JUDGMENT : K.R. MOHAPATRA, J. Petitioner, namely, Orissa Private Engineering College Association (for short, ‘OPECA’) is an association of self- financed Engineering Colleges (for short, ‘the Institutions’) as well as MCA and MBA Colleges situated in the State of Odisha. They have approached this Court with a prayer to direct the State Government/Policy Planning Body (PPB)/Odisha Joint Entrance Examination (OJEE) and its authorities to hold 2nd OJEE-2017 for filling up of vacant seats of B.Tech (Engineering), MCA and MBA courses in respective institutions for academic year 2017-18. 2. Shorn of unnecessary details facts relevant for adjudication of this case are that like previous years, the number of students appearing in JEE (Main) to take admission in B.Tech (Engineering), MCA and MBA courses have been reducing significantly. In the current year, only about 45,000 students have appeared in the JEE (Main), 2017, as a result of which almost 70% of seats in various institutions remained vacant out of the total number of intake of respective institutions. In previous years, the petitioner-Association had approached this Court and this Court considering their grievance had directed the authorities to conduct Special JEE for the respective years. Accordingly, in compliance of direction of this Court, Special JEE was being conducted since 2014 and a good number of students had appeared in said entrance examination. Thus, the petitioner-Association has approached this Court for a similar direction to be issued for the current academic session. 3. In response to the notice issued by this Court, the opposite parties as well as the State Government, the Chairman (OJEE) (opposite party No.3) and Biju Pattnaik University (BPUT)-opposite party No.4 have filed their respective counter affidavits as well as additional affidavit. 4. Pleadings are exchanged between the parties. On consent of learned counsel for the parties, the matter is taken up for final disposal at the stage of admission. 5. Mr.Padhi, learned Senior Counsel for the petitioner-Association has submitted that in the academic session 2014-15, the State Government and its authorities had taken an unilateral decision not to hold OJEE for admission into B.Tech (Engineering), MCA and MBA courses and took a decision to merge with JEE (Main) conducted by Central Board of Secondary Education (CBSE) for which a large number of seats fall vacant in different Institutions. The said decision of the State Government was challenged in W.P.(C) No.13137 of 2014 by the present petitioner. The said decision of the State Government was challenged in W.P.(C) No.13137 of 2014 by the present petitioner. This Court disposed of the writ petition vide order dated 01.08.2014 directing the opposite parties, namely, the State Government, PPB and OJEE Committee to hold Special OJEE test for B.Tech (Engineering) course and also 2nd OJEE for MBA and MCA courses for the said academic year. The said decision was assailed by the OJEE Committee before the Hon’ble Supreme Court in SLP (Civil) No.21120 of 2014. In course of hearing, Hon’ble Supreme Court, while recording the statement of learned counsel for the State of Odisha as well as the petitioner therein (OJEE Committee) to the effect that upon reconsideration of the matter and in the interest of the students from the State of Odisha decided to comply with the direction issued by the High Court and conduct Special OJEE, disposed of the SLP re-scheduling the dates for the proposed examination for that academic session. Accordingly, Special OJEE examination was conducted by the opposite parties and a large number of students took admission in the vacant seats of respective Institutions. In subsequent years also, the petitioner-Association had moved this Court for conducting 2nd /Special JEE examination and in compliance of the direction of this Court, the same was being held and last year, 7,246 students registered their names for 2nd/Special JEE, out of which 4,963 students were qualified to take admission. 6. Mr.Padhi, learned Senior Counsel, further contended that Clause 3(2) of the Odisha Professional Educational Institutions (Regulation of Admission and Fixation of Fee) Amendment Ordinance, 2016 (for short, ‘Ordinance,2016), which was promulgated to amend the Odisha Professional Educational Institutions (Regulation of Admission and Fixation of Fee) Act, 2007 (for short, ‘Act 2007’), casts an obligation on the State to fix up modalities for filling up vacant seats in different Institutions, which reads as under: “3(1) Method of admission in professional educational institutions.- Subject to 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 Tests approved by the Government followed by centralized counseling in order of merit, in accordance with such procedure as recommended by the Policy Planning Body and approved by the Government. institutions and sponsored institutions to all seats including lateral entry seats, shall be made through Entrance Tests approved by the Government followed by centralized counseling in order of merit, in accordance with such procedure as recommended by the Policy Planning Body and approved by the Government. 3(2) After vacancy round of Odisha Joint Entrance Examination (OJEE)/Diploma Entrance Test (DET) Counseling, i.e., after minimum of two rounds of Centralized Counseling, 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 after 2nd round of Centralized Counseling 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.” He further referring to Section 9(6) of the Act, 2007 made a submission that the vacant seats after a minimum 2nd round of counseling, can be fill up by conducting a 2nd JEE. He, therefore, prays that the opposite parties are obliged to fix up the modalities to fill up vacant seats in the Private Engineering Colleges of the State of Odisha by conducting entrance tests approved by the Government under the supervision of OJEE/Diploma Entrance Test (DET) Committee. 7. Mr.R.K.Mohapatra, learned Government Advocate referring to the counter affidavit as well as additional affidavit filed on 29.07.2017 (filed in course of hearing), submitted that Section 9 of the Act, 2007deals with reservation of seats. Section 9(6) provides that where seats for reserved category remained un-filled due to non-availability of the candidates from the list of JEE. Such list shall be fill up from the said category from the merit list of All India Engineering Entrance Examination (AIEEE), failing which such vacant seats shall be filled up by the candidate not belonging to any reserved category in accordance with merit list of JEE (Main). Sub-clause (b) of Sub-section (6) of Section 9 of the Act, 2007 provides “if still seats remain vacant, a second JEE may be conducted”. Sub-clause (b) of Sub-section (6) of Section 9 of the Act, 2007 provides “if still seats remain vacant, a second JEE may be conducted”. Thus, 2nd JEE cannot be conducted for filling up of ‘vacant general category seats’ in the Institutions. In terms of Section 3(2) of Act-2007, the Government has fixed up modalities vide Office Order dated 29.07.2017. He further submitted that as per the direction of this Court in previous years, the 2nd JEE examinations have been conducted by the State for filling up of vacant seats, but the same cannot be treated as precedent, as this Court while so directing did not take into consideration the relevant provisions of Section 9(6)(b) of the Act, 2007 is only meant for the ‘reserved category seats’. Further, the concession given before the Hon’ble Supreme Court in the SLP cannot be treated as precedent as the same was given taking into consideration the facts and circumstances of the said case. He further argued with vehemence that it will be difficult task for the State Government to conduct 2nd JEE examination at this stage; even if such direction is issued. Hence, he prayed for dismissal of the writ petition. 8. Mr.S.Palit, learned counsel for the OJEE as well as the PPB and Mr.A.K.Mohapatra, learned counsel for BPUT reiterating submissions of Mr.Mohapatra, learned Government Advocate submitted that the almanac of the academic session will be disturbed if 2nd JEE is directed to be conducted at this stage. 9. We have heard Sri S.K.Padhi, learned Senior Counsel along with Mr.D.P.Dash, learned counsel for the petitioner-Association, Mr.R.K.Mohapatra, learned Government Advocate for the State, Mr.S.Palit, leanred counsel for the Policy Planning Body (PPB)-opposite party No.2 as well as OJEE-opposite party No.3 and Mr.A.K.Mohapatra, learned counsel appearing for opposite party No.4. Perused the records. 10. Section 3(2) of the Act, 2007provides that in case seats fall vacant in the Institutions, the Government has to fix up modalities to fill up those vacant seats. In fact, the Government has come out with the modalities for filling up of vacant seats vide order dated 29.07.2017. Perused the records. 10. Section 3(2) of the Act, 2007provides that in case seats fall vacant in the Institutions, the Government has to fix up modalities to fill up those vacant seats. In fact, the Government has come out with the modalities for filling up of vacant seats vide order dated 29.07.2017. The said order reads as follows: “In exercise of power conferred under Section 3(2) of the Odisha Professional Educational Institutions (Regulation of Admission and Fixation of Fee) Amendment Act, 2016, Government have been pleased to prescribe the following modalities for filling up of the vacant seats at College level with the qualified eligible candidates after final round of OJEE Counselling. 1. The admission at Technical/Professional Educational Institutions level shall be strictly done on merit basis in a fair, transparent manner. 2. The following categories of candidates are allowed for institution level admission against the vacant seats as declared by the OJEE. (i) The candidates, who have not participated in earlier rounds of OJEE Counselling /who have withdrawn from the OJEE counseling process. (ii) The candidates who have participated in earlier rounds of OJEE Counselling but have not got allotment of seats. (iii) The candidates who have been allotted seats in the final round of OJEE counseling but did not report at their allotted institution. (In this regard concerned Institute should submit non reported candidates list to the OJEE on or before 14.08.2017 which will be duly verified by the OJEE Committee). 3. The institutes shall conduct counseling of JEE (Main) 2017/OJEE-2017/GATE/GPAT/CAT/ MAT/ XAT/ATMA/ CMAT/NIMCET/NATA (as the case may be) rank holder candidates and shall funish the documents of eligible reported candidates to the OJEE Committee in support of admission in respective Institute. Candidates found ineligible (as per criteria indicated in OJEE Counselling brochure of current year) during documents verification will be debarred from admission. 4. All admission at the institute level against the vacant seats should be completed on or before 15.08.2017 positively. The List of students, admitted by the Institutes should be submitted to OJEE by Mail in ID: odishaojee@gmail.com before 22.08.2017. Any list of the students beyond the said deadline shall not be considered. OR The institutes can enter the details of the candidates admitted at Institute level in the website (www.ojee.nic.in) at Participating Institution User login on or before 15.08.2017 positively. 5. Any list of the students beyond the said deadline shall not be considered. OR The institutes can enter the details of the candidates admitted at Institute level in the website (www.ojee.nic.in) at Participating Institution User login on or before 15.08.2017 positively. 5. The detail guidelines for admission to the aforesaid courses are given in the current year OJEE Counselling Brochure. 6. The Principals of the concerned institutions who are making admission at institute level, are requested to verify the documents of the candidates duly and confirm that these admissions are as per the norms/guidelines/Rules prescribed by the Government/OJEE. 7. For any clarification, if so necessary, the decision of the State Government in Skill Development and Technical Education Department shall be final and binding.” 11. On a plain reading of the aforesaid order dated 29.07.2017, it clearly reveals that the candidates who were given rank in OJEE-2017 and have not participated in the earlier rounds of OJEE counseling or withdrawn from such counseling, those who could not get allotment of seats as well as those who could not report or failed to submit documents in course of counseling, can only be considered for admission in vacant seats of the Institutions. In fact, the modalities fixed by the State Government would not serve any purpose as the rank holders of JEE (Main) 2017 had not taken admission in the institutes in spite of two rounds of centralized counseling, they will not come forward to participate in another round of counseling. Thus, the order dated 29.07.2017 fixing up the modalities is only an eye wash and appears to be an empty formality observed by the State Government in terms of Section 3(2) of the Act-2007. 12. In course of hearing, Mr.Padhi, learned Senior Counsel by way of an affidavit brought to the notice of this Court that 2nd JEE for admission into the Institutions were held in the year 2007 and again in 2009 without any interference/intervention of the Court. Again in the year 2010, the State Government, in its letter dated 04.10.2010 communicated to V.C., VSSUT, Burla and Chairman, Apex Committee for OJEE-2010 as under: “Sub : Conduct of 2nd OJEE-2010. Again in the year 2010, the State Government, in its letter dated 04.10.2010 communicated to V.C., VSSUT, Burla and Chairman, Apex Committee for OJEE-2010 as under: “Sub : Conduct of 2nd OJEE-2010. Sir, I am directed to say that the issue of conducting 2nd OJEE-2010 Under Sectin-9 (6) a & b of the Orissa Professional Educational Institutions (Regulation of Admission and Fixation of Fee) Act, 2007 was taken up for discussion in the Policy Planning Body meeting held on 24.09.10 and it has been recommended by the PPB to the Government for consideration of conducting 2nd OJEE-2010 for all Professional Courses except Medical Courses. Now Hon’ble Apex Court vide its order dt.29.09.10 passed in Civil Appeal No.2871, 2872, 2873 and 2874 of 2007 has directed for conduct of 2nd JEE within 4 weeks. A careful consideration of the aforesaid recommendation of the PPB and in pursuance of the above stated order of the Honble Apex Court, Government have been pleased to decided that the 2nd JEE for all Professional Courses except Medical courses is to be conducted at the earliest within 4 weeks from 29.09.2010. You are, therefore, requested to kindly take immediate steps for conduct of 2nd JEE-2010 following the aforesaid Government decision and orders of the Hon’ble Apex Court and complete the process within 4 weeks from 29.09.2010.” 13. In view of the above, it is relevant to examine the scope of Section 9(6) of the Act-2007, which reads as follows: “9. Reservation of seats.— xx xx xx (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. xx xx xx” 14. Section 9 (6) of the Act, 2007cannot be resorted to fill up vacant seats meant for ‘general category’ in the Institutions. It is only meant for reserved category seats. (b) If still seats remain vacant, a second JEE may be conducted. xx xx xx” 14. Section 9 (6) of the Act, 2007cannot be resorted to fill up vacant seats meant for ‘general category’ in the Institutions. It is only meant for reserved category seats. Thus, the reserved category seats, which fall vacant after 2nd round of centralized counseling, can only be filled up by conducting 2nd JEE resorting to Section 9(6)(b) of the Act, 2007. 15. The Government in its notification dated 29.7.2017 has not dealt with this aspect at all. As discussed earlier, the modalities provided therein is to the benefit of none. However, this Court in exercise of extra ordinary jurisdiction under Article 226 of the Constitution can issue direction to fill up vacant seats in the Institutions resorting to the provisions of law, where the Government has failed to discharge its duties and responsibility cast on it under the provisions of the Act, 2007. 16. Mr.Palit, learned counsel submitted that the petitioner-Association has no locus standi to raise the issue. It is only the aggrieved students belonging to the ‘reserved categories’ who can file suitable writ petitions for a direction to the State Government to invoke the power under Section 9(6) (b) of the Act, 2017. We are unable to accept the contention raised for the reason that the Institutions are aggrieved by the action of the Government in not providing the modalities in filling up of the vacant seats of the Institutions, which the State Government under law is obliged to do. Even otherwise, due to inaction the State Government, Institutions’ viability is at stake. Thus, the petitioner-Association has locus standi to file this writ petition. 17. In that view of the matter and keeping in view the fact that the Government has failed to exercise its power under Section 3(2) of the Ordinance, 2007 and Section 9(6)(b) of the Act, 2007, this Court issues directions as under: The State Government shall undertake 2nd JEE to be conducted for all seats in only reserved category which remained vacant due to non-availability of candidates in that particular reserved category, and subsequently if there is non-availability of reserved category candidates, then vacant seats be offered to the general category candidates, in accordance with law. All categories of candidates, including those of reserved category and general category, may be allowed to appear in the 2nd JEE as per the schedule given below, but during the 2nd JEE counseling, the first merit list of reserved category will be fully exhausted and after exhaustion of the merit list of reserved category, general category candidates will be allowed to take admission through counseling strictly in accordance with the merit list, if such seats still remain vacant, which, according to us, would serve the best interest of the students, institutions as well as the State Government and its functionaries. Taking into consideration the paucity of time and the guidelines fixed by the Hon’ble Supreme Court in the case of Parshavanath Charitable Trust & Ors. Versus All India Council for Tech. Edu & Ors., reported in 2013 (3) SCC 385 , this Court directs the opposite parties to hold “Second/Special OJEE Test” for B. Tech (Engineering) as well as 2nd OJEE Test for MBA/MCA Courses for the current academic year 2017-18 as per the schedule given below. The opposite parties are further directed to see that the entire process is completed by 14th August, 2017 as fixed by the Hon’ble Apex Court. Schedule for second/Special OJEE for admission to 1st Year of B.Tech (Engineering) Programme as well as MBA/MCA Courses. Sl. No. Procedure for admission Date 1 Advertisement 05.08.2017 2 Submission of Online Application Form with fees 06.08.2017 and 07.08.2017 3 Downloading of Admit Card & Centre List 08.08.2017 4 2nd /Special OJEE Examination 10.08.2017 5 Publication of Result 11.08.2017 6 Registration and Downloading of Rank Card 12.08.2017 7 Counselling 13.08.2017 8 Reporting to Colleges 14.08.2017 Filling up of vacant seats in self-financed Private Engineering Colleges of Odisha is a long standing issue and it is the obligation of the State Government to see that some workable modalities are made to address the issue. We, therefore, hope and expect that the State Government in consultation with PPB would come out with a practical and workable solution to address the long standing issue of filling up of the vacant seats in the Private Engineering Colleges of Odisha for coming years. 18. With the aforesaid observation and direction, this writ petition is disposed of. Urgent certified copy of this order be granted in course of the day on proper application. 18. With the aforesaid observation and direction, this writ petition is disposed of. Urgent certified copy of this order be granted in course of the day on proper application. Free copy of this order shall be provided to the opposite parties for compliance.