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Supreme Court of India
The State Of Odisha vs Orissa Private Engineering … on 29 June, 2021Author: Hon’Ble Dr. Chandrachud
Bench: Hon’Ble Dr. Chandrachud, R. Subhash Reddy, S. Ravindra Bhat
1
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”
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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
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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
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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
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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
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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
-S-
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