AI Drafter 
TaxTMI 
TaxTMI 
2017 (4) TMI 1628
X X X X Extracts X X X X
X X X X Extracts X X X X
....015. The High Court also rejected the prayer of the Appellants to issue directions to the concerned authorities that the Appellant No. 1 (college and hospital) or any other institution of medical stream to be started by the Appellants be governed only by The Maharishi Markandeshwar University (Establishment and Regulation) Act, 2010 (for short "2010 Act"). 2. Briefly stated, Appellant No. 1 is an unaided private medical college established by the Appellant No. 3 - University Trust as a constituent of the Appellant No. 2 - University. The Appellant No. 2 -University has been established under the 2010 Act. Before the said Act was enacted, the sponsoring body of the Appellant No. 3 -University Trust had submitted a project report on 21.07.2008 Under Section 4(2) of the Himachal Pradesh Universities Report (Establishment and Regulation) Act, 2006 for establishing a multi-faculty University with emphasis on professional courses in emerging areas. The State Government issued a letter of intent to the Appellant No. 3 - University Trust dated 28.08.2008, for setting up of a private University within the State of Himachal Pradesh. The letter delineated certain conditions to be fulfilled....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... college at Kumarhatti, Solan, Himachal Pradesh "under" the Appellant No. 2 - University as its constituent. The Appellant No. 3 - University Trust also wrote to the Medical Council of India vide its letter dated 27.02.2013, asserting that the proposed medical college, a constituent college of the Appellant No. 2 - University was "being set up by the same Maharishi Markandeshwar University Trust at the same campus as a part of the University". Pursuant to the proposal submitted by the Appellants, correspondence ensued between the authorities, after which the Board of Governors of the Medical Council of India issued a letter dated 14.07.2013 granting permission for establishment of a new medical college and hospital in the name and style of Maharishi Markandeshwar Medical College and Hospital, at Kumarhatti, Solan, Himachal Pradesh by Maharishi Markandeshwar University with annual intake of 150 seats with prospective effect from the academic year 2013 - 2014. 4. The State Government, in exercise of its powers Under Section 3(3) of the 2006 Act, issued a notification on 14.08.2013, regarding admission procedure and fee structure for admission to MBBS Course in the Appellant No. 1 ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... essentiality certificate from the State Government and the consent of affiliation from the affiliating University. The application dated 26.09.2012 for the establishment of Maharishi Markandeshwar medical college was submitted along with an essentiality certificate dated 24.08.2012 issued by the Government of Himachal Pradesh and consent of affiliation dated 25.08.2012 issued by Maharishi Markandeshwar University. It is relevant to point out that the essentiality certificate dated 24.08.2012 issued by the Special Secretary (Health) to the Government of Himachal Pradesh was in favour of Maharishi Markandeshwar University Trust, Kumarhatti, Solan (H.P.). The essentiality certificate dated 24.08.2012 clearly certified that it is feasible to establish a medical college at Kumarhatti, Distt. Solan, H.P. under the Maharishi Markandeshwar University. Further, it is to be noted that the State of Himachal Pradesh by Act No. 22/2010 enacted Maharishi Markandeshwar University (Establishment and Regulation) Act, 2010 (hereinafter referred to as Maharishi Markandeshwar University Act) on 20.09.2010 to provide establishment, incorporation and Regulation of Maharishi Markandeshwar Unive....
X X X X Extracts X X X X
X X X X Extracts X X X X
....s fact that the medical college will be established by the Maharishi Markandeshwar University Trust under Maharishi Markandeshwar University. Under these circumstances, the Competent Authority holds that the then Board of Governors nominated by the Central Govt. had granted permission for establishment of Maharishi Markandeshwar Medical College & Hospital, Solan in accordance with the provisions of the IMC Act, 1956 and the Regulations made thereunder and there is no need for reconsideration of the said decision. Yours faithfully, Sd/- (B.D. Jain) Admn. Officer (Emphasis supplied) Even the Joint Secretary, Ministry of Health & Family Welfare, Government of India sent a separate response on 15th September, 2014 to the Chief Secretary of the Government of Himachal Pradesh, reiterating the position stated by the Medical Council of India in its communication dated 26.08.2014. This communication reads as under: Government of India Ministry of Health & Family Welfare Nirman Bhavan, New Delhi-110011 D.O. No. U-12012/11/2013-ME-P.H. Dated the 15th September, 2014 Dear Sir, This is with ref....
X X X X Extracts X X X X
X X X X Extracts X X X X
....nt No. 2 - University then wrote to the Special Secretary (Health) to Government of Himachal Pradesh vide letter dated 04.06.2015, asserting that the 2010 Act authorised the Appellant No. 2 - University to conduct its own entrance test, in view of the recent decision of the Supreme Court. The Health, Revenue and Law Minister, Government of Himachal Pradesh vide letter dated 05.06.2015, immediately wrote to the Union Minister for Health & Family Welfare, Government of India requesting the Central Government and the Medical Council of India to take corrective measures so that the Appellant No. 1 - medical college could be affiliated to Himachal Pradesh University at Shimla. In view of the stand taken by the State Government, the Fee Committee constituted for fixation of fees, in its meeting held on 07.07.2015 recommended that since the affiliation of Appellant No. 1 - medical college was under dispute and reference in that behalf was pending with the Central Government, in the meantime, necessary amendments ought be made to the 2010 Act and the 2006 Act, to the extent that all the medical courses in any institution under any University shall be regulated under the "private medical in....
X X X X Extracts X X X X
X X X X Extracts X X X X
....rovides that: "the sponsoring body/university shall appoint full time regular employees for the university and the salary of the employees shall be deposited in the bank account of the employees every month". 3. Section 8 (i) of the Maharishi Markandeshwar University (Establishment and Regulation) Act, 2010 requires the sponsoring body shall establish an Endowment Fund for the University with an amount of three crore rupees which shall be pledged to the government of Himachal Pradesh. 4. It is to be noted that the Act passed by the State Legislature accords recognition to Maharishi Markandeshwar University Trust and for that purpose the responsibility of paying salary as well as maintaining an Endowment Fund with the Govt. of Himachal Pradesh has been casted upon the sponsoring body of Maharishi Markandeshwar which is the Maharishi Markandeshwar University Trust. Thus, though in law the Maharishi Markandeshwar University Trust and Maharishi Markandeshwar University are two distinct legal entity, however, the responsibility of maintaining endowment fund and paying salary to the Staff has been entrusted upon the sponsoring Trust. It is this Marakandeshwar U....
X X X X Extracts X X X X
X X X X Extracts X X X X
....amend 3 of the Act ibid, so that the admissions are made from the Centralized examinations (AIIPMT, NEET) conducted by either central agency (with CBSE) or by Himachal Pradesh University and to ensure that all Private Medical Educational Institutions are regulated under the provisions of the Act ibid. This has necessitated amendment in the Act ibid. The Bill seeks to achieve the aforesaid objectives. (KAUL SINGH THAKUR) Minister-in-Charge Shimla: Dated: Nil 9. The 2006 Act was accordingly amended with a view to make it mandatory for all the private medical institutions set up in the State to take affiliation from the Himachal Pradesh University. As the purport of the amendment affected the autonomy of the Appellant No. 2 - University, the Appellants challenged the amendments to 2006 Act inter alia on the ground that it was the outcome of legal malice. The Appellants, therefore, filed a writ petition before the High Court of Himachal Pradesh at Shimla for the following reliefs: PRAYER: It is therefore most respectfully prayed that this Hon'ble Court may, in the interest of justice, be pleased (i) To issue a writ in t....
X X X X Extracts X X X X
X X X X Extracts X X X X
....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 Anr. v. Union of India and Ors. (2010) 12 SCC 609 and in Bhartia Education Society and Anr. v. State of Himachal Pradesh and Ors. (2011) 4 SCC 527 for the purpose of differentiating between the scope of "recognition" and "affiliation". The High Court noted that the purpose of affiliation is to enable and permit an institution to send students to participate in the public examination conducted by the examining body and secure the qualification for Degrees, Diplomas and Certificates. On the other hand, the purpose of recognition is to grant licence to start a course or training in the concerned stream of education. The High Court then relied on the decision in the case of State of Madhya Pradesh and Anr. v. Kumari Nivedita Jain and Ors. (1981) 4 SCC 296 which has delineated the powers conferred on the Medical Council of India under the MCI Act to empower it to make Regulations for carrying out the purpose of that Act. The High Court then adverted to Se....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ise. While the MCI has been assigned the paramount role of according recognition, the affiliation is best left to the State Government/University/examining body and, therefore, it is beyond the competence of the MCI or the Central Government to dictate terms to the State insofar as the question of grant of 'affiliation' is concerned or direct the State to affiliate a Medical College to a particular University. This is clearly beyond the powers conferred by the Constitution upon the Central Government or for that matter even the MCI. Even the College seeking affiliation is bound by the provisions of the Himachal Pradesh University Act, 1970, more particularly, the provisions contained in Section 7 thereof and cannot of its own claim any right of privilege to get affiliated to any University of its choice including Petitioner No. 2. 54. Having said so, we find no merit in this petition and the same is accordingly dismissed alongwith all applications leaving the parties to bear their own costs. 11. The counsel for the Appellants submits that the core issue involved and as was raised before the High Court, has not been answered, much less appropriately. According to....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ing the autonomy of the Appellant No. 2 - University, established under the 2010 Act. For that reason, the amendment made in the 2006 Act will be in conflict with the special legislation, namely, 2010 Act; and moreso the autonomy of the Appellant No. 2 - University. The 2006 Act cannot have an overriding effect on a special legislation under which the Appellant No. 2 - University has been established. The 2010 Act deals with establishment of an independent University with full autonomy to discharge its powers and functions as per the objects in Section 3 of the Act, which includes to set up its constituent colleges, establish its campus in the State, create centres of excellence for research and development, establish examination centres, off campus centres or to start distance education, and institute degrees, diplomas, certificates and other academic distinctions on the basis of examinations or such other method, subject to fulfilling the norms of the Central Government Regulatory Bodies and which the Central Government may issue from time to time. Further, the State Government having already issued the essentiality certificate; and the Appellant No. 1 - College being a constitue....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... for the State, however, supports the decision of the High Court and submits that the essentiality certificate to establish a new medical college was given to the Appellants on the condition that it shall be governed as per the provisions of the 2006 Act, in respect of matters concerning admissions, fee structure and related issues. It is therefore, not open to the Appellants to now question the intention of the State Legislature much less contend that the amended provisions of the 2006 Act are ultra vires. He submits that the role of the affiliating body is to ensure that the college would be able to maintain the requisite standards regarding quality education to be imparted by the college. He submits that the State Legislature is competent to enact a law on those matters. The Appellant No. 2 - University has no power to grant affiliation to any college. Section 7 of the 2010 Act prohibits the Appellant No. 2 - University from affiliating or otherwise extending its privileges to any other institution. Moreover, Section 7 of the Himachal Pradesh University Act, 1970 is the bulwark under which all the Universities in the State have to be constituted and governed. He submits that the....
X X X X Extracts X X X X
X X X X Extracts X X X X
....peal deserves to be dismissed. 14. After considering the rival submissions, we are in agreement with the Appellants that the High Court has not touched upon the core issue relating to the autonomy of the Appellant No. 2 - University including its authority to start a constituent medical college, as prescribed by the 2010 Act. Admittedly, the Appellant No. 2 - University has been established under the 2010 Act. This Act received the assent of the Governor on 15th September, 2010 and was brought into force w.e.f. 16th June, 2010. The intendment of the 2010 Act is to provide for establishment, incorporation and Regulation of the Appellant No. 2 - University for higher education, to regulate its functioning and for matters connected therewith or incidental thereto. Section 2(b) defines the expression "Campus", as 'the area of University within which it is established'. This Act also predicates imparting of education by Appellant No. 2 -University by distance education by combination of any two or more means of communication, namely broadcasting, telecasting, correspondence courses, seminars, contact programmes and any other such methodology. The expression "off campus/study ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....mmes in several disciplines with the firm interdisciplinary orientation and linkages. (k) to make the University functional within one year from the date of commencement of this Act. (emphasis supplied) Section 4, which is of some significance to the case on hand, reads thus: 4. (1) The first Chancellor and the first Vice-Chancellor of the University and the first members of the Governing body, Board of Management and the Academic Council and all persons who may hereafter become such officers or members, so long as they continue to hold such office or membership, are hereby constituted a body corporate by the name of Maharishi Markandeshwar University, Solan, Himachal Pradesh. (2) The University shall have perpetual succession and a common seal and shall sue and be sued by the said name. (3) The University shall be situated and have its head quarters at Kumarhatti-Solan, Himachal Pradesh. (emphasis supplied) The extent to which the Appellant No. 2 -University can and ought to exercise its powers and functions, can be discerned from Section 5 of the Act. The same reads as follows: 5. (1) The University shall have the following....
X X X X Extracts X X X X
X X X X Extracts X X X X
....search, 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 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 subject to the University Grants Commission Act, 1956 and the Regulations made thereunder; (xv) to deal with property belonging to or vested in the University in any manner which is considered necessary for promoting the objects of the University; (xvi) to enter into any agreement for the incorporation in the University of any institution and for taking over its rights, properties and liabilities and for any other purpose not repugnant to this Act; (xvii) to demand and receive payment of such fees and other charges as may be specified from time to time; (xviii) to receive donations and grants, except from pa....
X X X X Extracts X X X X
X X X X Extracts X X X X
....zed is set out in Section 10 of the Act. Section 11 of the Act provides for the officers of the University and their designations. Section 12 deals with the appointment of the Chancellor of the Appellant No. 2 -University, who shall be the Head of the University and exercise powers as prescribed therein. A similar provision is made in respect of appointment of Vice-Chancellor and the exercise of powers by him Under Section 13 of the Act. Section 14 of the Act deals with the appointment of Registrar of the University. Section 15 provides for the appointment of Chief Finance and Accounts Officer of the Appellant No. 2 -University. Section 16 deals with the appointment of other officers as will be necessary for the functioning of the Appellant No. 2 -University. The authority of the Appellant No. 2 - University has been spelt out in Section 17, namely the Governing Body, the Board of Management, the Academic Council and such other authorities as may be declared by the statutes to be the authorities of the University. The Governing Body, consisting of members specified in Section 18, is supposed to be the supreme body or supreme authority of the University. Powers to be exercised by th....
X X X X Extracts X X X X
X X X X Extracts X X X X
....case may be, may give such directions as it may deem fit which shall be binding on the University. ...... ..... ........ 42. (1) If it appears to the Government that the University has contravened any of the provisions of this Act or the rules, statutes or ordinances made thereunder or has contravened any of the directions issued by it under this Act or has ceased to carry out any of the undertakings given or a situation of financial mis-management or mal-administration has arisen in the University, it shall issue notice requiring the University to show cause within forty five days as to why an order of its liquidation should not be made. (2) If the Government, on receipt of reply of the University on the notice issued under Sub-section (1), is satisfied that there is a prima facie case of contravening all or any of the provisions of this Act or the rules, statues or ordinances made thereunder or of contravening directions issued by it under this Act or of ceasing to carry out the undertaking given or of financial mis-management or mal-administration, it shall make an order of such enquiry as it may consider necessary. (3) The Government shall, f....
X X X X Extracts X X X X
X X X X Extracts X X X X
....f such notification, the University shall stand dissolved and all the assets of the University including assets of the sponsoring body pertaining to the University shall vest in the Government free from all encumbrances from the date of dissolution. Section 44 of the Act is a provision for removing any difficulty. The same reads as follows: 44. (1) If any difficulty arises in giving effect to the provisions of this Act, the Government may, by order published in the Official Gazette, make provisions, not inconsistent with the provisions of this Act, as appear to it to be necessary or expedient for removing the difficulty: Provided that no such order shall be made under this Section after the expiry of a period of two years from the commencement of this Act. (2) Every order made under this Section shall, as soon as may be after it is made, be laid before the State Legislative Assembly. 16. From the legislative scheme of 2010 Act, it is axiomatic that an independent, autonomous University has been established under this Act. The Appellant No. 2 - University, therefore, has all the trappings of a full-fledged University, to not only start imparting educ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... said institution or body is situated. It is unfathomable as to how Sub-section (2) of this provision will take within its sweep another independent University established under a special State Legislation or a constituent college of such University. That general provision may apply to all other educational institutions situated within the State, but certainly not to an independent University established under a special State Legislation such as the 2010 Act or to the constituent college of such an independent University. Any other interpretation will entail in rewriting the provisions of the 2010 Act, if not doing violence thereto. 18. Since the Appellant No. 2 did not accede to the demand of the State Government, provisions of the 2006 Act, came to be amended so as to widen the scope of that Act, requiring all the Private Medical Educational Institutions set up in the State to take affiliation from the Himachal Pradesh University. Notably, no corresponding amendment has been made in the 2010 Act under which the Appellant No. 2 - University has been established as an independent autonomous University. Nor has any amendment been made in the Himachal Pradesh University Act, 19....
X X X X Extracts X X X X
X X X X Extracts X X X X
....utions. (2) The State Government shall ensure that the admission under all the categories in an institution is done in a fair and transparent manner; (3) The State Government, may constitute an Admission and Fee Committee, (hereinafter referred to as the 'Committee') consisting of such members as may be specified by the State Government, by notification, to recommend the mode of admission, making of reservation, allocation of seats and fixation of fees etc. to the State Government. (4) The State Government, shall oversee the working of Admission and Fee Committee. (5) The terms and conditions of the Committee constituted under Sub-section (3) and its members shall be specified, by the State Government, by notification from time to time. (6) If the State Government is satisfied that the institution affiliated to the Himachal Pradesh University, has contravened any provision of this Act, it may recommend to the Himachal Pradesh University for withdrawal of recognition or affiliation of such institution. Sub-Section 6 of this provision came to be amended by the State Legislation, so as to fortify the stand of the State Government....
X X X X Extracts X X X X
X X X X Extracts X X X X
....irement of affiliation from another University even in respect of its constituent college, would be striking at the autonomy of the Appellant No. 2 - University and in any case beyond the purview of the subject of admissions and fixation of fee for which limited purpose the 2006 Act has been enacted. 21. In the present case, it has been asserted that the Appellant No. 1 - College is a constituent of the Appellant No. 2 - University. In such a situation, it is unfathomable that the requirement of taking affiliation from another University (Himachal Pradesh University) established under a separate State Legislation, can and ought to be insisted upon. If insisted, it would, inevitably, entail in making an inroad into the autonomy of the Appellant No. 2 - University. True it is that Section 7 of the 2010 Act does not empower the Appellant No. 2 - University to affiliate or otherwise admit to its privileges any other institution. But that will have no application to the case on hand. For, the Appellant No. 1 - College is none other than a constituent college of Appellant No. 2 - University itself. The Medical Council of India as well as the Union Government have, therefore, justly st....
X X X X Extracts X X X X
X X X X Extracts X X X X
....4. Indisputably, there is no other private medical University in the State except the Appellant No. 2 - University. Therefore, we explored the possibility of omitting the words "Himachal Pradesh" from the amended Section 3 (6a) to save the whole of that provision from being invalid, as was contended. However, we find that if the words "Himachal Pradesh" alone were to be struck down, the remaining Section 3 (6a) may create some confusion. It would then mean that Private Medical Institutions in the State must take affiliation from the "concerned" University. To wit, Himachal Pradesh University or the Appellant No. 2 - University, as the case may be. In other words, the concerned University can exercise power to affiliate a private medical institution set up in the State. However, the Appellant No. 2 is not authorised to affiliate a private medical college (not its constituent) by virtue of Section 7 of the 2010 Act, which prohibits the Appellant No. 2 - University from affiliating or otherwise extending to its privileges any other institution. Therefore, the appropriate course to avoid any confusion is to strike down Section 3(6a) of the 2006 Act, as amended. 25. It was vehemently....