Misc. Case No. 15613 of 2013

This misc. case has been filed with a prayer to give an appropriate direction to opp. party no. 2-Chairman, Odisha Joint Entrance Examination, Bhubaneswar, Khurda to allow the petitioner to participate in the web-based vacancy round counseling on the date fixed and if the petitioner comes out successful, a seat may be reserved to secure ends of justice.

2. This misc. case arises out of W.P (c) No. 16718 of 2013, which has been filed with a prayer to direct opp. party no. 2 to allow the petitioner to participate in the web based counseling schedule of OJEE, 2013 and if his name finds place in the merit list, opp. party no. 2 be directed to allow the petitioner to take admission in M.Tech in the appropriate subject as desired by the petitioner.

3. Petitioner's case in a nut-shell is that he has passed B.Tech from Janardan Rai Nagar Rajasthan Vidyapeeth University in the year 2010 which is a Deemed University in terms of Section 3 of the U.G.C Act, 1956 vide Notification No. F9-5/84-U-3, January 12, 1987 of the Government of India. Pursuant to the Information Brochure published by opp. party no. 2 for O.J.E.E- 2013, the petitioner participated in the Entrance Examination for M.Tech Regular and was issued with Rank Card of PGAT 2407(GE). Thereafter, direction has been given to all the candidates who have either OJEE, 2013 Rank Card or valid GATE/GPAT Score Card to participate in the web based counseling. It was also directed that all the OJEE candidates appearing for document verification in web-based counseling shall deposit non-refundable counseling fee of Rs. 450/- in the form of D.D in favour of OJEE, 2013. Candidates having valid GATE/GPAT score have to pay non-refundable counseling fee of Rs. 950/-. All the candidates were also directed to pay non-refundable University Registration fee of Rs. 5,000/-. As per the petitioner's rank, he was directed to appear on 19.7.2013 at College of Engineering and technology, Techno campus, Ghatikia, Kalinga Nagar, Bhubaneswar, pursuant to which the petitioner appeared before the Nodal Centre as fixed by opp. party no. 2, but unfortunately the petitioner was refused for verification of documents as he has completed the course through distance education.

4. Mr. S.K Dalai, learned counsel, appearing for the petitioner submitted that Clause 4.5.1.a of OJEE, 2013 Information and Brochure provides that applicants passed or appearing in 2013 Bachelors Degree Examination in the relevant field from any University of Odisha or from an AICTE approved Institute or from a recognized University as defined by UGC are eligible to be admitted in to M.Tech Course. In the brochure, there is no condition that the students who have acquired qualification from Janardan Rai Nagar Rajasthan Vidyapeeth University, Rajasthan (for short “JRN University”) are not eligible to participate in the counseling. Petitioner was allowed to participate in the examination and successfully qualified but was debarred from participating in the counseling. The petitioner completed B.Tech course from JRN University which has got recognition from opp. party no. 1-Union of India represented through Secretary, Ministry of Human Resources Development Department and was also declared as institute deemed to be University under Section 3 of UGC Act, 1956. The aforesaid University had acquired provisional recognition for the year 2007-08 for programmes offered through distant mode. The petitioner had taken admission in B.Tech through Distant Mode in the year 2007-08 and completed the course in the year 2009-10. The public notice floated by opp. party no. 3-Member Secretary of All India Council for Technical Education in the year 2011 that the AICTE has decided not to recognize the qualification acquired through distance education mode is unfair and illegal.

Mr. Dalai further submits that the brochure published by opp. party no. 2 does not provide such qualification criteria, i.e, not to allow the candidates who have acquired qualification through distant education mode. Therefore, the action of the OJEE in not verifying the document of the petitioner and not allowing him to participate in the counseling is mala fide and also contrary to their own advertisement. The petitioner, on examination of recognition of the University by opp. party no. 1, had taken admission and spent a valuable period of 3 years in completing B.Tech Course. Similarly situated students were allowed by OJEE to participate in the counseling. Therefore, at this stage denial of admission to the petitioner in M.Tech Course is unfair, illegal and unjust.

5. Mr. J.K Mishra, learned Senior Advocate appearing for AICTE submitted that the cut-off date for completion of admission process being 15.08.2013 (which is by now over) as per the decision of the Hon'ble Supreme Court in the case of Parshavnath Charitable Trust v. AICTE, (2013) 3 SCC 385, the petitioner is not entitled to any interim relief. Assuming that the petitioner is eligible to take admission in M.Tech, such admission cannot be granted after the cutoff date, i.e, after 15.08.2013 But fact remains that the petitioner is not eligible to take admission in M.Tech course as genuineness of his B.Tech degree is doubted. The Diploma awarded by JRN University, through Distance Education mode has not been approved by UGC, AICTE and DEC as required by the meeting dated 04.06.2009 held at 11 A.M in the Board Room of IGNOU Maidan Garlil.

The AICTE has already published a Public Notice for existing students/prospective students pursuing/wanting to pursue the education through Distance Mode under AICTE, UGC and DEC, thereby advising to check the approval by Joint Committee of DEC, UGC and AICTE in the Web Portal of AICTE. If the institution has not been approved by the Joint Committee, the qualifications acquired by the students of such institution are not approved by the AICTE. It is the public policy of the AICTE not to recognize such Certificates acquired by the students as per the aforesaid Notification. The petitioner has not enclosed the approval of the Joint Committee so far as his institution is concerned. On this score alone, the present writ petition ought to be dismissed. Some writ petitions are sub judice before the Division Bench of this Court regarding the status of the institutions. Petitioner's institution is one of them. Therefore, the present petitioner cannot claim any relief until and unless the said writ petitions are disposed of by the Division Bench of this Court.

6. Mr. Palit, learned counsel appearing for OJEE submitted that as the relief claimed in the misc. case as well as in the writ petition is identical, no interim order can be passed in favour of the petitioner. Placing reliance on the judgment of the Hon'ble Supreme Court in Parashavnath Charitable Trust' case (supra) Mr. Palit submitted that cut off date for taking admission in technical education is 15th August, 2013. Since the cut off date is over, no relief can be granted to the petitioner. It was further argued that all the issues raised by the petitioner can be decided at the time of final disposal of the writ petition.

Mr. Palit further submitted that the petitioner has admitted in the writ petition that he has obtained the Diploma Certificate from JRN University, but he has suppressed the fact as to in which institution of which place he was attending the classes for the said Diploma course. The JRN University has opened several campuses in different States and has been imparting education as Offline Campus Course, which is equal to Correspondence Courses like Distance Education.

The Distance Education or Off Campus Education is only meant for the purpose of employment to the posts and services, for the people who are already in jobs.

The Information Brochure of OJEE does not approve any student of Off Campus/Correspondence Course/Distance Education so far as the student's eligibility is concerned. Hence, the petitioner is not eligible for admission. The petitioner has wrongly interpreted the conditions given in the Information Brochure.

The Hon'ble Supreme Court in the judgment in Priya Gupta v. State of Chhatisgarh, AIR 2012 SC 2413 has categorically held that in the writ petition challenging admission to the professional course interim order permitting respondent-student to continue to pursue the course ought not to be granted. The Hon'ble Supreme Court in the case of Guru Nanak Dev University v. Paraminder Kr. Bansal, (1993) 4 SCC 401, has held that the ineligible candidates admitted to internship course by virtue of the interim orders issued by the High Court and final order issued directing regularization of internship are not sustainable even though candidates already completed the internship course.

7. Mr. A.K Mohapatra, learned counsel appearing for the B.P.U.T submitted that the Biju Pattnaik University of Technology (BPUT) has been established under the Biju Pattnaik University of Technology Act, 2002 with the aim and object as specified in the preamble of the Act itself. Most of the technical colleges/Institutions under the BPUT get students admitted through OJEE which is also a statutory body. In view of the provisions contained in Section 3 of the Orissa Professional Educational Institutions (Regulation of Admission and Fixation of Fee) Act, 2007, the students are admitted through OJEE to all technical, professional, educational institutions, be it Government or Private.

The BPUT has neither recognized the degree/diplomas obtained through distance education mode from outside Universities/deemed to be Universities, nor has anybody ever asked to decide the equivalence of such degree/diplomas with that of the degree given by BPUT. No other authority except the Academic Council of the BPUT is competent to decide the equivalence of such degrees/diplomas obtained through distance education mode. Section 20(g) of the BPUT Act, 2002 specifically provides that the Academic Council of BPUT can only prescribe the equivalence of examinations, degrees, diplomas and certificates of other Universities. Chapter-III statute 24(3)(v) of the First Statute-2006 of the BPUT also provides for recognition, subject to confirmation of the Board that the examinations of the recognized Universities are equivalent to the corresponding examinations of the University. Till date, the BPUT has not declared any degrees/diplomas obtained through any University of the country to be equivalent to the degrees given by BPUT.

The Deemed University concerned in the present case does not have the recognition from joint Committee consisting of UGC, AICTE and DEC after 2005. Moreover, the JRN University does not have AICTE approval for the programmes/courses offered by it in technical/professional subjects which are exclusively covered under the AICTE Act, 1987. Unless the programmes/courses are approved by AICTE, the BPUT cannot accept such courses and allow the students to enter into the BPUT system to prosecute their higher studies. Apparently, the courses and programmes taken by the student from JRN University is incomplete and the degrees/diplomas/certificates issued by such University are all defective and illegal.

8. All contentions taken by the parties need not be considered at the time of considering the misc. case filed for grant of interim protection. The petitioner is not entitled for any interim protection for the following reasons:

(i) It is not in dispute that admission to M.Tech Course for 2013 has in the mean time been completed by 15.8.2013 There cannot be any admission after the cut off date fixed by the Hon'ble Supreme Court in Parashvanath Charitable Trust's case (supra) wherein it has been held as follows:

“42. The admission to academic courses should start, as proposed, by 1st August of the relevant year. The seats remaining vacant should again be duly notified and advertised. All seats should be filled positively by 15 August after which there shall be no admission, whatever be the reason or ground.”

The law declared by the Hon'ble Supreme Court and directions given by it are binding on every Court of the country and the High Courts are unexceptionally bound by them.

The Gujarat High Court in the case of State of Gujarat v. Gordhandas Keshavji Gandhi, AIR 1962 Guj. 128 held that a decision of the Supreme Court is binding on all the High Courts. By Article 141 of the Constitution of India, it is laid down that the law declared by the Supreme Court shall be binding on all courts within the territory of India.

The Bombay High Court in the case of Amruta Babaji Mozar v. Kondabai, deceased by her heirs Babai Laxman Mandhare, AIR 1994 Bombay-293 held that the law declared by the Supreme Court is no doubt of paramount precedence and is binding on all the Courts notwithstanding any decision to the contrary of the High Court to which a Court may be subordinate. This would have been the position even without Article 141 of the Constitution because of the precedent-oriented system of judicial administration received by us from the Britishers and followed by us with utmost devotional rigidity.

The Karnataka High Court in the case of Oriental Insurance Co. Ltd. v. Smt. Salma, AIR 2008 Kant. 106 held that it is well settled that even obiter dicta made in the decision of the Supreme Court is binding upon High Court and High Court is not competent to interpret the decision of the Supreme Court.

In view of the above settled legal propositions, this Court cannot issue any direction to the opposite parties to give admission to the petitioner after cut-off date fixed by the Hon'ble Supreme Court.

(ii) It is not disputed that the relief claimed in the misc. case amounts to final relief claimed in the writ petition. The Hon'ble Supreme Court has consistently held that Courts should not pass any interim order which amounts to final relief. Whether the petitioner is entitled for any relief has to be adjudicated at the time of final disposal of the writ petition. The Hon'ble Supreme Court in the case of Burn Standard Co; Ltd. v. Dinabandhu Majumdar, AIR 1995 SC 1499 has deprecated the practice of granting interim relief which amounts to final relief.

(iii) The Hon'ble Supreme Court in the case of ASHA v. Pt. B.D Sharma University of Health Science, AIR 2012 SC 3396 held that the Court should avoid giving interim orders where admissions are matters of dispute before the Court. (Also see Priya Gupta v. State of Chhatishgarh, AIR 1912 SC 2413)

(iv) Otherwise also, no prima facie case is made out for grant of any interim relief to the petitioner for the following reasons.

(a) The Director of Indira Gandhi National Open University in her letter dated 9 April, 2010 available at page 53 of the affidavit dated 14.8.2013 filed by the petitioner addressed to the Senior Manager (HRD), National Aluminium Company Limited Corporate Office, NALCO Bhavan, Nayapalli, Bhubaneswar intimated the recognition status of course run by JRN Deemed University, Udaipur through distance mode. For better appreciation of the fact relevant portion of the said letter is extracted below:

“In this connection, I would like to inform you that the Distance Education Council (DEC) has accorded post-facto approval to JRN Rajasthan Vidyapeetha Deemed University, Udaipur to all programmes (that were approved by Statutory bodies of the institute) till 2005. The above university has also been accorded provisional recognition for the academic year 2007-08, which has been extended till the visit of the Expert Committee and decision is taken by the Joint Committee of UGC-AICTE-DEC.

Further, you may note that during the period of recognition the DEC has given institutional recognition in place of programme-wise approval to the JRN Rajasthan Vidyapeetha Deemed University for offering programmes through distance mode. Thus DEC has not accorded approval to any specific programme offered by above university. Further, in case of technical/professional programmes offered by the university is concerned, wherever, required, approval from the concerned apex bodies in the country such as AICTE is required to be obtained for which the responsibility vests with the university concerned.” (underlined for emphasis)

From the aforesaid letter, it is amply clear that the Distance Education Council (DEC) has accorded post-facto approval to JRN University for offering programmes through distance mode and thus DEC has not accorded approval to any specific programme offered by the above University. It is further clarified that in cases of technical and provisional programmes offered by the University wherever required approval from the concerned apex body in the country, such as AICTE is required to be obtained for which responsibility vests with the University. The said letter further reveals that the responsibility vested with JRN University to obtain approval from the apex body such as AICTE. Needless to say that the petitioner in the present case claims that he has secured qualification in Bachelor in Technical Education, i.e, B.Tech from JRN University. Despite repeated requests, the petitioner fails to produce any document regarding grant of approval from AICTE in respect of Technical professional qualification acquired by the petitioner from the said JRN University as clarified in the aforesaid letter of the Director of IGNOU.

(b) Secondly, the minutes of the meeting on the issue of recognition of diploma awarded by JRN University by Distance Education Council held on 4.6.2009, inter alia, contains the following:

“The AICTE nominee informed that they have not recognized the diploma in engineering course offered by JRN Rajasthan Vidyapeetha. Further the AICTE nominee informed the members that AICTE does not accord recognition to technical programmes offered through distance mode and till date they have got (sic) given any approval to start any technical programme through distance education. AICTE Council has recommended not to start any programme through distance education except MBA, MCA and DBM.”

The minutes of the meeting further contains the relevant Clause of the MoU signed between UGC, AICTE and DEC as under:

“Based on the recommendations of Joint Committee, the letter of approval may be issued by the Joint Committee. The letter should explicitly state. This has the approval of UGC/AICTE and DEC. The letter should be jointly signed by Secretary, UGC Member Secretary, AICTE and Director, DEC.”

The petitioner failed to produce any letter of approval issued by the Joint Committee jointly signed by the Secretary, UGC, Member Secretary AICTE and Director DEC in respect of courses offered by JRN University, Rajasthan.

9. Law is well-settled that education is national wealth. Merit and excellence assume special significance in the context of professional studies. Selection for admission is necessarily to be merit based. Merit of the student is sole criteria and there is no substitution of it.

10. In view of the above, the petitioner is not entitled to get any interim protection and accordingly the misc. case is dismissed.