JUSTICE V.R. KINGAONKAR, PRESIDING MEMBER

          This revision petition arises out of the judgment rendered by the State Consumer Disputes Redressal Commission, UT Chandigarh in first appeal no. 1796/2009.  By the impugned judgment, the State Commission reversed the order dated 16-09-2009 rendered by the District Consumer Disputes Redressal Forum, Ludhiana.  The District Forum had allowed the complaint of the revision petitioner by order dated 16-09-2009.  The State Commission, however, reversed the findings of the District Forum and held that the complaint filed by the revision petitioner was liable to be dismissed.

2.          Some admitted facts may be noticed at the outset.  The petitioner applied for admission for first year of B.Sc. Agricultural (Hons.) course in the Respondent No. 2 college, for education year 2006-07 under Farmers Sponsored Category.  He was admitted as a first year student.  He deposited amount of Rs.2,28,000/- as admission and education fees.  He later on took admission in Guru Angad Dev University to first year of Bachelor of Veterinary Science (BVSC) course.   His   mother   submitted   an   application   dated 01-06-2007 for refund of the amount of Rs.2,28,000/-.  The Respondents informed her by letter dated 07-09-2007 that refund of the entire amount was not permissible and only a part of the amount to the extent of Rs.1,410/-, which was accepted as security amount was refundable to the petitioner.

3.          There is no dispute about the fact that for the education year 2006-07 there were only 7 seats available with the Respondents as per the prospectus issued by Respondent No. 1.  At the time of admission of the students to the first year B.Sc. Agricultural (Hons.) Course, three more students were kept on wait list in contemplation of increase in the number of seats.  There is no dispute about the fact that afterwards four more seats were created and therefore the three students, who were kept on waiting list had been admitted for the said course during the education year 2006-07 somewhere in the mid of August, 2006.  There is no dispute about the fact that four more seats were created and had been made available and thus, in all 11 seats were available for the B.Sc. Agricultural (Hons.) Course.

4.          Briefly stating, the case of the petitioner was that he had discontinued the B.Sc. Agricultural (Hons.) Course and had sought refund of the amount from the Respondents.  The petitioner alleged that refund of the said amount was wrongly denied to him.  He alleged that the Respondents committed deficiency in the service.  He submitted that the Respondents refused to refund the amount of education fee and admission fee without any justification.  He, therefore, sought the refund of said amount along with due interest.  The District Consumer Forum held that the petitioner was entitled to seek refund of Rs.2,27,000/- after deduction of one months tuition fee and directed the Respondents to pay the same within 30 days or else to pay additional amount of interest @ 9% p.a. from the date of the complaint till realization of the amount.  As stated before, the State Commission reversed such findings.

5.      The defence of the Respondents was that admission process was completed on 01-08-2006.  The petitioner had submitted an application dated 2^nd August, 2006, after completion of the admission process, for temporary return of the original certificates for attending counseling in Guru Angad Dev University.  He had undertaken to re-submit the original certificates after the said counseling process was over.  He had left the college of Respondent No. 2 on his own accord.  Out of 11 seats only 10 could be filled up and one seat occupied by the petitioner had remained vacant during that year.  The Respondents admitted the fact that mother of the petitioner had submitted an application dated 01-06-2007 for the refund of the fees.  It was their contention that out of four candidates, who had sought admission for the remaining four seats that were newly created, only three had turned up for admission for the admission till the last date i.e. 01-08-2006 and as such, one seat remained vacant.  They alleged that the petitioner continued to be shown as student at Serial No. 66 for the first year of B.Sc. Agricultural (Hons.) course during the relevant year and as such there was no deficiency in the service.

6.      We have heard learned counsel for the parties.  We have also perused the relevant documents and orders of both the Foras below.

7.          Clinching question is: --

Whether the Respondents suffered any financial loss due to any irregular conduct of the petitioner and because he had left the first year educational course of B.Sc. Agricultural (Hons.) course in the educational year?

8.          There is no duality about the legal position that if the petitioner had given up his claim over the seat after the process of admission was completed and as such financial loss was caused to the Respondents then he could be deprived of the claim for refund.  However, if there is no financial loss sustained by the Respondents, the request for refund of the amount could not be turned down.  It is true, no doubt, that on 01-08-2006 the admission process was completed by the Respondents.  Perusal of the record shows that even before completion of the admission process, mother of the petitioner had filed an application for refund of the fees.  It appears that the said application was filed on 12-06-2007.  Copy of the letter (Annexure – VI) issued by Respondent No. 1 to the mother of the petitioner reveals that the application sent by her was received by the office of Respondent No. 1 on 12-06-2007 for the purpose of adjustment/refund of the fees.  The petitioner has filed copy of that application as Annexure – V.  The date put on the application is, however, 01-06-2007 and that appears to be incorrect because in the body of the application date of payment is shown as 17-07-2006.  Therefore, assuming that any such application was filed by mother of the applicant on 01-06-2007 as shown in Annexure – V then also it is difficult to comprehend that no application was made by the petitioner for refund of the fees prior to the completion of the process of admission.  What appears from the record is that originally there were only 7 seats available as per the prospectus of the respondents. Out of the selected candidates, seven admissions were completed and three were kept on waiting list.  It was the case of the respondents that subsequently four more deserving candidates were called to appear for the purpose of admission but only three had taken admission and therefore, one more seat remained vacant.  Obviously, the seven seats available as on the date of issuance of the prospectus for the year 2006-07 were filled up and moreover, three other seats were also filled up after availability of obtaining Ex post facto sanction for increase of four more seats.  Had it been a fact that only seven seats were made available throughout the year and the petitioner had left the first year course of B.Sc. Agricultural (Hons.) course in the middle of the educational year, causing one seat to remain unfilled for that year and for further years, then the petitioner could have been deprived of the amount deposited by him. It is true that the mother of the petitioner had submitted the first application after about 10 months of completing the admission process. It is true that copy of the application of the petitioner, which is purportedly filed on record and was allegedly given on 14-08-2006 (Annexure – I) is no short of manipulation on his part.  The pleadings in the petition (Paragraph ‘e’ of the memorandum of petition) do not show that any such application was submitted by the petitioner.  What has been stated in the relevant paragraph (e) of the revision petition may be re-produced as follows:--

“The same course in the previous batch was conducted by respondent no. 1.  Copy of the relevant papers of Prospectus of respondent no. 1 is and as Annexure 4. After a week or so, the petitioner approached respondent no. 1 and requested the Dean to refund the fees of Rs.2,28,000/- as he had got admission in Bachelor of Veterinary Science in Guru Angad Dev University and had already deposited the fees.  The petitioner was asked to apply for the refund which he immediately did but did not retain a copy of the application.” 

9.      We are anguished to note that though the petitioner categorically stated that he had not retained the copy of the application, yet hand written copy of such application is filed vide Annexure – I.  This is improper conduct on the part of the petitioner.

10.          Coming to the merits of the matter, it may be stated that the original certificates were returned to the petitioner as per his request on 02-08-2006.  He did not re-submit those certificates to respondent no. 2 (College).  He had not attended the college of the respondent no. 2 after 02-08-2006 and as such, his name could be struck off from the Roll.  The respondent no. 2 did not take steps to remove name of the petitioner. The most important thing to be noted is that the petitioner was admitted in the first year course when there were only seven seats available and subsequently, the respondent no. 1 sanctioned increase of more four (4) seats with retrospective effect.  The three seats were subsequently filled up and one had fallen vacant.   It  is  difficult to say, therefore, that prior to 01-08-2006, the seven seats available at the initial stage were not filled up and one seat remained vacant due to shifting of the petitioner to another educational course.  It appears that one seat had remained vacant due to non-availability of one more student for filling up the remaining seat and because of the fact that only three of the eligible candidates were in the waiting list.  So, it can be gathered that initially the respondents contemplated increase of only three (3) seats and therefore, had admitted seven students, keeping three of the students on wait list.  Subsequent, increase of one more seat cannot be treated as a result of act of the petitioner and that non-filling of such additional seat could not be treated as loss caused to the respondents due to the act of the petitioner.  Once it is found that the respondents did not suffer any financial loss due to shifting of the petitioner to another course, the amount of tuition fee and admission fees could not have been retained by the respondents.

11.    A public notice issued by the University Grants Commission on 13-04-2007 was brought to the notice of the State Commission.  The public notice reads as follows:-

“PUBLIC NOTICE

       It has come to the notice of the University Grants Commission (UGC) that institutions and Universities including institutions Deemed to be Universities are admitting students to various programmes of studies long before the actual starting of academic session, collecting full fee from the admitted students, and retaining their schools/institutions leaving certificates in original.  The institutions and Universities are also reportedly confiscating the fee if a student fails to join by such dates.  The Commission is of the view that the institutions/Universities, by way of retaining the certificate in original, force retention of admitted students, which limits the opportunities for the candidates from exercising other options of joining other institutions of their choice.  However, it would not be permissible for institutions and Universities to retain the school/institutions leaving certificate, mark sheets, caste certificate and other documents in original.

       The Ministry of Human Resource Development and University Grants Commission have considered the issue and decided that the institutions and Universities, in the public interest, shall maintain a waiting list of students/candidates in the event of student/candidate withdrawing before the starting of the course, the wait-listed candidate should be given admission against the vacant seat.  The entire fee collected from the student, after a deduction of the processing fee of not more than Rs.1,000 (one thousand only) shall be refunded and returned by the institution/University to the student/candidate withdrawing from the programme.  Should a student leave after joining the course and if the seat consequently falling vacant has been filled by another candidate by the last date of admission, the institution must return the fee collected with proportionate deductions of monthly fee and proportionate hostel rent, where applicable.

       The University/Institutions are requested to abide by the instructions issued by the UGC.  The UGC shall on its own or on receipt of specific complaints from those affected, take all such steps as may be necessary to enforce these directions.  Institutions/Universities are also required to convey these instructions to the college affiliated to them.

       This notice has been reiterated subsequently also.”

12.          Perusal of the Public Notice shows that the entire fees collected from the student, after deduction of the process fee of not more than R.1,000/- shall be refunded and returned by the institution/university, if the student withdraws from the programme in case the seat had fallen vacant and had been filled up by another candidate. We are of the opinion that when all the 10 seats were filled up and one seat could not be filled up due to absence of response from the fourth candidate, it cannot be said that the respondents suffered financial loss due to withdrawal of the petitioner in the middle of the educational year.  It need not be reiterated that the loss could be assumed only and only when original seven seats available at the time of admission could not be filled and only six seats were filled up and one seat, therefore, had remained vacant throughout the year.  The act of the respondent no. 1 of increasing more four seats was not in contemplation at the time of admission process and at the most increase of three (3) more seats was expected, which made the respondent no. 2 to prepare wait-list of the candidates.  We cannot assume it to be loss of the Respondents due to unexpected increase of one more seat.

13.    We may now refer to case law cited by the parties.  On behalf of respondents, attention was invited to observations in Bihar School Examination Board Vs. Suresh Prasad Sinha (2009) 8 SCC 483, Maharshi Dayanand University Vs. Surjeet Kaur (2010) 11 SCC 159 and Secretary, Board of Secondary Education, Orissa Vs. Santosh Kumar Sahoo & Anr. (2010) 8 SCC 353.   In our opinion neither of the authorities have any direct bearing on the issue involved in the present case.  This Commission in Nipun Nagar Vs. Symbiosis Institute of International Business I (2009) CPJ 3 (NC) held that where no loss was suffered by the Institute, as no seat under general category had been kept vacant in the relevant year, the student was entitled to the refund of the fees.  Similar observations are made in Registrar, G.G.S. Indraprastha University Vs. Vaibhav in Revision Petition No. 1572/2006  decided by this Commission on 04-09-2009.

14.          Considering totality of the circumstances and the foregoing reasons, we are of the opinion that when the original seven seats available at the time of issuance of prospectus were filled up, the respondents could not have denied refund of fees to the petitioner.  The subsequent event that one of the seats out of the four (4) additional seats made available had remained vacant is of no much significance.  It cannot be said that due to act of the petitioner, the respondents suffered any financial loss. Under the circumstances, the