ORISSA HIGH COURT : CUTTACK W. P.(C) NO. 9402 OF 2007 In the matter of an application under Articles 226 and 227 of the Constitution of India. ------------- Kanakmanjari Institute of Pharmaceutical Sciences, represented through Sri Barada Prasad Bhol. …… Petitioner -Versus- Biju Patnaik University of Technology (BPUT), Orissa and another. ….… Opp. Parties. For Petitioners : M/s. Debasish Panda & T.K.Deo. For Opp. Parties : M/s. R.K. Dash, P.K. Tripathy & Sambit Pattnaik, S.D.Das, H.S.Satpathy,D.R. Bhokta, N. Bisoi, M.Panda, D.Mohanty, A.N. Sahu & M.M.Swain. (For O.P. No.1) ----------------------- Decided on 28.10. 2009. -------------------------- P R E S E N T : THE HONOURABLE SHRI JUSTICE M. M. DAS ----------------------------------------------------------------------------------------- M.M. Das, J. The petitioner is a professional institution established under the Kanak Manjari Trust to impart education in Pharmacy in the year 1982. The All India Council for Technical Education (for short, ‘the AICTE’) has accorded its approval to the petitioner – institution which is valid till 2011. The petitioner – institution is affiliated to Biju Patnaik University of Technology (in short, ‘the BPUT’). 2. It would be worthwhile to mention here that the State of Orissa by virtue of Orissa Act 4 of 2007, i.e., Orissa Professional Educational Institutions (Regulation of Admission and Fixation of Fee) Act, 2007 provided for regulation of admission and fixation of fee etc. for professional educational institutions. The vires of the said Act was challenged before this Court and this Court by various petitions, in one of which was the petitioner – institution was the petitioner, i.e., in W.P. (C) No. 3207 of 2007. This Court by its judgment dated 18.5.2007 declared the Act 4 of 2007 to be unconstitutional which was struck down holding the same to be inoperative and invalid and not binding on the petitioners in the said writ petitions. The State of Orissa has challenged the said judgment of this Court in S.L.P bearing Nos. 10329 of 2007 and 10330 of 2007, which have been registered as Civil Appeals before the Supreme Court. The Supreme Court passed the following order on 18.5.2007:- “Leave granted. Notice be issued to second respondent in C.A. No. /07 (arising out of SLP (C) 10329/2007 and sole respondent in C.A. No. /07 (arising out of SLP (C) 10330/2008.) Hearing expedited. Order on prayer for interim relief. 2 The High Court has declared the Orissa Professional Educational Institutions (Regulation of Admission & Fixation of Fee) Act, 2007 (“Act” for short) to be unconstitutional, inoperative and invalid being violation of Articles 19(1)(d) and 254 of the Constitution of India. The State has challenged the said judgment in these appeals. It has also sought stay of the operation of the said judgment/order dated 18.05.2007 in W.P. (C) No. 3689 of 2007 and connected cases. We have heard learned counsel for the State of Orissa as also the learned counsel for Orissa Private Medical and Dental College Association, Orissa Management Colleges Association and Orissa Pvt. Engg. College Association. There shall be interim stay of the impugned judgment and order dated 18.5.2007 of the High Court subject to the following:- (1) Operation of sections 4(1), 4(2), 4(4) as also 6(1), 6(2) and 6(3) of the Act are stayed. (2) The Policy Planning Body is constituted with the following Member:- (i) Mr. Justice P.K. Mohanty, (Retd.). Chairman. (ii) Secretary, Industries Department. (iii) Secretary, Health & Family Welfare Department. (iv) Secretary, Higher Education Department. (v) Vice Chancellor, Biju Patnaik University of Technology. (vi) Director, Medical Education & Training, Orissa. (vii) Director, Technical and Training, Orissa. (viii) One representative, to be nominated by the Association of Orissa Pvt. Medical & Dental College Association. (ix) One representative to be nominated by the 3 Association of Orissa Pvt. Engineering College Association. (x) One representative to be nominated by the Association of Orissa Management College Association. (xi) One representative to be nominated by the Association of Orissa Pharmacy College Association. (xii) Member-Secretary to be nominated by the State Government. (3) The Fee Structure Committee is constituted with the following members:- (i) Hon’ble Mrs. Justice A.K. Padhi (Retd.) - Chairperson. (ii) Secretary, Industries Department. (iii) Secretary, Health & Family Welfare Department. (iv) Secretary, Higher Education Department. (v) A Chartered Accountant of repute to be nominated by the State Govt. (vi) Director, Medical Education and Training, Orissa. (vii) Director, Technical Education and Training, Orissa. (viii) One representative to be nominated by the Association of Orissa Pvt. Medical and Dental Colleges Association. (ix) One representative to be nominated by the Association of Orissa Pvt. Engg. Colleges Association. (x) One representative to be nominated by the Association of Orissa Management Colleges Association. 4 (xi) One representative to be nominated by the Association of Orissa Pharmacy College Association. (xii) Member-Secretary to be nominated by the State Government. 4. If the person nominated as Chairperson is unwilling or unable to take up the assignment, Hon’ble the Chief Justice of Orissa High Court shall nominate a retired Judge in his/her place at the request of the State Government. 5. The Association shall take their nominations and intimate the same to the respective Chairperson and the Secretary, Higher Education Department within one week from today. Similarly, the State Government shall also appoint the Member Secretary of the Policy Planning Body and the Chartered Accountant Member and Member Secretary of the Fee Structure Committee within one week from today under intimation to the respective Chairperson. 6. The constitution of the above ad hoc body/Committee has been broadly agreed to by the appellant as also the respective Association. The composition of the Body/Committee has been made keeping in view the interest of the student as also the institutions. 7. It is made clear that if the nominations are not made by the respective Associations within one week as stated above, the other members will constitute the respective Body/Association are start functioning. 8. The Body/Committee hereby constituted will be purely ad hoc and will exercise their functions under the Act only for the academic year 2007- 08. 9. The Policy Planning Body shall endeavour adhere to the time schedule prescribed by MCI/PCI/AICTE in respect to admission. The Fee 5 Structure Committee shall also expedite the fixation of the fees as per the Act. 10. We make it clear that except the provisions relating to the constitution of the said Body/Committee which stayed as aforesaid, other provisions of the Act shall continue to be in force” The above order was modified by the following order:- “We are not inclined to modify the order dated 1.6.2007. We hope that the State Government will take all necessary steps to ensure that the seats do not remain vacant and adequate number of candidates is cleared for admission in the institutions. However, the two retired Judges who are nominated, as Chairman of the two Committees by the High Court shall function as the Chairman unless any one of them declines to function as Chairman. In that event, the learned Chief Justice of the High Court shall nominate another retired Judge at the request of the State Government. Thus, it is clear that Act 4 of 2007 is in operation. Admission to B. Pharm Course has been undertaken under the aegis of the Policy Planning Body (for short, ‘the PPB’) constituted and functioning in terms of the Act 4 of 2007 as per the direction of the Supreme Court. 3. While the matter stood thus, the BPUT published an advertisement in Oriya daily, ‘The Samaja’ on 30.6.2007 inviting applications for admission to M. Tech. and M. Pharm Programmes, 2007-08 in different colleges mentioned in the said advertisement. The name of the petitioner – institution appears in serial no. 10 of the said advertisement under the sub-heading “Private Colleges”. The said advertisement was published by the 6 Registrar in-charge of BPUT and it was mentioned therein that “decision of the University is final in the matter”. The petitioner – institution stating that such advertisement would be invalid in view of Act 4 of 2007, made representation dated 3.7.2007 to the Chairman of the PPB for redressal, mentioning therein that the notice published by the BPUT is not in conformity with the order of the Supreme Court. As the PPB did not take any action, the petitioner – institution has approached this Court in the present writ petition seeking the following reliefs:- “The petitioner, therefore, most humbly prays that your Lordships may be graciously pleased to issue a Rule Nisi calling upon the opposite parties to show cause as to why the advertisement at Annexure-2 vis-à-vis the petitioner’s institution at serial no.10 relating to Private Colleges should not be held as illegal and accordingly quash the same for the reasons mentioned in the foregoing paragraphs and as to why the opposite party no.2 should not be directed to take measures for admission of the students in terms of the provisions contained in Act, 2007 which holds the field as on date and if the opposite parties fail to show cause or sufficient cause, the said Rule be made absolute; And issue any other order and/or direction deemed just and proper in the facts and circumstances of the case; An allow the writ application with cost; And for which act of kindness, the petitioner shall, as in duty bound, ever pray”. After issuance of the notice in the writ petition, the BPUT filed a counter affidavit. Considering the said counter affidavit, a Division Bench of this Court to which the matter was assigned then, passed the following order:- 7 “xx xx xx From the above mentioned averments, made in the counter affidavit, it is clear that the University has taken action in respect of the admission of M. Tech. and M.Pharm and Ph.D. Programmes without any authority and only in anticipation of the approval from the Policy Planning Body. Therefore, as an interim measure, it is provided that the petitioner-institution shall not be compelled to admit students in M. Pharm Course on the basis of the selection made by the Biju Patnaik University of Technology – opposite party no. 1 without any authority. xx xxx xx The Misc. Case is accordingly disposed of.” (Emphasis supplied) However, the PPB has chosen not to file any counter affidavit. By order dated 6.4.2009, this Court directed the matter to be placed on 13.4.2009 along with W.P. (C) No. 9702 of 2008 which has been also filed by the petitioner – institution challenging a similar advertisement which has been impugned in the present writ petition, published by the BPUT for the subsequent session 2008-09, inviting applications for P.G. Admission test for the year 2008-09.This Court directed in the said order that in the event no counter affidavit is filed by the aforesaid date, the matter shall be heard and decided on its own merits. 4. Mr. Narasingh, learned counsel for the petitioner – institution contended that the BPUT Act, 2002 came into force on 14.6.2002 which provides for establishment and incorporation of 8 a Technological University in the State of Orissa. Section 5 of the said Act deals with the power and functions of the University and section 5 (ii) deals with affiliation. Section 16 prescribes the authorities of the University. Section 19(1) provides for an Academic Council and Section 20 prescribes the powers and functions of the Academic Council. . He further referred to section 32 of the said Act, which prescribes that the academic Council may, subject to the approval of the Board, make regulations consistent with the said BPUT Act and the Statutes. According to Mr. Narasingh, exercising such power conferred under section 32 of the BPUT Act, regulations for M.Tech./M.Pharm were approved in the first meeting of the Academic Council held on 5.7.2003. He further submitted that the Act 4 of 2007 was enacted to regulate admission to private professional educational institutions and “Professional Educational Institutions” as defined in section 2 (s) (v) . The functions of the PPB provided in Act 4 of 2007 has also been prescribed in section 4 of the said Act, which would clearly show that when the Act is in operation, which prescribes the modalities of admission and assignment of specific role to the PPB, the action of the University in issuing the impugned advertisement is wholly without jurisdiction and in contravention of the provisions of the Act 4 of 2007. Therefore, the admission of candidates made 9 in pursuance thereof are liable to be declared as invalid in terms of section 4 (10) (a) of the Act 4 of 2007. 5. In paragraph-10 of the counter affidavit filed on behalf of the BPUT, the BPUT has taken a stand that the impugned advertisement has been issued in view of the previous practice which was being followed for giving M.Tech./M.Pharm Education. The University has also taken a further stand that the advertisement was issued as per the 8th meeting of the Academic Council held on 17.4.2007 which has sought for approval of the process initiated by the University which is pending before the PPB-opp. party no.2. According to the petitioner, the PPB has not approved any such proposal of the BPUT relating to admission into “M.Pharm Course”. 6. Referring to various meetings of the PPB, it was submitted on behalf of the petitioner – institution that this Court considering all these aspects of the matter passed the order on 14.8.2007 observing that from the averments made in the counter affidavit, it is clear that the University has taken action in respect of admission to M.Tech./M.Pharm and Ph.D. Programmes without any authority and only in anticipation of the approval from the Policy Planning Body. Mr. Narasingh also submitted that a perusal of the Minutes of the 5th P.P.B. Meeting held on 22.8.2007 under the Chairmanship of Justice Ch. P.K. 10 Mishra clearly discloses that the University has wrongly stated in the counter affidavit that it has sought for approval from the PPB. 7. The power and functions of the Academic Council of B.P.U.T. has been provided in section 20 of the Biju Patnaik University of Technology Act, 2002, the relevant portion of which are as follows:- “20. Powers and functions of Academic Council: Subject to the provisions of this Act and of the Statutes, the Academic Council shall have the following powers and functions, namely, (i) to advise the Board on all academic matters. (ii) To make regulations and to amend or repeal the same, on the following matters: (a) prescribing courses of studies and schemes of examinations. (b) Conducting annual review of courses offered, contents of curriculum and prescribing new courses to be introduced keeping in view the needs of the industry and prescribing modifications in curriculum; (c) Prescribing qualifications for admission of students to various courses of studies to research degrees and to the examinations and the conditions under which exemptions may be granted. xxx xxx xxx” 8. Act 4 of 2007 was enforced with effect from 2.3.2007. Section 3 of the said Act prescribes that subject to the provisions of the said Act, admission of students in all private professional educational institutions, Government institutions 11 and sponsored institutions to all seats including lateral entry seats, shall be made through JEE conducted by the Policy Planning Body followed by centralized counselling in order of merit in accordance with such procedure as recommended by the said body and approved by the Government. Section 4 (7) of the said Act provides that the Policy Planning Body shall supervise and guide the entire process of admission of students to the Government Institutions, private professional educational institutions and sponsored institutions with a view to ensuring that the process is fair, transparent, merit-based and non- exploitative. 9. Resolution of the 11th meeting at 11.3.2 of the Academic Council of the B.P.U.T. dated 7.7.2009 mentions as follows:- “11.3.2:Admission to M.Tech/M.Pharm, M.Arch Programme. The Policy Planning Body in its meeting held on 28.5.2008 resolved that the M.Tech./M.Pharm/ admission for 2008 shall be conducted by the Apex JEE Committee adopting an appropriate procedure which would be in accordance with the existing provision of Act/Statutes of the various Government Universities. Accordingly, the following procedures have prepared for admission. Step-I. The Brochure for admission to PG programme prepared as per Annexure- IV. Step-II The application form (OMR form and Brochure) @ Rs.1000/- may be sold. In addition Rs.20/- may be fixed as bank charges per Form. Step-III On-line test is to be conducted for preparing the merit list. 12 Step-IV The seat distribution shall be made as per procedure given in Brochure (Annexure-IV) Step –V A Committee may be formed to conduct and supervise the examination and supervise the admission process. The remuneration as accepted by theJEE- 2008 would be paid for this process. Based on above principle the Board in its 11th meeting approved the admission procedure as per provisions of Statutes/Regulations for above programme. Consequently, the University proceeded with the admission process”. 10. It is, therefore, clear that the Policy Planning Body in its meeting held on 28.5.2008 took a decision that admission to M.Tech/M.Pharm Courses shall be conducted by the apex J.E.E. Committee and not by the University. Though the B.P.U.T. has stated in the counter affidavit that it sought for approval of the Policy Planning Body and took action in respect of admission to M.Tech/M.Pharm and Ph.D. Courses, but one of the resolutions being resolution nos.3.3 and 3.4 of the Policy Planning Body in its 5th meeting held on 22.8.2007 reflect as follows:- “3.3. The Member Secretary of PPB brought to the notice of this Body that another order dtd. 14.8.2007 in W.P. (C) No. 9891 of 2007 filed by Sri Sushant Kumar Kanungo with State of Orissa, V.C., BPUT, Registrar, BPUT and Member Secretary, PPB as opposite parties. In the said writ petition was disposed off by the Hon’ble High Court in term of Order dtd. 14.8.2007 in the case of W.P. (C) No. 9402 of 2007. The grievance in these writs is not only with regard to M. Pharm course only. The submission relates to M. Pharm, M.Tech. PHD and it is further submitted that in this matter the University has also sought for approval of the process suggested by the University which is 13 pending before the PPB. The University here means the BPUT. 3.4. On enquiry from the Chair is ascertained that that no application is pending with regard to these courses before this Body.” 11. From the above, it is clear that the University has issued the impugned advertisement without any authority of law as already stated by this Court in its order dated 14.8.2007. This Court further finds that there was no authority of the Academic Council of the B.P.U.T. to issue the impugned advertisement, more specifically, after coming into force of Act 4 of 2007, the advertisement under Annexure-1 therefore, cannot be sustained and is accordingly quashed. However, the Policy Planning Body resolved in its meeting that admission to M.Tech/M.Pharm and Ph.D. Courses will be done by the Apex J.E.E. Committee adopting an appropriate procedure. 12. In view of such situation, the action of the petitioner – institution in giving admission to students in M. Pharm Course as would be seen from the order dated 5.2.2008 by which this Court allowed such students to appear in the ensuing M. Pharm Examination subject to condition that their results will not be declared cannot be found fault with. Again by order dated 19.1.2009, this Court has directed the B.P.U.T. to 14 issue registration numbers to the students, who were admitted to the petitioner-institution. 13. In view of the above, this Court feels it appropriate that unless a direction is issued to the B.P.U.T. to declare the results of the students of the petitioner – institution in which they have appeared, pursuant to the interim orders passed by this Court, such students will be prevented from prosecuting higher studies. . Accordingly, the B.P.U.T. is directed to declare the results of such students within a period of two weeks from today. It is, however, made clear that any student, who has taken admission in any other institution, pursuant to the impugned advertisement under Annexure-1, shall not in any manner be affected by the above order passed in this case quashing the said advertisement. 14. With the aforesaid observations and directions, the writ petition is allowed. ……………………… M.M. Das, J. Orissa High Court, Cuttack. October 28th, 2009/Biswal. 15 16 17 18