THE HON’BLE SRI JUSTICE GHULAM MOHAMMED AND THE HON’BLE SRI JUSTICE NOOTY RAMAMOHANA RAO W.P.NO.2849 OF 2005 ORDER: Per the Hon'ble Sri Justice Ghulam Mohammed This writ petition is preferred by the Board of Intermediate Education, State of Andhra Pradesh, seeking a writ of mandamus declaring the orders passed by the District Consumer Forum, Chittoor, under the Consumer Protection Act, in C.D.No.170 of 1999, as confirmed by the Andhra Pradesh State Consumer Disputes Redressal Commission, Hyderabad, in F.A.No.52 of 2003, dated 20-09-2004, as arbitrary, unjust and unsustainable. The facts, which are relevant for our inquiry, are in a very narrow compass. The 1st respondent – Reddy Basha Saheb Shaik prosecuted his Intermediate course during the years 1997-99 in Government Junior College, Peler and completed the course in the month of April 1999 with registered No.2370014. However, his result was withheld for want of receipt of marks for Botany Paper-II from the valuation camp concerned. Later, the result was declared to have failed securing only 16 marks out of 60 and the marks memo was accordingly issued to him. Subsequently, by realizing that decoding exercise was not done properly by the Agency concerned, the error in the result was rectified and the 1st respondent was informed that he secured 57 out of 60 marks in Botany Paper-II and his original pass certificate was sent to the college, declaring him to have passed in 1st division. The 1st respondent filed C.D.No.170 of 1999 before the District Consumer Forum, Chittoor, under the Consumer Protection Act, 1986 alleging that for sheer negligence on the part of the Board, he suffered mental agony and he could not attend for EAMCET and therefore, he should be compensated. On behalf of the Board, a counter-affidavit was filed contending that the Forum has no jurisdiction, as the functions that are being discharged by the Board are not in nature of “Service” and the respondent herein cannot be considered as “Consumer” of the Board. The grievance of the writ petitioner Board is that the District Consumer Forum, without appreciating the contentions canvassed by it properly, passed an Award on 05.12.2002, directing payment of a sum of Rs.50,000/- to the 1st respondent towards damages. Aggrieved by the said Award, the Board preferred an Appeal being F.A.No. 52 of 2003 before the State Consumer Disputes Redressal Commission, Hyderabad. The State Commission without examining the provisions of the Act in a right perspective and without noticing the settled principles of law on the subject, confirmed the order of the District Consumer Forum, Chittoor and dismissed the Appeal. Hence, the present writ petition. Learned Standing Counsel for Intermediate Education contends that as against the orders of the appellate authority, the 1986 Act, though provided further Appeal to the National Commission, under Section 19, the same is not efficacious, as the proviso to the said Section prescribes that, the Board shall deposit the amount and if the Board deposits the amount as directed by the District Consumer Forum, it will be put to prejudice and suffering. She further contends that a student, who undergoes examination conducted by the Board, cannot be termed as a ‘Consumer’ within the meaning of that expression under the Act, as there is no relationship of ‘Consumer’ and ‘Service Provider’ between the respondent and the petitioner Board. During the pendency of the writ petition, the learned Standing Counsel for Intermediate Education was directed to produce the answer script of Botany Paper-II of the 1st respondent, so as to understand as to how the mistake has crept in, whether by design or by an accident. The learned Standing Counsel would now submit that the Board would preserve the answer scripts relating to an examination only till the next examination is conducted and subsequently, they will be destroyed, as per their rules and hence, the answer script of the 1st respondent is not readily available. The learned counsel has drawn our attention to the Judgment rendered by the Apex Court in BIHAR SCHOOL EXAMINATION BOARD v. SURESH PRASAD SINHA[1], which is to the following effect: “ 11. …………. The function of the Board is to conduct school examinations. This statutory function involves holding periodical examinations, evaluating the answer scripts, declaring the results and issuing certificates. The process of holding examinations, evaluating answer scripts, declaring results and issuing certificates are different stages of a single statutory non-commercial function. It is not possible to divide this function as partly statutory and partly administrative. 12. When the Examination Board conducts an examination in discharge of its statutory function, it does not offer its “services” to any candidate. Nor does a student who participates in the examination conducted by the Board, hire or avail of any service from the Board for a consideration. On the other hand, a candidate who participates in the examination conducted by the Board, is a person who has undergone a course of study and who requests the Board to test him as to whether he has imbibed sufficient knowledge to be fit and if so, determine his position or rank or competence vis-à-vis other examinees. The process is not, therefore, availment of a service by a student, but participation in a general examination conducted by the Board to ascertain whether he is eligible and fit to be considered as having successfully completed the secondary education course. The examination fee paid by the student is not the consideration for availment of any service, but the charge paid for the privilege of participating in the examination. 13. The object of the Act is to cover in its net, services offered or rendered for a consideration. Any service rendered for a consideration is presumed to be a commercial activity in its broadest sense (including professional activity or quasi- commercial activity). But the Act does not intend to cover discharge of a statutory function of examining whether a candidate is fit to be declared as having successfully completed a course by passing the examination. The fact that in the course of conduct of the examination, or evaluation of answer scripts, or furnishing of mark sheets or certificates, there may be some negligence, omission or deficiency, does not convert the Board into a service provider for a consideration, nor convert the examinee into a consumer who can make a compliant under the Act. We are clearly of the view that the Board is not a “service provider” and a student who takes an examination is not a “consumer” and consequently, complaint under the Act will not be maintainable against the Board.” (Emphasis is brought out) In view of the ratio laid down by the Supreme Court in the aforesaid judgment, we dispose of the writ petition, holding that the District Forum does not have any jurisdiction to entertain the consumer dispute raised by the 1st respondent, but however, without costs. Before parting with the case, we would like to put on record our anguish as regards the manner in which the Board has conducted itself in the case of the 1st respondent. When the career of hundreds of candidates is involved, little more care and attention ought to have been paid. When examination conducted by the petitioner Board is considered as a stepping stone for career advancement of a student and an Examiner was required to be careful, cautious and has a duty to ensure that the answers are properly evaluated. We hope and trust that the petitioner Board will be more careful and diligent in future and see that such omissions and mistakes do not occur, at any rate by way of a premeditated exercise. Further, the Board would ensure that all such answer scripts involving some dispute or the other, are not routinely destroyed, thus preventing their scrutiny. If the amount deposited by the Board in pursuance of the directions of this Court has been withdrawn by the 1st respondent, the same shall not be recovered from him. --------------------------- Ghulam Mohammed, J --------------------------------- Nooty Ramamohana Rao, J mrk 29th December 2009 [1] (2009) 8 SCC 483