Orissa High Court
Kaminikanta Patnaik, Smt. Suprita ... vs State Of Orissa on 27 February, 2002
Equivalent citations: 2002CRILJ3433, 2002(I)OLR457
Author: M. Papanna
Bench: M. Papanna
JUDGMENT M. Papanna, J.
1. Criminal Misc. Cases Nos. 6133/2001, 6134/2001 and 7016/2001 initiated on the applications under Section 438, Cr.P.C. put in by petitioners, namely, Kaminikanta Patnaik, Smt. Suprita Patnaik, Pramod Kumar Sahoo, Pradipta Kumar Nayak, Dinabandhu Pani and Satyabrata Das, respectively, seeking pre-arrest bail in connection with Sahidnagar P.S. Case No. 243/2001 corresponding to G. R. Case No. 2343/2001 under Sections 465, 468,477-A, 420 and 420-B/34, I.P.C. 'now subjudice before the learned S.D.J.M., Bhubaneswar are being disposed of by this common order though heard separately.
2. At Bhubaneswar there is a private Engineering College by name Orissa Engineering College where petitioner Kaminikanta Patnaik happens to be its President and Director of Admissions whereas petitioners Smt. Suprita Patnaik, Pradipta Kumar Nayak, Dinabandhu Pani and Satyabrata Das happen to be the Addl. Administrative Officer, Legal Assistant, Accountant, Senior Assistant and admission-in-charge, respectively, who, in collusion with each other are alleged to have committed certain illegal actions such as seat blocking, illegal admission of students in the College by infringement of rules of admission and admitting the students securing less than 60% of aggregate marks, thereby committing fraud and forgery by manipulation and interpolation of documents in connection with which Shri L. N. Behera, Deputy Superintendent of Police, C.I.D., Orissa, Cuttack conducted an enquiry and submitted his report to the effect that during the academic session 2000-2001 there was much discrepancy and hobnobbing of things in the admission of students in the aforesaid College and that one Amit Kumar Pradhan who had rank No. 13703 was sponsored by the Joint Entrance Examination (for short "J.E.E.") during counselling to take admission in Civil Engineering in a payment seats but he was admitted in T/C and Electronics Engineering without the knowledge of the Chairman, J.E.K., D.T.E and T as well as the Government and a candidate Asamajasya Mohapatra by name was admitted in the College in lieu of non-resident Indian (for short "N.R.I.") from open market and that a candidate Sudeep by name was admitted from open market though he was not sponsored by J.E.E. and that in Electronics and Telecommunication the J.E.E. had sponsored 86 candidates for the academic session 2000 during counselling but the Director, Kaminikanta Patnaik admitted 8 1 students out of 86 by dropping 5 candidates from the J.E.E. panel, thereby admitting 4 K.R.I, students from the open market -in their places beyond J.E.E. panel. No relevant document including transfer certificates could be produced by Orissa Engineering College as regards non-admission of five candidates sponsored by the J.E.E. The Director also admitted one Amit Kumar Pradhan in Electronics Engineering branch though he was already admitted in Civil Engineering during counselling by J.E.E. as per his own option. As against in-take capacity 90 in Computer Science Engineering 86 candidates were sponsored by the J.E.E. but as per the role sheet given by the Director of O.E.C.it was found that only three seats were reserved as per the orders of this Court. Practically, the Director admitted 85 students including four N.R.Is. In lieu of N.R.I, (not sponsored by J.E.E.) and three other candidates, namely, Smrutiranjan Sahoo, Biswajit Mishra and Bijaya Kumar Pani, who are not sponsored by the J.E.E. during counselling thereby creating excess against in-take capacity. During the academic session 2000 altogether ten J.E.E. sponsored candidates in different branches did not take admission. They have individually filed affidavits mentioning their problems for not taking admission. They were asked to leave the payment seats and thereby paving way for the management to earn huge amount of money by giving these seats to non-J.E.E. candidates later on. The draft, amount of Rs. 25,000/- against the payment seats deposited by these candidates during admission through J.E.E. counselling were prepared by the staff of the College and handed over to them for deposit. Later on that money was paid to them to leave the seats to be filled in by the Director to earn huge amount of money in shape of donation by accepting the candidates from the open market violating the norms of A.I.C.T.E. and guidelines of the Hon'ble Supreme Court.
3. The enquiry report also revealed that the students who left their seats mentioned in their applications that due to the personal problems they did not report at the College. In such a case they are to be treated as dropped put students and money deposited by them during admission by J.E.E. counselling should have been refunded to them. But there was no document available in the institution in this regard. This process is followed in Government Engineering Colleges but not in private professional Colleges. On the date of counselling by the J.E.E. the candidates are given separate dates deliberately to report at their respective colleges for taking admission. This paves the way for the management of private professional colleges particularly the Orissa Engineering College for bargaining to earn money by admitting dummy candidates out of J.E.E. panel which amounts to forgery in admission. It is also alleged that the guidelines of the Hon'ble Supreme Court are not being followed by the petitioner in the Orissa Engineering College in admissions of students. The management of Orissa Engineering College is taking 5% of the candidates of the in- take capacity in particular branch as N.R.I. This provides opportunity to the management to fill up seats by candidates from open market having secured 45% of marks and thereby earning a huge amount of money from them. The petitioner by adopting forgery in the above manner in admission by seat blocking in O.E.C. in each branch earned a huge amount of money which is actionable under the Criminal Law for which the D.S.P. Crime Branch reported to the Superintendent of Police, C.I.D., Orissa. Cuttack to take action against the present petitioners. Accordingly, Sahindnagar P.S. Case No. 243/2001 has been registered against the petitioners and on completion of investigation, the prosecuting agency lodged charge sheet against the accused persons including the present petitioners.
4. In course of hearing, Shri Umakanta Nanda, learned counsel appearing for the petitioner Kaminikanta Patnaik, addressed this Court with the contentions that the Orissa Engineering College is governed by the provisions of All India Council of Technical Education Act (for short "AICTE ACT"), rules, norms, standards .and guidelines issued thereunder. The State Government has "absolutely no role to play so far as the establishment and management of Orissa Engineering College, Bhubaneswar is concerned and that being so, the Orissa Education Act has substantially no application to the said College. Shri Pramod Kumar Sahoo, one of the above named petitioners, under coercion and duress of some miscreants, lodged an F.I.R. in Sahidnagar P.S. on 16.2.2000 and also students concerned moved this Court for obtaining direction to regularise admission in the college by filing O.J.C. Nos. 2073/ 2000, 2074/2000 and 2075/2000 in which the petitioner filed his counter affidavits disclosing the truth and praying for an enquiry through the C.B.I and ultimately all the writ petitioners were withdrawn. It has been contended on bahalf of Kaminikanta Patnaik that no student securing less than 60% of marks in aggregate in Physics, Chemistry and Mathematics was admitted at any point of time in lieu of N.R.I, quota and as per circular of AICTE. According to him some students who secured more than 60% of marks in aggregate got admitted into the College against N.R.I, quota and against vacant seats notified after expiry of 15 days of the cut-off date as observed in the judgment of the Supreme Court in different cases. It is further contended on behalf of the petitioner that neither violation or infringement of admission Rules was ever made by the petitioner at the time of admission nor the petitioner had allowed any associate or officer of the College to adopt such practice. Some students who are not N.R.I. were admitted only because the Government allowed by a notification to admit non-N.R.I. against N.R.I, quota to fill up the seats under the particular category. Whatever admission have been made after cut-off date pursuant to guidelines given by the Hon'ble Supreme Court, it was filed up with the candidates whose names' are found place in the J.E.E. list. Learned counsel for Kaminikanta Patnaik has further argued that though there are no materials or iota of evidence forthcoming regarding seat fixing, illegal admission by infringement of rules of admission and admission made in excess of the quota and that too students securing less than 60% of marks in aggregate yet on the pressure of the Government Chief Whip and a dozen of his friends the police has illegally registered the aforesaid case only to please the political leaders. The learned counsel Shri Nanda for the petitioner also urged that no offence has been committed by the petitioner as the ingredients of the offences under Sections 420, 477, 471 and 120-B/34, I.P.C. are not attracted and that being so the petitioner who is apprehending his arrest by the police in connection with the above cases should be admitted to bail under Section 438, Cr. P.C
5. Shri Umakanta Nanda has also contended on behalf of petitioner Smt. Suprita Patnaik that as Addl. Administrative Officer she is looking after the day to day management of the office on the administrative side, whereas the academic side of the College is looked after by the Principal who is also the Member- Secretary of the Governing Body as per the A.I.C.T.E. Rules and that being so the petitioner Suprita Patnaik has no role to play regarding selection and admission of students. Above all, she is innocent of the allegations levelled against her, She is not at all accountable, liable and responsible for any wrong if done by the management or by the Governing Body for which she'is entitled to be granted pre-arrest bail or else her prestige would at a stake.
6. Similarly, the learned counsel appearing for Pramod Kumar Sahoo and Ors. contended that the petitioners have never committed any offence or forgery by manipulating the documents during admission in the academic session, 2002, for the purpose of seat blocking as alleged by the prosecution.
7. Shri S. Pradhan, learned Addl. Standing Counsel appearing for the State, on the other hand, has contended that the Engineering College in question is required to be guided in the management of its affairs including admission of students in the institution and collection of fees etc. from them by. the guidelines given by the State Government as well as the authority conducting Joint Entrance Examination and the Rules issued by the All India Council for Training and Education and the Director, Technical Education and Training, Orissa, Cuttack. According to him by adopting unfair means in the admission of students in the College, the petitioners have committed fraud, cheating, forgery of documents by manipulation and interpolation of documents with an oblique motive to earn huge amount of money. During enquiry, as per his contention, no records regarding admission of fifteen candidates sponsored by the J.E.E. during the academic session 2000-2001 in different disciplines in the College are available about which the petitioners did not intimate to the authorities and that apart, giving wrong information to the D.T.E.T. regarding vacant seats the petitioner is suppressing the facts which amounts to an offence under Section 415, I.P.C. As regards admission of students of N.R.I, against 25% reservation meant for them, no applications wero called for nor any advertisement was made in this regard and instead, showing non-availability of N.R.I, candidates, the management of the College admitted candidates from the open market and thereby committed illegality. According to him, in case of the non-availability of N.R.I, candidates, the vacant seats are to be filled up from the J.E.E. panel. In view of the allegations made in the enquiry report submitted by the D.S.P., Shri Behera, Crime Branch, Orissa, Cuttack, the learned Addl. Standing Counsel, Shri Pradhan, opposed the applications for pre-arrest bail moved by the petitioners.
8. . Therefore, in view of the aforesaid contentions raised by the learned counsel for the parties, I am called upon to adjudicate the applications for pre-arrest bail keeping in mind the facts and circumstances of the case as well as the case laws relied upon by the learned counsel Shri Umakanta Nanda, for the petitioners.
9. Shri B. L. Hansaria, the then Chief Justice of this Court and his companion Judge (Hon'ble R. K. Patra, J.) while disposing of O.J.C. No. 3254/91 in the case of Sanjaya Memorial Institute of Technology, Ankushpur v. State of Orissa and Ors., have held that the legislative entries have to be liberally construed and all the entries must be allowed to operate in their own fields without transgressing into the area of the other and whether such a position would seem to prevail with pith and substance of the enactment shall be looked into to decide what did it really seek to do. Not only this, legislative power carries with it all ancillary and subsidiary powers also. There is a hue and cry in the State of Orissa with regard to mismanagement of Orissa Engineering College, Bhubaneswar. To prevent the alleged mis-management of this technical institution, the State Government directed the Crime Branch to conduct enquiry and submit report and accordingly, on the enquiry report submitted by a D.S.P., Crime Branch the present case has been instituted against the petitioners. Now the question arises, if the Orissa Education Act applies to the technical institutions like Orissa Engineering College and many other institutions for technical education. No doubt, to prevent mismanagement of technical institutions, All India Council for Technical Education Act as well as the Orissa Education Act can co-exist and there is no repugnancy. But, however, the State Government cannot frame any Rule or Scheme, provisions or issue instructions in conflict with the scheme formulated in the famous case of Unni Krishnan J.P. and Ors. etc. v. State of Andhra Pradesh reported in A.I.R. 1993 Supreme Court 2178. In the reported case, a view has been taken by their Lordships as follows :
"A private educational institution either by recognition or affiliation to the University could not ever be called an instrumentality of State. Recognition is for the purposes of conforming to the standards laid down by the State. Affiliation is with regard to syllabi and the course of study. Unless and until they are in accordance with the prescription of the University, degrees would not be conferred. The educational institutions prepare the students for the examination conducted by the University. Therefore, they are obliged to follow the syllabi and the course of the study."
It has also been further observed therein as follows :
"Even if it is held, for any reason, that a person has no right to establish an educational institution as a business venture, he has at least the right to establish a self-financing educational institution. Such an institution may also be described as an institution providing cost- based education. This means that it is open to a person to collect amounts from willing parties and establish an institution to educate such persons or their children as the case may be. Even in an established institution, the fees that may be collected from the students must be such as not only to defray the expenditure of running the institution but also for improvement, expansion, diversification and growth. In such institution the quantum of the fees to be charged should be left to the concerned institutions."
In the said case, their Lordships have also observed as follows :
"It is simply not possible for the private educational institutions to survive if they are compelled to charge only that fee as is charged in Governmental institutions. The cost of educating an engineering or a medical graduate is very high. All that cost is borne by the State in Governmental colleges but the State does not subsidise the private educational institutions. The private educational institutions have to find their own finances and that can come only from the students."
It is also profitable to quote the observation of their Lordships made in the reported case as follows :
"As far as un-aided institutions are concerned, it is obvious that they cannot be compelled to charge the same fee as is charged in Governmental institutions. If they do so voluntarily, it is perfectly welcome but they cannot be compelled to do so, for the simple reason that they have to meet the cost of imparting education from their own resources and the main source, apart from donations/ charities, if any, can only be the fees collected from the students. It is here that the concepts of 'self-financing educational institutions' and 'cost-based educational institutions 'come in. This situation presents several difficult problems. How does one determine the 'cost of education and how and by whom can it be regulated ? The cost of education may vary, even within the same faculty, from institution to institution."
10. Hon'ble Apex Court has provided guidelines to regulate admissions in the technical institutions which have been running in the Country. In such professional institutions at least 50% of the seats shall be filled up by the nominees of the Government or University, as the case may be (hereinafter referred to as 'free seats"). The students shall be selected on the basis of merit determined on the basis of a common entrance examination where it is held or in the absence of an entrance examination, by such criteria as may be determined by the- competent authority or the appropriate authority, as the case may be. Their Lordships emphasised to have a common entrance examination for regulating admission to these colleges/institutions as is done in the State of Andhra Pradesh. The remaining 50% seats (payment seats) shall be filled by those candidates who are prepared to pay the fee prescribed there for and who have complied with the instructions regarding depqsit and furnishing of cash security/Bank guarantee for the balance of the amount. The allotment of students against payment seats shall also be done on the basis of inter se merit determined on the same basis as in the case of free seats. There shall be no quota reserved for the management or for any family, caste or community which may have established such college. The criteria or eligibility and all other conditions shall be the same, in respect of both free seats and payment seats. The only distinction shall be the requirement of higher fee by the 'payment students'.
11. It is profitable to quote from the aforesaid decision like this :
"After making the allotments, the competent authority shall also prepare and publish a waiting list of the candidates along with the marks obtained by them in the relevant test/examination. The said list shall be followed for filling up any casual vacancies or 'drop out' vacancies arising after the admissions are finalised. These vacancies shall be filled until such date as may be prescribed by the competent authority. Any vacancies still remaining after such date can be filled by the Management."
12. Therefore, it is apparent that the aforesaid Central Act will have the jurisdiction over the technical institutions and after the same came into being, the provisions of the University Act will not be enforceable in case of technical institutions like Engineering Colleges. This view has been taken in the case of State of Tamilnadu and Anr. v. Adhiyaman Educational and Research Institute and Ors. reported in (1995) 4 Supreme Court Cases 104.
13. The Hon'ble Apex Court while disposing of the Review Petition Nos. 483/93, 524/93 in WP (C) and number of such other petitions in the case of Unnikrishnan P.J. etc.etc. v. State of Andhra Pradesh and Ors. etc. passed the following order modifying its judgment dated February 4, 1993 in Writ Petition (C) No. 607/92 as follows :
"The scheme framed by this Court in its judgment dated February 4, 1993 in Writ Petition.(C) No. 607 of 1992 connected matters is modified to the following extent only:
It shall be open to the professional college to admit 'non-resident Indian students' to the extent of only five per cent of their total intake far a given year. By way of illustration if the permitted intake of a professional college is 100 for a given year, 50 seats out of it will be free seats and other 50 seats will be seats on payment. The five seats for Non-resident Indian students shall be out of 50 payment seats. The Non-resident Indian students shall be admitted on the basis of merit. But in view of different backgrounds they come from it is for the management of the college concerned to judge the merit of these candidates, having regard to the relevant factors. The fees payable by such students shall be as may be prescribed by the Committee referred to the Clause (6) of the Scheme.
The Non-resident Indian Students admitted against these seats need not however take the entrance examination, if any, prescribed for admission to that course."
14. After going through the case laws cited above, I am of the considered view that the Orissa Engineering College, Bhubaneswar which has been subjected to the guidelines provided by the Apex Court cannot go beyond the norms or standards fixed by All India Council for Technical Education Act. At this stage, when the Crime Branch on completion of investigation of the case submitted charge sheet against the petitioners, I am slow in holding whether or not the petitioners are liable under the Indian Penal Code for the actions alleged to have been illegally committed by them.
15. But, however, in the facts and circumstances of the case and in the light of the decisions quoted above, I am inclined to direct that if the petitioners appear before the learned S.D.J.M., Bhubaneswar on or before 6.3.2002 and move for bail in the aforesaid case, the learned S.D.J.M. shall admit them to bail on their furnishing bail bonds for Rs. 10,000/-(Rupees ten thousand) each with one surety each for the like amount to his satisfaction and they shall not be arrested on the strength of the N.B.W. if issued against them till 6.3.2002.
All the Criminal Misc. Cases are disposed of accordingly.
Urgent certified copy of this order be granted on proper application.