Orissa High Court
Odisha Private Engineering Schools' ... vs State Of Odisha And Others ... Opp. ... on 22 July, 2013
HIGH COURT OF ORISSA: CUTTACK
W.P.(C) No.14030 of 2013
In the matter of an application under Articles 226 and 227 of the
Constitution of India.
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Odisha Private Engineering Schools' Association
(OPESA), represented through its
Secretary, Er. Saroj Kumar Sahoo,
aged about 49 years,
S/o. Late Krushna Mohan Sahoo,
Regd. Office at Plot No.6/652,
IRC Village, Nayapalli, Jeydev Vihar,
Bhubaneswar, Dist: Khurda
... Petitioner
-Versus-
State of Odisha and others ... Opp. Parties
For Petitioner : Mr. B. Routray, Sr. Advocate,
Mr. Sanjit Mohanty, Sr. Advocate
M/s. D. Routray, P.K. Sahoo,
S. Das, S. Jena, S.K. Samal,
S.P. Nath, S. Rout &
S.D. Routray
For Opp. Parties : Mr. Asok Mohanty
Advocate General
Mr. V. Narasingh
Additional Government Advocate
[For O.P. Nos.1 to 3]
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P R E S E N T:
THE HONOURABLE SHRI JUSTICE B.N.MAHAPATRA
Date of Judgment: 22.07.2013
B.N. Mahapatra, J.This Writ Petition has been filed with a prayer to issue a writ of mandamus directing opposite parties, particularly, opposite party No.2- Director of Technical Education and Training, Odisha, Cuttack and 2 opposite party No.3-Chairman, Diploma Entrance Test and Director of Technical Education and Training, Odisha, Cuttack to conduct 2nd DET, 2013 and allow counseling pursuant to 2nd DET, 2013 as has been done in the previous years, i.e., 2009-10, 2010-11 and 2012-13, and in the event of vacancy that may arise after 2nd DET, the same vacant seats may be directed to be filled up at the institutional level as it has been done in the previous years, i.e., 2004 to 2009.
However, Mr. Sanjit Mohanty and Mr. B. Routray, learned Senior Advocates appearing for the petitioner have confined their prayer for a direction to opposite parties to conduct the 2nd DET as has been done in the previous years, i.e., 2009-10, 2010-11 and 2012-13.
2. Petitioner's case in a nutshell is that it is a registered association. There are 87 numbers of private Engineering Schools/Polytechnics in the State of Odisha, which have been enrolled as members of the petitioner-association. All the Engineering Schools/ Polytechnic institutions are imparting Diploma in Engineering courses duly approved by the All India Council for Technical Education (for short, "AICTE") under the AICTE Act. The number of seats of the above institutions in different Diploma Engineering Courses including Private and Government institutions comes to 32155 which include 29200 seats in respect of privately managed Polytechnic Schools. It is submitted that up to the academic session 2003-04 admission to Diploma Engineering courses both in the private and government institutions was held through 3 Central Counseling process. For the first time, from the academic session 2004-05 up to the academic session 2008-09, the admission was directed to be held through DET followed by a Central Counseling. DET, 2009 was conducted and admission was given through Central Counseling, but large number of seats remained vacant after the 1st DET. Thereafter 2nd DET was conducted by the Central Counseling for admission against the vacancy. The Diploma courses in Engineering and Non-Engineering were brought under the purview of the Orissa Act 4 of 2007 by virtue of the notification dated 18.06.2010, as a result of which admissions to all the courses both in Engineering and Non-Engineering in all the institutions were held through advertisement, Entrance Test DET, 2010 followed by other counseling. The 2nd DET was conducted as per the recommendation under Annexure-4 of the Policy Planning Body to fill up the vacant seats. During the academic year 2011-12, the AICTE, which is the apex body in respect of the Technical Educational Institutions, prescribed the eligibility norms for admission in different Diploma Engineering courses and as per the said norms a candidate is required to pass H.S.C. Examination with 35% marks.
3. Further case of the petitioner is that during the current academic year 2013-14, the AICTE issued a notification on 22.12.2012 giving a time schedule for making advertisement for conducting Entrance Test/Examination in the month of May, declaration of result of the qualifying examination and Entrance Examination, first round of 4 counseling/admission for allotment of seats, second round of counseling/ admission for allotment of seats, last round of counseling/admission and the last date for admitted the students against the vacancy for technical course including the Diploma Engineering. Pursuant to such notification of the AICTE an advertisement was issued by opposite party No.2 on 23.01.2013 wherein it was decided that the DET, 2013 is scheduled to be held on 05.05.2013 and the sale of application form starts from 22.01.2013. It is submitted that right from 2004 onwards large number of seats which have been approved by the AICTE in various Diploma Institutions, who are members of the petitioner association are lying vacant for which the 2nd DET has been conducted in the previous years i.e. 2009-10, 2010-11 and 2012-13. Therefore, there is absolutely no reason as to why opposite parties shall not be directed for holding 2 nd DET for the purpose of filling up the vacant seats after the first counseling is over.
4. Mr. Mohanty and Mr. Routray, learned Senior Advocates further submitted that during the last couple of years, it is experienced that a large number of seats are lying vacant after the 1st DET. The petitioner had approached this Court in W.P.(C) No.8331 of 2012 and the same was disposed of on 18.05.2012. The matter was carried to the Division Bench of this Court in W.A. No.250 of 2012 at the instance of the present opposite parties and the Hon'ble Division Bench of this Court vide judgment dated 11.09.2012 directed the State Government to conduct 2nd 5 Diploma Entrance Examination by relaxing the scheduled time period by publishing the same through internet inviting eligible candidates online. During the current academic session, members of the petitioner association apprehending the vacancy, approached this Court in a writ petition bearing W.P.(C) No.10929 of 2013 and the same was disposed of vide order dated 17.05.2013 directing opposite party Nos.1 and 2 to consider the grievance of the petitioner after giving opportunity of being heard within the stipulated time but though the time stipulated by this Court has already expired, no communication whatsoever has been made to the petitioner. It is understood from the reliable sources that opposite party Nos.1 and 2 have rejected the prayer of the petitioner without assigning any valid reason whatsoever.
5. It is further submitted that taking into consideration the intake capacity and considering the fact that the institutions have provided all infrastructures as well as appointed adequate number of faculty members and also laboratory facilities, the AICTE has approved the number of seats in respect of different institutions for the academic session 2013-14 and unless those seats are substantially filled up, it will not be practically possible to maintain the standard of education in such technical educational institutions and it will create undue harassment for the institutions to be viable for maintaining the standard of education in terms of the provisions provided under the AICTE Act and the Regulation framed thereunder. If there will be no 2nd DET for giving admission to the 6 vacant seats after the 1st counseling is over like the previous years, the members of the petitioner association will sustain huge loss and the State will also lose number of technical hands despite the order of approval of the AICTE.
The plea of the opposite parties taken both in the writ petition as well as writ appeal that due to shortage of time the 2 nd DET is not possible was not accepted by the Division Bench of this Court. On the other hand, this Court directed the State Authorities to make all endeavour to complete the 2nd DET by 3rd October, 2012 and thereafter by conducting counseling the admission process to the course shall be over by 12th October, 2012. Therefore, it is prayed that opposite parties should be directed to take all necessary measures by fixing the time schedule for the 2nd DET in respect of seats lying vacant after 1st counseling is over.
6. Learned Advocate General, Mr. Asok Mohanty, Senior Advocate appearing for the State submitted that (i) total number of intake of seats for the session 2013-14 is 39319; (ii) total number of candidates got Rank by appearing DET-2013 is 51752; (iii) total number of candidates got registered for counseling is 21071; (iv) number of candidates filled choices is 19830; (v) number of candidates verified documents is 16484; (vi) number of candidates locked their choices at NCCs is 16427; (vii) Candidates got allotment in 1st round prov. allotment are 15827 and (viii) number of unregistered candidates likely to participate in Vacancy round is 30681. It was submitted that final 7 allotment against the 1st DET shall be over on 29.07.2013 and also final allotment in respect of 2nd round counseling will be over on 14.08.2013. As per the advertisement, there is no scope to conduct any admission beyond 15th August, 2013. The representation of the petitioner-association under Annexure-12 has been duly considered and disposed of under communication dated 22.06.2013. Referring to the judgment of the Hon'ble Supreme Court in the case of Parshvanath Charitable Trust and others vs. All India Council for Technical Education and others, (2013) 3 SCC 385, it is submitted that the admission into academic courses should start by 1st August of the relevant year. The seats remaining vacant should again be duly notified and advertised and the seats should be filled up positively by 15th August after which there shall be no admission for any reason or ground. In view of the above judgment of the Hon'ble Supreme Court, it is no longer open to the petitioner to place reliance on the order of this Court in writ appeals in the changed scenario. There is no scope to conduct any admission beyond 15th August, 2013.
7. Mr. A. Mohanty, learned Advocate General referring to the counter affidavit submitted that in terms of the order passed by this Court, the counseling schedule of first phase has been extended upto 29 th July, 2013 and the students have been advised to report at the allotted institutions from 29th July to 1st August, 2013. In terms of the schedule notified by the AICTE in consonance with the direction of the Hon'ble Supreme Court the vacancy round counseling has to be completed by 15th 8 August, 2013. Therefore, it is not feasible to conduct 2nd DET before 15th August.
8. It is further submitted that this Court in its order dated 11.09.2012 in W.A. No.249 of 2012 has upheld the power of the State for conducting Entrance Examination for admission to DET. As per the corrigendum published to the advertisement at Annexure-7 it was stated that the admission to be conducted in centralize manner and the institution level admission has not been permitted.
9. On the rival contentions of the parties the only question falls for consideration by this Court is as to whether it is just and proper to issue a direction to the opposite parties to conduct 2nd DET, 2013 and allow counseling to be made pursuant to 2nd DET as has been done in the previous academic years i.e. 2009-10, 2010-11 and 2012-13.
10. Undisputedly, after first counseling of DET-2013, a good number of seats are lying vacant. According to the petitioner, number of seats lying vacant are 60% of the total intake capacity approved by the AICTE. According to the State, number of seats remaining vacant after candidates got allotment in 1st round provisional allotment is 23492. Be that as it may, it is not in dispute that in the preceding years, i.e., 2009- 10, 2010-11 and 2012-13 after 1st DET a large number of seats were found vacant and considerable number of seats were filled up subsequently through 2nd DET. There cannot be a denial to the fact that neither the institutions nor the State Government nor any student will be 9 gainer, if some seats are left to remain vacant in the technical institutions in question. There also cannot be any denial to the fact that if through the 2nd DET some of the seats can be filled up then it will be beneficial to all concerns.
11. The next question arises as to whether at this juncture it is advisable to go for 2nd DET as prayed for by the petitioner-institution.
12. At this juncture, it will be beneficial to refer to the order of this Court dated 11.09.2012 passed in W.A. Nos.249 and 250 of 2012. Paragraph-11 of the said order is as follows:
"11. Having answered the first point in favour of the appellants, it is necessary to consider point Nos.2 and
3. It is an undisputed fact that nearly about 15, 053 seats in the Diploma Engineering Course are vacant. It is also a fact that the admission is already over and classes have already commenced. But having regard to the fact that large number of students who could not be able to participate in the examination though they have s cured more than the prescribed qualifying marks and might have come out successful in the entrance examination, if taken, may loose one academic year which is most previous for the students community, and keeping the seats vacant for an academic year will also be a national waste, to do complete justice to the parties, it would be appropriate for this Court while setting aside the impugned order in exercise of its extra ordinary jurisdiction, and having regard to Section 9(6)(b) of the 2007 Act, which has rightly been interpreted by the learned Advocate General with reference to sub-Sections (3), (4), (5) and (6) of the Act, to direct that a second entrance examination be conducted by the first appellant to fill up the seats. We cannot give direction to the Policy Planning Body as the constitutional validity of the Act, 2007 is pending consideration before the apex Court, but certain provisions have not been stayed. Therefore, the Policy Planning Body has determined the eligibility 10 criteria, conduct of examination and process of selection etc. to fill up the seats. Learned Advocate General submits that as the permission to the PPB for doing this is only for a limited period and that period is over, appropriate direction may be given to the State Government the first appellant herein. Having regard to the submissions made by the learned Advocate General, we give the following directions to the first appellant while setting aside the impugned order of the learned Single Judge."
It may be relevant to note here that Section 9(6)(b) of the Act, 2007 provides that if the seats remain vacant a 2nd JEE may be conducted.
13. Keeping in view the decision of this Court referred to above, provision of Section 9 (6)(b) of the Act, 2007 and that for the academic session 2009-10 and 2010-11 the 2nd DETs were conducted by the opposite parties to fill up the vacant seats and that a substantial number of seats are lying vacant after candidates got allotment in 1st round provisional allotment pursuant to 1st DET, 2013, this Court for the benefit of all concerns, thinks it proper to direct opposite parties to hold the 2nd DET. However, the entire admission process of the 2nd DET shall have to be completed by 15th August, 2013 in view of the judgment of the Hon'ble Supreme Court in the case of Parshvanath Charitable Trust (supra).
14. I would make it clear that the students who have appeared in the 1st Entrance Examination, 2013 shall be permitted first for registration and choice filling from any computer with internet logging into www.detodisha.com. Thereafter, only the students appearing in 2nd DET 11 shall be permitted to go for registration and choice filling from any computer. The schedule for conduct of 2nd DET, 2013 and admission counseling for both category of candidates, i.e., candidates already appeared in 1st DET, 2013 and opted for 2nd round e-counseling and the candidates appearing in 2nd DET, 2013 is given below:
Conduct of 2nd DET 2013 Entrance Test Sl. Particulars 2nd DET 2013 Remarks No.
1. Submission of Online application 24.07.2013 to from any computer with internet 26.07.2013 facility and deposit of examination fee Rs.300/-
2. Availability of Admit Card and 27.07.2013 Centre List in the Website (After 5 PM)
3. 2nd Diploma Entrance Test-2012 29.07.2013 (Non-Engg. :2 PM - 4.30 PM)
4. Result Publication (After 5 PM) 01.08.2013 Admission counseling Schedule of 1 DET-2013 (2nd round) st and 2nd DET-2013
1. Registration and Choice filling 02.08.2013 & For candidates from any computer with internet, 03.08.2013 appearing in 1st DET-
logging into www.detodisha.com 2013 and opted for 2nd round e-counseling 04.08.2013 & For the candidates 05.08.2013 appearing in 2nd DET-
2013
2. Deposit of counseling fee of 04.08.2013 to Rs.200/- document verification 06.08.2013 and choice locking at the Nodal Centre for counseling (NCC)
3. Result Publication (after 3 PM) 07.08.2013
4. Deposit of admission fee through 08.08.2013 to AXIS Bank Chalan/NEFT mode 12.08.2013
5. Final Allotment 14.08.2013
6. Reporting of candidates at finally 14.08.2013 to allotted institute 15.08.2013 12
15. Ideally this will be the schedule, but taking into convenience of the opposite parties, they may change the schedule however, without affecting the outer limit fixed in this judgment.
16. With the above observations and directions, the writ petition is allowed to the extent indicated above.
In view of the urgency and paucity of time, urgent certified copy of this judgment be granted on proper application in course of the day and free copy of this judgment be handed over to learned counsel for opposite parties for compliance.
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B.N.Mahapatra, J.
Orissa High Court, Cuttack Dated 22nd July, 2013/skj/ss/ssd