A.K. Padhi, J.
1. Both the writ applications were taken up together for hearing at the points of law are the same. We propose to dispose of them by this judgment.
2. In O.J.C. No. 2745 of 1988 Ambika Prasad Mohanty (a minor boy represented through his father) is the petitioner. He has stated that in pursuance to the prospectus issued by opp. party No. 1 (Orissa Engineering College) he applied for admission to 4 years B.Sc. Engineering Course in civil engineering for the academic session 1988-89. After interview, the petitioner was duly selected and intimated to take admission in the College. He deposited the requisite fees etc. of the College to the tune of Rs. 20,585.00 and was admitted to the College vide Annexures 1 and 4 which is not in dispute. After being admitted he received a letter of cancellationof his admission vide Annexure 2, dt. 16-8-1988. Annexure 2 reads as follows :--
'On scrutiny it has now been detected that your application was earlier rejected for various defects not in conformity with the prospectus issued by Orissa Engineering College. You have been given the admission certificate through oversight.
I hereby cancel your admission certificate and admission to Orissa Engineering College for reasons stated above.
Please collect Rs. 20,585/- from the office against return of provisional receipt and also admission certificate.'
This order of cancellation of admission is assailed in O.J.C. No. 2745 of 1988.
3. In O.J.C. No. 2767 of 1988, after due selection and payment of the fees etc. petitioner Sanjib Sasmal was admitted on 4-8-1988. On 16-8-1988 the petitioner received a letter to the following effect vide Annexure 6.
'On scrutiny it has now been detected that your application was earlier rejected for various defects not in conformity with the prospectus issued by Orissa Engg. College.
Please collect Rs. 20,585/- from the office against return of provisional receipt granted to you.'
This letter under Annexure 6 which amounts to cancellation of admission to the Engineering Course is challenged by the petitioner. In both the writ applications, the opp. parties are the same. Similar counters have been filed in both the writ applications by the opp. parties. The stand taken by opp. party No. 1, Orissa Engineering College (hereinafter described as 'the College') is that the eligibility for admission to the Engineering Course as laid down in the prospectus is minimum 50 per cent of the mark in Physics, Chemistry and Mathematics in the qualifying examination. As both the petitioners had not secured 50 per cent in the qualifying examination and as due to inadvertence they had been admitted, which was detected later, their admissions were cancelled. The main attack by the College is that the writ applications are not maintainable as opposite party No. 1 is surely a private College and isnot getting any grant-in-aid front the Government and hence does not come within the ambit of Article 12 of the Constitution of India and no writ can be enforced against a private institution.
4. The main questions which arise in these two writ applications are --
(a) whether a writ is maintainable against the College which is admittedly purely a private College ?; and
(b) if maintainable, then are the petitioners entitled to get any relief ?
5. It is beyond dispute that private colleges which are not receiving grant-in-aid from the State either partially or in full do not come within the definition of 'the State' under Article 12 of the Constitution of India. There are catena of decisions that employees of these institutions cannot enforce their rights in a writ application when the relationship of master and servant rules the field see AIR 1975 SC 1329, AIR 1976 SC 888 and 1073.
6. The moot question is whether a college admitted to the privileges of the University can act arbitrarily in the matter of admission/cancellation of admission.
7. The prospectus conspicuously states : --
'The Orissa Engineering College, the only Private Engineering College of the State, started functioning from the session 86-87 after due concurrence of the State Govt. It is now duly affiliated by the Utkal University from the session 86-87 and offers a four years course of studies to the B.Sc. Engg. degree in six disciplines.
The college is sponsored by a duly registered Trust 'THE NABAJYOTI CHARITABLE TRUST' and managed by a Governing Body.'
8. Part VIII, Chapter XX of the Utkal University Statutes and Regulations deals with the admission of Institutions as Colleges. Few of the University Regulations are quoted below : --
'169. ...........
(a) 'College' means an institution whichapplies for admission to the University or has been admitted to the privileges of the University in conformity with the provisions of the Act and these statutes but does not include a school, whether it is an independent institution or forms a part of college as defined herein;'
Regulation No. 170 which deals with affiliation is as follows ; --
'170. Any college applying for admission .. to the privileges of the University or additional or further affiliation, shall undertake not to collect capitation fees/donations in any form from the students or their parents or guardians either at the time of admission or at any other time and conform to the provision hereinafter specified.' Regulations 173 and' 174 deal with as to on what matter every college has to satisfy the Syndicate. Chapter XXIV in Part X deals with admission, transfer and attendance certificates. Regulation 211 is to the following effect : --
'211. The principal of each college shall forward to the Registrar, not later than one month from the date of reopening of the college at the beginning of the academic year, a return in the form specified below, of all students in his college appearing for any examination of the University or preparing for such examinations :
(1) Date of admission into college; xxxxxxxxxxx
Regulation 214 of the Statute reads as follows : --
'214, The Principal of a college shall report to the Registrar immediately after the name of a student has been struck off the rolls of the college giving the date when his name was removed from the rolls.'
9. All these Regulations are quoted to bring out the relationship of an affiliated college with the University. In the present case we are faced with a different type of situation for which precedents are not many. It is undisputed that the 'college' in question, is affiliated to the Utkal University and hence admitted to its privileges. Its students would appear in the examinations conducted by theUtkal University. The Utkal University as a condition of affiliation has a regulatory role over the college in the matter of education of the college. Under these circumstances, can it be said that the students have no remedy in matters relating to admission and examination and have to resort to common law by filing a suit for damages or for specific performance of contract? Since it is the paramount responsibility of the University which is an instrumentality of the State to regulate the matters of examination and in some way matters relating to admission, action of the colleges relating to the admission of the students affiliated to the University are justifiable under Article 226 of the Constitution. The college is acting as the proxy or to put it in other words, as a representative of the University in the affairs of students. To look at the problem from another angle, the directive principles of State policy envisage that education is the responsibility of the State. Article 41 of the Constitution states as follows : --
'41. Right to work, to education and to public assistance in certain cases -- The State shall, within the limits of its economic capacity and development, make effective provision for securing the right to work, to education and to public assistance in cases of unemployment, old age, sickness and disablement, and in other cases of undeserved want.'
Higher education is the responsibility of the State. In matters of education the State responsibility is absolute. Under these circumstances, it is the state which discharges its responsibility through private educational institutions as they are not equipped presently to do so completely of their own. Hence, in such an important field it cannot be left to whims and fancies of some individuals to decide in matters of admission of students and their arbitrary cancellation.
10. Reference may now be made to AIR 1976 Delhi 35, Miss Kumkum Khanna v. Mother Acquinas. In that case thirty students of the Jessus and Mary College were prevented by the Principal from appearing at their examinations at the end of the academic year1974-75 on the ground of shortage of attendance. Their case, in brief, was that if they would have been given an opportunity they could have shown that they had not fallen short of attendance. The main question which arose before their Lordships is- as to whether the Principal of a Private College is amenable to writ jurisdiction. In para 12 their Lordships have held as follows : --
'A private college may be formed and its principal may be appointed without attracting the applicability of public law. But when a college is admitted to the privileges of the University, it ceases to be an entirely private institution. It becomes the subject of statutory provisions and is regulated by it. The Academic Council is an authority of the University created by a statute. The power now conferred on the Principals of affiliated, and constituent colleges by Ordinance VII was formerly exercised by the Academic Council. As pointed out in Amir Jamia v. Desharath Raj, ILR (1969) Delhi 202, education is essentially a State function. The very essence of a University is its universality and its public nature. The Delhi University is a teaching and an affiliating University. The colleges whether private or Government maintained by the University are, therefore, parts of the University. The Ordinances of the University are 'law' as they are enacted in exercise of the power conferred by Sections 30 and 31 of the Delhi University Act (Sukhdev Singh v. Bhagat Ram, (1975) 1 SCC 421 : AIR 1975 SC 1331 and Sirsi Municipality v. Cecelia Kom Francis Tellis, (1973) 1 SCC 409 : AIR 1973 SC 855). The power exercised or duty performed under Ordinance VII is, therefore, a statutory power and a statutory duty. Acting under Ordinance VII, therefore, the Principal is acting in a public capacity. Though the office of the Principal can exist outside a statute, it becomes a statutory office when the college is admitted to the privileges of the University. This is why such a college and its principal have been defined in Clauses (a) and (d) of Section 2 of the Delhi University Act. Even if the office of the Principal is not regarded statutory in the sense that, it is created by a statute, it is a public office because the powers and duties of the Principal relate to a largesection of the public, namely, the students of the college. There is no private or contractual relationship between the students and the Principal. The power of the Principal to enforce the requirement of two-thirds of attendance is given to her by Ordinance VII, that is, by a statutory provision. Similarly, the power to deny permission to students to appear at the examination on the ground of shortage of attendance is also a statutory power. For the same reason, the discretion of the Principal to give benefit to the students under Clause 2(9)(c) of Ordinance VII is also a statutory discretion. The exercise of these powers and the performance of these duties is, therefore, subject to mandamus and certiorari under Art, 226 of the Constitution.'
11. We have quoted the decisions exhaustively as we find ample support for our views. In this connection, we may refer to another decision of our own High Court reported in ILR (1978) 1 Cut 40, S.P. Gantayet v. Principal, Regional Engineering College, Warangal (A.P.) wherein the points involved were also similar. In that case the petitioner was admitted to a private college and subsequently his admission was cancelled. The main objection was, as similar to the present case, that the Regional Engineering College was not a State and the writ was not maintainable. Their Lordships held (at p. 63):-
'......... .Therefore, the Society may be the Proprietor of the college, but its academic affairs including admission of students and conferment of degrees are regulated by the Kakatiya University which is the creature of Statute. An Associate College of the University cannot be said to be a private body, but a public body. In Harijander Singh v. Selection Committee, Kakatiya Medical College, Waranga (AIR 1975 Andh Pra 35), a Full Bench was dealing with the cancellation of admission of a student of Kakatiya Medical College, which is affiliated to Osmania University and it was held that a writ of certiorari can be issued against a private college although it was not a statutory body. A writ can be issued against a non-statutory body if it violates administrative or executivedirections or instructions and acts in violation of principles of natural justice. It has been held in that decision that public bodies, such as affiliated colleges placed as they are, cannot be called as pure private bodies discharging purely private duties nor can they be characterised as domestic tribunals in the strict sense of that word. The Full Bench has further held that where the Lecturer of an affiliated college or its students, every one of them can take advantage of the remedies provided in Article 226 of the Constitution ..........'
After considering all the other decisions their Lordships were of the view : -- '..........But in the instant case, a student undergoes his course of coaching in the college in terms of the University Act and the Statutes. On completion of his terms he is required to appear in the examination prescribed by the University and has to obtain degree sanctioned by the University Act and Statutes. In these circumstances, when a student is illegally thrown out of the college, he is deprived of his right to continue his education and obtain degree sanctioned by the University Act and Statutes. In such a case, a writ can be issued against a private college for breach of public duty. Such cases between students and the College authorities cannot be equated with that of an employee of the private body.'
12. In this connection we would like to refer the decisions reported in AIR 1969 SC 1306, Praga Tools Corporation v. C.V. Imanual. Their Lordships have laid down the following principles (at p. 1309) : --
'..........Therefore, the condition precedent for the issue of mandamus is that there is in one claiming it a legal right to the performance of a legal duty by one against whom it is sought. An order of mandamus is, in form, a command directed to a person, corporation or an inferior tribunal requiring him or them to do a particular thing therein specified which appertains to his or their office and is in the nature of a public duty. It is, however, not necessary that the person or the authority on whom the statutory duty is imposed need be a public official or an official body. A mandamus can issue, for instance, to anofficial of a society to compel him to carry out the terms of the statute under or by which the society is constituted or governed and also to companies or corporations to carry out duties placed on them by the statutes authorising their undertakings. A mandamus would also lie against a company constituted by a statute for the purposes of fulfilling public responsibilities.'
In AIR 1977 All 539, Aley Ahmad Abidi v. Dist. Inspector of Schools, Allahabad, the Full Bench answered the question regarding the maintainability as follows (at p. 544) : --
'The Committee of Management of an Intermediate College is not a statutory body. Nevertheless, a Writ Petition filed against it is maintainable if such petition is for enforcement of performance of any legal obligations or duties imposed on such committee by a statute.'
13. In the instant cases the Orissa Engineering College was started in the Session 1986-87 after getting due concurrence of the State Government and it has been affiliated to the Utkal University from the session 1986-87 and offers a four-year course of studies leading to B.Sc. Engineering Degree in its discipline. Chapter-XX of the Utkal University Regulations for Bachelor of Science (Engineering) Examination deals with admission to the B.Sc. Engineering Degree. The students of the Orissa Engineering College are to get Degrees conferred by the Utkal University. In such circumstances the students acquire right of legitimate expectation to continue their studies under the protection of the University.
14. After giving our anxious consideration to the above decisions, we are of the opinion that though opposite party No. 1 is purely a private college, but as it is a recognised and affiliated college it has the duty and a obligation towards the students. Their is no relationship of master and servant or contractual relationship between the college arid students. The duty of the college is to impart education to the students for which it accepts fees. Under such circumstances, though opposite party No. 1 is purely a privatecollege, it has not observed the principles of natural justice and has not given opportunity to the petitioners before cancelling their admissions. So the writ applications are maintainable. , ,
15. The next question which arises for consideration is 'as to what relief the petitioners are entitled.
16. In the prospectus of the College theeligibility for admission has been laid down
and Clause (c) reads as follows :--
'Must have secured a minimum 50% in Physics, Chemistry and Mathematics (in aggregate in the qualifying examinations or in any higher University Examination.)''
The selection procedure as has been laid down in the prospectus is as follows :--
'Selection is done on the basis of merit and aptitude test at interview of the selected candidate taking into consideration outstanding/cultural, academic, social and athletic achievements and interview. The decision of the Director of 'Admission will be final in the matter of admission. Immediately on selection, the candidate should deposit all fees and take admission on the specified, date failing which he/she forfeits the seat. Once admission is granted no refund is admissible except the refundable deposit if any, made by the student.'
From the selection procedure it is clear that the Director of Admission is the final authority regarding the matters of admission and while selecting students for admission aptitude test at interview and other cultural, academic achievements etc. can also be taken into consideration by the Director of Admission.
17. In O.J.C. No. 2745 of 1988 the petitioner had obtained 49 per cent of marks and his case is that he is a sports man and he had been given weightage for his sports performance. Further he states that he had fared very well in the aptitude test at the interview. Taking all the factors and his athletic achievements into consideration as well as his performance in the interview, he had been selected and was duly admitted. His cancellation of admission is discriminatoryas he has specifically averred that others who have secured less percentage of marks are continuing in the course. In O.J.C. No. 2767 of 1988 the case of the petitioner is that though he had secured about 49 per cent of marks by the time of admission, he had already passed B.Sc. Annual examination with Mathematics, with pass subjects, Physics and Chemistry and got second class Honours in Mathematics securing 55.5 per cent of marks which was also taken into account while considering the eligibility for admission. He had done reasonably well at the interview and the Director of Admission selected him for admission taking all these facts into consideration. Had he been given an opportunity of hearing before cancellation of his admission, he could have proved before the authorities that he was an eligible candidate. His cancellation of admission is also improper as he has been deprived of pursuing his studies in any other institution as by the time of cancellation of admission, the admission to all other Engineering Colleges had been over.
18. A case of similar nature in which admission once given and subsequently cancelled was considered by this Court in ILR (1978) 1 Cut 40 (supra) and their Lordships after considering all the decisions held that once admission was given the Principal was estopped from urging that at the time of admission the student was not qualified for which his admission was cancelled.
19. This Court, in the case of Bireswar Mohapatra v. Principal, Radhanath Training College, Cuttack, ILR (1977) 1 Cut 185 : (AIR 1977 NOC 12) considered the question of estoppel. In that case the fact was that the petitioner took the examination but subsequently his result was withheld on the ground that he fell short of percentage. In that context it wasiheld that the Principal was estopped from urging the plea that the petitioner was not eligible to sit in the examination and the writ application was allowed.
20. The Regulations of the Utkal University, Chap. XX do not lay down any minimum marks of eligibility for admissionto the Engineering College though they have provided in other disciplines. Though eligibility of minimum marks in the qualifying examination has been laid down in the prospectus as 50 per cent, in the selection process again the same has been made flexible giving the Director of Admission to take cultural, athletic and other achievements into account. Under such circumstances when the petitioners were selected for admission after being intimated as successful, opposite party No. 1 is estopped from cancelling their admissions.
21. The petitioners also could not continue their studies in any other college as by the time they were intimated about their admission having been cancelled, the time for admission in other colleges was over. Keeping all these facts and circumstances in view particularly the career of two students we quash the impugned orders of cancellation of admission and direct that the petitioners may be readmitted into the College forthwith at any rate within a fortnight. We have been given to understand that the courses have commenced. The petitioners submit that they can complete the courses within time. The only hurdle is percentage of attendance which shall be considered by the University favourably.
22. In the result, the writ applications are allowed as indicated above. There shall be no order as to costs.
K. P. Mohapatra, J.
23. I agree.