Chairman, Board of Examinations, Madras ........ Petitioner
Vs
Mohideen Abdul Kader                             ........ Respondent

S.S. CHADHA, J. MEMBER

This Revision Petition has arisen out of the Order dated 30.09.1993 of the State Commission, Tamil Nadu at Madras disposing of two appeals against the order dated 16.12.1992 of the District Forum, Tirunelveli and confirming the award of compensation of Rs. 2,000/- and costs of Rs. 200/- against the Chairman, Board of Examinations, Department of Technical Education, Petitioner herein.

The Complainant alleged that he studied during 1986-89 for getting Diploma in Electrical Engineering, that he appeared but did not pass III semester examination, that he applied to write the examination in October, 1991 and that he was issued the hall ticket bearing 23244. According to the Complainant, he went to the examination hall with his hall ticket on 22.10.1991 and took his seat, that the examination supervisor told the Complainant that the subject code No. of the subject was wrong, that the Complainant approached the Chief Supervisor, that the hall supervisor was asked by Chief Supervisor to proceed with the list, that the hall supervisor after perusing the list told the Complainant that against the name of the Complaint only Code No.2 was cited but the code No. of the subject Production Technology which the Complainant wished to write is Code No.1 and that all the persons in charge of conducting examination refused to permit the Complainant to write the examination on 22.10.1991. The Complainant alleged that he was wrongly restrained and prevented from writing the examination on Production Technology because of the attitude and negligence of the Opposite Parties and thus there is a clear case of deficiency in service of the persons engaged by the Petitioner herein. The other parties were sought to be made vicariously liable for the negligence. The Complainant claimed a compensation of Rs. 25,000/-.

According to the Opposite Parties when the Complainant came to the examination hall on 22.10.1991 he informed the invigilator that he wanted to write paper No.1, Code No.1, on that day without mentioning the name of the subject or the correct Code No., that on the said date the examination was held for the subject Production Technology with Code No.2, that the examination with Code No.1 was scheduled for 23.10.1991 and that the Complainant tampered with the entries in the Hall Ticket.

Before the District Forum the Complainant led oral and documentary evidence and the Opposite Parties filed affidavits along with documents. On the appreciation of the evidence, it was held that the hall ticket, Exhibit A1, shows that the Complainant was appearing for III Semester Examination paper bearing code Nos. 2 & 3, that on 22.10.1991 there was examination in III Semester Production Technology-I bearing Code No.2, that the Complainant was prevented from writing the examination due to confusion and gross negligence in service. The District Forum granted a compensation Rs. 2,000/- and costs of Rs. 200/- against all the Opposite Parties.

The Opposite Parties filed two separate appeals before the State Commission. The State Commission evaluated afresh the evidence on record and affirmed the finding of the District Forum. It was held that there was gross deficiency of service on the part of the Invigilator for which the employer, the first Opposite Party, is vicariously liable. The State Commission then adverted to the contention of the Appellants before it that the examinations conducted by the Appellants are not services rendered for consideration within the meaning of Section 2(1)(o) of the Consumer Protection Act, 1986 and the Complainant is not, therefore, a consumer within the meaning of Section 2 (1) (d) (ii) of the Act. The attention of the State Commission was invited to the order of this Commission dated 18th March, 1993, in R.P. NO.372 of 1992 "Director of Technical Education Vs. A. Siraj Basha" wherein it was held that there was no arrangement of service for consideration as between the Complainant who was a candidate for an examination and the Director of Technical Education whose department conducted the examination and therefore, the Complainant cannot be regarded as a consumer. The State Commissionafter referring to some decide cases observed : 

"While rendering the decision in DIRECTOR OF TECHNICAL EDUCATION, MADRAS & ANOTHER versus A SIRAJ BASHA (R.P. No.372/92 dated 18/03/1993) the attention of the National Commission does not seem to have been invited to the decisions discussed above, particularly to the decision of the National Commission itself in MANISHA SAMAL versus SAMBALPUR UNIVERSITY & ORS. I(1992) CPJ 231 NC and the decision of the Supreme Court in THE BANGALORE WATER SUPPLY AND SEWERAGE BOARD ETC. versus A. RAJAPPA AND OTHERS (1978 SC 481), which lays down the law of the land. Hence the judgement of the National Commission in the Director of Technical Education, Madras & Anr. Versus A. Siraj Basha (R.P. No.372/92 dt. 18.3.1993) in per-incuriam and does not have the sway of binding precedent, as pointed out by the Supreme Court in MAMLESHWAR PRASAD AND ANOTHER versus KANAHIYA LAL (1975 SC 653)."

The State Commission then held in the impugned order that Education imparted by the Government, Universities and private institutions and the examinations conducted by the Government or Universities are services rendered for consideration and the student who avails of these services is a consumer within the meaning of Section 2 (1) (d) (ii) of the Act.

It is necessary first to recall the Doctrine of Stare Decisis. The binding character of judicial decisions may flow either from a constitutional provisions or from a statutory provision or from the conventions which the courts observe in the administration of justice. Constitutional sanction is given to the binding nature of the judgements of the Supreme court by Article 141 of the Constitution. A declaration of law by the Supreme Court has a binding effect on all courts in India. The law initiated by the Supreme court is binding and absolute. Its correctness cannot be doubted. Rules framed by several High Courts in the country require that judges must follow the decision of that Court and when a Judge or Divisional Bench does not agree with another bench, he or it should have a reference made to the Full Bench or place the papers before the Chief Justice for constituting a larger bench to resolve the conflict. Subordinate Courts must follow the decision of the High Courts to which they are judicially subordinate, whatever their own views may be. This is a principle based on judicial comity and requires Judges to follow precedents of courts of Co-ordinate jurisdiction and of superior jurisdiction. In legal matters some degree of certainty is as valuable as part of justice as perfection. One reason for consistency is that people often regulate their conduct with reference to existing rules, which make it important for Judges to abide by them. Innovations can be unsettling and lead to a loss of confidence (Dias Jurisprudence). The Supreme Court has spoken on Stare Decisis in several cases. In Krishan Kumar Vs. Union of India (1990) 4 SCC 207 it was ruled :

"Stare decisis et non quieta movere. To adhere to prece-dent and not to unsettle things which are settled. But it applies to litigated facts and necessarily decided questions. Apart from Article 14 of the Constitution of India, the policy of courts is to stand by precedent and not to disturb settled point. When court has once laid down a principle of law as applicable to certain state of facts, it will adhere to the principle, and apply it to all future cases where facts are substantially the same. A deliberation and solemn decision of court made after argument on question of law fairly arising in the case, and necessary to its determination, is an authority, or binding precedent in the same court, or in other courts of equal or lower rank in subsequent cases where the point is again in controversy unless there are occasions when departure is rendered necessary to vindicate plain, obvious principles of law and remedy continued injustice. It should be invariably applied and should not ordinarily be departed from where decision is of long standing and rights have been acquired under it, unless consideration of public policy demand it."

The same principles apply to quasi-judicial Tribunals where there is hierarchy of Tribunals. Each Tribunal must follow its own earlier decisions and the decisions of the Superior Tribunals to which they are subordinate. A decision of a Tribunal is binding not because of its conclusions but in regard to its ratio and the principles laid down therein. This Commission has taken the view that the Consumer Disputes Redressal Forums are quasi-judicial authorities and are thus governed buy the well-established principles of the binding nature of its own earlier decisions. The State Commission and are bound to follow the decision of the superior forums. It is sufficient for invoking rule of Stare Decisis that a certain decision was arrived at on a question irrespective of the grounds or reasons of its decision. The doctrine of precedent depends on uniformity in the decision on a question of law. That doctrine is not concerned with concrete issues of facts between the parties. Its effect is to declare law not the facts and to declare it so as to be binding upon all Consumers or Opposite Parties as well as all for a inferior jurisdiction and in case of same jurisdiction. Were it to be otherwise, the situation in the well ordered field of a legal system governed by precedent would be rendered chaotic. The State Commissions in several cases have noticed and applied the rule of precedent. The State Commission, Haryana in "S.D.O., A.E.E. City Division, Hisar Vs. M/s Hotel Palki, Hisar" and again in M/s Wheel World of Ambala Cantt. Vs. S.P. Verma, 1992 (2) CPR 653 held that the State Commission is bound by its own earlier decisions on pure questions of law. In "Pawan Katial & Ors. Vs. Ansal Housing and Construction Ltd."- 1993 (2) CPR 242 the State Commission, Haryana held that it is well settled on the larger theory of precedent that a judgement of a Court holds the field and is binding on the courts below till it is expressed reversed or overruled by a larger Bench or a superior court and the mere filing of an appeal or the admission of a Special Leave Petition by their Lordship of the Supreme court does no ipso facto obliterate its reasoning, or the ration thereof. In "Vijay Kumar Joshi & Ors. Vs. Chief Executive Officer cum Chief Engineer, Shimla Development Authority"- 1994(1) CPR 188 the State Commission, Shimla came to the conclusion that the State Commission considers themselves bound by their own decision on pure questions of law.

A word about decision per incuriam. A decision is given per incuriam when the Tribunal has acted in ignorance of a previous decision of its own or of any Tribunal of co-ordinate jurisdiction which covers the case before it or when it acted in ignorance of a decision of the superior court and if it is a decision given per incuriam ignoring by inadvertence a decision of Supreme Court on the point it is obvious that the decision cannot be a binding precedent as the view taken by the Supreme Court on a question of law binds all courts and Tribunals under Article 141 of the Constitution. But it must be remembered that it does not belong to the State Commissions or District Forums to disregard a decision of the National Commission by applying to it a label of per incuriam.  Section 2 (d) of the Act defines "Consumer" as meaning any person who (i) buys any goods for consideration etc. and (ii) hires or avails of any services for a consideration which has been paid or promised or partly promised, or under any system of deferred payment and includes any beneficiary of such services other then the person who hires or avails of the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person. Hiring any services for consideration is thus one of the essential preconditions before a person can be considered to be a consumer within the meaning of Act. The word 'hire' means to acquire the temporary use of a thing or the services of a person in exchange for payment, to engage the temporary use for fixed sum, to procure the use of services of, at a price, to grant temporary use of for compensation. This is the ordinary, plain, grammatical meaning of the expression and has been so expressed by this Commission in several cases. The Consumer must be one who has hired services for consideration and to be a consumer the nexus of hiring of services for consideration must be established. The definition of 'service' is contained in Section 2 (1) (o) of the Act :-

"Service means service of any description which is made available potential users and includes the provision of facilities in connection with banking, financing, insurance, transport, processing, supply of electrical or other energy, board or lodging or both, (housing construction) entertainment, amusement or the purveying news or other information, but does not include the rendering of any service free of charge or under a contract of personal service". 

The question whether a candidate for examination in the University of Rajasthan is a consumer intended to be covered under the provisions of the Act came up for consideration before the Rajasthan State Commission in "Kumari Seema Bhatia Vs. Registrar, Rajasthan University"- II(1992) CPJ 899 decided on 28.10.1991. Mr. Justice S. K. Lodha, President of the State Commission with the concurrence of other members referred to in detail to the establishment of the University of Rajasthan under the University of Rajasthan Act, 1946 and to the various provisions and the detailed procedure for evaluation and re-evaluation of the answer books. It came to the conclusion that examination evaluation of answer books, declaration of results and re-evaluation of answer books do not constitute service within the meaning of Section 2 (1) (o) of the Act. Payment of the re-evaluation of answer books does not mean that the candidate has hired the service of the Opposite Party. Reliance was placed by the State Commission on the decision of this Commission in "Society for Civic Rights Vs. Union of India & Ors." that consumer must be one who has hired the services for consideration and to be a consumer the nexus of hiring of service must be established. So payment of the examination fee by the candidate for re-evaluation of the answer books to the University does not mean that the candidate has hired the services of the Opposite Parties. Hire means payment by contract for the use of thing or for personal service, the engagement on these terms. The complaint in that case was dismissed on this limited ground. This is the earliest decision on the question to which we have come across. An appeal was filled before the commission against the said order dated 28.10.1991 passed by the State Commission, Rajasthan being F.A. No. 133 of 1992 and disposed of by the Order dated 12.04.1993 reading as follows: 

"The appellant is not present either in person or through authorised representative. We have gone through the records and heard the counsel for the Respondent. We are in complete agreement with the view expressed by the State Commission that in conducting the revaluation of the answer papers of a candidate who had appeared for an examination held by the Respondent University, the Respondent was not rendering any service as defined in the Act for considering nor there was any arrangement of hearing of service for consideration as contemplated by the Act. Hence the approach made by the Complainant to the State Commission seeking relief under the Consumer Protection Act was totally misconceived. The dismissal of the complaint petition by the State Commission on the said ground was absolutely correct. We confirm the order of the State Commission and dismiss this appeal. No costs."

In a recent decision of the Supreme Court in Civil Appeal No.11603 of 1995 "S.P. Goel Vs. Collector of Stamps, Delhi" the question arose whether there is any hiring of service for consideration by a person who pays registration charges and presents a document for registration under the Registration Act, 1908 by payment of stamp duty on documents under the provisions of Indian Stamp Act, 1989. After analysing the provisions of the Registration act as well as the Stamp Duty Act the Supreme Court ruled that the person who presents document for registration and pays the stamp duty on it or the registration fee, does not become consumer nor do the officers appointed to implement the provisions of the two acts render any service within the meaning of Consumer Protection Act.

The State Commission, Haryana in "Tilak Raj of Chandigarh Vs. Haryana School Education Board, Bhiwani" decided on 9.9.1991 I(1992) CPJ 76 had taken a different view by holding that imparting of Education by the State is not one of its sovereign regal functions and is a service. The State Commission held that imparting of education by the State clearly comes within the concept of service under clause (o) sub-section (1) of Section 2 of the Act and inevitably the conduct of the Matriculation and Primary examinations by the School Board for a prescribed fee is a "service". The State Commission upheld on 14.08.1992 similar view in "A.P.J. School Vs. K.L. Galhotra"- II (1992) CPJ 807. Both these rulings were given by the Haryana State Commission prior to the decision of this Commission in F.A. No.133 of 1992.

The question again came up for consideration before this Commission in "Joint Secretary, Gujarat Secondary Education Board Vs. Bharat Narottam Thakkar" decided on 29.9.1993- I(1994) CPJ 187 when it was reiterated that in conducting the Secondary School Board Examinations, evaluating answer papers, announcing the results thereof and thereafter conducting a re-checking of the marks of any candidate on application made by the concerned candidate, the Board is not performing any service for hire and there is no arrangement of hiring of service involved in such a situation as is contemplated by Section 2 (1) (o) of the Act. The Complainant in that case was not therefore a consumer and not relief should have been granted in his favour as against the Board of Secondary Education on the ground put forward by the candidate that there was delay in conducting the re-checking of the marks. The same view was reiterated in "Registrar, University of Bombay Vs. Mumbai Grahak Panchayat, Bombay"- I(1994) CPJ 146. This view was followed by the Maharashtra State Commission in "Maharashtra State Board of Secondary Education Vs. Chairman, Grahak jagruti sangh" - II(1994) CPJ 1, by Andhra Pradesh State Commission in the "Secretary, Board of Intermediate Education Vs. M. Suresh & Anr." - II (1995) CPJ 167, Kerala State Commission in "P.M. Noushand & Anr. Vs. University of Kerala & Ors." -II (1995) CPJ 334 and by Delhi State Commission in "Ruchika Bhartia Vs. C.B.S.E. & Anr."-II(1995) CPJ 436 and in other cases.

The decision of this Commission in "Manisha Samal Vs. Sambalpur University", I(1992) CPJ 231 (NC) noticed in the impugned order cannot be regarded as an affirmance of the view taken by the Orissa State Commission in the order under appeal that the appellant there had hired the services of the University on payment of fees for appearing at the examination, but no relief was granted. When that appeal came up for hearing before this Commission, it was found on facts that the apprehension of the Complainant that the marks she secured in her examination paper had been awarded to other two students who had been assigned the Identical roll number in the examination and vice-versa is not true, as the other two students with the same Roll Numbers did not appear in the examination. The complaint was dismissed and there is a specific note that "it is unnecessary for us to go into other points raised". A decision is only an authority for what it actually decides on a question of law, not for what it implies or assumes or narrates. This Commission felt it unnecessary to go into other questions and this could not be construed as a tacit affirmance of the correctness of the view taken by the Orissa State Commission. Education does not find mention in express terms like other activities which have been specifically enumerated, but being inclusive definition the net is very wide. But the Supreme Court has not ruled that whenever Education is imparted for consideration, there exists a quid pro quo for the provision of Education and monetary recompense therefor and included in the definition of service.

We must make it clear that in this case or in the earlier cases this Commission did not consider the general question whether the imparting of education for consideration would come or not within the ambit of the service under the Act. Whether a University or an institution affiliated to it imparting education is within the arena of consumer jurisdiction is a question which this Commission will consider and decide when it directly arises before it. What this Commission has decide in earlier cases is that a University or the Board in conducting public examinations, evaluating answer papers, announcing the results thereof and thereafter conducting rechecking of the marks of any candidate on the application made by the concerned candidate is not performing any service for hire and there is no arrangement of hiring of any service for hire and there is no arrangement of hiring of any service involved in such a situation as contemplated by section 2 (1) (o) of the Act. A candidate who appears for the examination cannot be regarded as a person who had hired or availed of the services of the University or Board for consideration.

The impugned orders suffer from serious illegalities in the exercise of jurisdiction and are entitled to be set aside. The Revision Petition is accepted and the impugned orders dated 30.9.1993 of the State Commission, Tamil Nadu and the orders dated 16.12.1992 of the District Forum are hereby set aside and the complaint dismissed leaving the parties to bear their own costs throughout.

Sd/-................................................J
(V.Balakrishna Eradi) President
Sd/-...............................................J 
(B.S. Yadav) Member
Sd/-...............................................J
(S.S. Chadha) Member
 Conducting Exams. within the purview of CP Act  <Click  Here>