Odisha Private Engineering ... vs State Of Odisha And Others
2014 Latest Caselaw 2441 Del

               HIGH COURT OF ORISSA: CUTTACK
                      W.P.(C) Nos.5330 & 6242 of 2014
In the matter of an application under Articles 226 and 227 of the
Constitution of India.
                                   --------

In W.P.(C) No. 5330 of 2014 Alakananda Philonthropic Trust, representing Ganesh Institute of Engineering and Technology (Polytechnics), Bhubaneswar, represented by its Chairman-

Cum-Managing Trustee, Er. Bibhuti Bhusan Tripathy and three others ........ Petitioners

-Versus-

State of Odisha and others                          ... ....     Opp. Parties


           For Petitioners      :        M/s. Sanjit Mohanty
                                              & S. Nanda

           For Opp. Parties     :        Advocate General

In W.P.(C) No. 6242 of 2014
Odisha Private Engineering School
Association (OPESA), represented
Through its Secretary, Er. Saroj Kumar
Sahoo, Nayapalli, Jayadev Vihar,
Bhubaneswar.                                       ......          Petitioner
                                    -Versus-
State of Odisha and others                          ... ....     Opp. Parties


           For Petitioner       : M/s. B. Routray, D. Routray,
                                       B. Singh, P. K. Sahoo,
                                       S. Das, S. Jena & S.K. Samal

For Opp. Parties : M/s. V. Narasingh, S. K. Senapati & P. Das

---------

P R E S E N T:

THE HONOURABLE SHRI JUSTICE I.MAYANTY AND THE HONOURABLE SHRI JUSTICE B.N.MAHAPATRA Date of Judgment: 14.05.2014

B.N.Mahapatra,J. The petitioners in W.P.(C) No. 5330 of 2014, which are

Trusts as well as the members of Orissa Private Engineering School

Association (OPESA), writ petitioner in W.P.(C) No. 6242 of 2014, imparting

technical education in Diploma Engineering Courses in their respective

institutions, have filed these Writ Petitions challenging the action of the State

Government for not acting in terms of the decision of the Policy Planning Body

(PPB) dated 20.12.2013 as well as the norms prescribed by All India Council

for Technical Education (AICTE) regarding admission to Diploma Engineering

Courses for the Session 2014-15. Petitioners further challenge the notice

dated 14.02.2014 published in the local daily newspaper "The Samaja" in

fixing tentative date for holding Diploma Entrance Test 2014 (for short, 'DET

2014') and notice dated 09.03.2014 published in the local daily newspaper

"The Samaja" fixing schedule for DET 2014 on the ground that such notices

are contrary to the decision of the PPB.

2. The grievance of the petitioners in a nut shell is that though as

per the norms of the AICTE, Entrance Test is not mandatory for admission to

Diploma Courses like other under-Graduate and Postgraduate Courses and

that the PPB, which is the apex Body under the Orissa Professional

Educational Institutions (Regulation of Admission and Fixation of Fees) Act,

2007 (for short, 'Act, 2007'), has clearly recommended in its meeting dated

20th December, 2013 to abolish DET on the basis of a report of a Sub-

Committee and further recommended to go for admission on the basis of

Higher Secondary Certificate marks with effect from academic Session 2014-

15, the State Government instead of acting in terms of the said decision has

illegally published the notice dated 09.03.2014 fixing schedule for DET 2014.

According to the petitioners, all of them are imparting Diploma Engineering

Courses duly approved by the AICTE under the AICTE Act. The number of

seats of the above institutions in different Diploma Engineering Courses both

Private and Government institutions comes to 39,319 which include 34,000

seats approximately in respect of Private managed Polytechnic/Engineering

Schools, which are the members of the petitioners' Association. Diploma

Engineering and Non-Engineering courses were brought under the purview of

Act, 2007 by virtue of Notification dated 18.06.2010. Thereafter, admission to

all the Courses, both engineering and non-engineering in all the institutions

were held through DET followed by other counseling. Second Diploma

entrance test was also conducted as per the recommendation of the PPB to fill

up vacant seats. During the academic Session 2010-11, even after giving

admission through DET, large number of seats also remained vacant in most

of the private Engineering Schools. As per the eligibility norms prescribed for

taking admission in different Diploma Engineering courses by AICTE during

the academic session 2011-12, a candidate is required to pass HSC with

minimum 35% marks. The AICTE has not prescribed any entrance

examination for admission to Diploma courses. However, AICTE has made

entrance test mandatory for admission into Under-Graduate and

Postgraduate courses. The PPB in its meeting held on 24.11.2011 decided

that the Government in Industries Department had to take a decision in the

matter of giving admission in the vacancies without going for any entrance

test. During the academic session 2011-12, Directorate of Technical

Education and Training (DTET) made advertisement for counseling for

admission to Diploma Non-engineering courses at institution level, wherein

the students were allowed to take admission on the basis of qualifying marks

secured, i.e., 35% marks at 10th standard. For the academic Session 2013-14,

since no action was taken by the PPB to fill up large number of vacant seats

in different engineering courses in private Engineering schools after first

counseling was over, the Odisha Private Engineering Schools Association

finding no way out, approached this Court in W.P.(C) No.14030 of 2013 with a

prayer to direct opposite parties to conduct the second DET and allow the

counseling to be made pursuant to second DET. The Writ Petition was

disposed of by a learned Single Judge of this Court directing to hold the

second DET keeping in view that large number of seats were lying vacant in

various institutions. The said judgment of the learned Single Judge was

challenged in Writ Appeal before a Division Bench of this Court, wherein the

Division Bench of this Court was pleased to direct for second DET within a

stipulated period for the Session 2013-14. Even after the second DET, a large

number of seats could not be filled up due to shortage of candidates. During

the academic Session 2014-15, several representations were made by several

private Engineering Schools' Association to the authorities to discontinue the

entrance test and allow admission to Diploma courses on merit basis as per

the marks secured in the qualifying examination. The above request of the

petitioners was not acceded to by the present opposite parties. Hence, the

present writ petitions.

3. Mr.Sanjit Mohanty and Mr.B.Routray, learned Senior Advocates

appearing for the petitioners submitted that as per the AICTE process Hand

Book, which is a Regulation of the AICTE for the session 2013-14 Entrance

Test, is not mandatory for admission in diploma courses. In many States,

admission to diploma course is being made on the basis of the merit of

qualifying examination, i.e., 10th standard marks. Opposite party No.2-

Department of Technical Education and Training has also invited applications

through advertisement from intending orthopaedically handicapped students

for admission to Diploma Engineering and Non-Engineering courses under

persons with disability Scheme of M.H.R.D. Government of India, wherein 75

number of supernumerary seats in different Government Engineering

Schools/Polytechnics were advertised and admission in those 75 numbers of

seats was made on the basis of the marks secured in the qualifying

examination, i.e., 35% of the marks secured in the 10th standard examination.

The method of admission, i.e., e-admission to +2 courses in the Colleges

throughout the State takes two and half months time, but the method of

admission adopted for Diploma Engineering courses, conducted by the DTET,

takes more than seven months time to complete the entire process of

admission and large number of seats are lying vacant due to such method of

admission adopted by the opposite parties. The decision of the PPB dated

22.11.2013 to abolish the Diploma Entrance Test is based on expert opinion

which cannot be disregarded by the Government without any further

adequate material.

4. It was further submitted that insofar as Diploma Engineering is

concerned, particularly DET is not coming under the purview of the 2007 Act

like JEE, except by virtue of the Notification dated 18.06.2010, which was

issued in exercise of power conferred under sub-clause (xii) of Clause (u) of

Section-2 of the 2007 Act. No further amendment has been made to the said

Act. There cannot be violation of any of the provisions of the 2007 Act in the

event students are allowed to take admission on the basis of AICTE norms.

The action of the State Government in not approving the decision of the PPB is

not only arbitrary but also contrary to law. The Hon'ble Supreme Court in the

case of P.A. Inamdar and others vs. State of Maharashtra and others, AIR

2005 SC 3226 and Islamic Academy of Education and others vs. State of

Karnataka and others, AIR 2003 SC 3724 has clearly held that, to impart

technical education, the norms prescribed in the AICTE Hand Book as well as

the Act should not be violated. At the same time, the private institutions,

which are imparting technical education, must be allowed to exist without

compromising the quality of education. The viability and existence of private

professional educational institutions cannot be ignored but at the same time

the viability as well as the existence of such institutions depends upon the

strength of the students who have taken admission into such institutions. But

more than 50% seats are lying vacant for the last four years due to holding of

entrance test to get admission into such institutions. Short-listing is

necessary where the aspirants/candidates are more than the numbers of

seats available. The entrance test is not necessary when the number of

vacancies is much more than the aspirants. Since fifty percent of the seats

are lying vacant in different technical institutions, in the event DET is

conducted to select the candidates to take admission in the institutions

imparting Diploma courses, certainly the number of admissions to the vacant

seats will further go down. In that event, such institutions will be closed.

Concluding the argument, learned Senior Advocates submitted to issue

appropriate direction to the opposite parties to ensure that the private

technical institutions must survive without being closed.

5. Learned Advocate General, Mr. Asok Mohanty appearing for the

State-opposite parties vehemently argued that the decision of the

Government to hold Diploma Entrance Test, 2014 is in consonance with the

provisions of the Act, 2007 and there is no illegality in doing so. The PPB is

a recommending Body and the final approval as per the schematic

arrangement of Act, 2007 vested in the Government in E&T & ET

Department. After careful consideration of the recommendation of the PPB

in accordance with the provisions of Section 3 (i) of the said Act, 2007 and in

order to maintain excellence in Diploma Education, the State Government in

consultation with the Government in Law Department have decided that the

admission to Diploma programmes shall be made through DET and a merit

list of the students shall be drawn up on the basis of marks secured by the

candidates in Diploma Entrance Test vis-à-vis marks obtained in the

qualifying examination with weightage 60% and 40% respectively. The CBSE

while drawing the merit list for admission to Engineering programme

through All India Test JEE (Main) 2014 have prescribed the same procedure

for drawing the merit list. In order to maintain excellence in Diploma

Education and to follow a fair, transparent and merit based admission

procedure, the State Government in exercise of power conferred under

Section-2(u)(xii) of the Act, 2007 issued Notification No. 8571 dated

18.6.2010. In the AICTE Hand Book, the eligibility criteria for admission to

Diploma Programmes has only been prescribed. There is no mention

regarding the method of admission to Diploma Programmes as mentioned in

case of under graduate and post-graduate programmes. Thus, the State

Government has not deviated the provision of the AICTE so far as admission

procedure is concerned. The State Government has adhered to the minimum

eligibility criteria prescribed by the AICTE for admission to Diploma

programmes. There is no embargo in law for authorities to prescribe the

modalities of admission in addition to the prescription of the AICTE.

Therefore, the assertion that the AICTE has not prescribed any entrance

examination for admission to Diploma courses has no bearing on the point

at issue.

6. Learned Advocate General further submitted that Diploma

Engineering and Non-Engineering courses belong to different and distinct

classes. Moreover, from the academic session 2012-2013 onwards, the

admission to Non-Engineering courses is being made through Diploma

Entrance Test. Admission to Diploma Engineering and Non-Engineering

Courses for orthopaedically handicapped students was made against the

supernumerary seats approved by AICTE. Persons with Disabilities (PWD)

Scheme of MHRD, Government of India prescribed the method of admission

and the students admitted under the scheme are exempted from paying

admission fees etc. and financial incentives will be given as per the norms of

MHRD, Government of India. Therefore, the State Government is not

denuded of power to direct for particular mode of admission including

entrance test for Diploma Education. As per the schedule of the Diploma

Entrance Test, 2014, the examination will be conducted on 18.5.2014 and

admission through e-counselling will commence tentatively from 1st week of

June, 2014 and continue up to 2nd week of August, 2014 including vacancy

round, if any. Thus, approximately the admission through e-counselling

process will take 2½ months and not seven months as stated by the

petitioners. The decision to hold the DET, 2014 has been taken in exercise

of power conferred under Section 3 of the Act, 2007, which is in vogue in

view of the direction of the Hon'ble Supreme Court. Hence, the

recommendation of PPB cannot confer any vested right on the petitioners as

claimed nor it can be said to curtail the power of the Government to act in an

independent manner as envisaged in the Act, 2007. There is no illegality in

the action of the Government in directing to hold DET, 2014 and prescribing

the modality of admission as per the impugned notifications dated 14.2.2014

and 9.3.2014. The decision of PPB is not binding on the State Government.

In view of the provisions of the Act, 2007, the interest of the students, who

are intending to take admission in the institutions imparting Diploma

Education, is in no way compromised in conduct of DET, 2014 and

prescribing the modality of admission in terms of the impugned notifications

dated 14.2.2014 and 9.3.2014. During the academic year 2013-14, 51751

candidates appeared in the DET, 2013 and got valid rank for admission to

Diploma in Engineering courses against the total intake of 37975, both

Government and private institutions. This shows that the number of

aspirants are more than the number of seats available. The number of

candidates admitted during the year 2013-14 is 3927 against the intake

capacity of 4795 for Government Engineering Schools and Polytechnics and

14481 against the intake capacity of 33180 for Private Engineering Schools.

So far as the intake capacity of Government institutions is concerned, there

are more number of candidates/aspirants than the available seats for which

short listing is necessary for giving justice to meritorious students for

availing best seat of their choice.

7. Placing reliance on the provisions of Section 2(u)(xii), Section

2(z) and Section 3 of the Act, 2007, learned Advocate General submitted

that the State Government has rightly declared the Diploma Engineering

Courses as the educational course for the purpose of the Act, 2007. It was

further argued that the provisions of Section 9 of the Act, 2007 dealing with

the reservation of seats and admission against the unfilled seats are subject

to the provisions of Section 3 of the Act, 2007. Further, placing reliance on

the provisions of Section 11 of the Act, 2007, it was argued that any

admission made in violation of the provisions of the Act, 2007 and the rules

framed thereunder shall be invalid. Concluding his argument, Mr. Mohanty,

learned Advocate General submitted that the writ petition being devoid of

merit is liable to be dismissed.

8. On rival contentions of the parties, the following questions

arise for consideration:

(i) Whether Diploma Engineering Courses are Educational Courses for the purpose of the Act, 2007?

(ii) Whether the State Government is justified in rejecting the decision of PPB dated 20.12.2013 recommending abolition of the Diploma Entrance Test and giving admission on the basis of H.S.C. marks?

(iii) Whether the notices dated 14.2.2014 and 9.3.2014 respectively issued for holding Diploma Entrance Test are sustainable in law?

(iv) What order?

9. Question No.(i) is whether Diploma Engineering Courses are

Educational Courses for the purpose of the Act, 2007?

At this juncture, it would be necessary to reproduce herein

below relevant portion of Section-2 (u) (xii) of the Act, 2007.

"2(u) "professional educational institution" means college or school or an institute, by whatever name called, imparting professional education or conducting professional educational courses leading to the award of a degree, diploma or a certificate by whatever name called, approved or recognized by the competent statutory body or affiliated to a University, in any of the following disciplines, namely:--

(i) xxx xxx xxx

(xii) any other educational courses as may be declared by Government, by notification, from time to time;"

10. Undisputedly State Government in exercise of the power

conferred by Sub-clause- (xii) of Clause-(u) of Section 2 of the Act, 2007 has

declared the Diploma Engineering Courses as educational courses for the

Act, 2007 vide Notification No.IX-TTI-30/2010/8571 dated 18th June, 2010.

11. In view of the above, we are of the considered opinion that the

Diploma Engineering courses are educational courses for the purpose of

Act, 2007.

12. Question Nos. (ii) and (iii) being interlinked they are dealt with together.

13. We have already held that Diploma Engineering Courses are

educational courses for the purpose of Act, 2007. Therefore, admission into

Diploma Engineering Courses shall be governed by the provisions of the Act,

2007. Under the Act, 2007, admission to technical courses in different

technical institutions has been made through a single window system.

14. At this juncture, it would be relevant to know what is contemplated

in Sections 2(z), 3, 9 and 11 of the 2007 Act.

"Section 2(z) "single window system" means the centralized system for admission administered by the Policy Planning Body";

Section 3. "Subject to the provisions of this Act, admission of students in all private professional institutions, Government institutions and sponsored institutions to all seats including lateral entry seats, shall be made through JEE conducted by the Policy Planning Body followed by centralized counseling in order of merit, in accordance with such procedure as recommended by the said body and approved by the Government."

"Section 9. (1) In every professional educational institution admissions shall be in accordance with the reservation policy of the Government notified for the purpose of this Act:

Provided that nothing in the sub-section shall be applicable to the minority institutions.

(2) in a private professional educational institution other than minority institution not exceeding fifteen per

centum of the approved intake may be filled up by NRI from the merit list prepared on the basis of JEE.

(3) Where any shortfall in filling of seats from NRI occurs, such vacant seats may be filled up from the merit list of All India Engineering Entrance Examination or All India Medical Entrance Examination, as the case may be, conducted by Central Board of Secondary Education :

Provided that while filling up such vacant seats NRI shall be preferred.

(4) In a private professional educational institution fifteen per centum of the approved intake may be filled up strictly from the merit list of All India Engineering Entrance Examination or All India Medical Entrance Examination, as the case may be, conducted by Central Board of Secondary Education.

(5) Where the seats remain unfilled due to non-

availability of candidates in the list specified in sub- sections (3) and (4) or where student out of such lists leaves after selection to such seats, the same shall be filled up by the candidates belonging to the general category from the merit list of the JEE.

(6) (a) Where seats for reserved category are left unfilled due to non-availability of candidates from a particular category in the list of JEE, such seats shall be filled up by candidates of same category from the merit list of All India engineering Entrance Examination or All India Medical Entrance Examination, as the case may be, failing which such vacant seats shall be filled up by candidate not belonging to any reserved category in accordance with the merit list of JEE.

(b) If still seats remain vacant, a second JEE may be conducted.

(7) (a) In a Minority institution, not less than fifty per centum of the approved intake shall be filled up by minority students from which the State belonging to the minority community to which the institution belongs on the basis of inter se merit in the merit list of the JEE.

(b) The remaining seats shall be for the general category out of which up to fifteen per centum may be filled up by NRI."

"Section 11. "Any admission made in violation of the provisions of this Act or the rules made thereunder shall be invalid."

15. Section 2(z) provided for a "centralized window" system, which

means a centralized system for admission.

A plain reading of Section 3 makes it clear that admission of

students in all private professional educational institutions, Government

institutions and sponsored institutions to all the seats including lateral entry

seats shall be made through JEE. The expression of "all seats" appearing in

Section 3 includes admission of students under Section 9 of the 2007 Act.

16. Section 9 of 2007 Act provides for reservation of seats in a

particular manner. Section 9 cannot be read in isolation. Provisions of

Section 9 are subject to Section 3 of 2007 Act. Any attempt to read Section 9

in isolation would completely defeat/frustrate the object, reason and purpose

of 2007 Act. Section 3 of 2007 Act makes it mandatory that all admissions

shall be made through JEE conducted by the PPB followed by centralized

counseling in order of merit. Section 3 of 2007 Act envisages for admission of

all students through OJEE in order of merit and in a transparent manner.

Thus, all admissions including the admission for seats reserved under

Section 9 of 2007 Act are to be done either directly by the OJEE or under its

direct supervision and any admission made to any Private Professional

Institution, Government Institution and Sponsored Institution in violation of

Section 3 of the 2007 Act, i.e., not through OJEE is invalid.

17. Law is well-settled that the statute must be read as a whole. No part

of a statute can be construed in isolation. The Hon'ble Supreme Court in the case

of Mor Modern Cooperative Transport Society Ltd. vs. Financial

Commissioner and Secretary to Government of Haryana and another,

(2002) 6 SCC 269, held as under:

"14. .....It is trite to say that the intention of the legislature must be found by reading the statute as a whole. The court must ascertain the intention of the legislature by directing its attention not merely to the clauses to be construed but to the entire statute; it must compare the clause with the other parts of the law, and the setting in which the clause to be interpreted occurs. The rule is of general application as even the plainest terms may be controlled by the context. The expressions used in a statute should ordinarily be understood in a sense in which they best harmonize with the object of the statute, and which effectuate the object of the legislature...."

18. It may be relevant to refer here the decision of the Hon'ble Supreme

Court in the case of Reserve Bank of India vs. Peerless General Finance

and Investment Co. Ltd. (supra), wherein it has been held as under:

"33. Interpretation must depend on the text and the context. They are the bases of interpretation. One may well say if the text is the texture, context is what gives the colour. Neither can be ignored. Both are important. That interpretation is best which makes the textual interpretation match the contextual. A statute is best interpreted when we know why it was enacted. With this knowledge, the statute must be read, first as a whole and then section by section, clause by clause, phrase by

phrase and word by word. If a statute is looked at, in the context of its enactment, with the glasses of the statute- maker, provided by such context, its scheme, the sections, clauses, phrases and words may take colour and appear different than when the statute is looked at without the glasses provided by the context. With these glasses we must look at the Act as a whole and discover what each section, each clause, each phrase and each word is meant and designed to say as to fit into the scheme of the entire Act. No part of a statute and no word of a statute can be construed in isolation. Statutes have to be construed so that every word has a place and everything is in its place. It is by looking at the definition as a whole in the setting of the entire Act and by reference to what preceded the enactment and the reasons for it that the Court construed the expression "Prize Chit" in Srinivasa and we find no reason to depart from the Court's construction."

19. At this juncture, it will be beneficial to refer to the Preamble of 2007 Act:

"Preamble of 2007 Act specifically provides that "Whereas the Hon'ble Supreme Court of India in its judgment in P.A. Inamdar and others vs. State of Maharastra reported in AIR 2005 SC notifications dated 14.2.2014 and 9.3.2014 3226 has held that having regard to the larger interest and welfare of the student community to promote merit, achieve excellence and curb malpractices, it would be permissible to regulate admission by providing a centralized and single window procedure which, to a large extent, can secure grant of merit based admission on a transparent basis. "And whereas, it is further held that no capitation fee can be charged directly or indirectly or in any form and if charging of capitation fee and profiteering is to be checked, the method of admission is to be regulated so that the admissions are based on merit and transparency and the students are not exploited."

"And whereas, the Hon'ble Supreme Court in P.A. Inamdar Case has observed that it is for the Central Government or for the State Governments, in absence of a Central

legislation, to come out with a detailed thought out legislation on the subject, which is long awaited." The aforesaid preamble of the 2007 Act clearly indicates the object and purpose of enacting the said legislation by the State Legislatures. Therefore, while applying/interpreting the provisions of the 2007 Act, the intention behind having such an Act has to be kept in mind."

20. The source of 2007 Act is the judgments of the Hon'ble Supreme

Court of India in the cases of P.A. Inamdar and others vs. State of

Maharashtra and others, AIR 2005 SC 3226 and Islamic Academy of

Education and others vs. State of Karnataka and others, AIR 2003 SC

3724. The Constitution Bench in both the above mentioned cases laid emphasis

on merit based, transparent admission procedure to be regulated by the State

through a centralized and single window mechanism.

21. In the case of Asha -v- Pt. B.D. Sharma, University of Health

Sciences and others, AIR 2012 SC 3396, the Hon'ble Supreme Court held as

under:

"36. (a) The rule of merit for preference of course and colleges admits no exception. It is an absolute rule and all stakeholders and concerned authorities are required to follow this rule strictly and without demur.

xx xx xx"

22. The matter can be looked at from a different angle. AIEEE and OJEE

allot rank number to the participants according to their merit. According to their

merit, participants are entitled to a particular subject and the college, and in the

process a meritorious student gets a better subject and better college in

comparison to a less meritorious student. Therefore, if admission given to a

student holding AIEEE and OJEE at College level in technical courses without

counseling among other interested left out OJEE and AIEEE mark holder

students, more meritorious students may be deprived of getting admission in

technical courses in a better college.

23. Further, it may be noted here that under Section 3 of the Act, 2007

power is vested in the State government to approve or disapprove any

recommendation made by the PPB. Moreover, the State Government had adhered

to the minimum eligibility criteria prescribed by AICTE for admission to Diploma

programmes. Under the law, there is no embargo for the opposite party-

authorities to prescribe modalities of admission in addition to the prescription of

the AICTE regarding minimum eligibility criteria.

24. In view of the above settled legal position and the statutory

provisions, the decision of the PPB dated 20.12.2013 recommending abolition of

the Diploma Entrance Test and giving admission on the basis of HSC marks upon

which the petitioners placed strong reliance is not permissible and the State

Government is wholly justified in rejecting the said decision of the PPB in exercise

of power conferred on it under Section 3 of the Act, 2007. Consequentially,

issuance of notices dated 14.02.2014 and 09.03.2014 respectively for holding

Entrance test are sustainable in law.

25. Question No.(iv) is what order?

Admittedly, after first counseling of DET a good number of seats are

lying vacant in every year and considerable number of seats are filled up

subsequently through second DET. It is further noticed that even after second

DET, a large number of seats are lying vacant. There cannot be a denial to the

fact that neither the institutions, nor the State Government nor any student will

be gainer if some seats are allowed to remain vacant in technical institutions. It

will be beneficial to all concerns if more number of seats are filled up in the

technical institutions without compromising merit. If large number of seats

remain vacant in both Government and private technical institutions, that will be

a national waste.

26. 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 secured 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 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."

27. 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.

28. This Court vide order dated 22.07.2013 passed in W.P.(C)

No.14030 of 2013 held as under:

"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....."

29. In the fact situation, keeping in view the above legal position, we

think it proper to issue following directions:-

(i) Since the courses in question are Diploma courses and the required

qualification is HSC with 35% marks, mostly students of lower strata of the

society are aspirants/applicants to take admission in above courses. Therefore, it

is necessary that sufficient opportunity should be given to them to participate in

the admission process. To ensure that they should get sufficient opportunity to

take admission in technical /professional courses, the opposite party-authorities

should ensure that counseling centers are located/opened in all districts;

(ii) If after 1st DET, seats remain vacant, opposite parties shall hold

second DET as provided under Sections 9(6)(b) of the Act, 2007 through OJEE

and as directed by this Court vide order dated 11.09.2012 passed in W.A.

Nos.249 and 250 of 2012 and judgment dated 22.07.2013 passed in W.P.(C)

No.14030 of 2013;

(iii) After second DET, if seats still remain vacant and students,

whose names find place in the merit list of 1st and 2nd DET, approach any

technical institution for taking admission, the said institution shall produce

the students in the counseling centre for counseling within the period

stipulated hereunder.

However, the entire admission process shall have to be completed by

15th August, 2014 in view of the judgment of the Hon'ble Supreme Court in the

case of Parasnath Charitable Trust and others Vs. All India Council of

Technical Education and others, 2013 (3) SCC 355. The schedule for

conducting the above Diploma Entrance Test as suggested by opposite parties 1

to 3 in W.P.(C) No.6242 of 2014 is given below:-

SCHEDULE FOR WEB BASED E-COUNSELLING DET-2014 (1st Semester Diploma Engineering) 1st phase counseling Activities Date Registration, Choice filling & finalization of choice Registration, Choice filling & finalization of choice by 06.06.2014 to Candidates from any Internet point 20.06.2014 Deposit of Counseling fee of Rs.200/- in Cash, Document 08.06.2014 to verification, Choice locking at tagging NCC (Check 20.06.2014 www.detodisha.nic.in for Tagging list) (9.00 AM to 6.00 PM) Round-1 (Provisional Allotment) Allotment of seats of candidate including TFW (After 3.00 PM) 25.06.2014 Deposit of Admission Fee through ATM cum Debit/Credit 25.06.2014 to Card/Net Banking/e-Chalan at any branch of AXIS/IDBI 30.06.2014

Bank. (Candidate shall not come to NCC for this purpose) Round-2 (Provisional Allotment) Registration & fresh Choice Filling by the non-allotted of 1st 04.07.2014 round, non-registered ST/SC candidates and choice locking at NCC. (The candidates already allotted with a seat in 1st round, but did not deposit Admission Fee are not allowed) Result Publication after auto-sliding and de-reservation from 07.07.2014 SC & ST seats to General (After 3 PM) Deposit of Admission Fee through ATM cum Debit/Credit 07.07.2014 to Card/Net Banking/e-Chalan at any branch of AXIS/IDBI 09.07.201 Bank. (Candidate shall not come to NCC for this purpose) Final Allotment 14.07.2014 Reporting of candidate at Finally allotted Institute 15.07.2014 to 21.07.2014 Commencement of 1 month bridge course 17.07.2014 2nd DET-214 Programme (Tentative) for 1st semester Diploma in Engineering Submission of ONLINE Application 18.07.2014 to 15.07.2014 Deposit of Application Fee 08.07.2014 to 16.07.2014 Availability of Admit Card & Centre list 18.07.2014 2nd DET Examination 20.07.2014 (SUNDAY) Result Publication 23.07.2014 Registration, choice filling & finalization of choice by 24.07.2014 to Candidates from any Internet point, Document verification, 28.07.2014 Choice locking and Deposit of Counseling Fee at NCC Allotment of seats 30.07.2014 Deposit of Admission Fee through ATM cum Debit/Credit 30.07.2014 to Card/Net Banking/ e-Chalan at any branch of AXIS/IDBI 01.08.2014 Bank.

Final Allotment                                            02.08.2014
Reporting of candidate at Finally allotted Institute       03.08.2014   to
                                                           05.08.2014

Final phase counseling against the non-allotted seats (For left out DET Rank holders for 1st semester Engineering) Registration, Choice filling & finalization of choice Activities Date Registration, Choice filling & finalization of choice by Candidates 04.08.2014 from any Internet point, Document verification, Choice locking to and Deposit of Counseling Fee at NCC located in all districts 10.08.2014 Allotment of seats 12.08.2014 Reporting and deposit of admission fee by candidate at Finally 13.08.2014 allotted Institute to 14.08.2014

30. With the above observations and directions, the writ petitions are

allowed in terms of the directions given herein above, but without any order as to

costs.

In view of the most urgency involved, urgent certified copy of the

judgment be granted on proper application in course of the day and free copies of

the judgment be handed over to learned counsel for opposite parties for necessary

compliance.

...............................

B.N. Mahapatra,J.

I.Mahanty, J.               I agree.

                                                        ............................
                                                          I.Mahanty, J.




           Orissa High Court, Cuttack
           Dated 14th May, 2014/ss/skj/bks