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 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."
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 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.;