Orissa High Court
Gandhi Institute Of Technology vs State Of Odisha & Ors. ..... Opposite ... on 11 September, 2023
Bench: B.R. Sarangi, Murahari Sri Raman
1
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P (C) No. 27040 of 2023
Gandhi Institute of Technology ..... Petitioner
and Management (GITAM), Mr. D.P. Dash, Advocate
Bhubaneswar
Vs.
State of Odisha & Ors. ..... Opposite Parties
Mr. A.K. Mishra, AGA
(O.Ps.1& 3)
Mr. S. Palit, Sr. Advocate
(O.P.2-OJEE)
Mr. B. Jena, Advocate
(O.P.5-AICTE)
Mr. T.K. Satapathy, Advocate
(O.P.4-BPUT)
CORAM:
DR. JUSTICE B.R. SARANGI
MR. JUSTICE MURAHARI SRI RAMAN
ORDER
11.09.2023 Order No. This matter is taken up through hybrid mode.
32. Heard Mr. D.P. Dash, learned counsel appearing for the petitioner; Mr. A.K. Mishra, learned Additional Government Advocate appearing for the State-opposite parties no.1 & 3; Mr. S. Palit, learned Senior Counsel appearing for opposite party no.2-OJEE; Mr. T.K. Satapathy, learned counsel appearing for opposite party no.4-Biju Patnaik University of Technology (BPUT) and Mr. B. Jena, learned counsel appearing for opposite party no.5-All India Council for Technical Education (AICTE).
3. The petitioner has filed this writ petition seeking direction to opposite parties no.1 and 2 to include the AICTE approved 2 120 nos. of seats in the course of 'Master in Computer Application' (MCA) of the petitioner-institution in the ongoing/ensuing counseling of MCA-Odisha JEE, 2023 and to upload/update the approved seats of the petitioner-institution in the seat matrix of the OJEE-2023 counseling schedule for admission into the MCA/L.E (Lateral entry) Courses for the current academic session 2023-24 and further to issue direction to opposite parties no.1 to 3 to allow all the intending candidates to take admission into the aforesaid AICTE approved 120 seats in the course of MCA in the petitioner-institution to exercise their respective choices and to re-lock their choices by extending the period of O-JEE 2023 counseling schedule and further to direct opposite party no.4-BPUT along with their authorities to grant/extend necessary affiliation to the petitioner-institution for the current academic year 2023-24 in respect of 120 seats in the course of 'Master in Computer Application' in consonance with the approval accorded by opposite party no.5-AICTE in its letter dated 27.06.2023 under Annexure-2.
4. Mr. D.P. Dash, learned counsel appearing for the petitioner contended that for opening of 120 seats in Master in Computer Application course, the petitioner-institution submitted an application to opposite party no.5-AICTE for grant of permission and also submitted an application to opposite party no.4-BPUT for grant of affiliation. On receipt of the same, opposite party no.5-AICTE granted permission to the petitioner- institution for opening of 120 seats in Master in Computer Application course, whereas there is inaction on the part of opposite party no.4-BPUT for granting affiliation. In the meantime, advertisement was issued for filling up seats in 3 Master in Computer Application course for the year 2023-24. It is further contended that the apex Court has already considered similar question in Jaya Gokul Education Trust v. The Commissioner & Secretary to Government Higher Education Department, AIR 2000 SC 1614. Therefore, the ratio decided in the said case by the apex Court is fully applicable to the case of the petitioner-institution. Therefore, direction may be issued to opposite party no.4-BPUT to grant affiliation to the petitioner- institution so that students will take admission into 120 seats of Master in Computer Application course for the session 2023-24. Thereby, it is contended that due to inaction on the part of the BPUT in granting affiliation, the petitioner-institution has approached this Court by filing this writ petition.
5. Mr. A.K. Mishra, learned Additional Government Advocate appearing for the State-opposite parties no.1 & 3 contended that the petitioner-institution has got permission from opposite party no.5-AICTE for 120 seats in Master in Computer Application course, but it has not received affiliation from opposite party no.4-BPUT. Thereby, the name of the petitioner- institution has not been included in the list to admit the students in the said course. It is contended that as and when BPUT grants necessary affiliation, the petitioner-institution will proceed to admit the students in the said course, but in the meantime the process of counseling has been started.
6. Mr. B. Jena, learned counsel appearing for opposite party no.5-All India Council for Technical Education (AICTE) contended that on the basis of application submitted by the petitioner-institution, AICTE approved for opening of Master in Computer Application course with 120 seats for the session-
42023-24. Once the said approval is granted, there is no impediment on the part of the BPUT to allow the students to prosecute studies in the approved seats of 120 in Master in Computer Application course.
7. Mr. T.K. Satapathy, learned counsel appearing for opposite party no.4-Biju Patnaik University of Technology (BPUT) vehemently contended that BPUT has not granted affiliation to the petitioner-institution, as there is short fall of compliance of Clause-17.6 of the AICTE guideline. There are no adequate approved staff in the petitioner-institution to impart teaching and also there are other defects, which the petitioner- institution has to comply. Without conducting any enquiry and without submission of enquiry report, the permission so granted by the AICTE cannot have any justification. At the same time, he fairly contended that the principle laid down by the apex Court in Jaya Gokul Education Trust (supra) is fully applicable to the present case. But fact remains, since certain defects have not been cured, the petitioner-institution is not entitled to get affiliation, as claimed in the writ petition. Therefore, he seeks for dismissal of the writ petition.
8. Mr. S. Palit, learned Senior Counsel appearing for opposite party no.2-OJEE contended that since the petitioner- institution has not received affiliation from BPUT, merely because it has got approval from AICTE, that cannot entitle the institution to be included in the list so that it can be permitted to admit the students in120 seats in Master in Computer Application course for the session 2023-24. Thereby, O-JEE has not committed any illegality in uploading the name of the petitioner-institution in the list. It is further contended that so far 5 as counseling for admission by the O-JEE is concerned, it has been completed on 01.09.2023. But so far as counseling for admission in the petitioner-institution, it has been fixed to 15.09.2023. It is further contended that if this Court permits the O-JEE to upload the name of the petitioner-institution in the list as per Government guideline, it has no objection.
9. Considering the contentions raised by learned counsel for the parties and after going through the records, this Court finds that the petitioner-institution submitted applications for permission and affiliation before the AICTE and BPUT respectively. Accordingly, AICTE approved 120 seats in Master in Computer Application course and consequentially, the relief sought as against AICTE has already been granted. So far as grant of affiliation is concerned, BPUT has not granted the same to the petitioner-institution to admit the students in Master in Computer Application course on the ground of non-compliance of certain deficiencies as per Clause-17.6 of the guideline. As such, enquiry has to be conducted and the petitioner-institution has to comply with the deficiencies pointed out in the enquiry report. More so, the affiliation can only be granted in terms of Clause-17.6 of the guidelines issued by the AICTE. But fact remains, once AICTE approved the seats and granted permission, now in the formality sake BPUT has to grant affiliation. Therefore, it is the dispute of inter-institutional communication between BPUT and AICTE. If BPUT is lacking to discharge its duty to make necessary inquiry and point out the deficiencies, it would not grant permission to the petitioner- institution. But nothing has been placed on record to indicate that enquiry has been conducted by BPUT. If BPUT 6 communicated the deficiencies of the petitioner-institution, AICTE would not approve the seats and grant permission. Since AICTE has already granted permission, BPUT cannot sit over the matter in view of ratio decided by the apex Court in Jaya Gokul Education Trust (supra), paragraph-27 whereof states as follows:
"27. The so called 'policy' of the State as mentioned in the counter affidavit filed in the High Court was not a ground for refusing approval. In Thirwnuruga Kirupan and Variyar Thavathiru Sundara Swamigal Medical Education & Charitable Trust v. State of Tamil Nadu & Others, [1996] 3 SCC 15, which was a case relating to Medical Education and which also related to the effect of a Central Law upon a law made by the State under Entry 25 List III, it was held (see p. 35 para 34) that the "essentiality certificate cannot be withheld by the State Government on any policy consideration because the policy in the matter of establishment of a new medical college now vests with the Central Government alone". Therefore, the State could not have any "policy" outside the AICTE Act and indeed if it had a policy, it should have placed the same before the AICTE and that too before the latter granted permission. Once that procedure laid down in the AICTE Act and regulations had been followed under Regulation 8(4), and the Central Task Force had also given its favourable recommendations, there was no scope for any further objection or approval by the State. We may however add that if thereafter, any fresh facts came to light after an approval was granted by the AICTE or if the State felt that some conditions attached to the permission and required by the AICTE to be complied with, were not complied with, then the State government could always write to the AICTE, to enable the latter to take appropriate action. Decision of University in not granting further or fined affiliation wrong on merits:"
The applicability of the aforesaid principle decided by the apex Court to the case of the petitioner-institution has not been disputed by the learned counsel appearing for BPUT. Therefore, if the said principle is applicable to the petitioner-institution, 7 BPUT is directed to grant affiliation within a period of two weeks subject to compliance of the deficiencies pointed out by BPUT as per Clause-17.6 of the guideline within a period of seven days so that the petitioner-institution will be eligible to admit the students in 120 seats of Master in Computer Application course. Accordingly, opposite party no.2-OJEE is directed to upload the name of the petitioner institution in the list within a period of three days.
10. With the above observation and direction, the writ petition stands disposed of.
(DR. B.R. SARANGI) JUDGE Alok (M.S. RAMAN) JUDGE Signature Not Verified Digitally Signed Signed by: ALOK RANJAN SETHY Designation: Secretary Reason: Authentication Location: Orissa High Court Date: 12-Sep-2023 10:38:51