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Judgment
D.G.R. Patnaik, J.—The petitioner being an Association of Technical & Professional Institutions has challenged the order dated 27.10.2009 (Annexure-2) issued under the signature of the Officer on Special Duty, Permanent Committee, B.I.T. Extension Centre, Ranchi, ( respondent no. 4) whereby the proposal of the petitioner Association for holding a second Entrance Examination for filling up the existing vacant seats in the member private Engineering Colleges has been rejected and instead, a qualifying criteria has been fixed for taking admission to the vacant seats of only such candidates who have secured a minimum 30% marks in General Category and 25% marks in the Reserved Category at the Examination conducted by the Association and also by the Jharkhand Combined Entrance Examination Board (JCEEB). Prayer has accordingly been made for quashing the impugned order (annexure 3) of the respondent and for allowing the petitioner Association to hold a second Common Entrance Examination for selecting students for filling up the vacant seats in the Engineering Colleges of the member of the Association and alternatively, for allowing admission of students to the member Engineering Colleges through open counselling without imposing any stringent qualifying criteria, and subject only to the qualification prescribed under the AICTE and the norms of the Jharkhand Combined Entrance Examination Board and the Joint Entrance Test conducted by All India Association of Technical & Professional Institutions (AIATPI).
The petitioner is an Association of private un-aided Engineering Colleges situated in the State of Jharkhand. The members of Association are colleges approved by the AICTE apex Central Body and are affiliated to different universities in the State of Jharkhand. These Engineering Colleges are run by private Management Body/Trust and affiliation is based in accordance with the norms of the provisions of the AICTE which monitors and co-ordinates technical education in the country. The AICTE has approved the sanctioned strength intake of students in each of the member engineering colleges.
The mode of admission of students to the member engineering colleges which are run by private Management/Trust are as under:
(a) through Jharkhand Combined Entrance Examination Board ((JCEEB);
(b) Through All India Engineering Entrance Examination (AIEEE);
(c ) Through a Common Entrance Examination (CEC) conducted by the petitioner Association.
For the purpose of enabling the petitioner Association proper guidance and supervision in the matter of conducting Joint Entrance Test, the State government has constituted a Permanent Committee pursuant to the guidelines laid down by the Supreme Court in the case of P.A. Inamdar v. State of Maharashtra 2005 (6) SCC 537. For the session 2008-09, the petitioner Association had conducted a Joint Entrance test under the direct supervision of the Permanent Committee. A total number of 823 students had appeared at the examination and accordingly, merit lists were prepared on the basis of marks obtained by them. While recommending names of students for counselling, the Permanent Committee vide its letter dated 29.9.2008, had imposed a qualifying criteria recommending admission of only those students who had obtained a minimum 50% marks in the General Category and 45% marks in the Reserved Category. Later, considering the lower number of students qualifying the higher percentage of cut-off marks, the Permanent Committee by its own decision lowered down the curt-off marks to 30% in the General Category and 25% in the Reserved Category.
Even thereafter, against the total strength of 1736 seats, only 102 seats were allotted through JCEEB, 530 through AIEEE and 377 could be available through the examination conducted by the petitioner Association on the basis of 30% and 25% cut off marks.
On account of a very few number of students being allotted to it by the JCEEB and AIEEE and there being inadequate number of students who could qualify in the Entrance Examination conducted by the Association, a large number of seats have remained vacant, which has resulted in acute financial crisis and even threat to the very survival of these private Colleges and therefore, with a view to fill up the vacant seats, the petitioner Association had submitted its proposal for approval of the Permanent Committee either to permit the Association to conduct a second Entrance Examination, or alternatively, to permit them to admit students through direct counselling on the basis of marks obtained by students in the +2 examination.
Both these proposal have been rejected by the Permanent Committee by its impugned order. Assailing the impugned order, the petitioner Association has raised the following questions for consideration:
(i) whether the action of the respondent permanent Committee in fixing the condition of minimum percentage of cut off marks for regulating admissions in the private engineering colleges is arbitrary, without jurisdiction and against the spirit of the judgment rendered by the Supreme Court in several cases, including the case of Islamic Academy of Education and Another Vs. State of Karnataka and Others, ?
(ii) whether, in view of the large number of vacancies existing in the institutes even after the cut-off marks and the cut off dates, it would be open to the petitioner Association to fill up the same in the manner it considers appropriate?
(iii) whether in absence of any provision of cut off marks for regulating admissions in engineering colleges as per the All India Council for Technical Education (AICTE) or by the universities to which members of the petitioner Association are affiliated, any legal embargo can be imposed against the petitioner Association from holding a second Entrance Examination for filling up the vacant seats?
A counter affidavit has been filed on behalf of the respondents.
Heard the learned Counsel for the petitioner and the learned counsel for the respondents.
Sri Anil Kumar, Senior Advocate for the petitioner Association would argue that the Permanent Committee which has been constituted by the State Government pursuant to the law laid down by the Supreme Court in the case of P.A Inamdar v. State of Maharashtra 2005 (6) SCC 537 is vested with authority only to supervise and ensure that the Entrance Tests are conducted by the petitioner Association in a fair and transparent manner. The members of the petitioner Association are unaided private Institutions, which are managed by their own Governing Bodies and they have been given certain autonomy in regard to the rules and regulations for admission of students and for managing the institutions, subject to an overall supervision and guidance in the matter of conducting examinations through the Association. Learned Counsel explains that in the light of fact situation that despite the examination conducted by the two other agencies, namely JCEEB and the AIEEE and the Common Entrance Examination conducted by the petitioner Association, the total number of seats allotted to each of the member Institutes could not be filled up on account of lack of students, these un-aided institutions cannot be allowed to suffer financial problems and they have to be given enough freedom to admit more number of students through possible legal permissible methods.
Learned Counsel explains that in selection of students for admission through the Entrance Test conducted by AIEEE & JCEEB, there is no restriction of cut off marks for admission and the candidates who are at the very bottom of the merit list, are also eligible for admission. Furthermore, AICTE which is the apex Central Body to co-ordinate and regulate technical educations in the country, provides/stipulates only the minimum qualification as 10+2 pass in Physics, Chemistry and Mathematics. The Permanent Committee, therefore, cannot prescribe any stringent qualifying criteria for admission of students through the petitioner Association. Learned Counsel adds further that under similar circumstances in the States like Orissa and Madhya Pradesh, where seats for admission remained vacant, a second Entrance Examination was permitted and the respective State Governments have published notice for holding the second Entrance Examination. There being no legal embargo on holding second Entrance Examination, refusal by the respondent Permanent Committee to allow the petitioner Association to conduct second Entrance Examination is highly illegal, arbitrary and beyond its jurisdiction.
In order to lend assurance that the proposed second Entrance Examination shall be as fair and transparent as in the past, learned counsel submits that the respondent Permanent Committee have acknowledged in the counter affidavit that the Test conducted by the petitioner Association has been held in a fair and transparent manner and there has been no complainants of any malpractice and unfair means in the Examinations however stringent the conditions imposed. Learned counsel adds further that there is a semester system for the Engineering students and the universities to which the engineering colleges are affiliated, conduct semester examination. The universities issue engineering Decrees only to such students who pass the semester examinations and those who fail regularly or do not complete the course within seven years, are declared not fit for technical education. In other words, the quality of education is also maintained by the private institutions.
Referring to and relying upon the judgment of the Supreme Court in the case of State of H.P. and Others Vs. Himachal Institute of Engg. and Technology, Shimla, learned counsel submits that keeping in view the fact that a large number of vacancies have remained unfilled in the colleges even after the cut off date, the Association should be given the liberty to fill up the same in the manner it considers appropriate and since there is no legal bar or embargo in holding of second entrance examination, the petitioner Association should be permitted to hold a second Entrance Examination or, in the alternative, should be allowed to admit students to the vacant seats through open counselling without any cut off marks.
Per contra, the stand taken by the respondent Permanent Committee is that there is no illegality or arbitrariness in passing the impugned order refusing to allow the petitioner Association to conduct a second Entrance Examination and in stipulating the minimum percentage of marks obtained by the students in General Category and Reserved category in the last examination conducted by the petitioner Association for filling up the existing vacancies.
Sri P.K. Prasad, learned Advocate General, would explain that the petitioner Association had earlier approached the respondent Permanent Committee for allowing it to conduct Joint Common Entrance Examination early in the month of September in fear of the students being not available. The Permanent Committee allowed the prayer to conduct early examinations. Though the respondent Permanent Committee had earlier fixed a higher percentage of qualifying marks for admission of students, but later, considering the ground reality, had itself lowered down the minimum marks to 30% for General category and 25% for Reserved category. Notwithstanding such relaxation, seats remained vacant, which is apparently because of failure on the part of the institutions to build their own reputation and attract sizeable number of students. Learned Counsel explains further that apparently, the students desirous of taking admission could not obtain even 30% and 25% marks in the first examination conducted by the Association. Explaining the rationale behind fixing minimum qualifying marks for admission, learned counsel submits that fixing of such minimum marks is in consonance with the directions contained in the case of Islamic Academy of Education and Another Vs. State of Karnataka and Others, which provides for stringent merit test. Referring to the relevant paragraphs of the judgment in the case of Islamic Academy of Education (supra), learned Counsel submits that for admission to professional discipline, the students belonging to minority community or otherwise, can certainly be required to be placed on more rigid merit test.
Learned Counsel adds further that whereas in other States, maximum Management Quota is roughly about 20% and the role of the Permanent Committee is to fill up the quota seats. The State of Jharkhand has not prescribed such maximum Management Quota up till now, nor has the petitioner Association or any individual member institution approached the State Govt. for fixing the maximum management quota seats and consequently, the petitioner Association is under the impression that the Permanent Committee is to see that all those seats are filled up. Referring to the statistical data, learned Counsel explains that out of total seats allotted to individual member institutions of the petitioner Association, the Permanent Committee has filled up more than 50% seats whereas in general, the maximum management quota seat in other States is roughly 20%. It is for this reason that the Permanent Committee has rejected the proposal of the petitioner.
Learned Counsel adds further that from the letter received from one of the institutes namely Ram Chandra Chandra Vansi Institute, Palamau, it appears that the Institute has already managed students to admit them and it is these students who would be sitting at the proposed second examination. Such examination, according to the learned counsel, would be a feigned exercise for testing the merit of the students. The technical institutions cannot be allowed to become a business shop to produce unfair products, who become a liability for themselves as also for the society.
Learned Counsel adds that the apex Court has not prescribed that the Association will go on taking examination after examination as long as vacant seats are not filled up. If the judgment of the Supreme Court is interpreted in such a way, then the respondent Permanent Committee will be meaningless. Rather, the respondent Permanent Committee would become an agency for allowing these Institutes to fill up seats even at the cost of merit.
As regards the petitioner�s alternative proposal for permitting direct admission through counselling of students who have passed +2 examination, learned Counsel explains that a similar proposal was submitted by the AIATPI, but with a stipulation that such direct admission would be based on the criteria of students having obtained 60% marks at 10+2 level. Considering this minimum criteria of marks, the respondent Permanent Committee had approved the proposal. On the other hand, the petitioner would insist that direct admissions be allowed without stipulation of minimum percentage of marks. If this is allowed, it would result in admission of students without merit. The attempt of the respondent Permanent Committee is only to strike a balance between merit of students and survival of the institutions.
Summing up his arguments, learned Advocate General submits that the reasons for such vacancies may be perhaps due to the reputation of the Institution not being good among students due to inadequate publicity, or some institutions, though having come very late, are eager to start teaching from the current season or for inadequate publicity.
From the rival submissions, it is not disputed that a large number of seats in the member Colleges of the petitioner Association have remained vacant even after holding the Common Entrance Examination by the Association. The members of the petitioner Association are private un-aided colleges. The mode for admission of students into these colleges is restricted by way of selection through a Combined Entrance Examination conducted by JCEE, the another conducted by the All India Engineering Entrance Examination (AIEEE) and the third, through common entrance examination conducted by the petitioner Association. It is also not disputed that neither the AICTE which is the apex Central Body to co-ordinate and regulate technical educations, prescribes any cut off marks for admission and neither is there any such cut off minimum marks for admission stipulated through JCEE and AIEEE. It is also not disputed that there is no legal embargo on holding a second Entrance Examination.
Respondent Permanent Committee constituted by the State Government as per the directions contained in the PA Inamdar case (supra) is vested with powers to supervise the admission process so as to ensure that the examinations conducted by the petitioner Association by way of Common Entrance Examination is held in a fair and proper manner. Likewise, power is also vested with the permanent Committee for regulating fee structures of the private Institutions.
The stand taken by the respondent Permanent Committee is that even though there is no legal embargo for holding second Common Entrance Examination, the Supreme Court in its judgment either in the case of PA Inamdar or in any subsequent cases, has not directed that the Permanent Committee shall allow holding of repeated Entrance Examinations to enable the institutions to fill up the vacant seats. Further stand of the Permanent Committee is that the power vested to ensure that the examinations are conducted in a fair and proper manner also implies that only students with merit should be allowed to take admission and for which minimum percentage marks is the only way to eliminate those who do not possess the requisite merit.
Following the observations made and the guidelines laid down by the Supreme Court in the case of Islamic Academy of Education (supra), it cannot be disputed that the merit of students to be admitted to the engineering college may require to be placed on rigid test and to fulfil this objective of ensuring admission of students with merit to the college, the anxiety of the Permanent Committee may be appreciable, but at the same time, it has to be seen as to whether the Permanent Committee constituted by the State Government pursuant to the direction of the Supreme Court in the case of PA Inamdar (supra) does extend authority to the Committee to impose restrictions for admission of students by specifying the minimum cut off marks. It may be noted that the other agencies through whom admissions are made, also conduct Entrance Examinations at All India level and State Level, but admittedly, no minimum cut-off mark has been prescribed by them. If this can be allowed in respect of the other two agencies, there is no reason why such liberty be not given to the petitioner Association?
It is seen, however, that while approving holding of the first Entrance Examination by the Association, the respondent Permanent Committee had fixed minimum qualifying marks at 30% for General category and 25% for Reserved Category. The petitioner Association at that time did not raise any objection, nor did it challenge the authority of the Committee. The main concern of the petitioner Association is on account of the large number of seats remaining vacant despite conducting the earlier Common Entrance Examination. It is with this anxiety that the petitioner has proposed the holding of a second Common Entrance Examination for the current season in the hope and expectation of obtaining students who would be able to qualify in the second round of examination by the same standards of minimum qualifying marks.
The objection of respondent Committee to this proposal appears to be based more on presumptions than on ground realities. Lack of adequate publicity or lack of sufficient reputation may have been a factor, but it cannot be considered as a just and reasonable ground for disallowing the petitioner Association to conduct a second Entrance Examination. The other ground that students who could not secure the minimum marks in the earlier examination are merit-less and such students would sneak in through a second examination, is also unreasonable and defies logic. Failure of a student at a particular examination does not necessarily indicate his lack of knowledge of the subjects or his lack of merit. Various factors other than merit also contribute for the failure. Even otherwise, a student who has failed at a previous examination may be able to identify and overcome his deficiency and show his merit given a chance to save his precious academic year. The proposal has to be considered in the light of the ground realities and practical aspects. Whatever be the reasons, the fact remains that a large number of vacancies still exist. These institutions are un-aided bodies and have to depend upon their own resources. The admission to these colleges is only through Entrance Examination. If the seats are allowed to remain vacant and the institutions are disallowed from conducting a second round of examination, then the available alternative would be to admit students through direct counselling, though ensuring, at the same time, that only those students who possess a minimum degree of merit, are granted admission. For this a reasonable minimum percentage of marks at the +2 level would have to be fixed. The ideal situation therefore would be to permit the Colleges to fill up vacant seats by a second round of examination on reasonable criteria without wasting the vacant seats.
In terms of the judgment of the Supreme Court, as observed in the case of State of H.P and Ors. v. Himachal Institute of Engineering & Technology (supra), in which an identical situation arose on account of students not forthcoming in the professional discipline to take admission, the Supreme Court observed that the situation has to be resolved because the choice is between running huge losses or closing of the institutes for want of availability of students.
In the present case, neither the State Government would come forward to bear the losses of the Institutions nor the permanent Committee would offer to bail out the Institutions and preventing them from incurring losses.
In such a situation, the proposal of the petitioner Association to hold a second Common Entrance Examination for the current Session appears to be reasonable and a viable solution. There being no legal embargo, the petitioner Association cannot therefore be refused to hold a second Common Entrance Examination.
It appears from the counter affidavit of the respondent Committee that the first Common Entrance Examination conducted by the petitioner Association was fair and transparent and there was no occasion for complaint from any corner. The respondent Committee had felt satisfied of the standards of examination which was conducted. With the assurance of the petitioner Association that the same standards of fairness and transparency shall be maintained in conducting the second Common Entrance Examination, there can be no reasonable objection, in my view, in allowing the petitioner Association to conduct a second common Entrance Examination with the same standard of merits as prescribed in the first examination. After all, the petitioner Association regards the Permanent Committee as its guardian and seeks the Committee�s cooperation to help the Association to tide over the crisis. Considering the ground realities, the Committee could perhaps endure the inconvenience and extend the enlarged concession to the Association.
In the light of the above discussions, the impugned orders of the respondent Permanent Committee, for the reasons stated therein, cannot be sustained and are therefore hereby quashed. The petitioner Association shall be allowed to conduct a second Entrance Examination subject, of course, to the same standard of merits as adopted in the first Entrance examination and further, subject to the condition that the entire process of selection and admission shall be completed before commencement of the first Semester Examination for the Session under reference, by the universities to which the members of the petitioner Association are affiliated.
With these observations and directions, this application is disposed of at the stage of admission itself.
Let a copy of this order be given to the counsel for the respondents.