educational institutions

Case BriefsTribunals/Commissions/Regulatory Bodies

National Consumer Redressal Commission (NCDRC): The Bench of R.K. Agarwal (President and V.K. Jain and M. Shreesha, Members, while taking into consideration a batch of petitions and further referring to several decisions of the Supreme Court, reached to the conclusions that,

“Coaching Classes cannot fall within the definition of ‘Education Institutions’.”

“Any defect or deficiency or unfair trade practice pertaining to a service provider like ‘Coaching Centres’ does not fall within the jurisdiction of the Consumer Fora.”

Facts in the present case are in respect to deficiency of services by an educational institution that is a Dental College for admitting students when it was neither affiliated with the university nor recognized by the Dental Council of India.

Counsel appearing for the complainants stated that the facts in Buddhist Mission Dental College and Hospital v. Bhupesh Khurana, (2009) 4 SCC 473 relate to deficiency of service on account of non-affiliation and that it does not fall within any deficiency rendered during the ‘Course of Education’ being imparted ‘Post Admission’.

OP University has indulged in deficiency of service and unfair trade practice.

Contentions

OPs Counsel placed reliance on Supreme Court’s decision in P.T. Koshy v. Ellen Charitable Trust, 2012 (3) CPC 615 (SC), and stated that students are not ‘Consumers’ and ‘Education’ is not a commodity and the Educational Institutions are not rendering ‘Service’.

Counsel appearing for the Complainant’s while referred to P. Sreenivasulu v. P.J. Alexander, wherein it was held that Educational Institutions would come within the purview of the Consumer Protection Act, 1986 and that Education is a ‘service’.

Analysis and Decision

Commission addressed the ratio laid down by the Supreme Court in a catena of Judgments with respect to ‘Education’ and ‘Educational Services’ vis-a-vis Consumer Protection Act, 1986.

Bihar School Examination Board v. Suresh Prasad Sinha, (2009) 8 SCC 483,

“…Any dispute relating to fault in holding of examination and non-declaration of result by an examinee does not fall within the purview of the Consumer Protection Act, 1986.”

Maharshi Dayanand University v. Surjeet Kaur, (2010) 11 SCC 159,

“…Supreme Court in the above-stated case examined in detail the jurisdiction of the Consumer Fora to entertain a Complaint with respect to deficiency of service by Educational Institutions.”

While noting the contention that Supreme Court clearly culls down the principles and has emphatically laid down that student is not a consumer and educational institutions are not providing any ‘Service’, Supreme Court’s decision in P.T. Koshy v. Ellen Charitable Trust, 2012 (3) CPC 615 (SC) was referred to wherein it was held that,

“…Educational Institutions are not providing any kind of service, therefore, in matter of admission, fees, etc., there cannot be a kind of service, therefore, in matter of admission, fee, etc., there cannot be a question of deficiency of service. Such matters cannot be entertained by the Consumer Forum under the Consumer Protection Act, 1986.”

Counsel for the Complainants contended that the ratio of the order has to be interpreted in the sense that it was applicable only to cases which involve ‘Core Education’ services and not all activities which relate to Educational Institutions and that both  Bihar School Examination Board v. Suresh Prasad Sinha, (2009) 8 SCC 483 and Maharshi Dayanand University v. Surjeet Kaur (2010) 11 SCC 159, refer to conference of a degree and conduction of an examination, which do not sum up the entire gamut of “Education”.

Unni Krishnan, J.P. v. State of A.P., (1993) 1 SCC 645,

“…Education has never been a commerce in this country and that establishing an Educational Institution can neither be a trade or business nor can it be a profession within the meaning of Article 19 (1)(g), it was held that “Education” in its truest aspect is more a mean and a vocation rather than a profession or trade or business.”

Commission relying on the in Amar Singh Yadav v. Shanta Devi, AIR 1987 Patna 191, wherein it was held that,

“…while deciding the Law of Precedence has observed that when there is a direct conflict between two decisions of the Supreme Court of co-equal Bench, the subordinate Court must follow the judgments which states the law more elaborately and accurately and that the question whether the decision is earlier or later is not material. In the instant case in Maharishi Dayanand University Case (Supra) the Hon’ble Supreme Court had discussed the law elaborately.”

Thus, the Commission stated that ratio laid down in the last judgment that is Amar Singh Yadav v. Shanta Devi, AIR 1987 Patna 191 has to be followed. It is significant to note here that the ratio in Maharshi Dayanand University v. Surjeet Kaur (2010) 11 SCC 159, P.T. Koshy v. Ellen Charitable Trust, 2012 (3) CPC 615 (SC), Prof. K. K. Ramachandran (Supra) and Anupama College of Engineering (Supra) does not address to the aspect of what comprises ‘Core Education’ and whether all activities related to Education/ Educational institutions would be excluded from the purview of the Act.

In view of the above discussion, consumer complaints were dismissed. [Manu Solanki v. Vinayak Mission University, 2020 SCC OnLine NCDRC 7, decided on 20-01-2020]

Case BriefsHigh Courts

“Bowed by the weight of centuries, he leans upon his hoe and gazes on the ground the emptiness of ages in his face and on his back, the burden of the world.”

Bombay High Court: These lines from Nehru’s autobiography were quoted by Ranjit More, J. in the judgment delivered for himself and Bharati H. Dangre, J. to describe the social status of the Maratha community and the need of a solution to the peculiar problem brought before the Court. In a 487-pages long Judgment, the High Court upheld the validity of the Maharashtra State Reservation (of seat for admission in educational institutions in the State and for appointments in the public services and posts under the State) for Socially and Educationally Backward Classes (SEBC) Act, 2018 providing reservation for the Maratha community. However, at the same time, the Court held that the quantum of reservation at 16% was not justifiable and therefore the same was partially set aside.

The challenge 

The Court was dealing with a batch of writ petitions posing a challenge to the SEBC Act which categorise Marathas as ‘Socially and Educationally Backward Class’ and confers 16% reservation in their favour in the seats for admission in educational institutions and to the posts for appointments in public services in the State of Maharashtra. One of the prime contentions of the petitioners was that the said Act was a fraud on the Constitution as it hiked the reservation available in the State of Maharashtra from 52% to 68% and thereby crossed the barrier of the ceiling limit of 50% imposed by the Supreme Court in Indra Sawhney v. Union of India, 1992 Supp (3) SCC 217.

Government’s stand

The Government of Maharashtra justified the enactment of SEBC Act as being warranted by these extraordinary circumstances — (a) Gradual deterioration in educational and social backwardness of Marathas; (b)Deterioration in income as well as the desperation of families to survive; (c) Substantial  backlog in services under the State; (d) Increase in the number of suicides as a result of form indebtedness and shift to manual labour; (e) Inability to raise the standard of living as a result of adverse conditions.

The issue

 The Court considered the question — Whether the SEBC Act, 2018 is constitutionally invalid on account of lack of legislative competence on the following sub-heads: (a) the subsisting interim order passed by the Bombay High Court in Sanjeet Shukla v. State of Maharashtra, 2014 SCC OnLine Bom 1672, thereby granting stay to a similar enactment and ordinance of the State, which was pending for adjudication before the Court; (b) the Constitution (102nd Amendment) Act, 2018 depriving the State legislature of its power to enact a legislation determining the Socially and Educationally Backward Class and conferring the benefits on the said class in exercise of its enabling power under Articles 15(4) and 16(4) of the Constitution as now such classes are those as declared under Article 342-A of the Constitution; (c) the limitation of 50% reservation set out by the Constitution Bench of the Supreme Court in Indra Sawhney.

Conclusions of the Court

The conclusion of the High Court on various points as formulated and deliberated upon are summarised in seriatim:

(i) The State possesses the legislative competence to enact the Maharashtra State Reservation (of seats for  admission in educational institutions in the State and for appointments in the public services and posts under the State) for Socially and Educationally Backward Classes (SEBC) Act, 2018, and the interim order passed by the Bombay High Court in Sanjeet Shukla v. State of Maharashtra, 2014 SCC OnLine Bom 1672. We resultantly uphold the impugned enactment except to the quantum of reservation as set out in Point 6.

(ii) The report of the Maharashtra State Backward Class Commission under the Chairmanship of Justice Gaikwad is based on quantifiable and contemporaneous data and it has conclusively established the social, economic and educational backwardness of the Maratha Community and it has also established the inadequacy of representation of the Maratha Community in public employment/posts under the State. Accordingly, the MSBCC Report is upheld.

(iii) The classification of the Maratha class into “Socially and Educationally Backward Class” complies the twin test of reasonable classification permissible under Article 14 of the Constitution of India — namely, (a) intelligible differentia and (b) rational nexus to the object sought to be achieved.

(iv) The limit of the reservation should not exceed 50% however in exceptional circumstances and extraordinary situations, this limit can be crossed subject to availability of quantifiable and contemporaneous data reflecting backwardness, the inadequacy of representation and without affecting the efficiency in administration.

(v) The report of the Gaikwad Commission has set out the exceptional circumstances and extraordinary situations justifying crossing of the limit of 50% reservation as set out in Indra Sawhney v. Union of India, 1992 Supp (3) SCC 217.

(vi) The State Government in the exercise of its enabling power under Articles 15(4) and (5) and 16(4) of the Constitution is justified, in the backdrop of the report of MSBCC, in making provision for a separate reservation to Maratha community. However, the quantum of the reservation set out by the SEBC Act in Section 4(1)(a) and 4(1)(b) as 16% is not justifiable and resultantly the quantum of reservation under the said provisions over and above 12% and 13% respectively as recommended by the Commission is quashed and set aside.

Hope and trust

While concluding its judgment, the Court stated: At present, we have dealt with the extraordinary situation with which the State is confronted with where it justified the exceeding of limit, and we, by taking consideration the exceptional circumstances, have upheld this exercise of power by the State. We hope and trust that the said situation would be reviewed by the State in the near future so that it follows the rule of caution and do not forever continue with this “Exceptional circumstances and extraordinary situation.”

Note of appreciation for the counsel

Before concluding the Court placed n record the appreciation for the erudite submissions advanced by the Senior Counsel who ably assisted the Court in delivering the judgment. TheCourt stated that it deeply valued the assistance rendered by Senior Advocates Arvind Datar, S.G. Aney and Pradeep Sancheti assisted by the junior counsel on record. The Court also acknowledged the valuable assistance rendered by Gunratan Sadavarte and S.B. Talekar, Advocates. The Court further acknowledged the valuable assistance rendered by the Senior Advocate Ranjeet Thorat who was ably assisted by Akshay Shinde and Prachi Tatke, Advocates, for his strenuous efforts. The court also acknowledged the special assistance rendered by the Senior Advocates Mukul Rohatgi and Paramjeet Singh Patwalia. It was also noted that the Court was deeply assisted in its endeavour by Senior  Advocates Rafiq Dada, Arif Bookwala, A.Y. Sakhare, Prasad Dhakephalkar, Vineet Naik and Mihir Desai. Assistance of Rajesh Tekale, Ashish Gaikwad and Abhijeet Patil, Advocates were also acknowledged. [Jishri Laxmanrao Patil v. State of Maharashtra, 2019 SCC OnLine Bom 1107, decided on 27-06-2019]

Hot Off The PressNews

National Green Tribunal (NGT): The Bench headed by the NGT Chairperson AK Goel J., while addressing a matter related to school’s violating the air and noise pollution norms directed the Ministry of Environment and Forests (MoEF) to issue guidelines in regard to the stated issue.

The Bench stated that “Secretary MoEF should have an interaction by way of video-conferencing or otherwise with the education departments of all the states in association with the pollution control boards or the Central Pollution Control Board to issue appropriate guidelines to take care of the violation of environment norms by different educational institutions in the country”.

Hence, NGT directed MoEF to file a compliance report by email at filing.ngt@gmail.com within a period of 8 weeks.

[Source: PTI]

Case BriefsHigh Courts

Uttaranchal High Court: A Division Bench comprising of Rajeev Sharma and Lok Pal Singh, JJ., was deciding a public interest litigation-writ petition that highlighted the opening of a liquor vend in the heart of Almora town near the District Hospital and Girls Inter College. The bench directed the State to curb the menace of free availability of narcotics including liquor to the youth.

The petition was filed alleging that the abovesaid liquor vend contravene the provisions of Uttar Pradesh Number and Location of Excise Shops Rules 1968, and also the instructions issued by the State Government in that matter as the said shop was established in the proximity of educational institution, which is prohibited. The High Court was of the view that such establishment should not have been permitted by the Government. Further, narcotics including liquor should not be readily available; liquor vends should be far away from educational institutions, busy hubs, commercial centers, hospitals, factories, etc.

The High Court observed that Article 47 of the Constitution, cast a duty upon the State to strive for the prohibition of consumption of liquor. It was observed that ‘drug abuse’ has broken the social fabric and destroyed many families. The Court noted that the smuggling of drugs into the State from border areas was on a rise; the police was not able to get hold of drug peddlers and especially their ‘kingpins’. The Court held that the menace of drug abuse has to be dealt with sternly. The kingpins apprehended in such cases are to be booked not only under NDPS Act but also under the Money Laundering Act which provides for prevention of money laundering and confiscation of property derived from, or involved in, money laundering and for matters connected therewith. The State was further directed inter alia to appoint more Drug Inspectors, constitute Special Operation Groups, set up check posts at Indo-Nepal Border, undertake special drives to uproot cannabis, establish Rehabilitation Center in each district, ensure that no minor is served any drug or alcoholic beverage, etc. The petition was disposed of in above terms. [Manoj Singh Pawar v. State of Uttarakhand,2018 SCC OnLine Utt 552, dated 18-6-2018]

Case BriefsTribunals/Commissions/Regulatory Bodies

National Consumer Disputes Redressal Commission (NCDRC): There is no deficiency in services of an educational institution if the results of a candidate has been withheld by the institution due to non-payment of fees, observed NCDRC while dismissing a revision petition filed by a person whose result was not declared by Divya Institute in Shimla as he had not paid the full fees for M P Ed (Master of Physical Education) course.

Earlier, the petitioner took admission in M P Ed two year course run by Divya Institute for the academic session 2008-2009. Initially, the petitioner had deposited Rs 15,000, thereafter he deposited Rs 2500  and Rs 2000  respectively. The petitioner took the  examination, however, the result was not declared. When the petitioner approached the Institute, he was informed that some payment was still due on his part  and, in case, the petitioner pays that amount, the result would be declared. The petitioner paid Rs 2500  on 24.02.2010 but the result was not declared. Feeling aggrieved, the  petitioner approached the  District Forum for relief.

Before the Forum, the Institute contended that against the amount of Rs 30,000  payable, the petitioner had paid only a sum of Rs 24,500 and due to this reason, the result had not been declared by Singhania University, Jaipur, Rajasthan, which had conducted the examination. The District Forum allowed the complaint and directed the Institute to refund Rs 24,500  to the complainant along with  Rs 15,000 as punitive compensation and litigation cost of Rs  5000. The said order of District Forum was set aside by the Himachal Pradesh State Commission in the appeal filed by the Institute. The   State Commission noted that it was verified that the petitioner was supposed to have paid a sum of Rs 30,000  against which he had paid only a sum of Rs 24,500 and because of that Singhania University, which conducted the examination, did not declare his results. However, the State Commission directed Divya Institute to take up the matter with Singhania University for the declaration of the result of the respondent in case he pays the balance amount of money.

In the revision petition filed before NCDRC, petitioner accepted that he had not paid the full amount due and but stated that the Institute had never raised any demand so that he could pay the same. After perusal of relevant records, the NCDRC noted that the Institute had informed the petitioner during his visit in October and in December 2009 about the amount due but he had failed to deposit the full and final amount towards fee and hence, his results were with-held by the Singhania University.

“We find no infirmity in the order of the State Commission which has accepted the appeal and set aside the impugned order of the District Forum and directed the petitioner to take up the matter with the Singhania University for the declaration of the result of the petitioner after he pays the balance money due,” noted the Commission. While confirming the order of State Commission, NCDRC dismissed the revision petition. [Shiv Kumar v. Divya Institute, 2016 SCC OnLine NCDRC 1422, decided on September 8, 2016]

High Courts

Tripura High Court: Dealing with the issue as to whether in case seats for any particular reserved category (SC/ST) are not filled up in an educational institution, due to non availability of sufficient number of eligible candidates in that particular category, should those seats be filled up by applying the exchange method or should the seats be filled up on the basis of merit, a bench of Deepak Gupta CJ and S. Talapatra J  disposed of three writ petitions involving identical question of law via a common judgment and held that the 12 seats which are lying vacant for admission in MBBS course in the Tripura Medical College and Dr. B.R. Ambedkar Memorial Teaching Hospital because of non-availability of eligible Scheduled Tribes candidates will have to be filled in strictly on the basis of merit.

The Court observed that Section 5 of the Tripura Scheduled Castes and Scheduled Tribes Reservation Act, 1991 was amended in 2005 to bring into its ambit reservation in educational institutions (earlier, reservation only in Services under the State was covered), however, the Section does not in any way envisage any exchange between the seats reserved for SC with seats reversed for ST or vice versa. The Court further observed that Rule 8(8)(a) of the Tripura Scheduled Castes and Scheduled Tribes Reservation Rules, 1992 provides for exchange, but the language of the sub-rule 8(a) makes it clear that it is applicable only in filling up posts in Government Service and has nothing to do with the educational institutions. The Court noted that “substantive amendments were made to the Rule in the year 2007, and even thereafter no mention of seats in educational institutions is there in Rule 8(8)(a)” and that “Rule 8(8)(a) cannot be read in isolation, it has to be read conjointly with Rule 8(9) and Rule 13 which talk of maintenance of rosters and carrying forward of posts”.

The Court concluded that when the language of any statutory Act or Rule is clear, then the Court cannot introduce words into that Act or Rule to give it a meaning which is totally different from the meaning envisaged by the rule making authority, and hence the exchange method will not apply where seats in educational institutions have to be filled up, instead the vacant seats will have to be filled on the basis of merit. Bikash Sarkar v. State of Tripura, 2015 SCC OnLine Tri 827, decided on 20-8-2015

High Courts

Himachal Pradesh High Court: While reviewing the arbitrariness of the Notification issued by the Government which cancelled the establishment of Government Degree Colleges in Kotla Behr,  the Division Bench of Rajiv Sharma and S.T Thakur JJ., observed that, Policy decisions must conform to Article 14 of the Constitution. The Court further held that, setting up a new degree college should be in conformity with the State’s obligation for equitable distribution of resources and funds across the State. It was further observed that the attempt of succeeding Government should not be to march over the decisions of outgoing ruling party, but must be guided by doctrine of good governance for the State.

As per the facts of the case, the impugned Notification issued by the State Government led to the de-notification of the Government Degree College at Kotla Behr. V.S. Thakur, learned counsel for the petitioner argued that, the State arbitrarily de-notified 8 Government colleges of Kotla Behr via Notification dated 02.03.2013. The petitioner further contended that, as per the Guidelines of 02.01.2014, a new college was required at Kotla Behr as well, but the government did not follow uniform policy for opening of  new degree colleges. Appearing on behalf of the respondents M. A Khan argued that, de-notification of degree colleges at Kotla Behr was a ‘Policy Decision’.

The Court pointed out that the respondents re-opened all the colleges except that of Kotla Behr without any justification which signifies the arbitrariness and unreasonableness in the decision making process. The Court while answering the contention of respondents, relied on the  Supreme Court  decision of Kumari Shrilekha Vidyarathi v. State of U.P, (1991) 1 SCC 212,  and observed that Article 14 of the Constitution is also applicable to governmental policies and if policy or any action of government fails to clear the test of reasonableness, it would be held unconstitutional. Further the Court relied on the judgment of Andhra Pradesh Dairy Development Corporation Federation v. B. Narasimha Reddy, (2011) 9 SCC 286, and stated that the succeeding government is duty bound to continue and carry on the unfinished work of previous government. Based upon the above observations, the Court found the Notification dated 02.03.2013, to be arbitrary and thus quashed it, and directed the respondents to reopen the Government Degree College at Kotla Behr.  Asha Ram v. State of Himachal Pradesh, 2015 SCC OnLine HP 1742, decided on 20.07.2015