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 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 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 Kumarhatti-Solan for setting
up the proposed University. Having complied with the pre-conditions 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 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 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 (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 2013-2014, 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 communication dated
26.08.2014, clarified its stand in the following words:
“MEDICAL COUNCIL OF INDIA
No. MCI – 34(41)(E-46)/2013-Med. Dated: 26.08.2014
The Special Secretary (Health) to the
Govt. of Himachal Pradesh.,
Department of Health Family Welfare,
Shimla – 171002.
Ref.: No.MCI-34(41)(E-46)/2013-Med./57586, Dated 14.02.2014.
No.MCI-34(41)(E-46)/2013-Med./59892-59893,
Dated 26.02.2014
Sub.: Regarding Maharishi Markandeshwar Medical College
Hospital Kumarhatti, Distt. Solan, H.P.
Sir,
Please refer to your letter No.HFW-B(F)4-12/2013 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 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 set-up
colleges, institutions, off-campus 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 2013-14
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, Solan, Himachal Pradesh with 150 MBBS admissions from
the academic year 2013-14.
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 15th September, 2014 to the Chief
Secretary of the Government of Himachal Pradesh, reiterating the position
stated by the Medical Council of India in its communication dated
26.08.2014. This communication reads as under:
“Government of India
Ministry of Health Family Welfare
Nirman Bhavan, New Delhi-110011D.O. No.U-12012/11/2013-ME-P.H.
Dated the 15th September, 2014
Dear Sir,
This is with reference to Govt. of Himachal Pradesh letter No.HFW-
B(F)11-4/2013 dated 23rd June, 2014 regarding affiliation of Maharashi
Markandeshwar Medical College, Kumarhatti, Distt. Solan, H.P.
The Medical Council of India vide their communication dated 26th
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 set-up 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)
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 left-out 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 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 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
MCI-No. 34(41)(E-46)/2013-Med./131542 Dated: 02.9.15
The Secretary
Govt. of India,
Ministry of Health Family Welfare,
Nirman Bhawan,
New Delhi-110011.
Sub.: Maharishi Markandeshwar Medical College Hospital
Kumarhatti, Distt. Solan – reg.
Sir,
This is with reference to your letter No.U.12012/11/2013-ME(P-II)
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
Maharishi Markandeshwar Medical College and Hospital, Kumarhatti, District
Solan, Himachal Pradesh. In this regard, the Council has the following
comments to offer:
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.
Further Section 5 (v-a) 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”.
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.
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, 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.
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.
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)
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: Minister-in-Charge
Dated: Nil”
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
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.
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 (ER) Act.
That the Respondents may be directed to produce the records of the case.
Any other order deemed just and proper may also be passed in the facts and
circumstances stated herein below in favour of the petitioners.”
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 pre-condition 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;
conduct of examinations;
the manner in which the prescribed courses should
be completed; and
to see that the conditions imposed by the MCI are
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 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. Sub-section (2) of section 7 starts with the
non-obstante 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 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 (H-PUMA) 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 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 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 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 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 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 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 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 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.
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 15th September,
2010 and was brought into force w.e.f. 16th 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 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,-
to provide instructions, teaching and training in higher education with a
view to create higher levels of intellectual abilities;
to establish facilities for education and training;
to carry out teaching, research and offer continuing education programmes;
to create centres of excellence for research and development relevant to
the needs of the State and for sharing knowledge and its application;
to establish campus in the State;
to establish examination centres;
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 standards of degrees,
diplomas, certificates and other academic distinctions are not lower than
those laid down by regulating bodies; and
to set up off campus centres, subject to applicable rules or regulations.
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
to establish broad-based and viable under graduate, post graduate and
research programmes in several disciplines with the firm interdisciplinary
orientation and linkages.
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 Vice-Chancellor 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
Kumarhatti-Solan, 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:-
“5. (1) The University shall have the following powers and functions,
namely:-
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;
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;
to organize and to undertake extra-mural teaching and extension services;
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;
to create such teaching, administrative and other posts as the University
may deem necessary, from time to time, and make appointments thereto;
(v-a) 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;
to institute and award Fellowships, Studentships and Prizes;
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;
to regulate and enforce discipline among students and employees of the
University and to take such disciplinary measures as may be deemed
necessary;
to make arrangements for promoting health and general welfare of the
students and the employees of the University and of the Colleges;
to determine the criterion for admission in the University or its Colleges;
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;
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;
to co-operate 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;
to co-operate 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;
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;
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;
to demand and receive payment of such fees and other charges as may be
specified from time to time;
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;
to make provisions for research and advisory services and for that purpose
to enter into such arrangements with other institutions or bodies as the
University may deem necessary;
to provide for the printing, reproduction and publication of research and
other work, including text books, which may be issued by the University;
to accord recognition to institutions and examinations for admission in the
University;
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;
to frame statutes, ordinances and regulations for carrying out the objects
of the University in accordance with the provisions of the Act;
to provide for dual degrees, diplomas or certificates vis-à-vis other
Universities on reciprocal basis within and outside the country;
to make provisions for integrated courses in different disciplines in the
educational programmes of the University;
to set-up colleges, institutions, off-campus 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 self-
financed and shall not be entitled to receive any grant or other financial
assistance from the Government. The University is 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 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 full-fledged
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 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
sub-section (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 mis-management or mal-administration has arisen in the
University, it shall issue notice requiring the University to 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 sub-section (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 mal-administration, it shall make an order of
such enquiry as it may consider necessary.
(3) The Government shall, for the purpose of any enquiry under sub-section
(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 sub-section(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 sub-section (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 mis-management and mal-
administration has arisen in the University which threatens the academic
standard of the University, it shall issue orders for the liquidation of
the University and appoint an administrator.
(7) The administrator appointed under sub-section (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 sub-section (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.
(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
full-fledged 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 pre-condition 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 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.
Save as otherwise provided by or under this Act, the powers conferred on
the University shall be exercisable in the area constituting Himachal
Pradesh.
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.
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 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 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 full-fledged 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 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 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 sub-section
(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.”
Sub-section 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, sub-section 6 came to be amended in the following
terms:-
“In Section 3 of the principal Act, for sub-section (6), the following sub-
sections 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
(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 sub-section 3, 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 full-fledged 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 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
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.
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).
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.
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 29th 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.
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
———————–
[1]
[2] (2016) 7 SCC 353
[3]
[4] (2010) 12 SCC 609
[5]
[6] (2011) 4 SCC 527
[7]
[8] (1981) 4 SCC 296
[9]
[10] In writ petition No.7688 of 2013 decided on 23.07.2014
