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 Actâ€), petitioner-University is under
obligation to reserve at least 25% seats for bona fide Himachalis.â€
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 Actâ€) 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 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 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 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.â€
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, prayermade 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
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 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.]â€
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 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.â€
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 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 â€" 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 â€" 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 â€" 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 â€" 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.â€
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 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 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.â€
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 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 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 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.â€
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 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.â€
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 17 th 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.
