Heard learned counsel for both sides.
2. Here is an appeal filed u/s 15 of the erstwhile Consumer Protection Act, 1986 (hereinafter called the ‘Act’). Parties to this appeal shall be referred to with reference to their respective status before the District Forum.
3. The factual matrix leading to the case of the complainant is that the daughter of the complainant namely, Aishwarya Mishra took admission in the Ravenshaw University, Cuttack on 11.8.2012 in B.Sc.(I.S.T.) after payment Rs.30,000/- towards course fee and Rs.915/- towards admission fee. Complainant alleged inter alia that just after six days of admission, the daughter of the complainant was selected for admission in B.Sc (Home Science) in the University of Agriculture and Technology, Bhubaneswar. Since the daughter of the complainant opted for that course, she applied for transfer certificate to the OPs - University on 21.8.2012. The transfer certificate was issued by the OPs but did not refund the course fee. Thereafter, the complainant and his daughter met the Vice Chancellor and after making application to the Vice Chancellor on 10.10.2012, the Vice Chancellor exercised discretion and allowed 50% of the course fee refunded to the complainant. The complainant alleged further that she is entitled to refund of entire course fee except Rs.3,000/- as per the Government of Odisha, Department of Higher Education Notification dated 30.7.2011 which is binding on all the institutions including University. The complainant further alleged before the OPs authorities that all the requests have been failed for which the complainant filed the complaint.
4. The OPs filed written version stating that the complaint is not maintainable because University is an educational institution outside the purview of Consumer Protection Act. It is also stated that the Government guidelines as narrated by the complainant is also not binding on them. They admitted about deposit of course fee and also admitted about discretion of the Vice Chancellor to allow refund of 50% of the course fee. They submitted that the daughter of the complainant being transferred from the University, she is not entitled to any refund of course fee but however, discretion was used by the Vice Chancellor, for which she is paid only Rs.15,000/-. Therefore, it is submitted to dismiss the complaint.
5. After hearing both parties, the learned District Forum passed the following impugned order:-
“xxx xxx xxx
The consumer complaint No. 160 of 2013 be and is hereby allowed on contest.
The Opp.Parties are directed to refund the balance amount of Rs.15,000/- to the complainant within 30 days of receipt of this order.”
7. Learned counsel for the appellants submitted that the learned District Forum has erred in law by not considering the fact and law involved in this case. According to him, the subject ‘education’ being outside the purview of Consumer Protection Act, the allegation of such against the OPs Institution is not entertainable by the learned District Forum. He also referred to the decision of the Hon’ble National Commission and also the decision of the Hon’ble Apex Court where the matter with regard to examination conducted by University and other institutions are involved. He submitted that since the complaint is not maintainable the order of the learned District Forum is illegal per se.
8. Learned counsel for the appellant further submitted that the learned District Forum has committed error in law by allowing further 50% of the course fee by not considering the fact that the seat occupied by the complainant’s daughter has been left vacant after she left the University. The learned District Forum ought to have considered this fact while passing the impugned order. He submitted that the discretion used by the Vice Chancellor is there because it is autonomous body. When the daughter of the complainant has already received 50% of the course fee, she is not entitled to any amount as ordered by the learned District Forum. Therefore, he submitted to set aside the impugned order by allowing the appeal.
9. Learned counsel for the respondent submitted that the Consumer Forum has got jurisdiction to entertain such nature of dispute because she has taken admission on payment of course fee and admission fee. When she has left the University only after six days, she is entitled to get back the entire course fee and the admission fee. He submitted that fact about the vacancy of the seat is not correct as per the report obtained under RTI Act. He further submitted that the issue pending before the Hon’ble Apex Court is not exactly the fact and issue involved in this case. He further submitted that since the Vice Chancellor of the University has already granted 50% of the refund of the course fee, there was no reason to withhold the rest 50% of the course fee. The question of discretion of the Vice Chancellor is not very much there under any provision of Ravenshaw University Act. Under such circumstances, he submitted that the Government Circular floated by the complainant is binding on all the institutions and the Universities. So, he supports the impugned order and submitted to dismiss the appeal.
10. Considered the submission of learned counsel for respective parties and perused the DFR including the impugned order.
11. The complainant is required to prove the deficiency of service on the part of the OPs.
12. This matter is involved with regard to refund of course fee. The nature of the dispute as narrated by both parties does not relate to any examination fee or holding of examination of any educational institution. The matter which is very much pending before the Hon’ble Apex Court is related to examinations held by different Universities and Board Examinations. Therefore, the issue involved in the case before Hon’ble Supreme Court is not same here which is very much discussed by Commission in this case. It is true that subject of ‘education’ is not within purview of ‘service’ under the Act but that relate to examination etc. as discussed above. The as per the subject of education in the institutions with regard to their course fee or with regard to all extending benefits to the students in lieu of cost paid by student cannot be taken the umbrella of education to cover the issue so as to take away same from the purview of the Act. Therefore, this Commission is of the view that the peculiar nature of dispute in the instant case does not exactly the subject of ‘education’ so as to take out same from the entire ambit of Consumer Protection Act, 1986. Therefore, consumer complaint in such nature of case is entertainable.
13. So far merit of the case is concerned, the only issue is to find out whether the Government Circular is binding on both the parties or not. The circular shows that when the students slide up to 2nd Selection & ST/SC Seat Extension Admission then he/she can take transfer to the college of his/her choice without forfeiting the deposited college fees. On perusal of the notification, it appears that whenever the admitted students opt for shifting to another college for admission, they have to be refunded with amount leaving Rs.3,000/- with the concerned institution. Thus, it appears from the notification that the fees which have already been deposited whether it is course fee or admission fees, all are taken together to retain admit of Rs.3,000/- out of it and beyond Rs.3,000/- the amount should be refunded to the concerned student while he or she takes the transfer certificate (TC). Not only this but also this notification being the notification of Higher Education Department is definitely binding on all the institutions including the Ravenshaw University. Since the University is also constituted by the authority of the State Government through its Education Department, the OPs cannot be taken the plea that such notification is not binding on it. Therefore, the notification is clear to show that whatever admission fee or course fee deposited should be refunded to the student who are seeking transfer to another educational institution to prosecute her study. In this regard, the view of the learned District Forum cannot be said to be illegal.
14. Apart from this, it is admitted fact that the OPs University have already paid back 50% of the course fee to the complainant. There is no explanation from the side of the OPs as to how the discretion has been used by the Vice Chancellor without following any rule or regulation. Rather, it must be held that following the above circular, he has refunded 50% but withheld rest of the amount. Therefore, this Commission is of the view that complainant is entitled to Rs.30,915/- deposited on 10.8.2012 minus Rs.3000/- as per the above circular. While affirming the impugned order the operative portion of the impugned order requires modification in the following manner:-
i) Since the admission fee of Rs.915/- has been allowed by the learned District Forum to be retained by the OPs and same being not challenged in the appeal, this Commission does not want to speak anything about it but after deducting Rs.3,000/- as per the above circular, the operative portion should be read in the manner that the complainant is entitled to Rs.12,000/- instead of Rs.15,000/- as ordered by the learned District Forum. Rest part of the impugned order of the learned District Forum would remain unaltered.
The appeal is allowed in part. No cost.
DFR be sent back forthwith.
Supply free copy of this order to the respective parties.
