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2010 DIGILAW 707 (ORI)

Biju Patnaik University of Technology, Orissa v. Kanak Manjari Institute of Pharmaceutical Sciences

2010-10-25

I.MAHANTY, V.GOPALA GOWDA

body2010
JUDGMENT I. MAHANTY, J. — The present writ appeal has been filed by the Biju Patnaik University of Technology (in short BPUT), Orissa, seeking to challenge the judgment/order dated 28.10.2009 passed by the Learned Single Judge in W.P.(C) No. 9702 of 2008. 2.The appellant had filed Misc. Case No. 398 of 2009 seeking stay of operation of judgment/order dated 28.10.2009 passed in W.P.(C) No. 9702 of 2008 and the said Misc. Case was rejected by the order dated 12.3.2010, noting therein that the Court was not inclined to pass any interim order at that stage. It appears from the record that the appellant had moved the Hon’ble Supreme Court in Special Leave Petition (Civil) No. 10279-10280 of 2010 against the rejection of the interim prayer and the Hon’ble Supreme Court vide interim order dated 26.4.2010 had initially directed stay of operation of the impugned judgment/order dated 12th March, 2010 and 18th March, 2010, as well as, directed stay of contempt proceeding. Therefore the aforesaid SLP came to be disposed of vide order dated 6th September, 2010, by which order, the Hon’ble Supreme Court was pleased to direct as follows: “.....It is brought to our notice that the Cont. Pet. No. 2196 of 2009 has been disposed of by the High Court on 29th March, 2010. It is not in dispute that the main matter i.e. Writ Appeal No. 232 of 2009 is still pending before the High Court which relates to the admission of students in such circumstances, we request the High Court to dispose of the above mentioned writ appeal as early as possible not later than four weeks. The special leave petitions are disposed of accordingly. Consequent upon the disposed of the above mentioned Special Leave Petition, this court’s Order dated 26th April, 2010, granting stay on the prayer for interim relief be and is hereby subject to the order quoted as above.” 3.Pursuant to the aforesaid direction of the Hon’ble Supreme Court, the matter was listed before us on 8.10.2010 and on the said date, on the request of the learned counsel for the appellant (BPUT), the matter was adjourned and directions were issued to list the matter after the Puja Vacation, on the reopening day i.e. 25.10.2010. Accordingly, the matter was listed on 25.10.2010 and after hearing the learned counsel for both the parties, an order was passed dismissing the writ appeal with a further direction that the reasons would follow. Hence the present judgment. 4.Mr. Subir Palit, learned counsel appearing for the appellant University, inter alia, submits that the respondent No.1-institution had challenged, an advertisement issued by the appellant-university, seeking applications for being admitted into M. Pharma course for three successive years, namely, Academic years 2007-08, 2008-09 and 2009-10. The aforesaid advertisements for the three years were challenged in, W.P.(C) No. 9402 of 2007, W.P.(C) No. 9702 of 2008 and W.P.(C) No. 12052 of 2009. W.P.(C) No. 9402 of 2007 and W.P.(C) No. 9702 of 2008 were disposed of on 28.10.2009 and W.P.(C) No. 12052 of 2009 was disposed of on 04.11.2009. 5.A writ appeal No. 215 of 2009 had been filed by the appellant seeking to challenge the judgment/order dated 28.10.2009 passed in W.P.(C) No. 9402 of 2007. The said writ appeal came to be dismissed vide order dated 13.4.2010. Mr. Palit, learned counsel for the appellant fairly admits that no challenge to the dismissal of the said writ appeal has been made by the appellant. The present writ appeal i.e. W.A. No. 232 of 2009 relates to the judgment/order passed by the learned Single Judge in W.P.(C) No. 9702 of 2008 dated 28.10.2009 i.e. on the same date on which W.P.(C) No.9402 of 2007 was disposed of by the learned Single Judge and the said challenge in writ appeal No. 215 of 2009, came to be dismissed vide order dated 13.4.2010. 6.In view of the aforesaid facts, since writ appeal No. 215 of 2009 arose out of a similar order passed in W.P.(C) No.9402 of 2007, there is no justifiable reason for this Court to view the present writ appeal in any different manner and, therefore, we find no justifiable reason to treat the present writ appeal in any different manner other than writ appeal No. 215 of 2009 and accordingly, on this ground, the present writ appeal i.e. writ appeal No. 232 of 2009 also deserves to be dismissed. 7.Mr. Palit, learned counsel for the appellant submitted that the respondent-institution ought not to have admitted students directly into the institution when they had not appeared at the “Common Entrance Test” conducted by the University. 7.Mr. Palit, learned counsel for the appellant submitted that the respondent-institution ought not to have admitted students directly into the institution when they had not appeared at the “Common Entrance Test” conducted by the University. Insofar as W.P.(C) No. 9402 of 2007 (disposed of vide order dated 28.10.2009) is concerned, it is clear therefrom that, the State of Orissa has enacted the Orissa Professional Institutions (Regulation of Admission and Fixation of Fee) Act, 2007 and under Section 3 thereof provides for regulation of admission into professional educational institutions. 8.While the aforesaid Act had been challenged before Orissa High Court in W.P.(C) No. 3207 of 2007 and the High Court vide its order dated 18.5.2007 declared the Act 4 of 2007 unconstitutional, the State of Orissa had challenged the said judgment of this Court in SLP No. 10329 of 2007 and 10330 of 2007 and the Hon’ble Supreme Court vide order dated 18.5.2007 granted leave to appeal and directed interim stay of the impugned judgment on certain conditions contained in the said order. 9.It appears that the BPUT (appellant) had published an advertisement in the local paper on 30.6.2007 inviting applications for admission to M. Tech and M. Pharma courses. The said advertisement had been sought to be challenged on the ground that BPUT (appellant) had no authority either, under the Orissa Act 4 of 2007 as well as by virtue of the interim direction of the Hon’ble Supreme Court dated 18.5.2007 to advertise or to conduct the entrance examination. Section 3 of Orissa Act 4 of 2007 which prescribes the method of admission in professional educational institution is quoted hereunder: “3. Subject to the provisions of this Act, 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 JEE conducted by the Policy Planning Body followed by centralized counselling in order of merit, in accordance with such procedure as recommended by the said body and approved by the Government.” On a reading of the aforesaid provision, it is clear there from that on and from the date of said enactment, all admissions of students into all private professional educational institutions, Government institutions and sponsored institutions to all seats including lateral entry seats, shall be made through JEE conducted by Policy Planning Body followed by Apex JEE Committee and central counselling in order of merit. The learned Single Judge in our considered view correctly came to hold that the appellant-BPUT did not have the necessary authority to issue the impugned advertisement, since it was only the policy planning Body which was vested with the power to conduct JEE and the Policy Planning Body had not conducted any such examination. Apart from the above, it is clear from the aforesaid provision that, the Policy Planning Body is not vested with any authority to delegate such power to conduct JEE. Therefore, we find no error whatsoever in the finding arrived at by the Single Judge, to the effect that the BPUT-appellant herein had no authority in law to issue the impugned advertisement for holding examination for being admitted into the M. Pharma courses. Mr. Palit fairly submitted that from the academic year 2010-11 admission into Post Graduate Professional Courses including B. Pharma is being conducted by the Policy Planning Body (PPB) by following the Central Counselling. 10.Apart from the above, the facts of the present case clearly indicate that students have taken admission in the year 2008-09 and M. Pharma is a course over a period of two years. By virtue of interim orders, students who have taken admission into the respondent institution have not only undergone the said course but have also been duly registered with BPUT and have appeared at their exams and, therefore, the learned Single Judge in the impugned judgment directed declaration of result of the said students. 11.While dismissing the present writ appeal, we also note our grave concern as to the manner in which admissions are made for students into various professional courses, depriving meritorious students from admission into such courses. This Court while expressing its deepest anguish in the matter directs that the writ jurisdiction should not be wantonly exercised in order to give benefit to ineligible students. A writ Court should be very careful in its exercise of writ jurisdiction, in order to ensure that the sanctity of the admission procedure is maintained at all cost, as well as to consider the consequences of the interim order directing admission into courses. A writ Court should be very careful in its exercise of writ jurisdiction, in order to ensure that the sanctity of the admission procedure is maintained at all cost, as well as to consider the consequences of the interim order directing admission into courses. This should not be resorted to by way of usual course and Courts should endeavour to take up the matter for final disposal at an early date, rather than passing interim direction allowing ineligible candidates to pursue academic courses and further passed interim direction to allow them to appear in the exams and thereafter in conclusion directing publication of result. We note our grave concern in the matter of higher education and we further note that the judgment of the Hon’ble Supreme Court in the case of Guru Nanak Dev University v. Parminder Kr. Bansal, (1993) 4 SCC 401 should be strictly followed both in letter as well as in spirit. Appeal dismissed.