be strictly followed. It has further been stated that the District Commission failed to appreciate that the conditions in the Government Order, which are mandatorily to be followed in conducting the counselling process for UP NEET, were introduced in compliance of judgment of the Hon'ble Apex Court in the case of Dar-Us-Slam Educational Trust & Ors. Vs. Medical Council of India & Ors., however, this direction was also ignored by the District Commission.

9]                It has further been stated that Respondent No.1/complainant has not challenged the provisions of the Regulations 2000, the provisions of brochure and the government order dated 07.10.2021 and thus, any order passed in contravention of the same shall be per incuriam and bad in law and the provisions of Regulations 2000, Brochure 2021 and Government Order dated 07.10.20212 still continue to operate. It has further been stated that power of forfeiture of fee after blocking the seat in common counselling vests with the appellants under Clause 9-A (4) of the Regulation 2000 issued by Medical Council of India which were implemented under the government order dated 07.10.2021 as well as in the Brochure of 2021. It has further been stated that the Regulation 2000 is a central government promulgated legislation and is being strictly implemented by the State Government in its true spirit with concurrence of the Hon'ble Governor of UP by issuing government order dated 07.10.2021. It has further been stated that the District Commission ignored the fact that NEET is conducted by the National Medical Commission in discharge of its statutory duties/functions and as such it does not offer any service to any candidate, nor does a student who participates in the examination hire or avail any service from the Commission for consideration. It has further been stated that this entire process is not availment of service by a student but just a participation in a general examination and counselling. It has further been stated that this very aspect is also ignored by the District Commission while passing the impugned order dated 08.01.2024 and thus the same is liable to be set aside.

10]            After hearing the rival contentions of the parties and going through the impugned order, material available on record and the written arguments, we are of the considered view that both the appeals are liable to be dismissed for the reasons to be recorded hereinafter. Counsel for the appellants raised two fold submissions, firstly that the education is not a commodity and thus, cannot be defined as service and therefore, respondent No.1/complainant is not a consumer in view of judgment of the Hon'ble Apex court in the case of Jagdish Prasad Sharma v. State of Bihar reported in (2013) 8 SCC 633 and secondly, the District Commission incorrectly applied the UGC circular dated 02.08.2022, which is relevant only for the 2022-2023 academic session and pertains to cases of admission cancellation or student migration as special cases whereas the current matter involves admission for the 2021-2022 session and concerns a student's resignation or seat surrender, not covered by the circular and the District Commission overlooked Condition 8 of the government order dated 07.10.2021, which stipulates that a candidate can resign from their seat only up to two days before the mop-up counselling round, resulting in the forfeiture of 50% of the tuition fee and the entire security deposit.

11]              As regards the contention raised that education is not a commodity and thus, cannot be defined as service and therefore, respondent No.1/complainant is not a consumer in view of judgment of the Hon'ble Apex court in the case of Jagdish Prasad Sharma v. State of Bihar reported in (2013) 8 SCC 633, it may be stated here that in the landmark case of Buddhist Mission Dental College & Hospital vs. Bhupesh Khurana & Others, reported in (2009) 4 SCC 473, the Hon’ble Supreme Court of India held that the provision of education by an educational institution for a fee, falls within the definition of "service" under the Consumer Protection Act. This implies that when fees are paid for educational services, the transaction is deemed to involve service provision. Therefore, if no educational service is rendered, the obligation to pay fees does not arise. The court observed that the complainants, who had paid for educational services, fall within the definition of "consumer" as per the Consumer Protection Act, highlighting their right to seek redressal. Further support for this position can be drawn from the order dated 04.04.2019 of Hon’ble National Commission passed in in Revision Petition No.3052 of 2018 – Frankfinn Institute of Air Hostess Training & Anr. Vs. Aashima Jarial, wherein, it has been held by Hon’ble National Commission that the complainant is a consumer and the opposite parties are the service provider. Relevant Paras 14 to 16 of the said judgment read thus:-

“14.   From the above, it can be concluded that the educational institutions, which are imparting education of any kind within the admissible legal frame work of the country can be covered under the judgment of the Hon'ble Supreme Court in Maharshi Dayanand University Vs. Surjeet Kaur (supra).  In other words, educational institutions covered under UGC, AICTE, State Universities, Central Boards and State Boards etc. can claim immunity from the provisions of Consumer Protection Act, 1986 for educational services.  Moreover, the State Commission has relied upon the decision of the Hon'ble Supreme Court in Budhist Mission Dental College & Hospital Vs. Bhupes Khurana & Others, wherein the following has been observed:-

"32. The Commission also held that this Court in Bangalore Water Supply and Sewerage Board (supra) held as under: [para 118 at page 583]:-

"...In the case of the University or an educational institution, the nature of the activity is, ex hypothesi, education which is a service to the community. Ergo, the University is an industry..."

The Commission further held as under:

    "Imparting of education by an educational institution for consideration falls within the ambit of ‘service’ as defined in the Consumer Protection Act. Fees are paid for services to be rendered by way of imparting education by the educational institutions. If there is no rendering of service, question of payment of fee would not arise. The complainants had hired the services of the respondent for consideration so they are consumers as defined in the Consumer Protection Act."

15.    From the above discussion, it is clear that the petitioner institution cannot be given advantage of the judgment of the Hon'ble Supreme Court in Maharshi Dayanand University Vs. Surjeet Kaur (supra).

16.    Based on the forgoing discussions, it is concluded that the complainant is a consumer and the petitioner institution is a service provider in the present case.”   

In this view of the matter, we are of the concerted view that the contention raised by the appellants in this regard is not tenable in the eyes of law and thus, stands rejected.

12]              The moot question which falls for consideration is as to whether the Educational Institutions can usurp the fees paid by a student or forfeit part thereof or say 50% under the garb of alleged rules/regulations, specifically when the seat vacated has been filled up?           

                   Our answer to above question is in the negative. It is the contention of appellant/opposite party No.1 that since respondent No.1/complainant resigned from the allotted seat in a Private Medical College on 22.04.2022 i.e. after the conclusion of 2^nd Round of Counselling but two days before the start of Mop-up round (i.e. by 27.04.2022), therefore, in terms of Condition 8 of the Government Order dated 07.10.2021 and in consonance to Regulation 9A(4) of Post Graduate Medical Education Regulations, 2000, 50% of the tuition fee was forfeited. This forfeiture, in our considered view, is not right keeping in view the overarching guidelines of University Grant Commission (UGC), which is responsible for the regulation of universities in India, bind all recognized institutions, including those offering medical education. Specific guidelines related to medical education are set by bodies such as the Medical Council of India (MCI) or the National Medical Commission (NMC). These regulations ensure the maintenance of quality standards in curriculum, faculty qualifications, infrastructure, and student admissions across universities and colleges. The binding nature of UGC guidelines on institutions is affirmed in the case of University Grants Commission vs. Annamalai University, reported in (2023) 1 L.W. 410. A notable aspect of student admissions and fee refunds was addressed in the decision Dr. R. Hemamalini vs. The Registrar, Annamalai University, Writ Petition (MD) No. 20795 of 2016, decided on 25.01.2023 by the Madurai Bench of the Madras High Court. The court ruled that if a student withdraws after joining a course and the vacant seat is subsequently filled by another candidate before the final admission date, the institution is required to refund the fees collected, minus a proportionate deduction for monthly fees and any applicable hostel rent. Institutions cannot withhold the entire tuition fee in such cases. Furthermore, the UGC issued guidelines on 02.08.2022, which are explicit in stating that if an admission is canceled or withdrawn up to 31.12.2022, the entire fee collected from the student must be refunded, after deducting a maximum of ₹1,000/- as a processing fee. These guidelines reinforce the obligation of educational institutions to refund fees in full under specified conditions. The case of Andhra University vs. Janjanam Jagdeesh, reported in (2010) III CPJ 310 (NC), also supports the position that educational institutions are liable to refund fees to students in accordance with established guidelines and regulations, further emphasizing the consumer rights of students in the educational context. These legal precedents and regulatory guidelines collectively establish that educational institutions must adhere to fair practices concerning fee refunds and the treatment of students as consumers under the Consumer Protection Act, ensuring that students are entitled to refunds when appropriate. In this case, it is undisputedly, respondent No.1/complainant’s admission to the higher educational institution, specifically opposite parties No.2 & 3, was for the academic session of 2022-2023. The complainant's situation clearly falls under the directives issued by the University Grants Commission (UGC). It has been established on record that respondent No.1/complainant submitted an application on April 22, 2022 (Exhibit C-IV), requesting the cancellation and surrender of her admission with these opposite parties. According to UGC guidelines, upon receiving such a request, appellants/opposite parties No.2 & 3 were left with no choice but to refund the entire fee paid by the complainant, less a deduction of ₹1,000 as a processing fee. The hostel charges had already been appropriately deducted by them for the period during which respondent No.1/complainant had utilized hostel facilities. Respondent No.1/complainant solely sought return of the security deposit held by the appellants/opposite parties No.2 & 3 and the remaining tuition fee that was currently with appellant/opposite party No.1. The important aspect of the matter is that that the seat already vacated by respondent No.1/complainant was filled up by the appellants subsequently, which led to doubly the benefit to the appellants. They cannot be permitted to usurp the hard earned money of the students or their parents like this, when they have already been benefited twice by re-allotting the seat vacated by respondent No.1/complainant to subsequent incumbent in the merit. The educational institutions are neither business enterprises nor profit making agencies and rather they are imparting education to every student to build a better nation in future. The appellants were supposed to think and act for the betterment of students and encourage them to build a strong nation by their knowledge and contribution in every aspect of life and public welfare. If the educational institutions act as profit making agencies by usurping their fees, which their parents/family have deposited from their hard earned monies or by taking financial assistants from friends/relations or from financial institutions, where a student will go.

13]              Thus, upon reviewing the circumstances, it has been substantiated that the appellants/opposite parties have not refunded the outstanding amount despite the UGC’s explicit directions. This failure to comply with UGC instructions constituted a deficiency in service and an unfair trade practice on the part of their part. This demonstrated a clear case of non-compliance and unfair treatment by the educational institution. In our view, the District Commission rightly ordered refund of the fee vide the impugned order after deduction of ₹1,000/- besides awarding compensation and litigation cost. 

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]                  For the reasons recorded above, both the appeals bearing No.103 of 2024 and 107 of 2024 stand dismissed being devoid of any merit with no orders as to costs.

15]              Pending application(s), if any, in both these appeals also stand dismissed having rendered infructous.

16]              Copy of this order be placed in the file of appeal No.107 of 2024.

17]            Certified copy of this order be sent to the parties free of charge.

18]              Files be consigned to the Record Room after completion.

Pronounced.

14.06.2024.

(RAJ SHEKHAR ATTRI)

PRESIDENT

(RAJESH  K. ARYA)

MEMBER

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