TMI Blog2017 (4) TMI 1628X X X X Extracts X X X X X X X X Extracts X X X X ..... efines the expression Campus , as 'the area of University within which it is established'. This Act also predicates imparting of education by Appellant No. 2 -University by distance education by combination of any two or more means of communication, namely broadcasting, telecasting, correspondence courses, seminars, contact programmes and any other such methodology - The expression study centre , means a centre established and maintained or recognized by the University for the purpose of advising, counseling or for rendering any other assistance required by the students of the Appellants in the context of distance education, as set out in Section 2(t). The expression University has been defined in Section 2(v) to mean Maharishi Markandeshwar University, Solan in Himachal Pradesh. It is indisputable that the 2010 Act purports to establish an independent University in the State of Himachal Pradesh, having full autonomy as that of any other full-fledged University including the authority to start Multi-Faculty Education Courses within its campus and also constituent colleges off campus. The Appellant No. 2 - University has been bestowed with the power to confer Degrees ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation from the Himachal Pradesh University. Thus, the amended provisions, in particular Section 3(6a), would impinge upon the autonomy of an independent University established under a separate State Legislation. Further, the field of affiliation is governed by the State legislation under which the respective Universities have been established. The power of granting affiliation to colleges under the control of the concerned University, must vest with the respective University to which the college will be affiliated - 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 the High Court of Himachal Pradesh dated 20.12.2016 in CWP No. 4773 of 2015 is set aside - appeal allowed. - Hon'ble Judges Dipak Misra, A.M. Khanwilkar And Mohan M. Shantanagoudar, JJ. For the Appellant : V. Giri, Sr. Adv., Aseem Mehrotra, Vijay Awana and Abhijat P. Medh, Advs. For the Respondents : Ashok Kumar Panda, Sr. Adv., Shadman Ali, Kiran Bhardwaj, Gurmeet Singh Makker, Gaurav Sharma, Amandeep Kaur, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... alogra in Kumarhatti-Solan for setting up the proposed University. Having complied with the pre-conditions for establishment of the proposed University, the State Legislation enacted the 2010 Act to provide for establishment, incorporation and Regulation of Maharishi Markandeshwar University, Solan, Himachal Pradesh for higher education, and to regulate its functioning and for matters connected therewith or incidental thereto. The 2010 Act received the assent of the Governor on 15.09.2010. The said Act, however, was deemed to have come into force w.e.f. 16.06.2010. The Appellant No. 2 - University has thus been established under the 2010 Act. 3. On 27.07.2012, the Appellant No. 2 - University requested the Principal Secretary (Health) to the Government of Himachal Pradesh for grant of an Essentiality Certificate to establish a new medical college at Kumarhatti, Solan under the Appellant No. 2 - University, to be submitted to the Medical Council of India/Government of India. On 29.08.2012, the Secretary (Health) Government of Himachal Pradesh brought to the notice of the Director, Medical Education and Research, Himachal Pradesh, regarding the grant of approval of the State G ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th an annual intake of 150 students for the academic year 2013-2014, Under Section 10A of the Indian Medical Council Act, 1956. The Medical Council of India also wrote to the Special Secretary (Health) Government of Himachal Pradesh on 26.02.2014, clarifying the position that the letter of permission has been granted to the Appellants on the understanding that the Appellant No. 1 -College was affiliated to the Appellant No. 2 - University. On receipt of this communication, the Special Secretary (Health) Government of Himachal Pradesh wrote to the Medical Council of India to reconsider its decision. The Medical Council of India, by a detailed communication dated 26.08.2014, clarified its stand in the following words: MEDICAL COUNCIL of INDIA No. MCI - 34(41)(E-46)/2013-Med. Dated: 26.08.2014 The Special Secretary (Health) to the Govt. of Himachal Pradesh., Department of Health Family Welfare, Shimla - 171002. Ref.: No. MCI-34(41)(E-46)/2013-Med./57586, Dated 14.02.2014. No. MCI-34(41)(E-46)/2013-Med./59892-59893, Dated 26.02.2014 Sub.: Regarding Maharishi Markandeshwar Medical College Hospital Kumarhatti, Distt. Solan, H ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt as per the IMC Act, 1956 and the Regulations made there under. A physical assessment of the applicant medical college was carried out, where after the inspection report was placed before the then Board of Governors nominated by the Central Government who after considering the scheme of the applicant medical college, decided to grant letter of intent to the applicant for the establishment of new medical college at Kumarhatti, Solan, Himachal Pradesh Under Section 10A of the Act from the academic year 2013-14 with certain conditions. Accordingly the letter of intent was issued to the applicant medical college on 12.07.2013. The applicant on fulfilling all the conditions as provided in the letter of intent was thereafter granted the letter of permission on 14.07.2013 for establishment of Maharishi Markandeshwar Medical College Hospital, Kumarhatti, Solan, Himachal Pradesh with 150 MBBS admissions from the academic year 2013-14. The above facts clearly establish that Maharishi Markandeshwar Medical College Hospital, Solan was established by Maharishi Markandeshwar University Trust under Maharishi Markandeshwar University and that the same is permissible Under Section 5 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l Government Regulatory Bodies and Central government issued from time to time, and after obtaining the specified approval of the State Government. The Maharishi Markandeshwar Medical College Hospital is a constituent college under the said University and the State Government has issued Essentiality Certificate/NOC in favour of Maharishi Markandeshwar University certifying the feasibility to establish a medical college at Kamarhatti, District Solan, Himachal Pradesh. With Kind regards, Yours sincerely, Sd/- (Dr. Vishwas Mehra) (emphasis supplied) 5. The Central Government, accordingly, issued a letter of permission to the Appellant No. 1 - College for 150 students annual intake capacity in academic year 2014 - 2015. Out of total 75 State quota MBBS seats in the Appellant No. 1 - College, only 35 seats could be filled up. As a result, one more competitive entrance test was held for the left-out MBBS seats, under the supervision of the officers of the Government deputed to conduct/process the said examination. For academic year 2015 - 2016, the Central Government once again issued a letter of permission to Appellant No. 1 - College for 150 seats a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , New Delhi-110011. Sub.: Maharishi Markandeshwar Medical College Hospital Kumarhatti, Distt. Solan - reg. Sir, This is with reference to your letter No. U.12012/11/2013-ME(P-II) dated 10.07.2015 by which you have forwarded a copy of the D.O. letter dated 05.06.2015 received from Shri Kaul Singh Thakur, Hon'ble Health, revenue and Law Minister, Govt. of Himachal Pradesh relating to the issue of Maharishi Markandeshwar Medical College and Hospital, Kumarhatti, District Solan, Himachal Pradesh. The matter was examined by the Council Office on the basis of records furnished by the applicant Maharishi Markandeshwar University trust the applicant for the establishment of Maharishi Markandeshwar Medical College and Hospital, Kumarhatti, District Solan, Himachal Pradesh. In this regard, the Council has the following comments to offer: 1. The Maharishi Markandeshwar University is establish under an Act of Himachal Pradesh State namely the Maharishi Markandeshwar University (Establishment and Regulation) Act, 2010. This Act vide Section 2 (p) of the said Act recognize the Status of Maharishi Markandeshwar University trust and defines it thus: sponsoring ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... artment of Health Family Welfare, Shimla and the Director Medical Education Research, Shimla and the first correspondence raising any objection from the State Govt. was received only on 18.01.2014 that was duly examined and replied to by the Council vide its letters dated 14.02.2014 and 26.02.2014. Yours faithfully, Sd/- (S. Savitha) Asstt. Secretary. (emphasis supplied) 8. Realising the legal obstacles to impel the Appellant No. 1 -College to obtain affiliation from Himachal Pradesh University and presumably, as recommended by the Fee Committee, steps were taken to amend the 2006 Act by amending Section 3 thereof. Sections 3(6), 3(6a), 3(6b) and 3(6c) in the said Act were inserted. The statement of objects and reasons for the said amendment reads thus: STATEMENT of OBJECTS AND REASONS Section 3 of the Himachal Pradesh Private Medical Educational Institutions (Regulation of Admission and Fixation of Fee) Act, 2006 provides for Regulation of admission in Private Medical Education Institutions on the basis of merit obtained in Centralized Common Entrance Test. However, it has been observed that due to some loopholes and ambiguities in def ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ust and proper may also be passed in the facts and circumstances stated herein below in favour of the Petitioners. 10. By the impugned judgment the High Court rejected the writ petition and in doing so, made a distinction between the authority of the Medical Council of India to grant recognition and the authority of the State Government or the University to grant affiliation for starting any medical college within the State. The High Court adverted to the decision of this Court in the case of Modern Dental College and Research Centre and Ors. v. State of Madhya Pradesh and Ors.(2016) 7 SCC 353 to conclude that the grant of affiliation was a pre-condition for granting recognition and that the process of the grant of affiliation was not a mere formality on the part of the examining body. The authority to grant affiliation was vested in the affiliating/examining body and the affiliation could be granted only by following prescribed procedure and after application of mind. The High Court further held that the examining body could always impose conditions as per its own requirements, such as: a) eligibility of students for admission; b) conduct of examinations; ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... power to affiliate a private educational medical institute set up in a State to a particular University set up within the State, as this power vests within the exclusive domain of the State. The State can always act as a regulatory authority to ensure good quality education and see that the excellence of education standard does not fall below than what has been prescribed by the State Government. Rather, it is crucial for the State to act as a regulator even if this may have some effect on the autonomy of the private institution as that would not mean that the freedom of the Institute Under Article 19(1) (g) of the Constitution of India has been violated. The High Court then relied on its earlier decision in the case of H-Private Universities Management Association (H-PUMA) v. State of Himachal Pradesh and Ors.[In writ petition No.7688 of 2013 decided on 23.07.2014] which dealt with the extent to which a private unaided institution could claim freedom Under Article 19(1) (g) of the Constitution of India. It noted that the said decision has been affirmed by this Court with the dismissal of SLP on 21.11.2014. After noticing the aforementioned decisions, in paragraph 53 and 54 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate Medical Educational Institutions under the 2006 Act and correspondingly, by introducing stipulation in that behalf in Section 3 (6a) of that Act. It is submitted that the amendment in the 2006 Act cannot undermine the Special Legislation under which the Appellant No. 2 -University has been established viz. the 2010 Act. It is contended that the 2006 Act deals with the regime regarding Admission and Fixation of Fee in Private Medical Educational Institutions in the State and for matters connected therewith or incidental thereto. That is the limited field in which it must operate. Whereas, the 2010 Act is a special legislation not only dealing with establishment and incorporation of the Appellant No. 2 - University but also for Regulation and administration of the said University. The objects and functions of the University so established under a Special Legislation must prevail with regard to the matter of grant of affiliation to its constituent colleges. What has been prohibited by Section 7 of the 2010 Act, is to affiliate or otherwise admit to its privileges any other institutions. Section 7 has no bearing on the matter in issue, which concerns the starting of a medical colle ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... respective Universities, namely Himachal Pradesh University and Appellant No. 2 - University, as the case may be. The amendment to Section 2(j) is also of no utility even if the Appellant No. 2 -University has no power to affiliate or extend its privileges to any other institution. It is submitted that the expression Himachal Pradesh occurring in Section 3(6a) of 2006 Act as amended, deserves to be struck down and in which case, the rest of the provision would apply to the institutions affiliated to the concerned University namely Himachal Pradesh University or the Appellant No. 2 - University as the case may be. In other words, the power to affiliate a private medical institution set up in the State as a constituent of the Appellant No. 2 - University, would vest and must remain in the Appellant No. 2- University established under the 2010 Act. The counsel for the Appellants made it amply clear that except the mandatory condition of affiliation of the Himachal Pradesh University even for its constituent college, as per the amending Act, the Appellants are not challenging any other stipulation regarding the procedure for admission or fixation of fees to medical courses governed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ellant No. 1 - College fails to comply with any mandatory requirement stipulated therein, it must suffer the consequence as provided for in the said enactment. The requirement specified as per the amended provisions, to take affiliation from Himachal Pradesh University is applicable to the Appellant No. 1 - College alone and does not impinge upon the autonomy of the Appellant No. 2 - University. The fact that Appellant No. 1 - College is a constituent of the Appellant No. 2 - University, does not extricate it from the definition of a Private Medical Educational Institution Under Section 2(j) of the 2006 Act, as amended. He submits that the fact that the Appellants have conceded to abide by the other stipulations in the 2006 Act, itself dispels the argument of the Appellants that the autonomy of the Appellant No. 2 - University will be affected in any manner. Inasmuch as, the 2006 Act covers the gamut of matters regarding the eligibility of students, the mode of conduct of examinations, the manner in which the prescribed courses should be conducted including the quantum of fees to be levied on the students admitted in the medical colleges in the State. He submits that no argument wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... shall includes,- (a) to provide instructions, teaching and training in higher education with a view to create higher levels of intellectual abilities; (b) to establish facilities for education and training; (c) to carry out teaching, research and offer continuing education programmes; (d) to create centres of excellence for research and development relevant to the needs of the State and for sharing knowledge and its application; (e) to establish campus in the State; (f) to establish examination centres; (g) to institute degrees, diplomas, certificates and other academic distinctions on the basis of examination or any such other method; while doing so, the University shall ensure that the standards of degrees, diplomas, certificates and other academic distinctions are not lower than those laid down by regulating bodies; and (h) to set up off campus centres, subject to applicable Rules or Regulations. (i) to engage in areas of specialization with proven ability to make distinctive contributions to the objectives of the University education system that is academic engagement clearly distinguishable from programmes of an ordinary nature that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eem necessary, from time to time, and make appointments thereto; (v-a) the sponsoring body/university shall appoint full time regular employees for the university and the salary of the employees shall be deposited in the bank account of the employees every month; (vi) to institute and award Fellowships, Studentships and Prizes; (vii) to establish and maintain Hostel including Halls; recognize, guide, supervise and control Hostels including Halls not maintained by the University and other accommodation for the residence of the students, and to withdraw any such recognition; (viii) to regulate and enforce discipline among students and employees of the University and to take such disciplinary measures as may be deemed necessary; (ix) to make arrangements for promoting health and general welfare of the students and the employees of the University and of the Colleges; (x) to determine the criterion for admission in the University or its Colleges; (xi) to recognize for any purpose, either in whole or in part, any institution or members or students thereof on such terms and conditions as may, from time to time, be specified and to withdraw such recogniti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to provide for dual degrees, diplomas or certificates vis-a-vis other Universities on reciprocal basis within and outside the country; (xxv) to make provisions for integrated courses in different disciplines in the educational programmes of the University; (xxvi) to set-up colleges, institutions, off-campus centres, off-shore campus, study centres or to start distance education, after fulfilling the norms and Regulations of the Central Government Regulatory Bodies and Central Government, issued from time to time, and after obtaining the specific approval of the State Government; and (xxvii) to seek collaboration with other institutions on mutually acceptable terms and conditions. (2) in pursuit of its objects and in exercise of its powers and in performing of its functions, the University shall not discriminate between any person, whosoever, on the basis of caste, class, colour, creed, sex, religion or race. (emphasis supplied) Section 6 stipulates that the Appellant No. 2 - University shall be self-financed and shall not be entitled to receive any grant or other financial assistance from the Government. The University is required to establish an Endowmen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... versity will be bound to comply with all the rules, Regulations and norms etc. of the regulating bodies and provide all such facilities and assistance to such bodies as are required by them to discharge their duties and to carry out their functions. The powers of the State Government to inspect the University can be traced to Section 40 of the Act. The special power of the Government in certain circumstances can be found in Section 42 of the Act. Sections 40 and 42 of the Act read as follows: 40. (1) For the purpose of ascertaining the standards of teaching, examination and research or any other matter relating to the University, the Government or the Regulatory Commission may, cause an assessment to be made in such manner as may be prescribed, by such person or persons as it may deem fit. (2) The Government or the Regulatory Commission, as the case may be, shall communicate to the University its recommendations in regard to the result of such assessment for corrective action and the University shall take such corrective measures as are necessary so as to ensure the compliance of the recommendations. (3) If the University fails to comply with the recommendations made ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ions of this Act or the rules, statutes, or ordinances made thereunder or has violated any of the directions issued by it under this Act or has ceased to carry out the undertakings given by it or a situation of financial mis-management and mal-administration has arisen in the University which threatens the academic standard of the University, it shall issue orders for the liquidation of the University and appoint an administrator. (7) The administrator appointed under Sub-section (6) shall have all the powers and be subject to all the duties of the Governing Body and the Board of Management under this Act and shall administer the affairs of the University until the last batch of the students of the regular courses have completed their courses and they have been awarded degrees, diplomas or awards, as the case may be. (8) After having awarded the degrees, diplomas or awards, as the case may be, to the last batches of the students of the regular courses, the administrator shall make a report to this effect to the Government. (9) On receipt of the report under Sub-section (8), the Government shall, by notification in the Official Gazette, issue an order dissolving the U ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 7 of the Act of 1970. The same reads thus: 7. Jurisdiction of the University. (1) Save as otherwise provided by or under this Act, the powers conferred on the University shall be exercisable in the area constituting Himachal Pradesh. (2) Notwithstanding anything contained in any other law for the time being in force, no educational institution situated within the territorial limits of the University shall be admitted to any privilege of any other University, incorporated by law in India, and any such privilege granted by any such other University to any such educational institution prior to the commencement of this Act, shall unless otherwise directed by the State Government be deemed to be withdrawn on the commencement of this Act, and any such institution shall be deemed to be admitted to the privileges of the Himachal Pradesh University. (3) Where any institution or body established outside Himachal Pradesh seeks recognition from the University, then the powers and jurisdiction of the University shall extend to such institution or body subject to the laws in force in the State within which, and the Rules and Regulations of the University within whose ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... atter, dealing with the subject of starting a new college or new courses in the affiliated college. This Act, no doubt uniformly applies to all the institutions affiliated to the Universities within the State of Himachal Pradesh, be it Himachal Pradesh University or the Appellant No. 2 - University. However, the object of this Act is limited only to regulate admissions as per the extant and applicable pronouncements of this Court; and to determine the fee structure in colleges imparting medical courses within the State. 20. It is not the case of the Appellants that they are not governed by the other provisions of the 2006 Act, but the limited grievance is that the amendment made to Section 3 of this Act has the effect of making an inroad into the autonomy of the Appellant No. 2 - University, in respect of matter of grant of affiliation to its constituent college. For considering this argument, we must advert to Section 3, as it originally stood. The same reads thus: 3. Regulation of admission, fixation of fee and making of reservation .- (1) The State Government may regulate admission, fix fee and make reservation for different categories in admissions to Private Medical Ed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... directions and notifications. Along with Sub-Section 6, amendment was also effected to Section 2(j) of the 2006 Act by including a Private Medical Institution established by or affiliated to a private University to be a Private Medical Educational Institution. Once it is noted that the Appellant No. 2 - University is an independent and a full-fledged University established under an independent special State Legislation, it must be free to discharge its functions as delineated in the 2010 Act. That, inter alia, includes granting affiliation to its constituent college which is one of the facets of autonomy of the University. It is incomprehensible that a college which is a constituent of the Appellant No. 2 - University can be compelled to take affiliation from some other University by taking recourse to the provisions of the 2006 Act which primarily deals only with the subject of admissions and fees in private medical colleges within the State. The grant of affiliation to the college is the prerogative of the examining body. The Appellant No. 2 - University, being the examining body, has been bestowed with the authority to grant degrees and diplomas. The requirement of affiliat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nstitutional. That may be possible by giving a restricted meaning to the expression Private Medical Educational Institutions set up in the State, but for the amended Section 2(j) which defines the expression Private Medical Educational Institutions as under: (j) Private Medical Educational Institution means an institution not promoted or run by the Central Government, State Government or Union Territory Administration or any agency or instrumentality of the Central or State Government and includes a Private Medical Educational Institution established by or affiliated to a private University; This expression includes a Private Medical Educational Institution established by or affiliated to a private University. We find force in the argument of the Appellants that the definition of Private Medical Educational Institution, as amended, can be extended to the Appellants in relation to other matters governed by the 2006 Act, except the mandate of requiring the Appellant No. 1 - College (a constituent college of the Appellant No. 2 - University) to take affiliation from the Himachal Pradesh University. That requirement springs from Section 3 (6a). 24. Indisputably, there ..... X X X X Extracts X X X X X X X X Extracts X X X X
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