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IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
SANDEEP SHARMA, J.
Maharishi Markandeshwar University and another - Petitioners
Versus
State of Himachal Pradesh and others - Respondents
CWP No. 1300 of 2018
Decided On : 07-01-2021
Maharishi Markandeshwar University (Establishment and Regulations) Act, 2010 – Section 31 – Himachal Pradesh Private Medical Educational Institutions (Regulation of Admission and Fixation of Fee) Act, 2006 – Section 3 – Reservations – Admission – Petitioner-University came to be established under Act with 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 Medical Council of India for making admissions to 150 seat in MBBS for sessions 2013-14 and keeping in view provisions of S.31 (4) of Act and other enabling provisions under 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 constituent colleges of Petitioner-University affiliated with Himachal Pradesh University, petitioner approached this Court by way of CWP challenging validity of S.3(6) 3(6a) and 3(6b) of Himachal Pradesh Private Medical Educational Institutions (Regulation of Admission and Fixation of Fee) Act, 2006 as amended vide amending Act – However, fact remains that Division Bench of this Court vide judgment dismissed writ petition upholding provisions contained under Ss. 3(6), 3(6a) and 3(6b). – Besides above, Division Bench of this court also rejected prayer of petitioners to issue directions to concerned authority that petitioner college and hospital and any other institution of medical stream to be started by petitioner-University shall be governed only by Act Ibid – Whether respondent State has any authority/power to compel petitioner-University to reserve seats more than 25% for students who are bona fide Himachalis, especially when under Section 31(4) of Maharishi Markandeshwar University (Establishment and Regulations) Act, 2010 petitioner- University is under obligation to reserve at least 25% seats for bona fide Himachalis – Held, Once it is not in dispute inter se parties that petitioner-University came into existence under 2010 ACt and with 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 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 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 Act as well as law laid down by Hon'ble Apex Court in judgments – Petitioner has sought mandamus commanding Respondents to issue prospectus insofar as petitioners are concerned for admission in petitioner No.2- as prayed by Petitioners vide letter for academic year 2018-19; specifying State Quota seats as 25% and Management Quota as 75% as per as per section 31(4) of Maharishi Markandeshwar University (Establishment and Regulations) Act, 2010 and NRI seats @ 15% of seats, but since respondent, during pendency of the instant case, despite there being interim directions 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 seats will be distributed in ratio of 50:50 for the State and Management quotas, prayer made on behalf of petitioners for quashing of aforesaid communication deserves to be considered in instant proceedings – Petition Allowed
JUDGMENT :
SANDEEP SHARMA, J.
1. 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.”
2. For having bird’s eye view, certain undisputed facts as emerge from pleadings adduced on record by respective parties are as under:
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 leg
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