State of H.P. v. Maharishi Markandeshwar University

confirmed.

It is pertinent to notice that from the above it would be clear that there was an interim order passed by the Division Bench at that point of time on 13.06.2018, whereby directions were issued to take action in conformity with the provisions of the ‘2010 Act’ and the directions issued by the Apex Court in Civil Appeal No.5198 of 2017 (arising out of SLP (Civil) No.937 of 2017) titled Maharishi Markandeshwar Medical College and Hospital & Others Vs. State of Himachal Pradesh & Others 2017 (6) SCC 675. The prayer made in the writ petition as such was based on the statute of the ‘2010 Act’, wherein the writ petitioner-University had prayed to make admission in its medical college-petitioner No.2, as per the provisions of the said Act for the academic year 2018-19.

Resultantly, the prayer was made to issue prospectus as such for the said year specifying the State Quota seats as 25% and Management Quota as 75%, in view of Section 31 (4) of the ‘2010 Act’ and for the NRI seats @ 15% of the total seats.

The defence of the respondents-State as such is not based on any legal provisions, apart from the fact that it has 3 mentioned that the approval had been given to the writ petitioner- University for 150 seats in the MBBS Course for the session 2013- 14, in view of the provisions of Section 31 (4) of the ‘2010 Act’ and the government had decided to reserve 50% of the total of 150 seats for bonafide Himachalis.

In such circumstances, the admission made from the year 2013 onwards till the dispute had arisen as such, was the defence on the ground that it was the practice based on the statute and government decision and the claim for reducing the State Quota meant for bonafide Himachalis from 50% to 25% would not be maintainable.

It is in this narrow scope as such the matter has to be decided and now the State cannot be allowed to permit or argue to the contrary as there is but nothing to show that the provisions of Section 31 (4) ‘2010 Act’ as such were not being followed. The only argument now raised is that the Clause provides, at least 25% seats and therefore in such circumstances, counsel for the State sought to justify that the State as such was free to enhance the Quota to 50%, which has been done during the pendency of the litigation on

20.06.2018, which apparently has been quashed.

Section 31 (4) of the Markandeshwar University (Establishment and Regulations) Act, 2010 reads as under:- 4 “At least 25% seats for admission to each course shall be reserved for students who are bonafide Himachalis.”

The reasons which weighed with the learned Single Judge as such goes to show that the University as such was un- aided professional institution and therefore, it was entitled to its autonomy in administration as long it did not discard the principle of merit. The defence as such was the instructions placed on record filed by the Under Secretary Education on 27.12.2020 were duly taken into consideration, wherein the same plea was also taken by the State that the State could direct 50% of the State Quota seats.

While placing reliance upon earlier controversy wherein the State as such by an earlier litigation, which had arisen out of the Himachal Pradesh Private Medical Educational Institutions (Regulation of Admission and Fixation of Fee) Act, 2006 (hereinafter, “2006 Act”), the learned Single Judge drew strength to go on to hold that in sum and substance, the Apex Court as such had held that once the University had a trappings of full-fledged University, the State could not under the special State legislation as such regulate the admissions and determine the fee structure.

Reliance was also placed upon a constitutional bench judgment of the Apex Court of eleven Judges in T.M.A. Pai Foundation & Others Vs. State of Karnataka & Others (2002) 8 SCC 481, wherein it has been held that it would be unfair to apply 5 the same Rules & Regulations regulating admission to both aided and unaided professional institutions as the latter are not deriving any State aid from from State funds.

Similarly, reliance was also placed upon another constitutional bench judgment of the Apex Court in P.A. Inamdar & others Vs. State of Maharashtra and Others (2005) 6 SCC 537, regarding the issue of limitation of the State in seat sharing in the un-aided professional institution.

Reliance was also placed upon the judgment of Apex Court in Modern Dental College Vs. State of Madhya Pradesh & Others (2016) 7 SCC 353, wherein it has been held that the private institution not receiving aid as such has a greater autonomy in their day-to-day functioning and right to admission and fixation of fee, which otherwise vests with the appellants.

Thus, falling back on Section 31 (4) of the ‘2010 Act’, it has been held that the petitioner-University as such was not violating and providing the minimum 25% of reservation provided out of the total seats to the bonafide Himachalis students and therefore the State could not compel it to provide 50% reservation in view of the violation of the ‘2010 Act’ itself.

One of us Justice G.S. Sandhawalia, Judge, while sitting singly in the High Court of Punjab and Haryana at Chandigarh also decided Punjab Private Self Financed Dental 6 College Association vs. State of Punjab and others (2015) 1 SCT 571 (P&H), wherein the issue was regarding the rejection of the demand of the said association for exempting it to conduct its own entrance test for admission to MBBS and BDS Courses. While placing reliance on the very same judgment, it was noticed that the Apex Court had come to the conclusion that in T.M.A. Pai Foundation case (supra), there has to be a “Triple Test” for the institutions for admission and the procedure has to be fair, transparent and non-exploitative, which included admission for minority unaided institutions. Reference was also made to the judgment in Pramati Educational and Cultural Trust (r) and Others Vs. Union of India (UOI) and others (2014) 7 JT 46 wherein the validity of Article 15 (5) as such was subject matter of consideration and it has been held that it was not ultra vires to Article 19 (g) of the Constitution of India and only minority institutions have been given the right to be kept out of the ambit of Right of Children to Free & Compulsory Education Act, 2009. It was thus held that the process of admission has to be regulated with the objective of making merit based transparent process of admission as per the regulation in question. Resultantly, challenge to the decision of the Government rejecting the representation of the petitioner was repelled. 7

It is also to be noticed that in Islamic Academy of Education vs. State of Karnataka (2003) 6 SCC 697 another Constitutional Bench, while explaining the earlier Bench of T.M.A. Pai Foundation case (supra) had framed four questions and question No. 3 was whether private unaided professional colleges are entitled to fill their seats to the extent of 100 percent and if not to what extent. Resultantly, while dealing with para 68 of the majority judgment in T.M.A. Pai Foundation case (supra), it was held that it can be split into seven parts. Para 12 of the said judgment reads as under:

12. Firstly, it deals with the unaided minority or non-minority professional colleges. Secondly, it will be unfair to apply the rule and regulations framed by the State Government as regards the government aided professional colleges to the unaided professional colleges. Thirdly, the unaided professional institutions are entitled to autonomy in their administration; while at the same time they should not forego or discard the principles of merit. Fourthly, it is permissible for the university or the Government at the time of granting recognition to require an unaided institution to provide for merit based admission while at the same time giving the management sufficient discretion in admitting students. Fifthly, for unaided non-minority professional colleges certain percentage of seats can be reserved for admission by the management out of those students who have passed the common test held by itself or by the State/University and for applying to the college/university for admission, while the rest of the seat may be filled 8 up on the basis of counseling by the State agency. Sixthly, the provisions for poorer and backward sections of the society in unaided professional colleges are also to be provided for. Seventhly, the prescription for percentage of seats in unaided professional colleges has to be done by the government according to the local needs. A different percentage of seats for admission can be fixed for minority unaided and non-minority unaided professional colleges.

Resultantly, while answering the said question, it was held that certain percentage of the seats can be reserved for admission by the Management and rest has to be filled up on the basis of counseling by the State Agencies and the percentage has to be according to local needs, while placing reliance upon The State Of Maharashtra vs Indian Medical Association & Ors (2002) 1 SCC 589. While clarifying that in professional colleges, admission should be on the basis of merit and it was held that each institutions cannot hold a separate test, while distinguishing the yard stick to be applied in both minority and non-minority professional colleges while falling back on paragraph 68 of the judgment that certain percentage of seats can be fixed for the unaided private institutions to provide for merit based selection and for admission in admitting students, so that the poor and backward section and local needs can be looked after. 9

Therefore, we are of the considered opinion that the order dated 07.01.2021, passed by the learned Single Judge is based on tenable reasons as such and the writ petition has been allowed on the basis of the grant of the issuance of the mandamus on account of the prayer that it was on the basis of the statute of ‘2010 Act’ and in view of the provisions of Section 31 sub-Clause (4) of the ‘2010 Act’ itself. The State as such is equally bound by the provisions of the statute and cannot wriggle out, in any manner once the said ‘2010 Act’ has been notified. The ‘2010 Act’ is providing for a minimum of 25% reservation which has not been violated and therefore, only on account of earlier point of time, the State had been making centralized counseling by providing 50% seats for the State Quota would not set as such a precedent for all times to come.

The judgment passed by the Apex Court in case of the petitioner-University itself, wherein it has been held that the ‘2010 Act’ proposed 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 off college campus.

It is in such circumstances, it has been held that having the trappings of full-fledged University, it has not only 10 started imparting education in prescribed courses but also set up its constituent colleges to effectuate the purpose for which the University had been established and that by providing for affiliation from H.P. University would amount to making inroads as such of its autonomy.

Similarly, the learned Single Judge had also noticed that the Apex Court in Modern Dental case (supra) held that basically it is constant tug of war which continues between the State Government and institutions and State cannot enjoy monoply in the field of imparting medical education and it is only to provide the best infrastructure and latest facilities to the students, as such and once the institutions have been set-up and established the functional control as such cannot be taken over by the State. The University has to be given ‘freedom in joints’ with minimal government interference while recognizing the fact that education has now to be treated as a noble ‘occupation’.

In such circumstances, we are of the considered opinion that the learned Single Judge had not erred, in any manner, in issuing the necessary directions and quashing the order dated 20.06.2018 (Annexure R-1), keeping in view the fact that the writ petition was solely based on the provisions of the ‘2010 Act’. The State did not have any valid defence based on any statute apart from the fact that on an earlier occasion, the 11 University had been following and accepting the principles of 50% ratio of the State Quota and the Management Quota.

It is thus, in such circumstances, there is no error apparently on the face of record which warrants interference under Letters Patent Appeal. Resultantly, the present appeal stands dismissed accordingly.

Pending miscellaneous application(s) if any, shall also stand disposed of. (G.S. Sandhawalia) Chief Justice Judge (Jiya Lal Bhardwaj) 9th October, 2025 (munish/sanjeev)