# (2009) 3 ILRA 769

- **Citation:** (2009) 3 ILRA 769
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2009-09-09
- **Case number:** Civil Misc. Writ Petition No. 2415 of 1995
- **Bench:** Syed Rafat Alam, Krishna Murari
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/2009-3-ilra-769-41450
- **Pages:** 4

## Headnote

Constitution of India Art. 226-Order
passed by consumer forum-activities of
university in conducting examinationnon
commercial-students
not
came
within the definition of consumer forumany order passed by consumer forumheld-without jurisdiction.

Held: Para 9

In the instant case, admittedly, the
University in discharge of its statutory
function held the examination in which
the petitioner appeared as examinee. No
material has been brought on record to
show that the University deliberately has
declared the petitioner to have passed in
Second Division to extend favour to
some other student. On the other hand,
the University has come up with the plea
that it was on account of technical error
in the computer and while computing the
total marks of the examinee, took the
percentage out of 1000 instead of 900
and, therefore, though the petitioner
secured more than 60% marks out of
900, yet she has been shown to have
secured less than 60% out of 1000 and
thus, placed her in Second Division. In
the facts and circumstances, we are
satisfied with the explanation of the
University that the mistake was not
deliberate. Besides that the respondent
no.
1,
the
examinee
not
being
a
'consumer' as per definition under the
Act and the University not being 'service
provider', they do not come within the
purview of the Act, hence the impugned
order being without jurisdiction, cannot
sustain.
Case law discussed:
Civil Appeal No. 3911 of 2003, decided on
September 4, 2009, Writ Petition No. 29610 of
2007 - decided on 1.9.2008.

## Text

3 All] Purvanchal University Jaunpur and anotherV. Shabana Khatoon and others

769
the consequential benefits. However, it is
open to the Disciplinary authority to pass
fresh orders after initiating denovo
disciplinary proceedings in accordance
with law, if the Department deems it
proper, but the petitioners shall not be
awarded any major penalty of removal or
dismissal from service or reduction in
rank.

22. No order as to costs.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 09.09.2009

BEFORE
THE HON'BLE SYED RAFAT ALAM, J.
THE HON'BLE KRISHNA MURARI, J.

Civil Misc. Writ Petition No. 2415 of 1995

Purvanchal
University
Jaunpur
and
another

 ...Petitioners
Versus
Shabana Khatoon and others

 ...Respondents

Counsel for the Petitioner:
Sri Ajit Kumar Singh
Sri Pankaj Mittal

Counsel for the Respondents:
SC

Constitution of India Art. 226-Order
passed by consumer forum-activities of
university in conducting examinationnon
commercial-students
not
came
within the definition of consumer forumany order passed by consumer forumheld-without jurisdiction.

Held: Para 9

In the instant case, admittedly, the
University in discharge of its statutory
function held the examination in which
the petitioner appeared as examinee. No
material has been brought on record to
show that the University deliberately has
declared the petitioner to have passed in
Second Division to extend favour to
some other student. On the other hand,
the University has come up with the plea
that it was on account of technical error
in the computer and while computing the
total marks of the examinee, took the
percentage out of 1000 instead of 900
and, therefore, though the petitioner
secured more than 60% marks out of
900, yet she has been shown to have
secured less than 60% out of 1000 and
thus, placed her in Second Division. In
the facts and circumstances, we are
satisfied with the explanation of the
University that the mistake was not
deliberate. Besides that the respondent
no.
1,
the
examinee
not
being
a
'consumer' as per definition under the
Act and the University not being 'service
provider', they do not come within the
purview of the Act, hence the impugned
order being without jurisdiction, cannot
sustain.
Case law discussed:
Civil Appeal No. 3911 of 2003, decided on
September 4, 2009, Writ Petition No. 29610 of
2007 - decided on 1.9.2008.

(Delivered by Hon'ble Syed Rafat Alam, J.)

1. In the instant writ petition under
Article 226 of the Constitution of India
the petitioners have prayed for quashing
the order of Consumer Protection Forum,
Azamgarh dated 7.10.1994 and also the
complaint dated 27.8.1993 made by
respondent No. 1.

2. We have heard Sri Ajit Kumar
Singh, learned counsel for the petitioners
University and the learned standing
counsel for respondent No. 3. No one has
entered
appearance
on
behalf
of
respondent Nos. 1 and 2 despite notice. In
view of office report dated 4.1.2001
service of notice on the said respondents
770 INDIAN LAW REPORTS ALLAHABAD SERIES [2009

is deemed to b sufficient under Rule 12,
Explanation II of Chapter VIII of the
Rules of the Court.

3. It appears that respondent no. 2
was a student of M.A. (Urdu) of Shibli
National Post Graduate College, Kazi
Gaus Alam, Azamgarh, affiliated to
Purvanchal University, Jaunpur. She
appeared in M.A. (Urdu) Examination
from the aforesaid College and was
shown to have passed with Second
Division, though in the University records
it was shown that she has obtained marks
of First Division. It is submitted by the
learned
counsel
for
the
University
petitioner that as per University record
she has secured 563 marks out of 900 but
due to some technical error the Computer
wrongly described that she has secured
563 marks out of 1000. Thus, the
percentage of 563 marks out of 1000
being less than 60%, she was shown to
have secured Second Division though the
percentage should have been taken out of
900 which would come to more than 60%.

4. The respondent no. 1 being
aggrieved
approached
the
District
Consumer Forum, Azamgarh by moving
an application under Section 12 of the
Consumer Protection Act on 27.8.1993.
The District Consumer Forum by the
impugned order dated 7.10.1994, awarded
a compensation of Rs.2000/- along with a
cost of Rs.200/-.Hence the aggrieved
University preferred this petition.

5.

Learned
counsel
for
the
University petitioner submitted that the
mistake was not deliberate nor there was
laches on the part of the University but
the same has crept in due to technical
error in the Computer and the University
when learnt about it after notice from the
Consumer Forum, immediately corrected
the mark sheet given to respondent no. 2
showing that she has obtained 563 marks
out of 900 and thus, she has cleared the
examination with First Division. It is
submitted that an objection regarding
maintainability of the application under
Section 12 of the Act before the
Consumer Forum was also raised but the
District
Consumer
Forum
without
deciding
the
same,
allowed
the
application by the impugned order.
Learned counsel further placed reliance
on the judgment of the Apex Court in the
case of Bihar School Examination Board
Vs. Suresh Prasad Sinha in Civil Appeal
No. 3911 of 2003, decided on September
4, 2009 and also on a Division Bench of
this Court in Writ Petition No. 29610 of
2007 - Bundelkhand University, Jhansi
Vs. Consumer Disputes Redressal Forum.
It is submitted that the Consumer Forum
respondent no. 3 ought to have first
decided the objection raised by the
petitioner about the maintainability of
complaint before it but instead the
respondent no. 3 passed the impugned
order without considering the objection
and thus, the same cannot sustain.

6. Nobody appeared on behalf of
respondent no. 1, the claimant before the
District Consumer Forum and respondent
no. 2, Principal of the institution in
question. The District Consumer Forum is
represented by the Standing Counsel.

7. The question as to whether the
activity
of
the
University
or
the
Examination Board can be presumed to be
commercial activity and hence covered
under the provisions of the Consumer
Protection Act, is no more res integra and
is concluded by the judgment of the Apex
Court in the case of Bihar School
3 All] Purvanchal University Jaunpur and anotherV. Shabana Khatoon and others

771
Examination Board Vs. Suresh Prasad
Sinha (Supra), In the aforesaid case the
District
Consumer
Forum
awarded
compensation of Rs.12000/- along with
interest at the rate of 12% to the
complainant Suresh Prasad Sinha and the
appeal preferred by the Bihar School
Examination Board before the State
Consumer
Disputes
Redressal
Commission and further appeal before the
National Consumer Commission under
Section 19 of the Act were dismissed. The
matter was thereafter taken to the Apex
Court and the issue involved was as to
whether the statutory School Examination
Board comes within the purview of
Consumer Protection Act or not. Their
Lordships after considering the definition
of 'service' and 'deficiency' in clauses (o)
and (g) of Section 2 of the Act and also
looking to the fact that the Board was
conducting the examination in discharge
of its statutory function, held that the
examinee or the student who undertakes
examination is not a consumer and thus,
the complaint against the Board or the
examining body under the Act is not
maintainable. The relevant part of the
judgment is extracted herein below:

"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
intended 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
complaint 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."

8. A Division Bench of this Court in
Civil Misc. Writ Petition No. 29610 of
2007 - Bundelkhand University Jhansi Vs.
Consumer
Disputes
Redressal
Commission, decided on 1.9.2008, also
took the similar view.

9. In the instant case, admittedly, the
University in discharge of its statutory
function held the examination in which
the petitioner appeared as examinee. No
material has been brought on record to
show that the University deliberately has
declared the petitioner to have passed in
Second Division to extend favour to some
other student. On the other hand, the
University has come up with the plea that
it was on account of technical error in the
computer and while computing the total
marks
of
the
examinee,
took
the
percentage out of 1000 instead of 900
and, therefore, though the petitioner
secured more than 60% marks out of 900,
yet she has been shown to have secured
less than 60% out of 1000 and thus,
placed her in Second Division. In the facts
and circumstances, we are satisfied with
the explanation of the University that the
mistake was not deliberate. Besides that
the respondent no. 1, the examinee not
being a 'consumer' as per definition under
the Act and the University not being
772 INDIAN LAW REPORTS ALLAHABAD SERIES [2009

'service provider', they do not come
within the purview of the Act, hence the
impugned
order
being
without
jurisdiction, cannot sustain.

10. In the result, the writ petition
succeeds and is hereby allowed. The
impugned order dated 7.10.1994 passed
by
the
District
Consumer
Forum,
Azamgarh
is
accordingly,
quashed.
However, there shall be no order as to
costs.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 14.09.2009

BEFORE
THE HON'BLE SUDHIR AGARWAL, J.

Civil Misc. Writ Petition No. 9826 of 1990

Shree Prakash Mishra
...Petitioner

Versus
State of U.P. and another ...Respondents

Counsel for the Petitioner:
Sri D.S.M. Tripathi

Counsel for the Respondents:
Sri Srikant Shukla
S.C.

U.P.
Regularisation
of
Adhoc
Appointment
(on
post
outside
the
purview
of
the
Public
Service
Commission
Rules
1979-Rule
4Regularisation-appointed
on
post
of
Seasonal Clerk-extended from time to
time-recommendation for creation of
post-itself shows about working without
post-illegibility contained in Rule 10
declared irrational held-in view of law
laid down in Rakesh Kumar Saxena and
Take
Chand's
case-no
right
for
Regularisation.

Held: Para 6

It is well settled that in the absence of
any
post
neither
the
question
of
regularisation
nor
permanence
is
permissible. Besides the appointment
made for a fixed term or ad hoc
appointment does not confer any right
upon the incumbent concerned to claim
regularisation unless it is provided under
the statutory rules.
Case law discussed;
1989(1) UPLBEC 144, Civil Misc. Writ Petition
No. 20398 of 1988, Special Appeal No. (7) of
2008, 2007(4) ADJ 186, 2001 (1) AWC 287
(SC), Civil Misc. Writ Petition No.52755 of
2002 decided on 8.8.2003, 2006 (2) AWC
1738.

(Delivered by Hon'ble Sudhir Agarwal, J.)

1. List has been revised. None
appeared for the petitioner. Learned
Standing Counsel and Sri Srikant Shukla,
Advocate for the respondents are present.
However, I have perused the record.

2. The petitioner has sought the
following reliefs:

"(i) issue a writ, order, rule or direction
in the nature of writ of mandamus
directing the respondent no. 2 to treat the
services of the petitioner as permanent
being regularised and not to interfere in
the discharge of duty by the petitioner as
clerk.
(ii) issue a writ, order, rule or direction
in the nature of writ of mandamus
directing the respondent no. 2 to pass
formal order regularising the ad hoc
services of the petitioner.
(iii) issue a writ, order, rule or direction
in the nature of writ of mandamus
directing the respondent no. 2 to pay the
salary of the petitioner without any break
alongwith arrears forthwith.
(iv) issue any other writ, order, rule or
direction which this Hon'ble Court may