Judgment B.N. Mahapatra In this Writ Petition, the petitioner which is the Orissa Private Engineering College Association (for short ‘OPECA’), claims to be an Association of 92 self-financed private Engineering Colleges and 47 MCA Colleges situated at various places in the State of Odisha. The present Writ Petition has been filed with a prayer to issue appropriate writ(s) directing the State Government and its authorities including the ‘OJEE’ for taking necessary steps and measures for holding 2nd OJEE Test for B.Tech (Engineering)/M.Tech/M.C.A./M.B.A. courses of the current academic year 2014-15 in respect of the vacant seats of the members-institutions of the petitioner-Association and after completion of 2nd OJEE counseling process, and the seats that remain un-filled after completion of counseling, may be directed to be filled up by the member-institutions of the petitioner-Association out of the merit lists prepared by the OJEE/JEE-Main (erstwhile AIEEE)/other approved Entrance tests under the supervision of the ‘Policy Planning Body’ (for short, ‘PPB’) or Odisha Joint Entrance Examination Committee (for short, ‘OJEE’) within the time stipulations prescribed by the Hon’ble Supreme Court in the case of Parshavanath Charitable Trust and others Vs. AICTE and others, as well as by this Hon’ble Court in the judgment dated 14.05.2014 passed in W.P.(C) No.6242 of 2014. 2. Petitioner’s case in a nut shell is that all the members of the petitioner-Association have been approved by All India Counsel for Technical Education (for short, ‘AICTE’) and affiliated to concerned Universities (presently to BPUT after its establishment in the year 2002). The said institutions administer higher technical courses, i.e., B.Tech, M.C.A. and M.B.A. apart from other allied technical courses to its students. The State of Odisha has enacted the Odisha Professional Educational Institutions (Regulation of Admission and Fixation of Fee) Act, 2007 (for short, ‘2007 Act’) for regulation of admission, fixation of fees, prohibition of capitation fees etc. In view of Section 3 of the 2007 Act, admission of students in the memberinstitutions of the petitioner-Association shall be made through JEE conducted by the PPB in accordance with the procedures as recommended by the said Body and approved by the State Government. In view of Section 3 of the 2007 Act, admission of students in the memberinstitutions of the petitioner-Association shall be made through JEE conducted by the PPB in accordance with the procedures as recommended by the said Body and approved by the State Government. In the current academic section, i.e., 2014-15, the authorities concerned in deviation of the statutory provisions enumerated under Section 3 of the 2007 Act, have not conducted OJEE for B.Tech (Engineering) and have suddenly decided to merge with the JEE (Main) conducted by Central Board of Secondary Education (for short, ‘CBSE’). Such illegal and arbitrary decisions have debarred thousands of aspiring students out of the State under ‘ZZ’ quota seats to prosecute their B.Tech (Engineering) studies in Odisha run by the member-institutions of the petitioner-Association. The State Government and the authorities of OJEE have failed to discharge their statutory obligations in holding entrance test, though the similar other private/deemed to be Universities run in the State are holding their institutional level tests for B.Tech courses. Because of the illegalities and irregularities committed by the State Government, though in the last year about 63,000 students had appeared in the OJEE test for B.Tech courses, but this year their numbers had been reduced significantly to 50,000 against the approximate 48,000 seats approved by the AICTE for B.Tech courses. Thousands of students, who appeared in the ensuing +2 Science instant examinations conducted by the CHSE-Odisha, CBSE, ICSE will be deprived of getting admission into B.Tech (Engineering) courses for the current academic session even after their success in the said examinations, because of the stipulations prescribed by the CBSE in the ‘information bulletin’ of the JEE (Main) 2014. The ranks are given for the JEE (Main) 2014 taking into consideration the percentage of marks secured by the candidates in the entrance test as well as in their concerned Board Examinations, i.e., on the basis of 60:40 ratio. Whereas, as per the provisions of OJEE test, all students/candidates appeared in it, are given a rank as per their performances in the test and OJEE fix its schedule of counseling taking note of the publication of results of +2 Science instant examinations. But, as per news published in the newspapers, 4258 students have succeeded in the +2 Science instant examinations conducted by CHSE-Odisha and its result was published on 15.07.2014. But, as per news published in the newspapers, 4258 students have succeeded in the +2 Science instant examinations conducted by CHSE-Odisha and its result was published on 15.07.2014. Hence, holding of no JEE by the OJEE-2014 for the current academic year has caused serious prejudice to such aspiring students as well as to the institutions imparting B.Tech courses. In spite of the repeated requests from the side of the petitioner-Association as well as time and again discussions made in meetings of the PPB, the State Government has failed to devolve any clear guidelines with regard to filling up of vacant seats after completion of OJEE counseling though a number of qualifying students have opted for taking admission in the member-institutions of the petitioner-Association against some vacant seats. Whereas, the authorities of OJEE and the State Government have allowed other similar institutions run by the State Government and State run Universities to fill up such vacant seats at their institution level even after end of the 1st round OJEE counseling. Hence, against such illegal discriminations as well as to curb injustice, the petitioner seeks for kind intervention of this Court with regard to the issues as stated above. In the meantime, OJEE has started its web-counseling process for the current academic session, i.e., 2014-15 fixing the last date of allotment to 31.07.2014 for B.Tech (Engineering) courses. 3. Further case of the petitioner-Association is that the Cabinet Sub-committee constituted by the State Government has submitted its recommendation to the State Government for allotment of 10% management quota seats to the private professional educational institutions as well as to handover all vacant seats to such institutions for filling up of the same as per the guidelines of OJEE after completion of 2nd round counseling of OJEE. In the meantime, Law Department has given its concurrence to the said recommendation and the same has been approved by the Hon’ble Chief Minister. In this context, the petitioner-Association in its letter dated 11.07.2014 made a request to the State Government through its departmental Secretary to implement such recommendation with effect from this academic year, i.e., 2014-15. Further case of the petitioner is that a large number of vacancies will arise for the current year. In this context, the petitioner-Association in its letter dated 11.07.2014 made a request to the State Government through its departmental Secretary to implement such recommendation with effect from this academic year, i.e., 2014-15. Further case of the petitioner is that a large number of vacancies will arise for the current year. The final round of counseling for Engineering and MBA programmes are to be completed by the OJEE by end of July, 2014 and as per the guidelines of the Hon’ble Supreme Court in Parshavanath Charitable Trust and others Vs. AICTE and others, in C.A. No.9048 of 2012 decided on 13th December, 2012, the process of admission to be continued till 15th August, 2014. Therefore, it was submitted that there would be no difficulty on the part of the OJEE-2014 to hold entrance tests for the above noted technical programmes. 4. Mr.S.K.Padhi, learned Senior Advocate and Mr.B.Routray, learned Senior Advocate in connected Writ Petitions submitted that Section 9(7) of 2007 Act casts obligations on the OJEE for holding 2nd JEE in the event of vacancies occur and keeping in view the said statutory provisions, the OJEE had also conducted 2nd JEE within a short span of time yielding positive response. In the current academic session, this Court while dealing with identical issues and anticipating huge number of vacancies in ‘Diploma’ level Engineering courses, in W.P.(C) No.6242 of 2014, has directed the State Government to hold 2nd DET for the current academic session and accordingly the State Government has discharged its obligations by taking steps for holding 2nd DET-2014. 5. Placing reliance on the judgment of the Hon’ble Supreme Court in the case of T.M.A. Pai Foundation and others Vs. State of Karnatak and others, 2002 (8) SCC 481 it was submitted that every citizen has fundamental rights to establish and run educational institutions and such un-aided institutions have unfettered freedom to administer their institutions including the right to admit students and the autonomy of such un-aided institutions are not to be infringed by the State and/or any authorities. State of Karnatak and others, 2002 (8) SCC 481 it was submitted that every citizen has fundamental rights to establish and run educational institutions and such un-aided institutions have unfettered freedom to administer their institutions including the right to admit students and the autonomy of such un-aided institutions are not to be infringed by the State and/or any authorities. It was further submitted that the impugned actions on the part of the State Government and OJEE in not allowing the member-institutions of the petitioner-Association to fill up the vacant seats (including the seats remained vacant because of non-reporting of OJEE sponsored candidates) from the merit list of OJEE/JEE(Main) as per the guidelines prescribed by the AICTE, but allowing the State run Universities/autonomous Colleges to fill up the said vacant seats, is a case of blatant violation of Article-14 of the Constitution of India. In view of the statutory provisions prescribed under Section 9(5) of the 2007 Act, after the OJEE counseling, seats remained vacant shall be filled up by the candidates belonging to the general category from the merit list of the JEE and in such contingency it is under the statutory prerogative of the member-institutions of the petitioner-Association to fill up such vacant seats under the supervision of the PPB, as in view of Section 4(7) of the 2007 Act, the entire process of admission shall be done under the supervision of the PPB. Huge vacancies in the member-institutions of the petitioner-Association would cause serious adverse repercussions on their basic entity and may deprive them of their fundamental rights to run and administer their institutions by taking admission of the students as per the criteria of AICTE and the State Government. 6. Mr.Ashok Mohanty, learned Advocate General submitted that 2nd conduct of JEE would not be in the interest of excellence of technical/professional educational institutions. Around 50,000 candidates have qualified the JEE (Main) 2014 for admission to 1st year B.Tech (Engineering) and all candidates are eligible to participate in OJEE counseling subject to condition of their securing the minimum eligibility qualifying marks prescribed by the AICTE. The result of the 1st round counselling will be published on 31.07.2014. Students may not be interested to prosecute B.Tech programmes for various reasons. Similarly, the 1st round counseling for MBA/MCA programmes is going on. If necessary, the vacancy round counseling will be conducted. The result of the 1st round counselling will be published on 31.07.2014. Students may not be interested to prosecute B.Tech programmes for various reasons. Similarly, the 1st round counseling for MBA/MCA programmes is going on. If necessary, the vacancy round counseling will be conducted. If the 2nd JEE will be conducted, the process of conduct of 2nd JEE will require time and conduct of the same at this juncture is not possible at all in accordance with the time schedule prescribed by the AICTE, as directed by the Hon’ble Supreme Court. The process of conduct of 2nd JEE will take own time and pace such as release of advertisement, preparation of question papers, fixation of examination centres etc. For such activities, minimum 45 days is required to conduct the 2nd JEE in a fair and transparent manner. Conduct of 2nd JEE shall vitiate the academic calendar of the BPUT and the total academic system shall be derailed. OPECA had filed IA No.9 in CA No.2873 of 2007 before the Hon’ble Supreme Court seeking direction for conduct of 2nd JEE and the Hon’ble Supreme Court vide order dated 18.11.2011 has rejected the prayer of the petitioner. The 2nd JEE held during the year 2010 had not yielded any result so for as filling up of vacant seats are concerned. Only around 500 students appeared in the 2nd JEE and from among them few candidates participated in the counseling. The academic calendar of BPUT was affected for few students admitted through 2nd JEE. In spite of all efforts of the State Government and endeavour of the OJEE, seats are lying vacant for the reasons submitted above. As regards, conduct of 2nd DET for Diploma Engineering courses, the same cannot be kept on identical footing with the Degree level B.Tech courses. The 10th standard students usually appear in the Diploma Entrance Test but the +2 students appear in the OJEE. The standard to be maintained in Degree level education is much higher than the Diploma level education. 7. Mr. S. Palit, learned counsel appearing for opposite party no. 3OJEE submitted that while the Government in DTE&T is the ultimate authority in policy matters and the OJEE is the executing authority under the State Government is bound by the direction of the Government issued in the matter. 7. Mr. S. Palit, learned counsel appearing for opposite party no. 3OJEE submitted that while the Government in DTE&T is the ultimate authority in policy matters and the OJEE is the executing authority under the State Government is bound by the direction of the Government issued in the matter. However, for conducting 2nd JEE in a short span of notice, the logistics may not be conducive for conducting the 2nd JEE. For holding the 2nd JEE, minimum 45 days is required but due to the dead line of August 15th laid down by the Hon’ble Supreme Court in the case of Parshavanath (supra), it is not possible to conduct the 2nd JEE during the short period. The preparation of question papers and printing of the same with utmost secrecy is an onerous task. The next stage is organizing enough examination centres and also availability of the same. In view of the fact that academic session has already started for which it may not be possible to hold 2nd/special JEE at such a short notice. Organizing the invigilators for conduct of such examination from amongst the teaching faculties may not be possible at such short notice since the academic session has already commenced and the teaching faculties are busy in taking their classes in their respective subjects/courses. Organizing a competent set of examiners for evaluation of answer papers at such short notice is also a difficult proposition and also holding counselling for the qualified students thereafter. The logistics of various other minutes details which are necessary for conduct of the examination will require adequate time and space. For the present year, the JEE has not been conducted by the State for B.Tech courses and the CBSE has conducted B. Tech Examination, which is known as JEE (Main). The only one round of counselling has been conducted by OJEE for those students as of now and the 2nd round counselling and vacancy round counselling as per the established practice is yet to be completed. Therefore, there will be clear overlap if attempt is made to hold 2nd JEE. Moreover, holding 2nd JEE will bring in two sets of students, one who have come through CBSE Examination and the other set who will appear through OJEE and there will be no uniformity. Therefore, there will be clear overlap if attempt is made to hold 2nd JEE. Moreover, holding 2nd JEE will bring in two sets of students, one who have come through CBSE Examination and the other set who will appear through OJEE and there will be no uniformity. The Hon’ble Supreme Court has already dismissed a similar attempt made by OPECA in I.A. No. 9 arising out of C.A. No. 2873 of 2007 vide its order dated 18.11.2011. The judgment of this Court dated 14.5.2014 passed in W.P.(C) No. 6242 of 2014 has no application to the present case. For Diploma Course, Class-X students usually appear but for B.Tech courses, 10+2 students appear through OJEE. So, the standard of those students who appear in OJEE is much higher. Moreover, the OJEE has not been conducted for this year for B.Tech courses and the result of JEE (Main) conducted by CBSE has been adopted. 8. Mr. A. K. Mohapatra, learned counsel appearing on behalf of BPUT raised various contentions similar to the contentions raised by learned Advocate General. 9. On rival contentions of the parties, the only question that arises for consideration by this Court whether the petitioner is entitled to the relief sought for in the present writ petition. 10. It is not in dispute that approximately 37,000 (B. Tech) seats are likely to remain vacant even after admissions are given pursuant to JEE (Main) and a large vacancy would also arise after the 1st OJEE in respect of MBA and MCA Courses. 11. Section 9 (6) (b) of the 2007 Act provides that if seats remain vacant, the 2nd OJEE may be conducted. 12. In the current academic session, this Court anticipating huge vacancy of seats in Diploma Engineering Courses has directed the State Government in W.P.(C) No. 6242 of 2014 to hold 2nd DET for the current session for the reasons stated therein. 13. It cannot be denied to the fact that neither the institutions nor the State Government nor any student will be gainer if substantial number of seats is allowed to remain vacant in technical institutions. It will be beneficial to all concerned if as many as eligible students are afforded another opportunity to pursue technical education without compromising merit. If a large number of seats remain vacant in both Government and private technical institutions, that will be a national waste. 14. It will be beneficial to all concerned if as many as eligible students are afforded another opportunity to pursue technical education without compromising merit. If a large number of seats remain vacant in both Government and private technical institutions, that will be a national waste. 14. The stand taken by the opposite parties for not supporting the petitioner-Association’s prayer for conducting 2nd JEE is on the ground that OPECA had filed I.A. No. 9 in C.A. No.2873 of 2007 before the Hon’ble Supreme Court seeking a direction for conduct of 2nd JEE and the Hon’ble Supreme Court vide order dated 18.11.2011 has rejected such prayer. It appears that by the time the order dated 18.11.2011 was passed by the Hon’ble Supreme Court, the cut-off date, i.e., 15th August of the academic year in question and the admission process for graduate engineering programme was long over. In the present case, the situation is different as the cut off date is yet to be reached. 15. At this juncture, it would also be relevant to take note of the submission of Mr. Padhi, learned Senior Advocate of the petitioner-Association that many students who are otherwise eligible to seek admission into technical courses, could not do so, either since their examination results had not been declared prior to the last date for submission of application for JEE (Main) or some students had appeared in the supplementary examinations, thereafter and consequently could not make the necessary applications. This assertion of the petitioner was not disputed by the opposite parties. 16. In the facts situation, we think it proper to direct the opposite parties to hold “Special OJEE Test” for B.Tech (Engineering) and 2nd OJEE test for MBA/MCA Courses for the current academic year, i.e., 2014-15 as per the schedule given below. The OJEE is further directed to complete the 2nd round counselling and vacancy round counselling of 1st OJEE for MBA/MCA courses latest by 12th August, 2014. SCHEDULE FOR SPECIAL OJEE FOR ADMISSION TO 1ST YEAR OF B.TECH (ENGINEERING) PROGRAMME, AND 2ND OJEE FOR MBA AND MCA COURSES Sl. No. Procedures of Admission Date 1. Advertisement 02.08.2014 2. Submission of Online Application Form along with Fees. 03.08.2014 to 07.08.2014 3. Downloading of Admit Card and Centre List 08.08.2014 to 09.08.2014 4. Special OJEE Examination 10.08.2014 5. Result Publication 12.08.2014 6. Downloading Rank Card 13.08.2014 7. Spot Counselling 14.08.2014 8. Reporting to Colleges 15.08.2014 17. No. Procedures of Admission Date 1. Advertisement 02.08.2014 2. Submission of Online Application Form along with Fees. 03.08.2014 to 07.08.2014 3. Downloading of Admit Card and Centre List 08.08.2014 to 09.08.2014 4. Special OJEE Examination 10.08.2014 5. Result Publication 12.08.2014 6. Downloading Rank Card 13.08.2014 7. Spot Counselling 14.08.2014 8. Reporting to Colleges 15.08.2014 17. With the above observations and directions, this writ petition is allowed, but without any order as to costs. In view of the urgency involved, urgent certified copy of this judgment be granted on proper application in course of the day and free copies of the judgment be handed over to the learned counsel for the opposite parties for necessary compliance.