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2014 DIGILAW 254 (ORI)

Sudhansu Sekhar Sabat v. State of Orissa

2014-04-16

A.K.GOEL, A.K.RATH

body2014
JUDGMENT : Dr. A.K. RATH, J. This, is an appeal under Clause 10 of the Letters Patent against the judgment and order dated 20.12.2013 passed by the learned Single Judge in WP (C) No. 12869 of 2013, whereby and where under the learned Single Judge upheld the decision dated 23.5.2013 of the Government of Odisha in E & TE&T Department declaring the admission of the appellant's to B.Tech. Course in respondent No. 4 College for the academic year 2012-13 against non-reporting vacant seats illegal and cannot be regularized. 2. Shorn of unnecessary details, the short facts in the case of appellants are that they have qualified in the entrance test conducted by the Odisha Joint Entrance Examination Committee for the year 2012 (hereinafter referred to as "the OJEE-2012") and All India Engineering Entrance Examination, 2012 (hereinafter referred to as "the AIEEE-2012") conducted by the Central Board of Secondary Education. They are merit rank holder students. After closure of the 2nd round counselling of the OJEE-2012, seats in various private engineering colleges remained vacant because of the non-reporting of the students in the said colleges. Forty-seven seats in respondent No.4-College remained vacant due to non-reporting of the students in the said college. The OJEE-2012 held its final round of counselling starting from 12.10.2012 in which the OJEE did not include the vacant non-reporting seats of the institution. They appeared at the counselling centre. They were assured by the authorities of the OJEE that a special counselling would be held in respect of non-reporting vacant seats for some of private engineering colleges. They did not participate in the 3rd round of counselling process in view of the fact that respondent No. 4-college is one of the premier colleges of the State and they were willing to get admission in the said college. The Policy Planning Body (hereinafter referred to as "the PPB") in its meeting dated 01.12.2012 decided for holding a special counselling in respect of vacant non-reporting seats. Accordingly, the OJEE issued notice on 03.12.2012 for holding a special counselling for the vacant non-reporting seats, for which they exercised their willingness to get admission in the respondent No.4-College. The Policy Planning Body (hereinafter referred to as "the PPB") in its meeting dated 01.12.2012 decided for holding a special counselling in respect of vacant non-reporting seats. Accordingly, the OJEE issued notice on 03.12.2012 for holding a special counselling for the vacant non-reporting seats, for which they exercised their willingness to get admission in the respondent No.4-College. As the PPB in its meeting held on 01.12.2012 took a decision for not deviating academic calendar of Biju Pattnaik University and Technology (hereinafter referred to as "the BPUT"), undertakings were taken from them as well as their parents by respondent No. 4 college and they were allowed to continue their courses against the vacant non-reporting seats awaiting regularization other admission by the authorities concerned. Anticipating regularization of their admission by the State Government, they are continuing in B.Tech. Course in respondent No.4-college. In April, 2013, the State Government regularized the admission of 10% management quota seats by ignoring their case, though the policy of PPB in its meeting held on 01.12.2012 decided to regularize the admission of willing students through OJEE counselling. They came to know that respondent No. 1 took a unilateral decision on 23.5.2013 not to regularize their admission. Hence, they filed writ application praying, inter alia, for a direction to the respondents to rectify and regularize their admission against vacant non-reporting seats in respondent No.4-college and to issue registration number of the BPUT. 3. Pursuant to the issuance of notice, a counter affidavit has been filed by the Registrar, BPUT-respondent No. 2. The case of the respondent No. 2 is that the OJEE-2012, respondent No. 3, is a constituent body constituted for conducting common entrance test in the State of Odisha for allotment of seats to the candidates for admission in the institutions, as per their rank and choice during counselling as per 2007 Act. After the admission was completed by respondent No. 3, a list of admitted students along with the names of the institutions was sent to respondent No. 2, on which respondent No. 2 recognized their admission and issued registration numbers to the students. In the instant case, the students have not admitted through OJEE. It is further stated that despite several vacancy round counselling, the appellants did not participate in the counselling. They are not allotted seats by respondent No. 2 in respondent No. 4-college. In the instant case, the students have not admitted through OJEE. It is further stated that despite several vacancy round counselling, the appellants did not participate in the counselling. They are not allotted seats by respondent No. 2 in respondent No. 4-college. Thus, the admission of the appellants in respondent No. 4 college is illegal and invalid. Respondent No. 3- OJEE also filed a counter affidavit taking as similar stand. 4. Learned Single Judge in an elaborate judgment came to hold that the earlier order dated 31.3.2009 passed in W.P. (C) No. 15532 of 2008 is per incuriam. It is further held that there is no illegality or infirmity in the order dated 23.5.2013 passed by respondent No. 1 and the appellants admission in B.Tech course in respondent No. 4-college for academic session 2012-2013 against non-reporting vacant seats is illegal and cannot be regularized. 5. We have heard Mr. B. Routray, learned Senior Advocate for the appellants, Mr. R.K. Mohapatra, learned Government Advocate for respondent No. 1, Mr. A.K. Mohapatra, learned Advocate for respondent No. 2, Mr. S. Palit, learned Advocate for respondent No. 3 and Mr. S.K. Padhi, learned Senior Advocate for respondent No. 4. 6. Placing reliance on Section 9(5) of the Orissa Professional Educational Institutions (Regulation of Admission and Fixation of Fee) Act, 2007 (hereinafter referred to as "the 2007 Act"). Mr. Routray argued with vehemence that where the seats remain unfilled due to non-availability of candidates in the list specified in Sub-sections (3) and (4) of Section 9, the same shall be filled up by the candidates belonging to the general category from the merit list. He further submitted that in an identical matter, i.e. WP (C) No. 14587 of 2008 disposed of on 1.10.2008, the learned Single Judge came to hold that non-reporting vacant seats can be filled up in the college level from the merit list of OJEE rank holders. He further submitted that so far as BPUT calendar is concerned, Statute 66(2) of the BPUT Statute 2006 provides, inter alia, that the academic year shall not be less than 180 days of 5 hours duration each excluding days or hours spent for examination. Accordingly, the calendar of BPUT for the academic year 2013-14, the shortfall of 75 working days in an academic session can be compensated by conducting extra class. Accordingly, the calendar of BPUT for the academic year 2013-14, the shortfall of 75 working days in an academic session can be compensated by conducting extra class. In fact, the institution has conducted extra classes of two hours for the said seven number of students and submitted the report to their concerned authority. In view of the same, the impugned judgment dated 20.12.2013 is illegal, arbitrary and needs to be interfered with. Mr. S. Padhi, learned Senior Advocate for respondent No. 4, supported the submissions of Mr. Routray. 7. Per contra, Mr. Mohapatra, learned Advocate for BPUT-respondent No. 2 and Mr. Palit, learned Advocate for OJEE-2012 respondent No. 3, submitted that the recommendation of PPB has been rejected by the Government vide order dated 23.5.2013. Under Section 3 of the 2007 Act, final approving authority is the Government. The admission of the appellants has not been made through OJEE. In view of Section 11 of 2007 Act, the admission is invalid. They further submitted that despite several vacancy round counselling, the appellants have failed to turn up. The appellants have not been admitted through OJEE. They further submitted that respondent No. 4-college is indulged in malpractice of seat blocking and in the said process; less meritorious students have been taken admission after counselling for the admission process is over. Furthermore, college level counselling is not permissible under 2007 Act. The admission of the appellants by illegal means cannot be regularized. They further submitted that the Court cannot issue direction to the University to protect the appellants, who have taken admission at the college level without counselling. It is further submitted that the order dated 31.3.200.9 passed in WP (C) No. 15532 of 2008 is per incuriam. 8. 2007 Act was enacted by the State Legislatures to provide for the regulation of admission, fixation of fee, prohibition of capitation fee, reservation in admission and for other measures to ensure equity and excellence in professional educational institutions, pursuant to the judgment of the Hon'ble Apex Court in the case of P.A. Inamdar and others v. State of Maharashtra, AIR 2005 SC 3226 . 9. Sections 3, 9 and 11 of the 2007 Act read as follows : "3. 9. Sections 3, 9 and 11 of the 2007 Act read as follows : "3. Subjection 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. 9 (1) In every professional educational institution admission shall be in accordance with the reservation policy of the Government notified for the purpose of this Act. Provided that nothing in this 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 filed up by NRI from the merit list prepared on the basis of JEE. (3) Where any shortfall in filling up 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 filing 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 candidates 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 within 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. 11. Any admission made in violation of the provisions of this Act or the rules made thereunder shall be invalid." 10. Section 3 of the Act provides 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 JEE conducted by the PPB followed by centralized counselling in order of merit. Section 11 of the Act provides that any admission made in violation of the provisions of this Act or the Rules made thereunder shall be invalid. But then placing reliance on Sub-section (5) of Section 9 of the Act, Mr. Routray, learned Senior Advocate, submitted that 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. We are unable to accept the said submission. The expression "all seats" appearing in Section 3 of the Act includes admission of students under Section 9 of the Act. Section 9 of the Act cannot be read in isolation. A statute must be read as a whole. No part of the statute can be construed in isolation. The Hon'ble Supreme Court in the case of Reserve Bank of India v. Peerless General Finance & Investment Co. Ltd., AIR 1987 SC 1023 , the Bench speaking through Chinnappa Reddy J, in paragraph-33 of the report 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. 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 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 those 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 proceeded 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." 11. On a conjoint reading of Section 3 and Section 9 of the Act, a conclusion is irresistible 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 JEE conducted by the PPB followed by centralized counselling in order of merit including the seats remain unfilled due to non-availability of candidates in the list specified in Sub-sections (3) and (4) of Section 9 of the Act. Sub-section (5) of Section 9 of the Act does not authorize any college to admit students of its own, even if the seas remain unfilled due to non-availability of candidates. Further, reliance placed on the judgment and order dated 31.3.2009 passed in WP (C) No. 15532 of 2008 is wholly misplaced. Sub-section (5) of Section 9 of the Act does not authorize any college to admit students of its own, even if the seas remain unfilled due to non-availability of candidates. Further, reliance placed on the judgment and order dated 31.3.2009 passed in WP (C) No. 15532 of 2008 is wholly misplaced. Neither the decision of the Hon'ble apex Court in the case of P.A. Inamdar nor any statutory provision of 2007 Act was the subject-matter of interpretation in the said case. In view of the same, the said order is per incuriam. 12. The concept of "per incuriam" is those decisions given in ignorance or forgetfulness of some inconsistent statutory provisions or of some authority binding on the Court concerned, i.e. previous decisions of the Court, i.e., its own Court or by a Court of co-ordinate or higher jurisdiction or in ignorance of a term of a statue or by a rule having the force in law. "Incuria" literally means "carelessness". In practice, per incuriam is taken to mean per ignorantiam. 13. In Punjab Engineering College, Chandigarh v. Sanjay Gulati and others, AIR 1983 SC 580 , the Hon'ble Supreme Court held as follows : "4. Cases like these in which admissions granted to students in educational institutions are quashed raise a sensitive human issue. It is unquestionably true that the authorities who are charged with the duty of admitting students to educational institutions must act fairly and objectively. If admissions to these institutions are made on extraneous considerations and the authorities violate the norms set down by the rules and regulations, a sense of resentment and frustration is bound to be generated in the minds of those unfortunate young students who are wrongly or purposefully left out. Indiscipline in educational institutions is not wholly unconnected with a lack of sense of moral values on the part of the administrators and teachers alike. But, the problem which the Courts are faced with in these cases is, that it is not until a period of six months or a year elapses after the admissions are made that the intervention of the Court comes into play. But, the problem which the Courts are faced with in these cases is, that it is not until a period of six months or a year elapses after the admissions are made that the intervention of the Court comes into play. Writ petitions involving a challenge to such admissions are generally taken up by the High Court as promptly as possible but even then, students who are wrongly admitted finish one of two semesters of the course by the time the decision of the High Court is pronounced. A further appeal to this Court consumes still more time, which creates further difficulties in adjusting equities between students who are wrongly admitted and those who are unjustly excluded, inevitable, the Court has to rest content with and academic pronouncement of the true legal position. Students who are wrongly admitted do not suffer the consequences of the manipulations, if any, made on their behalf by interest persons. This has virtually come to mean that one must get into an educational institution by means, fair or foul. Once you are in, no one will put you out. Laws delays work their wonders in such diverse fashions. 5. We find that this situation has emboldened the erring authorities of educational institutions of various States to indulge in violating the norms of admission with impunity. They seem to feel that the Courts will leave the admissions intact, even if the admissions are granted contrary to the rules and regulations. This is a most unsatisfactory state of affairs. Laws are meant to be obeyed, not flouted. Some day, not distant, if admissions are quashed for the reason that they were made wrongly it will have to be directed that the names of students who are wrongly admitted should be removed from the rolls of the institutions....." 12. What remains to be considered is whether the selection of respondent 6 should be quashed. We are afraid, unduly lenient view of the Court's on the basis of human consideration in regard to such excesses on the part of the authorities, has served to create an impression that even where an advantage is secured by stratagem and trickery, it could be rationalized in Court's of law. Courts do and should take human and sympathetic view of matters. That is the very essence of justice. Courts do and should take human and sympathetic view of matters. That is the very essence of justice. But considerations of judicial policy also dictate that a tendency of this kind were advantaged gained by illegal means is permitted to be retained will jeopardize the purity of selection process itself, engender cynical disrespect towards the judicial process and in the 1st analysis embolden errant authorities and candidates into a sense of complacency and impunity that gains achieved by such wrongs could be retained by an appeal to the sympathy of the Court. Such instances reduce the jurisdiction and discretion of Courts into private benevolence. This tendency should be stopped. The selection of Respondent 6 in the sports category was, on the material placed before us, thoroughly unjustified. He was not eligible in the sports category. He would not be entitled on the basis of his marks, to a seat in general merit category. Attribution of eligibility long after the selection process was over in our opinion, is misuse of power. While we have sympathy for the predicament of Respondent 6, it should not lose sight of the fact that the situation is the result of his own making. We think, in order to uphold the purity of academic processes, we should quash the selection and admission of Respondent 6. We do so, though, however, reluctantly. 14. The hardship to the students is a serious issue but cannot be conclusive. Thus, only such students who were proximate to the merit, could be shown sympathy. We direct the University to constitute a committee which may look into this aspect and approve those students who are proximate to the merit of the last candidate admitted within two weeks of receipt of a copy of this order. Except for this, we do not find any ground to interfere with the cancellation of admissions. In respect of such other students who are not found to be proximate to the merit of the last candidate admitted, the order of cancellation of admission is upheld." 14. In Priya Gupta v. State of Chhattisgarh and others, (2012) 7 SCC 433 , the Hon'ble Supreme Court held as follows : "46.8. No college may grant admissions without duly adverting the vacancies available and by publicizing the same through the internet, newspaper, on the notice board of the respective feeder schools and colleges, etc. In Priya Gupta v. State of Chhattisgarh and others, (2012) 7 SCC 433 , the Hon'ble Supreme Court held as follows : "46.8. No college may grant admissions without duly adverting the vacancies available and by publicizing the same through the internet, newspaper, on the notice board of the respective feeder schools and colleges, etc. Every efforts has to be made by all concerned to ensure that the admissions are given on merit and after due publicity and not in a manner which is ex facie arbitrary and casts the shadow of favouritism." 15. In Parshvanath Charitable Trust and others v. All India Council for Technical Education and others, (2013) 3 SCC 385 , the Hon'ble Supreme Court in Para 41 of the report formulated the schedule for conducting the entrance examination and declaration of result. It is held that the admission to academic courses should start by 1st August of the relevant year. The seats remaining vacant should again be duly notified and advertised. All seats should be filled positively by 15th August after which there shall be no admission. It is further held that the schedule shall be strictly adhered to by all concerned and none of the authorities shall have the power or jurisdiction to vary these dates of admission. The same are quoted hereunder: "41. The appropriate Schedule, thus, would be as follows : Event Schedule Conduct of Entrance In the month of May Examination (AIEEE/State CET/Mgt. It is further held that the schedule shall be strictly adhered to by all concerned and none of the authorities shall have the power or jurisdiction to vary these dates of admission. The same are quoted hereunder: "41. The appropriate Schedule, thus, would be as follows : Event Schedule Conduct of Entrance In the month of May Examination (AIEEE/State CET/Mgt. quota exams etc.) Declaration of result of On or before 5 Qualifying Examination (12th Exam or similar) and Entrance Examination 1st round of counselling/admission To be completed on or for allotment of seats before 30th June 2nd round counselling for To be completed on allotment of seats or before 10th July Last round of counselling for To be completed on allotment of seats or before 20th July Last date for admitting 30th July candidates in seats other than However, any number of rounds allotted above for counselling could be conducted depending on local requirements, but all the rounds shall be completed before 30th July Commencement of academic Session 1st August Last date upto which students 15th August can be admitted against vacancies arising due to any reason (no student should be admitted in any institution after the last date under any quota) Last date of granting or refusing 10th April approval by AICTE Last date of granting or refusing 15th May approval by University/State Govt. 42. The admission to academic courses should start, as proposed, by 1st August of the relevant year. The seats remaining vacant should again be duly notified and advertised. All seats should be filled positively by 15th August after which there shall be no admission, whatever be the reason or ground. 43. The admission to academic courses should start, as proposed, by 1st August of the relevant year. The seats remaining vacant should again be duly notified and advertised. All seats should be filled positively by 15th August after which there shall be no admission, whatever be the reason or ground, grant of admission and commencement of the technical courses. Any variation is bound to adversely affect the maintenance of higher standards of education and systemic and proper completion of courses." 16. Now, the question arises for consideration is if seats in various colleges remain vacant after the counselling of OJEE, whether it is permissible on the part of the colleges to admit the students who have not been sponsored by OJEE ? Now, the question arises for consideration is if seats in various colleges remain vacant after the counselling of OJEE, whether it is permissible on the part of the colleges to admit the students who have not been sponsored by OJEE ? The same cannot be. That is the mandate of 2007 Act. We reiterate that if an admission is made in violation of the provision of 2007 Act, the same shall be invalid in view of Section 11 of the Act. 17. The next question arises for our consideration is whether any direction can be issued to the University to regularize the admission of the appellants and issue registration number. We have held that the appellants have riot taken admission in respondent No. 4-College through OJEE. Thus, their admissions are invalid. But then, they are rank card holders. They have pursued their studies in respondent No.4-college. Keeping in mind the future of the students, we take a lenient view and direct University to regularize their admission and issue registration numbers. But the matter does not rest there. As would be evident from the pleadings of the parties and submissions made at the Bar that respondent No. 4 College is indulged in malpractice of seat blocking and more meritorious students have been left out. Such a course is not permissible on the part of the college. The college, which violates the statutory provision of 2007 Act and admit the students, has to be dealt with in a stern hand. Admitting the students at the college level counselling is nothing, but far illegal motive. The same is a breeding ground for corruption and feeding source of indiscipline. 18. In view of the same, we impose an exemplary cost of Rs. 10,00,000/- (Rupees ten lakhs) on the respondent No. 4-College. The said cost shall be deposited before respondent No. 1 within one month from today. We make it clear that unless cost is deposited, BPUT-respondent No. 2 shall not regularise the admissions of the students and grant admit cards. 19. Before parting with the case, we would like to observe that enunciation of law laid down by the Hon'ble Supreme Court in Parshwanath Charitable Trust in paragraph-41 of the report providing a schedule for conduct of examination, declaration of result, counselling date of admission and commencement of academic session should be strictly followed by the PPB and the Government. 19. Before parting with the case, we would like to observe that enunciation of law laid down by the Hon'ble Supreme Court in Parshwanath Charitable Trust in paragraph-41 of the report providing a schedule for conduct of examination, declaration of result, counselling date of admission and commencement of academic session should be strictly followed by the PPB and the Government. Any deviation therefrom by any authority is not only contemptuous, but the same is subversive of the rule of law. With the above extent, the writ appeal is allowed. CHIEF JUSTICE, I agree. Appeal allowed.