The State of Odisha & Ors vs Orissa Private Engineering College Association (OPECA) & Anr

Reportable

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

Civil Appeal No 2274 of 2021 (Arising out of Special Leave Petition (Civil) No 5014 of 2021)

The State of Odisha & Ors .... Appellant(s)

Versus

Orissa Private Engineering College Association (OPECA) & Anr ....Respondent(s)

JUDGMENT

Dr Dhananjaya Y Chandrachud, J

1 Leave granted.

2 This appeal arises from an order of a Division Bench of the High Court of Orissa

dated 21 January 2021. The High Court has allowed a writ petition filed by the first

respondent allowing institutions imparting education to grant admission to the

students for the B.Tech (Engineering) degree course for academic session 2020-21

on the basis of the marks obtained in the qualifying examinations. This is purportedly

in relaxation of a statutory requirement that all admissions have to be based on a

centralized entrance test.

Signature Not Verified 3 Digitally signed by Sanjay Kumar In the State of Orissa, there is a legislation called the Odisha Professional Educational Date: 2021.07.07 15:29:23 IST Reason:

Institutions (Regulation of Admission and Fixation of Fees) Act 20071. Section 3 of the

1 “2007 Act” 2

2007 Act contains the following provision:

"3. (1) Subject to the provisions of this Act, admission of students in all private professional educational institutions, Govt. institutions and sponsored institutions to all seats including lateral entry seats, shall be made through Entrance Test(s) approved by the Government followed by centralized counselling in order of merit, in accordance with such procedure as recommended by the Policy Planning Body and approved by the Government.

(2) After vacancy round of Odisha Joint Entrance Examination (OJEE)/ Diploma Entrance Test (DET) Counselling, i.e. after minimum of two rounds of Centralized Counselling, the modalities shall be decided by the Government from time to time for filling up of the vacant seats taking candidates from the Entrance Test(s) approved by the Government on merit basis of all the Technical and Professional Institutes under the supervision of the OJEE/DET Committee. The seats to which candidates could not be sponsored due to dearth of choice and the seats remained vacant due to non-reporting cases 2nd round of Centralized Counselling shall be considered as vacant seats against which the College can admit students following the modalities fixed by the Government. In any case, the reported cases shall not be given further opportunity to participate in the admission process meant for filling up of vacancies at Institution level".

4 As a result of the outbreak of the Covid-19 pandemic, the All India Council for

Technical Education2 issued a circular dated 19 August 2020 by which relaxed

eligibility criteria for students taking admission to vacant seats available for the

PGDM/MBA courses were prescribed on the basis of marks scored by the aspirants

in the qualifying examination. The first respondent, placing reliance upon the

circular, filed a petition under Article 226 of the Constitution before the High Court

seeking a direction to the State Government to implement this circular for B.Tech

Degree courses. The High Court, by its order dated 24 December 2020, left it to the

discretion of AICTE and the State Government to determine whether a similar

benefit as granted to students pursuing the PGDM/MBA courses should be extended

in making admissions for the B. Tech (Engineering) degree course. Pursuant to the

2 “AICTE” 3

direction of the High Court, the AICTE issued a letter dated 6 January 2021. AICTE

clarified the position in the following terms:

“This office has examined the matter in details and found that the Circular dated 19.08.2020 had been issued in respect of the PGDM course keeping in view the (s)ituation prevailing at the relevant time as indicated in the said circular, which included that in many states the several All India Entrance Tests could not be conducted or delayed due to the COVID-19 pandemic. However, the same was not the case so far as the B.Tech Engineering stream is concerned. So issuing any general circular for admission into engineering courses at par with the Circular dated 19.08.2020 was not felt necessary. This also for the further reason being it was provided in para 7.2 of Chapter vii of the Approval Process Handbook 2020-21 that, " The concerned State Government/ UT Admission Authority shall decide modalities for the admission." It is also seen that the Odisha State has made provisions in the Odisha (P)rofessional (E)ducational Institutions (Regulation of Admission and Fixation of Fee) Act, 2007 to fix the modalities of admission into vacant seats.

In such view of the matter, there is no need of issuing any general circular extending benefits, at par with the circular dated 19.08.2020 in respect of B. Tech Engineering Stream. Considering the extra- ordinary situation prevailing all over the country due to COVID-19 Pandemic and varying field situation in different states, the (S)tate Govt. may take suitable decision with regard to modalities of admissions into engineering courses including prescribing for any extend time limit for such admission for the academic session 2020- 21.

This is issued with the approval of the Competent Authority.”

5 Following the above letter, the first appellant informed the first respondent on 7

January 2021 that the circular issued by the AICTE relates only to the PGDM/MBA

courses and not to the B.Tech Degree courses. The communication of the first

appellant was challenged by the first respondent before the High Court, while

seeking directions to allow students to take admission to the B.Tech courses on the

basis of marks obtained in the qualifying examination. The High Court, by its order

dated 21 January 2021, came to the conclusion that there was an error apparent 4

on the face of the letter dated 7 January 2021 by not permitting engineering

institutions to allow students to take admission to B.Tech (Engineering) Courses on

the basis of the marks obtained in the qualifying examination. The High Court held

that the same benefit which was granted to aspiring students for the PGDM/MBA

courses should be given to students of the Engineering Degree stream on the basis

of the AICTE circular.

6 The submission which has been urged on behalf of the appellants by Mr Tushar

Mehta, learned Solicitor General appearing with Mr Sibo Sankar Mishra, learned

Standing Counsel, is that the direction of the High Court is contrary to the provisions

contained in Section 3 of the 2007 Act. It has been urged that Section 3(1)

stipulates that admission of students in all private professional educational

institutions, government institutions and sponsored institutions to all seats including

lateral entry seats shall be made through an entrance test approved by the

government followed by centralized counselling in order of merit. Hence, it has

been submitted that the direction of the High Court to the State Government to

allow for admissions to the B.Tech Degree courses on the basis of marks obtained in

the qualifying examination is contrary to Section 3(1). Apart from this submission, it

has been urged that, as a matter of fact, the AICTE, in its communication which has

been referred to earlier had clearly opined that the B.Tech Degree courses could

not be placed at par with PGDM/MBA courses. Hence, an appropriate decision

was left to the government to take in view of the provisions of the state legislation.

7 On the other hand, Mr Siddhartha Dave, learned Senior Counsel appearing on

behalf of the first respondent, on caveat, has submitted that, as a matter of fact,

benefit has been granted of the direction issued by the High Court to about 592

students who have taken admission to B.Tech Degree courses under direct entry

and 243 students who have taken admission under lateral entry in the State of 5

Odisha. In this context, the following chart has been placed on the record in the

synopsis to the appeal:

“1 TOTAL NUMBER SEATS IN B.TECH 4YEAR 33,653 COURSE 2 TOTAL APPLICATION RECEIVED UNDER 14,422 B.TECH DURING OJEE 2020 3 TOTAL NUMBER OF STUDENTS APPEARED 6,605 AT OJEE2020 UNDER B.TECH

4 TOTAL NUMBER OF STUDENTS REGIS- FROM JEE MAIN TERED FOR OJEE2020 COUNSELLING MERIT LIST – 11,682 FOR ADMISSION TO B.TECH 4 YEAR FROM OJEE MERIT COURSE LIST – 2,285 5 NUMBER OF STUDENTS JOINED FOR 1,227 DURING OJEE B.TECH COURSE FROM OJEE 2020 EXAM COUNSELLING 1,933 DURING COLLEGE/INSTITUTION LEVEL ADMISSION (AFTER OJEE COUNSELLING)”

8 The above chart indicates that while there are over 33,000 seats for the B.Tech four

Year course, as a matter of fact, the number of students who have joined on the

basis of the entrance examination is a meagre fraction of the total number of seats.

It has been submitted that for the present year, having regard to the onset of the

Covid-19 pandemic, the direction of the High Court need not be interfered with.

9 Mr Gaurav Agrawal, learned counsel, has appeared on behalf of some of the

students who have obtained admission.

10 In view of the submission which has been urged on behalf of the institutions by Mr

Siddhartha Dave, as noted above, we had requested the Solicitor General to seek

a factual clarification from the competent authority of the State Government in

regard to the actual number of students who have secured admission in pursuance

of the order of the High Court. The Solicitor General has stated that factually, about

592 students have secured admission to B.Tech degree courses under direct entry 6

and 243 students have secured admission under lateral entry pursuant to the order

of the High Court, as stated on behalf of the first respondent by the learned counsel.

11 The direction by the High Court to the State Government which operates as a

mandamus to admit students to the B.Tech Degree courses on the basis of the

marks obtained in the qualifying examination is expressly contrary to the terms of

Section 3(1) of the 2007 Act. It was in this context that the earlier order of the High

Court dated 24 December 2020 left it to the AICTE and the State Government to

take an appropriate decision in regard to extending the same benefit which was

extended to PGDM/MBA students to the students aspiring for admission to the

B.Tech Degree courses. AICTE, in the course of its letter, had clearly indicated that

the B.Tech degree courses cannot be placed at par with the PGDM/MBA courses

and, hence, it was left to the State Government to take an appropriate decision.

Mr Siddhartha Dave is correct in urging that the actual decision which was taken by

the State Government on 7 January 2021 proceeded on an erroneous interpretation

of the letter which was addressed by the AICTE, that AICTE had not approved of the

course of action. However, that does not obviate the position that the State

Government is duty bound to comply with the provisions of Section 3(1) which hold

the field in the State of Odisha. In this backdrop, the High Court was not justified in

issuing a mandamus to the State Government in the teeth of the provisions of the

statute, more particularly Section 3(1).

12 We accordingly are of the view that the judgment of the High Court proceeds on a

misconception of law and would have to be set aside. We order accordingly.

13 Having observed thus, we are still left with the problem which now concerns the

Court - of 592 students who have taken admission under direct entry and 243

students who have taken admission under lateral entry in the B.Tech degree courses 7

in pursuance of the direction of the High Court. The Court cannot be unmindful of

the impact of the Covid-19 pandemic. The number of students who actually could

appear for the entrance examination is a small proportion of the total number of

seats available in the State. To displace such a body of students who have already

been admitted would not be in the interests of justice. Hence, in exercise of our

jurisdiction under Article 142 of the Constitution, we are of the view that for the

current year, the admission which has been granted by the institutions to 592

students under direct entry and 243 students under lateral entry to the B.Tech

degree courses should not be disturbed. We are passing this direction having

regard to the overwhelming hardship which has been faced during the course of

the Covid-19 pandemic. The Solicitor General has fairly left an appropriate direction

in regard to the above 592 students who have already secured admission under

direct entry and 243 students who have secured admission under the lateral entry to

the discretion of this Court.

14 We direct that the admission of the above students shall not be disturbed, while

setting the legal position to rest.

15 The appeal is accordingly disposed of.

16 Pending application, if any, stands disposed of.

…………...…...….......………………........J. [Dr Dhananjaya Y Chandrachud]

…..…..…....…........……………….…........J. [R Subhash Reddy]

…..…..…....…........……………….…........J. [S Ravindra Bhat] New Delhi;

June 29, 2021

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