Maharishi Markandeshwar Medical ... vs State Of Himachal Pradesh And Ors

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 University in the State. The Principal Secretary to the State Government then issued an “Essentiality Certificate” on 28.08.2008, permitting the Appellant No.3 – University Trust to purchase 25 acres of land 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 proposed private University and made necessary investments in that regard. The Appellant No.3 - 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 University, the State Legislation enacted the 2010 Act to provide for establishment, incorporation and regulation of Maharishi Markandeshwar University, Solan, Himachal Pradesh for higher education, and to regulate its functioning and for matters connected therewith or incidental thereto. The 2010 Act received the assent of the Governor on 15.09.2010. The said Act, however, was deemed to have come into force w.e.f. 16.06.2010. The Appellant No.2 - University has thus been established under the 2010 Act.

3. On 27.07.2012, the Appellant No.2 - University requested the Principal Secretary (Health) to the Government of Himachal Pradesh for grant of an “Essentiality Certificate” to establish a new medical college at Kumarhatti, Solan “under” the Appellant No.2 – University, to be submitted to the Medical Council of India/Government of India. On 29.08.2012, the Secretary (Health) Government of Himachal Pradesh brought to the notice of the Director, Medical Education and Research, Himachal Pradesh, regarding the grant of approval of the State Government for issuing “Essentiality and Feasibility Certificate/No Objection Certificate” to the Appellant No.2 -University for opening the 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 10A of the Indian Medical Council Act, 1956, for grant of permission to establish a new medical 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 - College. The Special Secretary (Health) Government of Himachal Pradesh wrote to the Medical Council of India 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 college and required affiliation from the Himachal Pradesh University. The Medical Council of India vide 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.1 - 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 10A of the Indian Medical Council Act, 1956. The Medical Council of India also wrote to the Special Secretary (Health) Government of Himachal Pradesh on 26.02.2014, clarifying the position that the letter of permission has been granted to the Appellants on the understanding that the Appellant No.1 - College was affiliated to the Appellant No.2 – University. On receipt of this communication, the Special Secretary (Health) Government of Himachal Pradesh wrote to the Medical Council of India to reconsider its decision. The Medical Council of India, by a detailed communication dated 26.08.2014, clarified its stand in the following words:

To issue the orders of appropriate nature that the petitioner No.1 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. That the Respondents may be directed to produce the records of the case. Any other order deemed just and proper may also be passed in the facts and circumstances stated herein below in favour of the petitioners.”

administration has arisen in the University which threatens the academic standard of the University, it shall issue orders for the liquidation of the University and appoint an administrator.

26. As noted earlier, 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.

27. Accordingly, this appeal should succeed. The impugned judgment of the High Court of Himachal Pradesh dated 20.12.2016 in CWP No.4773 of 2015 is set aside. We also strike down Section 3(6a) of the Himachal Pradesh Private Medical Educational Institutions (Regulation of Admission and Fixation of Fee) Act, 2006, being irrational, unreasonable, ultra vires and unconstitutional. Further, the Regulatory Authorities shall forthwith proceed in the matter without insisting for an affiliation of the Appellant No.1 – College (a constituent college of Appellant No.2 – University) from the Himachal Pradesh University.

28. The Appeal is allowed in the above terms with no order as to costs.