MAHARISHI MARKANDESHWAR MEDICAL COLLEGE AND HOSPITAL & OTHERS versus STATE OF HIMACHAL PRADESH & OTHERS
[2017] 3 S.C.R. 417, Supreme Court of India, 2017
Outcome: Appeal(s) allowed (Granted)
Segment: Ratio
[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. 2-
Maharishi 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 Multi-
Faculty 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; 454-
B-Ef 
1.8 In the instant 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 
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.1-
College 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.2-
University 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; H-
Private Universities Management Association (H-
PUMA) 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 2013-
14 with certain conditions. Accordingly the letter of intent was 
issued to the applicant medical college on 12.07.2013. 
The applicant on fulfilling all the conditions as provided in 
the letter of intent was thereafter granted the letter of permission 
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.1201211112013-
ME(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. The authority to grant 
affiliation was vested in the affiliating/examining body and the affiliation 
could be granted only by following prescribed procedure and after 
application of mind. The High Court further held that the examining 
1 (2016) 1 sec 353 
H
MAHARlSHIMARKANDESHWARMEDICALCOLLEGEANDHOSPITAL 
435 
v. STATE OF HIMACHALPRADESH [A. M. KHANWILKAR, J.] 
body could always impose conditions as per its own requirements, such A 
as: 
"a) eligibility of students for admission; 
b) conduct of examinations; 
c) the manner in which the prescribed courses should 
B 
be r:ompleted; and 
d) to see that the conditions imposed by the MCI are 
complied with. " 
The High Court held that the affiliating body must exercise its 
C 
discretion fairly and transparently. Further, the functions of the affiliating 
body 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 another Vs. Union of India and D 
others2 and in Bhartia Education Society and Another Vs. State of 
Himachal Pradesh and Others1 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
Another Vs. Kumari Nivedita Jain 
and Others4 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 
E 
F 
observe thus: 
G 
"49. Indubitably, the petitioners have not assailed the 
constitutionality of the aforesaid provision. Sub-section (2) 
2 c201oi 12 sec 609 
'c2011i 4 sec s21 
'(1981) 4 sec 296 
H
436 
A 
B 
c 
D 
SUPREME COURT REPORTS 
[2017] 3 S.C.R. 
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 force. Once that is so, the petitioners can have no 
right to claim that it should be affiliated to a University of its 
choice despite the fact as contained in section 7 (supra) 
50. Even otherwise the State Government in its quest and 
endeavour to ensure common standards of maintaining the 
excellence of medical education within the State can always 
exercise its power to affiliate a private educational medical 
institute set up in a State to a particular University set up 
within the State, as this power vests within the exclusive domain 
of the State. The State can always act as a regulatory authority 
to ensure good quality education and see that the excellence 
of education standard does not fall below than what has been 
prescribed by the State Government. Rathe1; it is crucial for 
the State to act as a regulator even if this may have some 
effect on the autonomy of the private institution as that would 
not mean that the freedom of the institute under Article 19(1) 
(g) of the Constitution of India has been violated. " 
The High Court then relied on its earlier decision in the case of 
E H-Private Universities Management Association (H-PUMA) Vs. State 
of Himachal Pradesh and others5 which dealt with the extent to which 
a
private unaided institution could claim freedom under Article 19(1) (g) 
of the Constitution of India. 1t noted that the said decision has been 
affirmed by this Court with the dismissal of SLP on 21.11.2014. After 
F 
G 
H 
noticing the aforementioned decisions, in paragraph 53 and 54 the Court 
concluded thus: 
"53. From the aforesaid detailed discussion, we are of the 
considered view that the provisions of the MCI Act identify 
the scope and extent of power which each of the State 
stakeholders, i.e. MCI, State Government, Affiliating Body 
or the University is expected to exercise. 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 
5 In writ petition No.7688 of 20!3 decided on 23.07.2014
MAHARISHI MARKANDESHWAR MEDICAL COLLEGE AND HOSPITAL 
437 
v. STATE OF HIMACHALPRADESH [A. M. KHANWILKAR, J.] 
State insofar as the question of grant of 'affiliation' is A 
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 
ajfiliation is bound by the provisions of the Himachal Pradesh 
B 
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 
C 
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 D 
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. I, 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 submitted that although the 2006 Act is applicable and will 
be adhered to by the Appellant No.2 - University and its constituent 
colleges for all other purposes, that does not mean that the constituent 
college of Appellant No.2 - University can be compelled to take affiliation 
from Himachal Pradesh University by remodeling the definition of Private 
Medical Educational lnstitutions under the 2006 Act and correspondingly, 
E 
F 
by introducing stipulation in that behalf in Section 3 (6a) of that Act. It is 
submitted that the amendment in the 2006 Act cannot undermine the 
Special Legislation under which the Appellant No.2-University has been 
established viz. the 2010 Act. It is contended that the 2006 Act deals 
G 
with the regime regarding Admission and Fixation of Fee in Private 
Medical Educational Institutions in the State and for matters connected 
therewith or incidental thereto. That is the limited field in which it must 
operate. Whereas, the 2010 Act is a special legislation not only dealing 
with establishment and incorporation of the Appellant No.2 - University 
H
438 
SUPREME COURT REPORTS 
[20I7] 3 S.C.R. 
A but also for regulation and administration of the said University. The 
objects and functions of the University so established under a Special 
Legislation must prevail with regard to the matter of grant of affiliation 
to its constituent colleges. What has been prohibited by Section 7 of the 
2010 Act, is to affiliate or otherwise admit to its privileges any other 
B institutions. Section 7 has no bearing on the matter in issue, which concerns 
the starting of a medical college as a constituent of the Appellant No.2 -
University. Thus, the authority to grant affiliation to colleges which are 
constituents of the Appellant No.2 - University must vest with the 
Appellant No.2 - University and not with any other University. Taking 
any other view will entail in undermining the autonomy of the Appellant 
C 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 
D established. The 20 I 0 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, 
E 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. I 
F -(}ollege being a constituent of the Appellant No.2- University, affiliation 
fr,qm 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. I - 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 
G No.2 - University. The purpose for which affiliation is required to be 
taken is already ensured by the Appellant No.2- University, while starting 
its constituent college. Another University cannot be allowed to sit over 
the subjective satisfaction of the Appellant No.2 - University on those 
aspects. That is not envisaged under the 20 I 0 Act. Moreover, the private 
medical institution referred to in amended Section 3(6a) must be 
H
MAHARISHI MARKANDESHWAR MEDICAL COLLEGE AND HOSPITAL 
439 
v. STATE OF HIMACHALPRADESH [A. M. KHANWILKAR, J.] 
understood to be a private medical college affiliated to the respective 
A 
Universities, namely Himachal Pradesh University and Appellant No.2 
- University, as the case may be. The amendment to Section 2(j) is also 
of no utility even if the Appellant No.2 - University has no power to 
affiliate or extend its privileges to any other institution. It is submitted 
that the expression "Himachal Pradesh" occurring in Section 3( 6a) of B 
2006 Act as amended, deserves to be struck down and in which case, 
the rest of the provision would apply to the institutions affiliated to the 
concerned University namely "Himachal Pradesh University" or the 
Appellant No.2 - University as the case may be. In other words, the 
power to affiliate a private medical institution set up in the State as a 
constituent of the Appellant No.2 - University, would vest and must 
C 
remain in the Appellant No.2- University established under the 2010 
Act. The counsel for the Appellants made it amply clear that except the 
mandatory condition of affiliation of the Himachal Pradesh University 
even for its constituent college, as per the amending Act, the Appellants 
are not challenging any other stipulation regarding the procedure for 
D 
admission or fixation of fees to medical courses governed by the 
provisions of the 2006 Act. 
12. The counsels for the Respondents (Medical Council of India
and Union oflndia) have reiterated the stand of the said Authorities, as 
articulated in their correspondence reproduced above. That stand supports 
the claim of the Appellants. 
E 
13. The counsel 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 
F 
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 
G 
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 2010Actprohibits the Appellant No.2-
University from affiliating or otherwise extending its privileges to any 
other institution. Moreover, Section 7 of the Himachal Pradesh University 
H
440 
SUPREME COURT REPORTS 
[20I7] 3 S.C.R. 
A Act, I 970 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 20 I 0 Act and the 2006 
Act, much less the I 970 Act. The Appellant No. I medical college would 
thus be governed by the provisions of 2006 Act, as amended from time 
B 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 20 I 0 Act. The Appellant No. l - College can 
admit students for medical course provided it fulfills the conditions 
specified under the 2006 Act. That Act requires all the private colleges 
in the State to take affiliation from the Himachal Pradesh University. 
C That condition does not whittle down the autonomy of the Appellant 
No.2 - University, which has been established under the 2010 Act. The 
Act of 2006, is a Special Legislation regarding admissions to medical 
courses and fixation of fee. Ifthe Appellant No. I -College fails to comply 
with any mandatory requirement stipulated therein, it must suffer the 
D consequence as provided for in the said enactment. The requirement 
specified as per the amended provisions, to take affiliation from Himachal 
Pradesh University is applicable to the Appellant No. I - College alone 
and does not impinge upon the autonomy of the Appellant No.2 -
University. The fact that Appellant No. I -College is a constituent of the 
Appellant No.2 - University, does not extricate it from the definition of 
E a Private Medical Educational Institution under Section 2 (j) of the 2006 
Act, as amended. He submits that the fact that the Appellants have 
conceded to abide by the other stipulations in the 2006 Act, itself dispels 
the argument of the Appellants that the autonomy of the Appellant No.2 
- University will be affected in any manner. Inasmuch as, the 2006 Act 
F covers the gamut of matters regarding the eligibility of students, the 
mode of conduct of examinations, the manner in which the prescribed 
courses should be conducted including the quantum offees to be levied 
on the students admitted in the medical colleges in the State. He submits 
that no argument with regard to lack of legislative competence has been 
advanced. Further, the respective State Legislations operate in different 
G fields and although may be overlapping in some areas, that would not 
make the 2006 Act or the amended provisions thereof ultra vi res in any 
manner. He submits that the appeal deserves to be dismissed. 
H 
14. After considering the rival submissions, we are in agreement 
with the Appellants that the High Court has not touched upon the core
MAHARISHIMARKANDESHWARMEDICALCOLLEGEANDHOSPITAL 
441 
v. STATE OF HIMACHAL PRADESH [A. M. KHANWILKAR, J .] 
issue relating to the autonomy of the Appellant No. 2 - University A 
including its authority to start a constituent medical college, as prescribed 
by the 20!0Act. Admittedly, the Appellant No. 2- University has been 
established under the 20 I 0 Act. This Act received the assent of the · 
Governor.on 15th September, 2010 and was brought into force w.e.f. 
16
1
~· June, 2010. The intendment of the 201 . .0 Act is to provjde for ff 
establishment, incorporation and regulation of the Appellant.No. 2 - · 
University for higher education, to regulate its functioning and for matters 
connected therewith or incident(ll thereto. Section 2 (b) defines the 
expression "Campus'', as 'the area of University within which it is 
established'. This Act alsQ predicates imparting of education by Appellant 
No. 2 - University by distance education by combination of any two or C. 
more means of communication; namely broadcasting, telecasting, 
correspondence courses, seminars, contact programme~ 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· D 
unit", having the university's complement of facilities, fa~ulty and staff. 
That would obviously be an integral part of the functio~s of the Appelhmt 
No.2 -
University. The expression "study centre", means a centre 
established and maintained or recognized by the University for the purpose 
ofadvising, counseling or for rendering any other assistance required by 
the students of the Appellants in the context of distance education, as. E 
· set out in Section 2(t). The expression "University" has been defined in· 
Section 2(v) to mean Maharishi Markandeshwar University, Solan in 
Himachai Pradesh. Section 3 provides for the objects of the University. 
It is an inclusive provision; The Sl!me reads thus :,---
~ 
"3. The objects of the Univers-lty shall includes;: 
F 
(a) to provide instructions, teaching and training in higher 
education with a view to crepte. higher levels of intellectual 
abilities; 
(b) to establish faCilities for education and trajning:. 
G· 
(c) to carry out teaching. research and o(fer continuirig 
education programmes: 
· 
· 
(d) . to create centres of excellence for researcn and 
development relevant 10 the needs of the State and for sharing 
knowledge and its application: 
H
442 
SUPREME COURT REPORTS 
[2017] 3 S.C.R. 
A 
(e) to establish campus in the State; 
(j) to establish examination centres; 
B 
c 
D 
E 
(g) to institute degrees. diplomas. certificates and other 
academic distinctions on the basis of examination or any such 
,,;;:;;;: 
' 
other method: while doing so. the ·universitv shall ensure that 
the standards of degrees. diplomas. certificates and other 
academic distinctions are not lower than those laid down by 
regulating bodies; and 
(h) to set up off campus centres. subject to applicable rules 
or regulations. 
(i) to engage in areas of specialization with proven ability to 
make d!stinctive contributions to the objectives of the 
University education system that is academic engagement 
clearly distinguishable from programmes of an ordinary nature 
that lead to conventional degrees in arts, science, engineering, 
medicine, dental, pharmacy, management, etc. routinely 
offered by conventional institutions; and 
(j) to establish broad-based and viable under graduate, post 
graduate and research programmes 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, 
F reads thus:-
"4. (1) The first Chancelior 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 b-ecome such officers or' members, 
G 
so Z.Ong as they continue to hold such office or membership, 
are hereby constituted. a body corporate by the name of 
Maharishi Markandeshwar ·university, Solan, Himacha/ 
Pradesh. 
(2) The University shall have perpetual succession and a 
H 
common seal and shall sue and be sued bv the said rJame.
MAHARISHIMARKANDESHWARMEDICALCOLLEGEANDHOSPlTAL 
443 
v. STATE OF HIMACHALPRADESH [A. M. KHANWILKAR, J.] 
(3) The University shall be situated and have its head quarters 
A 
at Kumarhatti-Solan, Himachal Pradf!sh." 
(emphasis supplied) 
The extent to which the Appellant No. 2 -University can and ought 
to exercise its powers.and i'uf!ctions, can be discerned from Section 5 of B 
the Act. The same reads as follows:-
· 
"5. (1) The University shall have the following powers and 
functiqns, namely:-
(i) to provide for instructions in such branches of learning as 
the University may, fr.Om time to time, determine, and to make C 
provision for research and for advance1nent 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, trainint D 
and research; 
(iii) to organize and to undertake extra-mural teaching and 
extension service$: 
(iv) to hold examinations and grant diplomas and certificates 
E 
to and confer degrees and other academic distinctions on 
persons. subject io recognition by any statutory body under 
any law. if required. and to withdraw any such diplomas. 
certificates. degrees or other academic distinctions for good· 
· and sufficient cause: 
(v) to create such teaching, administrative and other posts as 
the University may deem necessary, from time to time, and 
make appointments
thereio; 
F 
. (v-a), the sponsoring body/university shall appoint full time 
regular employees for the university and the salary of the 
G 
employees shall be deposited in the bank account of the 
employees every month; 
'(vi) to institute and award Fellowships, Studentships and, 
Prizes; 
· 
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A 
(vii) to establish and maintain Hostel i11cluding Halls; 
recognize, guide, supervise and control Hostels including 
Halls not maintained by the University and other 
accommodation for the residence of the students, and to 
withdraw any such recognition; 
B 
(viii) to regulate and enforce discipline among students and 
employees of the University and to take such disciplinary 
measures as may be deemed necessary; · 
(ix) to make arrangements for promoting health and general 
welfare of the students and the employees of the University 
C 
and of the Colleges: 
(x) to determine the criterion for admission in the University 
or its Colleges; 
(xi) to recognize for any purpose. either in whole or in part, 
any institution or members or students thereof on such terms 
D 
and conditions as may. (rom time to time, be specified and to 
withdraw such recognition; 
(xii) to develop and maintain twinning arrangement with 
centers of excellence in modern advanced technology in the 
developed countries for higher education training and 
E 
research, 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. 
F 
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. 
G 
subject to the University Grants Commission Act, 1956 ·and 
the regulations made thereunder; 
H 
(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;
MAHARISHI MARKANDESHWARMEDlCALCOLLEGEAND HOSPITAL 
445 
v. STATE OF HIMACHALPRADESH [A. M. KHANWILKAR,J.] 
(xvi) to enter into any agreement for the incorporation in the 
A 
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 spec/fled.from time to time; 
B 
(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 fimds 
C 
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 
D 
for admission in the University; 
E 
(xxii)to do all such other things as may be necessary, 
incidental or conducive to the attainment of all or any of the 
objects of the University; 
(xxiii) to frame statutes, ordinances and regulations for 
carrying out the objects of the University in accordance with 
the
provisions of the Act; 
(xxiv) to provide for dual degrees. diplomas or certificates 
vis-a-vis other Universities on reciprocal basis within and 
outside the country; 
(xxv) to make provisions for integrated courses in different 
disciplines in the educational programmes of the University; 
(xxvi) to set-up colleges, institutions, otf-campus centres, oft: 
shore campus. study centres or to start distance education, 
F 
G 
H
446 
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[2017) 3 S.C.R. 
A 
after fulfilling the norms and regulations of the Central 
Government Regulatory Bodies and Central Government. 
issued (rom time to time, and after obtaining the specific 
al'.Proval of the State Government: and 
(xxvii)to seek collaboration with other institutions on mutually 
B 
acceptable terms and conditions. 
c 
(2) in pursuii of its objects and in exercise of its powers and 
in performing of its functions, the University shall not 
discriminate between any person, whosoever, on the basis of 
caste, ·class, colour, creed, sex, religion or race. " 
(emphasis supplied) 
Section 6 stipulates that the Appellant No. 2 - University shall be 
self-finance4 and shall not be entitled to receive any grant or other 
financial assistance from the Government. The University is reyuired to 
establish an Endowment Fund in terms of Section 8 and a General Fund 
D as per Section 9. The manner in which the General Fund is to be utilized 
is set out in Section I 0 of the Act. Section 11 of the Act provides f.Jr 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 
E prescribed therein. A similar provision is made in respect of appc;intment 
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 
F the functioning of the Appellant No. 2 - University. The authority of the 
Appellant No. 2 ~University has been spel.t out in Section 17, na.'llely 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 
G 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. 
H
MAHARISHIMARKANDESHWARMEDICALCOLLEGEANDHOSPITAL 
447 
v. STATE OF HIMACHALJ'~ESH [A. M. KHANWILKAR, J.] 
15. From the aforementioned provisions, it is indisputable that the A 
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 B 
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; diplomas or for any other 
purpose. " 
c 
The provisions regarding accreditation of the University can be 
discerned from Section 36 of the Act. Section 37 postulates.that the 
Appellant No.2 - University will be bound to comply with all the rules, 
regulations and norms etc. of the regulating bodies and provide all such 
facilities and assistance to such bodies as are required by them to 
discharge their duties and to carry out their functions. The powers of the 
D 
State Government to inspect the University can be traced to Section 40 
of the Act. The special power of the Government in certain circumstances 
can be found in Section 42 of the Act. Sections 40 and 42 of the Act 
read as follows:-
"40. (1) For the
purpose of ascertaining the standards of E 
teaching, examination and research or any other matter 
relating to the University, the Government or the Regulatory 
Commission may, cause an assessment to be made in such 
manner as may be prescribed, by such person or persons as 
.it may deem fit. 
F 
(2) The Government or the Regulatory Commission, as the 
case may be, shall communicate 'io the University its 
recommendations in regard to the result of such assessment 
for corrective action and the University shall take such 
corrective measures as are necessary so as to ensure the 
G 
compliance of the recommendations. 
(3) if the University fails to comply with the recommendations 
made under sub-section (2) within a reasonable time, the 
Government or the Regulatory Commission, as the case may 
be, may give such directions as it may deem fit which shall be H
'448 
A 
B 
c 
D 
E 
F 
_G 
H 
: ·:: 
. 
SUPREME COURT REPORTS 
[2017] 3 S.C.R. 
binding on the University. 
42. (1) Jfit appears to the Government that the University 
has contravened any of the provisions of this Act or the rules, 
statute,s -0r 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 ma/-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 oj'the University on 
the notice issued under sub-section ( 1 ), is satisfied that there 
is a prima facie case of contravening aU 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 mat-administration, ;t shall 
make an order of such enquiry as it may consider ne::essary. 
(3) The Government shall, for the purpose of any enqui;y 
l!nder 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 mattel's, 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 niaterial 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.
MAHARISHIMARKANDESHWARMEDICALCOLLEGEAND HOSPITAL 
449 
v. STATE OF HIMACHALPRADESH [A. M. KHANWILKAR, J.] 
(5) The inquiry officer or officers inquiring under this Act, 
A 
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 the officer or officers 
appointed under sub-section (3), if the Government is satisfied 
that the University has contravened all or any of the provisions 
B 
·of this Act or the rules, statutes, or ordinances made 
thereunder or has violated any of the directions issued by it 
under this Act or has ceased to carry out the undertakings 
' 
. 
given by it or a situation of financial mis-management and 
mat-administration has arisen in the University which C 
threatens the academic standard of the University, it shall 
issue orders for the liquidation of the University and appoint 
an administrator. · 
(7) The administrator appointed under sub-section (6) shall 
have all the powers and be subject to all the duties of the 
Governing Body and the Board of Management under this D 
Act and shall administer the affairs of the University until the 
lase batch of the students of the regular courses have 
completed their courses and they have been awarded degrees, 
diplomas or awards, as the case may be. 
· 
(8) After hdving awarded the degrees, diplomas or awards, 
as the case may be, to the last batches of the students of the . 
regular courses,
the administrator shall make a report tv- this 
effect to the Government. 
E 
(9) On receipt of the report under sub-section (8), the 
Government shall, by notification in the Official Gazette, issue 
F 
an order dissolving the University and from the ·date of 
publication of 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 
G 
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 
H
450 
SUPREME COURT REPORTS 
[2017] 3 S.C.R. 
A 
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 
B 
after the expiry of a period of two years from the 
commencement of this Act. 
c 
(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 of2010Act, 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 education in 
prescribed courses but also to set up its constituent colleges to effectuate 
D the purpose forwhich 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 
E 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 
F 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 Pradesh University 
established under the Himachal Pradesh University Act, 1970. To'buttress 
that stand, reliance is placed on Section 7 of the Act of 1970. The same 
G reads thus: 
H 
"7. Jurisdiction of the University. 
(1) Save as otherwise provided by or under this Act, the powers 
conferred on the University shall be exercisable in the area 
constituting Himachal Pradesh.
MAHARlSHIMARKANDESHWARMEDICALCOLLEGEAND HOSPITAL 
451 
v. STATE OF HIMACHALPRADESH [A. M. KHANWILKAR, J.] 
(2) Notwithstanding anything contained in any other law for A 
the time being in force, no educational institution situated 
within the territorial limits of the University shall be admitted 
to any privilege of any other University, incorporated by law 
in India, and any such privilege granted by any such other 
University to any such educational institution prior to the 
B 
commencement of this Act, shall unless otherwise directed by 
the State Government be deemed to be withdrawn on the 
commencement of this Act, and any such institution sha!l be 
deemed to be admitted to the privileges of the Himachal 
Pradesh University. 
(3) Where any institution or body established outside Himachal 
C 
Pradesh seeks recognition from the University, then the powers 
and jurisdiction of the University shall extend to such 
institution or body subject to the laws in force in the State 
within which, and the rules and regulations of the University 
within whose jurisdiction, the said institution or body is 
D 
situated. " 
It is unfathomable as to how sub section (2) of this provision will 
take witliin 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 affiliatfon from the 
Himachal Pradesh University. Notably, no corresponding amendment 
E 
F 
has been made in the 2010 Act under which the Appellant No.2 -
G 
University has been established 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 H
452 
SUPREME COURT REPORTS 
[2017] 3 S.C.R. 
A such a course is permissible. 
19. As noticed from the legislative scheme of the 20 Hf 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 
B 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(6a), 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 
C provide for regulation of admission and fixation of fee in Private Medical 
Educational Institutions in the State ofHimachal 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, no doubt 
D unifonnly applies to all the institutions affiliated to the Universities within 
the State of Himachal Pradesh, be it Himachal Pradesh University or 
the Appellant No. 2 - University. However, the object of this Act is 
limited only to regulate admissions as per the extant and applicable 
pronouncements of this Court; and
to determine the fee structure in 
E 
F 
G 
H 
colleges imparting medical courses within the State. 
20. It is not the case of the Appellants that they are not governed 
by the other provisions of the 2006 Act, but the limited grievance is that 
the amendment made to Section 3 of this Act has the effect of making 
an inroad into the autonomy of the Appellant No. 2 - University, in respect 
of matter of grant of affiliation to its constituent college. For considering 
this argument, we must advert to Section 3, as it originally stood. The 
same reads thus :-
"3.Regulation of admission, fixation offee and making of 
reservation.- (1) The State Government may regulate 
admission, fix fee and make reservation for d(fferent 
categories in admissions to Private Medical Educational 
Institutions. 
(2) The State Government shall ensure that the admission 
under all the categories in an institution is done in a fair and 
transparent manner;
MAHARISHI MARKANDESHWAR MEDICALCOLLEGEAND HOSPITAL 
453 
v. STATE OF HIMACHALPRADESH (A. M. KHAN WILK.AR, J.] 
(3) The State Government, may constitute an Admission and A 
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 
B 
the State Government, by notification from time to time. 
c 
(6) If the State Government is satisfied tbat 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. " 
D 
Sub-section 6 of this provision 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 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:-
E 
"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, 
F 
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 
G 
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 
H
454 
SUPREME COURT REPORTS 
[2017] 3 S.C.R. 
A 
comply with all the rules, directions and notifications issued 
by the State Government, from time to ti1i1e, and provide all 
such facilities and assistance as are required to implement 
· such rules, directions and notifications". 
Along with sub-section 6, amendment was also effected to Section 
B 2(j) of the 2006 Act by including a Private Medical Institution established 
by or affiliated to a private University to be a Private Medical Educational 
Institution. Once it is noted that the Appellant No. 2- University is an 
independent and a full-fledged University established under an 
independent special State Legislation, it must be free to discharge its 
functions as delineated in the 2010 Act. That, inter alia, includes granting 
C affiliation to its constituent college which is one of the facets of autonomy 
of the University. It is incomprehensible that a college which is a 
constituent of the Appellant No. 2- University can be compelled to take 
affiliation from some other University by taking recourse to the provisions 
of the 2006 Act which primarily deals only with the subject of admissions 
D and fees in private medical colleges within the State. The grant of 
affiliation to the college is the prerogative of the examining body. The 
. Appellant No. 2 - University, being the examining body, has been 
bestowed with the authority to grant degrees and diplomas. The 
requirement of affiliation from another University
even in respect of its 
constituent college, would be striking at the autonomy of the Appeilant 
E No. 2- University and in any case beyond the purview of the subject of 
admissions and fixation offee 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 
F such a situation, it is unfathomable that the requirement of taking affiliation 
from another University (Himachal Pradesh University) establishe<l 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 A~t 
G 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. l - 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~ted that Ii was not necessary for the Appellant 
H
MAHARISHIMARKANDESHWARMEDICALCOLLEGEANDHOSPITAL 
455 
v. STATE OF HIMACHALPRADESH [A. M. KHANWILKAR, J .] 
No. l - College to take affiliation from the Himachal Pradesh University. 
A 
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. 
B 
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 
C 
same are unreasonable, irrational and in conflict with the special State 
Legislation under which the Appellant No.2 - University has been 
established,vnamely the 2010 Act. 
-
23. We shall now examine the possibility of reading down the · 
impugned provision in Section 3 (6a) of the Act so as to save it from D 
being unconstitutional. That may be possible by giving a restricted meaning 
to the expression "Private Medical Educational Institutions" set up in 
the State, but for the amended Section 2(j) which defines
the expression 
"Private Medical Educational Institutions" as under:-
" (j) "Private Medical Educational institution" means an 
E 
institution not promoted or run by the Central Government, 
State Governmei·it or Union Territory Administration or any 
agency or instrumentality of the Central or State Government 
and includes a Private Medical Educational institution 
established by or affiliated to a private University; " 
F 
This expression includes a Private Medical Educational Institution 
established by or affiliated to a private University. We find force in the 
argument of the Appellants that the definition of Private Medical 
Educational Institution, as amended, can be extended to the Appellants 
in relation to other matters governed by the 2006 Act, except the mandate 
G 
of requiring the 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). 
24. Indisputably, there is no other private medical University in 
the State except the Appellant No.2 - University. Therefore, we explored H
456 
SUPREME COURT REPORTS 
[2017] 3 S.C.R. 
A 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 ifthe words "Himachal 
Pradesh" alm1e were to be struck down, the remaining Section 3 (6a) 
may create some confosion. It would then mean that Private Medical 
B 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 
C 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 argued by the counsel for the State that 
D the Appellant No. 2 - University was granted essentiality certificate on 
the condition.that it wpu,ld abide by the provisions of the 2006 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 
E 
F 
·o 
is unconstitutional and hit by Article 14 and 19(1 )(g) of the Constitution 
and impinging upon its autonomy guaranteed under the 20 l 0 Act. The 
High Court has adverted to the decisions which have culled out the 
distinction between "recognition" and "affiliation". We need not dilate 
on that matter except to observe that it is well settled that affiliation is a 
matter within the.prerogative of the Examining ~ody \lf the prescribed 
Authority, to be considered fairly and after due application of mind. 
26. As noted earlier, since the Appellant No. I - 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 impu_gned 
judgment of the High Court of Himachal Pradesh dated 20.12.2016 in 
CWP No.4773 of2015 is set aside. We also strike down Section 3(6a) 
of the ·Himachal Pradesh Private Medical Educational Institutions 
(Regulation ofAdmission and Fixation ofFee) Act, 2006, being irrational, 
H ·unreasonable, ultra vires and unconstitutional. Further, the Regulatory
MAHARISHIMARKANDESHWARMEDICALCOLLEGEAND HOSPITAL 
457 
v. STATE OF HIMACHALPRADESH [AM. KHANWILKAR, J.] 
Authorities shall forthwith proceed in the matter without insisting for an A 
affiliation of the Appellant No.l - College (a constituent college of 
Appellant No.2 - University) from the Himachal Pradesh University. 
28. The ~ppeal is allowed in the above terms with no order as to 
costs. 
B 
Nidhi Jain 
Appeal allowed.