The appeal has been filed against the judgement of the High court of Himachal Pradesh at Shimla which dismissed the petition of the appellants challenging the validity of the Sections ...
No Acts & Articles mentioned in this case
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REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 5198 OF_2017
(Arising out of SLP (Civil) No. 9837 of 2017)
Maharishi Markandeshwar Medical …. Appellants
College and Hospital & Others.
Versus
State of Himachal Pradesh & Others. .... Respondents
J U D G M E N T
A.M.KHANWILKAR, J.
1.This appeal emanates from the judgment of the High Court of
Himachal Pradesh at Shimla dated 20.12.2016, passed in CWP
No.4773 of 2015. The High Court dismissed the writ petition filed
by the Appellants challenging the validity of Sections 3(6), 3(6a) and
3(6b) of the Himachal Pradesh Private Medical Educational
Institutions (Regulation of Admission and Fixation of Fee) Act, 2006
(for short “2006 Act”) as amended vide amendment Act No.24 of
2
2015. The High Court also rejected the prayer of the Appellants to
issue directions to the concerned authorities that the Appellant
No.1 (college and hospital) or any other institution of medical
stream to be started by the Appellants be governed only by The
Maharishi Markandeshwar University (Establishment and
Regulation) Act, 2010 (for short “2010 Act”).
2.Briefly stated, Appellant No.1 is an unaided private medical
college established by the Appellant No.3 University Trust as a
constituent of the Appellant No.2 University. The Appellant No.2
University has been established under the 2010 Act. Before the said
Act was enacted, the sponsoring body of the Appellant No.3
University Trust had submitted a project report on 21.07.2008
under Section 4(2) of the Himachal Pradesh Universities Report
(Establishment and Regulation) Act, 2006 for establishing a multi
faculty University with emphasis on professional courses in
emerging areas. The State Government issued a letter of intent to
the Appellant No.3 – University Trust dated 28.08.2008, for setting
up of a private University within the State of Himachal Pradesh. The
letter delineated certain conditions to be fulfilled by the Trust for
3
setting up of a private University in the State. The Principal
Secretary to the State Government then issued an “Essentiality
Certificate” on 28.08.2008, permitting the Appellant No.3 –
University Trust to purchase 25 acres of land for establishment of a
medical college under the proposed private University. On the basis
of the Essentiality Certificate, the Appellant No.3 University Trust
proceeded with the project to establish the medical college as a
constituent unit of the proposed private University and made
necessary investments in that regard. The Appellant No.3
University Trust purchased 125.02 bighas of land at Khalogra in
KumarhattiSolan for setting up the proposed University. Having
complied with the preconditions for establishment of the proposed
University, the State Legislation enacted the 2010 Act to provide for
establishment, incorporation and regulation of Maharishi
Markandeshwar University, Solan, Himachal Pradesh for higher
education, and to regulate its functioning and for matters
connected therewith or incidental thereto. The 2010 Act received
the assent of the Governor on 15.09.2010. The said Act, however,
was deemed to have come into force w.e.f. 16.06.2010. The
4
Appellant No.2 University has thus been established under the
2010 Act.
3.On 27.07.2012, the Appellant No.2 University requested the
Principal Secretary (Health) to the Government of Himachal Pradesh
for grant of an “Essentiality Certificate” to establish a new medical
college at Kumarhatti, Solan “under” the Appellant No.2 –
University, to be submitted to the Medical Council of
India/Government of India. On 29.08.2012, the Secretary (Health)
Government of Himachal Pradesh brought to the notice of the
Director, Medical Education and Research, Himachal Pradesh,
regarding the grant of approval of the State Government for issuing
“Essentiality and Feasibility Certificate/No Objection Certificate” to
the Appellant No.2 University for opening the stated medical
college and hospital at Kumarhatti in Solan for MBBS Course with
150 seats in the said institute. On issuance of “Essentiality and
Feasibility Certificate/No Objection Certificate”, the Appellant No.3
University Trust applied to the Central Government along with
required schemes under Section 10A of the Indian Medical Council
Act, 1956, for grant of permission to establish a new medical college
5
at Kumarhatti, Solan, Himachal Pradesh “under” the Appellant No.2
University as its constituent. The Appellant No.3 University
Trust also wrote to the Medical Council of India vide its letter dated
27.02.2013, asserting that the proposed medical college, a
constituent college of the Appellant No.2 – University was “being set
up by the same Maharishi Markandeshwar University Trust at the
same campus as a part of the University”. Pursuant to the proposal
submitted by the Appellants, correspondence ensued between the
authorities, after which the Board of Governors of the Medical
Council of India issued a letter dated 14.07.2013 granting
permission for establishment of a new medical college and hospital
in the name and style of Maharishi Markandeshwar Medical College
and Hospital, at Kumarhatti, Solan, Himachal Pradesh by
Maharishi Markandeshwar University with annual intake of 150
seats with prospective effect from the academic year 2013 – 2014.
4.The State Government, in exercise of its powers under Section
3(3) of the 2006 Act, issued a notification on 14.08.2013, regarding
admission procedure and fee structure for admission to MBBS
Course in the Appellant No.1 College. The Special Secretary
6
(Health) Government of Himachal Pradesh wrote to the Medical
Council of India vide letter dated 02.01.2014, seeking clarification
with regard to the letter of intent and letter of permission issued to
the Appellants as, in the perception of the State, the Appellant No.1
– College was merely a college and required affiliation from the
Himachal Pradesh University. The Medical Council of India vide
letter dated 14.02.2014 sent its reply to the Secretary, stating that
the letter of permission dated 14.07.2013 has been granted to the
Appellant No.1 College, which is affiliated to the Appellant No.2
University with an annual intake of 150 students for the academic
year 20132014, under Section 10A of the Indian Medical Council
Act, 1956. The Medical Council of India also wrote to the Special
Secretary (Health) Government of Himachal Pradesh on 26.02.2014,
clarifying the position that the letter of permission has been granted
to the Appellants on the understanding that the Appellant No.1
College was affiliated to the Appellant No.2 – University. On receipt
of this communication, the Special Secretary (Health) Government
of Himachal Pradesh wrote to the Medical Council of India to
reconsider its decision. The Medical Council of India, by a detailed
7
communication dated 26.08.2014, clarified its stand in the
following words:
“MEDICAL COUNCIL OF INDIA
No. MCI 34(41)(E46)/2013Med. Dated: 26.08.2014
The Special Secretary (Health) to the
Govt. of Himachal Pradesh.,
Department of Health & Family Welfare,
Shimla – 171002.
Ref.:No.MCI34(41)(E46)/2013Med./57586, Dated 14.02.2014.
No.MCI34(41)(E46)/2013Med./5989259893,
Dated 26.02.2014
Sub.:Regarding Maharishi Markandeshwar Medical College &
Hospital Kumarhatti, Distt. Solan, H.P.
Sir,
Please refer to your letter No.HFWB(F)412/2013 dated
29.03.2014, on the subject noted above.
In this connection, according to the Establishment of
Medical College Regulation, 1999, apart from other statutory
requirements there are two main qualifying criteria which are
required to be fulfilled by all applicants at the time of
submitting their application/scheme for the establishment of
new medical college i.e. the essentiality certificate from the
State Government and the consent of affiliation from the
affiliating University. The application dated 26.09.2012 for the
establishment of Maharishi Markandeshwar medical college
was submitted along with an essentiality certificate dated
24.08.2012 issued by the Government of Himachal Pradesh
and consent of affiliation dated 25.08.2012 issued by
Maharishi Markandeshwar University. It is relevant to point
out that the essentiality certificate dated 24.08.2012 issued by
the Special Secretary (Health) to the Government of Himachal
Pradesh was in favour of Maharishi Markandeshwar
8
University Trust, Kumarhatti, Solan (H.P.). The essentiality
certificate dated 24.08.2012 clearly certified that it is feasible
to establish a medical college at Kumarhatti, Distt. Solan, H.P.
under the Maharishi Markandeshwar University.
Further, it is to be noted that the State of Himachal
Pradesh by Act No.22/2010 enacted Maharishi
Markandeshwar University (Establishment and Regulation)
Act, 2010 (hereinafter referred to as Maharishi
Markandeshwar University Act) on 20.09.2010 to provide
establishment, incorporation and regulation of Maharishi
Markandeshwar University, Solan Himachal Pradesh for
higher education and to regulate its functioning and for matters
connected therewith or incidental thereto. Section 5 of the
Maharishi Markandeshwar University Act, deals with the
power and functions of the University. Section 5 (xxvi) provides
that the University can setup colleges, institutions, offcampus
centres, offshore campus, study centres or to start distance
education, after fulfilling the norms and regulations of the
Central Government Regulatory Bodies and Central
Government issued from time to time, and after obtaining the
specified approval of the State Government.
The Council accordingly processed the application of the
Maharishi Markandeshwar Medical College, on completing the
statutory requirement as per the IMC Act, 1956 and the
regulations made there under. A physical assessment of the
applicant medical college was carried out, where after the
inspection report was placed before the then Board of
Governors nominated by the Central Government who after
considering the scheme of the applicant medical college,
decided to grant letter of intent to the applicant for the
establishment of new medical college at Kumarhatti, Solan,
Himachal Pradesh u/s 10A of the Act from the academic year
201314 with certain conditions. Accordingly the letter of
intent was issued to the applicant medical college on
12.07.2013.
The applicant on fulfilling all the conditions as provided
in the letter of intent was thereafter granted the letter of
permission on 14.07.2013 for establishment of Maharishi
Markandeshwar Medical College & Hospital, Kumarhatti,
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Solan, Himachal Pradesh with 150 MBBS admissions from the
academic year 201314.
The above facts clearly establish that Maharishi
Markandeshwar Medical College & Hospital, Solan was
established by Maharishi Markandeshwar University Trust
under Maharishi Markandeshwar University and that the
same is permissible under section 5 (xxvi) of the Maharishi
Markandeshwar University Act, 2010. The prohibition as
provided under Section 7 of the Maharishi Markandeshwar
University Act, 2010 will not be applicable in the facts and
circumstances of the present case as Maharishi
Markandeshwar Medical College & Hospital, Solan is a
constituent college under the said University. The State of
Himachal Pradesh while issuing essentiality certificate was
aware of this fact that the medical college will be established
by the Maharishi Markandeshwar University Trust under
Maharishi Markandeshwar University.
Under these circumstances, the Competent Authority
holds that the then Board of Governors nominated by the
Central Govt. had granted permission for establishment of
Maharishi Markandeshwar Medical College & Hospital, Solan
in accordance with the provisions of the IMC Act, 1956 and the
Regulations made thereunder and there is no need for
reconsideration of the said decision.
Yours faithfully,
Sd/
(B.D. Jain)
Admn. Officer”
(emphasis supplied)
Even the Joint Secretary, Ministry of Health & Family Welfare,
Government of India sent a separate response on 15
th
September,
2014 to the Chief Secretary of the Government of Himachal
Pradesh, reiterating the position stated by the Medical Council of
10
India in its communication dated 26.08.2014. This communication
reads as under:
“Government of India
Ministry of Health & Family Welfare
Nirman Bhavan, New Delhi110011
D.O. No.U12012/11/2013MEP.H.
Dated the 15
th
September, 2014
Dear Sir,
This is with reference to Govt. of Himachal Pradesh letter
No.HFWB(F)114/2013 dated 23
rd
June, 2014 regarding
affiliation of Maharashi Markandeshwar Medical College,
Kumarhatti, Distt. Solan, H.P.
The Medical Council of India vide their communication
dated 26
th
August, 2014 (copy enclosed) addressed to Special
Secretary (Health), Govt. of Himachal Pradesh has informed
that the prohibition under Section 7 of Maharishi
Markandeshwar University (Establishment and Regulation)
Act, 2010 will not be applicable in the facts and circumstances
of the present case if the Section 7 is read with section 5 (xxvi)
of which provides that the University can setup colleges,
institutions campus centre/offshore campus, study centres or
to start distance education, after fulfilling the norms and
regulations of the Central Government Regulatory Bodies and
Central government issued from time to time, and after
obtaining the specified approval of the State Government.
The Maharishi Markandeshwar Medical College &
Hospital is a constituent college under the said University and
the State Government has issued Essentiality Certificate/NOC
in favour of Maharishi Markandeshwar University certifying
the feasibility to establish a medical college at Kamarhatti,
District Solan, Himachal Pradesh.
With Kind regards,
Yours sincerely,
Sd/
(Dr. Vishwas Mehra)”
(emphasis supplied)
11
5.The Central Government, accordingly, issued a letter of
permission to the Appellant No.1 College for 150 students annual
intake capacity in academic year 2014 – 2015. Out of total 75 State
quota MBBS seats in the Appellant No.1 – College, only 35 seats
could be filled up. As a result, one more competitive entrance test
was held for the leftout MBBS seats, under the supervision of the
officers of the Government deputed to conduct/process the said
examination. For academic year 2015 – 2016, the Central
Government once again issued a letter of permission to Appellant
No.1 College for 150 seats annual intake.
6.The Appellant No.2 was, however, called upon by the State
Government vide letter dated 01.06.2015 to comply with the
admission procedure as provided in the notification issued on
14.08.2013 and the amendments thereto dated 31.08.2013 and
19.12.2014, while making admissions to the third batch of MBBS
students in the Appellant No.1 College. The Registrar of the
Appellant No.2 University then wrote to the Special Secretary
(Health) to Government of Himachal Pradesh vide letter dated
04.06.2015, asserting that the 2010 Act authorised the Appellant
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No.2 University to conduct its own entrance test, in view of the
recent decision of the Supreme Court. The Health, Revenue and
Law Minister, Government of Himachal Pradesh vide letter dated
05.06.2015, immediately wrote to the Union Minister for Health &
Family Welfare, Government of India requesting the Central
Government and the Medical Council of India to take corrective
measures so that the Appellant No.1 medical college could be
affiliated to Himachal Pradesh University at Shimla. In view of the
stand taken by the State Government, the Fee Committee
constituted for fixation of fees, in its meeting held on 07.07.2015
recommended that since the affiliation of Appellant No.1 medical
college was under dispute and reference in that behalf was pending
with the Central Government, in the meantime, necessary
amendments ought be made to the 2010 Act and the 2006 Act, to
the extent that all the medical courses in any institution under any
University shall be regulated under the “private medical institutions
under 2006 Act”.
7.In the context of the correspondence made by the State
Government, the Under Secretary of the Ministry of Health & Family
13
Welfare, Government of India vide letter dated 10.07.2015, wrote to
the Medical Council of India to offer its comments on the
communication received from the State Government dated
05.06.2015. The Medical Council of India, in turn, wrote to the
Secretary of the Ministry of Health & Family Welfare, Government of
India about the correct perception of the Medical Council of India
on the subject matter vide its letter dated 02.09.2015. The said
letter reads thus:
“MEDICAL COUNCIL OF INDIA
MCINo. 34(41)(E46)/2013Med./131542 Dated: 02.9.15
The Secretary
Govt. of India,
Ministry of Health & Family Welfare,
Nirman Bhawan,
New Delhi110011.
Sub.:Maharishi Markandeshwar Medical College & Hospital
Kumarhatti, Distt. Solan – reg.
Sir,
This is with reference to your letter
No.U.12012/11/2013ME(PII) dated 10.07.2015 by which you
have forwarded a copy of the D.O. letter dated 05.06.2015
received from Shri Kaul Singh Thakur, Hon’ble Health, revenue
and Law Minister, Govt. of Himachal Pradesh relating to the
issue of Maharishi Markandeshwar Medical College and
Hospital, Kumarhatti, District Solan, Himachal Pradesh. The
matter was examined by the Council Office on the basis of
records furnished by the applicant Maharishi Markandeshwar
University trust the applicant for the establishment of
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Maharishi Markandeshwar Medical College and Hospital,
Kumarhatti, District Solan, Himachal Pradesh. In this regard,
the Council has the following comments to offer:
1.The Maharishi Markandeshwar University is establish
under an Act of Himachal Pradesh State namely the
Maharishi Markandeshwar University (Establishment
and Regulation) Act, 2010. This Act vide Section 2 (p) of
the said Act recognize the Status of Maharishi
Markandeshwar University trust and defines it thus:
“sponsoring body” means the Maharishi
Markandeshwar University Trust, 55, Model town,
Ambala registered under the Indian Trust Act,
1882 through it subsidiary trust “Maharishi
Markandeshwar University Trust” in the State of
Himachal Pradesh.
2.Further Section 5 (va) of the Maharishi Markandeshwar
University (Establishment and Regulation) Act, 2010
provides that:
“the sponsoring body/university shall appoint full
time regular employees for the university and the
salary of the employees shall be deposited in the
bank account of the employees every month”.
3.Section 8 (i) of the Maharishi Markandeshwar University
(Establishment and Regulation) Act, 2010 requires the
sponsoring body shall establish an Endowment Fund for
the University with an amount of three crore rupees
which shall be pledged to the government of Himachal
Pradesh.
4.It is to be noted that the Act passed by the State
Legislature accords recognition to Maharishi
Markandeshwar University Trust and for that purpose
the responsibility of paying salary as well as
maintaining an Endowment Fund with the Govt. of
Himachal Pradesh has been casted upon the sponsoring
body of Maharishi Markandeshwar which is the
Maharishi Markandeshwar University Trust. Thus,
15
though in law the Maharishi Markandeshwar University
Trust and Maharishi Markandeshwar University are two
distinct legal entity, however, the responsibility of
maintaining endowment fund and paying salary to the
Staff has been entrusted upon the sponsoring Trust. It is
this Marakandeshwar University at Solan, Himachal
Pradesh. Therefore, the above clearly reveals that it is
the Maharishi Markandeshwar University Trust which
has established the Maharishi Markandeshwar
University and it is responsible for running the affairs of
Maharishi Markandeshwar University.
5.It is not out of place to mention that the Maharishi
Markandeshwar University is statutorily empowered by
way of Section 5 (1) (xxvi) “to setup colleges”. Hence,
when the State Legislature has itself granted the right to
Maharishi Markandeshwar University to have its own
colleges then in such case affiliating its medical college to
another University i.e. H.P. University appears to be
contrary to the Act of Himachal Legislature.
6.It is pertinent to add that the copy of the Letter of
Permission dated 14.07.2013 was also marked to the
Secretary (Medical Education) Department of Health &
Family Welfare, Shimla and the Director Medical
Education & Research, Shimla and the first
correspondence raising any objection from the State
Govt. was received only on 18.01.2014 that was duly
examined and replied to by the Council vide its letters
dated 14.02.2014 and 26.02.2014.
Yours
faithfully,
Sd/
(S.
Savitha)
Asstt.
Secretary.”
(emphasis supplied)
16
8.Realising the legal obstacles to impel the Appellant No.1
College to obtain affiliation from Himachal Pradesh University and
presumably, as recommended by the Fee Committee, steps were
taken to amend the 2006 Act by amending Section 3 thereof.
Sections 3(6), 3(6a), 3(6b) and 3(6c) in the said Act were inserted.
The statement of objects and reasons for the said amendment reads
thus:
“ STATEMENT OF OBJECTS AND REASONS
Section 3 of the Himachal Pradesh Private Medical
Educational Institutions (Regulation of Admission and Fixation
of Fee) Act, 2006 provides for regulation of admission in Private
Medical Education Institutions on the basis of merit obtained in
Centralized Common Entrance Test. However, it has been
observed that due to some loopholes and ambiguities in
definitions of clauses (e) and (j) of section 3, the same are being
misused by the Private Medical Institutions to introduce
element of opaqueness and irregularities in the admission
process. Therefore, to plug such loopholes, it is considered
necessary to remove these ambiguities and to redefine clauses
(e) and (j) of Section 2 and also to amend 3 of the Act ibid, so
that the admissions are made from the Centralized
examinations (AIIPMT, NEET) conducted by either central
agency (with CBSE) or by Himachal Pradesh University and to
ensure that all Private Medical Educational Institutions are
regulated under the provisions of the Act ibid. This has
necessitated amendment in the Act ibid.
The Bill seeks to achieve the aforesaid objectives.
(KAUL SINGH THAKUR)
Shimla: MinisterinCharge
Dated: Nil”
17
9.The 2006 Act was accordingly amended with a view to make it
mandatory for all the private medical institutions set up in the State
to take affiliation from the Himachal Pradesh University. As the
purport of the amendment affected the autonomy of the Appellant
No.2 University, the Appellants challenged the amendments to
2006 Act inter alia on the ground that it was the outcome of legal
malice. The Appellants, therefore, filed a writ petition before the
High Court of Himachal Pradesh at Shimla for the following reliefs:
“PRAYER:
It is therefore most respectfully prayed that this Hon’ble Court
may, in the interest of justice, be pleased
(i)To issue a writ in the nature of mandamus or any other
appropriate writ, direction or order striking down
Sections 3(6), 3(6)(a) and 3(6)(b) of the Himachal Pradesh
Private Medical Educational Institutions (Regulation of
Admission and Fixation of Fee) Act, 2006 as amended
vide Amendment Act No.24 of 2015 as null and void
being wholly arbitrary, grossly malafide, in contravention
of the law settled by the Hon’ble Supreme Court and in
naked breach of the fundamental rights of the petitioners
under Article 19 (1) (g) of the Constitution of India.
(ii)To issue the orders of appropriate nature that the
petitioner No.1 MM Medical College and Hospital or any
other Institutions of Medical Streams which may be
started by petitioners be governed by the MMU (E&R) Act.
(iii)That the Respondents may be directed to produce the
records of the case.
(iv)Any other order deemed just and proper may also be
passed in the facts and circumstances stated herein
below in favour of the petitioners.”
18
10.By the impugned judgment the High Court rejected the writ
petition and in doing so, made a distinction between the authority
of the Medical Council of India to grant “recognition” and the
authority of the State Government or the University to grant
“affiliation” for starting any medical college within the State. The
High Court adverted to the decision of this Court in the case of
Modern Dental College and Research Centre and Others Vs.
State of Madhya Pradesh and Others
1
to conclude that the grant
of affiliation was a precondition for granting recognition and that
the process of the grant of affiliation was not a mere formality on
the part of the examining body. The authority to grant affiliation
was vested in the affiliating/examining body and the affiliation
could be granted only by following prescribed procedure and after
application of mind. The High Court further held that the examining
body could always impose conditions as per its own requirements,
such as:
“a) eligibility of students for admission;
b)conduct of examinations;
c)the manner in which the prescribed courses should
be completed; and
d)to see that the conditions imposed by the MCI are
1 (2016) 7 SCC 353
19
complied with.”
The High Court held that the affiliating body must exercise its
discretion fairly and transparently. Further, the functions of the
affiliating body were complementary to the recognition to be given
by the Medical Council of India and not in derogation thereof. The
High Court then relied on the decisions of this Court in the case of
Rajasthan Pradesh Vaidya Samiti, Sardarshahar and another Vs.
Union of India and others
2
and in Bhartia Education Society and
Another Vs. State of Himachal Pradesh and Others
3
for the purpose
of differentiating between the scope of “recognition” and “affiliation”.
The High Court noted that the purpose of affiliation is to enable and
permit an institution to send students to participate in the public
examination conducted by the examining body and secure the
qualification for Degrees, Diplomas and Certificates. On the other
hand, the purpose of recognition is to grant licence to start a course
or training in the concerned stream of education. The High Court
then relied on the decision in the case of State of Madhya Pradesh
2
(2010) 12 SCC 609
3
(2011) 4 SCC 527
20
and Another Vs. Kumari Nivedita Jain and Others
4
which has
delineated the powers conferred on the Medical Council
of India under the MCI Act to empower it to make regulations for
carrying out the purpose of that Act. The High Court then adverted
to Section 7 of the Himachal Pradesh University Act, 1970 (for short
“1970 Act”) and noted that that was a parent statute under which
all the Universities in the State must be constituted. It then went on
to observe thus:
“49.Indubitably, the petitioners have not assailed the
constitutionality of the aforesaid provision. Subsection (2) of
section 7 starts with the nonobstante clause and, therefore,
would have predominance and would prevail inspite of
anything contrary contained in any other law for the time being
in force. Once that is so, the petitioners can have no right to
claim that it should be affiliated to a University of its choice
despite the fact as contained in section 7 (supra)
50.Even otherwise the State Government in its quest and
endeavour to ensure common standards of maintaining the
excellence of medical education within the State can always
exercise its power to affiliate a private educational medical
institute set up in a State to a particular University set up
within the State, as this power vests within the exclusive
domain of the State. The State can always act as a regulatory
authority to ensure good quality education and see that the
excellence of education standard does not fall below than what
has been prescribed by the State Government. Rather, it is
crucial for the State to act as a regulator even if this may have
some effect on the autonomy of the private institution as that
4
(1981) 4 SCC 296
21
would not mean that the freedom of the Institute under Article
19(1) (g) of the Constitution of India has been violated.”
The High Court then relied on its earlier decision in the case of H
Private Universities Management Association (HPUMA) Vs.
State of Himachal Pradesh and others
5
which dealt with the
extent to which a private unaided institution could claim freedom
under Article 19(1) (g) of the Constitution of India. It noted that the
said decision has been affirmed by this Court with the dismissal of
SLP on 21.11.2014. After noticing the aforementioned decisions, in
paragraph 53 and 54 the Court concluded thus:
“53. From the aforesaid detailed discussion, we are of the
considered view that the provisions of the MCI Act identify the
scope and extent of power which each of the State
stakeholders, i.e. MCI, State Government, Affiliating Body or
the University is expected to exercise. While the MCI has been
assigned the paramount role of according recognition, the
affiliation is best left to the State
Government/University/examining body and, therefore, it is
beyond the competence of the MCI or the Central Government
to dictate terms to the State insofar as the question of grant of
‘affiliation’ is concerned or direct the State to affiliate a Medical
College to a particular University. This is clearly beyond the
powers conferred by the Constitution upon the Central
Government or for that matter even the MCI. Even the College
seeking affiliation is bound by the provisions of the Himachal
Pradesh University Act, 1970, more particularly, the provisions
contained in Section 7 thereof and cannot of its own claim any
5
In writ petition No.7688 of 2013 decided on 23.07.2014
22
right of privilege to get affiliated to any University of its choice
including petitioner No.2.
54.Having said so, we find no merit in this petition and the
same is accordingly dismissed alongwith all applications
leaving the parties to bear their own costs.”
11.The counsel for the Appellants submits that the core issue
involved and as was raised before the High Court, has not been
answered, much less appropriately. According to the Appellants, the
Appellant No.2 – University, having been established under an
independent State Legislation i.e. the 2010 Act, is an autonomous
and independent University and is fully authorised to start
“campus/study centres” of its own. The Appellant No.1, a
constituent college, being one of its segment, cannot be asked to
take affiliation from another independent University in the State.
That stipulation impinges upon the autonomy of the Appellant No.2
– University; and moreso such dispensation is not envisaged under
the 2010 Act. It is submitted that although the 2006 Act is
applicable and will be adhered to by the Appellant No.2 University
and its constituent colleges for all other purposes, that does not
mean that the constituent college of Appellant No.2 University can
be compelled to take affiliation from Himachal Pradesh University
23
by remodeling the definition of Private Medical Educational
Institutions under the 2006 Act and correspondingly, by
introducing stipulation in that behalf in Section 3 (6a) of that Act. It
is submitted that the amendment in the 2006 Act cannot
undermine the Special Legislation under which the Appellant No.2
University has been established viz. the 2010 Act. It is contended
that the 2006 Act deals with the regime regarding Admission and
Fixation of Fee in Private Medical Educational Institutions in the
State and for matters connected therewith or incidental thereto.
That is the limited field in which it must operate. Whereas, the
2010 Act is a special legislation not only dealing with establishment
and incorporation of the Appellant No.2 University but also for
regulation and administration of the said University. The objects
and functions of the University so established under a Special
Legislation must prevail with regard to the matter of grant of
affiliation to its constituent colleges. What has been prohibited by
Section 7 of the 2010 Act, is to affiliate or otherwise admit to its
privileges any other institutions. Section 7 has no bearing on the
matter in issue, which concerns the starting of a medical college as
24
a constituent of the Appellant No.2 University. Thus, the authority
to grant affiliation to colleges which are constituents of the
Appellant No.2 University must vest with the Appellant No.2 –
University and not with any other University. Taking any other view
will entail in undermining the autonomy of the Appellant No.2 –
University, established under the 2010 Act. For that reason, the
amendment made in the 2006 Act will be in conflict with the special
legislation, namely, 2010 Act; and moreso the autonomy of the
Appellant No.2 University. The 2006 Act cannot have an overriding
effect on a special legislation under which the Appellant No.2 –
University has been established. The 2010 Act deals with
establishment of an independent University with full autonomy to
discharge its powers and functions as per the objects in Section 3 of
the Act, which includes to set up its constituent colleges, establish
its campus in the State, create centres of excellence for research
and development, establish examination centres, off campus
centres or to start distance education, and institute degrees,
diplomas, certificates and other academic distinctions on the basis
of examinations or such other method, subject to fulfilling the
25
norms of the Central Government Regulatory Bodies and which the
Central Government may issue from time to time. Further, the State
Government having already issued the essentiality certificate; and
the Appellant No.1 College being a constituent of the Appellant
No.2 – University, affiliation from Himachal Pradesh University was
not required to be obtained at all. The requirement postulated
under the amended 2006 Act would, however, compel the Appellant
No.1 – College, which is a constituent of the Appellant No.2 –
University, to take affiliation from another University. That will
inevitably make an inroad into the autonomy of the Appellant No.2
University. The purpose for which affiliation is required to be taken
is already ensured by the Appellant No.2 – University, while starting
its constituent college. Another University cannot be allowed to sit
over the subjective satisfaction of the Appellant No.2 University on
those aspects. That is not envisaged under the 2010 Act. Moreover,
the private medical institution referred to in amended Section 3(6a)
must be understood to be a private medical college affiliated to the
respective Universities, namely Himachal Pradesh University and
Appellant No.2 – University, as the case may be. The amendment to
26
Section 2(j) is also of no utility even if the Appellant No.2
University has no power to affiliate or extend its privileges to any
other institution. It is submitted that the expression “Himachal
Pradesh” occurring in Section 3(6a) of 2006 Act as amended,
deserves to be struck down and in which case, the rest of the
provision would apply to the institutions affiliated to the concerned
University namely “Himachal Pradesh University” or the Appellant
No.2 University as the case may be. In other words, the power to
affiliate a private medical institution set up in the State as a
constituent of the Appellant No.2 – University, would vest and must
remain in the Appellant No.2 University established under the
2010 Act. The counsel for the Appellants made it amply clear that
except the mandatory condition of affiliation of the Himachal
Pradesh University even for its constituent college, as per the
amending Act, the Appellants are not challenging any other
stipulation regarding the procedure for admission or fixation of fees
to medical courses governed by the provisions of the 2006 Act.
12.The counsels for the Respondents (Medical Council of India
and Union of India) have reiterated the stand of the said
27
Authorities, as articulated in their correspondence reproduced
above. That stand supports the claim of the Appellants.
13.The counsel for the State, however, supports the decision of
the High Court and submits that the essentiality certificate to
establish a new medical college was given to the Appellants on the
condition that it shall be governed as per the provisions of the 2006
Act, in respect of matters concerning admissions, fee structure and
related issues. It is therefore, not open to the Appellants to now
question the intention of the State Legislature much less contend
that the amended provisions of the 2006 Act are ultra vires. He
submits that the role of the affiliating body is to ensure that the
college would be able to maintain the requisite standards regarding
quality education to be imparted by the college. He submits that the
State Legislature is competent to enact a law on those matters. The
Appellant No.2 University has no power to grant affiliation to any
college. Section 7 of the 2010 Act prohibits the Appellant No.2 –
University from affiliating or otherwise extending its privileges to
any other institution. Moreover, Section 7 of the Himachal Pradesh
University Act, 1970 is the bulwark under which all the Universities
28
in the State have to be constituted and governed. He submits that
there is no conflict or incompatibility between the provisions of the
2010 Act and the 2006 Act, much less the 1970 Act. The Appellant
No.1 medical college would thus be governed by the provisions of
2006 Act, as amended from time to time. The 2006 Act is also a
Special Legislation and must prevail over the general powers and
functions of the Appellant No.2 – University, accorded to it under
the 2010 Act. The Appellant No.1 College can admit students for
medical course provided it fulfills the conditions specified under the
2006 Act. That Act requires all the private colleges in the State to
take affiliation from the Himachal Pradesh University. That
condition does not whittle down the autonomy of the Appellant No.2
– University, which has been established under the 2010 Act. The
Act of 2006, is a Special Legislation regarding admissions to
medical courses and fixation of fee. If the Appellant No.1 College
fails to comply with any mandatory requirement stipulated therein,
it must suffer the consequence as provided for in the said
enactment. The requirement specified as per the amended
provisions, to take affiliation from Himachal Pradesh University is
29
applicable to the Appellant No.1 College alone and does not
impinge upon the autonomy of the Appellant No.2 University. The
fact that Appellant No.1 College is a constituent of the Appellant
No.2 – University, does not extricate it from the definition of a
Private Medical Educational Institution under Section 2 (j) of the
2006 Act, as amended. He submits that the fact that the Appellants
have conceded to abide by the other stipulations in the 2006 Act,
itself dispels the argument of the Appellants that the autonomy of
the Appellant No.2 University will be affected in any manner.
Inasmuch as, the 2006 Act covers the gamut of matters regarding
the eligibility of students, the mode of conduct of examinations, the
manner in which the prescribed courses should be conducted
including the quantum of fees to be levied on the students admitted
in the medical colleges in the State. He submits that no argument
with regard to lack of legislative competence has been advanced.
Further, the respective State Legislations operate in different fields
and although may be overlapping in some areas, that would not
make the 2006 Act or the amended provisions thereof ultra vires in
any manner. He submits that the appeal deserves to be dismissed.
30
14.After considering the rival submissions, we are in agreement
with the Appellants that the High Court has not touched upon the
core issue relating to the autonomy of the Appellant No. 2 –
University including its authority to start a constituent medical
college, as prescribed by the 2010 Act. Admittedly, the Appellant
No. 2 – University has been established under the 2010 Act. This
Act received the assent of the Governor on 15
th
September, 2010
and was brought into force w.e.f. 16
th
June, 2010. The intendment
of the 2010 Act is to provide for establishment, incorporation and
regulation of the Appellant No. 2 University for higher education,
to regulate its functioning and for matters connected therewith or
incidental thereto. Section 2 (b) defines the expression “Campus”,
as ‘the area of University within which it is established’. This Act
also predicates imparting of education by Appellant No. 2
University by distance education by combination of any two or more
means of communication, namely broadcasting, telecasting,
correspondence courses, seminars, contact programmes and any
other such methodology. The expression “off campus/study centre”
has been defined in Section 2(k) to mean a centre of the University
31
established by it outside the main campus operated and maintained
as its “constituent unit”, having the university’s complement of
facilities, faculty and staff. That would obviously be an integral part
of the functions of the Appellant No.2 – University. The expression
“study centre”, means a centre established and maintained or
recognized by the University for the purpose of advising, counseling
or for rendering any other assistance required by the students of
the Appellants in the context of distance education, as set out in
Section 2(t). The expression “University” has been defined in Section
2(v) to mean Maharishi Markandeshwar University, Solan in
Himachal Pradesh. Section 3 provides for the objects of the
University. It is an inclusive provision. The same reads thus :
“3. The objects of the University shall includes,
(a)to provide instructions, teaching and training in higher
education with a view to create higher levels of intellectual
abilities;
(b) to establish facilities for education and training;
(c) to carry out teaching, research and offer continuing education
programmes;
(d) to create centres of excellence for research and development
relevant to the needs of the State and for sharing knowledge
and its application;
(e) to establish campus in the State;
(f) to establish examination centres;
(g) to institute degrees, diplomas, certificates and other academic
distinctions on the basis of examination or any such other
method; while doing so, the University shall ensure that the
32
standards of degrees, diplomas, certificates and other
academic distinctions are not lower than those laid down by
regulating bodies; and
(h) to set up off campus centres, subject to applicable rules or
regulations.
(i) to engage in areas of specialization with proven ability to
make distinctive contributions to the objectives of the
University education system that is academic engagement
clearly distinguishable from programmes of an ordinary nature
that lead to conventional degrees in arts, science, engineering,
medicine, dental, pharmacy, management, etc. routinely
offered by conventional institutions; and
(j)to establish broadbased and viable under graduate, post
graduate and research programmes in several disciplines with
the firm interdisciplinary orientation and linkages.
(k) to make the University functional within one year from the
date of commencement of this Act.”
(emphasis supplied)
Section 4, which is of some significance to the case on hand, reads
thus:
“4. (1) The first Chancellor and the first ViceChancellor of the
University and the first members of the Governing body, Board
of Management and the Academic Council and all persons who
may hereafter become such officers or members, so long as
they continue to hold such office or membership, are hereby
constituted a body corporate by the name of Maharishi
Markandeshwar University, Solan, Himachal Pradesh.
(2) The University shall have perpetual succession and a
common seal and shall sue and be sued by the said name.
(3) The University shall be situated and have its head quarters
at KumarhattiSolan, Himachal Pradesh.”
(emphasis supplied)
The extent to which the Appellant No. 2 University can and ought
to exercise its powers and functions, can be discerned from Section
5 of the Act. The same reads as follows:
33
“5. (1) The University shall have the following powers and
functions, namely:
(i)to provide for instructions in such branches of learning as
the University may, from time to time, determine, and to
make provision for research and for advancement and
dissemination of knowledge and for extension of
education;
(ii)to conduct innovative experiments in modern methods
and technologies in the field of technical education in
order to maintain international standards of such
education, training and research;
(iii)to organize and to undertake extramural teaching and
extension services;
(iv)to hold examinations and grant diplomas and certificates
to and confer degrees and other academic distinctions on
persons, subject to recognition by any statutory body
under any law, if required, and to withdraw any such
diplomas, certificates, degrees or other academic
distinctions for good and sufficient cause;
(v)to create such teaching, administrative and other posts
as the University may deem necessary, from time to time,
and make appointments thereto;
(va) the sponsoring body/university shall appoint full time
regular employees for the university and the salary of the
employees shall be deposited in the bank account of the
employees every month;
(vi)to institute and award Fellowships, Studentships and
Prizes;
(vii)to establish and maintain Hostel including Halls;
recognize, guide, supervise and control Hostels including
Halls not maintained by the University and other
accommodation for the residence of the students, and to
withdraw any such recognition;
(viii)to regulate and enforce discipline among students and
employees of the University and to take such disciplinary
measures as may be deemed necessary;
(ix)to make arrangements for promoting health and general
welfare of the students and the employees of the
University and of the Colleges;
34
(x)to determine the criterion for admission in the University
or its Colleges;
(xi)to recognize for any purpose, either in whole or in part,
any institution or members or students thereof on such
terms and conditions as may, from time to time, be
specified and to withdraw such recognition;
(xii)to develop and maintain twinning arrangement with
centers of excellence in modern advanced technology in
the developed countries for higher education training and
research, including distance education subject to the
University Grants Commission Act, 1956 and the
regulations made thereunder;
(xiii)to cooperate with any other University, authority or
association or any public body having purposes and
objects similar to those of the University for such
purposes as may be agreed upon, on such terms and
conditions as may, from time to time, be specified by the
University;
(xiv)to cooperate with other National and International
institutions in the conduct of research and higher
education subject to the University Grants Commission
Act, 1956 and the regulations made thereunder;
(xv)to deal with property belonging to or vested in the
University in any manner which is considered necessary
for promoting the objects of the University;
(xvi)to enter into any agreement for the incorporation in the
University of any institution and for taking over its rights,
properties and liabilities and for any other purpose not
repugnant to this Act;
(xvii)to demand and receive payment of such fees and other
charges as may be specified from time to time;
(xviii)to receive donations and grants, except from parents and
students and to acquire, hold, manage and dispose of
any property, movable or immovable, including trust or
endowed property within or outside Himachal Pradesh
for the purposes and objects of the University, and to
invest funds in such manner as the University thinks fit;
(xix)to make provisions for research and advisory services
and for that purpose to enter into such arrangements
35
with other institutions or bodies as the University may
deem necessary;
(xx)to provide for the printing, reproduction and publication
of research and other work, including text books, which
may be issued by the University;
(xxi)to accord recognition to institutions and examinations for
admission in the University;
(xxii)to do all such other things as may be necessary,
incidental or conducive to the attainment of all or any of
the objects of the University;
(xxiii)to frame statutes, ordinances and regulations for
carrying out the objects of the University in accordance
with the provisions of the Act;
(xxiv) to provide for dual degrees, diplomas or certificates vis
à
vis other Universities on reciprocal basis within and
outside the country;
(xxv)to make provisions for integrated courses in different
disciplines in the educational programmes of the
University;
(xxvi)to setup colleges, institutions, offcampus centres, off
shore campus, study centres or to start distance
education, after fulfilling the norms and regulations of the
Central Government Regulatory Bodies and Central
Government, issued from time to time, and after
obtaining the specific approval of the State Government;
and
(xxvii)to seek collaboration with other institutions on mutually
acceptable terms and conditions.
(2) in pursuit of its objects and in exercise of its powers and in
performing of its functions, the University shall not
discriminate between any person, whosoever, on the basis of
caste, class, colour, creed, sex, religion or race.”
(emphasis supplied)
Section 6 stipulates that the Appellant No. 2 – University shall be
selffinanced and shall not be entitled to receive any grant or other
financial assistance from the Government. The University is
36
required to establish an Endowment Fund in terms of Section 8 and
a General Fund as per Section 9. The manner in which the General
Fund is to be utilized is set out in Section 10 of the Act. Section 11
of the Act provides for the officers of the University and their
designations. Section 12 deals with the appointment of the
Chancellor of the Appellant No.2 –University, who shall be the Head
of the University and exercise powers as prescribed therein. A
similar provision is made in respect of appointment of Vice
Chancellor and the exercise of powers by him under Section 13 of
the Act. Section 14 of the Act deals with the appointment of
Registrar of the University. Section 15 provides for the appointment
of Chief Finance and Accounts Officer of the Appellant No. 2
University. Section 16 deals with the appointment of other officers
as will be necessary for the functioning of the Appellant No. 2
University. The authority of the Appellant No. 2 University has
been spelt out in Section 17, namely the Governing Body, the Board
of Management, the Academic Council and such other authorities
as may be declared by the statutes to be the authorities of the
University. The Governing Body, consisting of members specified in
37
Section 18, is supposed to be the supreme body or supreme
authority of the University. Powers to be exercised by the Governing
Body are specified in the same Section (i.e. Section 18). Section 19
deals with the constitution of the Board of Management and its
powers and functions. Section 20 stipulates the constitution of the
Academic Council.
15.From the aforementioned provisions, it is indisputable that the
2010 Act purports to establish an independent University in the
State of Himachal Pradesh, having full autonomy as that of any
other fullfledged University including the authority to start Multi
Faculty Education Courses within its campus and also constituent
colleges off campus. The Appellant No. 2 – University has been
bestowed with the power to confer Degrees and Diplomas in terms
of Section 35 of the Act. The same reads thus.:
“35. The convocation of the University shall be held in every
academic year in the manner as may be specified by the
statutes for conferring degrees, diplomas or for any other
purpose.”
The provisions regarding accreditation of the University can be
discerned from Section 36 of the Act. Section 37 postulates that
the Appellant No.2 University will be bound to comply with all the
38
rules, regulations and norms etc. of the regulating bodies and
provide all such facilities and assistance to such bodies as are
required by them to discharge their duties and to carry out their
functions. The powers of the State Government to inspect the
University can be traced to Section 40 of the Act. The special power
of the Government in certain circumstances can be found in Section
42 of the Act. Sections 40 and 42 of the Act read as follows:
“40. (1) For the purpose of ascertaining the standards of
teaching, examination and research or any other matter
relating to the University, the Government or the Regulatory
Commission may, cause an assessment to be made in such
manner as may be prescribed, by such person or persons as it
may deem fit.
(2) The Government or the Regulatory Commission, as the case
may be, shall communicate to the University its
recommendations in regard to the result of such assessment
for corrective action and the University shall take such
corrective measures as are necessary so as to ensure the
compliance of the recommendations.
(3) If the University fails to comply with the recommendations
made under subsection (2) within a reasonable time, the
Government or the Regulatory Commission, as the case may
be, may give such directions as it may deem fit which shall be
binding on the University.
…… ….. ……..
42. (1) If it appears to the Government that the University has
contravened any of the provisions of this Act or the rules,
statutes or ordinances made thereunder or has contravened
any of the directions issued by it under this Act or has ceased
to carry out any of the undertakings given or a situation of
financial mismanagement or maladministration has arisen in
the University, it shall issue notice requiring the University to
39
show cause within forty five days as to why an order of its
liquidation should not be made.
(2) If the Government, on receipt of reply of the University on
the notice issued under subsection (1), is satisfied that there is
a prima facie case of contravening all or any of the provisions
of this Act or the rules, statues or ordinances made thereunder
or of contravening directions issued by it under this Act or of
ceasing to carry out the undertaking given or of financial mis
management or maladministration, it shall make an order of
such enquiry as it may consider necessary.
(3) The Government shall, for the purpose of any enquiry under
subsection (2), appoint an inquiry officer or officers to inquire
into any of the allegations and to make report thereon.
(4) The inquiry officer or officers appointed under subsection(3)
shall have the same powers as are vested in a civil court under
the Code of Civil Procedure, 1908 while trying a suit in respect
of the following matters, namely:
(a) summoning and enforcing he attendance of any person and
examining him on oath;
(b) requiring the discovery and production of any such
document or any other material as may be predicable in
evidence
(c) requisitioning any public record from any court or office; and
(d) any other matter which may be prescribed.
(5) The inquiry officer or officers inquiring under this Act, shall
be deemed to be a civil court for the purposes of section 195
and Chapter 26 of the Code of Criminal Procedure, 1973.
(6) On receipt of the enquiry report from the officer or officers
appointed under subsection (3), if the Government is satisfied
that the University has contravened all or any of the provisions
of this Act or the rules, statutes, or ordinances made
thereunder or has violated any of the directions issued by it
under this Act or has ceased to carry out the undertakings
given by it or a situation of financial mismanagement and mal
administration has arisen in the University which threatens
the academic standard of the University, it shall issue orders
40
for the liquidation of the University and appoint an
administrator.
(7) The administrator appointed under subsection (6) shall
have all the powers and be subject to all the duties of the
Governing Body and the Board of Management under this Act
and shall administer the affairs of the University until the last
batch of the students of the regular courses have completed
their courses and they have been awarded degrees, diplomas
or awards, as the case may be.
(8) After having awarded the degrees, diplomas or awards, as
the case may be, to the last batches of the students of the
regular courses, the administrator shall make a report to this
effect to the Government.
(9) On receipt of the report under subsection (8), the
Government shall, by notification in the Official Gazette, issue
an order dissolving the University and from the date of
publication of such notification, the University shall stand
dissolved and all the assets of the University including assets
of the sponsoring body pertaining to the University shall vest in
the Government free from all encumbrances from the date of
dissolution.”
Section 44 of the Act is a provision for removing any difficulty. The
same reads as follows:
“44.(1) If any difficulty arises in giving effect to the provisions
of this Act, the Government may, by order published in the
Official Gazette, make provisions, not inconsistent with the
provisions of this Act, as appear to it to be necessary or
expedient for removing the difficulty:
Provided that no such order shall be made under this
section after the expiry of a period of two years from the
commencement of this Act.
41
(2) Every order made under this section shall, as soon as may
be after it is made, be laid before the State Legislative
Assembly.”
16.From the legislative scheme of 2010 Act, it is axiomatic that an
independent, autonomous University has been established under
this Act. The Appellant No. 2 – University, therefore, has all the
trappings of a fullfledged University, to not only start imparting
education in prescribed courses but also to set up its constituent
colleges to effectuate the purpose for which the University has been
established. Indubitably, a constituent college of the University
would be an integral part of the University. In one sense, an alter
ego of the University. A student pursuing education in such a
college will be required to appear in the examination conducted by
the Appellant No. 2 – University and, at the end of the academic
year, it is the Appellant No. 2 University which can confer degrees
or diplomas upon such successful students.
17.Indeed, affiliation from University may be a precondition for
starting any college or new courses. The constituent college of the
Appellant No. 2 – University would therefore, at best, require
affiliation from the Appellant No. 2. This position has been accepted
42
even by the Medical Council of India and the Union of India. It is,
however, the State Government which has been insisting that the
Appellant No. 1 College must take affiliation from the Himachal
Pradesh University established under the Himachal Pradesh
University Act, 1970. To buttress that stand, reliance is placed on
Section 7 of the Act of 1970. The same reads thus:
“7. Jurisdiction of the University.
(1) Save as otherwise provided by or under this Act, the powers
conferred on the University shall be exercisable in the area
constituting Himachal Pradesh.
(2)Notwithstanding anything contained in any other law for the
time being in force, no educational institution situated within
the territorial limits of the University shall be admitted to any
privilege of any other University, incorporated by law in India,
and any such privilege granted by any such other University to
any such educational institution prior to the commencement of
this Act, shall unless otherwise directed by the State
Government be deemed to be withdrawn on the
commencement of this Act, and any such institution shall be
deemed to be admitted to the privileges of the Himachal
Pradesh University.
(3) Where any institution or body established outside Himachal
Pradesh seeks recognition from the University, then the powers
and jurisdiction of the University shall extend to such
institution or body subject to the laws in force in the State
within which, and the rules and regulations of the University
within whose jurisdiction, the said institution or body is
situated.”
It is unfathomable as to how sub section (2) of this provision will
take within its sweep another independent University established
43
under a special State Legislation or a constituent college of such
University. That general provision may apply to all other
educational institutions situated within the State, but certainly not
to an independent University established under a special State
Legislation such as the 2010 Act or to the constituent college of
such an independent University. Any other interpretation will entail
in rewriting the provisions of the 2010 Act, if not doing violence
thereto.
18.Since the Appellant No. 2 did not accede to the demand of the
State Government, provisions of the 2006 Act, came to be amended
so as to widen the scope of that Act, requiring all the Private
Medical Educational Institutions set up in the State to take
affiliation from the Himachal Pradesh University. Notably, no
corresponding amendment has been made in the 2010 Act under
which the Appellant No.2 – University has been established as an
independent autonomous University. Nor has any amendment
been made in the Himachal Pradesh University Act, 1970,
mandating affiliation of the constituent college of another University
established under a special State Legislation. We may not be
44
understood to have expressed any opinion either way, that such a
course is permissible.
19.As noticed from the legislative scheme of the 2010 Act, the
Appellant No. 2 has been established as an independent,
autonomous University like any other fullfledged University. No
doubt, some of the functions of the University, be it the Appellant
No. 2 – University or the Himachal Pradesh University, have been
controlled and regulated by the 2006 Act. The limited issue raised
by the Appellants, however, is with regard to the mandate of the
amended Section 3(6a), requiring all the Private Medical Institutions
set up within the State to take affiliation from Himachal Pradesh
University. To answer this argument, we must first analyse the
scheme and purport of the 2006 Act. It is an Act to provide for
regulation of admission and fixation of fee in Private Medical
Educational Institutions in the State of Himachal Pradesh and for
matters connected therewith or incidental thereto. It is not an Act
for establishment of a University or, for that matter, dealing with
the subject of starting a new college or new courses in the affiliated
college. This Act, no doubt uniformly applies to all the institutions
45
affiliated to the Universities within the State of Himachal Pradesh,
be it Himachal Pradesh University or the Appellant No. 2 –
University. However, the object of this Act is limited only to
regulate admissions as per the extant and applicable
pronouncements of this Court; and to determine the fee structure
in colleges imparting medical courses within the State.
20.It is not the case of the Appellants that they are not governed
by the other provisions of the 2006 Act, but the limited grievance is
that the amendment made to Section 3 of this Act has the effect of
making an inroad into the autonomy of the Appellant No. 2 –
University, in respect of matter of grant of affiliation to its
constituent college. For considering this argument, we must advert
to Section 3, as it originally stood. The same reads thus :
“3.Regulation of admission, fixation of fee and making
of reservation. (1) The State Government may regulate
admission, fix fee and make reservation for different categories
in admissions to Private Medical Educational Institutions.
(2) The State Government shall ensure that the admission
under all the categories in an institution is done in a fair and
transparent manner;
(3) The State Government, may constitute an Admission and
Fee Committee, (hereinafter referred to as the ‘Committee’)
consisting of such members as may be specified by the State
Government, by notification, to recommend the mode of
46
admission, making of reservation, allocation of seats and
fixation of fees etc. to the State Government.
(4) The State Government, shall oversee the working of
Admission and Fee Committee.
(5) The terms and conditions of the Committee constituted
under subsection (3) and its members shall be specified, by
the State Government, by notification from time to time.
(6) If the State Government is satisfied that the institution
affiliated to the Himachal Pradesh University, has contravened
any provision of this Act, it may recommend to the Himachal
Pradesh University for withdrawal of recognition or affiliation
of such institution.”
Subsection 6 of this provision came to be amended by the State
Legislation, so as to fortify the stand of the State Government that
the medical college started as a constituent of the Appellant No. 2 –
University would also require affiliation from the Himachal Pradesh
University. As a result, subsection 6 came to be amended in the
following terms:
“In Section 3 of the principal Act, for subsection (6), the following
subsections shall be substituted, namely:
“(6) If, the State Government is satisfied that the institution affiliated
to the Himachal Pradesh University or any other University has
contravened any of the provisions of this Act, it may recommend to
that University for withdrawal of recognition or affiliation of such
institution.
(6a) In order to ensure common standards for maintaining the
excellence of Medical Education in the State, the Himachal Pradesh
University shall have the exclusive power to affiliate Private Medical
Educational Institutions set up in the State; and
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(6b) Notwithstanding anything contained in this Act, the Private
Medical Educational Institutions shall be bound to comply with all
the rules, directions and notifications issued by the State
Government, from time to time, and provide all such facilities and
assistance as are required to implement such rules, directions and
notifications”.
Along with subsection 6, amendment was also effected to Section
2(j) of the 2006 Act by including a Private Medical Institution
established by or affiliated to a private University to be a Private
Medical Educational Institution. Once it is noted that the Appellant
No. 2 – University is an independent and a fullfledged University
established under an independent special State Legislation, it must
be free to discharge its functions as delineated in the 2010 Act.
That, inter alia, includes granting affiliation to its constituent
college which is one of the facets of autonomy of the University. It is
incomprehensible that a college which is a constituent of the
Appellant No. 2 – University can be compelled to take affiliation
from some other University by taking recourse to the provisions of
the 2006 Act which primarily deals only with the subject of
admissions and fees in private medical colleges within the State.
The grant of affiliation to the college is the prerogative of the
examining body. The Appellant No. 2 – University, being the
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examining body, has been bestowed with the authority to grant
degrees and diplomas. The requirement of affiliation from another
University even in respect of its constituent college, would be
striking at the autonomy of the Appellant No. 2 – University and in
any case beyond the purview of the subject of admissions and
fixation of fee for which limited purpose the 2006 Act has been
enacted.
21.In the present case, it has been asserted that the Appellant
No. 1 – College is a constituent of the Appellant No. 2 – University.
In such a situation, it is unfathomable that the requirement of
taking affiliation from another University (Himachal Pradesh
University) established under a separate State Legislation, can and
ought to be insisted upon. If insisted, it would, inevitably, entail in
making an inroad into the autonomy of the Appellant No. 2 –
University. True it is that Section 7 of the 2010 Act does not
empower the Appellant No. 2 – University to affiliate or otherwise
admit to its privileges any other institution. But that will have no
application to the case on hand. For, the Appellant No. 1 College is
none other than a constituent college of Appellant No. 2 – University
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itself. The Medical Council of India as well as the Union
Government have, therefore, justly stated that it was not necessary
for the Appellant No.1 College to take affiliation from the Himachal
Pradesh University.
22.A priori, we have no hesitation in taking the view that the
amended provisions, in particular Section 3(6a), would impinge
upon the autonomy of an independent University established under
a separate State Legislation. Further, the field of affiliation is
governed by the State legislation under which the respective
Universities have been established. The power of granting affiliation
to colleges under the control of the concerned University, must vest
with the respective University to which the college will be affiliated.
That power of granting affiliation, by the University concerned,
therefore, cannot be whittled down by the 2006 Act or amendments
made thereto. Understood thus, the amended provisions of Section
3 (6a) of the 2006 Act, cannot be sustained as the same are
unreasonable, irrational and in conflict with the special State
Legislation under which the Appellant No.2 – University has been
established, namely the 2010 Act.
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23.We shall now examine the possibility of reading down the
impugned provision in Section 3 (6a) of the Act so as to save it from
being unconstitutional. That may be possible by giving a restricted
meaning to the expression “Private Medical Educational
Institutions” set up in the State, but for the amended Section 2(j)
which defines the expression “Private Medical Educational
Institutions” as under:
“(j) “Private Medical Educational Institution” means an institution not
promoted or run by the Central Government, State Government or
Union Territory Administration or any agency or instrumentality of
the Central or State Government and includes a Private Medical
Educational Institution established by or affiliated to a private
University;”
This expression includes a Private Medical Educational Institution
established by or affiliated to a private University. We find force in
the argument of the Appellants that the definition of Private Medical
Educational Institution, as amended, can be extended to the
Appellants in relation to other matters governed by the 2006 Act,
except the mandate of requiring the Appellant No.1 College (a
constituent college of the Appellant No.2 – University) to take
affiliation from the Himachal Pradesh University. That requirement
springs from Section 3 (6a).
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24.Indisputably, there is no other private medical University in
the State except the Appellant No.2 University. Therefore, we
explored the possibility of omitting the words “Himachal Pradesh”
from the amended Section 3 (6a) to save the whole of that provision
from being invalid, as was contended. However, we find that if the
words “Himachal Pradesh” alone were to be struck down, the
remaining Section 3 (6a) may create some confusion. It would then
mean that Private Medical Institutions in the State must take
affiliation from the “concerned” University. To wit, Himachal
Pradesh University or the Appellant No. 2 – University, as the case
may be. In other words, the concerned University can exercise
power to affiliate a private medical institution set up in the State.
However, the Appellant No. 2 is not authorised to affiliate a private
medical college (not its constituent) by virtue of Section 7 of the
2010 Act, which prohibits the Appellant No.2 – University from
affiliating or otherwise extending to its privileges any other
institution. Therefore, the appropriate course to avoid any
confusion is to strike down Section 3(6a) of the 2006 Act, as
amended.
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25.It was vehemently argued by the counsel for the State that the
Appellant No. 2 – University was granted essentiality certificate on
the condition that it would abide by the provisions of the 2006 Act.
The fact that such condition was imposed in the communication
dated 29
th
August 2012, does not mean that the Appellant No.2
University would be bound and obliged to comply with even an
onerous stipulation, which is unconstitutional and hit by Article 14
and 19(1)(g) of the Constitution and impinging upon its autonomy
guaranteed under the 2010 Act. The High Court has adverted to
the decisions which have culled out the distinction between
“recognition” and “affiliation”. We need not dilate on that matter
except to observe that it is well settled that affiliation is a matter
within the prerogative of the Examining Body or the prescribed
Authority, to be considered fairly and after due application of mind.
26.As noted earlier, since the Appellant No.1 – College is a
constituent of the Appellant No. 2 – University, the question of
compelling it to take affiliation from another University (Himachal
Pradesh University) cannot be countenanced.
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27.Accordingly, this appeal should succeed. The impugned
judgment of the High Court of Himachal Pradesh dated 20.12.2016
in CWP No.4773 of 2015 is set aside. We also strike down Section
3(6a) of the Himachal Pradesh Private Medical Educational
Institutions (Regulation of Admission and Fixation of Fee) Act,
2006, being irrational, unreasonable, ultra vires and
unconstitutional. Further, the Regulatory Authorities shall
forthwith proceed in the matter without insisting for an affiliation of
the Appellant No.1 – College (a constituent college of Appellant No.2
– University) from the Himachal Pradesh University.
28.The Appeal is allowed in the above terms with no order as to
costs.
...……………………………..J.
(Dipak Misra)
..…..…………………………..J.
(A.M.Khanwilkar)
.…..…………………………..J.
(Mohan M. Shantanagoudar)
New Delhi,
Dated: April 28, 2017
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