Orissa High Court
Odisha Management Colleges ... vs State Of Odisha And Others ... Opp. ... on 29 July, 2013
HIGH COURT OF ORISSA: CUTTACK
W.P.(C) No.14622 of 2013
In the matter of an application under Articles 226 and 227 of the Constitution
of India.
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Odisha Management Colleges Association (OMCA)
represented through its
Secretary, Mr. Pratap Kumar Balabantaray,
aged about 35 years,
S/o. Sri Kalpataru Das,
Qtr. No.7-C/3, Unit-I, P.S. Capital,
Bhubaneswar, Dist: Khurda
... Petitioners
-Versus-
State of Odisha and others ... Opp. Parties
For Petitioner : M/s. B. Routray, Sr. Advocate,
P.K. Sahoo, S. Das, S. Jena,
S.K. Samal, S. Rout &
S.D. Routray
For Opp. Parties : Mr. S. Palit
[For O.P. No.2-OJEE]
Mr. J.K. Mishra, Sr. Advocate
[For O.P. No.5-AICTE]
Mr.A.K. Mohapatra
[For O.P. No.4-BPUT]
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P R E S E N T:
THE HONOURABLE SHRI JUSTICE B.N.MAHAPATRA
Date of Judgment: 29.07.2013
B.N. Mahapatra, J.The writ petition has been filed with a prayer to issue a writ in the nature of mandamus or any other appropriate writ/writs, order/ orders, direction/directions directing the opposite parties, particularly, 2 opposite party No.1-State of Odisha, represented through its Commissioner-cum-Secretary, Employment, Technical Education and Training Department, Odisha, Bhubaneswar and opposite party No.2- Chairman, Odisha Joint Entrance Examination, OJEE Cell, Gandamunda, Khandagiri, Bhubaneswar, Khurda to allow the members of the petitioner- association to give admission to the students in five years dual Management Degree, i.e., Master in Applied Management (MAM) course for the session 2013-14 in respect of the seats approved by the AICTE.
The second prayer of the petitioner is for a direction to the opposite parties to take all actions keeping in view the norms prescribed by the AICTE in its letter dated 08.04.2013 and to make all endeavour to fill up those seats in five years dual Management degree i.e. Master in Applied Management course for the academic session 2013-14 and to allow those students to prosecute their study in the said Applied Management course.
2. In course of hearing, Mr. B. Routray, learned Senior Advocate appearing for the petitioner confined his argument to the second prayer and did not press the first prayer.
3. Mr. Routray, learned Senior Advocate for the petitioner submitted that the petitioner is an association of Management Colleges out of which four numbers of Management Colleges have got approval of AICTE on 08.04.2013 for the course of MAM for the academic session 2013-14. The names of the four institutions are given hereunder:
(i) Srusti Academy of Management,
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(ii) Capital Institute of Management,
(iii) Rajdhani College of Engineering and Management, and
(iv) Biju Pattnaik Institute of Information and Technology. Mr. Routray further submitted that the aforesaid colleges had applied to the AICTE for grant of approval of 60 number of seats in each of the Institutes to the course, i.e., five years dual management degree in Masters in Applied Management which is one of the management course. The AICTE has accorded approval of 60 number of seats in each of the aforesaid institutions and thus, total 240 number of seats (60 in each) were approved by the AICTE. While granting approval for opening of MAM course for the academic session 2013-14, opposite party No.5-AICTE has stipulated conditions that the admission in 2013-14 shall be effected on the basis of marks obtained at 12th Standard through a separate merit list created for the purpose based on Science Stream 20 seats, Commerce stream 20 seats and Arts stream 20 seats. In clause 11.4 (b) of the AICTE Hand Book for the year 2013-14 similar conditions have been stipulated. Despite approval of the AICTE to give admission in 2013-14 on the basis of the marks of 12th class, the OJEE did not carry out the same. The OJEE decided that to get admission to MAM Course, the students have to pass OJEE-2013. Only 15 number of students have qualified the OJEE, total number of seats available is 240 and if such procedure adopted by the OJEE will continue, the management will suffer huge loss. As per direction of the Hon'ble Supreme Court in the case of Parshvanath Charitable Trust 4 and others Vs. All India Council for Technical Education and others, (2013) 3 SCC 385, the admission is to be completed by 15th of August, 2013. Hence, it is prayed that the OJEE should be directed to allow the admission to the aforesaid courses on the basis of the marks obtained at 12th Standard through a separate merit list keeping in view clause 11.4(b) of the AICTE Hand Book for the year 2013-14 and clause 3 of the approval order.
4. Mr. S. Palit, learned counsel for opposite party No.2-OJEE submitted that the Hon'ble Supreme Court in the case of T.M. Pai Foundation vs. State of Kerala, (2002) 8 SCC 481 laid down the principles that the admission and its procedure is to be fair, transparent and non- exploitative. The State can provide a procedure for holding a Common Entrance Test in the interest of securing fair and merit - based admission and preventing mal-administration. In support of his above contentions, Mr. Palit also relied upon the decision of the Hon'ble Supreme Court in the case of P.A. Inamdar vs. State of Maharashtra, (2005) 6 SCC 537 and Orissa Professional Educational Institutions (Regulation of Admission and Fixation of Fee) Act, 2007 (for short, "Act, 2007"). Mr Palit submitted that the Act, 2007 also includes Masters Degree in Management course. Referring to Sections 3 and 11 of the Act, 2007, it was submitted that the single window system means centralized system for admission administered by the Policy Planning Body. "JEE" means entrance test conducted by the Policy Planning Body for all professional educational institutions for determination of merit of the candidates followed by 5 centralized counseling for the purpose of admission to such institutions through a single window system. Admission made in violation of the provisions of the Act, 2007 and Rules framed thereunder shall be invalid. Clause 11.4(b) of the AICTE Approval Process Hand Book has been harmoniously construed in the OJEE brochure with law laid down by the Hon'ble Supreme Court. Separate merit list means the merit list prepared by the JEE in the three streams i.e., Science, Commerce and Arts. OJEE ranking is a pre-requisite. The AICTE has never said that it is only basing on marks, because the three streams have different subjects, different syllabuses and different combination of papers. Merit cannot be evaluated unless a Common Entrance Test is conducted to prepare a separate merit list for the different streams concerned so as to carve out a procedure for admission from different streams. The petitioner has mis-interpreted the said clause only to mislead this Court. The petitioner-association has filed this writ petition at a belated stage. Therefore, they are not entitled to any relief as prayed for in this writ petition.
5. Placing reliance upon the judgment of the Hon'ble Supreme Court in the case of Visveswaraya Technological University vs. Krishnendu Haldar, AIR 2011 SC 1429, Mr. Palit argued that the need to fill up seats cannot be permitted to override the need to maintain quality of education. Further placing reliance upon the judgment of the Hon'ble Supreme Court in the case of Mahatma Gandhi University vs. Jikku Paul, AIR 2011 SC 3543, it is submitted that "the State prescribing criteria of securing 6 minimum marks in entrance test in addition to basic qualification prescribed by the AICTE - Diploma - holders has to fulfill both criteria for securing admission. Mr. Palit further submitted that determination of such standards, being part of the academic policy of the University, are beyond the purview of judicial review, unless it is established that such standards are arbitrary or will adversely affect the standards, if any, fixed by the Central Body under a Central enactment. OJEE authorities are bound by Section 3 of the Act, 2007 which prescribes for Centralizing Counseling, the product of which is a Rationalized Merit List. Comparative merits of all the candidates are judged by making their appearance in one examination. Selection on mark basis is the interpretation sought to be put by the petitioner which is contrary to the concept of transparent merit based admission, since students at +2 level come from different sources i.e. different Boards for examination i.e. CBSE, ICSE and CHSE, Orissa etc. Therefore, there should be common parameter to assess the merit. The logical interpretation of AICTE approval is that while the 1st part prescribes the basis i.e. Common Entrance Test, the 2nd part gives the proposition and modality. The interpretation of the AICTE approval is to be made so as to keep it in tune with the law of the land.
6. Placing reliance upon the judgment of the Hon'ble Supreme Court in the case of Bharthidasan University and another vs. All India Council for Technical Education and others, AIR 2001 SC 2861, Mr. Palit submitted that anything contrary to law of the land is to be simply ignored. 7
7. Mr. J. K. Mishra, learned Senior Advocate appearing for the AICTE submitted that Section 23 of the AICTE Act, 1987 confers power to AICTE to make regulations generally to carry out the purposes of AICTE Act, 1987 and without prejudice to the generality of such power, the council may also frame regulations to provide various matters as provided under Section 22(3) of the AICTE Act, 1987. In exercise of its powers conferred under sub-section (I) of Section 23 read with Sections 10 and 11 of the AICTE Act, 1987 (52 of 1987); AICTE in supersession of previous regulations for the academic sessions 2010-11, 2011-12 and 2012-13 made the latest regulations called All India Council for Technical Education (Grant of Approval for the Technical Institutions) Regulations, 2012 for the academic session 2013-14 notified in the Gazette of India on 27th September, 2012. Soon after publication of such Regulations in the official gazette it was widely circulated to all the Secretaries of the concerned branches functioning under all the State governments and Union Territories as well as all the Regional Branches of AICTE throughout the country followed with publication in the national as well as regional News papers across the nation and was made available in the web-portal of AICTE immediately. Clause 11 of the Chapter II of Approval Process Hand Book, 2013-14 describes the procedure for approval for dual degree courses in Management. Under clause 11, there are 4 sub-clauses i.e. clause 11.1 to 11.4. Under clause 11.4, the student's eligibility for admission and procedure for admission have been prescribed. In view of the provisions 8 contained in clause 3 of the approval order, the petitioner-association or any of its member -institution/s do not have any right to give admission to the students in respect of the vacant seats at the Institution Level, since there are no such norms prescribed by AICTE. It is only the State/UT admission authority which shall effect such admission for 5 years dual degree course in Management, which is authenticated under clause 11.4 of Chapter -II of Approval Process Hand Book 2013-14. Mr.Mishra, learned Senior Advocate for the AICTE submitted that as per condition No.3 of approval letter, the admission in 2013-14 shall be made on the basis of marks obtained at 12th standard through a separate merit list created for the purpose by the OJEE.
8. Mr. A. Mohapatra, learned counsel appearing for opposite party No.4-BPUT submitted that neither any of the affected/aggrieved students has approached this Court nor has the association given any detail regarding any such students who are adversely affected. Therefore, the present writ petition is not maintainable.
Clauses 3 and 4 of the approval letter are to be read and construed simultaneously and harmoniously. The net result would be that the OJEE is the competent admission authority and where there are more students than the approved seats available in the State, the OJEE shall give primacy to the ratio given in clause 3 and marks obtained by student in 12th standard.
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In view of the provision contained in Section 3 of the Act, 2007, the students admitted through OJEE and approved by the State Government are valid and as such BPUT is bound to admit and register such students in its system who have come through OJEE only.
9. On the rival contentions, the only question that falls for consideration by this Court is as to whether it would be appropriate to issue any direction to opposite party Nos.1 and 2 to allow 4 Management Colleges of the petitioner-association to give admission to students in 5 years dual management degree, i.e., Master of Applied Management (MAM) Course for the academic year 2013-14 in respect of the seats approved by AICTE as per the norms prescribed by the AICTE in its approval order dated 8.4.2013 issued in favour of four academic institution separately ?
10. To deal with the above question, it is necessary to extract here the norms prescribed by AICTE in its approval order dated 8.4.2013 issued in favour of academic institutions. Paragraphs 3 & 4 contain the norms prescribed by the AICTE for the purpose of giving admission to MAM course in its approval order dated 8.4.2013 which are extracted below:
"3. Admission to these courses shall be based on scores at the Common Aptitude test. However, the admissions in 2013-2014 shall be affected on basis of marks obtained at 12th through a separate merit list created for the purpose based on the following :
Science stream Commerce Stream Arts Stream
20 seats 20 seats 20 seats
In case of non-availability of students from one steam, remaining seats, may be allotted to other two streams on equal basis. In case of non-availability of students 10 from two streams, remaining seats in those streams may be allotted to students from third stream.
4. The State/UT admission authority shall effect the admission of this course."
11. A plain reading of the provisions contained in paragraph 3 extracted above makes it clear that admission to MAM course shall be based on the scores at the common aptitude test. An exception has been provided for admission in 2013-14, i.e., the admission for the year 2013-14 shall be effected on the basis of marks obtained at 12th standard through a separate merit list created for the purpose basing on the conditions made therein. However, an attempt is made by opposite party No.2-OJEE and opposite party No.4-BPUT that if clauses 3 and 4 of the said letter are to be read simultaneously and harmoniously, the net result would be that OJEE is the competent admission Authority and where there are more students than the approved seats available in the State, the OJEE shall give primacy to the ratio given in Clause-3 and marks obtained by the students in 12th standard. To strengthen their above view, reliance has been placed on the decision of the Hon'ble Supreme Court in the case of T.M. Pai (supra) and P.A. Inamdar (supra) and the provisions of the Act, 2007 to demonstrate that the admission and its procedure are to be fair, transparent and non- exploitative and for this purpose the State can provide procedure for holding a common entrance test for the fair and merit based admission and preventing mal-administration. There is no quarrel over the decision of the Hon'ble Supreme Court in the aforesaid cases. Here in the present case, 11 since admittedly the admission to the institutions shall be made on the basis of the merit list prepared by the O.J.E.E., in all circumstances the principle laid down by the Hon'ble Supreme Court in the above cases cannot be said to be violated. Therefore, the condition no.4 of the approval letter says "State/UT admission authority shall effect admission of this Course". The only thing is what should be the basis for preparing such merit list. According to the approval letter dated 08.04.2013 for the year 2013-14 such merit list has to be prepared on the basis of marks obtained at 12th standard examination. The expression "however" used in clause 3 of the approval letter makes it amply clear that the admission in the year 2013-14 shall be effected only on the basis of marks obtained at 12th standard through a separate merit list created for this purpose. Therefore, there is no question of compromising with the merit and transparency, if the merit list is prepared by OJEE on the basis of marks obtained at 12 th Standard as prescribed by the AICTE.
12. Needless to say that the languages used in condition No.3 of the approval letter being clear and unambiguous this Court has to give effect to the words used in the said condition. At this juncture, it is necessary to refer some of the judicial pronouncements.
13. In Sussex Peerage case, (1844) 11 Cl & Fin 85 at page 143, Tindal, C.J. stated thus:
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"If the words of the statute are in themselves precise and unambiguous, then no more can be necessary than to expound those words in their natural and ordinary sense. The words themselves do alone in such cases best declare the intent of the lawgiver.
It is a cardinal principle of construction of statute hat when language of the statute is plain and unambiguous, then the court must give effect to the words used in the statute and it would not be open to the courts to adopt a hypothetical construction on the ground that such construction is more consistent with the alleged object and policy of the Act."
14. The Hon'ble Supreme Court in the case of State of U.P. Vs. Dr.Vijay Anand Maharaj, AIR 1963 SC 946 held as under:
"When the language is plain and unambiguous and admits of only one meaning, no question of construction of a statue arises, for the Act speaks for itself."
15. The Hon'ble Supreme Court in the case of Union of India and another Vs. Deoki Nandan Aggarwal, AIR 1992 SC 96 held as under:
"... It is not the duty of the Court either to enlarge the scope of the legislation or the intention of the legislature when the language of the provision is plain and unambiguous. The Court cannot rewrite, recast or reframe the legislation for the very good reason that it has no power to legislate. The power to legislate has not been conferred on the courts. The Court cannot add words to a statute or read words into it which are not there...."
16. The Hon'ble Supreme Court in Arul Nadar Vs. Authorised Officer, Land Reforms, (1998) 7 SCC 157 held that when the language of 13 a statue is unambiguous, in interpreting the provisions thereof, it is not necessary to look into the legislative intent or the object of the Act.
17. Now, the question arises as to whether it is obligatory on the part of the OJEE to prepare the merit list as prescribed by AICTE in its approval letter. The specific stand of AICTE is that All India Council for Technical Education (Grant of Approval for Technical Institutions) Regulations, 2012 for the academic session 2013-14 was notified in the Gazette of India on 27th September, 2012. Soon after publication of such Regulations in the official Gazette, it was widely circulated to the Secretariat of the concerned branches functioning under all the State Governments and Union Territories as well as the regional branches of AICTE through out the country followed with publication in national as well as regional newspapers across the nation and was made available in web portal of AICTE immediately. Clause 11.4 of the AICTE Hand Book for the year 2013-14 contains as follows:-
"11.4 Student eligibility for admission and procedure for Admission.
(a) University affiliation for these courses shall be necessary before effecting admission.
(b) Five year Dual Degree Course in Management.
The Admissions for this course shall be effected on the basis of separate merit lists of students passed in various streams at Std. 12th as, Science stream 20 seats Commerce stream 20 seats Arts stream 20 seats In case of non availability of students from one stream, remaining seats in that stream may 14 be allotted to students from other two streams on equal basis. In case of non availability of students from two streams, remaining seats in those streams may be allotted to students from third stream.
(c) State/UT admission authority shall effect the admission for this course."
18. Condition Nos.3 and 4 of the approval letter contain similar basis, i.e., admission in 2013-14 shall be effected on the basis of the marks obtained in 12th standard through a separate merit list created for the purpose. Copy of the approval letter has been sent to the concerned institutions, the Regional Officer, AICTE, Kolkata, West Bengal, the Director of Technical Education, Odisha and the Registrar, BPUT, Bhubaneswar.
19. At this juncture, it will be beneficial to refer to the judgments of the Hon'ble Supreme Court and this Court.
20. In the case of Parshvanath Charitable Trust and others (supra), the Hon'ble Supreme Court has held that the regulations framed by the Central Authority such as AICTE have the force of law and binding on all concerns. Once approval is granted or declined by such expert body the Court would normally not substitute their views in this regard.
21. This Court in the case of Silicon Institute of Technology Vs. State of Orissa and others, 2011 (1) OLR 161 held that Policy Planning Body has no authority to sit over the decision of the AICTE so far granting approval in favour of a Technical Institution is concerned. 15
22. In view of the above, this Court is of the view that it is obligatory on the part of the OJEE to prepare a separate merit list on the basis of marks obtained at 12th standard for the purpose of effecting admission for the year 2013-14 in MAM Course. Therefore, this Court directs opposite parties 1 and 2 to allow four members of petitioners'- association to give admission to students in 5 years dual management degree, i.e., Master in applied Management (MAM) course for the academic session 2013-14 in respect of the seats approved by the AICTE in accordance with norms prescribed by it in its approval order dated 08.04.2013 issued in favour of four academic institutions. For this purpose, OJEE has to prepare a separate merit list on the basis of the marks obtained at 12th standard and conduct admission counseling. However, the entire admission process 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).
The schedule for the above admission is given below:-
Sl. Particulars Date
No.
1. Application call from +2 pass out 31.07.2013 to
candidates as per eligibility criteria of 08.08.2013
AICTE
2. Publication of Merit list of the applicants 10.08.2013
3. Admission Counseling 12.08.2013
4. Reporting at the Institution 14.08.2013 16
23. 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.
24. 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 the same may also be handed over to learned counsel for opposite parties for compliance.
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B.N.Mahapatra, J.
High Court of Orissa, Cuttack Dated 29th July, 2013/ssd/ss/skj