ADV. RAVI SUSHA, MEMBER.
The complainants case is that, the 2nd complainant has applied for admission in the course of VHSE, MOBE in Government Model Higher Secondary School, Thevally, Kollam. In which the 2nd opp.party is the principal. The 1st opp.party is the Director of Department of VHSE. The 1stcomplainant is the father of 2nd complainant. The 2nd opp.party has applied to some other schools also for VHSE course. The complainant has got admission memo from TKDM Government vocational Higher Secondary School, Kadappakkada Kollam, 2nd complainant attended the interview on 29..6..2007. He has got admission for M.S. Course there and remitted Rs.950/- as admission fee. The original certificates were submitted there, that the 2nd complainant has got admission memo from the 2nd opp.parties school to attend the interview for MLT and MOBE courses. Complainants attended the interview with photocopies of certificates on 10.7.2007. As per the Rank list of the school 2nd complainant is the 5th Rank holder, Complainants submitted to the 2nd opp.party, that the original certificates were under the custody of TKDM , GVHSS and if it is necessary it can be submitted after conceding the admission there Then the 2nd opp.party directed them to wait out side. At about 1’O clock 1st complainant again appro9ached the 2nd opp.party, but the 2nd opp.party harassed him and quit them from her office by shouting “ \n§tfm-S-Jà ]d-ªXv t]cv hnfn-¡p-t¼mÄ h¶m aXn F¶v “ and directed to the peon “Chsc H¶p ]pd-¯m-¡p.“ At about 4.30 p.m. complainants were called to the 2nd opp.parties office room. As the original certificates were under the custody of TKDM GVHSS authorities he has submitted that the original certificates can be submitted tomorrow itself and they are ready to pay the fees Rs.750/- and photocopies of certificates were submitted. But the 2nd opp.party said that it is not possible to get admission without originals and directed them to come with originals tomorrow. The next day complainants went to TKDM GVHSS and cancelled admission, and brought back all original certificates. The complainants approached the 2nd opp.party with all original certificates, but the 2nd opp.party denied admission and informed that admission was closed. Such an act of the 2nd opp.party is deficiency in service. Hence the complaint
The 1st opp.party filed version denying all allegations as the incident was not known to him and the complainant has not prayed for any claim against him, 1st opp.party prayed to exonerate him from the complaint
The 2nd opp.party submitted that prima facie the complaint is not maintainable as there is no consumer ship relation existing between the parties. The complainants have neither received any service from the opp.parties nor that they have paid or remitted any amount as valuable consideration to avail service and as such no privity of contract existed between the complainant and opp.parties The principal of Government Model Boy’s High Secondary School during 2007-08 she was to act implement and comply with the order of her superior officer, the 1st opp.party and the Government. Government Model Boy’s H.S.S. offered two courses based on vocational subject like MLT and MOBE as recognized by the Government and there were 25 and 50 seats each, respectively to be filled up in the above vocational subjects. There is stipulation that Rank List are first prepared in accordance with rules and admissions wee to be completed within a time frame and on a fixed date so much so the principal has no discretionary power to decide upon anything related to admission of the above mentioned courses. Accordingly during the academic year 2007-08 there was strict order from the VHSS Director of finish the entire admission on 10..7..07 itself. During the admission day on 10;7.07 no personal interview with any parent or student were allowed or held except at the time when the students were called for interview based on Rank List already prepared based on rules as well as that based on reservation quotas. First admission to MLT Courses were to be completed followed by admission to MOBE Course thereafter. The 2nd complainant was a candidate for MOBE and his rank was 5th in the rank list of OBH reservation category. It was strictly mentioned in the prospectus as well as Memo Card tht all the original certificates must be kept ready and available immediately before admission when name is called for interview as the admissions arte to be completed on the stipulated date ie. 10.7.2007. Subsequently the admission continues on the basis of the rank list. The rank position of the 2nd complainant falls 5th in the rank list of OBH category which is having only 5% quota reserved during admission. In the circumstances it is a mandatory condition that candidates shall be ready and make available all the original certificates as stipulated in the prospectus and memo card. Moreover the admission are tom be completed on the stipulated date itself to 10..7..2007. Candidates will be called for interview on the basis of priority in the Rank List. Once the admission procedure is complete all the original records/certificates will be collected and kept in the safe custody of the school authority and would be returned to the candidates only after completion of the course When names are called for interview as mentioned above it is a mandatory condition that candidates shall be equipped and ready with the original certificates as strictly mentioned both therein the prospectus as well as in the memo card. The candidate who is 2nd complainant in this case belong to the OBH category and stood 5th in the rank list of the particular category. As names were called serially for interview all the top rank holders above the rank of the complainant were absent. Hence the candidate who is the second complainant in this case appeared along with his father who is the first complainant. When the original certificate of SSLC , Transfer Certificate, Conduct Certificate etc. including were asked for verification they could not produce the same telling that only photo copies can be produced then. When told that admission are given strictly after collecting all the aforesaid original certificates the complainant left the interview Hall quietly without telling anything. The complainant was not able to know who are all the candidates came to attend interview that day. When the names are called on the basis of priority or rank list, the 2nd opp.party as per rules, is unable to exercise any discretion of her own in the interview. In that situation even if a candidate tries to meet the principal earlier, before name is called in the interview, the principal cannot given permission to meet her, and as such she cannot give any hope or assurance to any candidate regarding admission. On 10..7..2007 itself there was no power vested with the 2nd opp.party to postpone or keep it for the next day. When the complainants were told that admission can be allotted only if the original certificates were produced then and there at the interview they quietly left the place without telling anything. It was the strict order of the 1st opp.party. There was never a direction either in the prospectus or in the memo for interview that original certificates needed to be produced later or on any subsequent day. The complainants cancelled the admission taken in TKMD School and received back the original certificates from there voluntarily and was never at the instance or advice of the 2nd opp.party or staff members who are only entrusted to verify the original certificates initially. There was absolutely no service provide by the opp.party or there existed any relationship of consumer ship between the 2nd opp.party and the complainants. In the above said circumstances there is absolutely no deficiency in service or unfair trade practice on the part of the 2nd opp.party. Hence the 2nd opp.party prays to dismiss the complaint.
The points that would arise for consideration are:
1. Whether the complaint is maintainable under the Consumer Protection Act?
2.Whether there is deficiency in service on the part of the opp.parties
1. Reliefs and costs.
For the complainant PW.1 examined and marked Exts. P1 to P10 are marked
For the opp.parties DW.1 to 3 were examined and Exts, D1 to D3 are marked.
Point 1:
The first point to be decided is whether the complaint is maintainable under the Consumer Protection Act?
The contention of the 2nd opp.party in this case is that there is no consumer relationship between the complainant and the opp.parties as the opp.party did not receive any amount as consideration. There is no privity of contract between the parties. The reason for failure in giving admission is solely due to the negligence and irresponsibility of the complainant alone. The 2nd opp.party pointed out that in the decision CPJ 2005 IV page 240 it is clearly stressed that the terms and contentions contained in the prospectus is binding on all parties. In the complaint also there is no mention about any valuable consideration as being received by the opp.parties.
According to the complainant the complaint is maintainable. According to the complainant as per the memo, the complainant had attended the interview. Both the complainants were present at the second opp.parties office at 10 a.m. itself and informed that the original certificates were under the custody of TKDM Govt. V.H.S.S. authorities where candidates was admitted previously. The complainants further informed that they were ready to release the documents cancelling admission there. But instead of replying, the second opp.party driven out the complainants from her office. The 2nd opp.party was not ready to hear their complaints till 4.30 p.m. They were not allowed to say anything. The complainants were called for interview only after 4.30 p.m. . As the complainants were unable to produce the original certificates at that time, the 2nd opp.party said them to come back next day with original certificates. The very next day morning itself the complainants released all the original certificates from the office of TKDM Govt. VHSS cancelling the admission there. The complainants approached the 2nd opp.party and presented original certificates. But the 2nd opp.party denied admission saying that the “admission was closed”.
The complainants alleging in the complaint that there is deficiency in service from the part of 2nd opp.party. The 2nd opp.party alone is responsible for the denial of admission to the 2nd complainant for which he was eligible. As a result of the act of 2nd opp.parties, 2nd complainant had lost his admission. TKDM Govt. VHSS also and was forced to study in a private institution incurring heavy expenses. Aggrieved by the negligent act of the 2nd opp.party the complainants filed complaint seeking relief.
The present complaint is regarding to the negligent and willful act of 2nd opp.party and it amounts to Arbitrary and capricious exercise of power with malafide intention
It has been held lby Apex Court is Lucknow Development Authority V/s M/s Gupta AIR 1994 SC 787 that the Consumer For a have jurisdiction even in cases of service rendered by a Government or Semi Government body or Local Authorities statutory or public authorities. It was held in Ghazia Bad Development Authority V/s Balbir Singh 2004 [2] KLT 1999 that no authority can arrogate to itself the power to act in a manner which is arbitrary. Matters which require immediate attention showed not to be allowed to Linger on. . It has been further held in the above decision that the Consumer For a can grant compensation for mental agony and harassment when it finds misfeasance in public.
In this case, the complainants alleging Arbitrary and capricious exercise of power by the 2nd opp.parties who were Government employees willful and with malafide intention.
Taking into the consideration of all these circumstances we are of the view that this Forum had ample Jurisdiction to entertain the case and hence the case is maintainable in the Forum. This point found accordingly.
POINT: 2
1st opp.party filed version but no oral evidence has been adduced. The complainant has not prayed any relief from the 1st opp.party. 2nd opp.party adduced evidence. DW.1 to 3 were examined and Ext. D1 to D3 were marked. Here the complainants are aggrieved by the conduct and negligence on the side of 2nd opp.party. Nothing has been brought out from the evidence of PW.1 to PW.3 to contradict the case of the complainant. All of them deposed the case of the 2nd opp.party. The 2nd opp.party in our view has acted with malafide intention in the matter of the admission of 2nd complainant. On perusal of Ext.P1 to P10 we find that the 2nd complainant is eligible to get admission on merit in Govt. Boys Higher Secondary School, Kollam. The evidence adduced by the complainant shows that the conduct of 2nd opp.party is willful malicious and negligent. The complainant were unnecessarily asked to wait till 4.30 p.m. and only after that the original certificates were demanded fully knowing that the second complainant will not be able to produce the same before the close of that day. If the 2nd opp.party did not act so, the 2nd complainant could have at least continue his studies in the school where he secured admission earlier. Such conduct of 2nd opp.party amounts to arbitrary and capricious exercise of power with malafide intention. If the 2nd opp.party directed the complainant to produce the originals in the morning itself he could have produced the same after getting them returned from TKDM Govt. HHSS and an unfortunate incident could have been avoided. Only because of the negligent act of second opp.party the 2nd complainant lost his opportunity to study in Model Boys High School in vocation Higher Secondary and lost his admission on TKDM GVHSS where he was admitted first . It is assumed from the evidence of this case that the complainant took back the T.C from TKDM GVHSS because of the assurance rendered by the 2nd opp.party to give admission to the 2nd complainant on Boy’s High School. In our view it is because of the gross negligence of 2nd opp.party that the 2nd complainant lost his opportunity and was forced to study on a private Institution and the 1st complainant was forced to incur heavy expenses which is nothing but deficiency in service on he part of 2nd opp.party. Point found accordingly.
In the result the complaint is Allowed in part. The 2nd opp.party is directed to pay Rs.950/- which the complainant lost as admission fee. The 2nd opp.party is also directed to pay Rs.15000/-[Rupees Fifteen thousand only] as compensation for mental agony and harassment and Rs.1000/- as cost to the proceedings. The order is to be complied with within one month from the date of receipt of the order.
Dated this the 31st day of July, 2012.
List of witnesses for the complainant
PW.1. – Nagarajan
List of documents for the complainant
P1. – True copy of SSLC Book
P2. – TC from St. Mary’s High Secondary School
P3. – Conduct Certificate
P4. – Fee receipt
P5. – PTA fund receipt dated 29..6..2007
P6. - Fee receipt dated 29..6..2007
P7. – Acknowledgement from TKDM dated 18..6..07
P8. – T.C from TKDM
P9. – Fee receipt dated 18..7..2007
P10. – Admission memo
List of witnesses for the opp.parties
DW.1. – Mariamma Koshy
DW.2. – Renjith Das.
DW.3. – Yesudas
List of documents for the opp.partiesD1. –
D1. – Admission profile 2007-08
D2. – Memo
D3. – MOBE General List
