Aims Higher Secondary School vs State Of Odisha And Another
2023 Latest Caselaw 8258 Ori

         HIGH COURT OF ORISSA: CUTTACK

                    W.P.(C) No.21732 of 2023
   In the matter of an application under Article 226 of the Constitution of
   India.
                                  -----------

AIMS Higher Secondary School ... Petitioner of Science, Sambalpur

- Versus -

   State of Odisha and another             ...             Opposite parties


        For Petitioner                     ...      M/s. S.K. Dash, A.K. Otta,
                                                  S. Das, P. Das &
                                                  P. Harichandan


        For Opposite Parties               ...      Mr. Saswat Das,
                                                  Additional Government Advocate



                                 --------------

   PRESENT:

THE HONOURABLE SHRI JUSTICE A.K. MOHAPATRA

Date of hearing : 25.07.2023 : Date of judgment : 31.07.2023

A.K. Mohapatra, J. The Petitioner-Educational Institution has

approached this Court by filing the present writ petition

assailing the withdrawal of recognition in respect of // 2 //

additional seats as indicated under Annexure-4 to the writ

petition, i.e., from earlier sanctioned strength of 320 seats to

256 seats for the academic session 2023-24. Further, the

Petitioner has prayed for a direction to the Opposite Parties to

allow the Petitioner's institution to admit the students in the

additional seats since increased from 256 seats to 320 seats in

science stream.

2. The factual backdrop of the case leading to filing the

present writ petition is that the Director of Higher Secondary

Education, Odisha, Bhubaneswar (Opposite Party No.2) in

exercise of power under Section-6(6) of the Odisha

Education Act, 1969 vide Office Order No.4281/HPC-V-

13/22 dated 19.04.2022 accorded permanent recognition to

the Petitioner's school situated in Dhankuda Block of the

District of Sambalpur. Further, it has been pleaded that the

Petitioner's school is a renowned school of the locality and

caters to the need of the local students including the

residential school on self-financing mode.

// 3 //

3. The fact pleaded in the writ petition further reveals that

the Petitioner's school was granted temporary recognition

along with 14 other institutions in the district of Sambalpur as

per the decision of the HPC in its meeting held on 02.07.2022

whereby the existing sanctioned strength of the Petitioner's

school was increased from 256 to 320. The order according

temporary recognition to the Petitioner's school along with

other institution dated 15.11.2022 has been filed as

Annexure-2 to the writ petition. On perusal of the said letter,

it appears that the name of the Petitioner's school appears at

Serial No.11 and the sanctioned strength in respect of science

stream has been indicated to be 320 seats.

4. The temporary recognition granted to the Petitioner's

school under Annexure-2 is subject to the conditions

mentioned at the bottom of the said letter. The conditions so

imposed reveal that the temporary recognition accorded to

the Petitioner's school is subject to fulfillment of the

conditions prescribed under Section-6(A)(1) of the O.E. Act, // 4 //

1969 and the rules framed thereunder. Such temporary

recognition is also subject to other terms and conditions as

indicated under Clause-2 of the said letter. The proviso to

Clause-2 of the letter under Annexure-2 further reveals that in

the event of failure in complying with the conditions

mentioned, the authorities shall impose additional restriction

upon the institution in question from the next academic

session, i.e., 2023-24 and that such institution will be solely

responsible for the closure of the Higher Secondary Schools.

Moreover, the institutions are to fulfill the conditions of

recognition in all aspects as per O.E. Act & Rules within 7

year of its permission/temporary recognition, failing which,

no further application for renewal of temporary recognition

shall be entertained and action as deem fit shall be instituted

against the institution for restriction on admission and

thereby closure of the institution.

5. While this was the position, the Petitioner-Institution

was included in the Student Academic Management System // 5 //

(SAMS) and the number of seats indicated in the SAMS

website in respect science stream of the Petitioner's school

was initially 320 seats. The pleadings in the writ petition

further reveals that when the online common application

forms were invited on 30.06.2023, the number of seats

indicated in the website of the SAMS in respect of the

Petitioner's school was 320. However, all of a sudden, on

05.07.2023, i.e., just before publication of the first merit list,

the seats were reduced from 320 to 256.

6. The Petitioner-Institution enquired about such abrupt

and unnoticed reduction in the number of sanctioned seats in

respect of the science stream of the Petitioner-Institution

from the authorities. The Petitioner-Institution was intimated

that since the institution could not fill up the additional seats

sanctioned in respect of the previous years, as a punitive

measure, the seats for the current academic year in respect of

the Petitioner's school has been reduced from 320 to 256

seats. It has also been stated that in the last academic session // 6 //

259 students were admitted by the Petitioner's institution

through the SAMS portal.

7. The writ petition further reveals that for the current

academic session, 311 students have already been opted for

the Petitioner's school for taking admission in the science

stream of the Petitioner's institution. Such abrupt reduction in

the sanctioned strength of seats and corresponding

amendment in the number of seats reflected in the SAMS

portal has adversely affected the prospects of the institution

as well as it has caused hardship to many local students who

were interested to take admission in the Petitioner's school.

8. A counter affidavit has been filed on behalf of the

Opposite Party No.2, i.e., Director of Higher Secondary

Education, Odisha, Bhubaneswar. In its counter affidavit, it is

also stated that in its order dated 18.07.2023, this Court had

categorically directed the Opposite Party No.2 to file an

affidavit clarifying the position as to whether the order passed // 7 //

by the High Power Committee has been communicated to the

respective institutions and further whether before taking a

decision to reduce the sanctioned students strength of the

institutions, any opportunity to show cause was given to the

respective institutions to put-forth their case?

9. In reply to the specific query of this Court, the Opposite

Party No.2 in its counter affidavit has stated that it is a fact

that permanent recognition was granted in favour of the

Petitioner-Institution with 256 seats for each subject in +2

science stream for the Academic Session 2020-21 vide order

dated 19.2.2022 basing on the decision of the HPC in its

meeting held on 05.08.2021. During Covid pandemic period,

pursuant to the decision of the HPC, the student strength was

increased from 256 to 320 seats owing to the fact that a large

number of students had passed the Annual H.S.C.

Examination during the year 2021. Consequent upon

aforesaid development, the HPC took a conscious decision to

grant temporary recognition to some institutions thereby // 8 //

enhancing the number of seats as has been reflected under

Annexure-2 to the writ petition. The counter affidavit further

reveals that the Petitioner-Institution had admitted only 220

students during the Academic Session 2021-22 against

sanctioned strength of 320 in the +2 science stream of the

institution. The aforesaid arrangement of enhancement of the

sanctioned strength by virtue of a temporary recognition also

continued for the Academic Session 2022-23 pursuant to the

decision of the HPC dated 02.07.2022. Further, as against a

claim of 259 students were admitted to the +2 Science Stream

of the Petitioner-Institution, the counter affidavit reveals that

251 students were admitted for the Academic Year 2022-23.

Since the number of student admitted for the Academic Year

2022-23 is below the sanctioned strength of 256 granted by

way of permanent recognition, the additional enhanced 64

seats pursuant to the decision of the HPC was withdrawn in

view of the subsequent decision of the HPC.

// 9 //

10. The counter affidavit further reveals that the HPC in its

meeting held on 26.05.2023 took a decision to withdraw the

increased seats in respect of 253 institutions including the

Petitioner's institution from the Academic Year 2023-24.

Such a decision was taken as the Petitioner's institution and

other institutions have failed to enroll a single student against

increased number of seats during the Academic Year 2021-22

and 2022-23. Such decision of the HPC dated 26.5.2023 was

communicated to the Orissa Computer Application Centre

(OCAC) by the Officer-in-Charge, Project Management Unit,

SAMS under Directorate of Higher Secondary Education

with a request to upload the reduced number of seats in the

SAMS portal on 30.06.2023. Accordingly, the reduced

numbers of seats were uploaded and reflected in the SAMS

portal by the OCAC.

11. The Opposite Party No.2 in its counter affidavit has also

stated that as on 22.07.2023 upto 5.00 P.M. in the evening

only 255 numbers of students have taken admission in the // 10 //

Petitioner's institution after second round of counseling as

against the sanctioned strength seat of 256 seats. Therefore, a

contention has been raised that since the Petitioner's

institution was unable to fill up the earlier sanctioned 256

seats, the enhanced number of seats have been withdrawn

pursuant to the decision of the HPC. The Opposite Party No.2

has further stated that in view of the uploading of the data in

SAMS portal on 30.06.2023, the Petitioner's institution as

well as other similarly placed institution had knowledge

about the decrease in number of seats prior to the

commencement of e-admission process. It has also been

stated that opportunity was available with all the institutions

including the Petitioner's institution to raise their grievance

before the competent authority resorting to the appeal

remedies available under the Odisha Education Act and the

rules framed thereunder.

12. This Court, after going through the pleadings in the

counter affidavit, is of the considered view that the same has // 11 //

been drafted very cleverly. At the beginning of the counter

affidavit, it has been indicated that the counter affidavit is

being filed pursuant to order dated 18.07.2023 and the said

order has been quoted in paragraph-3 of the counter affidavit.

However, the Opposite Party No.2 has very cleverly avoided

to answer the two specific questions raised by this Court to be

answered by the Opposite Party No.2. At the outset, this

Court would like to observe that the Opposite Party No.2

being a very senior and responsible Government officer

should have been more careful before swearing the affidavit

and he should have ensured that the questions asked by this

Court has been answered directly and specifically. The

Opposite Party No.2 being a senior and responsible

Government officer, he cannot be expected to behave like

any other litigant having no knowledge in English language

and about the niceties of law. However, while observing as

indicated above, this Court holds the learned Government // 12 //

Counsel, who has drafted the counter affidavit, equally

responsible.

13. Heard Mr. Susanta Kumar Dash, learned counsel

appearing for the Petitioner and Mr. Saswat Das, learned

Additional Government Advocate for the State-Opposite

Parties. Perused the pleadings of the parties as well as the

materials available on record.

14. Mr. S.K. Dash, learned counsel appearing on behalf of

the Petitioner-Institution submitted before this Court that the

impugned decision to reduce the number of seats from 320 to

256 in the midst of the Academic Session is an illegal,

arbitrary and highhanded exercise of administrative power

conferred on the Opposite Parties by virtue of the provisions

contained in the Odisha Education Act, 1969 and the rules

framed thereunder. To further substantiate his argument, Mr.

Dash, learned counsel appearing for the Petitioner contended

before this Court that the HPC initially enhanced the // 13 //

sanctioned seat strength from 256 to 320. However, the same

was reduced to 256 by the HPC in its meeting held on

26.5.2023. It was argued on behalf of the Petitioner that the

reduction of seats in science stream of Petitioner's institution

is in the nature of a punitive measure owing to failure of the

Petitioner's school to admit students against the enhanced

seats strength. Therefore, the authorities before implementing

the decision of the HPC should have afforded an opportunity

of hearing to the Petitioner before taking such a punitive

measure.

15. He further contended that no opportunity, whatsoever,

was ever given to the Petitioner's institution to put-forth its

stand before the authorities. In the said context, learned

counsel for the Petitioner submitted that every administrative

action visited with a punitive action on a party has to be taken

in due compliance of the principles of natural justice. So far

the case of the Petitioner is concerned, no opportunity

whatsoever was granted to the Petitioner-Institution while // 14 //

reducing the sanctioned students strength of the institution.

Mr. Dash in course of his argument went to the extent of

submitting that even the decision of the High Power

Committee and the consequential order of the authorities to

reduce the additional seats was never ever communicated to

the Petitioner before implementing the said decision and

thereby correcting the number of seats indicated in the SAMS

web portal.

16. Learned counsel for the Petitioner also contended that

the figures indicated in the counter affidavit by the Opposite

Party No.2 are not correct. He further contended that during

the last Academic Session, i.e., 2022-23, the Petitioner-

Institution had admitted 259 students as against the claim of

251 by the Opposite Party No.2 in its counter affidavit. To

substantiate his contention that the Petitioner's institution has

taken admission of 256 students for the Academic Session

2020-21 and similarly 260 students for the Academic Session

2022-23, an additional affidavit was filed before this Court // 15 //

on 25.7.2023 after serving a copy thereof on the learned

Additional Government Advocate.

17. On perusal of the additional affidavit filed on behalf of

the Petitioner on 25.07.2023, this Court observed the same

reveals that for grant of recognition to any institution, be it

permanent or temporary, or refusing it, has to be for reasons

to be recorded in writing by the State Government. Further,

the prescribed authority is under an obligation to

communicate the order passed by the Committee in such

manner and with such particulars as may be prescribed. Such

additional affidavit further reveals that for the first time the

Petitioner-Institution came to know about the reduction in the

additional seats on 05.07.2023 from the SAMS portal.

18. It has also been categorically stated that the decision of

the HPC was neither communicated to the Petitioner nor any

opportunity to show cause was given to the Petitioner's

institution before taking a decision to reduce the number of // 16 //

additional seats. It has also been categorically stated in the

additional affidavit that 260 students were admitted in the

Academic Session 2022-2023 which would be evident from

Annexure-6. So far the Academic Session 2023-24 is

concerned, it was strenuously argued that 256 students have

applied through SAMS portal, out of which, 255 have already

participated in the first selection and one candidate did not

take admission due to personal reason.

19. In course of his argument, learned counsel for the

Petitioner submitted that 64 students are in the pipeline as per

their first choice for the Petitioner's institution. As such,

these 64 students are entitled to be admitted to the

Petitioner's institution through their slide-up request and the

stage of slide-up in the admission process has not yet come.

Besides the above, total 71 and 116 students respectively

have already exercised their second and third choice for being

admitted to the Petitioner's institution. Therefore, it has been

stated that there is every likelihood that all 320 seats are // 17 //

likely to be filled up for the Academic Year 2023-24

considering the academic excellence of the Petitioner's

institution.

20. Learned Additional Government Advocate, on the other

hand, contended that pursuant to the decision of the High

Power Committee dated 26.05.2023, a decision was taken by

the Department on 3.6.2023. Accordingly, since the

Petitioner's institution is unable to meet the standards fixed

by the High Power Committee, the Department has taken a

decision to reduce the additional strength sanctioned in

favour of the Petitioner's institution by granting temporary

recognition to the Petitioner's institution.

21. Learned Additional Government Advocate appearing

for the State-Opposite Parties also contended that once the

information was uploaded in the SAMS portal there is no

need to communicate the decision to the institutions

individually. He further contended that in the event the // 18 //

Petitioner-Institution feels aggrieved, then they should have

approached the Departmental Authorities by ventilating their

grievance. Above all, learned Additional Government

Advocate appearing for the State-Opposite Parties also

contended that the decision taken by the Department is an

appealable one. Therefore, the present writ petition is not

maintainable in view of the fact that an alternative and

efficacious remedy in the shape of appeal to the Departmental

Authority was available to the Petitioner.

22. Having heard the learned counsels appearing for the

respective parties and on a careful examination of the

pleadings as well as the materials on record, this Court

observed that the decision of the High Power Committee

taken in its meeting on 26.05.2023 was implemented by the

Department by reducing the additional sanctioned strength of

64 seats. The question now, therefore, is that whether the

decision taken by the authorities to reduce the sanctioned

strength from 320 to 256 is punitive in nature? And in the // 19 //

event the facts of the present case demands that such a

decision was required to be taken keeping in view the policy

decision of the High Power Committee meeting held on

26.05.2023, whether the Opposite Parties were duty bound to

provide an opportunity of hearing before implementing the

decision by reducing the sanctioned additional strength of the

students?

23. In reply to the first question, this Court has no

hesitation to hold that the unilateral decision to reduce the

sanctioned strength of the seats in respect of +2 Science

Stream of the Petitioner-Institution from 320 to 256 is

punitive in nature. Moreover, the proceedings annexed to the

counter affidavit as Annexure-D/2 reveals that for the

Academic Year 2023-24, it was proposed to allow the

increased seats in favour of those Higher Secondary

Schools who were able to enroll students against these

increased seats. The increased seats shall be withdrawn // 20 //

from 253 HSSs who failed to enroll a single student

against the increased seats (13,821) from the AY: 2023-24.

24. In view of the aforesaid decision of the Committee, it is

understood by this Court that the schools which have failed to

admit even a single student against the increased seats (so far

the Petitioner's institution is concerned, one seat out of 64

seats additionally sanctioned), the entire additional

sanctioned seats are liable to be withdrawn. The intention

behind the decision taken by the HPC and the consequential

conduct of the Department is punitive in nature as those

institutions which have failed to admit any students against

the enhanced strength, their sanctioned strength is liable to be

reduced by withdrawing the additional strength sanctioned in

their favour.

25. The proceeding of the meeting which culminated in a

final decision to allow the increased seats in respect of those

schools who had admitted students against the increased seats // 21 //

and to withdraw the sanctioned in respect of those schools

who have failed to admit the students in respect of the

increased seats prescribes a procedure to be followed or a

decision to be arrived at before giving effect to the decision

of the HPC. In the instance case, the Opposite Parties were

supposed to examine the number of students admitted by the

Petitioner's school in the previous academic year against the

additional sanctioned strength. Without determining the same

first by giving opportunity to the Petitioner, the Opposite

Parties have directly implemented the decision by

withdrawing the additional sanctioned strength of the

Petitioner's institution. On a careful analysis of the pleadings

of both the sides, it appears that there exits a

dispute/ambiguity in the number of students admitted by the

Petitioner for the Academic Year 2022-23. Therefore, the

Opposite Parties were duty bound to issue a show cause

notice to the Petitioner-Institution before implementing the

decision of the HPC.

// 22 //

26. With regard to the second question that whether the

Opposite Parties were duty bound to provide an opportunity

of hearing to the Petitioner's institution before withdrawing

the additional sanctioned strength, this Court would like to

observe that every administrative decision which has a civil

consequence or is likely to be visited with a punitive

consequence to a party concerned is required to be passed

after observing the principles of nature justice. Law in this

regard is fairly well settled by a catena of judgments of the

Hon'ble Supreme Court as well as this Court. This Court,

however, at this juncture would like to refer to a judgment of

the Hon'ble Supreme Court in Krishna Mohan Medical

College and Hospital and Anr. v. Union of India and Anr.,

reported in (2017) 15 SCC 719.

27. In the aforesaid judgment, the Hon'ble Supreme Court

has categorically observed that the rule of 'fair hearing'

which is no longer res integra is an integral part of the

principles of natural justice and the same is embraced in // 23 //

every facet of fair procedure. The rule of fair procedure

requires that the affected parties should be afforded an

opportunity to meet the case against him effectively. Further,

it has also been observed that the right to fair hearing takes

within its sweep the right to show cause supplemented by

reasons and rationale. The Hon'ble Supreme Court further

gone on to observe that a reasonable opportunity of hearing

or right to 'fair hearing' casts a steadfast and sacrosanct

obligation on the adjudicator to ensure fairness in procedure

and action, so much so that any remiss or dereliction in

connection therewith would be at the pain of invalidation of

the decision eventually taken. Thus, every executive authority

empowered to take an administrative action having the

potential of visiting any person with civil consequences must

take care to ensure that justice is not only done but also

manifestly appears to have been done.

28. With regard to the contention raised by the learned

Additional Government Advocate that the Petitioner did not // 24 //

raise any grievance or objection before the Departmental

Authority, this Court is of the considered view that when

decision has not been officially communicated at least there

is nothing on record to show that the impugned decision has

ever been communicated to the Petitioner, therefore, the

question of objecting to the same does not arise at all.

Admittedly, the Petitioner came to know about the reduction

in number of seats through the SAMS web portal in the midst

of the admission procedure. Therefore, the Opposite Parties

cannot put the blame on the Petitioner for not approaching

them before coming to this Court. With regard to the next

contention of the learned Additional Government Advocate

that the impugned order is an appealable order, therefore, the

present writ petition is not maintainable, this Court would

like to observe that availability of alternative remedy is not

an absolute bar. The same is practised by the Courts as a

measure of caution while exercise the jurisdiction under

Article 226 of the Constitution of India. In the instant case, // 25 //

the availability of alternative remedy would not stand as an

absolute bar inasmuch as the Opposite Parties have failed to

comply with the principle of natural justice. Such view of this

Court also get support from the judgment of Hon'ble

Supreme Court in Whirlpool Corporation v. Registrar of

Trade Marks, Mumbai and Ors. reported in (1998) 8 SCC 1.

The aforesaid view of this Court answers the second question

formulated by this Court for adjudication of the issues

involved in the preset writ petition.

29. In view of the aforesaid analysis of fact as well as the

legal position, this Court is of the considered view that the

conduct of the Opposite Parties in reducing the additional

sanctioned 64 seats granted by way of temporary recognition

is absolutely illegal and arbitrary and the same is violative of

the principles of natural justice.

30. Accordingly, Annexure-4, so far as it relates to Science

Stream of the Petitioner-Institution for the Academic Session // 26 //

2023-24, is hereby quashed. The Opposite Parties are further

directed to allow the Petitioner-Institution to admit students

in the additional 64 seats by accepting the number of seats of

the Petitioner's institution in the Science Stream to be 320

and, accordingly, necessary corrections be carried out in the

SAMS portal.

31. With the aforesaid observation and direction, the writ

petition is allowed. However, there shall be no order as to

cost.

(A.K. Mohapatra) Judge

Orissa High Court, Cuttack The 31st July, 2023/D. Aech, Secretary.

Signature Not Verified Digitally Signed Signed by: DEBASIS AECH Designation: PA Reason: Authentication Location: OHC CUTTACK Date: 31-Jul-2023 10:56:28