BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

VAZHUTHACAUD : THIRUVANANTHAPURAM

PRESENT:

SHRI. G. SIVAPRASAD : PRESIDENT

SMT. BEENA KUMARI .A : MEMBER

SMT. S.K. SREELA : MEMBER

C.C. No. 182/2009

Dated: 16..10..2009

Complainant:

Shajil Khan, Simla Manzil, Perunguzhy, Thiruvananthapuram – 695 305. (By Adv. P.G. Aravind)

Opposite parties:

1. University of Kerala, Represented by its Registrar, University Office, Palayam, Thiruvananthapuram.

2. Controller of Examinations, University Office, Palayam, Thiruvananthapuram.

 

(By Adv. Konchira G. Neelakantan Nair)

This O.P having been heard on 05..10..2009, the Forum on 16..10..2009 delivered the following:

ORDER

SHRI.G. SIVAPRASAD, PRESIDENT:

The facts leading to the filing of the complaint are that the complainant was a student of Govt. Law College, Thiruvananthaapuram in 3 year LLB Course during the academic year 2005 – 2008, that as per the officially published result on 10/10/2008 the complainant was declared to be passed along with the other 41 students of his batch, that his Registration No.is 14091, that there was a backlog of Arbitration paper which was proclaimed to be held on 25/3/2008, that complainant was denied opportunity to attend the examination of Arbitration paper, that thereafter complainant approached the Hon'ble High Court vide WP(c) No. 32442/08 praying for an opportunity to fill back the backlog so that he could obtain a certificate and appear for the enrollment, that vide judgment dated 21/11/2008 in WP(c) No.32442 of 2008 the Hon'ble High Court has held that if the petitioner, along with similarly situated persons, moves the University pointing out the grievances, University shall look into the same and take appropriate decision, in accordance with law, and that opposite parties did not take any positive steps either to consider or resolve the grievance of the complainant as stipulated by the Hon'ble High Court. Complainant had got the opportunity to write the examination of Arbitration paper on 19/2/2009 along with the fresh batch students of 2006 – 2009, that on 27/5/2009 the result of Vth Semester examination was published and that the complainant has passed in Arbitration paper. Thereafter complainant applied for provisional certificate, but opposite party was unwilling to issue his provisional certificate, rather asked him to repeat one examination of Public International Law Paper of Vth Semester in which the complainant had already scored 41 marks in 2008 March itself. Hence this complaint to direct opposite parties to issue provisional certificate and pay compensation.

2. Opposite parties entered appearance and filed version contending that complainant is not a consumer and there is no deficiency in service on the part of the opposite parties, that complainant had passed all the semesters, except the Vth Semester LLB Examaination, that he was a regular candidate of Vth Semester Examination of March 2008 with Reg.No.11094, that complainant has secured only 41 marks for paper – III in Public International Law and Human Rights whereas 50 marks is pass as per regulations, that complainant has registered for paper I - the Law of Arbitratiom and paper III – Public International Law and Human Rights of Vth Semester LLB Examination of February 2009 (Reg.No.3120). Complainant was absent for paper III, but he has passed paper I, that complainant is not eligible for LLB Provisional Degree Certificate as per Regulation since he has not passed Paper III. Hence opposite parties prayed for dismissal of the complaint.

3. The points that arise for consideration are:

    

(i)Whether the complainant is a consumer as stipulated in the Consumer Protection Act?

(ii)Whether the complainant is entitled to get LLB Provisional Certificate?

(iii)Whether there has been deficiency in service on the part of opposite parties?

(iv)Whether the complainant is entitled to get compensation, If so, at what amount?

4. In support of the complaint, complainant has filed affidavit and Exts.P1 to P17 were marked. In rebuttal, opposite parties did not file affidavit, but Exts. D1 & D2 were marked. Complainant has been cross examined by the opposite parties.

5. Points (i) to (iv) : Admittedly, the complainant was a student of Govt. Law College, Thiruvananthaapuram in 3 year LLB Course during the academic year 2005 – 2008. It has been the case of the complainant that as per the officially published result on 10/10/2008 the complainant was declared to be passed along with the other 41 students of his batch, that his Registration No.is 14091 and that there was a backlog of Arbitration paper Vth Semester which was proclaimed to be held on 25/3/2008. It has also been the case of the complainant since he was denied opportunity to attend the examination of Arbitration paper, he was constrained to approach the Hon'ble High Court vide O.P.No.32442/08 praying for an opportunity to fill back the backlog so that he could obtain a certificate and appear for the enrollment, that vide judgment dated 21/11/2008 in WP(c) No.32442 of 2008 the Hon'ble High Court has held that if the petitioner, along with similarly situated persons, moves the University pointing out the grievances, University shall look into the same and take appropriate decision, in accordance with law, and that opposite parties did not take any positive step to either consider or resolve the grievance of the complainant as stipulated by the Hon'ble High Court. It has also been the case of the complainant that he had got the opportunity to write the examination of Arbitration paper on 19/2/2009 along with the fresh batch students of 2006 – 2009, that on 27/5/2009 the result of Vth Semester examination was published, that the complainant with Reg.No.3120 was declared to be passed in Arbitration, that complainant had applied to 2^nd opposite party to release his provisional certificate, that 2^nd opposite party was unwilling to issue his provisional certificate, rather asked him to repeat one examination of Public International Law paper of Vth Semester in which the complainant had already scored 41 marks in 2008 March itself, that paper minimum for pass out is 40. Ext.P1 is the copy of the Writ petition No.32442 of 2008, Ext.P2 is the copy of the judgment dated 21/11/2008 in W.P (c) No. 32442 of 2008 of the Hon'ble High Court of Kerala. The operating portion of the said judgment reads as follows: “For all these reasons, I am not inclined to issue any specific direction to the University, as sought for by the petitioner. But if the petitioner, along with similarly situated persons, moves the University pointing out the grievances, University shall look into the same and take appropriate decision, in accordance with law”. Ext.P3 is the copy of the Degree of Bachelor of Arts. Exts. P4 to P7 are the copies of the letters addressed to 2^nd opposite party by the complainant. Ext.P8 is the copy of the postal receipt, Ext.P9 is the copy of the Revised Regulations Relating to LLB Three Year Degree Course. Ext.P12 is the copy of the statement of marks for Semester VI. Ext.P13 is the copy of statement of marks for Semester IV, Ext.P14(1) is the copy of the statement of marks for Vth Semester exam on March 2008, wherein it is seen complainant failed in two papers – Law of Arbitration and Public International Law and Human Rights. Ext. P14 is the copy of statement of marks in Semester Vth Examination February 2009, wherein it is seen complainant failed in Paper-III Public International Law and Human Rights. Ext.P15 is the copy of the statement of marks in Semester II. Exts.P16 & P16(1) are copies of statement of marks in Semester III Exam, April 2007 and April 2008. Ext.P17 is the copy of the statement of marks in Semester I. It has been the stand of opposite parties that complainant is not a consumer and there is no deficiency of service from the part of opposite parties, that complainant had passed all the Semester, except of Semester V, that he has secured only 41 marks for paper III in March 2008 Exam, whereas 50 marks is required for a pass as per regulations, that he had registered for paper I and Paper III of Vth Semester LLB Examination of February 2009 (Reg.No.3120), and that he was absent for paper III but he has passed paper I. It is further submitted by the Learned Counsel appearing on behalf of opposite parties that as per University Regulation: “(a) Candidate who has obtained not less than 40 marks in each paper and not less than 50% marks in the aggregate shall be declared to have passed the examination (b) a candidate who has not obtained 50% marks in the aggregate shall be exempted from appearing for paper/papers in which he has secured 50% or above marks. Exts. D1 & D2 and Exts.P14(1) and P14 are one and the same. It is seen noted in Ext.P14(1) and Ext.P14 that 'minimum for a pass 40% in each paper and 50% in the aggregate of the whole examination. For exemption in a particular paper 50% in that paper”. Admittedly as per Ext.P14(1), complainant has scored 14 marks in paper I and 41 marks in paper III of Semester V – LLB Examination in March 2008 and hence failed in the said paper. He had not scored the required 50% mark in each paper for exemption. Subsequently, vide Ext.P14, it is seen complainant appeared for the Vth Semester Examination in February 2009 and scored 67 marks in paper I and stood absent in paper III. Thereby he had passed paper I alone, whereas he was treated as failed in paper III. Complainant has not scored 50% marks for paper III of the Vth Semester LLB Examination held in March 2008 for exemption in that paper nor has he appeared for paper III of the Vth Semester Exam held in February 2009, thereby he has not yet passed the said paper, as required by regulation. At this stage we would refer to the decision of the Hon'ble National Commission in Deputy Registrar and Another Vs. Rudrika Jain & Another – III (2006) CPJ 343 (NC) wherein it was held that “performance of statutory duties by a University or College in laying down criteria/rules/regulations for conducting examinations, eligibility criteria for permitting the student to appear in the examination or declaration of the results of a student who appeared in the examination and such other activities cannot be considered to be hiring of service for fees. Those are statutory functions not depending upon the contract between the parties. The services which are to be rendered on the basis of the statutory provisions by the University/Educational Institution cannot be construed as rendering of service for consideration in the form of fees". The issue herein is in regard to the non-issuance of the Provisional Certificate to complainant even after the declaration of the LLB result of the complainant. It is pertinent to point out that Provisional Cetificate can be issued only to passed candidtes. It is the say of the University that complainant has not passed the LLB Examination and so the Provisional Certificate cannot be issued. In the light of the aforesaid decision of the Hon'ble National Commission, a Univeristy while conducting examination, decides the eligibility criteria of the students who appear in the examination, evaluating answer papers or re-checking of marks awarded to the student is performing a statutory duty and is not rendering service on hire for a consideration of fees as contemplated under the Consumer Protection Act. As such complainant is not a consumer as contemplated under the Consumer Protection Act. There is no material to show that complainant has passed LLB Examination. The issue of Provisional Certificate would come , only after complainant has passed LLB Examination. In view of the matter and in the light of evidence available on records, we find nothing to attribute deficiency on the part of opposite parties, complaint has no substance which deserves to be dismissed.

In the result, complaint is dismissed.

A copy of this order as per the statutory requirements be forwarded to the parties free of charge and thereafter the file be consigned to the record room.

Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the open Forum, this the 16^th day of October, 2009.

G. SIVAPRASAD,

PRESIDENT.

BEENA KUMARI. A : MEMBER

S.K. SREELA : MEMBER

ad.

C.C.No.182/2009

APPENDIX

I. Complainant's witness:

PW1 : Shajil Khan

II. Complainant's documents:

P1 : Photocopy of writ petition

P2 : " Judgment issued by the Hon'ble High Court on 21/11/2008.

P3 : " complainant's degree certificate issued by University on 26/3/2009.

P4 : " letter dated 4/3/2009 issued by the complainant to the 2^nd opp. Party.

P5 : " application dated 20/4/2009 filed by the complainant before the Vice Chancellor, Kerala University.

P6 : " application filed by the complainant before the 2^nd respondent on 28/5/2009.

P7 : " complainant's registered petition sent to the 2^nd opposite party on 2/6/2009.

P8 : " postal receipt dated 2/6/2009. P9 : " relevant pages of the revised regulation relating to LLB III year Decree Course. P10 : " newspaper cuttings dated 25 May 2009 of "Flash" – Kerala Kaumudi and Mathrubhoomi daily dated 22/5/2009

P11 : Copy of application dated 26/5/2009 filed before Education Minister.

P12 : " Mark sheet dated 17/10/2008 of LLB (three year Semester Course) VI – Semester of Reg. No.14091 P13 : " dated 15/4/2009 "

IV – Semester of Reg.No.9043.

P14 : " dated 25/5/2009 "

V – Semester of Reg.No.3120.

P15 : " dated 21/4/2007 "

II – Semester of Reg.No.6048.

P16 : " dated 7/11/2007 "

III – Semester of Reg.No.8050.

P16(i) " dated 11/8/2008 "

III – Semester of Reg.No.3141

P17 : " dated 20/7/2006 "

I – Semester of Reg.No.5055.

III. Opposite parties' witness: NIL

IV. Opposite parties' documents:

D1 : Photocopy of statement of Marks of Vth Semester of Reg.No.11094 issued by Controller of Examination. D2 : " V – Semester (Supplementary) of Reg.No.3120 issued by Controller of Examination.

PRESIDENT