THE STATE OF ODISHA & ORSversusORISSA PRIVATE ENGINEERING COLLEGE ASSOCIATION (OPECA) & ANR

386                      [2021]REPORTS
               SUPREME COURT    6 S.C.R. 386              [2021] 6 S.C.R.


A                      THE STATE OF ODISHA & ORS
                                       v.
       ORISSA PRIVATE ENGINEERING COLLEGE ASSOCIATION
                        (OPECA) & ANR
B                        (Civil Appeal No 2274 of 2021)
                                JUNE 29, 2021
               [DR. DHANANJAYA Y CHANDRACHUD,
          R. SUBHASH REDDY AND S. RAVINDRA BHAT, JJ.]
C           Education/Educational Institutions:
              Odisha Professional Educational Institutions (Regulation of
      Admission and Fixation of Fees) Act, 2007: ss. 3(1) and 3(2) –
      Method of admission in professional educational institutions – On
      facts, amid covid outbreak, issuance of circular by All India Council
D     for Technical Education (AICTE), by which the eligibility criteria
      for students taking admission to vacant seats for the PGDM/MBA
      courses relaxed – Admission based on marks scored by aspirants in
      the qualifying examination instead of the statutory requirement that
      all admissions have to be based on centralized entrance test –
E     Subsequently, clarification letter by AICTE that circular issued by
      it only pertained to PGDM/MBA courses and not B. Tech courses –
      In a writ petition, the High Court allowed institutions to grant of
      admission to students for B.Tech (Engineering) Degree Course on
      the basis of the marks obtained in the qualifying examination –
      High Court while holding that there was an error apparent in the
F     letter issued by AICTE, issued mandamus that the same benefit should
      be given to students of the Engineering degree stream as was granted
      to students for PGDM/MBA courses – On appeal, held: Direction
      by the High Court to the State Government to admit students to the
      B. Tech Degree Courses on the basis of the marks obtained in the
G     qualifying examination contrary to the terms of s. 3(1) – AICTE
      clearly indicated that B. Tech courses cannot be placed at par with
      PGDM/MBA courses and left it to the decision of the State
      Government – State Government was duty bound to comply with
      provision s of s.3(1) – Thus, the High Court not justified in issuing
      mandamus – Order passed by the High Court set aside – However,
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                                      386
   THE STATE OF ODISHA v. ORISSA PRIVATE ENGINEERING                    387
             COLLEGE ASSOCIATION (OPECA)

students granted admission under the direct entry and under the         A
lateral entry to the B.Tech Degree Courses not to be disturbed –
Constitution of India – Art. 142.
      Disposing of the appeal, the Court
       HELD: 1.1 The direction by the High Court to the State
Government which operates as a mandamus to admit students to            B
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 Odisha Professional Educational Institutions
(Regulation of Admission and Fixation of Fees) Act, 2007. It was
in this context that the earlier order of the High Court dated 24       C
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/            D
MBA courses and, hence, it was left to the State Government to
take an appropriate decision. It is rightly submitted 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              E
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). The          F
judgment of the High Court proceeded on a misconception of
law and is set aside. [Para 11, 12][392-G-H; 393-A-D]
       1.2 The 592 students have taken admission under direct
entry and 243 students have taken admission under lateral entry
in the B.Tech degree courses in pursuance of the direction of           G
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

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388             SUPREME COURT REPORTS                            [2021] 6 S.C.R.


A     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 the
      jurisdiction under Article 142 of the Constitution, for the current
      year, the admission which has been granted by the institutions to
      592 students under direct entry and 243 students under lateral
B
      entry to the B.Tech degree courses should not be disturbed. This
      direction is passed having regard to the overwhelming hardship
      faced during the course of the Covid-19 pandemic. It is directed
      that the admission of the said students would not be disturbed
      [Para 13, 14][393-E-H; 394-A]
C
            CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2274
      of 2021.
            From the Judgment and Order dated 21.01.2021 of the High Court
      of Orissa at Cuttack in W. P. (C) No. 1973 of 2021.
D           Tushar Mehta, SG, Sibo Sankar Mishra, Niranjan Sahu, Advs. for
      the Appellants.
           Siddhartha Dave, Sr. Adv., Shubhranshu Padhi, Ashish Yadav,
      Rakshit Jain, Vishal Banshal, Kush Chaturvedi, Advs. for the
      Respondents.
E
            The Judgment of the Court was delivered by
            DR. DHANANJAYA Y CHANDRACHUD, J.
            1. Leave granted.

F            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
G     of a statutory requirement that all admissions have to be based on a
      centralized entrance test.
            3. In the State of Orissa, there is a legislation called the Odisha
      Professional Educational Institutions (Regulation of Admission and

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   THE STATE OF ODISHA v. ORISSA PVT. ENGG. COLLEGE                               389
ASSOCIATION (OPECA) [DR. DHANANJAYA Y CHANDRACHUD, J.]

Fixation of Fees) Act 20071. Section 3 of the 2007 Act contains the               A
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)      B
                 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                    C
                  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)
                                                                                  D
                  approved by the Government on merit basis of all the
                  Technical and Professional Institutes under thesupervision
                  of the OJEE/DET Committee. The seats to which
                  candidates could not be sponsored due to dearth of choice
                  andthe seats remained vacant due to non-reporting cases
                  2nd round of Centralized Counselling shall be considered        E
                  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”.
                                                                                  F
       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        G
under Article 226 of the Constitution before the High Court seeking a
direction to the State Government to implement this circular for B.Tech

1
    “2007 Act”
2
    “AICTE”                                                                       H
390             SUPREME COURT REPORTS                           [2021] 6 S.C.R.


A     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 direction of the High Court,
      the AICTE issued a letter dated 6 January 2021. AICTE clarified the
B
      position in the following terms:
            “This office has examined the matter in details and found that the
            Circulardated 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 saidcircular, which included that in many
C
            states the several All India EntranceTests 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 Engineeringstream is
            concerned. So issuing any general circular for admission into
            engineering courses at par with the Circular dated 19.08.2020
D           was not feltnecessary. This also for the further reason being it
            was provided in para7.2 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
E
            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-
F
            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
G           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
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   THE STATE OF ODISHA v. ORISSA PVT. ENGG. COLLEGE                             391
ASSOCIATION (OPECA) [DR. DHANANJAYA Y CHANDRACHUD, J]

courses. The communication of the first appellant was challenged by             A
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 on the face of the letter dated 7 January 2021 by not
                                                                                B
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.                                                             C
        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         D
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          E
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              F
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             G
B.Tech Degree courses under direct entryand 243 students who have
taken admission under lateral entry in the State of Odisha. In this context,
the following chart has been placed on the record in the synopsis to the
appeal:
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392            SUPREME COURT REPORTS                           [2021] 6 S.C.R.


A      “1   TOTAL NUMBER SEATS IN B.TECH              33,653
            4YEAR COURSE
       2    TOTAL APPLICATION RECEIVED UNDER          14,422
            B.TECH DURING OJEE 2020
       3    TOTAL NUMBER OF STUDENTS                  6,605
            APPEARED AT OJEE2020 UNDER B.TECH

B      4    TOTAL NUMBER OF STUDENTS                  FROM JEE MAIN MERIT
            REGISTERED FOR OJEE2020                   LIST – 11,682
            COUNSELLING FOR ADMISSION TO              FROM OJEE        MERIT
            B.TECH 4 YEAR 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
C                                                     COLLEGE/INSTITUTION
                                                      LEVEL        ADMISSION
                                                      (AFTER            OJEE
                                                      COUNSELLING)”

             8. The above chart indicates that while there are over 33,000
D     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.

E           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
F
      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 and 243 students have secured admission under lateral entry
      pursuant to the order of the High Court, as stated on behalf of the first
G     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
H     in this context that the earlier order of the High Court dated 24 December
   THE STATE OF ODISHA v. ORISSA PVT. ENGG. COLLEGE                          393
ASSOCIATION (OPECA) [DR. DHANANJAYA Y CHANDRACHUD, J]

2020 left it to the AICTE and the State Government to take an appropriate    A
decision in regard to extending the same benefit which was extended to
PGDM/MBA studentsto the students aspiring for admission to the B.Tech
Degree courses. AICTE, in the course of its letter, had clearly indicated
that the B.Techdegree courses cannot be placed at par with the PGDM/
MBA courses and, hence, it was left to the State Government to take an
                                                                             B
appropriate decision. Mr Siddhartha Dave is correct in urging that the
actual decision which was taken by the State Government on 7 January
2021proceeded 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)       C
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      D
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         E
entry in the B.Tech degree courses 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    F
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                G
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.
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394                SUPREME COURT REPORTS                       [2021] 6 S.C.R.


A            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.
B
      Nidhi Jain                                                Appeal disposed of.




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