TaxTMI 
TaxTMI 
2017 (4) TMI 1628
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....r of the Appellants to issue directions to the concerned authorities that the Appellant No. 1 (college and hospital) or any other institution of medical stream to be started by the Appellants be governed only by The Maharishi Markandeshwar University (Establishment and Regulation) Act, 2010 (for short "2010 Act"). 2. Briefly stated, Appellant No. 1 is an unaided private medical college established by the Appellant No. 3 - University Trust as a constituent of the Appellant No. 2 - University. The Appellant No. 2 -University has been established under the 2010 Act. Before the said Act was enacted, the sponsoring body of the Appellant No. 3 -University Trust had submitted a project report on 21.07.2008 Under Section 4(2) of the Himachal Pradesh Universities Report (Establishment and Regulation) Act, 2006 for establishing a multi-faculty University with emphasis on professional courses in emerging areas. The State Government issued a letter of intent to the Appellant No. 3 - University Trust dated 28.08.2008, for setting up of a private University within the State of Himachal Pradesh. The letter delineated certain conditions to be fulfilled by the Trust for setting up of a private Uni....
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.... "under" the Appellant No. 2 - University as its constituent. The Appellant No. 3 - University Trust also wrote to the Medical Council of India vide its letter dated 27.02.2013, asserting that the proposed medical college, a constituent college of the Appellant No. 2 - University was "being set up by the same Maharishi Markandeshwar University Trust at the same campus as a part of the University". Pursuant to the proposal submitted by the Appellants, correspondence ensued between the authorities, after which the Board of Governors of the Medical Council of India issued a letter dated 14.07.2013 granting permission for establishment of a new medical college and hospital in the name and style of Maharishi Markandeshwar Medical College and Hospital, at Kumarhatti, Solan, Himachal Pradesh by Maharishi Markandeshwar University with annual intake of 150 seats with prospective effect from the academic year 2013 - 2014. 4. The State Government, in exercise of its powers Under Section 3(3) of the 2006 Act, issued a notification on 14.08.2013, regarding admission procedure and fee structure for admission to MBBS Course in the Appellant No. 1 - College. The Special Secretary (Health) Governm....
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.....09.2012 for the establishment of Maharishi Markandeshwar medical college was submitted along with an essentiality certificate dated 24.08.2012 issued by the Government of Himachal Pradesh and consent of affiliation dated 25.08.2012 issued by Maharishi Markandeshwar University. It is relevant to point out that the essentiality certificate dated 24.08.2012 issued by the Special Secretary (Health) to the Government of Himachal Pradesh was in favour of Maharishi Markandeshwar University Trust, Kumarhatti, Solan (H.P.). The essentiality certificate dated 24.08.2012 clearly certified that it is feasible to establish a medical college at Kumarhatti, Distt. Solan, H.P. under the Maharishi Markandeshwar University. Further, it is to be noted that the State of Himachal Pradesh by Act No. 22/2010 enacted Maharishi Markandeshwar University (Establishment and Regulation) Act, 2010 (hereinafter referred to as Maharishi Markandeshwar University Act) on 20.09.2010 to provide establishment, incorporation and Regulation of Maharishi Markandeshwar University, Solan Himachal Pradesh for higher education and to regulate its functioning and for matters connected therewith or incidental thereto. Secti....
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....s, 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 reference to Govt. of Himachal Pradesh letter No. HFW-B(F)11-4/2013 dated 23rd June, 2014 regarding affiliation of Maharashi Markandeshwar Medical College, Kumarhatti, Distt. Solan, H.P. The Medical Council of India vide their communication dated ....
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....eme Court. The Health, Revenue and Law Minister, Government of Himachal Pradesh vide letter dated 05.06.2015, immediately wrote to the Union Minister for Health & Family Welfare, Government of India requesting the Central Government and the Medical Council of India to take corrective measures so that the Appellant No. 1 - medical college could be affiliated to Himachal Pradesh University at Shimla. In view of the stand taken by the State Government, the Fee Committee constituted for fixation of fees, in its meeting held on 07.07.2015 recommended that since the affiliation of Appellant No. 1 - medical college was under dispute and reference in that behalf was pending with the Central Government, in the meantime, necessary amendments ought be made to the 2010 Act and the 2006 Act, to the extent that all the medical courses in any institution under any University shall be regulated under the "private medical institutions under 2006 Act". 7. In the context of the correspondence made by the State Government, the Under Secretary of the Ministry of Health & Family Welfare, Government of India vide letter dated 10.07.2015, wrote to the Medical Council of India to offer its comments on the....
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....ent 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 University at Solan, Himachal Pradesh. Therefore, the above clearly reveals that it is the Maharishi Markandeshwar University Trust which has established the Maharishi Markandeshwar University and it is responsible for running the affairs of Maharishi Markandeshwar University. 5. It is not out of place to mention that the Maharishi Markandeshwar University is statutorily empowered by ....
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....UR) 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 the nature of mandamus or any other appropriate writ, direction or order striking down Sections 3(6), 3(6)(a) and 3(6)(b) of the Himachal Pradesh Private Medical Educational Institutions (Regulation of Admission and Fixation of Fee) Act, 2006 as amended vide Amendment Act No. 24 of 2015 as null and void being wholly arbitrary, grossly malafide, in contravention of the law settled by the Hon'ble Supreme Court and in naked breach of the fundamental rights of the Pet....
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.... 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 Section 7 of the Himachal Pradesh University Act, 1970 (for short "1970 Act") and noted that that was a parent statute under which all the Universities in the State must be constituted. It then went on to observe thus: 49. Indubitably, the Petitioners have not assailed the constitutionality of the aforesaid provision. Sub-section (2) of Section 7 starts with the non-obstante Clause and, therefore, would have predominance and would prevail inspite of anything contrary contained in any other law for the time being in for....
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....Even the College seeking affiliation is bound by the provisions of the Himachal Pradesh University Act, 1970, more particularly, the provisions contained in Section 7 thereof and cannot of its own claim any right of privilege to get affiliated to any University of its choice including Petitioner No. 2. 54. Having said so, we find no merit in this petition and the same is accordingly dismissed alongwith all applications leaving the parties to bear their own costs. 11. The counsel for the Appellants submits that the core issue involved and as was raised before the High Court, has not been answered, much less appropriately. According to the Appellants, the Appellant No. 2 - University, having been established under an independent State Legislation i.e. the 2010 Act, is an autonomous and independent University and is fully authorised to start "campus/study centres" of its own. The Appellant No. 1, a constituent college, being one of its segment, cannot be asked to take affiliation from another independent University in the State. That stipulation impinges upon the autonomy of the Appellant No. 2 - University; and moreso such dispensation is not envisaged under the 2010 Act. It is su....
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....on 3 of the Act, which includes to set up its constituent colleges, establish its campus in the State, create centres of excellence for research and development, establish examination centres, off campus centres or to start distance education, and institute degrees, diplomas, certificates and other academic distinctions on the basis of examinations or such other method, subject to fulfilling the norms of the Central Government Regulatory Bodies and which the Central Government may issue from time to time. Further, the State Government having already issued the essentiality certificate; and the Appellant No. 1 - College being a constituent of the Appellant No. 2 - University, affiliation from Himachal Pradesh University was not required to be obtained at all. The requirement postulated under the amended 2006 Act would, however, compel the Appellant No. 1 - College, which is a constituent of the Appellant No. 2 - University, to take affiliation from another University. That will inevitably make an inroad into the autonomy of the Appellant No. 2 -University. The purpose for which affiliation is required to be taken is already ensured by the Appellant No. 2 - University, while starting....
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....y is to ensure that the college would be able to maintain the requisite standards regarding quality education to be imparted by the college. He submits that the State Legislature is competent to enact a law on those matters. The Appellant No. 2 - University has no power to grant affiliation to any college. Section 7 of the 2010 Act prohibits the Appellant No. 2 - University from affiliating or otherwise extending its privileges to any other institution. Moreover, Section 7 of the Himachal Pradesh University Act, 1970 is the bulwark under which all the Universities in the State have to be constituted and governed. He submits that there is no conflict or incompatibility between the provisions of the 2010 Act and the 2006 Act, much less the 1970 Act. The Appellant No. 1 medical college would thus be governed by the provisions of 2006 Act, as amended from time to time. The 2006 Act is also a Special Legislation and must prevail over the general powers and functions of the Appellant No. 2 - University, accorded to it under the 2010 Act. The Appellant No. 1 - College can admit students for medical course provided it fulfills the conditions specified under the 2006 Act. That Act requires ....
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....0 Act is to provide for establishment, incorporation and Regulation of the Appellant No. 2 - University for higher education, to regulate its functioning and for matters connected therewith or incidental thereto. Section 2(b) defines the expression "Campus", as 'the area of University within which it is established'. This Act also predicates imparting of education by Appellant No. 2 -University by distance education by combination of any two or more means of communication, namely broadcasting, telecasting, correspondence courses, seminars, contact programmes and any other such methodology. The expression "off campus/study centre" has been defined in Section 2(k) to mean a centre of the University established by it outside the main campus operated and maintained as its "constituent unit", having the university's complement of facilities, faculty and staff. That would obviously be an integral part of the functions of the Appellant No. 2 - University. The expression "study centre", means a centre established and maintained or recognized by the University for the purpose of advising, counseling or for rendering any other assistance required by the students of the Appellants....
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....i Markandeshwar University, Solan, Himachal Pradesh. (2) The University shall have perpetual succession and a common seal and shall sue and be sued by the said name. (3) The University shall be situated and have its head quarters at Kumarhatti-Solan, Himachal Pradesh. (emphasis supplied) The extent to which the Appellant No. 2 -University can and ought to exercise its powers and functions, can be discerned from Section 5 of the Act. The same reads as follows: 5. (1) The University shall have the following powers and functions, namely: (i) to provide for instructions in such branches of learning as the University may, from time to time, determine, and to make provision for research and for advancement and dissemination of knowledge and for extension of education; (ii) to conduct innovative experiments in modern methods and technologies in the field of technical education in order to maintain international standards of such education, training and research; (iii) to organize and to undertake extra-mural teaching and extension services; (iv) to hold examinations and grant diplomas and certificates to and confer degrees and other academic distinctions on persons, subjec....
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....University; (xvi) to enter into any agreement for the incorporation in the University of any institution and for taking over its rights, properties and liabilities and for any other purpose not repugnant to this Act; (xvii) to demand and receive payment of such fees and other charges as may be specified from time to time; (xviii) to receive donations and grants, except from parents and students and to acquire, hold, manage and dispose of any property, movable or immovable, including trust or endowed property within or outside Himachal Pradesh for the purposes and objects of the University, and to invest funds in such manner as the University thinks fit; (xix) to make provisions for research and advisory services and for that purpose to enter into such arrangements with other institutions or bodies as the University may deem necessary; (xx) to provide for the printing, reproduction and publication of research and other work, including text books, which may be issued by the University; (xxi) to accord recognition to institutions and examinations for admission in the University; (xxii) to do all such other things as may be necessary, incidental or conducive to the attain....
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....d of Management, the Academic Council and such other authorities as may be declared by the statutes to be the authorities of the University. The Governing Body, consisting of members specified in Section 18, is supposed to be the supreme body or supreme authority of the University. Powers to be exercised by the Governing Body are specified in the same Section (i.e. Section 18). Section 19 deals with the constitution of the Board of Management and its powers and functions. Section 20 stipulates the constitution of the Academic Council. 15. From the aforementioned provisions, it is indisputable that the 2010 Act purports to establish an independent University in the State of Himachal Pradesh, having full autonomy as that of any other full-fledged University including the authority to start Multi-Faculty Education Courses within its campus and also constituent colleges off campus. The Appellant No. 2 - University has been bestowed with the power to confer Degrees and Diplomas in terms of Section 35 of the Act. The same reads thus.: 35. The convocation of the University shall be held in every academic year in the manner as may be specified by the statutes for conferring degrees, dip....
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....ntravening directions issued by it under this Act or of ceasing to carry out the undertaking given or of financial mis-management or mal-administration, it shall make an order of such enquiry as it may consider necessary. (3) The Government shall, for the purpose of any enquiry under Sub-section (2), appoint an inquiry officer or officers to inquire into any of the allegations and to make report thereon. (4) The inquiry officer or officers appointed under Sub-section (3) shall have the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 while trying a suit in respect of the following matters, namely: (a) summoning and enforcing he attendance of any person and examining him on oath; (b) requiring the discovery and production of any such document or any other material as may be predicable in evidence (c) requisitioning any public record from any court or office; and (d) any other matter which may be prescribed. (5) The inquiry officer or officers inquiring under this Act, shall be deemed to be a civil court for the purposes of Section 195 and Chapter 26 of the Code of Criminal Procedure, 1973. (6) On receipt of the enquiry report from th....
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....stablished under this Act. The Appellant No. 2 - University, therefore, has all the trappings of a full-fledged University, to not only start imparting education in prescribed courses but also to set up its constituent colleges to effectuate the purpose for which the University has been established. Indubitably, a constituent college of the University would be an integral part of the University. In one sense, an alter ego of the University. A student pursuing education in such a college will be required to appear in the examination conducted by the Appellant No. 2 - University and, at the end of the academic year, it is the Appellant No. 2 - University which can confer degrees or diplomas upon such successful students. 17. Indeed, affiliation from University may be a pre-condition for starting any college or new courses. The constituent college of the Appellant No. 2 - University would therefore, at best, require affiliation from the Appellant No. 2. This position has been accepted even by the Medical Council of India and the Union of India. It is, however, the State Government which has been insisting that the Appellant No. 1- College must take affiliation from the Himachal Prade....
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....lished as an independent autonomous University. Nor has any amendment been made in the Himachal Pradesh University Act, 1970, mandating affiliation of the constituent college of another University established under a special State Legislation. We may not be understood to have expressed any opinion either way, that such a course is permissible. 19. As noticed from the legislative scheme of the 2010 Act, the Appellant No. 2 has been established as an independent, autonomous University like any other full-fledged University. No doubt, some of the functions of the University, be it the Appellant No. 2 - University or the Himachal Pradesh University, have been controlled and regulated by the 2006 Act. The limited issue raised by the Appellants, however, is with regard to the mandate of the amended Section 3, requiring all the Private Medical Institutions set up within the State to take affiliation from Himachal Pradesh University. To answer this argument, we must first analyse the scheme and purport of the 2006 Act. It is an Act to provide for Regulation of admission and fixation of fee in Private Medical Educational Institutions in the State of Himachal Pradesh and for matters connect....
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.... the State Legislation, so as to fortify the stand of the State Government that the medical college started as a constituent of the Appellant No. 2 - University would also require affiliation from the Himachal Pradesh University. As a result, Sub-Section 6 came to be amended in the following terms: In Section 3 of the principal Act, for Sub-section (6), the following Sub-sections shall be substituted, namely: (6) If, the State Government is satisfied that the institution affiliated to the Himachal Pradesh University or any other University has contravened any of the provisions of this Act, it may recommend to that University for withdrawal of recognition or affiliation of such institution. (6a) In order to ensure common standards for maintaining the excellence of Medical Education in the State, the Himachal Pradesh University shall have the exclusive power to affiliate Private Medical Educational Institutions set up in the State; and (6b) Notwithstanding anything contained in this Act, the Private Medical Educational Institutions shall be bound to comply with all the rules, directions and notifications issued by the State Government, from time to time, and provide all such ....
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....nion Government have, therefore, justly stated that it was not necessary for the Appellant No. 1 - College to take affiliation from the Himachal Pradesh University. 22. A priori, we have no hesitation in taking the view that the amended provisions, in particular Section 3(6a), would impinge upon the autonomy of an independent University established under a separate State Legislation. Further, the field of affiliation is governed by the State legislation under which the respective Universities have been established. The power of granting affiliation to colleges under the control of the concerned University, must vest with the respective University to which the college will be affiliated. That power of granting affiliation, by the University concerned, therefore, cannot be whittled down by the 2006 Act or amendments made thereto. Understood thus, the amended provisions of Section 3(6a) of the 2006 Act, cannot be sustained as the same are unreasonable, irrational and in conflict with the special State Legislation under which the Appellant No. 2 - University has been established, namely the 2010 Act. 23. We shall now examine the possibility of reading down the impugned provision in S....