Maharishi Markandeshwar ... vs State Of Himachal Pradesh And ...
2021 Latest Caselaw 358 HP

IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA

CWP No. 1300 of 2018 Reserved on: January 4, 2021 Decided on: January 7, 2021

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_____________________________________________________________

Maharishi Markandeshwar University and another ..Petitioners Versus State of Himachal Pradesh and others ..........Respondents

_____________________________________________________________ Coram:

Hon'ble Mr. Justice Sandeep Sharma, Judge.

Whether approved for reporting? 1 yes.

_____________________________________________________________

For the Petitioners : Mr. K.D. Shreedhar, Senior Advocate with Mr. Sameer Thakur, Advocate.

     For the respondents                    :      Mr.    Ajay    Vaidya,    Senior
                     r                             Additional Advocate General.

                  THROUGH VIDEO-CONFERENCING

_____________________________________________________________ Sandeep Sharma, Judge:

The question, which has fallen/arisen for determination

in the case at hand is, "whether the respondent State has any

authority/power to compel the petitioner-University to reserve

seats more than 25% for the students who are bona fide

Himachalis, especially when under Section 31(4) of the

Maharishi Markandeshwar University (Establishment and

Regulations) Act, 2010 (hereinafter, '2010 Act"), petitioner-

University is under obligation to reserve at least 25% seats for

bona fide Himachalis."

Whether the reporters of the local papers may be allowed to see the judgment?

2. For having bird's eye view, certain undisputed facts as

emerge from pleadings adduced on record by respective parties

are as under:

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2.1 Petitioner-University came to be established under

the Act (Annexure P-1) with the approval of Medical

Council of India and other authorities. Subsequently,

Petitioner-University established Maharishi

Markandeshwar Medical College and University at

Kumarhatti District Solan. After receiving approval from

the Medical Council of India for making admissions to

150 seat in MBBS for the sessions 2013-14 and keeping

in view the provisions of S.31 (4) of Act and other

enabling provisions under the Act, petitioner started

imparting education in medical sciences. Since dispute

inter se petitioner and respondents cropped up on

account of insistence of respondent-State to get the

constituent colleges of the Petitioner-University affiliated

with the Himachal Pradesh University, petitioner

approached this Court by way of CWP No. 4773 of 2015

challenging the validity of S.3(6) 3(6a) and 3(6b) of the

Himachal Pradesh Private Medical Educational

Institutions (Regulation of Admission and Fixation of

Fee) Act, 2006 (hereinafter, "2006 Act") as amended vide

amending Act No. 24 of 2015. However, fact remains that

the Division Bench of this Court vide judgment dated

20.5.2016 dismissed the writ petition upholding the

provisions contained under Ss. 3(6), 3(6a) and 3(6b).

Besides above, the Division Bench of this court also

.

rejected prayer of the petitioners to issue directions to

the concerned authority that the petitioner college and

hospital and any other institution of medical stream to

be started by petitioner-University shall be governed only

by the Act Ibid.

2.2 Being aggrieved and dissatisfied with aforesaid

judgment rendered by Division Bench of this Court,

petitioner preferred SLP(C) No. 9837 of 2017, which

came to be allowed vide judgment dated 28.4.2017

(Annexure P-2). Hon'ble Apex Court by way of aforesaid

judgment, while quashing judgment of this court dated

20.5.2016, struck down Section 3(6a) of the 2006 Act

being irrational, unreasonable, ultra vires and

unconstitutional. Hon'ble Apex Court also directed that

the regulatory authority shall forthwith proceed with the

matter without insisting for affiliation of petitioner

college (a constituent college of petitioner-University)

from Himachal Pradesh University. Most importantly,

Hon'ble Apex Court in the aforesaid judgment, while

arriving at aforesaid decision, categorically observed in

paragraph 20 that once it is noted that appellant No.2

(petitioner) is an independent and full-fledged University

established under an independent special State

Legislation, it must be free to discharge its functions as

.

delineated in the 2010 Act and that inter alia includes

granting affiliation to its constituent colleges, which is

one of the facets of autonomy of the University.

2.3 In June, 2017, respondent State issued counseling

prospectus for undergraduate medical /dental courses

for admission to MBBS and BDS Courses for the session

2017-2018, wherein State seats under State quota were

shown to be 50% of the total intake of seats. Being

aggrieved on account of aforesaid unilateral decision

taken by the respondents with respect to fixation of

quota, petitioner sent legal notice to respondent State

requesting therein not to interfere in reservation of seats

as per provisions of the 2010 Act and as held by Hon'ble

Apex Court. In reply to aforesaid legal notice, respondent

State vide communications dated 14.7.2017 (Annexure

P-3), dated 17.7.2017 (Annexure P-4) and dated

10.10.2017 (Annexure P-5), itself agreed that issues of

medical colleges regarding reservation of seats of MBBS

course for various categories, fee and other related

issues are to be decided in accordance with the

provisions of the Act ibid. Vide communication dated

17.7.2017, Annexure P-4 the then Additional Chief

Secretary (Health) to the Government of Himachal

Pradesh apprised the Principal Secretary (Health) to the

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Government of Himachal Pradesh that all the affairs of

the medical colleges are required to be decided in

accordance with the 2010 Act, by the Education

Department, which is the Administrative Department of

all the private Universities. Vide communication dated

10.10.2017, Annexure P-5, the Joint Secretary reiterated

that the affairs of petitioner would be governed by the

2010 Act. However, vide communication dated

16.5.2018, Annexure P-6, Director, Medical Education

and Research, Himachal Pradesh requested the Principal

Maharishi Markandeshwar Medical College and

University to submit the agenda (if any) with regard to

amendment of existing provisions of prospectus within

two days so that consolidated agenda could be prepared

and accordingly the petitioners, by way of

communication dated 17.5.2018 (Annexure P-7),

submitted agenda for incorporation in new prospectus

for the session 2018-19 inter alia requesting for State

quota seats to the extent of 25% of total sanctioned

intake after deducting 15% as NRI quota as per S.31(4)

of the 2010 Act and as per mandate of Hon'ble Apex

Court. On 23.5.2018, (Annexure P-11), (page 206 of

paper book) Prospectus Review Committee in its

meetings dated 23.5.2018 and 25.5.2018, opined that

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the issue pertaining to the petitioner college is required

to be decided by the Department of Higher Education. It

was also decided that until or unless the seats

distribution is not received from the State Government,

Department of Higher Education, a note to this effect

shall be inserted in the Prospectus at the appropriate

place as follows:-

Note: The above seats distribution is subject to any

change by the State Govt. on or before 1st round of

counseling.

2.4 Being aggrieved by the aforesaid decision of the

Prospectus Review Committee, petitioner submitted

detailed a representation (Annexure P-9) praying therein

to review issue of seat allocation, however, since no

action, if any, came to be taken on the aforesaid

representation, it was compelled to approach this court

in the instant petition praying for the following main

reliefs:-

"(a) Issue a writ of mandamus, order or direction commanding the Respondents to make admission in the petitioner No. 2-college for the academic year 2018-19 as per the provisions of the

Maharishi Markandewshwar University (Establishment and Regulation) Act, 2010.

(b) Issue a writ of mandamus, order or direction

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commanding the Respondents to issue prospectus

insofar as petitioners are concerned for admission in the petitioner No.2-college MBBS/BDS-2018-19

as prayed by the Petitioners vide letter dated 17th May, 2018 and 26th May, 2018 for the academic year 2018-19; specifying the State Quota seats as 25% and Management Quota as 75% as per as per

section 31(4) of the Maharishi Markandeshwar University (Establishment and Regulations) Act, 2010 and NRI seats @ 15% of the seats."

2.5 Respondents by way of reply to the aforesaid

petition, have made an attempt to justify their action in

directing petitioners to provide 50% of total 150 seats to

the students, who are bona fide Himachalis on the

ground that since the Petitioner-University has been

making admission to MBBS courses for the sessions

2013-14, 2014-15, 2015-16, 2016-17 and 2017-18

giving admission under State Quota to the extent of 50%,

petitioners have been rightly directed to continue with

the past practice. Respondents in their reply, have also

stated that once prospectus has been notified on

12.6.2018 and admission process has begun, prayer

made in the petition cannot be allowed.

Communications/representations repeatedly sent by

respondents with regard to settlement of issue of

reservation have not been disputed rather stand

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admitted. Even the respondents State has taken a stand

that it being a 'welfare state' is well within its right to

direct Petitioner-University to make available 50% of the

total 150 seats to the students, who bona fide

Himachalis.

3. Having taken note of pleadings adduced on record by

respective parties, this Court on 13.6.2019, directed

respondents to take only such action which is totally in

conformity with the 2010 Act and directions of Hon'ble Apex

Court. After passing of said interim direction by this Court,

respondents issued Prospectus for 2018-19 with the note that

above said distribution is subject to any change by State

Government on or before first round of counseling. However,

subsequently vide communication dated 20.6.2018 (Annexure

R-1), respondents unilaterally, in violation of interim direction

dated 13.6.2018 issued by this Court, issued correspondence

that the seats would be distributed in the ratio of 50:50 for

State and Management quotas.

4. Before adverting to the factual matrix of case vis-a-vis

prayer made in the case at hand, this court deems it fit to deal

with S.31(4) of the 2010 Act, which deals with issue of

reservation. Aforesaid provision reads as under:

"31. Admissions.- (1) Admission in the University shall be made strictly

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on the basis of merit.

(2) Merit for admission in the University may be determined either on the basis of marks or grade obtained in the qualifying examination for

admission and achievements in co-curricular and extra-curricular activities or on the basis of marks or grade obtained in the entrance test conducted at State level either by an association of the Universities

conducting similar courses or by any agency of the State: Provided that admission in professional and technical courses shall be made only through entrance test.

(3) Seats for admission in the University, for the students belonging to

Scheduled Castes, Scheduled Tribes and Other Backward Classes and

handicapped students, shall be reserved as per the policy of the State Government.

(4) At least 25% seats for admission to each course shall be reserved for

students who are bonafide Himachalis. 1 [(5) The University shall seek prior approval of the 2 [Regulatory Commission] for admitting new students in subsequent years in the

existing courses or for starting new courses which shall be subject to recommendations of the inspection committee set up for the purpose.

This shall be applicable till the first batch of final year students are admitted.]"

5. Careful perusal of aforesaid provision of the 2010 Act

clearly provides that as per this Act, petitioner-University is

liable to make available atleast 25% seats for admission in

each course for bona fide Himachali students. Material

available on record reveals that prior to admission of the

petition at hand on 23.12.2020, Principal Division bench of

this court having taken note of provisions contained in S. 31(4)

of the Act had called for certain clarification and instructions

from respondent State. Pursuant to aforesaid directions issued

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by Principal Division Bench of this Court, respondent-State

placed on record instructions issued under signatures of

Under Secretary (Education) to the Government of Himachal

Pradesh dated 27.12.2020, which read as under:

"I am directed to refer to your letter No. CWP1300/2018-dated 23.12.2020 on the subject cited above and to say that the petitioner has filed CWP No. 1300/2018 in the Hon'ble Court with the request to

make admission in the college for academic year 2018-

2019 as per provision of the MMU (Establishment and Regulation) Act, 2010 and also request to issue prospectus for admission in the college to specify the

State Quota as 25% and Management quota as 75% as per section 31(4) of the MMU (Establishment and

Regulation) Act, 2010 and NRI Seats @ 15% of the total seats.

It is stated that section 31(4) of MMU Act, 2010 says that at least 25% seats for admission to each

course shall be reserved for students who are Bonafide Himachalis. Therefore, as per provision of Section 31(4) of above Act, ibid doesn't cap the limit of seats to be reserved for bonafide himachali students to 25% rather, it is the lower limit. Therefore, the matter was considered as per the provisions of the MMU Act, 2010 and decided vide letter dated 20.06.2018 that the distribution of seats in the interest of the people of the State (Copy

enclosed). It is also submitted that the Hon'ble Supreme Court of India in its judgment dated 28.04.2017 in SLP(C) 9837/2017 has struck down section 3(6-a) of HP

.

Private Medical Educational Institutions (Regulation of

Admission and Fixation of Fee) Act, 2006 with clear observation that the Maharishi Markandeshwar

University Kumarhatti is a constituent Medical College of Maharishi Markandeshwar University, Solan and therefore various categories, fees and all other issues are to be decided in accordance with the previous of

Maharishi Markandeshwar University (Establishment and Regulations) Act, 2010.

The Maharishi Markandeshwar University Act,

2010 has been enacted by Education Department,

therefore, after examine the proposal received from Health Department vide letter dated 06.05.2017 (Copy enclosed) and on request of the MMU, Solan, the

department has reconstituted the Fee Structure Committee No.1 (For Medical/Ayurvedic/Animal Husbandry Courses) vide notification dated 11.08.2017

(Copy enclosed).

As far as the page No. 108 of the petition is concerned, it is submitted that as per MMU letter dated

07.10.2017 it was decided on 10.10.2017 (Copy enclosed that the affairs of Maharishi Medical College and Hospital, Kumarhatti Solan will be governed by the Maharishi Markandeshwar University Kumarhatti, Solan under the provisions of Maharishi Markandeshwar University (Establishment and Regulations) Act, 2010 and the admission process for the MBBS course will be conducted by the Director, Medical Education, Himachal

Pradesh and Himachal Pradesh University through Centralized Counselling on the basis of NEET only.

It is further submitted that in compliance to the

.

order dated 1512.2020 passed in cwp No. 1465/2018,

the Member Secretary Fees Structure Committee No. 1(For Medical /Ayurvedic/ Animal Husbandry Courses)

has been requested on 29.12.2020 to submit the Fee Structure proposal for MBBS course for finalization the same for academic session 2020-21.

You are therefore, requested to kindly apprise to

the Hon'ble High Court accordingly."

6. In the aforesaid instructions, respondents though have

fairly admitted that in terms of S 31(4) of the Act, petitioner-

University is under obligation to prescribe at least 25% seat for

admission to each course but they have taken an altogether

untenable stand that as per S.31(4) of the Act, petitioner-

University is under obligation to provide at least 25% seats for

the students, who are bona fide Himachalis and over and

above 25% respondent-State being a Welfare State can always

direct petitioner-University to make reservations to the extent

of 50%. As per respondents, provisions of S. 31(4) of Act do not

cap the limit of seats to be reserved for bona fide himachali

students rather it is lower limit as such, matter was

considered as per the MMU Act and distribution of seats was

righty done in the ratio of 50:50 for MBBS seats.

7. Having carefully perused the provisions contained under

S. 31(4) of the 2010 ACt, which deal with reservation, this

Court finds the stand taken by the respondents in their reply

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as well as instructions taken note above, to be totally absurd

and unsustainable.

8. As per S. 31(4) of the 2010 Act, petitioner-University is

supposed to reserve 25% seats for bona fide himachali

students. Binding effect of the 2010 Act stands discussed and

elaborated by Hon'ble Apex Court in judgment rendered in

Maharishi Markandeshwar University and another Vs.

State of Himachal Pradesh and others, (2017) 6 SCC 675,

relevant paragraphs, whereof read as under:

"28. From the aforementioned provisions, it is indisputable

that the 2010 Act purports to establish an independent University in the State of Himachal Pradesh, having full autonomy as that of any other full-fledged University including

the authority to start Multi-Faculty Education Courses within its campus and also constituent colleges off campus....

30. From the legislative scheme of 2010 Act, it is axiomatic that an independent, autonomous University has been

established under this Act. The Appellant No. 2 - University, therefore, has all the trappings of a full-fledged University, to not only start imparting education in prescribed courses but also to set up its constituent colleges to effectuate the purpose for which the University has been established. Indubitably, a constituent college of the University would be an integral part of the University.....

31.... It is unfathomable as to how sub section (2) of this provision will take within its sweep another independent University established under a special State Legislation or a

constituent college of such University. That general provision may apply to all other educational institutions situated within the State, but certainly not to an independent University established under a special State Legislation such as the 2010

.

Act or to the constituent college of such an independent University. Any other interpretation will entail in rewriting the provisions of the 2010 Act, if not doing violence thereto.

33. As noticed from the legislative scheme of the 2010 Act, the Appellant No. 2 has been established as an independent, autonomous University like any other full-fledged University. No doubt, some of the functions of the University, be it the

Appellant No. 2 - University or the Himachal Pradesh University, have been controlled and regulated by the 2006 Act. The limited issue raised by the Appellants, however, is with regard to the mandate of the amended Section 3(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 provide 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,

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 to determine the fee structure in colleges imparting medical courses within the State.

34. .... 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 affiliation to its constituent college which is one of the facets of autonomy of the University."

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9. This court finds from the record that based upon

aforesaid judgment of Hon'ble Apex Court, concerned

Department of Government of Himachal Pradesh conveyed in

no uncertain terms to the Administrative Department that the

affairs of the petitioner-University and College in respect of

seats and fees are to be governed under the 2010 Act i.e.

letters dated 14.7.2017 (Annexure P-3), dated 17.7.2017

(Annexure P-4) and dated 10.10.2017 (Annexure P-5) (pages

104 to 108. Provisions of aforesaid Act again came to be dealt

with by a Division Bench of this in CWP No. 1465 of 2018

alongwith CWP No. 22 of 2018 and CWP No. 1839 of 2018

wherein Hon'ble Division Bench while delivering judgment

dated 20.5.2020 observed as under:

"5(i) Section 32 of Act of 2010 and Section 7 of Act of 2006

pertain to fixation of fee structure in the petitioner medical college.

Hon'ble Apex Court in (2017) 6 SCC 675 titled Maharishi

Markandeshwar Medical College & Hospital Vs. State of H.P. has already held that 2006 Act provides for regulation of admission and fixation of fee in Private Medical Educational Institutions in the State of Himachal Pradesh and for incidental matters. Object of 2006 Act is to regulate admissions as per the extent and applicable pronouncements of the court and to determine fee structure in colleges imparting medical courses within the State. It has also been held that the Petitioner University is an independent and a full fledged university established under an independent special State Legislation and is free to discharge

its functions as delineated in the 2010 Act. Though on behalf of the petitioners in CWP 22 of 2018, the pleaded case is that applicable provisions of 2006 Act as well as 2010 Act will have to be read for

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determination of fee for petitioner medical college, however during

course of arguments, Ld. Senior Advocate appearing for the petitioners in CWP 22/2018 and Ld. Counsel for the petitioners in CWP 1839/2018 submitted that it is only the 2006 Act, which will govern the fee

structure of the petitioner medical college. It is not disputed by the State that applicable provisions of 2010 and 2006 Acts have to be read together for the purposes of fee fixation for the petitioner medical

college. Various documents on record including the memorandum dated 22.6.2018 are pointer towards the fact that it is the case of the State that fee for the petitioners institute is governed both under 2006 and 2010 Act. We have gone through the Ss. 32 of the Act of 2010 and Ss. 3 & 7

of Act of 2006 pertaining to fee fixation for the petitioner medical

college. These provisions supplement each other. A conjoint reading of these sections, extracted above, envisage moving of proposal from time to time by the University for preparing/revising its fee structure and

sending it for approval of the Government before 31st December of every preceding academic year, the examination of the proposal by the Fee Structure Committee by considering the various factors viz. location

of the institute, cost of land and building, nature of medical course,

available infrastructure & equipment, expenditure incurred or being incurred on faculty, administration and maintenance, reasonable profit required for growth and development of the institution, whether the fee

is unreasonably excessive and other relevant factors. While considering the proposal, the fee structure committee or the State Government may give a reasonable opportunity to the medical college and the representatives of the students studying in the college to express their view points. Based on these parameters, the approval to the fee structure has to be conveyed by the State within three months from the date of receipt of proposal so that it can be reflected in the prospectus. It is also open to the State Government to determine provisional fee structure in public interest, however such provisional determination has to be

finalized within a period of 90 days. The fee structure is not to be revised or modified during the academic year. The fee structure once approved shall remain valid till its next revision. Power to review the fee

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structure is available to the State where such fee structure was

determined prior to the commencement of 2006 Act.

Fee structure for the petitioner medical college was notified for the first time on 14.8.2013 under the provisions of 2006 Act. The

duration of the fee structure was not mentioned in this notification however no revision of fee took place in the years 2014 and 2015. The fee was revised on 8.3.2017 under the provisions of 2006 Act. On

28.4.2017, Hon'ble Apex Court while deciding CA 5198 of 2017 reported in ( 2017) 6 SCC 675 titled Maharishi Markandeshwar Medical College and Hospital & others Vs State held that petitioner is an independent autonomous university established under a separate special

State Legislation under 2010 Act. Petitioner college challenged the fee

revision carried out under 8.3.2017 notification by way of CWP 1502/2017 on grounds of inadequate fee enhancement. During the pendency of the petition and pursuant to the directions issued in CWP

1502/2017, the fee structure was revised further on 28.8.2017/5.9.2017. This revision was carried out under the enabling provisions of the Acts of 2010 and 2006. The fee revision proposal was examined and

deliberated by the Fee Structure Committee, which determined a

provisional fee structure. The fee structure so determined was approved by the State and brought to the notice of the Court in CWP 1502/2017 and communicated to the petitioner, Medical Council of India, HP

Private Educational Institutional Regulatory Commission and all concerned authorities. Section 32 of Act of 2010 states that the proposal once approved will be binding till its next revision. Therefore in normal circumstances, the fee structure as approved by the State and notified on 28.8.2017/5.9.2017 to be considered as binding till its next revision."

10. Yet in another case titled Mahrishi Markandey University

and another vs. State of Himachal Pradesh and others (CWP

No. 4119 of 2020), Division Bench of this Court, while dealing

with prayer of petitioners to allow them to admit 15% of total

intake as NRI seats again reiterated that petitioner-University

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is an independent and full-fledged University established

under an independent special State Legislation, it must be

free to discharge its functions as delineated in the 2010 Act.

Though, respondents have neither assigned any cogent and

convincing reasons to justify its action in directing /compelling

petitioner-University to reserve 50% seats of total seats for the

bona fide himachali students nor Mr. Ajay Vaidya, learned

Senior Additional Advocate General, during arguments, has

been able to show provision, if any, under law empowering

respondent State to prescribe extent of reservation in a

particular college, especially in the case of petitioner-

University, which is governed under the provisions of the 2010

Act, which itself provides for reservation. Hon'ble Apex Court

in case P.A. Inamdar & others vs. State of Maharashtra

and ors, (2005) 6 SCC 537, while dealing with issue of

distribution of seats has held that the State cannot impose

seat sharing in unaided professional institutions. Relevant

paras are as under:

"124. So far as appropriation of quota by the State and enforcement of its reservation policy is concerned, we do not see much of difference between non-minority and minority unaided educational institutions. We find great force in the submission

made on behalf of the petitioners that the States have no power to insist on seat sharing in the unaided private professional educational institutions by fixing a quota of seats between the management and the State. The State cannot insist on private

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educational institutions which receive no aid from the State to implement State's policy on reservation for granting admission on lesser percentage of marks, i.e. on any criterion except merit.

125. As per our understanding, neither in the judgment of Pai Foundation nor in the Constitution Bench decision in Kerala Education Bill, which was approved by Pai Foundation, there is

anything which would allow the State to regulate or control admissions in the unaided professional educational institutions so as to compel them to give up a share of the available seats to the candidates chosen by the State, as if it was filling the seats

available to be filled up at its discretion in such private

institutions. This would amount to nationalization of seats which has been specifically disapproved in Pai Foundation. Such imposition of quota of State seats or enforcing reservation policy

of the State on available seats in unaided professional institutions are acts constituting serious encroachment on the right and autonomy of private professional educational

institutions. Such appropriation of seats can also not be held to be a regulatory measure in the interest of minority within the

meaning of Article 30(1) or a reasonable restriction within the meaning of Article 19(6) of the Constitution. Merely because the resources of the State in providing professional education are

limited, private educational institutions, which intend to provide better professional education, cannot be forced by the State to make admissions available on the basis of reservation policy to less meritorious candidate. Unaided institutions, as they are not deriving any aid from State funds, can have their own admissions if fair, transparent, non-exploitative and based on merit.

126. The observations in paragraph 68 of the majority opinion in Pai Foundation, on which the learned counsel for the parties

have been much at variance in their submissions, according to us, are not to be read disjointly from other parts of the main judgment. A few observations contained in certain paragraphs of the judgment in Pai Foundation, if read in isolation, appear

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conflicting or inconsistent with each other. But if the observations made and the conclusions derived are read as a whole, the judgment nowhere lays down that unaided private

educational institutions of minorities and non-minorities can be forced to submit to seat sharing and reservation policy of the State.

127. Reading relevant parts of the judgment on which learned

counsel have made comments and counter comments and reading the whole judgment (in the light of previous judgments of this Court, which have been approved in Pai Foundation) in our considered opinion, observations in paragraph 68 merely

permit unaided private institutions to maintain merit as the

criterion of admission by voluntarily agreeing for seat sharing with the State or adopting selection based on common entrance test of the State. There are also observations saying that they

may frame their own policy to give free-ships and scholarships to the needy and poor students or adopt a policy in line with the reservation policy of the state to cater to the educational needs

of weaker and poorer sections of the society. Nowhere in Pai Foundation, either in the majority or in the minority opinion,

have we found any justification for imposing seat sharing quota by the State on unaided private professional educational institutions and reservation policy of the State or State quota

seats or management seats.

128. We make it clear that the observations in Pai Foundation in paragraph 68 and other paragraphs mentioning fixation of percentage of quota are to be read and understood as possible consensual arrangements which can be reached between unaided private professional institutions and the State.

129. In Pai Foundation, it has been very clearly held at several places that unaided professional institutions should be given greater autonomy in determination of admission procedure and

fee structure. State regulation should be minimal and only with a view to maintain fairness and transparency in admission procedure and to check exploitation of the students by charging exorbitant money or capitation fees.

.

130. For the aforesaid reasons, we cannot approve of the scheme evolved in Islamic Academy to the extent it allows States to fix quota for seat sharing between management and the

States on the basis of local needs of each State, in the unaided private educational institutions of both minority and non- minority categories. That part of the judgment in Islamic Academy, in our considered opinion, does not lay down the

correct law and runs counter to Pai Foundation."

11. Hon'ble Apex Court in Modern Dental College vs. State

Of Madhya Pradesh & Ors, (2016)7 SCC 353 has held as

under:

(b) the private institutions that do not receive any aid out of State funds enjoy a greater autonomy in their day-to-day

functioning and the autonomy includes:-

(i) a right to admit students;

(ii) a right to set up a reasonable fee structure;

(iii) a right to appoint staff (teaching and non-teaching);

and

(iv) a right to take action if there is dereliction of duty on

the part of any employees.

"132. Our answer to the first question is that neither the policy

of reservation can be enforced by the State nor any quota or percentage of admissions can be carved out to be appropriated by the State in a minority or non-minority unaided educational institution. Minority institutions are free to admit students of their own choice including students of non- minority community as also members of their own community from other States, both to a limited extent only and not in a manner and to such an extent that their minority educational institution status is lost. If they do so, they lose the protection of Article 30(1).

33. The history of the dispute regarding Government control over the functioning of private medical colleges is quite old now but the tug of war continues. There seems to be some conflict of interest between the State Government and the bodies that

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establish institutions and impart professional medical education to the youth of this country. While on the one hand the State Governments want to control the institutions for socio- political

considerations and on the other the people who invest, set up and establish the institutions have a genuine desire to run and exercise functional control over the institution in the best interests of the students, it cannot be disputed that the State

does not enjoy monopoly in the field of imparting medical education and the private medical colleges play a very significant role in this regard. The State lacks funds that is imperative to provide best infrastructure and latest facilities to the students so

that they emerge as the best in their respective fields.

But at the same time, regulatory mechanism is provided thereby ensuring that such private institutions work within such regulatory regime. When it comes to education, it is expected

that unaided private institutions provide quality education and at the same time they are given 'freedom in joints' with minimal Government interference, except what comes under regulatory

regime. Though education is now treated as an 'occupation' and, thus, has become a fundamental right guaranteed under Article

19(1)(g) of the Constitution, at the same time shackles are put insofar as this particular occupation is concerned which is termed as 'noble'.

12. Besides above, reliance is placed on T.M.A.Pai

Foundation & Ors vs State Of Karnataka & Ors (2002) 8

SCC 481, wherein, Hon'ble Apex Court has held as under:

53. With regard to the core components of the rights under Article 19 and 26(a), it must be held that while the state has the right to prescribe qualifications necessary for admission, private unaided colleges have the right to admit students of their

choice, subject to an objective and rational procedure of selection and the compliance of conditions, if any, requiring admission of a small percentage of students belonging to weaker sections of the society by granting them freeships or

.

scholarships, if not granted by the Government. Furthermore, in setting up a reasonable fee structure, the element of profiteering is not as yet accepted in Indian conditions. The fee structure

must take into consideration the need to generate funds to be utilized for the betterment and growth of the educational institution, the betterment of education in that institution and to provide facilities necessary for the benefit of the students. In any

event, a private institution will have the right to constitute its own governing body, for which qualifications may be prescribed by the state or the concerned university. It will, however, be objectionable if the state retains the power to nominate specific

individuals on governing bodies. Nomination by the state, which

could be on a political basis, will be an inhibiting factor for private enterprise to embark upon the occupation of establishing and administering educational institutions. For the same

reasons, nomination of teachers either directly by the department or through a service commission will be an unreasonable inroad and an unreasonable restrictions on the

attorney of the private unaided educational institution.

68. It would be unfair to apply the same rules and regulations

regulating admission to both aided and unaided professional institutions. It must be borne in mind that unaided professional institutions are entitled to autonomy in their administration

while, at the same time, they do not forgo or discard the principle of merit. It would, therefore, be permissible for the university or the government, at the time of granting recognition, to require a private unaided institution to provide for merit- based selection while, at the same time, giving the Management sufficient discretion in admitting students. This can be done through various methods. For instance, a certain percentage of the seats can be reserved for admission by the Management out of those students who have passed the common entrance test

held by itself or by the State/University and have applied to the college concerned for admission, while the rest of the seats may be filled up on the basis of counselling by the state agency. This will incidentally take care of poorer and backward sections of the

.

society. The prescription of percentage for this purpose has to be done by the government according to the local needs and different percentage can be fixed for minority unaided and non-

minority unaided and professional colleges. The same principles may be applied to other non-professional but unaided educational institutions viz., graduation and post- graduation non-professional colleges or institutes."

13.

Careful perusal of aforesaid exposition of law laid down

by Hon'ble Apex Court clearly reveals that while the state has

the right to prescribe qualifications necessary for admission,

private unaided colleges have the right to admit students of

their choice, subject to an objective and rational procedure of

selection and the compliance of conditions, if any, requiring

admission of a small percentage of students belonging to

weaker sections of the society by granting them freeships or

scholarships, if not granted by the Government. In the

aforesaid judgments, precisely, Hon'ble Apex Court has held

that it would be unfair to apply the same rules and regulations

regulating admission to both aided and unaided professional

institutions. It must be borne in mind that unaided

professional institutions are entitled to autonomy in their

administration while, at the same time, they do not forgo or

discard the principle of merit. It would, therefore, be

permissible for the university or the government, at the time of

granting recognition, to require a private unaided institution to

provide for merit-based selection while, at the same time,

.

giving the Management sufficient discretion in admitting

students.

14. In PA Inamdar (supra) Hon'ble Apex Court, while dealing

with issue of reservation has held that States have no power to

insist on seat sharing in the unaided private professional

educational institutions by fixing a quota of seats between the

management and the State. The State cannot insist on private

educational institutions which receive no aid from the State to

implement State's policy on reservation for granting admission

on lesser percentage of marks, i.e. on any criterion except

merit because such imposition of quota of seats or enforcing

reservation policy of State on available seats on unaided

institutions are acts constituting serious encroachment on the

autonomy of the private unaided institution as they are not

deriving any aid from State funds, can have their own

admissions if fair, transparent, non-exploitative and based on

merit.

If all the aforesaid judgments passed by Hon'ble Apex

Court are read in conjunction, they clearly provide that though

it would be permissible for the Government, at the time of

grant of recognition, to require the private institution to

provide for merit-based selection but, at the same time,

sufficient discretion is required to be given to the management

in the admission of students. Hon'ble Apex Court, while

.

making observation that when it comes to education, it is

expected that the unaided private institutions provide quality

education but, at the same time, they are given 'freedom in

joints with minimal Government interference, except what

comes under regulatory regime.

15. Though in Maharishi Markandeshwar University

(supra), issue was whether the colleges opened by full-fledged

independent university can be compelled to affiliate with

Himachal Pradesh University, but Hon'ble Apex Court while

exploring answer to aforesaid question, categorically observed

that It is unfathomable as to how sub section (2) of this

provision will take within its sweep another independent

University established under a special State Legislation or a

constituent college of such University. That general provision

may apply to all other educational institutions situated within

the State, but certainly not to an independent University

established under a special State Legislation such as the 2010

Act or to the constituent college of such an independent

University. Most importantly, in aforesaid judgment in

paragraph 34, Hon'ble Apex Court held that once it is noted

that appellant No.2 (petitioner) is an independent and full-

fledged University established under an independent special

State Legislation, it must be free to discharge its functions as

delineated in the 2010 Act.

.

16. Once it is not in dispute inter se parties that the

petitioner-University came into existence under the 2010 ACt

and with the approval of Medical Council of India, it

established Maharishi Markandeshwar Medical College and

Hospital at Kumarhatti, affairs of petitioner-University and its

constituent colleges are to be governed under 2010 Act and as

such, it is not understood how and under what provision of

law, respondents can compel petitioner-University to reserve

50% of total seats for bona fide himachali students, especially

when under Section 31(4) of the Act, there is provision to

provide 25% of the total seats. Respondents, unless aforesaid

Act is amended, have no power to dictate petitioner to provide

reservation over and above 25%. Under S.31(4) of the Act,

petitioner-University has been bound down to provide at least

25% of the seats but under no circumstances, such provision

can be read in the way same is being read by respondent-

State. Word "atleast" appearing in S.31(4) rather suggests that

petitioner-University can at least provide 25% reservation out

of total seats to bona fide himachali students but certainly it

does not suggest that over and above 25% as provided under

Act, respondent State can any time compel or dictate petitioner

to provide 50% reservation, which otherwise, if allowed, would

be in total violation of provisions of the Act as well as law laid

down by Hon'ble Apex Court in judgments(supra).

.

17. Though, in the case at hand, petitioner has sought

mandamus commanding the Respondents to issue prospectus

insofar as petitioners are concerned for admission in the

petitioner No.2-college MBBS/BDS-2018-19 as prayed by the

Petitioners vide letter dated 17th May, 2018 and 26th May,

2018 for the academic year 2018-19; specifying the State

Quota seats as 25% and Management Quota as 75% as per as

per section 31(4) of the Maharishi Markandeshwar University

(Establishment and Regulations) Act, 2010 and NRI seats @

15% of the seats, but since respondent, during the pendency

of the instant case, despite there being interim directions

dated 13.6.2018, whereby they were directed to take only such

action which is totally in conformity with the 2010 Act and

directions of Hon'ble Apex Court, proceeded to issue Annexure

R-1 (page 182) specifying therein that the seats will be

distributed in the ratio of 50:50 for the State and Management

quotas, prayer made on behalf of petitioners for quashing of

aforesaid communication dated 20.6.2018 deserves to be

considered in the instant proceedings.

18. In view of above discussion and law laid down by Hon'ble

Apex Court, petition having been filed by petitioners deserves

to be allowed and same is allowed. Communication dated

20.6.2018, Annexure R-1 annexed with the reply is quashed

and set aside and interim order dated 13.6.2018 directing

.

respondents to take only such action which is totally in

conformity with the 2010 Act and directions issued by Hon'ble

Apex Court is made absolute. All pending applications stand

disposed of. Interim directions, if any, stand disposed of.

        January 7, 2021

           (vikrant)        to                   (Sandeep Sharma)
                                                      Judge