Supreme Court of India
MAHARISHI MARKANDESHWAR MEDICAL COLLEGE AND HOSPITAL & OTHERSversusSTATE OF HIMACHAL PRADESH & OTHERS
- Citation
- 2017 INSC 417
- Decided
- 28 April 2017
- Disposal
- Appeal(s) allowed
- Bench
- DIPAK MISRA
Holding
Section 3(6a) of the Himachal Pradesh Private Medical Educational Institutions (Regulation of Admission and Fixation of Fee) Act, 2006 is unconstitutional and must be struck down as it unlawfully impinges on the autonomy of Maharishi Markandeshwar University.
Summary
Maharishi Markandeshwar Medical College, a constituent of Maharishi Markandeshwar University (created under the 2010 Act), was directed by the Himachal Pradesh Government to obtain affiliation from Himachal Pradesh University under the amended Section 3(6a) of the 2006 Private Medical Educational Institutions Act. The college contended that this requirement infringed the university’s statutory autonomy and violated constitutional guarantees of equality and freedom to practice any profession. The Supreme Court examined the legislative intent of the 2010 Act, the limited purpose of the 2006 Act (admissions and fee fixation), and the principle that the power to grant affiliation belongs to the university to which a college is attached. It held that compelling a constituent college to affiliate to another university was unreasonable, ultra‑vires, and violative of Articles 14 and 19(1)(g) of the Constitution. Accordingly, Section 3(6a) of the 2006 Act was struck down and the High Court’s judgment set aside. The appeal was allowed with no order as to costs.
Issues considered
- Whether Section 3(6a) (and related provisions) of the Himachal Pradesh Private Medical Educational Institutions Act, 2006, mandating affiliation to Himachal Pradesh University, is constitutionally valid when applied to a constituent college of a private university established under a special statute.
- Whether the amendment to the 2006 Act infringes the autonomy granted to Maharishi Markandeshwar University under the Maharishi Markandeshwar University (Establishment and Regulation) Act, 2010.
- Whether the power to grant affiliation to a college rests with the university to which the college belongs, not with the State or another university.
- Whether the provision violates Articles 14 and 19(1)(g) of the Constitution as unreasonable and ultra vires.
Legislation cited
- Himachal Pradesh Private Medical Educational Institutions (Regulation of Admission and Fixation of Fee) Act, 2006s. 3(6), s. 3(6a), s. 3(6b)
- Himachal Pradesh University Act, 1970s. 7
- Indian Medical Council Act, 1956s. 120
- Maharishi Markandeshwar University (Establishment and Regulation) Act, 2010s. 2(b), s. 35, s. 36, s. 40, s. 42, s. 5, s. 7
Subjects
affiliationuniversity autonomyprivate medical collegeconstitutional validityultra viresHimachal Pradesh2006 Act2010 ActArticle 14Article 19(1)(g)
Judgment
[2017] 3 S.C.R. 417
MAHARISHI MARKANDESHWAR MEDICAL COLLEGE AND A
HOSPITAL & OTHERS
v.
STATE OF HIMACHAL PRADESH & OTHERS
(Civil Appeal No. 5198 of2017) B
APRIL 28, 2017
(DIPAK MISRA, A. M. KHANWILKAR AND
MOHAN M. SHANTANAGOUDAR, JJ.)
Himachal Pradesh Private Medical Educational Institutions
(Regulation of Admission and Fixation of Fee) Act, 2006 (as C
amended) - ss. 3(6), 3(6a) and 3(6b) - Validity of - Writ petition
seeking direction to strike down ss. 3(6), 3(6a) and 3(6b) as null
and void - Appellant-private medical colleges case that amendment
to 2006 Act whereby it became mandatory for all the private medical
institutions set up in the State to take affiliation from the Himachal D
Pradesh University affected the autonomy of appellant no. 2-
Maharishi Markandeshwar University, an independent and a ful/-
fledged University established under an independent special State
Legislation - Dismissal of writ petition by the High Court - On
appeal, held: Appellant no. I-college being a constituent of appellant
no. 2-University, it cannot be compelled to take affiliation from E
another University-Himachal Pradesh University - Power of
granting afjlliation to colleges under the control of the concerned
University, must vest with the respective University to which the
college will be affiliated - It cannot be whittled down by the 2006
Act or amendments made thereto - Requirement of affiliation from F
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 Act of 2006 has been enac;ted - Section
3(6a)(as amended), would impinge upon the autonomy of an
independent University established under a separate State G
Legislation, thus, cannot be sustained as the same are unreasonable, ·
irrational and in conflict with the special State Legislation-2010
Act, under which appellant no.2-University, is established -
Judgment of High Court is set aside - Maharishi Markandeshwar
University (Establishment and Regulation) Act, 2010.
H
417
418 SUPREME COURT REPORTS [2017] 3 S.C.R.
A Allowing the appeal, the Court
HELD: 1.1 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. The impugned judgment of
B the High Court is set aside. Section 3(6a) of the Himachal Pradesh
Private Medical Educational Institutions (Regulation of
Admission and Fixation of Fee) Act, 2006, is struck down being
irrational, unreasonable, ultra vires and unconstitutional. The
Regulatory Authorities would forthwith proceed in the matter
without insisting for an affiliation of the appellant no.1-College (a
C constituent college of Appellant No.2-University) from the
Himachal Pradesh University. [Paras 26, 27][456-F-H; 457-A)
1.2 The appellant no. 2-Maharishi Markandeshwar
University has been established under the Maharishi
Markandeshwar University (Establishment and Regulation) Act,
D 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. The 2010
Act purports to establish an independent University in the State
E 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. 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, thus,
F 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
G University. [Paras 14-16)(441-A-B; 447-A-B; 450-C-D)
1.3 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 was accepted
H even by the Medical Council of India and the Union of India,
MAHARISHIMARK.ANDESHWARMEDICALCOLLEGEAND HOSPITAL 419
v. STATE OF HIMACHALPRADESH
however, not by the State Government. [Para l 7][450-Fl A
1.4 It is unfathomable as to how sub section (2) of section 7
would 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 B
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 would entail in rewriting the provisions of the 2010
Act, if not doing violence thereto. [Para 17)(451-E-F)
c
1.5 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. D
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. [Para 18)(451-F-G]
1.6 It is noticed from the legislative scheme of the 2010 E
Act, that 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. F
2006 Act provides 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, G
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 H
420 SUPREME COURT REPORTS [2017] 3 S.C.R.
A to determine the fee structure in colleges imparting medical
courses within the State. [Para 19) (452-B-E)
1. 7 Section 3(6) 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
B no. 2-University would also require affiliation from the Himachal
Pradesh University. Along with sub-section (6), amendment was
. also effected to Section 20) 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.
Appellant no. 2-University being an independent and a full-fledged
C 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, one of the facets of autonomy of the
University. It is incomprehensible that a college which is a
o 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. Appellant no. 2, being the
E 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 and in any case
beyond the purview of the subject of admissions and fixation of
F fee for which 2006 Act has been enacted. [Para 20)(453-D-E; 454-
B-Ef
1.8 In the instant 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
G 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
H
MAHARISHI MARKANDESHWAR MEDICAL COLLEGE AND HOSPITAL 421
v. STATE OF HIMACHALPRADESH
or otherwise admit to its privileges any other institution. But A
that would have no application to the instant case. 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.
[Para 21)(454-F-H; 455-AI
B
1.9, A priori, there is 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 C
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. Thus, the amended D
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. [Para
22H455-B-C]
E
1.10 The expression 'Private Medical Educational
Institutions' in Section 2(j) includes a Private Medical Educational
Institution established by or affiliated to a private University. 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 F
appellant no.I-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). [Para
23)(455-D, F-G)
1.11 There is no other private medical University in the G
State except the appellant no.2-University. Therefore, the
possibility of ~mitting the words "Himachal Pradesh" from the
amended Section 3 (6a) to save the whole of that provision from
being invalid, was explored. However, it is found that if the words
"Himachal Pradesh" alone were to be struck down, the remaining H
422 SUPREME COURT REPORTS [2017] 3 S.C.R.
A 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
B 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
C strike down Section 3(6a) of the 2006 Act, as amended. (Para
241(455-H; 456-A-C]
1.12 It was 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
D Act. The fact that such condition was imposed in the
communication dated 291h 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(l)(g) of the Constitution and impinging
upon its autonomy guaranteed under the 2010 Act. Affiliation is a
E matter within the prerogative of the Examining Body or the
prescribed Authority, to be considered fairly and after due
application of mind.(Para 25) (456-D-F)
Modern Dental College and Research Centre and Others
v. State of Madhya Pradesh and Others (2016) 7 SCC
F 353; Rajasthan Pradesh Vaidya Samiti, Sardarshahar
and another v. Union of India and others (2010) 7 SCR ·
252 : (2010) 12 SCC 609; Bhartia Education Society
and Another v. State of Himachal Pradesh and Others
(2011) 2 SCR 461 : (2011) 4 SCC 527; State of Madhya
Pradesh and Another v. Kumari Nivedita Jain and
G
Others (1982) 1 SCR 759 : (1981) 4 SCC 296; H-
Private Universities Management Association (H-
PUMA) v. State of Himachal Pradesh and others writ
petition No. 7688 of2013 decided on 23 .07.2014- referred
to.
H
MAHARISHI MARKANDESHWAR MEDICAL COLLEGEANDHOSPITAL 423
v. STATE OF HIMACHAL PRADESH
Case Law Reference A
(2016) 7 sec 353 referred to Para 10
[2010] 7 SCR 252 referred to Para 10
[2011] 2 SCR 461 referred to Para 10
[1982] 1 SCR 759 referred to Para 10
B
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 5198
of2017.
From the Judgment and Order dated 20.12.2016 of the High Court
ofHimachal Pradesh at Shimla in CWP No. 4773 of2015.
V. Giri, Sr.Adv,AseemMehrotra, Vijay Aw .na,Abhijat P. Medh, C
Advs. for the Appellants.
Ashok Kumar Panda, Sr. Adv, Shadman Ali, Ms. Kiran Bhardwaj,
G. S. Makker, Gaurav Sharma, Amandeep Kaur, Prateek Bhatia, Dhawal
Mohan, Ms. Vara Gaur, Advs. for the Respondents.
The Judgment of the Court was delivered by
D
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) E
Act, 2006 (for short "2006 Act") as amended vid~ ~mendment Act
No.24 of2015. 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 F
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 Trnst as a
constituent of the Appellant No.2 - University. The Appellant No.2 - G
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 H
424 SUPREME COURT REPORTS [2017) '3 S.C.R.
A letter of intentto the Appellant No.3- University Trust dated 28.08.2008,
for setting up of a private University within the State ofHimachal 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
B 28.08.2008, permitting the Appellant No.3 - University Trust to purchase
25 acres ofland 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 propo~ed private University
and made necessary investments in that regard. The Appellant No.3 -
C 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 Univefl!ity, the
State Legislation enacted the 2010 Act to provide for establishment,
incorporation and regulation of Maharishi Markandeshwar University,
D 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.
E
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
F 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
G 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 1OA of the Indian Medical Council Act, 1956,
for grant of permission to establish a new medical college at Kumarhatti,
H
MAHARISHI MARKANDESHWARMEDICALCOLLEGEAND HOSPITAL 425
v. STATE OF HIMACHALPRADESH [A. M. KHANWILKAR,J.]
Solan, Himachal Pradesh "under" the Appellant No.2 - University as its A
constituent. The Appellant No.3 - University Trust also wrote to the
Medical Council oflndia 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 B
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 C
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 D
in the Appellant No.1 - College. The Special Secretary (Health)
Government of Himachal Pradesh wrote to the Medical Council oflndia
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 E
college and required affiliation from the Himachal Pradesh University.
The Medical Council oflndia vi de 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. I - 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 lOA of the Indian F
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. l -
College was affiliated to the Appellant No.2- University. On receipt of G
this communication, the Special Secretary (Health) Government of
Himachal Pradesh wrote to the Medical Council of India to reconsider
its decision. The Medical Council oflndia, by a detailed communication
dated 26.08.2014, clarified its stand in the following words:
H
426 SUPREME COURT REPORTS (2017] 3 S.C.R.
A "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,
B Shim/a - 171002.
Ref: No.MCl-34(41)(E-46)/2013-Med.157586, Dated 14.02.2014.
No.MCl-34(41)(E-46)120l3-Med.15989 2-59893,
Dated 26.02.2014
c Sub.:Regarding Maharishi Markandeshwar Medical College &
Hospital Kumarhatti, Dist!. Solan, H.P.
Sir,
Please refer to your letter No.HFW-B(F)4-l 2/2013 dated
D 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
E 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
F 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
G 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.2212010 enacted Maharishi Markandeshwar University
(Establishment and Regulation) Act, 2010 (hereinafter referred to
H
MAHARISHIMARKANDESHWARMEDICALCOLLEGEAND HOSPITAL 427
v. STATE OF HIMACHALPRADESH [A. M. KHANWILKAR, J.]
as Maharishi Markandeshwar University Act) on 20.09.2010 to A
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 B
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. C
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 D
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 uls 1OA of the Act from the academic year 2013-
14 with certain conditions. Accordingly the letter of intent was E
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 F
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 G
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 H
428 SUPREME COURT REPORTS (2017] 3 S.C.R.
A 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.
B 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
C decision.
Yours faithfully,
Sd/-
(B.D. Jain)
Admn. Officer"
D (emphasis supplied)
Even the Joint Secretary, Ministry of Health & Family Welfare,
Government of India sent a separate response on 15'h September, 2014
to the Chief Secretary of the Government of Himachal Pradesh,
reiterating the position stated by the Medical Council of India in its
E communication dated 26.08.2014. This communication reads as under:
"Government of India
Ministry of Health & Family Welfare
Nirman Bhavan, New Delhi-110011
D.O. No.U-1201211112013-ME-P.H.
F Dated the 15'1' September, 2014
Dear Sir,
This is with reference to Govt. of Himachal Pradesh letter
No.HFW-B(F)ll-412013 dated 23"d June, 2014 regarding affiliation
G of Maharashi Markandeshwar Medical College, Kumarhatti, Dist!.
Solan, H.P.
The Medical Council of India vide their communication dated
26'h August, 2014 (copy enclosed) addressed to Special Secretary
(Health), Govt. of Himachal Pradesh has informed that the
prohibition under Section 7 of Maharishi Markandeshwar
H
MAHARISHI MARKANDESHWAR MEDICAL COLLEGE AND HOSPITAL 429
v. STATE OF HIMACHALPRADESH [A. M. KHANWILKAR,J.)
University (Establishment and Regulation) Act, 2010 will not be A
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 fi1/filling
the norms and regulations of the Central Government Regulatory B
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 Essentia/ity Certificate/NOC in favour of
Maharishi Markandeshwar University certi(ying the feasibility to C
establish a medical college at Kamarhatti. District Solan. Himachal
Pradesh.
With Kind regards,
Yours sincerely, D
Sd/-
(Dr. Vishwas Mehra)"
(emphasis supplied)
5. The Central Government, accordingly, issued a letter of
permission to the Appellant No. I - College for I 50 students annual intake E
capacity in academic year 2014 - 20I5. Out of total 75 State quota
MBBS seats in the Appellant No.I - 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 20 I 5 - 20 I 6, the Central Government once again issued F
a letter of permission to Appellant No.I - College for 150 seats annual
intake.
6. The Appellant No.2 was, however, called upon by the State
Governmentvide letter dated OI .06.2015 to comply with the admission
procedure as provided in the notification issued on 14.08.2013 and the G
amendments thereto dated 31.08.2013 and 19.I2.20I4, while making
admissions to the third batch ofMBBS students in the Appellant No. I -
College. The Registrar of the Appellant No.2 - University then wrote to
the Special Secretary (Health) to Government of Himachal Pradesh
vi de letter dated 04.06.2015, asserting that the 20I 0 Act authorised the H
430 SUPREME COURT REPORTS [2017] 3 S.C.R.
A 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 & Famity
Welfare, Government of India requesting the Central Government and
the Medical Council of India to take corrective measures so that the
B Appellant No. I -medical college could be affiliated to Himachal Pradesh
University at Shimla. ln view of the stand taken by the State Government,
the Fee Committee constituted for fixation offees, in its meeting held on
07 .07.2015 recommended that since the affiliation of Appellant No.I -
medical college was under dispute and reference in that behalf was
C 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
D Government, the Under Secretary of the Ministry of Health & Family
Welfare, Government oflndia vide letter dated 10.07.2015, wrote LO the
Medical Council oflndia to offer its comments on the communication
received from the State Government dated 05.06.2015. The Medical
Council oflndia, in turn, wrote to the Secretary of the Ministry of Health
& Family Welfare, Government oflndia about the correct perception of
E the Medical Council oflndia 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
F The Secretary
Govt. of India,
Ministry of Health & Family Welfare,
Nirman Bhawan,
New De/hi-110011.
Sub.:Maharishi Markandeshwar Medical College & Hospital
G
Kumarhatti, Dist!. Solan - reg.
Sir,
This is with reference to your letter No.U.1201211112013-
ME(P-I/) dated 10.07.2015 by which you have forwarded a
copy of the D.O. letter dated 05.06.2015 received from Shri
H
MAHARISHIMARKANDESHWARMEDICALCOLLEGEAND HOSPITAL 431
v. STATE OF HIMACHALPRADESH [A. M. KHANWILKAR, J.]
Kaul Singh Thakur, Hon 'ble Health, revenue and Law A
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 B
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:
1. The Maharishi Markandeshwar University is establish
under an Act of Himachal Pradesh State namely the Maharishi C
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 D
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 (v-a) of the Maharishi Markandeshwar E
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 eve1y F
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 G
be pledged to the government of Himachal Pradesh.
4. lt 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
H
432 SUPREME COURT REPORTS [2017] 3 S.C.R.
A 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,
B
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
c 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
D of Section 5 (1) (xxvil "to setup colleges". Hence. when the
State Legislature has itself granted the right to Maharishi
Markandeshwar University to have its own colleges t'zen in
such case affiliating its medical college to another Universitv
i.e. H.P. University appears to be contrary to the Act of
Himachal Legislature.
E
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, Shim/a
and the Director Medical Education & Research, Shim/a and
the first correspondence raising any objection from the State
F 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,
G
Sd/-
(S. Savitha)
Asst!. Secretary. "
(emphasis s:.ipplied)
H
MAHARISHI MARKANDESHWARMEDICALCOLLEGEAND HOSPITAL 433
v. STATE OFHIMACHALPRADESH [A. M. KHANWILKAR, J.)
8. Realising the legal obstacles to impel the Appellant No. I - A
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 inse11ed. The statement of
objects and reasons for the said amendment reads thus:
B
"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 c
Centralized Common Entrance Test. However, it has been observed
that due to some loopholes and ambiguities in definitions of clauses
(e) and OJ 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 D
and to redefine clauses (e) and OJ 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 E
the provisions of the Act ibid. This has necessitated amendment in
the Act ibid.
The Bill seeks to achieve the aforesaid objectives.
(KA UL SINGH THAKUR)
Shim la: Minister-in-Charge F
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, G
the Appellants challenged the amendments to 2006 Act inter alia on the
ground that it was the outcome oflegal malice. The Appellants, therefore,
filed a writ petition before the High Court ofHimachal Pradesh at Shimla
for the following reliefs:
H
434 SUPREME COURT REPORTS [2017] 3 S.C.R.
A "PRAYER:
It is therefore most respectfully prayed that this Hon 'ble Court
may, in the interest ofjustice, be pleased
(i) To issue a writ in the nature of mandamus or any other
appropriate writ, direction or order striking down Sections
B 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 arbitra1y,
grossly malafide, in contravention of the law settled by the
c 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.l MM Medical College and Hospital or any other
D 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
E . 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 oflndia to grant "recognition" and the authority of the
F State Government or the University to grant "affiliation" for starting any
medical college withil) 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' to
conclude that the grant of affiliation was a pre-condition for granting
G 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
1
(2016) 1 sec 353
H
MAHARlSHIMARKANDESHWARMEDICALCOLLEGEANDHOSPITAL 435
v. STATE OF HIMACHALPRADESH [A. M. KHANWILKAR, J.]
body could always impose conditions as per its own requirements, such A
as:
"a) eligibility of students for admission;
b) conduct of examinations;
c) the manner in which the prescribed courses should B
be r:ompleted; and
d) to see that the conditions imposed by the MCI are
complied with. "
The High Court held that the affiliating body must exercise its C
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 D
others2 and in Bhartia Education Society and Another Vs. State of
Himachal Pradesh and Others1 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 E
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 Others4 which has delineated the powers conferred on the Medical
F
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: G
"49. Indubitably, the petitioners have not assailed the
constitutionality of the aforesaid provision. Sub-section (2)
2
c201oi 12 sec 609
'c2011i 4 sec s21
'(1981) 4 sec 296 H
436 SUPREME COURT REPORTS [2017] 3 S.C.R.
A 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)
B
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
c 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. Rathe1; it is crucial for
D 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
E H-Private Universities Management Association (H-PUMA) Vs. State
ofHimachal 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. 1t 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
F 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
G 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
5 In writ petition No.7688 of 20!3 decided on 23.07.2014
H
MAHARISHI MARKANDESHWAR MEDICAL COLLEGE AND HOSPITAL 437
v. STATE OF HIMACHALPRADESH [A. M. KHANWILKAR, J.]
State insofar as the question of grant of 'affiliation' is A
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
ajfiliation is bound by the provisions of the Himachal Pradesh B
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 C
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 D
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. I, 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 E
- 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 ofAppellant No.2 - University can be compelled to take affiliation
from Himachal Pradesh University by remodeling the definition of Private F
Medical Educational lnstitutions 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 G
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
H
438 SUPREME COURT REPORTS [20I7] 3 S.C.R.
A 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
B 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
C 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
D established. The 20 I0 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,
E 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. I
F -(}ollege being a constituent of the Appellant No.2- University, affiliation
fr,qm 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. I - 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
G 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 20 I 0 Act. Moreover, the private
medical institution referred to in amended Section 3(6a) must be
H
MAHARISHI MARKANDESHWAR MEDICAL COLLEGE AND HOSPITAL 439
v. STATE OF HIMACHALPRADESH [A. M. KHANWILKAR, J.]
understood to be a private medical college affiliated to the respective A
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 B
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 C
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 D
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 oflndia) have reiterated the stand of the said Authorities, as
articulated in their correspondence reproduced above. That stand supports
the claim of the Appellants. E
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 F
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 G
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 2010Actprohibits the Appellant No.2-
University from affiliating or otherwise extending its privileges to any
other institution. Moreover, Section 7 of the Himachal Pradesh University
H
440 SUPREME COURT REPORTS [20I7] 3 S.C.R.
A Act, I 970 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 20 I 0 Act and the 2006
Act, much less the I 970 Act. The Appellant No. I medical college would
thus be governed by the provisions of 2006 Act, as amended from time
B 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 20 I0 Act. The Appellant No. l - 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.
C 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. Ifthe Appellant No. I - College fails to comply
with any mandatory requirement stipulated therein, it must suffer the
D 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. I - College alone
and does not impinge upon the autonomy of the Appellant No.2 -
University. The fact that Appellant No. I - College is a constituent of the
Appellant No.2 - University, does not extricate it from the definition of
E 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
F 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 offees 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
G 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
H
MAHARISHIMARKANDESHWARMEDICALCOLLEGEANDHOSPITAL 441
v. STATE OF HIMACHAL PRADESH [A. M. KHANWILKAR, J .]
issue relating to the autonomy of the Appellant No. 2 - University A
including its authority to start a constituent medical college, as prescribed
by the 20!0Act. Admittedly, the Appellant No. 2- University has been
established under the 20 I 0 Act. This Act received the assent of the ·
Governor.on 15th September, 2010 and was brought into force w.e.f.
16 ~· June, 2010. The intendment of the 201..0 Act is to provjde for ff
1
establishment, incorporation and regulation of the Appellant.No. 2 - ·
University for higher education, to regulate its functioning and for matters
connected therewith or incident(ll thereto. Section 2 (b) defines the
expression "Campus'', as 'the area of University within which it is
established'. This Act alsQ predicates imparting of education by Appellant
No. 2 - University by distance education by combination of any two or C.
more means of communication; namely broadcasting, telecasting,
correspondence courses, seminars, contact programme~ 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·
D
unit", having the university's complement of facilities, fa~ulty and staff.
That would obviously be an integral part of the functio~s of the Appelhmt
No.2 - University. The expression "study centre", means a centre
established and maintained or recognized by the University for the purpose
ofadvising, counseling or for rendering any other assistance required by
the students of the Appellants in the context of distance education, as. E
· set out in Section 2(t). The expression "University" has been defined in·
Section 2(v) to mean Maharishi Markandeshwar University, Solan in
Himachai Pradesh. Section 3 provides for the objects of the University.
It is an inclusive provision; The Sl!me reads thus :,--- ~
"3. The objects of the Univers-lty shall includes;: F
(a) to provide instructions, teaching and training in higher
education with a view to crepte. higher levels of intellectual
abilities;
(b) to establish faCilities for education and trajning:.
G·
(c) to carry out teaching. research and o(fer continuirig
education programmes: · ·
(d) . to create centres of excellence for researcn and
development relevant 10 the needs of the State and for sharing
knowledge and its application:
H
442 SUPREME COURT REPORTS [2017] 3 S.C.R.
A (e) to establish campus in the State;
(j) 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 ·universitv shall ensure that
B the 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.
c
(i) to engage in areas of specialization with proven ability to
make d!stinctive 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,
D medicine, dental, pharmacy, management, etc. routinely
offered by conventional institutions; and
(j) to establish broad-based and viable under graduate, post
graduate and research programmes in several disciplines with
the firm interdisciplinary orientation and linkages.
E
(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,
F reads thus:-
"4. (1) The first Chancelior 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 b-ecome such officers or' members,
G so Z.Ong as they continue to hold such office or membership,
are hereby constituted. a body corporate by the name of
Maharishi Markandeshwar ·university, Solan, Himacha/
Pradesh.
(2) The University shall have perpetual succession and a
H common seal and shall sue and be sued bv the said rJame.
MAHARISHIMARKANDESHWARMEDICALCOLLEGEANDHOSPlTAL 443
v. STATE OF HIMACHALPRADESH [A. M. KHANWILKAR, J.]
(3) The University shall be situated and have its head quarters A
at Kumarhatti-Solan, Himachal Pradf!sh."
(emphasis supplied)
The extent to which the Appellant No. 2 -University can and ought
to exercise its powers.and i'uf!ctions, can be discerned from Section 5 of B
the Act. The same reads as follows:- ·
"5. (1) The University shall have the following powers and
functiqns, namely:-
(i) to provide for instructions in such branches of learning as
the University may, fr.Om time to time, determine, and to make C
provision for research and for advance1nent 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, trainint D
and research;
(iii) to organize and to undertake extra-mural teaching and
extension service$:
(iv) to hold examinations and grant diplomas and certificates E
to and confer degrees and other academic distinctions on
persons. subject io 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:
F
(v) to create such teaching, administrative and other posts as
the University may deem necessary, from time to time, and
make appointments thereio;
. (v-a), the sponsoring body/university shall appoint full time
regular employees for the university and the salary of the G
employees shall be deposited in the bank account of the
employees every month;
'(vi) to institute and award Fellowships, Studentships and,
Prizes; ·
H
444 SUPREME COURT REPORTS [2017] 3 S.C.R.
A (vii) to establish and maintain Hostel i11cluding 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;
B (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
C and of the Colleges:
(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
D and conditions as may. (rom 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
E research, including distance education subject to the University
Grants Commission Act, 1956 and the regulations made
thereunder;
(xiii) to co-operate with any other University, authority or
association or any public body having purposes and objects.
F 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 co-operate with other National and international
institutions in the conduct of research and higher education.
G 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;
H
MAHARISHI MARKANDESHWARMEDlCALCOLLEGEAND HOSPITAL 445
v. STATE OF HIMACHALPRADESH [A. M. KHANWILKAR,J.]
(xvi) to enter into any agreement for the incorporation in the A
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 spec/fled.from time to time; B
(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 fimds C
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 with
other institutions or bodies as the University may deem
necessary; D
(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; E
(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
F
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-a-vis other Universities on reciprocal basis within and
outside the country;
G
(xxv) to make provisions for integrated courses in different
disciplines in the educational programmes of the University;
(xxvi) to set-up colleges, institutions, otf-campus centres, oft:
shore campus. study centres or to start distance education,
H
446 SUPREME COURT REPORTS [2017) 3 S.C.R.
A after fulfilling the norms and regulations of the Central
Government Regulatory Bodies and Central Government.
issued (rom time to time, and after obtaining the specific
al'.Proval of the State Government: and
(xxvii)to seek collaboration with other institutions on mutually
B acceptable terms and conditions.
(2) in pursuii 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. "
c (emphasis supplied)
Section 6 stipulates that the Appellant No. 2 - University shall be
self-finance4 and shall not be entitled to receive any grant or other
financial assistance from the Government. The University is reyuired to
establish an Endowment Fund in terms of Section 8 and a General Fund
D as per Section 9. The manner in which the General Fund is to be utilized
is set out in Section I0 of the Act. Section 11 of the Act provides f.Jr 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
E prescribed therein. A similar provision is made in respect of appc;intment
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
F the functioning of the Appellant No. 2 - University. The authority of the
Appellant No. 2 ~University has been spel.t out in Section 17, na.'llely 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
G 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.
H
MAHARISHIMARKANDESHWARMEDICALCOLLEGEANDHOSPITAL 447
v. STATE OF HIMACHALJ'~ESH [A. M. KHANWILKAR, J.]
15. From the aforementioned provisions, it is indisputable that the A
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 B
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. "
c
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 D
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 E
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. F
(2) The Government or the Regulatory Commission, as the
case may be, shall communicate 'io 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 G
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 H
: ·:: .
'448 SUPREME COURT REPORTS [2017] 3 S.C.R.
A binding on the University.
42. (1) Jfit appears to the Government that the University
has contravened any of the provisions of this Act or the rules,
statute,s -0r ordinances made thereunder or has contravened
B 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 ma/-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
c liquidation should not be made.
(2) If the Government, on receipt of reply oj'the University on
the notice issued under sub-section (1), is satisfied that there
is a prima facie case of contravening aU or any of the
provisions of this Act or the rules, statues or ordinances made
D 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 mat-administration, ;t shall
make an order of such enquiry as it may consider ne::essary.
(3) The Government shall, for the purpose of any enqui;y
E l!nder 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
F
suit in respect of the following mattel's, namely:-
(a) summoning and enforcing he attendance of any person
and examining him on oath;
(b) requiring the discovery and production of any such
_G document or any other niaterial 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.
H
MAHARISHIMARKANDESHWARMEDICALCOLLEGEAND HOSPITAL 449
v. STATE OF HIMACHALPRADESH [A. M. KHANWILKAR, J.]
(5) The inquiry officer or officers inquiring under this Act, A
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 B
·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
.
mat-administration has arisen in the University which C
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 D
Act and shall administer the affairs of the University until the
lase 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 hdving awarded the degrees, diplomas or awards, E
as the case may be, to the last batches of the students of the .
regular courses, the administrator shall make a report tv- 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 F
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 G
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
H
450 SUPREME COURT REPORTS [2017] 3 S.C.R.
A 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
B 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. "
c 16. From the legislative scheme of2010Act, 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
D the purpose forwhich 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. Astudent 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
E 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
F 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
G 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.
H
MAHARlSHIMARKANDESHWARMEDICALCOLLEGEAND HOSPITAL 451
v. STATE OF HIMACHALPRADESH [A. M. KHANWILKAR, J.]
(2) Notwithstanding anything contained in any other law for A
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 B
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 sha!l be
deemed to be admitted to the privileges of the Himachal
Pradesh University.
(3) Where any institution or body established outside Himachal C
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 D
situated. "
It is unfathomable as to how sub section (2) of this provision will
take witliin 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 E
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.
F
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 affiliatfon from the
Himachal Pradesh University. Notably, no corresponding amendment
has been made in the 2010 Act under which the Appellant No.2 - G
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 H
452 SUPREME COURT REPORTS [2017] 3 S.C.R.
A such a course is permissible.
19. As noticed from the legislative scheme of the 20 HfAct, 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
B 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
C provide for regulation of admission and fixation of fee in Private Medical
Educational Institutions in the State ofHimachal 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
D unifonnly 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.
E
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
F this argument, we must advert to Section 3, as it originally stood. The
same reads thus :-
"3.Regulation of admission, fixation offee and making of
reservation.- (1) The State Government may regulate
admission, fix fee and make reservation for d(fferent
G 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;
H
MAHARISHI MARKANDESHWAR MEDICALCOLLEGEAND HOSPITAL 453
v. STATE OF HIMACHALPRADESH (A. M. KHAN WILK.AR, J.]
(3) The State Government, may constitute an Admission and A
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.
B
(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. c
(6) If the State Government is satisfied tbat 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. " D
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:- E
"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, F
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 G
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
H
454 SUPREME COURT REPORTS [2017] 3 S.C.R.
A comply with all the rules, directions and notifications issued
by the State Government, from time to ti1i1e, and provide all
such facilities and assistance as are required to implement
· such rules, directions and notifications".
Along with sub-section 6, amendment was also effected to Section
B 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
C 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
D 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 Appeilant
E No. 2- University and in any case beyond the purview of the subject of
admissions and fixation offee 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
F such a situation, it is unfathomable that the requirement of taking affiliation
from another University (Himachal Pradesh University) establishe<l 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 A~t
G 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. l - 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 st~ted that Ii was not necessary for the Appellant
H
MAHARISHIMARKANDESHWARMEDICALCOLLEGEANDHOSPITAL 455
v. STATE OF HIMACHALPRADESH [A. M. KHANWILKAR, J .]
No. l - College to take affiliation from the Himachal Pradesh University. A
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. B
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 C
same are unreasonable, irrational and in conflict with the special State
Legislation under which the Appellant No.2 - University has been
established,vnamely 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 D
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 E
institution not promoted or run by the Central Government,
State Governmei·it 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; " F
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 G
of requiring the Appellant No. I - 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 H
456 SUPREME COURT REPORTS [2017] 3 S.C.R.
A 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 ifthe words "Himachal
Pradesh" alm1e were to be struck down, the remaining Section 3 (6a)
may create some confosion. It would then mean that Private Medical
B 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
C 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
D the Appellant No. 2 - University was granted essentiality certificate on
the condition.that it wpu,ld abide by the provisions of the 2006 Act. The
fact that such condition was imposed in the communication dated 291h
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
E and impinging upon its autonomy guaranteed under the 20 l 0 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 ~ody \lf the prescribed
F Authority, to be considered fairly and after due application of mind.
26. As noted earlier, since the Appellant No. I - 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.
·o 27. Accordingly, this appeal should succeed. The impu_gned
judgment of the High Court of Himachal Pradesh dated 20.12.2016 in
CWP No.4773 of2015 is set aside. We also strike down Section 3(6a)
of the ·Himachal Pradesh Private Medical Educational Institutions
(Regulation ofAdmission and Fixation ofFee) Act, 2006, being irrational,
H ·unreasonable, ultra vires and unconstitutional. Further, the Regulatory
MAHARISHIMARKANDESHWARMEDICALCOLLEGEAND HOSPITAL 457
v. STATE OF HIMACHALPRADESH [AM. KHANWILKAR, J.]
Authorities shall forthwith proceed in the matter without insisting for an A
affiliation of the Appellant No.l - College (a constituent college of
Appellant No.2 - University) from the Himachal Pradesh University.
28. The ~ppeal is allowed in the above terms with no order as to
costs.
B
Nidhi Jain Appeal allowed.
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