Orissa High Court
Case Details
ORISSA HIGH COURT: CUTTACK W.P.(C) No.15365 of 2013 In the matter of an application under Articles 226 and 227 of the Constitution of India. - - - - - - - State Private Industrial Training Centres Association, Odisha represented through its President Sri Gadadhar Nanda, S/o- Late Panchanan Nanda At/PO- Jagatpur, Dist: Cuttack and another State of Orissa and others -Versus- - - - - - - - … … Petitioners Opp. parties For Petitioners : Mr. B. Routray, Sr. Advocate M/s. D. Routray, B.Singh, R.K. Sahoo, S.K. Samal, S.P. Nath and S.Das For Opp. Parties : Mr. B.K. Dash [For O.P. Nos.2 and 3] ----------- P R E S E N T : THE HONOURABLE MR. JUSTICE B.N. MAHAPATRA Heard and Disposed of on 23.07.2013 B.N.Mahapatra, J. This writ petition has been filed with a prayer for issuance of a writ in the nature of certiorari or any other writ/writs, order/orders, direction/directions quashing the impugned notification of opp. Party no.2-Director of Technical Education and Training, Odisha, Cuttack dated 2.7.2013 under Annexure-4 in respect of 21 affiliated institutions as mentioned in Annexure-5 in tagging with other Centres for conducting the All India Trade Test, 2013. 2.
Legal Reasoning
decisions of this Court in the cases of Miss Mamata Maharathi and others v. Council of Higher Secondary Education, Orissa and another, AIR 1995 Ori. 229 and Jagamohan Higher Secondary School and others v. State of Orissa and others, AIR 1998 Ori. 136. 5 4. It is further submitted that the 21 institutions as mentioned in Annexure-5 who are members of the petitioner-association have satisfied the norms of holding the examination and they have the affiliated capacity of minimum 8 units and accordingly they have been selected as examination centres for last more than five years. The practical examinations are fixed to be held from 11th July, 2013 to 17th July, 2013, but the theory examination will start from 26th July to 31st July, 2013. So far as practical examination is concerned, the above 21 institutions have been allowed to conduct their practical examination at their own institutions. 5. Mr. B.K. Dash, learned counsel appearing on behalf of the opp. Parties files a counter affidavit dated 16.07.2013 sworn by one Swapna Kumar Mishra, Deputy Secretary, State Council for Technical Education and Vocational Training, Orissa. Referring to the counter affidavit Mr. Dash submits that the DGET has prescribed the norms of selection of Trade Testing Centre. It is clearly mentioned in para-21 (iii) that for institutions having less than 8 units capacity the theoretical test may be conducted after grouping of different small I.T.Is in a suitable building if so required and this condition has been stated in conjunction with para-21(i) where it is clearly mentioned that Trade Test may be conducted in affiliated ITIs/ITCs having minimum 8 units capacity. These provisions as mentioned in para 21(i) and (iii) clearly says that the theoretical test of institutions having less than 8 units shall be conducted in a suitable building by grouping of such institutions. The institutions have been selected as 6 Examination Centres as per the decisions of the Centre Selection Committee for which meeting was held on 5.4.2013. In accordance with the decision of the Centre Selection Committee, the question indent was sent to DGET, New Delhi on priority since DGET instructed to send the question indent by 2.4.2013. For selection of Trade Testing Centres for AITT July, 2013, the Council has conducted inspection in order to ascertain the present infrastructure for conducting the said AITT. Basing on inspection report as well as norms of DGE&T and the report of State Director, the institutions have been selected as Trade Testing Centres. He further submits that the averment made by the petitioner-association that the affiliated institutes have been selected as Trade Testing Centres for last couple of years continuously basing on the inspection conducted for affiliation is not correct, rather the Examination Centres have been selected basing on the norms of DGE&T issued from time to time in conjunction with the report of inspection conducted by the Council and the report received from the State Director. Mr. Dash further submits that as per the DGE&T Manual and Govt. order dated 12.4.2013, the responsible officer will be deputed to each examination centre to over-see the conduct of examination. If all the institutions (577) are selected as examination centres, 577 Officers will be required to be deployed which will cause serious administrative inconvenience due to dearth of officers to be deputed for the purpose. So for smooth supervision of AITT, the number of examination centres has been limited to 307 and this exercise has 7 been made basing on guideline/norms of DGE&T and the inspection report of Inspecting Officers and other reports available in respect of different institutions. 6. Mr. Dash has raised a preliminary objection regarding
Arguments
Mr. B. Routray, learned Senior Advocate appearing on behalf of the petitioners submits that the members of the petitioner- 2 association are very old Industrial Training Centres. They have got necessary approval from the Director General of Employment and Training (in short, “DGET”). Notification dated 2.07.2013 under Annexure-4 reflects the list of all Trade Testing Centres for All India Trade Test July, 2013, i.e., in Column-2 the name of the Centres and in Column-3, the name of the tagged institutions. Insofar as the petitioner-association is concerned though they are representing all the private ITCs but they are aggrieved in respect of tagged institutions mentioned in Column-3 which have satisfied the requirement of paragraph-21 of Appendix-VIII of the DGE and T Manual read with amendment thereof which was circulated vide letter dated 30.08.2010. It is submitted that the action of opp. Party no.2 in tagging above 21 institutions with other centres for conducting the All India Trade Test, 2013 is arbitrary and though the concerned institutions by way of representation brought it to the notice of opp. Parties, particularly, opp. Party no.2, the said representation was not attended to. In the instant case, neither the procedure has been followed nor any reason has been assigned for changing the centres of those 21 institutions. It is submitted that the petitioner-association is a registered association registered under the Society Registration Act bearing Registration No.22149/130 of 2005-06. The primary duty of the association is to protect the interest of its member-institutions. The procedure to establish such private industrial training institutions/centres are governed under a set of instructions called “Training Manual for Industrial Training Institutes and Centres” 3 (hereinafter called as “Training Manual”). So far as the State Council for Technical Education and Vocational Training, Odisha –opp. Party no.3 is concerned, as per the Training Manual there are State Councils corresponding to National Council to deal with the matters relating to vocational training at the State. For the purpose of granting approval of the DGET, it is necessary that there will be a sub-committee of NCTE&VT and for the purpose of affiliation the Standing Committee has to make an inspection and submit report for grant of affiliation of trades/units as well as in respect of the new ITIs/ITCs. The Manual further provides for composition of Sub- Committee of NCTE &VT dealing with affiliation. As could be revealed from the DGET Manual, State Director of Technical Education–opp. Party no.2 is to be taken as one of the Members of the said affiliation committee. 3. Mr. Routray further submits that so far as the Examination Centres is concerned, some of the institutions which are the members of the petitioner-association have been selected for the All India Trade Test Examination Centres for couple of years continuously and no allegation whatsoever has been made against such institutions in conducting such examination in all these years. Suddenly, a notification dated 2.7.2013 was circulated in the website of SCTE&VT wherein it was indicated that to conduct the examination of the students of above 21 institutions some other institutions have been selected for their examination centres which are far away from the 21 institutions. While the examination is 4 scheduled to be held on 11.7.2013, the impugned notification was circulated in the website of SCTE&VT on 2.7.2013 i.e. just 9 days before the date of conducting the examination. If there is any allegation against any institution for conducting All India Trade Test, before tagging of those centres with other centres the allegations should have been communicated to the respective institutions to enable them to give their reply much before the commencement of the examination, But in the present case, no such allegation has ever been communicated before 2.7.2013 i.e. before the issuance of the impugned notification. Learned counsel for the petitioners further submits that this Hon’ble Court had an occasion to deal with similar matters where examination centres were changed by the University as well as by the Council just before the commencement of examination and this Court had not only deprecated the action of the opp. Parties, but have directed that the examination centres should be allowed to continue. In such view of the matter, the opp. Party no.2 being an officer of the State Government has to act in a fair manner and should follow the principles as required under law before taking any action of tagging 21 institutions with other centres. In support of his contentions Mr. Routray relied upon the
Decision
maintainability of the writ petition filed by the petitioner-association espousing the cause of the members. It is submitted that it is not the duty or responsibility of the Union to question with regard to change of examination centres of the students of a particular college. Appearance in any examination is an independent right of a student and the petitioner-association has absolutely no role to question as to where the examination centres are to be held. In support of his contention, Mr. Dash relying upon the decision of the Allahabad High Court in the case of Ravindra Pal Singh S/o Sri Aidal v. State of U.P., 2005 (2) ESC 1456 further submits that the practical examination has already started from 11th July, 2013 and at this stage if the Court interferes with the matter and directs for alternative arrangement, it will certainly affect the ongoing process of examination and disturb the students. Placing reliance on the judgment of the Karnataka High Court dated 8th June, 2009 in the case of Akhila Karnataka Shikshana Prathistana’s (R) v. The Director, Karnataka Secondary Education Examination Board, Malleshwaram, Bangalore and another it is submitted that in similar situation the Court declined to entertain the prayer of the petitioner therein for change of centre. Mr. Dash also further submits that the petitioner-association-institutions which are tagged with other centres for the purpose of conducting 8 theory examination have not fulfilled the criteria to hold practical examination in their institutions as they have less than 8 units capacity in their institutions. Referring to the affidavit dated 22.07.2013 Mr.Dash submits that as per the provision laid down in para-21 of the Training Manual for ITC institutes and Centres, under Chairmanship of Sri H. Sharma, IAS, Director, Technical Institutions and Training on 05.04.2013 criteria were fixed for selection of Trade Testing Centre. How many institutions are coming under the purview of the petitioner-association and the name of the institutions of petitioner- association have not been mentioned in paragraphs- 13 and 14 of the writ petition. Another registered association, namely, Orissa Private ITI Association is also functioning in the State. In view of such suppression of fact the grievance of the association is not maintainable. Referring to Annexure-E/3 Mr.Dash submits that detailed information and list of institutions and Centres as well as total number of capacity of the unit in respect of the institutions at the time of appearance in Examination Centre have been furnished. Examination process has already been started and a part of the examination, i.e., practical examination has already been completed. The grievance of the petitioner-association in case of less than eight unit capacity, lack of affiliation, absence of registration, infrastructure etc. may not be entertained. Referring to the letter dated 22.07.2013 of State Council for Technical Education and Vocational Training Orissa, Mr.Dash submits that consideration of fixing new AITT Centre at this stage is not implementable because of 9 the reasons stated therein. The reasons stated therein are as follows: “i. In view of the instruction issued by DGET, all the question packets for the selected Examination centre are delivered through nearest Bank. The list of Bank agreed to receive question packets was send to DGET along with question indent. (Annex-I). ii. The banks are instructed to deliver the question packets one hour before the examination to the Centre Superintendent of the respective exam centre. (Annex-II). This arrangement is done to prevent leakage of question. iii. The AITT is an all India examination. Opening of questions packets & transporting it to a new centre may lead to leakage of question for which Council shall not be responsible. Further the examination process has already been started, hence, any change in examination centre will affect the examination process & may not be implementable.” Mr. Dash further submits that it is not 21 institutions as mentioned in Annexure-5, but only 17 institutions, out of those 21 institutions which have 8 units and are of five years old, have been tagged with other centres for the purpose of conducting theory examination of All India Trade Test, 2013. 7. On the rival contentions of the parties, the following questions fall for consideration by this Court : (i) Whether the present writ petition filed by the petitioner-association espousing the cause of its members is maintainable in law? (ii) Whether in the facts and circumstances, opp. Parties are justified in tagging 17 institutions of the petitioner-association out of 21 institutions mentioned in Annexure-5 with other centres as indicated in Annexure-4 for the purpose of theory examination is just and valid and whether at this stage any direction could be given to opp. Parties to 10 conduct theory examination in respect of 17 institutions ? 8. So far question No.(i) regarding maintainability of the writ petition is concerned, undisputedly, the petitioner-association has been duly registered under the Society Registration Act bearing Registration No.22149/130 of 2005-06 and it’s members are private industrial training centres duly approved by the DGET. In view of the judgment of the Hon’ble Supreme Court in the case of Akhil Bharatiya Soshit Karamchari Sangh (Railway) v. Union of India, AIR 1981 SC 298 and judgment of the Allahabad High Court in the case of Umesh Chand Vinod Kumar and others v. Krishi Utpadan Mandi Samiti, Bharthana and another, AIR 1984 All. 46, the present writ petition is maintainable. 9. So far question No.(ii) is concerned, the specific stand of the petitioner-association is that in all those 17 institutions which are members of the petitioner-association and whose names appear in Annexure-5 have satisfied the norms of holding the examination in their institutions and they have the affiliated capacity of minimum 8 units and they have been selected as examination centres for last more than 5 years. Thus it is claimed that the norms prescribed by the SCTE&VT to be eligible to be selected for conducting the All India Trade Test by an institution are fulfilled and there is no reason whatsoever for not selecting those 17 institutions for conducting the All India Trade Test in their institutions. Annexure-E/3 annexed to affidavit dated 22.07.2013 filed by opposite party No.3 also reveals that the 17 institutions out of 21 institutions mentioned in 11 Annexure-5 have satisfied the norms prescribed by SCTE&VT to be eligible to be selected for conducting the All India Trade Test. However, Mr. Dash submits since out of 17 institutions, in some institutions there are less number of students and against some other institutions there being allegations, they are tagged with other Trade Testing centres for the purpose of conducting theory examination. The above contention of Mr. Dash is wholly untenable. Paragraph-21 Appendix-VIII of DGET Manual read with amendment thereof circulated vide letter dated 30.8.2010 does not speak of the students strength of any institution for the purpose of declaring Trade Testing Centre. The requirement is that the institution must not have less than 8 units of capacity and it should be five years old. There is no dispute that the 17 institutions as pointed out by Mr. Dash from Annexure-E/3 attached to affidavit dated 22.7.2013 filed on behalf of opp. party no.3 have not less than 8 units of capacity and they are more than 8 years of old. So far the allegation with regard to report against some institutions is concerned, admittedly no allegation has been confronted to the concerned institutions calling for any explanation from them. Nothing has been brought to the notice of this Court if any action has been taken against those 17 institutions on the basis of alleged adverse report. The specific stand of the petitioner- association is that no allegation has been brought to the notice of any of the 17 institutions. On the other hand, it is contended by Mr. Routray that all the 17 institutions were allowed to conduct practical 12 examinations of All India Trade Test, 2013 in their institutions commenced from 11th July, 2013. It is further contended that the above 17 institutions were declared as centres and held all India Trade Test in previous years in their own Training Centres. The above facts are not denied by Mr. Dash. 10. Another aspect of the case which shocks the conscience of this Court is that admittedly the All India Trade Test, 2013 was scheduled to commence from 11th July, 2013. Just 9 days before commencement of examination the impugned notification dated 2.7.2013 has been issued by the opp. Parties wherein the 17 member-institutions of the petitioner-association have been tagged with other centres for the purpose of theory examination which is scheduled to be commenced from 26.07.2013. This Court in the case of Miss Mamata Maharathi and others (supra) held that in the matter of selection of centres to hold examination the competent authority should decide at least three months before the examination and should select such places (schools or colleges) which they may think to be fit to hold the examination. This Court further held that change of centres often causes great harassment to the candidates particularly in the matter of keeping accommodation at the place where examination would be held. In counter affidavit dated 16.07.2013, it is stated that the institutions have been selected as examinations centres as per the decision of the Centre Selection Committee for which meeting was held on 05.04.2013. Therefore, this Court fails to understand as to why the impugned notification declaring change of centre was published on 02.07.2013 13 when the decision to change the centre was taken as long back as on 05.04.2013. Thus, the action of the opposite parties in the instant case declaring change of centre 9 days before the date fixed for commencement of the examination is certainly unfair and this Court deprecated such conduct of the opp. parties. Further in the case of Jagamohan Higher Secondary School and others (supra) this Court held that the schools where examination centres were allowed shall not be excluded unless there are reports against them and any other good and valid reasons for such exclusion. 11. It is not in dispute that 17 institutions in question have satisfied the requirement of Paragraph-21 of Appendix-VIII of the DGE and T Manual read with amendment thereof which was circulated vide letter dated 30.08.2010. The alleged adverse report were not confronted nor was any explanation called for from those 17 institutions. No action has been taken against those institutions on the basis of such allegation. The fault lies with the opposite party-authorities in not declaring 17 institutions of the petitioner-association as All India Trade Test Centre and tagging those institutions with other centres. For the wrong committed by the opposite parties, 17 institutions as well as the students of those institutions should not suffer. The opposite party-authorities cannot take advantage of their own wrong and the petitioner-association and the students studying there should not be left to suffer for no fault of their own. 14 12. For the reasons stated above, the judgment of the Allahabad High Court in the case of Ravindra Pal Singh (supra) is of no help to the opp. Parties. Similarly the judgment of the Karnataka High Court in the case of Akhila Karnataka Shikshana Prathistana’s (R) (supra) is also of no help to the opp. Parties as the facts of that case are completely different from the facts of the present case. 13. In view of the above, I have no hesitation to hold that there is no valid and cogent reason for the opp. Parties not to declare the 17 institutions of the petitioner-association mentioned in Annexure-5 as All India Trade Test Centres and tag those institutions with other centres as indicated in Annexure-4. 14. Courts being custodians of law have a solemn duty to uphold the rule of law under all circumstances by directing the authorities concerned to act in accordance with law. If the rule of law is not enforced, it will certainly become a casualty in the process a costly consequence to be zealously averted by all, and at any rate, by the Court. [See Salkia Businessmen’s Association & Ors. Vs. Howrah Municipal Corporation & Ors., (2001) 6 SCC 688]. 15. Law is well settled that whenever any action of the authority is in violation of the provisions of the statute or the action is constitutionally illegal, it cannot be allowed to sustain in law. Wherever the statutory provision is ignored by the authority, the Court cannot become a silent spectator to such an illegality and it becomes the solemn duty of the Court to deal with the person(s) violating the law with heavy hands. (See R.N. Nanjundappa v. T. 15 Thimmaiah & Anr., AIR 1972 SC 1967, Sultan Sadik v. Sanjay Raj Subba & Ors., AIR 2004 SC 1377) 16. Whenever any wrong is done to a citizen, the Court cannot become a silent spectator to such illegality and it becomes the solemn duty of the Court to see that the affected person must get justice. (See Shivajirao Nilangekar Patil Vs. Dr.Mahesh Madhav Gosavi & Ors., AIR 1987 SC 294). 17. In the fact situation, notification dated 2.7.2013 under Annexure- 4 is quashed in respect of 17 institutions which are tagged with other centres. Opposite parties are directed to make necessary arrangement for conducting theory examination of All India Trade Test, 2013 in those 17 institutions who have been tagged with other Centres under Annexurer-4. For this purpose, they may take the assistance of the 17 institutions if they so desire. 18. In the result, the writ petition is allowed to the extent indicated above with the aforesaid observations and directions. In view of urgency of the matter and paucity of time, urgent certified copy of this judgment be granted on proper application and free copy of this judgment be handed over to learned counsel for opposite parties for compliance. Orissa High Court, Cuttack Dated 23rd July, 2013/skj/ss/ssd ………………………… B.N.Mahapatra, J.