THE STATE OF ODISHA & ORS versus ORISSA PRIVATE ENGINEERING COLLEGE ASSOCIATION (OPECA) & ANR on 29 June 2021

1. Leave granted.

F2. This appeal arises from an order of a Division Bench of theHigh Court of Orissa dated 21 January 2021. The High Court has alloweda writ petition filed by the first respondent allowing institutions impartingeducation to grant admission to the students for the B.Tech (Engineering)degree course for academic session 2020-21 on the basis of the marksobtained in the qualifying examinations. This is purportedly in relaxationGof a statutory requirement that all admissions have to be based on acentralized entrance test.

3. In the State of Orissa, there is a legislation called the OdishaProfessional Educational Institutions (Regulation of Admission and H

THE STATE OF ODISHA v. ORISSA PVT. ENGG. COLLEGEASSOCIATION (OPECA) [DR. DHANANJAYA Y CHANDRACHUD, J.]

Fixation of Fees) Act 2007[1]. Section 3 of the 2007 Act contains thefollowing provision:

A

“3. (1) Subject to the provisions of this Act, admission of studentsin all private professional educational institutions, Govt.institutions and sponsored institutions to all seats includinglateral entry seats, shall be made through Entrance Test(s)Bapproved by the Government followed by centralizedcounselling in order of merit, in accordance with suchprocedure as recommended by the Policy Planning Bodyand approved by the Government.

(2) After vacancy round of Odisha Joint EntranceCExamination (OJEE)/ Diploma Entrance Test (DET)Counselling, i.e. after minimum of two rounds ofCentralized Counselling, the modalities shall be decidedby the Government from time to time for filling up of thevacant seats taking candidates from the Entrance Test(s)Dapproved by the Government on merit basis of all theTechnical and Professional Institutes under thesupervisionof the OJEE/DET Committee. The seats to whichcandidates could not be sponsored due to dearth of choiceandthe seats remained vacant due to non-reporting cases2nd round of Centralized Counselling shall be consideredEas vacant seats against which the College can admitstudents following the modalities fixed by the Government.In any case, the reported cases shall not be given furtheropportunity to participate in the admission process meantfor filling up of vacancies at Institution level”.F

4. As a result of the outbreak of the Covid-19 pandemic, the AllIndia Council for Technical Education[2] issued a circular dated 19 August2020 by which relaxed eligibility criteria for students taking admission tovacant seats available for the PGDM/MBA courses were prescribed onthe basis of marks scored by the aspirants in the qualifying examination.The first respondent, placing reliance upon the circular, filed a petitionunder Article 226 of the Constitution before the High Court seeking adirection to the State Government to implement this circular for B.Tech G

1 “2007 Act”2 “AICTE”

ADegree courses. The High Court, by its order dated 24 December 2020,left it to the discretion of AICTE and the State Government to determinewhether a similar benefit as granted to students pursuing the PGDM/MBA courses should be extended in making admissions for the B. Tech(Engineering) degree course. Pursuant to the direction of the High Court,the AICTE issued a letter dated 6 January 2021. AICTE clarified theBposition in the following terms:

“This office has examined the matter in details and found that theCirculardated 19.08.2020 had been issued in respect of the PGDMcourse keeping in view the (s)ituation prevailing at the relevanttime as indicated in the saidcircular, which included that in manyCstates the several All India EntranceTests could not be conductedor delayed due to the COVID-19 pandemic.However, the samewas not the case so far as the B.Tech Engineeringstream isconcerned. So issuing any general circular for admission intoengineering courses at par with the Circular dated 19.08.2020Dwas not feltnecessary. This also for the further reason being itwas provided in para7.2 of Chapter vii of the Approval ProcessHandbook 2020-21 that, “ The concerned State Government/ UTAdmission Authority shall decide modalities for the admission.” Itis also seen that the Odisha State has made provisions in the Odisha(P)rofessional(E)ducational Institutions(Regulation of AdmissionEand Fixation of Fee) Act, 2007 to fix the modalities of admissioninto vacant seats.

In such view of the matter, there is no need of issuing any generalcircular extending benefits, at par with the circular dated 19.08.2020in respect of B. Tech Engineering Stream. Considering the extra-Fordinary situation prevailing all over the country due to COVID-19 Pandemic and varying field situation in different states, the(S)tate Govt. may take suitable decision with regard to modalitiesof admissions into engineering courses including prescribing forany extend time limit for such admission for the academic sessionG2020-21.

This is issued with the approval of the Competent Authority.”

5. Following the above letter, the first appellant informed the firstrespondent on 7 January 2021 that the circular issued by the AICTErelates only to the PGDM/MBA courses and not to the B.Tech DegreeH

courses. The communication of the first appellant was challenged bythe first respondent before the High Court, while seeking directions toallow students to take admission to the B.Tech courses on the basis ofmarks obtained in the qualifying examination. The High Court, by itsorder dated 21 January 2021, came to the conclusion that there was anerror apparent on the face of the letter dated 7 January 2021 by notpermitting engineering institutions to allow students to take admission toB.Tech (Engineering) Courses on the basis of the marks obtained in thequalifying examination. The High Court held that the same benefit whichwas granted to aspiring students for the PGDM/MBA courses shouldbe given to students of the Engineering Degree stream on the basis ofthe AICTE circular.

6. The submission which has been urged on behalf of the appellantsby Mr Tushar Mehta, learned Solicitor General appearing with Mr SiboSankar Mishra, learned Standing Counsel, is that the direction of theHigh Court is contrary to the provisions contained in Section 3 of the2007 Act. It has been urged that Section 3(1) stipulates that admissionof students in all private professional educational institutions, governmentinstitutions and sponsored institutions to all seats including lateral entryseats shall be made through an entrance test approved by the governmentfollowed by centralized counselling in order of merit. Hence, it has beensubmitted that the direction of the High Court to the State Governmentto allow for admissions to the B.Tech Degree courses on the basis ofmarks obtained in the qualifying examination is contrary to Section 3(1).Apart from this submission, it has been urged that, as a matter of fact,the AICTE, in its communication which has been referred to earlier hadclearly opined that the B.Tech Degree courses could not be placed atpar with PGDM/MBA courses. Hence, an appropriate decision was leftto the government to take in view of the provisions of the state legislation.

7. On the other hand, Mr Siddhartha Dave, learned Senior Counselappearing on behalf of the first respondent, on caveat, has submittedthat, as a matter of fact, benefit has been granted of the direction issuedby the High Court to about 592 students who have taken admission toB.Tech Degree courses under direct entryand 243 students who havetaken admission under lateral entry in the State of Odisha. In this context,the following chart has been placed on the record in the synopsis to theappeal:

ABC

D

E

F

G

H

8. The above chart indicates that while there are over 33,000Dseats for the B.Tech four Year course, as a matter of fact, the numberof students who have joined on the basis of the entrance examination isa meagre fraction of the total number of seats. It has been submittedthat for the present year, having regard to the onset of the Covid-19pandemic, the direction of the High Court need not be interfered with.

E9. Mr Gaurav Agrawal, learned counsel, has appeared on behalfof some of the students who have obtained admission.

10. In view of the submission which has been urged on behalf ofthe institutions by Mr Siddhartha Dave, as noted above, we had requestedthe Solicitor General to seek a factual clarification from the competentauthority of the State Government in regard to the actual number ofFstudents who have secured admission in pursuance of the order of theHigh Court.The Solicitor General has stated that factually, about 592students have secured admission to B.Tech degree courses under directentry and 243 students have secured admission under lateral entrypursuant to the order of the High Court, as stated on behalf of the firstGrespondent by the learned counsel.

11. The direction by the High Court to the State Government whichoperates as a mandamus to admit students to the B.Tech Degree courseson the basis of the marks obtained in the qualifying examination isexpressly contrary to the terms of Section 3(1) of the 2007 Act. It wasHin this context that the earlier order of the High Court dated 24 December

2020 left it to the AICTE and the State Government to take an appropriatedecision in regard to extending the same benefit which was extended toPGDM/MBA studentsto the students aspiring for admission to the B.TechDegree courses. AICTE, in the course of its letter, had clearly indicatedthat the B.Techdegree courses cannot be placed at par with the PGDM/MBA courses and, hence, it was left to the State Government to take anappropriate decision. Mr Siddhartha Dave is correct in urging that theactual decision which was taken by the State Government on 7 January2021proceeded on an erroneous interpretation of the letter which wasaddressed by the AICTE, that AICTE had not approved of the course ofaction. However, that does not obviate the position that the StateGovernment is duty bound to comply with the provisions of Section 3(1)which hold the field in the State of Odisha. In this backdrop, the HighCourt was not justified in issuing a mandamus to the State Governmentin the teeth of the provisions of the statute, more particularly Section3(1).

12. We accordingly are of the view that the judgment of the HighCourt proceeds on a misconception of law and would have to be setaside. We order accordingly.

13. Having observed thus, we are still left with the problem whichnow concerns the Court-of 592 students who have taken admission underdirect entry and 243 students who have taken admission under lateralentry in the B.Tech degree courses in pursuance of the direction of theHigh Court. The Court cannot be unmindful of the impact of the Covid-19 pandemic. The number of students who actually could appear for theentrance examination is a small proportion of the total number of seatsavailable in the State. To displace such a body of students who havealready been admitted would not be in the interests of justice. Hence, inexercise of our jurisdiction under Article 142 of the Constitution, we areof the view that for the current year, the admission which has beengranted by the institutions to 592 students under direct entry and 243students under lateral entry to the B.Tech degree courses should not bedisturbed. We are passing this direction having regard to theoverwhelming hardship which has been faced during the course of theCovid-19 pandemic. The Solicitor General has fairly left an appropriatedirection in regard to the above 592 students who have already securedadmission under direct entry and 243 students who have securedadmission under the lateral entry to the discretion of this Court.

AB

C

DE

F

G

H

A14. We direct that the admission of the above students shall notbe disturbed,while setting the legal position to rest.

15. The appeal is accordingly disposed of.

16. Pending application, if any, stands disposed of.

B

Nidhi Jain

Appeal disposed of.

C

D

E

F

G

H