# HOSPITAL & OTHERS v. STATE OF HIMACHAL PRADESH & OTHERS

- **Citation:** [2017] 3 S.C.R. 417
- **Court:** Supreme Court of India
- **Decided:** 2017-04-28
- **Case number:** Civil Appeal No. 5198 of2017
- **Bench:** Dipak Misra, A. M. Khanwilkar, Mohan M. Shantanagoudar
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/hospital-others-v-state-of-himachal-pradesh-others-31893
- **Pages:** 41

## Headnote

B
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. 2Maharishi 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 MultiFaculty 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
F
established under this Act. The appellant no. 2-University, thus,
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-con

## Text

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[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)
APRIL 28, 2017
(DIPAK MISRA, A. M. KHANWILKAR AND
MOHAN M. SHANTANAGOUDAR, JJ.)
B
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. 2Maharishi 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 MultiFaculty 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
F
established under this Act. The appellant no. 2-University, thus,
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; 454B-Ef
1.8 In the instant case, it has been asserted that the
appellant no. 1-College is a constituent of the appellant no. 2University. 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.1College to take affiliation from the Himachal Pradesh University.
[Para 21)(454-F-H; 455-AI
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
B
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.2University 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)
F
G
H
Modern Dental College and Research Centre and Others
v. State of Madhya Pradesh and Others (2016) 7 SCC
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
Others (1982) 1 SCR 759 : (1981) 4 SCC 296; HPrivate Universities Management Association (HPUMA) v. State of Himachal Pradesh and others writ
petition No. 7688 of2013 decided on 23 .07.2014- referred
to.
MAHARISHI MARKANDESHWAR MEDICAL COLLEGEANDHOSPITAL
423
v. STATE OF HIMACHAL PRADESH
Case Law Reference
(2016) 7 sec 353
referred to
[2010] 7 SCR 252
[2011] 2 SCR 461
referred to
referred to
referred to
Para 10
Para 10
Para 10
Para 10
A
[1982] 1 SCR 759
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, Aman deep Kaur, Prateek Bhatia, Dhawal
Mohan, Ms. Vara Gaur, Advs. for the Respondents.
The Judgment of the Court was delivered by
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 N o.4773 of 2015. The High Court dismissed
D
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 N o.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 1 OA 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
A
SUPREME COURT REPORTS
(2017] 3 S.C.R.
"MEDICAL COUNCIL OF INDIA
No. MCI - 34(41)(E-46)/2013-Med.
The Special Secretary (Health) to the
Govt. of Himachal Pradesh.,
Department of Health & Family Welfare,
Dated: 26.08.2014
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 1 OA of the Act from the academic year 201314 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
E
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.
D
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 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:
F
"Government of India
Ministry of Health & Family Welfare
Nirman Bhavan, New Delhi-110011
D.O. No.U-1201211112013-ME-P.H.
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.
H
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
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 & F amity
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:
F
G
H
"MEDICAL COUNCIL OF INDIA
MCI-No. 34(41)(E-46)/2013-Med./131542
Dated: 02.9.15
The Secretary
Govt. of India,
Ministry of Health & Family Welfare,
Nirman Bhawan,
New De/hi-110011.
Sub.:Maharishi Markandeshwar Medical College & Hospital
Kumarhatti, Dist!. Solan - reg.
Sir,
This is with reference to your letter No.U.1201211112013ME(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
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
A
B
c
D
E
F
G
H
SUPREME COURT REPORTS
[2017] 3 S.C.R.
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 way
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.
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
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)
Asst!. Secretary. "
(emphasis s:.ipplied)
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:
"STATEMENT OF OBJECTS AND REASONS
B
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
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
F
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
A
B
c
D
SUPREME COURT REPORTS
[2017] 3 S.C.R.
"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
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
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
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.