Odisha Private Engineering School Association (Op Vs. State of Odisha and Others - Court Judgment

HIGH COURT OF ORISSA: CUTTACK W.P.(C) Nos.5330 & 6242 of 2014 In the matter of an application under Articles 226 and 227 of the Constitution of India. -------In W.P.(C) No.5330 of 2014 Alakananda Philonthropic Trust, representing Ganesh Institute of Engineering and Technology (Polytechnics), Bhubaneswar, represented by its ChairmanCum-Managing Trustee, Er. Bibhuti Bhusan Tripathy and three others …..... Petitioners … .... Opp. Parties -VersusState of Odisha and others For Petitioners : M/s. Sanjit Mohanty & S. Nanda For Opp. Parties : Advocate General In W.P.(C) No.6242 of 2014 Odisha Private Engineering School Association (OPESA), represented Through its Secretary, Er. Saroj Kumar Sahoo, Nayapalli, Jayadev Vihar, Bhubaneswar. …… Petitioner -VersusState of Odisha and others For Petitioner … .... Opp. Parties : M/s. B. Routray, D. Routray, B. Singh, P. K. Sahoo, S. Das, S. Jena & S.K. Samal For Opp. Parties : M/s. V. Narasingh, S. K. Senapati & P. Das --------- 2 P R E S E N T: THE HONOURABLE SHRI JUSTICE I.MAYANTY AND THE HONOURABLE SHRI JUSTICE B.N.MAHAPATRA Date of Judgment: 14.05.2014 B.N.Mahapatra,J.Trusts The petitioners in W.P.(C) No.5330 of 2014, which are as well as the members of Orissa Private Engineering School Association (OPESA), writ petitioner in W.P.(C) No.6242 of 2014, imparting technical education in Diploma Engineering Courses in their respective institutions, have filed these Writ Petitions challenging the action of the State Government for No.acting in terms of the decision of the Policy Planning Body (PPB) dated 20.12.2013 as well as the norms prescribed by All India Council for Technical Education (AICTE) regarding admission to Diploma Engineering Courses for the Session 2014-15. Petitioners further challenge the notice dated 14.02.2014 published in the local daily newspaper “The Samaja”. in fixing tentative date for holding Diploma Entrance Test 2014 (for short, ‘DET 2014’) and notice dated 09.03.2014 published in the local daily newspaper “The Samaja”. fixing schedule for DET 2014 on the ground that such notices are contrary to the decision of the PPB.

2. The grievance of the petitioners in a nut shell is that though as per the norms of the AICTE, Entrance Test is No.mandatory for admission to Diploma Courses like other under-Graduate and Postgraduate Courses and that the PPB, which is the apex Body under the Orissa Professional Educational Institutions (Regulation of Admission and Fixation of Fees) Act, 2007 (for short, ‘Act, 2007’), has clearly recommended in its meeting dated 3 20th December, 2013 to abolish DET on the basis of a report of a SubCommittee and further recommended to go for admission on the basis of Higher Secondary Certificate marks with effect from academic Session 201415, the State Government instead of acting in terms of the said decision has illegally published the notice dated 09.03.2014 fixing schedule for DET 2014. According to the petitioners, all of them are imparting Diploma Engineering Courses duly approved by the AICTE under the AICTE Act. The number of seats of the above institutions in different Diploma Engineering Courses both Private and Government institutions comes to 39,319 which include 34,000 seats approximately in respect of Private managed Polytechnic/Engineering Schools, which are the members of the petitioners’ Association. Diploma Engineering and Non-Engineering courses were brought under the purview of Act, 2007 by virtue of Notification dated 18.06.2010. Thereafter, admission to all the Courses, both engineering and non-engineering in all the institutions were held through DET followed by other counseling. Second Diploma entrance test was also conducted as per the recommendation of the PPB to fill up vacant seats. During the academic Session 2010-11, even after giving admission through DET, large number of seats also remained vacant in most of the private Engineering Schools. As per the eligibility norms prescribed for taking admission in different Diploma Engineering courses by AICTE during the academic session 2011-12, a candidate is required to pass HSC with minimum 35% marks. The AICTE has No.prescribed any entrance examination for admission to Diploma courses. However, AICTE has made entrance test mandatory for admission into Under-Graduate and 4 Postgraduate courses. The PPB in its meeting held on 24.11.2011 decided that the Government in Industries Department had to take a decision in the matter of giving admission in the vacancies without going for any entrance test. During the academic session 2011-12, Directorate of Technical Education and Training (DTET) made advertisement for counseling for admission to Diploma Non-engineering courses at institution level, wherein the students were allowed to take admission on the basis of qualifying marks secured, i.e., 35% marks at 10th standard. For the academic Session 2013-14, since no action was taken by the PPB to fill up large number of vacant seats in different engineering courses in private Engineering schools after first counseling was over, the Odisha Private Engineering Schools Association finding no way out, approached this Court in W.P.(C) No.14030 of 2013 with a prayer to direct opposite parties to conduct the second DET and allow the counseling to be made pursuant to second DET. The Writ Petition was disposed of by a learned Single Judge of this Court directing to hold the second DET keeping in view that large number of seats were lying vacant in various institutions. The said judgment of the learned Single Judge was challenged in Writ Appeal before a Division Bench of this Court, wherein the Division Bench of this Court was pleased to direct for second DET within a stipulated period for the Session 2013-14. Even after the second DET, a large number of seats could No.be filled up due to shortage of candidates. During the academic Session 2014-15, several representations were made by several private Engineering Schools’ Association to the authorities to discontinue the entrance test and allow admission to Diploma courses on merit basis as per 5 the marks secured in the qualifying examination. The above request of the petitioners was No.acceded to by the present opposite parties. Hence, the present writ petitions.

3. Mr.Sanjit Mohanty and Mr.B.Routray, learned Senior Advocates appearing for the petitioners submitted that as per the AICTE process Hand Book, which is a Regulation of the AICTE for the session 2013-14 Entrance Test, is No.mandatory for admission in diploma courses. In many States, admission to diploma course is being made on the basis of the merit of qualifying examination, i.e., 10th standard marks. Opposite party No.2Department of Technical Education and Training has also invited applications through advertisement from intending orthopaedically handicapped students for admission to Diploma Engineering and Non-Engineering courses under persons with disability Scheme of M.H.R.D. Government of India, wherein 75 number of supernumerary seats in different Government Engineering Schools/Polytechnics were advertised and admission in those 75 numbers of seats was made on the basis of the marks secured in the qualifying examination, i.e., 35% of the marks secured in the 10th standard examination. The method of admission, i.e., e-admission to +2 courses in the Colleges throughout the State takes two and half months time, but the method of admission adopted for Diploma Engineering courses, conducted by the DTET, takes more than seven months time to complete the entire process of admission and large number of seats are lying vacant due to such method of admission adopted by the opposite parties. The decision of the PPB dated 22.11.2013 to abolish the Diploma Entrance Test is based on expert opinion 6 which canNo.be disregarded by the Government without any further adequate material.

4. It was further submitted that insofar as Diploma Engineering is concerned, particularly DET is No.coming under the purview of the 2007 Act like JEE, except by virtue of the Notification dated 18.06.2010, which was issued in exercise of power conferred under sub-clause (xii) of Clause (u) of Section-2 of the 2007 Act. No further amendment has been made to the said Act. There canNo.be violation of any of the provisions of the 2007 Act in the event students are allowed to take admission on the basis of AICTE norms. The action of the State Government in No.approving the decision of the PPB is No.only arbitrary but also contrary to law. The Hon’ble Supreme Court in the case of P.A. Inamdar and others vs. State of Maharashtra and others, AIR 2005 SC 3226 and Islamic Academy of Education and others vs. State of Karnataka and others, AIR 2003 SC 3724 has clearly held that, to impart technical education, the norms prescribed in the AICTE Hand Book as well as the Act should No.be violated. At the same time, the private institutions, which are imparting technical education, must be allowed to exist without compromising the quality of education. The viability and existence of private professional educational institutions canNo.be ignored but at the same time the viability as well as the existence of such institutions depends upon the strength of the students who have taken admission into such institutions. But more than 50% seats are lying vacant for the last four years due to holding of entrance test to get admission into such institutions. Short-listing is necessary where the aspirants/candidates are more than the numbers of 7 seats available. The entrance test is No.necessary when the number of vacancies is much more than the aspirants. Since fifty percent of the seats are lying vacant in different technical institutions, in the event DET is conducted to select the candidates to take admission in the institutions imparting Diploma courses, certainly the number of admissions to the vacant seats will further go down. In that event, such institutions will be closed. Concluding the argument, learned Senior Advocates submitted to issue appropriate direction to the opposite parties to ensure that the private technical institutions must survive without being closed.

5. Learned Advocate General, Mr. Asok Mohanty appearing for the State-opposite parties vehemently argued that the decision of the Government to hold Diploma Entrance Test, 2014 is in consonance with the provisions of the Act, 2007 and there is no illegality in doing so. The PPB is a recommending Body and the final approval as per the schematic arrangement of Act, 2007 vested in the Government in E&T & ET Department. After careful consideration of the recommendation of the PPB in accordance with the provisions of Section 3 (i) of the said Act, 2007 and in order to maintain excellence in Diploma Education, the State Government in consultation with the Government in Law Department have decided that the admission to Diploma programmes shall be made through DET and a merit list of the students shall be drawn up on the basis of marks secured by the candidates in Diploma Entrance Test vis-à-vis marks obtained in the qualifying examination with weightage 60% and 40% respectively. The CBSE while drawing the merit list for admission to Engineering programme 8 through All India Test JEE (Main) 2014 have prescribed the same procedure for drawing the merit list. In order to maintain excellence in Diploma Education and to follow a fair, transparent and merit based admission procedure, the State Government in exercise of power conferred under Section-2(u)(xii) of the Act, 2007 issued Notification No.8571 dated 18.6.2010. In the AICTE Hand Book, the eligibility criteria for admission to Diploma Programmes has only been prescribed. There is no mention regarding the method of admission to Diploma Programmes as mentioned in case of under graduate and post-graduate programmes. Thus, the State Government has No.deviated the provision of the AICTE so far as admission procedure is concerned. The State Government has adhered to the minimum eligibility criteria prescribed by the AICTE for admission to Diploma programmes. There is no embargo in law for authorities to prescribe the modalities of admission in addition to the prescription of the AICTE. Therefore, the assertion that the AICTE has No.prescribed any entrance examination for admission to Diploma courses has no bearing on the point at issue.

6. Learned Advocate General further submitted that Diploma Engineering and Non-Engineering courses belong to different and distinct classes. Moreover, from the academic session 2012-2013 onwards, the admission to Non-Engineering courses is being made through Diploma Entrance Test. Admission to Diploma Engineering and Non-Engineering Courses for orthopaedically handicapped students was made against the supernumerary seats approved by AICTE. Persons with Disabilities (PWD) 9 Scheme of MHRD, Government of India prescribed the method of admission and the students admitted under the scheme are exempted from paying admission fees etc. and financial incentives will be given as per the norms of MHRD, Government of India. Therefore, the State Government is No.denuded of power to direct for particular mode of admission including entrance test for Diploma Education. As per the schedule of the Diploma Entrance Test, 2014, the examination will be conducted on 18.5.2014 and admission through e-counselling will commence tentatively from 1st week of June, 2014 and continue up to 2nd week of August, 2014 including vacancy round, if any. Thus, approximately the admission through e-counselling process will take 2½ months and No.seven months as stated by the petitioners. The decision to hold the DET, 2014 has been taken in exercise of power conferred under Section 3 of the Act, 2007, which is in vogue in view of the direction of the Hon’ble Supreme Court. Hence, the recommendation of PPB canNo.confer any vested right on the petitioners as claimed No.it can be said to curtail the power of the Government to act in an independent manner as envisaged in the Act, 2007. There is no illegality in the action of the Government in directing to hold DET, 2014 and prescribing the modality of admission as per the impugned notifications dated 14.2.2014 and 9.3.2014. The decision of PPB is No.binding on the State Government. In view of the provisions of the Act, 2007, the interest of the students, who are intending to take admission in the institutions imparting Diploma Education, is in no way compromised in conduct of DET, 2014 and prescribing the modality of admission in terms of the impugned notifications 10 dated 14.2.2014 and 9.3.2014. During the academic year 2013-14, 51751 candidates appeared in the DET, 2013 and got valid rank for admission to Diploma in Engineering courses against the total intake of 37975, both Government and private institutions. This shows that the number of aspirants are more than the number of seats available. The number of candidates admitted during the year 2013-14 is 3927 against the intake capacity of 4795 for Government Engineering Schools and Polytechnics and 14481 against the intake capacity of 33180 for Private Engineering Schools. So far as the intake capacity of Government institutions is concerned, there are more number of candidates/aspirants than the available seats for which short listing is necessary for giving justice to meritorious students for availing best seat of their choice.

7. Placing reliance on the provisions of Section 2(u)(xii), Section 2(z) and Section 3 of the Act, 2007, learned Advocate General submitted that the State Government has rightly declared the Diploma Engineering Courses as the educational course for the purpose of the Act, 2007. It was further argued that the provisions of Section 9 of the Act, 2007 dealing with the reservation of seats and admission against the unfilled seats are subject to the provisions of Section 3 of the Act, 2007. Further, placing reliance on the provisions of Section 11 of the Act, 2007, it was argued that any admission made in violation of the provisions of the Act, 2007 and the rules framed thereunder shall be invalid. Concluding his argument, Mr. Mohanty, learned Advocate General submitted that the writ petition being devoid of merit is liable to be dismissed. 11 8. On rival contentions of the parties, the following questions arise for consideration: (i) Whether Diploma Engineering Courses are Educational Courses for the purpose of the Act, 2007?. (ii) Whether the State Government is justified in rejecting the decision of PPB dated 20.12.2013 recommending abolition of the Diploma Entrance Test and giving admission on the basis of H.S.C. marks?. (iii) Whether the notices dated 14.2.2014 and 9.3.2014 respectively issued for holding Diploma Entrance Test are sustainable in law?. (iv) What order?.

9. Question No.(i) is whether Diploma Engineering Courses are Educational Courses for the purpose of the Act, 2007?. At this juncture, it would be necessary to reproduce herein below relevant portion of Section-2 (u) (xii) of the Act, 2007. “2(u) “professional educational institution”. means college or school or an institute, by whatever name called, imparting professional education or conducting professional educational courses leading to the award of a degree, diploma or a certificate by whatever name called, approved or recognized by the competent statutory body or affiliated to a University, in any of the following disciplines, namely:-(i) xxx xxx xxx (xii) any other educational courses as may be declared by Government, by notification, from time to time;”.

10. Undisputedly State Government in exercise of the power conferred by Sub-clause- (xii) of Clause-(u) of Section 2 of the Act, 2007 has declared the Diploma Engineering Courses as educational courses for the Act, 2007 vide Notification No.IX-TTI-30/2010/8571 dated 18th June, 2010. 12 11. In view of the above, we are of the considered opinion that the Diploma Engineering courses are educational courses for the purpose of Act, 2007.

12. Question Nos. (ii) and (iii) being interlinked they are dealt with together.

13. We have already held that Diploma Engineering Courses are educational courses for the purpose of Act, 2007. Therefore, admission into Diploma Engineering Courses shall be governed by the provisions of the Act, 2007. Under the Act, 2007, admission to technical courses in different technical institutions has been made through a single window system.

14. At this juncture, it would be relevant to kNo.what is contemplated in Sections 2(z), 3, 9 and 11 of the 2007 Act. “Section 2(z) “single window system”. means the centralized system for admission administered by the Policy Planning Body”.; Section 3. “Subject to the provisions of this Act, admission of students in all private professional 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 counseling in order of merit, in accordance with such procedure as recommended by the said body and approved by the Government.”

. “Section 9. (1) In every professional educational institution admissions shall be in accordance with the reservation policy of the Government notified for the purpose of this Act: Provided that nothing in the sub-section shall be applicable to the minority institutions. (2) in a private professional educational institution other than minority institution No.exceeding fifteen per 13 centum of the approved intake may be filled up by NRI from the merit list prepared on the basis of JEE. (3) Where any shortfall in filling 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 filling 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 nonavailability of candidates in the list specified in subsections (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 candidate No.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, No.less than fifty per centum of the approved intake shall be filled up by minority students from which 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. 14 (b) The remaining seats shall be for the general category out of which up to fifteen per centum may be filled up by NRI.”

. “Section 11. “Any admission made in violation of the provisions of this Act or the rules made thereunder shall be invalid.”

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15. Section 2(z) provided for a “centralized window”. system, which means a centralized system for admission. A plain reading of Section 3 makes it clear that admission of students in all private professional educational institutions, Government institutions and sponsored institutions to all the seats including lateral entry seats shall be made through JEE. The expression of “all seats”. appearing in Section 3 includes admission of students under Section 9 of the 2007 Act.

16. Section 9 of 2007 Act provides for reservation of seats in a particular manner. Section 9 canNo.be read in isolation. Provisions of Section 9 are subject to Section 3 of 2007 Act. Any attempt to read Section 9 in isolation would completely defeat/frustrate the object, reason and purpose of 2007 Act. Section 3 of 2007 Act makes it mandatory that all admissions shall be made through JEE conducted by the PPB followed by centralized counseling in order of merit. Section 3 of 2007 Act envisages for admission of all students through OJEE in order of merit and in a transparent manner. Thus, all admissions including the admission for seats reserved under Section 9 of 2007 Act are to be done either directly by the OJEE or under its direct supervision and any admission made to any Private Professional 15 Institution, Government Institution and Sponsored Institution in violation of Section 3 of the 2007 Act, i.e., No.through OJEE is invalid.

17. Law is well-settled that the statute must be read as a whole. No part of a statute can be construed in isolation. The Hon’ble Supreme Court in the case of Mor Modern Cooperative Transport Society Ltd. vs. Financial Commissioner and Secretary to Government of Haryana and another, (2002) 6 SCC 269, held as under: “14. .....It is trite to say that the intention of the legislature must be found by reading the statute as a whole. The court must ascertain the intention of the legislature by directing its attention No.merely to the clauses to be construed but to the entire statute; it must compare the clause with the other parts of the law, and the setting in which the clause to be interpreted occurs. The rule is of general application as even the plainest terms may be controlled by the context. The expressions used in a statute should ordinarily be understood in a sense in which they best harmonize with the object of the statute, and which effectuate the object of the legislature....”

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18. It may be relevant to refer here the decision of the Hon’ble Supreme Court in the case of Reserve Bank of India vs. Peerless General Finance and Investment Co. Ltd. (supra), wherein it has been 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. A statute is best interpreted when we kNo.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 16 phrase and word by word. If a statute is looked at, in the context of its enactment, with the glasses of the statutemaker, 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 these 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 preceded 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.”

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19. At this juncture, it will be beneficial to refer to the Preamble of 2007 Act: “Preamble of 2007 Act specifically provides that “Whereas the Hon’ble Supreme Court of India in its judgment in P.A. Inamdar and others vs. State of Maharastra reported in AIR 2005 SC notifications dated 14.2.2014 and 9.3.2014 3226 has held that having regard to the larger interest and welfare of the student community to promote merit, achieve excellence and curb malpractices, it would be permissible to regulate admission by providing a centralized and single window procedure which, to a large extent, can secure grant of merit based admission on a transparent basis. “And whereas, it is further held that no capitation fee can be charged directly or indirectly or in any form and if charging of capitation fee and profiteering is to be checked, the method of admission is to be regulated so that the admissions are based on merit and transparency and the students are No.exploited.”

. “And whereas, the Hon’ble Supreme Court in P.A. Inamdar Case has observed that it is for the Central Government or for the State Governments, in absence of a Central 17 legislation, to come out with a detailed thought out legislation on the subject, which is long awaited.”

. The aforesaid preamble of the 2007 Act clearly indicates the object and purpose of enacting the said legislation by the State Legislatures. Therefore, while applying/interpreting the provisions of the 2007 Act, the intention behind having such an Act has to be kept in mind.”

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20. The source of 2007 Act is the judgments of the Hon’ble Supreme Court of India in the cases of P.A. Inamdar and others vs. State of Maharashtra and others, AIR 2005 SC 3226 and Islamic Academy of Education and others vs. State of Karnataka and others, AIR 2003 SC 3724. The Constitution Bench in both the above mentioned cases laid emphasis on merit based, transparent admission procedure to be regulated by the State through a centralized and single window mechanism.

21. In the case of Asha –v- Pt. B.D. Sharma, University of Health Sciences and others, AIR 2012 SC 3396, the Hon’ble Supreme Court held as under: 22. “36. (a) The rule of merit for preference of course and colleges admits no exception. It is an absolute rule and all stakeholders and concerned authorities are required to follow this rule strictly and without demur. xx xx xx”. The matter can be looked at from a different angle. AIEEE and OJEE allot rank number to the participants according to their merit. According to their merit, participants are entitled to a particular subject and the college, and in the process a meritorious student gets a better subject and better college in comparison to a less meritorious student. Therefore, if admission given to a student holding AIEEE and OJEE at College level in technical courses without 18 counseling among other interested left out OJEE and AIEEE mark holder students, more meritorious students may be deprived of getting admission in technical courses in a better college.

23. Further, it may be noted here that under Section 3 of the Act, 2007 power is vested in the State government to approve or disapprove any recommendation made by the PPB. Moreover, the State Government had adhered to the minimum eligibility criteria prescribed by AICTE for admission to Diploma programmes. Under the law, there is no embargo for the opposite partyauthorities to prescribe modalities of admission in addition to the prescription of the AICTE regarding minimum eligibility criteria.

24. In view of the above settled legal position and the statutory provisions, the decision of the PPB dated 20.12.2013 recommending abolition of the Diploma Entrance Test and giving admission on the basis of HSC marks upon which the petitioners placed strong reliance is No.permissible and the State Government is wholly justified in rejecting the said decision of the PPB in exercise of power conferred on it under Section 3 of the Act, 2007. Consequentially, issuance of notices dated 14.02.2014 and 09.03.2014 respectively for holding Entrance test are sustainable in law.

25. Question No.(iv) is what order?. Admittedly, after first counseling of DET a good number of seats are lying vacant in every year and considerable number of seats are filled up subsequently through second DET. It is further noticed that even after second DET, a large number of seats are lying vacant. There canNo.be a denial to the fact that neither the institutions, No.the State Government No.any student will 19 be gainer if some seats are allowed to remain vacant in technical institutions. It will be beneficial to all concerns if more number of seats are filled up in the technical institutions without compromising merit. If large number of seats remain vacant in both Government and private technical institutions, that will be a national waste.

26. At this juncture, it will be beneficial to refer to the order of this Court dated 11.09.2012 passed in W.A. Nos.249 and 250 of 2012. Paragraph-11 of the said order is as follows: “11. Having answered the first point in favour of the appellants, it is necessary to consider point Nos.2 and 3. It is an undisputed fact that nearly about 15, 053 seats in the Diploma Engineering Course are vacant. It is also a fact that the admission is already over and classes have already commenced. But having regard to the fact that large number of students who could No.be able to participate in the examination though they have secured more than the prescribed qualifying marks and might have come out successful in the entrance examination, if taken, may loose one academic year which is most previous for the students community, and keeping the seats vacant for an academic year will also be a national waste, to do complete justice to the parties, it would be appropriate for this Court while setting aside the impugned order in exercise of its extra ordinary jurisdiction, and having regard to Section 9(6)(b) of the 2007 Act, which has rightly been interpreted by the learned Advocate General with reference to sub-Sections (3), (4), (5) and (6) of the Act, to direct that a second entrance examination be conducted by the first appellant to fill up the seats. We canNo.give direction to the Policy Planning Body as the constitutional validity of the Act, 2007 is pending consideration before the apex Court, but certain provisions have No.been stayed. Therefore, the Policy Planning Body has determined the eligibility criteria, conduct of examination and process of selection 20 etc. to fill up the seats. Learned Advocate General submits that as the permission to the PPB for doing this is only for a limited period and that period is over, appropriate direction may be given to the State Government the first appellant herein. Having regard to the submissions made by the learned Advocate General, we give the following directions to the first appellant while setting aside the impugned order of the learned Single Judge.”

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27. It may be relevant to note here that Section 9(6)(b) of the Act, 2007 provides that if the seats remain vacant a 2nd JEE may be conducted.

28. This Court vide order dated 22.07.2013 passed in W.P.(C) No.14030 of 2013 held as under: “Keeping in view the decision of this Court referred to above, provision of Section 9 (6)(b) of the Act, 2007 and that for the academic session 2009-10 and 2010-11 the 2nd DETs were conducted by the opposite parties to fill up the vacant seats and that a substantial number of seats are lying vacant after candidates got allotment in 1st round provisional allotment pursuant to 1st DET, 2013, this Court for the benefit of all concerns, thinks it proper to direct opposite parties to hold the 2nd DET…..”

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29. In the fact situation, keeping in view the above legal position, we think it proper to issue following directions:(i) Since the courses in question are Diploma courses and the required qualification is HSC with 35% marks, mostly students of lower strata of the society are aspirants/applicants to take admission in above courses. Therefore, it is necessary that sufficient opportunity should be given to them to participate in the admission process. To ensure that they should get sufficient opportunity to take admission in technical /professional courses, the opposite party-authorities should ensure that counseling centers are located/opened in all districts; 21 (ii) If after 1st DET, seats remain vacant, opposite parties shall hold second DET as provided under Sections 9(6)(b) of the Act, 2007 through OJEE and as directed by this Court vide order dated 11.09.2012 passed in W.A. Nos.249 and 250 of 2012 and judgment dated 22.07.2013 passed in W.P.(C) No.14030 of 2013; (iii) After second DET, if seats still remain vacant and students, whose names find place in the merit list of 1st and 2nd DET, approach any technical institution for taking admission, the said institution shall produce the students in the counseling centre for counseling within the period stipulated hereunder. However, the entire admission process shall have to be completed by 15th August, 2014 in view of the judgment of the Hon’ble Supreme Court in the case of Parasnath Charitable Trust and others Vs. All India Council of Technical Education and others, 2013 (3) SCC 355. The schedule for conducting the above Diploma Entrance Test as suggested by opposite parties 1 to 3 in W.P.(C) No.6242 of 2014 is given below:SCHEDULE FOR WEB BASED E-COUNSELLING DET-2014 (1st Semester Diploma Engineering) 1st phase counseling Activities Registration, Choice filling & finalization of choice Registration, Choice filling & finalization of choice by Candidates from any Internet point Deposit of Counseling fee of Rs.200/- in Cash, Document verification, Choice locking at tagging NCC (Check www.detodisha.nic.in for Tagging list) (9.00 AM to 6.00 PM) Round-1 (Provisional Allotment) Allotment of seats of candidate including TFW (After 3.00 PM) Deposit of Admission Fee through ATM cum Debit/Credit Card/Net Banking/e-Chalan at any branch of AXIS/IDBI Date 06.06.2014 20.06.2014 08.06.2014 20.06.2014 25.06.2014 25.06.2014 30.06.2014 to to to 22 Bank. (Candidate shall No.come to NCC for this purpose) Round-2 (Provisional Allotment) Registration & fresh Choice Filling by the non-allotted of 1st round, non-registered ST/SC candidates and choice locking at NCC. (The candidates already allotted with a seat in 1st round, but did No.deposit Admission Fee are No.allowed) Result Publication after auto-sliding and de-reservation from SC & ST seats to General (After 3 PM) Deposit of Admission Fee through ATM cum Debit/Credit Card/Net Banking/e-Chalan at any branch of AXIS/IDBI Bank. (Candidate shall No.come to NCC for this purpose) Final Allotment Reporting of candidate at Finally allotted Institute Commencement of 1 month bridge course 04.07.2014 07.07.2014 07.07.2014 09.07.201 14.07.2014 15.07.2014 21.07.2014 17.07.2014 to to 2nd DET-214 Programme (Tentative) for 1st semester Diploma in Engineering Submission of ONLINE Application 18.07.2014 to 15.07.2014 Deposit of Application Fee 08.07.2014 to 16.07.2014 Availability of Admit Card & Centre list 18.07.2014 2nd DET Examination 20.07.2014 (SUNDAY) Result Publication 23.07.2014 Registration, choice filling & finalization of choice by 24.07.2014 to Candidates from any Internet point, Document verification, 28.07.2014 Choice locking and Deposit of Counseling Fee at NCC Allotment of seats 30.07.2014 Deposit of Admission Fee through ATM cum Debit/Credit 30.07.2014 to Card/Net Banking/ e-Chalan at any branch of AXIS/IDBI 01.08.2014 Bank. Final Allotment 02.08.2014 Reporting of candidate at Finally allotted Institute 03.08.2014 to 05.08.2014 Final phase counseling against the non-allotted seats (For left out DET Rank holders for 1st semester Engineering) Registration, Choice filling & finalization of choice Activities Date Registration, Choice filling & finalization of choice by Candidates 04.08.2014 from any Internet point, Document verification, Choice locking to and Deposit of Counseling Fee at NCC located in all districts 10.08.2014 Allotment of seats 12.08.2014 Reporting and deposit of admission fee by candidate at Finally 13.08.2014 allotted Institute to 14.08.2014 23 30. With the above observations and directions, the writ petitions are allowed in terms of the directions given herein above, but without any order as to costs. In view of the most urgency involved, urgent certified copy of the judgment be granted on proper application in course of the day and free copies of the judgment be handed over to learned counsel for opposite parties for necessary compliance. ……………………….... B.N. Mahapatra,J.I.Mahanty, J.I agree. ..….…………………. I.Mahanty, J.Orissa High Court, Cuttack Dated 14th May, 2014/ss/skj/bks